dissenting in part and concurring in part.
The Court reverses defendant’s capital murder conviction and death sentence. It sustains, however, defendant’s conviction for non-capital murder and remands the matter for the imposition of sentence based on that murder conviction. In my opinion, the trial errors in this case call for the reversal of all the convictions. The most serious of these errors relate to the inadequacy of the voir dire; the admission of highly prejudicial evidence that had minimal probative worth; the refusal to accord defendant a hearing on the sufficiency of the evidence relating to all the aggravating factors proffered by the State; and the reliance on an aggravating factor with respect to which the State had not given any prior notice. In addition, I continue to believe that the many infirmities of the capital-punishment statute persist and also require that defendant’s convictions be reversed. See, e.g., State v. Marshall, 123 N.J. 1, 214-16, 586 A.2d 85 (1991) (Handler, J., dissenting); State v. Di Frisco, 118 N.J. 253, 284, 571 A.2d 914 (1990) (Handler, J., concurring in part and dissenting in part). I therefore dissent in part and concur in part.
*266I.
The voir dire in this case was so inadequate as to deprive defendant of his federal and state constitutional rights to a fair and impartial jury. As part of the voir dire, the trial court gave an instruction prior to the distribution of jury questionnaires that each potential juror was required to complete. The instruction included the advice that jurors would be disqualified if they were unable to “follow [the court’s] instructions as to the law at the close of the case.”
Virtually the identical instruction was given by the court in State v. Williams, 113 N.J. 393, 550 A.2d 1172 (1988) (Williams II). There the Court expressed strong disapproval of that preliminary instruction, concluding that “it effectively tells a juror what answers during the death qualification process lead to automatic excusal and what responses avoid excusal.” Id. at 412, 550 A.2d 1172. In State v. Hunt, 115 N.J. 330, 352, 558 A.2d 1259 (1989), this Court reiterated its disapproval of an instruction that signals the way a prospective juror can be excused. More recently, the Court admonished the trial court on remand to avoid language that would “specify the views that would disqualify a prospective juror.” State v. Clausell, 121 N.J. 298, 321, 580 A .2d 221 (1990).
In my opinion, the trial court’s preliminary instruction indicated precisely the kind of answer that would automatically trigger disqualification. Following that instruction, sixty-three jurors were questioned on their attitudes towards the death penalty; eleven were excused for cause. Reflecting the court’s preliminary instruction concerning disqualification, nine of those eleven indicated that their opposition to the death penalty prevented them from fairly applying the law, one indicated that he would always vote to execute a defendant convicted of murder, and one felt her feelings about capital punishment prevented her from being impartial. The possibility is too strong that the court’s explanation to the jury of the critical and ultimate test for juror qualification became a precise di*267rection for disqualification. The unfairness to this capital defendant that eleven jurors concocted excusable positions is unacceptable.
Other serious inadequacies surrounded the voir dire. During individual questioning, the trial court consistently followed a particular pattern in the death qualification process. First, the court would ask each juror if he or she had an opinion on the death penalty. If the juror responded that capital punishment was appropriate in certain circumstances, the court then asked highly leading questions, usually couched in absolutes, that called for “yes” or “no” responses. Typically, the court would ask whether the juror felt that some crimes deserved the death penalty; then it would ask whether the juror would vote for death in all cases where a defendant was found guilty of murder; finally, the court would ask one or two questions about whether jurors could make findings on guilt without considering punishment. Each of those questions could be answered either “yes” or “no,” without elucidation.
The Court has disapproved strongly of closed-ended questions that predetermine answers or elicit narrow yes/no responses. Williams II, supra, 113 N.J. at 418-423, 550 A. 2d 1172. The evil in that practice is its failure to reveal underlying biases. That shortcoming was more pronounced because, in many instances, the questioning was very superficial and wholly insufficient to uncover jurors’ underlying views concerning the death penalty, let alone to identify prospective jurors with misconceptions about the law.
One need look only at the pattern of questioning of impaneled jurors to get a sense of the pervasiveness of that inadequate questioning. Juror Judith Colon stated that she was both “for and against [the death penalty], [depending on the situation.” No clarification of that statement was elicited beyond a few highly-leading questions. Juror Matt Dranchak’s opinion on the death penalty was that “there should be one in existence and it should be treated for the stature of the crime, not apply *268it across the board, I believe the nature of the crime is the important thing.” No clarification of that point was attempted. Juror Dorothy Balkman expressed confusion after claiming to have no opinion on the death penalty, then gave conflicting responses on whether she would ever vote to impose it. When asked if she could never vote for death when guilt was found, she replied, “I could never, I couldn’t say I could never say never.” The court ascertained that what she meant was “I could never say never.” After receiving facially-correct responses to several more closed-ended questions, the court qualified that juror. When asked about the death penalty, alternate juror Jane Fisher felt that “each case is different, I think, some cases, it is, it should be done.” Other than a few leading questions, no further probing of that largely meaningless response was conducted. Questioning of juror Gerald Yost followed that same pattern. After stating that he was “not against” the death penalty “in certain cases,” he supplied the ostensibly correct “yes” and “no” responses to satisfy the court. Juror Helen Briglia could vote for death depending on “the way the murder was committed.” Follow-up inquiry consisted of standard questions the responses to which were unenlightening. Juror Marie Eckert told the court: “I don’t like the death penalty.” Yet she stated that she could vote for it if warranted. Probing did not extend beyond the same, simplistic questions. The questioning and ultimate qualification of juror Charles Cannon followed the same pattern.
Alternate juror Robin Cream told the court that she “would prefer not to be in the position to have to judge either way” on the death penalty. The judge discounted her views, stating: “But then everything we do in life is not always what we prefer to do.” He then asked her the standard questions and qualified her when she gave the correct responses. Juror Helen Kozak felt the death penalty is “fair in some cases and not fair in others. I think it depends on the circumstances.” When she confused guilt-stage considerations with penalty-phase considerations, the court distinguished them for her. Otherwise, the *269standard yes/no questions were unalterably asked. In deciding whether to vote for death, juror Harvey Hurst would consider “the nature of the crime;” all further death qualification followed the same catechistic pattern adhered to by the court. After initially offering no opinion on the death penalty, juror Gladys Campbell revealed that she would vote for death if the defendant “deserves it;” the court did not try to amplify that answer, merely resorting to its standard pattern of questioning. Juror Constance Gillard also initially expressed no opinion of the death penalty, then stated that she would have to hear “all the facts and then I would judge based on the facts.” The court’s consistent pattern of questioning followed. Those examples strongly indicate that death-qualification was shallow and yielded little information on jurors’ views on the death penalty.
Nor did the questioning of most jurors provide meaningful information on when jurors would vote to impose death. Thus, the trial court did not effectively determine whether a prospective juror would vote automatically to impose the death penalty in a sexual assault and murder of a thirteen-year-old girl. The significance of the omission of such questioning is highlighted by the questioning of Barbara Venditti, who had two teenage daughters, one of whom was thirteen. The examination of Venditti on her ability to be impartial was limited to closed-ended questions, following her- preliminary uncertainty over whether the fact that “the alleged victim in this case is thirteen” would “in any way interfere with [her] ability to be absolutely fair and impartial”:
A: I don’t know.
Q: Well, that’s why I’m asking you, I want you to think about it. You see, when we ask you whether or not you would presume the defendant to be innocent, you indicated you would. Now, that’s very important. Do you understand that?
A: Yes.
Q: And you have to be absolutely fair and impartial.
A: Yes.
*270Q: Now, the fact that the victim in the case is thirteen, would that in any way prevent you from being fair and impartial?
A: No.
The court then told the juror that charges do not constitute guilt and described the State’s burden of proof, following which the juror indicated that the age of the victim would not prevent her from being impartial. At least six jurors were excused because they had relatives close in age to that of the victim. Others were excused citing the age of the victim and the nature of the crime (not indicating whether they had family members close in age to that of the victim). However, even though several jurors volunteered to the court that they could not be fair because of the age of the victim and the nature of the crime, the court did not consistently ask prospective jurors about those vitally important considerations. One jury member, Harvey Hurst, and two alternates, Robin Cream and Jane Fisher, indicated that they had teenage children. None was questioned on his or her ability to be impartial. Those jurors may have been automatic death-penalty jurors when considering a sexual assault and murder of a young teenage girl. That possibility was not explored.
In Williams II, supra, 113 N.J. 393, 550 A.2d 1172, this Court found that similar deficiencies in the voir dire outweighed its effectiveness. Regarding autorpatic-death-penalty jurors (in that case, jurors who would automatically vote to impose the death penalty if the defendant had committed murder and rape), this Court observed that the trial court had asked all jurors if knowledge of the charges would in any way influence their decision concerning the imposition of the death penalty. That question alone was insufficient to identify automatic-death-penalty jurors. Further, the trial court had refused to allow defense counsel to pose additional questions that might provide insight into any juror’s views on the subject. We concluded that those failures constituted “serious error.” Id. at 417, 550 A.2d 1172. Thus, significant inquiry into juror *271feelings, views, and attitudes on the death penalty was foreclosed by resort to closed-ended and leading questions.
Further, the record strongly suggests that in many instances the explanations by jurors of their thinking on the death penalty was colored by the court’s own views. The trial court appears improperly and excessively to have influenced the content and tenor of jurors’ responses. The court strongly controlled the voir dire examination. Its control, however, was exercised in a very domineering and intimidating manner. The trial court frequently and consistently would tell a juror that it did not want to put words in his or her mouth, and would seemingly seek assurances from the juror that opinions expressed were the juror’s own. Yet, it appears that the court orchestrated its examination precisely to secure the opposite result — to elicit an answer that mirrored the court’s own view implicit in its question. Its words were precatory, but its message was mandatory. In light of the persistent judicial proselytizing, it is simply not possible to conclude with any confidence that the court did not in fact put words in the mouths of jurors.
Many of the court’s questions appear calculated to produce “correct” answers, and many of the jurors’ responses seem spoonfed. For example, almost invariably when a prospective juror indicated that he or she had read about the case, the court would immediately ask the juror: “You don’t believe everything you read in the newspaper, do you?” On receiving a “no” response, the court would then ask: “Isn’t it a fact that what I told you this morning was in greater detail than what you read in the newspaper?” Simply because that sentence is punctuated with a question mark does not disguise what is clearly a declarative statement. In fact, that kind of pointed question seems more suggestive of adversarial cross-examination than of even-handed voir dire.
Furthermore, the statement itself is confusing. It purports to suggest a contrast between court-furnished information and *272that derived from news accounts. It is hardly surprising that a juror would learn more about the case during an intensive orientation by the court than he or she would by reading a newspaper article. Thus, the court’s “question” in purpose and effect importuned the jury to agree with the view implied in the statement, namely, that a newspaper or television account of the crime would necessarily be incomplete and inaccurate and that a juror need not be concerned about having been thus exposed to the crime. The critical problem raised by such exposure, however, is not addressed: whether pretrial or extra-trial publicity has left a juror with impressions that will compromise the juror’s ability to deliberate fairly. See State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987). Cf. Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 2890, 81 L.Ed.2d 847, 856 (1984) (for purposes of evaluating impact of pre-trial publicity, “relevant question is not whether the community remembered the case, but whether the jurors ... had such fixed opinions that they could not judge impartially the guilt of the defendant”).
In sum, the appropriate and necessary inquiry is whether the juror had learned of any information that might prevent him or her from sitting as an impartial juror, not whether the court has explained the case in more detail than a news account. Thus, the mischief of the court’s “question” is that it obscures totally the impression and attitude of jurors who may have been tainted by such publicity.
An impartial jury is essential to a fair trial. Hunt, supra, 115 N.J. at 348, 558 A.2d 1259; Williams II, supra, 113 N.J. at 409, 550 A.2d 1172. Taken in its totality the voir dire in this case falls far short of the probing and extensive, the fair and balanced, the neutral and objective questioning that is an essential predicate to securing a jury with the degree of impartiality and strong sense of fairness necessary in a capital prosecution. We have stressed repeatedly that the “requirement of fairness — and particularly jury impartiality — is heightened in cases in which the defendant faces death.” State v. Williams, 93 *273N.J. 39, 61, 459 A.2d 641 (1983) (Williams I). Cf. Beck v. Alabama, 447 U.S. 625, 637-38, 100 S.Ct. 2382, 2389-90, 65 L.Ed.2d 392, 403 (1980) (capital cases require heightened degree of reliability). To secure that end, we have mandated that trial courts undertake a comprehensive inquiry into a juror’s attitude regarding the death penalty. Williams II, supra, 113 N.J. at 413, 550 A.2d 1172. Those principles were not followed in this case.
II.
Defendant contends that allowing the jury to watch excerpts of the film “10 to Midnight” constituted an abuse of the trial court’s discretion and violated due process of law. The Court rejects that contention with respect to the guilt phase. Ante at 250, 593 A.2d at 279. I strongly disagree. The prejudicial repercussions inherent in that evidence were so severe that they completely undermine any confidence one might have in the result reached in the guilt phase. Defendant was irretrievably prejudiced by that evidence with respect to his criminal convictions.
Detectives McLaughlin and Alger testified at the Miranda hearing and at trial that defendant had confessed to the murder of Tanya Samuels. Detective McLaughlin stated that in his confession defendant compared the murder to the film “10 To Midnight.” When McLaughlin expressed unfamiliarity with the film, defendant offered: “it was like the movie, like, you know, the girl kept screaming and the guy hit her ... he stabbed her.” Detective Alger’s recollection was slightly different. He testified that defendant had stated he did not know why he stabbed the victim but that “it was like in that movie when the girl in the movie kept screaming and she wouldn’t stop and the guy stabbed her. He said it was like that.”
Seizing on that remark, the State sought to introduce portions of “10 to Midnight” into evidence. Out of the presence of the jury, the prosecutor played the segments he wanted to *274introduce, running the rest of the film at fast-forward speed. Subsequently, the court agreed that two murder scenes from the film depicted in those segments would be shown to the jury. The first shows a nude woman standing against a tree, slowly sliding to the ground and sobbing while a nude psychopathic murderer approaches her. As the murderer reaches for and touches her head, the woman slowly rises, pleading “Warren, don’t hurt me. Warren, I’ll do anything for you.” The murderer plunges the knife into her. As the knife enters, the woman screams. The second murder scene portrays an apartment where a number of nurses reside. A woman cowers in a corner, shrieking and whimpering as the nude murderer, blood dripping from him, yells at her. The scene switches to a second woman hiding in a darkened adjoining room. When the camera returns to the first setting, the murderer’s body obscures the now-silent victim. The murderer moves aside, revealing the victim’s dead, bloody body.
Defense counsel strenuously objected to the admission of the film segments, stressing that “the request is somewhat outrageous____ What we have here is one of those sick mad slasher movies, we’ve got a man running around with no clothes on, obviously some kind of sexual pervert.” However, without even hearing from the prosecutor, the court rejected defense counsel’s objections. It found that defendant’s reference to the “10 to Midnight” movie relevant to his state of mind and that the film segments were relevant to the credibility of the police officers’ testimony concerning defendant’s reference to the film as well as to defendant’s motive for stabbing the victim. The trial court ruled that “where motive is so highly relevant no evidence should be excluded, [Evidence] Rule 4 should never be used.”
Immediately prior to the jurors’ viewing of the film, defense counsel restated his objections. He argued that if the film was to be shown to demonstrate defendant’s state of mind, only the second scene was applicable. The court ruled that both scenes could be relevant. The court then gave the jury a limiting *275instruction in which it stressed that the film would be shown only to help the jury decide whether the film existed and, if so, whether it related to defendant’s state of mind. The jury then viewed both film segments.
One can hardly claim that the film clips were necessary to establish the existence of the film mentioned by defendant in his confession. No one disputed the existence of such a film. Although it is true that the detectives might have been lying about defendant’s confession and implicitly about his reference to the film, viewing the film was hardly necessary to enable the jurors to assess the detectives’ credibility. If the detectives were lying about defendant’s confession in general, they could have been lying about his reference to the film regardless of the existence of the film. The fact that there was such a film simply has no bearing on whether the detectives were telling the truth.
The trial court’s finding of relevance hinges for the most part on its state-of-mind theory. The only evidence of defendant’s state of mind is that contained in the reference to the movie made in the course of his confession. That reference, however, mentions only the screaming of the victim. In contrast, the film segments encompassed highly potent evidence that went measurably beyond the circumstance of a victim screaming. Together the scenes graphically, vividly, and dramatically portrayed multiple sexually-driven murders committed by a cruel, perverted or psychopathic killer. Thus, the scenes depicted an extraordinarily savage, unremorseful, and dangerous killer: they show a murderer who kills often, who kills not simply because his victims are screaming, who kills while in the throes of some twisted sexual perversion, who kills out of cruelty or sadism, who kills because of some special rage or hatred toward his victims.
For instance, in the first scene the murderer and the victim know one another — she calls him by name; the victim is not screaming; she whimpers pathetically and pleads for mercy. *276The murderer approaches that victim deliberatively, caleulatedly, without remorse, and attacks her with obvious homicidal premeditation. His killing has nothing to do with her screams, which occur only as she is stabbed. In the second scene shown to the jury, the same murderer is seen; hence it is obvious that the murderer had already stabbed at least one other woman. Moreover, even within the second segment, it is evident that he has already killed other people because he is covered with blood before he cruelly kills his helpless, pleading victim. Further, he appears angered and frustrated, apparently because he was looking unsuccessfully for another woman, who is shown cowering in a hiding place. Thus, even though defendant’s confession indicated at most that the murder he committed focused on the screaming of his victim, the two scenes shown to the jury depicted a murderer with an egregious homicidal state of mind that is in no way described or suggested by the defendant in his confession.
The State acknowledges that the clips “portrayed crimes clearly distinguishable in surrounding circumstances from defendant’s murder of [Tanya Samuels].” The State nonetheless contends that the prejudicial impact of the film clips was minimal because the excerpts shown totaled only one minute and thirteen seconds. Regardless, the horror packed into those short scenes generates a devastating impact; the horror is more intense because the scenes are concentrated.
The State also argues that if any prejudice did result, it was offset by the court’s instruction on the limited purpose of the film, namely, “to demonstrate that the film existed and to shed some light on defendant’s conduct and what he meant by his reference to the film.” The trial court apparently believed that the film segments contained no spill-over evidence beyond that confined to a victim who is killed only because she is screaming. Incredibly, the trial court stated that “[w]ith respect to ... [a] sex maniac running about, of course, that’s not going to be shown to the jury.” Yet, it is clear beyond argument that the *277two film segments viewed by the jury did show graphically and precisely “a sex maniac running about.”
Evidence Rule 4 governs the exclusion of prejudicial or misleading evidence. Comment 1 on that Rule states that the balancing of probative value and prejudice is left to the discretion of the trial court. See State v. Carter, 91 N.J. 86, 106, 449 A.2d 1280 (1982). On appeal, the party seeking exclusion must show that “the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted.” Ibid, (citing State v. Rogers, 19 N.J. 218, 229, 116 A.2d 37 (1955); Evid.R. 4, Comment 2. Evidence of motive is admissible even if it will potentially inflame a jury. Ibid, (citing 1 Wharton, Criminal Evidence, § 170 at 316 (13th ed. 1972)). Yet, inflammatory evidence must be excluded if probative, non-inflammatory evidence on the same point is available. State v. Davis, 116 N.J. 341, 366, 561 A.2d 1082 (1989).
This Court has considered the prejudicial impact of photographs introduced -in the guilt phase of capital cases on several occasions. See, e.g., State v. (Samuel) Moore, 122 N.J. 420, 466-69, 585 A.2d 864 (1991); State v. Savage, 120 N.J. 594, 632-33, 577 A.2d 455 (1990); State v. McDougald, 120 N.J. 523, 579-83, 577 A.2d 419 (1990); State v. Rose, 112 N.J. 454, 535-36, 548 A.2d 1058 (1988). In those cases the photographs depicted the actual crime scenes and/or victims. The photographs related to the identity of the corpse and/or the time and manner of the murders. With the exception of Rose, in those cases this Court found that although some of the pictures may have been inflammatory, the defendant did not establish a palpable abuse of discretion. By contrast, in Rose, this Court determined that the trial court should have excluded an autopsy photograph depicting the site of a bullet entry wound because the photograph was highly inflammatory and the site of the entry wound had already been established by another photograph. However, in light of the overwhelming evidence of the defendant’s guilt, the Court found the erroneous admission harmless. 112 *278N.J. at 546, 548 A.2d 1058. The Court reached a similar result with respect to the admission of the victim’s blood-stained shirt and undershirt, which had been introduced to show the distance between the defendant and the victim when the latter was shot. This Court found that the court should have excluded the evidence, but that failure to have done so was harmless error. Ibid.
The evidence at issue here is qualitatively different from that in Rose. As prejudicial as were the photographs and bloodstained shirts in Rose, they at least constituted physical evidence that bore some relation to the circumstances of the crime. Here, the trial court admitted evidence only remotely connected to the circumstances of the criminal investigation, which carried with it a cavalcade of devastatingly prejudicial images, suggestions, and associations.
Further, showing a film to a jury is qualitatively different from showing it still photographs. With respect to the use of films at trial, the Appellate Division has noted that there “is danger of undue prejudice as a result of the jury’s placing inordinate weight on the moving pictures ... in light of the tremendous dramatic impact of motion pictures.” Balian v. General Motors, 121 N.J.Super. 118, 128, 296 A.2d 317 (1972) (citing Paradis, The Celluloid Witness, 37 U.Colo.L.Rev. 235 (1965)), certif. denied, 62 N.J. 195, 299 A.2d 729 (1973). Here, the visually riveting nature of “10 to Midnight” underscores that the film’s “predominant effect [was] to arouse the emotions of the jury without contributing enlightenment on the issues at hand.” State v. Bucanis, 26 N.J. 45, 52, 138 A.2d 739, cert. denied 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed.2d 1160 (1958) (citation omitted).
The trial court’s Evidence Rule 4 determination presents a palpable abuse of discretion. Defendant’s reference to “10 to Midnight” was vague and fleeting. It generates only the inference that he killed Tanya to quiet her. Yet, the court exposed the jury to scenes of a naked psychopath brutally *279stabbing defenseless women. Thus, allowing the jury to conjure up images from that film in considering defendant’s culpability appears to be the most inflammatory way to demonstrate defendant’s state of mind. See State v. Davis, supra, 116 N.J. at 366, 561 A.2d 1082 (“even relevant evidence of an inflammatory nature may not be admitted under Evid.R. 4, regardless of the availability of limiting instruction, if probative, non-inflammatory evidence on the same point is available”) (citation omitted). Although a jury is presumed to follow the court’s instructions, see State v. Manley, 54 N.J. 259, 255 A.2d 193 (1969), that presumption is surely dispelled when the evidence is minimal and its inflammatory • image is overwhelming. The court’s instructions were not a barrier against the jury believing that the psychopathic murderer’s state of mind exemplified defendant’s own state of mind.
There is another latent but invidious aspect to the trial court’s handling of that evidence. The court’s limiting instructions were grossly inadequate to guide the jury and protect defendant. The trial court explained to the jury that it had viewed the film, yet it did not ask if any jurors had seen the film and it failed to instruct the jurors not to see it. The court informed the jury as follows:
What we did, well, what I did, frankly, I looked at the whole movie. And the reason I looked at the movie is because you will recall testimony from two different witnesses and I’m not suggesting whether you should believe it or not believe it, but you heard the testimony from two different witnesses that the defendant allegedly during the course of his discussion concerning this matter made reference to the girl screaming and the guy, as I recall exactly, the guy killing her or stabbing her to stop her from screaming. Well, and he said like in “10 to Midnight.” * * * So I watched “10 to Midnight” to see if there was any place where there might be some indication that somebody was screaming and somebody got stabbed.
See State v. R.W., 200 N.J.Super. 560, 568, 491 A.2d 1304 (App.Div.1985) (trial court’s failure to instruct the jury not to watch television program on father-daughter incest in combination with two other serious, unrelated errors constituted reversible error in prosecution of defendant for sexual assault on daughter), modified on other grounds, 104 N.J. 14, 514 A.2d *2801287 (1986). Further, because the prosecutor’s application to show the film apparently postdated voir dire, jurors had not been questioned about whether they had seen it. Although there is no evidence that “10 to Midnight” was aired during the trial, curious jurors could have easily rented “10 to Midnight” and have been exposed to the potent message of the film. (The trial judge himself acknowledged the easy availability of the film. After viewing it at fast-forward speed, accompanied by the attorneys and court personnel, he quipped: “I’ve spoiled it for everyone. But I guess for ninety-nine cents at 7-11 you can rent it.”). Moreover, there may have been jurors who had already seen the film. Thus, defense counsel in objecting to this evidence argued:
[W]hen the name of the film was first mentioned to me I didn’t realize that I had seen this movie before. Once I saw a brief portion of it I remembered the entire movie, what the entire movie was. And we may have jurors in the same situation that all they need to see is a brief portion and to remember the theory behind the entire film and I think that, too, would operate unjustly to the detriment of the defendant.
The trial court did nothing about the palpable risk of juror familiarity with the film. Astonishingly, the court seemed to have convinced itself that the segments themselves did not show “a sex maniac running about” and therefore the jury would not confuse defendant with the sex maniac featured in the film. With that assumption, the court rationalized that the probative value of the film substantially outweighed its prejudicial effect. However, it is clear that the film segments themselves showed “a sex maniac running about” committing multiple murders, and were profoundly and irretrievably prejudicial.
Further, if jurors viewed the actual film, they would have been exposed to its vivid and powerful messages: that psychopathic sexual killings can be grossly savage, that cunning criminals can take advantage of a criminal justice system laden with technicalities, and that true justice can be achieved only by *281vigilante retribution, not by the criminal justice system.1 There *282is no way to be confident that those messages may not have been brought to bear on the deliberating jury, i.e., if the jury did not vote to convict and sentence to death, defendant would be free to kill again. It is the type of suggestion that should not be communicated to a jury in the trial of a capital-murder case. See, e.g., State v. Koedatich, 112 N.J. 225, 323-25, 548 A.2d 939 (1988). Further, the lurid, violent images from the film would not be easily erased from the minds of the jurors. In essence, the film itself is so bloody and gruesome and its message so inconsistent with the law applicable to the case that it could completely mislead the jury and blot out its ability to deliberate.
Still, the State, with this Court’s concurrence, contends that any error in the admission of the film segments was harmless because of the overwhelming evidence of guilt. Such an argument overlooks the fact that absent the showing of the film, the jury might well have found that defendant’s conduct indicated something less than purposeful murder. For example, the jury might have found that during the course of an attempted robbery, defendant had struck the victim out of panic or fear of being identified. Once he realized she was dead or dying, he panicked further and disposed of her body in a creek. Even if this Court is uncertain about the admissibility of the film, this is a capital case in which concerns for procedural protections intensify and the need to resolve uncertainties in favor of the defense becomes commanding. State v. Bey, 112 N.J. 45, 548 A.2d 846 (1988) (Bey I). The level of solicitude demanded in a capital prosecution tips the balance.
Moreover, the prejudicially harmful effect of the error is not conjectural. During the sentencing phase, for example, the jury found the presence of the c(4)(c) aggravating factor, which includes depravity of mind. It is quite likely that the viewing *283of the film contributed to its finding because the prosecutor, appreciating the impact of the film, expressly tied the segments to the (c)(4)(c) aggravating factor:
And if we talk about a depraved mind, let’s finally go to the issue of the movie that he described. Can you believe this man was so overwrought with guilt that he should find at the feet of this jury compassion and mercy when he proceeds to describe to the police what you saw in this courtroom? That is, his ability to describe a movie that he had seen and was helping the police understand how the victim was screaming before he killed her? Is that depravity? I submit to you, ladies and gentlemen, that this case reeks of the defendant’s depraved mind. And the foul stench of what he did goes far beyond driving a spike in someone’s head, because it shows what was going on in his mind at the time____ And he proceeds to help the cops by saying: look, there’s a movie, if you’ve seen it. Here’s what happens: some guy kills a couple of girls and this is what they're doing, they’re screaming, so forth. You saw that. The evidence of that movie was presented not to get you to believe in any way what you were seeing meant he was guilty of murder, but it was offered even more importantly at this point to show his state of mind. That evidence was highly relevant and important in the guilt phase of the trial, but it’s even more so now, because now he’s explaining to you in a way that you can see in this courtroom the kind of things that he was thinking of and the kind of mind that this man had when he committed the acts that you’ve already said he’s done beyond a reasonable doubt.
It is clear that the prosecutor relied on the film segments solely for the purpose of arousing the passion of the jury to a level that would impel it to impose a death sentence. It is equally clear that he succeeded. See State v. Poe, 21 Utah 2d 113, 441 P.2d 512 (1968) (trial court abused its discretion by permitting jury to see gruesome color slides of autopsy of victim when all the material facts that could have been adduced by viewing the slides had been established by uncontradicted testimony; showing the slides served the sole purpose of arousing passions of jury “so that they would not recommend life imprisonment”). It cannot be assumed that that evidence did not have a similar impact on the jury’s deliberations on criminal guilt.
One final issue, not raised by defendant, relates to the prejudicial impact of the film on the jury’s deliberation on the aggravated-criminal-sexual-contact charge. The State adduced marginal evidence on that charge. Viewing the film excerpts *284surely would have imported vivid, prejudicial images of sexual aggression into the jury’s deliberations, injecting powerful suggestions of sexual depravity into the case. Images of nude murders, conveying the notion of sexual attack, might well have persuaded the jury to find aggravated sexual contact on otherwise borderline facts. (The film itself makes the point directly — the murders are sexually motivated. As Bronson, who plays the detective in the movie assigned to the case, theorizes: the murderer uses a knife as a penis.) The State’s reference to and reliance on the film confirms its prejudicial and harmful effect with respect to the sexual-contact charge.
Beyond question the probative worth of the film segments was minimal, its capacity to prejudice and confuse overwhelming. The decision between life and death, as well as the determination of criminal guilt, might have hinged on the admission of the film. I would reverse defendant’s convictions of murder and sexual contact because the trial court erred by failing to exclude the film excerpts.
III.
The Court acknowledges that defendant’s conviction does not establish death eligibility, as the trial court failed to properly charge the jury on capital murder under State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988). Ante at 228, 250-255, 593 A.2d at 268, 279-281. I agree with the Court’s reasoning on this issue. I disagree, however, that the Court, as requested by the State, can simply mold defendant’s conviction to one of non-capital murder. Ante at 228, 593 A.2d at 268. As I have explained elsewhere, we cannot be certain that had the jury been given a full and proper charge on murder that included and clearly differentiated between capital and non-capital murder, it would have rejected a determination of guilt with respect to both and have found that a lesser form of homicide had been established in the evidence. State v. Perry, 124 N.J. 128, 192, 590 A.2d 624 (1991) (Handler, J., concurring in part and dissenting in part); *285State v. Hunt, supra, 115 N.J. at 407, 409-10, 558 A.2d 1259 (Handler, J., dissenting). Further, because of its disposition of the case on this issue, the Court fails to reach issues relating to the sentencing phase of defendant’s trial. Those issues, arising from the State’s notice of aggravating factors and its decision to prosecute this matter as a capital case in the face of inadequate evidence of aggravating factors, implicate fundamental fairness and due process concerns, and as such, warrant additional comment.
A.
In State v. McCrary, 97 N.J. 132, 478 A.2d 339 (1984), this Court sanctioned pretrial judicial review of the sufficiency of evidence supporting aggravating factors that the State proposes to prove during a sentencing proceeding. The allegation of aggravating factors has “momentous effects. Without notice and proof of an aggravating factor, there can be no death penalty.” Id. at 140, 478 A.2d 339.
At pretrial proceedings in this case the trial court refused to conduct a McCrary hearing to determine the adequacy of evidence supporting aggravating factor c(4)(c). It ruled that such a hearing was obviated because there were other aggravating factors, c(4)(f) and (g), that were not challenged, and presumably would remain in the case.
State v. Spotwood, 202 N.J.Super. 532, 495 A.2d 483 (Law Div.1984), directly addressed the question raised here, namely, whether a defendant is entitled to a pretrial hearing to challenge the sufficiency of any aggravating factors as long as there is another aggravating factor that is not challenged. In Spotwood, the State gave notice that it intended to establish two aggravating factors to support a death sentence. The defendant moved to dismiss one of the two aggravating factors. The court rejected the defendant’s request, stating that McCrary dealt with a situation in which the defendant sought dismissal of both aggravating factors alleged by the prosecu*286tor. In that situation, the court reasoned, dismissal of both factors “would dispose of the need for a death-qualified jury and a separate sentencing hearing, and would free defendant from the specter of the death penalty.” 202 N.J.Super. at 534, 495 A.2d 483. The court contrasted that situation with the one before it, declaring that the existence of one unchallenged aggravating factor would, in any event, require the case to proceed as a capital one and, hence, a pretrial hearing to challenge another aggravating factor would be “a needless exercise of judicial action.” Ibid. It noted further that if the defendant were to be convicted, he could then move to dismiss the remaining aggravating factor prior to the penalty phase. Ibid.
Evidently, the court in Spotwood believed that the exclusive “need” served by a McCrary hearing is to determine only whether the State will seek the death sentence. Concededly, the important concern that is addressed by the McCrary proceeding is whether the prosecution should go forward as a capital case. But the McCrary proceeding also necessarily determines how a capital case should go forward. Hence, the concerns inevitably implicated by a McCrary hearing are both whether and how a prosecution is to be presented as a capital case.
There can be no question that the presence of an aggravating factor can affect the course and content of jury voir dire, as well as the trial itself in both its guilt and penalty phases. See State v. McCrary, supra, 97 N.J. at 141, 478 A.2d 339. Aggravating factors are based on evidence that frequently is admitted in the guilt phase of the trial. Hence, it is extremely important for defense counsel to know what evidence is likely to be introduced and how likely it is that evidence will be found sufficient to support not only an aggravating factor in the subsequent penalty trial but, as well, a determination of guilt in the criminal trial. See, e.g., State v. Marshall, supra, 123 N.J. at 240-42, 586 A.2d 85 (Handler, J., dissenting). For example, preparatory to jury selection, knowing whether a jury harbors *287feelings of bias or prejudice with respect to circumstances that can be relevant to guilt as well as sentencing, i.e., if the defendant has a prior murder conviction, e.g., State v. Pennington, 119 N.J. 547, 575 A.2d 816 (1990); or if the defendant has committed other crimes, e.g., State v. Long, 119 N.J. 439, 575 A.2d 435 (1990); or if the defendant committed a sexual assault on his victim, e.g., State v. Zola, 112 N.J. 384, 548 A.2d 1022 (1988); State v. Williams II, supra, 113 N.J. 393, 550 A.2d 1172, or if the victim was particularly vulnerable because of his or her status or condition, e.g., State v. (Samuel) Moore, supra, 122 N.J. at 446-51, 585 A.2d 864, may all be critical. Moreover, virtually identical evidence may be applied differently with respect to guilt and sentence. See, e.g., State v. Pennington, supra, 119 N.J. 547, 575 A.2d 816 (in capital prosecution, prior murder conviction that can be used as an aggravating factor in penalty phase of trial can be used to affect credibility in guilt phase). Thus, a defendant’s strategy may be substantially influenced by whether evidence that bears on both the issues of guilt and penalty should or will be used in both phases of the trial. See State v. Pitts, 116 N.J. 580, 562 A.2d 1320 (1989) (psychiatric evidence that was not admissible in guilt phase could be used as mitigating evidence in penalty phase); cf. State v. Marshall, supra, 123 N.J. 1, 586 A.2d 85 (evidence of good character and reputation bearing on motive in guilt phase also relevant to mitigating factor in sentencing phase). Furthermore, the trial court itself, in determining admissibility of evidence, may be required under Evidence Rule 4 to engage in a more complex and delicate balancing of probative worth and prejudicial potential when evidence does double duty with respect to both the issues of guilt and penalty. State v. Clausell, supra, 121 N.J. 298, 580 A.2d 221. Thus, the elimination of any possible use of such evidence as an aggravating factor for sentencing purposes can fundamentally alter defense strategy as well as the court’s conduct of the trial.
Fairness concerns for the defendant must, of course, dictate the proper procedural course in a capital cause. The bifurcat*288ed-trial system necessarily means that the same jurors who must determine the defendant’s guilt or innocence will, on the return of a verdict of guilty of capital murder, also determine whether the defendant lives or dies. Thus, from the outset of the case, defense counsel must formulate a trial strategy with the sentencing phase in mind. Even before voir dire begins, counsel must plan to defend against the aggravating factors that may be submitted at the sentencing phase. As one commentator has noted,
it is reasonable to assume that the experience of hearing trial evidence and deciding on the guilt of the defendant will influence penalty phase decision making. Certainly the possibility of such influence controls trial strategy.
[CJapital jurors begin the penalty phase with a story developed during the guilt phase____ [Ojnce the story has been developed, jurors are likely to resist reconstruction of it. Hence, the guilt phase and penalty phase are necessarily interdependent, pointing to the need for integrated trial phase and penalty phase strategies. [Hans, “Death by Jury,” in Challenging Capital Punishment 149, 158, 162 (K. Haas & J. Inciardi, eds., 1988).]
Given the overwhelming burden of preparing a defense in a capital case, see Goodpaster, The Adversary System, Advocacy, and Effective Assistance of Counsel in Criminal Cases, 14 N.Y.U.Rev.L. & Soc. Change 59 (1986), defense counsel should not be saddled with the additional burden of defending against aggravating factors that might have been dismissed at a pretrial hearing. Counsel must, at a McCrary hearing before trial, have the opportunity to challenge the sufficiency of the evidence of any aggravating factor, for that factor may substantially affect the course and conduct of the entire trial.
It may be, as McCrary notes, that, in contrast to the California capital-murder statute, the New Jersey capital-murder practice does not require that aggravating factors be charged in an indictment or “accusatory pleading.” McCrary, 97 N.J. at 145, 478 A.2d 339. That distinction, however, does not bear on whether the availability to a capital defendant of a full pretrial hearing on the evidentiary sufficiency of aggravating factors is essential. Even though aggravating factors need not be *289presented to or found by a grand jury, formal pretrial notice of aggravating factors is absolutely essential as a matter of fundamental fairness and due process. See N.J.S.A. 2C:11-3(c)(2)(e); R. 3:13-4(a). „ Hence, whether such aggravating factors must be included in the original accusation or indictment or only in a notice before trial, the reasons that entitle a defendant to challenge such factors are equally compelling. Cf. Richards v. Superior Court, 146 Cal.App.3d 306, 194 Cal.Rptr. 120 (1983) (“California permits pretrial challenges to unsupportable ‘special circumstances’ used to justify the imposition of the death penalty, even when unchallenged ‘special circumstances’ remain.”), rev’d on other grounds, People v. Morales, 48 Cal.3d 527, 257 Cal.Rptr. 64, 770 P.2d 244 (1989).
Moreover, Spotwood fails wholly to accommodate our strong policy to avoid the unfairness and mischief that is wrought by overcharging. E.g., State v. Christener, 71 N.J. 55, 362 A.2d 1153 (1976). That type of error has even more foreboding prejudicial consequences in the context of a capital-murder prosecution. See, e.g., State v. Rose, supra, 112 N.J. at 553, 548 A.2d 1058 (Handler, J., dissenting). Aggravating factors, which bear the basic characteristics of substantive criminal offenses, convert ordinary murder prosecutions into capital-murder trials. They inflate enormously the gravity of the crime that confronts the defendant. State v. Spotwood, supra, 202 N.J.Super. at 534, 495 A.2d 483. That prior to the commencement of the guilt-phase trial the jury will become aware that the State intends to establish the existence of aggravating factors, inevitably conditioning the jury to believe that the case is extremely grave, a capital case, is obvious. The more aggravating factors that are invoked, the more pervasive and persistent will be the impression of jurors with respect to the extreme gravity of the charges, greatly increasing the prosecutorial risks faced by the defendant. We have recognized a trial court’s obligation, on the defendant’s request, to question jurors in voir dire about their ability to weigh evidence fairly in light of aggravating factors present in the case. Williams II, *290supra, 113 N.J. at 417, 550 A.2d 1172 (“the trial court’s refusal to allow questions that might provide important insight into any juror’s attitude concerning a rape accompanying a murder constitutes serious error”). A successful challenge to an aggravating factor eliminates the need for the jury to be examined with respect to that aggravating factor. If the defendant can successfully eliminate the presence of any aggravating factors before the initiation of the guilt trial, he or she should be given the opportunity to do so.
Moreover, the failure to permit a defendant to challenge aggravating factors can have very concrete and practical detrimental effects. Here, for example, although two aggravating factors, (c)(4)(f) and (g)), remained unchallenged, those factors were effectively removed from the case when the jury acquitted defendant of robbery. See discussion infra at 252-260, 593 A.2d at 280-284. Indeed, aggravating factor c(4)(g) was not even submitted to the jury. Thus, had defendant successfully been able to challenge the c(4)(c) aggravating factor, the case might not have been prosecuted or continued as a capital prosecution.
Further, even though the case from its inception was prosecuted as a capital cause, there is a possibility that the jury might not have reached the same guilt determinations with respect to the several crimes charged had defendant been able to remove the c(4)(c) factor from the trial. Although the jury was not formally instructed with respect to aggravating factors until after the guilt-phase verdict, the jury embarked on the guilt trial and entered into its deliberations of guilt with the distinct understanding that if the defendant were found guilty of capital murder, it would be expected and required to consider the evidence bearing on the appropriateness of the death penalty, and that its determination would involve consideration of aggravating factors. Thus, the jury surely sensed that the State believed that the case was a capital case and that a jury could reasonably conclude that defendant deserved to die for his crime, and that there was sufficient evidence of aggravating *291factors to justify the death sentence. In this context, to conclude there was no danger that the jury would compromise its determination of guilt because of the presence of potential aggravating factors, simply because it would not be instructed on aggravating factors or required to determine this existence until the penalty phase of the case, is unrealistic.
In short, the reasons impliedly accepted by the Court for denying a McCrary hearing on challenged aggravating factors are insubstantial and unpersuasive. Those reasons are surely outweighed by considerations of fundamental fairness, which call for such a hearing.
B.
Further, fundamental fairness and due-process concerns are implicated in the State’s submission of the c(4)(f) aggravating factor in the penalty-phase of the trial as well as the majority’s suggestion that the c(4)(g) factor may have been validly submitted had felony murder based on attempted aggravated sexual contact been charged sua sponte. The State charged defendant in the indictment with the separate offenses of aggravated criminal sexual contact and robbery. The State also charged defendant with felony murder, for which the predicate felony was robbery. Robbery under N.J.S.A. 2C:51-1 is enumerated by the New Jersey Code of Criminal Justice (Code) as a felony and can, as in this case, be charged as a predicate felony. See 2C:11-3a(3). Aggravated criminal sexual contact (which is a sexual offense that does not involve penetration), N.J.S.A. 2C:14-3a, is not enumerated as a felony under the Code, and hence cannot constitute a predicate felony for felony murder. The jury acquitted defendant of robbery and felony murder. However, it convicted defendant of aggravated criminal sexual contact. On appeal, defendant, understanding that aggravated criminal sexual contact is not a felony, argues that the evidence that supported his conviction for aggravated criminal sexual contact would also support the offense of attempted aggrava*292ted sexual assault (ie., an attempt to commit a sexual assault involving penetration). Hence, defendant contends that because aggravated sexual assault is a felony under the Code and the “attempt” to commit a crime is considered the equivalent of the crime, the court should have charged sua sponte felony murder on the basis of attempted aggravated sexual assault.
Whether the court in these circumstances should have charged the crime of felony murder based on the predicate offense of attempted sexual assault poses a difficult and delicate problem. To have done so would have been consistent with our policy that all forms of homicide rationally supported by the evidence, whether they be lesser-included or alternative offenses, should be placed before the jury. See, e.g., State v. Grunow, 102 N.J. 133, 506 A.2d 708 (1986). That policy assumes even greater significance in the context of a capital-murder prosecution. See State v. Rose, supra, 112 N.J. at 552-54, 548 A.2d 1058 (Handler, J., dissenting). The Court, nevertheless, rejects defendant’s claim, implying that to allow such a charge would be unfair to defendant. Its theory of “unfairness” is problematic.
What if the jury had convicted defendant of intentional murder and then had premised a sentence of death on this attempted sexual penetration, viewed as an aggravating factor? We could well envision that if the court on its own motion had submitted this felony to the jury and the jury had not only found attempted sexual penetration but predicated a death sentence on it, what a troublesome issue it would be to review on appeal. [Ante at 256, 593 A.2d at 282.]
The Court seems to suggest that in order to be fairly tried for criminal guilt based on a new charge of felony murder, defendant would be unfairly exposed to the death penalty. I cannot believe, however, that defendant’s entitlement to a complete charge on all offenses that are rationally supported by the evidence could, in effect, require an election on whether or not to face the death penalty.
Aside from the merits of defendant’s underlying claim on this point, the problem with the Court’s view is that it assumes that a jury might have validly based a death sentence on attempted *293sexual penetration. I disagree because in the absence of such an offense being specifically included in the State’s formal notice of aggravating factors, that offense may not be used by the State to obtain a sentence of death.
N.J.S.A. 2C:11-3(e)(2)(e) and Rule 3:13-4(a) require that the State give the defendant notice of the aggravating factors the State will seek to prove at sentencing. See State v. McCrary, supra, 97 N.J. 132, 478 A.2d 339. This is a strict requirement that cannot be circumvented; it allows a defendant adequately to prepare a defense and craft trial strategy that may save his or her life. See discussion supra at 247-253, 593 A.2d at 278-281.
The c(4)(f) aggravating factor requires the State to prove that defendant committed a murder in order to escape detection from or apprehension for an underlying offense. Here, the State expressly relied on robbery as the underlying offense; indeed, defendant obtained an interlocutory Appellate Division order requiring the State to specify the offense that was the basis of the c(4)(f) factor. Subsequently, at a pretrial hearing, the prosecutor specified to the trial court that the State would rely on robbery:
MR. KLEIN (DEFENSE COUNSEL): [T]he statute refers to a homicide that was committed for the purpose of avoiding detection as to another offense.
THE COURT: Weil, ail right. So, I—
Mr. KLEIN: The question is what is the other offense?
THE COURT: Robbery.
MR. KLEIN: You answered that but the prosecutor hasn’t, your Honor.
THE COURT: [0]nly robbery is alleged as a predicate felony under the statute.
Isn’t that your intention, robbery, is it? Isn’t it?
MR. WIXTED (THE PROSECUTOR): Yes, your Honor.
THE COURT: That couldn’t be clearer.
MR. KLEIN: It’s clearer because he said it on the record.
********'
THE COURT: ... I saw immediately that the offense which he was alleging your client was endeavoring to avoid by way of his actions was that of robbery.
*294THE COURT: I find both factually, legally and in compliance with [the Appellate Division’s] direction and my order that the prosecutor has responded saying the offense is robbery.
The jury, it cannot be overemphasized, acquitted defendant of robbery, and the derivative offense of felony murder. Nevertheless, at the sentencing phase, the prosecutor argued that defendant’s conviction for aggravated sexual contact could be substituted for robbery and used to support the c(4)(f) factor. The trial court agreed with the prosecutor, and ultimately the jury concluded that c(4)(f), based on aggravated sexual contact as an “offense,”, had been established and was of sufficient weight to justify the imposition of the death sentence.
Due process requires that the State specify the offense on which it intends to rely in submitting the c(4)(f) factor with enough specificity so that the defendant can prepare to meet and defend himself against the State’s allegations. See State v. Coyle, 119 N.J. 194, 238, 574 A.2d 951 (1990) (“Because of the stakes involved in a capital case, [this Court] compel[s] the State to offer all its proofs of any applicable aggravating factor against the defendant at his or her first trial.”) (quoting State v. Biegenwald, 110 N.J. 521, 541, 542 A.2d 442 (1988)); New Jersey Parole Bd. v. Byrne, 93 N.J. 192, 209, 460 A.2d 103 (1983) (“Due process is flexible and calls for such procedural protections as the particular situation demands.”). In this case, the State did in fact specifically charge robbery both as a substantive offense in the indictment and the “offense” constituting the aggravating factor of c(4)(f). It offers no sensible reason why it should be permitted to depart from the requirement of actual notice and belatedly use another, uncharged offense to secure a death sentence.
The prosecutor could have alleged more than one predicate offense for the c(4)(f) factor, but failed to do so. Although there was evidence adduced relating to sexual offenses, the State chose not to rely on that evidence to support the c(4)(f) factor. Moreover, there is nothing to suggest that there was any surprise visited on the prosecution as a result of unantic*295ipated trial developments that generated new evidence of a sexual offense not previously revealed to the State in the course of its investigation. Further, there is no suggestion that defendant induced the State to commit to a particular theory and later introduced new evidence. Thus, all of the evidence was available to and fully anticipated by the State at the time it formally stated that it would rely on robbery as the underlying offense to c(4)(f). In response to defendant’s proper request for specificity in order to prepare his defense, the State specified the underlying offense of robbery for the c(4)(f) aggravating factor. The State cannot alter its theory because it discerns a strategically more advantageous view of the same evidence. It cannot simply blindside a defendant by switching theories when the first one fails.
In sum, the jury could not have found the c(4)(f) factor. Robbery was eliminated as a predicate offense, and neither aggravated criminal sexual contact nor attempted aggravated sexual assault (penetration) was charged as a predicate offense in the formal notice of aggravating factors.
Similar, if not more compelling, reasons would invalidate any attempt by the State to revive the c(4)(g) factor. That factor aggravates a murder committed in the course of certain enumerated felonies, including sexual assault and robbery, or the attempt to commit such a felony. The c(4)(g) factor was not submitted to the jury because the State had relied on robbery as the predicate felony in its notice of aggravating factors, and defendant was acquitted of robbery. (Recall that the majority suggested that had the trial court sua sponte charged felony murder based on attempted sexual assault (penetration), the substantive offense of attempted sexual assault may have triggered an aggravating factor in the penalty phase; the majority thus implied that attempted sexual assault could have served as a predicate felony to the c(4)(g) factor, even though that factor had been dropped by the State after defendant was acquitted of robbery — the felony on which the State relied pursuant to the notice of aggravating factors). The State, as *296indicated, did not include any sexual offense as a basis for any aggravating factor. More significantly, the defendant was not charged with the substantive crime of sexual assault or attempted sexual assault. The State, I submit, may never base an aggravating factor on a substantive crime or felony for which a defendant has not been charged and convicted in the trial to determine criminal guilt.
In no capital case that we have reviewed since the reimposition of the death penalty has the State submitted the c(4)(g) factor without defendant having been indicted for and convicted of the underlying felony. See, e.g., State v. (Samuel) Moore, supra, 122 N.J, 420, 585 A.2d 864; State v. McDougald, 120 N.J. 523, 577 A.2d 419 (1990); State v. Hightower, 120 N.J. 378, 577 A.2d 99 (1990); State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988); State v. Bey II, 112 N.J. 123, 548 A.2d 887 (1988); State v. Bey I, supra, 112 N.J. 45, 548 A.2d 846. That is so because in order to be found guilty of felony murder, one need have only the intent to commit the underlying felony; that intent suffices to establish guilt of both the felony and the murder. In contrast, for the c(4)(g) factor to be found, the defendant will have already been convicted of capital murder. Hence, the defendant must have formulated both the intent to commit knowing or purposeful murder and the intent to commit the underlying felony. See State v. Ramseur, supra, 106 N.J. at 189 n. 2, 524 A.2d 188 (distinguishing the c(4)(g) factor from the felony-murder doctrine, and emphasizing that those convicted only of felony murder, but not purposeful murder, will not be subjected to the death penalty). The c(4)(g) factor involves “two separate and distinct culpabilities with conduct constituting two separate crimes.” See Brewer v. State, 275 Ind. 338, 417 N.E.2d 889, 911 (1981) (Debruler, J., dissenting and concurring) (discussing Indiana’s analogous aggravating factor). Permitting the State to submit aggravating factor c(4)(g) in the absence of an indictment for the underlying or predicate crime, in effect, allows the defendant to be tried for and found guilty of a crime for which he has not been charged. See N.J. Const., *297art. I, para. 8 (“No person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury____”). That is clearly impermissible.
It also is violative of fundamental fairness. The determination that a defendant is subject to an aggravating factor involving a statutory felony is tantamount to the determination that defendant has committed that substantive crime. See State v. Ramseur, supra, 106 N.J. 123, 524 A.2d 188. The failure to indict for the underlying felony deprives the jury of the opportunity formally to focus its deliberations on culpability alone. It denies defendant the basic right to have the jury determine independently guilt or innocence on that charge apart from its consideration of other charged crimes, and, more importantly, apart from its consideration of the death sentence. The State should not be allowed to withhold the charge of the substantive criminal offense when that offense also constitutes the basis for an aggravating factor and arises out of the same criminal event and is supported by the same evidence. Cf. State v. Gregory, 66 N.J. 510, 333 A.2d 257 (1975) (State must avoid fractionalizing prosecution).
Predicating the c(4)(g) factor on an unindicted felony also implicates the concerns of double jeopardy. We have recognized that aggravating factors shadow criminal guilt. Determination of aggravating factors can trigger double jeopardy. See State v. Biegenwald, 106 N.J. 13, 68-72, 524 A.2d 130 (1987). The converse also obtains. Surely, as occurred in this case with respect to robbery, if a defendant has been tried and acquitted of the underlying felony, he or she could not later be subjected to punishment based on that felony. Without a jury determination of guilt of an underlying felony as a substantive crime, a defendant may be deprived of an acquittal. He is also deprived of the opportunity to have the jury consider the felony as a basis for felony murder, and possibly a determination of guilt of non-capital murder. See discussion, supra at 253-255, 593 A.2d at 280-281. If the State is not required to charge each substantive felony as a crime, a defendant may well be whip*298sawed. Thus, because a finding of the c(4)(g) factor requires that the jury ascertain defendant’s guilt of the underlying felony or offense beyond a reasonable doubt, defendant is effectively subject to punishment for a felony that the State has chosen not to prosecute as a crime.
The State will enjoy a greater tactical advantage by using the unindicted felony as the basis for an aggravating factor. Even though defendant will have already been found guilty of capital murder, this procedure enables the jury to consider defendant’s guilt of the felony at the same time it is determining whether he deserves to die. I cannot envisage a procedure that would be more unfair to a criminal defendant. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); State v. Ramseur, supra, 106 N.J. at 382-404, 524 A.2d 188 (Handler, J., dissenting).
Thus, when a felony constitutes a predicate of an aggravating factor, the trial court should be required to charge the jury clearly that it could base a finding of that factor only on a felony for which the defendant was convicted. The Court’s portentous dictum, ante at 256, 593 A.2d at 282, suggesting that an aggravating factor could be found on the basis of a felony not specified in the State’s notice of aggravating factors, or for which defendant has not been convicted, is troublesome to say the least. In this case, the State, knowing at the outset that there was evidence to support aggravating factor e(4)(g), lost its opportunity to submit that factor based on aggravated sexual assault by not indicting defendant for that crime and not giving defendant notice prior to trial. The State could not decide to submit the factor at the end of the trial, simply on the basis of the court’s sua sponte charge on felony murder encompassing the sexual offense.
In sum, the prosecutor was permitted to argue the existence of c(4)(f) based on aggravated criminal sexual contact, with undeniable prejudicial consequences. That factor was invalidly submitted to the jury. There was a distinct possibility that the *299evidence on which to submit the c(4)(c) factor could have been shown to be insufficient. Further, the State dropped the c(4)(g) factor when defendant was acquitted of robbery. Consequently, without a remaining valid aggravating factor, there is a strong likelihood that the case would have been rendered non-capital.
IV.
For the reasons expressed, I dissent in part and concur in part with the Court’s opinion.
For affirmance in part; for reversal in part —Chief Justice WILENTZ, and JUSTICES CLIFFORD, POLLOCK, O’HERN, GARIBALDI and STEIN-6.
For reversal — Justice HANDLER-1.
The container of the videocassette version of the film contains the following description of "10 To Midnight”:
As the clock ticks 10 to midnight, you'll be riveted to your seat — here’s an action-packed police thriller that’s too close to real life for comfort! Take a clean-cut sex killer who uses legal loopholes to get away with murder, add a cop who does what he thinks is right, and "one side or the other, you’re not apt to remain neutral!" (Archer Winsten, New York Post)
Charles Bronson stars as Leo Kessler, a tough Los Angeles detective up against a cunning psycho (Gene Davis) whose genius for concocting alibis is surpassed only by the horror of his erotically stimulated crimes. But the killer makes a fatal mistake, choosing the cop's spunky daughter [ ...] as his number one target, and forcing Bronson to go man on man.
The undisputed king of America’s tough-guy heroes, Charles Bronson is supported by Andrew Stevens as his rookie partner and Geoffrey Lewis as the killer’s cynical lawyer. William Roberts' script takes a hard look at the insanity laws in this country, and "the film is exceedingly well made” by master-of-suspense J. Lee Thompson [...]. 10 To Midnight — see it before it’s too late!
An independent viewing of the whole film reveals that it advocates vigilante justice as a response to an inadequate criminal justice system. In fact, the entire film is riddled with broadsides against the criminal justice system. Some of Bronson's more memorable harpoons are as follows: "The way the law protects those maggots out there, you’d think they’re an endangered species”; "I remember when legal meant lawful, now it means some kind of loophole"; “If [the murderer’s defense lawyer] gets defendant off he’s won the Superbowl and to all the scum out there he’s a hero.”
Bronson freely flouts court and evidence rules, promoting gut instinct over due process. Specifically, Bronson fabricates incriminating evidence by surreptitiously procuring a blood sample from one of the victims and planting it on the murderer’s clothes. When his scrupled partner, due to testify at the murderer’s trial, learns of this fabrication, Bronson exhorts him to perjure himself ("You go in that courtroom and forget what’s legal and do what’s right").
The film paints defense lawyers as seedy and unscrupulous. We see the murderer’s counsel coaching him how to feign insanity. Indeed, at the end of the film, when the now ex-officer Bronson (he had been fired from the police force for fabricating evidence) has apprehended the murderer and the police are preparing to take the murderer away, the murderer cleverly recites the routine he learned from his lawyer.
The final scene is the grace note on the theme of vigilante justice. As the police are preparing to take him away, the murderer tells Bronson that he is sick and not in control of himself. He promises revenge on Bronson: "All you can do is lock me up, but not forever. One day I’ll get out. That’s the law. *282And I’ll be back. You’ll hear from me ... you and the whole fucking world!" Coolly responding "No we won’t," Bronson shoots him through the forehead.