State v. Bey

548 A.2d 887, 112 N.J. 123, 1988 N.J. LEXIS 82

Opinions

The opinion of the Court was delivered by

POLLOCK, J.

Defendant was convicted of capital murder and sentenced to death. He appealed of right, R. 2:2-1(a)(3), challenging both the guilt and sentencing proceedings. We find no reversible error in the proceedings leading to the verdict that defendant committed capital murder and related offenses. In light of the recent decision of the United States Supreme Court in Mills v. Maryland, — US. -, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), however, we find that the trial court erred in its charge at the penalty phase by requiring that the jury be unanimous in finding mitigating factors. For this and other reasons, we reverse the imposition of the death penalty and remand the matter to the Law Division for a new sentencing proceeding.

I

On April 26, 1983, around 9:20 p.m., Carol Peniston left Neptune High School, where she had attended a computer course, and drove away in her Ford Granada. Ms. Peniston, who was divorced and living alone, neither returned to her apartment nor reported to work the next day.

A week later, on May 3, her former husband, a lieutenant in the Neptune Police Department, received a letter from the Newark Police Department addressed to “Mr. Carol Peniston.” The letter advised that Ms. Peniston’s car had been involved in an accident the preceding week and that the car had been impounded. Lieutenant Peniston informed the Neptune Police Department, which, in turn, notified the Asbury Park Police Department. Subsequent investigation revealed.that the car had been involved in a one-car collision in Newark at 1:46 a.m. on April 26, 1983, approximately four hours after Ms. Peniston left Neptune High School. The defendant’s fingerprints were on the rear view mirror.

At approximately 3:30 p.m. on May 3, Asbury Park police interviewed Attilio Robot, who had found Ms. Peniston’s pocketbook near an old industrial building in Asbury Park. Shortly thereafter, the police discovered her body in a shed near the building. An autopsy performed the following day, May 4, disclosed that Ms. Peniston had been dead for several days. The autopsy further disclosed that she had been beaten, sexually assaulted, and strangled. From a sneaker imprint on her chest and from evidence of fractured ribs and hemorrhaging of the right lung, vertebral column, and right atrium of the heart, Dr. Stanley Becker, the Monmouth County medical examiner, concluded that Ms. Peniston’s assailant had stomped on her chest. Dr. Becker determined that the ultimate cause of death, however, was ligature strangulation. Subsequent police investigation revealed that characteristics of spermatozoa found on the victim’s coat were consistent with those of defendant’s saliva, and that defendant’s sneakers made an imprint that was similar to the impression on the victim’s chest.

On May 6, Detective Musiello of the Asbury Park Police Department signed a complaint against defendant charging him with receiving stolen property, Ms. Peniston’s Ford Granada. Later that day, at approximately 5:15 p.m., five law enforcement officials from Neptune, Asbury Park, and the Monmouth County Prosecutor’s Office arrested defendant at his home in Neptune. They handcuffed defendant and took him to the Asbury Park police headquarters, and at approximately 5:35 p.m. placed him in the custody of Detective Musiello and Investigator George of the Monmouth County Prosecutor’s Office.

Defendant was placed in an office at police headquarters and given a copy of the complaint. Detective Musiello read to defendant a Miranda warning card, and defendant signed an acknowledgment on the reverse side indicating that he had been advised of those rights. When asked if he wished to see anyone, defendant declined. He was then interrogated concerning his possession of the victim’s automobile, during which interrogation he gave conflicting accounts of his activities. The State asserts, but defendant denies, that he was asked at 6:00 p.m. whether he wanted something to drink or to go to the bathroom. About 6:30 p.m., at his request, defendant was given a soda. While he was drinking the soda, defendant stated: “No matter what I say I’m going to be charged with this offense,” a statement that referred, according to the State, to the automobile theft charge. The interrogation continued until 7:15 p.m., when defendant was given time to eat dinner. The questioning resumed twenty minutes later at 7:35 p.m., and lasted until 8:20 p.m., when defendant went to the bathroom and was given cigarettes and a soda. On defendant’s return to the interrogation room, defendant and Investigator George, the interrogating officer, sat in silence for five minutes. Defendant asserts that during this time he may have been crying.

The trial court found that five minutes later, at 8:30 p.m., defendant said he wanted to lie down so that he could think about what happened. Defendant did not expressly state that the questioning should end. Although the brief in support of defendant’s motion to suppress stated that his request to lie down constituted an invocation of his right to remain silent, defendant did not urge that point at the Miranda hearing. In fact at that hearing defendant testified that it was the police who asked whether defendant wanted to lie down.

In any event, defendant was placed in the Asbury Park municipal jail for about one hour. When he returned to the detective bureau at approximately 9:30 p.m., he was not given a new set of Miranda warnings, but was asked if he wished to communicate with anyone. He declined. Questioning resumed and continued until about 10:05 p.m., when defendant confessed to the crime. Approximately fifty minutes later, defendant was again read his Miranda rights, which he waived. He then gave a written statement, in which he admitted that he accosted Ms. Peniston in front of her apartment building and demanded money from her. The statement continued that when he heard someone coming, he grabbed her and led her to the shed. In the ensuing events, he repeatedly struck Ms. Peniston, sexually assaulted her, and took eight dollars as well as the car keys from her pocketbook. While on his way to Newark in her car, he collided with an iron fence alongside a graveyard, and abandoned the car.

II

GUILT PHASE

On July 6, defendant was indicted for murder, contrary to N.J.S.A. 2C:11-3a(1) and (2); felony murder, contrary to N.J. S.A. 2C:11-3a(3); kidnapping, contrary to N.J.S.A. 2C:13-1b(1) and (2); aggravated assault, contrary to N.J.S.A. 2C:12—1b(1); aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(3) and (6); robbery, contrary to N.J.S.A. 2C:15-1a(1), (2) and (3); and theft, contrary to N.J.S.A. 2C:20-3a.

In response, defendant made numerous pre-trial motions, including an unsuccessful one to suppress his oral and written statements obtained during the custodial interrogation on the night of the arrest. He contends that the confessions are inadmissible because he did not knowingly and intelligently waive his Miranda rights, that the confessions were not voluntary, and that the police failed scrupulously to honor his right to end the interrogation. We disagree.

A. Defendant’s Confession

As a result of the suppression hearing, the trial court found that defendant was properly advised and understood his “Miranda rights,” that defendant voluntarily waived those rights, and that he signed the waiver card. The court, however, did not expressly find whether defendant’s request to lie down constituted a request to terminate questioning. At the conclusion of the hearing, the court ruled that the oral and written confessions were admissible. We agree.

To be valid, a waiver must be made “voluntarily, knowingly, and intelligently.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 707 (1966). The state bears the burden of proof. Id. at 475, 86 S. Ct. at 1628, 16 L.Ed.2d at 724. Although the United States Supreme Court has held that the state must prove admissibility of a confession by only a preponderance of the evidence, Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 523, 93 L.Ed.2d 473, 485 (1986), this Court has held that the State must prove admissibility beyond a reasonable doubt, State v. Miller, 76 N.J. 392, 404-05 (1978). Here, we are persuaded beyond a reasonable doubt that the State has met its burden.

In determining the voluntariness of a confession, courts consider the characteristics of the accused, as well as the details of the interrogation. Schneckloth v. Bustamante, 412 US. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854, 862 (1973). Relevant factors include the defendant’s age, education, intelligence, advice concerning his constitutional rights, length of detention, and the nature of the questioning — specifically, whether the questioning was repeated and prolonged and whether it involved physical punishment or mental exhaustion. Id.; State v. Miller, supra, 76 N.J. at 402.

In the present case, defendant attained the age of eighteen two weeks before the interrogation. Although young, he had an extensive record of delinquency, which included convictions for robbery, assault, and sexual contact. On the night of his arrest, he was in custody at the police station for approximately nine hours. Altogether he was interrogated for three hours and five minutes before he confessed. During that time, he was offered food, beverages, cigarettes, and the opportunity to rest. The record reveals no evidence of any physical or mental coercion. Defendant was advised of his rights twice during the course of the interrogation, and declined to avail himself of the offer to communicate with an attorney or anyone else. Under these circumstances, we conclude that the trial court correctly found that defendant voluntarily gave his oral and written statements.

Defendant also argues that the police failed to “scrupulously honor” his invocation of the right to terminate questioning, 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). He claims that his request to lie down and “think about what happened” was an invocation of his right to cut off questioning, and that the police failed to “scrupulously honor” his right by resuming interrogation without reissuing the Miranda warning after his one hour of rest. Although defendant alluded to this issue in the brief in support of his motion to suppress, his counsel did not press the point at the Miranda hearing. Instead, defendant claimed at that hearing that the confession, because of his youth and fatigue, was extracted involuntarily. He testified that he did not ask for anything during the interrogation at police headquarters and that “the question [whether he wanted to lie down] was asked me.” We find that the request did not constitute an invocation of the right to remain silent and, therefore, that the police did not violate that right.

In Miranda, the United States Supreme Court held that interrogation must cease if the defendant indicates that he wishes to remain silent. 384 U.S. at 473-74, 86 S.Ct. at 1627, 16 L.Ed.2d at 723. The Court left open the issue “under what circumstances, if any, the authorities may resume interrogation” after the defendant asserts the right to remain silent. State v. Hartley, supra, 103 N.J. at 263. Subsequently, in Michigan v. Mosley, supra, 423 U.S. at 104, 96 S. Ct. at 326, 46 L.Ed. 2d at 321, the Court held that “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.’ ” In this regard, the Miranda Court held 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. Similarly, we have stated:

[W]here 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. State v. Wright, 97 N.J. 113, 120 n. 4 (1984) (quoting United States v. Riggs, 537 F.2A 1219, 1222 (4th Cir.1976)).]

Any words or conduct that reasonably appear to be inconsistent with defendant’s willingness to discuss his case with the police are tantamount to an invocation of the privilege against self-incrimination. Law enforcement officials, however, are not obliged to accept any words or conduct, no matter how ambiguous, as a conclusive indication that a suspect desires to termi nate questioning. State v. LaChappell, 222 Neb. 112, 382 N.W.2d 343, 348 (1986) (statement that “[the polygraph] test was over” was at best “ambiguous,” and trial court resolved ambiguity against defendant); see also Nashoalook v. State, 663 P.2d 975, 978 (Alaska App.1983) (“ambiguous or equivocal responses following Miranda warnings do not suffice to constitute an assertion by the accused of his constitutional right to silence”); State v. Hicks, 133 Ariz. 64, 649 P.2d 267, 277 (1982) (defendant’s rambling statement in response to detective’s statement that he was willing to end interrogation showed that defendant had not exercised his right to terminate questioning); Watson v. State, 715 S.W.2d 864, 873 (Tex.App.1986) (when defendant made oral statement after remaining silent when Miranda warnings were administered four times, his prior silence did not sufficiently indicate an invocation of his rights). When the defendant’s statement or conduct do not indicate that he is invoking his right to silence, that statement or conduct does not constitute an invocation of the right. See, e.g., Taylor v. Riddle, 563 F.2d 133, 137 (4th Cir.1977) (sustaining trial court finding that defendant’s statement, “[y]ou’ve done asked me a question I can’t answer,” was not an invocation of the right to remain silent), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 768 (1978); State v. LaChappell, supra, 382 N.W.2d at 348 (trial court properly found that the defendant’s statement, “the test was over,” was not an invocation of the right to cut off questioning); State v. Robbins, 319 N.C. 465, 356 S.E.2d 279, 298 (1987) (defendant’s statement, “I told you everything I know,” was not an indication of his desire that all questioning cease); State v. Fincher, 309 N.C. 1, 305 S.E.2d 685, 694 (1983) (defendant held not to have invoked right to remain silent when he refused to give a second written statement until after his co-defendant told the truth, but agreed to answer after an officer asked if he could ask “another question.”). But see United States v. Hernandez, 574 F.2d 1362, 1368 & n. 9 (5th Cir.1978) (defendant who was arrested, placed in a police van, and interrogated three or four times by two officers in the presence of each other, invoked his right to remain silent when he repeatedly refused to cooperate with attempts to elicit incriminating statements); People v. Nicholas, 112 Cal.App.3d 249, 268, 169 Cal.Rptr. 497, 507 (1980) (when defendant said he did not want to discuss matter but three officers repeatedly questioned him to “wear down his will,” defendant’s request to turn off tape recorder for assurances of privacy constituted an invocation of rights); People v. Williams, 93 Cal.App.3d 40, 62, 155 Cal.Rptr. 414, 426 (1979) (defendant’s statement that he was confused and did not know what to do or say was an invocation of the right to remain silent); Law v. State, 21 Md.App. 13, 318 A.2d 859, 873 (1974) (wounded defendant’s statement while handcuffed to a bed and being treated at hospital that he did not want to talk any more until he was further treated constituted an invocation of the right to cut off questioning); Phillips v. State, 701 S.W.2d 875 (Tex.Crim.App. 1985), cert. denied, 477 U.S. 909, 106 S.Ct. 3285, 91 L.Ed.2d 574 (1986) (in affirming conviction for murder, court found defendant’s statement that he “wanted a little time to think about the matter” to be an invocation of the right to remain silent, but that the State had scrupulously honored that right); State v. Rissler, 165 W.Va. 640, 270 S.E.2d 778 (1980) (statement that “if I give you a statement now, I won’t have no shot,” which interrogating officer understood to be a statement that defendant probably did not want to make a statement, was an invocation of rights). In the present case, the question thus becomes whether defendant’s request to lie down and think about what happened constituted an invocation of his right to terminate questioning.

Defendant merely communicated his desire to spend some time thinking about the events that were the subject of the interrogation. He did not ask for an attorney or refuse to sign a waiver of his rights. Similarly, he did not refuse to continue the questioning, and did not indicate in any manner that he wanted to end the interrogation. Not every break in questioning compels renewed administration of the Miranda warnings. Otherwise, police would be obliged to administer those warnings each time a defendant requested or was offered something to eat or drink, the use of toilet facilities, the opportunity to stand and stretch, or, as here, time to lie down.

Consistent with his position at the suppression hearing, defendant testified:

Q. About 8:30 did you request to go lay down and think about what had happened?

A. Right. I wasn’t saying nothing, and the question was asked me, and I said yeah. I was taken to a cell, but the question was asked me. I did go lay down. But the question was asked me. The only thing I asked for when I was in there was the phone call and cigarettes. I didn’t ask for nothing else, nothing to eat or no soda or nothing.

Defendant’s factual and legal posture at the suppression hearing affects both the testimony of Detective Musiello and the finding of the trial court, on which defendant now relief. Detective Musiello testified:

Q. Directing your attention to about 8:30 or so that evening, can you describe the circumstances of what happened?

A. Yes. At the request of Mr. Bey, he asked if he would be able to think about it and lay down. We told him that we would put him in the cell and come back say in an hour to pick him up and bring him back in an hour, which we did. Q. That was Mr. Bey’s request, to lay down and think about it?

A. Yes.

The court found that “[a]t 8:30 p.m. the defendant requested permission to lay down and to think about what happened. He was placed in a cell. 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.” Perhaps because defendant did not assert at the suppression hearing that his request constituted an invocation of his right to remain silent, the trial court did not specifically address that issue. Arguably, the trial court’s decision could be construed as finding that defendant had not invoked the right to remain silent. The court found both that defendant had requested to lie down and that defendant’s statement was voluntary. Implicit in those findings is the conclusion that defendant had not sought the cessation of questioning. Our reading of the record, how ever, leads us to believe we come closer to the truth by recognizing that the trial court did not decide the issue because the defendant did not raise it at the hearing.

Although the State bears the burden of establishing beyond a reasonable doubt the voluntariness of the confession, State v. Yough, 49 N.J. 587 (1967), defendant must at least claim that he invoked the right of silence for the trial court to adjudicate that claim. See State v. Johnson, 218 N.J.Super. 290, 303-06 (App.Div.), cert. granted and remanded summarily, 108 N.J. 674 (1987); Wharton’s Criminal Procedure § 361 (1975). Here, defendant did not assert at the hearing on the motion to suppress his confession to the murder of Carol Peniston, which was held in conjunction with a motion to suppress his confession to the murder of Cheryl Alston at the outset of the trial of State v. Bey (I), 112 N.J. 45 (1988), the right that now forms the basis for the attack on his confession. Defendant’s silence explains why the trial court did not explicitly address the issue. If we believed that defendant had invoked, no matter how ambiguously his right to remain silent, we would not hesitate to grant his request or to remand the matter to the trial court. Defendant’s failure to assert his claim at the hearing has not, as the dissenting opinion suggests, prevented us from reviewing that claim on appeal. His failure, however, explains the absence of an express finding by the trial court. Notwithstanding the failure to address the issue at the trial level, defendant has raised the claim before us. After reviewing that claim, we find it wanting.

We are confronted with a record that has grown cold with the passage of years. Little purpose would be served by a remand at this late date, and we are obliged to decide the matter in the exercise of our original jurisdiction. R. 2:10-5. Looking at all the circumstances, the record, cold as it is, supports beyond peradventure the conclusion that this defendant did not intend to cut off questioning and remain silent. At the police station, defendant did not refuse to answer questions about the Peniston murder. His posture in that regard stands in sharp contrast to his later refusal to discuss the murder of Cheryl Alston. As Investigator George testified at the suppression hearing on defendant’s confession to the Alston murder, at the outset, defendant “indicated he did not want to talk to us about it.” Bey I, supra, 112 N.J. at 53 (1988). Defendant’s subsequent assertion of his constitutional right to terminate questioning about another murder does not invalidate his earlier voluntary confession to the murder of Carol Peniston.

With respect to the Peniston murder, a remand at this late date would not illuminate the record or serve any other useful purpose. We are remitted to scrutinizing the record and reviewing defendant’s statement in light of the surrounding circumstances. That scrutiny leads us to conclude that only in some abstract sense apart from the facts of the case, see W. LeFave & J. Israel, Criminal Procedure § 6.9, at 531 (1984), could defendant’s statement be construed as an assertion of the right to remain silent. The police did not construe defendant’s request to lie down as an assertion of his right to remain silent, and we do not perceive how any reasonable police officer could have so construed that request. Defendant’s Miranda hearing took place several years after the United States Supreme Court ruled that interrogating police officers should scrupulously honor a defendant’s assertion of his right to silence. See Michigan v. Mosley, supra, 423 U.S. at 103-04, 96 S.Ct. at 326, 45 L.Ed.2d at 321. As previously indicated, however, defendant did not contend at his hearing that the challenged statement was a violation of his right to remain silent. Instead, defendant denied seeking permission to lie down, and asserted instead that it was the police who asked him if he wished to “lie down and think about it.” Ironically, defendant’s own testimony repudiates the argument he now asserts before us. In this context, the trial court’s finding that the defendant asked “to lay down and think about it” was not so much the resolution of a materially disputed issue as it was a comment leading to the conclusion that the confession was voluntary. Only by misreading the record can our dissenting colleagues conclude that the defendant was asserting his right to remain silent.

In finding that defendant’s statement cannot reasonably be construed as an invocation of his constitutional rights, we do not retreat from our prior pronouncement that “a request, ‘however ambiguous,’ to terminate questioning or to have counsel present must be diligently honored.” State v. Hartley, supra, 103 N.J. at 263 (quoting State v. Kennedy, 97 N.J. 278 (1984)). Our conclusion reaches no further than finding that under the circumstances of this case defendant’s statement did not constitute an invocation of his right to remain silent. That is how defendant and his counsel viewed the issue at the Miranda hearing, and it is how we view the issue now.

Focusing on the issues that were raised at the hearing, the trial court found: “This defendant was advised of his Miranda warnings prior to giving the statement. That he understood his Miranda warnings. That he signed the Miranda card voluntarily and that he voluntarily waived * * * his rights under Miranda.” Substantial evidence in the record supports the findings of the trial court, and we decline to disturb them. R. 2:10-1; State v. Johnson, 42 N.J. 146, 162 (1964). Consequently, we hold that the trial court properly found admissible evidence of defendant’s oral and written confessions.

Our dissenting colleague Justice Handler concludes that defendant’s request to lie down was tantamount to the invocation of his constitutional right against self-incrimination under Miranda. Post at 205-214. Justice Handler reaches that result without reference to the enhanced standard of review he would apply to capital cases. Post at 190, 214. We find, however, even after conducting a meticulous review of the record, which Justice Handler incorporates into his enhanced standard, Bey I, supra, 112 N.J. at 92-93, that defendant did not invoke his right to remain silent.

In reaching that result, we distinguish defendant’s confession in the present case, which we find to be admissible, from his confession to the Alston murder, which we have found to be inadmissible. The different results are not attributable, as the dissent in Bey I contends, to a heightened standard of review. Instead, the inadmissibility of defendant’s confession to the Alston murder follows from his unambiguous assertion to the law enforcement officials that “he did not want to talk to us about it * * That assertion of his right not to answer questions is a far cry from defendant’s posture when he confessed to the Peniston murder. In this case, he received two sets of Miranda warnings, and did not contend at the Miranda hearing that he had invoked his right to remain silent.

B. The Trial

At trial, the State produced twelve witnesses, who established generally the above-described facts. The defendant testified in the guilt phase of the trial that beginning approximately four and one-half hours before the incident and continuing until' shortly before he first saw Carol Peniston, he consumed one hundred and twenty ounces of malt liquor, some straight rum, and smoked a considerable quantity of marijuana. Referring to the incident itself, he admitted to killing Ms. Peniston, but stated he did not know why he did it, and acknowledged that it never should have happened. Defendant’s in-eourt admission was amply corroborated by his fingerprints in the victim’s car, the print of his sneakers on the victim’s chest, his sperm on her coat, and other evidence. He explained that he became scared when he saw Ms. Peniston looking at him as he went through her pocketbook. He struck and sexually assaulted her, but did not recall stepping on her chest. The only thing he remembered was that once Ms. Peniston saw his face, “that’s when I started hitting her, it just went too far, something that shouldn’t have went on.” The jury returned a verdict'convicting defendant of all offenses, including purposeful or knowing murder and felony murder.

C. Intoxication

Defendant contends that the trial court committed reversible error in charging the jury on the defense of intoxication. In this regard, the trial court charged:

There has been testimony in this case that indicates that [sic] the use of a drug and the consumption of alcoholic beverages by the defendant prior to the time he is alleged to have committed the murder charged. This testimony was received in evidence as bearing on the question of whether the use of drugs and the consumption of alcoholic beverages by the defendant, Marko Bey, can reduce purposeful or knowing murder to aggravated manslaughter or reckless manslaughter * * *.

If you find * * * that as a result of [alcohol and drug] consumption he was incapable of performing the mental operations that are required for murder, then the defendant could not be found guilty of murder. But the influence of liquor and/or drugs no matter how persuasive * * * is not a defense to the crime of aggravated manslaughter and, therefore, has no bearing on the guilt or innocence of the defendant for that crime.

Defendant did not object to the charge at trial, but now urges that the court failed to make clear that the jury could have found defendant guilty of manslaughter or aggravated manslaughter. His argument is that intoxication is not a defense to a crime such as manslaughter, which requires proof that defendant consciously disregarded “a substantial and justifiable risk,” N.J.S.A. 2C:2-2b(3), or to aggravated manslaughter, which requires proof that the defendant caused the victim’s death “under circumstances manifesting extreme indifference to human life,” N.J.S.A. 2C:11-4a. In support of that argument, defendant points to State v. Warren, 104 N.J. 571 (1986), in which we ruled that “defendant’s conduct is to be measured by an objective standard without regard to his intoxication, and defendant is judged not in his claimed state of intoxication, but as if he were sober.” Id. at 577. Warren drew upon N.J.S.A. 2C:2-8b, which states that when recklessness is an element of a crime, if intoxication renders defendant “unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.” Intoxication, however, is a defense to a crime such as capital murder, N.J.S.A. 2C:11-3a(1) and (2), which requires knowing or purposeful conduct. To constitute a defense, the intoxication must be sufficient to render defendant incapable of such conduct. State v. Cameron, 104 N.J. 42 (1986); N.J.S.A. 2C:2-8.

As we stated in Warren,

[a] voluntary drunk may be found guilty of manslaughter, notwithstanding his unawareness ‘of a risk of which he would have been aware had he been sober * * N.J.S.A. 2C:2-8. Thus, the defendant who is so drunk that he cannot be found guilty of murder may still be found guilty of aggravated manslaughter or manslaughter. [104 N.J. at 577.]

The net result is that intoxication is not a defense to a crime predicated on recklessness, and a defendant who was so intoxicated that he cannot be found guilty of capital murder can still be found guilty of manslaughter or aggravated manslaughter. Accordingly, defendant argues that the charge deprived the jury of the option of finding him guilty of manslaughter or aggravated manslaughter. As indicated, defendant did not object to the charge, and State v. Warren had not been decided at the time of the trial. Consequently, the issue is raised as a matter of plain error. Although the charge might have been more explicit, the trial court stated with reference to intoxication, “[b]ut the influence of liquor and/or drugs no matter how persuasive * * * is not a defense to the crime of aggravated manslaughter and, therefore, has no bearing on the guilt or innocence of the defendant for that crime.” Thus the trial court made clear that even if defendant’s claimed intoxication negated knowing or purposeful murder, it had “no bearing” on defendant’s culpability for aggravated manslaughter. Although the trial court did not specifically mention manslaughter, we cannot say that the charge constituted plain error. State v. Macon, 57 N.J. 325 (1971); R. 2:10-2. We do not believe that the charge “is of such a nature as to have been clearly capable of producing an unjust result.” R. 2:10-2.

Ill

SENTENCING

On September 28,1984, the trial court conducted a sentencing proceeding in which the State sought to prove two aggravating factors. First, that the murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim, N.J.S.A. 20:11-3c(4)(c); and second, that the murder was committed during the commission of, or an attempt to commit, or flight after committing, sexual assault or robbery, N.J.S.A. 2C:11-3c(4)(g). The State relied substantially on evidence adduced at the guilt phase of the trial, and also introduced photographs and slides to establish that the murder involved torture or an aggravated battery on Ms. Peniston.

Defendant sought to prove four mitigating factors: first, that he was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution, N.J.S.A. 2C:11-3c(5)(a); second, that he was eighteen years old at the time of the murder, N.J.S.A. 2C:11-3c(5)(c); third, that his capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was significantly impaired as a result of intoxication, but not to a degree sufficient to constitute a defense to prosecution, N.J.S.A. 2C:11-3c(5)(d); and fourth, any other factors, including his childhood and upbringing, that would be relevant to his character or record or to the circumstances of the offense, N.J.S.A. 2C:11-3c(5)(h).

In support of those contentions, defendant presented four witnesses, the first of whom was a sociologist who testified without objection as an expert that the death penalty did not act as a deterrent to other potential murderers. In State v. Davis, 96 N.J. 611 (1984), we ruled that defendant should be given wide latitude on the introduction of testimony in support of mitigating factors. Notwithstanding that pronouncement, we fail to see the relevance of testimony directed to the deterrent effect of the death penalty. For example, the testimony does not relate “to the defendant’s character or record or to the circumstances of the offense.” N.J.S.A. 2C:11-3c(5). Whether or not the death penalty acts as a deterrent is both controversial and problematic. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); compare T. Sellin, The Penalty of Death 132, 171-72 (1980) (comparison of homicide death rates in different states “yield[ed] no support for the belief in the deterrent power of the death penalty”) with Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 American Economic Rev. 397 (1975) (concluding that there was a significant negative correlation between the probability of execution and the murder rate, thus suggesting a deterrent effect). The National Academy of Science has concluded

that there is currently no evidence for determining whether or not it does have a deterrent effect. Furthermore, we are skeptical that the death penalty, so long as it is used relatively rarely, can ever be subjected to the kind of statistical analysis that would validly establish the presence or absence of a deterrent effect. [Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on the Crime Rate (A. Blumstein, J. Cohen, and D. Nagin 1978).]

Balancing deterrence against countervailing considerations remains, however, primarily a legislative decision. Here, the sociologist was allowed to testify without objection about the deterrent effect of the death penalty. Such testimony ordinarily is inadmissible because it diverts “the jurors’ attention from the facts of the case before them.” State v. Ramseur, 106 N.J. 123, 322 (1987).

Defendant’s aunt testified about defendant’s parents and childhood, stating that defendant was an illegitimate child whose father rejected him and whose mother, the sister of the witness, became an alcoholic and abused defendant. According to his aunt, when defendant was fourteen years old, he began to drink alcoholic beverages and use drugs. He overdosed on alcohol and marijuana, and was hospitalized twice. Defendant’s mother confirmed her sister’s testimony and placed the blame for her son’s conduct on herself. Defendant testified on his own behalf, apologized to Ms. Peniston’s family, and stated that “maybe if I never would have taken drugs it would never have happened.”

At the conclusion of the sentencing phase, the court charged, in relevant part:

If you find that at least one aggravating factor has been proved and at least one mitigating factor exists, then you must weigh the value represented by the mitigating factor or factors against the value represented by each aggravating factor proved. And check on the verdict form whether in your judgment each aggravating factor is or is not outweighed by the mitigating factor or factors found to exist.

Unless each aggravating factor proved is outweighed by the mitigating factor or factors, the sentence will be death. If each aggravating factor is outweighed by the mitigating factor or factors, the sentence will be life imprisonment with a parole ineligibility term of 30 years.

The weighing process is not mechanical or numerical. If, for example, you find one aggravating factor and three mitigating factors, that does not justify an automatic answer to the weighing process required by you. The answer does depend on your careful and considered judgment as to whether the mitigating factors as you evaluate them favor the defendant to the extent that they outweigh the gravity of the aggravating factor.

Unless each aggravating factor proved is outweighed by the mitigating factor or factors, the sentence will be death. If each aggravating factor is outweighed by the mitigating factor or factors, then you must consider whether all of the aggravating factors collectively are outweighed by the mitigating factors.

You must check yes or no. Check no only if you find that the mitigating factors do not outweigh the aggravating factors. If the mitigating factors do not outweigh the aggravating factors, the sentence will be death.

Since this is a criminal case your verdict must be unanimous, all 12 jurors deliberating must agree as to the existence or non-existence of particular aggravating or mitigating factors. And you must all agree as to whether the mitigating factors outweigh the aggravating factors.

Defense counsel objected to that part of the charge that required the jury to be unanimous in finding the existence of a mitigating factor. After noting this objection, the court read the special verdict form that the jury was to use in its deliberations:

AGGRAVATING FACTORS

Do you unanimously find beyond a reasonable doubt that any of the following aggravating factors exist? (Check appropriate answer.)

1. That this murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim? Yes_No_

2. That this murder was committed while the defendant was engaged in the commission of or an attempt to commit sexual assault and/or robbery? Yes _No_

If all of the above are cheeked “no,” proceed no further but return this verdict sheet to the Court as your verdict in the case signed by your foreperson.

MITIGATING FACTORS

Do you unanimously find that any of the following mitigating factors exist? (Check appropriate answer.)

1. That the defendant, Marko Bey, was at the time of the offense, under the influence of extreme emotional disturbance, although that disturbance was insufficient to constitute a defense to the prosecution? Yes _ No _

2. That the defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of intoxication but not to a degree sufficient to constitute a defense to the prosecution? Yes_No_

3. The defendant’s age at the time of the murder? He was eighteen years old. Yes_No_

4. Any other factor which you find relevant to the defendant’s character or record or to the circumstances of the offense? Yes_No_

If you have checked at least one aggravating factor “yes” and have checked all of the above mitigating factors “no” proceed no further but return this verdict sheet to the Court as your verdict in the case.

If you have checked one or more aggravating factors "yes” and one or more mitigating factors “yes,” then state as to each aggravating factor checked “yes” whether it is or is not outweighed by any one or more of the mitigating factors checked “yes.” This decision also must be unanimous. If an aggravating factor is found and not outweighed by a mitigating factor or factors, the penalty will be death.

The jury retired at 4:22 p.m. and returned at 5:15 p.m. It found that both aggravating factors, but none of the four mitigating factors, existed. Pursuant to the trial court’s instructions, the jury made no further findings. The court stated that the verdict would be that the defendant would be sentenced to death, and polled each juror to confirm the verdict.

A. Jury Selection Issues

1. Death Qualification

Preliminarily, we address several jury selection issues. Defendant contends that the death qualification process, which required each potential juror to express his or her ability to return a death sentence prior to the guilt phase of defendant’s trial, violated his right to an impartial jury as such a process results in a jury that is more “conviction-prone” than non-death qualified juries. His point is that jurors should be asked their views on capital punishment only after a murder conviction and prior to the sentencing phase. We rejected this contention in Ramseur, supra, 106 N.J. at 248-54. The Death Penalty Act (the Act) presupposes that the same jury that heard the guilt phase of the trial will hear the sentencing phase. Accordingly, “the State is entitled to insist on a properly conducted interrogation of jurors prior to the guilt phase of a capital trial to determine whether their views on capital punishment will substantially interfere with the performance of their duties as jurors [in either the guilt or penalty phase].” Id. at 254.

In his dissent, Justice Handler, post at 191-98, continues to disagree with this Court’s ruling in State v. Ramseur that a death qualified jury does not intrude impermissibly on defendant’s right to an impartial jury under the state and federal constitutions. We ruled in Ramseur, however, that death qualification of a jury does not violate either the federal or state constitutions. 106 N.J. at 248-54. Contrary to the dissent, we believe that the results of “ongoing social science research,” post at 191, do not compel a change in constitutional interpretation on that issue.

2. “Struck Jury” System

Defendant contends that the trial court’s refusal to implement a “struck jury” system for exercising peremptory challenges violated his right to a fair and impartial jury. This argument was rejected in Ramseur, supra, 106 N.J. at 239-43.

Under a struck jury system, peremptory challenges are used only when an adequate number of potential jurors have been questioned and qualified. An “adequate” number of jurors generally means the twelve that must be empanelled, plus at least twenty to account for the defendant’s peremptory challenges, and at least twelve more to account for the State's peremptories. R. 1:8 — 3(d). As discussed in Ramseur, supra, 106 N.J. at 241, a struck jury system enables the parties to exercise their peremptory challenges with a better perception of the total composition of the jury. Qualifying additional jurors for cause, however, raises questions about the efficiency of the struck jury system.

In Ramseur, we did not disapprove of the use of a struck jury system, but left use of such a procedure to the sound discretion of the trial courts, which are to balance the “exigencies of the judicial system with the interest of the parties in exercising informed peremptory challenges.” Id. at 242. Accordingly, we find that the trial court acted within its discretion in refusing defendant’s request for a struck jury system.

3. Exclusion for Cause

Defendant contends that he should have been permitted to exclude juror Kurlowicz for cause because of the juror’s bias in favor of imposing the death penalty. Last year, in Ramseur, supra, 106 N.J. at 248-56, we traced the evolution of the standard for the exclusion for cause of jurors from Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), to Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), and Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Witherspoon held that jurors who would automatically vote against the death penalty may be excused for cause. Adams and Witt modified Witherspoon by stating “a prospective juror may be excluded for cause because of his or her views on capital punishment. That standard is whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Witt, supra, 469 U.S. at 424, 105 S.Ct. at 852, 83 L.Ed.2d at 851-52 (quoting Adams, supra, 448 U.S. at 45, 100 S.Ct. at 2526, 65 L.Ed.2d at 589). In adopting the Adams-Witt modification of Witherspoon as applied to the opponents of capital punishment, we observed in Ramseur that the protection accorded a defendant under the New Jersey Constitution was generally co-extensive with that under the federal Constitution. 106 N.J. at 251.

Although Witherspoon, Adams, and Witt dealt with the exclusion of opponents of the death penalty, we believe that the same standard should apply to jurors who are proponents of the death penalty. All jurors are obliged to give “a true verdict * * * according to the evidence.” N.J.S.A. 2A:74-6. Jurors are equally bound to render a just and impartial verdict whether they are for or against the death penalty. Our duty to assure that a defendant is tried by an impartial jury leads us to conclude that a single test should apply to all jurors irrespective of their predilection concerning the death penalty. Accord Pope v. State, 256 Ga. 195, 345 S.E.2d 831, 838 (1986). Recently the United States Supreme Court similarly concluded that it would be reversible error to permit jurors to sit on the penalty phase if their bias in favor of the death penalty substantially impaired their impartiality, provided the defense properly preserved the right to challenge the court’s failure to remove the jurors for cause. Ross v. Oklahoma, — U.S.-, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). In the present case, because defense counsel peremptorily excused Kurlowicz, we need not decide whether it is reversible error to permit a juror who favors the death penalty to sit on the guilt phase.

The voir dire of juror Kurlowicz reflects his inability to consider all mitigating factors and to decide impartially either defendant’s guilt or punishment. Under initial questioning from the court, Kurlowicz 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 the death penalty would influence his deliberation on guilt:

Q. Even if you are in favor of the death penalty, could you still fairly and impartially consider the evidence in determining whether the defendant is guilty or not guilty of the charges.

A. Yes, Your Honor.

In response to questions from defense counsel, the juror indicated “[l]ike I say, if it’s a violent crime I think a man should be put to death.” Pursuing the juror’s response to an earlier question, counsel asked what the juror meant by “cold-blooded murder:”

A. Like in a robbery, a hold-up.

Q. Rape?

A. Rape, yes.

Q. Is that what you mean by cold-blooded murder?

A. Could be, yes.

£*‡*****

Q. * * * I want you to assume something. I want you to assume that you have heard all of the evidence and I want you to assume that you and the other ladies and gentlemen with you * * * have found unanimously and beyond a reasonable doubt that a defendant committed a murder during the course of robbery, rape and kidnapping, no defense to it, no defense at all * * *. In that situation when you were so convinced would you automatically then vote for the death penalty.

A. I believe I would.

Q. You would. Would you find it extremely difficult in a circumstance like that then to vote for a jail term * * * ? * * * Would you say it would be very difficult?

A. It would be.

Q. Would you say it would be almost impossible?

A. Well, yes.

Q. Almost impossible?

A. Yes.

The juror indicated to the prosecutor, however, that he would consider factors in mitigation of the punishment, and that he could return a sentence less than death. On further questioning by the defense, Kurlowicz reverted to the position that he would “find it very difficult to vote against” the death penalty where the murder was “cold-blooded.” Finally, the court asked Kurlowicz whether he would “automatically vote for the death penalty or would you consider the mitigating factors?” The juror indicated that his decision would not be “automatic * * * one way or the other.” Because of Kurlowicz’s response, the court was “satisfied he does not come within the purview of Wither-spoon" and seated the juror. The defense, as previously indicated, later excused juror Kurlowicz peremptorily.

As the preceding interrogation discloses, the juror stated that his decision would not be “automatic,” but that he would find it “almost impossible” not to vote for the death penalty. That statement suggests that his capacity to credit the evidence in mitigation would be “substantially impaired” within the meanings of Adams and Witt. Notwithstanding his assertion that he would consider the evidence in mitigation, his capacity to deliberate impartially was “substantially impaired” by his belief that “if it’s a violent crime I think a man should be put to death.”

Here, however, the error was harmless. Defendant excused juror Kurlowicz through the exercise of a peremptory challenge. Despite the fact that it was forced to use a peremptory challenge, the defense never exhausted its allotment of peremptory challenges. Although “the denial of the right of peremptory challenge is the denial of a substantial right,” State v. Singletary, 80 N.J. 55, 62 (1979), defendant in the present case, unlike the defendant in 'Singletary, did not exhaust his peremptories. Kurlowicz, moreover, was the first juror challenged by defendant, who at that time had nineteen challenges remaining. Thus, we disagree with Justice Handler’s conclusion that the “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.” Post at 205.

Under the sixth amendment to the United States Constitution, it is not reversible error to fail to excuse for cause a juror who is thereafter peremptorily dismissed by a defendant who exhausts all his peremptory challenges “[s]o long as the jury that sits is impartial * * Ross v. Oklahoma, supra, — U.S. at-, 108 S.Ct. at 2278, 101 L.Ed.2d at 90. In the present case, we need not determine whether that error would be reversible under article I, paragraph 10 of the New Jersey Constitution.

We recognize that forcing a defendant to “waste” a peremptory challenge could force defense counsel to be more cautious in the exercise of remaining peremptories. Consequently, we caution trial courts to be particularly sensitive in capital cases to the defendant’s right to a full complement of twenty peremptory challenges. See R. 1:8-3(d). Here, the defendant did not exhaust his full complement of peremptory challenges, and the error in failing to excuse Kurlowicz for cause was harmless. Thompson v. State, 721 P.2d 1290, 1291 (Nev.1986).

In that regard, Rule 1:8-3(d) provides that “[t]he trial judge shall have the discretionary authority to increase proportionally the number of peremptory challenges available to the defendant and the State in any case in which the sentencing procedure in subsection c. of N.J.S.A. 2C:11-3 might be utilized,” i.e., in a death penalty case. As the defendant approaches the exhaustion of his or her peremptory challenges, the trial court should become increasingly sensitive to the possibility of prejudice from its failure to dismiss the juror for cause. That heightened sensitivity should lead to a more generous exercise of discretion as defendant approaches the exhaustion of his or her peremptory challenges.

B. Sentencing Procedures

In State v. Biegenwald, 106 N.J. 13 (1987), and in State v. Ramseur, supra, 106 N.J. 123, we sustained the Death Penalty Act, N.J.S.A. 2C:11-3c, as facially constitutional, finding that the statute had been drafted to avoid the risk that it would be applied arbitrarily and capriciously. Ramseur, supra, 106 N.J. at 183. We also addressed certain issues pertaining to the interpretation and application of the Act. Specifically, we concluded that the death penalty may not be imposed “without a finding that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt,” Biegenwald, supra, 106 N.J. at 53, and that jury instructions should never dilute the jury’s responsibility for the decision whether the defendant should live or die, Ramseur, supra, 106 N.J. at 316. The present case requires us to elaborate on the procedures a sentencing jury is to follow in reaching that decision. We proceed with the awareness of the qualitative difference between the death penalty and other penalties, a difference that makes it unthinkable for jurors to impose the death penalty when they harbor a “reasonable doubt as to its justness.” Biegenwald, supra, 106 N.J. at 60.

1. Consideration of Mitigating Factors

The United States Supreme Court has struggled to develop a system of capital punishment that is “at once consistent and principled but also humane and sensible to the uniqueness of the individual.” Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1, 8 (1982). In a progression of cases, the Court has ruled that such a system must channel the discretion of the jury, but not so severely as to deflect the jury’s attention from the individual who is being sentenced. The sentencer, therefore, must consider “the character and record of the offender and the circumstances of the particular offense * * *.” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976). We, too, have recognized that “[t]he sentencer, whether judge or jury, has a constitutional obligation to evaluate the unique circumstances of the individual defendant.” Biegenwald, supra, 106 N.J. at 48 (quoting Spaziano v. Florida, 468 U.S. 447, 459, 104 S.Ct. 3154, 3161, 82 L.Ed.2d 340, 352 (1984)). It follows that a state statute may not preclude the jury from considering any relevant mitigating evidence pertaining to any aspect of defendant’s character. Sumner v. Shuman, 483 U.S. -,-- -, 107 S.Ct. 2716, 2722-23, 97 L.Ed.2d 56, 65-66 (1987); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 608, 98 S.Ct. 2954, 2967, 57 L.Ed.2d 973, 992 (1978); Ramseur, supra, 106 N.J. at 185-86; State v. Davis, 96 N.J. 611, 617 (1984). The jury should know whom it is sentencing to death.

A sentencing procedure, moreover, may not expose a defendant to “the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.” Lockett, supra, 438 U.S. at 605, 98 S.Ct. at 2965, 57 L.Ed.2d at 990. Consistent with these constitutional principles, the Act enumerates eight mitigating factors, including a catch-all factor, which provides for the introduction of evidence relating to:

(h) Any other factor which is relevant to the defendant’s character or record or to the circumstances of the offense. [N.J.S.A. 2C:ll-3c(5).]

The legislative intent that the defendant be granted wide leeway in presenting evidence in mitigation of the death penalty is apparent also from the history of the Act. Public Hearing Before Senate Judiciary Committee on Senate, No. 112, Feb. 26, 1982, at 2 (Public Hearing) (“The leeway for the factors of mitigation is wide.”) (statement of Senator John F. Russo, Chairman); id. at 13 (“The jury has a right to consider whatever evidence [the defendant] presents in mitigation of the imposition of the death penalty.”) (statement of Edwin Stier, Director of the Division of Criminal Justice in the Department of Law and Safety).

Jury verdicts on guilt must be unanimous. R. 1:8-9; State v. Cordasco, 2 N.J. 189, 202 (1949); State v. Gadson, 148 N.J.Super. 457 (App.Div.1977). In the Act, the Legislature carried forward the unanimity requirement in the sentencing phase of the capital case by providing that “if the jury is unable to reach a unanimous verdict, the court shall sentence the defendant pursuant to subsection b.” By requiring that the jury be unanimous on the imposition of the death penalty, the statute assures that each juror must accept full responsibility for the imposition of that sanction. State v. Reynolds, 41 N.J. 163, 187 (1963) , cert. denied, 377 U.S. 1000, 84 S.Ct. 1930, 12 L.Ed.2d 1050, reh’g denied, 379 U.S. 873, 85 S.Ct. 22, 13 L.Ed.2d 80 (1964).

The vehicle through which the jury discharges its responsibility is the determination of the existence of aggravating and mitigating factors and the balancing of the former against the latter. In the sentencing phase, the jury is obliged to determine, first, the existence of any aggravating factor or factors. The jury must find that at least one aggravating factor exists before the death penalty may be imposed. If the jury “finds that no aggravating factors exist * * * the court shall sentence the defendant pursuant to subsection b,” which requires a term of imprisonment. If, however, the jury finds an aggravating factor exists, then it must determine whether any mitigating factors also exist. After making fact findings about the “existence or non-existence” of aggravating and mitigating factors, the jury must then make the normative judgment whether the aggravating outweigh the mitigating factors beyond a reasonable doubt. That decision, in effect, determines the appropriateness of the death penalty for the defendant.

In reaching that decision, the jury should balance all aggravating factors against all mitigating factors. We recognize an apparent inconsistency between N.J.S.A. 2C:11-3c(3) and N.J.S.A. 2C:11-3c(3)(a). The former section provides:

The jury, or if there is no jury, the court shall return a special verdict setting forth in writing the existence or non-existence of each of the aggravating and mitigating factors set forth in paragraphs (4) and (5) of this subsection. If any aggravating factor is found to exist, the verdict shall also state whether or not it outweighs beyond a reasonable doubt any one or more mitigating factors. [N.J.S.A. 2C:11-3c(3).]

The latter section, however, provides that in the weighing process,

[i]f the jury or the court finds that any aggravating factors exist and that all of the aggravating factors outweigh beyond a reasonable doubt all of the mitigating factors, the court shall sentence the defendant to death. [N.J.S.A. 2C:11-3c(3)(a).]

Conceivably, N.J.S.A. 2C:11-3c(3) could be read to require the jury to weigh each aggravating factor against one or more mitigating factors. We have no doubt, however, that for the death penalty to be imposed, the overall effect must be that all aggravating factors outweigh mitigating factors beyond a reasonable doubt. Biegenwald, supra, 106 N.J at 62.

Although the Act does not expressly require the jury to be unanimous in finding the existence of an aggravating factor or factors, the lack of unanimity suggests that the factor has not been established beyond a reasonable doubt as required by N.J.S.A. 2C:11-3c(2)(a). Requiring a unanimous finding on the existence of an aggravating factor is consistent with the general requirement of unanimity in criminal cases, and is not disputed by the State. The unanimity requirement extends only to verdicts adverse to the defendant, and the Legislature may provide for the return of a verdict favorable to the defendant on less than unanimity. See, e.g., State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144, 163 (1983) (Exum, J., dissenting); Molandes v. State, 571 S.W.2d 3, 4 (Tex.Crim.App.1978). For example, under the Act, the unanimity requirement redounds to the benefit of the defendant by mandating that he or she must be sentenced to imprisonment rather than death unless the jury is unanimous on the imposition of the death penalty. N.J.S.A. 2C:11-3c(3)(c).

In the present case, one issue is whether the jury must be unanimous in finding the existence of a mitigating factor. Although the legislative history is inconclusive, the logic of the Act indicates that the Legislature intended that jurors need not unanimously find the existence of a mitigating factor. Unlike the State, which must establish the existence of an aggravating factor beyond a reasonable doubt, the defendant bears only “the burden of producing evidence of the existence of any mitigating factor.” N.J.S.A. 2C:11-3c(2)(a). Thus, the defendant bears the burden only of coming forward, not the burden of proof on the existence of a mitigating factor. Public Hearing, supra, at 12.

It would contravene the logic of the Act to rule that a jury could unanimously reach a verdict that the aggravating outweigh the mitigating factors beyond a reasonable doubt if eleven jurors believed that the evidence supported the existence of a mitigating factor or factors and those jurors were prevented, because of the disagreement of a solitary juror, from weighing those mitigating factors against the aggravating factors. The same result follows if just one juror believes in the existence of a single mitigating factor. All jurors might agree that some mitigating factors exist, and some jurors might agree that all mitigating factors exist, but all may not agree on the existence of any particular mitigating factor. In such a case, where the jury does not unanimously find the existence of any mitigating factor, if it finds at least one aggravating factor to exist, that finding would be tantamount to the imposition of the death sentence. A juror who found a mitigating factor would be precluded from weighing that factor despite the fact that he or she did not believe that the aggravating factor outweighed that mitigating factor. The same result would follow if eleven of twelve jurors acknowledged that a particular mitigating factor existed. In effect, a single dissenting juror could force the imposition of the death penalty.

As we have previously stated, “[w]e do not believe the Legislature intended a man should go to his doom because one juror disagreed with [the other] eleven.” State v. Reynolds, supra, 41 N.J. at 187. As long as one juror believes in the existence of a mitigating factor, that juror should be permitted to engage in the weighing process. Mills v. Maryland, supra, — U.S. at---, 108 S.Ct. at 1865-66, 100 L.Ed.2d at 393-95. But see State v. Kirkley, supra, 308 N. C. at 196, 302 S.E.2d at 157 (“consistency and fairness dictate that a jury unanimously find that a mitigating circumstance exists before it may be considered for the purpose of sentencing”). Each juror must be convinced beyond a reasonable doubt that the aggravating outweigh the mitigating factors. Any juror who believes in the existence of a mitigating factor must be allowed to determine whether he harbors such a doubt by conducting his or her own weighing process.

The jury instructions in the present case did not comply with that requirement. The court charged the jury: “Since this is a criminal case your verdict must be unanimous, all 12 jurors deliberating must agree as to the existence or non-existence of particular aggravating or mitigating factors.” Consistent with the charge, the verdict sheet provided: “Mitigating factors: Do you unanimously find that any of the following mitigating factors exist?” The effect of that charge was to prevent each juror from considering any mitigating factor or factors, no matter how strongly the juror believed in the existence of the factors, unless all other jurors agreed that the factors existed. That such a charge can produce arbitrary and unreliable results is obvious.

As a corollary to the rule that the jury must not impose the death penalty if even one juror finds that the aggravating factors do not outweigh the mitigating factors, each juror must individually determine the existence of mitigating factors. As long as one juror perceives any mitigating factor relating to the defendant or to the crime that is not outweighed beyond a reasonable doubt by the aggravating factors, the jury must not sentence the defendant to death. Mills v. Maryland, supra, — U.S. at---, 108 S.Ct. at 1865-66, 100 L.Ed.2d at 393-95. Each juror, therefore, should individually determine the existence of mitigating factors and then individually decide whether the aggravating outweigh the mitigating factors beyond a reasonable doubt. Only after such independent weighing by each juror may the unanimous agreement of all jurors lead to the imposition of the death penalty.

As the United States Supreme Court recently held, a contrary interpretation would violate the United States Constitution. Specifically, the Court found that requiring a jury to agree unanimously to the existence of a mitigating factor before the jury may give effect to that factor unconstitutionally precludes the jury from considering mitigating evidence proffered by the defendant and risks an erroneous imposition of the death sentence. Ibid. For the preceding reasons, we reverse the imposition of the death penalty on defendant.

2. The Jury’s Sense of Responsibility for Its Verdict

In capital cases, jury sentencing constitutes a link between contemporary community values and the penal system. Without that link, the determination of punishment could hardly reflect “the evolving standards of decency that mark the progress of a maturing society.” Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859, 874 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630, 642 (1958)). When the jury speaks, it is as the conscience of the community. Ramseur, supra, 106 N.J. at 316. As important as correct jury instructions are to all criminal cases, State v. Collier, 90 N.J. 117 (1982); State v. Green, 86 N.J. 281 (1981), they are even more crucial in a capital case because of the jury’s responsibility to decide whether a defendant shall live or die. Correlative to that responsibility is the requirement of enhanced “reliability in the determination that death is the appropriate punishment in a specific case.” Caldwell v. Mississippi, 472 U.S. 320, 330, 105 S.Ct. 2633, 2640, 86 L.Ed.2d 231, 240 (1985) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976)). Consequently, in its charge to the jury in the sentencing phase of a capital trial, a trial court must be careful not to dilute the jury’s sense of responsibility for determining the appropriateness of the death penalty. Id. at 328-29, 105 S.Ct. at 2639, 86 L.Ed.2d at 239; State v. Mount, 30 N.J. 195, 214 (1959); accord Johnson v. Tennessee, No. 83-241 III (Jan. 20, 1988) (slip op. at 26) [available on WESTLAW, 1988 WL 3632].

Each juror must decide whether the law requires that the defendant must be put to death. Witherspoon v. Illinois, supra, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. Accordingly, the court’s instructions must communicate to the jury that a death verdict is not the product of a mechanical application of the statute, but a reflection of the jury’s normative judgment that death is “the fitting and appropriate punishment.” Ramseur, supra, 106 N.J. at 316 n. 80. Jurors are not mere fact finders, but the ultimate determiners of whether the defendant shall live or die.

A court should not instruct the jury that it can avoid that ultimate determination merely by making factual findings. Such an instruction dilutes the jury’s sense of responsibility for the death verdict. The trial court must ensure that the finding of the absence of mitigating factors reflects the unanimous agreement of the jurors that they are convinced that the death penalty is fitting and appropriate. People v. Durre, 690 P.2d 165, 174 (Colo.1984). The instructions should apprise the jury that it is not merely to decide the existence of aggravating and mitigating factors, but to evaluate the evidence supporting those factors in making the “unique, individualized judgment” regarding the appropriateness of the death penalty. Zant v. Stephens, 462 US. 862, 900, 103 S.Ct. 2733, 2755, 77 L.Ed.2d 235, 265 (1983) (Rehnquist, J., concurring). Thus, the sentencing phase of a capital case requires the jury to make a judgment based on conflicting values whether defendant should live or die. Biegenwald, supra, 106 N.J. at 62. In addition to providing appropriate instructions, a trial court insures compliance with that weighing process by providing a verdict sheet that informs the jury of the consequences of its decisions and by polling jurors to assure their individual agreement with the verdict. Ramseur, supra, 106 N.J. at 316 n. 80.

In the present case, the trial court began correctly by stating that “[t]he ultimate burden rests upon the State to convince you that the death penalty is fitting and appropriate punishment in this case.” Then, the court instructed the jury that it should decide whether it was convinced beyond a reasonable doubt that any aggravating factor existed. If it so decided, the jury was then to find whether any mitigating factors existed. If the jury failed to find any mitigating factors, it was to cease its deliberations and return its findings as a verdict. Specifically, the trial court charged:

If you find that the State has proved at least one aggravating factor beyond a reasonable doubt but you are not satisfied as to the existence of any mitigating factor, check the verdict form accordingly * * *.

In that event the sentence will be death.

The problem with this instruction is that it reasonably could have left the jury with the impression that its function was merely to determine the existence of aggravating and mitigating factors. Further, if the jury found at least one aggravating factor but no mitigating factors, the death penalty would automatically follow from the mechanical operation of the statute. Consequently, the charge failed to communicate that the jury, not the mechanics of the statute or the “law,” is ultimately responsible for the imposition of the death penalty. The court should have expressly instructed the jury that a consequence of finding one or more aggravating factors and no mitigating factors meant that the jury thought that the death penalty was a fitting and appropriate punishment for the defendant. Such a charge would have “suitably directed” any belief of a juror about the inappropriateness of the death penalty to one or more mitigating factors. Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859, 883 (1976).

In fact, the jury found that two aggravating and no mitigating factors existed. Although the verdict reflected the jury’s factual findings, it is not clear that the jury understood that it bore the burden of deciding whether to impose the death sentence and that it was not relieved by some statutory scale as the ultimate arbiter of defendant’s life. In sum, we find reversible error in the trial court’s failure to inform the jury that it need not unanimously find the existence of any mitigating factor and to instruct the jury that it was responsible for the imposition of the death penalty.

3. Instructions by the Trial Court and Comments by Prosecutor that Diluted Jury’s Sense of Responsibility for the Death Sentence

Defendant contends that other portions of the guilt phase instructions diluted the jury’s responsibility for the imposition of the death penalty. The court charged:

Let no fear of responsibility deter you from discharging your duties faithfully for the consequences that may follow from your verdict neither you nor this Court is responsible.

When we have discharged our duty fairly, conscientiously and firmly, our responsibilities are at an end and we may leave the consequences to the law. ********

You should not concern yourselves with the possible penalty a guilty verdict will bring. The imposition of punishment is solely for the Court.

Further, the court assured the jury that “[tjhere is nothing peculiarly different in the way a jury is to consider the proof in a criminal case from that in which all reasonable persons treat any questions depending upon evidence presented to them.” We iterate that it is unconstitutional “to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell v. Mississippi, supra, 472 US. at 328-29, 105 S.Ct. at 2639, 86 L.Ed.2d at 239. Trial judges are bound “to make absolutely certain [that] the jury is aware, not simply of the consequences of its actions, but of its total responsibility for the judgment.” Ramseur, supra, 106 N.J. at 316. In Ramseur, we found that the trial court’s instruction that the jury was “merely to determine the presence or absence of aggravating or mitigating factors and if you find that they are present you are to weigh them” may have left the jury with the impression that its function was one of mechanical fact-finding. Accordingly, we held that the instruction constituted prejudicial error. Id. at 316.

Defendant focuses on the instruction in the guilt phase that the jurors should “[l]et no fear of responsibility deter you from discharging your duties,” “not concern yourselves with the possible penalty a guilty verdict will bring,” and “leave the consequences to the law.” In brief, defendant argues the instruction violated our admonition in Ramseur. We believe, however, that the concerns on the guilt and penalty phases of the trial are sufficiently distinct for the instruction to pass muster. Trial courts are obligated to ensure that jurors do not let their views on capital punishment substantially interfere with the performance of their duties at either phase of a capital trial. See id. at 254. In the present case, the trial court’s guilt phase instruction did not dilute the jury’s sense of responsibility on the penalty phase.

Defendant also contends that comments by the prosecutor on the penalty phase summation improperly diluted the jury’s sense of responsibility for the death penalty decision. Specifically, defendant refers to the following statements by the prosecutor: “You have given him a fair trial. If the results, if the end is death, then so be it. If the balancing factor is equivalent to that, so be it. But don’t feel sorry for Marko Bey.” Those comments, however, do not rise to the level of impropriety that we found prejudicial in Ramseur. Here, the prosecutor was simply urging the jury to perform the statutory weighing process without allowing extraneous pity to bias its verdict. Like judges, however, prosecutors should refrain from gratuitous comments that could lead to the unconstitutional dilution of a jury’s sense of responsibility for its verdict.

4. Adequacy of the Jury Instructions Regarding Mitigating Factors

Another aspect of the charge requires our attention. As previously indicated, defendant requested the trial court to charge the jury with a general explanation of the nature and function of mitigating factors:

Mitigating factors do not necessarily constitute a justification or excuse for the offense in question; rather, they are circumstances which in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability.

Defendant, who had not asserted the defense of insanity or diminished capacity at the guilt phase, requested a comprehensive explanation of “extreme emotional disturbance insufficient to constitute a defense to the prosecution.” Concerning intoxication, defendant requested an instruction on the distinction between intoxication as a defense to the charge of murder and as a mitigating factor on sentencing. With regard to defendant’s age, defendant requested an instruction emphasizing both his relative youth and immaturity at the time of the offense and his potential for rehabilitation. Finally, concerning the factor that authorizes the jury to consider anything relevant to the defendant’s character or record or the circumstances of the offense, defendant requested an instruction focusing the jury’s deliberations on the evidence of the defendant’s difficult background, the expert witness’s opinion about the deterrent effect of the death penalty, and the defendant’s possibility of rehabilitation.

The actual instructions did not incorporate any of the defendant’s requests. In the instruction pertaining to the general function of mitigating factors, the court simply stated that “mitigating factors are those which would tend toward the sentence of life imprisonment.” Then the court charged the jury that “[t]he factors have to do both with the circumstances of the crime and the personal traits, qualities, and background of the defendant.” The entire charge concerning the specific mitigating factors was:

The defense has advanced the following mitigating factors in accordance with the listing of them in the Criminal Code:

1. That the defendant, Marko Bey, was at the time of the offense under the influence of extreme emotional disturbance although that disturbance was insufficient to constitute a defense to prosecution.

2. That the defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as a result of intoxication but not to a degree sufficient to constitute a defense to the prosecution.

3. The defendant’s age at the time of the murder. He was eighteen years old.

4. Any other factor which you would find relevant to the defendant’s character or record or to the circumstances of the offense.

You have heard the testimony from Dr. William J. Bowers, an expert in the field of sociology. He has been permitted to express his opinion as to the deterrent value and effect of the death penalty. As he is an expert in the field to which he spoke, you may consider the qualifications of that witness and the reasons given for his opinion.

[The court then instructed the jury on how to evaluate the testimony of an expert witness.]

Now with respect to the last mitigating factor, I charge you that you are required to consider anything concerning a defendant’s life and characteristics and the particular circumstances of the crime for which he was found guilty.

In brief, the charge of mitigating factors was essentially a recitation of the statutory language. Defendant contends that the elaboration of mitigating factors was so minimal as to preclude the jury from giving adequate consideration to defendant’s mitigating evidence. He further contends that the charge violated requirements of New Jersey law on jury instructions, and prevented the jury from properly conducting the weighing process mandated by the Act. Because of our decision to reverse on other grounds, ante at 162-63, we find it unnecessary to decide whether the alleged inadequacy in the jury instructions warrants reversal. Nonetheless, we consider defendant’s claim for the purpose of guidance in other cases. See Ramseur, supra, 106 N.J at 287 (considering the adequacy of instructions on aggravating factors solely for guidance and not addressing the issue whether the deficient instructions in that case warranted reversal).

Defendant concedes that he has “no right to select the particular phrasing of the jury instructions in his case.” See id. at 292 (quoting United States v. Gaines, 690 F.2d 849, 855 (11th Cir.1982)). Both the federal courts and this Court have declined to prescribe specific language to guide the jury’s consideration of mitigating factors. Setting such standards could deprive a trial court of the discretion it needs in molding a charge. As the United States Supreme Court has written, “the Constitution does not require a State to adopt specific standards for instructing the jury in its consideration of aggravating and mitigating circumstances.” Zant v. Stephens, 462 U.S. 862, 890, 103 S.Ct. 2733, 2750, 77 L.Ed.2d 235, 258 (1983). The important point is not so much requiring a specific charge as it is providing the jury with guidelines for “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 , 77 L.Ed.2d at 251. Consequently, “the Constitution does not require specific and detailed instructions * * * with respect to mitigating and aggravating circumstances, so long as there is no reasonable possibility that the jury misunderstands its role in the capital sentencing procedure or misunderstands the meaning and function of mitigating circumstances.” See Peek v. Kemp, 784 F.2d 1479, 1493-94 (11th Cir.1986); Briley v. Bass, 750 F. 2d 1238, 1244-45 (4th Cir.1984). Although the instructions did not directly preclude the jury from considering any mitigating evidence, defendant argues that the jury was effectively so precluded because the instructions did not sufficiently communicate the meaning and purpose of mitigating factors.

The requirement that capital sentencing must not preclude consideration of relevant mitigating circumstances would be hollow without an explanation of how the evidence can mitigate the imposition of the death penalty. Otherwise, the court would subject the defendant to the risk of an arbitrary and capricious jury determination. Gregg v. Georgia, supra, 428 U.S. at 189, 96 S.Ct. at 2932, 49 L.Ed.2d at 883. Even before the enactment of the Act, we recognized that “[appropriate and proper charges are essential for a fair trial” and that the charges “should explain to the jury in an understandable fashion its function in relation to the legal issues involved.” State v. Green, supra, 86 N.J. at 287. In sum, it is the trial court’s duty to assure that a reasonable juror will understand the meaning and function of mitigating factors.

A trial court is not bound to any particular language when instructing a jury on mitigating factors, but the court must adequately explain those factors “in the text and purport of the whole charge.” Ramseur, supra, 106 N.J. at 292 (quoting State v. Thompson, 59 N.J. 396, 411 (1971)). That requirement may be viewed as a corollary of the principle that “faithful performance of the court’s duty of expounding the law for the jury’s guidance and instruction requires a plain and clear exposition of the issues.” State v. Green, supra, 86 N.J. at 288. Also consistent with the legislative mandate is the requirement to implement the Act’s procedure so as to “cover every possible contingency for the protection of the defendant.” Public Hearing, supra, at 1 (statement of Senator John F. Russo, chairman). Consequently, a charge must assure that there is no reasonable possibility that a juror will misunderstand the function of mitigating factors and the meaning of the particular factors on which the defendant relies. Accord Andrews v. Shulsen, 802 F.2d 1256, 1264-65 (10th Cir.1986); Peek v. Kemp, supra, 784 F.2d at 1494; Spivey v. Zant, 661 F.2d 464, 471 (former 5th Cir.1981).

We turn now to the charge in this case. With respect to the general function of mitigating factors, the trial court should have made clear that the attempt to establish the existence of those factors was not to justify or excuse defendant's conduct, but to present extenuating facts regarding the defendant’s life or character or the circumstances surrounding the murder that would justify a sentence less than death. In failing to tell the jury that it could consider all mitigating evidence adduced in either the guilt or sentencing proceedings, the charge failed to meet that test. Similar deficiencies appear in the charge concerning specific mitigating factors. For example, the court merely read the words of the statute when charging the jury on the mitigating factors pertaining to defendant’s emotional disturbance at the time of the offense, § c(5)(a); intoxication; § c(5)(d); age, § c(5)(c); and the catchall mitigating factor, § c(5)(h). Jurors are untrained in statutory interpretation, State v. Green, supra, 86 N.J. at 288, and instructions that merely repeat verbatim the language of the Act generally are inadequate. Accord People v. Lucky, supra, 221 Cal.Rptr. at 897, 710 P.2d at 976.

In fairness to the court, the trial in this case occurred before the date of our opinion in Ramseur, in which we discussed the adequacy of jury instructions on particular mitigating factors. On remand, the trial court should conform its charge to the requirements of that opinion.

5. Additional Issue Related to Instructions Concerning Mitigating Factors: The Omission of Instructions on the Role of Sympathy in the Jury’s Penalty Phase Deliberations

Defendant contends that the trial court erred in refusing to instruct the jury regarding the proper role of sympathy and mercy in its penalty phase deliberations. At the close of the penalty phase, defendant requested that the jury be instructed that mitigating factors are circumstances that warrant “fairness and mercy” and “compassion and sympathetic understanding,” and that “[a]ny sympathy or compassion which [the proffered] mitigating circumstances may engender can be taken into consideration by you in coming to your decision as to penalty.” The charge, however, did not include the requested instructions.

An instruction not to base a verdict on “mere sympathy” focuses jury deliberations on mitigating evidence. See California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (upholding the constitutionality of instructions “not [to] be swayed by mere sentiment, conjecture or sympathy”). In Ramseur, supra, 106 N.J. at 296-99, we found no error in the charge that the jury “should decide the case * * * without any * * * sympathy.” Underscoring that result, we emphasized that the jury be instructed, pursuant to section c(5)(h), that it may consider as mitigating evidence any other factor that is relevant “to defendant’s character or record or to the circumstances of the offense. The reference to such other factors as ‘mitigating’ inevitably suggests that the jury may properly consider whether they engendered feelings of sympathy for the defendant.” Id. at 296. The instructions, however, may not “preclude the jury from considering all possible mitigating circumstances and such sympathy as those circumstances might inspire.” Id. at 297. Instructions aimed at removing emotion from capital sentencing must not mislead the jury into rejecting sympathy engendered by defendant’s background, character, or other mitigating circumstances.

Here, the challenged instruction did not preclude the jury from considering sympathy generally. It merely failed to advise the jury that it could properly consider the sympathy and compassion engendered by the mitigating factors it found to exist. This is not error. We believe that a trial court can properly channel a jury’s discretion by instructing it that it should not decide a case on sympathy or by omitting any reference to sympathy. If the court communicates the function of mitigating factors and the meaning of particular factors, the failure to explain the proper role of sympathy and mercy should not cause a juror to misunderstand the legitimate use of those feelings.

6. Instructions Concerning Aggravating Factors

a. Constitutionality of Aggravating Factor c(4)(g)

Defendant alleges that the Act is unconstitutional because it promotes irrational sentencing by allowing a felony murder committed by one’s own act to be treated as either an aggravating factor to a capital murder, N.J.S.A. 2C:11-3c(4)(g), or a lesser degree homicide, N.J.S.A. 2C:11-3a(3), punishable by a term of thirty years to life imprisonment. This contention was rejected, however, in Ramseur, supra, 106 N.J. at 188-89 n. 21, and we are disinclined to change our ruling. The death penalty may not be imposed on a felony murderer unless he kills “by his own conduct” or hires another to commit the murder. N.J.S.A. 2C:ll-3c. Commission of a felony murder, however, remains an aggravating factor if the defendant committed the murder “purposely” or “knowingly.” Ibid. Accordingly, we reaffirm the constitutionality of section c(4)(g).

b. Sufficiency of Charge on Section c(4)(c)

Defendant also alleges that the jury charge regarding aggravating factor c(4)(c) was unconstitutionally vague. Section c(4)(e) provides that the jury may find as an aggravating factor that “[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involves torture, depravity of mind, or an aggravated assault to the victim.” In Ramseur, we recognized the “obvious vagueness” of Section c(4)(c), 106 N.J. at 198, but rendered the factor constitutional by supplying a narrowing construction that adequately guided the jury’s discretion. Once again, because the trial occurred before the Ramseur decision, the trial court did not have the benefit of our opinion in that case.

Here, the trial court read the statutory language to the jury, and then interpreted the introductory language as modifying the second part of the provision. The effect of the charge was to instruct the jury that the torture, battery, or depravity must warrant a characterization of being “wantonly vile, horrible or inhuman.” In rejecting that interpretation in Ramseur, we found that the introductory language was neither an independent requirement nor a qualitative modification of the second portion of the provision. Id. at 199-200. Presumably all murders will be perceived as “outrageously or wantonly vile, horrible or inhuman,” and, therefore, this introductory language could mislead the jury about the essence of this aggravating factor. The distinction between capital and non-capital murder is the defendant’s state of mind, not the physical or mental pain actually suffered by the victim. Id. at 207. Consequently, the court should charge this factor without reading the statute. The jury should be instructed that “[tjorture or aggravated battery to the victim shall be found if the defendant intended to cause, and did in fact cause, severe physical or psychological pain or suffering to the victim prior to the victim’s death,” and that depravity shall be found if the murder “served no purpose for the defendant beyond his pleasure of killing,” id. at 211, or if the defendant caused mutilation after death. In Ramseur, we set forth sample jury instructions on each of these concepts and explained that, depending on the facts of the particular case, it might be inappropriate to charge on both “torture and aggravated battery” and “depravity.” Id. at 211, 291-92.

The charge in this case failed to focus the jury’s consideration on defendant’s intent and improperly instructed the jury that if the murder could be characterized as “wantonly vile or horrible or inhuman,” it should find this factor to exist. On remand, the trial court should frame its charge on section c(4)(c) pursuant to the Ramseur requirements.

c. Double Counting Aggravating Factors

Defendant contends further that the instruction on the penalty phase permitted the jury to double count defendant’s rape of Ms. Peniston as an aggravating factor. In sum, the argument is that defendant was convicted of robbery, aggravated sexual assault, and felony murder. Assuming that the conviction for aggravated sexual assault supported the conviction for felony murder, evidence of the sexual assault would count as an aggravating factor under N.J.S.A. 2C:11-3c(4)(g). That same evidence was included, so the argument goes, to support the finding of aggravated assault, torture, or depravity under N.J. S.A. 2C:11-3c(4)(c). Thus, the defendant contends that the evidence of the aggravated sexual assault was impermissibly double counted.

The State denies that it ever contended “that the sexual assault was sufficient to support a finding that an outrageously or wantonly vile, horrible, or inhuman murder had occurred.” Rather, the State’s theory was that the viciousness of the attack, resulting in numerous internal injuries and an unrecognized battered body, clearly reached the level of an outrageously or wantonly vile, horrible, or inhuman murder. In light of our ruling in Ramseur that the focus in N.J.S.A. 2C:11-3c(4)(c) is on the defendant’s state-of-mind, not the victim’s suffering, the State’s theory was misguided.

Because we are reversing the death penalty on other grounds, we need not resolve the dispute about double counting the sexual assault. We believe, nonetheless, that it would be helpful in this and in future cases to set forth guidelines where the same evidence supports more than one factor.

The Act represents an attempt to comply with the constitutional mandate that the discretion of the jury “be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, supra, 428 U.S. at 189, 96 S.Ct. at 2932, 49 L.Ed.2d at 883. That guidance must be provided by objective sentencing standards designed to compel the jury to “focus on the particularized circumstances of the crime and the defendant.” Id. at 199, 96 S. Ct. at 2937, 49 L.Ed.2d at 889.

The Act enumerates eight distinct aggravating factors, N.J.S. A. 2C:11-3c(4)(a)-(h), and eight distinct mitigating factors, N.J. S.A. 2C:11-3c(5)(a)-(h). Those factors are designed to serve the narrowing function mandated by Gregg and its progeny. The determination whether to impose the death penalty, however, does not follow from the mere counting of the aggravating and mitigating factors to see which is the greater. Instead, the decision whether to impose the death penalty turns on a qualitative analysis of the circumstances of the offense and defendant’s character. For the jury to conclude that the defendant is to be executed, it must make the normative judgment that the death penalty is appropriate. Thus, one aggravating factor could outweigh beyond a reasonable doubt numerous mitigating factors. Similarly, a solitary mitigating factor may outweigh all aggravating factors. Still, we recognize that the side with the largest number of factors may have a practical advantage before a sentencing jury. See Wiley v. State, 484 So.2d 339, 357 (Miss.1986) (Robertson, J., concurring).

The fact that the same evidence supports two aggravating factors does not necessarily mean that a defendant will be prejudiced merely because the jury finds two factors instead of one. Nonetheless, the jury’s focus “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.” People v. Harris, 36 Cal.3d 36, 201 Cal.Rptr. 782, 797-98, 679 P.2d 433, 448-49 (1984). Accordingly, several jurisdictions have held that it is improper to present to the jury the aggravating factor that murder was committed for pecuniary gain when the aggravating factor that the murder occurred during the course of a robbery also is presented. Both factors refer to the same aspect of the defendant’s crime. See, e.g., Cook v. State, 369 No.2d 1251, 1256 (Ala.1979); Provence v. State, 337 No.2d 783, 786 (Fla.1976); State v. Rust, 197 Neb. 528, 250 N.W.2d 867, 874 (1977); see also People v. Harris, supra, 201 Cal.Rptr. at 800-01, 679 P.2d at 451-52 (permitting the prosecution to charge both aggravating factors, but requiring court to instruct jury to consider the factors as one for purposes of determining appropriateness of death penalty). But see Engberg v. State, 686 P.2d 541 (Wyo.1984) (finding no double counting because murder for pecuniary gain relates to defendant’s motive while murder during a robbery refers to the character of defendant’s act).

We believe the appropriate resolution is to allow the prosecution to use the same evidence in seeking to prove multiple aggravating factors, provided the trial court advises the jury that it should not simply compare the number of aggravating factors against the number of mitigating factors, that it is considering the same facts more than once, and that it should be cognizant that the same facts are being used to prove more than one aggravating factor. This result permits the jury to consider the evidence relevant to each aggravating factor, and should prevent it from giving undue weight to the number of factors when one aspect of the defendant’s conduct supports multiple aggravating factors.

Justice Handler disagrees with that resolution and repeats his argument, originally set forth in his dissent in Ramseur, supra, 106 N.J. at 384-94, that aggravating factors “do double duty; they are used simultaneously to narrow the class of capital murders and to guide the sentencer’s discretion.” Post at 217. We rejected that argument in Ramseur, supra, 106 N.J. at 186-88 and n. 20, finding that N.J.S.A. 2C:11-3a(1)-(2) and N.J.S.A. 2C:11-3c define the class of death eligible defendants as those who have caused death purposely or knowingly by their own hand, or who have paid someone else to do so. The class of offenders subjected to the death penalty, as distinguished from those who are eligible for it, is limited to those as to whom the jury has found that “the aggravating factor (or factors) outweigh any mitigating factor or factors beyond a reasonable doubt.” Ramseur, supra, 106 N.J. at 123 n. 20.

7. Instructions Concerning Possible Jury Verdicts

Defendant asserts that the trial court erred in refusing to instruct the jury that the failure to reach a unanimous verdict would result in at least thirty years’ imprisonment without parole. According to defendant, that error violated his right to a fair penalty trial and created a substantial risk that the death sentence would be imposed in an arbitrary and capricious manner. The trial court’s instructions to the jury regarding the possible verdicts that it could return omitted any reference to a non-unanimous verdict:

Unless each aggravating factor proved is outweighed by the mitigating factor or factors, the sentence will be death. If each aggravating factor is outweighed by the mitigating factor or factors, the sentence will be life imprisonment with a parole ineligibility term of thirty years.

********

Since this is a criminal case your verdict must be unanimous, all twelve jurors deliberating must agree as to the existence or non-existence of particular aggravating or mitigating factors. And you must all agree as to whether the mitigating factors outweigh the aggravating factors.

Similarly, the special verdict form instructed the jury:

If you have checked one or more aggravating factor “yes” and one or more mitigating factor “yes,” then state as to each aggravating factor checked “yes” whether it is or is not outweighed by any one or more of the mitigating factors checked "yes." This decision also must be unanimous. If an aggravating factor is found and not outweighed by a mitigating factor or factors, the penalty will be death. [Emphasis added.]

At the time of the trial, N.J.S.A. 2C:ll-3c(3) provided:

(a) If the jury or the court finds that any aggravating factor exists and is not outweighed by one or more mitigating factors, the court shall sentence the defendant to death.

(b) If the jury or the court finds that no aggravating factors exist, or that any aggravating factors which exist are outweighed by one or more mitigating factors, the court shall sentence the defendant pursuant to subsection b.

(c) If the jury is unable to reach a unanimous verdict, the court shall sentence the defendant pursuant to subsection b.

Construing these provisions in Bamseur, we found it “clear that the Legislature contemplated three possible final verdicts in a capital case: a unanimous verdict that results in imprisonment, a unanimous verdict that results in death, and a non-unanimous verdict that results in imprisonment.” 106 N.J. at 301. We therefore found it reversible error for a trial court to fail to advise the sentencing jury of all three options.

The trial court in Bamseur initially advised the jurors that if they were unable to agree on their findings and verdict, they should so report to the court. In such an event, the court would “either require further deliberations with additional instructions or I will accept your inability to reach a verdict in which case the penalty shall not be death.” Id. at 303. When, after deliberating for about four hours, the jury reported its inability to return a unanimous decision, however, the court did not inform the jury that a non-unanimous verdict leading to a life sentence was an acceptable outcome of its deliberations. Rather, the trial court's supplemental charge stressed the “importance of reaching a unanimous verdict.” Id. at 306.

To prevent the arbitrary and capricious imposition of the death penalty, we ruled that a jury must be informed of its sentencing options:

To hide from the jury the full range of its sentencing options, thus permitting its decision to be based on uninformed and possibly inaccurate speculation [about what the outcome would be in the event there was not unanimity] is to mock the goals of rationality and consistency required by modern day death penalty jurisprudence. [Id. at 311.]

Our decision in Ramseur also was guided by a 1985 amendment to the Act, N.J.S.A. 2C:11-3f, which requires that:

Prior to the jury’s sentencing deliberations, the trial court shall inform the jury of the sentences which may be imposed pursuant to subsection b. of this section on the defendant if the defendant is not sentenced to death. The jury shall also be informed that a failure to reach a unanimous verdict shall result in sentencing by the court pursuant to subsection b.

Thus, we required that “juries in capital cases be informed of, and free to exercise, their statutory option to return a final, non-unanimous verdict resulting in imprisonment if, after a reasonable period of deliberations, they are unable to agree.” Ramseur, supra, 106 N.J. at 312.

Here, the State argues that it was harmless error for the trial court to refuse to inform the jury that the failure to reach a unanimous verdict would result in a sentence of imprisonment. The State reasons that the possibility that the jury might be unable to reach a unanimous verdict could arise only if the jury first found both aggravating and mitigating factors and then disagreed about the balance of those factors. Because the jury found no mitigating factors existed, the State argues that the jury was not obliged to balance the factors. As a result, so the State argues, the possibility of a non-unanimous verdict regarding the outcome of the weighing process never arose. We disagree. The fallacy in the State’s argument is that it ignores the defects in the charge arising from the failure both to inform the jury that it need not be unanimous in finding the existence of any mitigating factor and to charge adequately the meaning of particular mitigating factors.

We find it to be insignificant that the error in Ramseur occurred in the supplemental charge, while the error in the present case occurred in the original charge. Indeed, the flaw in the Ramseur charge may be viewed as less serious because the trial court there instructed the jury at the outset of its deliberations that the failure to agree would be an acceptable verdict. In contrast, the jury in the present case never received this instruction. To prevent unacceptable speculation about the consequences of a non-unanimous verdict, the court must inform the jury of its option of returning a final, non-unanimous, verdict that would result in a minimum of thirty years of imprisonment without parole. In addition to that instruction, the special verdict forms provided to the jury should include as a possible verdict the inability of the jury to reach a unanimous decision.

The factual distinction between Ramseur and this case, however, may affect the issue of remedy. First, an error “which impact[s] substantially and directly on fundamental procedural safeguards, and particularly upon the sensitive process of jury deliberations,” cannot be considered harmless error. State v. Czachor, 82 N.J. 392 (1980). We noted in Ramseur that the “usual and proper remedy for such errors is reversal of the death sentence and a retrial of the sentencing proceeding in which the defendant may again face the death penalty.” 106 N.J. at 313. In Ramseur, however, the court’s failure to inform the jury of its sentencing options occurred after the jury had deliberated for four hours and “clearly demonstrated an inability or unwillingness to bring in an uncoerced unanimous verdict for the death sentence.” Ibid. The supplemental charge deprived the defendant of “not merely the theoretical possibility but a substantial likelihood that, absent the error, the jury would have reached a verdict resulting in imprisonment rather than death.” Id. at 314. Thus, we held, as a matter of fundamental fairness, that on remand the trial court should sentence the defendant as if the jury had reached a final non-unanimous verdict.

In the instant case, however, the jury never indicated “a substantial likelihood that, absent the error, [it] would have reached a verdict resulting in imprisonment rather than death.” The jury returned a unanimous verdict within fifty-three minutes without ever suggesting the possibility of deadlock. Thus, we do not regard it as “intolerably unfair” to require the defendant to undergo a second capital sentencing proceeding. Id.

8. Improper Charge on Balancing Aggravating and Mitigating Factors

The trial court charged the jury that “if the mitigating factors do not outweigh the aggravating factors, the sentence will be death.” This was an improper charge on the balancing of aggravating and mitigating factors. In Biegenwald, supra, 106 N.J. at 63-67, we held that as a matter of fundamental fairness, the death penalty may not be imposed unless the jury finds that “the aggravating factors outweigh the mitigating factors beyond a reasonable doubt.” The failure to instruct the jury as to this standard mandates reversal and retrial of the death penalty decision. Ibid. A 1985 amendment to the Act intended to “clarify” the previous law explicitly requires this balancing standard. As we stated in Biegenwald, it would be “both unjust, and probably outside the Legislature’s intent, not to give those previously tried the benefit of provisions intended to have been in the law in the first place.” Id. at 66-67. In another case, if no juror finds that any mitigating factor exists, the failure to give a proper weighing instruction could constitute harmless error. We need not, however, reach that issue in this case because the finding of no mitigating factors was tainted by the deficient instructions pertaining to those factors.

9. Additional Errors in the Penalty Phase

a. Admission of Photographs to Prove Aggravating Factor c(4)(c)

Defendant contends that the trial court erred in not suppressing certain photographs depicting the victim’s body, which were introduced by the prosecution, during the penalty phase to establish aggravating factor c(4)(c). The photographs and slides show the entire body of the victim, including her face, which was discolored and graphically described by the State’s pathologist as maggot infested. According to the defendant, the inflammatory nature of these pictures far exceeded their probative worth. In response, the prosecution contended that the pictures were the “best way” for the State “to show an aggravated battery and/or torture which arises from depravity of mind.” The trial court agreed and ruled that these pictures were admissible to prove aggravating factor c(4)(c).

It is well settled that “the admissibility of photographs of the victim of a crime rests in the discretion of the trial court, and the exercise of its discretion will not be reversed in the absence of palpable abuse.” State v. Thompson, 59 N.J. 396, 420 (1971); see also Evid.R. 4 (“the judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will * * * create a substantial danger of undue prejudice or of confusing the issues or misleading the jury”). Palpable abuse exists only where the “logical relevance will unquestionably be overwhelmed by the inherently prejudicial nature of the particular picture.” State v. Smith, 32 N.J. 501, 525 (1960), cert. denied, 364 U.S. 936, 81 S.Ct. 383, 5 L.Ed.2d 367 (1961).

In the instant case, of course, the pictures were required to be “logically relevant” to the issue of whether the murder committed by defendant was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim.” N.J.S.A. 2C:11-3c(4)(c). Other jurisdictions that have considered the admissibility of photographic evidence pursuant to variations of section e(4)(e) have held them admissible to prove that an offense was “vile,” Justus v. Commonwealth, 220 Va. 971, 266 S.E.2d 87, 93 (1980), or “especially heinous,” Smith v. State, 419 No. 2d 563, 567 (Miss.1982), cert. denied, 460 U.S. 1047, 103 S.Ct. 1449, 75 L.Ed.2d 803 (1983).

Under the reformulation of section c(4)(c) set forth in Ramseur, however, photographs would not be admissible to prove that a murder was “outrageously or wantonly vile, horrible or inhuman.” 106 N.J. at 197. Rather, evidence of the section c(4)(c) factor must relate to the intent of the defendant or pain of the victim. Specifically, to prove that the defendant intended to torture the victim or commit an aggravated battery on her, the prosecutor must show that the defendant “intended to cause, and did in fact cause, severe physical or psychological pain or suffering to the victim prior to the victim’s death”; and to prove that defendant acted with a depraved mind, the prosecutor must prove that the murder “served no purpose for the defendant beyond his pleasure of killing.” Id. at 211.

In light of our reversal of the sentence on other grounds, we need not determine whether the trial court abused its discretion in admitting the photographs. Nonetheless, we caution the court to evaluate any photographic evidence in light of the interpretation of the section c(4)(c) factor announced in Ramseur. Photographs may be admissible on torture and aggravated battery as proof of intent to inflict severe pain or on depravity to show mutilation after death. Pictures of gruesome details unrelated to the defendant’s state of mind, however, should be excluded.

b. Defendant’s Right to Make the Initial Opening Statement and Final Summation

Defendant argues that fundamental fairness demands that the defendant should make the initial opening statement and the final summation during the penalty phase of a capital trial. This argument is predicated on the false premise, implicit in the trial court’s instructions, that the defendant bore the burden of proof to demonstrate that the mitigating factors outweighed the aggravating factors. Because it bears the burden at the penalty trial to prove beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors, the State has the right to open and close. Ramseur, supra, 106 N.J. at 318 n. 81.

We affirm defendant’s murder conviction, but reverse the imposition of the death penalty and remand the matter for a new trial on sentencing.