concurring in part and dissenting in part.
This capital-murder prosecution was based on proofs that defendant, an acknowledged drug addict, manually strangled a fourteen-year-old drug dealer in the course of an argument about money owed to the victim and defendant’s unwillingness to distribute drugs for the victim and his cohorts. Primarily on the basis of his confession, defendant was named in an eight-count indictment charging him, among other offenses, with murder, N.J.S.A. 2C:11-3a(2), felony murder, N.J.S.A. 2C:11-3a(3), and robbery, N.J.S.A. 2C:15-1. The robbery count was based on defendant’s admission that he took the victim’s coat and $60 from his pockets after the homicide. After indictment, the State gave notice of its intention to prove two aggravating factors, N.J.S.A. 2C:11-3c(4)(c), the aggravated assault/torture/depravity factor (hereafter c(4)(c)), and N.J.S.A. 2C:11-3c(4)(g), murder in the course of a felony. Defendant did not seek pretrial review of the sufficiency of the evidence supporting the aggravating factors. See State v. McCrary, 97 N.J. 132, 143-47, 478 A.2d 339 (1984).
Because the jury acquitted defendant of robbery, the trial court dismissed the felony-murder aggravating factor, 2C:11-3c(4)(g), and the penalty phase of the case proceeded solely on the basis of the c(4)(c) factor. The jury found that aggravating factor to have been proved, and found no mitigating factors. The court sentenced defendant to death.
The Court now affirms defendant's conviction of murder and related offenses. I concur in that aspect of the Court’s opinion. The Court also holds that the death sentence must be reversed because there was insufficient proof to warrant submission of the c(4)(c) aggravating factor to the jury. I acknowledge that the evidence supporting that aggravating factor is marginal, so marginal that one is prompted to question the exercise of prosecutorial discretion to treat this as a capital case. I disagree, however, with the Court’s conclusion that the evidence supporting aggravating factor c(4)(c) was insufficient to *179present a jury question. Hence, I would affirm both defendant’s convictions and sentence.
I.
The aggravating factor presented to the jury during the penalty phase of this case is set forth in N.J.S.A. 2C:11-3c(4)(c):
The murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim[.]
In State v. Ramseur, 106 N.J 123, 524 A.2d 188 (1987), this Court narrowly construed the c(4)(c) factor to sustain its constitutionality, concluding that the introductory language — (“[t]he murder was outrageously or wantonly vile, horrible or inhuman”) — “is indefinite beyond anyone’s ability to remedy, and presumably was so recognized by the Legislature * * Id. at 199, 524 A.2d 188. We determined that the qualifying language of c(4)(c) — that the murder “involved torture, depravity of mind or an aggravated assault” — described the essential elements to be found by a jury. Ibid. Concluding that “the essence of the legislative concern is the defendant’s state of mind,” id. at 207, 524 A.2d 188, we held that the c(4)(c) factor encompassed the class pf murders
in which defendant intended to, and did in fact, cause extreme physical or mental suffering — in addition to death. The state of mind that we require corresponds to our Code’s “purposeful” definition. Thus, the extreme physical or mental suffering must be precisely what defendant wanted to occur in addition to death. “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. [Id. at 208-09, 524 A.2d 188 (footnotes omitted).]
We also concluded that the words “depravity of mind”
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). The 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. [Id. at 209, 524 A.2d 188.]
In Ramseur we paraphrased the essence of an appropriate charge to the jury on factor c(4)(c):
*180Therefore, depending on the facts, the jury should be charged — without quoting the statute — that this aggravating factor exists if the murder involved torture, depravity of mind, or an aggravated battery to the victim. Torture or aggravated battery to the victim shall be found if the defendant intended to cause, and did in fact cause, severe physical or psychological pain or suffering to the victim prior to the victim’s death, "severity” measured either by the intensity of the pain, or the duration of the pain, or a combination of both. 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. [Id. at 211, 524 A.2d 188 (footnotes omitted).]
Addressing the nature of the proofs required to prove the requisite state of mind, the Court observed:
In most of these cases proof will be totally circumstantial, because the defendant is unlikely to get on the stand and testify to his intention to cause pain prior to death. The trial court will therefore be most careful to instruct the jury on the distinction between a finding that pain was foreseeable and the need to establish beyond a reasonable doubt that defendant intended to inflict pain prior to death. [Id. at 211 n. 38, 524 A.2d 188.]
Our decisions concerning the sufficiency of evidence to warrant submission of the c(4)(c) aggravating factor to juries have recognized the critical significance of circumstantial evidence in determining whether the defendant intended to inflict physical or psychological pain before death. Thus, in Ramseur, the defendant stabbed the victim “at least four times,” and after walking away returned to inflict additional wounds. Id. at 162, 524 A.2d 188. He then told the victim, “If I see your kids [grandchildren] again I’m going to kill them too.” Ibid. Although no specific evidence was offered concerning the defendant’s intent to inflict physical or psychological pain before death, we held that the evidence was sufficient to sustain a jury finding beyond a reasonable doubt that the defendant had purposely inflicted severe mental pain prior to the victim’s death. We observed that “a claim of lack of proof [of an aggravating factor] will be rejected where
viewing the State’s evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of ali its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [Id. *181at 287 n. 68, 524 A.2d 188 (quoting State v. Reyes, 50 N.J. 454, 459, 236 A.2d 385 (1967)).]
In State v. Bey, 112 N.J. 123, 548 A.2d 887 (1988), an autopsy of the homicide victim disclosed that she had been beaten, sexually assaulted, and strangled. The medical examiner also concluded that her assailant had stomped on her chest. The cause of death was ligature strangulation. Id. at 131-32, 548 A.2d 887. The defendant testified during the guilt phase of the trial, acknowledging that he had struck and sexually assaulted the victim but denying any recollection that he had stepped on her chest. No evidence was offered to prove that the defendant had intended to inflict physical or psychological pain before death, nor did the proofs indicate whether the victim was alive when the stomping occurred. We held that the jury charge on aggravating factor c(4)(c), delivered prior to our opinion in Ramseur, constituted reversible error. Id. at 173-74, 548 A.2d 887. Nevertheless, we acknowledged that the c(4)(c) aggravating factor could be resubmitted to the jury on remand. Id. at 174, 548 A.2d 887.
Similarly, in State v. Zola, 112 N.J. 384, 548 A.2d 1022 (1988), although the victim’s death was caused by manual strangulation, she had also been wounded in the throat and face, and a substantial portion of her body showed signs of scalding. Her body was found “spread-eagled” on her bed, with leather thongs tied to a wrist and an ankle. The defendant’s account of the homicide suggested that the scalding had been accidental, occurring during his attempt to revive the victim from a blow to the head that the defendant had perceived to have been fatal. No specific evidence was offered to prove that the defendant had intended to inflict pain before death. Without addressing the sufficiency of the c(4)(c) charge, we held that on remand the jury instruction should be in accordance with our holding in Ramseur. Id. at 433, 548 A.2d 1022. The Court also rejected the defendant’s contention that the evidence was insufficient to justify submission of the c(4)(c) factor to the jury:
*182The wounding and scalding of the victim here may indicate defendant’s desire to make the victim suffer before he killed her, or, if these injuries were inflicted after the victim had died, they could constitute a mutilation of the corpse. [112 N.J. at 434, 548 A.2d 1022.]
State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988), is also analogous. In that case the homicide victim was beaten in the course of a burglary and robbery. A witness testified that one of the perpetrators had struck the victim in the face with a television set. The medical examiner determined that
death was caused by blunt-force injuries to the head, specifically, cerebral concussions and a fractured nose, inflicted by blows of the fists and feet. [Id. at 50, 549 A.2d 792.]
There were discernible sneaker-prints on the victim’s face and forehead. Ibid. The medical examiner surmised that death resulted not from a single blow but rather from the sum of numerous blows. Id. at 51, 549 A.2d 792. In response to the defendant’s argument that the evidence did not demonstrate an intention to inflict pain prior to death, we determined that the record was sufficient “to sustain a finding that the defendant intended to and did cause ‘severe physical or psychological pain or suffering to the victim prior to the victim’s death.’ ” Id. at 66-67, 549 A.2d 792 (quoting State v. Ramseur, supra, 106 N.J. at 211, 524 A.2d 188).
Other decisions involving c(4)(c) also demonstrate that the jury must infer a purpose to inflict pain from the circumstances surrounding the homicide. Compare State v. McDougald, 120 N.J. 523, 567, 577 A.2d 419 (1990) (“Defendant had repeatedly slashed and bludgeoned the victims before killing them. Walter Bass was awake and knew he was dying and that defendant would also probably kill his wife. The jury could surmise that defendant purposely awoke Mrs. Bass with the first blow to the head and wanted her to know from that point on that she was going to die.' Although there are facts that could be interpreted to contradict those elements of c(4)(c), there is sufficient evidence to allow the issue to be submitted to the jury on remand.”) with State v. Hunt, 115 N.J. 330, 388-89, 558 A.2d 1259 (1989) (“[T]he evidence here is that Lawson was stabbed *183twenty-four times, was shocked by the attack, and bled for twenty minutes before dying. * * * Our concern is that if the c(4)(c) factor could be sustained on this evidence alone, there would be ‘no principled way to distinguish this case, in which the death penalty was imposed from the many cases in which it was not.’ ” (quoting Godfrey v. Georgia, 446 U.S. 420, 433, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398, 409 (1980))).
Evaluating defendant’s confession in the context of our c(4)(c) decisions suggests that this record was at least minimally sufficient to warrant submission of that factor to the jury on the basis of aggravated assault. After explaining that he and the fourteen-year-old victim had argued over drugs, defendant stated:
He stood as tall as I did, so I had to grab him. I grabbed him in the fashion that I learned in the Marine Corps, by the neck, and locking him. When we fell, the pressure of my grip strangled him obviously. He got limp for a few minutes, then he broke out into a rage as if he was trying to really get loose. I guess that’s when he was losing his life. And I held him for another minute or so and he just collapsed; he died.
After further questioning, defendant gave a more detailed account of the homicide:
A. * * * I thought he had a gun or a knife or something, cause he was too anxious to come at me. And, um, before I had gave him a chance to do such, when he walked towards me cause its a narrow room, I gave him enough room to get close enough to me where when he pointed at me, I moved to the side and I grabbed him and threw him back over me, you know. And, um, it was a method I learned from the Marine Corps. I grabbed him, threw my knee up and threw him down on it and kept him locked like that to restrain him. And, I seen that he wasn’t gonna cool out and he just broke into a rage and we scuffled for a few.
Q. He was resisting at this time?
A. Right. And, um, I just held on to him as tight as I could, and he relaxed for a second. Now, I know when you strangle somebody the first thing that they pass out. I assume that’s what happened. As soon as I gave a little bit of leeway is to let him go. He broke on me again and he had strength that I’ve never felt before and I knew if I let him go it was either me or him. That’s when I grabbed him with the death grip and didn’t let him go for at least thirty to a half a minute or even a minute. When he had no more movement in his body, I let him go. I could see then that I did something that I didn’t want to do because his tongue was puffed sticking out the side of his mouth. I don’t know if he was dead at that time. Maybe I could have saved his life if I would *184have called the police right away and an ambulance, but I didn’t do that. I was scared to death and, um, I searched him for a weapon. I didn’t find no weapon. He only had about forty some, about sixty something dollars on him and the drugs. I took both. I camouflaged his body, too, I carried, I didn’t push him down the stairs or anything like that.
Defendant’s statement describes a murder by manual strangulation in the course of which the victim struggled to survive, and from which a jury could rationally infer that the victim experienced physical or psychological pain, or both, before death. Manual strangulation necessarily involves the infliction of physical pain. Defendant’s statement indicated that after he assumed the victim “pass[ed] out,” he relaxed his grip; the victim struggled and defendant then “grabbed him with the death grip and didn’t let him go * * It would at least have been rational for the jury to have inferred from defendant’s statement that defendant made a calculated decision to kill the victim by manual strangulation and did so intending to cause severe pain before death. Whether defendant actually intended to inflict severe pain before death is, of course, debatable; but the evidence, qualitatively, is at least comparable to the evidence adduced in other cases in which we have held that a jury issue had been raised.
II.
Although I view the evidence supporting aggravating factor c(4)(c) as minimally sufficient to have presented a jury question, I am troubled about the basis for the exercise of prosecutorial discretion that resulted in the determination to try this as a cápital-murder case. We have frequently had occasion to express our concern about standards for the exercise of prosecutorial discretion to seek the death penalty in specific cases. In State v. McCrary, supra, 97 N.J. 132, 478 A.2d 339, we acknowledged the broad charging discretion inherent in the prosecutorial function but recognized the right to pre-trial review of aggravating factors to an extent sufficient to verify that the evidence was adequate to justify submission of an aggravating factor to a jury. Id. at 142-43, 478 A.2d 339. In Ramseur, we *185anticipated the need to consider, in the course of proportionality review, “whether to address concerns about possible misuse of prosecutorial discretion * * * including in the review all cases in which the prosecutor had the discretion to seek the death penalty.” 106 N.J. at 329, 524 A.2d 188. Additionally, in State v. Koedatich, 112 N.J. 225, 548 A.2d 939 (1988), we encouraged the adoption of prosecutorial guidelines to assist in the designation of capital cases:
[W]e recognize the need for greater guidance for prosecutors as they attempt to perform their constitutional duty of enforcing this statute. Other death penalty jurisdictions have held the validity of the prosecutor’s exercise of discretion depends solely on whether a factual basis exists for the charging of aggravating factors. * * * Nevertheless, we believe there is a need to promote uniformity in the administration of the death penalty, which will be an additional safeguard against arbitrariness and an assistance to this Court in its developing proportionality review.
Accordingly, we strongly recommend that the Attorney General, and the various County Prosecutors, in consultation with the Public Defender, adopt guidelines for use throughout the state by prosecutors in determining the selection of capital cases. [Id. at 258, 548 A.2d 939 (citations omitted).]
Justice Handler, dissenting in Koedatich, expressed the view that the lack of mandatory prosecutorial standards constituted an unacceptable flaw in our Capital Punishment Act:
As I intimated in dissent in State v. Ramseur, the breadth of the definition of capital murder, and the absence of meaningful narrowing through the consideration of aggravating factors, renders the jury’s discretion standardless. The absence of standards for prosecutors in such a scheme redoubles the infirmity of unguided discretion because the flaws that plague the jury’s function in the statute — the failure of the guilt-phase definition and the penalty-phase aggravating factors to guide discretion — are replicated in the absence of prosecutorial standards. 106 N.J. at 405-06, 524 A.2d 188 (Handler, J., dissenting). Moreover, the lack of guidance with respect to the prosecutor’s decision to charge a defendant with capital murder unacceptably increases the danger that the death penalty will be imposed arbitrarily because the needed narrowing function is not provided at this crucial initial stage of a prosecution. [Id. at 376, 548 A.2d 939.]
Among capital cases decided by this Court, this case is distinctive in that the homicide emanated from a conflict between two individuals engaged in the sale or use of drugs. The existence of slight evidence supporting the c(4)(c) aggravating factor was coincidental to the homicide, and the homicide itself *186appeared to be entirely spontaneous. The felony-murder aggravating factor was based solely on defendant's acknowledgment that he had taken sixty dollars and a coat from the victim after the homicide, and that factor was withdrawn from the case after the jury acquitted defendant of robbery. The impression is unavoidable that there was scant basis in the accumulated evidence to distinguish this homicide as one warranting a capital prosecution. The concerns expressed by Justice Handler, concurring in State v. Matulewicz, 115 N.J. 191, 208, 557 A.2d 1001 (1989), are pertinent to this case:
The risk of arbitrary enforcement of the death penalty due to the lack of a uniform statewide standard to guide prosecutors in their selection of capital defendants is heightened considerably when c(4)(c) is the sole aggravating factor relied on to transform a homicide into a capital case. [Id. at 208, 557 A.2d 1001.]
Concededly, the prosecutor in this case served notice of the aggravating factors prior to the adoption in February 1989 by the New Jersey County Prosecutors Association of “Guidelines for the Designation for Capital Prosecutions.” Whether those guidelines will prove in practice to be sufficiently specific to overcome the problem of arbitrariness in the designation of cases for capital prosecution, a problem that is addressed currently only in the course of proportionality review of a death sentence that has been affirmed, is uncertain.