State v. Davis

The opinion of the Court was delivered by

O’HERN, Justice.

In State v. Biegenwald, 106 N.J. 13 (1987), and State v. Ramseur, 106 N.J. 123 (1987), we determined the constitutionality of New Jersey’s capital punishment act, N.J.S.A. 2C:ll-3, and established standards for its application. In this case, tried before those decisions, the jury charge failed to comply with the Biegenwald requirement that to impose the death penalty the jury must be convinced beyond a reasonable doubt that the statutory aggravating factors of N.J.S.A. 2C:ll-3 outweigh the mitigating factors. The charge here would have permitted imposition of capital punishment on a finding that the aggravating and mitigating factors balanced. Therefore, the State agrees that a retrial of the penalty phase is required.

This case differs from other capital cases that we have decided since Ramseur and Biegenwald in that the defendant pled guilty to murder. Hence, we address certain evidentiary issues concerning the penalty phase that may arise in the event of a capital retrial. In addition, we address the question of the standard for measuring effective assistance of counsel in the original proceedings and its relevance to any resentencing. Finally, we furnish guidance to the trial court in connection with the application of State v. Gerald, 113 N.J. 40 (1988), to a capital retrial.

I

The case arises from the brutal killing of a twenty-three-year-old woman acquaintance of the defendant. For purposes of this appeal, we accept the factual version set forth in the defendant’s brief and his recital of the procedural history.

On the morning of Monday, January 17, 1983, a worried next-door neighbor in Barbara Blomberg’s two-family duplex house in Buena, New Jersey, entered Barbara’s apartment via the common cellar access. She found Barbara’s body lying across her bed on her stomach, nude from the waist down. Her body was mutilated and bloodied. Around her neck was an electrical cord. Strewn on the floor was a blue pouch containing a certificate of title to a Vineland house trailer that she had sold to the defendant, Steven Davis.

A tip led police to arrest the defendant on Wednesday, January 19, 1983. He was arrested with a .357 Magnum revolver, a shotgun, and fifty-six shells of ammunition in his possession. The police confronted him with information they had received that he had killed the victim. Within hours he confessed to the murder. His confession and later testimony at the sentencing phase recount the events.

Through his friend, Mike Muccio, Davis had come to know Barbara. In Davis’ words, he and Barbara were “real close” and he considered her “like a sister.” Barbara was Mike’s girlfriend, and they often double-dated with Davis. Although Davis lived in Pennsylvania, he had a child in the Buena area. Davis spent weekends in a Vineland house-trailer, which he had purchased from Barbara, so that he could visit with his son. At the time of the murder, Davis still owed $1500 of the $6000 purchase price, which he had been páying off over time.

He offered no explanation why he had gone to her apartment on that Sunday night. He had been drinking very heavily with friends on that day and admitted calling Barbara from the Bootlegger Bar in Buena. After the bar had closed at 2:15 a.m., he described himself as having become lost on the way to another party. Instead, he went to Barbara’s home. When she did not answer the doorbell, he went back to his car and got a screwdriver and jimmied the door open. He took an appliance cord from an electric coffee pot in the kitchen and went upstairs to her bedroom. He heard her ask, “[w]ho is it?”. He killed her by strangling her with the electric cord. He then stabbed and mutilated her body with a screwdriver and a knife. Davis then took from a blue pouch a paper that recorded his payment of debt, but left behind the bill of sale for the trailer. He also admitted stealing some articles of jewelry from the victim’s apartment.

Afterwards, Davis went to Muccio’s home and told him, “I think I killed somebody.” Muccio, who was a sheriff’s deputy, did not, however, report him immediately to the police, nor did Davis turn himself in that night. Davis’ girlfriend, with whom he lived, testified that Davis knew that he “really had hurt [Barbara] and he wasn’t sure how bad or what had really happened.” Nonetheless, on Monday morning, in an apparent attempt to deny knowledge of her death, he called one of Barbara’s friends asking about her. He also called Muccio to arrange to go with him to Barbara’s funeral scheduled for Wednesday. After driving to Vineland Wednesday morning, Davis telephoned Muccio. Muccio admitted to Davis that he had told the police that Davis murdered Barbara. While Davis was packing his car to leave his Vineland trailer, he was arrested. He had a .357 Magnum revolver, a shotgun, and ammunition.

Defendant was indicted for capital murder, burglary, possession of a weapon for an unlawful purpose, unlawful possession of a revolver, and other weapons offenses. In September 1983, defendant pled guilty to murder, felony murder, burglary, and possession of a knife for an unlawful purpose. The remaining counts were left open.

An interlocutory proceeding that resolved the use of expert testimony concerning the potential for rehabilitation of the defendant, see State v. Davis, 96 N.J. 611 (1984) (per curiam), delayed the penalty trial, which commenced on April 17, 1985. The State sought to prove two aggravating factors: that the murder was outrageously or wantonly vile, N.J.S.A. 2C:11-3c(4)c, and that it was committed during the course of a burglary. N.J.S.A. 2C:ll-3c(4)g. [Hereinafter we refer to the subsections of N.J.S.A. 20:11-3 as, for example, “c(4)g.”] With regard to c(4)g, the State argued that the defendant went to Barbara’s house with the purpose of stealing title to the house-trailer for which he owed Barbara money. With regard to c(4)g, the county medical examiner established that the cause of death was strangulation, and he estimated the time of death at about 2:30 a.m. on January 17. He also noted two blunt force injuries to the head, which could have produced severe pain and unconsciousness. He found multiple stab wounds, abrasions, and lacerations made on her body. He thought these were inflicted after death and could have been inflicted several hours later. The stab wounds he attributed to one weapon: a three and one-half-inch, single-edge knife. The abrasions, he thought, were caused by a screwdriver. A pattern of multiple laceration wounds were found on Barbara’s left forearm and left calf. One laceration wound was found slicing between her buttocks and through her anus.

Defendant testified in his own behalf, asserting that on the night of the murder he had been drinking heavily and using drugs. He claimed to have had no realization of what he had done. According to defendant, that night he had drunk several beers and shots, taken two quaaludes, and injected himself with methamphetamine, a stimulant commonly called “speed” or “crank.” He acknowledged the murder as being senseless. It was like “[sjomething weird”: “It was like it was somebody else” who was doing it. He denied any sexual motivation for the crime or any revenge based on the trailer-payment arrangements. He offered expert testimony with respect to mitigating factor c(5)h, that it would be unlikely that he would ever commit another serious offense. A psychiatric witness on his behalf concluded that based on defendant’s consumption of alcohol, quaaludes, and methamphetamine, his ability to exercise normal behavior control was substantially impaired, a mitigating factor under c(5)d. He was, in his doctor’s expert opinion, an alcoholic and a drug abuser. The expert said that Davis had expressed feelings of remorse and guilt over the death of Barbara. He also thought defendant could be rehabilitated.

Davis’ father described his son as having a close relationship with Barbara. The entire Davis family viewed her as a friend. She often visited the family home. He saw his son as subject to drug- and alcohol-abuse problems, but was unable to help him overcome them. He could not explain why his son would kill someone who had been so kind to him and had done so many nice'things for him and his family. Friends and family were unable to explain the murder. A religious counsellor cited Davis’ repeated expressions of sorrow for the crime.

The State countered with expert testimony to the effect that his complex actions and his sophisticated “goal-seeking” allayed any possibility of any sufficient degree of intoxication. The prosecution also presented Dr. Robert L. Sadoff, who concluded that defendant had “cognitive or intellectual awareness of what was going on about him and acted * * * with goal oriented behavior.” He found emotional difficulties but no mental disease. The State rebutted some of the mitigating circumstances through other factual testimony.

The jury found that the State had proven both alleged aggravating factors. They also found that two mitigating circumstances had been shown by the defense; that the defendant had no significant history of prior criminal activity; and that other factors relevant to the defendant’s character and to the offense served in mitigation. N.J.S.A. 2C:ll-3c(5)h. The jurors concluded that the mitigating factors did not outweigh the aggravating factors, and sentenced Steven Davis to death. (The jury charge did not require the jury to determine whether the aggravating factors outweighed the mitigating factors beyond a reasonable doubt.) He was sentenced on the non-capital counts to an aggregate term of life with a mandatory period of parole ineligibility of thirty years. He appeals to us under Rule 2:2-l(a)3.

Defendant has raised various constitutional and other challenges to his conviction. Issues similar to those raised in Ramseur and Biegenwald and other capital decisions of ours will not be extensively discussed but will be noted for completeness of the record and preserved by discussion, Part III, infra at 375. Here, we will discuss the major challenges specific to his penalty hearing.

II

A.

Should the Court adopt a higher standard than the Strickland standard of reasonable competence for counsel in capital cases?

1.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth the constitutional threshold for vindication of the sixth amendment’s guarantee to every citizen of the assistance of counsel in the defense of all criminal prosecutions. This constitutional guarantee of counsel “cannot be satisfied by mere formal appointment.” Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377, 379 (1940). “An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.” Strickland, supra, 466 U.S. at 685, 104 S.Ct. at 2063, 80 L.Ed.2d at 692. In other words, “the right to counsel is the right to the effective assistance of counsel.” Id. at 686, 104 S.Ct. at 2063, 80 L.Ed.2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763, 773 n. 14 (1970)).

Ineffective assistance of counsel arises in the situation in which counsel fails to provide “adequate legal assistance.” Ibid, (quoting Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333, 344 (1980)). Adequate assistance of an attorney is measured according to whether the counsel has professional skills comparable to other practitioners in the field. This has been equated with a standard of “reasonable competence.” See State v. Fritz, 105 N.J. 42, 53 (1987) (citing Trapnell v. United States, 725 F.2d 149, 151-52 (2d Cir.1983)); see also McMann v. Richardson, supra, 397 U.S. at 770, 90 S.Ct. at 1448, 25 L.Ed.2d at 773 (“reasonably competent advice”). “Reasonable competence” does not require the best of attorneys, but certainly not one so ineffective as to make the idea of a fair trial meaningless.

Hence, the Supreme Court has developed a two-prong test for determining whether counsel’s assistance was so defective as to require reversal of a conviction. See Strickland, supra, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. This test recognizes that when the level of counsel’s participation makes the idea of a fair trial a nullity, no prejudice need be shown. It is presumed. See United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (decided the same day as Strickland). An example of the Cronic presumption would be a failure by counsel for the defendant to cross-examine a key prosecution witness. See Cronic, supra, 466 U.S. at 659, 104 S.Ct. at 2047, 80 L.Ed.2d at 668. To establish this category of ineffective assistance, defendant is not required to show prejudice. That degree of deficient performance is tantamount to a “complete denial of counsel.” Id. at 659, 104 S.Ct. at 2047, 80 L.Ed.2d at 668.

On the other hand, under Strickland if counsel’s representation merely falls below the standard of reasonable competence, a reversal is required only if the Court finds prejudice to the defendant. In the context of a capital sentence, the defendant must demonstrate “a reasonable probability that, absent the errors, the sentencer * * * would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, supra, 466 U.S. at 695, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. Thus, in Burger v. Kemp, 483 U.S. 776, 793-95, 107 S.Ct. 3114, 3125-26, 97 L.Ed.2d 638, 657 (1987), although observing that counsel did not investigate evidentiary material to be presented in mitigation of defendant’s sentencing phase, the Court did not invalidate the conviction because it was a strategic decision “supported by reasonable professional judgment” that such investigation “would not have minimized the risk of the death penalty.” The Court rejected the argument that a more aggressive defense performance would have made a difference in the face of overwhelming evidence of defendant’s guilt.

In State v. Fritz, supra, we adopted the Strickland standard as a matter of our own jurisprudence, although we phrased the prejudice test somewhat differently. Justice Handler, speaking for the Court, said:

Even if we are not constitutionally compelled to adopt the Strickland-Cronic test, the development of the law in this area impels us to conclude that we should recognize the soundness and efficacy of both the substance and formulation of this federal Constitutional standard in defining our own State Constitutional guarantee of effective assistance of counsel. We therefore hold that under Article I, paragraph 10 of the State Constitution a criminal defendant is entitled to the assistance of reasonably competent counsel, and that if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant’s conviction, the constitutional right will have been violated. [105 N.J. at 58.]

Obviously, the defendant’s guilt is not the measure of the constitutional guarantee. Were it so, “Gideon’s promise”¹ would have extended only to defendants who could show that a lawyer would have made a difference. Rather, the measure of the constitutional guarantee is the fairness of the proceeding— the measure of its adversarial balance.

Courts reviewing death sentences generally focus on the procedures by which the sentence was imposed, rather than the result of the process, in the hope of assuring reliability and avoiding arbitrariness.

In ensuring that the death penalty is not meted out arbitrarily or capriciously, the Court’s principal concern has been more with the procedure by which the State imposes the death sentence than with the substantive factors the State lays before the jury as a basis for imposing death, once it has been determined that the defendant falls within the category of persons eligible for the death penalty. [Pong, “Ineffective Assistance of Counsel at Capital Sentencing,” 39 Stan.L.Rev. 461, 490 n. 177 (1987) (quoting California v. Ramos, 463 U.S. 992, 999, 103 S.Ct. 3446, 3452, 77 L.Ed.2d 1171, 1179 (1983)).]

2.

Is this standard sufficient for capital cases? In capital cases, reasonable competence is no small measure. “Today capital punishment has emerged as a major branch of constitutional jurisprudence, encompassing questions regarding the right to jury trial, cruel and unusual punishment, and procedural and substantive due process.” Schnapper, Book Review, 84 Mich.L. Rev. 715, 715 (1986) (reviewing W. White, Life in the Balance: Procedural Safeguards in Capital Cases (1984)).

Capital cases present an extraordinary challenge to courts and counsel. The Supreme Court has developed a highly complex body of law to effectuate the eighth-amendment guarantee that in order to avoid the arbitrariness that would violate the prohibition against cruel and unusual punishment, capital-punishment sentencing schemes must not result in death sentences that are “wantonly and * * * freakishly imposed” and “are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Furman v. Georgia, 408 U.S. 238, 309-10, 92 S.Ct. 2726, 2762, 33 L.Ed.2d 346, 390 (1972) (Stewart, J., concurring). Justice Thurgood Marshall has observed that “[d]eath penalty litigation has become a specialized field of practice, and even the most well intentioned attorneys often are unable to recognize, preserve, and defend their client’s rights. Often trial counsel simply are unfamiliar with the special rules that apply in capital cases.” Marshall, “Remarks on the Death Penalty Made at the Judicial Conference of the Second Circuit,” 86 Colum.L.Rev. 1, 1 (1986).

Our decisions interpreting federal constitutional doctrine and our own constitutional doctrine as each applies to our death-penalty statute have occasioned in New Jersey a substantial body of capital precedent. In addition, our capital cases have generated an intensive examination by counsel of all aspects of criminal practice. See State v. Williams, 113 N.J. 393 (1988) (empanelment of the jury and its voir dire); State v. Moore, 113 N.J. 239 (1988) (responsibility of courts to charge the jury with appropriate lesser-included offenses); State v. Gerald, supra, 113 N.J. 40 (1988) (responsibility of juries to determine that the defendant had the knowledge or purpose that death would result from the criminal act); State v. Rose, 112 N.J. 454 (1988) (necessity that juries understand the limited purposes that some evidence may have in capital cases); State v. Zola, 112 N.J. 384 (1988) (use of expert scientific evidence in capital cases); State v. Bey, 112 N.J. 123 (1988) [hereinafter Bey II] (non-unanimous jury verdict on the existence of mitigating factors); State v. Ramseur, supra, 106 N.J. 123 (1987) (resolution of basic constitutional issues and other pretrial issues including death-qualification and selection of grand and petit jury panels); State v. Williams, 93 N.J. 39 (1983) (problems of pretrial and mid-trial publicity).

The defendant, through the Public Defender, urges us to reevaluate our holding in Fritz and to adopt a test for measuring ineffective assistance of counsel under the State Constitution that will provide greater protections to capital defendants and improve the quality of representation. In particular, he objects to two features of the Strickland test: the presumption of competence under the first prong, and the requirement that the defendant must establish prejudice under the second prong. He argues:

Death is too final and too drastic a penalty to be meted out when it is uncertain whether a defendant is receiving the sentence only because of the unprovable consequences of his admittedly incompetent representation.

********

An appellate court’s determination that a defendant is clearly guilty simply cannot be a substitute for a trial that has failed to establish guilt through fair procedures where life is at stake.

We recognize, as Justice Handler did in his dissent in State v. Ramseur, supra, 106 N.J. at 364 n. 12, that although we “adopted the general principles of Strickland in State v. Fritz,” we had “no occasion to decide, however, the applicability of those standards in the special context of capital punishment.” The Court is cognizant of the suggestion that it should develop higher standards for appellate review of constitutional-rights claims in capital cases. We recognize that because of their finality, capital cases are “a categorical imperative for trial fairness.” State v. Williams, supra, 93 N.J. at 61. One of the pillars on which the Supreme Court has rested the constitutionality of state capital-sentencing procedures is that of “meaningful appellate review.” Gregg v. Georgia, 428 U.S. 153, 195, 96 S.Ct. 2909, 2935, 49 L.Ed.2d 859, 887 (1976).

Nonetheless, we do not feel impelled to adopt stricter standards for judging constitutional rights in capital cases than in noncapital cases. To judge capital defendants differently would effectively diminish the rights of noncapital defendants, a disquieting result that we reject. There either is a constitutional violation or there is not. There can be no double standards. At the same time, we have committed ourselves to a searching and stringent review of capital records, which, we believe, coupled with an enhanced application of the harmless error standard, would be “sufficiently flexible to accommodate our heightened concerns and responsibilities in reviewing death-penalty prosecutions.” State v. Bey, 112 N.J. 45, 95 (1988) [hereinafter Bey I].

We see no need, then, to alter the Strickland/Fritz standard for capital cases. Capital defendants are guaranteed competent capital counsel. Obviously the measure of an advocate’s competency depends on the task to be accomplished. The best intentions and the most devoted of efforts do not necessarily equate with capital competence. We expect capital defense counsel to have an expertise regarding the special considerations present in capital cases. The Strickland/Fritz standard demands no less. A sample of post-Strickland capital cases sets forth factors that evidence a lack of competence in capital cases: Tyler v. Kemp, 755 F.2d 741 (11th Cir.) (inexperienced counsel failed to investigate and offer mitigating evidence), cert. denied, 474 U.S. 1026, 106 S.Ct. 582, 88 L.Ed.2d 564 (1985), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 479 U.S. 939, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986); Blake v. Kemp, 758 F.2d 523 (11th Cir.) (failure to make any preparation for penalty phase), cert. denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985); Jones v. Thigpen, 788 F.2d 1101 (5th Cir.1986) (presented no defense at sentencing phase), cert. denied, 479 U.S. 1087, 107 S.Ct. 1292, 94 L.Ed.2d 148 (1987); see also Fong, supra, 39 Stan.L. Rev. at 470-75. These particularly egregious examples are not intended to be the bench marks of capital-case incompetence, but rather are examples of incompetence. We are satisfied that the Strickland measure of the effectiveness of counsel, considered with the test of whether “these deficiencies materially contributed to defendant’s conviction,” Fritz, supra, 105 N.J. at 58, will adequately fulfill the constitutional guarantee.

B.

Did defense counsel fail to meet the Strickland standard by not moving to suppress defendant’s confession and permitting him to plead guilty to murder?

Preliminarily, we note that the question of the prejudicial effect of any lack of competence is mixed in this case with the question of trial strategy chosen by counsel. Hence, we shall address the two in relationship to each other. Every member of the Supreme Court agrees that “[i]n assessing the adequacy of counsel’s performance, ‘strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.’ ” Burger v. Kemp, supra, 483 U.S. at 819, 107 S.Ct. 3114, 3138-39, 97 L.Ed.2d at 673 (Powell, J., dissenting) (quoting Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695). But “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Thus, an inadequate investigation of law or fact robs a strategic choice of any presumption of competence. With respect to the legal decisions made by defense counsel, we are satisfied that if the attorney’s performance had been deficient, satisfying Strickland’s first prong, it would have created “a reasonable probability that these deficiencies materially contributed to defendant’s conviction,” Fritz, supra, 105 N.J. at 58, thus satisfying Strickland’s second prong.

But the difficulty we have with the first prong of the Strickland test is that the defendant has made no showing that trial counsel failed to investigate any reliable sources of evidence or misconstrued or misunderstood the law with respect to the issues. Unlike the attorney in Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), who for lack of investigation failed to suppress the confession, here counsel, on the basis of trial strategy, chose not to move to suppress the confession. In part, this may have stemmed from his view that given the other overwhelming evidence of guilt (defendant’s statements to Muccio and to his girlfriend), it would be better to present defendant to a sentencing court as one who had made a clean breast of it.

Moreover, we are unable to perceive any misjudgment with regard to the admissibility of the confession. Appellate counsel pointed to evidence of defendant’s substance-dependency and his condition on the date of his arrest as evidencing the involuntariness of the confession. Yet in similar circumstances, confessions have been held voluntary and the “product of a rational intellect and a free will,” not overborne from the influence of drugs and alcohol. See, e.g., Boggs v. Commonwealth, 229 Va. 501, 512, 331 S.E.2d 407, 415-16 (1985) (quoting Yarborough v. Commonwealth, 217 Va. 971, 974, 234 S.E.2d 286, 289 (1977) (quoting Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770, 782 (1963))) (confession to capital murder held voluntary when night before confession defendant consumed alcohol, smoked marijuana and took amphetamines), cert. denied, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 347 (1986). Moreover, the surrounding circumstances completely belie any lack of competence or inability to appreciate or understand the nature and quality of his act of confession. See Bey II, supra, 112 N.J. 123. The only evidence of the defendant’s incompetency was the testimony of one witness who said that the defendant had “glassy eyes” at the time of his confession. Here, we are unable to say that trial counsel’s decision not to attempt to suppress the confession was not reasonably competent or the result of inadequate investigation or preparation.

Whether the decision to plead defendant guilty fell outside that latitude of judgment is a debatable question. Some lawyers believe it best to plead guilty to nothing. Others believe that an absurd defense can inflame a jury. Perhaps the most telling argument against this decision is “what did he get for it?”. Indeed, nothing. But the counterpoint is what might he have gotten?

So brutal and so senseless was this murder, bereft even of the excuse of panic, that reasonably competent counsel might have made the choice. See State v. Rose, supra, 112 N.J. 454 (defendant alleged he shot police officer out of panic and fear).

Public attention tends to become focused on the dramatic aspects of the lawyer’s work during a trial, but it is axiomatic among trial lawyers and judges that cases are not won in the courtroom but by the long hours of laborious investigation and careful preparation and study of legal points which precede the trial. [ABA Standards Relating to the Defense Function (Pt. IV) Introductory Note at 224 (1971).]

An argument is made that the decision to plead guilty should have been premised on a conclusion that the sentencing jury would be presented with reliable facts, supported by steadfast opinions by psychiatric experts, showing that defendant’s conduct was aberrational and he was remorseful. No such picture was presented in this case. But defense counsel was hampered in his efforts by the death of a retained expert before trial. Problems with defense experts continued when the defendant’s psychiatric expert wavered in his opinion on learning during cross-examination that Davis was arrested with a pistol, shotgun, and fifty-six rounds of ammunition in his possession.

Defendant’s counsel, however, was fierce in his tenacity and steadfast in his devotion to his client’s cause. Although privately retained, he soon exhausted the received retainer. Recall that he appealed to this Court after the trial court refused his proffer of evidence asserting the capacity for rehabilitation as a mitigating factor. State v. Davis, supra, 96 N.J. 611. Even after his retainer was exhausted, he was required to continue the defense. (Trial counsel, in fact, moved to be relieved. The motion was denied, but trial counsel was granted leave to petition the State to have expert witnesses’ fees paid.) He did not waver in his resolve or efforts. His efforts to exclude evidence met with sometimes harsh confrontations with the trial court and his objections were often overruled.

We examine these trial transcripts acknowledging that hindsight makes experts of us all. But defense counsel was not aided by defendant’s partial disclosures of evidence. Under withering cross-examination, defendant was forced to admit a trail of deception in his pretrial statements to the police. It was not until Davis took the stand that he admitted that he had called Barbara from the Bootlegger Bar on the night of the murder and that she refused to go along with his request to turn over to him the title to the trailer. The prosecution hammered away at what it portrayed as a series of untruths: his false remorse as shown by the call to Barbara’s girlfriend; his concealment of the fact that he had taken a gun to the murder scene; his denial that the lights were on when he killed Barbara; and his willingness to implicate Muccio if it would get him out of jail. These searing inconsistencies, more than any strategic decision of counsel, hampered the strategy.

In sum, the decision not to move to suppress the confession was a reasonable one. The circumstances of this case do not occasion any second-guessing whether defendant was inadequately served by a decision to plead guilty. Any question about the reasonableness of the decision to plead guilty and expose defendant only to the penalty phase is mooted because the plea did not establish death eligibility under the standards of State v. Gerald, supra, 113 N.J. 40. See infra, pt. E at 366.

C.

Did the trial court err in admitting evidence of defendant’s statement to an investigator whom he may have assumed to have been sent by an attorney acting in his behalf?

We have before us the question of whether the prosecution’s use of a certain statement made by the defendant to an investigator violated the attorney-client privilege. The prosecutor had introduced at trial defendant’s statement to an investigator to impeach the credibility of a defense witness. While defendant was awaiting trial, Mr. Blomberg, the victim’s father, had hired independent counsel, Robert Bailey, and a private investigator, James Gardner, to investigate the involvement of Michael Muccio in the murder of his daughter. Trial counsel related that Mr. Blomberg had been visiting Davis regularly in jail and allegedly told Davis that if he implicated Muccio in the murder, Davis would be “out of jail by Christmas.” When Davis’ trial counsel learned of Mr. Blomberg’s activity in the case, he sought leave for and was granted a withdrawal from the case. Davis then spoke with the investigator, recanted his prior confession, and stated that it was really Muccio who had murdered Barbara. Almost immediately, Davis called Gardner and repudiated his statement, stating that he lied because Mr. Blomberg asserted that by saying what he did he would be released. Davis then severed any relationship he had with Bailey and asked trial counsel to resume his representation.

In New Jersey, the privilege regarding confidential communications between an attorney and client “extends to the necessary intermediaries and agents through whom the communications are made.” State v. Kociolek, 23 N.J. 400, 413 (1957). We have long recognized that a client’s privileged communications are “permanently protected from disclosure by himself, or by the legal advisor, or by the agent of either confidentially used to transmit the communications * * State v. Loponio, 85 N.J.L. 357, 360 (E. & A.1913). This privilege has been held to include confidential communications to private investigators acting on behalf of counsel for the defendant. Delap v. State, 440 So.2d 1242 (Fla.1983), cert. denied, 467 U.S. 1264, 104 S.Ct. 3559, 82 L.Ed.2d 860 (1984); People v. Knippenberg, 66 Ill.2d 276, 6 Ill.Dec. 46, 362 N.E.2d 681 (1977); State v. Tapia, 113 N.J.Super. 322 (App.Div.1971); Commonwealth v. Hutchinson, 290 Pa.Super. 254, 434 A.2d 740 (1981). The investigator, who may act as an agent of either the defendant or his counsel, renders services on behalf of the defendant.

Although the record is unclear concerning the nature of the relationship established between Davis and Bailey (or for that matter, Bailey and the investigator), the record suggests that Davis was making a statement to Gardner to be utilized as a part of his defense. When trial counsel sought to be relieved, he stated that he had spoken with both Davis and Bailey, and learned that defendant decided to retain new counsel. (In fact, at the motion to withdraw as counsel, trial counsel stated that it was defendant's father who retained new counsel because of the cost of representation and a disagreement about trial defense strategy.) Although Bailey was never formally substituted as counsel, the statements made to Gardner would be within the bounds of legal counseling and be considered privileged if either Bailey was undertaking Davis’ defense or if Davis reasonably believed he was. Cf. State v. Tapia, supra, 113 N.J.Super. 322 (statements made by defendant under mistaken belief investigator was agent of own attorney held to be privileged as an attorney-client communication); State v. Loponio, supra, 85 N.J.L. at 363 (letter written by third party for inmate who seeks to retain counsel held protected by attorney-client privilege). We note that the record is far from clear concerning Davis’ own understanding of his relationship with Bailey. At one point, Davis acknowledged that he did not have a lawyer after trial counsel withdrew.

The waiver of the attorney-client privilege rests solely with the client, not counsel; an attorney or agent may exercise this power only acting with a client’s authority. 8 J. Wigmore, Evidence on Trials at Common Law, §§ 2321, 2327 (McNaughton rev. 1961). This privilege continues, despite the termination of the attorney-client relationship. Commonwealth v. Hutchinson, supra, 290 Pa.Super. at 262-63, 434 A.2d at 744-45; 8 J. Wigmore, supra, at § 2323. There is no suggestion that Davis authorized any waiver. Regardless of how the prosecution received such privileged materials, “it may not use them as substantive evidence or for impeachment of defendant in trial.” People v. Shiflet, 125 Ill.App.3d 161, 171, 465 N.E.2d 942, 949 (1984). This evidence was first used to test the reliability of defendant’s experts’ belief that the defendant was remorseful. The evidence showed the defendant to be devious, if not totally a liar. Defendant’s trial counsel then felt compelled to spread the whole story on the record and before the jury. It was plainly damaging testimony and could not be considered harmless.

On remand, the factual issue of the extent of the relationship between Bailey and Davis must be resolved. The trial proceedings should also reveal what representations were made to Davis by Gardner or others. Should a privileged relationship be found to exist, the application of the “crime or fraud” exception to the privilege may be tested in light of that record. In re Nackson, 114 N.J. 527, 535-37 (1989).

D.

Did the trial court err in permitting the State to offer rebuttal evidence of the victim’s state of mind?

In this case, the defendant claims as error the admission over defendant’s objection of certain testimony concerning a conversation that the witness had with the victim approximately a month prior to the murder. The witness testified that Ms. Blomberg

said she was very upset, very frustrated because he wasn’t making his payments, and she didn’t know what to do about it. She didn’t want to take any legal action because he was a friend. She never had any legal papers drawn up and he wouldn’t get in touch with her about it or speak to her about it. She didn’t know how to get in touch with him. There was just a gap between them at that time.

The witness also testified that the victim appeared “nervous” and “upset” during the conversation.

Defendant argues that such testimony was hearsay not covered by any exception nor relevant to any issue at the penalty phase. The State maintains the evidence, even if hearsay, was properly admitted under Evid.R. 63(12) as indicative of the victim’s state of mind. Because this issue is likely to recur in a new penalty phase, we will address it briefly.

Regardless of whether any or all of such testimony constitutes hearsay under Evid.R. 63, any description of the victim’s statements or demeanor is admissible only if her state of mind is in fact relevant. Evid.R. 63(12), although an exception to the hearsay exclusion, does not overcome the most basic rule that in order to be admissible, evidence must be relevant. Rule 63(12) in fact restates this basic relevancy rule as a prerequisite to its invocation as a hearsay exception:

A statement is admissible if it was made in good faith and it (a) described the declarant’s then existing state of mind, emotion or physical sensation * * * when such a mental or physical condition is in issue or is relevant to prove or explain acts or conduct of the declarant * * *. [Evid.R. 63(12) (emphasis added).]

Under the special circumstances of a capital sentencing hearing, the only aggravating factors that a jury shall consider are those set forth in the statute. See State v. Rose, supra, 112 N.J. at 507-08. In Rose, we emphasized the special responsibility that courts have to guarantee that extraneous factors do not influence the jury’s capital sentencing disposition. Id. at 503-OS. “The State, in the penalty phase, is restricted to proving the statutory aggravating factors and rebutting proof of mitigating factors.” Id. at 503.

Thus, in this case, where the victim’s state of mind was not relevant to any of the proposed aggravating factors, such testimony would be inadmissible as part of the prosecution’s case-in-chief. This is particularly true in light of the fact that there was no evidence that the victim ever communicated her concerns to the defendant, a prerequisite to the use of such evidence to establish defendant’s motive. Cf. State v. Machado, 111 N.J. 480, 489 (1988) (“Declarations of the victim’s state of mind, however, should not be used to prove the defendant’s motivation or conduct.”).

In this case, however, the testimony was not offered as part of the prosecution’s case-in-chief, but as rebuttal to the defendant’s claim that he and the victim “were real close” and “never had an argument or disagreement.” Cf. id. at 487 (evidence of victim’s state of mind offered as part of case-in-chief). Moreover, the testimony in question did not imply in any way that the victim feared the defendant and therefore cannot be seen as unfairly prejudicial. Cf. id. at 489 (“When the victim’s declarations do not express fear of the defendant, they might be admissible under an exception to the hearsay rule as a declaration of the victim’s state of mind * * *.”).

Because the relevance of the testimony in question depends on the strategies followed and evidence presented, we are unable to predict whether such evidence will be admissible at any future penalty phase. Although the nature of the defendant’s relationship to the victim is not relevant to any of the aggravating factors, if the defendant places his relationship with the victim in issue, evidence bearing on the nature of the relationship may be relevant. “[W]e do not foreclose the possibility that some of the victim’s statements may be admissible as background to establish the nature of the relationship between the victim and the defendant.” Ibid. However, in the event such testimony is determined to be relevant, and not unfairly prejudicial, to the narrow issues in dispute at a capital-penalty hearing, the court should be careful to instruct the jury that the evidence of the victim’s state of mind may not be considered as an aggravating factor in itself, but solely, and to a limited extent, as rebuttal background to the relationship. See State v. Rose, supra, 112 N.J. at 503-08.

In addition, inflammatory material should not be introduced into the case unless the party is prepared to demonstrate its admissibility. For example, during cross-examination the prosecutor presented the defendant with a parking receipt and asked him whether he had written the note that had been scribbled on the back. When the defendant replied that it was not his handwriting, the prosecutor nonetheless asked him to read the note, which said “Barbara you were due, please pay or we will get you.” The prosecutor then asked the defendant if he had left the threatening note in Barbara’s car, to which defendant once again replied “No, that’s not my handwriting.” Although the ticket was not permitted to go to the jury, and the prosecutor did not in any way focus on this threat and did not use it in his closing argument, it is impossible to know what effect its introduction had on the jury. As such evidence was clearly of a prejudicial nature, it should not be referred to in any future trial or penalty phase unless some more substantial showing of relevance is established. In the absence of proof that the State can link defendant with the threat to the victim, such cross-examination should not be permitted. See Rose, supra, 112 N.J. at 500 (Cross-examination was improper where “no facts concerning the event on which the question was based were in evidence and the prosecutor made no proffer indicating his ability to prove the occurrence.”)

Finally, 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. State v. Prudden, 212 N.J.Super. 608, 614 (App.Div.1986); see also Rose, supra, 112 N.J. at 503-04 (when court in capital case is aware of the State’s intent to cross-examine concerning inflammatory evidence of limited relevance, it should rule in advance, outside the jury’s presence, on the scope of such cross-examination).

E.

Did the defendant’s plea to murder establish death-eligibility under N.J.S.A. 2C:ll-3c?

Following oral argument, the parties briefed an issue that has arisen consequent to our decision in State v. Gerald, supra, 113 N.J. 40. In Gerald the Court traced the inclusion in 2C:ll-3 of the pre-Code offense of second-degree murder death arising from the intentional infliction of serious bodily injury on the victim, as a form of murder, but not capital murder. The Court is convinced, some members for differing reasons, that the Legislature never intended that capital sentencing be imposed on a defendant unless the defendant had the purpose or knowledge of a killer. See id. at 89-90. In order to establish death-eligibility, we required the jury to determine that the defendant had the knowledge or purpose to kill and not merely to inflict serious bodily injury that resulted in death. Gerald, supra, 113 N.J. at 69-91. The Court held that the contrary interpretation, that execution could result from an unintended homicide, would render the statute unconstitutional under New Jersey’s prohibition against cruel and unusual punishment. Id. at 89. In order to conform with what we believe to be certain legislative intent and constitutional principle, the jury’s verdict must establish that the accused had the knowledge or purpose to kill.

In this case, the defendant pled guilty to an indictment that alleged the crime of murder in violation of 2C:ll-3. That indictment was similar to the one in Gerald insofar as it embodied two forms of murder, one capital and the other non-capital. There are two aspects then to the question: (1) was the plea entered with understanding of its consequences?; and (2) does the plea establish death eligibility?

Generally, a person pleading to a charge must be made specifically aware of all of the penal consequences of the plea. State v. Howard, 110 N.J. 113 (1988) (prior to acceptance of guilty plea, defendant must be informed of the possibility of sentence to adult diagnostic and treatment center and parole consequences thereof); State v. Kovack, 91 N.J. 476 (1982) (prior to acceptance of a guilty plea, defendant must be informed of the possibility of parole ineligibility). In this case, there can be no doubt that defendant was aware that a sentence of death was a possibility.

Nor does it appear from the record that misinformation directed to the defendant directly induced him to enter the plea, thus warranting that he be allowed to withdraw. Cf. State v. Nichols, 71 N.J. 358 (1976) (defendant allowed to withdraw his guilty plea where his counsel, the State, and the trial court misinformed him concerning a material element of his plea bargain). It is obvious from the plea transcript that the only information directed to defendant related to the strategic decision to plead guilty. Defendant was asked whether he realized that he was giving up his right to contest the charges:

You are giving up all these rights in exchange for what you might call a strategy to permit us to argue and to plead before the jury, a fresh jury, who has not heard your contesting the crimes that you have been charged with, contesting your guilt, to permit a fresh jury to hear, to understand that you have admitted these things forthrightly and that what you are doing now is to demonstrate to them why they should spare your life. Do you understand that?

Moreover, ordinarily “a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.” Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 1473, 25 L.Ed.2d 747, 761 (1970); see also United States v. Broce, 488 U.S. -, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (double jeopardy claim could not be used to attack plea collaterally).

But a strong argument can be made that a capital plea like a capital verdict must have been entered in contemplation of all available verdicts. See State v. Moore, supra, 113 N.J. 239 (capital defendant is entitled to have jury charged on lesser-included offenses). How can a plea be knowing if the defendant does not know the offense to which he is pleading? For a plea to be valid, “all material terms and relevant consequences [must] be clearly disclosed, fully understood, and knowingly and voluntarily accepted by the defendant.” State v. Warren, 115 N.J. 433, 444 (1989) (emphasis added); see State v. Taylor, 80 N.J. 353, 362 (1979). Concededly, defendant was not aware of the distinction between the two forms of murder embraced by 2C:ll-3, and was not given to understand the consequences of the distinctions. Should he have “fully understood” the Gerald distinction? Of course, full understanding has not always been equated with foreknowledge of changes in the law that might take place, supra at 367, but we have held that

with respect to the death penalty, and changes within only a three-year period that affect its imposition, it is both unjust, and probably outside of the Legislature’s intent, not to give those previously tried the benefit of provisions intended to have been in the law in the first place. [State v. Biegenwald, supra, 106 N.J. at 66-67 (holding that defendant was entitled to charge that aggravating factors must outweigh mitigating factors beyond a reasonable doubt).]

To test whether another verdict should have been available, we might ask whether a court could have refused to submit the “serious bodily injury” form of murder to the jury. Given the normative role of the jury in capital cases and our insistence that juries consider all verdicts that have a “rational basis” in the evidence, State v. Crisantos (Arriagas), 102 N.J. 265 (1986), a jury undoubtedly would have had to consider serious-bodily-injury murder as an available verdict. Cf. State v. Hunt, 115 N.J. 330 (1989) (failure to give a separate “serious bodily injury” charge was harmless error under the narrow circumstances of that case, in which the defendant was no longer eligible for the death penalty and would receive the same sentence even if he had been found guilty of the lesser “serious bodily injury” form of murder). We note that the argument loses strength in the face of the strategic purpose of this plea. He pled guilty assuming that, because of his admission of guilt, the sentencing jury would be more likely to find him remorseful, and thus less-deserving of a death sentence. Without commenting on the wisdom of that choice, it is not possible to foreclose the possibility that the strategic considerations would have been different if he had known of the other available verdict.

Beyond this aspect of the plea, the question that remains is: does the plea itself establish death-eligibility? The difficulty with this case is not only in the defendant’s awareness of the material terms and penal consequences of the plea, but also in the sufficiency of the plea itself. The plea establishes that the defendant is guilty of murder as charged in Count I of the indictment. That count charged defendant with “purposely or knowingly causing] the death of or serious bodily injury resulting in the death of Barbara Blomberg.” (Emphasis added). As State v. Gerald establishes, the second form of murder alleged in the indictment is non-capital murder.

Under Rule 3:9-2 a capital defendant pleading guilty is not required to supply a factual basis for the charge, although a sufficient factual basis is still a prerequisite to acceptance of the plea. Had the plea transcript specifically and unequivocally established that the defendant had either the knowledge or purpose to kill his victim, the case might be closed. However, the plea transcript reiterated the defendant’s statements in his confession, and later in his trial testimony, that he did not “go in that apartment with the idea or intention to kill her,” but he did “in fact * * * commit those acts.”

The State argues with force that there is but one possible meaning to defendant’s actions — that he had knowingly or purposely caused Barbara’s death. The State points to the savage and deliberate nature of the attack: the premeditated placing of the electrical appliance cord about his neck as he mounted the stairs, the isolation of the victim by cutting the telephone wires, the deliberate mutilation of her body by countless slashings with the knife and screwdriver. All of these bespeak not an intention to inflict bodily harm but to kill.

It cannot be doubted that a jury could so find, and in some instances we have concluded that there was no possibility that the jury’s verdict was premised on an intent to cause only bodily injury that resulted in death. In State v. Pitts, 116 N.J. 580 (1989), the Court examined the jury’s verdict, the trial strategy of the defendant, and the evidence, and concluded that the verdict established with an abiding certainty that defendant had intended death only, and that the jury had made that finding in the face of a plea that the defendant’s rage should mitigate the offense.

A plea, however, is very different in both substance and procedure from a jury verdict. While a jury’s guilty verdict will be upheld as long as there are sufficient facts from which a reasonable jury might conclude beyond a reasonable doubt that the defendant committed the act charged, State v. Martinez, 97 N.J. 567 (1984), in New Jersey a guilty plea to a non-capital charge cannot be accepted unless the defendant acknowledges his guilt. R. 3:9-2; see State v. Reali, 26 N.J. 222 (1958); State v. Sands, 138 N.J.Super. 103 (App.Div.1975), affirmed on other grounds, 76 N.J. 127 (1978). Although Rule 3:9-2 waives the requirement that defendants charged with capital crimes supply the factual basis, that Rule is designed only to avoid forcing the defendant to say anything that might support an aggravating factor. Comment, Trial Judges Committee on Capital Causes, reprinted in S. Pressler, Rules Governing the Courts of the State of New Jersey 533 (1989). Furthermore, the Rule preserves the factual-basis requirement even though waiving the requirement that the defendant supply it. While the factual-basis requirement might be waivable where a defendant pleads guilty to a lesser-included offense in order to avoid the death penalty, ibid., a factual basis for a capital conviction cannot be sufficient when defendant’s statements in support of his plea contradict the required intent. The problem in this case is that although there may be sufficient facts available to support a finding that the defendant knowingly and purposefully murdered, his statements contradict any such finding.

This case may illustrate some need for revisions in the current format for accepting pleas in capital cases. The prior version of New Jersey’s capital-punishment law permitted a defendant to avoid the death penalty by entering a non vult or nolo contendere plea to murder. N.J.S.A. 2A:113-3, repealed by £.1978, c. 95, eff. Sept. 1, 1979. A non vult or nolo contendere plea did not require an admission of guilt. Alternatively, one convicted of first-degree murder was automatically sentenced to death unless the jury recommended mercy. N.J. S.A. 2A:113-4, repealed by £.1978, c. 95, eff. Sept. 1, 1979. This type of statute, which placed a heavy toll on the decision to contest one’s guilt at trial, was declared unconstitutional by the Supreme Court in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), as violating the right to trial by jury. As a result, this Court invalidated the prior death-penalty statute and commuted all outstanding death sentences imposed under it. State v. Funicello, 60 N.J. 60 cert. denied, 408 U.S. 942, 92 S.Ct. 2849, 33 L.Ed.2d 766 (1972).

When the current version of the death penalty was passed, the problem arose concerning how a defendant choosing to plead guilty could supply a factual basis for his plea, as required for all guilty pleas, without prejudicing his chances at the penalty phase. The Trial Judges Committee on Capital Causes proposed our current Rule, which is a variant on the ordinary non-capital plea procedure. As previously noted, a factual basis is required to be established, but it need not come from the defendant’s admissions at the plea proceedings. R. 3:9-2. The anomaly that was carried forward from pre-Jackson/Funicello law, that a defendant need not admit or supply the factual basis for a capital plea, however, may be misplaced. The purpose of a non vult or nolo contendere plea was to enable the defendant to avoid exposure to the death penalty, not to simplify exposure to the death penalty.

Obviously, a capital defendant should not be disadvantaged by a plea requirement that he or she furnish the factual basis for the plea. But trial courts must be assured that the plea distinctions to be made between capital and non-capital murder are adequately set forth in the plea record. Trial counsel should not be subjected to claims of ineffective assistance of counsel if these proceedings are restricted in scope.

At present, a defendant’s statements in support of a non-capital guilty plea are inadmissible at trial only if the plea is refused by the court, R. 8:9-2, or if it is withdrawn after acceptance. See State v. Boone, 66 N.J. 88 (1974). No Rule or case addresses the question whether, under 2C:11 — 3, statements furnishing a factual basis for a capital guilty plea are admissible at the penalty phase. However, the current provision in Rule 8:9-2 permitting the capital defendant to plead guilty without furnishing statements in support of a factual basis was intended to avoid this problem. See Trial Judges Committee on Capital Causes, supra. In light of the requirements noted in establishing the basis for a capital plea, perhaps this Rule could be revised to require the defendant to supply the factual basis, but precluding the subsequent use of such statements at the penalty phase. We need also consider the use of such statements to attack the defendant's credibility. Cf. New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979) (defendant’s compelled grand jury testimony cannot be used against the defendant at a subsequent trial even if only to impeach credibility); Simmons v. United States, 890 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (statements made by defendant to support a suppression motion cannot be used at trial on the issue of guilt); State v. Petrovich, 125 N.J.Super. 147 (Law Div.1973) (prohibiting the use of defendant’s suppression hearing testimony as substantive evidence of guilt, but allowing its use to attack defendant’s credibility if it conflicts with defendant’s testimony at the subsequent trial).

There are many subtle and complex issues that are to be resolved in fashioning a plea process tailored to capital cases. We shall refer the question to our Trial Judges Committee on Capital Causes for further consultation with prosecution and defense bars concerning any recommended amendments. In the meantime, trial courts must be assured that the plea distinctions to be made between capital and non-capital murder are adequately set forth in the plea record.

Although this defendant’s statements at the plea hearing may not directly contradict a finding that he knowingly and purposely intended to kill, we cannot conclude that the plea here establishes that required intent. As noted, the defendant pled guilty as a strategic device. His plea does not establish more than that he pled guilty to a single indictment charging him with two alternative forms of murder, one capital and the other noncapital. The plea colloquy with the defendant was:

THE COURT: Mr. Davis, it has been indicated that you desire at this time to retract any former plea of not guilty and enter a plea of guilty to Counts One, Two, Three and Four of Indictment 4391-83B, is that correct?

THE WITNESS: Yes.

THE COURT: Do you understand that the First Count charges on or about January 17, 1983, in Buena Borough you did purposefully or knowingly cause the death of or serious bodily injury resulting in the death of Barbara Blomberg, and that you committed the homicidal act by your own conduct, this being a charge of murder. Do you understand that? [Emphasis added.]

As we now know, there was more than enough evidence to establish death eligibility under Gerald, but not all this evidence was part of the plea record. The most damaging evidence, the piercing cross-examination of defendant about having stabbed her aiming at the heart and liver, was not part of the plea record. (The plea record included defendant’s confession and the autopsy report, not the statement to the police that was used to impeach defendant at trial.) The defendant was not informed of the level of intent required to establish death-eligibility. Although, by itself, this might not pose a problem if the defendant had admitted an intention to kill, see supra at 370, it is not possible, given the timing of the Gerald decision and the absence of a factual finding by the court accepting the plea, to distinguish what form of murder the plea established.

In State v. Gerald, we held that a jury verdict that did not distinguish between the two forms of murder could not establish death-eligibility. This plea does not distinguish between the two forms of murder. It does not establish death eligibility. On remand, further proceedings must conform to State v. Gerald. If the defendant does not plead to capital murder, the “guilt phase of the capital murder charge must be retried from the beginning.” Gerald, supra, 113 N.J. at 92.

Ill

For completeness of the record and preservation of the issues, we note the points raised by the defendant that were decided in Ramseur and Biegenwald, specifically defendant’s continuing challenge to the constitutionality of the death penalty in New Jersey, both on. its face and as applied, and, in particular, factor c(4)c’s alleged vagueness; the consideration of felony murder as both an aggravating factor and a lesser-included offense of murder; the constitutionality of death qualification of juries; and the order of opening and closing statements. We have considered whether any departure should be made from our prior rulings on these issues and have concluded that no departure is justified.

Issues raised with respect to death-qualification and the exclusion of certain potential jurors and the failure of follow-up on jury voir dire are moot. Any retrial voir dire will be conducted in accordance with the standards set forth in Bey II, supra, 112 N.J. at 149-55, and Williams, supra, 113 N.J. at 408-45. The introduction of the photographs of the victim appears to have been reasonably related to the establishment of aggravating factor c(4)c. Bey II, supra, 112 N.J. at 181-83. On retrial the court shall continue to exercise discretion to determine the measure of their need. Comments made by the prosecutor in summation will be measured on remand in light of the evidence offered in any retrial according to the standards set forth in Bey II, id. at 166, and Williams, supra, 113 N.J. at 446-56. The trial court’s failure to instruct the jury on the role of sympathy in its penalty phase deliberations has been covered in our decision in Bey II, supra, 112 N.J. at 171-72. On remand, the jury’s deliberations shall conform to the standards set forth in Bey II, supra, 112 N.J. at 155-181. Finally, the lack of a specific finding that “death is the appropriate punishment” was not error. Ramseur, supra, 106 N.J. at 316-17 n. 80.

Defendant contends that there was insufficient evidence to consider the elements of factor c(4)c. See Biegenwald, supra, 106 N.J. at 51 (on retrial, only “depravity of mind” element could be presented due to insufficient evidence of torture or aggravated battery). In Ramseur, supra, 106 N.J. at 197-211, and Biegenwald, supra, 106 N.J. at 48-52, Chief Justice Wilentz set forth the Court’s understanding of the legislative meaning of this aggravating factor. The mutilation and stabbing 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. See Ramseur, supra, 106 N.J. at 208-10 & n. 37. On this record, although there was some evidence of a revenge motive, a properly charged jury might have concluded that the murder served no purpose of the defendant other than the desire to kill. See id. at 209-11. Because there must be a retrial of the penalty phase, we do not resolve the adequacy of the c(4)c charge in this case. On remand, the court shall charge in accordance with the Biegenwald and Ramseur decisions, and the trial court should not submit to the jury any c(4)c elements that do not find support in the record.

IV

Summary and Conclusion

In this case, the State does not disagree that the weighing process employed in the penalty phase was inconsistent with our ruling in State v. Biegenwald, supra, 106 N.J. 13, and that the jury should be instructed that in order to impose the death penalty, it must find, beyond a reasonable doubt, that aggravating factors outweigh mitigating factors. Therefore, a retrial of the penalty phase is necessary.

We have resolved the other issues raised by defendant. With regard to the major issues, we are satisfied that there is no need to have a dual standard for measuring the competence of capital counsel. On any retrial, the court shall resolve whether defendant justifiably believed that he was communicating with his counsel’s agent when he spoke with Gardner and the evidentiary consequences, and shall also instruct the jury with respect to the purpose of any evidence offered to demonstrate the victim’s state of mind. Prior to capital resentencing, the court shall conform the procedures to the requirements of State v. Gerald. A retrial of the guilt phase will be required if the defendant does not plead to capital murder.

The sentence is vacated and the matter remanded to the Law Division for further proceedings in accordance with this opinion.

1 Berger, "The Supreme Court and Defense Counsel: Old Roads, New Paths — A Dead End?”, 86 Colum.L.Rev. 9, 61 (1986) (referring to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which extended the sixth amendment’s right to counsel to state criminal trials).