State v. Bey

HANDLER, J.,

dissenting.

The Court today continues the attempt, begun in State v. Ramseur, 106 N.J. 123 (1987), and State v. Biegenwald, 106 N.J. 13 (1987), to narrow by construction the reach of N.J.S.A. 2C:11-3 in order to make the application of the statute constitutional. For this attempt the Court is to be commended. I continue to believe, however, that the statute as drafted is invalid under our State Constitution, and that the Court’s construction of the statute has thus far failed to assure the reliability and consistency necessary to prevent the arbitrary infliction of the death penalty.

In State v. Ramseur, I took the position that N.J.S.A. 2C:11-3 should be held to violate this State’s proscription of cruel and unusual punishments and its requirement of due process. I expressed the belief, contrary to the legislature’s assumption, that the federal Supreme Court precedent provides only a minimum level of protection of individual rights; indeed, the variety of statutory structures and the degrees of arbitrariness approved by the Supreme Court, and the Court’s vacilla *189 tions in recent years, have convinced me that capital punishment is a topic suited to the broader protections of individual rights afforded under our State Constitution. See Ramseur, supra, 106 N.J. at 345-69 (Handler, J., dissenting). This did not require, in my view, a holding that the death penalty is per se unconstitutional; rather, I contended that the statute is capable of such broad and variable application that it should have been invalidated without reaching the question of whether any death penalty statute, however narrowly drafted, would be unconstitutional. Id. at 382-406 (Handler, J., dissenting).

The statute begins with a definition of capital murder that, by itself, does not even require that a capital defendant have intended to kill, id. at 387-390, cf. id. at 194 (majority acknowledges that federal court’s decision in Enmund v. Florida, 458 U.S. 782 , 102 S.Ct. 3368 , 73 L.Ed.2d 1140 (1982), may require intent to kill for capital murder). The basic or primary definition does not include any major element or factor that plausibly makes a murder a capital offense. The constitutionally required narrowing of the class of capital murderers is thus committed to the definition of the aggravating factors, which are considered not when the jury is deciding whether the defendant is culpable but when the jury is deciding whether the defendant should be executed. Moreover, these aggravating factors are, as the majority conceded, themselves so broad as to include most, if not all, murders. Ramseur, supra, 106 N.J. at 390-94 (Handler, J., dissenting); cf. id. at 188-89 (acknowledging breadth of aggravating factors). Given the absence of any meaningful or effective narrowing through the guilt or penalty phases, the discretion afforded prosecutors by such a scheme is virtually limitless; a prosecutor can choose to prosecute as capital murder almost any killing done by one’s “own conduct” by serving a notice of aggravating factors, thus rendering the defendant death-eligible and enabling the prosecutor to try him before a death-qualified, demonstrably punitive, jury. The results of the exercise of such prosecutorial discretion, I asserted, can only be arbitrary. Id. at 404-08 *190 (Handler, J., dissenting). The likelihood, moreover, of conducting an effective proportionality review, when the varieties of murder comprehended by the statute are so great, seemed to me remote. Id. I reiterate those objections today. The statute both as enacted and as construed fails to assure the enhanced reliability this Court should require under the State Constitution.

I therefore dissent from the Court’s opinion in this case for the reasons expressed in my opinions in State v. Ramseur, 106 N.J. at 343, and State v. Biegenwald, 106 N.J. at 72, relating to the constitutionality of the death penalty statute. I also disagree with the Court’s opinion on several additional grounds. I am of the view that defendant was not tried by a fair and impartial jury. These trial deficits inhere in the death qualification of the jury and in the improper application of death qualifying standards in accepting a juror for service and the failure to excuse that juror for cause. I am also of the view that the defendant’s confession was elicited in violation of his fifth amendment and state privilege against self incrimination by refusing to honor his right to remain silent, which he invoked in the course of custodial interrogation. In addition, I dissent from the views of the Court with respect to the application in this case of the potentially overlapping aggravating factors of c(4)(c) and c(4)(g).

In my opinion these errors constituted grounds for reversal under either the conventional standards for reversibility used by the majority, or under the enhanced standard of review for capital causes discussed in the companion case of State v. Bey (I), 112 N.J. 45, 106-19 (1988) (Handler, J., dissenting). It is the majority's failure to engage in the scrupulous review of the record, the aspect of an enhanced standard of review that was followed by this Court in State v. Bey (I), supra, 112 N.J. at 91-95 , that I believe has contributed to its decision to uphold the conviction despite errors that call for its reversal.

*191 I.

A.

Defendant challenges the use of a death-qualified jury during the guilt phase of his bifurcated trial. The majority, without discussion, summarily rejects this contention, ante at 149-50, relying on this Court’s opinion in State v. Ramseur, supra, 106 N.J. at 248-54. This Court, in Ramseur , without extended reasoning, chose to follow the decision in Lockhart v. McCree, 476 U.S. 162 , 106 S.Ct. 1758 , 90 L.Ed.2d 137 (1986), where the Supreme Court ruled that it was not unconstitutional to determine a defendant’s guilt by a death-qualified jury. Ramseur, supra, 106 N.J. at 248-54.

I continue to disagree with this position. Id. at 428-35 (Handler, J., dissenting). I noted in my opinion that there was authoritative support in ongoing social science research to suggest that individuals who favor the imposition of the death penalty are generally more punitive than those who disfavor the death penalty. Id. at 431 (Handler, J., dissenting), (citing Wilson, “Belief in Capital Punishment and Jury Performance” (unpublished, University of Texas 1964); Jurow, “New Data on the Effects of a ‘Death-Qualified’ Jury on the Guilt Determination Process,” 84 Harv.L.Rev. 657 (1971); Fitzgerald and Ells-worth, “Due Process vs. Crime Control: Death-Qualification and Jury Attitudes,” 8 Law Hum.Behav. 31 (1984)). I underscored the observation that jurors generally favoring the death penalty are “less likely to consider mercy, more likely to favor harsh punishment as a means of reducing crime, and more likely to believe in the strict enforcement of all laws, no matter what the consequences,” 106 N.J. at 431 (Handler, J., dissenting) (quoting Fitzgerald and Ellsworth, supra, 8 Law Hum. Behav. at 43-44). The literature appearing since McCree reaffirms this conclusion. See Seltzer, Lopes, Dayan, and Canan, “The Effect of Death Qualification on the Propensity of Jurors to Convict: The Maryland Example,” 29 How.L.J. 571 (1986).

*192 In addition to selecting for service jurors whose attitudes are more punitive than death-scrupled jurors’ attitudes, the process of death qualification itself engenders partiality among the jurors. The process makes paramount the issue of the imposition of the death penalty itself, thus suggesting that the guilt of the defendant is a foregone conclusion. See Haney, “On the Selection of Capital Juries: The Biasing Effects of the Death Qualification Process,” 8 Law Hum.Behav. 121 (1984). One cannot read the transcript of a death-qualifying voir dire proceeding without a sense of impending doom. See State v. Ramseur, 106 N.J. 331 , 341 (O’Hern, J., concurring) (quoting Hovey v. Superior Court of Alameda County, 28 Cal.3d 1, 70-71 , 168 Cal.Rptr. 128, 175 , 616 P.2d 1301, 1348 (1980)).

The Ramseur majority eschewed dealing critically with the problems created by using a death-qualified jury. It simply acquiesced in the determination of the United States Supreme Court, observing only that “the protections regarding death qualification afforded under the New Jersey Constitution are no different from or greater than those under the federal Constitution.” Ramseur, supra, 106 N.J. at 251. This uncritical acceptance of the Supreme Court’s lead on this fundamental issue is baffling for several reasons.

First, it fails woefully to appreciate just how restrictive and minimal are the protections of the federal Constitution. In Buchanan v. Kentucky, 483 U.S. -, 107 S.Ct. 2906 , 97 L.Ed.2d 336 (1987), for instance, petitioner challenged the death-qualification of his jury when the death penalty was sought as to only his co-defendant (the capital portion of petitioner’s indictment was dismissed on the basis of Enmund v. Florida, supra, 458 U.S. 782 , 102 S.Ct. 3368 , 73 L.Ed.2d 1140 , because the petitioner had not killed or intended to kill). 483 U.S. at-, 107 S.Ct. at 2910 , 97 L.Ed.2d at 346 . Thus, the question of the conviction-proneness of death-qualified juries was squarely posed, for the petitioner was subject only to conviction for non-capital murder, and not to a possible death sentence.

*193 The Court rejected petitioner’s claims, holding that “[t]he decision in McCree controls the instant case.” Id. at-, 107 S.Ct. at 2913 , 97 L.Ed.2d at 350 . The Court addressed the issue of the conviction-proneness of death-qualified juries by noting that “just as it was assumed in McCree that the studies were ‘both methodologically valid and adequate to establish that “death qualification” in fact produces juries somewhat more “conviction-prone” than “non-death-qualified” juries’ ... we make a similar assumption here.” Id. at-n. 16, 107 S.Ct. at 2913 n. 16, 97 L.Ed.2d at 350 n. 16. Despite this increase in conviction-proneness with death qualification, and despite the fact that petitioner was not charged with a capital offense, the Court upheld the use of the procedure on the basis of McCree, id. at-, 107 S.Ct. at 2913-14 , 97 L.Ed.2d at 350-51 . The Court stated:

Petitioner’s primary error is his characterization of the issue presented here as affecting his trial, as opposed to the actual trial, in this case — the joint trial of petitioner and Stanford.....[T]he Commonwealth has determined that it has an interest in providing prosecutors with the authority to proceed in a joint trial when the conduct of more than one criminal defendant arises out of the same events. {Id. at-, 107 S.Ct. at 2915 , 97 L.EdM at 352.]

Given the State interest in joint trials, and the constitutional presupposition “that a jury selected from a fair cross section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case,” id. at -, 107 S.Ct. at 2916 , 97 L.Ed.2d at 354 (quoting Lockhart v. McCree, supra, 476 U.S. at 184 , 106 S.Ct. at 1770 , 90 L.Ed.2d at 155 ), the Court found no constitutional violation in death-qualifying the jury of the non-capital petitioner.

Buchanan illustrates just how permissive the federal — and, regrettably, after Ramseur, the State — constitutional standard is. This decision implicates Justice O’Hern’s concern that “[t]he real question for us is not what the State can do, but rather what we should do in the just exercise of our common law supervisory power over criminal practice within our juris *194 diction.” Ramseur, supra, 106 N.J. at 333-34 (O’Hern, J., concurring). It also glaringly illustrates the vast differences between the minimal protection afforded under the federal Constitution and the greater protections that the State Constitution should provide.

In addition to failing to recognize how low is the ceiling of federal constitutional protection, the Ramseur majority’s acceptance of juries that are “somewhat more conviction-prone” departs radically from this Court’s decisions safeguarding the integrity of the right to an impartial jury. While no one insists that procedure can be made perfect, in no other context has this Court accepted the proposition that mere prosecutorial convenience — or any state interest — justifies procedures that render the jury “somewhat more ‘conviction-prone.’ ” McCree, supra, 476 U.S. at 173 , 106 S.Ct. at 1764 , 90 L.Ed.2d at 147 . In State v. Simon, 79 N.J. 191 (1979), this Court rejected the submission of special interrogatories to a jury in a criminal conspiracy case prior to the jury’s deliberation of a general verdict precisely because of the interrogatories’ “potential for destroying the ability of the jury to deliberate upon the issue of guilt or innocence free of extraneous influences.” Id. at 199 (emphasis added). The Court continued, noting that, “[t]his potential for harm inheres in the subtly coercive effect interrogatories can have upon the course of a jury’s deliberations. They can constitute a form of mental conditioning which is antithetical to the untrammeled functioning of a jury.” Id. at 199-200 (emphasis added). This Court required no conclusive showing that the interrogatories rendered the jury “somewhat more conviction-prone;” indeed, the Court’s decision in the event of such a showing would have been unanimous. Id. at 208 (Pashman, J., dissenting). Rather, it was the interrogatories’ “unique capacity to proselytize the jury to the guilt of a defendant” before the jury deliberated that issue, id. at 200 , that led this Court, based on “our own standards applicable to the administration of justice,” to reverse. Id. at 203 . No considerations involving prosecutorial convenience or judicial economy could outweigh *195 the perceived harm in tolerating a procedure that could bias the jury.

Nor is State v. Simon an aberration; this Court has been steadfast in disapproving practices that risk predisposing the jury to consider a defendant guilty. In Ramseur itself, this Court followed its earlier decision in State v. Czachor, 82 N.J 392 (1980), in reversing defendant’s death sentence because of the trial court’s issuance of coercive jury instructions. In doing so, the Court reaffirmed its rejection of the argument that conservation of “time and resources” justifies the issuance of forceful instructions designed to produce a unanimous verdict. 106 N.J at 308 (citing State v. Czachor, supra, 82 N.J. at 403). The Court quoted, moreover, the Czachor majority’s conclusion that the prejudice resulting from coercive instructions need not be “readily measured by the empirical or objective assessment of the evidence bearing upon defendant’s guilt.” 106 N.J. at 312 (quoting State v. Czachor, supra, 82 N.J. at 404 (citations omitted)). Thus, in Czachor the Court rejected the identical state interest advanced to support death qualification.

In State v. Collier, 90 N.J. 117, 124 (1982), moreover, this Court (per Pollock, J.), held that a partial directed verdict of guilt on a charge of contributing to the delinquency of a minor required reversal of the conviction on the other, more serious charge of rape because “the partial directed verdict on the contributing charge impaired the jury’s ability to assess objectively the defendant’s guilt on the rape charge.” Because, in other words, the partial directed verdict rendered the jury “somewhat more conviction-prone,” this Court saw fit to reverse. See State v. Ingenito, 87 N.J. 204, 216-17 (1981) (prohibiting the use of collateral estoppel against a criminal defendant because, “by removing significant facts from the deliberative process,” it constitutes “a strong, perhaps irresistible, gravitational pull towards a guilty verdict, which is utterly inconsistent with the requirements that a jury remain free ... in its deliberations”); see also State v. Corsaro, 107 N.J. 339, 352-53 (1987) (prohibiting substitution of a juror after partial verdicts had *196 been returned because the fact-finding underlying those partial verdicts would have predisposed the substituted juror toward guilt on the open charges); State v. Ragland, 105 N.J. 189, 195-96 (1986) (reversing conviction for possession of a weapon by a convicted felon because the charge had the effect of directing the verdict); State v. Ingram, 98 N.J. 489, 500 (1985) (while State may rely on statutory presumption that defendant’s failure to adduce gun permit entails the failure to procure one, the jury must be instructed that it is “at liberty to find the ultimate fact one way or the other”). This Court has historically insisted, moreover, that “[i]t is vital in capital cases that the jury should pass upon the case free from external causes tending to disturb the exercise of deliberate and unbiased judgment.” State v. Kociolek, 20 N.J. 92, 105 (1955) (quoting Mattox v. United States, 146 U.S. 140, 149 , 13 S.Ct. 50, 53 , 36 L.Ed. 917, 921 (1892)). See State v. Jackson, 43 N.J. 148, 158 (1964), cert. denied sub nom. Ravenell v. New Jersey, 379 U.S. 982 , 85 S.Ct. 690 , 13 L.Ed.2d 572 (1965); State v. Mount, 30 N.J. 195, 212-13 (1959). It is difficult to imagine an “external cause” that would tend more to “disturb the deliberate and impartial judgment” of the jury than death qualification, which both selects a more punitive jury and conditions that jury to believe that a defendant is guilty.

The balance this Court strikes under our Constitution between a defendant’s entitlement to an impartial jury and the state’s prosecutorial convenience has not been in other contexts, and should not be in the context of the death penalty, controlled by the low ceiling of federal protection. To allow it to be so controlled is to render our own jurisprudence incoherent, for while in cases such as Simon even the risk of “mental conditioning” toward guilt was sufficient to override procedural convenience, under federal doctrine a demonstrated propensity toward conviction-proneness does not affect the balance in favor of convenience in the slightest. We did not insist, in Simon , on empirical proof that the special interrogatories rendered the jury conviction-prone; that they could was a matter *197 of common sense, and the risk that they had was sufficient. Similarly, the studies demonstrating conviction-proneness in death-qualified juries may not prove conviction-proneness scientifically, but they do ratify the common sense notion that I am more likely to believe an accused guilty if I am asked if I would be willing to vote to execute him before I am asked to consider the evidence of his guilt. The studies are consistent, moreover, with the intuition that those who would be willing to vote to impose the death penalty are more likely to believe, for instance, that “[pjeople accused of crimes should be required to prove their innocence” or that “[t]he courts are too lenient with criminals these days.” Seltzer, et al., supra, 29 How.L.J. at 605. In short, these death qualification studies identify a substantial risk; under our jurisprudence, that risk should be enough to compel the State to develop alternatives. What the majority has endorsed, in contrast, is either an incoherent view of jury impartiality, or, ironically, a different standard of review for capital cases, in which death is considered different, but perversely so, entitled to fewer safeguards.

Finally, the only reason advanced to justify this procedure is the state’s interest in a single-jury bifurcated trial; it is simpler and easier to try a defendant for capital murder on a bifurcated basis before the same jury. This was the state’s interest relied on by the Supreme Court in McCree , based on Arkansas’ legislative policy mandating unitary capital juries and thus, by implication, was the same interest relied on by this Court in Ramseur. What the Ramseur majority failed to recognize, however, is that this State’s interest simply is not as strong as Arkansas’ interest was in McCree ; in contrast to Arkansas’ death penalty statute, which mandated this procedure, see Ark. Stat.Ann. § 41-1303(3), our death penalty statute makes a unitary jury discretionary. See N.J.S.A. 2C:11-3c(1). If nothing else, this attenuated State policy, considered in light of this State’s jurisprudence and the social science evidence, should mandate the development of State alternatives that will vindicate both the State’s interest in economical prosecution and the *198 defendant’s right to a jury that has not been informed before deliberating a defendant’s guilt of a crime that they may have to consider executing him for it. The literature emerging since McCree has challenged the notion that alternatives to death qualification are unworkable. See, e.g., Robert M. Derry, “Remedies to the Dilemma of Death-Qualified Juries,” 8 U.Ark. Little Rock L.J. 479 (1986); Comment, “Inequities and Abuses of Death Qualification: Causes and Cures,” 32 S. D.L.Rev. 281 (1987). I continue, in short, to agree with Justice O’Hern’s concurring opinion in State v. Ramseur, supra, 106 N.J. at 339-43, that the inconvenience entailed in providing for a non-death-qualified jury — one that is fair and impartial — in the trial of guilt is not too high a price to pay to vindicate constitutional interests.

B.

Defendant challenges, under the sixth and fourteenth amendments to the United States Constitution, Article I, § 10 of the New Jersey Constitution, and this Court’s supervisory powers, the trial court’s refusal to excuse for cause juror Kurlowicz. Kurlowicz, defendant claims, was “unable to assure the court that he could consider all proposed mitigating factors and impartially decide the issue of guilt or punishment;” as a result of the trial court’s refusal to excuse Kurlowicz, defendant argues, he was forced to exercise a peremptory challenge and was denied his right to an impartial jury. The Court now rules that this juror should have been excused for cause but that no reversible error ensued because defendant had not exhausted his peremptory challenges. Ante at 154. I dissent from this determination.

As recounted by the majority, ante at 152-54, Kurlowicz initially denied both that he opposed capital punishment in all situations and that he favored it for every person convicted of murder. He acknowledged his belief that capital punishment is “justified in certain cases,” but denied that his feelings about *199 the death penalty would influence his deliberation as to guilt. However, the defense’s questioning elicited answers that indicated Kurlowicz’s strong inclination in favor of capital punishment. While Kurlowicz also indicated that he would consider factors in mitigation of the punishment, and that he could return a sentence less than death, Kurlowicz reverted to the position that he would “find it very difficult to vote against” the death penalty where the murder was “cold-blooded.” The trial court refused to excuse Kurlowicz for cause apparently because the juror indicated that his decision would not be “automatic” “one way or the other.” As a result the defendant was forced to exercise a peremptory challenge to exclude Kurlowicz. Ante at 153-54.

In Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968), the Supreme Court held unconstitutional a system of capital jury selection that excluded those “who expressed conscientious or religious scruples against capital punishment and all those who opposed it in principle.” Id. at 520 , 88 S.Ct. at 1776 , 20 L.Ed.2d at 784 . The Court added that potential jurors could be challenged for cause if “they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial.” Id. at 522 n. 21, 88 S.Ct. at 1777 n. 21, 20 L.Ed.2d at 785 n. 21 (emphasis in original).

Subsequent Supreme Court cases modified substantially those principles as applied to opponents of capital punishment. Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980); Wainwright v. Witt, 469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985). In State v. Ramseur, 106 N.J. at 255-57, this Court adopted the standard for death-qualification as clarified and modified in Adams v. Texas and Wainwright v. Witt. The new standard is that “a juror may ... be challenged for cause based on his views about capital punishment [if] those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Adams, supra, 448 U.S. at 45 , 100 S.Ct. at 2526 , 65 *200 L.Ed.2d at 581 ; see Witt, supra, 469 U.S. at 420-22 , 105 S.Ct. at 850-51 , 83 L.Ed.2d at 849-53 .

The majority now adopts the Adams-Witt modification of Witherspoon as applied to proponents of capital punishment. Ante at 152; see Ross v. Oklahoma, — U.S.-, 108 S.Ct. 2273 , 101 L.Ed.2d 80 (1988). I agree with this determination. I agree further with the Court that in this case the juror’s view that he would find it “almost impossible” to return a verdict less than death in the event of a murder accompanied by rape suggests sufficiently that his capacity to credit the evidence in mitigation would be “substantially impaired,” and that he should have been excused for cause. Ante at 154.

I disagree, however, with the Court’s ruling that “the error was harmless.” Id. at 154. In my view, “ ‘the denial of the right of peremptory challenge is the denial of a substantial right.’ ” State v. Singletary, 80 N.J. 55, 62 (1979) (quoting Wright v. Bernstein, 23 N.J. 284, 295 (1957)). In State v. Singletary, the Court held that the trial court’s decision not to exclude the juror in question was not erroneous, and thus did not reach the contention that the error was harmless. Thus, the Singletary majority established no analytical framework for disposing of this issue.

Two members of this Court, joined by Chief Justice Hughes, dissented, however, from the Singletary majority’s conclusion that the trial court’s refusal to excuse the juror for cause was not error; accordingly, both members reached the question that the majority found unnecessary to reach, namely, whether the trial court’s error was harmless. Justice Clifford offered this analysis:

[The answer to the question of whether the error was harmless] lies, I think ... in the importance one attaches to the attainment of a fair and impartial jury and to the process available to achieve that end. I tend to view that process ... as considerably more than a procedural formality. The right to be tried by a fair and impartial jury is a “fundamental” one to be “jealously guarded,” Wright v. Bernstein, 23 N.J. 284, 295 (1957). Our rules are carefully, albeit imperfectly, designed to assure the empaneling of a jury that to the greatest extent possible will reach its verdict on the evidence with absolute fairness and complete *201 impartiality. Hence in a criminal case such as this one defendant is afforded twenty opportunities to excuse any venireman peremptorily — for a good reason, a bad reason, or no reason at all____ Any diminution of or infringement upon that legislatively granted opportunity deprives defendant of as fair a trial as our rules permit. Defendant’s argument here, with which I agree, is that his ... entitlement to relief springs from the legislative grant of twenty peremptory challenges and his right thereto, which he was denied. [Id. at 71 (Clifford, J., dissenting) (emphasis added).]

See also id. at 79-81 (Handler, J., dissenting). While the exhaustion of peremptory challenges is without doubt indicative of prejudice, it simply does not follow, as the majority assumes, that the failure to exhaust peremptory challenges automatically precludes a claim of prejudice. Indeed, given the nature of the peremptory challenge as described by Justice Clifford, the issue of whether the erroneous refusal to excuse a juror is harmless cannot depend exclusively on whether a defendant has exhausted his peremptory challenges. There are two reasons for this. First, every time a peremptory challenge is “wasted” on a juror who should have been excused for cause, the calculus is altered with respect to the rest of the panel and the defendant’s right to his full complement of challenges is abridged. As the Supreme Court of Missouri has explained, in an analogous context, “ ‘Purity of the right to be tried by an impartial jury is so zealously guarded that an accused may covet his peremptory challenges and “spend” them as he alone sees fit---- [I]f an accused is not presented with a full panel of jurors objectively demonstrated as qualified before he exercises his peremptory challenges, his given number of peremptory challenges is proportionately reduced and his right to “spend” them as he alone sees fit is accordingly impinged.’ ” State v. Morrison, 557 S.W.2d 445, 446 (Mo.1977) (quoting State v. Thompson, 541 S.W.2d 16, 17 (Mo.App.1976)); State v. Brown, 496 So.2d 261, 265-66 (La.1986) (loss of peremptory is denial of right); accord State v. Ealy, 624 S.W.2d 490, 492-93 (Mo.App.1981).

The Missouri Court’s analysis, it should be noted, speaks to a context in which a “struck jury” system is mandated, and therefore in which peremptory challenges can be exercised with *202 some idea of the overall jury composition. 1 The force of the Missouri Court’s logic is redoubled where, as in this case, peremptory challenges are exercised with no sense of the overall jury composition. Because, in this case, the peremptory challenges had to be exercised by the defendant and the State immediately after the potential juror was qualified for cause by the trial judge, the defendant was forced to use his peremptories without being able to compare that potential juror to all the other potential jurors who were qualified for cause. Each exercise of a peremptory thus carried the danger that a potential juror who would be qualified for cause later during the voir dire could not be removed by a peremptory because of an earlier use of the peremptory challenges. Further, the defendant could not intelligently weigh each potential juror against others, making the exercise of a peremptory challenge a more significant decision than in a struck jury system. In sum, the defendant in a non-struck jury system must treat each use of a peremptory as potentially his last peremptory. Hence, the fact that the defendant did not use all of his peremptory challenges is of no import.

In the context of this case, Justice Clifford’s analysis, in my view, controls this issue: “[a]ny diminution of or infringement upon that legislatively granted opportunity [to exercise a full complement of peremptory challenges] deprives defendant of as fair a trial as our rules permit.” State v. Singletary, supra, 80 N.J. at 71 . This conclusion is unshaken by the United States Supreme Court’s recent retrenchment in Ross v. Oklahoma, supra. In Ross , the Court held that the trial court’s erroneous failure to excuse for cause a juror biased in favor of the death *203 penalty was harmless error, despite the fact that the defense exhausted its allotment of peremptory challenges and had to use one of them to excuse the juror in question. Ross is readily distinguishable on its own terms, however, for in reaching its result the Court noted that “it is for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise,” and emphasized that “although Oklahoma provides a capital defendant with nine peremptory challenges, this grant is qualified by the requirement that the defendant must use those challenges to cure erroneous refusals by the trial court to excuse jurors for cause.” — U.S. at-, 108 S.Ct. at 2279 . The law of New Jersey is far more protective than that of Oklahoma in this respect and is, if anything, consistent with the case law holding that “denial or impairment of the right is reversible error without a showing of prejudice.” Swain v. Alabama, 380 U.S. 202, 219 , 85 S.Ct. 824, 835 , 13 L.Ed.2d 759, 772 (1965). See State v. Singletary, supra, 80 N.J. at 82 (Handler, J., dissenting) (“the denial to defendant of the full range of choice accorded by the allowance of the right to challenge jurors peremptorily constituted reversible error”); State v. Pereira, 202 N.J.Super. 434, 438 (App.Div.1985) (citing State v. Hammond, 107 N.J.Super. 588, 589-90 (App.Div.1969)). The application of Ross to this case becomes even more questionable because Ross represents a dramatic retrenchment from the view taken by the Court just a year ago in Gray v. Mississippi, 481 U.S.-, 107 S.Ct. 2045 , 95 L.Ed.2d 622 (1987). It is thus highly problematic that it should be followed as a matter of state constitutional law. In Gray a majority of the Court rejected as “unpersuasive” the argument that the erroneous exclusion for cause of a death-scrupled juror was harmless because the State retained a peremptory challenge it could have used to excuse the juror. As the Court stated (correctly, in my view) in Gray , “the relevant inquiry is ‘whether the composition of the jury panel as a whole could possibly have been affected by the ... error.’ ” Id. at-, 107 S.Ct. 2055 , 95 L.Ed.2d at *204 637 (quoting Moore v. Estelle, 670 F. 2d 56, 58 (5th Cir.) (concurring opinion), cert. denied, 458 U.S. 1111 , 102 S.Ct. 3495 , 73 L.Ed.2d 1375 (1982)). The Ross Court’s contrary position, focusing exclusively on the actual composition/impartiality of a given jury, simply ignores the due process-related argument that “everyone concedes that the trial judge could not arbitrarily take away one of the defendant’s peremptory challenges. Yet, that is in effect what happened here.” Ross v. Oklahoma, supra, — U.S. at-, 108 S.Ct. at 2280 (Marshall, J., dissenting, joined by Brennan, Blackmun, and Stevens, JJ.). The question of whether peremptories were exhausted, or in what order they were used, is therefore irrelevant; as Justice Marshall points out, the question is not whether “a defendant has the right to any particular venire or panel,” but whether a defendant’s “right to a jury selection procedure untainted by constitutional error” has been vindicated. Id. (Marshall, J., dissenting); see State v. Singletary, supra, 80 N.J. at 71 (Clifford, J., dissenting).

The second reason that the defendant’s failure to exhaust peremptory challenges should not preclude a claim of prejudice is that the error in this case took place in the context of death qualification. Death qualification prior to the guilt phase necessarily reduces a defendant’s complement of peremptories by requiring defense counsel to assess a prospective juror’s possible bias as to punishment in addition to the usual assessment as to possible bias as to guilt. Compounding this impingement of defendant’s “substantial right,” moreover, is the fact that the death qualification process itself induces bias as to guilt by requiring potential jurors to presuppose it. See discussion supra at 191-92. Thus, even the defense counsel’s normal calculation of when to “spend” a peremptory challenge for possible bias as to guilt is skewed by a process that induces bias as to guilt in seeking to discover bias as to penalty.

In assessing whether the court’s refusal to excuse a juror for cause is harmless, a defendant’s failure to exhaust his peremptory challenges is a relevant consideration in the ordinary case. *205 I insist that given the singularly important function of peremptory challenges such an error could be reversible even in the ordinary case. Moreover, the principle that “death is different” thus requiring an enhanced standard of review with a stricter standard for reversibility, combined with the distorting effects of death qualification, leads me to conclude that an erroneous refusal to excuse a prospective juror for cause on death qualification grounds should be reversible regardless of whether a defendant ultimately exhausts his peremptory challenges.

II.

Defendant claims that the trial court erred in not suppressing defendant’s oral and written confessions obtained on the night of his arrest. The Court rejects defendant’s claim, in particular, that the oral and written confessions were obtained improperly after defendant’s assertion of his right to cut off questioning. Ante at 140-42.

A.

The facts are important and are recited in the Court’s opinion. Ante at 131-33. Defendant’s custodial interrogation commenced at 5:38 p.m. Questioning was interrupted at 7:15 p.m. and resumed at 7:35 p.m., continuing until 8:20 p.m. At that point defendant remained silent for approximately five minutes. At 8:30 p.m., as the trial court found, defendant asked to lie down so that he could think about what had happened. Defendant was placed in a cell for an hour, then brought back to the interrogation room. It is undisputed that defendant was not reissued his Miranda rights at this time; nevertheless, interrogation resumed. Shortly thereafter, starting at 10:05 p.m., defendant began to incriminate himself. At 10:55 p.m. the police commenced to take a typed statement from defendant concerning his involvement. Only then was defendant reissued his Miranda warnings. Defendant checked “yes” on the form waiving his Miranda rights. The statement was completed at *206 11:52; defendant read and initialed every page and signed the last page.

Defendant contends that, following his actual silence for about five minutes, his request, at 8:30 p.m., to lie down and think about what had happened was an invocation of his right to cut off questioning, and that by bringing him back for interrogation without readministering his Miranda warnings the police failed to “scrupulously honor” that assertion, in violation of Michigan v. Mosley, 423 U.S. 96, 103-04 , 96 S.Ct. 321, 326 , 46 L.Ed.2d 313, 321 (1975), and State v. Hartley, 103 N.J. 252 (1986). His subsequent confessions, therefore, defendant argues, should have been suppressed.

In Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), the Supreme Court held that, because of the inherently coercive nature of custodial interrogation, a suspect must be apprised of his rights to remain silent and to have an attorney present. Because custodial interrogation is presumptively coercive, any statements given in the absence of explicit warnings were held inadmissible; conversely, silence after the issuance of explicit warnings was held to require an end to interrogation:

Once warnings have been given, the procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease____ [A] statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. [ 384 U.S. at 473-74 , 86 S.Ct. at 1627-28 , 16 L.Ed.2d at 723 .]

Miranda left open the question of “under what circumstances, if any, the authorities may resume interrogation” when the right to silence is asserted. State v. Hartley, supra, 103 N.J. at 263 . Under Michigan v. Mosley, supra, “the admissibility of statements obtained after the person in custody has decided to remain silent depends ... on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” 423 U.S. at 102-04 , 96 S.Ct. at 325-26 , 46 L.Ed.2d at 320-21 . The meaning and scope of the “scrupulously honor” requirement was explored by this Court in State v. Hartley, supra, 103 N.J. 252 . We held *207 that “[i]n the absence of ... renewed warnings any inculpatory statement given in response to police-initiated custodial interrogation after the right to silence has been invoked is inadmissible.” Id. at 256 .

The dispositive question, then, in light of Mosley and Hartley , is whether defendant’s request to lie down and think about what happened was an invocation of his right to cut off questioning under Miranda . If it was, then the failure of the interrogating police officer to renew the warnings an hour later brings this case within the proscriptions of Hartley .

The Miranda Court was quite explicit that the defendant’s request to cut off questioning does not have to be an overt, clear or obvious assertion of his rights; the Court stated that “[o]nce warnings have been given ... [i]f the individual indicates in any manner ... that he wishes to remain silent, the interrogation must cease.” 384 U.S. at 473-74 , 86 S.Ct. at 1627 , 16 L.Ed.2d at 723 (emphasis added). Substantial case law illustrates the range of behavior that is sufficient to alert the authorities that a right to cut off questioning has been invoked. In People v. Randall, 1 Cal.3d 948, 955 , 464 P.2d 114, 118 , 83 Cal.Rptr. 658, 662 (1970), the California Supreme Court stated that “[t]o strictly limit the manner in which a suspect may assert the privilege, or to demand that it be invoked with unmistakable clarity ... would subvert Miranda’s prophylactic intent.” Accordingly, that Court has held that

Any words or conduct which “reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police ...” [citation omitted] must be held to amount to an invocation of his Fifth Amendment privilege. [People v. Burton, 6 CW.3d 375, 382, 491 P.2d 793, 797 , 99 CalRptr. 1, 5 (1971).]

See also United States v. Hernandez, 574 F.2d 1362, 1368 (5th Cir.1978) (refusal to cooperate with attempts to elicit statements held an invocation of rights); United States v. Clayton, 407 F.Supp. 204 , 205-06 n. 1 (E.D.Wisc.1976) (failure to answer question following issuance of Miranda warnings held an invocation of rights); People v. Nicholas, 112 Cal.App.3d 249, *208 267-68 , 169 Cal.Rptr. 497, 506-07 (1980) (requests to turn off tape recorder and for assurances of privacy held an invocation of rights); People v. Williams, 93 Cal.App.3d 40, 60-63 , 155 Cal.Rptr. 414, 425-27 (1979) (defendant’s statement that he was confused and didn’t know what to do or say held an invocation of right to cut off questioning); Law v. State, 21 Md.App. 13, 34 , 318 A.2d 859, 872-73 (1974) (hospital statements that “I will tell you what happened” but “I want to get treated” and didn’t want to talk any more held an invocation of rights); State v. Rissler, 165 W.Va. 640, 648 , 270 S.E.2d 778, 783-84 (1980) (statement that “if I give you a statement now I won’t have no shot” held an invocation of rights).

In Phillips v. State, 701 S.W.2d 875 (Tex.Cr.App.1985), cert. denied, 477 U.S. 909 , 106 S.Ct. 3285 , 91 L.Ed.2d 574 (1986), the Texas Court of Criminal Appeals, faced with a factual setting arguably similar to that of this case, analyzed the issue as follows:

The first question we must address is whether appellant “in any manner” invoked his right to remain silent. When appellant was first asked whether he wanted to discuss the offense, he stated that he "wanted a little time" to think about the matter. Prior to this statement, appellant had been given his Miranda warnings on three separate occasions. We conclude that this request was an invocation of appellant’s right to remain silent at that time. [Id. at 891.]

The Court cites not a single case to the contrary. Its position is that the request to “lie down and think about it” was not an invocation of the right to silence. The Court indicates that “the trial court did not specifically address that issue____” Ante at 139. Rather, it stresses that defendant did not, until this appeal, press this issue and that the trial court was not asked to focus its decision on this issue. Ante at 139-42. To the extent that the majority’s conclusion rests on the defendant’s failure to pursue the issue below, Justice Clifford argues persuasively that “[i]t is unthinkable that this Court would say that because a defendant urged a finding of fact different from the one made by the trial court, defendant therefore could not rely on the court's findings to support a legal argument on appeal.” Ante at 186-87 (Clifford, J., dissenting). It is worth *209 noting, moreover, that in State v. Bey (I) defendant similarly-failed to argue below that his indication to police that “he did not want to talk” (“I wasn’t saying nothing”) about the Alston murder was an invocation of his right to cut off questioning; that fact has not deterred this Court from vindicating defendant’s right in Bey (I) , and it should not bear on this Court’s decision in this case. Nevertheless, the Court is somehow able five years later to view this record and determine that “beyond peradventure ... this defendant did not intend to cut off questioning and remain silent.” Ante at 140. I do not see how.

The Court acknowledges that defendant testified that “I wasn’t saying nothing,” but argues that this language means that defendant denies having asked to lie down. The Court fails utterly to consider that defendant’s expression may simply have been ambiguous; it need not have been either a request to remain silent or a request to continue. I fail to share the Court’s dogmatic conclusion that no “reasonable police officer” could have construed the request as one to remain silent. Ante at 141.

The point is, however, that even if defendant’s expression could be understood as no more than a desire for some time to get his story straight before he continued talking to the police, it was a sufficient indication of a desire that questioning cease and thus sufficient to invoke his right to cut off questioning. Phillips v. State, supra, 701 S.W.2d at 891 ; Law v. State, supra, 318 A. 2d at 872-73 . As this Court noted in State v. Bey (I), 112 N.J. 45, 64-65 , “[t]he overwhelming majority of courts have agreed that ‘any declaration of a desire to terminate the contact or inquiry ... should suffice’ ” to invoke the right to cut off questioning. (Quoting W. LaFave & J. Israel, Criminal Procedure § 6.9(e) at 310 (1985) (emphasis added)).

Taking the court’s finding of fact at face value — that “at 8:30 p.m. the defendant requested permission to lay down and to *210 think about what happened” — I believe that the case law compels the conclusion that defendant had invoked his right to cut off questioning. I think it is clear that, for whatever reason, the defendant wished the questioning to cease at that time; that was his constitutional right, and it implicated the police’s constitutional duty to scrupulously honor that right.

Even if the defendant’s expression is viewed as “ambiguous,” it must be considered an assertion of rights. State v. Hartley, supra, 103 N.J. at 263 , citing State v. Kennedy, 97 N.J. 278, 288 (1984). Permissible police conduct in such circumstances is limited to asking “questions designed to clarify whether a suspect intended to invoke his right to remain silent.” Christopher v. State of Fla., 824 F.2 d 836, 842 (11th Cir.1987) petition for cert. filed October 29, 1987 (citations omitted). As this Court noted in State v. Wright, 97 N.J. 113 , 120 n. 4 (1984):

[Wjhere a suspect makes a statement which arguably amounts to an assertion of his Miranda rights and the interrogating agent recognizes that the statement is susceptible of that construction, his questioning with regard to the crime he is investigating should immediately cease and he should then inquire of the suspect as to the correct interpretation of the statement. Only if the suspect makes clear that he is not invoking his Miranda rights should substantive questioning be resumed.

Id. at 120 n. 4 (quoting United States v. Riggs, 537 F.2d 1219, 1222 (4th Cir.1976), quoted in State v. Fussell, 174 N.J. Super. 14, 21 (1980)) (emphasis added).

The trial court’s additional findings dictate the conclusion that defendant’s right to remain silent was not scrupulously honored. The court found that “at about 9:30 p.m. the police returned to the cell and the defendant was again asked if he wanted to contact anyone, and he replied in the negative.” No questions designed to clarify defendant’s intent were asked; no fresh set of Miranda warnings was issued. Interrogation resumed, and defendant incriminated himself before Miranda warnings were readministered.

The trial court concluded that “this defendant was advised of his Miranda warnings prior to giving the statement ... he understood his Miranda warnings____he signed the Miranda *211 card voluntarily and ... he voluntarily waived ... his rights under Miranda.” These findings, however, simply do not address the unassailable fact that the Miranda warnings were not readministered before the interrogation was resumed and defendant began to incriminate himself.

The majority purports to examine the companion case, State v. Bey (1), supra, 112 N.J. 45 , involving the same suppression hearing relating to the murder of Cheryl Alston, ante at 141, and to find that his expression in this case “stands in sharp contrast to his later refusal to discuss the murder of Cheryl Alston.” Id. I find the contrast difficult to see. In Bey (I) , defendant testified that when the police resumed interrogation after his initial confession, “I wasn’t saying nothing. I was just sitting there crying or whatever I was doing. They was asking me questions. I wasn’t saying nothing. ” State v. Bey (I), supra, 112 N.J. at 61 (emphasis in original). The police officers recounted that they interpreted defendant’s behavior as an indication that “he did not want to discuss it.” Ante at 139-41 (emphasis added). The Court holds that this behavior manifested an invocation of the right to cut off questioning, regardless of defendant’s failure to raise this theory below. Ante at 143-45. By “contrast,” in this case, defendant was asked whether he “requested to go lay down and think about what happened,” and answered, “Right. I wasn’t saying nothing, and the question was asked me, and I said yeah. I was taken to cell, but the question was asked me. I did go lay down. But the question was asked me.” Ante at 139 (emphasis added.) The trial court did not credit this testimony, but rather believed the officers who testified that “[the defendant] asked if he would be able to think about it and lay down____” The Court now adopts the trial court’s finding that defendant requested to lie down and think about it, but points to the fact that defendant did not press this issue below and holds that the record “supports beyond peradventure the conclusion that this defendant did not intend to cut off questioning and remain silent.” Ante at 140.

*212 A close comparison of the circumstances of the two confessions reveals, however, that they are more alike than different. In both instances, defendant’s testimony communicated his hostility to the questioning, and in identical language (“I wasn’t saying nothing”). In Bey (I) , defendant “did not want to discuss it,” while in this case “he asked if he would be able to lay down and think about it;” in both instances the officers interpreted defendant’s behavior as manifesting a desire not to be interrogated. In other words, the purport of defendant’s testimony in both contexts was that the police were asking him questions, and that he “wasn’t saying nothing;” in both instances, the police understood the defendant’s posture to be a resistance to further questioning at that time. In neither case did defendant state below in so many words that his behavior constituted an invocation of his right to cut off questioning. The principal difference, therefore, is that in this case the court below made a specific fact finding crediting the police's testimony that “[a]t 8:30 p.m. defendant requested permission to lay down and to think about what happened____ At about 9:30 p.m. the police returned to the cell and the defendant was again asked if he wanted to contact anyone, and he replied in the negative.” Are we really to believe that a different result would have obtained in Bey (I) if, instead of indicating “that he did not want to discuss it” in so many words, defendant had communicated that sentiment by asking to lie down and think about it?

Read together, the Court’s results exalt form over substance and require defendants, in the inherently coercive atmosphere of interrogation, to draw distinctions of law and language the validity of which troubles even those intimately familiar with the case law. See W. LaFave & J. Israel, Crim.Proc., § 6.9(e). Did Marko Bey mean something different when he attempted to stop the questioning at 8:30 p.m. from when he said he did not want to talk at 12:20 a.m.? I doubt that he saw a difference; I know that I do not.

*213 Under the bright-line rule of State v. Hartley, supra, 103 N.J. 252 , the failure of the police to readminister the Miranda warnings is fatal. “[A]ny statement that a suspect may make after his right to silence has not been scrupulously honored,” the Court held, “is unconstitutionally compelled as a matter of law____” Id. at 256. 2 Thus, this case is within the contemplation of Hartley’s, command that authorities “cease interrogation of a suspect on his request and ... not resume until a new set of warnings has been given, to impress upon the accused that his right to remain silent is still in effect and that he need not speak unless it be by his own choice.” Id. at 287. Cf. Phillips v. State, supra, 701 S.W.2d at 891 (rights held scrupulously honored where, after affording defendant “a little time to think about the matter,” the investigator reissued the Miranda warnings and reminded defendant of his right to remain silent).

The Court finds it unnecessary to deal with the contention that Hartley should not be given retroactive effect. To the extent that Hartley was based on federal law, Griffith v. Kentucky, 479 U.S. 314 , 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987) commands that it be applied retroactively to all cases pending on appeal when it was decided. See State v. Stever, 107 N.J. 543, 548-53 , cert, denied— U.S.-, 108 S.Ct. 348 , 98 L.Ed.2d 373 (1987). Moreover, Hartley is not a clear break with the past, but a simple extension of the principle of cases such as State v. Kennedy, supra, 97 N.J. at 288, holding that the State must honor “a defendant's request — however ambiguous — to terminate interrogation.”

*214 I am constrained, in short, to conclude that defendant’s request to have the interrogation stop constituted an invocation of the right to silence, and the subsequent failure of the interrogating police officer to readminister the Miranda warnings violated defendant’s right to remain silent under the fifth amendment and state-law privilege against self-incrimination under the standards of State v. Hartley, supra. I have expressed, in prior cases, my concern that our criminal procedure jurisprudence may become hyper-technical by constitutionalizing the intricacies of essentially prophylactic rules. See State v. Novembrino, 105 N.J. 95, 159 (1987) (Handler, J., concurring) (arguing that the exclusionary rule should not be read into the state constitution); State v. Hartley, supra, 103 N.J. at 288 (Handler, J., concurring and dissenting in part) (explaining that the police’s failure to reissue Miranda warnings after invocation of right to silence should not automatically preclude the issue of whether defendant waived his right). I am convinced, however, that my conclusion in this case that defendant’s confession should be suppressed follows from a faithful reading of the case law. I believe strongly, moreover, that, as I stated in State v. Biegenwald, supra, 106 N.J. at 106-07, our established principles should not be abdicated, and the rules embodying those principles should not be finessed, in the one context where all agree they should apply most rigorously, namely, where a defendant’s life is at stake. I do not need to rely upon an enhanced standard of review with its stricter standard for reversibility in the context of this issue, but would note that the principle that guides this standard’s applicability to capital appeals strongly support reversal of this issue. I would therefore reverse defendant’s conviction, which was based upon his unconstitutionally compelled confession.

III.

There remains another important issue. Defendant objected to the trial court’s instruction during the penalty phase of the trial that permitted the jury to redouble aggravating factors. *215 Defendant argues that the trial court failed to instruct the jury that factor c(4)(c), involving the elements of aggravated assault, torture or depravity, could not be based on the evidence supporting factor c(4)(g), involving the commission of a felony murder, because the same evidence or conduct, i.e., the sexual assault of the victim, supports both factors. Such a redoubling of aggravating factors by using the same evidence twice, defendant argues, corrupts the balancing process by making a murder appear more “aggravated” than it was. The Court rejects this argument.

In my opinion, where a capital punishment system is structured like New Jersey’s, overlapping aggravating factors that use the same underlying evidence twice distort the balancing process. The trial court’s failure in this case to inform the jury that evidence of sexual assault could be considered and used to determine only a single aggravating factor, either c(4)(c) or c(4)(g), and could not be considered in connection with both factors, resulted in a redoubling of statutory aggravating circumstances, and constitutes reversible error.

New Jersey employs in its death penalty scheme one of the broadest definitions of capital murder in the nation. This broad definition of murder, which appeared in the Georgia capital-murder statute, was held constitutional in Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976), only because of the narrowing effect of aggravating circumstances. By the application of aggravating factors, the class of capital murderers was effectively restricted before sentencing. In Georgia, “the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion____” Zant v. Stephens, 462 U.S. 862, 874 , 103 S.Ct. 2733, 2741 , 77 L.Ed.2d 235, 248 (1983).

In New Jersey, however, the statutory aggravating circumstances function not only to narrow the class of capital murders, but also to guide the jury in its determination of whether the death penalty should be imposed. Moreover, these func *216 tions occur simultaneously. The aggravating factors under New Jersey’s scheme narrow the definition of capital murder only in conjunction with — and not until — the ultimate determination of the death penalty itself. There is no separate submission of aggravating factors at the guilt stage of the trial by which the determination of death-eligibility of the defendant is made. Hence, strictly but realistically viewed, the determination of the death penalty is undertaken prematurely, that is, before death-eligibility has been properly ascertained. I continue to stress that this clearly should be held unconstitutional under our State Constitution. See State v. Ramseur, 106 N.J. at 384-94 (Handler, J., dissenting).

To appreciate this constitutional vice it is helpful to place the New Jersey statute in context. As noted, the New Jersey statute, like Georgia’s, uses the broad definition of murder as “knowing or purposeful” homicide and the language of the statutory aggravating factors in New Jersey’s statute are modeled explicitly on Georgia’s. Compare, N.J.S.A. 2C:11-3 with Ga.Code Ann. § 17-10-31 (1981). Because, in Georgia, aggravating factors operate only to restrict the definition of capital murder and narrow the class of death-eligible offenses, and not to guide the sentencer’s discretion, the Supreme Court held that the invalidation of one aggravating factor would not invalidate a death sentence where other aggravating factors were found. Zant v. Stephens, supra, 462 U.S. 862 , 103 S. Ct. 2733 , 77 L.Ed.2d 235 .

As noted, in New Jersey, aggravating factors are also used as a guide in sentencing determinations. In this aspect New Jersey’s statute resembles not Georgia’s but Florida’s death penalty scheme. In Florida the definition of capital murder or the class of death-eligible homicides is itself statutorily narrowed by traditional division into degrees, leaving consideration of aggravating and mitigating circumstances only to guide the sentence-recommending discretion of the jury. See Proffitt v. Florida, 428 U.S. 242 , 96 S.Ct. 2960 , 49 L.Ed.2d 913 (1976).

*217 While the respective Georgia and Florida approaches has each been upheld by the Supreme Court, see respectively, Gregg v. Georgia, supra and Proffitt v. Florida, supra, New Jersey’s death penalty statute is a hybrid of these. Unlike Georgia, where consideration of statutory aggravating circumstances serves the sole function of narrowing the class of death-eligible offenses, in New Jersey aggravating circumstances serve the dual functions of determining death-eligibility and the death sentence. Unlike Florida, where aggravating factors are used only to guide sentencing discretion, in New Jersey they serve also to determine whether the defendant is death-eligible. Hence, aggravating factors under the New Jersey statute do double duty; they are used simultaneously to narrow the class of capital murders and to guide the sentencer’s discretion. In my opinion, Georgia’s method of defining the class of capital murders cannot be combined with Florida’s method for guiding sentencing discretion.

Under Georgia’s scheme, overlapping or doubling of aggravating factors was not believed to create real problems because the aggravating factors serve only to narrow the class of death-eligible offenses. If the offense has been properly determined to be death-eligible by at least one valid aggravating factor, the existence of other aggravating factors does not further qualify death-eligibility; once an offender has properly been determined for a valid reason to be includible as a “death-eligible” offender, it is unnecessary and therefore legally irrelevant whether he could be included for another reason. Thus, under Georgia’s law, aggravating factors are used only to determine death-eligibility, and in this process their number and weight are irrelevant; they are not implicated as such in the sentencing determination. Hence, it is of no moment that these factors may be aggregated. 3

*218 This may be contrasted with the Florida scheme in which, as in New Jersey’s, the weighing of aggravating against mitigating factors takes place at the sentencing stage. Hence, it is not the existence of aggravating factors, but their number and weight, that becomes determinative. For this reason, under that approach the overlapping or doubling of aggravating factors is prohibited. In Provence v. State, 337 So. 2d 783, 786 (1976), cert. denied, 431 U.S. 969 , 97 S.Ct. 2929 , 53 L.Ed.2d 1065 (1977), the Florida Supreme Court prohibited the overlapping of the “murder occurred in the commission of the robbery” and murder “committed for pecuniary gain” factors. Acknowledging that “in some cases, such as where a larceny is committed in the course of a rape-murder, subsections (d) and (f) refer to separate ... concepts” and are distinguishable, the court insisted nonetheless that in the case of a robbery-murder “both subsections refer to the same aspect of the defendant’s crime. Consequently, one who commits a capital crime in the course of a robbery will always begin with two aggravating circumstances against him — ” Id. (emphasis in original). Despite its earlier admonition in State v. Dixon, 283 So. 2d 1, 10 (Fla.1973), cert. denied sub nom. Hunter v. Florida, 416 U.S. 943 , 94 S.Ct. 1950 , 40 L.Ed.2d 295 (1974), that “the procedure to be followed by the trial judges and juries is not a mere counting *219 process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death ...,” the Provence court held that “pecuniary motive at the time of the murder constitutes only one factor ...” and therefore, in effect, that the overlapping of factors would be prejudicial. 337 So.2d at 786 . See also Delap v. State, 440 So.2d 1242, 1256 (Fla.1983), cert. denied, 467 U.S. 1264 , 104 S.Ct. 3559 , 82 L.Ed.2d 860 (1984) (reaffirming Provence but holding that previous conviction of “another felony involving the use of violence” and “committed by a person under sentence of imprisonment” “do not cover the same aspect of defendant’s crime”); White v. State, 403 So. 2d 331, 338 (Fla. 1981), cert. denied, 463 U.S. 1229 , 103 S.Ct. 3571 , 77 L.Ed.2d 1412 (1983) (finding evidence sufficient to support “capital felony committed to avoid or prevent a lawful arrest or effect an escape from custody” factor, but disapproving “use of these same incidents” as a basis for another factor because “this doubling-up of aggravating circumstances violates the rule in Provence ”); Maggard v. State, 399 So.2d 973, 977 (Fla.1981), cert. denied, 454 U.S. 1059 , 102 S.Ct. 610 , 70 L.Ed.2d 598 (1981) (murder during burglary and murder for pecuniary gain overlap under Provence). Cf. Francois v. State, 407 So.2d 885, 891 (Fla.1981), cert. denied, 458 U.S. 1122 , 102 S.Ct. 3511 , 73 L.Ed.2d 1384 (1982) (sentence upheld despite submission of overlapping and invalid aggravating circumstances because there were no mitigating circumstances; “[wjhere the consideration of erroneous aggravating circumstances does not interfere with the weighing process ... because there are no mitigating circumstances to weigh, no resentencing is required”); Henry v. Wainwright, 721 F.2d 990, 996 (5th Cir.1983), cert. denied, 466 U.S. 993 , 104 S.Ct. 2374 , 80 L.Ed.2d 846 (1984) (violation of Provence rule not fatal where no mitigating circumstances).

The Supreme Courts of Alabama, Nebraska, and California have held likewise that consideration of overlapping aggravat *220 ing factors at the sentencing stage is impermissible. See Cook v. State, 369 So.2d 1251, 1256 (Ala.1979) (“robbery” and “pecuniary gain” factors overlap, “in effect condemning Cook twice for the same culpable act — stealing money” and so pecuniary gain factor cannot be considered by trial judge who under statute determines sentence); State v. Rust, 197 Neb. 528, 538 , 250 N.W.2d 867, 874 , cert. denied, 434 U.S. 912 , 98 S.Ct. 313 , 54 L.Ed.2d 198 (1977) (where same conduct could support both murder to conceal the perpetrator’s identity or murder for pecuniary gain, court held that “it is not reasonable to construe the definitions in such a manner as to make them overlap and make the same identical facts constitute two aggravating circumstances”; some “added different and important element, e.g., motive or purpose,” must distinguish aggravating circumstances from one another); State v. Stewart, 197 Neb. 497, 522-23 , 250 N.W.2d 849, 864 (1977) (same). In People v. Harris, 36 Cal.3d 36, 62 , 201 Cal.Rptr. 782, 798 , 679 P.2d 433, 448-49 , cert. denied, 469 U.S. 965 , 105 S.Ct. 365 , 83 L.Ed.2d 301 (1984), the California Supreme Court, referring explicitly to its state’s statute’s similarity to the Florida scheme, held that “the constitutionally mandated objective of focusing on the particularized circumstances of the crime and the defendant is undercut when the defendant’s conduct is artificially inflated by the multiple charging of overlapping special circumstances ... based on an indivisible course of conduct having one principal criminal purpose.”

The proposition remains controversial. Thus, in Wiley v. State, 484 So.2d 339 (Miss.1986), cert. denied, 479 U.S. 906 , 107 S.Ct. 304 , 93 L.Ed.2d 278 (1986), the defendant made the familiar argument that the pecuniary gain and robbery factors overlap, and that this overlap corrupts the balancing process. The Mississippi majority dismissed this argument, noting that it had already decided that the two factors were independent and that, in any case, “the jury must find the existence of only one aggravating circumstance to return a death sentence.” Id. at 351. The jury, in fact, had found two aggravating factors *221 apart from its robbery and pecuniary gain findings. “Thus,” the court concluded, “the failure of one repetitious aggravating circumstance does not invalidate the two remaining ... factors to reverse the death sentence.” Id. at 351-52. Justice Robertson’s concurrence acknowledged that “the balancing process is not to be performed mathematically,” but took issue nonetheless with this analysis. Citing Provence , Justice Robertson argued that the prior cases holding the factors distinct did so either “[wjithout offering so much as a whisper why” or by employing the “bootstraps logic” that “ ‘the robbery was committed for pecuniary gain.’ ” Id. at 357. “[N]o one doubts,” moreover, “that the side with the largest number of ‘circumstances’ has a practical advantage before the sentencing jury.” Id. The prior cases are unreasoned, in Justice Robertson’s view, because they ignore the structure of the statute:

Our present course is illogical because the very structure of the act contemplates eight distinct aggravating circumstances____ In the end, the fallacy of our rule is its failure to recognize that murders are aggravated by a defendant’s conduct, not by statutory language. Regardless of the label put on it, the defendant’s taking of the victim’s money is what aggravates the murder. A single, legally indivisible act of the defendant may rationally aggravate a murder but once. [Id. at 358 (emphasis in original).]

Dissenting from the United States Supreme Court’s denial of certiorari in Wiley , Justice Marshall likewise emphasized the structure of the statute, in particular the requirement that aggravating circumstances be weighed in guiding sentencing discretion:

The State Supreme Court relied on the fact that the jury found ... a third aggravating factor____ But under the Mississippi capital sentencing statute ... the jury was instructed to balance aggravating against mitigating circumstances. While the jury might have returned a verdict of death even if there had been only one aggravating circumstance, we cannot be sure what it would have done in view of the mitigating factors presented; the jury’s verdict merely stated that “there are insufficient mitigating factors to outweigh the aggravating circumstances.” [Wiley v. Mississippi, 479 U.S. at 908-909, 107 S.Ct. at 305-06, 93 L.Ed.2d at 280-81 (citations omitted).]

I find that the reasoning thus expressed is most persuasive. I am satisfied that it is improper for the jury for sentencing purposes to aggregate, overlap or double aggravating factors *222 where these factors are based on the same evidence and implicate the same conduct. This leads, I believe, inevitably to the conclusion that the capital murder statute as it is currently enacted and applied is irrational. It should be considered unconstitutional because it is not susceptible of a construction that can cure this infirmity. If the Court limited the application of the aggravating factors only to the weighing process in conjunction with sentencing, the statute would fail to narrow the class of death-eligible offenses; conversely, if the Court were to invalidate the weighing process by relegating the application of aggravating factors solely to narrowing the class of death-eligible offenders, it would leave the sentencing discretion wholly unguided.

The Court responds to these objections by permitting the overlapping of aggravating factors, so long as the sentencer is made “cognizant that the same facts are being used to prove more than one aggravating factor.” Ante at 176. The Court emphasizes further that it sees no difficulty with the statute’s mechanics, according to which death-eligibility is defined by a murder conviction and the finding of aggravating circumstances, while death-selection is a function of the weighing of aggravating and mitigating circumstances. Ante at 177.

In so holding, the Court sanctions in death penalty cases what it has proscribed in the ordinary criminal context. In State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014 , 106 S.Ct. 1193 , 89 L.Ed.2d 308 (1986), this Court considered for the first time, in the context of consecutive-sentencing discretion, the mechanics of the aggravating and mitigating circumstances listed in N.J.S.A. 2C:44-1 to guide the court’s discretion in imposing a sentence. The Court adopted as one of its general sentencing criteria the principle that “there should be no double counting of aggravating factors,” id. at 644; even granting the distinguishable factual context of Yarbough , I fail to see the difference in principle, or the justification for permitting juries in capital cases to double-count aggravating factors while preventing experienced sentencing judges in ordinary *223 criminal cases from doing so. Equally important, this Court remanded for resentencing in Yarbough because “certain of the factors that the trial court used in its discretion whether to make the sentences consecutive were, in part, the same factors that the Legislature has invoked to establish the very degree of the crime____” Id. at 645 . That is in effect, however, what the majority now permits in a capital context. It allows an aggravating factor, that indirectly establishes death eligibility, as much as an element of a crime determines its degree, to be considered anew in the deliberation of the sentence, and to do so during the sentencing deliberation. Cf. State v. Link, 197 N.J.Super. 615, 620 (App.Div.1984), certif. den., 101 N.J. 234 (1985) (where a fact of the offense is, in essence, an element establishing the degree of the crime, that fact/element may not be used as an aggravating factor to impose a sentence more harsh than the presumptive term). Following the logic of Yarbough , in other words, a determination of death-eligibility— the degree of the crime — should be based on factors that are not used again to determine the sentencing discretion. This could be achieved if the guilt-phase definition of capital murder adequately narrowed the class of those eligible for the death penalty; the majority has conceded, however, that the guilt-phase definition does not by itself adequately narrow the class, and is thus forced to rely on the sentencing factors to define the offense. See State v. Ramseur, supra, 106 N.J. at 187-88 n. 20. I renew the objection, stated in dissent in State v. Ramseur, that the guilt-phase definition of capital murder is unconstitutionally overbroad, and cannot be narrowed by recourse to factors used to deliberate sentencing, id. at 384-94 (Handler, J., dissenting), but would add that at a minimum.the same evidence cannot be used to support overlapping aggravating factors.

While the Court’s result today would no doubt be held to satisfy the federal Constitution under Zant v. Stephens, supra; see Lowenfield v. Phelps, 484 U.S. -, 108 S.Ct, 546 , 98 *224 L.Ed.2d 568 (1988), I believe that this Court should require discrete guidance at both the definitional and the sentencing phases. This Court should not settle for a scheme that guides sentencing discretion by defining the offense for which sentence is to be imposed. Short of this result, I believe that the resentencing jury must not be permitted to consider redoubled aggravating factors.

IV.

For these several reasons, I would reverse defendant’s conviction and sentence. I would add only that, as I argued in State v. Ramseur, we profess to follow our own constitutional conscience in matters suitably addressed by the State Constitution, but persist in constitutional cloning when it comes to capital punishment, id. at 369-82 (Handler, J., dissenting), despite the fact that the Supreme Court itself has encouraged states to deal with the death penalty in terms of their own constitutions and jurisprudence. California v. Ramos, 463 U.S. 992, 1013-14 , 103 S.Ct. 3446, 3460 , 77 L.Ed.2d 1171, 1188-89 (1983). It cannot be doubted that we have enduring and distinctive traditions and standards in the administration of criminal justice that truly call for the independent application of the State Constitution. I continue to believe that N.J.S.A. 2C:11-3 should be evaluated in light of those standards and traditions, and that such an evaluation finds the statute deficient.

For all of the foregoing reasons, I respectfully dissent.-

For affirmance of conviction, reverse, sentence and remand — Chief Justice WILENTZ, and Justices POLLOCK, O’HERN, GARIBALDI and STEIN — 5.

For reversal — Justices CLIFFORD and HANDLER — 2.

In a struck jury system the voir dire of the potential juror is completed, challenges for cause are decided by the trial judge, and the venireperson is then qualified for jury service in the instant case. All of the preliminarily qualified venirepersons return as a panel and are then subject to peremptory challenges by the defendant and prosecution who have the opportunity to exercise these peremptory challenges in light of the composition of the total qualified jury panel.

Even the defendant’s subsequent post-warning confessions to this murder and to the murder that was the focus in Bey (I) would be inadmissible as "tainted" under Hartley . Between the resumption of questioning and the issuance of new warnings at 10:55 p.m. defendant let "the cat out of the bag" by admitting involvement, Hartley, 103 N.J. at 281-82 . In any event, the interrogation upon defendant’s return was "one continuous process,” id. at 279-81 .

This was explained by the Supreme Court in Zant v. Stephens, supra, 462 U.S. 862 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 . In upholding the death sentence imposed under the Georgia scheme, the Court reasoned that "statutory aggra *218 vating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty." Id. at 878 , 103 S.Ct. at 2743, 77 L.Ed.2d at 250-51. The Court noted, however, that "[w]hat is important at the selection stage [at which the imposition of the death penalty itself is determined] is an individualized determination on the basis of the character of the individual and the circumstances of the crime," id. at 879, 103 S.Ct. at 2744, 77 L.Ed.ld at 251; the Georgia statute provided for this individualized determination by affording the jury discretion — after the aggravating circumstance(s) had defined the crime as death-eligible and thus established the possibility of a death sentence — to consider the case as a whole. Thus, because "the narrowing function has been properly achieved in this case by the two valid aggravating circumstances upheld by the Georgia Supreme Court,” id. at 879, 103 S.Ct. at 2744, 77 LEd.ld at 251, the federal court held that the unconstitutionality of the third factor in Zant did not affect the validity of the death sentence.