concurring in part and dissenting in part.
Defendant, Roy Savage, was tried and convicted of the murder of Carolyn Hubband and sentenced to death for the crime. The Court holds that defendant received constitutionally-deficient representation at both phases of his capital trial. I concur with the Court’s judgment on that issue, but would employ a per se analysis. Additionally, I disagree with the Court’s conclusion that in the event of a retrial, the N.J.S.A. 2C:11-3c(4)(c) aggravating factor may be resubmitted to a jury. I write separately to explain my views on these points. Additionally, I reaffirm my position that New Jersey’s Capital Murder Act, N.J.S.A. 2C:11-3 possesses fatal constitutional flaws that *639pervade and contaminate the entire scheme. See, e.g., State v. DiFrisco, 118 N.J. 253, 284-285, 571 A.2d 914 (1990) (Handler, J., dissenting and concurring).
I.
Under the Strickland test for assessing a defendant’s claims of ineffective assistance of counsel there must be an initial showing that defense counsel’s performance fell outside “the wide range of reasonable professional assistance” such that “counsel was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment;” if that showing is made, the defendant must next show that counsel’s incompetence affected the result of the proceeding to a reasonable probability. Strickland v. Washington, 466 US. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We have invoked a similar test under the State Constitution, State v. Fritz, 105 N.J. 42, 519 A.2d 336 (1987), and use that standard to determine the constitutional entitlement to effective assistance of counsel in capital-murder prosecutions. State v. Davis, 116 N.J. 341, 561 A.2d 1082 (1989). Under prevailing constitutional standards, a defendant is relieved of the second showing where the sixth-amendment violation occasioned by counsel’s ineffectiveness is “so likely to prejudice the accused that the cost of litigating [the] effect in a particular case is unjustified.” United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657, 668 (1984). I believe counsel’s ineffectiveness in this case was so horrific that it would be a travesty to require further inquiry to determine whether it was seriously prejudicial.
Defendant was sentenced to die for the crime he committed. His attorney saw him only once before his trial. The Court expressly recognizes the gravity of the professional derogation when a criminal defendant is visited only once prior to trial by defense counsel. It concedes that in most instances that circumstance would warrant the Cronic per se analysis. At 616, 577 A.2d at 466. The Court believes that this is not such a *640case, however, because of assertions by defense counsel that he “communicated with [defendant] at least fifteen to thirty times by telephone.” Id. at 617, 577 A.2d at 466. “[Considering all of counsel’s communications with defendant,” the Court finds “that defendant was not so distinctly prejudiced as to warrant the per se analysis.” Ibid. It explains that “it is not the frequency of consultation that reveals whether a defendant has been effectively denied effective legal assistance [but rather] whether as a result of that consultation, counsel was able properly to investigate the case and develop a reasonable defense.” Ibid.
The Court’s view of counsel’s shortcomings is overly indulgent. I believe that defense counsel’s incompetence in this case amounts to the constructive denial of any representation at the critical preparatory stage of the prosecution and thus compels the Cronic presumption of ineffectiveness. Although the Court relies on the numerous pretrial telephone conversations alleged to have occurred, counsel could not relate the content of those conversations, and in fact could only affirm that he “probably” discussed trial strategy with defendant.
Additionally, the Court’s narrow focus on one aspect of the interaction between counsel and client obscures the broader failings of counsel. In the face of extremely damning evidence, including an inculpatory statement by his client regarding the suitcase found to contain the corpse, defense counsel failed to pursue even the most basic methods of information gathering, alone or with assistance, or to conduct any form of investigation beyond a “few beers” in a Newark bar, which solitary tactic proved fruitless. As the Court recounts, counsel retained no experts or investigators, preferring to “work alone,” could not conceive of discussing the case with defendant’s prior counsel, and dismissed mental-health defenses despite obvious and ominous indications that they would be feasible. At 610-612, 577 A.2d at 463-464.
*641That the “reasonable doubt defense” pursued by counsel at the guilt phase of this case was arrived at by default is undeniable. Without the benefit of any independent assessment or testing of proposed testimony by the State’s witnesses, trial counsel conceived that a viable position was that the State would fail to prove its case beyond a reasonable doubt. Indeed the only affirmative presentation made by defense counsel at the guilt phase was to place before the jury as harmful a piece of evidence as any produced by the State, and vehemently to oppose redaction—Cheryl Hubbard’s third statement detailing defendant’s extensive drug use and an additional probable victim.
Nevertheless, the Court concludes that the deficiencies of counsel’s performance at the guilt phase, entailing no investigation, preparation or formulation of affirmative' strategies, were somehow less than presumptively devastating to defendant’s cause. Yet, as the Court acknowledges,
[i]n a capital trial, where strategy is crucial to the life-or-death determination, the need for adequate pretrial consultation becomes paramount. In the present case, however, defense counsel neglected to make relevant, and in fact critical, inquiries during his pre-trial consultations with defendant.
[At 620, 577 A.2d at 468.]
The record reveals an abundance of attorney lassitude and ineptitude in defending against the State’s case. This is not a case in which counsel was actively assisting defendant, deserving of the Strickland presumption that tactical decisions fall “within the wide range of reasonable professional assistance.” 466 US. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. This attorney failed to make any tactical decisions. See Silverson v. O’Leary, 764 F.2d 1208, 1216 (7th Cir.1985) (“The crucial premise on which the Strickland formula rests—that .counsel was in fact assisting the accused during the proceedings and should be strongly presumed to have made tactical judgments ‘within the wide range of professional assistance’—is totally inapplicable when counsel was absent from the proceedings and unavailable to make any tactical judgments whatsoever”). As Justice Brennan noted in concurrence in Strickland:
*642[Counsel's incompetence can be so serious that it rises to the level of a constructive denial of counsel which can constitute constitutional error without any showing of prejudice. See Cronic, ante, [466 U.S.] at 659-660, 80 L.Ed.2d 657, 104 S.Ct. 2039 [2046-47]; Javor v. United States, 724 F.2d 831, 834 ([9th Cir.] 1984) (“Prejudice is inherent in this case because unconscious or sleeping counsel is equivalent to no counsel at all”).
[466 U.S. at 704 n. 2, 104 S.Ct. at 2073 n. 2, 80 L.Ed.2d at 704 n. 2 (Brennan, J., concurring).]
Where, as here, “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” United States v. Cronic, supra, 466 U.S. at 659, 104 S.Ct. at 2047, 80 L.Ed.2d at 668 (1984); see also United States v. Thomas, 856 F.2d 1011, 1017 (7th Cir.1988) (counsel’s failure to file an appellate brief on defendant’s behalf “meant no representation at all” at critical stage and presumptively prejudiced defendant); Silverson v. O’Leary, supra, 764 F.2d at 1216 (jury deliberations and return of the verdict are critical trial stages; “like the ‘denial of assistance altogether,’ ... [this] constitutes a discrete situation that must be considered at least likely to result in prejudice to the defendant); Javor v. United States, 724 F.2d 831, 833-34 (9th Cir.1984) (where attorney sleeps through substantial portion of trial, “prejudice is inherent ... because unconscious or sleeping counsel is equivalent to no counsel at all.”).
Likewise, with respect to the penalty phase of the trial, the Court examines counsel’s performance under the two-prong Strickland test, concluding that it was deficient and, further, that had he presented “additional information ... regarding defendant’s mental state, there is reasonable probability that a jury would have concluded that ‘the balance of aggravating and mitigating factors did not warrant death.’ ” At 626, 577 A.2d at 471. Again I believe the majority undertakes an unnecessary and unwise second step before concluding that defendant was denied adequate representation.
There is no more critical proceeding from a defendant’s, and indeed society’s, point of view than a capital-sentencing trial. *643Here there was a complete and total forfeiture both in preparation and presentation of defendant’s side, resulting in a breakdown of the structured adversarial capital-sentencing scheme. The Court’s commitment to the heightened level of protection afforded capital defendants is indispensable in assuring the reliability of the determination that eventuates in guilt and the death penalty. Consistent with this commitment, the Court cannot countenance in any respect attorney performance of this caliber.
Again, justification for counsel’s inertia cannot rest on strategic or tactical grounds. The argument made by trial counsel following the guilty verdict demonstrates forcefully the absence of any such tactical justification. Counsel advised the court that he was unready and that the case could not proceed to a second phase because he had not yet been served with a renewed Notice of Aggravating Factors pursuant to the superseding indictment. The trial court rejected that contention, remarking, “it boggles my mind that you have not prepared for the possibility ... of a hearing with respect to the death penalty in a case which is a death penalty case.” Counsel responded that “[i]t certainly [came] as a surprise” to him; when the court asked how many witnesses he planned to offer, defense counsel replied, “none.”
Counsel ultimately used two witnesses, defendant’s wife and mother-in-law, and contended that five mitigating factors justified a life sentence. However, neither witness offered the jury much more than personal opinions of the defendant. Thus, this is not a case in which defense counsel made an informed decision not to present mitigating evidence, see State v. Davis, supra, 116 N.J. at 409-12, 561 A.2d 1082 (Handler, J. dissenting) (discussing cases involving the failure to present mitigating evidence). Here, complete reliance was placed on a perceived technical error made by the State. See Mitchell v. Kemp, 483 US. 1026, 1031, 107 S.Ct. 3248, 3252, 97 L.Ed.2d 774, 778 (1987) (Marshall, J., dissenting from denial of certiorari) (reliance on similar “ace in the hole” strategy to avoid sentencing hearing, *644combined with failure to prepare case in defense, “is not strategic at all; it is incompetent.”). As the Court notes,
[b]y failing to inquire into the very facts that could support his case in mitigation, counsel’s performance “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, supra, 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93. Unlike the attorney in Burger v. Kemp, supra, who investigated defendant’s history, interviewed potential witnesses and examined defendant’s psychiatric reports, Savage’s counsel did not make a “reasonable decision that his client’s interests would not be served by presenting [additional mitigating] evidence.” 483 U.S. at 791, 107 S.Ct. at 3124, 97 L.Ed.2d at 655.
[At 624, 577 A.2d at 470.]
In short, the failure to investigate coupled with the evidence of defendant’s serious mental and emotional disorders and his probable drug use on the night of the murder, as well as a general lack of preparation, obviates the need for any further search for reversible prejudice. In my view, counsel’s failings make it unnecessary to search the record for a reasonable probability of prejudice. Counsel’s desultory representation was tantamount to no representation at all.
This case also demonstrates that the level of competence sufficient for general criminal defense work cannot satisfy the heightened fair-trial standards that apply to capital-murder prosecutions. Capital counsel must be held to an exacting standard of competence. The Court declined to test counsel's performance by a more stringent level of expertise in State v. Davis, explaining:
[W]e do not feel impelled to adopt stricter standards for judging constitutional rights in capital cases than in noncapital cases. To judge capital defendants differently would effectively diminish the rights of noncapital defendants, a disquieting result that we reject. There either is a constitutional violation or there is not. There can be no double standards. At the same time, we have committed ourselves to a searching and stringent review of capital records, which, we believe, coupled with an enhanced application of the harmless error standard, would be “sufficiently flexible to accommodate our heightened concerns and responsibilities in reviewing death-penalty prosecutions.” State v. Bey, 112 N.J. 45, 95; 548 A.2d 846 (1988).
[116 N.J. at 356, 561 A.2d 1082.]
*645Instead the Court simply included within the competence prong of the test “expertise regarding the special considerations present in capital cases.” Id. at 356, 561 A.2d 1082.
In Davis, I registered my belief that capital defendants are constitutionally entitled to advocates of the highest caliber, and that an appellate court must employ “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.” 116 N.J. at 404-05, 561 A.2d 1082 (Handler, J., dissenting).
I believe the “special considerations present in capital cases” demand specialized competence on the part of counsel. Counsel in these cases must provide competence grounded in .experience, training, and professional skill that will suffice to provide a defendant with the full measure of all the heightened protections a capital-murder prosecution engenders. It is not sufficient to define the professional competence required in a capital-murder prosecution as one that is “reasonable” in terms of an average attorney or is measured by the “task to be accomplished.” These definitions carry no intrinsic meaning or objective guidance.
[Id. at 402, 561 A.2d 1082 (Handler, J., dissenting).]
The Court’s confidence that the standard endorsed in Davis will achieve the levels of professional representation demanded in capital proceedings is ill-founded. Certainly the professional challenges in this case, as in all capital-murder prosecutions, were fundamentally different from those in an ordinary criminal case. The task confronting counsel came in the form of a myriad of complexities, substantive and procedural, that characterize virtually all death-penalty trials. They commence with the indictment, pretrial events, jury selection, and continue through two sequential trials that have distinctively different functions yet are predicated on overlapping evidence. In this case, counsel’s ineptitude with respect to the nuances of capital litigation is obvious. An example suffices: during deliberations the jury asked the court whether it had to be unanimous on mitigating factors, to which the court proposed a charge that explained that any juror who found a factor should consider it in the weighing process. After extended objection from defense counsel, the court simply responded “no,” leaving the *646jurors free to assume that a majority would control the outcome on any mitigating factor. Yet in finding defendant’s constitutional rights violated, the Court fails to identify any deficiency in counsel’s performance uniquely related to the fact that this was a death-penalty trial.
Defense counsel’s representation fell far below the rudimentary sixth-amendment guarantees afforded any criminal defendant. In capital cases a finding of incompetence to that degree should be enough to render representation insufficient under the State Constitution, because irrespective of the actual prejudice inflicted on the defendant, his fair trial rights, heightened in death-penalty cases, were infringed. See State v. Williams, 93 N.J. 39, 61, 459 A.2d 641 (1983) (importance of fair-trial requirements heightened in death cases). The American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, reflections of “prevailing norms of practice” and “guides to determining what is reasonable,” Strickland v. Washington, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 694, and referred to by the Court, recognize the distinction between capital and noncapital prosecutions:
The quality of counsel’s ‘‘guiding hand” in modern capital cases is crucial. At every stage of a capital case, counsel must be aware of specialized and frequently changing legal principles and rules, and be able to develop strategies applying them in the pressure-filled environment of high-stakes, complex litigation.
[Commentary to Guideline 1.1.]
In response to these circumstances the ABA recommends that no less than two highly-qualified attorneys be appointed to represent each capital defendant. Commentary to Guideline 2.1.
I do not disagree with the Court’s final conclusion that defendant was prejudiced at the guilt phase of his capital trial because the ample evidence of defendant’s bizarre behavior and serious mental problems, if properly marshalled, would have more than likely resulted in a different verdict. Likewise, the Court concludes, “if defense counsel had presented additional *647information at the penalty phase regarding defendant’s mental state, there is a reasonable probability that a jury would have concluded that ‘the balance of aggravating and mitigating factors did not warrant death.’ ” At 626, 577 A.2d at 471 (citation omitted). I believe, however, the focus of the constitutional analysis in capital-murder prosecutions should remain on defense counsel’s competence and the degree to which it fails to measure up to the exacting levels of proficiency that must be achieved by attorneys protecting persons from the State’s efforts to put them to death.
II.
This case was rendered capital by the State’s allegation of one statutory aggravating factor, N.J.S.A. 2C:ll~3c(4)(c). To prove that factor the State relied on the evidence adduced at the guilt phase. The jury found all three aspects of the factor present—that is, aggravated battery, torture, and depravity. The Court concludes that in the event of a re-conviction of knowing or purposeful murder, the State may re-present aggravating factor c(4)(c) to the jury. The Court explains:
On this record, a properly charged jury could have concluded from Cheryl Hubbard’s and Hausikima Hubbard’s testimony that Carolyn Hubbard’s murder was accompanied by an aggravated battery or torture.
********
On this record, a properly-charged jury might have concluded that the defendant’s dismemberment and transportation of Carolyn Hubbard’s body was an act of depravity.
[At 636, 577 A.2d at 476.]
The evidence the Court finds sufficient to support aggravated battery or torture is as follows: an eyewitness to defendant’s scraping the victim’s ear with a nail file on the morning of the alleged murder, and Cheryl Hubbard’s recollection of hearing a female scream “Hashim, no!” that same morning. The finding of depravity involves post-death mutilation of the victim.
I believe the evidence is insufficient to permit resubmission of any component of the c(4)(c) factor to a subsequent delibera*648tion. As echoed many times in the Court’s capital cases since the factor was narrowed in State v. Ramseur, 106 N.J. 123, 209, 524 A.2d 188 (1987), “the essence of the legislative concern is the defendant’s state of mind.”
“Torture” and “aggravated battery” take on adequate definiteness when the circumstances are described in terms of defendant’s intention, and the requirement that defendant intentionally inflicted extreme physical or emotional pain eliminates the need for a distinction between the two statutory terms.
The Court’s construction was not advisory—it was constitutionally compelled. Therefore no finding of sufficiency can be made without evaluating the proofs surrounding intent. As to aggravated battery or torture, here there was none. Surely our system of jurisprudence requires that such a failure of proof on the State’s part inure to the benefit of the defendant. “[A] court ... should not [ ] instruct a jury to return a verdict that would clearly be unwarranted by the record.” State v. Crisantos (Arriagas), 102 N.J. 265, 273, 508 A.2d 167 (1986). Likewise to allow the State to attempt to produce new evidence runs counter to “fundamental double jeopardy principles.” State v. Biegenwald, 106 N.J. 13, 51, 524 A.2d 130 (1987).
Similarly, this record discloses that defendant’s clear purpose in dismembering Carolyn Hubbard’s body was to dispose of it without being detected. As Cheryl Hubbard stated, defendant asked her what he should do with the body, to which she responded, “put it in a box and take it somewhere.” He then carted it around in a suitcase before abandoning it at the Newark projects. That purpose contradicts the definition of depravity of mind consisting of post-death mutilation inflicted for self-pleasure. See State v. Davis, supra, 116 N.J. at 395-400, 561 A.2d 1082 (Handler, J. dissenting) (some nexus between homicidal act and mutilation must be established).
It is unprincipled for the Court to expose a defendant to death in the absence of evidence that could legitimately enable a jury to determine beyond a reasonable doubt that the killing was accompanied by an intent to torture or a depraved mental state. Without such evidence, a jury’s determination of punish*649ment is inherently speculative, its death sentence wholly unreliable.
III.
I would reverse defendant’s conviction and sentence and remand for a noncapital retrial.
For reversal and remandment—Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN—6.
Concurring in part; dissenting in part—Justice HANDLER—1.