State v. Moore

HANDLER, J.,

concurring in part and dissenting in part.

The defendant, Samuel Leon Moore, was- tried for the murders of his wife and son in June of 1987. Defendant admitted committing the killings, but relied on the affirmative defense of diminished capacity. The jury found him guilty of knowingly or purposefully killing both victims, and, further, that aggravating factors outweighed mitigating factors regarding each victim. Accordingly, the trial court sentenced defendant to death for each killing. The Court now reverses the convictions for capital murder and the death sentences.

The Court determines that in light of Humanik v. Beyer, 871 F.2d 432 (3rd Cir.), cert. denied, — U.S. -, 110 S.Ct. 57 , 107 L.Ed.2d 25 (1989), the jury charge unconstitutionally shift *491 ed to defendant the State’s burden of proof on defendant’s state of mind as a component of his diminished-capacity defense under State v. Breakiron, 108 N.J. 591 , 532 A. 2d 199 (1987). Ante at 425-427, 430-437, 585 A.2d at 866-867, 869-872. The Court reverses the capital-murder convictions on this ground. I agree with this conclusion relating to the guilt-phase trial.

The Court also addresses other rulings and procedures surrounding the guilt-phase trial, finding several erroneous or problematic, but concludes nevertheless that they do not provide additional grounds for reversal of the murder convictions. In my opinion, however, some of those trial events warrant reversal. I believe the trial court improperly limited the scope of voir dire questioning. I believe on the authority of State v. Gerald, 113 N.J. 40 , 549 A.2d 792 (1988), that there was a rational basis in the evidence to support a conviction of murder resulting from an intent only to inflict serious bodily injury on Melva Moore, a noncapital crime; hence, the trial court was obliged to submit that option, as well as manslaughter, to the jury, which it failed to do. In addition, I am of the view that the court improperly admitted certain expert testimony. Also, I conclude the trial court abused its discretion in denying defendant’s motion to preclude or limit the extent of the disclosure of the fact that the victim, Melva Moore, was pregnant at the time of her death.

The Court invalidates the death sentences because defendant’s capital-murder convictions are reversed. Hence, it does not determine whether other grounds would justify reversal of the death sentences, although it discusses a number of them. I believe additional reasons warrant reversals of the death sentences. I am of the view that aggravating factor c(4)(g) was applicable with respect to Melva Moore, but that the application of that factor to the murder of Kory Moore was erroneous. Further, although the trial court used the constitutionally-narrowed definition of aggravating factor c(4)(c), I believe that there was insufficient evidence to submit that factor to the jury *492 in relation to the killing of Melva or Kory Moore. I find also that prosecutorial misconduct tainted the sentences. Finally, I conclude that the refusal to permit defense witnesses personally familiar with defendant to express their beliefs that he deserved mercy was unfair and prejudicial.

I write separately on those several issues to explain more fully why their resolution requires reversals and to emphasize that the Court’s failure to rely expressly on those additional grounds ought not to be misinterpreted, to signify that the underlying errors are somehow insignificant or tolerable in the prosecution of capital-murder causes. Further, in my view, there are cogent grounds for concluding that the State’s capital-murder statute is unconstitutional, as enacted, construed and applied. See, e.g., State v. Ramseur, 106 N.J. 123, 343 , 524 A.2d 188 (1987) (Handler, J., dissenting). I remain convinced that these reasons impugning capital-murder prosecutions are persuasive, if not unanswerable. In this case, however, I find it unnecessary to repeat the fundamental grounds that, in my opinion, serve to invalidate the capital-murder statute, stating only that such reasons remain relevant and applicable in light of the evolving nature of capital-murder jurisprudence. E.g., State v. Di Frisco, 118 N.J. 253, 283 , 571 A.2d 914 (1990) (Handler, J., concurring in part and dissenting in part).

I.

We have stressed that in a capital-murder prosecution, the death-qualification process is “important, delicate, and complex,” and requires a “thorough and searching” inquiry into “jurors’ opinions and biases.” State v. Williams II, 113 N.J. 393, 413 , 550 A.2d 1172 (1988). Significant errors in this case involve the adequacy of the jury voir dire relating to certain important subjects, which the Court identifies yet trivializes by concluding that in each instance questioning “as a whole” was adequate.

*493 One of the subjects that was erroneously circumscribed in the jury voir dire related to the status or condition of the victims. Ante at 446-447, 585 A. 2d at 877-878. Specifically, defendant claims that it was never discovered through adequate interrogation of individual jurors if the circumstances of Melva’s pregnancy and Kory’s infancy would interfere with a prospective juror’s fair determination of guilt or would render it more likely that a juror would impose the death sentence on one murdering such victims. The trial court denied defendant’s requests that such questions be posed because they impelled jurors to speculate “on what they might do or how their verdict might be influenced by certain contingencies.” The Court, agreeing with defendant, at least in principle and in part, acknowledges that “voir dire should allow more open-ended questioning on the issue of the status of the victims as it relates to any prejudice or predisposition affecting the juror’s ability to adjudge fairly in the guilt phase or the ability to consider mitigating evidence in any penalty phase.” Ante at 451, 585 A. 2d at 880.

A review of the voir dire as a whole reveals that most prospective jurors were interrogated to some extent concerning the status of the victims as constituting a special circumstance relevant to potential juror bias. The court, however, did not permit counsel to interrogate many potential jurors at all with respect to how the status of the victim would affect their deliberations. Moreover, although several potential jurors were asked how the status of the victims would affect them in determining an appropriate sentence, many of those prospective jurors gave only a rote and unspecific response to the questioning. Many jurors were asked only an abstract question whether the nature of the crimes would affect their ability to be fair, the answer to which in no way revealed any subjective attitudes or feelings relating specifically to the status of the victim. Thus, it is not possible to know whether prospective jurors leaning in favor of capital punishment, and exposed only to those questions, would be able objectively and fairly to credit *494 and weigh mitigating evidence; the questioning on death qualification simply did not probe sufficiently that important area.

That unsearching and abbreviated examination into juror feelings engendered by the pregnancy and infancy of the murder victims constitutes a serious deficiency in the juror-qualification process. It was tantamount to the failure to inquire sufficiently “into whether any juror could consider the mitigation evidence ..., [effectively denying] counsel and the trial court the tools with which to insure that the jury panel could fairly undertake its role [at the penalty phase] in this case.” Williams II, 113 N.J. at 417, 550 A.2d 1172 . That omission is particularly telling in view of the prominence that the status of the victims acquired in the course of the trial. Infra at 462-466, 585 A.2d at 886-887.

In addition to the status of the victims, the existence and effect of mental disease on the crimes charged and the appropriate sentence were also critical issues. Defendant offered expert psychiatric testimony in support of the mental-health defense of diminished capacity in causing the deaths of his wife and son. Furthermore, at the penalty phase, two of the proffered mitigating factors involved his mental condition. I believe that the trial court abused its discretion in foreclosing examination of the prospective jurors’ attitudes toward the mental-health defenses and psychiatry, and that that error touches both phases of the proceeding. ■

Generally, courts appear reluctant to allow or encourage far-ranging voir dire covering attitudes toward mental disease or psychiatric testimony. Compare State v. Kelly, 118 N.J.Super. 38, 46 , 285 A.2d 571 (App.Div.) (1972) (in first-degree murder case trial court did not allow voir dire about feelings toward insanity defense, reasoning that juror’s attitude toward an unexplained legal principle “difficult to differentiate from ... many other rules of substantive or adjective law”), certif. denied, 60 N.J. 350 , 289 A.2d 795 with State v. Jasuilewicz, 205 N.J.Super. 558 , 501 A.2d 583 (App.Div.1985) (immediacy of *495 Hinkley verdict of not guilty by reason of insanity made refusal to inquire regarding mental health defenses reversible error), certif denied, 103 N.J. 467 , 511 A.2d 649 . Nevertheless, whether that approach reflects current practice and conventional wisdom, it should not be followed in a capital-murder prosecution.

With respect to the jurors’ abilities to credit the psychiatric evidence presented in support of the mitigating factors, the error in failing fully to explore juror attitudes and feelings is particularly serious. As noted, two of the mitigating factors presented at the penalty phase involved defendant’s mental condition. As this Court explained in Williams II, supra, the sentencer has a constitutional obligation to consider the evidence presented in mitigation, and failure to ensure the capability to do so is error. 113 N.J. at 417, 550 A.2d 1172 . As it turned out, the jury unanimously rejected one of these mitigating factors and voted eleven to one against the other. Thus, the shortcomings in the voir dire cannot be treated lightly. In the absence of a probing voir dire to explore the possible existence of juror antipathy toward psychiatric evidence, there can be no assurance that any juror’s rejection of those mitigating factors was not the result of latent unexposed bias.

. Those errors are not candidates for harmless-error disposition. Defendant’s constitutional right to a fair trial does not diminish in relation to the amount of evidence of guilt garnered by the State. “Even in a case ... where the evidence of guilt is compelling, the right to a fair trial must be diligently protected to insure that all defendants, regardless of the crime charged or the weight of the evidence produced, are tried by a fair and impartial jury.” Williams II, supra, 113 N.J. at 409, 550 A.2d 1172 . The errors, consisting of an insufficient exploration of the jurors’ attitudes and feelings with respect to the status and condition of the victims and to mental disease as a defense and as a mitigating factor, are too serious to pass off. In my opinion, independently and jointly they warrant reversals of the convictions and the death sentences.

*496 II.

This case again betrays the laxity and ambivalence that the Court has manifested with respect to the admissibility of expert testimony in capital-murder prosecutions. As part of the State’s case-in-chief, New Jersey State Police Detective Thomas McCormick testified as an expert in blood-spatter analysis. That testimony was offered to show that the killing of Kory Moore was knowing and purposeful rather than accidental, as defendant claimed. Without that significant — and extremely problematic — testimony, the jury’s determination might have been markedly different.

The trial court found the detective to have sufficient qualifications to testify as an expert. The Court recounts Detective McCormick’s qualifications: He had been a member of the state police for eight years and assigned to the Crime Scene Investigation Unit for two years at the time of his testimony; his duties consisted of crime-scene photography, evidence collection and fingerprinting, and autopsy attendance; he had attended a six-week course termed “New Jersey State Police Forensic Science School,” which included a one-day seminar in blood-spatter analysis. Additionally, he had attended another “one day seminar” given by a member of the crime-scene-investigation unit who in turn had received training by someone “schooled” in that area, and he “continue[d] to get in-service training.” McCormick had investigated over two hundred crime scenes, at least thirty of which were homicides, and had previously testified as an expert in fingerprinting and crime-scene analysis. The witness had never before testified as a blood-spatter-analysis expert. Ante at 458, 585 A.2d at 884.

Evidence Rule 19 states that to testify as an expert, a witness must have the required “experience, training, or education.” A witness offered as an expert must “be suitably qualified and possessed of sufficient specialized knowledge to be able to express such an opinion and to explain the basis of that opinion.” State v. Odom, 116 N.J. 65, 71 , 560 A.2d 1198 *497 (1989) (quoting State v. Kelly, 97 N.J. 178, 208 , 478 A.2d 364 (1984)). “[A]n expert may be qualified by study without practice or practice without study, but a mere observation without either is insufficient.” State v. Smith, 21 N.J. 326, 334 , 121 A.2d 729 (1956); cf. State v. Philbrick, 436 A.2d 844, 861 (Me.1981) (detective improperly permitted to testify to conclusions regarding sequence and directions of gunshots based on blood found in car because trial court conducted no voir dire prior to testimony to establish detective’s qualification as expert, particularly in light of pathologist being unable to reach similar conclusions).

We recognize that “[t]he sufficiency of the qualifications of the experts [is] primarily a matter for the trial court’s discretion and will be reviewed only for manifest error and injustice.” State v. Ravenell, 43 N.J. 171, 182 , 203 A.2d 13 (1964), cert. denied, 379 U.S. 982 , 85 S.Ct. 690 , 13 L.Ed.2d 572 (1965) (citations omitted). Nevertheless, the trial court abused its discretion in concluding that McCormick was sufficiently qualified as an expert to give and explain an opinion on the significance of spattered blood as bearing on the state of mind of a murderer. It may be that McCormick had training both in forensic evidence and in crime-scene investigation, but his training in blood-spatter analysis was patently meager. Moreover, he never before this case had qualified as an expert in this field, and his background does not reveal any or substantial actual investigative experience in making blood-spatter analyses. That lack of training and experience was highlighted by the defense both on cross-examination and in summation.

There was no evidence to establish that this subject constituted an acknowledged field of expertise, such as the witness’s knowledge of the reasonable uniformity of results or the scientific basis for such studies. See State v. Zola, 112 N.J. 384, 446-48 , 548 A.2d 1022 (1988) (Handler, J., concurring in part and dissenting in part), cert. denied, 489 U.S. 1022 , 109 S.Ct. 1146 , 103 L.Ed.2d 205 (1989). There was no showing that this body of knowledge was generally accepted by the scientific *498 community. State v. Kelly, supra, 97 N.J. at 210 , 478 A.2d 364 . In the capital case of State v. Harvey, 121 N.J. 407, 426-27 , 581 A.2d 483 (1990), the State sought to introduce the testimony of Dr. Claude Owen Lovejoy, who claimed to be able to estimate the stature of a person from the size of his or her shoes. The trial court held the testimony admissible. This Court reversed, noting that in a relatively new field of research, there are three ways to prove the evidence’s' “general acceptance and thereby its reliability”:

(1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness bases his or her analysis; (2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and (3) by judicial opinions that indicate the expert’s premises have gained general acceptance. [Id. at 427-28, 581 A.2d 483 (quoting Kelly, supra, 97 N.J. at 210 , 478 A.2d 364 ).]

The Court held that the State had not satisfied either the first or second alternative as the State “did not provide evidence that anyone in the scientific community other than Dr. Lovejoy himself vouches for his methods.” The Court noted further that no judicial opinions indicated that his methods had gained general acceptance. Ibid.

This is not the first time the Court has had the opportunity to decide whether blood-spatter analysis is an area sufficiently scientific to justify expert testimony. In another capital-murder case, State v. Johnson, 120 N.J. 263 , 576 A.2d 834 (1990), this Court expressly declined to decide the issue, holding instead that “the limited probative value of that evidence with regard to the facts it was offered to prove is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice.” Id. at 297 , 576 A.2d 834 (citing Evidence Rule 4). The same reasoning should apply here. The objective forensic evidence relating to the manner of the killing was abundant and the proffered expert testimony contributed little probative worth but added enormous prejudice.

The State offered no proofs that blood-spattering evidence is accepted by those in the profession. The trial court did not *499 bother to ascertain whether judicial opinions indicate that blood-spattering analysis has gained general acceptance within the community of experts. Accordingly, the opinion testimony was patently incompetent and should not have been admitted.

There is yet another aspect to the error in the admission of the expert’s testimony. It is essential that the expertise of the witness coincide with the opinion of the witness. See State v. Odom, supra, 116 N.J. 65 , 560 A.2d 1198 . If the expert’s opinion goes beyond the foundation and limits of the underlying expertise, then that opinion cannot be credited. Ibid. In this case, it is not apparent how McCormick’s rudimentary training enabled him to reach and explain his conclusion that Melva’s blood had been indirectly transferred onto Kory’s overalls, and that the angles and paths of the splatters on the wall indicated the position of Kory’s body when he was killed. More importantly, that testimony clearly implied, as a matter of personal opinion, that the murder had been intentional and purposeful. However, nothing related concerning the witness’s background, training, or experience suggests that there existed within the scientific community an acknowledged level of expertise that would produce valid and reliable conclusions that a killer’s state of mind can be extrapolated from blood-spatter evidence, or, more important, that the witness in this case had this level of expertise and scientific sophistication. Hence, there was an insufficient foundation in terms of the witness’s expertise to enable him impliedly to express and explain a conclusion with respect to the killer’s state of mind at the time the mortal wounds were inflicted on the victims. See Nesmith v. Walsh Trucking Co., — N.J.-(1991) (slip op. at 2-3). It follows, also, that the expression of such a conclusion, one without an expert foundation or sufficient explanation, constitutes a “net opinion.” Ibid. In the context of this case, in which the witness was not sufficiently qualified as an expert, and his conclusion lacked a supporting explanation, his opinion implying that the homicide was intentional expressed a determination of a critical and ultimate fact that is tantamount to a determina *500 tion of guilt of first-degree capital-murder. It thus transgresses the jury’s sole responsibility to determine guilt or innocence. Cf. State v. Odom, supra, 116 N.J. 65 , 560 A.2d 1198 (adequately qualified expert’s fully-explained conclusion that drugs were held for sale did not constitute opinion that defendant was guilty of crime charged).

In Johnson, supra, 120 N.J. 263 , 576 A. 2d 834 , in which a husband and wife were found murdered in their home, the State offered the blood-spatter testimony of police detective Reeves to show that the husband had lain prostrate when shot; that the wife had been struck more than once with a ceramic vase and had suffered a minimum of seven injuries; and that the wife had struggled with her attacker. The State also suggested that the blood-spatter testimony contradicted the defense theory that others had participated in the murder, because the testimony indicated that the attacker acted alone. Id. at 298 , 576 A.2d 834 .

This Court stated:

The record demonstrates that the medical examiner had already established the cause of death and the extent of the assault. Reeve’s testimony was merely cumulative on those issues. Information about the parts of the house where the attack had taken place and the directionality of the blows, though startling, proves neither the intent nor the identity of the attacker. Although the testimony is not irrelevant, it is largely corroborative of other, essentially unchallenged testimony indicating the manner of death. Thus, it was only minimally probative of defendant’s guilt.

Although the blood-spatter testimony was of only limited probative value, its admission created a substantial danger of undue prejudice to defendant. Reeve’s lengthy presentation exposed the jury to numerous crime-scene photographs depicting the victim’s bodies, as well as forty-two slides depicting blood-spatter exemplars, which Reeves used to highlight his expertise in the area. Such testimony, extending over the course of an entire day at trial, could not help but focus the jury’s attention on the gruesome details of the condition of the victims’ bodies, rather than on defendant’s guilt. [Ibid.]

Here, the blood-spatter testimony was not simply corroborative of other evidence. It was offered to show “that Kory was lying on the floor when the blood reached him,” and that he was “probably struck at least twice while in his final position.” See ante at 458, 585 A.2d at 883. Although the medical *501 examiner testified that Kory had been killed by “multiple blunt impact,” and described in detail the lacerations of Kory’s head and the comminuted fractures of the underlying bones, McCormick’s blood-spatter testimony purported to describe the position of Kory and implied he had been intentionally killed. It was thus extremely prejudicial. As in Johnson , the presentation exposed the jury to numerous crime-scene photographs depicting the victims’ battered bodies and the blood-spattered apartment.

In sum, McCormick’s testimony on the critical issue of intent violated defendant’s right to due process and a fair trial under the sixth and fourteenth amendments to the federal Constitution and the parallel provisions of the New Jersey Constitution, and the error was clearly capable of affecting the result of his case. Hence, I disagree with the Court’s acceptance of that testimony based solely on the trial court’s discretion.

III.

Defendant contends that although the trial court determined that Melva Moore’s pregnancy was relevant and admissible in both phases of the proceeding, error occurred through the prosecutor’s excessive use of that evidence and the trial court’s failure to give the jury clear, decisive, corrective, and limiting instructions on its use. The Court seemingly agrees, but it minimizes the severity of the prejudice. It simply expresses the admonition that “[on remand] both court and counsel shall insure that the evidence of pregnancy is properly limited to its probative purposes” and the additional “caution against unnecessarily dwelling on the pregnancy at retrial.” Ante at 465, 585 A.2d at 887. I differ.

During his guilt-phase opening, the prosecutor made repeated references to Melva Moore as defendant’s “pregnant wife,” without ever indicating that the pregnancy would be shown to have particular significance or relevance to any of the issues in the case. At trial, various witnesses testified to the fact that Melva was pregnant, including the medical examiner who au *502 topsied her, although the prosecutor made no effort to tie the pregnancy to the murders.

After the guilt-phase verdict and prior to the commencement of the penalty phase, defense counsel requested that the court discharge the jury and empanel a substitute, due to its exposure to irrelevant and prejudicial information, such as the pregnancy. The court refused, finding that the pregnancy was relevant circumstantial evidence of state of mind, even at the penalty phase, and indicating that a cautionary instruction would be given if desired. However, the evidence was patently abused by the prosecutor at the penalty phase. The prosecutor was permitted over defendant’s objection to argue that the killing of pregnant Melva was probative of wanting to cause mental anguish because she would know “that the child she carried would never, never breathe a breath of life.” The prosecutor made repeated references to Melva’s pregnancy. 1 The claimed relevance of the references to Melva’s pregnancy is clearly belied by the court’s penalty-phase charge in which it instructed the jurors that the pregnancy and its termination “are not aggravating factors under the law that you have sworn to uphold ... [y]ou shall not, you must not consider either pregnancy or the effect of the defendant’s acts upon the fetus as an aggravating factor.”

*503 Even if the evidence by some stretch of the imagination could have been considered relevant, it should nonetheless have been excluded as an exercise of the trial court’s discretion because its probative value “is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation” of the issues in the case. State v. Thompson, 59 N.J. 396, 421 , 283 A.2d 513 (1971). The “more attenuated and the less probative the evidence, the more appropriate it is for a judge to exclude it under Evid.R. 4.” State v. Medina, 201 N.J.Super. 565, 580 , 493 A.2d 623 (App.Div.), certif. denied, 102 N.J. 298 , 508 A.2d 185 (1985); State v. Mathis, 47 N.J. 455, 471 , 221 A.2d 529 (1966) (evidence of defendant’s financial need excluded absent some additional connection to motive).

In this case, the relevance was minimal, if present at all. One area of relevance anticipated by the trial court at the guilt phase was self-defense or Melva’s initiation of the violence. That, however, never became an issue in this case. The trial court also noted that where intent is at issue, the scope of relevant proofs is broader, permitting any evidence that might be probative of defendant’s intent. However, although the State argued on appeal that defendant wanted Melva to move out and she refused because she was pregnant, no such evidence was forthcoming. The Suggestion that defendant felt the birth of a second child would further hamper his efforts to start a life with Lizzette, his paramour, is not supported by any evidence. The State itself advanced the theory that Melva and Kory simply stood in the way of defendant’s plans. It did not at trial contend that the killing was related in any way to her pregnancy. Likewise, in attempting to prove that the killing of Kory had been intentional, the prosecutor simply relied on the evidence that he had been struck more than once, assertedly as he lay on the floor. Thus, the trial court’s conclusion that the pregnancy would be probative of defendant’s intent to kill each victim was never supported by evidence connecting the pregnancy to his actions.

*504 I conclude, therefore, that the trial court abused its discretion in failing to exclude the pregnancy testimony under Evidence Rule 4. In particular, the trial court failed wholly to consider and weigh the prejudicial effect of that evidence against not only its asserted relevance with respect to guilt but also its relevance, if any, with respect to whether defendant deserved to die. See State v. Long, 119 N.J. 439, 515-17 , 575 A.2d 435 (1990) (Handler, J., dissenting and concurring); State v. Pennington, 119 N.J. 547, 605-09 , 575 A.2d 816 (1990) (Handler, J., concurring in part and dissenting in part).

In addition, the trial court failed to do anything to correct or mitigate the effects of the erroneous admission of that evidence. Even though defendant did not request an Evidence Rule 6 instruction, it was error for the trial court not to have given one sua sponte. In my view, the application of that rule is not necessarily triggered or excused by whether a party seeks or resists its application. See State v. Rose, 112 N.J. 454, 550 , 548 A.2d 1058 (1988) (Handler, J., dissenting).

It is not tenable to conclude that error in the admission and use of this evidence was harmless because there was overwhelming evidence of defendant’s guilt, and the jurors could not possibly have reached any other result. Ante at 427, 585 A.2d at 867. That determination cannot be reached unless one ignores the fact that there was conflicting evidence offered on defendant’s mental condition and also chooses to apply the Court’s amorphous standard of appellate review with undue laxity. The inflammatory fact that an unborn child was killed had the greatest potential for wrongful use by the jury. One can reasonably conclude that absent that highly emotionally-charged evidence, the jury could have found that the killings had been committed only with diminished mental capacity.

IV.

Fundamental error also contaminates the jury’s determination that defendant deserved to die for each of the murders. *505 The State alleged two aggravating factors with respect to Melva: c(4)(c) (a killing with intent to cause mental or physical suffering or with depravity), and c(4)(g) (a killing committed during the commission of another killing, that of Kory). The State alleged three aggravating factors relating to Kory: c(4)(c) (a depraved killing), c(4)(f) (a killing to prevent defendant’s detection for Melva’s murder), and c(4)(g) (a killing committed during the commission of another killing, that of Melva). With respect to c(4)(g), the jury was unanimous in finding this factor present in both killings.

A.

Defense counsel challenges the constitutionality of aggravating factor c(4)(g) as applied to a double-murder situation, under the circumstances of this case. He argues that the reciprocal use of aggravating factor c(4)(g) here violated the eighth and fourteenth amendments to the federal Constitution, and article I, paragraph 12 of the New Jersey Constitution. In addition, defendant contends that the aggravating factor cannot be based on the killing of Melva and applied to aggravate the murder of Kory, stressing that the statutory language, when it speaks of a murder committed during the commission of another murder, “suggests that one killing be complete or already in process when another homicide takes place.” Defendant also states that the prosecutor in his case “splintered what should have been a single aggravating factor into two” by charging that each killing occurred in the course of the other, because, “logically speaking, only one killing could take place during the course of another.” Defendant further cites this Court’s discussion in State v. Bey II, 112 N.J. 123, 174-76 , 548 A. 2d 887 (1988), of the hazards of artificially inflating aggravating factors, and contends that even if that which occurs when each killing is used to aggravate the other is permissible, such a situation clearly demands an explanation to the jury to protect against over-accumulation or extra-counting of evidence. The Court rejects these contentions. Ante at 469-474, 585 A.2d at 889-891.

*506 The most fundamental argument, in my view, is that in order for a charged murder to be subject to an aggravating factor consisting of another murder, the charged murder must be one that arises during the course of and as a probable consequence of the commission of the other murder. That, I believe, reflects the clear legislative intent, which can be derived from the analogous legislative treatment of the substantive crime of felony murder.

Aggravating factor c(4)(g) as originally enacted provided:

The offense was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, sexual assault, arson, burglary or kidnapping. [N.J.S.A. 2C:ll-3c(4)(g).]

It is reasonable to infer that the Legislature intended to incorporate elements of the felony-murder doctrine into the standards governing the aggravating factor of c(4)(g) as applicable to capital-murder. As originally enacted, c(4)(g) contemplated that if the charged murder otherwise qualified as a felony-murder, it served to aggravate the crime of capital-murder. That is evident from the language of c(4)(g), which refers to a murder committed “while defendant was engaged in the commission of ... [a felony].” That standard is virtually identical to the statutory standard defining the substantive crime of felony murder. N.J.S.A. 2C:ll-3a(3). It is, then, to be inferred that the Legislature, by the use of parallel language, intended that felony-murder qua aggravating factor be identical to felony-murder qua murder.

The language of factor c(4)(g) was amended in 1985, with murder added to the list of felonies. L.1985, c. 178. The drafters of the amended bill explained:

Under the current law, a murder committed while committing or attempting to commit another crime, such as robbery or sexual assault, is an aggravating factor. As amended, Senate Bill No. 950 would include murder itself among those offenses, so that a murder committed during the commission of another murder would be an aggravating circumstance. [Senate Judiciary Committee Statement, No. 950, A. 1985, c. 178.]

*507 It is reasonably evident that the legislators, by the addition of murder to the list of felonies that can enhance or aggravate a charged murder, intended that "murder” function as a predicate felony in terms of constituting the aggravating factor of c(4)(g).

In consequence, the felony-murder doctrine embraces the principles that define c(4)(g). In determining the elements of the substantive crime of felony murder, we have ruled that in order to constitute felony murder, a murder committed during the .commission of a felony must be a probable consequence of the felony. State v. Martin, 119 N.J. 2, 27-28 , 573 A. 2d 1359 (1990). In Martin , we traced the evolution of the felony murder doctrine in New Jersey and determined that a court must charge the jury on causation in a felony-murder prosecution when causation is at issue. Id. at 33 , 573 A. 2d 1359 . A jury must find that a sufficient nexus exists between a felony and resulting murder, that the resulting murder is not too remote, accidental, or improbable. Ibid. It follows that in adding murder to the felonies that can convert an accompanying murder into the “felony-murder” aggravating factor of c(4)(g), the Legislature presumably intended that the accompanying murder, the charged murder, occur while the defendant “was engaged in the commission of ... [another murder],” and was the “probable consequence” of the commission of that murder.

Moreover, even though the accompanying, charged murder is intentional or knowing, and independently renders the defendant death eligible as a matter of guilt, it must presumably still be shown to satisfy the requirements of the felony-murder standards in order to constitute the aggravating factor of c(4)(g). In other words, the accompanying murder must constitute a “probable consequence” of the initial, charged or predicate murder, in just the same way an accompanying murder would have to be connected or related to a predicate felony other than homicide to be considered a felony-murder.

Here, regardless of defendant’s state of mind in connection with the murder of Kory, the evidence was not focused on — nor *508 was it argued by the State — whether this killing was a probable consequence of the murder of Melva. Rather, it appears from the State’s evidence and arguments that Kory’s killing was separate, unconnected and independently intended by defendant. More significantly, the jury was not instructed to consider or asked to determine whether there was a sufficient causal nexus between the two murders.

The critical function of aggravating factors in a capital punishment scheme, as the label implies, is to identify those circumstances that distinguish the intentional killings society deems warrant the punishment of death from those that do not. See Lowenfield v. Phelps, 484 U.S. 231, 244 , 108 S.Ct. 546, 554 , 98 L.Ed.2d 568, 581-82 (1988) (“The use of ‘aggravating circumstances’ is ... a means of genuinely narrowing the class of death-eligible persons and thereby channeling the jury’s discretion.”); Gregg v. Georgia, 428 U.S. 153, 197-98 , 96 S.Ct. 2909, 2936-37 , 49 L.Ed.2d 859, 888 (1976) (the aggravating factors require the jury to consider “the circumstances of the crime and the criminal before it recommends sentence”); see Bey II, supra, 112 N.J. at 175, 548 A.2d 887 . Like the felony-murder rule itself (where intent to commit the felony is transferred to the killing), commission of a felony is a harmful act condemned by society and justifiably subjects a defendant to greater penal consequences if the results include the commission of a murder. Thus, the language of the statute contemplates that the killing is aggravated because of defendant’s greater fault; it occurred because the defendant was engaged in other criminal behavior that, under our law, generated a real risk that someone would be killed.

The aggravating factors of e(4)(g) entail something more than coincident dual murders. They require a connection between the charged murder and the aggravating murder, the same connection that is required between the murder and the predicate felony to constitute felony-murder. That standard is similar to California’s felony-murder special circumstance that can increase the culpability of capital murder. The California felo *509 ny-murder special circumstance provides that “the murder was committed while defendant was engaged in ...” nine enumerated felonies, murder not among them. Cal.Penal Code § 190.2(17). In People v. Green, 27 Cal.3d 1 , 609 P.2d 468 , 164 Cal.Rptr. 1 (1980), the defendant had taken his estranged wife to a secluded spot, killed her, and then departed with her clothes, jewelry, and purse. The prosecutor had effectively told the jury that the finding that a robbery had occurred would be tantamount to an affirmative finding of the special felony-murder circumstance. The court, however, found error, because “it was not enough for the jury to find the defendant guilty of a murder and one of the listed crimes; the statute also required that the jury find the defendant committed the murder ‘during the commission or attempted commission of that crime.” Id. at 59 , 609 P.2d at 504 , 164 Cal.Rptr. at 37 . The court explained:

The provision thus expressed a legislative belief that it was not unconstitutionally arbitrary to expose to the death penalty those defendants who killed in cold blood in order to advance an independent felonious purpose, e.g., who carried out an execution-style slaying of the victim of or witness to a holdup, a kidnapping, or a rape. [id. at 61, 609 P.2d at 505 , 164 Cal.Rptr. at 38 .]

The court found that the proofs indicated the poor fit of that aggravating circumstance to the case, “that it was not in fact a murder in the commission of a robbery but the exact opposite, a robbery in the commission of a murder.” Id. at 60 , 609 P.2d at 505 , 164 Cal.Rptr. at 38 .

Here, the Court ignores that fundamental distinction. It concludes that “neither constitutional principle nor statutory intent forbids a jury to consider reciprocal double murders in determining death worthiness in each.” Ante at 473, 585 A.2d at 891. The Court simply mispereeives the statutory intent. As in Green , I believe the legislative intent underlying this aggravating factor is not effected by charging only that the jury could find that Melva Moore was killed during the commission of the murder of Kory. Rather, this aggravating factor could be established only if the jury were able to conclude beyond a reasonable doubt that Kory’s killing was a probable *510 consequence of Melva’s. The instructions should parallel those applicable to felony murder. See State v. Martin, supra, 119 N.J. 2 , 573 A.2d 1359 .

Moreover, both the State and defense accepted the fact that defendant’s assault on Melva had occurred first. The State argued that defendant had then “hunted down” and killed his son as well. The court gave no indication to the jury that the murder of Kory had been committed to facilitate the murder of Melva or had occurred as a probable consequence of it. Accordingly, I believe that the c(4)(g) factor, relying on the separate and independent killing of Kory, was improperly presented and charged as an aggravating factor in the killing of Melva Moore.

In addition, the Legislature clearly did not anticipate that in the situation involving a double murder, each murder could constitute an aggravating factor of the other. As in felony murder, the felony aggravates the killing but the killing does not aggravate the felony. Other jurisdictions have foreclosed the dual use of each murder to aggravate the other. The Georgia Supreme Court has developed what it calls the doctrine of mutually supporting aggravating circumstances. That doctrine does not permit two death sentences to be imposed where the only aggravating factor alleged for each is the killing of the other.

[T]he doctrine of “mutually supporting aggravating circumstances” precludes imposition of two death sentences where the sole statutory aggravating circumstances is that the defendant has committed a double murder. [Putman v. State, 251 Ga. 605, 614 , 308 S.E.2d 145, 153 (1983) (citations omitted) (subsequent history omitted).]

California’s death-penalty statute also provides a “multiple-murder” special circumstance that can aggravate the capital-murder, which differs from the felony-murder special circumstance considered in People v. Green, supra, 27 Cal.3d 1 , 609 P.2d 468 , 164 Cal.Rptr. 1 .

The California court considered the “multiple murder” special circumstance in People v. Harris, 36 Cal. 3d 36 , 679 P.2d 433 , 201 Cal.Rptr. 782 (1984), cert. denied, 469 U.S. 965 , 105 S.Ct. *511 365 , 83 L.Ed.2d 301 (1984), a double murder situation in which defendant challenged the use of each victim to allege two “multiple murder” special circumstances. The court pointed out that “there must be inore than one murder to allege this special circumstance at all.” 36 Cal.3d at 67 , 679 P.2d at 452 , 201 Cal.Rptr. at 801 . Unlike its treatment of the felony-murder special circumstance, the court did not intimate that any connection between the multiple murders need be shown. Our own rule, in my opinion, is different.

The use of the dual murder in this case also implicates problems entailed in double-counting or exaggerating the weight of evidence of aggravating factors. This Court has previously approved “double counting” evidence in applying aggravating factors, that is, using the same evidence to establish more than one aggravating factor concerning one victim. See, e.g., State v. Rose, supra, 112 N.J. at 524-27, 548 A.2d 1058 ; State v. Bey II, supra, 112 N.J. at 174-76, 548 A.2d 887 . Nevertheless, even under the Court’s rule allowing such double-counting, the use of the same or identical evidence to establish separate aggravating factors is improper. The use of the same facts, namely, multiple murders, to establish an aggravating factor in respect of each killing, improperly embraces the same evidence, clearly inflating the risk that the death penalty will be imposed arbitrarily.

This point was clearly grasped by the California Supreme Court in the Harris case. The court there stated:

In this case, alleging this special circumstance with each murder count results in a finding of two special circumstances. Since there must be more than one murder to allege this special circumstance at all, alleging two special circumstances for a double murder improperly inflates the risk that the jury will arbitrarily impose the death penalty.

‡*******

In our view, the appropriate charging papers would allege a “multiple murder” special circumstance separate from the individual murder counts. This procedure would properly guide the jury’s objective consideration of the circumstances of the crime without hampering the prosecution’s ability to seek *512 what it considers to be the appropriate punishment. [People v. Harris, supra, 36 Cal.3d at 67 , 679 P.2d at 452 , 201 Cal.Rptr. at 801 .]

The constitutional issue that defendant raises is somewhat different from those presented by the double-counting situations in Bey and Rose , where the same evidence was factored twice into the penalty-phase verdict. Thus, in State v. Bey II, supra, 112 N.J. 123 , 548 A.2d 887 , the defendant brought a constitutional challenge to the use of the sexual assault of his victim as the factual predicate for two aggravating factors. The Court endorsed the practice, but explained that to ensure that the facts are not given undue weight, the trial court must make the jury aware that the same facts underlie numerous aggravating factors. Id. at 176, 548 A.2d 887 . In State v. Rose, supra, 112 N.J. 454 , 548 A.2d 1058 , the defendant argued that such dual use of the same evidence makes the jury’s deliberations unconstitutionally arbitrary. Citing the discussion in Bey II, the Court found that the absence of a clarifying instruction was sufficient error to require reversal of Rose’s death sentence. Id. at 527 , 548 A.2d 1058 . Here, the evidence of the dual murders is being used twice by the jury in determining the punishment for each murder. I believe that at the very least, in the absence of a limiting instruction providing a careful explanation of the concerns entailed in using the same evidence, the double use of evidence to establish aggravating factor c(4)(g) was reversible error.

In addition, although multiple aggravating factors were alleged and found for each victim, if one or more factors are invalid, I do not believe the death sentence can endure on the basis of any remaining factors. See Rose, supra, 112 N.J. at 577, 548 A.2d 1058 (Handler, J., dissenting). We have heretofore declined independently to reweigh remaining factors, and instead require a new sentencing proceeding. But see Clemons v. Mississippi, — U.S.-, 110 S.Ct. 1441 , 108 L.Ed.2d 725 (1990) (eighth amendment does not preclude appellate court from reweighing factors). The Georgia Supreme Court, in conducting the mandatory sentence review in eases involving *513 the murders of two persons where no other aggravating circumstances were present, seemingly recognized two death sentences in that situation as excessive. The relief granted by the Court was to strike the factor as to one victim. See Gregg v. State, 233 Ga. 117, 125-28 , 210 S.E.2d 659, 666-67 (1974) (subsequent history omitted). However, if there are other aggravating circumstances, apart from the dual murders, the Georgia Supreme Court “arbitrarily” strikes the factor in respect of one killing, and theoretically the other death sentence remains intact. See Waters v. State, 248 Ga. 355, 367 , 283 S.E.2d 238, 250 (1981) (“[w]e arbitrarily eliminate the aggravating factor as to one of the victims”) (subsequent history omitted). I do not believe that avenue is open to use in this case because of the invalidity of the remaining aggravating factor c(4)(c). See discussion infra at 513-516, 585 A.2d at 912-913. Cf. Blanks v. State, 254 Ga. 420, 427 , 330 S.E. 2d 575, 582 (1985) (despite the doctrine of mutually supporting aggravating circumstances, “in view of the additional aggravating circumstances found here, the fact that each murder is a statutory circumstance supporting the death penalty for the other does not require the reversal of either sentence”) (subsequent history omitted).

In sum, the use of the double murders to sustain the aggravating factors of c(4)(g) concerning both murders was clearly error. It requires reversal of both death sentences.

B.

Prior to the start of the penalty phase, the State represented that it would produce no further direct evidence in support of the aggravating factors alleged. Defense counsel then moved to have aggravating factor c(4)(c) dismissed in respect of both Melva and Kory. The court denied that motion and submitted c(4)(e) as to both. The jury found aggravated assault regarding Melva and depravity of mind with respect to Kory. It unanimously rejected the depravity aspect of c(4)(c) regarding Melva.

*514 The trial court distinguished aggravated assault and torture in its charge to the jury. It defined aggravated assault as intending to, and succeeding in, causing severe physical pain in addition to death. It defined torture as intending to, and succeeding in, causing severe psychological pain.

In State v. Ramseur, supra, this Court narrowed the acts encompassed by aggravating factor c(4)(c). The Court explained that the “essence of the legislative concern is the defendant’s state of mind.” 106 N.J. at 207 , 524 A.2d 188 . “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____ [Tjhe 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 .

The State argues that defendant’s hatred of his wife and his desire to be rid of her support the inference that he intended to inflict pain on her. I believe that those facts are evidential of his motive to kill but are insufficient to raise the inference of intent to cause severe physical suffering in addition to death under c(4)(c). Dr. Gould’s testimony was read to the jury out of context in this regard, as his description concerned defendant’s general emotions toward his wife, not his mental state at the time of the crimes. Rather, the proofs that the State relied on showed that as the two had argued, defendant had picked up a hammer and repeatedly struck Melva in the head, intending her death; the blows were struck successively and quickly. Given the centrality of the actor’s intent under c(4)(c), there was insufficient evidence to submit that factor to the jury. See State v. Hunt, 115 N.J. 330, 388-89 , 558 A.2d 1259 (1989) (“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 defendant wanted the victim to know that he or she was about to be murdered”) (emphasis added).

*515 I do not believe that depravity as an element of c(4)(c) was appropriately charged or properly found regarding Kory. Defendant’s version of the events portrayed a heated argument in which defendant got extremely angry to the point where he picked up the hammer and blacked out during the killings. The State relies only on defendant’s indication that he did not know why he murdered Kory as proof that the killing had served no purpose. The trial court refused to strike the factor, explaining that the jury could conclude that the defendant murdered Kory for “no point ... at all.” The court submitted alternative factors: either that Kory had been killed to escape apprehension and prosecution, c(4)(f), or with depravity of mind, c(4)(c). The Court finds no error. Ante at 478, 585 A.2d at 894. What is indisputable is defendant’s actions are tied to strong emotional responses. I believe therefore that the State’s reliance on defendant’s claim that he did not know why he killed Kory is misplaced. Rational or normal people may be unable to fathom or divine any “reasons” for the killing but that does not make the killing “senseless.” It was not the type of sadistic or cold-blooded killing that generally marks a murder as totally devoid of any sense or reason in human experience. This killing arose out of an acute family crisis, and involved a spasmodic release of emotions. To the rational mind the killing may be inexplicable and senseless, but certainly there is no indication that defendant killed Kory randomly for “pleasure.” In Ramseur, supra, this Court defined depravity of mind as encompassing generally the killing of a helpless person “for no reason at all, just to kill.” 106 N.J. at 211 , 524 A.2d 188 . We further observed in State v. Matulewicz, 115 N.J. 191, 198 , 557 A.2d 1001 (1989), that the killing there was not the sort of “thrill killing or one that was bereft of anger or frustration or a recognizable human emotion” that is the essence of depravity. In my view, the “depravity” requirement of c(4)(e) was not met with respect to Kory’s killing.

I do not believe there was sufficient evidence to support the aggravating factors of c(4)(c) with respect to each of these *516 killings. Thus, the two death sentences must be reversed and the State should be barred from re-presenting this aggravating factor. See State v. Biegenwald, 106 N.J. 13, 51 , 524 A.2d 130 (1987).

V.

Defendant also contends that several instances of prosecutorial misconduct resulted in reversible prejudice. Two of those occurred in the State’s opening statement, in which the prosecutor said that although the State does not “seek vengeance” for the murder committed by defendant, “[i]t’s the law which demands what your fellow citizens expect and deserve, that justice be done for those murders which occurred one year ago today.” The prosecutor also asked the jury to consider defendant’s mitigation evidence and “see it for what it’s worth when weighed against the” harm done to Melva, Kory, and the “harm done to society.” He explained, “[y]ou will then clearly see what your responsibility is according to your oath, that ... the ultimate penalty must be paid by [this] defendant so that there can indeed be justice.” (Emphasis added).

In summation, there were other instances of prosecutorial misconduct. The prosecutor stated: “You, ladies and gentlemen, are not killers, as defense counsel would want you to believe. You are instruments of the law. If our law is to have any meaning, if the wishes and desires of your fellow citizens are to have any purpose, you as jurors must do what you promised to during that jury selection process.” (Emphasis added). The prosecutor also stressed “that our society views [multiple killings] with such horror, that it does indeed consider that a factor upon which the penalty of death [can], and indeed, as in this case should[] be imposed.” (Emphasis added).

This Court declared in State v. Ramseur, supra, 106 N.J. at 322, 524 A.2d 188 , that the jury cannot be invited to impose death to protect society or for other extraneous reasons, because that entreaty distracts them from their legitimate role— *517 evaluating and weighing the facts before them. In State v. Rose, supra, the Court concluded that the prosecutor had improperly emphasized the need to deter the defendant from committing future violent acts, and to send a message of “law and order” to the community; the remarks “focused the jury’s attention on matters extraneous to the aggravating and mitigating factors established by the Legislature to channel the jury’s deliberations in the penalty phase of a capital case.” 112 N.J. at 521, 548 A.2d 1058 . In addition, the Court found that the “emotional force” of those arguments engendered a significant possibility that the jurors had in fact been diverted, and therefore that the defendant’s rights had been prejudiced at the penalty phase. Ibid. The Court noted that such statements were both inaccurate and misleading, because the statute does not mandate death for capital murder but rather leaves the determination to the jury’s weighing of aggravating and mitigating factors. Ibid.

I strongly disagree with the Court’s assessment of the prosecutorial conduct in this case. The prosecutor focused on extraneous matters and did in effect dilute the jury’s sentencing responsibility. Although the prosecutor professed that the State was not seeking vengeance and that the aggravating factors are those things that the Legislature deemed relevant, he clearly implied that the death sentence would satisfy the demand for vengeance.

In Rose , the prosecutor also told the jurors that Rose should receive the death sentence “because that’s what the law says,” and that anything short of death would be a vote “against the law;” as “[t]he law cries out for a [death] verdict here.” 112 N.J. at 523, 548 A.2d 1058 . As in Rose , the prosecutor here strongly implied that the law required or expected a death sentence, although he couched the argument in terms of the demands of justice. He also argued indirectly that society should be protected from the future acts of this defendant by emphasizing that it was “harmed” when murders occur. Further, the comments in summation that the jurors must do what *518 they had “promised to do during ... jury selection” clearly refers to imposing the ultimate penalty, death.

We acknowledged in Rose that such commentary could seriously and adversely influence the defendant’s right to fairness at the penalty phase, and would thus warrant reversal of the death sentence. Id. at 524 , 548 A. 2d 1058 . This case requires the same result.

VI.

Defendant presented the testimony of numerous friends and relatives at the penalty phase. The first of those witnesses was Anthony Brown, a college friend and Kory’s godfather. Defense counsel sought to ask Brown if he had “any feelings ... about whether Leon Moore should be sentenced to death or sentenced to life,” but the court sustained an objection to the question. At sidebar, defense counsel argued that what people who knew defendant thought the punishment should be was relevant mitigating evidence. The trial court disagreed.

In Woodson v. North Carolina, 428 U.S. 280 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976), a plurality of the Supreme Court first explained that the eighth amendment mandated that the sentencer in a capital case be permitted to consider “the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Id. at 304 , 96 S.Ct. at 2991, 49 L.Ed.2d at 961. Indeed, the body determining sentence must have a means of expressing the impact that evidence has on its decision. Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982).

In Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), the Court reaffirmed the need for individualized penal decisions in capital cases, and declared that

the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor any aspect of a defendant’s character or record and any of *519 the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. [Id. at 604, 98 S.Ct. at 2964 , 57 L.Ed.2d at 990 (emphasis in original).]

Recently in Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed. 2d 256 (1989), the Supreme Court considered whether the eighth amendment was violated by the application of Texas’ capital statute to defendant Penry because the statute failed to provide a means for the jury to express the impact that the defendant’s mental retardation and background of abuse had on their sentencing decision. The Court found that the statute operated unconstitutionally, explaining:

“In contrast to the carefully defined standards that must narrow a sentencer’s discretion to impose the death sentence, the Constitution limits a State’s ability to narrow a sentencer’s discretion to consider relevant evidence that might cause it to decline to impose the death sentence.” McCleskey v. Kemp, 481 U.S. 279, 304 , 107 S.Ct. 1756 [1773], 95 L.Ed.2d 262 (1987) (emphasis in original). Indeed, it is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant’s character or record or the circumstances of the offense. Rather than creating the risk of an unguided emotional response, full consideration of evidence that mitigates against the death penalty is essential if the jury is to give a “ 'reasoned moral response to the defendant’s background, character, and crime.’” Franklin [v. Lynaugh], 487 U.S. at [184], 108 S.Ct. 2320 [at 2333, 101 L.Ed.2d 155 (1988) ] (opinion concurring in judgment) (quoting California v. Brown, 479 U.S. at 545, 93 L.Ed.2d 934 , 107 S.Ct. 837 [at 841 (1987)] (concurring opinion)). [ 492 U.S. at 327-28 , 109 S.Ct. at 2951 , 106 L.Ed.2d at 284 .]

This Court considered what was meant by “character evidence” in State v. Davis, 96 N.J. 611 , 477 A.2d 308 (1984). The defendant had sought to offer statistical data regarding the rehabilitative potential of similarly-situated defendants in mitigation of his punishment. The Court concluded that such statistical information could be helpful to the jury in assessing the likelihood that Davis would be rehabilitated, and was therefore relevant and admissible. Id. at 617 , 477 A.2d 308 . Rather than relying on constitutional grounds, the Court rested its holding on “state statutory grounds,” finding that the term “character” contained in N.J.S.A. 2C:ll-3c(5)(h) “embrac[ed] those individual qualities that distinguish a particular person.” Id. at 618 , 477 A.2d 308 . To the extent that the statistical data *520 could provide a frame of reference for the jury’s consideration of defendant’s character, the Court found it within the language of mitigating factor c(5)(h).

The Court went further, discussing the generally broad perception of relevance, and also “acknowledged that in the sentencing phase of a capital proceeding — a life or death contest — a defendant is entitled to the use of all reliable, helpful information.” Id. at 619 , 477 A.2d 308 . The Court drew an analogy to the sentencing function of the judge in noncapital cases, and the relaxation of evidentiary rules so that the court may exercise “far-ranging discretion as to the sources and types of evidence used to assist him or her in determining the kind and extent of punishment to be imposed.” Id. at 620 , 477 A.2d 308 (citing Williams v. New York, 337 U.S. 241 , 69 S.Ct. 1079 , 93 L.Ed. 1337 (1949)). “In short, the sentencing process should embrace an evidential inquiry ‘broad in scope, largely unlimited either as to the kind of information that may be considered, or the source from which it may come.’ ” Ibid. (citation omitted). The only limitation expressly placed on this wide-open evidentiary ruling occurred when the trial court found the proffered evidence “in whole or in part, [is such that] its probative value is substantially outweighed by its unfounded or speculative character and the risk of confusion of the essential issues.” Id. at 624, 477 A.2d 308 . The Court “ascribed” to the Legislature full appreciation of the similarity of a capital jury’s function, and held that “ ‘so long as the evidence [introduced at a capital sentencing hearing] ... does not prejudice a defendant, it is preferable not to impose restrictions.’ ” Ibid. (quoting Zant v. Stephens, 462 U.S. 862, 886-87 , 103 S.Ct. 2733, 2747-48 , 77 L.Ed.2d 235, 256 (1983) (citation omitted)).

In this case, the Court has determined that the testimony was properly excluded. It “decline[s] to extend the ‘narrowly-defined right’ of allocution accorded the capital defendant [citation omitted] to allow witnesses to plead for mercy.” Ante at 478-480, 585 A.2d at 894. I strongly disagree. In one sense, testimony offered for this purpose should be seen as similar to *521 a defendant’s own right of allocution, compelled by the need for the jury to make an individualized judgment. See State v. Zola, supra, 112 N.J. at 428-32, 548 A.2d 1022 . In another, the opinions of those who know the defendant best regarding whether he or she should be put to death for his or her crimes is probative of a defendant’s character. Such opinion evidence is either mandatory under Woodson and later cases, or admissible under the broad parameters of relevant evidence discussed in Davis .

In addition, a defendant confronting the death penalty should not for purposes of punishment be placed in a less advantageous position than a defendant convicted of a noncapital crime. See, e.g., State v. Kiett, 121 N.J. 483 , 582 A.2d 630 (1990) (Handler, J., concurring in part and dissenting in part). In an ordinary criminal proceeding, we impose almost no limitations on the evidence and information that can be furnished to the sentencing judge, including pleas for leniency or mercy made on behalf of the defendant. It is a cruel irony that a defendant facing the prospect of the ultimate punishment that can be exacted by society is powerless to ask for mercy.

In sum, I believe that barring these witnesses’ opinions on whether the defendant should be put to death violates the principle that the sentencer consider all mitigating evidence relevant to a defendant’s character. In view of the broad range of evidentiary material necessary to make an individualized decision concerning punishment, such pleas for mercy are appropriate. They may even be helpful to the jury in assessing the credibility or bias of defendant’s character witnesses. I do not see any potential harm to the competing principle of uniformity.

VII.

I concur in the judgment of the Court, which reverses the capital-murder convictions and the death sentences. I dissent in part for the reasons expressed in this and other opinions to *522 the extent that the Court continues to hold that a capital-murder prosecution under our statute is constitutional and that other grounds, present in this case, do not also require reversals.

For reversal and remandment — Chief Justice WILENTZ, and Justices CLIFFORD, POLLOCK, O’HERN, GARIBALDI and STEIN — 6.

Dissenting in part; concurring in part — Justice HANDLER — 1.

The prosecutor made these remarks:

[D]efendant stands before you convicted of the purposeful murder of “his pregnant wife”; defendant’s hate and self interest led him to murder his "pregnant wife” to move out; he murdered his "pregnant wife" because he wanted his girlfriend to move in; defendant is a man who murdered his “pregnant wife” and son for no reason; weigh mitigating evidence against the harm done to his “pregnant wife”; defendant hated his "pregnant wife”; he answered the phone while his son and "pregnant wife” lay dead; defendant sought to have "his wife, pregnant, move out”; defendant wanted to inflict pain on a pregnant woman; “So here is this woman, trying to protect herself, pregnant ..defendant caused Melva mental pain because she knew her fetus would not survive; consider the harm done to that "pregnant woman".