concurring in part and dissenting in part.
In this capital case, defendant, Frank Pennington, killed a tavern owner, Arlene Connors, with a single shot from a *600handgun during the course of a robbery. Defendant admits that he was committing a robbery when he pulled the trigger of the gun that killed his victim. Defendant was convicted of capital murder and sentenced to death. I concur in the judgment of the Court in reversing defendant’s guilt conviction and death sentence.
I agree with the Court that the instructions concerning homicide offenses were in error and require the reversal of the defendant’s conviction for capital murder. Ante at 557, 575 A.2d at 820. I also believe there are other grounds that provide a basis for reversal. These relate to instances of prosecutorial misconduct occurring in both the guilt and penalty phases; improper cross-examination leading to the admission of hearsay evidence; and the treatment of so-called “other crimes” and “prior crimes” evidence affecting both the guilt and penalty phases of the trial.
I write separately to explain more fully what I consider to be the correct analysis of those issues. I also repeat my continuing belief that the Capital Murder Act, N.J.S.A. 2C:ll-3 is unconstitutional, as enacted, as construed, and as applied. Those reasons impel me to dissent from portions of the Court’s judgment.
I.
The Court recognizes the difficulty of attempting to parse evidence surrounding a killing into separate categories of homicides. It observes:
In deciding to instruct the jury on aggravated and reckless manslaughter, the trial court concluded that “there is evidence on which the jury could accept a version which, either the gun went off accidentally or the gun went off as an, almost, reflective [sic] reaction after Mrs. Connors threw the glass or drink at Mr. Pennington.” Cf. State v. Rose, 112 N.J. 454, 482 [548 A.2d 1058] (1988) (rejecting defendant’s argument that jury should have been charged on aggravated manslaughter because evidence indicated shooting was volitional). We agree and conclude that if the evidence was sufficient to support a manslaughter verdict, it could likewise support a finding that defendant intended to cause *601only serious bodily injury. As a result, the determination of defendant’s precise intent is best left to the jury.
Crisantos, supra, 102 N.J. at 284 [508 A.2d 167] (O’Hern, J., concurring in part and dissenting in part). Indeed, the care taken by the trial court in constructing its charge leads us to conclude that had Gerald been decided before the trial of this matter, the court would have conformed its charge to that opinion. Because the court did not instruct the jury in accordance with Gerald, however, we reverse defendant’s conviction and remand the matter for retrial.
[Ante at 562-563, 575 A.2d at 823.]
The Court thus correctly determines the standard prescribed by State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988), was not satisfied.
Much of the evidence defendant asserts as supporting a serious-bodily-injury murder actually derives from the contention that the shooting was reckless. The trial court felt there was sufficient evidence in this case to charge the jury on the lesser-included offenses of aggravated manslaughter and reckless manslaughter. It may be that “[hjaving rejected aggravated manslaughter and manslaughter as optional verdicts, the jury concluded that defendant’s state of mind was purposeful or knowing, not reckless.” Post at 560, 575 A.2d at 822 (Stein, J., dissenting). It is not tenable, however, to reason from that possibility to the conclusion that “[n]o evidence in this record suggests” a killing that meets the Gerald standard. Ibid. If the evidence was sufficient to support a manslaughter verdict, it could likewise support a finding that defendant intended to cause only serious bodily injury. As the majority observes, “[I]t is too fastidious to conclude that the evidence would not support a charge that defendant acted intentionally, but with the intent to cause serious bodily injury rather than death.” Ante at 565, 575 A.2d at 824. Further, it seems to me an oversimplification to believe that because the evidence as adduced in this case does not directly relate to a purposeful, as opposed to a reckless, assault, it is unsusceptible of generating a reasonable inference that the defendant also intended to cause harm, that is, no more than serious bodily injury and, therefore, is not entitled to a Gerald charge. Post at 556, 575 *602A.2d at 820 (Stein, J., dissenting). Maybe logic dictates that a person who acts “recklessly” with respect to another cannot simultaneously have an intent to hurt that person, but human experience does not compel that conclusion.
In any event, I do not think a court should determine as a matter of law whether homicidal conduct that falls short of a purposeful or knowing killing is necessarily and exclusively either a serious-bodily-injury homicide or a form of manslaughter. As I have remarked previously, the “distinction between knowledge and recklessness, between ‘practical certainty’ of a result and ‘conscious disregard’ of ‘a substantial and unjustifiable risk’ of a result, is a subtle one at best.” State v. Rose, 112 N.J. 454, 562, 548 A.2d 1058 (1988) (Handler, J., dissenting). In cases where one cannot be truly certain whether the defendant intended to kill or intended to cause serious bodily injury, and where there is also evidence that the defendant may have acted recklessly, the Court should as it now does, let the distinction be “one for juries to draw deliberatively, not one for trial judges to draw preemptively.” Ibid.
Moreover, it cannot be overemphasized that, in this pre-Ger-ald case, defendant had no reason at trial to prove that he intended only to cause serious bodily injury. In fact, he was attempting to establish exactly the opposite — that the shooting was not purposeful or knowing in any way. Unaware of the Gerald standard, the defendant certainly would not have introduced evidence supporting this theory. He should not now be penalized for failing to have done so.
I therefore agree with the Court that the evidence in this case warranted a Gerald charge and that defendant’s conviction must be set aside on this ground. I would, however, require the court to present to the jury the full range of possible homicide offenses.
II.
At the penalty phase, the defense presented the expert testimony of Dr. Seymour Kuvin, a psychiatrist, and Dr. J.A. *603Visceglia, a psychologist. During cross-examination of these experts, the prosecutor continually and improperly placed inadmissible hearsay before the jury. Under the guise of impeaching their expert opinions, the prosecutor extensively questioned the doctors about hearsay materials including reports of other doctors and documents prepared by the Parole Board, which had not been relied on or even seen by those experts. Although defense counsel objected repeatedly, the court sustained few of his objections. As a result, the jury was exposed to inadmissible and highly prejudicial information.
On this point, the Court concludes simply that “[o]n remand, we caution the prosecutor not to cross-examine defendant’s experts about the details of documents on which the experts did not rely. The prosecutor may elicit whether the expert relied on any such evidence but, in the face of a denial, may not use the details of those documents as the basis of further cross-examination.” Ante at 583, 575 A.2d at 835. I fail to see how the Court can content itself with this disposition in light of our decision in State v. Rose, supra, 112 N.J. 454, 548 A.2d 1058.
In Rose, the defendant maintained that the prosecutor’s use of defendant’s records from high school, the army, and jail to cross-examine the defense’s psychiatric experts was improper because the records were not in evidence and the experts had not relied on them in formulating their opinions. The Court declined to reverse the sentencing proceeding because of defense counsel’s failure to make a timely objection, also ruling that “whatever error may have occurred in permitting this line of cross-examination was not clearly capable of producing an unjust result.” 112 N.J. at 499-500, 548 A.2d 1058.
In contrast, in this case defendant made repeated objections to the prosecutor’s questioning. The trial court concluded, albeit too late, that his objections should be sustained. Moreover, the court’s “curative” instruction did not neutralize the harm but rather perpetuated it. The court told the jury that while it could not view the various reports referred to by the *604prosecutor as independent evidence, it could use those reports to evaluate the credibility of the expert opinions of Drs. Kuvin and Visceglia. Because neither expert had used those reports in formulating his opinion, however, it could not have been legitimately used by the jurors for that or any other purpose.
Clearly the prosecutor’s questioning was improper, defendant’s objections timely, the hearsay evidence prejudicial, and the court’s remedial instructions insufficient. The Court should rule that this is one of many instances of prosecutorial misconduct in this case that justifies reversal.
III.
Defendant contends that the trial court abused its discretion in ruling admissible for impeachment purposes four prior convictions. Defendant also claims, relying on State v. Geyer, 194 Conn. 1, 480 A.2d 489 (1984), that his prior murder conviction, if admissible at all, should have been “sanitized” — that is, that the only information that should have been disclosed was that defendant had an unspecified felony conviction.
Prior to trial, the trial court conducted a Sands (State v. Sands, 76 N.J. 127, 386 A.2d 378 (1978)) hearing to determine whether defendant’s prior convictions were admissible to impeach defendant’s credibility should he elect to testify. Those prior convictions consisted of a 1974 non vult plea to a first-degree-murder charge, on which he received second-degree sentences, and one robbery and two burglary convictions for which he received an aggregate ten-year sentence in 1981.
The trial court initially observed that under the controlling Sands decision, the robbery and the two burglaries dealt with offenses that relate to dishonesty and therefore had a direct bearing on defendant’s credibility. With respect to the prior murder conviction, the court found that it was a “serious crime” bearing on credibility and not “remote,” and, further, rejected the Connecticut sanitization rule.
*605The Court now affirms those rulings. It also states, dismissively, that we should not resort to “sanitization” because that “would mark a pronounced departure from the Sands rule, which has served well for twelve years.” Ante at 586, 575 A.2d at 837. I believe, in the context of a capital-murder prosecution, the application of Sands to allow the prior murder conviction to be used for impeachment purposes is arbitrary, fundamentally unfair, and, to the extent it contributes to the imposition of the death penalty, cruel and unusual punishment.
N.J.S.A. 2A:81-12 governs the admissibility of prior convictions for impeachment purposes. In criminal trials, the admission of prior convictions is tempered by the interplay between the statute and Evidence Rule 4, which requires that evidence may be excluded if its potential for undue prejudice outweighs its probative worth. State v. Whitehead, 104 N.J. 353, 358, 517 A.2d 373 (1986). Understandably, the decision to admit a prior conviction for impeachment purposes rests within the “sound discretion” of the trial court, the exercise of which should not be disturbed absent a clear error in judgment. State v. Sands, supra, 76 N.J. at 144, 386 A.2d 378. Nevertheless, a capital-murder prosecution is unlike any other criminal prosecution and requires, in my view, a stricter and more critical review of such discretion when it involves the admission of a prior murder conviction for impeachment purposes in the trial to determine guilt. We have stressed in capital cases that other-crimes evidence must be weighed carefully. State v. Ramseur, 106 N.J. 123, 265-66, 524 A.2d 188 (1987). There is “widespread agreement that other-crime evidence has a unique tendency to turn a jury against the defendant.” State v. Stevens, 115 N.J. 289, 302, 558 A.2d 833 (1989). A prior conviction has the same prejudicial potential.
The trial court in this case did engage in a weighing process under Evidence Rule 4, considering the possibility of prejudice to the defendant in admitting for impeachment purposes a crime similar to that for which he was currently being tried. The court also professed to take into consideration the fact that *606this was a capital case. Nevertheless, in reviewing this determination, the Court is myopic in failing to recognize the eviden-tiary fallout from a prior murder conviction that is offered in the guilt-phase of a capital-murder prosecution for purposes of impeachment. The prejudice is self-evident, inescapable, and destructive.
Limiting instructions cannot neutralize the prejudice that emanates from the admission of a prior murder conviction in the course of the guilt trial in a capital-murder prosecution. It is naive to believe that a jury struggling to decide whether defendant intentionally committed murder would not be influenced by the knowledge that defendant had killed before, or realistically would consider the prior murder as indicative only of defendant’s lack of truthfulness.
At the very least, if defendant’s prior murder conviction is admissible for the purposes of impeachment, the trial court should “sanitize” the conviction by limiting the amount of information that the State could present to the jury concerning the prior murder. “Sanitization” is not a rule in this state. N.J.S.A. 2A:81-12 permits the State to prove defendant’s prior conviction by examination “or otherwise,” including a record of the conviction. Production of the record, as permitted by statute, allows the State to show the nature of the crime, not just the fact of conviction. This Court has construed the statute to allow proof by way of cross-examination of the “factual components” of the prior conviction, which can include the nature of the crime. State v. Thomas, 76 N.J. 344, 361, 387 A.2d 1187 (1978).
Nevertheless, we have recognized that in a capital-murder prosecution a defendant is entitled to enhanced protection. See State v. Ramseur, supra, 106 N.J. at 324, 524 A.2d 188. Consistent with this imperative of assuring maximum protection, the Court should, with respect to prior murder convictions offered for impeachment purposes, bar the practice of disclosure of the nature of the offense. Neither the statute nor any *607other rule of procedure dictates that practice. The Court should follow the approach of the Connecticut courts. Connecticut appears to use the sanitization process only when the prior conviction falls into the category of a crime not directly reflecting on credibility. See State v. Crumpton, 202 Conn. 224, 520 A.2d 226 (1987) (robbery); State v. Harrell, 199 Conn. 255, 506 A.2d 1041 (1986) (robbery with violence); State v. Anderson, 16 Conn.App. 346, 547 A.2d 1368 (conspiracy to commit robbery), certif. den. 209 Conn. 828, 552 A.2d 433 (1988); State v. Thomas, 15 Conn.App. 197, 543 A.2d 1356 (1988) (burglary convictions (3) and larceny conviction); State v. Garcia, 7 Conn.App. 367, 509 A.2d 31 (1986) (conspiracy to make extortionate extension of credit); State v. Johnson, 4 Conn.App. 672, 496 A.2d 522 (1985) (larceny); cf. State v. Wright, 198 Conn. 273, 502 A.2d 911 (1986) (abuse of discretion to admit prior manslaughter and assault convictions); State v. Carter, 189 Conn. 631, 458 A.2d 379 (1983) (abuse of discretion to admit prior sexual-assault conviction). These types of crimes, such as the violent crime in this case, tend to reflect adversely on defendant’s general character rather than credibility. The Connecticut Supreme Court suggests that such convictions be referred to as “an unspecified crime” or “crimes carrying a penalty of more than one year.” In this way, a defendant could be impeached without being subjected to the extraordinary prejudice that follows if the prior crime was specifically named or described. State v. Anderson, supra, 547 A.2d at 1370.1
I believe that a failure to take such an approach violates a defendant’s entitlement to due process and fundamental fairness. The admission of the conviction in the guilt phase of a capital-murder prosecution is fundamentally unfair in part because it also serves as an aggravating factor in the sentencing phase. It is overreaching for the State to use the murder *608conviction to impeach credibility during the guilt phase — with the inevitable concomitant prejudicial effect of impugning defendant’s character — and then use the conviction as an aggravating factor. This, in effect, constitutes a double use of the same evidence to prove a single factor. See State v. Williams, 113 N.J. 393, 453, 550 A.2d 1172 (1988) (improper evidence in guilt phase may affect jury’s judgment in penalty phase). This is different from the use of evidence that has a direct probative bearing on establishing an element of the crime of murder. See Ramseur, 106 N.J. at 188, 524 A.2d 188 (permissible to use evidence of payment for murder as substantive evidence of guilt and death eligibility and as an aggravating factor in determining sentence). Moreover, this is different from the use of a prior conviction as an independent aggravating circumstance in ordinary criminal matters when it was also used in the guilt phase for impeachment purposes, see, e.g., N.J.S.A. 2C:43-7, 2C:44-3 (prior conviction used to impose extended term); N.J.S.A. 2C:44-l(e) (prior conviction used to defeat presumption of non-incarceration), because we are here concerned with murder convictions in the context of a prosecution seeking to impose the death penalty.
Further, the admission of the prior murder conviction for the purpose of impeachment violated defendant’s right to due process by forcing him into a dilemma about whether to testify. This Court in State v. Sands, supra, expressly rejected a due-process challenge to the use of a prior conviction. We based that rejection upon the following observation:
“[t]he criminal process, like the rest of the legal system, is replete with situations requiring ‘the making of difficult judgments’ as to which course to follow.
********
It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject-matter of his direct examination. * * * It is not thought overly harsh in such situations to require that the determination whether to waive the privilege takes into account the matters which may be brought out on cross-examination. It is also generally recognized that a *609defendant who takes the stand in his own behalf may be impeached by proof of prior conviction or the like. * * * Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify.”
[76 N.J. at 142-43 n. 4, 386 A.2d 378 (quoting McGautha v. California, 402 U.S. 183, 212-215, 91 S.Ct. 1454, 1469-1471, 28 L.Ed.2d 711, 729-731 (1971)).]
A defendant in a capital-murder prosecution, however, should have enhanced protection with respect to the right to testify in order to defend against the charge of capital murder. That right should not be encumbered by the prospect of the admission of a prior murder conviction that at best could bear only on credibility, not substantive guilt, and, at worst, could seriously be considered as evidence of defendant’s homicidal character.
Under the circumstances of this case, it was fundamentally unfair of the trial court not to take the “option” of admitting only the robbery and two burglaries and excluding the murder conviction for impeachment purposes, or, alternatively, sanitizing the murder conviction in order to limit its use solely to impeachment purposes. These considerations would justify a reversal.
IV.
Defendant contends that, during the guilt phase of the trial, the prosecutor deliberately attempted to make the jury aware of other crimes allegedly committed by the defendant — crimes that had been ruled inadmissible. The Court discounts this issue. Ante at 574-576, 575 A.2d at 830-831. I would rule that the handling of this evidence constituted reversible error.
Prior to trial, the prosecutor made a motion to introduce evidence that an hour after the shooting of Arlene Connors, defendant committed another robbery at a nearby convenience store. The ostensible purpose was to have the store clerk identify the maroon sweatshirt defendant wore that night — the same shirt that revealed no blood stain when subject to analysis. The court denied that motion based on Evidence Rule 55 *610and Evidence Rule 4 grounds. In addition, just prior to the testimony of Mary Claire Pennington, the court cautioned the prosecutor that there was to be no questioning with respect to the second robbery. Nevertheless, such questioning occurred during the examination of Mrs. Pennington. The testimony that was elicited was also mentioned by the prosecutor in his guilt-phase summation.
The prosecutor thus attempted to persuade the jury that defendant was a “professional criminal” by insinuating that he had before used the gun with which he killed Arlene Connors despite the lack of any evidence supporting such a statement. See State v. Stevens, supra, 115 N.J. at 302-03, 558 A.2d 833 (evidence of other crimes means: “once a crook, always a crook”). The prosecutor's tactic was clearly calculated to convince the jury that defendant acted deliberately rather than reflexively, after being startled by the victim’s conduct.
The conclusion is unavoidable that the prosecutor’s conduct both on the cross-examination of Mary Claire Pennington and during his guilt-phase summation was “clearly and unmistakably improper.” State v. Williams, supra, 113 N.J. at 452, 550 A.2d 1172. The Court appears to agree. Ante at 575, 575 A.2d at 830. Nevertheless, the Court contents itself only with the mild observation that “the prosecutor’s conduct was clearly inappropriate,” ibid., and fails to find reversible error. In my opinion the prosecutor’s improper conduct substantially prejudiced defendant’s right to have a jury fairly evaluate the merits of his defense and constituted reversible error.
V.
The record is replete with other instances of prosecutorial misconduct. The record indicates that the prosecutor deliberately attempted to intimidate the jurors into returning verdicts of capital murder and death by insinuating that the law required a conviction for capital murder and by informing them that any other verdict would betray their oaths and render *611them accomplices of the defendant in cowardice, lies, and deceit. The prosecutor stressed defendant’s future dangerousness, and made numerous derogatory references to defendant during both the guilt and penalty phase. The Court notes these remarks. Ante at 572-573, 576-578, 584-585, 575 A.2d at 828-829, 831-832, 835-836. In dealing with defendant’s claim that numerous instances of prosecutorial misconduct constituted reversible error, the Court observes merely that “[bjecause we are reversing both the guilt and penalty verdicts on other grounds, ‘we need not determine the likelihood that the prosecutor’s misconduct led to an unjust verdict,’ ” quoting State v. Williams, supra, 113 N.J. at 446, 550 A.2d 1172. Ante at 565, 575 A.2d at 824. To this it adds: “[T]he prosecutor, if he did not cross the line of impropriety, came perilously close to committing reversible error,” contenting itself with a precatory admonition, “to avoid problems on remand, we offer the following guidelines.” Ibid. I cannot fathom the Court’s timidity on this point. The prosecutorial misconduct clearly warrants reversal of defendant’s conviction and sentence.
The prosecutor strategically and consistently injected into the case the character, background, and social worth of the victim, as well as the grief suffered by her family because of her death. The prosecutor elicited such evidence through the direct examination of Pam and Tommy Connors. Further, the prosecutor made dramatic use of this testimony during the guilt-phase summation, evidencing a calculated plan to engender sympathy for the victim and grieving family members. He suggested that defendant’s attempt to prove he was guilty of felony murder rather than purposeful-knowing murder denigrated the memory of Arlene Connors. He invited the jury to find defendant guilty of purposeful and knowing murder rather than felony murder because Arlene Connors was “flesh and blood,” because she was “loved,” because of the grief that Tommy Connors so obviously experienced as he testified, and because to do otherwise would be to “insult” and “dishonor” *612Arlene Connors’ memory and deprive “Arlene Connors and her family the dignity and the truth that they deserve as human beings.” The jury’s acceptance of defendant’s story, the prosecutor said, would make them accomplices in defendant’s lies and deceit.
This prosecutorial misconduct indisputably was in violation of State v. Williams, supra, 113 N.J. 393, 550 A.2d 1172. As we there noted, the prosecutor’s comments during his opening and closing contained
nothing that would aid the jury in determining the defendant’s guilt or innocence. Rather, the inflammatory statements could likely result not only in unduly prejudicing the jury against defendant but also in confusing it over whether its deliberations should be influenced by the sterling character of the victim. There is no place in a capital case for such confusion and prejudice. The prosecutor’s remarks were clearly improper and should have been stricken from the record and the jury properly instructed to disregard them.
[Id. at 452, 550 A.2d 1172.]
It would also, I believe, violate the principles of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) and South Carolina v. Gathers, — U.S.-, 109 S.Ct. 2207, 104 L.Ed.2d 876, reh’g den., — U.S. -, 110 S.Ct. 24, 106 L.Ed.2d 636 (1989), which prohibit, under the eighth amendment, a capital sentencing jury from considering victim impact evidence irrelevant to the sentencing process.
Further, the prosecutor’s emphasis on defendant’s future dangerousness violated the standards we laid down in State v. Rose. There the prosecutor similarly emphasized the importance of preventing the defendant from committing future acts of violence. 112 N.J. at 519-20, 548 A.2d 1058. The prosecutor also exhorted the jury to impose the death penalty in order to “send a message” to the community. Id. at 520, 548 A.2d 1058. This Court noted that statements by a prosecutor suggesting that the jury should impose the death penalty “in order to protect society from crime” improperly diverts the juror’s attention from the facts of the case before them. Ibid, (citing Ramseur, 106 N.J. at 321, 524 A.2d 188). The Court held:
*613By urging the jury to sentence defendant to death in order to deter him from future acts of violence and to “send a message” to society that conduct such as defendant’s will result in the death penalty, the prosecutor’s arguments focused the jury’s attention on matters extraneous to the aggravating and mitigating factors established by the Legislature to channel the jury’s deliberations in the penalty phase of a capital case. Neither the likelihood that defendant would commit future crimes nor the benefit to society from sentencing to death persons convicted of capital murders is among the aggravating factors set forth in the Act. The emotional force to the prosecutor’s arguments posed a significant risk that the jury would be diverted from its duty to determine defendant’s punishment based on the evidence and in accordance with the trial court’s charge. We conclude that these statements were improper and prejudiced defendant’s penalty-phase proceeding.
[Id. 112 N.J. at 521, 548 A.2d 1058.]
Although the prosecutor in this case did not “send a message to the community,” he clearly urged the jury to sentence defendant to death in order to prevent him from future acts of violence. Such conduct is clearly improper under Rose. See also Darden v. Wainwright, supra, 477 U.S. at 178-80, 106 S.Ct. at 2470-72, 91 L.Ed.2d at 156-57 (Supreme Court implied that comments “that the death penalty would be the only guarantee against a future similar act” were “undoubtedly improper”); Ramseur, supra, 106 N.J. at 321-24, 524 A.2d 188 (prosecutor committed misconduct, “when, in his summation in the penalty phase, he suggested that the jury’s deliberations be influenced by the need to protect society from crime”).
In addition, defendant alleges further misconduct in the prosecutor’s “deliberate” disregard of the trial court’s instruction concerning the scope of information that could be presented to the jury concerning the 1974 murder conviction. Thus, prior to the start of the penalty phase, the court held a hearing to determine what evidence the State would be allowed to submit to prove the “prior murder” aggravating factor. After reviewing the language of the statute, and its legislative history, the court ruled that the State could show the name and age of the victim, and the fact that defendant and the victim were acquaintances, not relatives. The prosecutor asked to be allowed to prove the details of the manner in which death was inflicted, *614but the trial court limited him to a showing that the victim was shot twice with a shotgun.
Thereafter, the prosecutor and defense counsel agreed on a stipulation, which was ultimately read to the jury:
Frank Pennington, as a result of a plea, was found guilty of first degree murder February 19th, 1974, of the murder of Robert Davis, age thirty-three years. The autopsy of Robert Davis revealed that he had been shot with a shotgun in the back of his right thigh and in the right side of his head. Death was caused by the shotgun wound to the head, which lacerated the victim’s brain. Mr. Pennington and Mr. Davis were not related.
Despite the trial court’s ruling explicitly limiting the State’s proofs on this factor, the prosecutor blatantly disregarded this stipulation and said in his penalty-phase opening, that defendant “took a shotgun in Newark, New Jersey, shot a young thirty-three year old man in the back of the leg with that shotgun and then blew away half his face.” Despite the court reprimand that this remark elicited, the prosecutor once again flouted the trial court’s ruling in his penalty-phase summation by saying that defendant “took a shotgun crippled another human being and shot him in the face.” The prosecutor deliberately circumvented the scope of the trial court’s ruling by making the crime appear as brutal as possible so the jury would assign it more weight.
If evidence and commentary are so inflammatory and emotional that it would distract the jury from its proper consideration of the appropriate capital sentencing criteria, in violation of constitutional strictures against cruel and unusual punishment, it would have the same pernicious capacity to warp a jury’s deliberations on guilt. In Williams, we indicated that a prosecutor’s remarks concerning victim impact evidence during the guilt phase of a capital case could “raise serious questions about whether the jury’s judgment was ‘suitably directed and limited’ during the penalty phase.” Williams, supra, 113 N.J. at 453, 550 A.2d 1172. The Court stated that
[i]t is constitutionally required that juries in capital trials reach a verdict and impose a penalty without inordinate exposure to unduly prejudicial, inflammatory commentary. Failure to purge successfully such comments from admittedly *615emotion-charged proceedings creates the unacceptable risk that what will result is the arbitrary and capricious imposition of the death penalty.
[Id. at 453-54, 550 A.2d 1172 (citing Booth v. Maryland, supra, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440).]
That occurred in this case. The Court cautioned prosecuting attorneys in Williams that it was “prepared to take more severe action as required to ensure that capital trials are conducted without resort to improper remarks and questionable tactics by the State’s prosecuting attorneys.” 113 N.J. at 456, 550 A.2d 1172. This is a case for the Court to take “severe action” as warned. The prosecutor’s remarks throughout the trial were “clearly and unmistakably improper” and so egregious as to constitute prosecutorial misconduct warranting the reversal of defendant’s conviction as well as death sentence.
VI.
With these added reasons, I concur in part and dissent in part from the judgment of the Court.