concurring in part and dissenting in part.
A jury convicted defendant, Jacinto K. Hightower, for the murder of Cynthia Barlieb and for several offenses related to the murder. Following the penalty-phase trial, defendant was sentenced to death. The Court now affirms his conviction for murder and sets aside the death sentence.
I would reverse defendant’s conviction as well as death sentence. I would do so because of my continuing belief that the Capital Murder Act, N.J.S.A. 2C:11-3, is unconstitutional as enacted, construed, and applied. I do not in this case see the necessity of repeating or expanding on the reasons that serve to explain that position. See, e.g., State v. Di Frisco, 118 N.J. 253, 284, 571 A.2d 914 (1990) (Handler, J., concurring and dissenting in part). I write separately, however, to explain other points of difference from the Court. These relate to the sufficiency of the homicide instructions, the admissibility of prejudicial hearsay, ineffective assistance of counsel, prosecutorial misconduct, the constitutional validity of aggravating factors c(4)(c) and e(4)(f) and their applicability in this case, and the admissibility of certain evidence proffered in the penalty phase of the trial.
*424I.
I would note as plain error an issue pertaining to the sufficiency of the instructions of the homicide offenses. It is impossible to discern from this record whether defendant was convicted of purposely or knowingly causing death or of purposely or knowingly causing serious bodily injury resulting in death. In State v. Gerald, 113 N.J. 40, 91-92, 549 A.2d 792 (1988), this Court ruled that an identical dilemma required retrial of the guilt phase.
The indictment in this case contained, along with separate counts on felony-murder, robbery, and gun charges, two separate counts that differentiated between the culpability states of purpose and knowledge. Neither the indictment nor the final jury charge, however, required the jury to consider separately whether the homicide entailed the intent to cause death or the intent to cause serious bodily injury resulting in death. Nevertheless, the Court, relying on its decision in State v. Pitts, 116 N.J. 580, 562 A.2d 1320 (1989), rules that no retrial of guilt is required. Ante at 412-413, 577 A.2d at 116. It reasons that the failure to have given a proper charge conforming to Gerald did not constitute reversible error because there was no evidence from which a jury could possibly conclude that defendant’s intention was limited to causing serious bodily injury to his victim. Ibid.
The State’s theory was that the murder was purposeful or knowing rather than a felony murder in which death was an unintended result. Confronted with the State’s rendition of the homicide, the defense was predicated on outright denial that defendant had committed the murder. Accordingly, defendant offered no evidence or argument to counter the State’s assertion that the murder was purposeful or knowing. Further, consistent with the position that someone else committed the murder, defendant did not attempt to show that the murderer had intended to inflict serious bodily injury rather than death. The absence of such evidence is understandable. Prior to the *425clarification and refinement of the law effectuated by Gerald, there was no point in presenting evidence that might differentiate between those forms of murder. Prior to Gerald, either form of homicide constituted capital murder.
The jury ultimately determined that the murder had been intentional, rejecting the death-ineligible option of finding defendant guilty of felony murder. I do not think, however, that the sufficiency of evidence supporting the conviction on the greater charge should determine the necessity of a Gerald charge. Ordinarily, the determinative consideration should be, as the Court held in Gerald, the quantum of evidence supporting the lesser, serious-bodily-injury charge. Cf. State v. Hunt, 115 N.J. 330, 374-77, 558 A.2d 1259 (1989) (conviction of death-eligible charge amply supported by the evidence, combined with the rejection of a death-ineligible alternative, indicated absence of prejudice where court did not instruct on other lesser charges that could have been supported by the evidence).
I believe a defendant in a capital-murder prosecution should have the benefit of the complete range of homicide offenses to be able to formulate and present defenses that can focus on the important distinctions that separate death-eligible homicides from those that are not. Consideration of due process and fundamental fairness impels no less than this. I would thus reverse the guilt conviction to allow defendant the opportunity to prepare and proffer all possible defenses and to adduce evidence, if available, that would require a full-range of homicide offenses to be presented to the jury.
II.
During the guilt phase, Sergeant Fitz-Patrick offered testimony that constituted inadmissible hearsay. The statement, elicited by the State during direct examination, is as follows:
Q Specifically sir, I want to direct your attention to the early morning hours of August the 20th, 1985. Did you have occasion to recall those early morning hours?
A Yes, yes, I do.
*426Q Would you explain to the jury why that is significant to you?
A Well on August 19th, the week of August 19th, we had received information from several people in the Philadelphia area as to who was responsible for the murder of Cynthia Barlieb and based on that information we drove over to Philadelphia to retrieve the handgun that had been used in the murder and it was located at 668 Brooklyn Street in Philadelphia.
At that time we were aware that Jacinto Hightower was the person responsible for the murder and when we were going over to that area to retrieve the gun, we weren’t aware that he was going to be present at the—in the vicinity of the residence____ (emphasis added)
There can be no doubt that that statement constituted inadmissible hearsay. See State v. Bankston, 63 N.J. 263, 307 A.2d 65 (1973). Further, and of greater import, it expressed the State’s opinion that defendant was guilty of the crime charged. See State v. Odom, 116 N.J. 65, 560 A.2d 1198 (1989). Because that testimony related directly to the ultimate issue of guilt of capital murder, it unquestionably rises to the level of reversible error.
In Bankston, this Court determined to be hearsay an officer’s testimony that inescapably implied that a non-testifying informant had told the officer that the defendant would have narcotics in his possession, even though the officer never specifically repeated what the informer had said. The Court was “satisfied” that such hearsay testimony “may well have been the decisive factor which resulted in the guilty verdict” and found that the error was neither harmless nor cured by a cautionary jury instruction. 63 N.J. at 273, 307 A.2d 65.
The hearsay here was infinitely worse than that in Bankston, which only inferentially implicated defendant’s guilt. Fitz-Patrick’s testimony consisted not only of inferred hearsay—relating the testimony of others—it expressed the opinion of the State that defendant was guilty of capital murder. See State v. Odom, supra, 116 N.J. 65, 560 A.2d 1198. The opinion of guilt expressed in the testimony was not confined to or limited by the inferred hearsay of other undisclosed persons. It constituted direct evidence of guilt: “Jacinto Hightower was the person responsible for the murder.” It is simply not possible to say that that evidence, in view of its immediacy and cogency as *427evidence of guilt, did not have a critical effect on the jury’s deliberations and ultimate determination, even though there was extensive inculpatory evidence presented in this case.
The standard of review in a capital case does not predicate reversal on whether any error was decisive or pivotal. See State v. Bankston, supra, 63 N.J. 263, 307 A.2d 65. An error of this character, I submit, cannot in a capital-murder case be assimilated under a traditional assessment of its prejudice as measured against the totality of the evidence. See State v. Bey (I), 112 N.J. 45, 105-23, 548 A.2d 846 (1988) (Handler, J., concurring). The Court adheres to the standard, however, under which reversal is required if there exists a reasonable doubt whether the error contributed to the jury’s verdict. State v. Rose, 112 N.J. 454, 523-24, 548 A.2d 1058 (1988). Even under that standard, the error here is reversible. A direct statement of opinion of the State that defendant is guilty of the crime of capital murder, as charged, engenders such a reasonable doubt.
Moreover, this kind of error pointedly implicates the right to a jury trial. In a capital-murder prosecution, an error of this caliber transcends the barrier created by the conventional standard of review. In no case would we ever countenance a prosecutor or a State law-enforcement witness with direct knowledge of the facts expressing a personal opinion that the defendant is guilty. We go to extraordinary lengths in ordinary criminal cases to preserve the integrity and neutrality of jury deliberations, see, e.g., State v. Ingénito, 87 N.J. 204, 432 A.2d 912 (1981), to avoid inadvertently encouraging a jury prematurely to think of a defendant as guilty, e.g., State v. Simon, 79 N.J. 191, 398 A.2d 861 (1979), to assure the complete opportunity of the jury alone to determine guilt, e.g., State v. Collier, 90 N.J. 117, 447 A.2d 168 (1982), to prevent the court or the State from expressing an opinion of defendant’s guilt, e.g. State v. Vick, 117 N.J. 288, 566 A.2d 531 (1989); State v. Odom, supra, 116 N.J. 65, 560 A.2d 1198, and to require the jury to determine guilt under proper charges no matter how *428obvious guilt may be, e.g., State v. Vick, supra, 117 N.J. 288, 566 A.2d 531. A failure to abide by and honor these strictures fatally weakens the role of the jury, depriving a defendant of the right to trial by jury. We should have no doubts about the integrity of the jury process and the jury’s verdict, particularly a verdict of guilt on capital murder.
The Court dismisses the significance of this error, presumably, because the State’s case was a “juggernaut.” Ante at 395, 577 A.2d at 107. If the prosecution was a juggernaut that moved inexorably to the imposition of the death sentence, the force of its evidence did not relieve the State from giving defendant a fair trial, affording the fullest opportunity to have the jury—and the jury alone—determine guilt. I would not condone this kind of error in a capital-murder prosecution and would reverse on this ground. In any event, I believe this grave error, collectively with other errors, see discussion infra at 428-442, 577 A.2d at 123-130, would justify reversal of defendant’s conviction. See State v. Orecchio, 16 N.J. 125, 106 A.2d 541 (1954).
III.
This ease also involves prosecutorial misconduct. The first witness to appear for the State was David Barlieb, the husband of the victim. During the testimony, the following exchange occurred between Mr. Barlieb and the prosecutor:
Q What was [Mrs. Barlieb’s] birth date, do you know?
A October 30th, 1959.
Q Which would have made her at the time of her death 25, 26?
A Yeah.
This seemingly innocuous exchange took on a new dimension when the prosecutor concluded his closing argument during the guilt phase of the trial with the following remark:
Today is October 30th, 1986. Had it not been for Joey Hightower, ladies and gentlemen, Cynthia Barlieb would be twenty-seven years old today. Today is her birthday.
*429We have said: “[w]here ... the victim’s character has no bearing on the substantive issue of guilt or the penalty to be imposed, the prosecutor may not comment on the evidence in a manner that serves only to highlight the victim’s virtues in order to inflame the jury.” State v. Williams, supra, 113 N.J. 393, 451-52, 550 A.2d 1172 (1988). Further, “[t]o justify reversal the prosecutor’s comments must have been ‘clear[ly] and unmistakably]’ improper, and the improper conduct must have resulted in substantial prejudice to. the defendant’s fundamental right to have the jury fairly assess the persuasiveness of his case.” Id. at 452, 550 A.2d 1172 (footnote omitted); accord State v. Koedatich, 112 N.J. 225, 338, 548 A.2d 939 (1988); State v. Ramseur, 106 N.J. 123, 322, 524 A.2d 188 (1987).
The Court determines that the prosecutor’s remarks during summation concerning the victim’s birthday do not rise to the level of reversible error. Ante at 411-412, 577 A.2d at 115. Despite the State’s contention to the contrary, the jury was not clearly and forcefully instructed that it should not consider remarks of counsel as evidence, nor was the jury explicitly instructed on the need to avoid passion or prejudice in its deliberations. Unnecessary references to the character or circumstances of a victim constitute a recurrent egregious form of prosecutorial conduct. Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987); see South Carolina v. Gathers, --- U.S. ---, 109 S.Ct. 2207, 104 L.Ed. 876, reh’g den., --- U.S. ---, 110 S.Ct. 24, 106 L.Ed.2d 636 (1989). That error occurred early in the trial, in the course of the State’s case in chief, was reiterated during summation, and was reintroduced in the penalty-phase of the trial. It was calculated to influence the jury’s deliberations with respect to guilt as well as to sentence. State v. Pennington, 119 N.J. 547, 599, 575 A.2d 816 (1990) (Handler, J., concurring in part and dissenting in part).
If the prejudicial effect of that misconduct alone, in the face of strong countervailing evidence of guilt, does not appear to require reversal, it must not be overlooked that the error
*430reinforces the prejudice arising from other trial errors. The prejudice from that error, in my opinion, combined with that of others, justifies a reversal of defendant’s conviction.
IV.
Defendant claims ineffective assistance of counsel during the guilt phase of the trial. He argues that the State’s case was not subjected to the “adversarial testing” expected from reasonable attorney performance in that defense counsel maintained a “defeatist” attitude evidenced by the failure to cross-examine zealously certain adverse witnesses; the failure to object to improper questioning, irrelevant or prejudicial evidence, and prejudicial material in the State’s closing argument; and inadequate opening and closing statements. The Court notes and rejects this claim. Ante at 404-412, 577 A.2d at 111-115.
There was no outright concession of guilt by counsel in this case. Compare Magill v. Dugger, 824 F.2d 879 (11th Cir.1987) (defense counsel conceded guilt during guilt phase of capital trial); Francis v. Spraggins, 720. F.2d 1190, 1193 (11th Cir.1983) (defense counsel expresses belief in client’s guilt during guilt-phase summation) (subsequent history omitted); Young v. Zant, 677 F.2d 792 (11th Cir.1982) (defense counsel concedes guilt at guilt phase); Wiley v. Sowders, 647 F.2d 642 (6th Cir.1981), cert. denied, 454 US. 1091, 102 S.Ct. 656, 70 L.Ed.2d 630 (1981). Nevertheless, it is inferable from the record that counsel believed either that his client was guilty or that the jury could reasonably so conclude. This gratuitous push towards guilt was reinforced by the impression from the record that he had distanced himself from his client, underscoring the impression that his client was guilty or was undeserving of a defense.
. That kind of conduct can be relevant in a determination of whether counsel is ineffective. In Goodwin v. Balkcom, 684 F.2d 794 (11th Cir.1982), cert. denied, 460 U.S. 1098, 103 S.Ct. *4311798, 76 L.Ed.2d 364 (1983), the court noted that defense counsel highlighted to the jury their status as appointed counsel. It observed that “reminding a jury that the undertaking is not by choice, but in service to the public, effectively stacks the odds against the accused.” Id. at 706.
The concerns in this case generated by counsel’s indirect concession of defendant’s guilt and his implied unwillingness to represent defendant must be considered in conjunction with other instances of ineffectiveness. In King v. Strickland, 714 F.2d 1481, 1491 (11th Cir.1983), vacated and remanded, 467 US. 1211, 104 S.Ct. 2651, 81 L.Ed.2d 358 (1984), on remand, 748 F.2d 1462 (11th Cir.1984) (subsequent history omitted), defense counsel told the jury during the penalty phase that he was a public defender and that he appreciated the “evil and gross[ness]” of the crime. The court found that counsel disloyalty coupled with a failure to present available character witnesses in mitigation was ineffective assistance of counsel.
Defendant alleges here that expert witnesses should have been cross-examined, particularly the fingerprint expert from the FBI and the medical examiner regarding his opinion concerning the infliction of the victim’s wounds and her position relative to her assailant. Defendant also alleges that counsel had failed to develop testimony illustrating the possible bias and self-interest arising from the animosity between defendant and adverse witnesses Irene Williams and Christopher Forston. The Court, considering these contentions in isolation, is unpersuaded by them, characterizing them as discretionary trial tactics. Ante at 408-409, 577 A.2d at 113-114.
In addition, defendant points to the testimony for the State presented by Barbara Britt, defendant’s landlord in Texas, and by Tina Booker, a secretary at Fort Dix who processed defendant’s return from AWOL status. At trial, Ms. Britt testified that she remembered defendant particularly because he had painted his apartment orange. The trial court overruled defense counsel’s objection to the question whether she had had *432“any other problems” with defendant. The landlady went on to tell of rent-payment difficulties with defendant. Documents associated with that episode and bearing defendant’s handwriting were entered into evidence and served as examples of defendant’s handwriting for expert verification of defendant’s signature on the form memorializing his purchase of the murder weapon. The testimony of Ms. Booker included additional mention of defendant’s lack of cash in July 1985, and featured the submission of a note given to her by defendant that also served as a sample for handwriting analysis. Defendant argues that that testimony contained prejudicial elements that should have been excluded. The Court also discounts those contentions. Ante at 408-409, 577 A.2d at 113-114.
Concededly, Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 657, 694 (1984), seeks to preserve “the wide latitude counsel must have in making tactical decisions____” This constitutes our own prevailing standard in assessing the effectiveness of counsel, State v. Fritz, 105 N.J. 42, 519 A.2d 336 (1987), which we apply to capital-murder prosecutions. State v. Davis, 116 N.J. 341, 356, 561 A.2d 1082 (1989). Which witnesses to cross-examine and the nature of the questions asked fall within this broad zone of attorney discretion. See United States v. Snyder, 787 F.2d 1429, 1432-33 (10th Cir.), cert. denied, 479 U.S. 836, 107 S.Ct. 134, 93 L.Ed.2d 78 (1986); Messer v. Kemp, 760 F.2d 1080, 1090 (11th Cir.1985), cert. denied, 474 US. 1088, 106 S.Ct. 864, 88 L.Ed.2d 902 (1986); United States v. Glick, 710 F.2d 639, 644 (10th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 995, 79 L.Ed.2d 229 (1984). This case, however, does not entail only questionable tactical decisions by defense counsel. Counsel’s overall handling of the defense from the standpoint of strategy was at best marginally sufficient, at worst grossly inadequate. Aside from this dimension of the attorney’s role, counsel’s performance was marked in its totality by an attitude and approach that undermined his client’s case. There was nothing blatant or obvious about defense counsel’s negative conduct *433and attitude towards defendant, but in context counsel did reflect adversely on his client’s cause.
The effect of defense counsel’s performance was that he indirectly conceded that defendant was guilty of murder, suggested that the jury could find defendant guilty of murder, indicated that he was not representing defendant out of choice, and created the impression that defendant had no defenses or was not entitled to a defense and was unworthy of a lawyer’s professional loyalty and services. In this setting, tactical defense decisions lose their independent significance. Defense counsel cannot comport himself or herself in this fashion in representing a client who is fighting for his or her life: Those circumstances demonstrate ineffective assistance of counsel, which combined with and augmented the prejudice arising from other errors occurring throughout the trial and materially contributed to defendant’s conviction.
The difficult task of gauging a defendant’s constitutional entitlement to effective assistance of counsel in a capital-murder prosecution, exemplified in this case, forcefully underscores the need for a more exacting and protective standard for determining the sufficiency of counsel’s performance. I reiterate what I put forward in State v. Davis, supra, 116 N.J. at 413, 561 A.2d 1082:
In sum, I believe the profound difference between capital and noncapital criminal prosecutions compels, as a matter of state constitutional law, the adoption of an enhanced standard by which to measure the competence of counsel and the degree of prejudice sufficient to find a violation of the right to such assistance. We must recognize that counsel representing a defendant in a capital-murder prosecution must demonstrate the competence of a specialist and expert, not simply the skills of an average practitioner. Most particularly, counsel should exhibit this level of competence in the sentencing phase of a capital murder prosecution. Further, prejudice attributable to ineffective as- . sistance of counsel as a basis for reversal should be viewed realistically, fairly, and tolerantly. This is particularly so in the sentencing phase of the trial. Such prejudice should be presumed when counsel’s inadequacy relates to the factors that a jury must consider not only in determining the existence of facts but also in weighing their comparative worth in terms of whether the defendant should live or die.
*434Defendant’s representation in this case, coupled with other error, warrants the reversal of defendant’s conviction.
V.
Defendant argues that the form of the jury instructions was deficient for failure properly or fully to define the aggravating factors charged and, further, that aggravating factors N.J.S.A. 2C:ll-3c(4)(c) and c(4)(f) should not have been charged.
At trial, the jury found the existence of aggravating factor c(4)(c), that “[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim.” The trial court rejected defendant’s motion for a new trial on the basis that the jury verdict and the penalty-phase determination were against the weight of the evidence.
Both defendant and the State agree that this case does not implicate the depravity element of c(4)(c). The dispute centers on whether there is sufficient evidence of defendant’s intention to inflict the sort of extreme physical or mental suffering that indicates torture or aggravated assault.
This Court’s interpretation of c(4)(c) in Ramseur emphasized the question of defendant’s intent: “[Ejxtreme physical or mental suffering must be precisely what defendant wanted to occur in addition to death.” 106 N.J. at 208-09, 524 A 2d 188 (citations omitted). The continued emphasis on intent is evident in this Court’s most recent comments concerning c(4)(c). See, e.g., State v. Pitts, supra, 116 N.J. at 635-37, 562 A.2d 1320; State v. Hunt, supra, 115 N.J. at 387-88, 558 A.2d 1259; State v. Matulewicz, 115 N.J. 191, 199-201, 557 A.2d 1001 (1989).
The State contends that sufficient evidence of such intent exists to place c(4)(c) before the jury. It argues that the testimony of Forston and the medical examiner supports the conclusion that the first two shots fired by defendant exemplify intentional torture or aggravated assault. The State argues that the failure to have killed the victim with the first shot *435shows an intention to terrorize her, an intention further reinforced by defendant’s failure to have sought to open the cash register himself until after having shot the victim a second time. The State points out that the victim remained alive until she was brought to the hospital, and that regardless of the length of time involved, her awareness of her impending death on being shot the first time elevates this murder to the realm of torture and deliberate execution.
Defendant argues that the fact that the first shot barely missed the victim’s heart belies the State’s contention that defendant’s first two shots were intended to inflict suffering rather than to kill. Defendant goes on to argue that all three shots were intended to kill, and that defendant thought the victim was dead when he dragged her into the dairy case. Defendant further points out that there is no evidence of how long or how much the victim suffered or that defendant intended that she suffer. See State v. Hunt, supra, 115 N.J at 413-14, 558 A.2d 1259 (Handler, J., concurring in part and dissenting in part).
It cannot be overemphasized that the State’s argument during trial concerning defendant’s intent in the shooting conflicts directly with its argument on appeal regarding defendant’s intent. During guilt-phase summation, the prosecutor argued that defendant had intended to kill from the moment he entered the store; he stated explicitly that defendant’s first shots were intended to kill or cause serious bodily injury resulting in death rather than to scare. At penalty-phase summation, the prosecutor described the third bullet to the head as the act raising this murder to the level of “vile and inhuman.” On appeal, the State now vigorously contends that the first two shots were the manifestation of vile and inhuman aggravated assault or torture, while only the third shot was intended to kill.
The State’s Janus-faced position illustrates the deficiency inherent in the aggravating factor c(4)(c), both as refined by the Court in Ramseur and as applied. I stressed then and renew *436now my concern that the standard was intractably vague and so malleable that it was susceptible to capricious and inconsistent application. This case exemplifies that concern. A jury’s determination that this homicide involved the intentional infliction of gratuitous pain can be founded only on speculation. It is simply not possible reliably to infer beyond a reasonable doubt from the evidence surrounding the homicide itself that defendant purposely tortured his victim. To allow a jury to conclude, without firmer standards, clearer instructions, and more evidence, that a defendant killed in this manner and should be put to death exceeds arbitrariness and caprice—it is pernicious.
Defendant and the State also differ over the applicability of aggravating factor c(4)(f), whether “[t]he murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by the defendant or another.” In State v. Rose, supra, the Court held that sufficient evidence existed to support a finding of c(4)(f), that defendant shot a police officer to escape detection of possession of a gun. 112 N.J. at 531-32, 548 A.2d 1058. In State v. Di Frisco, supra, 118 N.J. 253, 571 A.2d 914, the Court also ruled that aggravating factor c(4)(f) could be based on evidence that the murder was committed to enable a third person to escape detection for an undisclosed antecedent crime. The Court also addressed factor c(4)(f) elliptically in State v. Moore, 113 N.J. 239, 304, 550 A.2d 117 (1988).
In State v. Monturi, 195 NJ.Super. 317, 478 A.2d 1266 (Law Div.1984), the court held that evidence of post-murder events or offenses could not prove whether murder had been committed to avoid detection for a prior offense. Id. at 326-27, 478 A.2d 1266. In State v. Moore, 207 N.J.Super. 561, 504 A.2d 804 (Law Div.1985), the court discussed c(4)(f) and concluded that a murder executed in conjunction with or as part of a felony could satisfy that aggravating factor if there is “evidence from which the jury could infer that at least one reason for the *437killing was to prevent the victim from informing the police and testifying against the defendants.” Id. at 569-70, 504 A.2d 804.
I strongly believe that the Monturi approach, that “prior” offenses do not include contemporaneous ones, is correct. Without this differentiation, any felony murder becomes a c(4)(f) situation because there will rarely be a case in which it cannot be readily inferred that the murder accompanying the underlying felony was accomplished for the purpose of escaping detection for the underlying felony. See, e.g., People v. Brownell, 79 Ill.2d 508, 38 Ill.Dec. 757, 404 N.E.2d 181 (1980) (subsequent history omitted); State v. Goodman, 298 N.C. 1, 257 S.E.2& 569 (1979).
Moreover, as the majority acknowledges, evidence of actions taken to conceal a murder cannot be used for the purpose of proving aggravating factor c(4)(f), escaping detection. State v. Monturi, supra, 195 N.J.Super. at 326, 478 A.2d 1266 (post-murder events and offenses have little or no relevance to c(4)(f)). The majority correctly observes:
If a killer’s attempts to conceal a murder were evidence of c(4)(f), that factor would apply to almost all murders. That type of conduct does not indicate that the murderer intended to dispose of a potential witness. Thus in this case, such facts as the defendant’s dragging the victim into the freezer and his wiping the blood off the counter tend to prove that he attempted to conceal the murder, not the felony, and thus cannot be used to prove the existence of c(4)(f).
[Ante at 422-423, 577 A.2d at 120-121.]
It must follow that in any felony murder case in which the killer attempts to conceal the murder, it will not be possible to separate or distinguish his intent to conceal the murder from his intent to conceal the felony. If in the former context such an attempt at concealment is overly broad because it would apply c(4)(f) to “almost all murders,” it is surely overinclusive in its potential application to murders committed in the course of felonies.
Unless the standard governing the admissibility and use of evidence to prove c(4)(f) is clarified and limited to mean only a prior offense unrelated to the murder itself, it fails to restrict properly the number of defendants who will be exposed to the *438death penalty under a charge involving felony murder. Inevitably this will engender an intolerable level of inconsistency and randomness. In this case, I would hold the standard unconstitutional as applied and reverse the death sentence on that ground.
VI.
This case also raises significant issues concerning evidence that a defendant may offer in the penalty-phase trial. At the beginning of the penalty phase, defendant sought to have his attorney barred from presenting evidence in mitigation. The Appellate Division found that defendant could not do so, State v. Hightower, 214 N.J.Super. 43, 518 A.2d 482 (App.Div.1986). The trial court nevertheless allowed defendant to request the death penalty through the exercise of allocution.
Defendant now argues that allowing him to request death in this manner constituted reversible error. I agree. This Court has embraced the policy concerns of accuracy, reliability, and proportionality in sentencing that enjoin defendant from preventing the presentation of mitigating evidence. State v. Zola, 112 N.J. 384, 428-32, 548 A.2d 1022 (1988); State v. Koedatich, supra, 112 N.J. at 327-32, 548 A.2d 939. Allowing defendant to face the jury and request death undermines those principles.
In defining the boundaries of permissible statements in allocution, this Court carefully distinguished between defendant’s right to express the wish that his life be spared and an effort by defendant to confuse the situation by making assertions of fact that properly should be subject to cross-examination. In Zola, this Court expressed its belief that “[i]n the face of the State’s forceful pleas in favor of the death penalty, it is difficult to accept the argument that the briefest statement by the defendant would inject a fatal emotionalism into the jury’s deliberations.” 112 N.J. at 431, 548 A.2d 1022. This could be interpreted as expressing confidence in the jury’s capacity to understand and assimilate defendant’s statements. The discus*439sion of allocution in Zola, however, was clearly limited to defendant’s exercise of allocution as a plea for mercy. This simply confirms the ultimate standard of decency and fairness that a civilized society strives to follow in meting out the death sentence. It reflects our allocution Rule for non-capital cases, R. 3:21-4(b), which states that defendants shall be asked prior to sentencing if they wish to make a statement in their “own behalf and to present any information in mitigation of punishment” (emphasis added).
We are committed to allowing only the jury, exercising the conscience of the community, to determine whether defendant deserves to die. That commitment underlay our decisions in State v. Koedatich (I), 98 N.J. 553, 489 A.2d 659 (1984), denying a capital murder defendant’s motion to dismiss the appeal of his conviction and sentence, and in Koedatich (II), supra, 112 N.J. at 332, 548 A.2d 939, in which we held that the failure to present mitigating evidence at the penalty phase of a capital-murder trial constituted reversible error. The determination of a life or death sentence in a capital case is an extraordinarily delicate and sensitive judgment. We have been mindful that the jury’s judgment whether to impose the death penalty must be carefully guided and clearly circumscribed. While normative in effect and reflective of societal values, such a judgment should, to the extent possible, be reasoned, objective, and principled. It is simply intolerable to permit a jury that is poised to determine whether defendant should live or die to be jostled by the defendant’s personal belief that he or she should be put to death. We cannot, on the one hand, insist on structured death-penalty decisions and, on the other, allow a defendant’s desire to die, for whatever reason, destroy that structure. Allowing a defendant to ask to be put to death can taint the integrity of the jury’s decision to execute the defendant, and we can never, in such a case, know whether such a death wish in fact is the critical factor that tips the balance in favor of death. Stated differently, if the jury would not have *440voted to execute the defendant in the absence of defendant’s death wish, a death sentence should not be imposed.
In my view, the Court in Zola correctly extended to capital-murder defendants the right of allocution only to enter a personal plea for mercy. The notion of “mercy” is based on a perception that does not encompass logical relevance to the jury’s penalty decision. Mercy is engrained in a civilized system of criminal justice. It does not follow that because a plea for “mercy” is allowed in capital sentencing determination, a death wish should also be allowed.
Moreover, it is simply not possible to place credence and reliability in such a death wish. The psychological reasons behind such a feeling are often unfathomable, and, more convincing, the unreliability of such a death-wish is exemplified by the fact that defendants often change their minds, e.g., State v. Koedatich, supra. In fact, in this case defendant has changed his mind. Any other dignitary interest that encompasses the right to choose an alternative definition of “mercy” that is at the heart of allocution does not overcome the constitutional mandate that the death penalty be meted out with consistency and uniformity as the ultimate reflection of the judgment of society expressed through the jury verdict.
During the penalty phase, defendant also sought to subpoena a member of the State Parole Board to testify about parole criteria. Defendant intended to tie that testimony to statistical evidence concerning prospects for rehabilitation, future release, and recidivism. The trial court disallowed that testimony as too speculative given the possible changes in parole criteria and also as too distant from the issue of defendant’s character. The trial court also disallowed statistical evidence concerning the non-deterrent effect of the death penalty and arbitrary imposition of the death penalty on minorities. Defendant claims those rulings were error. The Court rejects those contentions. Ante at 416-417, 577 A.2d at 117-118.
*441State v. Davis, 96 N.J. 611, 477 A.2d 308 (1984) (per curiam), articulates the principle of broad admissibility of mitigating evidence during the penalty phase. An underlying requirement is that “the proffered evidence ... must be relevant to one or more of ... three categories, i.e., defendant’s character or record, or the circumstances of the offense.” State v. Gerald, supra, 113 N.J. at 103, 549 A.2d 792; see Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976). That limitation echoes the language of N.J. S.A. 2C:ll-3c(5)(h), the catch-all mitigating factor, and provides definition to this Court’s admonition concerning the inadmissibility of testimony that diverts “the jurors’ attention from the facts of the case before them.” Ramseur, supra, 106 N.J. at 322, 524 A.2d 188.
Sentencing in non-capital cases is informed by a plethora of information that can include considerations governing parole. See, e.g., State v. Lark, 117 N.J. 331, 567 A.2d 197 (1989); State v. Howard, 110 N.J. 113, 539 A.2d 1203 (1988); Parole Bd. v. Byrne, 93 N.J. 192, 460 A. 2d 103 (1983); In re Parole Application ofTrantino, 89 N.J. 347, 446 A.2d 104 (1982). There is no principled reason why such information should be removed from the sentencing determination in a capital case. In determining mitigating factors the sentencer, whether jury or judge, should be able to know and consider what kind of rules will serve to measure the “rehabilitation” of an offender when he or she is eligible for parole and to assess the likelihood that such a defendant will be released. Such information is surely as germane and probative as statistical evidence bearing on the future conduct of defendant. See State v. Davis,. supra, 96 N.J. at 617, 477 A.2d 308.
Some jurisdictions deem testimony concerning parole or commutation as inappropriate. Although introduction of such information may not compromise a defendant’s constitutional rights, California v. Ramos, 463 U.S. 992, 1014, 103 S.Ct. 3446, 3460, 77 L.Ed.2d 1171, 1179 (1983), many courts exclude such testimony because it introduces an element of speculation about *442the future action of individuals other than defendant, resulting in the “interjection of an unquantifiable factor into the deliberation process, thereby rendering the decision arbitrary,” People v. Ramos, 37 Cal.3d 136, 152, 689 P.2d 430, 439-40, 207 Cal.Rptr. 800, 809 (Cal.1984). See Quick v. State, 256 Ga. 780, 786, 353 S.E.2d 497, 503 (1987). Indeed, New Jersey case law prior to N.J.S.A. 2C:11-3 adhered to that view. State v. White, 27 N.J. 158, 177, 142 A 2d 65 (1958). Nevertheless, in State v. Davis, supra, 96 N.J. 611, 477 A.2d 308, and State v. Zola, supra, 112 N.J. 384, 548 A.2d 1022, our Court had clearly taken a different direction—from which it now departs. I would follow the path of Davis and Zola and find that evidence admissible.
VII.
For these several reasons, I would reverse defendant’s conviction of guilt of capital murder and his death sentence. I accordingly concur in part with and dissent in part from the Court’s judgment.
Chief Justice WILENTZ joins in that portion of Point VI which would bar a defendant from seeking a death penalty.
For affirmance; vacated and reversal—Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O’HEARN, GARIBALDI and STEIN—7.
Opposed—None.