concurring and dissenting.
I concur in the Court’s holding in all respects except for the three reasons stated by the Court for vacating the death sentence. I concur in the opinion of Justice LaVecchia finding no reversible error related to the victim-impact testimony or the trial court’s statement to the jury regarding the potential sentences it would impose on the non-capital convictions. I write separately to express the reasons why I believe the decision to vacate the death sentence because of alleged improper or inadequate jury instructions concerning the use of a rejected aggravating factor is misguided. I also disagree with the Court’s response to the Public Defender’s assertion that the jury should have been instructed to disregard evidence admitted to support a rejected aggravating factor.
I.
In order to determine whether the trial court’s instructions were adequate, it is necessary to briefly examine the facts. This case involves a planned robbery and premeditated murder of a pizza delivery person by defendant and Jayson Vreeland. Defendant armed himself with a stolen .45 caliber semi-automatic pistol and gave Vreeland a stolen .22 caliber revolver. The day before the murders, defendant told a friend that he was planning to kill a *564pizza delivery man. Defendant called Tony’s Pizza and requested that two pizzas be delivered to an abandoned house in a remote location, knowing that Jeremy Giordano, an acquaintance of Vreeland, would likely be the delivery person. Defendant and Vreeland then loaded their guns and waited for the delivery. Because of the remoteness of the delivery location, two people were sent to make the delivery. Giordano drove his vehicle while Giorgio Gallara rode as a passenger to deliver the pizzas. As Giordano approached the abandoned house, Gallara rolled down the passenger’s window and asked defendant for $16.50 to pay for the pizzas. Defendant and Vreeland responded by firing their weapons at Giordano and Gallara. When the vehicle stopped after rolling a short distance following the shooting, defendant pulled Gallara and Giordano from the vehicle. Defendant and Vreeland searched both of the victims and the vehicle for money. As defendant and Vreeland were preparing to leave the area, defendant exclaimed, “I can’t believe we did this. I can’t believe we did this.” Vreeland responded, “I love you man,” and they hugged.
Autopsy evidence revealed that Giordano was shot twice in the right side of his neck with defendant’s .45 caliber gun, causing death almost instantaneously. He was also shot twice in the left knee. Gallara was shot in the back of the head with Vreeland’s .22 caliber gun.
Defendant was convicted for the knowing and purposeful capital murder of Giordano by his own conduct. At the penalty phase, the State submitted two aggravating factors: that the murder of Giordano was outrageously or wantonly vile, horrible, or inhumane in that it involved depravity of mind, N.J.S.A. 2C:11-3c(4)(c) (depravity); and that the murder of Giordano was committed while defendant was engaged in the commission of robbery or the murder of Giorgio Gallara, N.J.S.A. 2C:11-3c(4)(g) (felony murder). The jury unanimously found that the murder of Giordano was committed during the commission of a robbery and Gallara’s murder, thus satisfying the e(4)(g) felony-murder aggravating factor. Eleven jurors found the depravity aggravating factor and *565one rejected it; hence, it was not established. Consequently, the jury was restricted to balancing the felony-murder aggravating factor against the established mitigating factors.
II.
Defendant contends that it was plain error for the trial court to fail to instruct the jury that if it did not unanimously find the depravity-of-mind aggravating factor, it could not thereafter consider that rejected factor or the evidence supporting that aggravating factor during its balancing of the remaining felony-murder aggravating factor against the mitigating factors. In Part III.D. of its opinion, the majority analyzes the trial court’s instructions to the jury on the aggravating and mitigating factors and the balancing process. The majority concludes “that the instruction in this ease failed to adequately inform the jury that once the depravity-of-mind aggravating factor was rejected, none of the individual jurors could consider that factor when weighing the felony-murder aggravating factor against the mitigating factors.” Ante at 526, 776 A.2d at 192.
A.
As noted earlier, the jury unanimously found the felony-murder aggravating factor, but it rejected the depravity-of-mind aggravating factor. The majority concludes that the trial court’s failure to instruct the jury not to consider the rejected depravity-of-mind aggravating factor when weighing the accepted felony-murder aggravating factor against the mitigating factors was plain error.
When the jury was instructed at the end of the penalty phase, the trial court had no way of knowing how the jury would ultimately rule on the aggravating factors. The case was tried on the theory that defendant premeditated a robbery and murder of a pizza delivery person. Defendant called Tony’s Pizza after other *566randomly called pizza businesses refused to send a delivery person to the remote location.
The jury was instructed that the death penalty cannot
be imposed unless aggravating factors are first proven, beyond a reasonable doubt, to the satisfaction of all of the jurors, and unless, in the ultimate analysis, the jury finds, beyond a reasonable doubt, that any aggravating factor or factors proven outweighs all of the mitigating factors found to exist in the ease.
Now, aggravating factors are tightly controlled as to what can be an aggravating factor. There’s a rather short statutory list of aggravating factors. And the state, in this case, has alleged that two of them are present. So those two aggravating factors, which we’ll discuss in some detail, are the only two which can be considered in this penalty phase. The jury can’t think of other aggravating factors that it believes might be appropriate. You can’t do that. You’re limited to the two which the state has claimed exist. So you have to focus, when you get to aggravating factors, on whether either or both of them, aggravating factors, exist.
The trial court instructed the jury that aggravating “factors have to do with the circumstances of the crime. [The] most complicated part of [the jury’s] task probably will be to evaluate [the aggravating and mitigating factors] ... to make a unique, individualized judgment about the appropriateness of either the death penalty or imprisonment for this defendant.” The jury was instructed that in New Jersey, “the imposition of the death penalty is rare.... [After the State has proven a capital murder by the defendant], the State has to [establish beyond a reasonable doubt] that there is one of a limited number of aggravating factors.” The trial court also instructed the jury that
you are ... to consider [in the penalty phase] all of the evidence in the case, ... to take a fresh look at all the evidence ... related to ... defendant murdering Jeremy Giordano____[Y]ou should take a fresh look at the evidence in the context of seeing [whether] it establishes the existence of an aggravating factor ... or a mitigating factor.
The trial court further instructed the jury that the State relied almost exclusively on the guilt-phase evidence to prove the aggravating factors while defendant presented a substantial amount of evidence in the penalty phase concerning mitigating evidence which the jury was to consider.
The jury also was given a verdict sheet, which first asked: “Does the murder of Jeremy Giordano involve depravity of mind *567on the part of Thomas Koskovieh in that it was random, entirely pointless and senseless.” In defining the meaning of the depravity alleged in this ease, the judge explained:
Now, the depravity of mind alleged here is that these victims were not victims because either of them had done anything in any way to the defendant, or because they interacted with them in any way which might have, in some sense, triggered or provoked an attack upon them. One of the claims is that the-the victims were purely random victims.
Now, the evidence in this case indicates that there’s a certain sense in which they were not random. There was — there was a kind of methodology to — to trying to have someone show up at the Scott Road house, where the murders took place, but there was a randomness as to, the state alleges, and the evidence can support that finding, depending upon how you analyze it, there may have been a randomness in the sense that the identity of the victims really didn’t matter. It turns out, incidently, that Mr. Giordano was known to Jason Vreeland, and there was some effort made not to have him be the first one to show up, because he was known. But under the State’s analysis, and you have to see whether you agree with it or not, under the state’s analysis and claim the — the killing of Jeremy Giordano was random in a sense that he simply happened to be the person who showed up there, and it could have been Suzy Brown or Joe Smith; that it was simply a randomness of personality. And the legal point of that is that that, in a sense, might make it worse because it — it—it makes it just-just so out of — out of even the normal character of people who commit murders. So there’s that element of randomness that might be present. And you have to see whether you agree it is.
Then it’s also urged that it’s entirely pointless; that there’s no real reason for having murdered Jeremy Giordano; that it was literally entirely pointless; and it was senseless. The same idea. Just didn’t make any sense, didn’t have any point to it.
Now, if you find that the murder was random, entirely pointless and senseless, if you find that unanimously, beyond a reasonable doubt, then you should — you should say that this aggravating factor is present.
I want to point out that one of the things you have to consider in this case is whether this might not have been something that basically was meant to be a robbery, and then turned out to be something else in a way in which the defendant did not calculate that it was. You have to make a fine distinction, I think, and look carefully at the evidence in the ease. If someone started out to do a robbery, and something goes wrong in the course of the robbery where, as I indicated earlier, meets with resistance, where someone tries to run away or the victim counterattacks, something like that, and the situation escalates, and there’s a murder that results, that — that would not be a random, pointless, senseless murder as required by this aggravating factor.
On the other hand, the fact that robbery may have been a motive in inviting the victims to the Scott Road site does not necessarily mean that this may not have been a random, entirely senseless and pointless murder. And there — and the *568reason is this. Forget this ease for a moment. Just put this aside and go to a hypothetical case.
If somebody’s way of committing a robbery is simply to start out by shooting someone, without asking him for his money or asking him for his car, or asking him for his jewelry, whatever you want to get from him, if your — if a defendant’s way to rob somebody is to shoot them first, without warning, and then take the property from — from the — the dead victim, that’s a robbery. But — but that’s not the usual robbery. That’s, in a sense, a robbery preceded by a murder. So even though there — there was a — a motive to commit robbery in that case, the fact that a murder was built in at the start of the robbery could make it not a robbery in terms of this aggravating factor, but could, indeed, make it a random, entirely pointless and senseless killing. So you have to take — shifting to our case — you have to look carefully at what occurred, and how it occurred, and why it occurred to decide whether or not this aggravating factor is present.
The trial court then informed the jury that the second aggravating factor was felony murder. The verdict sheet also inquired: “[D]oes the jury unanimously find beyond a reasonable doubt that the murder of Jeremy Giordano was committed while the defendant was engaged in the commission of (a) the murder of Giorgio Gallara, or (b) the robbery of Giorgio Gallara or Jeremy Giordano.”
After the court concluded its discussion of the two aggravating factors and the fourteen specified mitigating factors plus the catchall mitigating factors, the court discussed how the balancing process was to be conducted. In doing so, the court referred to the verdict sheet that included questions to be answered based on the balancing process. The court informed the jury that it could weigh only the aggravating factor or factors found by it against mitigating factors found to exist. That concept was reinforced by the verdict sheet, which asked: “Does the jury unanimously find, beyond a reasonable doubt, that any aggravating factor or factors proven to exist outweigh the mitigating factor or factors?” The clear implication of the charge, when viewed as a whole, is that the jury could not consider an aggravating factor for any purpose unless it first unanimously agreed that that aggravating factor had been proven beyond a reasonable doubt. The jury was expressly informed that a vote of eleven to one meant a rejection of that aggravating factor, which could not then be considered for any purpose.
*569Depravity as an aggravating factor focuses on the defendant’s state of mind, not the victim’s mental or physical pain suffered. State v. Erazo, 126 N.J. 112, 137, 594 A.2d 232 (1991); State v. Bey, 112 N.J. 123, 173, 548 A.2d 887 (1988), cert. denied, 513 U.S. 1164, 115 S.Ct. 1131, 130 L.Ed.2d 1093 (1995). State v. Ramseur, 106 N.J. 123, 207-08, 524 A.2d 188 (1987), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed.2d 653 (1993). It distinguishes those who murder for a purpose from those who murder for no purpose. Ramseur, supra, 106 N.J. at 209, 524 A.2d 188. In the present case, the depravity was based on the allegation that the murder served no purpose for defendant beyond the pleasure of killing. See id. at 211, 524 A.2d 188. Depravity is frequently viewed as one of the emotions associated with murder. State v. Cooper, 151 N.J. 326, 383, 700 A.2d 306 (1997), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145 L.Ed.2d 681 (2000); Ramseur, supra, 106 N.J. at 211, 524 A.2d 188. Here, as in Cooper, the jury most likely rejected depravity as an aggravating factor because it found another motive for the murder, namely robbery. Indeed, the trial court instructed the jury that this could have been a planned robbery in which the murder would precede the robbery and then property would be taken from the victim’s body.
Unlike the majority, I find that the trial court properly informed the jury that if it rejected one of the two proposed aggravating factors, the jury could not consider that rejected aggravating factor for any purpose. The jury was instructed that among the two aggravating factors involved, a single vote of “no” on either meant a rejection of that factor. The court further informed the jury that if either or both of the aggravating factors were found to exist beyond a reasonable doubt, the jury had to then engage in the process of weighing the aggravating and mitigating factors.
In arriving at the conclusion that the jury was instructed properly, I have examined the jury instructions in accordance with the settled legal principle that the charge must be viewed as a whole rather than as isolated parts. State v. Loftin, 146 N.J. 295, *570374, 680 A.2d 677 (1996); State v. Martini, 131 N.J. 176, 304, 619 A.2d 1208 (1993), cert. denied, 516 U.S. 875, 116 S.Ct. 203, 133 L.Ed.2d 137 (1995). Thus, under the plain error standard, defendant has not demonstrated that the jury instructions were clearly erroneous and caused the jury to reach a verdict it otherwise would not have reached. State v. Jordan, 147 N.J. 409, 422, 688 A.2d 97 (1997). In addition, the evidence that established the felony-murder aggravating factor was overwhelming and that alone precludes the alleged plain error from rising to the level of reversible error.
Contrary to this Court’s decisions in other death penalty cases, the majority is willing to speculate that despite the trial court’s instruction to the jury to weigh only unanimously agreed-upon aggravating factors, some jurors might have considered the rejected depravity aggravating factor when weighing the aggravating against the mitigating factors, In State v. DiFrisco, 137 N.J. 434, 502, 645 A.2d 734 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996), the Court held that even if “submission of [the escape-detection] aggravating factor ... was in error, the error would have been harmless because the jury did not find [that] aggravating factor ... unanimously.”
Even more compelling are the Court’s observations in State v. Rose, 112 N.J. 454, 548 A.2d 1058 (1988). There, the State relied on the depravity-of-mind factor as one of the three aggravating factors submitted to the jury. Id. at 474-75, 548 A.2d 1058. Although the jury rejected the depravity-of-mind factor, the defendant argued that it should not have been submitted to the jury and that he had been prejudiced by its inclusion. Id. at 529, 548 A.2d 1058. We agreed with the defendant that there was insufficient evidence to submit the depravity factor to the jury, but we rejected the contention that its inclusion had prejudiced the defendant. Id. at 531-533, 548 A.2d 1058. In rejecting that contention the Court stated:
[T]he jury’s function in the penalty phase of a capital case is first to assess, independently of each other, the sufficiency of proof of the aggravating and mitigating factors. Its rejection of one such [aggravating] factor neither compels *571nor inhibits its determination that another [aggravating] factor exists. - We also note on this record that there was overwhelming proof of the existence of aggravating factors c(4)(f) and c(4)(h). Hence, it would be highly speculative to conclude that the erroneous submission to the jury of aggravating factor c(4)(c), a factor rejected by the jury, prejudicially affected this jury’s deliberations concerning the remaining aggravating factors, the mitigating factors, and its weighing process.
[Id. at 533, 548 A.2d 1058.]
The same is true in the present case. Even if the jury should have been given an additional instruction in anticipation of the chance that it would reject one of the aggravating factors, the jury was clearly informed that it independently had to assess the remaining aggravating factor it found to have been established. The jury’s rejection of the depravity aggravating factor did not affect its weighing of the felony-murder aggravating factor against the mitigating factors. Hence, I reject the Court’s speculation that one or more jurors mistakenly may have relied on the rejected depravity factor in concluding that the aggravating factor outweighed the mitigating factors.
B.
Defendant also argues as plain error that “insufficient instructions were given to the jurors to inform them that if they did not unanimously find depravity they should not use the evidence supporting the depravity factor against the defendant when it came time to balance aggravating factors and determine the appropriate sentence.... [A] jury must ... be instructed to strike that evidence from its deliberations if the factor is not found unanimously.” The Court provides the following response: ‘We disagree. The evidence related to the depravity-of-mind factor was broadly relevant to the felony-murder factor and, therefore, the jury did not need to concern itself with any limitations on the use of that evidence.” Ante at 526, 776 A.2d at 194.
Although the majority holds that there was no error associated with the trial court’s failure to instruct the jury to disregard evidence probative of a rejected aggravating factor, it does so without providing any analysis of this issue of first impression in *572this Court. I write separately to explain why I believe the novel issue raised by the Public Defender should be rejected.
In this and most capital trials in which a prior murder is not an aggravating factor, the guilt-phase jury also comprises the penalty-phase jury. In most of those cases, the penalty-phase jury is instructed that the State relies on the guilt-phase evidence to establish the aggravating factors in the penalty phase. Generally, the guilt-phase jury hears evidence presented to establish the elements of the capital murder as well as evidence submitted to prove other crimes associated with the capital murder. Here, defendant was tried for burglary of Adventure Sport, Inc.; theft of weapons from that sporting goods store; conspiracy with Vreeland to commit murder, robbery and burglary; purposeful and knowing murder of Jeremy Giordano by his own conduct; purposeful and knowing murder of Giorgio Gallara as an accomplice; robbery of Giordano and/or Gallara; burglary of Giordano’s automobile; felony murder of Giordano and Gallara; possession of a weapon for an unlawful purpose; possession of a weapon without a permit; and hindering apprehension. During the penalty phase, the jury was instructed to rely on the guilt-phase evidence and defendant’s mitigating evidence to determine whether any or all of the aggravating factors had been established. The evidence relied on to establish depravity-of-mind was also relied upon, as the trial court instructed the jury, to establish the circumstances of the crime to aid the jury in making the “unique, individualized judgment about the appropriateness of either the death penalty or imprisonment for defendant.”
In the guilt phase, unless evidence is admitted for a special or limited purpose, see, e.g., N.J.R.E. 105 and N.J.R.E. 404(b), the jury is not informed of the general purposes for which physical and testimonial evidence is admitted. See N.J.R.E. 402. For example, the depravity and the felony-murder aggravating factors, and each of the crimes involved in the guilt phase, except for possession of a weapon without a permit, required the State to prove mental culpability. Ordinarily, it is impossible to isolate the *573evidence presented exclusively to establish a particular aggravating factor.
I would not require the trial court to give the penalty-phase jury a limiting instruction even regarding evidence admitted solely to establish a rejected aggravating factor. Even if such evidence existed, a limiting instruction would be contrary to our law and to the instructions given to the jury in the penalty phase to consider all of the circumstances surrounding the capital murder when deciding whether to impose the death penalty. That is important because in every capital murder, aggravating and mitigating factors are unique, and deathworthiness derives from the totality of the circumstances. Evidence theoretically admitted solely to establish a rejected aggravating factor nonetheless is probative of non-statutory aggravating factors that this Court has permitted a jury to consider as the sentencer. Such evidence also plays a critical role in proportionality review. We have previously stated:
[W]e think that a proportionality comparison that limits itself to the presence of statutory aggravating and mitigating factors fails fully to explain the sense of proportion in the jury verdicts. The statutory aggravating factors do not encompass all of the characteristics that affect the blameworthiness or deathworthiness of persons who commit murders.
[State v. Marshall, 130 N.J. 109, 158, 613 A.2d 1059 (1992), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed.2d 694 (1993).]
Consistent with that principle, we have permitted “nonstatutory aggravating and mitigating factors ... [to be] presented to the sentencing jury [because those factors] are likely to influence a jury’s sentencing decision.” State v. Chew, 159 N.J. 183, 210, 731 A.2d 1070 (1999), cert. denied, 528 U.S. 1052, 120 S.Ct. 593, 145 L.Ed.2d 493 (1999). That principle was reaffirmed in In re Proportionality Review Project (II), 165 N.J. 206, 218-19, 757 A.2d 168 (2000).
Permitting the jury to consider evidence presented solely to establish a rejected aggravating factor does not mean that rejection of that factor becomes meaningless. Rejection of an aggravating factor means that the State has one less statutory basis to support a sentence of death. But that may or may not be beneficial to the State. In his Special Master’s Report to the *574Court concerning our Death Penalty Proportionality Review Project, Judge Baime found “that death-sentencing rates in cases with two or more aggravating factors were lower than for those cases with one aggravating factor.” In re Proportionality Review Project (I), 161 N.J. 71, 88, 735 A.2d 528 (1999) (emphasis added).
I also reject the Public Defender’s argument that a jury should be instructed that if it rejects an aggravating factor, then all the evidence probative of that rejected factor should be disregarded by the jury. Here, as in most cases, evidence admitted during the guilt phase was admissible not only to establish the depravity aggravating factor, but also to establish the mental culpability related to the robbery, the homicide, and the other crimes. Defendant’s level of premeditation in planning and executing his criminal scheme is probative of knowing or purposeful conduct. All of that evidence is relevant to the jury’s sentencing function because “[o]ur system of criminal laws is predicated usually on the imposition of punishment based on the defendant’s intent.... Society’s concern, the community’s concern, the Legislature’s concern, is to punish most harshly those who intend to inflict pain, harm, and suffering — in addition to intending death.” Ramseur, supra, 106 N.J. at 207-08, 524 A.2d 188 (emphasis omitted).
Based on all of the foregoing principles, I am persuaded that the failure of the trial court to give the jury the two jury instructions urged by the Public Defender, based on an assumption that depravity might be rejected as an aggravating factor, did not constitute error, plain or otherwise. See State v. Morton, 165 N.J. 235, 242, 757 A.2d 184 (2000), cert. denied, — U.S. —, 121 S.Ct. 1380, 149 L.Ed.2d 306 (2001); State v. Harvey, 159 N.J. 277, 287-88, 731 A.2d 1121 (1999); State v. Cooper, 159 N.J. 55, 67, 731 A.2d 1000 (1999), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145 L.Ed.2d 681 (2000); Cooper, supra, 151 N.J. at 382, 700 A.2d 306. For all of those reasons, I would not vacate defendant’s sentence of death.
Chief Justice PORITZ and Justice LaVECCHIA join in this opinion.