State v. Moore

585 A.2d 864, 122 N.J. 420, 1991 N.J. LEXIS 15

• Court: Supreme Court of New Jersey
• Decided: January 23, 1991
• Status: Published

Opinions

The opinion of the Court was delivered by

O’HERN, J.

This capital case was tried in June of 1987, four months before our decision in State v. Breakiron, 108 N.J. 591, 532 A.2d 199 (1987). The date is crucial because the pivotal question in this case is the application of the diminished-capacity defense established under N.J.S.A. 2C:4-2. In Breakiron we ruled that even though the statute imposed a burden of proof on the defendant to establish the diminished-capacity defense, the burden imposed was to show only the existence of the mental disease or defect, not that the disease or defect would negate a criminal mental state. That interpretation, we concluded, would pass constitutional muster because it imposed no burden on the defendant to disprove an essential element of the crime charged. In point of fact, even if this case had been tried after, and in accordance with, Breakiron, it would still contain a federal-constitutional flaw — at least in the view of the Third Circuit. In Humanik v. Beyer, 871 F.2d 432, 443, cert. denied, — U.S. -, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989), the Third Circuit ruled that the Breakiron construction failed to meet federal due-process requirements because imposing any burden of proof on the defendant created a “filter” that impermissibly relieved the State of its obligation to prove the defendant guilty beyond a reasonable doubt of each and every element of a crime. The State petitioned the United States Supreme Court for review of the Humanik decision, but the Supreme Court denied relief. We administratively advised trial and appellate courts that in order to avoid a constitutional stalemate, we ought to conform the applications of the statute to the Humanik ruling. Having instructed trial and appellate judges to do so, we can do no less here. The Legislature has since amended the diminished-capacity law. L.1990, c. 63 (amending N.J.S.A. 2C:4-2). Courts will no longer charge that defendants have asserted a statutory affirmative defense. Of course, juries will continue to be required to consider all evidence in a case, including any evidence of mental disease or defect proffered by a defendant, relevant to the state of mind that the State must prove. In addition, proposed legislation, passed in the State Assembly and now awaiting action in the State Senate, would require consideration of commitment for any defendant who is relieved of criminal culpability by virtue of a diminished-capacity defense. A. 760, 204th Leg., 1st Sess. (1990).

The defense is of particular significance here because defendant’s state of mind is really the only issue. The evidence is overwhelming that defendant killed his wife and child. Whether in cold blood, rage or anger, or with callous indifference to the consequences of the brutal blows inflicted on them is undoubtedly all that remains for a jury to decide. Crucial to the jury’s determination, in defendant’s view, is that he suffered from a mental disease or defect of mind on the occasion of the killing to such an extent that he did not intend to kill or did not know that he was killing his victims. His counsel argues that the State should have had to prove that the killings were knowing and purposeful despite the evidence of his mental disease or defect. This is effectively what federal-constitutional law requires. Humanik v. Beyer, supra, 871 F.2d 432. It is close to the construction that we adopted in State v. Breakiron, supra, 108 N.J. 591, 532 A.2d 199.

Not having the benefit of the later-announced decisions, the instructions to the jury here required, in violation of Breakiron/Humanik, that defendant prove that the mental disease or defect negated his knowledge or purpose to kill. The error in the charge is conceded. It is the fault of no one. The language of the statute was followed. The only question is whether the error is harmless. For the reasons to be set forth in detail in the opinion, we cannot find in the circumstances of this case that the constitutional error committed on so fundamental an issue in a murder trial of this type was harmless. Because this ruling requires reversal of the guilt phase of this capital-murder trial, it renders moot most of the other issues. As we have done in other cases, we shall discuss in detail only issues that are likely to recur in the retrial of this case and that are not clearly resolved by our other capital cases.

I

The case involves a particularly shocking hammer killing of a young wife and her eighteen-month-old child as the denouement of a marital breakup. For purposes of this appeal we shall accept without necessarily endorsing in specific terms the general recital of the events set forth in the State’s brief.

The murder took place on Sunday evening, June 29, 1986, at the Couple’s apartment at 207 South Harrison Street, East Orange, New Jersey, following a family outing that ended in an argument and the death of the wife and child at the hands of the husband and father.

At first a seemingly happy union, the marriage began to deteriorate in early 1986. The wife, Melva, complained of defendant’s hours outside the home at work (he held a managerial position in an airline catering service at Newark Airport), while the husband complained of the wife’s housekeeping. Despite the fact that she had become pregnant in early 1986, Melva told a friend in the spring of 1986 that she was thinking of leaving the defendant. Although he complained of his wife, defendant told a friend that he would not leave his home.

The situation worsened when Melva learned that defendant was having an affair with a co-worker, to whom we shall refer by her first name, Lizzette. Defendant and Lizzette planned to set up housekeeping together. It appears that defendant wanted Melva out of the family apartment so that he and Lizzette could occupy it. The plan was that Lizzette would move into defendant’s apartment on Sunday, June 29, 1986.

That was the last day that any member of his family would occupy that apartment. That Sunday, Melva and Kory, her eighteen-month-old son, had not moved out. Defendant spent the day with Melva and Kory at a park. When they arrived home at about 9:00 p.m., defendant and Melva started arguing. The argument became a fight, an exchange of recriminations and hate-filled words. Defendant picked up a hammer and struck Melva repeatedly with it. According to the forensic pathologist, defendant struck more than twenty blows to her skull, spattering blood and brain throughout the apartment. In the course of killing Melva, defendant killed Kory. He claims that it was an accident. Kory’s body was found on the hallway floor about three feet to the right of his mother, whose body was lying in the bathroom doorway. Blood from the mother was found on the child’s overalls. By approximately 9:30 p.m. both were dead.

About this time a telephone in the apartment rang. It was Ennis White, a friend of Melva. When Ennis asked for Melva, defendant said he did not know where she was. Defendant then put his bloodstained shirt and shorts into a paper bag and wiped the blood off himself.

He then went to pick up Lizzette, who was planning to move into the South Harrison Street apartment. Defendant told her that he had to stop off at work. When they arrived at work, he took the paper bag with his clothes out of the trunk and hid them in the building. He told Lizzette that it would be better if they spent the night at a motel. After moving her into a motel, he drove back to his place of work, retrieved the bag of clothes, including the towel, and threw it into a barrel in an abandoned building. He also threw the hammer onto the roof of the abandoned building. After eating, defendant returned to the motel and remained overnight with Lizzette.

On the following morning, Monday, June 30, 1986, a worried friend of Melva gained access to the apartment with the help of a superintendent. At 8:15 a.m. the police were at the scene. They found no evidence of forced entry, burglary, or robbery. They found blood on the telephone and a bloody palm print in the bathroom. Defendant arrived at the apartment early Monday morning. He was soon identified as the husband. He told the police that he had been at the Royal Inn motel the night before with his girl friend. Defendant did not tell the police about the 9:30 p.m. phone call. He was taken to the police station where he denied involvement. Following an emotional confrontation with Lizzette, defendant told her that when Melva started yelling at him, he got mad and he beat her with a hammer. When Lizzette asked “why Kory?” (the baby), defendant broke down and cried. He said that he did not know. He said that he wanted only to be with Lizzette. Defendant then gave the police a written confession admitting the facts outlined above. He contended that Kory had jumped on Melva to “cover her” and in the process Kory was struck by accident. He told the police how he had abandoned his clothes and the murder weapon. The police retrieved these items. The police identified the palm print as that of defendant.

The jury found defendant guilty of two counts of capital murder and two counts of weapons-related offenses.

At the sentencing proceeding, the State asserted two aggravating factors on each murder: (1) that the murder was outrageously or wantonly vile in that it involved torture, depravity of mind, or an aggravated assault, N.J.S.A. 2C:ll-3c(4)(c) (in Kory’s case the State agreed to limit the c(4)(c) factor to depravity); and (2) the murder was committed while defendant was engaged in the commission of another murder, N.J.S.A. 2C:ll-3c(4)(g). Concerning Kory’s murder, the State asserted as an alternative to depravity of mind that defendant had committed it to escape detection. N.J.S.A. 2C:ll-3c(4)(f). The jury unanimously found the presence of the two aggravating factors, c(4)(c) and c(4)(g), as to both killings, and unanimously found as mitigating factors defendant’s lack of a prior record, N.J.S.A. 2C:l-3c(5)(f), and the catchall mitigating factor, N.J. S.A. 2C:ll-3c(5)(h). One juror found defendant had been under the influence of extreme emotional disturbance, N.J.S.A. 2C:11-3c(5)(a). The jury unanimously found beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors. Consequently, the defendant was sentenced to death. The appeal to us is of right under R. 2:2-l(a)(3).

II

Diminished Capacity Issue

Defendant contends that the trial court imposed on him the burden of proof of a diminished capacity and thereby violated his due-process right to have the State prove each and every element of the crime charged beyond a reasonable doubt.

N.J.S.A. 2C:4-2, which establishes the defense of diminished capacity, provided at the time of this trial:

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense. Mental disease or defect is an affirmative defense which must be proved by a preponderance of the evidence.

As we held in State v. Breakiron, supra, 108 N.J. 591, 532 A.2d 199, the statute does not shift the burden of proof to the defendant to disprove an essential element of the case. Rather, the defendant needs to do only what the statute says: to prove the existence of a mental disease or defect. We believed that this was constitutional.

The Third Circuit Court of Appeals, in Humanik v. Beyer, supra, 871 F.2d 432, ruled that an instruction that a defendant has the burden of proving the existence of a mental disease or defect by a preponderance of the evidence denies him or her due process of law. In its view, the imposition of such a burden on the defendant violates the due-process clause by acting as a “filter” that may bar the jury’s consideration of that evidence when the time comes to decide whether the State has proved, beyond a reasonable doubt, the criminal state of mind that is an essential element of the crime. Id. at 443.

Because certiorari was denied by the United States Supreme Court from the Humanik decision, Chief Justice Wilentz, on behalf of this Court, issued a memorandum on December 8, 1989, instructing all courts to apply the Humanik decision in pending appeals in order to avoid an intolerable conflict between state and federal courts in the circuit. The memorandum provided: “Of course, that fact does not require a reversal of every case presenting a diminished capacity issue. Other appellate principles may dictate a different result.” See 124 N.J.L.J. 1562 (1989) (summarizing the memorandum).

Therefore, we must resolve two issues in this case: (1) whether there is error in the charge, and, if so, (2) whether the error in the charge requires reversal.

A.

The initial charge to the jury on diminished capacity seems clearly to have placed the burden on the defendant to disprove an essential element of the crime. The initial charge follows:

The defendant contends that he was suffering from a mental disease or defect which made him incapable of the state of mind required to be proved for a murder, aggravated manslaughter, manslaughter or possession of a weapon. That is, he says that he was not able to act purposely, knowingly or recklessly; that his mental disease or defect prevented him from acting with any of those states of mind.

Mental disease or defect which would negate the state of mind which is an element of the defense is never assumed. Indeed, as I told you, indeed, people are capable of forming the requisite intent.

When the defendant contends that he does not have the requisite capability, he must prove by a preponderance of the evidence, that, (1) that he has the mental disease or defect, and (2) that it was of such a nature that it prevented him from acting purposely, knowingly or recklessly, depending on which state or states of mind are one of the elements of the offense that is under consideration.

The State does not have the burden of persuasion on this issue. The burden is on the defendant. And if you have found that the defendant did an act in question, then you must consider his state of mind accompanying the act or acts.

If the defendant has proved the mental disease or defect and that it negated his ability to form the state of mind, you must find him not guilty with respect to such crime. [Emphasis added.]

It is true that the charge in other respects conveyed to the jury the requirement that the burden of proof to establish each essential element of the crime always remained on the State. Early in its charge, the court instructed the jury that “the burden of proof is upon the State to prove the elements of a crime, and it never shifts. It remains on the State throughout the whole trial of the case.” In addition, in concluding its charge on the defense of diminished capacity, the court told the jury:

All evidence bearing on that, all circumstances, including mental condition, and state of mind, may be considered. In other words, even if a defendant has failed to prove that he was not able to have a particular state of mind by reason of a mental disease or defect, that does not relieve the State of its job to prove that, in fact, at the time in question, the defendant had the requisite mental state when he took the actions which are crimes, if done purposely or knowingly-

However, the fact remains that the charge was contradictory. Contradictory and inconsistent charges are inherently inadequate as they “create a reasonable likelihood that a juror understood the instructions in an unconstitutional manner * * Humanik v. Beyer, supra, 871 F.2d at 442 (quoting Francis v. Franklin, 471 US. 307, 323 n. 8, 105 S.Ct. 1965, 1975 n. 8, 85 L.Ed.2d 344, 359 n. 8 (1985)). In responding to a jury request to explain the insanity and diminished-capacity defenses, the court recharged the jury:

As a part of his general denial of guilt, the defendant maintains he was not guilty of the crimes charged, either by reason of diminished capacity or lack of capacity, or by reason of legal insanity, or both. Those are separate concepts, but they have certain things in common, and we’ll mention again the things in common.

First of all, the law entertains no prejudices against the defenses of diminished capacity or insanity. On the contrary, if the defense-^if either defense is sufficiently established, the law allows the defendant the benefit of it by an acquittal of all criminal responsibility. * * *

Under our law, all persons are assumed to be sane, and are assumed to be capable of forming the requisite state of mind, and therefore, responsible for their conduct until the contrary is established by them. Insanity and diminished capacity are affirmative defenses, and the burden of proving them or either of them by a preponderance of the evidence is on the defendant who asserts the defense.

And later:

And therefore, if the evidence were to be in balance with respect to mental disease or defect, or its effect, then the defendant who has the burden of proof with respect thereto has not met the burden. [Emphasis added.]

And:

When a defendant contends that he does not have the capability, he must prove by a preponderance of the evidence; (1) that he had the mental disease or defect; and (2) that it was of such a nature that it prevented him from acting purposefully, knowingly or recklessly * * *.

The State does not have the burden of persuasion in this issue. The burden is on the defendant, as I’ve indicated. [Emphasis added.]

The combination of those instructions seems clearly to have conveyed to the jury that it was defendant’s burden to prove that his mental condition negated the presumed culpability that attended his doing of the act. Although the court reinstructed the jury as well that the defendant’s failure to disprove the requisite mental state did not relieve the State of its burden, we “cannot say with any degree of confidence which interpretation [the] jury adopted.” Mills v. Maryland, 486 U.S. 367, 383, 108 S.Ct. 1860, 1870, 100 L.Ed.2d 384, 399 (1988).

B.

Notwithstanding the defect in the charge, the State argues that any error in the charge is harmless. The argument has support in a recent decision of the Appellate Division, State v. Carroll, 242 N.J.Super. 549, 577 A.2d 862 (1990), certif. denied, — N.J. - (1991). In that tragically similar factual circumstance, a stormy love relationship between a couple disintegrated, culminating in the crushing and stabbing murder of the thirteen-year-old daughter of the defendant’s estranged wife.

The Appellate Division found the jury instruction in Carroll to be defective because it erroneously placed the burden of proving the existence of a diminished capacity on the defendant, contrary to Humanik. However, the error was harmless as the defendant had “failed to present evidence of the kind of mental disease or defect which would negate the mental state required to convict him of murder.” State v. Carroll, supra, 242 N.J.Super. at 557, 577 A.2d 862.

The Appellate Division relied on this Court’s opinions in State v. Pitts, 116 N.J. 580, 562 A.2d 1320 (1989), and State v. Breakiron, supra, 108 N.J. 591, 532 A.2d 199. In State v. Pitts, the Court concluded that the psychiatric testimony presented by the defendant, which characterized the defendant’s behavior as a loss of emotional control (“rage reaction”) rather than a loss of cognitive faculties, was not the kind of evidence that required the diminished-capacity instruction to be submitted to the jury. 116 N.J. at 592, 562 A.2d 1320. In State v. Breakiron, we ruled that in order to qualify for the defense of diminished capacity, at a minimum the evidence must be shown to be capable of negating a mental element of the crime charged or otherwise to impair cognition. 108 N.J. at 619, 532 A.2d 199. Based on these two opinions, the Carroll court distinguished between a case presenting evidence of a mental disease or defect that impairs the cognitive state required to act knowingly or purposely and a case in which the evidence presented concerns a mental disease or defect “which produces an emotive reaction such as rage or impassioned impulse * * State v. Carroll, supra, 242 N.J.Super. at 558, 577 A.2d 862. The former case requires the submission of the diminished-capacity defense to the jury whereas in the latter case the defense need not be submitted.

Reviewing the testimony, the Carroll court determined that the defendant had failed to present evidence that his mental condition so impaired his cognitive faculties as to prevent him from acting purposely or knowingly. While stating in conclusory terms that Carroll’s mental condition at the time of the homicide prevented him from acting purposely or knowingly, one medical expert asserted that a combination of mental diseases (atypical psychosis, organic brain syndrome, and borderline or mixed personality disorder) and the consumption of alcohol (chronic substance abuse) caused Carroll to become enraged and to lose control of his impulses. The court continued:

However, [the doctor] never stated that defendant suffered from an impairment of his faculties which prevented him from being cognizant of the fact that he was hitting his stepdaughter over the head with a scale and stabbing her in the throat with a knife and that it was practically certain his actions would cause death or serious bodily injury to the child. See N.J.S.A. 2C:ll-3a(2). Therefore, [the doctor’s] testimony did not mandate a jury instruction as to the defense of diminished capacity. [Id. at 560-61, 577 A.2d 862.]

Another defense expert, a neurologist, concluded that Carroll had acted recklessly, not purposely or knowingly. He based his conclusion on the impression that a person who is indifferent to the consequences of his or her actions, one who does not care whether the victim lives or dies, cannot be found to have acted knowingly or purposely. The neurologist believed that Carroll’s intellectual impairment and consumption of alcohol caused him to lose “impulse control” and that he was “acting in a fury, in a rage” when he committed the murder. Id. at 561, 577 A.2d 862. The Appellate Division found that that testimony was not the kind of evidence that required the submission of a diminished-capacity defense to the jury.

Because “the only possible consequence of the court’s * * * instruction to the jury regarding the defense of diminished capacity would have been to improve defendant’s chances of securing an acquittal,” the Appellate Division found that the erroneous instruction had not prejudiced Carroll, and that any error was harmless beyond a reasonable doubt. Id. at 563, 577 A.2d 862.

We are unable to agree, however, that the evidence in this case can be analyzed in the same way as the psychiatric testimony in the Carroll case. In this case the psychiatric witness testified that the fact defendant killed Kory in the course of killing Melva “indicates even more so and underscores the fact that he was not aware of what he was doing or not in control of what he was doing, because he certainly felt the opposite toward Kory [than he felt toward Melva].” And later when asked specifically by the prosecutor about the striking of Kory, “But [he] knew what he was doing?” Answer: “I think not. But there is always a continuum. He could have been subconsciously aware, minimally aware.” As thin as the evidence was, it contained a diagnosis of a “brief reactive psychosis” that defendant suffered at the time of the murder as the result of stress.

In later cross-examination the prosecutor questioned whether defendant’s consciousness of guilt, as shown by his concealment of the evidence, clearly established that he had consciously killed:

Q. Someone who knows they were guilty would get rid of the evidence, wouldn’t they?

A. Shouldn’t [one] who knows that he has killed two people, for whatever reasons. Guilty sounds like he did something deliberate, and my point is he has not.

Q. You don’t think he deliberately killed?

A. That’s right.

Another defense witness placed defendant’s conduct closely into the rage pattern. He said that he interpreted “this type of a homicide to be a rage reaction, out of control, emotionally murder — or homicide, excuse me. I’m sorry.” To which the prosecutor replied: “I take it one of those emotions of the assailant could be hate as well, couldn’t it, doctor?” That kind of testimony indeed would not qualify for the diminished-capacity charge. It might be a mitigating factor in a capital-sentencing proceeding, but surely would not qualify for the diminished-capacity charge.

Nonetheless, the admissible testimony of at least one of defendant’s expert witnesses purported to establish the presence of a mental disease in the form of a stress-induced psychosis that grew out of the borderline personality disorder, which was described in some detail in the evidence. According to defendant’s expert psychiatric witness, that disease or defect affected Moore’s cognitive faculties.

Given the qualitative difference between the evidence in this case and that in Pitts and Carroll, we are unable to agree that any error in the charge can be regarded as harmless. Defendant presented evidence from which a jury could have concluded that the State had failed to prove the requisite state of mind beyond a reasonable doubt.

Ill

Other Issues

Pretrial Issues

1. Grand Jury Selection

Defendant challenges his conviction on the basis that his indictment and sentence at trial were returned by grand and petit juries that were unconstitutionally selected. The petit jury issue is mooted by our disposition. On the grand jury issue, defendant asks us to revisit our decision in State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987). To repeat what we said there:

At this time, however, and on the showing made by defendant in this case, we cannot say that the inadequacies in the present system rise to constitutional dimensions. Given the marginal strength of the statistical showing in comparison to other cases, the fact that the mechanism by which jury lists are now constituted is facially neutral and objective, the failure to demonstrate underrepresentativeness over a sufficient period of time, and the State’s efforts at reform, we hold that defendant has failed to make a prima facie showing that the Essex County grand and petit jury selection procedures violate either the sixth or fourteenth amendments. [State v. Ramseur, supra, 106 N.J at 227-28, 524 A.2d 188.]

The parties seem to agree that “Essex County’s jury selection procedures had not been altered since this Court’s decision in Ramseur.” They are not, however, referring to the method of selecting the grand-jury foreperson or any practice involving the balance of particular panels. Rather, defendant challenges the “source list and qualified pool because their underrepresentative composition ignores the defendant’s constitutional right to a grand and petit jury drawn from a fair cross-section of the community.”

We issued a caveat in Ramseur stating that if a significant statistical disparity were to continue “over a significant period of time,” exclusive reliance on motor vehicle lists and voter registration data would become suspect. Id. at 227, 524 A.2d 188. Because defendant did not in this case attempt to demonstrate evidence concerning the caveat in Ramseur, we find that the grand-jury-selection procedures in this case were not unconstitutional.

2. Confession

Defendant contends that his oral and written confessions were obtained in violation of his constitutional rights.

Two critical issues have arisen with respect to the confessions: (1) were the confessions the tainted product of an illegal arrest?; and (2) did the questioning continue after defendant had requested the assistance of an attorney?

Concerning both, the law is of course well settled. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (incriminating evidence given by defendant to police during an illegal detention inadmissible when no intervening event breaks the connection between defendant’s illegal detention and the incriminating evidence); State v. [Richard] Johnson, 118 N.J. 639, 573 A. 2d 909 (1990) (unlawful detention of defendant by police followed by refusal to allow defendant to see counsel necessitated exclusion of statements); Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (police prohibited from initiating any interrogation of a defendant who has requested counsel); State v. McCloskey, 90 N.J. 18, 446 A.2d 1201 (1982) (interrogation of defendant fourteen hours after his request for counsel without inquiring whether he had spoken to counsel violated defendant’s sixth-amendment rights requiring suppression of statements made during interrogation).

Each side presents a vastly different version of what occurred at the station house. According to Moore, he was immediately arrested at the apartment on Monday morning, handcuffed, and literally chained for a period of seven hours before he confessed to the murder.

According to the police, they requested that Moore come to the police station to assist in the investigation of the deaths in the family. Despite the fact that he had not been arrested, the police furnished defendant with Miranda warnings when they commenced questioning him in mid-morning of the Monday following the murder. Only gradually did the evidence begin to point inexorably at defendant. Defendant proffered the alibi that he had spent the Sunday evening with Lizzette at the Royal Inn motel. In addition, defendant offered the name of an independent witness who could confirm that he was at the Royal Inn motel on the evening of the crime. The police left immediately to pick up Lizzette and run down his alibi.

As the police ran down each of the leads, they began to find holes in the story. By mid-morning the police had learned from Ennis White that she had called the Moores’ apartment at 9:30 p.m. and that defendant had answered the phone, placing him at the scene of the crime at or near the time of death.

The police also interrupted the questioning to attend the autopsies of the victims. By mid-afternoon they had compiled the written statements from Lizzette and Ennis White and had become convinced that there were serious flaws in defendant’s story. He had lied about his whereabouts on the night of the crime. He had a strong motive to end his relationship with his wife.

According to the police, it was Moore who asked to see Lizzette. He was told that she was in the Police Captain’s office. At about 3:30 p.m. she was brought into the room. The result was graphically described by the police witness: “They jumped up and hugged each other and he said T did it for you,’ and she started crying, hollering, and she passed out; I grabbed [her] baby.” Within the hour defendant received renewed Miranda warnings and gave the oral and written confessions to the murders that he seeks to suppress.

At the suppression hearing both he and Lizzette insisted that he had repeatedly requested an attorney before he gave his impulsive confession to her in the presence of police or the more formal confessions. Ennis White also testified that she overheard defendant “ask for a lawyer a few times.” Were this true, the police could not have continued to interrogate him once he had invoked his sixth-amendment right to counsel. Critical to his case was the credibility of his and Lizzette’s testimony and, even more so, the testimony of Ennis White, who might be seen as an impartial witness. The trial court resolved those credibility issues against defendant and his witnesses.

On the issue of illegal arrest, the trial court was satisfied, after considering all of the facts, that the State had established beyond a reasonable doubt that the defendant was not arrested on the morning of June 30, but rather had gone to the police station as a natural event in the routine investigation of the deaths in the family. The court noted that he had had quite a few hours to think about and prepare his defense in the case. He had taken the time to hide the bloody clothes and hammer. The court concluded that “[h]e obviously knew that the police would want to speak to him and he obviously came to the police station with the frame of mind that he could talk his way out of his problems.” The court noted that he had a good education and a high-level job. He had previous experience with the law and an admitted understanding of Miranda warnings and constitutional rights. He gave information that was helpful to the police and indeed intended to lead them to his alibi witnesses. As a result of that information, the questioning stopped until the various leads had been run down.

On the question of whether defendant had requested the assistance of counsel, the court was also convinced that that had not been the case. “He claims that on six or so occasions he asked for a lawyer. I don’t believe that testimony.”

In support of its factual findings, the court pointed to several inconsistencies in the testimony at the suppression hearing. For example, a request for a lawyer would have been absolutely inconsistent with his purpose in being there, which was, as he himself admitted, to appear cooperative and to try to outsmart the police without in any way admitting any guilty knowledge or responsibility for the crime. Defendant also admitted that he had heard Ennis White’s voice in another room at police headquarters, leading to the conclusion that he was not isolated from others since they were but ten or fifteen feet away.

The court discounted Lizzette’s testimony on defendant’s request for counsel because her statement to that effect was the product of repeated prodding by defendant’s attorneys: “they kept asking me if he asked for a lawyer.” The clear inference drawn by the court was that the idea of asking for a lawyer had been placed in her mind by those asking the questions. She would have had to have been rather dull not to have concluded this might be helpful to defendant. Ennis White’s testimony might have been viewed more favorably to defendant if she had not lived with a man who had had numerous confrontations with the investigating East Orange Police Department and not been friendly with defendant at work.

In short, the court concluded: “Lest there be any question about the ability of Mr. Moore to lie, he has repeatedly admitted on the stand that he lied to the police officers in order to protect himself and that those were deliberate lies.” It took little further to convince the court that Moore was lying when he said that he had invoked the right to counsel. After all, “the last thing the defendant had in mind was indicating that he wanted a lawyer since that would interfere with his attempt to talk his way out of the situation, so I do not believe the testimony of Ennis White in that regard. I think she was simply trying to help this defendant.”

The trial court was satisfied, after considering all of the facts, that the State had established beyond a reasonable doubt that the defendant had not been arrested on the. morning of June 30; that he had come voluntarily to the police station; that he stayed there voluntarily; that he never asked to leave; that he wanted to remain there as the police were continuing their investigation; that he wanted to continue to “play out his cards as long as he could” to avoid having these charges leveled against him. The court was further satisfied that all Miranda warnings were given to him; that he was asked if he understood his rights, including the right to have counsel; that he was not actually under arrest when he made the admission to Lizzette. The court therefore concluded that the evidence seized as a result of the confession, the hammer and the clothing, was admissible in the proceedings against him. We believe that those factual findings are well founded in the record, and we sustain those rulings.

3. Voir Dire

Defendant contends that the trial court improperly limited the scope of questioning during voir dire, and that “the voir dire as a whole was woefully inadequate.” Although that argument makes a broad-based challenge to the trial court’s voir dire, defendant points specifically to three issues that he believes were improperly handled in the voir dire questioning: (1) whether the status of the victims would substantially impair a juror’s ability to perform his or her duties; (2) whether jurors had biased attitudes toward mental-health and psychiatric defenses; and (3) whether jurors understood that a defendant is afforded the presumption of innocence until proven guilty. Defendant concludes that the trial court’s limitations on these and other relevant questions during the voir dire process deprived him of his “fundamental right to a fair trial by an impartial jury.” The State counters that the voir dire was “thorough in detecting juror bias,” and that the trial court’s “rulings regarding other areas of questioning were fully in accord with State v. Manley, 54 N.J. 259 [255 A.2d 193] (1969).”

In Manley the defense counsel sought to question prospective jurors about their ability to limit their consideration of his prior conviction to its appropriate purpose. The trial court refused to allow such questioning without some representation by defense counsel that defendant would take the stand during trial. On appeal, this Court upheld the trial court’s decision to deny defendant’s requested question to the voir dire panel. The Manley Court took that occasion to institute revised procedures for jury selection. In doing so, it stated that while “supplementary questioning [during voir dire ] by counsel personally is not foreclosed entirely, * * * control over its scope and content is left to the experienced judgment and discretion of the trial judge * * Id. at 282, 255 A.2d 193.

Before making that conclusion, the Court also traced the history of voir dire. Under English common law, voir dire of a juror can be conducted only after a party has challenged that juror for cause and even then the voir dire must be conducted in support of that challenge. Id. at 272, 255 A.2d 193. Courts in the United States initially followed the English rule. However, over the last century, American courts moved toward allowing preliminary examination of prospective jurors. Id. at 272-73, 255 A.2d 193. The practice of voir dire evolved from a court-employed mechanism to insure fair and impartial jurors to a trial tactic intended to empanel a jury that is sympathetic to one side. Id. at 281, 255 A.2d 193. The Court gave the following tactics as examples of how attorneys had subverted the “true purpose of juror examination”:

[E]fforts to indoctrinate, to persuade, to instruct by favorable explanation of legal principles that may or may not be involved, to lecture on the law and the facts and the relation of one to the other, the lecture ending in a question for form’s sake. It means also * * * [to ask] the hypothetical question intended and so framed as to commit or to pledge jurors to a point of view or a result before they have heard any evidence, argument of counsel or instructions of the court. [Id. at 280-81, 255 A.2d 193.]

To restrict voir dire to its intended purpose, the Court declared that, to the extent feasible, trial judges should interrogate prospective jurors, and may allow supplemental interrogation by counsel at their discretion. Id. at 281, 255 A.2d 193; see also R. l:8-3(a) (“parties or their attorneys may supplement the court’s interrogation in its discretion”). The Court concluded:

Administration of this rule will require trial judges to exercise greater control over the voir dire questioning than has been exercised in our State in modern times. The burden necessarily assumed by them will be compensated for in substantial measure by a shortening of the time for empaneling a jury * * * and by avoidance of the tedium associated with prolix and repetitious questioning, much of which intrudes into the aspect of the trial which should be dealt with by the judge alone at the proper point in the proceedings. [State v. Manley, supra, 54 N.J. at 282, 255 A.2d 193 (citation omitted).]

In this case the trial court relied heavily on Manley in limiting the scope of questioning during voir dire. At a pretrial conference, the court informed counsel that although it would allow questioning by each party, it would not permit any questioning that forced a juror to speculate on how a particular fact would influence his or her deliberations in the case. Rather, the court would permit the question of whether such facts “would substantially interfere with their ability to follow the law.”

Defense counsel objected to that limitation repeatedly throughout the proceedings. Defense counsel wanted to ask more open-ended questions of individual jurors. His objection immediately after the voir dire of the first prospective juror more than adequately summarized his problem with the voir dire and the court’s restriction: “[What] we all know is that they will be able to respond [only] robot-like to a question if they will follow the law.” Defense counsel argued that by not allowing the jurors to express their attitudes and feelings about the particularly troubling facts of the case, the court’s limitation of questioning during the voir dire “avoid[ed] receiving any information whatsoever about this juror.”

One of the problems that we have in capital cases is that the constitutionally-limited Adams-Witt standard for disqualification of jurors in capital causes (would their personal views in the morality, utility, or efficiency of the death penalty “substantially interfere” with their ability nevertheless to follow and apply the State’s death-penalty statute?) gets confused with the more general inquiry into juror predispositions or preferences that should mark the general jury-selection process. Adams v. Texas, 448 US. 38, 100 S.Ct. 521, 65 L.Ed.2d 581 (1980) and Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). For example, in a non-capital case, we almost invariably would permit questioning of jurors about whether they would be inclined to give more credence to law-enforcement witnesses than to others. However, we do not ask the jurors whether the fact that some witnesses are law-enforcement officers “would substantially interfere with their ability to follow the law.” Plain speaking is the best way to get at such predispositions. The meaning of the Norman-French expression voir dire (“to speak the truth”) conveys this idea.

In a sense, voir dire acts as a discovery tool. It is like a conversation in which the parties are trying to reveal the source of any such attitudes without manipulation or delay of the trial. However, in order for that discovery procedure to be effective, potential jurors need to have some basic comprehension about what their legal duties as jurors will be. In that sense, voir dire can act as a teaching tool. When necessary, courts can use voir dire as a way of educating potential jurors to the “legal requirements” of their responsibilities as jurors. State v. Leisure, 749 S.W.2d 366, 375 (Mo.1988).

Although the voir dire issues have become moot because of the Breakiron/Humanik disposition, we believe the overall conduct of the voir dire in this case was sufficiently probing to assure that defendant received a fair trial by an impartial jury. We offer these comments for guidance in future capital trials.

Defendant’s first argument involves the status of the victims, namely, the fact that Melva Moore was pregnant and Kory Moore was less than two years old at the time of their deaths. At the pretrial conference defense counsel offered the following question for voir dire consideration:

If it appeared from the evidence that Melva Moore was six months pregnant or Kory Moore was eighteen months old when he died, would that circumstance substantially interfere with your ability to perform your duties?

The trial court would not permit this question because it would be asking jurors to speculate “on what they might do or how their verdict might be influenced by certain contingencies.” In its view, that questioning would contravene the intended scope of voir dire as contemplated by this Court in Manley. An early colloquy between court and defense counsel highlights their differences over the scope of the questioning:

[COUNSEL]: Your Honor, at this time, I’d like to note several things. First, our continuing objection to your Honor’s precluding us from asking what we consider to be extraordinarily significant questions pertaining to this particular case. I’m not going to reargue anything about that.

* * * * [discussion of insanity and burden of proof]

The most important [remaining] question, your Honor, deals with the child victim and the fact that Melva Moore was pregnant. Simply asking whether they have any feelings about the fact that a child was killed, which we are permitted to ask is not sufficient.

THE COURT: You want to ask them what the effect on them would be of the child being killed.

[COUNSEL]: Whether they feel that a child was killed, first, that they would be more likely to convict — whether they would be more likely to convict merely for that reason; and more importantly, whether if a conviction is rendered, whether they would be more likely to impose the death penalty. In other words, whether they would create their own aggravating factor.

The court resisted this line of questioning, in part, it said, because killing a child could in itself be an aggravating factor, but more, we think, because of what it perceived to be the strictures of Manley. That approach overreads the purpose of Manley, which was not to eliminate judicial inquiry into juror biases in the context of the case but rather “to limit more stringently the conduct and scope of the voir dire.” 54 N.J. at 280, 255 A.2d 193. For the Manley Court, this limitation of voir dire meant

eliminating the efforts to indoctrinate, to persuade, to instruct by favorable explanation of legal principles that may or may not be involved, to lecture on the law and the facts and the relation of one to the other, the lecture ending in a question for form’s sake. It means also a prohibition of the hypothetical question intended and so framed as to commit or to pledge jurors to a point of view or a result before they have heard any evidence, argument of counsel or instructions of the court. [54 N.J. at 280-81, 255 A.2d 193.]

Yet, in spite of the trial court’s early resistance to a more open voir dire, we believe that, as a whole, the voir dire was sufficiently probing in its attempt to weed out any prospective jurors who indicated through their answers that the facts of this case might impair their ability to decide defendant’s guilt or innocence or decide the correct sentence.

We begin by noting that this voir dire, like others that we have seen, gradually took on a rhythm of its own as the jurors’ attitudes became more apparent to court and counsel. In fact, the prosecutor almost invariably asked jurors if they had any attitudes about the status of the victims that would “interfere with your ability to be fair and impartial.” Sometimes defense counsel was permitted to ask without objection: “Would the fact that one of the victims here was a child influence you so that it would be more likely that you would impose the death penalty?” At other times the court resisted the question, ruling that counsel was trying to find “jurors who are sympathetic to your cause,” and stating that “the fact that a person would be more likely to convict if it’s a crippled person, a totally innocent person, a child, that’s not bias. That’s not bias at all.”

If that is not grounds to excuse for cause, it surely shows a juror who could be excused peremptorily. See State v. Thompson, 142 N.J.Super. 274, 280, 361 A.2d 104 (App.Div.1976) (untruthful responses by juror infringe on “a valuable incident of the trial process — the exercise of a peremptory challenge”). Still, the court was not inflexible. It permitted co-counsel for defendant to ask one juror an open-ended question about whether she had “any strong feelings or biases or prejudices” concerning the fact that there was a child victim. Yet, later it would not permit a juror to answer whether she would return a death penalty “in all situations where the mother was pregnant at the time of the murder.” The court thought this was asking for a view on the case. Yet, the prosecutor was permitted to ask another person whether, knowing the victims were a pregnant mother and a child, “it would not be automatic, one way or the other.”

In sum, there were occasions when the court seemed to feel that Manley would not permit questions about jurors’ attitudes related to the type of case before it. Thus, when counsel asked a juror if the circumstances were such that “it might be more difficult for you to be fair to Mr. Moore,” the court sustained objection to the question, ruling: “You are asking about the effect in a particular case.” Of course he was. But that is the purpose of voir dire: to see if there are biases or predispositions in the “particular case” that is before the court.

The death-qualification process is “important, delicate, and complex,” and requires a “thorough and searching” inquiry into “jurors’ opinions and biases.” State v. Williams, 113 N.J. 393, 413, 550 A.2d 1172 (1988) (Williams II). It is not enough just to ask jurors in a capital case whether the nature of the crimes would affect their ability to be fair in deliberating on a death sentence versus a term of years. The question is correct so far as it goes, but it really invites only one answer. Will many say that they will be unfair? Similar to the voir dire in Williams II, many of the jurors in this case gave rote responses to the question of whether the facts in this case would affect their ability to be fair to the defendant. It is also clear from the record that certain prospective jurors did have prejudices and biases pertaining to the facts of this case and the status of the victims.

Obviously, jury selection is not the place for opening statements or closing arguments. Under our single-jury capital-trial system, jury selection must, however, serve double duty as both a time to “death-qualify” jurors and a time to enable counsel to exercise the valuable constitutional prerogative of selecting a fair and impartial jury. The purposes of the inquiry are simply not the same, although they tend to overlap. State v. Zola, 112 N.J. 384, 397, 548 A.2d 1022 (1988), demonstrates the overlap and the proper method of dealing with it:

[A]t this initial phase of the trial the jurors fully understood that they would be given specific factors to guide them in the sentencing phase of the trial. The jurors all knew that this was a case of alleged rape-murder; they knew that they would be exposed to photographs that might shock them; they knew that the victim was elderly; they knew that they would be hearing testimony about narcotics; they knew that the case would turn in good measure on expert psychiatric evidence. Each juror was asked if he or she could evaluate such matters fairly and without predisposition. Some immediately and candidly told the court that they could not be impartial where drugs or rape or a helpless victim were allegedly involved. These jurors, as well as all whose professed lack of prejudice wavered on questioning, were discharged for cause.

We agreed in Zola that it would have been appropriate for the court or for counsel to have asked additional open-ended questions directed to any specific feelings that the jurors might have had about capital punishment in that case. We do not view such questioning as involving juror manipulation or juror indoctrination. As noted, an unintended consequence of the establishment of the Adams-Witt test of “substantial interference” with a juror’s deliberations as the outer boundary for the State’s excuse of jurors for cause in a capital case is that trial courts seem inadvertently to have converted that standard into the only inquiry into juror qualifications. That was never the intention of the Supreme Court nor of this Court. Juror voir dire was never intended by Manley to be frozen into a series of “yes or no” responses. Judges who choose to question jurors themselves should be open to the suggestions of counsel. In State v. Long, 119 N.J. 439, 480-82, 575 A.2d 435 (1990), our review of the trial court’s voir dire suggested how such questioning may proceed:

When the court renewed voir dire after the superseding indictment, it acknowledged the prosecutor’s suggestion, based on the earlier jury selection, that “it was most effective last time by letting the juror, to some degree, lead you to where you want to go” — in other words, there should be a flexible approach to the questioning rather than a reading of a set formula. The court used familiar examples for evaluating jurors, such as that one would not evaluate the jurors’ attitudes in the same way as when they were “mouthing off in John’s bar after a softball game.”

* * * “This proceeding has not been done by [rote]. If you [defense counsel] have any objection to a specific procedure and make a request to change it, I will act on that.” The court explained that it had given the jurors the questionnaire explaining the death penalty in general terms to avoid a reading of it to them “in a flat monotone.” The court explained that after it had reviewed the questionnaire, “I have made a conscious effort to relax them and to draw them out,” asking them personal questions about where they had gone to college and so forth. This trial court did not insist on putting all questions to the jurors but said: “[M]y practice has been, and I want it clear, my practice has been to turn to counsel in each and every instance and say ‘open season, go at it.’ Now I don’t know what else to do. I don’t know what else to do.”

The court referred to one occasion on which it had to stop counsel from what it considered an extensive line of questioning, but on the whole it was tolerant of questioning. Indeed, it said that when it detected that attorneys were getting onto a sensitive line of questioning with a few jurors, “I try to pick it up and ask it so that it doesn’t look partisan. I also know that * * * what I mean, you don’t want them to get irritated at you. I try to pick up on the line of questioning that you’ve asked even to the point of throwing in this idea you have asked * * *. To try to give it a balance and even-handedness.” In short, this trial court was quite open to considering the requests of counsel and indeed permitting them to examine witnesses themselves.

Therefore, in accordance with our decisions in Williams II, Long, and Zola, voir dire should allow more open-ended questioning on the issue of the status of the victims as it relates to any prejudice or predisposition affecting the juror’s ability to adjudge fairly in the guilt phase or the ability to consider mitigating evidence in any penalty phase. In order to be justified, the inquiry need not necessarily lead to the excusal of any juror for cause. The standard for excusal of a juror for cause does not exhaust the scope of reasonable inquiry that might lead to the exercise of a peremptory challenge.

Defendant argues that the trial court improperly denied him the opportunity to ask prospective jurors about their attitudes toward insanity and mental-health defenses. The court based its decision on State v. Manley, supra, 54 N.J. 259, 255 A.2d 193, and State v. Kelly, 118 N.J.Super. 38, 285 A.2d 571 (App.Div.), certif. denied, 60 N.J. 350, 289 A.2d 795 (1972). Furthermore, the court expressed its belief that such questions would unduly prejudice defendant at that point in the proceedings, due to the fact that defendant had not yet admitted that he had committed the acts. Defense counsel disagreed, and argued that State v. Ramseur, supra, 106 N.J. at 247, 524 A.2d 188, and State v. Williams, 93 N.J. 39, 68, 459 A.2d 641 (1983) (Williams I), mandated a thorough, probing voir dire on any area of potential bias in capital cases.

In Kelly, defendant was charged with first-degree murder. During voir dire, defense counsel sought to inquire if the prospective jurors had any feelings about the defense of insanity and whether they would accept it if proven. The trial court did not allow that line of questioning, and the Appellate Division affirmed, concluding “that the objectives of Manley * * * would not be well served by a rule which mandates inquiries of prospective jurors concerning their attitudes as to substantive defenses, particularly insanity, or as to other rules of law which may become implicated in the trial or in the court’s ultimate charge.” State v. Kelly, supra, 118 N.J.Super. at 51, 285 A.2d 571.

Intending to follow Kelly, the court waited until the jury-charge portions of both the guilt and penalty phases to address the issue of possible juror bias against the insanity defense and other mental-health defenses. During the guilt-phase charge to the jury, the court stated that the law “entertains no prejudice against the defenses of diminished capacity or insanity,” and at the penalty phase instructed the jurors to consider the evidence surrounding mental health with a “fresh and open mind.” The State contends that that was sufficient to insure that jurors would not be biased against defendant’s mental-health defense, due to the fact that the jurors had sworn to follow and apply the laws of the State in their deliberations. Defendant argues on this appeal that those instructions were insufficient because they occurred too late in the process to permit detection of potential juror bias against the insanity or other mental-health defenses, and that the instructions did not adequately reveal any potential biases held by the jurors.

In support of that argument, defendant cites People v. Stack, 112 Ill.2d 301, 97 Ill.Dec. 676, 493 N.E.2d 339, cert. denied, 479 U.S. 870, 107 S.Ct. 236, 93 L.Ed.2d 162 (1986), in which the Illinois Supreme Court ruled that an abuse of discretion occurs when a trial court refuses to probe, through voir dire, the jurors’ attitudes concerning the insanity defense. The court stated:

A defendant’s right to an impartial jury is not, therefore, protected where the sole inquiry into whether jurors will abide by the law allowing that controversial defense is the far broader and all-embracing question which the State contends was propounded in this case, namely, whether the jurors would follow the court’s instructions on the law. [Id. at 313, 97 Ill.Dec. at 81, 493 N.E.2d at 344.]

The Stack court also indicated that other jurisdictions had held that a defendant has a right to have questions asked during voir dire concerning prospective jurors’ attitudes on the insanity defense when that issue is involved in the case. Id. at 313, 97 Ill.Dec. at 82, 493 N.E.2d at 345 (citing United States v. Allsup, 566 F.2d 68 (9th Cir.1977); Washington v. State, 371 So.2d 1108 (Fla.App.1979); State v. Olson, 156 Mont. 339, 480 P.2d 822 (1971); State v. Sanders, 161 W.Va. 399, 242 S.E.2d 554 (1978), overruled on other grounds, State ex rel. White v. Mohn, 168 W.Va. 211, 283 S.E.2d 914 (1981)).

In this case, the concept of mental disease was critical to defendant’s case throughout the trial. He conceded at the guilt phase that he had caused the deaths of his wife and child; nonetheless, he argued that he lacked the necessary mens rea requirement of knowingly or purposefully killing Melva and Kory. At the guilt-phase portion of the trial, defendant offered expert psychiatric testimony in support of the mental-health defenses of insanity and diminished capacity, and at the penalty-phase portion defendant alleged two mitigating factors that related to his mental condition at the time of the killings.

The trial court believed that defense counsel’s line of questioning was an attempt to get jurors who would accept an insanity defense if offered. However, our review of the record indicates that defense counsel was merely trying to establish, through his proposed set of questions, whether the prospective jurors could consider an insanity defense. “Anyone moderately familiar with criminal trials and the public’s reaction where juries acquit on murder charges by reason of defendant’s insanity knows the strength of these concerns and the vulnerability of the justice system to extreme erosion of confidence. Sociological studies confirm this.” In re Edward S., 118 N.J. 118, 139, 570 A.2d 917 (1990) (citing Hans, “An Analysis of Public Attitudes Toward the Insanity Defense,” 24 Criminology 393 (1986) (89.2% of those polled believed that the insanity defense allowed guilty persons to go free)). Whether that figure is entirely accurate is open to debate; nonetheless, it is well established that many laypersons have a great deal of difficulty in understanding the insanity defense, and many people might not be able to consider it as a viable defense, particularly to such a heinous act as the killing of a wife and child. Although the trial court was correct that the intent of the voir dire process is not to solicit jurors who favor one side and, in this case, would accept an insanity defense, it is equally true that the voir dire process should screen out prospective jurors who could not consider an insanity defense due to their prejudices or biases against it. See State v. Jasuilewicz, 205 N.J.Super. 558, 569, 501 A.2d 583 (App.Div.1985) (“searching” judicial inquiry on juror attitudes toward insanity defense required in circumstances of the case), certif. denied, 103 N.J. 467, 511 A.2d 649 (1986).

Again, jury selection need not become a trial within a trial. In a recent non-capital case (involving homosexual murder with an insanity defense), the court submitted to all jurors a questionnaire that asked the jurors if they could fairly evaluate a psychiatric defense to such charges. (A copy of the questionnaire is attached as “Exhibit A” for guidance to courts.) Just as it asks for predispositions about law-enforcement testimony, the questionnaire asks whether a juror can judge the testimony of psychiatric witnesses by the same standard that he or she would apply to the testimony of any other witness. In another recent case, State v. Murray, 240 N.J.Super. 378, 392, 573 A.2d 488 (App.Div.1990), the trial court rejected several voir dire questions proposed by the defendant and instead asked its own questions, which “probed whether the prospective jurors had read or studied about psychology, psychiatry, medicine, or related fields, and inquired about the jurors’ views on those sciences and whether those views would hinder their ability to follow the law as instructed by the court.” In asking its own questions, the trial court in Murray acted properly within its discretion and sufficiently determined any juror bias or prejudice.

c.

Defendant also argues that it was an abuse of the trial court’s discretion not to allow defense counsel to question the prospective jurors about their understanding of burden of proof and the presumption of innocence. Again, the court believed that those issues contravened the intended scope of voir dire as contemplated in Manley, and instead issued its preferred question: “Could [the juror] accept the law as charged by the court?” When defense counsel renewed his objection to the court’s limitation during the voir dire and claimed that the New Hampshire courts required such questioning, the court responded:

[The] New Hampshire court held, and I disagree thoroughly with their holding, that because they’re concerned that some jurors would not know the principlef ] [of] law that one is presumed innocent and the burden of proof is on the State, because they had read some surveys that had been done by some company, that therefore you had to ask the jurors whether they could accept those particular principles of law.

All right. That is utterly inconsistent with State [v.] Manley, and I’m not going to do it. And I think it’s utterly unnecessary, as long as the jurors indicate that there is nothing they know of about accepting the law of this State.

Although Manley may be read as discouraging a requirement of such questioning, preferring instead to place the decision of allowing or prohibiting such questions within the discretion of the trial court, we have expressed our belief that capital cases require a “thorough and searching inquiry” in regard to voir dire. Williams II, supra, 113 N.J. at 413, 550 A.2d 1172. Other courts have held that voir dire questions concerning a juror’s understanding that (1) a defendant is presumed innocent until proven guilty, and (2) the State has the burden of proving defendant’s guilt in a criminal case are required. See, e.g., United States v. Blount, 479 F.2d 650 (6th Cir.1973); People v. Zehr, 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984).

The question, however, is not only what the Constitution requires as either a threshold or limit on questioning, but also what plain inquiries may produce a fair and impartial jury. “[C]ourt-conducted voir dire is not an end in itself but merely an efficient means to select an impartial jury.” State v. Long, supra, 119 N.J. at 479, 575 A.2d 435. Would it not be anomalous in the extreme to allow extensive death-qualification of jurors before trial to make sure that they can follow and apply the State’s system of capital punishment, yet not to allow defendants a brief, if not cursory, inquiry into jurors’ attitudes about other fundamentals of the system, such as the presumption of innocence? Perhaps the general orientation of a panel of jurors will suffice to convey the essentials, with jurors being asked if they have any reservations about their duties as'jurors. In the alternative, courts can administer either a questionnaire or brief inquiry of jurors asking them if they can agree and accept the principles of law as the court will state them, including that a defendant is innocent until proven guilty and that the State has the defined burden of proving the defendant’s guilt. For example, in a recent capital case, jurors were asked the following questions in a questionnaire:

Because this is a criminal case it is the law that [the defendant] is presumed innocent until proven guilty beyond a reasonable doubt. That presumption continues throughout the trial and even during deliberations unless and until the jury has reached its verdict. It is the State’s burden to prove the guilt of the defendant beyond a reasonable doubt. Will you extend to [the defendant] the presumption of innocence and follow the law as I state it to you?

If you are selected as a juror, you must render your verdict, based solely on the evidence, and the law as given to you by the court, free of any passion, prejudice, sympathy, or bias, either for or against [the defendant] or the State. Can you be true to your oath or affirmation to do this?

“The mere fact some inquiry on voir dire may touch on instructions later to be given does not per se render such questions beyond the scope of voir dire.’’ Brazel v. State, 296 Ark. 563, 566, 759 S.W.2d 28, 30 (1988). We are confident that court and counsel can focus any such inquiry on this limited purpose without causing trial delay.

d.

As a final matter with regard to the voir dire, defendant contends that two prospective jurors were improperly excluded for cause before it was ascertained by a “clear showing” that their views would substantially impair their ability to deliberate during the penalty-phase portion of the trial. The first prospective juror in question stated, “I don’t think that I’m * * * able to say someone has the right to have a death penalty,” before she was excused. The other juror, while vacillating somewhat in her answers, did express that it was difficult for her to consider imposing the death penalty. Defendant maintains that neither of those prospective jurors indicated a “clear showing” of predisposition against the death penalty, and thus should not have been excluded.

We note that New Jersey has adopted the Adams v. Texas, 448 US. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), and Wainwright v. Witt, 469 US. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), (Adams-Witt) test for excluding prospective jurors for cause. See State v. Ramseur, supra, 106 N.J. at 256, 524 A.2d 188. Basically, the test involves whether, in the trial court’s discretion, the juror’s beliefs or attitudes would substantially interfere with his or her duties. State v. Koedatich, 112 N.J. 225, 293, 548 A.2d 939 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989). After reviewing the record, we find no abuse of discretion in the exclusion of these two jurors, based on their statements concerning their inability or unwillingness to impose the death penalty.

Trial Issues

1. Was the blood-spatter-analysis expert sufficiently qualified?

Defendant argues that admission of New Jersey Police Detective Thomas McCormick’s testimony on blood spattering violated Evidence Rule 19 and, consequently, defendant’s right to due process. He contends that McCormick, who qualified at trial as an expert in crime-scene investigation, including blood spattering and fingerprint identification, should not have qualified as a blood-spatter analyst because he was no more than a technician in the field. His testimony was significant to prove that the killing of Kory was knowing or purposeful, rather than accidental as claimed. Defense counsel did not object to McCormick’s qualification at trial. Defendant now argues that it was plain error requiring reversal under Rule 2:10-2.

Using photographs of the scene, McCormick explained at trial that spatter patterns showed that stains of Melva’s blood found on Kory’s overalls did not come directly from Melva but were transferred by another person, like defendant, or an object, like the hammer. He testified that the location of the stains indicated that the blood was coming down at an angle, trailing off toward the ground, thus signifying that Kory was lying on the floor when the blood reached him. Moreover, based on blood spatters on the wall behind the hamper that was between the two bodies, McCormick testified that Kory was probably struck at least twice while in his final position. He testified that intersecting spatters appeared to come from three different directions. Although some blood might have come from Melva, either directly or via the hammer, he said that three distinct spatters of blood identified with Kory were consistent with the one upward and one downward motion necessary to strike the second blow while Kory lay on the floor.

In voir dire McCormick testified that he had been a member of the New Jersey State Police for eight years and a crime-scene investigator for two years. His duties included photography, evidence collection, fingerprinting, and autopsy attendance. His six-week training course had included a one-day seminar in blood-spatter analysis, which had been supplemented by another day of in-service training. McCormick had investigated more than two hundred crime scenes, at least thirty of them homicides, and had previously testified as an expert in fingerprinting and crime-scene analysis, but had never before testified as a blood-spatter-analysis expert. The trial court found him qualified to testify as an expert in crime-scene investigation, including fingerprint and blood-spatter analysis.

A witness qualifies as an expert under Evidence Rule 19 if there is evidence of the required “experience, training or education.” We recently explained that an expert must “be suitably qualified and possessed of sufficient specialized knowledge to be able to express [an expert opinion] and to explain the basis of that opinion.” State v. Odom, 116 N.J. 65, 71, 560 A.2d 1198 (1989). The admission of expert testimony, and its competence, are discretionary judgments of the trial court. State v. Zola, supra, 112 N.J. at 414, 548 A.2d 1022.

Defendant challenges not the scientific reliability of blood-spatter analysis but only the sufficiency of the witness’s expertise. Cf. State v. Harvey, 121 N.J 407, 428, 581 A.2d 483 (1990) (question of sufficiency of expertise not reached where methodology of shoe-print analysis not shown to be reliable); State v. [Walter] Johnson, 120 N.J. 263, 297, 576 A.2d 834 (1990) (question of sufficiency of expertise in blood-spatter analysis not reached where limited probative value of evidence outweighed by danger of undue prejudice); Windmere, Inc. v. International Ins. Co., 105 N.J. 373, 377, 522 A.2d 405 (1987) (reliability of scientific technique of voiceprint analysis at issue, not sufficiency of expert’s qualifications). We have stressed that “[t]he sufficiency of the qualifications of [experts is] primarily a matter for the trial court’s discretion and will be reviewed only for manifest error and injustice.” State v. Ravenell, 43 N.J. 171, 182, 203 A.2d 13 (1964), cert. denied, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965).

We find no error here. The trial court conducted voir dire on McCormick’s qualifications. Cf. State v. Philbrick, 436 A.2d 844, 860-61 (Me.1981) (admission of “expert” testimony on blood spattering was error when trial court failed to consider and rule on reliability of such testimony and qualifications of witness, and prior testimony of autopsy pathologist called into question use of spatters to show sequence and directions of gunshots). He explained how he had reached his conclusions, and his reasoning was not counterintuitive; it would likely aid rather than bewilder the jury. See State v. Hall, 297 N.W.2d 80, 86 (Iowa 1980) (blood-spatter analysis has sufficient scientific reliability to aid jury: “[S]uch observations are largely based on common sense, and in fact, lie close to the ken of an average layman.”), cert. denied, 450 US. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981). Like comparisons of bullets, tire tracks, or handwriting, blood-spatter analysis submits all the basic data to the trier of fact for exercise of its judgment in evaluating the evidence. See also State v. Zola, supra, 112 N.J. at 415, 548 A.2d 1022 (serology expert’s testimony suggesting reasons why blood components missing from sample not counterintuitive); Handler, “The Judicial Pursuit of Knowledge,” Part I, 121 N.J.L.J. 882, 883 (1988) (noting concerns that counterintuitive expert testimony may confuse jury). The defense highlighted the witness’s lack of specific training and experience both on cross-examination and in summation, allowing the jury to assess the value of his testimony. Although McCormick’s expertise may have been minimal, in context the admission of his testimony did not constitute plain error.

2. Did the trial court breach a duty to inform defendant of the constitutional right to testify during the guilt phase?

Defendant argues that the trial court violated his constitutional right to testify by failing to inform him of that right and by failing to obtain his knowing and voluntary waiver. We recently affirmed the constitutional right of a criminal defendant to testify on his own behalf. State v. Savage, 120 N.J. 594, 628, 577 A.2d 455 (1990). At the same time, however, we held that “when a defendant is represented by counsel, the trial court is not required to inform defendant of his right to testify or explain the consequences of that choice.” Id. at 630, 577 A.2d 455. Rather, it is counsel’s obligation to inform defendant of that right as well as the right not to testify, and of the strategic advantages or disadvantages of each. Id. at 631, 577 A.2d 455. We have recommended that the trial court inquire whether counsel has so informed defendant. Ibid.

Here, as in Savage, we find that thé trial court breached no duty, because it had no duty to inform defendant of his right to testify. On remand, the court should follow the Savage recommendation.

3. Did prosecutorial misconduct lead to an unjust verdict?

Defendant claims that a pattern of prosecutorial misconduct had the cumulative effect of depriving him of a fair trial. He asserts that in the guilt phase, during both cross-examination and summation, the prosecutor improperly attacked the expert testimony of Dr. Gould. See State v. Ramseur, supra, 106 N.J. at 321, 524 A.2d 188 (prosecutor may challenge expert’s opinion, but may not pit his own credibility against expert’s). At trial, defense counsel made no objection to the cross-examination of Dr. Gould, but the heated interplay between prosecutor and witness prompted the court to admonish both. The court called for a five-minute recess. It cautioned the prosecutor to “continue on a rational basis,” by asking clear questions rather than making statements, and cautioned Dr. Gould to answer questions without volunteering additional information. In summation, also unchallenged below, the prosecutor argued that Dr. Gould had “lost sight of all objectivity” because his diagnosis was not supported by the evidence, that he “wanted to mislead” the jury with his description of a borderline personality, and that the defense “realiz[ed] that the defense of insanity is just totally false and without any merit whatsoever.” In addition, defendant claims that the prosecutor committed error when he twice asked defendant on cross-examination if he claimed that other witnesses had lied. Although the court eventually reprimanded the prosecutor sua sponte, defendant contends that the failure to instruct the jury to disregard those questions and answers left the defendant unprotected from the consequent prejudice.

Defendant asserts that in the penalty phase the prosecutor encouraged imposition of a death sentence by focusing on extraneous matters, namely, noting a general need to protect society, implying that justice mandated a death sentence for a double murder, and characterizing expert witness Diana Aviv as a “professional bleeding heart who was indeed duped by the defendant.” He argues that the emotional force of those •comments had the potential to divert the jurors from their proper role in the penalty phase, the consideration of aggravating and mitigating factors. See State v. Rose, 112 N.J. 454, 521, 548 A.2d 1058 (1988); State v. Ramseur, supra, 106 N.J. at 322, 524 A.2d 188.

Because we are reversing on other grounds, we need not determine whether any alleged misconduct constituted reversible error. Williams II, supra, 113 N.J. at 446, 550 A.2d 1172. As we recently reaffirmed in State v. Pennington, 119 N.J. 547, 566, 575 A.2d 816 (1990), the test for evaluating prosecutorial misconduct is “whether it was so egregious as to deny defendant a fair trial.” We do not suggest that the prosecutor’s comments cumulatively rose to that level. In the guilt phase, his challenges to Dr. Gould’s testimony fell short of pitting his own expertise against that of the witness. On remand, however, we caution against comments such as the accusation that the defense realized that the defense of insanity was meritless, which was clearly an improper expression of the prosecutor’s own conclusion, without support in the record that defense counsel (or perhaps defendant himself) did not credit the insanity defense. We similarly caution against comments such as those in the penalty phase that discredited the motivations of expert witness Aviv without support in the record, again apparently based only on the prosecutor’s own opinion. See State v. Pennington, supra, 119 N.J. at 565-84, 575 A.2d 816, for extensive guidelines for avoidance of prosecutorial misconduct.

4. Did the trial court err in admitting evidence of Melva Moore’s pregnancy?

Defendant argues that the fact of Melva’s six-month pregnancy was irrelevant, and, if remotely relevant, unduly prejudicial, and that the error of its admission was compounded by the prosecutor’s repeated references to it and by the trial court’s failure to give a limiting instruction on its use. Defendant moved before trial to exclude that fact from both the guilt phase and the penalty phase. The court denied the motion.

The court agreed with the State’s arguments that the six-month pregnancy was relevant to defendant’s state of mind, revealing motive or intent in killing her based on awareness of her vulnerability. In addition it concluded that evidence of the pregnancy was relevant to the asserted defense of diminished capacity as well as the possible defenses of self-defense, imperfect self-defense (a then-plausible theory, see State v. Bowens, 108 N.J. 622, 532 A.2d 215 (1987)), or self-defense as a mitigating factor. The court also accepted the State’s argument that defendant’s willingness to cause the death of his unborn child was relevant to his state of mind in striking Kory, making an intentional killing more likely. It declined to rule on whether the pregnancy increased the likelihood that Melva had refused to move out, thus providing motive to kill, but noted that that argument alone would probably be insufficient to justify admission of the evidence.

Although it rejected the proposition that killing a pregnant woman was in itself an act of depravity, or that a purposeful killing of a viable fetus constituted homicide, the-court noted that many would tend to believe that it was murder or to find it morally repulsive. Under an Evidence Rule 4 analysis, it found that evidence of the pregnancy was highly inflammatory. But here defendant was also charged with murdering the infant Kory. The court found evidence of Melva’s pregnancy less shocking because the aspect of child murder was already present in the case. It agreed to permit “appropriate reference to the fact that the wife was six months pregnant at the time of her death,” as long as the State did not suggest that there was a third victim.

During his guilt-phase opening statement, the prosecutor repeatedly referred to Melva as defendant’s “pregnant wife,” but did not point out the significance of the pregnancy on any issue. At trial several witnesses testified that Melva was pregnant, but in summation the State made no arguments based on the pregnancy.

Before the penalty phase defense counsel moved to discharge the jury and to empanel a new jury due to the guilt-phase jury’s knowledge of prejudicial facts such as the pregnancy. The court refused, finding that the pregnancy was relevant circumstantial evidence of defendant’s state of mind at the penalty phase as well, and indicated willingness to give a cautionary instruction. At the penalty phase the prosecutor made no mention of the pregnancy in his opening statement, but in summation again referred to Melva repeatedly as defendant’s “pregnant wife.” In response to defendant’s objection that the pregnancy was irrelevant at that stage, the prosecutor was permitted to argue that it was probative of defendant’s intent to cause mental anguish, factor c(4)(c), as Melva would know that her baby would “never breathe a breath of life.” The court later instructed the jurors that pregnancy and its termination are not aggravating factors, and that they “must not consider either pregnancy or the effect of the defendant’s acts upon the fetus as an aggravating factor.”

We agree with the trial court’s carefully considered judgment that this evidence was admissible. It was potentially relevant to defendant’s motive or intent, which was at issue in both phases of the trial, and we find no error in the court’s exercise of its discretion not to exclude it under Evidence Rule 4 after weighing its probative and prejudicial value. Pregnancy is subject to the same balancing tests as other evidence. Compare People v. Manier, 184 Colo. 44, 54, 518 P.2d 811, 817 (1974) (pregnancy of victim and death of fetus “integral part of the circumstances surrounding the murder”); State v. Thomas, 470 So.2d 413, 420 (La.App.1985) (defendant claimed self-defense; victim’s pregnancy relevant to “her size and inability either to attack defendant or to defend herself”) and Givens v. State, 98 Nev. 573, 576, 655 P.2d 533, 535 (1982) (where victim was severely beaten, evidence of advanced pregnancy “directly bore on * * * whether the physical force used * * * could have been calculated to cause death”) with State v. Watson, 99 Idaho 694, 698, 587 P.2d 835, 839 (1978) (reference to rape victim’s pregnancy at time of trial, not as result of rape, “far-fetched and irrelevant”); People v. Pendleton, 24 Ill.App.3d 385, 392, 321 N.E.2d 433, 438 (1974) (victim’s pregnancy offered to explain futile escape attempt and identification of defendant in company of victim; both reasons “untenable” where defendant stipulated to identification); Jacobs v. State, 91 Nev. 155, 158, 532 P.2d 1034, 1036 (1975) (evidence of pregnancy of woman killed by shotgun blast during grocery store robbery irrelevant but admission harmless) and Burrows v. State, 640 P.2d 533, 538 (Okla.Crim.App.1982) (evidence of pregnancy irrelevant during guilt phase of capital trial), cert. denied, 460 U.S. 1011, 103 S.Ct. 1250, 75 L.Ed.2d 480 (1983).

Here, despite pretrial arguments, in the guilt phase the State did not present evidence connecting the pregnancy to defendant’s actions. Nevertheless the prosecutor made repeated references to the pregnancy, and defendant did not request, nor did the court give sua sponte, a limiting instruction. The State similarly failed to establish the relevance of the pregnancy to defendant’s state of mind at the penalty phase, although there, as noted, the court expressly limited use of the pregnancy as an aggravating factor per se. The liberty of the repeated references to defendant’s “pregnant wife,” without corresponding establishment of relevance to defendant’s state of mind with respect to either victim or to any defense, tended in effect to outweigh probative value with undue prejudice. On remand, both court and counsel shall insure that the evidence of pregnancy is properly limited to its probative purposes. We caution against unnecessarily dwelling on the pregnancy at retrial. Cf. State v. Harvey, supra, 121 N.J. at 425, 581 A.2d 483 (emphasis on victim’s recent widowhood improper); State v. Pennington, supra, 119 N.J. at 567, 575 A.2d 816 (emphasis on character and background of victim and impact of death on her family clearly inappropriate).

5. Did the trial court err in admitting photographs of the victims?

The State introduced into evidence thirty-nine 8" by 10" color photographs, twenty-nine from the crime scene and ten from the autopsies. Defendant challenges first, the use of color prints of the victims; second, admission in the guilt phase of two photographs of Melva’s head; and third, admission of any photographs in the penalty phase.

First, defendant does not dispute the use of color pictures of the crime scene that show no victim, but argues that black and white pictures of the victims, at the scene and at the autopsies, would have had as much probative value with reduced potential for prejudice. Color photographs, even of gruesome aspects of a crime, are not objectionable for their color alone. State v. [Edgar] Smith, 27 N.J. 433, 448-49, 142 A.2d 890 (1958). Moreover, they may have added evidentiary value. Annotation, “Admissibility in Evidence of Colored Photographs,” 53 A.L.R.2d 1102, 1103 (1957). But, like any photographs, they may be excluded when their logical relevance is overwhelmed by their “inherently prejudicial qualities.” State v. [Edgar] Smith, supra, 27 N.J. at 449, 142 A.2d 890; see also State v. Polk, 164 N.J.Super. 457, 464-65, 397 A.2d 330 (App. Div.1977) (recommending that particularly gruesome photograph of featureless blood-covered face not be used on retrial absent clear need, and that if used, it be reproduced in black and white to reduce potential for prejudice), aff'd, 78 N.J. 539, 397 A.2d 327 (1979). Thus, color photographs are not per se more suspect than black and white photographs, but are subject to the same tests for admissibility as other evidence.

Defendant conceded at trial that the photographs were not without probative value. We have said that “the admission of photographs having some probative value, even where cumulative and somewhat inflammatory, rests within the discretion of the trial judge.” State v. Belton, 60 N.J. 103, 109, 286 A. 2d 78 (1972); see also State v. Thompson, 59 N.J. 396, 420, 283 A.2d 513 (1971) (exercise of trial court’s discretion in admitting photographs will not be reversed absent a palpable abuse). Evidence Rule 4 allows the trial court discretion to exclude relevant evidence if the court “finds that its probative value is substantially outweighed by the risk that its admission will * * * create substantial danger of undue prejudice.” To demonstrate abuse of such discretion, the danger of undue prejudice must outweigh probative value so as to divert jurors “from a reasonable and fair evaluation of the basic issue of guilt or innocence.” State v. Sanchez, 224 N.J.Super. 231, 249-50, 540 A.2d 201 (App.Div.), certif. denied, 111 N.J. 653, 546 A.2d 561 (1988). We find that defendant’s general objection to the use of color photographs fails to establish that the court abused its discretion in admitting color, rather than black and white, photographs.

Second, defendant specifically objects to the admission in the guilt phase of two photographs, S-7 and S-38. Both show Melva’s head wounds. Defendant did not specifically object to the admission of S-7 at trial, but in response to defendant’s general objection to the color photographs the trial court commented:

S-7 is perhaps the most offensive. This is a shot of the head of the mother. However, in this case, the degree of savagery of the attack, the multiple blows are all evidential with respect to purpose, and therefore, the — and the same is true with respect to S-8, which shows multiple wounds to the head.

These are photographs that demonstrate the scene as it was when the defendant was there, and when he left, and are all clearly relevant and admissible and any additional] stress that might be caused would not be sufficient to justify a Rule 4 keeping out the photographs, even black and white photograph substitutes.

Defendant describes S-7 as a “horrible depiction of blood and brain matter,” unnecessary considering the other twenty-eight crime-scene photographs admitted, including the very similar S-8, and not relevant to defendant’s state of mind.

At trial defendant objected to the admission of both autopsy photographs S-38 and S-39 as duplicative. After excluding S-41 (showing brain matter grasped in Melva’s hand), the court admitted S-38, saying: “S-38 I will allow in evidence as showing the nature of the wound, and what the man was looking at and as relating to the totality of the attack.” After initially excluding S-39 as “unduly gruesome,” the court agreed to the admission of a cropped version to show only two wounds not shown in any other photograph, but excluded S-37 as repetitious. Defendant describes S-38 as “particularly awful,” focusing on “the destroyed portion of Melva Moore’s head.” Although defendant did not dispute the relevance of any photographs at trial, he now asserts that S-38 is not relevant because he conceded killing Melva with a hammer.

The State responds that both S-7 and S-38 are relevant to intent to kill and probative of “the nature of the attack and defendant’s state of mind.” Although photographs that tend to establish cause of death may be unnecessary where cause of death is undisputed, they may be admitted when relevant to “the viciousness of the attack.” State v. Sanchez, supra, 224 N.J.Super. at 250, 540 A.2d 201. Here the State sought to rebut defendant’s position that he was unaware of the nature or quality of his acts in striking Melva. The trial court balanced the probative and prejudicial value of all photographs offered, excluded several, and made specific findings on S-7 and S-38. In admitting them the court did not abuse its discretion.

Finally, defendant claims that none of the photographs was admissible at the penalty phase because none was relevant to any aggravating factor. The trial court admitted the photographs without discussion, but the State asserts that they are relevant to factors c(4)(c) and c(4)(g) concerning both victims. Defendant argues that admission of the photographs in the penalty phase, after their previous admission in the guilt phase, was repetitious and therefore more prejudicial; conversely, the State sees the second admission as harmless given the earlier exposure.

In State v. Bey, 112 N.J. 123, 548 A.2d 887 (1988) {Bey II), we noted that the general rule that logically relevant photographs are admissible at the discretion of the trial court applies as well to the penalty phase of a capital case. We stated that in light of the interpretation of the c(4)(c) factor announced in State v. Ramseur, supra, 106 N.J. at 211, 524 A.2d 188, “[pjhotographs may be admissible on torture and aggravated battery as proof of intent to inflict severe pain or on depravity to show mutilation after death.” State v. Bey II, supra, 112 N.J. at 183, 548 A.2d 887. More recently, we cautioned that “the need to balance the ostensible relevance of [photographs] against the likelihood of jury prejudice is especially critical in the penalty phase of a capital case.” State v. Pitts, supra, 116 N.J. at 638-39, 562 A.2d 1320.

We discuss elsewhere application of the c(4)(g) factor. See infra at 469-474, 585 A.2d at 889-891. We find no need to present these photographs as proofs to establish that factor, but they are clearly relevant to the c(4)(c) factor. See infra at 474-478, 585 A.2d 891-894. We therefore find no abuse of discretion in their admission in the penalty phase as well as the guilt phase.

6. Did the trial court improperly allow application of aggravating factor c(4)(g) to both victims?

Defendant challenges the dual application of aggravating factor N.J.S.A. 2C:ll-3c(4)(g) (killing committed during commission of another killing) to both Melva’s and Kory’s murders, asserting that such reciprocal use unconstitutionally doubles the effect of what is actually only one aggravating factor. He claims that the use of each killing as an aggravating factor in the other artificially inflates the effect of the underlying facts. In addition, defendant suggests that the aggravating factor is inapplicable to the killing of Melva, because her killing was already in progress when he attacked Kory, and could not have been committed “while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit[,] murder * * N.J.S.A. 2C:ll-3c(4)(g).

The Georgia Supreme Court, addressing that question, concluded that the “doctrine of ‘mutually supporting aggravating circumstances’ precludes imposition of two death sentences where the sole statutory aggravating circumstance is that the defendant has committed a double murder.” Putman v. State, 251 Ga. 605, 614, 308 S.E.2d 145, 153 (1983), cert. denied, 466 US. 954, 104 S.Ct. 2161, 80 L.Ed.2d 546 (1984). California has also rejected the double application of one of its statutory special circumstances, commission of a multiple murder, that triggers a capital hearing. People v. Harris, 36 Cal.3d 36, 67, 679 P.2d 433, 452, 201 Cal.Rptr. 782, 801, cert. denied, 469 U.S. 965, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984). The California Supreme Court explained:

Since there must be more than one murder to allege this special circumstance at all, alleging two special circumstances for a double murder improperly inflates the risk that the jury will arbitrarily impose the death penalty, a result also inconsistent with. the constitutional requirement that the capital sentencing procedure guide and focus the jury’s objective consideration of the particularized circumstances of the offense and the individual offender. [Ibid.]

In New Jersey similarly we seek to provide particular standards to guide a jury in its consideration of the individual crime in order to avoid the risk of arbitrary and capricious imposition of the death penalty. The unnecessary and prejudicial inflation of aggravating circumstances by double-counting of a factor hinders the pursuit of that goal. State v. Rose, supra, 112 N.J. at 527, 548 A.2d 1058.

In this case, the State argues that no double-counting occurred, that defendant was engaged in the killing of Melva when he killed the baby, and that he was also engaged in the killing of the baby when he killed Melva.

The defendant counters that this is logically impossible. You either kill A in the course of killing B or kill B in the course of killing A. That sounds correct in the abstract, but we have not taken an abstract approach to the capital-punishment law. Such a construction of the factor would assume the improbable, that a murderer would pause in the course of one killing, turn to kill another victim, and then return to finish off the first. There is no such logic or order to mass murder.

Nor is there a logical contradiction as in the case of submitting both depravity as to Kory (killing for no reason) and killing to escape detection (killing for a reason). The court told the jury that that was logically impossible. In contrast, we believe that the legislative factor here bespeaks a qualitative judgment that is consistent with logic and with human intuition or experience. Killing Melva is worse because Kory was killed at the same time; and killing Kory is worse when you kill his mother at the same time. There is no double-counting. Each murder is in reality worse.

And on the score of logic, the “killing in the course of killing another” appears as part of the general “felony-murder” aggravating factor that applies to a murder committed “while the defendant was engaged in the commission of, or * * * after committing or attempting to commit [a felony].” N.J.S.A. 2C:ll-3(c)(4)(g). (For convenience, we use the familiar word “felony,” although our Code refers instead to certain specific offenses.) Contrary to defendant’s assertions, the statute does not rely on the temporal sequence of the murders to determine application of that aggravating factor. The factor applies to murders committed before, during, or after the commission of a felony, so that the time sequence of the murders is not dispositive of this factor’s application.

Thus, the robbery or rape of the first of two murder victims would be admissible in determining death eligibility for the murder of the second victim. Would it not be illogical to allow the jury to consider the robbery or rape of the first victim but not allow it to consider the murder of the first victim in determining death eligibility for the murder of the second? Why should the frames be frozen so that murder is the only felony that cannot apply reciprocally?

The argument may be made that the double-duty aspect of the factor in the joint trial of two killings produces the randomness that the United States Supreme Court condemned in Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859, 883 (1976) (discretion of jury to impose death sentence must be “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action”). For example, if Moore had killed Melva first and then Kory a month later, the jury in Melva’s case (if the cases were tried separately as they probably would be) would not hear evidence of the yet-unproven killing of Kory. If there were a conviction in Melva’s case, Kory’s jury would, however, hear the aggravating factor of the prior murder of Melva. The reason that Melva’s jury does not consider Kory’s killing is not that it is not relevant or logical to death-worthiness, but rather that it has not yet been proven. Parenthetically, were there a later retrial for Melva’s murder, a jury would be permitted to consider the later-entered conviction of defendant for the killing of Kory. State v. Biegenwald, 110 N.J. 521, 542 A.2d 442 (1988) (Biegenwald II). Each jury would have considered the later murder, yet there would be no double-duty service by the factor. The same legislative policy that we upheld in Biegenwald II applies here. The jury should be permitted to consider the whole person of the killer before sentencing.

Neither the Georgia nor California solution is particularly helpful. Georgia appears to permit the factor to be considered reciprocally by the sentencing jury, but then the court “arbitrarily [that is the court’s word] eliminate^] the aggravating circumstance supporting the death penalty for the murder” of one of the reciprocal victims. Waters v. State, 248 Ga. 355, 367, 283 S.E.2d 238, 250 (1981), cert. denied, 463 U.S. 1213, 103 S.Ct. 3551, 77 L.Ed.2d 1398 (1983). That is of doubtful comfort to a defendant awaiting execution on the remaining conviction. Moreover, where other aggravating circumstances are found, the reciprocal use of this aggravating factor (killing in the course of killing) does not require reversal of either sentence. Blanks v. State, 254 Ga. 420, 330 S.E.2d 575 (1985), cert. denied, 475 U.S. 1090, 106 S.Ct. 1479, 89 L.Ed.2d 733 (1986).

California seems to have focused on the duplicity of the “special circumstance” of a “multiple murder” that serves in California to trigger the eligibility for capital sentencing. The court in People v. Harris, supra, 36 Cal.3d at 67, 679 P.2d at 452, 201 Cal.Rptr. at 801, concluded that “alleging this special circumstance with each murder count results in a finding of two special circumstances,” which the court felt “inflate[d] the risk that the jury will arbitrarily impose the death penalty.” Of course it inflates the risk, but just why that occurs “arbitrarily” is not explained. After all, the jury in a California death-eligh ble cause will consider all “the circumstances of the crime.” Id. at 61, 679 P.2d at 447, 201 Cal.Rptr. at 796. How it avoids considering the other murder is not at all clear.

Of course, we do not allow aggravating factors to be totalled up as bean-counters would do, causing numbers to tip the scale. Capital sentencing is not a numbers game. Our juries are instructed that when the same evidence may support different statutory factors, it ought not be given automatically cumulative weight. State v. Hightower, 120 N.J. 378, 422, 577 A.2d 99 (1990); State v. Rose, supra, 112 N.J. at 527, 548 A.2d 1058. Had there been two children killed in the apartment, there would be only one statutory aggravating factor in Melva’s case. A statutory factor such as c(4)(g) is given to the jury to guide and channel its discretion. The factor determines both death eligibility and deathworthiness. It is for the jury to decide what weight to give it on the basis of the evidence that supports it.

In sum, neither constitutional principle nor statutory intent forbids a jury to consider reciprocal double murders in determining deathworthiness in each. We cannot conceive that the Legislature would have intended the sentencing jury to parse out the murders to see if some were primary and others secondary. Would one such as Richard Speck be considered as though he had killed only once as to all but one of his victims? See People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208 (1968) (in the course of one criminal episode, defendant murdered eight young women in Chicago town house).

7. Did the trial court improperly allow application of aggravating factor c(4)(c) to both victims?

Prior to the start of the penalty phase, the State represented that it would not produce any additional direct evidence in support of the aggravating factors alleged. Defense counsel then moved to have aggravating factor c(4)(c) (killing was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated assault to victim) dismissed with regard to both killings. N.J.S.A. 2C:11-3c(4)(c). The court denied that motion, and submitted factor c(4)(e) in respect to both victims, although limiting it in Kory’s case to the depravity prong. The jury found the c(4)(c) factor to exist in relation to both victims — aggravated assault on Melva and depravity of mind concerning Kory. Defendant now renews his challenge of the submission of the c(4)(c) factor to the jury, and further alleges that the jury’s findings in relation to the c(4)(c) factor were against the weight of the evidence. Because of the facts of this case and the jury’s findings, we must analyze separately defendant’s argument with regard to each victim.

As to Melva, defense counsel argued pre-penalty phase that no evidence existed that defendant had intended to inflict physical or mental pain. However, the prosecutor alleged that defendant’s hatred of his wife drove him not only to kill her, but to inflict as much pain as possible while doing so. In support of his claim, the prosecutor read the transcript testimony of psychiatrist Dr. Gould, in which he said that he believed defendant wished to punish and inflict pain on his wife. The prosecutor also referred to the autopsy report, which indicated that the blows to Melva’s head were painful and that she was conscious for at least one of the subsequent blows.

In State v. Ramseur, supra, we explained that the “essence of the legislative concern [in regard to the c(4)(c) aggravated battery/torture factor] is the defendant’s state of mind,” and that “[society’s concern, the community’s concern, [and] the Legislature’s concern, is to punish most harshly those who intend to inflict pain, harm, and suffering — in addition to intending death.” 106 N.J. at 207-08, 524 A.2d 188. We described aggravated assault and torture as follows:

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

Defendant claims that his confession did not indicate an intent to inflict pain, but rather that his actions were the product of instantaneous rage. He compares his case to that of the defendant in State v. Rose, supra, where we found that a single, fatal shot fired from a shotgun at close range offered “no proof that defendant’s intention was to cause [the victim] to endure pain and suffering, rather than to kill him.” 112 N.J. at 531, 548 A.2d 1058. Defendant also cites State v. Hunt, 115 N.J. 330, 389, 558 A.2d 1259 (1989), as stating our concern that the c(4)(c) factor might be overused by prosecutors in capital cases.

The State argues that there was sufficient evidence to permit a finding that defendant meant to inflict pain on Melva, stating in its brief that a “qualitative examination of all the circumstantial evidence and the logical inferences it produces concerning defendant’s state of mind” supports the conclusion that “[b]ased upon his hate for Mélva and his desire to get her out of his life, he wanted her to suffer severe pain prior to death by beating her repeatedly in the head.” The State cites the facts in State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988), as analogous to defendant’s act against his wife. Recall that in Gerald the defendant had “stomped” and beaten his victim to death. There we did not “agree with defendant that [the] record [was] insufficient to sustain a finding that the defendant intended to and did cause” severe physical or mental suffering prior to death. Id. at 66-67, 549 A.2d 792. The State maintains that in this case, as in Gerald, the record is sufficient to support a c(4)(c) aggravating factor with regard to Melva’s death.

This case, then, falls between Rose and Gerald. The potential for pain in this case is vastly greater than in Gerald; the case approaches State v. McDougald, 120 N.J. 523, 577 A.2d 419 (1990), a blunt-instrument killing in which we allowed the c(4)(e) assault/torture factor to stand. In McDougald, the defendant's sadistic attack on his two victims accompanied by his vindictive statements to one and his return to kill the other clearly justified application of the c(4)(c) factor, based on his manifest intent to cause severe physical or mental suffering to his victims. 120 N.J. at 559, 577 A.2d 419. As we noted in State v. Matulewicz, 115 N.J. 191, 199-200, 557 A.2d 1001 (1989), the intent of the defendant to inflict torture or aggravated battery upon the victim may be inferred from the surrounding circumstances. For example, returning to a dying victim, inflicting wounds and suffering different in nature from the lethal injuries, or expressing an intent to torture could evidence an intent sufficient to support a charge on a c(4)(c) factor. Ibid.

In this case, it is certain that Melva suffered pain as a result of defendant’s attack. The State pointed to Dr. Gould’s testimony as evidence that defendant intended for her to suffer as she died. We conclude that the State did present sufficient evidence to submit that factor to the jury, and that the jury’s verdict was not against the weight of the evidence. On remand, Dr. Gould’s testimony will have to be weighed carefully by the jury, especially in light of defendant’s contention that the prosecutor read the testimony out of context. The jury must consider whether defendant intended to torture or inflict on Melva “pain, harm, and suffering — in addition to intending [her] death,” Ramseur, supra, 106 N.J. at 208, 524 A.2d 188, or whether the pain she suffered, although horrible, was caused by the act of killing.

In regard to Kory, defense counsei argued pre-penalty phase that “depravity of mind” required more than just a senseless act of killing, and that the “ultimate issue was that it was done for the pleasure of the killing.” The court refused to strike the factor on that basis. The State argued during its summation that defendant killed Kory “because he was there.” Furthermore, the prosecutor again referred to Dr. Gould’s testimony, in which he concluded that the killing of Kory was a “totally senseless act without any reasonable motivation.” The State concluded that since “[t]here was no reason [for the killing] * * * that’s what makes this a depravity of mind.”

In Ramseur we defined “depravity of mind” as follows: These words mark society’s concern to punish severely those who murder without purpose or meaning as distinguished from those who murder for a purpose (albeit a completely unjustified purpose). This term isolates conduct that causes the greatest abhorrence and terror within an ordered society, because citizens cannot either in fact or in perception protect themselves from these random acts of violence. The killer who does it because he likes it, perhaps even because it makes him feel better, who kills bystanders without reason, who kills children and others whose helplessness would indicate that there was no reason to murder, evinces what we define as depravity of mind. [106 N.J. at 209, 524 A.2d 188 (footnotes omitted).]

The Court clarified the last portion of that definition by saying that “the helplessness of the victim” was not enough to permit a finding of depravity, but rather that that fact “usually demonstrates the senselessness of the killing.” Id. at 209 n. 36, 524 A.2d 188.

The trial court relied heavily on that definition in ruling that the e(4)(c) aggravating factor could be applied to the killing of Kory. We did not, however, intend that the helplessness of the child, in itself, establish depravity under c(4)(c). But we note that, in addition, in response to defense counsel’s assertion that Kory’s killing did not meet the Ramseur definition of “depravity of mind” because defendant claimed that he did not know why he killed Kory, the trial court referred to another section of Ramseur, in which the Court concluded that depravity of mind should apply to “the defendant who killed * * * because the victim just happened to be in the area, or for no reason at all.” Id. at 211, 524 A.2d 188.

It is a close question whether the randomness or senselessness discussed in Ramseur applies to this situation. The defendant argues that the record does not suggest that he killed Kory for pleasure or for the thrill of it, but that his attack on Kory resulted from a moment of instantaneous rage. Although it could be said that the act was senseless, we do not believe that it was analogous to the acts of mass murderers or those who kill strangers for pleasure. At the same time, the question is closer than that in State v. Matulewicz, supra, 115 N.J. at 198, 557 A.2d 1001, where the State made no claim that the depravity-of-mind element had been satisfied when the defendant struck his infant child’s head and then shook her until she stopped breathing.

On balance, we cannot say that a jury should be precluded from returning a c(4)(c) depravity finding regarding Kory on the basis that defendant killed Kory for no reason at all. It may seem to us to have been rage, but there is enough for a jury to find otherwise.

8. Did the trial court improperly exclude relevant mitigating evidence during the penalty phase?

Defendant contends that exclusion of opinion testimony on his proper punishment violated his eighth- and fourteenth-amendment rights to offer as mitigating evidence “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990 (1978). The trial court excluded as irrelevant opinions by friends and family that defendant’s life should be spared and their pleas for mercy, although it allowed witnesses to .testify to their love for him and his own love for his son, to his character, and to his troubled childhood. It also allowed defendant’s mother to ask the jury “not to give him the death penalty.”

The United States Supreme Court, in Lockett v. Ohio, supra, 438 U.S. at 604 n. 12, 98 S.Ct. at 2965 n. 12, 57 L.Ed.2d at 990 n. 12, expressly reserved the authority of the trial court to exclude “as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.” This Court considered the scope of such “character” evidence in State v. Davis, 96 N.J. 611, 477 A.2d 308 (1984), where we interpreted N.J.S.A. 2C:ll-3c(5)(h) (including as mitigating factors evidence “relevant to the defendant’s character or record or to the circumstances of the offense”). In Davis we said that “ ‘character’ * * * can and should embrace those individual qualities that distinguish a particular person.” 96 N.J. at 618, 477 A.2d 308. There we held admissible at the penalty phase of a capital trial statistical data that would aid in evaluating “an individual defendant’s potential for rehabilitation.” Id. at 617, 477 A.2d 308.

More recently, in State v. Rose, 120 N.J. 61, 65, 576 A.2d 235 (1990), we emphasized the need for mitigating evidence to be specific to the defendant. There we held inadmissible testimony by clergymen on the religious propriety of the death penalty and by a sociologist on its deterrent effect, finding such testimony general, rather than particular to the defendant. Id. at 64-65, 576 A.2d 235. The testimony at issue here, although not statistical, is similarly nonspecific to defendant’s character. A witness’s opinion on what punishment is appropriate reveals only the witness’s own state of mind. It cannot reveal defendant’s character beyond whatever may be inferred from admitted testimony on the witness’s love for him. We decline to extend the “narrowly-defined right” of allocution accorded the capital defendant, State v. Zola, supra, 112 N.J. at 431, 548 A.2d 1022, to allow witnesses to plead for mercy. We accordingly find that it was within the discretion of the trial court to exclude such testimony. However, it is uniquely natural and human for some witnesses, especially close family members, to wish to plead for mercy. Given the impermissible inferences that might arise if a close relative did not plead for mercy while testifying, it was within the trial court’s discretion to permit the testimony of one such as defendant’s mother, as long as it was not cumulative.

9. Did the trial court improperly instruct the jury on mitigating factor c(5)(h)?

Defendant contends that the trial court also violated his eighth- and fourteenth-amendment rights to admission of mitigating evidence, delineated in Lockett v. Ohio, supra, 438 US. at 604-05, 98 S.Ct. at 2964-65, 57 L.Ed.2d at 990, by erroneously instructing the jury on mitigating factor N.J.S.A. 2C:11-3c(5)(h). The court instructed the jurors that they could “consider [in mitigation] anything relating to or concerning defendant’s life, his character, his characteristics and the circumstances of the crime under consideration.” Defendant argues that that instruction was improperly limited because it failed to instruct expressly that any such factor could be given independent weight and failed to explain the kinds of factors that could be considered. He challenges this instruction for the first time on appeal.

We rejected a similar independent-weight argument in State v. Ramseur, supra, 106 N.J. at 295, 524 A.2d 188, where we held that the trial court “did not inhibit the independent consideration of mitigating factors.” There the court instructed: “If any evidence has been presented with respect to a mitigating factor, you are bound by the law to consider it and weigh it against any aggravating factor or factors that you have found to be present.” Id. at 296, 524 A.2d 188. Here the court instructed similarly:

If there is evidence of a mitigating factor, you must consider that evidence and give it such weight as you deem appropriate. In other words, if any evidence has been presented with respect to a mitigating factor, and you find the mitigating factor to be present, you are bound by the law to consider it, and weigh it against any aggravating factors you have found to be present.

We find that this instruction, like the one in Ramseur, satisfies the requirements of Lockett v. Ohio that the jury be free to give independent weight to mitigating facts.

We also reject defendant’s claim that the court inadequately defined the scope of mitigating factors. Without specifying the kinds of factors to be considered under c(5)(h), the court described such factors expansively, instructing:

All mitigating evidence is to be considered by you, whether it appeared during the first part of the trial from witnesses called by the State, or from witnesses called by the defendant, or from the physical evidence which you will have in the jury room. Or if it appeared during this phase of the trial, from evidence produced by either side.

This satisfied the Lockett v. Ohio requirement “that the sentencer * * * not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” 438 U.S. at 604, 98 S.Ct. at 2965, 57 L.Ed.2d at 990. We have previously discussed the court’s duty to explain mitigating factors, see State v. Pennington, supra, 119 N.J. at 596, 575 A.2d 816; State v. Bey II, supra, 112 N.J. at 168-69, 548 A.2d 887. There is no need to ask for separate jury verdicts on the basis of any evidence of the catchall factor found in any aspect of defendant’s life or character. Jurors need not be unanimous with respect to mitigating factors. State v. Bey II, supra, 112 N.J. at 159, 548 A.2d 887. Hence, any juror may find the catchall c(5)(h) factor to be present on the basis of any one or all of the evidentiary bases submitted by the defendant. Such a juror would have to be convinced beyond a reasonable doubt that the aggravating factors unanimously found outweighed the mitigating factors, including the catchall factor as that juror had qualitatively found it.

10. Did the trial judge improperly instruct the jury on the requirements for finding and weighing aggravating factors?

Defendant asserts that the trial court erred by instructing the jury at the penalty phase that life imprisonment would result if it unanimously found no aggravating factors or unanimously found that the aggravating factors did not outweigh the mitigating factors. Defendant argues that those instructions gave the erroneous impression that life imprisonment would result only if those findings were unanimous. Clearly, unanimity is not required on negative findings of aggravating factors, although it is required on positive findings. N.J.S.A. 2C:11-3c(3)(a), construed in State v. Bey II, supra, 112 N.J. at 158-59, 548 A.2d 887. In fact, the statute requires that in a death-penalty case “[t]he jury shall also be informed that a failure to reach a unanimous verdict shall result in sentencing by the court pursuant to subsection b [thirty-year imprisonment].” N.J.S.A. 2C:ll-3f; see also State v. Ramseur, supra, 106 N.J. at 312, 524 A.2d 188 (Legislature intended that juries be informed of, and free to exercise, their option to return non-unanimous verdict resulting in imprisonment).

The trial court charged the jury:

Each juror who has found that a mitigating factor exists or that mitigating factors exist, must weigh the aggravating factor or factors against such mitigating factor or factors as that juror believes to be present.

If you unanimously find that the State has failed to prove beyond a reasonable doubt any aggravating factor as to a victim, the punishment shall be imprisonment as to that victim.

If you unanimously find that the State has proven one or more aggravating factors beyond a reasonable doubt, and that beyond a reasonable doubt such factor or factors outweigh the mitigating factor or factors, you have found to exist, then the punishment shall be death.

If you unanimously find that the State has failed to prove beyond a reasonable doubt that the aggravating factor or factors outweigh the mitigating factor or factors, then the punishment shall be imprisonment as to the victim under consideration. [Emphasis added.]

On their face the statements on unanimous findings of the State’s failure to carry its burden of proof, although correct as far as they went, could give the impression that unanimity is required for the result of life imprisonment. Subsequent instructions, however, made it clear to the jury that any lack of unanimity on capital punishment would block that result. The court further charged:

If, after a full discussion, you cannot reach a unanimous verdict on the question of punishment as to a murder, then in that case the sentence will be imprisonment for that crime for the term of years previously described and up to life.

Moreover, the penalty-phase verdict sheet shows that the jurors not only understood that unanimity was not required to reject an aggravating factor, but also that unanimity was required to find it. They found no depravity of mind concerning Melva by a vote of ten in favor to two against.

In the context of the entire charge, which conveyed to the jury the requirement of unanimity on positive findings, we believe that the somewhat misleading charge caused no prejudice to defendant. To avoid confusion, however, on remand the trial court should take care to instruct the jury uniformly that unanimity is not required for a sentence of imprisonment. State v. Clausell, 121 N.J. 298, 346, 580 A.2d 221 (1990).

11. Should the trial judge have informed the jury that it could return a life verdict regardless of the outcome of the weighing process?

Defendant argues that although the jury unanimously found that aggravating factors outweighed mitigating factors, the absence of a further determination that death was the appropriate punishment violated state and federal guarantees against cruel and unusual punishment. We rejected that argument in State v. Ramseur, supra, 106 N.J. at 316 n. 80, 524 A.2d 188. There we explained that as long as the jury is fully aware of its responsibility for the sentencing verdict, a specific finding that “death is an appropriate punishment” is unnecessary. Ibid.; see State v. Zola, supra, 112 N.J. at 437, 548 A.2d 1022 (no incantation or specific finding required as long as instructions impart jury’s obligation).

We find no error in the absence of any admonition to the jury that it could exercise discretion despite the result of its weighing of aggravating and mitigating factors.

12. Should the trial judge have informed the jury that there is a presumption against the death penalty?

Defendant argues that this Court’s imperative that “the State must prove beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors,” State v. Biegenwald, 106 N.J. 13, 67, 524 A.2d 130 (1987), constitutes a presumption against the death penalty analogous to the presumption of innocence. He further argues that an instruction on that presumption is constitutionally required. We ruled in State v. Rose, supra, 112 N.J. at 545, 548 A.2d 1058, however, that no principle of state or federal constitutional law requires an instruction on any such “ ‘presumption’ against the death penalty.”

Gerald Issue

Defendant contends that he was denied the benefit of a charge in accordance with State v. Gerald, supra, 113 N.J. 40, 549 A.2d 792. In that case we ruled that in order to establish death eligibility, the jury must determine that the defendant had the knowledge or purpose to kill and not the knowledge or purpose merely to inflict serious bodily injury that happened to result in death. The jury’s verdict must establish that the defendant had the knowledge or purpose to kill. In this case, the trial court foresaw the Gerald problem and charged the crime of capital murder only in terms of the defendant’s having a knowledge or purpose to kill. The jury returned that verdict on the verdict sheet. Defendant did not object to the charge or ask for a separate charge on serious-bodily-injury (SBI) murder. Defendant did receive manslaughter charges. Because we must remand the matter, we need not resolve on this record whether it was plain error not to have charged SBI murder separately. State v. Long, supra, 119 N.J. at 464, 575 A.2d 435. We add these comments for guidance on remand.

This case falls on the spectrum of decisions somewhere between State v. Pitts, supra, 116 N.J. 580, 562 A.2d 1320; State v. Hunt, supra, 115 N.J. 330, 558 A.2d 1259; State v. Harvey, supra, 121 N.J. 407, 581 A.2d 483; and State v. McDougald, supra, 120 N.J. 523, 577 A.2d 419. (State v. Davis, 116 N.J. 341, 561 A.2d 1082 (1989), and State v. Jackson, 118 N.J. 484, 572 A.2d 607 (1990) were plea cases in which the defect was not in the charge but in the factual basis furnished for the plea). In Pitts, Hunt, Harvey, and McDougald, we concluded that the evidence was minimally adequate to require the trial court to charge the jury on SBI murder. In Pitts, we found the failure so to charge was harmless error, because the nature of the blows was so violent and defendant so trained in killing that no other jury verdict seemed possible, especially in light of the theory of the defense that it was a Vietnam-flashback killing. 116 N.J. at 619-20, 562 A.2d 1320. In Hunt, which was a multiple-stabbing case, we did not have to resolve the issue because of other matters in the case. 115 N.J. at 376, 558 A.2d 1259. In Harvey, because the defendant stated that he had struck one blow without an intention to kill — a blow that might nonetheless have caused the death of the victim — there was a factual basis to submit the issue to the jury and the error was not harmless. 121 N.J. at 414, 581 A.2d 483. In McDougald, where the evidence was inescapable that the defendant had but one purpose in mind — to end the life of his victims as evidenced by his return to kill one and his boasting of having killed both — we concluded that the absence of a Gerald charge was harmless in the circumstances. 120 N.J. at 558-60, 577 A.2d 419.

On the remand then, with respect to Melva, a court cannot foreclose the jury from considering a defense by Moore that he did not intend to kill his wife but lost control of himself and struck her, causing her to die, without intending her death. Given the force and severity of the blows, it is not likely that a jury will credit this story, but it is for a jury to decide.

In the case of Kory, it seems much less likely that there would be any rational basis from which it could be inferred that repeated hammer blows to the baby’s head could form the basis of an SBI murder charge. Moore’s defense may be accident; in that event the crime could be manslaughter, not murder. However, assuming the jury finds the blows were intentional and not accidental, it hardly seems possible such an actor would not be practically certain that death would result, thereby satisfying the mental-state prerequisite to murder. In any event, we cannot now conjecture as to what the proofs will be in a new trial. The remand court must consider all the proofs, including any assertion by the defendant that he intended only serious bodily injury, to determine whether there is any actual basis to submit SBI charges to the jury.

IV

Summary and Conclusion

For completeness of the record, we note the points raised in defendant’s brief that were decided in Ramseur, supra, 106 N.J. 123, 524 A.2d 188, and Biegenwald, supra, 106 N.J. 13, 524 A.2d 130, specifically, defendant’s challenge to the constitutionality of the death penalty in New Jersey, both on its face and as applied. We have considered whether any departure should be made from our prior rulings on these issues and have concluded that no departure is justified.

Our disposition of this case makes it unnecessary to undertake the proportionality review requested by defendant under N.J.S.A. 2C:ll-3e. We note that the various County Prosecutors, in consultation with the Attorney General, have adopted guidelines for use throughout the State in determining the selection of capital cases. See State v. Koedatich, supra, 112 N.J. at 258, 548 A.2d 939.

In addition to the murder convictions, defendant was convicted of weapons offenses. Disposition of the weapons offenses will abide the retrial. State v. Long, 119 N.J. 439, 504-05, 575 A.2d 435 (1990).

The pivotal issue in this appeal is one of non-capital constitutional law. Until the United States Supreme Court rules otherwise, no burden may be imposed on a defendant to establish all or any part of an affirmative defense based on diminished mental capacity. Humanik v. Beyer, supra, 871 F.2d 432. In no event would we ever require a defendant to establish both the fact of mental disease and the fact that it negated the knowledge or purpose to kill. State v. Breakiron, supra, 108 N.J. 591, 532 A.2d 199. The jury in this case was not charged in accordance with those principles. This error was not harmless because it was, for all practical purposes, the only issue in the guilt phase of the trial and a factual basis for that defense was presented.

At times it is difficult to explain the reasons why a free society should elect to afford fair trial rights to even the seemingly most reprehensible of its members. Shortly after returning from Nuremberg, where he had prosecuted war criminals, Justice Jackson reflected on the significance to our society of the guarantees of our Constitution and Bill of Rights. He observed that these constitutional guarantees are “a real peril” to the solution of crime and thus present “a real dilemma in a free society” because “the defendant is shielded by such safeguards as no system of law except the Anglo-American concedes to him.” Moran v. Burbine, 475 U.S. 412, 436 n. 5, 106 S.Ct. 1135, 1149 n. 5, 89 L.Ed.2d 410, 431 n. 5 (1986) (Stevens, J., dissenting) (quoting Watts v. Indiana, 338 U.S. 49, 59, 69 S.Ct. 1357, 1358-59, 93 L.Ed. 1801, 1808-09 (1949) (Jackson, J., concurring in result)).

He questioned then whether a society beset with the rising incidence of crime could continue to afford such safeguards to defendants: “Is it a necessary price to pay for the fairness which we know as ‘due process of law’?” Watts, supra, 338 U.S. at 62, 69 S.Ct. at 1359, 93 L.Ed. at 1810 (Jackson, J., concurring in result). The question remains relevant today. We can only answer now as did that Court then, “deeply mindful of the anguishing problems which the incidence of crime presents” to society. Id. at 55, 69 S.Ct. at 1350, 93 L.Ed. at 1807. These constitutional guarantees, “assuring appropriate procedure before liberty is curtailed or life is taken,” ibid., are what distinguish our society from all others. Among those guarantees is the right to trial by jury. The right to trial by jury includes the right to have the State prove the guilt of a defendant beyond a reasonable doubt. That right was infringed here by requiring defendant to prove that he was innocent of murder by reason of the diminished-capacity defense. Accordingly, we reverse the convictions of murder and remand the matter to the Law Division for proceedings consistent with this opinion.

EXHIBIT A

[For convenience, the juror’s handwritten answers have been typed in by us. Personal identifying information has been omitted.]

JUROR QUESTIONNAIRE

1. Name G_G_Juror No. _

2. Address_

A. Check one: Own X ; Rent_; Live with parents

B. Years lived at present address: 37

C. Years lived in New Jersey: 40 yrs.

D. Place of Birth: Smithfield, Va. Age: 65

3. Marital Status: (check one) Married X ; Divorced ;

Widowed_; Separated_; Never Married

4. Employment Data:

A. What is your occupation: Home Maker_

B. Name of Employer: _

C. City where you work: _

D. If you supervise others at work, how many? _

E. Years at this job: _

F. Spouse’s occupation: Expediter_

G. Spouse’s employer: _

5. List your children’s ages, and their occupations and employers,

if any: 37 — US Coast Guard_

6. Military Service:

Juror: Yes _; No _; Branch _;

Y ears _

Spouse: Yes X ;. No _; Branch US Air Force ;

Y ears 2k

7. What is the highest grade of school you completed (check one)

_less than high school _community college graduate

X high school graduate _4 year college graduate

_vocational/technical school__other (please explain)

_some college -

8. If married, spouse’s highest grade of school 2 yrs High_

9. Have you ever served as a juror in a criminal case NO X YES

10. Have you ever served as a Grand Juror NO_YES X

11. Have you ever been a witness in a criminal case NO X YES_

12. Have you, a relative, or a close friend ever been the victim of a crime NO_YES_

13. Have you, a relative, or a close friend ever been convicted of a crime NO X YES_

14. Do you have any relatives or close friends who are or were police officers or any other type of law enforcement officers NO X YES_

15. Is there any reason why you could not judge the testimony of a police officer by the same standard as any other witness NO X YES_

16. Is there anything about the charges which would prevent you from being fair both to the state and to the defendant NO X YES_

17. Have you heard or read anything about this case NO X YES_

18. Have you or any of your close friends or relatives had any experience with psychiatry NO X YES_

19. If so, was there anything about that experience that still bothers or troubles you 20. Have you ever studied psychiatry or psychology NO X YES_

21. If so, how long ago and for how long 22. Have you ever read any articles about psychiatry and psychology NO X YES_

23. If so, how much have you read and have you formed any opinions? 24. Have you or a close friend or relative ever sought the assistance of a psychiatrist or psychologist to help with a personal problem NO X YES

25. If so, do you think this experience was helpful to you or your friend or relative? _Why? _

26. Do you believe that everyone can overcome depression and/or other mental negative attitudes merely by becoming more positive in their outlook on life by setting their minds to it? No Why? Professional help is needed

27. Have you read or heard anything about the use of psychiatrists or psychologists in criminal trials? No If so, what?

28. Do you think mental illness can be as debilitating as a physical illness? don’t know the meaning of the word [debilitating]

29. Do you think that psychiatrists are any more likely to recognize and understand mental illness and behavior than are people with no such background? Yes

30. Do you have any opinion about the use of psychiatric expert testimony in a criminal trial? No

31. Would you be able to judge the testimony of a psychiatrist the same way as any other witness? No If not, why not? Not familiar with his method

32. Would you automatically assume that a psychiatrist was correct in his evaluation or would you be able to reach your own conclusion based on all of the testimony? I would try to reach my own conclusion

33. Is there any reason why you feel you would be unable to sit and decide a case in which one of the issues may involve evaluating psychiatric testimony? Yes. Because I’ve never come in contact with the evaluation of psychiatry