concurring.
I agree with the Court’s disposition of the issues in this case. One aspect of that disposition prompts these observations.
On November 3,1992, the New Jersey Constitution was amended to state:
It shall not be cruel and unusual punishment to impose the death penalty on a person convicted of purposely or knowingly causing death or purposely or knowingly causing serious bodily injury resulting in death who committed the homicidal act by his own conduct or who as an accomplice procured the commission of the offense by payment or promise of payment of anything of pecuniary value.
[N.J. Const, art. I, ¶ 12.]
Legislation “designed to ensure that the amendment is given full effect * * * clearly state[s] that the term ‘homicidal act’ [that exposes an actor to the death penalty] means conduct that causes ‘death or services [sic, should read “serious”] bodily injury resulting in death.’ ” A. 2113, 205th Leg., 2d Sess. (approved May 5, 1993). The implicit assumption by the Legislature and the Governor and the people of New Jersey who voted for the constitutional amendment is that serious-bodily-injury murder (SBI murder) would be a death-eligible offense under both the New Jersey Constitution and the Constitution of the United States.
Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), requires a minimum culpability of “reckless indifference” on the part of a major participant in a felony to sustain a death-penalty conviction under the Eighth Amendment to the Constitution of the United States. See also Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3376, 73 L.Ed.2d 1140, 1151 (1982) (holding that imposing death penalty is disproportionate for one who “aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed”). The question arises: what mental state is required of the actor who commits the homicide?
In Gerald, the Court wrote:
*664Clearly the crimes of purposeful and knowing murder include not only those actors who intend their victims’ deaths, but also those actors who intend to inflict only serious bodily injury, and death unintentionally results. Thus, to be convicted of murder under those provisions, the actor need have no mental state in respect of the actual result — death—but need act only with the purpose or knowledge that serious bodily injury result.
[113 N.J. at 83, 549 A.2d 792 (emphasis added).]
In this case, jurors specifically asked for a definition of SBI murder: “Would you please cite another example of knowingly causing serious bodily injury. Must it involve knowing that the action would more than likely result in death? Does it involve knowing that the action would more than likely result in death?” The jurors had been alerted to the probable/possible distinction-with respect to the results because of the trial court’s definitions of aggravated and reckless manslaughter. The court told the jury with respect to SBI murder: “[T]he actor need not have [any] mental state with regard to the actual result of death.” That definition of the mental state may need to be re-examined in light of the restated constitutional and legislative intent.
Recall that in Gerald the Court reasoned that SBI murder was non-capital by implication from the fact that by making aggravated manslaughter a non-capital offense,
the legislature clearly has rejected the Tison Court’s conclusion that one who causes death while acting with a “reckless indifference to human life” can be subjected to the death penalty. * * * Therefore, the least opprobrious mental state that would sustain imposition of the death penalty under the eighth amendment is insufficient to support even a conviction for non-capital murder under our Code.
[113 N.J. at 78, 549 A.2d 792 (citations omitted).]
I believe that we should resolve the interpretive issues before the trial of a capital case under the 1992 amendment and 1993 enabling legislation.