dissenting.
The Court concludes that the evidence in the record provides a rational basis for the jury to have determined that defendant intended to cause serious bodily injury but not death. Ante at 562, 575 A.2d at 823. Accordingly, the Court reverses defendant’s conviction of capital murder because the trial court did not instruct the jury in accordance with our opinion in State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988). Because the Court remands this matter for a retrial of the capital-murder charge, it does not resolve other issues in both the guilt and penalty phases.
I disagree that the trial court’s failure to instruct the jury in accordance with State v. Gerald, supra, 113 N.J. 40, 549 A.2d 792, constitutes reversible error, and would therefore proceed to determine on the merits the remaining issues raised by defendant. Although there is evidence in the record that would have permitted the jury to convict defendant of aggravated *616manslaughter, N.J.S.A. 2C:ll-4(a), or manslaughter, N.J.S.A. 2C:ll-4(b), crimes on which the jury was specifically instructed, I find no evidence in this record that affords a rational basis for a conviction of serious-bodily-injury murder. In my view, the jury’s verdict necessarily constituted a determination that defendant purposely or knowingly caused the death of Arlene Connors, and any error in the charge was harmless beyond a reasonable doubt.
Many of the facts bearing on the circumstances of the homicide were undisputed. Immediately prior to the shooting the victim was standing behind the bar at Sarge’s tavern, and defendant was seated opposite her on a bar stool. The bar was twenty-four inches wide and forty-two-and-one-half inches high. The murder weapon was a .32 caliber semi-automatic handgun. Its hammer had to be cocked and three safeties released before the weapon could be fired. Nine pounds of pressure were required to pull the trigger and fire a bullet. The bullet entered the victim’s body in the upper, outer quadrant of the left breast. The cause of death was a massive laceration of the right ventricle of the heart, from which the victim bled to death.
Defendant admitted that on the evening of the homicide, he was driving around with his wife, specifically looking for a place to commit a robbery. He selected Sarge’s as a “likely target,” noting that it was in a quiet neighborhood. Once inside, he determined to go through with the holdup because there were few customers in the bar.
The disputed testimony at trial concerned the shooting itself. The victim’s daughter, Pam Connor, testified that at about 1:00 a.m., she heard her mother say to defendant, “it’s the bewitching hour,” an expression she used to inform patrons that it was time to leave. Defendant replied, “bewitch this.” Pam said she heard a “commotion,” glass breaking, and her mother say, “You son of a bitch.” Pam turned to see her mother supporting herself by leaning on the bar with her forearms, holding a broken glass in her right hand, yelling “Pam, Pam he shot me.” *617Defendant was standing directly behind his bar stool, a few feet from the bar, a black gun in his right hand pointing at the victim, his arm extended straight from his shoulder. When interviewed by police officers later that evening, Pam stated that when she turned around she saw her mother throw a glass at defendant, but at trial she denied making that statement. Her trial testimony was corroborated by evidence of broken glass found only on the bartender’s side of the bar.
Defendant’s version was somewhat different. He admitted pulling the gun from his waistband, pointing it at the victim, and announcing a holdup. He said he told Mrs. Connors, “Don’t be a hero. I just want the money * * *. I don’t want to hurt nobody.” Defendant claimed that he then pointed the gun at Pam and told her to get behind the bar. As he turned back to the victim, he heard her curse him and felt “a drink” hit him on the face and a glass hit him on the chest. He said he tried to duck, and as he came back up, he pulled the trigger and the gun went off. Defendant maintained that after he ducked, “as I came back up, you know, like I don’t feel like I really meant to shoot her, I just pointed the gun, and it just went off.”
The events immediately after the shooting were essentially undisputed. Defendant pointed the gun at Pam and ordered her to go behind the bar and get the money from the cash register. Pam took the bills from the register and threw them on the bar. Pam testified that as she moved toward her mother, defendant ordered her back saying he wanted whatever was under the coin tray. Pam complied, then ran to her mother who by this time had fallen face down on the floor. Defendant walked behind the bar, pointing the gun at Pam. He observed the victim, later telling police that he thought he only hit her on the shoulder. According to the police officer who took defendant’s statement, at that point “he didn’t know if he was going to shoot the victim again,” but Pam implored him to “take the money and leave.” Defendant left by the side door and returned to his car. His wife testified that as he entered the car he told her:
*618I just shot a woman. I didn’t mean to do it. I didn’t want to do it. I just shot a woman.
Because the critical issue at trial was defendant’s mental state, the trial court instructed the jury on knowing and purposeful murder, aggravated manslaughter, and reckless manslaughter, as well as on the other indicted offenses. The instructions on manslaughter and aggravated manslaughter permitted the jury to accept defendant’s version of the homicide, that it was committed “recklessly,” N.J.S.A. 2C:ll-4(b), or committed “recklessly * * * under circumstances manifesting extreme indifference to human life.” N.J.S.A. 2C:ll-4(a).
In instructing the jury on purposeful or knowing murder, N.J.S.A. 2C:ll-3a(l) and (2), the trial court, not having the benefit of our decision in Gerald, did not distinguish between purposely or knowingly causing death, and purposely or knowingly causing serious bodily injury resulting in death. Under Gerald, a defendant who intends only to cause serious bodily injury, and not death, cannot be subjected to the death penalty. 113 N.J. at 89, 549 A.2d 792. Thus, the majority concludes that because of the erroneous charge, it is unable to “determine whether the jury convicted defendant of purposely or knowingly causing death or purposely or knowingly causing serious bodily injury that resulted in death.” Ante at 560, 575 A.2d at 822.
Although I acknowledge that there may be an identifiable ambiguity in the jury’s verdict, I cannot agree with the majority’s conclusion that the jury’s verdict could conceivably constitute a determination that defendant intended to cause only serious bodily injury but not death. Ante at 562, 575 A.2d at 823. The evidence in this record is simply inconsistent with such a conclusion. Having rejected aggravated manslaughter and manslaughter as optional verdicts, the jury concluded that defendant’s state of mind was purposeful or knowing, not reckless. No evidence in this record, however, suggests that defendant’s “conscious object” was to cause only serious bodily injury, but not death, to Mrs. Connors, or that defendant was *619“practically certain” that only serious bodily injury, but not death, would result from the shooting. See N.J.S.A. 2C:2-2b(l) and (2) (defining “purposely” and “knowingly”). The evidence established that defendant shot the victim at close range, the bullet entering her body at a point close to the heart. Under these circumstances, and absent any evidence of an intent only to wound, the risk that the victim would die was so great as to be irreconcilable with “an intent to inflict only serious bodily injury with no intention that death be the result * * *.” State v. Gerald, supra, 113 N.J. at 89, 549 A.2d 792. As noted in State v. Long, 119 N.J. 439, 529, 575 A.2d 435, 480 (1990) (Stein, J., dissenting), “one whose ‘conscious object’ was to inflict serious bodily injury but not death, or who wished to be ‘practically certain’ that only serious bodily injury would result, would never attempt to achieve that objective by shooting the intended victim in the chest at close range.”
Our Court has not specifically considered the Gerald holding in the context of a defendant who shoots a victim at close range intending either death or serious bodily injury, but not consciously preferring one result to the other. It is quite conceivable that on this record the jury could have concluded that defendant intended to cause either death or serious bodily injury, being indifferent to which of those consequences actually occurred. In view of the jury’s conclusion that defendant did not fire the gun accidentally or recklessly, it is consistent with the evidence for the jury’s verdict to have constituted a determination that defendant’s “conscious object” was either to kill or to seriously injure Mrs. Connors, or that defendant was “practically certain” that death or serious bodily injury would occur, and that defendant did not consciously distinguish between those results. However, our decision in Gerald does not exclude that state of mind from the crime of capital murder. As we explained in Gerald, our state constitution precludes the imposition of the death penalty on those who act with a “less culpable state of mind, i.e., an intent to inflict only serious bodily injury with no intention that death be the result.” 113 *620N.J. at 89, 549 A.2d 792. As I read Gerald, a defendant whose purpose is to cause either death or serious bodily injury, either being an acceptable result, remains subject to the death penalty.
Acknowledging that the jury charge in this case was not consistent with our holding in Gerald, the question before us is whether, “in the context of the entire case, * * * the error was clearly capable of affecting either the verdict or the sentence.” State v. Bey, 112 N.J. 45, 94-95, 548 A.2d 846 (1988). The issue is a difficult one. The majority’s disposition is justifiable, electing as it does to require that in a capital case a jury must have the broadest range of options before determining whether the defendant’s state of mind was consistent with a conviction for capital murder. I reach a different conclusion because I do not believe that our decision in State v. Gerald, supra, should be read to insulate from a capital-murder conviction defendants whose conduct cannot conceivably be understood to reflect an intent only to injure. As I read this record, the error in the charge could not be prejudicial unless the jury could have concluded that defendant’s intention was only to cause serious bodily injury to Mrs. Connors, but not death. Because there is no rational basis in this record for such a verdict, I cannot join the Court’s reversal of defendant’s conviction for capital murder.
Justice Garibaldi joins in this opinion.
For reversal and remandment — Chief Justice WILENTZ and Justices CLIFFORD, POLLOCK and O'HERN — 4.
Dissenting — Justices GARIBALDI and STEIN — 2.
Concurring in part and dissenting in part — Justice HANDLER — 1.