dissenting.
Simply stated, a critical issue posed by this capital appeal is whether a defendant’s second-degree murder conviction in Pennsylvania, following a jury charge that permitted a finding of malice on the basis of a mental state equivalent to that required for aggravated manslaughter under New Jersey’s Code of Criminal Justice, can qualify as a prior murder and serve as an aggravating factor under New Jersey’s Death Penalty Act. Remarkably, the Court concludes that the Legislature “intended to make any prior murder committed by a defendant at any time and at any place an aggravating factor.” Ante at 457, 737 A.2d at 22-23. That conclusion cannot be sustained because it would permit the definition of murder adopted by other states, rather than New Jersey’s definition of murder, to determine whether a defendant is eligible for the death penalty.
N.J.S.A. 2C:ll-3c(4)(a) allowed the jury to consider, as an aggravating factor weighing on defendant’s death-worthiness, its finding that “[t]he defendant ha[d] been convicted, at any time, of another murder.” In this appeal defendant challenges the admissibility of a foreign murder conviction as an aggravating factor in a capital penalty proceeding. In addition, defendant contends that as a prerequisite to the admission of a prior murder conviction from another state, the prosecution must establish that the foreign jurisdiction’s definition of murder at the time of defendant’s prior conviction comported substantially with the offense of murder as defined by N.J.S.A. 2C:11-3.
Although I agree with the majority’s holding that N.J.S.A. 2C:11-3c(4)(a) contemplates the admissibility as a statutory aggravating factor of a murder conviction entered “at any place” as well as “at any time,” I cannot endorse the majority’s view that a foreign conviction for murder, no matter how defined, is admissible in a capital penalty phase. Under the majority’s holding, a defendant’s death-worthiness may depend on whether that defendant’s prior homicide was committed in this State, or in a foreign jurisdiction that chooses to define “murder” as including conduct *504that would support no more than a conviction for the lesser offense of aggravated manslaughter in New Jersey. To allow a jury to impose a death sentence based on a foreign conviction for “murder” when that murder, as defined by the foreign jurisdiction, would not qualify as a statutory aggravating factor in this State would inject an arbitrariness into our death-penalty jurisprudence that this Court has heretofore been unwilling to tolerate.
Because I believe that the majority’s holding wrongly expands the category of death-eligible defendants and undermines the Legislature’s explicitly stated intention to strictly limit death eligibility to the circumstances enumerated under N.J.S.A. 2C:11-3,1 dissent.
I
In deciding a defendant’s death-worthiness, N.J.S.A. 2C:11-3c(4)(a) allows a jury to consider as an aggravating factor a defendant’s prior conviction, “at any time, of another murder.” Pursuant to the statute, the jury in this case found that defendant’s 1984 Pennsylvania conviction for second-degree murder constituted an aggravating factor. Whether the offense for which defendant was convicted in 1984 would qualify as a prior “murder” if committed in this State requires an examination of the New Jersey statutes as well as the law of Pennsylvania, as that law was charged to the jury in defendant’s 1984 trial.
N.J.S.A. 2C:ll-3a provides that criminal homicide constitutes “murder” when the actor purposely or knowingly causes death or serious bodily injury resulting in death, or when the homicide is committed when the actor is engaged in the commission of certain enumerated felony offenses. Because defendant’s prior homicide did not involve the commission of a felony, in my view the question in this ease is whether he was convicted of “purposely or knowingly caus[ing] death or serious bodily injury resulting in death.”
In defendant’s 1984 Pennsylvania trial, the court instructed the jury that “Robert Simon is charged with Criminal Homicide; that is — with the taking of the life of Beth Smith without lawful *505justification or excuse.” The court charged the jury that the Commonwealth of Pennsylvania, at that time, recognized three types of homicide: murder in the first degree, murder in the second degree, and voluntary manslaughter. Each category of homicide required the jury to find that defendant had caused the victim’s death; therefore the crimes were distinguishable on the basis of defendant’s mental state. First-degree murder required the jury to find that defendant had a specific intent to kill. A conviction for either first- or second-degree murder, the court charged the jury, required the jury to find that the killing was committed with malice. Malice, the court explained,
is a short-hand way of referring to any of the various bad mental states or attitudes which a person who kills must have for the killing to be Murder.
A killing is with malice and is, therefore, Murder if the killer acted with one of the following states of mind: an intent to kill, or an intent to inflict serious bodily injury, or a wickedness of disposition, hardness of heart, cruelty, recklessness, disregard of the consequences, and a mind regardless of social duty, indicating an unjustified disregard for the probability of death or great bodily harm, and an extreme indifference to the value of human life. That’s what we mean by malice.
On the other hand, a lolling is without malice if the killer acted with lawful justification or excuse, or under circumstance reducing the killing to Voluntary Manslaughter.
[Emphasis added.]
The court instructed the jury that because the definition of malice encompasses an intentional homicide, a finding that defendant intended to kill the victim would also satisfy the malice element, resulting in a conviction for first-degree murder. A conviction for second-degree murder, on the other hand, would result if the jury found either of the remaining two mental states included within the broad definition of malice: intent to cause serious bodily injury; or “a wickedness of disposition, hardness of heart, cruelty, recklessness, disregard of the consequences, and a mind regardless of social duty, indicating an unjustified disregard for the probability of death or great bodily harm, and an extreme indifference to the value of human life.”
*506II
As defendant has argued, the problem in this case arises because it is impossible to know which of the two possible mental states for second-degree murder, included within the court’s definition of malice, the jury found that he possessed at the time of the Pennsylvania homicide. If the jury’s verdict was based on a conclusion that defendant intended to cause the victim serious bodily injury, defendant’s Pennsylvania conviction clearly would have been admissible as a prior “murder” conviction. See N.J.S.A. 2C:ll-3a(l) and (2) (defining as murder an actor’s purposely or knowingly causing serious bodily injury resulting in death). If, however, the jury found defendant guilty of second-degree “murder” based on a finding that defendant acted with “a wickedness of disposition, hardness of heart, cruelty, recklessness, disregard of the consequences, and a mind regardless of social duty, indicating an unjustified disregard for the probability of death or great bodily harm, and an extreme indifference to the value of human life,” then defendant’s conviction parallels the crime of aggravated manslaughter under New Jersey law. See N.J.S.A. 2C:ll-4 (defining as aggravated manslaughter an actor’s recklessly causing death under circumstances manifesting extreme indifference to human life). A prior conviction for aggravated manslaughter does not qualify as a prior murder conviction under N.J.S.A. 2C:11-3c(4)(a). See State v. Bey, 137 N.J. 334, 387-88, 645 A.2d 685 (1994) (noting that guilty plea to manslaughter cannot be asserted by prosecutor as prior-murder-eonviction aggravating factor), cert. denied, 513 U.S. 1164, 115 S.Ct. 1131, 130 L.Ed.2d 1093 (1995).
Contrary to the majority’s implication, a Pennsylvania second-degree murder conviction under the “wickedness of disposition, hardness of heart” formulation of malice unquestionably is the equivalent of aggravated manslaughter as defined by the New Jersey statutes. In this State, “[c]riminal homicide constitutes aggravated manslaughter when the actor recklessly causes death under circumstances manifesting extreme indifference to human *507life.” N.J.S.A. 2C:11-4a. Aggravated manslaughter is identical to the lesser-included offense of reckless manslaughter except for the difference in the degree of risk of death; an aggravated manslaughter results if the risk is a probability as opposed to a possibility. State v. Pridgen, 245 N.J.Super. 239, 246, 584 A.2d 869 (App.Div.), certif. denied, 126 N.J. 327, 598 A.2d 886 (1991). Similarly, in Pennsylvania, the less culpable version of second-degree malice murder is defined as a homicide committed with “a wickedness of disposition, hardness of heart, cruelty, recklessness, disregard of the consequences, and a mind regardless of social duty, indicating an unjustified disregard for the probability of death or great bodily harm, and an extreme indifference to the value of human life.” See Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545, 548 (1975) (noting that “between the recklessness or culpable negligence necessary to support the charge of involuntary manslaughter, and the specific intent to kill which is a prerequisite of murder of the first degree, there is a class of wanton and reckless conduct which manifests such an extreme indifference to the value of human life which transcends the negligent killing and reaches the level of the malice which supports a verdict of murder in the second degree”) (citation omitted); Commonwealth v. Coleman, 455 Pa. 508, 318 A.2d 716, 718 (1974) (noting that second-degree malice murder is established by “intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others”) (citation omitted).
That our Legislature has, at other times in our statutory history, also defined murder as including the offense now termed manslaughter under the Code does not, as the majority suggests, warrant the Court’s according that term a broader construction than that contained in the Code’s current definition of murder for purposes of both death-eligibility and death-worthiness.
Nor, as the majority suggests, ante at 462-63, 737 A.2d at 25-26, does our decision in State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987), aff'd sub nom., Ramseur v. Beyer, 983 F.2d 1215 (3d Cir.1992), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed.2d *508653 (1993), support the Court’s holding that “murder,” however that term may be defined by a foreign jurisdiction, is an admissible aggravating factor. The definition of murder was not at issue in Ramseur because the New Jersey indictment to which Ramseur pled guilty alleged that he “did willfully, feloniously and of his malice aforethought kill and murder” his victim and “did not mention manslaughter, which would have been charged separately.” Id. at 274, 524 A.2d 188. The issue in Ramseur was whether a non vult plea to an indictment for first-degree murder could be used as a prior “conviction” to trigger death-eligibility. Ramseur argued that the plea should not carry the same weight as a conviction after trial because of the possibility that he may have been convicted of a lesser offense, such as manslaughter, had he chosen to go to trial and contest the indictment. Id. at 272, 524 A.2d 188. We did not decide in Ramseur that a conviction for “murder” is on its face an admissible aggravating factor; rather, our decision was founded on the well-settled principle that “a non vult plea is regarded as the equivalent of a guilty plea to the charge to which defendant has pleaded.” Id. at 273, 524 A.2d 188. Simply put, Ramseur had pleaded guilty to murder, not manslaughter, and his non vult plea had the same legal significance as a conviction by a jury. Id. at 272-73, 524 A.2d 188.
In Ramseur, we observed that courts “ordinarily will not look behind the fact of the conviction because the conviction itself is the statutory aggravating factor.” Id. at 276, 524 A.2d 188 (footnote omitted). Rather than requiring the State to reprove the allegations of the former offense, the conviction itself is used, we explained, “because of the high degree of its reliability [and] because of the time and energy that would be spent trying to prove the prior murder through a trial within a trial.” Id. at 278, 524 A.2d 188. Where, as in Ramseur, “[i]t is simply undeniable that [the defendant] was convicted, and that he was convicted of murder,” id. at 272, 524 A.2d 188, we refused to engage in futile speculation about what verdict a jury may have rendered had the matter been tried. The majority, seizing on Ramseur’s refusal to “look behind the conviction” to reexamine the facts underlying a *509valid conviction for murder, makes an unjustifiable leap of logic in concluding that a prior murder conviction is ipso facto admissible, without any inquiry into its qualification as an aggravating factor as a matter of law. In so holding, the majority fails to recognize that a prior conviction is reliable only as proof that a defendant committed the crime for which he was convicted; it cannot establish a prior “murder” conviction if the offense for which he was convicted would have been manslaughter as a matter of New Jersey law.
In an analogous context, the court in State v. Hines, 109 N.J.Super. 298, 263 A.2d 161 (App.Div.), certif. denied, 56 N.J. 248, 265 A.2d 703, cert. denied, 400 U.S. 867, 91 S.Ct. 108, 27 L.Ed.2d 106 (1970), refused to allow the admission of a foreign conviction as evidence of the defendant’s habitual-offender status unless the offense would qualify as a high misdemeanor in this State, a prerequisite for admission under N.J.S.A. 2A:85-12. 109 N.J.Super. at 302-03, 263 A.2d 161. Accordingly, the court struck the allegations regarding three of the defendant’s prior Pennsylvania convictions because the offenses would not qualify as high misdemeanors under New Jersey law: a prior conviction for prison breach was stricken because that offense was not a high misdemeanor in New Jersey; a prior theft conviction was stricken for failure to meet the $200 limitation of our theft statute; and a prior conviction for bringing stolen property into the state was stricken because the comparable offense in New Jersey was only a misdemeanor. Id. at 303, 263 A.2d 161.
On Hines’s appeal, he contended that a prior Pennsylvania larceny conviction considered in the habitual-offender trial also was not the equivalent of a high misdemeanor in this State. Id. at 304, 263 A.2d 161. The Pennsylvania larceny statute read that “[wjhoever commits larceny, is guilty of a felony, and shall, upon conviction thereof, be sentenced____” Ibid. The relevant New Jersey statute “provided that any person who steals money, goods, chattels or other personal property of another is guilty of a misdemeanor, if the price or value of such property was under $50 *510and, if over $50 is guilty of a high misdemeanor.” Ibid. Hines claimed that, looking merely at the statute, “the Pennsylvania offense could possibly have been no more than a mere misdemean- or, and so could not be considered under [the habitual-offender statute].” Id. at 304-05, 263 A.2d 161. The court rejected that argument, noting that because the indictment stated the amount of money stolen — $564—the court was able conclusively to determine that the offense would have been a high misdemeanor, as defined by New Jersey law, and that it properly had been admitted at Hines’s trial. Id. at 305-06, 263 A.2d 161.
Significantly, in both Ramseur and Hines, the courts were able to verify, simply by looking at the prior record of conviction, whether the prior offenses fell within the definition of the relevant New Jersey offense: in Ramseur because the defendant did not contest the indictment charging him with willful murder; and in Hines because the indictment stated the objective fact of the amount of money stolen. Similarly, in each of the cases cited by the majority allowing the admission of a prior conviction from a foreign jurisdiction, it was possible, without the necessity of any inference or speculation, for the forum court to determine conclusively whether the foreign conviction fell within the scope of a comparable offense in the forum state. See People v. Guest, 115 Ill.2d 72, 104 Ill.Dec. 698, 503 N.E.2d 255, 263-67 (1986) (upholding admission of prior California murder conviction as aggravating death-eligibility factor, after conducting comparative analysis of Illinois and California murder statutes and concluding they were “substantially similar” in requiring “virtually identical” mental states to sustain murder conviction), cert. denied, 483 U.S. 1010, 107 S.Ct. 3241, 97 L. Ed.2d 746 (1987); Grasso v. State, 857 P.2d 802, 808-09 (Okl.Crim.App.1993) (questioning admissibility of defendant’s prior conviction under Florida’s aggravated battery statute, which included provision allowing conviction for conduct that would be considered only as misdemeanor under OMahoma law, but finding it unnecessary to resolve issue because defendant’s second prior Florida conviction for robbery, under statute “substantially similar” to OMahoma’s, “sufficiently supported the trial *511judge’s finding of [prior felony] aggravating circumstance beyond a reasonable doubt”); Commonwealth v. Maxwell, 534 Pa. 23, 626 A.2d 499, 501 (refusing to recognize, on res judicata grounds, defendant’s claim that prior felony conviction was improperly admitted in penalty phase because New York conviction for possession of loaded weapon would have been misdemeanor in Pennsylvania, but observing that New York offense was more serious offense and was not equivalent to Pennsylvania’s statute, which proscribed both loaded and unloaded weapons), cert. denied, 510 U.S. 995, 114 S.Ct. 558, 126 L. Ed.2d 459 (1993); State v. Norris, 285 S.C. 86, 328 S.E.2d 339, 344-45 (1985) (vacating defendant’s death penalty based on erroneous admission of prior second-degree murder conviction under Virginia statute that did not require mental state of malice and therefore did not qualify as aggravating factor under South Carolina law), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).1
Here, in contrast to Ramseur, Hines, and the foregoing out-of-state cases, our objective examination of the Pennsylvania record of conviction cannot possibly shed light on the one fact necessary in order to conclude that defendant was, in fact, convicted of murder rather than manslaughter, i.e., on which ground — intent or callous indifference — the jury’s verdict rested. The Court’s con-clusory observation that defendant’s conduct “reasonably can be viewed as sufficient to satisfy a purposeful] or knowing[ ] murder” under N.J.S.A. 2C:ll-3a(l) or (2), ante at 463, 737 A.2d at 26, is not an adequate basis for upholding the admission of the prior conviction. That conclusion requires the very speculation about a jury’s thought processes, or “looking behind the conviction,” that we found inappropriate in Ramseur.
*512The Court’s most glaring error lies in its attempt to distinguish “callous indifference” malice under Pennsylvania law from the mental state of recklessness required under New Jersey law for a conviction of aggravated manslaughter. The Court states:
When the Pennsylvania court defined malice, use of the phrase “recklessness of consequences and a mind regardless of social duty indicating an unjustifiable disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life,” does not come close to being equivalent to the recklessness standard required for manslaughter under N.J.S.A. 2C:ll-4. The phrase in the Pennsylvania malice charge that included “recklessness” when viewed in the context of shooting the victim through the neck and between the eyes more closely satisfies the definitions of acting purposely or knowingly, N.J.S.A. 2C:2-2b(l) and (2), than the definition of recklessness in N.J.S.A. 2C:2b(3).
[Ante at 463-64, 737 A.2d at 26.]
The Court’s suggestion that the evidence of defendant’s Pennsylvania trial may have been adequate to sustain a conviction for purposeful murder begs the question. But the Court errs grievously when it states that “callous indifference” malice under Pennsylvania law “does not come close to being equivalent to the recklessness standard required for manslaughter” under New Jersey law. Under our manslaughter statute, N.J.S.A. 2C:ll-4, “[c]riminal homicide constitutes aggravated manslaughter when the actor recklessly causes death under circumstances manifesting extreme indifference to human life.” Under the Code, N.J.S.A. 2C:2-2, “[a] person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.” In defendant’s Pennsylvania trial the court’s secondary definition of malice was “a wickedness of disposition, hardness of heart, cruelty, recklessness, disregard of the consequences, and a mind regardless of social duty, indicating an unjustified disregard for the probability of death or great bodily harm, and an extreme indifference to the value of human life.” Contrary to the Court’s conclusion, the Pennsylvania court’s secondary definition of malice parallels in many respects New Jersey’s definition of recklessness and the elements of aggravated manslaughter. Both definitions emphasize recklessness as the crucial mental state, as well as a “[conscious] disregard” of conse*513quences and “extreme indifference to human life.” A fair reading of the two relevant definitions demonstrates that the Pennsylvania court’s secondary definition of malice is the essential equivalent of aggravated manslaughter under New Jersey law.
Ill
The Court’s inexacting level of scrutiny is simply insufficient when the issue is whether the evidence supports a prior-murder-conviction aggravating factor. Where, as here, the record leaves the reviewing court uncertain about the actual ground on which the jury’s decision rested, and one ground would not be admissible as an aggravating factor, the appropriate remedy is the reversal of defendant’s death sentence and a remand for resentencing. See Zant v. Stephens, 462 U.S. 862, 881, 103 S.Ct. 2733, 2745, 77 L.Ed.2d 235, 252 (1983) (noting rule that “a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground”) (citing Stromberg v. California, 283 U.S. 359, 369-70, 51 S.Ct. 532, 535-36, 75 L.Ed. 1117, 1123 (1931)). Consistent with that doctrine, this Court in State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988), refused to rely for death-eligibility purposes on any jury verdict that failed to state explicitly whether the conviction reflected the jury’s finding that the defendant intended to Mil, or to inflict serious bodily injury on the victim. Id. at 92, 549 A.2d 792.
Nor should we expand death-eligibility to include prior offenders whose crimes never would have been presented for the jury’s consideration if committed in this State, simply because the foreign jurisdiction defines the offense of murder more broadly than does New Jersey. As we noted in Ramseur:
By establishing a prior conviction as an aggravating factor the State adequately fulfills its constitutional duty to “narrow the class of persons eligible for the death penalty and ... [to] reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.”
*514[Ramseur, supra, 106 N.J. at 276, 524 A.2d 188 (quoting Zant, supra, 462 U.S. at 887, 103 S.Ct. at 2748, 77 L.Ed.2d at 249-50) (alteration in original).]
The States have been accorded considerable latitude in defining the factors, both statutory and non-statutory, that may be considered in deciding a defendant’s death-worthiness. See Barclay v. Florida, 463 U.S. 939, 956, 103 S.Ct. 3418, 3428, 77 L.Ed.2d 1134, 1148 (1983) (stating that “[t]he trial judge’s consideration of Barclay’s criminal record as an aggravating circumstance was improper as a matter of state law”) (emphasis added); Zant, supra, 462 U.S. at 878-79, 103 S.Ct. at 2747, 77 L.Ed.2d at 251 (holding no constitutional violation occurs if a state permits consideration of non-statutory aggravating factors in the penalty phase of a capital ease). Therefore, the fairness and rationality of death-penalty proceedings depends almost entirely on each state’s strict and uniform adherence to its own procedures to channel a jury’s discretion in imposing the penalty of death. We fail in that constitutional duty, and introduce into the process an element of uncertainty and irrationality, when we allow the existence of an aggravating factor to be determined by whether defendant’s prior crimes were committed in this or another State. An aggravating factor based on so arbitrary a standard cannot “reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Ramseur, supra, 106 N.J. at 276, 524 A.2d 188 (quoting Zant, supra, 462 U.S. at 887, 103 S.Ct. at 2748, 77 L.Ed.2d at 249-50).
HANDLER, J., joins in this dissent.
For affirmance — Chief Justice PORITZ and Justices POLLOCK, GARIBALDI and COLEMAN — 4.
For reversal — Justices HANDLER, O’HERN and STEIN — 3.
Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983), and State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981), cert. denied, 463 U.S. 1213, 103 S.Ct. 3552, 77 L.Ed.2d 1398 (1983), also cited by the majority, involved the propriety of the state’s having introduced allegedly inflammatory evidence of the prior crime rather than simply admitting the conviction as an aggravating circumstance. Those cases, while impliedly recognizing the admissibility of a foreign conviction, do not address the question presented in this appeal.