concurring in part and dissenting in part.
In this case defendant was convicted of the purposeful murder of Seth Lemberg, in violation of N.J.S.A. 2C:ll-3a(l), and the unlawful possession of a weapon for an illegal purpose, contrary to N.J.S.A. 2C:39-4(a). Following a penalty-phase proceeding on the capital-murder conviction, defendant was sentenced to death. The Court finds error in both the guilt phase of the trial and in the penalty proceeding, reversing the conviction and death sentence, and remanding for a new trial. I . concur in its judgment.
I write separately to deal more fully with several important issues. These relate to the jury instructions concerning the homicide itself; the admissibility of evidence during the guilt phase; the prejudicial effect of prosecutorial misconduct; and the sufficiency of the evidence of a sadistic or senseless killing as support for the aggravated factor, c(4)(e).
In addition, I repeat my strong belief that the Capital Murder Act, N.J.S.A. 2C:11-3, is unconstitutional as enacted, construed, and applied. In view of the evolving nature of death-penalty jurisprudence, I feel that this position remains tenable. See, e.g., State v. DiFrisco, 118 N.J. 253, 284, 571 A.2d 914 (1990) (Handler, J., concurring in part and dissenting in part). These reasons impel me to record my dissent from the Court’s judgment.
*240I.
The Court rules in this case, as in State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988), that the jury convicted this defendant without specifying, or being asked to specify, whether he was guilty of knowing or purposeful murder or of serious bodily injury resulting in death. I agree with the Court that because a rational basis existed in the record for a finding “that defendant’s purpose was to inflict serious bodily injury rather than death,” his conviction for murder must be reversed. Ante at 212, 574 A.2d at 960.
I also agree with the Court that the charge on purposeful murder was fatally flawed. The Court aptly defines the problems engendered by inconsistent charges, some correct and some incorrect, and by the sequence in which greater- and lesser-included offenses were presented to the jury for its determination.
The incorrect parts of the charge advised the jury that once a purposeful killing was shown it was murder and once murder was found no consideration of the lesser-included offenses was required. The Court criticizes the charge “concerning purposeful murder” because it “failed to make clear that if there is evidence of passion/provocation, a jury cannot convict for murder without first finding that the defendant did not kill in the heat of passion.” Ante at 222, 574 A.2d at 965. This error undercut the defendant’s right to have the jury properly consider all defenses to the murder charge. The trial court’s charge also suggested that certain offenses need not be fully considered. The Court notes that the trial court’s charge included the instruction that the jury “need not consider the lesser-included offenses of aggravated manslaughter or manslaughter unless it determined that the State had failed to prove beyond a reasonable doubt the offense of murder.” Ante at 222, 574 A.2d at 965. The Court correctly infers that “[t]hat instruction had the potential to foreclose jury consideration of whether passion/provocation should reduce an otherwise purposeful kill*241ing from murder to manslaughter.” Ibid. I agree with the Court’s conclusion:
[D]espite the evidence of passion/provocation in the record, the jury may have convicted defendant of murder simply by finding that “it [was] his conscious object to cause death or serious bodily injury,” without having considered the possibility of a manslaughter verdict. That finding of a purposeful killing alone is insufficient to convict a defendant of murder when there is evidence of passion/provocation; the jury must find both purposeful homicide and an absence of passion/provocation. [Ibid.]
The Court implicitly — and, in my view, properly — rejects the State’s contention that there was no reversible error in the charge as a whole because the sentencing verdict sheet gave equal weight to the three potential verdicts under Count One and because parts of the charge correctly stated the law. While parts of the charge were correct and the verdict sheets did not repeat the error of requiring a jury to find defendant guilty of murder for any purposeful killing, it is not clear that these correct instructions adequately countered the repeated errors in the charge. See Francis v. Franklin, 471 U.S. 307, 322, 105 S.Ct. 1965, 1975, 85 L.Ed.2d 344, 358 (1985); see also Cabana v. Bullock, 474 U.S. 376, 383 n. 2, 106 S.Ct. 689, 695 n. 2, 88 L.Ed.2d 704, 714-15 n. 2 (1986) (a second and correct instruction that was contrary to the first instruction did not cure the error created by the erroneous first instruction).
This flaw in the trial court’s charge overlaps another deficiency, that relating to the substantive standard defining legal provocation as a defense to intentional murder. At trial, defense counsel proposed that the theory of provocation based on State v. Guido, 40 N.J. 191, 191 A.2d 45 (1963), should be included within the instructions to the jury. This case, in my view, justifies the need, particularly in a capital-murder prosecution, to recognize a broad standard of passion/provocation as a defense to purposeful or knowing murder. The Court now does so.
Recently this Court expansively interpreted the standard defining passion/provocation. State v. Mauricio, 117 N.J. 402, 410-13, 568 A.2d 879 (1990); cf. State v. Crisantos (Arriagas), *242102 N.J. 265, 508 A.2d 167 (1986) (the evidence must minimally disclose a rational basis for a jury to find passion/provocation). The evidence in this case generated inferences that defendant acted in an emotional state actuated by provocation relating to his paramour, the victim’s wife. Our standard of legal passion/provocation, particularly in a capital-murder case, should recognize the relevance of such evidence. This is, moreover, consistent with the philosophy that in a capital-murder prosecution the jury should be presented with all homicide offenses reasonably suggested by the evidence.
Defendant also argues that the sequential order in which the trial court told the jury they must consider the offenses constituted reversible error. Defendant contends that the trial court’s instruction that the jury must first consider murder and then the two forms of manslaughter constitutes reversible error because it did not reflect the statutory scheme for unlawful killings in New Jersey. The jury, according to defendant, should not be required to consider these different forms of unlawful killings in a consecutive order simply because the two types of killings are distinguishable, but rather the jury should consider reckless and aggravated manslaughter together, and purposeful or knowing murder with passion/provocation manslaughter. The issue is further complicated by the addition of so-called serious-bodily-injury murder, as defined under Gerald, which partakes of some of the aspects of purposeful or knowing murder and some of the aspects of manslaughter. I believe that the trial court’s requirement that the jury consider the differing unlawful killing charges in a strict hierarchy constituted reversible error. As the case was tried, this charge induced or coerced the jury’s deliberations by foreclosing or inhibiting adequate consideration of lesser-included offenses and deprived defendant of his right to have the lesser-included offense of passion/provocation manslaughter fully and fairly considered.
The State refers to out-of-state and federal cases, in which courts have approved of such a hierarchical charge, see 2 Devitt *243& Blackmar, Federal Jury Instructions section 18.05, which sets up a strict priority according to which the jury must first find defendant not guilty of the greater offense in order to turn to the lesser offenses. See, e.g. United States v. Harvey, 701 F.2d 800, 806 (9th Cir.1983), reh’g den., 711 F.2d 144 (9th Cir.1983); United States v. Moccia, 681 F.2d 61, 64 (1st Cir. 1982); Pharr v. Israel, 629 F.2d 1278, 1281-82 (7th Cir.1980), cert. den. 449 U.S. 1088, 101 S.Ct. 880, 66 L.Ed.2d 815 (1981); State v. Wussler, 139 Ariz. 428, 679 P.2d 74 (1984); People v. Padilla, 638 P.2d 15, 18 (Colo.1981); People v. Boettcher, 118 A.D.2d 65, 503 N.Y.S.2d 810, 813-15 (App.Div.1986), aff'd 69 N.Y.2d 174, 513 N.Y.S.2d 83, 505 N.E.2d 594 (1987). In these cases, also noted by the Court, ante at 222-223, 574 A.2d at 965-966 the courts approved instructions which required the jury first to consider the greater offense and either acquit on that offense or be unable to agree on the greater offense before considering a lesser offense. Cf. People v. Mays, 407 Mich. 619, 288 N.W.2d 207, 211-12 (1980) (instructions cannot foreclose a jury’s consideration of lesser included offense if they have not reached agreement on the greater offense because that requirement has coercive effect); State v. Ogden, 35 Or.App. 91, 580 P.2d 1049, 1052 (1978) (same).
We have consistently recognized that a jury should not be either directly or subliminally conditioned to reach a particular verdict. State v. Simon, 79 N.J. 191, 206-08, 398 A.2d 861 (1979); see State v. Collier, 90 N.J. 117, 122-23, 447 A.2d 168 (1982). The hierarchical charge has a clear capacity to encourage the jury to determine guilt because the jury must acquit before turning to lesser-included offenses. Because the jury must first find a defendant not guilty of the greater offense, such a charge may coerce the jury and limit its freedom to consider lesser-included offenses. The Court acknowledges but does not resolve this serious problem. It merely observes:
We need not now rule on either the adequacy of the model charge in general or the merits of sequential charges in all cases. To be sure, a number of jurisdictions condone the use of “acquittal first” deliberations. [Citations *244omitted.] Juries are consistently told not to consider the lesser-included offenses unless they first find defendant not guilty of the greater offense. See, e.g., State v. McAllister, 211 N.J.Super. 355 [511 A.2d 1216] (App.Div.1986) (discussing jury-verdict sheet). * * * Indeed, there is nothing inherently wrong with the model charge for purposeful murder. Absent evidence of passion/provocation, sequential charges usually provide a workable framework for orderly deliberations. [Citation omitted.]
In murder cases in which there is evidence of passion/provocation, however, a court must take additional care in issuing clear instructions. [Ante at 223, 574 A.2d at 965-966.]
In capital cases the court should not only give the jury the most complete range of verdict choices covering possible homicide offenses, but also assure it the widest opportunity to determine guilt and decide which offense, if any, is justified by the evidence. See, e.g., State v. Rose, 112 N.J. 454, 566, 548 A.2d 1058 (1988) (Handler, J., dissenting). The hierarchical charge goes against this grain. The hierarchical submission of offenses under which the jury is required to find defendant not guilty of a greater offense before considering lesser-included offenses serves to narrow the range of available choices and reduce the capacity to determine guilt. People v. Mays, supra, 407 Mich. 619, 288 N.W.2d 207, 211-12; State v. Ogden, supra, 35 Or.App. 91, 580 P.2d 1049,1052. This concern is critical in a capital-murder case where a determination of the greater offense, intentional murder, will automatically expose defendant to the death penalty. If the jury has not fully and objectively been able to reach this conclusion, because its deliberations on lesser-included offenses have been short-circuited, the defendant will have been unfairly brought closer to a death sentence. The court should by its instructions give the jury an order in which offenses are to be considered but specifically allow the jury to consider lesser offenses before it has determined guilt on the greater offense.
II.
Defendant argues that four pieces of evidence seized by police during their search of 27 Morsell Place should not have been admitted because they were not relevant, and if relevant *245were impermissible character evidence and/or substantially more prejudicial than probative. The four challenged pieces of evidence are a Soldier of Fortune magazine, silencer instructions, a gun catalog, and a target.
State of mind was a relevant issue with respect to the charge of purposeful murder under N.J.S.A. 2C:ll-3a(l) because the defendant was alleging intoxication prevented him from forming this mental state and presented evidence that could have supported a verdict of reckless or aggravated manslaughter. Defendant’s state of mind was also at issue with respect to the defense-of-others claim under N.J.S.A. 2C:3-5. The Court holds that the four seized pieces of evidence (with the possible exception of the target) were not sufficiently relevant to the defendant’s state of mind and, further, were used impermissibly to prove that defendant had an evil character. Ante at 220-221, 574 A.2d at 964. The Court rules that it was error to admit this evidence. Ibid. I concur in this result.
In the guilt-phase summation, the prosecutor focused upon the magazine, the target, the silencer instructions, and the catalog ostensibly to argue that they showed defendant’s state of mind at the time of the murder. The prosecutor stressed that the main theme of the magazine was “weapons and how to use them,” pointed to the advertisements that defendant had circled, and then noted the silencer instructions and how silencers were used to kill without detection, in arguing that these demonstrated that defendant was “mentally prepared to kill.” According to the State, that evidence was consistent with defendant’s attitude in general: feeling “jilted by society,” he “was against all [its] rules.”
It seems clear that, notwithstanding the State’s contention that the prosecutor was commenting upon defendant’s state of mind, the prosecutor was actually using the evidence to portray defendant as an evil person who, consistent with this character, killed another. Admission of evidence for that purpose is plainly in violation of Evidence Rule 47. Furthermore, it *246emerges rather starkly that the State’s use of this evidence was to prove “disposition to commit crime or civil wrong as the basis for an inference that he committed a crime or civil wrong on another specified occasion.” Evid.R. 55.
The case of People v. Zackowitz, 254 N.Y. 192, 172 N.E. 466 (1930) is instructive. There, Justice Cardozo noted that, “[a]t trial the vital question was the defendant’s state of mind at the moment of the homicide.” Id. 172 N.E. at 467. The court found that the admission of certain evidence constituted reversible error, stating:
Almost as the opening of the trial the people began the endeavor to load the defendant down with the burden of an evil character. He was to be put before the jury as a man of murderous disposition. To that end they were allowed to prove that at the time of the encounter and at that of his arrest he had in his apartment, kept there in a radio box, three pistols and a tear-gas gun. There was no claim that he had brought these weapons out at the time of the affray, no claim that with any of them he had discharged the fatal shot. He could not have done so, for they were all of different caliber. The end to be served by laying the weapons before the jury was something very different. The end was to bring persuasion that here was a man of vicious and dangerous propensities, who because of those propensities was more likely to kill with deliberate and premeditated design that a man of irreproachable life and amiable manner. * * * In such circumstances, ownership of the weapons, if it has any relevance at all, has relevance only as indicating a general disposition to make use of them thereafter, and a general disposition to make use of them thereafter is without relevance except as indicating a “desperate type of criminal,” a criminal affected with a murderous propensity. [Id. at 467-68.]
The admission of that evidence constituted reversible error because “[t]he law is not blind ... to the peril to the innocent if character is accepted as probative of crime.” Id. at 468. As in Zackowitz, the key issue in this case was the defendant’s state of mind at the time of the shooting. The seized evidence, however, was used not to show defendant’s state of mind at the time of the shooting, but to demonstrate that he was a “walking, ticking time bomb” who was “mentally prepared to kill” and that he was “a very, very dangerous, evil man.” In short, the prosecutor was using this evidence to portray defendant’s character as homicidal.
*247It should be noted that the trial court here issued neither limiting nor curative instructions. Curative instructions were given as part of the charge to the jury after defendant had specifically objected to these comments by the prosecutor in his motion for mistrial. The curative instructions, however, did not specifically refer to the improper comments and require that the jury disregard them, but rather mentioned only general directions concerning the jury’s role in considering evidence. See State v. Farrell, 61 N.J. 99, 103, 106-07, 293 A.2d 176 (1972). These instructions were, in short, ineffective.
The defendant also argues that, even if the trial court found that the evidence was not impermissible character evidence and that it was relevant, the court’s determination on Evidence Rule 4 constitutes reversible error. This challenge requires defendant to show that the trial court’s decision to admit the gun catalog, magazine, silencer instructions, and target was in error because the probative value of this evidence with respect to defendant’s state of mind “is substantially outweighed by the risk that its admission will ... (b) create substantial danger of prejudice or of confusing the issues or of misleading the jury.” Evid.R. 4.
I would find the trial court's ruling under Evidence Rule 4 constituted a “palpable abuse of discretion.” Assuming the evidence was relevant to defendant’s state of mind, it also clearly and indisputably tended to prove defendant’s character. In this latter capacity it had no legitimate probative worth in this trial. In my estimation, the prejudicial effect of this evidence totally eclipsed its probative worth in establishing guilt.
Even if its potential prejudice as impermissible character evidence did not substantially outweigh the probative worth of the evidence with respect to defendant’s state of mind and ultimate guilt, the balancing under Evidence Rule 4 should not have stopped there. This evidence was not only available to prove defendant’s guilt. It was equally available in the sen*248tencing phase of defendant’s prosecution. Despite its bifurcated structure, a capital murder prosecution is effectively a continuous procedure that includes both the trial to determine guilt and, consequently, eligibility for a death sentence as well as the trial that results in the imposition of sentence. See State v. Moore, 113 N.J. 239, 312, 550 A.2d 117 (1988) (Handler, J., concurring). The prejudicial taint of this highly inflammatory evidence had the clear capacity to spread beyond the guilt trial itself. Because a capital-murder prosecution, as currently conducted, proceeds before the same jury on a continuous, albeit sequential, basis and because evidence from the guilt trial is recycled in the penalty trial, the prejudicial impact of proffered testimony on the determination of sentence must be included in any analysis and weighing process under Evidence Rule 4 in determining its admissibility.
Thus, for these additional reasons I would reverse the trial court’s rulings with respect to these items of evidence.
III.
The Court also notes defendant’s argument that “the State’s case was peppered with instances of prosecutorial misconduct.” Ante at 229, 574 A.2d at 968. Because it reverses defendant’s conviction and sets aside his sentence on other grounds, the Court declines to “determine whether any conduct of the prosecutor would, standing alone, constitute reversible error.” Ibid. In my view, there is no question that many of the instances cited by defendant constitute misconduct that warrants reversal.
In addition to contentions that the prosecutor misstated the law and facts, repeatedly attacked the integrity of defense counsel, and relied on a nonstatutory aggravating factor, defendant claims that the prosecutor’s use of the terms “I think”, “I believe” and “I feel” along with his continual reference to his own thoughts about the evidence constituted reversible error because the prosecutor was improperly inserting his personal *249beliefs. The prosecutor’s guilt-phase summation reveals the repeated use of the phrases connoting the prosecutor’s subjective beliefs. Moreover, defense counsel made a timely objection to the prosecutor’s comments immediately following the guilt-phase summation in the form of a motion for a mistrial. State v. Farrell, supra, 61 N.J. at 106, 293 A.2d 176 (defendant’s motion for mistrial after summation constituted timely objection and gave the trial judge an opportunity to deliver specific curative instructions). The trial court considered the claimed errors and stated that he would address them in his instructions to the jury, particularly the section pertaining to functions of the court and jury. In his instructions to the jury, given the day after summations the trial court attempted to do so. The curative instructions were patently ineffective. Id. at 107, 293 A.2d 176 (trial court’s general curative instructions that trial counsel’s statements were not evidence and should be ignored if not supported by the evidence were not specific and direct enough to cure the prejudice from the prosecutor’s comments that by his experience he knew that defendant was guilty).
In a capital-murder case under the more stringent standard of review mandated by State v. Ramseur, 106 N.J. 123, 324, 524 A.2d 188 (1987), this form of prosecutorial misconduct rises to the level of reversible error. The Court should so rule.
IV.
Defendant argues that the evidence presented in this case does not support the submission of aggravating factor c(4)(c) to the jury. I agree.
In Ramseur, we held that aggravating factor c(4)(c) required sufficient evidence of either aggravated battery or torture or of depravity of mind. 106 N.J. at 207-09, 524 A.2d 188. In this case, the State alleged only depravity of mind at the penalty phase as constituting aggravating factor, c(4)(c).
The Ramseur Court defined depravity of mind as follows:
*250We conclude that “depravity of mind,” however, identifies a concern distinct from that discussed above. These words mark society’s concern to punish severely those who murder without purpose or meaning as distinguished from those who murder for a purpose (albeit a completely unjustified purpose). This term isolates conduct that causes the greatest abhorrence and terror within an ordered society, because citizens cannot either in fact or in perception protect themselves from these random acts of violence. The killer who does it because he likes it, perhaps even because it makes him feel better, who kills bystanders without reason, who kills children and others whose helplessness would indicate that there was no reason to murder, evinces what we define as depravity of mind. [Id. at 209, 524 A.2d 188 (citations omitted).]
In response to the dissent’s criticism that depravity was defined too loosely, the Court restated its understanding of depravity of mind:
Where the murder was not the product of greed, envy, revenge, or another of those emotions ordinarily associated with murder, and served no purpose for the defendant beyond his pleasure of killing, the court shall instruct the jury on the meaning of depravity in this specific context. For the defendant who killed for the enjoyment of it, because the victim just happened to be in the area, or for no reason at all, just to kill, society must be able to reserve its most extreme sanction. [Id. at 211, 524 A.2d 188.]
Our decision in Ramseur directs us to focus on the defendant’s state of mind in interpreting the standard of depravity. Critical to that determination is whether defendant had any reason or purpose to kill. A proper construction of c(4)(c) should not allow depravity of mind to be proven by slight evidence supporting a finding of enjoyment of the killing, particularly when there is other evidence that the killing was not purposeless or senseless. See State v. Matulewicz, 115 N.J. 191, 557 A.2d 1001 (1989).
I do not believe that for purposes of establishing depravity— an aggravating factor that can lead to the imposition of the death penalty — the evidence presented in this case supports beyond a reasonable doubt a jury finding that defendant killed without a reason and only or primarily for the pleasure of it. The testimony established that defendant ran after the victim shooting at him as he ran down the street. After wounding him, defendant walked to where he crawled and fired three more shots at close range killing the victim. A witness testified that he heard “yahoo” come from the scene of the shoot*251ing; another witness heard a “yelp” at that time. The “yahoo” or “yelp” testimony is the only support for the State’s argument that defendant killed his victim because he enjoyed it and wanted only to kill for pleasure. Further, this evidence does not at all support the finding that there was no reason for the killing. Because the helplessness of a victim does not by itself establish depravity but rather may suggest “the senselessness of the killing,” id. at 207 n. 36, 557 A.2d 1001, it is important to stress that the killing in this case was not a random act of violence. Defendant’s relationship with the victim’s wife provided a strong reason for his actions and puts it within the class of murders that are “the product of greed, envy, revenge, or another of those emotions ordinarily associated with murder.” Id. at 211, 557 A.2d 1001.
Thus, giving all favorable inferences to the State, the evidence cannot support a jury finding beyond a reasonable doubt that the killing was committed “without purpose or meaning” and only for pleasure. I would rule in this case that the evidence was insufficient to establish aggravating factor c(4)(c) and would not permit its resubmission in any retrial of this matter.
V.
For these additional reasons, I concur in the judgment of the Court, and dissent from parts of its opinion.