State v. Cooper

700 A.2d 306, 151 N.J. 326, 1997 N.J. LEXIS 259

• Court: Supreme Court of New Jersey
• Decided: August 20, 1997
• Status: Published

Opinions

The opinion of the Court was delivered by

COLEMAN, J.

In May 1995, a Monmouth County jury convicted defendant, David Cooper, of the kidnapping, aggravated sexual assault, felony murder, and purposeful-or-knowing murder of L.G., a six-year-old girl, by his own conduct. The same jury sentenced him to death. This is defendant’s direct appeal from his conviction for capital murder and sentence of death. R. 2:2-1(a)(3). We affirm both the conviction and the sentence of death.

I

Procedural and Factual History

A Monmouth County Grand Jury indicted defendant on the following charges: purposeful-or-knowing murder by his own conduct, contrary to N.J.S.A. 2C:11-3a(1) or (2) (count one); felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count two); first-degree kidnapping, contrary to N.J.S.A. 2C:13-1b (count three); and two counts of first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(1) and 2C:14-2a(3) (counts four and five alleging rape and sodomy).

The State’s theory at trial was that defendant kidnapped the victim and took her underneath a porch where he raped her and then strangled her to escape detection or apprehension. An alternative theory was that defendant murdered the victim in the course of an aggravated sexual assault or kidnapping.

At trial, the defense conceded defendant’s guilt of felony murder, kidnapping, and aggravated sexual assault. The defense contested, however, that the murder was purposeful or knowing. Instead, defendant contended that the killing had occurred accidentally during the course of an aggravated sexual assault. Thus, he claimed that there had been no intent to strangle the child but rather that death had been caused by unintentionally placing pressure on her carotid artery for about thirty seconds.

-A-

Guitt Phase

On July 18,1993, the six-year-old victim, L.G., her mother, R.G., and the victim’s two sisters were at the home of R.G.’s sister-in-law, M.W., in Asbury Park. While M.W. was at the supermarket, R.G. sat on the front porch of the house with her youngest daughter. The victim and her other sister were with M.W.’s daughter playing in the frontyard. After playing in the frontyard for some time, the children moved into a fenced-in backyard.

While they were playing in the backyard, defendant lured the victim away from the other children and eventually picked her up, lifted her over the fence, and walked away with her. The other children went to the frontyard and told R.G. what had occurred. R.G., joined by M.W., who had just returned from the supermarket, began to search for and to call out to L.G., but they could not locate her. Soon after, neighbors joined in the search.

The Asbury Park Police Department was contacted shortly after L.G.’s disappearance, and police officers also joined the search. Within a few hours after the victim had disappeared, her body was found under a porch of an abandoned house. Defendant lived under that porch. L.G. was found lying on her back on a mattress with her shirt pulled up, her panties at her ankles, a pair of men’s boxer shorts over her face, and her vaginal area exposed and bloodstained.

The police found clothing and a bloodstained paper towel at arms’s length from L.G.’s body. The police also found a gym bag that contained a wallet. Inside the wallet was defendant’s social-security card. Defendant’s latent fingerprints were found on a paper bag and on a malt-liquor bottle in the porch area. Several letters, photographs, and other documents in defendant’s name were also found in the area.

That night, the police interviewed witnesses to the abduction, and defendant became a suspect almost immediately. Defendant was located the next day and was taken to police headquarters for questioning. The State concedes that defendant was in custody at that time. He was read his Miranda rights, and he signed a form waiving his rights to remain silent and to counsel. At that time, defendant denied any involvement in the child’s death.

Soon thereafter, Detective John Musiello confronted defendant with the evidence that the police had against him and told him that they would seek a court order to obtain forensic evidence from his person. No law-enforcement officer, however, informed defendant that he was facing a potential death sentence. Instead, they told him that the perpetrator was facing a term of life imprisonment with thirty years of parole ineligibility.

Defendant then confessed to causing L.G.’s death. According to slightly varying police testimony, he dropped his head and stated either: (1) “It was an accident. I did it. I was drunk;” or (2) “It’s an accident. I was drunk. I strangled her.” Defendant explained that he had seen children playing at M.W.’s house on his way to the porch of the abandoned house and that he had told L.G. to come to him. He lifted her over the fence and led her underneath the porch of the abandoned house. Defendant then stated, “Then we had sex, and I strangled her” and that he had left her body underneath the porch. After farther questioning, defendant admitted that he had ejaculated and that he had worn a condom which he later had discarded in a nearby field.

Defendant subsequently signed a formal written statement, in which he described the sexual penetration of L.G. as vaginal and stated that she had bled from her vagina during the penetration, causing blood to get on defendant’s clothes. He also told the police that he had been on top of L.G. during the'penetration and that his hands had been on her neck.

An autopsy of L.G.’s body revealed dried blood on the skin of her lower abdomen and external genitalia. Numerous internal injuries were found in her vaginal canal and cervix. Her hymen was not intact. Her anal canal also showed signs of injury. The autopsy revealed swelling in L.G.’s trachea and lungs, petechial hemorrhages on the outer surface of the thymus, and swelling in her brain.

The medical examiner concluded that the injuries on and around L.G.’s neck, the edema in her lungs, and the swelling in her brain were consistent with asphyxia caused by manual strangulation. He also concluded that pressure probably had been applied for approximately four to six minutes because, for edema to form in the lungs, pressure would have had to have been applied for three to six minutes, and for irreversible brain damage to occur from lack of oxygen, pressure would have had to have been applied for four to six minutes.

The police obtained seven discarded condoms from a field, close to the abandoned house, to which defendant had led them, and obtained from defendant samples of his hair, saliva, and blood. None of the condoms tested positive for semen, although one had blood on it. Blood was found on the paper towel discovered under the porch, on the cushion on which L.G. had been found, on two pairs of sneakers found under the porch, and on defendant’s jeans, t-shirt, and boxer shorts. No semen was found on L.G.’s clothes or person. Four pubic hairs found on L.G. were consistent with defendant’s pubic hair, although they could not be linked to him conclusively.

-B-

Penalty Phase

The penalty phase was conducted before the same jury. The State relied on three aggravating factors: (1) that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind, N.J.S.A. 2C:11-3c(4)(c); (2) that the murder occurred during the commission of an aggravated sexual assault or kidnapping, N.J.S.A. 2C:11-3c(4)(g); and (3) that the purpose of the murder was to escape detection or apprehension, N.J.S.A. 2C:11-3c(4)(f). Defendant’s mitigating evidence was limited to his life up to the age of seventeen. The defense, under the “catch-all” mitigating factor, N.J.S.A. 2C:11-3c(5)(h), submitted eighteen mitigating circumstances related to defendant’s life.

The defense presented an enormous amount of mitigating evidence about defendant’s tragic childhood, which was replete with numerous foster care placements, abuse, neglect, and exposure to violence, drugs, and alcohol. Several experts testified that the lack of stability in defendant’s life, his exposure to violence, and his lack of a relationship with his mother had affected him in numerous ways, such as making him aggressive and unable to empathize with others, as well as by reducing his ability to understand cause and effect. The defense also presented expert testimony that, as a result of defendant’s upbringing, he was extremely emotionally disturbed and that he had not developed normally.

The State’s strategy during the penalty phase was to emphasize the good aspects of defendant’s childhood. The prosecutor thus elicited testimony from defendant’s relatives about the positive aspects of his familial and foster-care relationships, which the prosecutor argued in summation.

The State rebutted defendant’s expert mitigating evidence by presenting testimony that defendant’s personality disorder was not treatable. The State’s expert also testified that defendant’s childhood would not prevent him from knowing the difference between right and wrong and would not make him unable to control his actions.

The jury unanimously found that the State had proven that defendant had committed the murder to escape detection, N.J.S.A. 2C:11-3c(4)(f), and that he had done so in the course of committing aggravated sexual assault and kidnapping, N.J.S.A. 2C:11-3c(4)(g). The jury, however, unanimously found that the State had failed to prove the existence of the c(4)(c) aggravating factor, namely, that the murder had involved depravity, N.J.S.A. 2C:11-3c(4)(c). Some or all of the jurors found the following mitigating factors: (1) that defendant had been denied nurturing as an infant (6 jurors); (2) that he had been born to drug and alcohol-dependent parents (12 jurors); (3) that drinking by his mother during pregnancy had contributed to defendant’s physical and developmental disabilities (2 jurors); (4) that his father had abused members of the family when defendant was an infant, thereby exposing him to violent and abusive behavior (8 jurors); (5) that his mother had abandoned him with relatives throughout his youth (3 jurors); (6) that his mother had neglected and abused him because of her own upbringing and dependence on alcohol (10 jurors); (7) that throughout his childhood, he had been exposed to excessive amounts of domestic violence and substance abuse (10 jurors); (8) that he had suffered through multiple placements and periodically had attended 11 different schools (10 jurors); (9) that he had been denied consistent treatment throughout childhood despite identification of emotional and psychological problems (3 jurors); (10) that his background had increased significantly his risk of engaging in substance abuse and antisocial behavior (8 jurors); (11) that he had been allowed to abuse drugs and alcohol at an early age (6 jurors); (12) that he had begun acting out during his childhood because of unresolved and untreated emotional disturbances (6 jurors); (13) that during his childhood, he had been exposed periodically to an unstable father (6 jurors); (14) that he had been deprived of a stable nurturing home throughout his childhood (5 jurors); (15) that he had not been provided with recommended and necessary therapy (4 jurors); and (16) that the sudden death of his mother had left him with unresolved grief issues that were not addressed through therapy (6 jurors). The jury unanimously rejected the following two factors: (1) that defendant had been denied exposure to proper role models during his childhood; and (2) the “any other reasons not mentioned” factor.

However, the jury unanimously found that the two aggravating factors together outweighed the mitigating factors beyond a reasonable doubt. Defendant was accordingly sentenced to death.

After the jury was discharged, the parties discovered that a graphic photo of wounds on the victim’s genitalia accidentally had been submitted to the jury during the penalty phase. The trial court subsequently denied defendant’s motion for a non-death verdict or, in the alternative, a new penalty-phase trial, concluding that the accidental submission of the photo had not prejudiced defendant because it had been admitted into evidence during the guilt phase.

That same day, the trial court sentenced defendant on the noncapital counts. The court merged the felony-murder conviction into the purposeful-or-knowing-murder conviction and sentenced defendant to thirty years to life. The two counts of aggravated sexual assault were merged with each other. The court then sentenced defendant on the kidnapping conviction to fifty years of imprisonment with a twenty-five-year parole-ineligibility bar and on the aggravated-sexual-assault conviction to a consecutive twenty-year term with a ten-year parole bar.

II

Jury Selection

Defendant asserts that he was denied an impartial jury because of juror Maria Hollenback’s alleged intent, formed during the trial, to seek employment at the Monmouth County Prosecutor’s Office. Defendant also contends that he was prejudiced by her omission during voir dire of the fact that her cousin was an inmate in a federal prison. For those reasons, defendant maintains that he is entitled to a new trial. Following an evidentiary hearing, the trial court found that Hollenbaek had not intended to seek employment at the Prosecutor’s Office until after the trial and that her obtaining employment there was “happenstance.” The court also concluded that her failure to reveal her cousin’s status as an inmate had been neither deliberate nor prejudicial.

Employment at Prosecutor’s Office

Defendant contends that, given the incredibly short time span between the verdict and Hollenback’s application and the numerous instances of her alleged perjury at the evidentiary hearing, the trial court clearly abused its discretion in concluding that she had never contemplated, during the trial, seeking employment at the Prosecutor’s Office and that she had no ulterior motive in convicting and sentencing defendant.

We reject defendant’s contention that the trial court erred in making factual findings that undermine his claim. The scope of our appellate review of those findings is limited to a determination of whether they are supported by credible evidence in the record. State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964). The trial court heard the testimony and saw the witnesses, thereby placing it in a much better position than this Court to judge credibility. The trial court recognized the inconsistencies in Hollenback’s testimony, but nevertheless found her to be candid. Implicit in that finding was the inability of the defense to offer any direct evidence that she had contemplated employment during the pendency of the trial.

We reject defendant’s assertion that Hollenback would have had an incentive to ingratiate herself with the Prosecutor’s Office by convicting and returning a death sentence. Absent supporting evidence, that possibility is pure speculation and assumes that Hollenback disregarded her oath for personal gain. The presumption that she followed her oath has not been rebutted. See State v. LaFera, 42 N.J. 97, 110, 199 A.2d 630 (1964).

-B-

Omission During Voir Dire

Defendant also seeks reversal of his conviction based on Hollenback’s omission, during voir dire, that she had a cousin in federal prison. When a juror incorrectly omits information during voir dire, the omission is presumed to have been prejudicial if it had the potential to be prejudicial. In re Kozlov, 79 N.J. 282, 239, 398 A.2d 882 (1979); Wright v. Bernstein, 23 N.J. 284, 293-96,129 A.2d 19 (1957); State v. Scher, 278 N.J.Super. 249, 262-68, 650 A.2d 1012 (App.Div.1994), certif. denied, 140 N.J. 276, 658 A.2d 299 (1995). As the Court stated in In re Kozlov, supra:

Where a juror on voir dire fails to disclose potentially prejudicial material, such as that involved in this case, a party may be regarded as having been denied [a] fair trial. This is not necessarily because of any actual or provable prejudice to his case attributable to such juror, but rather because of his loss, by reason of that failure of disclosure, of the opportunity to have excused the juror by appropriate challenge, thus assuring with maximum possible certainty that he be judged fairly by an impartial jury.

[79 N.J. at 239, 398 A.2d 882.]

In its application, however, that rule is not as all-encompassing as it appears at first glance. Although the rule does not require a litigant to demonstrate prejudice by showing that an improperly empaneled juror did not decide the case fairly, Wright, supra, 23 N.J. at 295, 129 A.2d 19, it does require a litigant to demonstrate that, had he or she known of the omitted information, he or she would have exercised a peremptory challenge to exclude the juror. Id. at 294, 129 A.2d 19. That is so because

[o]nce the jury is sworn, ... the law presumes that every juror in a case is indifferent and above legal exception, or otherwise he would have been challenged for cause. This presumption puts a duty on a party to show that they were or would have been dissatisfied with the jury as finally impaneled, and that they would have exercised the right of additional peremptory challenges given them by statute if they were aware of the true situation.

[Ibid, (emphasis added).]

In Wright, supra, the Court concluded that it had “no doubt had the prospective juror answered the inquiry truthfully, he would have been peremptorily challenged,” thus causing it to sustain the claim of prejudice. 23 N.J. at 294, 129 A.2d 19. Absent an affirmative showing that a litigant would have exercised a peremptory challenge to exclude a juror, the voir dire omission is harmless. See Scher, supra, 278 N.J.Super. at 266-68, 650 A.2d 1012. Such a rule makes sense because if a litigant would not have challenged the juror, the litigant could not have been prejudiced.

In the present case, it is highly unlikely that defendant would have exercised a peremptory challenge to excuse Hollenback had she disclosed her cousin’s imprisonment. Her answers during voir dire indicated that she could be receptive to psychiatric testimony and to mitigating evidence about defendant. For example, at one point, defense counsel asked her about her impression of the effects of a child’s upbringing on his or her future behavior:

Q: ... You also mentioned that — an interesting observation. Everybody has the potential to do wrong thinks [sic] but some people, they get a better chance at not doing the wrong thing or better opportunities to—

A: Yes.

Q: Could you explain—

A My observation — in my observation—

Q: Yeah. Sure that’s what we want.

A: Children, for example, whose parents bring them up, what we say is denominational of the Lord, we bring them up knowing right from wrong. In my observation, limited observation, those children, myself included, tend to, you know, have a narrow perimeter of behavior, you know.

Q: Of right and wrong? You’re more ... aware of it, is that what you’re saying? A: I guess if you are polished more. I don’t know why it is. I know there are things that in my observation children are brought up with that, within those perimeters and [t]hey’re better behaved just altogether, yeah.

...

Q: Now, as I explained that process, do you think that you could possibly consider the background of Mr. Cooper or perhaps when he was a child, when he was first being raised, could you consider that in the weighing process and determine whether he should live or die?

A: Sure.

Q: You say that with quite certainty. Can you explain that more to me.

A: Yes.

Q: Why do you say it so certain?

A: Because as I said to you before, I think how a child is brought up is relevant as he behaves as an adult or even as a child, sure.

Thus, during voir dire, Hollenback did not appear to be in any way a “bad” defense juror.

The question then becomes whether the additional information would have changed defense counsel’s acceptance of Hollenback. We are satisfied that it would not. First, she testified at the remand hearing that she was not close to her cousin, having neither seen him nor spoken to him since 1950. Second, as for her attitude toward those sent to prison, she stated that she occasionally sent Christmas cards to her cousin.

This information did not make Hollenback a less desirable juror from a defense perspective. Perhaps it is for that reason that defendant does not elaborate even in the most hypothetical way on the prejudice that he suffered vis-a-vis the omission and does not even assert that he would have struck Hollenback from the jury, simply stating that the omission “deprived [him] ... of information necessary to make intelligent use of his peremptory challenges.” That, however, simply is not the test under our law.

We conclude that the events surrounding Hollenback’s employment with the Monmouth County Prosecutor’s Office do not constitute reversible error. We also conclude that her voir dire omission was harmless.

III

Alleged Death Qualification of Juror

The essence of defendant’s argument is that the trial court erred by granting the prosecutor’s motion to dismiss juror Fred Rummel for cause because of his relatively uncommitted views on capital punishment. Defendant stresses that a capital juror may not be removed for cause simply because the State does not like his views on the death penalty and that, in order to be removed for cause, the juror’s qualms about capital punishment must prevent him from following the law. Defendant relies on Gray v. Mississippi 481 U.S. 648, 664-65, 107 S.Ct. 2045, 2054-55, 95 L.Ed.2d 622, 637 (1987), and asserts that an erroneous exclusion in this context can never be harmless.

A capital juror may only be excused for cause based on his or her views on the death penalty if such views would substantially impair his or her ability to follow the law during the trial. Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589 (1980); State v. Martini 131 N.J. 176, 210, 619 A.2d 1208 (1993) (Martini I), cert. denied, — U.S. -, 116 S.Ct. 203, 133 L.Ed.2d 137 (1995); State v. Ramseur, 106 N.J. 123, 255-56, 524 A.2d 188 (1987). Here, Rummel clearly stated that, although he was sympathetic to the possibility of rehabilitation, he believed in the death penalty and could impose it. He was thus not death-excludable.

A review of the record, however, reveals that Rummel was not excused because of his views on capital punishment. The prosecutor based her motion to excuse Rummel for cause on numerous responses that he gave, including his ambiguous views on the death penalty, his inconsistent responses, and his failure to disclose his political activities. She never argued that he was deathexcludable. Moreover, contrary to defendant’s assertion, the trial court did not “adopt[ ] the State’s reasoning” regarding the death penalty. Indeed, the court never even mentioned Rummel’s views on the death penalty in granting the prosecutor’s motion. Instead, it stressed the other irregularities in his testimony and answers on the juror questionnaire.

Apart from the lack of evidence of death-qualification, defendant cannot plausibly claim that he was prejudiced by Rummel’s dismissal. First, Rummel expressed no qualms about capital punishment. Second, although he later disavowed it, he stated in his questionnaire that he could not consider child abuse as mitigating evidence, which was the core of defendant’s penalty-phase defense. Third, he stated on his questionnaire that, given the brutal circumstances of the ease, he would not be able to judge the case impartially, although he later abandoned that view in court. Fourth, he had served as a juror in a prior murder case in which the jury had returned a guilty verdict. Finally, he stated that he knew a police officer involved in the ease. In sum, many defense attorneys would have characterized Rummel as anti-defense and would have considered him to be a liability were he to be selected to serve on a jury. Hence, we find defendant’s claim to be without merit.

IV

Admission of Defendant’s Statements

Defendant contends that his confession statement to the Asbury Police Department was involuntary because it was induced by a police officer’s material misrepresentation that he would face only a prison term, rather than a possible death sentence, for the murder. Defendant maintains that the admission of the statement at trial violated his rights under the Fifth and Fourteenth Amendments to the Federal Constitution, and Article I, paragraph 10, of the New Jersey Constitution.

On the night of his arrest, defendant provided the police with oral and written statements, in which he made numerous incriminating remarks regarding the kidnapping, rape, and murder of L.G. He moved to suppress the statements, arguing that they had been involuntarily obtained. The trial court held a hearing on July 8, 1994, during which Officer Valerie Williams, Detective John Musiello, and defendant testified. On August 4, 1994, the court held that defendant had voluntarily made the statements, and that they were admissible.

At issue during the hearing, among other things, was Detective Musiello’s statement to defendant, after defendant had denied any involvement in killing L.G. and immediately before defendant confessed. Detective Musiello stated that

the person that did this would be charged with murder and would be facing life imprisonment with a minimum of thirty years parole. I told him the person that did this, we had witnesses and we had forensic evidence and, again, we would be looking for Court orders to get exemplars and have the witnesses review photographs or persons in person.

Detective Musiello admitted that he had not informed defendant that the death penalty was a potential punishment for the murder.

Defendant testified that

Detective Fazio ... drew a diagram ... [w]ith a seven on one side of a line and fifty on the other side of the line. And he told me if I confess to the crime, he would say that all I would get is a manslaughter charge which would be seven years. He said if I do not work with them, he would say I would get fifty or more years. He says, we, meaning him and the other detectives, were being nice to you, but you keep fucking us around we’re going to send the other detectives in here, and they’re not going to be as nice as we have been to you.

Defendant stated that, in addition to believing that he would get a reduced charge if he confessed, he believed that the officers would hit him if he did not confess. Detective Musiello denied having said anything about a reduced charge.

In denying defendant’s suppression motion, the trial court found that Detective Musiello had told defendant that he was facing thirty years in prison without parole. However, the court did not find the statement to be threatening, instead the court characterized it as “kind of factual.” The court also found that the detectives had not promised defendant a reduced sentence; they simply had informed him “what the facts were.” The court concluded that the statement was voluntary and that defendant was intelligent and strong enough not to be intimidated by the officers.

Defendant’s claim raises a mixed factual-legal issue: whether Detective Musiello’s statement about thirty years of imprisonment being the punishment for murder rendered defendant’s waiver involuntary or unknowing. Defendant has not raised on appeal any other grounds for suppression despite his testimony at the suppression hearing that he had feared physical abuse during the interrogation.

A custodial confession is admissible only if there has been a knowing, intelligent, and voluntary waiver of Miranda rights. Miranda v. Arizona, 384 US. 436, 444, 86 S.Ct. 1602, , 16 L.Ed.2d 694, 707 (1966). To determine voluntariness, courts examine the totality of the circumstances. State v. Galloway, 133 N.J. 631, 654, 628 A.2d 735 (1993). Although misrepresentations by police officers to the subject of an interrogation are relevant in analyzing the totality of the circumstances, People v. McClary, 20 Cal.3d 218, 142 Cal.Rptr. 163, 169, 571 P.2d 620, 626 (1977) (holding that confession was involuntary based on various circumstances of interrogation, including misrepresentation about defendant’s death-eligibility), misrepresentations alone are usually insufficient to justify a determination of involuntariness or lack of knowledge. Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684, 693 (1969); Galloway, supra, 133 N.J. at 653-57, 628 A.2d 735; State v. Miller, 76 N.J. 392, 402-05, 388 A.2d 218 (1978); State v. Lapointe, 237 Conn. 694, 678 A.2d 942, 960-61, cert. denied, — U.S. -, 117 S.Ct. 484, 136 L.Ed.2d 378 (1996); State v. Register, 476 S.E.2d 153, 158-59 (S.C.1996), cert. denied, — U.S. -, 117 S.Ct. 988, 136 L.Ed.2d 870 (1997). Moreover, a misrepresentation by police does not render a confession or waiver involuntary unless the misrepresentation actually induced the confession. People v. Benson, 52 Cal.3d 754, 276 Cal.Rptr. 827, 841-43, 802 P.2d 330, 344-45 (1990) (holding that comment by officer that case was not death-eligible did not render confession involuntary because comment did not cause defendant to confess).

The statement by Detective Musiello is not entirely inaccurate. As the State emphasizes, the ordinary sentence for murder is life imprisonment with thirty years of parole ineligibility. N.J.S.A. 2C:11-3b. The death penalty only comes into play when the prosecutor, not police officers, charges a death-eligible form of murder under N.J.S.A. 2C:11-3c, and submits notice of at least one aggravating factor. N.J.S.A. 2C:11-3c(2)(e); R. 3:13-4(a). Although a police officer may suspect that the murder will be death-eligible, the officer has no way of knowing for sure.

The totality of the circumstances involved more than a statement about potential sentences. Detective Musiello also informed defendant about the investigatory steps that were being taken to tie him to the murder. Considered as a whole, the statement that induced defendant to confess was not a promise of “mere” life imprisonment, but rather an attempt to convey to defendant the seriousness of the offense, the seriousness of the sentence that he was facing, and the strong case that the police officers were building against him. Although the statements by the police might have included some puffery, they were, as the trial court described them, “factual.”

Given the totality of the circumstances, the atmosphere during defendant’s interrogation and confession was not coercive. The trial court found that defendant’s confession was given after a knowing and voluntary waiver of his Miranda rights. That conclusion is supported by the record. Johnson, supra, 42 N.J. at 162, 199 A.2d 809. We thus affirm that finding.

V

Jury Instruction, Guilt Phase

Defendant has raised several claims based on his assertions that the jury instructions failed to make the jury aware of the legal effect of its findings. He maintains that the jury should have been instructed under a “unified-murder charge,” where the sole issue before the jury would be defendant’s state of mind during the murder. He also complains that the sequential presentation of the murder charge deprived him of an opportunity for the jury to convict him of noncapital felony murder. Finally, he contends that it was reversible error not to give an ultimate-outcome charge during the guilt phase regarding the sentence for felony murder.

Unified-Murder Charge

During the guilt phase, defendant requested that the trial court charge the jury that it could find him guilty of the general crime of murder without being unanimous about the type of murder he had committed, namely, purposeful-or-knowing murder or felony murder. Because felony murder is not death-eligible, a verdict split between purposeful-or-knowing murder and felony murder would be a non-death-eligible murder conviction.

Defendant argued that this Court’s holding in State v. Brown, 138 N.J. 481, 509-14, 651 A.2d 19 (1994) (requiring instruction on possibility of nonunanimity in determination of principal-liability murder versus accomplice-liability murder), compelled a similar instruction on nonunanimity in the context of felony murder versus purposeful-or-knowing murder. Defendant also relied on State v. Mejia, 141 N.J. 475, 486-87, 662 A.2d 308 (1995) (requiring instruction on possibility of nonunanimity in determination of intent to kill versus intent to cause serious bodily injury). The trial court denied the defense request, concluding that the concept of one unified crime of murder was not the law in New Jersey. The court thus severed the jury’s consideration of purposeful-or-knowing murder from its consideration of felony murder.

Defendant contends that, given the structure of the murder statute, there is one crime of murder in New Jersey, as opposed to distinct crimes of capital and noncapital murder. He argues that under New Jersey’s murder statute, N.J.S.A. 2C:11-3, three mental states give rise to murder: (1) purpose (to kill or to cause serious bodily injury), N.J.S.A. 2C:11-3a(1); (2) knowledge (that death will occur or that serious bodily injury will occur), N.J.S.A. 2C:11-3a(2); and (3) the mental state necessary for a predicate felony to felony murder, N.J.S.A. 2C:11-3a(3). He argues that that structure indicates that, in New Jersey, there is one crime of murder with various theories to support a murder conviction; some of those theories — purpose to cause death or knowledge that death will occur — trigger death-eligibility, N.J.S.A. 2C:11-3(c), while the other theories — purpose to cause serious bodily injury (prior to the 1992 amendment to Article I, paragraph 12 of the New Jersey Constitution), knowledge that serious bodily injury will occur (prior to the 1992 amendment), and felony murder — do not. Defendant asserts that, despite the fact that different theories may or may not trigger death-eligibility, the fact remains that there is one crime of murder and no such thing as distinct crimes of capital and noncapital murder.

The State responds by arguing that felony murder is entirely distinct from other types of murder because it has different elements than purposeful-or-knowing murder and is a lesser crime, as evidenced by its non-death-eligible status. The crux of the State’s argument is that felony murder is not the moral equivalent of purposeful-or-knowing murder (be it intent-to-kill or intent-to-inflict-serious-bodily-injury murder) because felony murder, unlike the others, requires only an intent to commit an underlying felony as opposed to an intent to kill or an intent to cause serious bodily injury that results in death. The State also points to several of this Court’s decisions that have implicitly recognized the distinct nature of felony murder by holding that trial courts may charge sequentially on the various theories, State v. Perry, 124 N.J. 128, 164-65, 590 A.2d 624 (1991) (approving of sequential charge for non-felony-murder offenses), and that a purposeful-or-knowing-murder conviction may be vacated without vacating a felony-murder conviction. State v. Pennington, 119 N.J. 547, 556, 575 A.2d 816 (1990) (reversing purposeful-or-knowing-murder conviction without setting aside felony-murder conviction).

A determination of how felony murder fits into the capital-murder context must begin with an examination of the structure of the murder statute, N.J.S.A. 2C:11-3, and the Death Penalty Act, N.J.S.A. 2C:11-3c to -3i. The murder statute was part of the New Jersey Code of Criminal Justice (“the Code”), L. 1978, c. 95, that became effective September 1, 1979. N.J.S.A. 2C:98-4. The Code defines murder as follows:

a. Except as provided in N.J.S.2C:11-4 criminal homicide constitutes murder when:

(1) The actor purposely causes death or serious bodily injury resulting in death; or

(2) The actor knowingly causes death or serious bodily injury resulting in death; or

(3) It is committed when the actor [commits felony murder],

[N.J.S.A. 2C:11-3a.]

Thus, the Code defines three forms of murder: purposeful murder (with intent to kill or to inflict serious bodily injury), knowing murder (with knowledge/awareness that death or serious bodily injury will occur), and felony murder. N.J.S.A. 2C:11-3a.

Although the death penalty had been proposed at the time the Code was enacted, the Death Penalty Act did not become law until August 6, 1982. L. 1982, c. 111, §§ 1, 3. To implement the death penalty, the Legislature changed the penalty section of the murder statute, N.J.S.A. 2C:11-3b, to add “except as provided in subsection c. of this section.” L. 1982, c. 111, § 1. Subsection “c” limits capital murders to purposeful-or-knowing murderers “who commit[ ] the homicidal act by [their] own conduct; or who as an accomplice procure[ ] the commission of the offense by payment or promise of payment of anything of pecuniary value; or who, as ... leader[s] of ... narcotics trafficking network[s]” as defined in N.J.S.A. 2C:35-3, command the killing. N.J.S.A. 2C:11-3c.

Unlike some jurisdictions, the New Jersey Legislature has not made felony murder death-eligible. Some jurisdictions that have made felony murder death-eligible have adopted the unified-murder concept. E.g., State v. Encinas, 132 Ariz. 493, 647 P.2d 624, 627-28 (1982); People v. Milan, 9 Cal.3d 185, 107 Cal.Rptr. 68, 73-74, 507 P.2d 956, 961-62 (1973); Brown v. State, 473 So.2d 1260, 1265 (Fla.1985); People v. Travis, 170 Ill.App.3d 873, 121 Ill.Dec. 830, 840-41, 525 N.E.2d 1137, 1147-48 (1988); State v. Nissen, 252 Neb. 51, 560 N.W.2d 157, 165 (1997); Crawford v. State, 840 P.2d 627, 640 (Okla.Crim.App.1992).¹

Although under our prior death-penalty statute, N.J.S.A. 2A:113-4 (repealed 1978), felony murder made a defendant death-eligible, N.J.S.A. 2A:113-2, -4 (repealed 1978), the Legislature elected not to continue that practice under our current Death Penalty Act. Therefore, New Jersey, unlike jurisdictions that have a unified-murder concept based on felony murder being a death-eligible offense, has intentionally rejected the predicate for a unified-murder charge. The fact that the Legislature has established the identical sentence for noncapital purposeful-or-knowing murder as it has for felony murder should not be determinative of whether to require a unified-murder charge. It is the culpable mental state plus the aggravating circumstances that determine death-eligibility and that also distinguish capital murder from felony murder.

The mental states required to convict for purposeful murder and knowing murder are “equivalent expressions of moral culpability.” State v. Bey, 129 N.J. 557, 582, 610 A.2d 814 (1992) (Bey III). Unlike purposeful-or-knowing murder, felony murder is an absolute liability crime because a defendant need not have contemplated or intended the victim’s death. State v. Martin, 119 N.J. 2, 20, 573 A.2d 1359 (1990); State v. McClain, 263 N.J.Super. 488, 491, 623 A.2d 280 (App.Div.), certif. denied, 134 N.J. 477, 634 A.2d 524 (1993); State v. Darby, 200 N.J.Super. 327, 331, 491 A.2d 733 (App.Div.1984), certif. denied, 101 N.J. 226, 501 A.2d 905 (1985). The only mental state required for felony murder is the specific mental culpability required to commit one of the particular underlying felonies specified in N.J.S.A. 2C:11-3(a)(3). Because the mens rea for purposeful-or-knowing murder is different from that required for felony murder, we do not believe that the Legislature intended to create a unified crime of murder. This Court has acknowledged in a capital ease that the “elements are different” in felony murder than they are in purposeful-or-knowing murder. State v. Purnell, 126 N.J. 518, 531, 601 A.2d 175 (1992).

We conclude that felony murder is not the moral equivalent of purposeful-or-knowing murder. We believe the Legislature intended that death-eligibility be viewed as the touchstone of moral equivalence. Defendant’s reliance on State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988); Purnell, supra, 126 N.J. 518, 601 A.2d 175; Brown, supra, 138 N.J. 481, 651 A.2d 19; and Mejia, supra, 141 N.J. 475, 662 A.2d 308, to support his claim of entitlement to a unified-murder charge is misplaced.

Gerald, supra, held that the imposition of the death penalty for serious-bodily-injury murder violated the New Jersey Constitution’s ban on cruel and unusual punishment. 113 N.J. at 89, 549 A.2d 792. The Constitution was amended, effective December 3, 1992, see Acts of the First Annual Session of the Two Hundred and Fifth Legislature of the State of New Jersey and Thirty-Fifth Under the New Constitution: Chapters 76-215, at 1429 (1992) (“Acts”), to overturn Gerald. See Assembly Judiciary, Law and Public Safety Committee, Statement to Assembly Bill No. 2113— L.1993, c. Ill (“Statement”). To ensure that the amendment would be given full effect, the Legislature amended the Death Penalty Act to make murderers who intend to commit serious bodily injuries death-eligible. Ibid.; L. 1993, c. 111 (approved May 5, 1993).

Purnell, supra, requires that in a capital-murder case, “all forms of homicide rationally supported by the evidence ... should be placed before the jury.” 126 N.J. at 530, 601 A.2d 175. Purnell does not contemplate a unified-murder charge. Rather, it requires that felony murder be submitted to the jury in capital eases if rationally supported by the evidence even if it is not technically a lesser-included offense of capital murder. Id. at 530-34, 601 A.2d 175. In Purnell, the rational basis was the State’s reliance on death occurring in the course of a felony as an aggravating factor even though felony murder was not charged in the indictment. Id. at 523-24, 601 A.2d 175.

Brown, supra, involved a death-eligible murder with a factual scenario that required the jury to decide whether the defendant acted as a non-death-eligible accomplice or as a death-eligible principal. 138 N.J. at 509, 651 A.2d 19. Similarly, a nonunanimity possibility was submitted to the jury in Mejia, supra, a 1991 capital case in which the jury had to decide whether the defendant was death-eligible based on an intent to kill, or non-death-eligible based on an intent to cause serious bodily injuries. 141 N.J. at 479, 482-83, 662 A.2d 308. The constitutional amendment that overturned Gerald was not yet in effect when the Mejia murder occurred.

Because the Legislature has decreed that felony murder is not a death-eligible offense and our capital jurisprudence, stressing the importance of providing a jury with every opportunity to spare a defendant’s life, has been limited to purposeful-or-knowing-murder cases in which the jury had to resolve a factual dispute determinative of whether that murder was death-eligible, we decline to extend that jurisprudence to noncapital murder. Those cases have been restricted to capital murder as defined in N.J.S.A. 2C:11-3c for which notice of aggravating factors has been given. N.J.S.A. 2C:11-3c(2)(e).

Moreover, to permit a jury to return a nonunanimous verdict on a charge of felony murder contradicts “[o]ne of the nearly-universal hallmarks of trial by jury [which] is the requirement of a unanimous verdict in criminal cases. The roots of the search for jury unanimity are traced in 3 William Blackstone, Commentaries *375-76.” Brown, supra, 138 N.J. at 594, 651 A.2d 19 (O’Hern, J., dissenting in part). The public’s right “to see that a criminal prosecution proceeds to a verdict either of acquittal or conviction is predicated on ‘the public’s interest in fair trials designed to end in just judgments.’ ” Id. at 597, 651 A.2d 19 (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978 (1949)). The Legislature never contemplated such a draconian change in the handling of murder cases.

Aside from the absence of any legislative intent to create a unified crime of murder, the intermingling of death-eligible murder with non-death-eligible murder would create utter chaos when instructing a jury. This Court consistently has emphasized the need for clear and correct jury instructions. Martini I, supra, 131 N.J. at 271, 619 A.2d 1208; State v. Collier, 90 N.J. 117, 122, 447 A.2d 168 (1982). Jury instructions are supposed to serve as “a road map to guide the jury.” Martin, supra, 119 N.J. at 15, 573 A.2d 1359. Rather than guiding a jury, a unified-murder charge in a case in which felony murder is not a death-eligible offense would lead a jury “down the wrong path ... to a verdict not permitted under our law.” State v. Grey, 147 N.J. 4, 14, 17, 685 A.2d 923 (1996). It would cause extraordinary confusion, ultimately requiring reversal of any murder or felony-murder conviction. Given the absence of any legislative intent to create a unified crime of murder and the confusion such a charge would create, we conclude that the trial court properly rejected the request to give a unified-murder charge.

Sequential Presentation of Purposeftd-or-Knowing-Murder Charge and Felony-Murder Charge

Defendant contends that the trial court’s refusal to instruct the jury to consider purposeful-or-knowing murder and felony murder simultaneously, contravened this Court’s jurisprudence on sequential presentation of charges. Defendant maintains that in a capital ease, sequential presentation of felony murder as an alternative to, or as a lesser-ineluded offense of, capital murder creates a risk-that the jury will convict of the capital murder without considering felony murder as an alternative.

The State responds by arguing that a sequential charge is not inherently prohibited and that, except in a small number of instances, sequential deliberations provide the jury with a good framework in which to work. The State contends that the only danger of sequential deliberations is stratification of jury thought, which can be avoided by clear instructions and a clear verdict sheet. The State further asserts that, in this case, instructing first on purposeful-or-knowing murder did nothing to preclude jury consideration of felony murder and that if the jury had had any reasonable doubt about the purposeful-or-knowing nature of the killing, it would have acquitted defendant.

Unlike Purnell, supra, 126 N.J. 518, 601 A.2d 175, and some other capital cases, defendant also was indicted for felony murder based on the homicide occurring during the commission of an aggravated sexual assault and a kidnapping. In Purnell, and the present case, the State relied on the c(4)(g) aggravating factor, that a homicide occurred during the course of a felony. Id. at 529, 601 A.2d 175. The defense theory relating to the felony-murder charge in the present case was based on the assertion that defendant had accidentally compressed L.G.’s carotid artery for about thirty seconds while raping her. On the basis of that contention and evidence presented, the trial court in the present case found a rational basis in the evidence to charge felony murder. The trial court in Purnell, however, did not submit felony murder to the jury, notwithstanding the State’s evidence that the homicide had occurred during the commission of a felony. Ibid.

Purnell held that in a capital case,

all forms of homicide rationally supported by the evidence, whether they be lesserineluded or alternative offenses, should be placed before the jury. To truncate the definitions of the murder statute and thus deny a jury the mechanism to decide which of the forms of murder has been proven is unacceptable. State v. Long, 119 N.J. 439, 462, 575 A.2d 435 (1990). In that respect, defendant’s claim of entitlement to a felony-murder charge is similar to a request for a lesser-ineluded offense charge. We have regularly held that a defendant is entitled to such a charge if there is any evidence “that would have afforded the jury a rational basis for convicting” the defendant of the lesser-included offense. State v. Moore, 113 N.J. 239, 290, 550 A.2d 117 (1988). In State v. Ramseur, supra, 106 N.J. 123, 524 A.2d 188, we held that a trial court must charge the jury regarding “all of the possible offenses that might reasonably be found from such facts.” Id. at 271 n. 62 [524 A.2d 188], [113 N.J. 239] 550 A.2d 117. Although strictly speaking felony murder is not a lesser-ineluded offense of murder in the sense that its elements are different, the statutory definition of lesser-ineluded offenses, as we noted in State v. Sloane, 111 N.J. 293, 300, 544 A.2d 826 (1988), is not “all-encompassing,” nor are the statutory categories “water-tight compartments.” As Justice Stein has noted, Shane suggests that in certain circumstances, subject to the requirements of fair notice, an offense, if supported by the evidence, should be charged to the jury even though it does not meet the Code’s definition of lesser-ineluded offense. State v. Mancine, 124 N.J. 232, 265, 590 A.2d 1107 (1991) (Stein, J., concurring). That principle “comports with our general view that subject to fair notice the jury should resolve the degree of an actor’s guilt on the basis of the evidence presented to the jury.” Sloane, supra, 111 N.J. at 300, 544 A.2d 826.

[Purnell, supra, 126 N.J. at 530-31, 601 A.2d 175.]

The “alternative offense” in Purnell was felony murder and the jury should have been charged as if it were a lesser-included offense. Id. at 531, 601 A.2d 175. Purnell does not remotely suggest that the noncapital offense of felony murder be charged simultaneously with a capital offense.

One of the problems addressed in State v. Long, 119 N.J. 439, 575 A.2d 435 (1990), was the trial court’s failure to give a Gerald charge. Id. at 460-65, 575 A.2d 435. In Long, neither the indictment, the jury charge, nor the verdict sheet informed the jury that intent to cause death triggered death-eligibility, but an intent to cause serious bodily injury did not. Id. at 461-62, 575 A.2d 435. Although both forms of intent constituted purposeful- or-knowing murder, the two forms were not explained to the jury in terms of death-eligibility. Ibid. Intent-to-kill murder makes a defendant death-eligible, N.J.S.A. 2C:11-3c; intent-to-cause-serious-bodily-injury murder, at the time the case was decided, did not trigger death-eligibility. Gerald, supra, 113 N.J. at 89, 549 A.2d 792. Thus, under Long, the alternative offense that must be submitted to the jury as an option is the Gerald and Mejia noncapital serious-bodily-injury offense.

In addition, Purnell mandates that in a capital case in which the murder was committed in the course of one of the felonies specified in N.J.S.A. 2C:11-3a(3), the death penalty may not be imposed unless the felony-murder option has been submitted to the jury, provided that a rational basis exists in the evidence. Purnell, supra, 126 N.J. at 530-34, 601 A.2d 175. The Purnell Court acknowledged that although the elements of felony murder may differ from those of a capital murder, and therefore that it may not be a traditional lesser-included offense, it nonetheless should be treated as a lesser-included offense when deciding what offenses must be submitted to the jury. Id. at 531, 601 A.2d . Here, the felony murder was submitted to the jury pursuant to Purnell and Count Two of the indictment based on the allegation that the homicide occurred during the course of a kidnapping and rape. Analytically, therefore, we regard felony murder as a lesser-included offense of capital murder for purposes of deciding the appropriateness of sequential jury instructions.

Ordinarily, juries may not consider lesser-included offenses until they have acquitted of the greater offense. State v. Harris, 141 N.J. 525, 552-58, 662 A.2d 333 (1995); State v. Coyle, 119 N.J. 194, 223, 574 A.2d 951 (1990). The rationale behind the sequential ordering of greater- and lesser-included offenses is that the jury must convict of the crime supported by the evidence, as opposed to compromising between jurors who want the greater charge and jurors who want to acquit. See Harris, supra, 141 N.J. at 553, 662 A.2d 333 (“[I]t is the duty of the jury not to reach compromise verdicts based on sympathy for the defendant or to appease holdouts, but to render a just verdict by applying the facts it finds to the law it is charged.”) (internal quotations omitted). Thus, if jurors are split between the greater charge and acquittal, the result is a hung jury.

The trial court used the following verdict sheet in the present case regarding the murder charges:

COUNT I

PURPOSEFUL OR KNOWING MURDER

Did the defendant, David Cooper, purposely or knowingly cause the death of [L.G.]?

NOT GUILTY _

GUILTY _

If, and only if you find the defendant guilty answer the following:

1. We unanimously find the defendant committed the murder by his own conduct.

2. We unanimously find the defendant did not commit the murder by his own conduct.

3. We do not unanimously agree that the defendant committed the murder by his own conduct.

(Only if your verdict is guilty of murder for purposely or knowingly causing death by his own conduct, will the trial proceed to the death penalty phase.)

COUNT II

Felony Murder

Did the defendant, David Cooper, cause the death of [L.G.] while in the course of, or in flight after committing the crime of kidnapping and/or sexual assault?

(If your verdict is not guilty of purposeful or knowing murder and guilty of felony murder there will be no death penalty phase.)

If and only if you find defendant, David Cooper, Guilty of Purposeful or Knowing Murder go to Count 3.

If and only if you find the defendant, David Cooper, Not Guilty of Purposeful or Knowing Murder, you must answer the following:

Aggravated Manslaughter

Did the defendant, David Cooper, under circumstances manifesting extreme indifference to the value of human life recklessly cause the death of [L.G.]?

If, and only if your answer is Not Guilty answer the following:

Manslaughter

Did the defendant, David Cooper, recklessly cause the death of [L.G.]?

The trial court employed the verdict sheet and asked the jury to deliberate first on purposeful-and-knowing murder, then on felony murder, and finally on aggravated and reckless manslaughter. After charging purposeful-or-knowing murder, the court stated:

Before you may conclude defendant committed the murder by his own conduct you must be convinced of this fact beyond a reasonable doubt. If you have a reasonable doubt as to whether the killing was by his own conduct or if you are unable to reach a unanimous decision beyond a reasonable doubt as to whether defendant committed the murder by his own conduct, that is a permissible final verdict on this issue that would result in the imposition of a mandatory sentence for murder of at least thirty years in prison without parole.

If after a consideration of all the evidence you are convinced beyond a reasonable doubt that the defendant either purposely or knowingly caused [L.G.’s] ... death then your verdict should be guilty. If, however, after a consideration of all the evidence you find the State has failed to prove each and every element of the offense beyond a reasonable doubt your verdict must be not guilty and you go on to consider whether defendant should be convicted of the next count in the indictment which is felony murder.

At the conclusion of the felony murder charge, the jury was instructed that “[ujnder our law a person may be found guilty of a purposeful-or-knowing murder and also can be found guilty of felony murder.” At the request of defense counsel, the court clarified its instruction:

I might have told you and I don’t remember exactly, but in regard to knowing or purposeful murder the First Count. I might have said if you found him not guilty then you move onto the Second Count of felony murder. That’s not so— notwithstanding your verdict under First Count knowing and purposeful murder you will move to felony murder irrespective of that verdict____ I should also tell you that in regard to the felony murder if your verdict is not guilty of purposeful or knowing murder and guilty of felony murder there will be no death penalty phase. Just so you know that.

Later in the charge, while reading from the verdict sheet, the court stated: “If your verdict is not guilty of purposeful or knowing murder and guilty of felony murder there will be no death penalty phase.”

Although Purnell requires that in a capital case, a felony-murder charge must be submitted to the jury if a rational basis for that charge exists, Purnell, supra, 126 N.J. at 530-34, 601 A.2d 175, it does not discuss the placement of the felony-murder charge. Purnell represents a hybrid. It is not clearly like a lesser-included offense because regardless of the verdict on the purposeful-or-knowing murder, the jury still must be instructed to consider the felony murder in a capital case if a rational basis exists. As in Purnell, the felony-murder charge in the present ease had to be considered by the jury regardless of the jury’s verdict on purposeful-or-knowing murder. Today, we have rejected the unified-murder concept, which, for charging purposes, would have made the sequential aspect of the charge similar to passion/provocation manslaughter in a purposeful-murder case. Coyle, supra, precludes sequential instructions in such cases and requires that the passion/provocation charge be incorporated into the purposeful-murder charge. 119 N.J. at 223-24, 574 A.2d 951.

Absent a passion/provocation ease, Coyle states that “there is nothing inherently wrong with the [sequential] model charge for purposeful murder.” Id. at 223, 574 A.2d 951. Other than in the passion/provocation context, “sequential charges usually provide a framework for orderly deliberations.” Ibid.; State v. Zola, 112 N.J. 384, 405, 548 A.2d 1022 (1988).

The Coyle passion/provocation exception was created because the State could not obtain a conviction for purposeful murder without proving beyond a reasonable doubt that the purposeful killing was not the product of passion/provocation. State v. Powell, 84 N.J. 305, 314, 419 A.2d 406 (1980). Viewed in that context, the mental states for those two offenses were interrelated; they shaded from one into the other. In sharp contrast, there is no connection between the required mental state for purposeful-or-knowing murder and that for felony murder, the latter being a strict-liability offense. Consequently, we hold that it is proper in a capital case to sequentially charge capital murder and felony murder.

We still adhere to the view, however, that “ ‘care must be taken to avoid the stratification of thought that would deter a jury from returning the proper available verdict.’ ” Harris, supra, 141 N.J. at 553, 662 A.2d 333 (quoting Zola, supra, 112 N.J. at 406, 548 A.2d 1022). Here, we are satisfied that the jury was not stratified in its deliberations, and the charge did not deter it from returning the proper available verdict.

The trial court followed the Model Jury Charge in all respects. The jury was instructed that, notwithstanding its verdict on purposeful-or-knowing murder, it also had to consider felony murder. By telling the jury to begin deliberating with purposeful- or-knowing murder, the court started the jury’s deliberations in an orderly fashion. The jury was never told that it could not consider felony murder until after it had completed its deliberations on purposeful-or-knowing murder. Moreover, defense counsel, as a matter of trial strategy, conceded that defendant was guilty of felony murder. Given the way the ease was submitted to the jury, the sequential charge did not deter the jury from returning the proper verdict.

-C-

Lack of Ultimate-Outcome Charge in Guilt Phase

Defendant further contends that the trial court’s refusal to instruct the jury, or to allow defense counsel to inform the jury, of the legal effect of its guilt-phase decisions, including the potential sentence for the noncapital offense of felony murder, requires reversal.

At a charging conference, defense counsel requested that the jury be instructed that if it acquitted defendant of purposeful-or-knowing murder, thereby making him ineligible for the death penalty, but found him guilty of felony murder, kidnapping, and aggravated sexual assault, he would be required to serve a minimum of fifty-five years in prison before becoming eligible for parole. The court also refused to permit defense counsel to tell the jury what the minimum alternative sentence would be. The court reasoned that it was sufficient to instruct that a felony-murder conviction without a purposefiil-or-knowing-murder conviction, would preclude a penalty phase.

The court then instructed the jury that if it returned a guilty verdict on purposeful-or-knowing murder, the minimum sentence would be thirty years to life. The instruction also stated that “[o]nly if your verdict is guilty of murder purposely or knowingly causing death by his own conduct, will the trial proceed to the penalty phase____ If your verdict is not guilty of purposeful or knowing murder and guilty of felony murder there will be no death penalty phase.” The court, in accordance with its prior ruling, did not instruct the jury regarding the sentence for felony murder.

Generally, juries in criminal cases are not informed of the consequences of returning guilty verdicts. “It is the function of the jury to adjudge the degree of guilt and for the court to pronounce the sentence.” State v. Grillo, 11 N.J. 173, 189, 93 A.2d 328 (1952); State v. Bunk, 4 N.J. 461, 476, 73 A.2d 249 (1950); State v. Molnar, 133 N.J.L. 327, 335, 44 A.2d 197 (E. & A.1945). That rule prevailed in capital and noncapital cases in this State prior to the Court’s decisions in Brown in 1994 and Mejia in 1995.

Defendant argues that as in Mejia, supra, where the Court required that the jury be informed during the guilt phase of the consequence of convicting of a non-death-eligible alternative offense (in that ease, serious-bodily-injury murder), 141 N.J. at 486-87, 662 A.2d 308, the trial court here should have informed the jury of the consequences of convicting of felony murder, which is also a non-death-eligible alternative offense. Defendant reads Mejia and our death-penalty jurisprudence too broadly. In the process, he fails to separate the role of the jury in determining death-eligibility in the guilt phase of a capital case, from the jury’s role as sentencer in the penalty phase. Bifurcating capital trials “into a guilt-determination phase and a penalty phase tends to prevent the concerns relevant at one phase from infecting jury deliberations during the other.” Sumner v. Shuman, 483 U.S. 66, 85 n. 13, 107 S.Ct. 2716, 2727 n. 13, 97 L. Ed.2d 56, 71-72 n. 13 (1987); see also State v. Biegenwald, 126 N.J. 1, 44, 594 A.2d 172 (1991) (Biegenwald IV).

Although bifurcated guilt and penalty phases in capital cases are not required by the federal constitution, it was observed in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), that the constitutional concerns expressed in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), “are best met by a system that provides for a bifurcated proceeding.” Gregg, supra, 428 U.S. at 195, 96 S.Ct. at 2935, 49 L.Ed.2d at 887 (plurality opinion of Stewart, Powell, and Stevens, JJ.).

The capital-punishment statute involved in Gregg contained a bifurcated procedure that determined a defendant’s guilt first and the defendant’s sentence second. Id. at 163, 96 S.Ct. at 2920, 49 L.Ed.2d at 869. New Jersey’s Death Penalty Act is modeled after Georgia’s death-penalty statute, which generally follows the Model Penal Code’s provisions regarding, among other things, the requirement of a bifurcated proceeding. See State v. Marshall, 130 N.J. 109, 126, 613 A.2d 1059 (1992) (Marshall II).

The Model Penal Code’s comment to the section requiring bifurcated capital proceedings, outlines the purpose of having separate proceedings:

Systems providing for jury discretion with respect to capital punishment confront an inescapable dilemma if the jury is required to impose sentence at the same time that it renders a verdict on guilt. Such information as prior criminal record of the accused may be important to choice of punishment yet highly prejudicial to determination of guilt. Either sentencing must be based on less than all the evidence relevant to that issue, or otherwise inadmissible evidence must be allowed in the trial on the ground that it contributes to an informed assessment of sentence. Contemporaneous decision of both questions forces a choice between a solution that detracts from the rationality of the sentencing decision and one that threatens the fairness of the determination of guilt. Either choice is undesirable, and the second alternative may well be unconstitutional. Trial lawyers understandably have little confidence in the intermediate solution of admitting such evidence and trusting an instruction to limit its consideration to sentencing rather than guilt.

The obvious solution ... calls for a bifurcated proceeding with strict observance of the rules of evidence until the guilty verdict and subsequent consideration of all additional information relevant to sentence.

[Model Penal Code and Commentaries § 210.6 cmt. 8, at 144-45 (Official Draft and Revised Comments 1980) (footnotes omitted).]

Focusing on the sentencing role of the jury in the penalty phase, this Court has held that “[a] capital sentencing jury must be fully informed of its responsibility in determining the appropriateness of the death penalty.” State v. Loftin, 146 N.J. 295, 370, 680 A.2d 677 (1996). As the Court emphasized in Ramseur, supra, “[t]o hide from the jury the full range of its sentencing options, thus permitting its decision to be based on uninformed and possibly inaccurate speculation, is to mock the goals of rationality and consistency required by modern death penalty jurisprudence.” 106 N.J. at 311, 524 A.2d 188.

Thus, the Court has held that during the penalty phase, trial courts generally should inform juries of prior sentences that the defendant is serving because that information may bear on the jury’s thought process in determining the adequacy of a life sentence as opposed to death. Loftin, supra, 146 N.J. at 372, 680 A.2d 677 (noting that court should inform jury of prior sentence if there is a “realistic likelihood” that court will impose noncapital sentence consecutively to that sentence); Bey III, supra, 129 N.J. at 603, 610 A.2d 814. The Court also has instructed trial courts to inform penalty-phase juries of the potential sentences for defendants’ noncapital convictions. Martini I, supra, 131 N.J. at 313, 619 A.2d 1208. In Martini I, the Court stated:

[W]e hold that in the fiiture when defense counsel or the jury requests instructions on the potential sentences a defendant will receive for convictions arising from the same trial as his capital-murder conviction, such information should be provided by the trial court. The jurors should be informed of the sentencing options available to the judge, and that the determination of sentence had not yet been made. In addition, the trial court should explain that the sentence may or may not run consecutively to that for murder, but that the determination is left to the court. Finally, the court should inform the jury that defendant’s possible sentence for the other convictions should not influence its determination regarding the appropriateness of a death sentence on the murder count. Such instructions will assist in dispelling confusion on the part of the jury and will help to safeguard against improper sentencing determinations.

[Ibid.]

In the present case, defendant does not deny that the trial court complied with the letter of Martini I in instructing the jury during the penalty phase that if it rejected the death penalty, defendant would be imprisoned for fifty-five years without parole.

The narrow issue becomes whether the foregoing legal principles, that have developed in view of the role of the jury as sentencer during the penalty phase, should be applied to the guilt phase. Defendant asserts that an ultimate-outcome instruction should have been given during the guilt phase. To support his claim, defendant primarily relies on Mejia, supra, where the Court stated:

In the guilt phase of the present case, the court should have told the jury that its determination of defendant’s mental state would predetermine whether defendant was subject to the death penalty. Specifically, the court should have instructed the jury that if it found that defendant had intended to kill the victim, he would be subject to the death penalty. Conversely, the court should have told the jury that if it found that defendant had intended to cause serious bodily injury, he would be subject to life imprisonment with thirty-years parole ineligibility. The failure to inform the jury of the difference, which could have diluted the jury’s responsibility for the imposition of the death penalty, constitutes reversible error.

[141 N.J. at 485-86 [662 A.2d 308] (citation omitted) (internal quotation marks omitted) (emphasis added).]

The State contends that the jury was well aware of the legal effect of its decision. In particular, it points to voir dire, where the court told potential jurors that defendant would face twenty-five years of parole ineligibility if convicted of kidnapping and sexual assault, and to the court’s instruction that a penalty phase would occur only if the jury convicted defendant of purposeful-or-knowing murder.

The State further argues that Mejia’s requirement that the jury be informed of the legal effect of its guilt-phase decision was satisfied because the trial court informed the jury that a conviction for purposeful-or-knowing murder carried a sentence of thirty years to life.

When Mejia committed the homicide on December 8, 1991, id. at 479, 662 A.2d 308, one who purposely or knowingly caused serious bodily injury resulting in death was not eligible for the death penalty. Gerald, supra, 113 N.J. at 89, 549 A.2d 792. Gerald held that imposition of the death penalty for serious-bodily-injury murder violated the New Jersey Constitution’s ban on cruel and unusual punishment. Ibid. In response to Gerald, the New Jersey electorate amended Article I, paragraph 12 of the New Jersey Constitution, effective December 3, 1992, to overturn Gerald. Statement, supra; Acts, supra, at 1429. The amendment provides in part:

It shall not be cruel and unusual punishment to impose the death penalty on a person convicted of purposely or knowingly causing death or purposely or knowingly causing serious bodily injury resulting in death who committed the homicidal act by his own conduct or who as an accomplice procured the commission of the offense by payment or promise of payment of anything of pecuniary value.

[N.J. Const, art. I, ¶ 12.]

To ensure that the constitutional amendment would be given full effect, the Legislature amended the Death Penalty Act to state that the term “homicidal act” means “conduct that causes death or serious bodily injury resulting in death.” Statement, supra; L. 1993, c. 111 (effective May 5, 1993 and codified at N.J.S.A. 2C:11-3i). Because the Mejia murder occurred before the 1992 constitutional amendment, the Mejia Court felt constrained to apply Gerald.

The Mejia ultimate-outcome-instruction requirement for the guilt phase was based on the fact that the capital murder involved required a Gerald mental-state determination, namely whether there was an intent to cause death or an intent to cause serious bodily injury. Mejia, supra, 141 N.J. at 482, 662 A.2d 308. In that limited context, the Court held that the jury should have been informed of the consequences of the required Gerald findings: that a finding of an intent to cause death would render the defendant death-eligible, while a finding of intent to cause serious bodily injury would subject the defendant to life imprisonment with thirty years of parole ineligibility. Id. at 485, 662 A.2d 308.

Mejia held that in a capital murder case, in which a defendant’s mental state under Gerald is at issue, a court’s failure to give an ultimate-outcome charge covering the alternative mental state is reversible error because such a failure would diminish a defendant’s opportunity for the jury to be unanimous that the defendant has purposely or knowingly killed the victim, but not unanimous on whether the defendant intended to kill or to cause serious bodily injury. Id. at 485-86, 662 A.2d 308. In other words, if a jury is unanimous that a defendant intended either to kill or to cause serious bodily injury, but nonunanimous as to which one, a purposeful-or-knowing murder is established, but the defendant is not death-eligible.

The Gerald mental state issue that formed the basis for the Mejia ultimate-outcome instruction is not implicated in the present case. As noted earlier, defendant murdered L.G. on July 18, 1993. By that time, Gerald had been overturned by a constitutional amendment for more than eight months. Acts, supra, at 1429.

Although the 1993 amendment to the Death Penalty Act that added N.J.S.A. 2C:11-3i occurred before the present murder, we agree with Judge Skillman’s dissent in State v. Yothers, 282 N.J.Super. 86, 98-106, 659 A.2d 514 (App.Div.1995) (Skillman, J., dissenting), that because Gerald was decided on state constitutional grounds, no implementing legislation was required to effectuate the constitutional amendment. Id. at 99-100, 549 A.2d 792. Gerald acknowledged that “[t]he death-penalty statute clearly exposes to the death penalty one who purposely or knowingly causes serious bodily injury resulting in death.” Gerald, supra, 113 N.J. at 71, 549 A.2d 792. Although N.J.S.A. 2C:11—3i was not necessary to implement the constitutional amendment, it became effective May 5, 1993, L. 1993, c. 111, § 2, approximately two months before L.G. was murdered. Furthermore, the Legislature intended N.J.S.A. 2C:11-3i to be retroactive. The Assembly Judiciary, Law and Public Safety Committee Statement to the law states:

This bill is designed to ensure that the amendment is given full effect. Although the Supreme Court based its constitutional decision in Gerald on its conclusion that the “death penalty statute clearly exposes to the death penalty one who purposely or knowingly causes serious bodily injury resulting in death[,]” [Gerald, supra, 113 N.J.] at 71, 549 A.2d 792, the court also described its decision to exclude such persons from the reach of the statute as “comporting with the Legislature’s intent in restoring the death penalty.” Id. at 89, 549 A.2d 792.

Therefore, in order to clarify legislative intent and thereby avoid additional judicial construction that might narrow the scope of the law to comport with the court’s view of the legislative intent, this bill would amend New Jersey’s death penalty statute to clearly state that the term “homicidal act” means conduct that causes “death or serious bodily injury resulting in death.” This amendment clarifies that the Legislature’s intent regarding the category of homicides eligible for the death penalty has remained consistent since the effective date of P.L.1982, c. 111 which added subsection, c. and other subsections to N.J.S. 2G:11-3, the current capital punishment statute.

[Statement, supra (emphasis added).]

Consequently, the 1992 constitutional amendment mooted the Gerald issue that formed the basis for the Mejia ultimate-outcome instruction. For those reasons, Mejia is no longer authoritative regarding the need to inform the guilt-phase jury what the defendant’s numerical-sentence exposure is for noncapital offenses.

The Mejia ultimate-outcome instruction was required largely because of dicta in Brown, supra, 138 N.J. at 517, 651 A.2d 19. There, the ultimate-outcome issue was whether the jury should be told in the guilt phase that it could return a nonunanimous verdict on the “by his own conduct” issue. Id. at 492, 517, 651 A.2d 19. Thus, the dicta in Brown and the holding in Mejia are the only cases that have suggested or required an ultimate-outcome instruction during the guilt phase. An ultimate-outcome instruction is required only during the penalty phase. Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994); Bey III, supra, 129 N.J. at 601-04, 610 A.2d 814. To the extent that the dicta in Brown may be understood to require the jury to be instructed during the guilt phase what the potential sentence is for each noncapital offense, it is overruled.

We hold that a Me/m-type-ultimate-outcome charge during the guilt phase is not required. Were we to hold otherwise, we would be compelled to reject the State’s argument that such a requirement was satisfied in the present ease. During the voir dire, potential jurors were informed that defendant would face twenty-five years of parole ineligibility if convicted of kidnapping and aggravated sexual assault. During the guilt phase, the jury was informed that the noncapital sentence for purposeful-or-knowing murder is thirty years to life. At no time during the guilt phase was the jury informed regarding the penalty for felony murdér. However, based on our holding that an ultimate-outcome instruction was not required in the guilt phase, no error was committed in not informing the jury what the potential sentences would be for offenses such as felony murder, kidnapping, and aggravated sexual assault. For the same reason, the failure to inform the jury what the sentence would be for a felony-murder conviction after apprising it what the sentence would be for a noncapitalpurposeful-or-knowing murder conviction did not prejudice defendant.

-D-

Future Guilt-Phase Charge

Although we reject the Brown and Mejia standard for an ultimate-outcome instruction during the guilt phase, we recognize that a jury must be given some sentencing information during the guilt phase of a capital case. The jury must be informed, as occurred in the present case, that a conviction for purposeful-or-knowing murder makes the defendant eligible to receive a sentence of death. State v. Harris, supra, 141 N.J. at 546, 662 A.2d 333. It is conceivable that that instruction could cause a jury to speculate about the sentence for noncapital-homicide charges submitted for deliberations. To address that concern, the guilt-phase jury in cases tried after the date of this decision should be informed by the trial court that the noncapital-homicide charges are extremely serious offenses and that although they do not expose the defendant to the death penalty, they carry severe prison sentences. The jury should not be informed what those numerical terms are. The jury should also be instructed not to concern itself with the comparative severity of the sentences for various offenses submitted to it for its deliberations, and that its responsibility is solely to determine whether the prosecution has met its burden of proving beyond a reasonable doubt the defendant’s guilt on the charged offenses. Finally, the jury should be told that if a penalty-phase trial is required, the jury will be informed at that time what the potential sentence is for each noncapital offense for which the defendant has been convicted in the event the death penalty is not imposed.

VI

Constitutionality of the Deathr-Penalty Statute

Defendant filed a pretrial motion seeking to have the Death Penalty Act, N.J.S.A. 2C:11-3c to —3i, declared unconstitutional as violative of the Eighth and Fourteenth Amendments to the United States Constitution. The basis for that motion was “the ever-increasing number of cases that seem to fall in the category of being death-eligible.” He insists that the Court has not interpreted the statute adequately to limit the class of death-eligible persons. The trial court denied the motion, citing this Court’s repeated validation of the statute’s constitutionality.

We repeatedly have upheld the constitutionality of the death-penalty statute. Loftin, supra, 146 N.J. at 333, 680 A.2d 677; Martini I, supra, 131 N.J. at 221-22, 619 A.2d 1208; Ramseur, supra, 106 N.J. at 182-97, 524 A.2d 188. Defendant has presented no persuasive reason for retreating from that view. We, therefore, reaffirm our decisions upholding the constitutionality of the Death Penalty Act.

VII

Failure to Instruct that Defendant’s State of Mind Was Central Issue in Case

Defendant argues that although the trial court accurately instructed the jury on purposeful-or-knowing murder and felony murder and the differences between the two, its failure to grant his request that the jury be instructed that the central question in the case was defendant’s state of mind during the killing prevented the jury from focusing on the critical issue in the case, namely, defendant’s state of mind and thus his death-eligibility or lack thereof.

Defendant properly notes that the trial court has an obligation to provide accurate instructions that explain the law in the context of the facts of the case. See State v. Concepcion, 111 N.J. 373, 379-80, 545 A.2d 119 (1988). Two facts, however, undermine defendant’s- argument. First, the trial court clearly instructed the jury on the differences between felony murder and purposeful-or-knowing murder, including the “legal effect” of the finding of one or the other or both. Moreover, both defense counsel and the prosecutor emphasized the differences in their summations. Defense counsel told the jury that

the only question left before you, the only question I’ll argue is what type of murder was it. Was it a felony murder. Was it knowing or purposeful murder. Have they proven to you knowing or purposeful murder, beyond a reasonable doubt. And I suggest to you they have not. What they have really proven is sexual assault and kidnapping and during the course of it you had a reckless lolling of a child. Keckless in the sense that they have not proven to you that he knew it. That he intended to do it.

Defense counsel spent much of his summation describing the conflict between the medical examiner’s theory that defendant would have had to apply pressure for at least four minutes to cause death and the defense theory that thirty seconds would have been sufficient. The prosecutor also noted the issue, stating that “[t]here is more to this case than simply sitting here and saying that defendant says okay I did the kidnapping. Okay, I committed the sexual act. It was awful but I didn’t mean to kill her. Hence felony murder.”

The second problem with defendant’s argument is that, if the requested instruction had been given, the trial court effectively would have directed a verdict on all counts except for purposeful- or-knowing murder. Of course, defendant had the right to plead guilty to any or all of the noncapital charges, but he elected not to do so as was his constitutional right. By invoking his right to trial by jury on all counts, he endowed the jury with the role of factfinder. The court thus was not in a position to instruct the jury about what facts to find and what conclusions to draw. Cf. United States v. Urbana, 412 F.2d 1081, 1083 (5th Cir.1969) (holding that instruction that omitted elements of crime that defense had conceded was error, although not plain error); Merrill v. United States, 338 F.2d 763, 767-68 (5th Cir.1964) (holding that, despite defense counsel’s strategic concession of guilt during summation, instruction that jury could “start with this premise: that the defendant is guilty unless there has been proof of his insanity” constituted reversible error).

Thus, although defendant was entitled to concede his guilt before the jury on all of the charges except purposeful-or-knowing murder, he was not entitled to an instruction that the jury could assume his guilt on those charges. As the State correctly notes, “[wjhile unlikely, the jury in its fact-finding role could have rejected defendant’s concession and acquitted him of several of the crimes.” Indeed, had the court provided the requested instruction and had the jury returned the same guilty verdicts on all counts, defendant no doubt would be arguing now that the trial court had committed reversible error by “directing a verdict” and that trial counsel was ineffective for requesting the court to do so.

We find, therefore, that the trial court did not err in rejecting the requested instruction.

VIII

Submission of Depravity as an Aggravating Factor, N.J.S.A. 2C:11-3c(4)(c)

Defendant contends that the trial court erred by submitting depravity as an aggravating factor, N.J.S.A. 2C:11-3c(4)(e) (“c(4)(c)”), to the jury, and that the error prejudiced him.

As noted earlier, one of the aggravating factors that the State relied on was the depravity factor: that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind. In the present case, the theory underlying the factor was defendant’s alleged lack of a reason for killing L.G. Defense counsel repeatedly, albeit unsuccessfully, moved to strike the factor, arguing that insufficient evidence supported it and that it was inconsistent with submission of the escape-detection aggravating factor, N.J.S.A. 2C:11—3(c)(4)(f). Although the State conceded that our law does not allow the two aggravating factors to coexist, it argued that the present case represented a limited exception to the general rule because defendant had no motive to commit the crime, and part of his enjoyment was getting away with the crime.

The trial court twice instructed the jury that, although both the depravity and escape-detection aggravating factors were being submitted, it could not find both of them because they were mutually exclusive, one representing a reason for the murder and one representing no reason. The jury unanimously rejected the depravity factor, while unanimously finding the escape-detection and felony-murder, N.J.S.A. 2C:11-8c(4)(g), aggravating factors.

In Ramseur, supra, the Court, expressing concern that the depravity factor was unconstitutionally vague, narrowed its scope substantially. 106 N.J. at 207-11, 524 A.2d 188. Under Ramseur, one of the possible meanings of “depravity” is “[w]here the murder was not the product of greed, envy, revenge, or another of those emotions ordinarily associated with murder, and served no purpose for the defendant beyond his pleasure of killing.” Id. at 211, 524 A.2d 188. Under that definition, depravity in the present case exists only if the killing had no purpose.

The escape-detection factor, by contrast, connotes a definite motive, namely, murder to prevent apprehension, prosecution, or both. Given that the depravity factor requires no motive, while the escape-detection factor requires a motive, the jury cannot rationally find that both exist. The trial court recognized that fact and charged the jury that it could not find both.

Defendant argues that by submitting the escape-detection factor, however, the State necessarily affirmed the existence of a motive, thus precluding it from also submitting the depravity factor. In Gerald, supra, the Court stated that

[g]iven Bamseur’s intention to include within the reach of the term “depravity’’ only those murders that are entirely without motive, we hold that where, as here, greed, anger, revenge, or other similar motive is present, the depravity aspect of Section (c)(4)(c) [ie., lack of purpose] should not be submitted to the jury.

[113 N.J. at 66, 549 A.2d 792.]

The Court since has reiterated that part of the Gerald holding in Perry, supra, 124 N.J. at 173-76, 590 A.2d 624 (holding that trial court erred in submitting depravity factor because evidence pointed to drug dispute as motive for killing), and in State v. McDougald, 120 N.J. 523, 567, 577 A.2d 419 (1990) (doubting propriety of submitting depravity factor because of evidence of revenge motive). However, the Court on occasion has upheld submission of the depravity factor despite other evidence of motive. See State v. Davis, 116 N.J. 341, 376, 561 A.2d 1082 (1989) (allowing submission of depravity factor despite some evidence of revenge motive); Zola, supra, 112 N.J. at 434, 548 A.2d 1022 (same). Yet, despite the Court’s occasional willingness to tolerate submission of the depravity factor in the face of other evidence of motive, it has disallowed submission of the factor when the escape-detection factor also is alleged. State v. Rose, 112 N.J. 454, 531-32, 548 A.2d 1058 (1988).

Given the Court’s clear jurisprudence in this area, the trial court’s submission of both factors to the jury was error. The narrow issue then becomes whether the error was harmless. Defendant argues that he was prejudiced because the jury, having been told that it could only find one of the two factors, may have compromised by rejecting the depravity factor while accepting the escape-detection factor.

The jury’s function in the penalty phase is to assess, independently of each other, the sufficiency of aggravating and mitigating factors. A rejection by the jury of one aggravating or mitigating factor does not compel or inhibit its determination that another factor existed. Therefore, it would be highly speculative to conclude that an erroneous submission of an aggravating factor to the jury, with an appropriate limiting instruction, prejudicially affected its deliberations on the remaining aggravating factor(s), the mitigating factor(s), and the weighing process. See id. at 533, 548 A.2d 1058 (erroneous submission of c(4)(c) aggravating factor did not prejudice defendant where overwhelming proof existed of escape-apprehension and felony-murder aggravating factors); see also State v. DiFrisco, 137 N.J. 434, 502, 645 A.2d 734 (1994) (DiFrisco II) (no prejudice when aggravating factor erroneously submitted, which jury rejected, because of nature of penalty-phase proceedings), cert. denied, — U.S. -, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996). The trial court noted in its charge that the jury could not use evidence of depravity when considering the other two aggravating factors and emphasized that the jury could not find both the c(4)(c) factor and the escape-apprehension factor because the two were mutually exclusive. That instruction was reiterated on the verdict sheet, which made clear that if the jury found the c(4)(c) factor, it could not consider the escape-apprehension factor but had to go on to determine whether the murder was committed in the course of a felony. The jury was well aware from the court’s instructions and the verdict sheet that the evidence submitted in support of the c(4)(c) factor was irrelevant to the other two aggravating factors, and there is no reason to believe that it ignored those instructions. State v. Manley, 54 N.J. 259, 270, 255 A.2d 193 (1969). We find, therefore, that the submission of the c(4)(c) factor constituted harmless error.

IX

Failure to Define “Purposeful Conduct” in Penalty Phase

During the penalty-phase instruction on the escape-detection aggravating factor, the trial court instructed the jury that, in order for the jury to find that factor, it had to determine that defendant had the purpose of escaping detection at the time that he killed L.G. However, the court never defined “purpose” during its penalty-phase instructions and a definition of “purpose” was never requested.

Defendant, for the first time on appeal, claims that the trial judge’s failure to define “purpose” for the jury with respect to the escape-detection aggravating factor, N.J.S.A. 2C:11-3c(4)(f), prejudiced him by failing to channel jury discretion, particularly given the weak evidence of a motive to escape detection. Defendant contends that the omission of the definition of “purpose” may have led the jury to find the c(4)(f) aggravating factor based solely on the underlying felonies.

As the State implicitly concedes, the trial court almost certainly erred by failing to reinstruct the jury during the penalty phase on the definition of “purpose,” which is an essential element of the escape-detection factor. Defendant correctly argues that the purpose requirement is the primary element that distinguishes the escape-detection factor from the felony-murder factor and that the fact of the felony alone is insufficient to support a finding of the escape-detection factor. See Martini I, supra, 131 N.J. at 284, 619 A.2d 1208; State v. Hightower, 120 N.J. 378, 422, 577 A.2d 99 (1990) (Hightower I). Moreover, courts must define terms for the jury even if those terms are commonsensical. State v. Alexander, 136 N.J. 563, 571-72, 643 A.2d 996 (1994). Because of the centrality of “purpose” in any finding of the escape-detection factor, we hold that the trial court erred in failing to define it during the penalty phase.

Here, too, the question becomes whether the omission was plain error — error “clearly capable of producing an unjust result.” R. 2:10-2. We find that the error was not plain error because the trial court repeatedly defined “purpose” during the guilt phase, and there was no suggestion that the term had a different meaning in the penalty phase. Moreover, defense counsel discussed the concept during his penalty-phase summation. Given the repeated references to and definitions of the terms, the jury almost certainly knew what “purpose” meant and- presumably applied it faithfully during its penalty-phase deliberations.

X

Use of Guilt-Phase Evidence at Penalty Phase

Defendant asserts that the trial court injected inadmissible evidence into jury deliberations when it advised the jury that it could consider all the evidence admitted during the trial, including autopsy photographs, in determining whether the State had proven the existence of an aggravating factor or aggravating factors and in determining whether the aggravating factor(s) outweighed the mitigating faetor(s). The issue became important because during penalty deliberations, the jury asked the court whether it was “appropriate for jurors to review the photographs of the victim for the sole purpose of determining whether the aggravating factors outweigh the mitigating factors.” The photos to which the question referred included two close-ups of bruises on L.G.’s neck, two photos of her corpse attached to a lifesaving apparatus, a close-up of her hand with fecal matter and/or blood on it, and a photo of her lying on her back with legs spread apart.

Defendant’s basic contention is that, by failing to direct the jury’s use of the photos, the judge allowed the jury to use them to prove any aggravating factor and to do so arbitrarily. He emphasizes that the only factor to which the photos could have been relevant was the felony-murder factor (to prove that the killing occurred in the course of an aggravated sexual assault).

The State responds that the photos were relevant to all three of the aggravating factors submitted to the jury, and that the court’s repeated cautionary instructions that the jury not misuse the photos sufficed to limit the jury’s use of them. The State argues that the photos were relevant to show an escape-detection motive because they showed the felonies for which defendant would have attempted to escape detection, as well as the location of the body. As for depravity, the State contends that the photos were relevant because they showed the helplessness of the victim and the senselessness of the murder. Finally, the State notes that any error vis-a-vis the depravity factor was harmless because the jury unanimously rejected that factor.

This Court consistently has held that evidence admissible at the guilt phase is not necessarily admissible at the penalty phase, because the only issues during the penalty phase are the determination of aggravating and mitigating factors and the balancing of those factors. State v. Dixon, 125 N.J. 223, 249-50, 593 A.2d 266 (1991). Because of the distinction between the guilt and penalty phases, the trial court must instruct the jury which guilt-phase evidence the jury may not consider during its penalty deliberations. In State v. Erazo, 126 N.J. 112, 594 A.2d 232 (1991), the Court stated:

When the same jury hears both phases of the trial, the court should provide instructions on the extent to which the jury may use guilt-phase evidence on [sic] its penalty-phase deliberations. Even when guilt-phase evidence is not incorporated in the penalty phase, the danger abides that the jury will rely on it during the penalty-phase deliberations. Thus, the court should instruct the jury concerning the evidence that it may use in its penalty deliberations and the purposes for which that evidence may be used.

[Id. at 133, 594 A.2d 232 (citation omitted).]

Consistent with that rationale, the Judges Bench Manual for Capital Causes provides the following instruction:

However, the guilt and sentencing phases are considered as separate proceedings. The State contends that certain facts established by your verdict in the guilt phase

...

also prove the following aggravating

...

I am instructing you that it is your duty to deliberate again on these facts to determine whether they prove the aggravating factor(s) the State alleges. You have the right to reach a different conclusion about whether these facts prove an aggravating factor than the conclusion you reached as to whether they proved guilt.

[Trial Judges Committee on Capital Causes, Judges Bench Manual for Capital Causes J-6 (Nov. 1, 1996).]

The instruction in question informed the jury that “[t]he evidence to be considered by you includes relevant material by both sides and presented at both phases of the trial[,]” and that the jury could “consider everything, all the evidence ... that you heard during the first part of the trial and the second part of the trial in making your determinations as to [the] ... aggravating factors.” Defendant, however, wanted the court to limit the use of the photos to the felony-murder aggravating factor.

The real question is whether the photos were relevant to the other two aggravating factors. Under this Court’s jurisprudence, the photos are only tenuously relevant to the depravity factor. The State cites several cases for that proposition that the Court has allowed graphic photos to support the factor, but those cases, despite their occasional lack of clarity on the issue, are probably inapposite because they concerned other aspects of the factor when discussing photos. State v. Moore, 122 N.J. 420, 469, 585 A.2d 864 (1991) (photos relevant to show intent to inflict pain or depravity); McDougcdd, supra, 120 N.J. at 583, 577 A.2d 419 (photos relevant to show intent to cause severe suffering before death or to show depravity); State v. Pitts, 116 N.J. 580, 638-39, 562 A.2d 1320 (1989) (photos potentially relevant to show intent to inflict pain); State v. Bey, 112 N.J. 123, 183, 548 A.2d 887 (1988) (Bey II) (“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.”), cert. denied, 513 U.S. 1164, 115 S.Ct. 1131, 130 L.Ed.2d 1093 (1995).

Thus, the Court explicitly has approved the use of corpse photos to show mutilation and infliction of pain, but it has not approved of their use to show that the killing was senseless. Photos can be very relevant to prove mutilation and intent to inflict pain. As for intent to inflict pain, a jury could conclude that, given the nature of the wounds, the defendant must have tortured the victim (and, by inference, intended to do so) before killing him or her. However, using photos to prove senselessness is more problematic. Whether a murder is senseless is generally independent of the nature of the wounds. A gruesome murder could have a purpose (i.e., revenge), while a relatively “civilized” murder could have no purpose at all.

The State notes that the photos could be relevant to show L.G.’s helplessness, which the Court has held to be a factor in determining senselessness. See Ramseur, supra, 106 N.J. at 209 n. 36, 524 A.2d 188. The jury could have determined that, given L.G.’s small size, she was helpless to resist defendant, which could indicate that the killing was senseless. However, the jury was no doubt aware of L.G.’s small size (given her age) relative to defendant. Graphic photos of the wounds were unnecessary to prove that element of the depravity aggravating factor and were necessarily cumulative.

Because the photos did not lend more than the most tenuous support to the State’s theory that the killing was depraved in its senselessness and were unnecessary to show L.G.’s helplessness, they were largely irrelevant to that factor.

The photos were also only marginally relevant to the escape-detection factor. The State’s argument concerning escape detection is that, because the jury was instructed not to consider defendant’s post-murder activities in determining whether his motive was to avoid detection, other evidence of the factor became more important. The State notes that the kidnapping and raj e were elements of the escape-detection factor (because the jury had to conclude that defendant had committed the felonies for which he wished to escape detection), thus allowing use of the photos.

That argument fails for two reasons. First, defendant admitted to felony murder, kidnapping, and aggravated sexual assault, and the court instructed the jury that it could consider evidence from the guilt phase during the penalty phase. The photos were thus unnecessary to prove the underlying felonies. See Bey III, supra, 129 N.J. at 609, 610 A.2d 814 (concluding that photos were unnecessary to prove underlying felony for felony-murder factor because other evidence provided sufficient evidence of felony). Second, the State’s argument that it needed to introduce the photos because of the dearth of other evidence of a motivation to escape apprehension appears to assume that proof of the underlying felony is sufficient to prove that defendant killed to escape apprehension. As this Court recently stated, however, “[m]ost persons who commit felonies hope to avoid apprehension. That does not mean that the [escape-detection] factor would automatically be present in every case in which the ... felony murder factor exists.” Loftin, supra, 146 N.J. at 378, 680 A.2d 677. So, proof of the underlying felonies through the pictures would not have advanced the State’s escape-detection argument measurably. Because the fact of the underlying felonies was neither necessary nor sufficient to prove that defendant killed in order to escape apprehension, the photos’ relevance to the escape-detection aggravating factor was less than substantial.

Given that the photos had marginal relevance only to the felony-murder aggravating factor, the question becomes whether the trial court’s instruction, which told the jury that it could use the photos in considering any of the aggravating factors, was error. We conclude that it was error because the trial court was obligated to channel the jury’s discretion in its balancing of aggravating and mitigating factors. State v. Williams, 113 N.J. 393, 456-57, 550 A.2d 1172 (1988).

Moreover, as defendant maintains, the court also failed to instruct the jury that it could not use the same evidence to support both the escape-detection and depravity factors given their mutual exclusivity. The jury very well may have used the same exact photos to support both factors, thereby undermining this Court’s definition of the factors. We conclude that the instructions failed to properly limit the use of the photos.

The next inquiry is whether defendant suffered any prejudice as a result of the erroneous instructions. He clearly did not suffer any prejudice vis-a-vis the depravity factor because the jury rejected that factor. We also are satisfied that defendant suffered little or no prejudice regarding the use of the photos for the escape-detection factor. First, given the minimal relevance of the photos, it is unlikely that the jury gave them much consideration when deciding the existence of the factor. Second, other evidence existed, most notably defendant’s use of a condom and his bringing L.G. to a very secluded place, that pointed to a motive to escape detection. Finally, the trial court instructed the jury on the definition of the escape-detection aggravating factor, thus focusing the jury’s inquiry. Those circumstances convince us that the use of the photos did not cause the jury to reach a decision it would not otherwise have reached;

XI

Photo Accidentally Submitted to Penalty Jury

Defendant contends that the accidental submission to the jury during the penalty phase of S-158, a graphic photo of the victim lying on her back with her legs spread open during' the autopsy, was prejudicial. Defendant objected to its admission during the guilt phase because he already had conceded that he had committed the aggravated sexual assault and because the photograph was especially gruesome. The trial court overruled the objection, reasoning that despite defendant’s concession that a sexual assault had occurred, the photo was probative of such an assault, and therefore admissible. The court, however, provided the jury with a general cautionary instruction regarding the photos .in general.

During the penalty phase, S-158 was one of the graphic photos that defense counsel and the prosecutor agreed not to submit to the jury. During the jury’s deliberations in the penalty phase, the jury submitted a question to the court, which specifically asked “is it appropriate for jurors to review the photographs of the victim for the sole purpose of determining whether the aggravating factors outweigh the mitigating factors?” The judge answered the question in the affirmative, stating “you may use the photographs which you have in the jury room.” Approximately fifty minutes after that instruction, the jury returned with a verdict of death. Unfortunately, the photo was accidentally submitted to the jury because it was wedged in between two larger photos. The discovery was made after the jury had returned its verdict. The trial court then stated that it would have admitted that photo during the penalty phase if requested.

Although defendant concedes, as we held, that the photo was at least somewhat relevant to the felony-murder aggravating factor because it showed the victim’s genital area, he nonetheless argues that the marginal relevance of the photo was substantially outweighed by its undue prejudicial impact. He maintains that the photo had the capacity to inflame the jury while lacking any relevance to the depravity or escape-detection aggravating factors. He also contends that the accidental submission deprived him of an opportunity to confront that evidence in summation and to request a cautionary instruction regarding the evidence.

The State responds by arguing that the photo was relevant; that it was not unduly prejudicial; that the accidental submission was harmless in that the photo already had been submitted during the guilt phase; and that the jurors took an oath not to be swayed by prejudice or passion. As for relevance, the State argues that the trial court (which has wide discretion to admit photos of the crime scene) correctly found S-158 to be relevant in that the photo corroborated defendant’s confession, by showing evidence of the sexual assault, and was relevant to the depravity and felony-murder aggravating factors, because it showed the sexual assault and the brutal injuries that it caused.

Our analysis must begin with the trial court’s conclusion that S-158 would have been admissible during the penalty phase had the State chosen to offer it. Admissibility of the photo depends on whether it was relevant, and, if so, whether its relevance was substantially outweighed by its prejudicial impact on defendant. N.J.R.E. 403.

One recognized legitimate purpose for the admission of graphic photos into evidence during the penalty phase is to corroborate a defendant’s confession. DiFrisco II, supra, 137 N.J. at 500, 645 A.2d 734. In DiFrisco II, the Court found that a photo depicting a bullet in the victim’s flesh and a pool of blood, an x-ray film showing three bullets lodged in the victim’s skull, and another photo depicting a spent shell cartridge near the victim, were relevant in that they corroborated the defendant’s confession that he had fired five shots. Id. at 499-500, 645 A.2d 734. Such corroboration was relevant to the penalty phase because it supported the hired-killer factor. Ibid.

In addition, the Court has held that photos of the crime may be relevant to prove the depravity aggravating factor. Moore, supra, 122 N.J. at 468-69, 585 A.2d 864. However, given the Court’s narrowing of the depravity factor in Ramseur, supra, 106 N.J. at 207-11, 524 A.2d 188, a photo that graphically displays the dictionary definition of “depravity” may not be relevant to the legal definition of that term. Bey II, supra, 112 N.J. at 183, 548 A.2d 887. In Bey II, the Court held that a photo offered to support the depravity aggravating factor had to show either that defendant intended to cause pain and actually caused, such pain or that the killing was senseless. Ibid. Thus, if the photo is not relevant to that definition of depravity, it should not be admitted. See Pitts, supra, 116 N.J. at 638, 562 A.2d 1320 (stating that autopsy photo had only limited relevance to depravity factor).

The Court has been much more reluctant to admit graphic photos to prove the felony-murder aggravating factor. In Bey III, supra, it held that autopsy photos were not admissible to prove that the murder had occurred in the course of a rape and a robbery because substantial testimony had been introduced to prove that fact and because the defense had never contested the factor. 129 N.J. at 609, 610 A.2d 814; see also Moore, supra, 122 N.J. at 469, 585 A.2d 864 (holding that photos were not needed to prove felony-murder aggravating factor).

As we have concluded, supra at 387-389, 700 A.2d at 336-337, S-158 had little or no relevancy to the depravity, felony-murder, or escape-detection aggravating factors. Even if it did, the ultimate question is whether it should have been excluded under Rule of Evidence 403 because of its potential prejudicial impact.

In McDougald, supra, 120 N.J. 523, 577 A.2d 419, the trial court had admitted, in both the guilt and penalty phases, photos of the victim, one of which showed a gaping wound on her throat, id. at 580, 577 A.2d 419, and one of which showed her “lying on her back and stomach with [a] bat protruding from her vagina.” Id. at 581, 577 A.2d 419. This Court held that although the question was “very close,” the trial court had been within its discretion in admitting the photos. Id. at 583, 577 A.2d 419. Similarly, in Moore, supra, the Court held that the trial court had been within its discretion, to admit photos depicting multiple wounds to the victim’s head. 122 N.J. at 467-69, 585 A.2d 864. The Court also has allowed graphic photos displaying the victim in a pool of blood. DiFrisco II, supra, 137 N.J. at 498-500, 645 A.2d 734.

Although the question whether S-158 should have been excluded is a close one, we conclude that the trial court’s decision that it would have admitted it if the State had requested its admission would not have represented an abuse of discretion. State v. Nance, 148 N.J. 376, 387-88, 689 A.2d 1351 (1997); State v. Marrero, 148 N.J. 469, 483-84, 691 A.2d 293 (1997). Furthermore, S-158 is no more gruesome than the photo of the victims in DiFrisco II and McDougald.

Although the photo would have been admissible if offered by the State, its accidental admission deprived defendant of an opportunity to confront that evidence. However, because S-158 was admitted during the guilt phase and defense counsel was afforded an opportunity to respond, because the trial court gave cautionary instructions regarding the use of graphic photos, and because the jury rejected the depravity aggravating factor, we conclude that the accidental submission did not prejudice defendant.

XII

Burden of Proof on Mitigating Evidence

Defendant argues that the trial court failed to properly allocate the burden of proof on the finding of mitigating factors. Specifically, defendant contends that, although the court correctly informed the jury that defendant bore the burden of producing rehable evidence of mitigating factors, it did not instruct the jury that the State bore the burden of disproving such factors once defendant had introduced competent evidence of their existence.

During deliberations, the jury asked the court: “Is it appropriate if some jurors choose not to vote either yes or no on individual mitigating factors due to wording of statements?” Defense counsel urged the court to instruct the jury that the State had the burden of disproving mitigating factors supported by credible evidence, but the court refused to do so, choosing instead to tell the jury that it should examine the substance of the factors, not their exact wording. The court also told the jury that each juror had to vote on each mitigating factor that the defense had submitted.

The Death Penalty Act does not specify a burden of persuasion concerning the establishment of mitigating factors, except to state that the defendant does not bear the burden. N.J.S.A. 2C:11-3c(2)(a). The statute, however, does affirmatively impose a burden on the State to prove the existence of any alleged aggravating factor beyond a reasonable doubt. Ibid. The statute provides, in pertinent part, that:

At the [penalty-phase] proceeding, the State shall have the burden of establishing beyond a reasonable doubt the existence of any aggravating factors set forth in paragraph (4) of this subsection. The defendant shall have the burden of producing evidence of the existence of any mitigating factors set forth in paragraph (5) of this subsection but shall not have a burden with regard to the establishment of a mitigating factor.

[Ibid, (emphasis added).]

The statute also explicitly permits rebuttal evidence:

The State and the defendant shall be permitted to rebut any evidence presented by the other party at the sentencing proceeding and to present argument as to the adequacy of the evidence to establish the existence of any aggravating or mitigating factor.

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

In Zola, supra, the Court phrased the inquiry as whether “the jury must accept as a mitigating factor any statutory factor on which the defendant has offered competent proof and that the State has failed to disprove.” 112 N.J. at 438, 548 A.2d 1022 (emphasis added). The Zola Court recognized that there are two steps to the jury’s evaluation of mitigating evidence. First, the jury must find the evidence competent. Ibid. The Court rejected defendant’s contention that a finding of competent evidence requires the jury to accept that evidence as establishing a mitigating factor. Ibid. Second, after finding the evidence competent, the jury must make a qualitative judgment. Ibid. In Rose, supra, the Court cited Zola in holding that “whether or not the State rebuts defendant’s proof of a mitigating factor, the jury must still decide if defendant’s evidence is sufficient to establish the existence of the mitigating factor.” 112 N.J. at 539, 548 A.2d 1058.

Defendant attempts to distinguish Zola and Rose by asserting that the “qualitative” judgment about which this Court was concerned, was whether the defense had presented “credible” evidence of a mitigating factor. Defendant maintains that it is in this determination that the jurors must make a qualitative decision, “just as the decisions regarding guilt or innocence, insanity or sanity, self-defense or the absence thereof, and passion/provocation or an absence of passion/provoeation are all qualitative judgments made within the confines of a strict burden of proof.” Thus, defendant asserts that Zola and Rose stand for the principle that the State does not have to disprove, beyond a reasonable doubt, incredible or unbelievable evidence of a mitigating factor, stating that “[i]f the jury rejects the credibility of the defense evidence, the state need disprove nothing.” Once the jury accepts the evidence as credible, however, the State must bear the burden of disproving the factor beyond a reasonable doubt.

Defendant’s limited interpretation of Zola and Rose is belied by the Court’s distinction between the “mechanical” factual determination made at the guilt phase with the “normative [penalty-phase] judgment that death is ‘the fitting and appropriate punishment.’ ” Bey II, supra, 112 N.J. at 162, 548 A.2d 887 (quoting Ramseur, supra, 106 N.J. at 316 n. 80, 524 A.2d 188).

We reject defendant’s claim that the State has the burden of disproving mitigating factors after the defendant has come forth with credible evidence in mitigation. The jury must be given the discretion to accept or to reject a defendant’s mitigating evidence regardless of whether the State affirmatively challenges that evidence. That rule is compelled by the broad scope of mitigating evidence and by this Court’s consistent pronouncements that virtually no limitations can be placed on mitigating evidence. Requiring the State affirmatively to rebut and to disprove such evidence would place an unwarranted burden on the State. Furthermore, such a burden would be nearly impossible to satisfy, as many of the mitigating factors are quite amorphous and necessarily ill-defined, especially those proffered under the catch-all factor.

Given that the jury can consider any evidence presented throughout both phases of the trial as mitigating evidence, placing the proposed burden on the State would saddle it with the impossible task of disproving all conceivable mitigating evidence, whether or not argued by the defendant. The imposition of such a burden would, in many instances, effectively require the jury to find the existence of the mitigating factors. Because each juror is required to balance every mitigating factor that he or she finds against each aggravating factor that the jury finds, requiring the jury also to determine whether the State has disproved each mitigating factor would be quite expansive. In the end, imposing such a burden on the State would not change the reality of how jurors evaluate mitigating evidence. Jurors attach weight to mitigating factors that they find reasonable and credible. That reality coincides with the common-sense approach that courts now follow of allowing jurors to attach whatever significance they believe appropriate to mitigating factors supported by credible evidence. Defendant offers little reason to change that established practice.

XIII

Instruction that Jury Should Try to Reach Unanimity on Mitigating Factors

Defendant contends that the trial court committed reversible error by instructing the jury that it should attempt to reach unanimity on the existence of mitigating factors if reasonably possible. He argues that the instruction effectively told the jury that unanimity was preferable to nonunanimity and, thereby, may have influenced jurors to abandon support for some factors in an effort to achieve unanimity.

During the penalty-phase charging conference, the trial court indicated that it would charge the jury that it did not have to reach a unanimous decision about the existence or absence thereof of each of the eighteen mitigating factors that defendant had submitted, but that it should attempt to reach a unanimous decision. Defense counsel objected to the instruction, arguing that

I don’t believe that’s the law. I don’t think they have to agree one bit and I don’t think they have to try to agree. This is an individual weighing process. They are not operating as a jury per se as a whole when they are considering which mitigating____ It seems to imply unanimity is better though.

The court rejected that contention and instructed the jury as follows:

The evidence relating to the mitigating factors should be fully discussed by the jury. To the extent reasonably possible you should attempt to reach agreement on the question of whether a particular mitigating factor does or does not exist. However, unlike aggravating factors, the law does not require unanimity with respect to the finding of mitigating factors. Rather, each juror must individually determine whether or not each mitigating factor exists. In the weighing process each juror must individually decide whether the aggravating factor or factors unanimously found outweigh beyond a reasonable doubt the mitigating factor or factors that that juror has found to be present. If after a full discussion you find that there are not — that you are not unanimous on the existence or nonexistence of a mitigating factor you will record your last vote on the factor on the verdict sheet.... So let’s assume it’s number 14 it could be whatever kind of numbers six yes and six no.

Later in the charge, the court stated

[i]f any one of you find that there is any credible evidence of any mitigating factor you will check yes next to that fact on the jury verdict sheet____ In the weighing process you will individually weigh the aggravating factors which all of you have found against the mitigating factors which you individually have found____ It is important to remember that this is an individual weighing process that is unique to each juror. Each of you should determine whether the aggravating factors which all of you have found outweigh the mitigating factors which you as an individual have found. Thus, you will all be considering the same aggravating factors. But individuals among yon may be considering different mitigating factors in varying ways as to that — what that individual finds those factors to be.

In Loftin, supra, the trial court instructed the jury during the penalty phase that the “law does not require unanimity with respect to the finding of mitigating factors.” 146 N.J. at 375, 680 A.2d 677. The court also stated, however, that “with respect to mitigating factors, to the extent reasonably possible, you should attempt to reach an agreement regarding whether a particular mitigating factor does or does not exist.” Ibid.

Although Lofbin recognized that a trial court may not coerce the jury into achieving unanimity on mitigating factors and that jurors individually must determine the existence or absence of the factors, ibid., the Court concluded that “when the isolated remark [in the charge] is viewed in the context of the charge as a whole, it is clear that there was no error.” Id. at 376, 680 A.2d 677. The Court stressed that the trial court repeatedly had informed the jury that it did not have to be unanimous regarding the mitigating factors and that the jury had returned nonunanimous decisions on nineteen of the thirty-one mitigating factors that the defendant had submitted. Ibid.

In the present case, as in Loftin, the trial court, while stating that the jury should attempt to achieve unanimity if reasonably possible, repeatedly stated that the jury did not have to be unanimous. Moreover, as in Loftin, the jury was nonunanimous on the vast majority of the mitigating factors. Of the eighteen mitigating factors that defendant submitted, the jury reached nonunanimous decisions on fourteen, thereby demonstrating an awareness that nonunanimity was permissible.

We, therefore, reaffirm our holding in Loftin and conclude that defendant’s claim of error is without merit.

XIV

State’s Rebuttal of Mitigating Evidence

Defendant argues, for the first time on appeal, that the State’s rebuttal of his mitigating evidence and the prosecutor’s commentary on that evidence during summation, both mischaracterized the purpose of mitigating evidence and injected a nonstatutory aggravating factor into the proceedings.

Defendant’s strategy during the penalty phase was to present a mountain of testimony by defendant’s family members about family violence, drug addiction, alcoholism, and general abuse that he had experienced and observed throughout his childhood. He also presented the testimony of numerous experts, some of whom had treated him as a child and some of whom had reviewed his records, who concluded that his background predisposed him to violence and failed to inculcate in him the ability to distinguish right from wrong.

The State offered rebuttal mitigating evidence through Dr. Timothy Michals, a forensic psychiatrist. Dr. Michals testified extensively about antisocial personality disorders, conduct disorders, and psychoses. He opined that, although conduct disorders are generally treatable, antisocial personality disorders are much more difficult, if not impossible, to treat. He also stated that antisocial personality disorders do not necessarily result from poor parenting and lack of stable family relationships, and that bad family environments do not permanently cause an individual to become antisocial.

Specifically regarding defendant, Dr. Michals testified that defendant had benefitted from not being exposed substantially to his mentally ill, criminal father, and from his mother’s attempt at rehabilitation. He stated that defendant had the capacity to learn and to know what was right and wrong, and that he had received significant counseling and treatment during his life.

The prosecutor, during her summation, commented on defendant’s mitigating evidence and the State’s rebuttal testimony. She stressed that certain members of defendant’s family had treated him well, and that members of his family may have portrayed his childhood as worse than it was in order to help him to avoid the death penalty. She also emphasized that one’s environment does not necessarily mandate what one becomes in life.

Defendant maintains that several remarks made by the prosecutor stepped over the line of proper comment. First, she stated in reference to defendant’s allegedly abusive stay with his uncle after his mother’s death:

Now, there is something to think about there. There is something to think about when you’re deciding what it is that David Cooper owes his uncle Larry. We kept hearing about what Uncle Larry owed David, but is there anything in us as human beings that cries out and says thank you uncle for giving me a decent place to live. I’ll do my best and maybe I’ll fail but I’ll try, and we have never heard that. It’s like how many more times could Larry Cooper fail David.

Second, the prosecutor stated:

Now, [it’s] the cousin with all the money’s fault. David Cooper had his own money, but it’s the cousin with all the money’s fault that David Cooper drinks. It’s Larry’s fault. It’s Lucille’s fault. Peeing lady’s fault. It’s his mother’s fault. It’s his grandmother’s fault. It’s Shirley Handberry’s fault. It’s Mrs. Jones’ fault. It’s Willie Jones’ fault, Henry Cooper’s fault, James Richardson’s____ [At] no point in time even when he’s 16 years old when he’s 17 year old, at no point in time does David Cooper say I accept responsibility for the consequences of my actions. We have here — I was going to count these for you. These are all help for David Cooper. Defense says it wasn’t the right kind of help____ He’s got attitude from the time he walks in till the time he walks out. And the bottom line he’s going to do what he’s going to do and didn’t feel like cooperating. Now, he’s no kid any more. You can talk about the molding, the force and shaping and the hard times that he had. But he had the same hard times with [various members of his family.] ... He had people walking him through life literally and it continued repeatedly from the day he figured it out on how to manipulate, use and take advantage.

The trial court instructed the jury as follows:

[I]t is important to understand and remember that evidence of the presence of mitigating factors is not offered nor is it meant to justify or excuse a defendant’s conduct in committing the crime of murder. Rather, evidence of mitigating factors is intended to present extenuating facts about the defendant’s life or character or the circumstances surrounding the murder that would justify a sentence less than death.

Defendant argues that Dr. Michals in his testimony, and the prosecutor in her summation, mischaraeterized his mitigating evidence as attempting to excuse or to justify his actions; whereas, the actual purpose of the evidence was to present extenuating circumstances about defendant’s character and background in an attempt to justify a life sentence. Defendant also argues that the prosecutor’s summation injected the nonstatutory aggravating factor that defendant was morally reprehensible for attempting to persuade the jury to excuse him of the murder because of his background.

1. Dr. Michals’ Testimony

As described earlier, the crux of Dr. Michals’ testimony was that, even with his background, defendant was able to control his conduct and to know the difference between right and wrong. Defendant contends that the testimony implied that he was attempting to excuse his conduct by presenting evidence of his inability to control his conduct. We find that contention to be without merit.

The purpose of mitigating evidence is 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.” Bey II, supra, 112 N.J. at 170, 548 A.2d 887. The State’s rebuttal evidence is limited to the scope of the mitigating evidence that the defendant has presented. Rose, supra, 112 N.J. at 503, 548 A.2d 1058.

Dr. Michals’ testimony was in direct response to defendant’s mitigating evidence. Defendant presented evidence that, as a result of his background, he was oriented in such a way that he was aggressive, unable to empathize with others, unable to understand cause and effect, and not inculcated with the values that families normally impart to children. The clear implication of the testimony was that defendant, because of his upbringing, was violent and could not control his conduct as would a well-adjusted person. Defense counsel echoed that implication in summation:

[W]hat happens in your life is what’s going to make ya — what’s going to influence which way you go. Which choice you make. Which decision you make. It’s going to shape your decision-making process just like it shapes you.

Although defendant never explicitly argued that his background excused his conduct, he clearly attempted to persuade the jury that his background explained his character and being.

In response to defendant’s evidence, the State was entitled to contest defendant’s interpretation of the effect of his background and to offer a different explanation for why defendant was what he was. That was done through the testimony of Dr. Michals. He testified that defendant was perfectly capable of controlling his conduct and understanding the difference between right and wrong and that his background was not so awful as to distinguish him from many others who have grown up in problem households. Thus, we find no error in the State’s use of Dr. Michals’ testimony to rebut defendant’s mitigating evidence.

2. Prosecutor’s Summation

The prosecutor’s summation was somewhat problematic. She implied that defendant was attempting to pass blame onto others, thus excusing his own conduct. In Bey III, supra, the prosecutor had commented that the defendant’s mitigating evidence was “not an excuse.” 129 N.J. at 620, 610 A.2d 814. The Court found that the statement was error. Ibid. Here, unlike Bey III, the prosecutor never termed the mitigating evidence an “excuse,” but the implication was strong and the remarks similar enough to “an excuse” to constitute error. The prosecutor’s remarks may have led the jury to conclude that defendant was “morally reprehensible” for having attempted to pass blame to others and for not wanting to accept responsibility. Such an implication constitutes an impermissible nonstatutory aggravating factor.

The plain-error rule applies here because defendant did not raise that claim in the trial court. Here, as in Bey III, supra, the prosecutor’s comments did not constitute plain error. 129 N.J. at 620-21, 610 A.2d 814. The trial court’s instruction that the purpose of the mitigating evidence was not to excuse the crimes, but rather to explain and to present extenuating facts about defendant’s life remedied the prosecutor’s error. Thus, the prosecutor’s misstatement did not have the capacity to cause an unjust result.

XV

Fifty-Five Years of Parole Ineligibility as a Mitigating Factor

During the penalty phase, defendant requested that the trial court submit, under the catch-all mitigating factor, the fifty-five years of parole ineligibility that would result from a life verdict. The court rejected that request. During the jury instruction, the court informed the jury that defendant would be sentenced to at least fifty-five years in prison without parole and possibly an additional ten years if the jury did not impose a death sentence. The court then stated that “[t]hose decisions are for me to make. The possible sentences for these other convictions should not influence you in your decision regarding the appropriateness of a death penalty on the murder charge.”

Defendant argues that, because the trial court gave an ultimate-outcome instruction to the jury during the penalty phase, as was its obligation, the jury should have been allowed to consider the fifty-five years of parole ineligibility under the catch-all mitigating factor for the purpose of deciding whether to impose a sentence of death. The State responds that parole ineligibility cannot possibly be a mitigating factor because it does not relate to a defendant’s character or background or to the circumstances of the offense.

We are unpersuaded by defendant’s argument. In Martini I, supra, the Court rejected the same argument advanced by defendant. 131 N.J. at 313, 619 A.2d 1208. There, the Court concluded that although the trial court should instruct the jury during the penalty phase on potential noncapital sentences, “the court should inform the jury that defendant’s possible sentence for the other convictions should not influence its determination regarding the appropriateness of a death sentence on the murder count.” Ibid. Martini I’s holding in this regard is in harmony with the Court’s pronouncements in related contexts. See Bey III, supra, 129 N.J. at 603, 610 A.2d 814 (holding that, although court should inform jury about defendant’s prior sentences, “the court should instruct the jury that it should not consider prior sentences in its decision to impose a life or death sentence because they are not statutory aggravating or mitigating factors”). Indeed, it would lead to an incongruous result to permit parole ineligibility to be used as mitigating evidence, because the more crimes a defendant committed, the more mitigating evidence he or she would be able to submit. Ibid.

Defendant attempts to distinguish Martini I by arguing that in that case, the sentence for the noncapital offenses was uncertain (i.e., the noncapital sentence may or may not have run consecutively to the murder sentence); whereas, in the present case, the period of parole ineligibility was certain because the statute required that the kidnapping sentence run consecutively to the murder sentence based on the victim’s age. N.J.S.A. 2C:13-1c(2).

The holding of Martini I, however, did not rest upon the fact that the consecutive or concurrent nature of the sentence was uncertain. Rather, the Court was concerned that, without sentencing information, a jury might speculate about the sentences that a defendant would face for the noncapital counts and that such speculation would improperly influence the jury’s deliberations. To avoid such speculative results, the Court determined that the jury should be informed of the potential sentences the defendant faced for noncapital counts. See Martini I, supra, 131 N.J. at 313, 619 A.2d 1208.

We conclude, therefore, that the trial court properly refused to permit the jury to consider the fifty-five years of parole ineligibility under the catch-all mitigating factor.

XVI

Merger of Convictions

After the conclusion of the penalty phase, the trial court sentenced defendant on the noncapital convictions. The court merged the felony-murder conviction into the purposeful-or-knowing-murder conviction and one aggravated-sexual-assault conviction into the other. It sentenced defendant on the kidnapping count to fifty-years imprisonment with twenty-five years of parole ineligibility and on the aggravated-sexual-assault count to twenty-years imprisonment with ten years of parole ineligibility, both sentences to be served consecutively to any sentence for purposeful-or-knowing murder. Defendant now argues, with the agreement of the State, that the trial court erred in failing to merge the aggravated-sexual-assault conviction into the kidnapping conviction.

We agree that the aggravated-sexual-assault conviction should have merged into the kidnapping conviction. N.J.S.A. 2C:13-1e(2) provides that the punishment for kidnapping is twenty-five years of parole ineligibility if the victim was less than sixteen-years-old and if an aggravated sexual assault occurred in the course of the kidnapping. Ibid. That statute requires that any aggravated-sexual-assault conviction merge into such a kidnapping conviction. Ibid.

The conviction and sentence for aggravated sexual assault are vacated and the matter remanded to the Law Division for the entry of an appropriate amended judgment.

XVII

Conclusion

Except for the aggravated-sexual-assault conviction which must merge with the kidnapping conviction, we affirm defendant’s convictions and capital and noncapital sentences. We grant defendant’s request that this Court conduct proportionality review of his death sentence and that he be allowed to make full argument at that time.

The State raises the following arguments on cross-appeal: (1) that the trial court improperly limited the State from presenting the results from DNA testing; (2) that the trial court improperly precluded the State from offering rebuttal evidence at the penalty phase regarding defendant’s life after the age of seventeen; and (3) that, should the Court order a new penalty phase, the State must be permitted to elicit victim-impact evidence. Those issues would be relevant only in the event of a new guilt or penalty phase. Because we are affirming defendant’s convictions, we need not address those issues. We note, however, that the Court recently held in State v. Harvey, 151 N.J. 117, 699 A.2d 596 (1997) (Harvey II) that certain forms of DNA evidence are scientifically reliable.

Affirmed and remanded.

1 The Kansas Supreme Court in State v. Hartfield, 245 Kan. 431, 781 P.2d 1050 (1989), and the Washington Supreme Court in State v. Fortune, 128 Wash.2d 464, 909 P.2d 930 (1996), also adopted the unified-murder concept. Hartfield, supra, 781 P.2d at 1062; Fortune, supra, 909 P.2d at 931-35. In Kansas and Washington, felony murder is not death-eligible. See Kan.Stat.Ann. § 21-3439 (1995); Wash. Rev.Code Ann. §§ 10.95.020, 10.95.030 (West 1996). It is important to note, however, that Hartfield and Fortune involved noncapital offenses.