dissenting.
No one wants to see cases like this drag through the system for years. The families of the victims relive their suffering as long as the case goes on. In my view, the trial court wisely *544declined to create a problem of constitutional dimension in this case. We would be well advised to let its decision stand.
Defendant has been convicted of a cruel and vicious murder. The question on his appeal is whether he may be subjected to a second trial on elements of capital murder that a former jury resolved in his favor. The majority says that he may be twice tried for these elements of capital murder because in the prior proceeding “a jury charged with deciding the existence of several aggravating factors might not necessarily exhaust its deliberative capacity in an effort to achieve unanimity on all such factors if it should determine that one aggravating factor, on which it does unanimously agree, outweighs the mitigating factors beyond a reasonable doubt.” Ante at 525-526, 572 A.2d at 628.
To begin with, this is an incorrect understanding of how we expect juries to proceed in capital cases. We explained in State v. Bey (II), 112 N.J. 128, 548 A.2d 887 (1988) that:
In the sentencing phase, the jury is obliged to determine, first, the existence of any aggravating factor or factors. The jury must find that at least one aggravating factor exists before the death penalty may be imposed. If the jury “finds that no aggravating factors exist * * * the court shall sentence the defendant pursuant to subsection b,” which requires a term of imprisonment. If, however, the jury finds an aggravating factor exists, then it must determine whether any mitigating factors also exist. After making fact findings about the “existence or non-existence” of aggravating and mitigating factors, the jury must then make the normative judgment whether the aggravating outweigh the mitigating factors beyond a reasonable doubt. That decision, in effect, determines the appropriateness of the death penalty for the defendant. [Id. at 158, 548 A.2d 887.]
Besides, this principle of abstract reasoning may have relevance to certain social sciences or other fields of public policy in which finality is not an end in itself. A jury verdict, however, is not just another decision that may be reviewed and revised if its premises are questioned.
We have always accorded the most solemn significance to a jury verdict. No judge may command that a verdict be entered. No judge may allow partial verdicts with reconstituted juries. No jury may be questioned about the reasons for its verdict.
*545It is not that we value the truth-seeking process the less, but that we value the jury the more. Hence, we would never apply the majority’s principles to any other setting. An example will suffice. If a jury convicted a defendant of non-capital murder but acquitted him of an underlying related felony, such as a rape or robbery, we could never retry him for the underlying rape or robbery on the theory that the' jury had not “exhaust[ed] its deliberative capacity.” Ante at 525, 572 A.2d at 628. Is it not ironic, then, that we can say that “[imposition of the penalty of death is ‘profoundly different from all other penalties,’ * * * and, as such, requires more, not fewer, procedural safeguards * * State v. Biegenwald, 96 N.J. 630, 639, 477 A.2d 318 (1984) (quoting in part Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990 (1978)), and yet not apply those safeguards here?
The answer may be made that a capital sentencing verdict is different because it is not a unanimous acquittal in the same sense that a guilt acquittal is. But a non-unanimous verdict in a capital case is a verdict in every sense of the word. Our decisions in State v. Bey (II), supra, 112 N.J. 123, 548 A.2d 887, and State v. Hunt, 115 N.J. 330, 558 A.2d 1259 (1989), have made that clear.
In many cases, an aggravating factor of murder is self-proving, e.g., in the felony-murder situation, N.J.S.A. 2C:ll-3c(4)(g), or the killing of a police officer, 2C:ll-3e(4)(h), as in State v. Rose, 112 N.J. 454, 548 A.2d 1058 (1988). A conscientious jury will almost invariably find such an aggravating factor unanimously to exist. The jury trial on any remaining aggravating factors may be critical in deciding whether the defendant will live or die. A non-unanimous jury verdict on any other aggravating factor would be a verdict in favor of such a defendant. His or her life would have been put at risk once for violation of that factor.
Can a defendant be twice put, in jeopardy on the same elements? The goal of all death-penalty jurisprudence is to *546assure “ ‘reliability in the determination that death is the appropriate punishment.’ ” Gardner v. Florida, 430 U.S. 349, 364, 97 S.Ct. 1197, 1208, 51 L.Ed.2d 393, 405 (1977) (White, J., concurring) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976)). It is hard to assert with persuasion that we are advancing “reliability in the determination that death is the appropriate punishment” when one defendant may receive the benefit of a non-unanimous verdict and live, but another may not, depending on the presence, vel non, of another aggravating factor in the case.
The majority has made an ad hoc determination that this defendant should not receive the benefit of a favorable verdict on some, but not all, of the elements of capital murder. The Court understandably wishes this defendant to face the full measure of punishment for this murder. We have an intuitive sense that the nearly unanimous eleven-to-one vote finding the presence of the N.J.S.A. 2C:ll-3e(4)(c) “outrageously or wantonly vile” factor should allow retrial of that factor. But our Court must use more than intuition; it must use principles of consistent application. What if, in another case, other aggravating factors used to premise a death sentence were found legally wanting, see, e.g., State v. Biegenwald, 106 N.J. 13, 51, 524 A.2d 130 (1987) (foreclosing c(4)(c) factor based on aggravated battery/torture), and the defendant had won an eleven-to-one vote in his favor on the absence of any other factors? Would we say that a defendant whose appeal set aside the factors relied on by the jury could be retried on the factors found in his favor? I should think not.
Under our statute, the aggravating factors are essential elements of the crime of capital murder. State v. Biegenwald, supra, 106 N.J. at 59-60, 524 A.2d 130. Without aggravating factors, a homicide is not capital murder. Under double-jeopardy principles, acquittal of an essential element of a form of homicide, e.g., knowledge or purpose, forbids retrial of that element of the homicide. See State v. Grunow, 102 N.J. 133, 149, 506 A.2d 708 (1986). When a “slate [is] wiped clean” on *547appeal, ante at 520, 572 A.2d at 625, the defendant in a non-capital case never loses the benefit of a favorable jury verdict. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). How then can the majority avoid application of those principles to this proceeding? Constitutional guarantees apply to the sentencing phase of death-penalty proceedings in states in which death-penalty statutes require “all of the hallmarks of a full-blown criminal trial.” Note, “Fairness to the End: The Right to Confront Adverse Witnesses in Capital Sentencing Proceedings,” 89 Colum.L.Rev. 1345, 1365 (1989) (citing Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981) (double-jeopardy guarantees extend to trial-type capital sentencing proceeding)).
Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), does not deal with a sentencing proceeding like New Jersey’s. Under Arizona law, capital sentencing is reposed in the judge. In Poland, the court had returned an advisory finding on the aggravating factor based on an interpretation of Arizona law. Factually, it found the factor to exist. As a matter of law, the court questioned whether killing to steal was an aggravating factor under the Arizona statute. The case involved a bank robbery. The question was whether the homicide was “killing for pecuniary gain” as opposed to the classic example of the hired gun. Poland v. Arizona is not, then, a clear case of a jury’s factual rejection of an aggravating factor. But, more important, Arizona’s capital sentencing scheme is not like New Jersey’s. Our Legislature, in order to channel the discretion of sentencing juries, has established statutory aggravating factors that a jury must unanimously find to exist beyond a reasonable doubt. State v. Bey (II), supra, 112 N.J. at 159, 548 A.2d 887; N.J.S.A. 2C:11-3c(2)(a).1 A 1985 amendment to the Act, N.J.S.A. 2C:11-3f, now requires:
*548Prior to the jury’s sentencing deliberations, the trial court shall inform the jury of the sentences which may be imposed pursuant to subsection b. of this section on the defendant if the defendant is not sentenced to death. The jury shall also be informed that a failure to reach a unanimous verdict shall result in sentencing by the court pursuant to subsection b.
“In a capital case, unlike the ordinary criminal prosecution, jurors need not reach a unanimous verdict. Thus, a decision not to agree is a legally acceptable outcome, which results not in a mistrial, but in a final verdict.” State v. Hunt, supra, 115 N.J. at 382-83, 558 A.2d 1259 (citing State v. Ramseur, 106 N.J. 123, 308, 524 A.2d 188 (1987)).
Sooner or later, this federal double-jeopardy question will have to be resolved. If we judge wrongly on this issue, it may well result in another capital retrial, prolonging yet again the final disposition of this matter. There are remaining statutory aggravating factors in this case, including two prior murder convictions (the Florida murder and another New Jersey murder, see State v. Koedatich, 112 N.J. 225, 238 n. 1, 548 A.2d 939 (1988), cert. denied, — U.S.-, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989)), and the underlying felonies. Those factors will enable the jury to make a reliable sentencing determination.
Justices CLIFFORD and HANDLER join in this opinion.
For reversal — Chief Justice WILENTZ and Justices POLLOCK, GARIBALDI and STEIN — 4.
Dissenting — Justices CLIFFORD, HANDLER and O’HERN — 3.
State v. Biegenwald, supra, 106 N.J. at 53, 524 A.2d 130, established this principle in reliance on a later amendment to the Act, which we believed should apply to cases on appeal.