State v. Erazo

The opinion of the Court was delivered by

POLLOCK, J.

A jury convicted defendant, Samuel Erazo, of capital murder and possession of a weapon for an unlawful purpose. He appealed as of right to this Court. R. 2:2-1(a)(3). As the State recognizes, the trial court gave two erroneous charges on the murder count. The instruction concerning manslaughter impermissibly shifted to defendant the burden of proving passion/provocation. See State v. Grunow, 102 N.J. 133, 506 A.2d 708 (1986). Furthermore, the court failed to instruct that defendant could be convicted of capital murder only if he knowingly or purposely caused the death of the victim, as distinguished from knowingly or purposely causing serious bodily injury that resulted in death. State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988). Finding that the charges on the issues were supported by a rational basis, we conclude that the errors were not harmless. Consequently, we reverse the conviction for capital murder, but not that for possession of a weapon for an unlawful purpose.

-I-

We restrict our factual recitation to those facts relating to the incorrect jury instructions, ffhe tempestuous marriage of Samuel and Lucy Erazo ended on July 20, 1986, when he stabbed her to death after an evening of drinking and quarrelling. Samuel’s primary defense was that she had provoked him and that he had killed her in the heat of passion. As the court and counsel recognized at trial, the case turned on Samuel’s mental state at the time of the homicide. More specifically, the question was whether he had knowingly or purposely killed his wife, contrary to N.J.S.A. 2C:11-3a(1) and -3a(2), and, if so, *118whether he had acted in the heat of passion on adequate provocation, N.J.S.A. 2C:11-4b(2).

Samuel and Lucy were married on May 19, 1982, at Rahway State Prison, where he was confined for the 1977 stabbing death of Gladys Colon, the daughter of a woman with whom he had been living. The relationship between Samuel and Lucy was marked by passion, recriminations, and violence. Once, during a visit by Lucy at the prison, defendant struck her because he saw her talking with other men. In April 1985, defendant was released on parole and went to live with Lucy in an apartment in East Orange. After his release, they became embroiled in an argument at the home of one of Lucy’s daughters. Again defendant struck Lucy. She started to call the police, but when defendant pointed a knife at her and challenged her to “call the cops,” she did not complete the call. On yet another occasion, Migdalia Rodriguez, one of Lucy’s daughters, reported to law-enforcement authorities that defendant was staying in Lucy’s apartment with Migdalia’s sisters and defendant’s daughters, a condition that violated a term of his parole. This violation led to the revocation of defendant’s parole and his return to prison for several months.

At the time of the homicide, defendant was employed as a security guard at a Woolworth store in Newark. Together with Anthony Baptiste, the cashier-supervisor at the store, Anthony’s girlfriend, Maribel Santos, and Michael Harrison, another security guard, defendant want to the Erazo apartment to celebrate Harrison’s birthday. On the way, they purchased a six-pack of beer, four wine coolers, and a pint of rum. During the course of the evening, Harrison and another guest, Blanca Flores, who also lived in the apartment complex, purchased a second bottle of rum. Throughout the evening both Samuel and Lucy consumed alcoholic beverages. A test of Lucy’s blood taken during her autopsy yielded a blood alcohol reading of .195 percent.

*119Tension started to build as soon as defendant arrived at the apartment. When he tried to introduce Lucy to the guests, she refused to leave the kitchen until after dinner. Defendant became further disturbed when he discovered that the stereo was not working because Lucy had disconnected it while rearranging furniture that day. After dinner, Lucy and Blanca joined the party, and' the group sat, talked, and listened to the stereo, which defendant and Blanca had fixed. Blanca showed Harrison how to dance the merengue, and the couples changed partners. At one point defendant told Harrison that “my wife is making me mad,” and “she is going to make me do something I don’t want to do.” Defendant recounted to Harrison that on the previous day Lucy had angered him when he brought her flowers, which she threw in the trash can.

When the party broke up around 11:30 p.m., defendant asked Blanca to drive his friends home. The victim, however, interrupted and told defendant, “no, they’re your friends, you take them home.” Blanca, however, agreed to drive them home. Embarrassed and angry, defendant accompanied Blanca on the drive. On their return home, defendant and Blanca met the victim, who was drunk and disconsolate, as she left the apartment house. Blanca unsuccessfully tried to persuade Lucy to return to the apartment.

At this point the parties’ versions differ. The State contends that Blanca told defendant to follow his wife. According to the State, after threatening that if he went after Lucy, he “might have to kill again,” defendant in fact brought her back to the apartment. Defendant denies that he followed Lucy and asserts that she returned voluntarily. Both parties agree that Lucy returned to the apartment sometime after midnight.

According to Blanca’s sister-in-law, Anna, who also lived in the apartment house, after defendant and Lucy had returned to their apartment, Anna heard the sound of glass breaking and Lucy screaming “God help me. He is killing me.” Defendant then changed his clothes and within minutes of Lucy’s return *120left the apartment house. Standing beneath the window of Blanca’s apartment, he told her to call an ambulance.

At trial, the State theorized that defendant’s motive in killing the victim was that she had purposely cut her hand during her walk and then threatened to call the police, with the intention of telling them that defendant had inflicted the wound. This, so the State would again revoke defendant’s parole and return him to prison. In a telephone conversation with the victim’s daughter on the morning after the slaying, defendant related that when the victim had threatened him, he had “lost his head” and stabbed her. To the extent that the State relied on the victim’s threat to call the police, its theory coincided with that of defendant, who contended that her threat enraged him and that he killed her in the heat of passion.

When emergency medical service and police personnel arrived, they found the victim lying on the floor. Next to her body was a blood-stained knife blade with a broken tip; the handle was on the vestibule floor. The apartment was in disarray, with glasses, a rum bottle, and a box of cassettes knocked to the floor. An autopsy revealed that the victim had sustained four knife wounds to her hands, arms, and chest; three slashes to the neck; and a single stab wound to the back that, according to the medical examiner, killed her instantly.

After leaving the apartment, defendant went to his mother's home in Jersey City, where he told his brother, an unemployed police officer, that he had stabbed the victim. Later that day, defendant surrendered to the police.

During the guilt phase of the trial, the defense centered on the contentions that defendant had been intoxicated, that the victim had provoked him, and that he was therefore guilty only of manslaughter. The jury, however, convicted defendant of knowing or purposeful murder.

In the penalty phase, the jury found two aggravating factors: that defendant had previously been convicted of murder, N.J.S.A. 2C:ll-3e(4)(a); and that the murder was outrageously *121or wantonly vile, horrible, or inhuman, N.J.S.A. 2C:11-3c(4)(c). The jury also found four mitigating factors: that defendant had been under the influence of an extreme mental disturbance, N.J.S.A. 2C:11-3e(5)(a); that the victim had participated in the conduct resulting in her death, N.J.S.A. 2C:11-3c(5)(b); that defendant had been intoxicated, N.J.S.A. 2C:11-3c(5)(d); and that defendant had been under unusual or substantial duress, N.J.S.A. 2C:11-3c(5)(e). On the jury’s finding that the aggravating factors outweighed the mitigating factors, the court sentenced defendant to death.

-II-

A. Jury Charge on Passion/Provocation Manslaughter

We begin with the jury charge that impermissibly shifted to defendant the burden of proving passion/provocation. As the United States Supreme Court has held, the State must prove beyond a reasonable doubt all elements of a crime. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). A requirement that defendant prove adequate provocation beyond a reasonable doubt violates that rule. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (holding that prosecution must disprove adequate provocation beyond a reasonable doubt when the issue is raised in a homicide case). When a defendant places passion/provocation in issue, the State, to prove a knowing or purposeful murder, must prove beyond a reasonable doubt that defendant’s actions were not the result of passion. Grunow, supra, 102 N.J. at 145, 506 A.2d 708; State v. Powell, 84 N.J. 305, 315, 419 A.2d 406 (1980).

At the conclusion of the trial, defense counsel requested an instruction that the State bore the burden of disproving passion/provocation. Without objection from the State, the trial court rejected the request. Instead, after explaining the elements of passion/provocation manslaughter, the court instructed:

*122So if you’re satisfied beyond a reasonable doubt that the defendant caused the decedent’s death under circumstances that would [otherwise] be murder but was committed in the heat of passion, then you may return a verdict of guilty of manslaughter.

A fair reading leads to the conclusion that the charge erroneously placed on defendant the burden of proving passion/provocation. This error requires reversal. Grunow, supra, 102 N.J. at 148-49, 506 A.2d 708.

Although the State acknowledges that the quoted portion of the charge was erroneous, it contends that taken as a whole, the charge was at worst ambiguous. The State’s argument continues that the proper standard for appellate review is whether there is a “reasonable likelihood that the jury * * * applied the challenged instruction” in an unconstitutional fashion. Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316, 329, reh’g denied, 495 U.S. 924, 110 S.Ct. 1961, 109 L.Ed.2d 322 (1990) (enunciating test for adequacy of ambiguous jury instructions). To support its contention that the charge was merely ambiguous, the State points to an earlier instruction:

[T]he burden of proof is on the State. * * * [T]hat burden never shifts and it remains on the State throughout the whole case, so no burden with respect to proof is imposed upon the defendant, Mr. Erazo. He is not obligated to prove his innocence.

That general statement, although accurate, lacks the muscle to shift to the State the burden to disprove passion/provocation. At best, the charge was contradictory. As we have previously stated, “ ‘[contradictory and inconsistent charges are inherently inadequate as they “create a reasonable likelihood that a juror understood the instructions in an unconstitutional manner.” ’ ” State v. Moore, 122 N.J. 420, 433, 585 A.2d 864 (1991) (S. Moore) (quoting Humanik v. Beyer, 871 F.2d 432, 442 (3d Cir.), cert. denied, 493 U.S. 812, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989) (quoting Francis v. Franklin, 471 U.S. 307, 323 n. 8, 105 S.Ct. 1965, 1975 n. 8, 85 L.Ed.2d 344, 359 n. 8 (1985))). In brief, the charge was fatally flawed.

*123On appeal, the State also contends that the erroneous instruction was harmless because the evidence was insufficient to support a charge of passion/provocation manslaughter. In particular, the State argues that the evidence did not provide a rational basis for a jury to conclude that there had been adequate provocation. See N.J.S.A. 2C:1-8e (prescribing the “rational basis” test for an instruction on a lesser-included offense). Again, we disagree.

Our review of the record persuades us that the evidence of provocation was sufficient to support the charge on passion/provocation manslaughter. At trial, both the court and the State reached the same conclusion. As both the prosecutor and the court recognized, Erazo’s defense was that he had committed manslaughter, not murder. At defendant’s request, and without objection from the State, the trial court included a manslaughter instruction in the charge.

A court should grant a request for a charge on a lesser-included offense of manslaughter if the record provides a “rational basis” for a manslaughter conviction. State v. Crisantos (Arriagas), 102 N.J. 265, 276, 508 A.2d 167 (1986). Although a “rational basis” requires more than a mere “scintilla of evidence,” it is “[njevertheless * * * a low threshold.” Id. at 278, 508 A.2d 167; see also State v. Coyle, 119 N.J. 194, 224, 574 A.2d 951 (1990) (applying the “low threshold” test). In effect, the question is whether there is room for dispute whether the jury could find defendant guilty of manslaughter. State v. Mauricio, 117 N.J. 402, 415, 568 A.2d 879 (1990).

The Penal Code defines passion/provocation manslaughter as “[a] homicide * * * [that] is committed in the heat of passion resulting from a reasonable provocation.” N.J.S.A. 2C:11-4b(2). Passion/provocation manslaughter has four elements: (1) adequate provocation of the defendant; (2) inadequate time for the defendant to “cool off”; (3) provocation of the defendant to a state of passion; and (4) the failure of defendant to “cool off.” Mauricio, supra, 117 N.J. at 411, 568 A.2d 879. *124Here, the focus is on the first element, adequate provocation. As we have cautioned, an abstract definition is only a guide in defining the parameters of passion/provocation manslaughter. Crisantos (Arriagas), supra, 102 N.J. at 275, 508 A.2d 167. Also, “[t]he specific evidence in each ease must be carefully evaluated in the context of the entire record to determine whether passion/provocation manslaughter may properly be considered by the jury.” Ibid.

The record demonstrates the tension between defendant and the victim on the night of the slaying. That tension was not an isolated occurrence, but a continuing strain in a marriage fraught with violence. The stress began the preceding evening when the victim rejected the flowers defendant had brought her. On the night of the homicide, the couple continued to feud. Defendant chastised the victim for rearranging the furniture and disconnecting the stereo. She refused to join his guests in the living room and remained in the kitchen with her friend Blanca until after dinner. Both defendant and the victim consumed alcoholic beverages that evening. Objective evidence establishes that she was intoxicated. The defense emphasized, moreover, that the partner-switching while dancing the merengue may have fueled their mutual feelings of jealousy and suspicion. At one point defendant told Harrison that the victim “was making him mad.” After Blanca returned from taking the guests home, the victim drunkenly swung her pocketbook at Blanca, began to cry, and accused Blanca of “trying to go after my husband.”

According to statements made by defendant after the homicide, the victim returned from her walk having deliberately cut her hand. He claims that he became enraged and attacked her when she told him she intended to have his parole revoked by telling the police that he cut her. His version is consistent with the fact that the victim previously had threatened to report defendant to the authorities. Moreover, defendant’s parole had previously been revoked because of an “anonymous” report from one of the victim’s children that defendant was violating *125his parole. Thus, defendant argues that he was infuriated by the victim’s threat to fabricate facts to cause the revocation of his parole. In this regard, we note that on the penalty phase the jury found that the victim had participated in the conduct that resulted in her death. That finding, as defendant argues, is consistent with the proposition that the victim’s conduct and death are causally connected.

As is now well settled, the purpose of our review is not to determine whether the jury would have accepted defendant’s explanation, Mauricio, supra, 117 N.J. at 415, 568 A.2d 879, but whether the evidence provided a “rational basis” for a passion/provocation charge, N.J.S.A. 2C:1-8e. We so find. See Coyle, supra, 119 N.J. at 224, 574 A.2d 951 (evidence of a confrontation between defendant, his lover, and the victim sufficient to support manslaughter charge).

The error in the manslaughter charge was aggravated by the court’s instruction that the jury should first consider whether defendant was guilty of murder and that if it acquitted defendant of that offense, it should then consider the manslaughter charge. As we recently noted, a sequential charge can confuse jurors in a murder case when the court also charges on manslaughter. See id. at 222-24, 574 A.2d 951.

This part of the charge contained two errors. First, the instruction had the capacity to confuse the jurors about the elements of knowing or purposeful murder. As explained above, when a defendant places passion/provocation in issue, the State, to prove a knowing or purposeful murder, must prove beyond a reasonable doubt that the defendant did not act from passion aroused by reasonable provocation. Hence, the initial problem with the charge is that it may have foreclosed the jury from considering passion/provocation during its deliberations on the murder count. Second, the court erroneously instructed the jury that it could find passion/provocation manslaughter only if it first acquitted defendant of knowing or purposeful murder. This instruction is backwards. Only a *126homicide that would otherwise be a knowing or purposeful murder may be reduced to manslaughter by the presence of passion/provocation. If, on retrial, the court should again give a sequential charge, it should make clear both that the absence of passion/provocation is an element of murder on which the State bears the burden of proof and that the jury may convict defendant only of manslaughter when the homicide would have been murder but for the existence of passion/provocation.

B. Jury Charge on Knowing or Purposeful Murder

Defendant argues as a matter of plain error that neither the jury instructions nor the verdict form distinguished between knowingly or purposely causing death and knowingly or purposely causing serious bodily injury that results in death. See Gerald, supra, 113 N.J. 40, 549 A.2d 792. We agree. In Gerald, we held that the death penalty may be imposed only if the jury finds that the defendant knowingly or purposely caused death as distinguished from knowingly or purposely causing “serious bodily injury resulting in death.” Id. at 69, 549 A.2d 792. This rule has required reversal of several preGerald convictions when the charge did not distinguish between capital murder and serious bodily injury murder. See State v. Dixon, 125 N.J. 223, 251-55, 593 A.2d 266, 279-81 (1991); S. Moore, supra, 122 N.J. at 484-86, 585 A.2d 864; State v. Harvey, 121 N.J. 407, 412-14, 581 A.2d 483 (1990), cert. denied, U.S. -, 111 S.Ct. 1336, 113 L.Ed.2d 268 (1991); State v. Clausell, 121 N.J. 298, 312-16, 580 A.2d 221 (1990); State v. Pennington, 119 N.J. 547, 560-65, 575 A.2d 816 (1990); State v. Long, 119 N.J. 439, 460-65, 575 A.2d 435 (1990); Coyle, supra, 119 N.J. at 208-12, 574 A.2d 951; Gerald, supra, 113 N.J. at 69-70, 549 A.2d 792.

At trial, the court charged the jury:

Now, the charge contained in the indictment against Mr. Erazo is that he did murder one Lucy Erazo. Murder is the unlawful killing of one person by another purposely or knowingly. A person who commits a killing does so *127purposely when it is his conscious object to cause death or serious bodily injury resulting in death.
A person who commits a killing does so knowingly when he is aware that what he is doing will cause death or serious bodily injury resulting in death. In either case, that is, whether the killing is committed purposely or knowingly caused the death or serious bodily injury, must be within the design or contemplation of the defendant.

The State concedes that the charge violates Gerald, but argues that the error was harmless. In its view, the evidence provides no rational basis for a jury to conclude that defendant intended to cause only serious bodily injury. As is so often the ease when a defendant’s mental state is at issue, the evidence points in more than one direction. Adequate evidence supports the State’s contention that defendant intended to kill the victim. On the night of the homicide, defendant made statements to the effect that he “might have to kill” the victim. He cut her several times on her arms and neck and stabbed her once in the back. A bloody knife blade broken at both the tip and handle was found near the body, suggesting that defendant stabbed the victim with such ferocity and frequency to indicate an intent to kill.

Other evidence, however, points toward the conclusion that defendant killed neither purposely nor intentionally, but intending to cause only serious bodily injury. Within minutes after the stabbing, defendant asked Blanca Flores to call an ambulance. When he fled to his mother’s apartment, he related the stabbing to his brother, who tried to summon help for Lucy. Several hours later, when defendant called the victim’s daughters, he asked them how their mother was. In his conversation with one of the victim’s daughters, defendant indicated that he had “lost his head” and attacked the victim after she had threatened to lie to the police to cause his parole to be revoked.

Further, a letter to Blanca, written by defendant after his arrest, explains that after Lucy had threatened to force his return to prison, he panicked. In that letter, which was admitted on the State’s case, defendant wrote:

*128I couldn’t react logically. My mind went blank: I only saw the time I was going to serve unfairly, without having done anything. When I came to and realized, she was [sprawled] on the floor and I had a knife in my hand, which I quickly let go of. * * * I didn’t know whether she was dead or alive, although she appeared to be alive, because I felt like her breathing; that’s when I told her that I was going to call the ambulance for her and I begged her not to die.

To some extent, the facts of this case are reminiscent of those in S. Moore, supra, 122 N.J. 420, 585 A.2d 864, in which we also reversed on Gerald grounds. Like the present case, S. Moore involved a killing in the context of jealousy and a deteriorating marriage. The defendant in S. Moore became involved in a confrontation with his wife after announcing his intention of leaving her for another woman. When the argument turned violent, the defendant struck his wife more than twenty times on the head with a hammer, killing her. On those facts, we held that it was for the jury “to consider a defense * * * that [defendant] did not intend to kill his wife, but lost control of himself and struck her, causing her to die, without intending her death.” Id. at 485-86, 585 A.2d 864. Here, although defendant slashed the victim several times, he inflicted only a single fatal wound. He then sought medical assistance for the victim. We conclude that minimally adequate evidence exists to provide a rational basis for the jury to conclude that defendant intended to cause only serious bodily injury that resulted in death. Hence, we find that the charge constitutes plain error under State v. Gerald.

-III-

Because we reverse defendant’s conviction and sentence for the reasons in Part II, we limit our remaining discussion to those issues on which further guidance might be helpful on retrial.

A. Voir Dire

Since the trial, we have rendered several decisions explaining that voir dire in a capital cause should be open-ended, State v. Williams, 113 N.J. 393, 413, 550 A.2d 1172 (1988) (Williams II); *129thorough and searching, State v. Biegenwald, 126 N.J. 1, 32-35, 594 A.2d 172, 188-89 (1991) (Biegenwald IV); Dixon, supra, 125 N.J. at 246, 593 A.2d at 277; State v. Marshall, 123 N.J. 1, 90-94, 586 A.2d 85 (1991); S. Moore, supra, 122 N.J. at 451-54, 585 A.2d 864; Williams II, supra, 113 N.J. at 413, 550 A.2d 1172; State v. Biegenwald, 106 N.J. 13, 29-30, 524 A.2d 130 (1987) {Biegenwald II); sensitive to attorney participation, Biegenwald II, supra, 106 N.J. at 30, 524 A.2d 130; and designed to elicit a “potential juror’s views, biases, and inclinations,” Biegenwald IV, supra, 126 N.J. at 39, 594 A.2d at 192.

Without the benefit of those opinions, the trial court took a more constricted approach to the voir dire. Because we reverse on other grounds, we need not belabor this point. On remand, we trust the court will be guided by the intervening decisions.

Suffice it to state that voir dire in a capital cause should probe the minds of the prospective jurors to ascertain whether they hold biases that would interfere with their ability to decide the case fairly and impartially. An appropriate subject for such an inquiry is a juror’s attitude about a defendant’s prior murder conviction. Biegenwald IV, supra, 126 N.J. at 34-35, 594 A.2d at 189; cf. Williams II, supra, 113 N.J. at 413-17, 550 A.2d 1172 (error to refuse to ask jurors whether fact that defendant had raped victim in course of murder would unduly influence juror’s decision to impose death penalty). Also, a court should avoid any artificial time limits on questioning by counsel. Here, the court imposed a “three minute rule,” which limited counsel's questioning to three minutes. The record reflects that this limitation led to questioning that often was rushed and superficial. As long as counsel acts reasonably and responsibly, as counsel did here, voir dire should proceed uninhibited by any such artificial constraints.

*130B. Evidence Issues

1. Prejudice to Guilt Phase from Admission of Prior-Murder Evidence

Defendant challenges the admission during the guilt phase of evidence that he had previously been convicted of murder for the 1977 stabbing death of Gladys Colon. During the guilt phase, Michael Harrison and Blanca Flores testified that on the night of the subject murder, defendant stated that he had killed before and that Lucy’s behavior might cause him to kill again. Defendant argues that their testimony should have been excluded because the prejudicial effect outweighed its probative value. We find, however, that the trial court did not abuse its discretion in allowing the testimony.

Harrison testified that on the night of the killing defendant had confided that he had served a prison term for killing someone and that “Lucy is going to make me do something I don’t want to do.” Blanca Flores testified that when Lucy left the apartment to go for a walk after the party, defendant rejected Blanca’s suggestion that he follow Lucy, stating that “I killed before and if I go after her I’ll kill again.”

At pre-trial proceedings, the court ruled admissible the testimony of both witnesses about defendant’s prior crimes. Originally the State sought admission to prove both a signature crime and defendant’s mental state. At trial, the State introduced the evidence solely to establish defendant’s state of mind.

In addition to the testimony of those witnesses, the court also admitted redacted records of defendant's convictions for the prior murder and for carnal abuse of Gladys Colon. The nature of the offenses was redacted, so the records revealed only that defendant had been convicted of two indictable offenses and that he had been sentenced to prison for a term of twenty to thirty years on one offense and to a concurrent ten to fifteen years on the other offense. The State sought admission of the records to prove that defendant was on parole, thereby corrobo*131rating the State’s theory that Lucy had threatened to report him for a parole violation.

Appellate courts generally defer to trial court rulings on the admissibility of evidence of other crimes, unless those rulings constitute an abuse of discretion. State v. Ramseur, 106 N.J. 123, 265-66, 524 A.2d 188 (1987); State v. Atkins, 78 N.J. 454, 462, 396 A.2d 1122 (1979). We find no such abuse here.

Defendant’s statements evidence his state of mind at the time he killed Lucy. The statements, which were made shortly before he killed her, referred to a prior murder. They were relevant to whether defendant had killed Lucy purposely or knowingly, or whether he had been provoked and had killed her in the heat of passion. Thus, defendant’s statements related to the crucial issue of his mental state. The records of defendant’s convictions arising out of the killing of Gladys Colon were necessary to prove the State’s theory of defendant’s motive. The State’s theory was that defendant killed Lucy because she had threatened to cause revocation of his parole from his sentence for those convictions.

2. Prejudice to Penalty Phase from Guilt-Phase Evidence

Defendant argues as plain error that evidence presented during the guilt phase prejudiced the penalty-phase proceedings. At issue are records of defendant’s prior conviction for carnal abuse of Gladys Colon, the previously-mentioned statements by defendant that he had killed before and might have to kill again, and three 8" X 10" color photographs of the autopsy. The photographs were admitted to prove the manner and cause of death. One photograph showed the cuts to the victim’s left hand, and a second showed the fatal stab wound to the victim’s back. The last photograph not only showed the slash wounds to the victim’s chest and neck, but also depicted the icy stare frozen on the victim’s face. As previously discussed, the records of defendant’s prior conviction for carnal abuse were admitted to prove that defendant was on parole at the time of *132the killing. His statements that he might have to kill again were admitted to prove his intent. Without objection from defendant, all of that evidence was incorporated by reference at the penalty phase. At no time during the penalty phase did the trial court issue a limiting instruction concerning the use of the evidence.

Both photographs and other-crimes evidence have the capacity to prejudice penalty-phase proceedings in capital murder cases. See S. Moore, supra, 122 N.J. at 469, 585 A.2d 864 (noting capacity of prejudicial photos to taint the penalty phase); State v. Pitts, 116 N.J. 580, 638-39, 562 A.2d 1320 (1989) (the need to weigh the prejudicial value of photographs “is especially critical in the penalty phase of a capital case”); State v. Moore, 113 N.J. 239, 276-77, 550 A.2d 117 (1988) (M. Moore) (prejudice from other-crimes evidence may warrant severance of an indictment); State v. Rose, 112 N.J. 454, 533-36, 548 A.2d 1058 (1988) (Rose I) (error to have admitted autopsy photo). When the same jury hears both phases of such a case, evidence admitted on the guilt phase may sometimes taint the penalty phase. See, e.g., Dixon, supra, 125 N.J. at 249-50, 593 A.2d at 279 (movie shown during guilt phase so prejudicial as to require vacation of death sentence). With the stakes so high, the possibility of prejudice on the penalty phase persists as a cause for continuing concern.

On this record, we do not find that the trial court committed plain error on the guilt phase by admitting the other-crimes evidence and the autopsy photographs. That conclusion, however, does not foreclose defendant from challenging admission of those items on remand. If the State again seeks the death penalty, the court can minimize prejudice by empaneling separate juries to hear the guilt and penalty phases of the trial. N.J.S.A. 2C:11-3c(1); see M. Moore, supra, 113 N.J. at 277, 550 A.2d 117 (recommending the use of separate juries to avoid prejudice to defendant from other-crimes evidence); cf. Biegenwald IV, supra, 126 N.J. at 43-44, 594 A.2d at 194 (separate juries likely will be required when State relies on aggravating *133factor c(4)(a)). A separate penalty-phase jury commends itself when guilt-phase evidence is so prejudicial that the same jury could not fairly sit on both phases of the trial. See State v. Monturi, 195 N.J.Super. 317, 478 A.2d 1266 (Law Div.1984) (considering a pre-trial motion for separate juries). A separate jury would obviate death qualification of the guilt-phase jury and would permit admission of evidence at the guilt phase without regard to the carry-over prejudicial effect on the penalty phase. See, e.g., State v. Hunt, 115 N.J. 330, 396-99, 558 A.2d 1259 (1989) (Handler, J., dissenting) (discussing the use of two juries throughout the trial); Monturi, supra, 195 N.J.Super. 317, 478 A.2d 1266 (discussing the need for separate juries when other-crimes evidence is admitted on guilt phase).

When the same jury hears both phases of the trial, the court should provide instructions on the extent to which the jury may use guilt-phase evidence on its penalty-phase deliberations. Even when guilt-phase evidence is not incorporated in the penalty phase, the danger abides that the jury will rely on it during the penalty-phase deliberations. See Rose I, supra, 112 N.J. at 505-08, 548 A.2d 1058 (vacating defendant’s death sentence because of danger that jury considered irrelevant other-crimes evidence). Thus, the court should instruct the jury concerning the evidence that it may use in its penalty deliberations and the purposes for which that evidence may be used.

3. The Constitutionality and Scope of N.J.S.A. 2C.11-3c(2)(f)

Defendant argues as plain error that N.J.S.A. 2C:11-3e(2)(f) (c(2)(f)) denied him a fair trial because it subjected him to punishment for the prior murder of Gladys Colon. During the penalty phase, the State adduced evidence in support of aggravating factor N.J.S.A. 2C:11-3c(4)(a) (c(4)(a)) that defendant had previously been convicted of murder. Section c(2)(f) provides in relevant part: “Evidence offered by the State with regard to the establishment of * * * [aggravating factor *134c(4)(a)] may include the identity and age of the victim, the manner of death and the relationship, if any, of the victim to the defendant.” That section describes the evidence that may be included when proving a prior murder under c(4)(a). Defendant contends that c(2)(f) violates his constitutional protection against double jeopardy and is an ex post facto law under both the United States and New Jersey Constitutions. U.S. Const. amend. V; N.J. Const. art. 1, para. 11 (double jeopardy); U.S. Const. art. 1, § 10, cl. 1; N.J. Const. art. 4, § 7, para. 3 (ex post facto). The argument lacks merit.

Pursuant to c(2)(f), the State sought to present various evidence about defendant’s prior murder conviction. The State proffered the official record of the conviction, testimony of a police officer that defendant had confessed to murdering Colon, the autopsy report that described in detail the manner and cause of Colon’s death, and the autopsy photographs of Colon’s mutilated corpse.

After considering the prejudicial effect of the evidence, the trial court disallowed introduction of the photographs and portions of the autopsy report, but allowed introduction of evidence of the conviction, a stipulated version of the autopsy report, and the testimony of the officer that defendant had confessed to murdering Colon. Although the trial court instructed the jury generally about weighing aggravating and mitigating factors, it did not issue any instructions about the limited purposes for which the prior-murder evidence could be used.

We reject both of defendant’s constitutional challenges to c(2)(f). That statutory provision neither constitutes an ex post facto law nor violates the prohibition against double jeopardy. Evidence of a prior murder is admissible under c(2)(f) not for the purpose of punishing defendant for that murder, but to enable the jury to determine the appropriate sentence for the present murder. As the State argues, c(2)(f) does not under*135take to punish for the prior offense, but rather to enhance punishment for the subsequent murder offense.

Generally, sentence enhancement based on the defendant's prior record does not violate either the federal or the New Jersey constitutions. See, e.g., McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901) (rejecting, inter alia, both a double-jeopardy and an ex post facto law challenge to a Massachusetts sentence-enhancement provision); Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301 (1895) (rejecting, inter alia, a double-jeopardy challenge to a Missouri sentence-enhancement provision); In re Caruso, 10 N.J. 184, 89 A.2d 661 (1952) (rejecting, inter alia, an ex post facto law challenge to a New Jersey sentence-enhancement provision). Although we have not previously considered the issue, courts of other states have upheld the introduction of prior-crimes evidence at capital-sentencing proceedings. See, e.g., Stano v. State, 473 So.2d 1282 (Fla.1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 869, 88 L.Ed.2d 907 (1986); State v. McDowell, 310 N.C. 61, 310 S.E.2d 301 (1984).

As we have previously noted, the need to guard against “jury prejudice” is critical in the penalty phase of a capital case. See Pitts, supra, 116 N.J. at 538-39, 562 A.2d 1320 (discussing prejudice from autopsy photographs). Evidence of other crimes is of special concern because of its capacity to prejudice capital-sentencing deliberations. See, e.g., Pennington, supra, 119 N.J. at 585-87, 575 A.2d 816 (recognizing potential prejudice in capital case from admission of prior murder conviction); State v. Stevens, 115 N.J. 289, 302, 558 A.2d 833 (1989) (noting the “widespread agreement that other-crimes evidence has a unique tendency to turn a jury against the defendant”); Rose I, supra, 112 N.J. at 505-08, 548 A.2d 1058. Because of that capacity, the trial court should instruct the jury about the limited use of evidence relating to defendant’s prior murder conviction. Evid.R. 6; see M. Moore, supra, 113 N.J. at 276-77, 550 A.2d 117 (requiring limiting instruction on prior-crimes evidence); *136Rose I, supra, 112 N.J. at 505-08, 548 A.2d 1058 (requiring limiting instruction on prior bad-conduct evidence). Such an instruction should make clear that defendant has already been punished for the prior conviction and that the jury should consider the conviction only in determining whether the death penalty should be imposed for the present murder, not the earlier one.

Defendant also challenges as plain error the admission of the stipulated autopsy report to prove the “manner of death” in the murder of Gladys Colon. With the agreement of both parties, the trial court admitted in evidence three pages from that report. The selected pages described not only the multiple stab wounds as the cause of death, but also the details of each wound. They also contained a diagram showing the location of the wounds. Contending that its prejudicial effect outweighed its probative value, defendant now argues that the autopsy report should not have been admitted to prove the “manner of death” under c(2)(f). Although we do not find the admission of the stipulated report to constitute plain error, on remand defendant should not be bound by the stipulation.

The history of c(2)(f) reflects the Legislature’s concern about the amount of evidence of prior murders that is admissible on the penalty phase. The Judiciary Committee’s statement explains that the purpose of c(2)(f) is “to avoid turning the sentencing proceeding into a second trial of the previous case and at the same time to provide the jury with some information about the prior conviction.” Senate Judiciary Committee Statement to Senate No. 950, at 2. We believe that the statutory purpose can be served with less than the stipulated evidence. The prejudicial effect of a graphic and detailed account of the victim’s death might exceed its probative value. On remand, the purposes of the statute will be served if the evidence of the manner of Colon’s death is described as multiple stab wounds to the chest, lungs, and heart.

*137C. Section c(4.)(c) Factor

Finally, we agree with defendant that the evidence was insufficient to submit aggravating factor c(4)(c) to the jury. As we have previously explained, that factor primarily concerns the defendant’s mental state at the time of the killing. State v. Oglesby, 122 N.J. 522, 533, 585 A.2d 916 (1991); Ramseur, supra, 106 N.J. at 197-211, 524 A.2d 188. Two alternatives support a finding of the existence of aggravating factor c(4)(c). The first is “torture”: whether “defendant intended to, and did in fact, cause extreme physical or mental suffering — in addition to death.” Ramseur, supra, 106 N.J. at 208, 524 A.2d 188. The second is “depravity of mind”: whether defendant killed “for no purpose * * * beyond his pleasure of killing.” Id. at 211, 524 A.2d 188. At no time has the State argued that the killing was depraved.

Consequently, we limit our analysis to “torture,” evidence of which may be inferred from the circumstances of the case. State v. Matulewicz, 115 N.J. 191, 194, 557 A.2d 1001 (1989); Ramseur, supra, 106 N.J. at 211 n. 28, 524 A.2d 188. One element of torture is intent. Ramseur, supra, 106 N.J. at 208, 524 A.2d 188. The Court has found the requisite intent in a number of cases. See S. Moore, supra, 122 N.J. at 474-78, 585 A.2d 864 (defendant repeatedly struck wife in head with hammer, and medical testimony suggested defendant intended her to suffer); State v. McDougald, 120 N.J. 523, 566-67, 577 A.2d 419 (1990) (defendant repeatedly slashed and bludgeoned his victims before killing them); State v. Davis, 116 N.J. 341, 376, 561 A.2d 1082 (1988) (defendant stabbed and mutilated victim’s body with screwdriver and knife, in addition to killing her by strangulation with an electric cord); Gerald, supra, 113 N.J. at 66-67, 549 A.2d 792 (defendant beat victim and repeatedly stomped on his face); State v. Zola, 112 N.J. 384, 434, 548 A.2d 1022 (1988) (defendant tied up victim, beat her severely, and scalded her body such that sixty-percent of her body was missing skin), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed.2d 205 (1989); Ramseur, supra, 106 N.J. at 286-88, 524 *138A.2d 188 (defendant repeatedly stabbed victim, left, returned to inflict more wounds, and said he would kill her grandchildren if he could find them). By contrast, on several occasions the Court has found the evidence insufficient to justify a charge that the defendant had intended the victim to endure pain and suffering during the commission of the murder. See Matulewicz, supra, 115 N.J. at 200, 557 A.2d 1001 (defendant struck baby on head, threw her into crib, then shook her to death); Rose I, supra, 112 N.J. 454, 527-33, 548 A.2d 1058 (defendant shot victim once in abdomen with shotgun); Biegenwald II, supra, 106 N.J. at 50, 524 A.2d 130 (defendant shot victim four times in head at close range).

On this record, we find that the evidence was insufficient for a rational jury to find torture in the statutory sense. See McDougald, supra, 120 N.J. at 566, 577 A.2d 419. Multiple stab wounds, when combined with evidence of intent to torture, might support a charge on c(4)(c). Hunt, supra, 115 N.J. at 389, 558 A.2d 1259. At most, the evidence here demonstrates a violent killing from a knife attack that lasted several minutes. The record does not suggest that defendant sought to prolong either the attack or the suffering of the victim. For example, the testimony of Blanca Flores indicates that no more than five minutes elapsed from the time that defendant entered the apartment, killed the victim, changed his clothes, and left. The victim’s suffering by itself does not convert a homicide to capital murder. Even on the assumption that the attack was more than momentary, it is not enough that the victim’s death was painful. Under the statute, “torture” does not exist merely because the victim endured horrible pain. See Matulewicz, supra, 115 N.J. at 200, 557 A.2d 1001 (baby died six days after defendant struck her on head, threw her into crib, and shook her severely); Rose I, supra, 112 N.J. at 527-33, 548 A.2d 1058 (defendant shot victim once in abdomen with shotgun, and victim died three hours later in surgery). To constitute torture, the defendant must have intended to inflict pain incremental to that attributable to the act of killing. Here, the record is *139devoid of any such evidence. It bespeaks a killing that was violent and brutal, not one that was the product of torture. If so lethal an attack in so brief a period demonstrates “torture,” then virtually any murder could be considered a capital offense. Whether the defendant would be subject to the death penalty would be determined not by the evidence, for any evidence would suffice, but by the whim of the prosecutor. We do not believe that the Legislature intended so freakish a result.

In sum, the State did not prove “torture” under c(4)(c). It follows that the State may not rely on that factor on remand. See Biegenwald II, supra, 106 N.J. at 51, 524 A.2d 130.

The judgment of conviction for murder is reversed, and the matter is remanded to the Law Division for re-trial.