State v. Bey

610 A.2d 814, 129 N.J. 557, 1992 N.J. LEXIS 435

Opinions

The opinion of the Court was delivered by

STEIN, J.

In State v. Bey, 112 N.J. 123, 548 A.2d 887 (1988) (Bey II), we affirmed Marko Bey’s conviction for the murder of Carol Peniston but reversed the death sentence and remanded the case for a new sentencing proceeding. A second jury returned a death sentence. Defendant appeals as of right to this Court, N.J.S.A. 2C:ll-3e, challenging the original conviction on Gerald grounds, see State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988), and the sentence of death because of claimed error in the resentencing proceeding. We affirm defendant’s conviction and sentence of death.

I.

The relevant facts of Ms. Peniston’s murder are excerpted from Bey II, supra, 112 N.J. at 131-33, 548 A.2d 887:

On April 26,1983, around 9:20 p.m., Carol Peniston left Neptune High School, where she had attended a computer course, and drove away in her Ford Granada. Ms. Peniston, who was divorced and living alone, neither returned to her apartment nor reported to work the next day.

’I'*******

Subsequent investigation revealed that [Ms. Peniston’s] car had been involved in a one-car collision in Newark * * * on April 26, 1983, approximately four hours after Ms. Peniston left Neptune High School. The defendant’s fingerprints were on the rear view mirror.

At approximately 3:30 p.m. on May 3, Asbury Park police interviewed Attilio Robot, who had found Ms. Peniston’s pocketbook near an old industrial building in Asbury Park. Shortly thereafter, the police discovered her body in a shed near the building. An autopsy performed the following day, May 4, .disclosed that Ms. Peniston had been dead for several days. The autopsy further disclosed that she had been beaten, sexually assaulted, and strangled. From a sneaker imprint on her chest and from evidence of fractured ribs and hemorrhaging of the right lung, vertebral column, and right atrium of the heart, Dr. Stanley Becker, the Monmouth County medical examiner, concluded that Ms. Peniston’s assailant had stomped on her chest. Dr. Becker determined that the ultimate cause of death, however, was ligature strangulation. Subsequent police investigation revealed that characteristics of spermatozoa found on the victim’s coat were consistent with those of defendant’s saliva, and that defendant’s sneakers made an imprint that was similar to the impression, on the victim’s chest.

********

[On May 6, defendant was arrested for receiving stolen property, Ms. Peniston’s Ford Granada. After five hours in police custody, defendant confessed to the murder.]

********

He then gave a written statement, in which he admitted that he accosted Ms. Peniston in front of her apartment building and demanded money from her. The statement continued that when he heard someone coming, he grabbed her and led her to the shed. In the ensuing events, he repeatedly struck Ms. Peniston, sexually assaulted her, and took eight dollars as well as the car keys from her pocketbook. While on his way to Newark in her car, he collided with an iron fence alongside a graveyard, and abandoned the car.

In defendant’s initial trial, a jury convicted him of capital murder. In the penalty-phase, the same jury sentenced defendant to death, finding both aggravating factors proffered — that the murder had “involved torture, depravity of mind, or an aggravated assault to the victim,” N.J.S.A. 2C:ll-3c(4)(c) (“c(4)(c)”), and that the murder had been committed in the course of a felony, N.J.S.A. 2C:ll-3c(4)(g) (“c(4)(g)”) — and finding no mitigating factors. This Court affirmed, defendant’s conviction but reversed the sentence largely because the court had incorrectly charged the jury on the finding of mitigating factors. Bey II, supra, 112 N.J. at 156-72, 548 A.2d 887. We remanded for resentencing.

On the same day that this Court decided Bey II, it also vacated defendant’s conviction and death sentence for the murder of Cheryl Alston. State v. Bey, 112 N.J. 45, 548 A.2d 846 (1988) (Bey I). There, we held that defendant was not death- eligible because he had committed the murder before the age of eighteen. Id. at 51-52, 548 A.2d 846. Defendant was subsequently retried for the Alston homicide and found guilty of purposeful murder. The court sentenced defendant on the murder count to life imprisonment with a thirty-year parole disqualifier and on aggravated sexual assault to a consecutive twenty-year term with a ten-year parole disqualifier. Those sentences were made consecutive to all sentences defendant was then serving. The Appellate Division recently affirmed defendant’s conviction for the Alston murder. 258 N.J.Super. 451, 610 A.2d 403, certif. denied, 130 N.J. 19, 611 A.2d 657 (1992).

In February 1990, defendant moved in the Law Division for a new guilt-phase trial in the Peniston murder based on our decision in Gerald, supra, 113 N.J. 40, 549 A.2d 792. The court denied the motion, and both the Appellate Division and this Court denied leave to appeal.

In June 1990, the Law Division considered and resolved a number of pretrial motions regarding the Peniston resentencing proceeding. The court denied defendant’s motion to dismiss the petit jury panel for unconstitutional under-representation of blacks but it granted defendant’s motion to inspect and copy all jury records in the possession of the Monmouth County Clerk and to communicate with jurors to determine their race. The court denied without prejudice defendant’s motion for change of venue. The court also granted defendant’s motion to strike the c(4)(c) aggravating factor but denied defendant’s motion to dismiss the prior-murder aggravating factor.

Voir dire lasted six days. Fourteen jurors were selected to hear the case, two of whom were designated as alternates immediately prior to jury deliberations. During voir dire, the court questioned potential jurors about whether their knowledge that defendant had already been sentenced for a prior murder to life imprisonment with a forty-year parole-ineligibility period would affect their impartiality.

The resentencing trial lasted seven days. The State sought to prove two aggravating factors, that defendant had committed a prior murder, c(4)(a), and that the murder had occurred during the course of sexual assault and robbery, c(4)(g). The defense did not contest the aggravating factors but argued that they were outweighed by four mitigating factors: (1) “defendant was under the influence of extreme mental or emotional disturbance,” N.J.S.A. 2C:ll-3c(5)(a) (“c(5)(a)”); (2) defendant’s age at the time of the murder, N.J.S.A. 2C:ll-3c(5)(c) (“c(5)(c)” or “age mitigating factor”); (3) “defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication,” N.J.S.A. 2C:ll-3c(5)(d) (“c(5)(d)”); and (4) “[a]ny other factor which is relevant to the defendant’s character or record or to the circumstances of the offense,” N.J.S.A. 2C:ll-3c(5)(h) (“c(5)(h)” or “catch-all factor”).

To prove the prior murder, the State called Dr. Stanley Becker, the Monmouth County pathologist, who described the cause of death as asphyxia due to strangulation, and detailed the wounds inflicted on Ms. Alston. Investigator Phillip George described the appearance of the victim when found and the presence of a two-by-four at the crime scene. He also reported that the victim was subsequently identified as Cheryl Alston, and that she was nineteen years old at the time of death. Investigator Michael Dowling had testified that a jury had convicted defendant of murdering Ms. Alston, and the State introduced Ms. Alston’s death certificate into evidence.

To establish that the Peniston murder had occurred during the commission of a felony, the State produced evidence indicating that defendant had sexually assaulted and robbed the victim: her semen-stained raincoat, her raincoat belt and scarf (both found tied around her neck), buttons from her dress, other articles of clothing, a crime-scene photograph depicting the victim when found, and the rear-view mirror from the victim’s car containing defendant’s fingerprints. Investigator Dowling testified about the significance of those items and described his investigation of the murder.

In addition, the State’s pathologist, Dr. Becker, testified that Ms. Peniston had been strangled from behind and sexually-assaulted. He graphically described the brutal injuries inflicted on the victim’s face and chest. Investigator George read to the jury defendant’s station-house confession of robbery and rape. A New Jersey State Police forensic scientist, Henry Swordsma, testified that the sperm stain found on Ms. Peniston’s raincoat was consistent with defendant’s whole blood sample. Finally, the State moved Ms. Peniston’s death certificate into evidence.

In support of the mitigating factors, the defense presented evidence concerning defendant's upbringing through the testimony of four witnesses: defendant’s mother (Patricia Bey), aunt (Gwendolyn El), uncle (Clarence Horton), and a family friend (Juliet El). We summarize the pertinent aspects of defendant’s background. Defendant was the second of Patricia Bey’s four children. An alcoholic, Ms. Bey drank heavily while pregnant with defendant. Six months after defendant was born, his father threw Ms. Bey and her children out of his apartment because she was seeing another man. Ms. Bey moved in with her sister, and soon moved her family to another apartment down the street. Over the next few years, Ms. Bey had two more sons and moved frequently.

Defense witnesses testified that Ms. Bey had neglected and abused her children. She kept the lights off in the apartment, and covered the windows and mirrors out of an alcohol-induced paranoia that the devil would get her. Several witnesses described the cold, dark, slovenly state of the Beys’ apartments and the unkempt condition of the children. Defendant began drinking at age nine and he began using drugs, particularly marijuana, at age eleven.

Growing up, defendant frequently received severe, unpredictable beatings with broom handles, belts, belt buckles, straps, and other items. Ms. Bey testified that on one occasion she knocked defendant down, causing him to hit his head on a coffee table and lose consciousness. Although defendant’s head was gashed, she did not take him to a doctor. Ms. Bey also recalled another time when her neighbors had threatened to call the police if she did not stop beating defendant. Gwendolyn El surmised that Ms. Bey had singled out defendant for these brutal beatings because his father had spurned her. She also ascribed defendant’s crimes to defendant’s anger against his mother: “mentally Marko did not kill those two women, it was his mother that he was killing.”

Through the testimony of three medical experts, the defense sought to prove that at the time of the murder, defendant was undergoing an extreme mental or emotional disturbance (c(5)(a)) and that his moral capacity was significantly impaired by mental defect and intoxication (c(5)(d)). All three defense experts attributed defendant’s psychiatric condition to organic brain damage. Dr. Gary Kay, a clinical neuropsychologist, testified that he had conducted several tests on defendant over a period of nine hours. Based on defendant’s performance in those tests, Dr. Kay found “the possibility of mild * * * longstanding brain damage localized in the left frontal region.” He then theorized that defendant’s in útero exposure to alcohol, defendant’s preadolescent consumption of drugs and alcohol, and defendant’s two early head injuries (the blow against the coffee table and a bicycle accident) could have seriously interfered with his frontal-lobe. development. He described that impairment as brain dysfunction rather than a structural abnormality, which would partly explain defendant’s violence and intense emotional responses. Dr. Kay noted that defendant’s mood swings, suspiciousness, and extremes of irritability and rage supported the diagnosis of brain damage.

Dr. John Young, a forensic psychiatrist, described his three-hour examination of defendant. Dr. Young concluded that defendant suffered from organic personality syndrome¹ and pointed to several possible causes: defendant’s in útero exposure to alcohol, abused childhood, preadolescent drug and alcohol use, early head injuries, lack of a fatherly presence, and the conditions in the Bey household. Dr. Young found that defendant’s mood swings, outbursts of rage, impaired social judgment, apathy or indifference, and suspiciousness or paranoia were consistent with his findings. He concluded that defendant’s murder of Ms. Peniston had been triggered by a stimulus that had caused him to lose control. Dr. Young also testified that defendant had been helped by medication and the structured environment of prison.

Finally, Dr. Jonathan Pincus, a neurologist, testified in a similar fashion. Dr. Pincus discussed his studies of juvenile delinquents, which had indicated that child abuse and neurological dysfunction are causatively linked to violent behavior. Dr. Pincus suggested that Ms. Bey’s unpredictable abuse of defendant was a likely cause of his paranoia. In addition, he found evidence of neurological impairment based on defendant’s background of alcohol exposure, alcohol and drug abuse, early head trauma, and palsied hand-movements. Dr. Pincus also rejected a diagnosis of antisocial personality disorder,² arguing that that diagnosis “is a mere scriptor of antisocial behavior [and] doesn’t say anything about the cause of it.” Dr. Pincus and Dr. Young both testified that during their interviews with defendant, he had displayed remorse for his crimes.

Through cross-examination of defendant’s medical experts, the State sought to support its theory that defendant suffered merely from antisocial personality disorder rather than any organic dysfunction of the brain. The State also presented the rebuttal testimony of Dr. Timothy Michals, a psychiatrist, who concluded that defendant’s antisocial personality disorder did not affect his ability to appreciate the wrongfulness of his conduct or to conform his conduct to the law. Rather, he testified that defendant’s personality disorder reflected a conscious choice to break society’s rules. He also noted that defendant’s improved behavior in prison contradicted the diagJ nosis of organic personality syndrome. Moreover, Dr. Michals pointed to the following evidence that defendant had not lost control at the time of the murder: defendant removed the victim to a secluded spot, removed her glasses to hinder identification, and afterwards stole her car and drove forty minutes to Newark. He also explained that defendant’s show of remorse merely reflected fear of a death sentence.

Finally, in an attempt to counter the defense’s testimony that Ms. Bey’s Neptune residence had lacked lighting, a supervisor at Jersey Central Power & Light testified that the power had been shut off only once between 1978 and 1983.

The jury deliberated for approximately three hours. They found the presence of both aggravating factors beyond a reasonable doubt. Only two jurors found extreme mental or emotional disturbance, c(5)(a). None of the jurors found the age mitigating factor, c(5)(c), or the significant impairment of moral faculties, e(5)(d). Six found the catch-all factor, c(5)(h). The jury unanimously found beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors that had been found. After polling the jury, the court sentenced defendant to death.

II.

Guilt-Phase Issues

A. Death-Eligibility under Gerald

Defendant argues that his murder conviction does not establish death-eligibility under Gerald, supra, 113 N.J. 40, 549 A.2d 792. In that case, decided two months after Bey II, we held that defendants cannot be subjected to the death penalty for murder if they were convicted of purposely or knowingly causing serious bodily injury resulting in death (SBI murder). Id. 113 N.J. at 69-90, 549 A.2d 792. Gerald requires that juries clearly distinguish between capital murder (defendant intended death) and non-capital murder (defendant intended serious bodily injury). In pre-Gerald cases, when the jury returned a death sentence without being instructed on the distinction between capital murder and SBI murder, this Court must examine the record to ensure that the sentence is not based on a conviction for SBI murder. If the evidence in such cases could have supported convictions for either capital murder or SBI murder, then the defendant’s conviction is reversible error and the death sentence must be vacated. See State v. Erazo, 126 N.J. 112, 126-28, 594 A.2d 232 (1991); State v. Dixon, 125 N.J. 223, 251-55, 593 A.2d 266 (1991); State v. (Samuel) Moore, 122 N.J. 420, , 585 A.2d 864 (1991); State v. Harvey, 121 N.J. 407, 412-14, 581 A.2d 483 (1990), cert. denied, — U.S. -, 111 S.Ct. 1336, 113 L.Ed.2d 268 (1991); State v. Clausell, 121 N.J. 298, 313-16, 580 A.2d 221 (1990); State v. Pennington, 119 N.J. 547, 560-65, 575 A.2d 816 (1990); State v. Long, 119 N.J. 439, 460-65, 575 A.2d 435 (1990); State v. Coyle, 119 N.J. 194, 208-12, 574 A.2d 951 (1990); Gerald, supra, 113 N.J. at 69-92, 549 A.2d 792. In deciding the Gerald issue, this Court is “not second-guessing” jury verdicts but rather determining whether the jury had a rational basis to conclude that defendant might have intended to cause only serious bodily injury. Dixon, supra, 125 N.J. at 254, 593 A.2d 266. If such a rational basis exists, but, despite that fact, no Gerald charge was given, then the defendant’s death sentence must be overturned.

In this case, the court specifically instructed the jury that it could find defendant guilty of capital murder if it found that he intended to inflict serious bodily injuries that resulted in death. After defining murder as the purposeful or knowing intent to cause death or serious bodily injury resulting in death, the court explained:

It is not necessary for the State to produce a witness or witnesses who could testify that the defendant stated, for example, that his purpose was to cause the death or serious bodily injury resulting in death, or that he knew that what he was doing would kill Carol Penniston [sic] or was practically certain to cause her death or serious bodily injury resulting in death.

[Emphasis added.]

By contrast, the jury interrogatory referred only to “murder by. knowingly or purposely causing the death of Carol Peniston,” without mentioning serious-bodily-injury murder. Nonetheless, the interrogatory’s phrasing did not obviate the need for a jury instruction clearly differentiating between capital murder and SBI murder. To determine whether the jury could have convicted defendant only of capital murder, we must examine the evidence presented to the jury.

In Gerald, we noted that in some cases, in which the jury did not clearly distinguish between capital murder and SBI murder, the evidence might lead to the inescapable conclusion that the defendant intended the death of the victim. Gerald, supra, 113 N.J. at 79-80, 549 A.2d 792 (citing State v. Ramseur, 106 N.J. 123, 162, 524 A.2d 188 (1987), and State v. Biegenwald (Beigenwald II), 106 N.J. 13, 20, 524 A.2d 130 (1987)). This inquiry is necessarily fact-specific. In three cases, we found that the manner of the murder, in conjunction with the defendant’s statements or actions, left no doubt that the defendant had intended death. See State v. McDougald, 120 N.J. 523, 558-60, 577 A.2d 419 (1990) (defendant cut victims’ throats, bludgeoned one with baseball bat, and expressed his intent to kill victims both before and after the homicides); State v. Pitts,' 116 N.J. 580, 614-20, 562 A.2d 1320 (1989) (Vietnam veteran defendant threatened to kill victims two days before murder, inflicted twenty-five to thirty stab wounds with combat knife, cut one victim’s throat twice, and paused to take pulse of victims to verify death); State v. Hunt, 115 N.J. 330, 374-77, 558 A.2d 1259 (1989) (defendant stated intent to kill immediately prior to stabbing victim twenty-four times and afterwards admitted to killing). In another two cases, we found that the manner of killing alone indicated that the defendant- could have intended only to cause death. See State v. Hightower, 120 N.J. 378, 412-14, 577 A.2d 99 (1990) (defendant shot the victim at close range in the chest, neck, and head, and then dragged the victim into a freezer); State v. Rose, 120 N.J. 61, 63-64, 576 A.2d 235 (1990) (Rose II) (defendant fired shotgun point-blank at victim’s abdomen).

At trial, the jury heard defendant’s oral and written confessions, as well as his testimony about the crime. Defendant’s oral confession was read into the record:

I robbed the lady, I just bugged out, she saw my face * * * I just bugged out, going through her purse, went into her coat pocket, I turned around and she was looking at me.

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I started hitting her, I asked “What are you looking at?” She fell. She wasn't moving.

Defendant’s written confession provided the following description of the crime:

I turned around and she was looking at me. I got scared and I started hitting her. She fell down. She wasn’t moving or making any sound or anything. I had sex with her and left.

On both direct examination and cross-examination, defendant offered similar accounts of the crime. On cross-examination, defendant denied that he had killed the victim to prevent her from identifying him:

[W]hen she seen my face, that’s when I started hitting her, okay? Now, after I started hitting her, it just went on too far, something that shouldn’t have went on.

Although defendant consistently admitted striking the victim and raping her, he did not recount either strangling her or stomping on her chest. Nonetheless, defendant identified the belt with which he had strangled Ms. Peniston:

Q. You recall the belt, don’t you?

A. Yes.

Q. The belt you used to strangle Mrs. Peniston?

A. Yes.

At the guilt-phase trial, the medical examiner, Dr. Becker, testified that the victim’s death had been caused by asphyxia due to ligature strangulation with the victim’s scarf or raincoat belt. He detailed the blunt trauma that had damaged the victim’s face, fractured her dental plate, and caused cerebral hemorrhaging. Moreover, Dr. Becker described the “force [that] was applied to the chest wall sufficiently strong not only to fracture the ribs but also to compress a portion of the heart to cause the hemorrhage in the posterior wall of the right atrium,” and found that blow consistent with the sneaker imprint on the victim’s chest. The jury was shown a photograph depicting that sneaker imprint. Thus, the jury heard and viewed graphic evidence that the defendant had brutalized and strangled the victim.

Strangulation is commonly understood as a form of violence designed and likely to kill a victim, and hence would ordinarily not be used by one whose purpose was only to inflict serious bodily injury. See State v. Perry, 124 N.J. 128, 184, 590 A.2d 624 (1991) (Stein, J., concurring in part and dissenting in part). But cf. State v. Breakiron, 108 N.J. 591, 605-06, 532 A.2d 199 (1987) (questioning whether defendant who asserted defense of diminished capacity to murder by strangulation intended death or was practically certain death would occur). Here, Dr. Becker’s testimony confirmed that ligature strangulation was the cause of Ms. Peniston’s death. Strangulation is an especially brutal means of killing because it requires the murderer to witness the victim’s gradual death throes. However, defendant not only strangled the victim from behind, he also smashed her face hard enough to break her dental plate and cause cerebral hemorrhaging, and he stomped on her chest with enough force to crush her ribs, damage her heart and inscribe his sneaker sole on her chest. Moreover, in his written confession, defendant admitted raping the victim after “she wasn’t moving or making any sound or anything.” Defendant then left the victim in the abandoned shed. When a defendant employs various means of violence against the same victim, we need not focus on which method actually succeeded in causing death. Rather, we find that defendant’s actions, taken as a whole, were so wantonly brutal that he could have intended only to cause death, or knew that death was practically certain to occur. See Pitts, supra, 116 N.J. at 617-18, 562 A.2d 1320 (“assault * * * was so violent that death was inevitable”); People v. Nottingham, 172 Cal.App.3d 484, 221 Cal.Rptr. 1, 4 (1985) (when victim was viciously beaten and strangled, court held that “[t]he method of killing obviously points to an intended killing as opposed to * * * a death [that] is a by-product of actions impelled by some intent other than an intent to kill”). Overall, we find that defendant’s strangulation of the victim and the degree of force applied to the victim’s head and chest make it simply “inconceivable that defendant was not ‘practically certain’ that his action would kill the [victim].” Rose II, supra, 120 N.J. at 64, 576 A.2d 235.

B. Harmless Error Analysis under Gerald

Defendant further contends that this Court’s standard of review for Gerald issues deprives defendants of their constitutional right to have the jury determine all the issues of the crime and to be convicted on proof beyond a reasonable doubt. More specifically, defendant contends that because he was tried before Gerald, he did not have an opportunity to present evidence that he had intended to commit only serious bodily injury. We have implicitly rejected that argument in our prior Gerald decisions. See McDougald, supra, 120 N.J. at 590-91, 577 A.2d 419 (Handler, J., concurring in part and dissenting in part). In assessing the Gerald issue we examine scrupulously the evidence that was adduced at trial to see whether the jury had a rational basis for finding that the defendant could have intended only serious bodily injury. That standard of review is sufficiently tolerant to allow consideration of whether any evidence could have permitted the jury rationally to conclude that defendant intended only serious bodily injury but not death. Our view of this record is that the evidence that defendant intended to cause death or knew that death was practically certain to occur is so compelling as to exclude the possibility that he possessed a less culpable state of mind. Accordingly, we affirm defendant’s conviction for the capital murder of Ms. Peniston.

C. The Mens Rea Element of Capital Murder

Defendant argues that the capital murder statute as limited by Gerald is still defective because it does not guarantee that the jurors unanimously agree on whether the defendant committed the murder knowingly or committed it purposely. The Supreme Court' has held that jury unanimity on the mens rea element of an offense is not required when “two mental states * * * supposed to be equivalent means to satisfy the mens rea element of a single offense * * * reasonably reflect notions of equivalent blameworthiness or culpability.” Schad v. Arizona, — U.S.-,-, 111 S.Ct. 2491, 2503, 115 (1991). We treat knowing murder and purposeful murder as equivalent expressions of moral culpability. In Gerald, supra, we held: “Our society’s ultimate sanction— the death penalty — is properly imposed on those who act with the most culpable state of mind, namely, the purpose or knowledge that their victims will die.” 113 N.J. at 89, 549 A.2d 792 (emphasis added). See N.J.S.A. 2C:11-3a(1), (2). That a jury agree unanimously that the defendant’s state of mind was either purposeful or knowing is sufficient to find a defendant guilty of capital murder.

III.

Sentencing-Phase Issues

A. Racial Composition of the Petit Jury Panel

Defendant argues that the trial court deprived him of his constitutional rights to equal protection and to a jury composed of a fair cross-section of the community. Before the resentencing proceeding began, defense counsel moved to challenge the racial composition of petit jury panels in Monmouth County. In support of the motion, the defense submitted six affidavits from Monmouth County public defenders stating that the representation of blacks on petit jury panels in the county were far below their proportion of the population (7.91 percent of the age-eligible population in 1980). The defense also presented three certifications, two of which concerned alleged under-representation of blacks in Richard Biegenwald’s January 1989 death-penalty resentencing. In the third certification a public defender stated that at defendant’s second trial for the Alston murder, only two of the sixty-two prospective jurors were black. The trial court denied the motion for an evidentiary hearing, concluding that the defense had failed to make out a prima facie showing of discrimination. However, the court granted defense requests to inspect and copy all jury records and to communicate with the potential jurors on the jury lists, and also left open the possibility of a future hearing if the defense made out a prima facie showing. At the start of jury selection, seven of the 101 prospective jurors were black. Although the defense stated its intention to “work[ ] diligently to see if there is a prima facie case,” it never renewed its motion for an evidentiary hearing.

We conclude that the trial court did not err in denying defendant an evidentiary hearing. As we noted in Ramseur, supra, “a defendant has no right to a jury that includes members of his own race.” 106 N.J. at 216, 524 A.2d 188 (citations omitted). To establish a prima facie equal-protection claim, a defendant must identify a constitutionally-cognizable group, prove substantial under-representation over a significant period of time, and demonstrate discriminatory purpose. Coyle, supra, 119 N.J. at 213, 574 A.2d 951; Ramseur, supra, 106 N.J. at 215-17, 524 A.2d 188. Similarly, a defendant must identify a constitutionally-cognizable group, show unfair and unreasonable representation over time, and prove systematic exclusion to make out a prima facie fair cross-section claim. Coyle, supra, 119 N.J. at 213, 574 A.2d 951. Our review of the record indicates that defendant failed to adduce sufficiently reliable statistical data to establish the latter two prongs of both claims. See Ramseur, supra, 106 N.J. at 217-28, 524 A.2d 188 (describing the statistical techniques used for demonstrating systematic under-representation of minorities in jury pools). The fact that the percentage of blacks on a defendant’s panel was lower than their proportionate representation in the county is insufficient evidence to establish a prima facie case. See Ramseur, supra, 106 N.J. at 217-25, 524 A.2d 188; see also United States v. Garcia, 836 F.2d 385, 388 (8th Cir.1987) (defendant’s comparison of number of minorities on his venire to population of minorities in county does not establish prima facie case); People v. Saunders, 187 Ill.App.3d 734, 135 III.Dec. 510, 516-17, 543 N.E.2d 1078, 1084-85 (1989) (same), appeal denied, 129 Ill.2d 570, 140 Ill.Dec. 679, 550 N.E.2d 564 (1990). Nor do the affidavits of the public defenders relating their recollections of observed jury pools pass muster as reli able statistical data. See People v. Broadnax, 177 Ill.App.3d 818, 127 Ill.Dec. 107, 114, 532 N.E.2d 936, 943 (1988) (testimony and affidavits of attorneys based on personal experiences and observations were not “methodologically valid or adequate” and so did not establish a prima facie case), appeal denied, 125 Ill.2d 568, 130 Ill.Dec. 483, 537 N.E.2d 812, cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989). Although defense counsel disclaimed any intention to abandon the issue, defendant’s expert had not completed his study in time for the defense to present additional evidence substantiating its claims or to support a renewed motion for an evidentiary hearing prior to trial. Thus, we reject defendant’s argument that he made out a prima facie case sufficient to warrant an evidentiary hearing on the issue.

B. Peremptory Challenge of a Black Juror

Defendant argues that the prosecutor’s peremptory challenge of the only black juror qualified for jury service violated his right to a fair and impartial jury and to equal protection. During voir dire seven black venirepersons were questioned and six were excused for cause. The only remaining black juror stated, in response to a defense question, that the death penalty should be used as a “last resort,” or in “a very rare situation.” He also expressed the view that he had “not seen too many situations where I felt that the death penalty would be an appropriate measure.” The prosecutor gave the following rationale in exercising a peremptory challenge against that juror: “he indicated * * * as regards the imposition of capital punishment, that it would be, in his opinion, only in the last resort, in a very rare situation.”

A prosecutor is forbidden from exercising peremptory challenges to excuse potential petit jurors on the basis of race under both the United States and New Jersey constitutions. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); State v. Watkins, 114 N.J. 259, 553 A.2d 1344 (1989). The defense can rebut the presumption that the prosecution properly exercised its peremptory challenges by a prima facie showing that: (1) “the potential jurors wholly or disproportionately excluded were members of a cognizable group within the meaning of the representative cross-section rule”; and (2) that a “substantial likelihood” exists that the peremptory challenges were motivated by “group bias.” State v. Gilmore, 103 N.J. 508, 535-36, 511 A.2d 1150 (1986). In assessing whether a defendant has made out a prima facie showing, we will examine five factors, including whether the prosecutor struck most or all of the members of the identified group from the venire and whether the prosecution used a disproportionate number of its peremptory challenges against the group. Watkins, supra, 114 N.J. at 266, 553 A.2d 1344; see McDougald, supra, 120 N.J. at 554-57, 577 A.2d 419 (prima facie showing where prosecutor used ten of twelve peremptory challenges to excuse black potential jurors); Watkins, supra, 114 N.J. at 268, 553 A.2d 1344 {prima facie showing where prosecutor peremptorily challenged every black juror except one who was challenged for cause); Gilmore, supra, 103 N.J. at 540-43, 511 A.2d 1150 (prima facie showing where prosecutor used peremptory challenges to excuse seven out of nine black potential jurors and then successfully requested court to excuse remaining two for good cause).

In this case, the prosecutor exercised one peremptory challenge against a black potential juror and another four against potential jurors who were not black. In addition, at least one prospective black juror was excused for cause on the motion of defense counsel. Thus, we find that defendant has failed to make a prima facie showing that the prosecutor exercised his peremptory challenges unconstitutionally.

C. Dr. Cooke’s Report

Defendant contends that the trial court erred by refusing to admit Dr. Gerald Cooke’s report into evidence to prove mitigating factors. Dr. Cooke, a clinical and forensic psychologist, tested and interviewed defendant at the behest of the State. Dr. Cooke’s report was circulated to all the experts, who reviewed it before testifying. At the close of testimony, defense counsel moved to enter the Cooke report into evidence, arguing that the prosecutor had relied on that report in cross-examining the defense’s medical experts. The defense noted that Dr. Cooke was currently unavailable to testify and that they had delayed communicating with him in the belief that the prosecution would have produced Dr. Cooke. The State moved to admit the first seven pages of the report, wherein Dr. Cooke criticized the methodology and the findings of the defense experts. The defense countered that the entire report should be included because the last two pages of the report, corroborating defense experts’ account of defendant’s personality development, provided evidence in support of the mitigating factors. The court determined that the report was inadmissible and also criticized the defense for failing to subpoena the doctor.

1. The Court’s Refusal to Admit the Cooke Report

We first address whether Dr. Cooke’s report should have been admitted into evidence. Pursuant to the Capital Punishment Act, N.J.S.A. 2C:ll-3c(2)(b), “The defendant may offer, without regard to the rules governing the admission of evidence at criminal trials, reliable evidence relevant to any of the mitigating factors.” Indisputably, the report’s descriptions of the defendant’s anti-social personality disorder and his upbringing were relevant to mitigating factors c(5)(a), c(5)(d) and c(5)(h). The report’s reliability is attested to by the fact that the State initially procured the report, relied on the report in cross-examining two defense experts, and raised no objection to admitting that portion of the report that bolstered its case. See Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 2151, 60 L.Ed.2d 738, 741 (1979) (“Perhaps most important, the State considered the [hearsay] testimony sufficiently reliable to use it against [the codefendant].”). Moreover, two defense experts stated that they agreed in part with Dr. Cooke’s report. In Long, supra, 119 N.J. at 502, 575 A.2d 435, we upheld the trial court’s exclusion of letters written on behalf of the defendant because they were not subject to cross-examination by the State. Crucial to that ruling, however, was the fact that the letter-writers were available, and that indeed thirteen of them had testified. Here, by contrast, Dr. Cooke was unavailable to testify and his report can be deemed more reliable than attestations of good character. We have held that “when [the] defendant offers evidence of a mitigating factor, any doubts concerning admissibility must be resolved in favor of the defendant.” State v. Savage, 120 N.J. 594, 638, 577 A.2d 455 (1990) (on remand double hearsay would be admissible if found relevant); accord State v. Davis, 96 N.J. 611, 620, 477 A.2d 308 (1984). Thus, we conclude that the trial court erred in excluding the Cooke report.

In assessing whether the court’s ruling rises to the level of reversible error, it is necessary to detail the contents of the Cooke report and place it in the larger context of the medical evidence presented at trial. The defense presented three expert witnesses: Dr. Gary Kay, a clinical neuropsychologist; Dr. John Young, a forensic psychiatrist; and Dr. Jonathan Pincus, a neurologist. Based on nine hours of testing, Dr. Kay concluded that defendant suffered from minimal longstanding brain damage in his left frontal-lobe region, the area of the brain that controls aggression. Both Dr. Young and Dr. Pincus examined the defendant on separate occasions for three hours and diagnosed him as suffering from organic personality syndrome, an affective disorder resulting from brain damage. Although Magnetic Resonance Imaging (MRI) and CAT scans did not uncover any physical manifestations of brain damage, all three doctors relied on various psychiatric and neurological tests to support their conclusions.

Those experts ascribed defendant’s brain damage to several physiological and psychological causes: (1) Ms. Bey’s alcoholism during her pregnancy; (2) Ms. Bey’s frequent, severe, and random beatings of defendant; (3) defendant’s early head inju ries from one of his mother’s beatings and from a bicycle accident; and (4) defendant’s escalating alcohol usage from the age of nine onwards and his later drug use (primarily marijuana). All three doctors testified that defendant’s brain damage and psychological condition, along with his alcohol and drug abuse, prevented him from controlling his violent impulses.

In rebuttal, Dr. Timothy Michals, a forensic psychiatrist, testified for the State that defendant suffered from antisocial personality disorder rather than organic personality syndrome. Dr. Michals contended that defendant’s personality disorder did not meet the criteria required to prove mitigating factors c(5)(a) (“extreme mental or emotional disturbance”) or c(5)(d) (significant impairment of moral faculties as the result of mental disease or defect or intoxication). Dr. Michals emphasized the lack of any conclusive scientific evidence that defendant is brain-damaged.

Dr. Cooke, in the first seven pages of his report, presents a systematic refutation of the defense experts’ methodology and findings. Dr. Cooke diagnosed defendant as having a personality disorder with antisocial features, and also rejected Dr. Young’s finding that defendant’s drug and alcohol use was sufficient to meet mitigating factor c(5)(d). The last two pages of the report summarize the main features of defendant’s history (his abusive upbringing and alcohol and drug use) and then present an explanation for defendant’s criminal behavior:

As a child, he was anxious, helpless, insecure, frightened, and depressed, due to the combination of neglect and cruelty from his mother. As he got older, and under dissocial influences in his milieu, his defensive structures * * * developed into a personality disorder which also encouraged the expression of the anger he felt due to the neglect and cruelty. The anxiety-depression became masked and tends only to emerge under periods of stress. For him one of the greatest stresses is not being in control of a situation. Control is important to him so he does not re-experience what his mother made him feel as a child. * * * He has a tremendous rage toward women and, in my opinion, it is this rage that is the reason for his brutal aggression, demeaning, and sexual attacks toward his victims. The level of aggression certainly was not necessary to the purpose of the robbery. Even if he wanted to kill them to prevent them from identifying him to the police, the level of aggression and brutality was unnecessary. In my opinion, the reason for that behavior is that it allows him to have control and dominance, and to express the anger he felt toward his mother.

********

[Ajlmost all of the persons he has tried to rob, and also has physically attacked, have been women and, with one exception [Cheryl Alston], all of them have literally been old enough to have been his mother. The combination of his personality dynamics and the evidence regarding the brutal physical and sexual assault on Ms. Peniston do indicate that at some point he lost control and acted in a rage.

At oral argument before this Court, the Public Defender contended that Dr. Cooke’s report provided better mitigating evidence than any of the three defense experts because it explicitly linked defendant’s abused childhood and hatred of women to this particular crime. In addition, Dr. Cooke’s report partly countered the State’s theory that the defendant had murdered Ms. Peniston simply to avoid being identified. However, the defense overstates the importance of Dr. Cooke’s report. Dr. Pincus had already testified that defendant’s' abused childhood and his view of women contributed to his violent behavior:

I think you have a person there who was also abused, has a model of behavior of striking out savagely when you’re angry and also is angry himself because of the way he was treated by women, by his mother.

Although Dr. Cooke suggested that defendant lost control at the time of the murder, he diagnosed defendant as suffering from mixed personality disorder with antisocial, paranoid, and explosive features. In the last page of his report, Dr. Cooke made the following observations:

Regarding the mitigating factors raised by the other doctors, the following may be said. The field has never defined what is meant by “extreme mental or emotional disturbance.” There are really two definitions. In the broad definition many of the diagnoses listed in the DSM-III-R would be considered to be severe mental or emotional disturbance and this would include the personality disorders. However, what is more commonly used is a narrower definition. Under the narrower definition, only those disorders, which would, independent of any criminal behavior, require some sort of treatment intervention, either outpatient or in-patient, would be included.. Generally, the personality disorders do not fit under that definition.

I also would not agree with Dr. Young that the drug and alcohol use was sufficient to impair his ability to appreciate the wrongfulness of his behavior or to conform his behavior to the requirements of law. Both Mr. Bey’s behavior at the time and his discussion on interview now, clearly indicates that he knew that what he was doing was criminal and wrong.

[Emphasis added.]

Thus, Dr. Cooke explicitly rejected the defense expert’s findings of mitigating factors c(5)(a) and c(5)(d). Aside from its discussion of defendant’s personality development, Dr. Cooke’s report provided little support for the defense — a fact that is underscored by defendant’s failure to subpoena Dr. Cooke for trial.

Viewed in the context of the medical testimony at trial, Dr. Cooke’s report offered compelling but cumulative evidence of defendant’s background and personality disorder. Read fairly, Dr. Cooke’s report corroborates the defense experts’ description of defendant’s personality but rejects the relevance of defendant’s personality for establishing the mitigating factors. Concededly, the jury might have accorded Dr. Cooke’s report greater weight than the defense experts’ testimony because it had been procured by the State. See Skipper v. South Carolina, 476 U.S. 1, 8, 106 S.Ct. 1669, 1673, 90 L.Ed.2d 1, 9 (1986) (“The testimony of more disinterested witnesses * * * would quite naturally be given much greater weight by the jury.”); Brennan v. State, 766 P.2d 1385, 1386-87 (Okla.Crim.App.1988) (reversing death sentence where court improperly excluded letter from state-employed doctor, who “may have been perceived as more objective” than defense expert). However, the significance of the Cooke report’s exclusion is questionable inasmuch as it was factually consistent with the defense expert’s description of defendant’s personality. Moreover, Dr. Cooke’s report was not the only “disinterested” evidence of defendant’s troubled childhood. The State’s own expert, Dr. Michals, testified, albeit briefly, that the defendant had begun drinking at age nine and had begun using drugs at age eleven. He also referred to the fact that defendant had been beaten by his mother. Thus, the jury heard evidence about defendant’s background and psychological development from both prosecution and defense witnesses.

Based on our determination that Dr. Cooke’s report provides only cumulative evidence of defendant’s psychological background and directly refutes the testimony of defendant’s experts concerning mitigating factors, we conclude that the trial court’s improper exclusion of Dr. Cooke’s report was not “capable of producing an unjust result.” R. 2:10-2.

2. Use of the Report in Cross-Examination

Defendant argues that the trial court violated due process by refusing to allow defense counsel to use the Cooke report to cross-examine the State’s rebuttal witness even though the prosecutor had previously used it to cross-examine defense experts. Before trial the State’s expert and three defense experts reviewed Dr. Cooke’s report, which was written after their reports had been prepared. The prosecutor used the Cooke report first during his cross-examination of Dr. Kay. After establishing that defendant scored better on one of the Eeitan Neuropsychological Battery subtests when he was retested by Dr. Cooke, the prosecutor quoted the report’s conclusion that such improvement weighed against a finding of organic brain impairment. In addition, the prosecutor stated that “Dr. Cooke * * * is of the opinion that the type of drugs used and the time is insufficient to cause organic brain syndrome in this case.” On redirect, the defense had Dr. Kay read to himself the report’s last two pages, detailing defendant’s personality development, and then asked him if he agreed with that portion of the report. Dr. Kay stated that Dr. Cooke’s conclusions seemed “reasonable.” Later, Dr. Young, on direct examination, began discussing Dr. Cooke’s hypothesis that defendant’s anger toward his mother had prompted his attacks on older women. The prosecutor objected, and the court sustained the objection. The State’s rebuttal witness, Dr. Michals, referred briefly on direct examination to Dr. Cooke’s report. Defense counsel on cross-examination sought to question him about the Cooke report:

Q. Okay. You’re familiar with Dr. Cooke’s conclusion and his report that even if the Defendant wanted to kill to prevent the victims from identifying him to the. police, the level of aggression and brutality was unnecessary.

[PROSECUTOR]: I’m going to object.

THE COURT: Sustained.

[DEFENSE]: It’s a report that he said he relied upon. He said he’s read all of this material.

[PROSECUTOR]: Judge, he did not rely upon it. He said he reviewed it. I object.

[DEFENSE]: He’s indicated whatever he’s read he's reviewed and this is all part of his opinion.

THE COURT: Rephrase your question.

BY [DEFENSE]:

Q. Are you familiar with that?

A. Yes. My report was done before Dr. Cooke’s report.

[PROSECUTOR]: I continue the objection under the circumstances.

THE COURT: He read it after the report was completed.

Objection sustained.

BY [DEFENSE]:

Q. Would you agree, Doctor, that from what you know about the crimes, the level of brutality and aggression, goes beyond what’s necessary to eliminate a witness?

Thus, in this case, the defense had to rephrase the question by excluding any reference to Dr. Cooke’s report.

The defense argues that the court allowed only those portions of Dr. Cooke’s report that disagreed with the defense experts to be presented to the jury. However, the defense never objected to the prosecutor’s use of Dr. Cooke’s report during the cross-examination of Dr. Kay. If the defense had objected, claiming that Dr. Kay read the Cooke report after completing his own report, and the court had still permitted the questioning, defendant’s contentions would be more difficult to resolve.

That the trial court’s rulings on the use of the report could have been more evenhanded is evident. Nonetheless, at the time of its rulings, the court expected Dr. Cooke to testify. Early in the trial, the prosecutor informed the court and defense counsel that he would not make a decision to call Dr. Cooke until he had heard Dr. Pincus’ testimony. Thereupon, the defense announced that it might call Dr. Cooke if the prosecutor failed to do so. As a result of a last-minute emergency, Dr. Pincus was unable to appear as scheduled, and so became the last witness to testify, at which point Dr. Cooke had become unavailable. In assessing whether defendant was disadvantaged by the trial court’s rulings denying use of Dr. Cooke’s report during cross-examination, we note specifically that defense counsel was able to rephrase her questions in order to address the substantive findings of the Cooke report. Based on our careful review of the record, we conclude that the court’s rulings on the use of the Cooke report during cross-examination did not prejudice the defense case.

D. Trial Court’s Refusal to Permit Leading Questions of Ms. Bey

Defendant contends that the trial court improperly prohibited defense counsel from asking defendant’s mother leading questions on direct examination, thus depriving the defense of the potential emotional impact of her testimony. Defense argues that the trial court thereby violated defendant’s constitutional rights as well as the provision of the Capital Punishment Act, N.J.S.A. 2C:ll-3c(2)(b), permitting defendant to offer any reliable evidence of mitigating factors.

During defense counsel’s direct examination of Ms. Bey, the prosecutor asserted five objections to defense counsel’s questions on the ground that they were leading, all of which were sustained. Three objections arose out of defense counsel’s attempt to ask the witness if she remembered beating defendant. In general, the witness did not volunteer much detail about her abuse of defendant.

N.J.S.A. 2C:ll-3c(2)(b) provides that “[t]he defendant may offer, without regard to the rules governing the admission of evidence at criminal trials, reliable evidence relevant to any of the mitigating factors.” In Davis, supra, 96 N.J. at 619, 477 A.2d 308, we recognized that “in the sentencing phase of a capital proceeding — a life or death contest — a defendant is entitled to the use of all reliable, helpful information.” Although the manner of questioning witnesses falls within the broad discretion of the trial court, Cestero v. Ferrara, 110 N.J.Super. 264, 273, 265 A.2d 387 (App.Div.1970), aff'd, 57 N.J. 497, 273 A.2d 761 (1971), leading questions should be allowed if their responses will yield reliable and relevant evidence. See State v. Riley, 28 N.J. 188, 204, 145 A.2d 601 (1958) (“A trial judge has discretion to allow leading questions when they will best serve to illuminate the truth.”), cert. denied, 359 U.S. 313, 79 S.Ct. 891, 3 L.Ed.2d 832 (1959).

Although in our view the trial court’s determinations disallowing leading questions to Ms. Bey were unduly restrictive and clearly erroneous, our review of the entire record leads us to conclude that the court’s rulings were not prejudicial to defendant. Notwithstanding the prosecutor’s objections, the defense did elicit Ms. Bey’s testimony that she drank heavily while pregnant with defendant, that she kept the apartment dark, and that she beat defendant so hard that on one occasion he blacked out and on another occasion the neighbors threatened to call the police. Thus, Ms. Bey can hardly be characterized as an uncooperative, and thus hostile, witness. Given Ms. Bey’s inability or unwillingness to remember certain details of her alcoholism and her abuse of defendant, we find it doubtful that defense counsel could have elicited any further reliable information even if she had been permitted to ask leading questions. Moreover, Ms. Bey’s testimony was cumulative: two family members and one family friend testified in vivid detail about Ms. Bey’s alcoholism and her abuse of defendant. Thus, we find that the court’s refusal to permit leading questions of defendant’s mother, although error, did not possess a clear capacity to cause an unjust result.

E. Trial Court’s Evidentiary Rulings

Defendant argues that the court permitted the introduction of inflammatory evidence that deprived defendant of a fair trial. In Biegenwald II, supra, we set forth evidentiary guidelines for capital sentencing retrials:

Since the retrial is limited to resentencing, the only admissible evidence is that relevant to the issue, namely, evidence of aggravating and mitigating factors. Retrial of issues relevant only to guilt is not permitted. While defendant may lose whatever advantage inheres in the ‘residual doubts’ that the original jury may have had regarding defendant’s guilt, the State may also lose whatever ‘advantage’ inheres in the emotional impact that often surrounds the initial guilt phase. A substantial amount of the evidence admitted initially in the guilt phase nevertheless may be admissible in the retrial of the sentencing proceeding, for often issues relevant to one are relevant to the other.

[106 N.J. at 71, 524 A.2d 130 (citations omitted).]

Early in the trial, the defense made a motion in limine to exclude any “lurid, graphic descriptions” of the two murders that might be offered by the State to prove the two aggravating factors — the prior murder, and the commission of the Peniston murder in the course of a felony. The trial court ruled that the State could produce evidence showing the “manner and mode” of the Alston murder but that it could not introduce all the circumstances surrounding her murder. Also, the court ruled that the State could introduce evidence of robbery and sexual assault during the Peniston murder to prove aggravating factor c(4)(g). The court also decided to rule on each item of proof as it was offered into evidence.

In support of the prior-murder aggravating factor, Dr. Becker, the medical examiner, testified that Cheryl Alston’s death had been caused by asphyxia due to strangulation. He also gave a detailed account of his medical examination of the victim, over the defense’s prior objections:

The face revealed multiple blunt trauma with penetrating wounds of the left eye, the nose, the left side of the face, with palpable fractures of the nasal bones.

********

There was a large laceration of the forehead, the center of the head. Measuring six centimeters by two and a half centimeters * * * and exposing the frontal bone of the skull.

The left eye was pushed inward, out of its socket and also showed a penetrating wound with fractures around it.

The interior surface of the neck revealed horizontal abrasions and encircling the entire anterior surface and also partially in the posterior neck.

********

The abdomen contained three hundred cc’s of liquid and clotted blood; and this was due to a laceration of the liver * * *

There was also a small amount of hemorrhage at the apex of the left ventricle, which is the major chamber of the heart * * *

All the lesions of the face, the lacerations and abrasions and contusions were associated with fractures of all of the facial bones and those were the main findings.

Dr. Becker also noted that the victim’s wounds were consistent with the State’s theory that the injuries had been inflicted by the two-by-four found at the scene of the crime.

In proving the aggravating factor of prior murder, the State may offer evidence concerning “the manner of death,” N.J.S.A. 2C:11-3c(2)(f), but it cannot use such evidence to “tum[ ] the sentencing proceeding into a second trial of the previous case.” Senate Judiciary Comm. Statement to S. 950 at 2 (Nov. 29, 1984). In Erazo, supra, 126 N.J. 112, 594 A.2d 232, we considered the admission of an autopsy report of a prior-murder victim that described the multiple stab wounds and contained an anatomical diagram depicting the location of the wounds. Although we held that the admission of the autopsy report did not constitute plain error, we emphasized the unnecessarily prejudicial nature of that type of evidence:

The prejudicial effect of a graphic and detailed account of the victim’s death might exceed its probative value. On remand, the purposes of the statute will be served if the evidence of the manner of [victim’s] death is described as multiple stab wounds to the chest, lungs, and heart.

[Id. at 136, 594 A.2d 232.]

As Erazo makes clear, the fact that a description of the victim’s wounds is presented in clinical terminology does not obviate its potentially prejudicial effect. Ibid. Because defendant’s resentencing proceeding occurred prior to our decision in Erazo, Dr. Becker was permitted to describe the victim’s condition in more detail than necessary to state the manner of death. Under Erazo, Dr. Becker’s description of the manner of death should have been more general, specifying no more than that death had been caused by a combination of strangulation, skull fractures with cerebral hemorrhage, and laceration of the liver. Although Dr. Becker’s testimony was significantly more specific, we are satisfied that the difference between the testimony elicited and the permissible testimony was not sufficient to divert the jury’s focus from the prior-murder aggravating factor or clearly capable of producing an unjust result.

Defendant also objects to the evidence proffered by the State in support of aggravating factor c(4)(g). Here again, Dr. Becker testified in detail about the wounds inflicted on Ms. Peniston. He described the “marked reddish black discoloration of the skin of the face with maggot infestation.” He also described the sneaker imprint on the victim’s chest and her broken ribs, noting that “to fracture the ribs, you need a force, not a simple step.” Defendant points out that such testimony may have been intended to serve as evidence of an uncharged aggravating factor, c(4)(c), that the murder “involved torture, depravity of mind, or an aggravated assault to the victim.” On the other hand, much of Dr. Becker’s testimony was essential to the jury’s understanding of the circumstances of the murder and its relationship to the felonies that the State relied on to prove aggravating factor c(4)(g). The State had the obligation to prove its case, but the evidence adduced went beyond that required to establish the aggravating factor. Nonetheless, we conclude that the admission of Dr. Becker’s testimony, when placed in the larger context of the seven-day trial, did not have the capacity to produce an unjust result.

Defendant also argues that the court erred in introducing articles of Ms. Peniston’s clothing recovered from the crime scene: pocketbook, brassiere, slip, panty hose, dress, belt, shoes, loose dress buttons, scarf, raincoat, and raincoat belt. The raincoat belt and scarf, which were found around the victim’s neck, the semen-stained raincoat, and the pocketbook constituted relevant evidence that the defendant committed the murder during the course of a rape and robbery. The other articles of clothing were largely irrelevant, especially given the investigator’s testimony that the victim had been found nude. Thus, the court should have excluded those articles, just as it excluded defendant’s sneakers and the victim’s eyeglasses, plastic bowl, and grocery bag, because victim-impact-type evidence always carries the risk that a jury will “inappropriately intertwine [ ] irrelevant emotional considerations with relevant evidence.” State v. Williams, 113 N.J. 393, 451, 550 A.2d 1172 (1988) (Williams II). See State v. Rose, 112 N.J. 454, 535-36, 548 A.2d 1058 (1988) (Rose I) (guilt-phase introduction of the victim’s blood-stained shirt and undershirt was harmless error despite “clear capacity to inflame and prejudice the jury” given compelling evidence of guilt). We are satisfied, however, that the excludable items of personal clothing were not particularly inflammatory nor likely to divert the jury from its focus on aggravating and mitigating factors. Hence we conclude that their admission was harmless error.

Defendant also claims that the court, by ruling on each piece of evidence as it was presented, forced the defense to interrupt the trial and excuse the jury in order to argue against admissibility. The court acted in accordance with our holding in State v. Cary, 49 N.J. 343, 352, 230 A.2d 384 (1967), that trial courts should wait until a piece of evidence is offered before ruling on its admissibility. Although we have noted that this rule should be relaxed if it might impair a capital defendant’s examination of a witness, Ramseur, supra, 106 N.J. at 262 n. 59, 524 A.2d 188, defendant here alleges no such impairment. We find no error in the procedure followed by the trial court in ruling on the admissibility of evidence.

F. Adequacy of Sentencing-Phase Instructions

1. Court’s Instruction About the Sentencing Options

Defendant argues that the trial court’s refusal to instruct the jury that the true alternative to a death sentence would have been a life term with a seventy-year parole-ineligibility period deprived him of his due-process right to a reliable sentencinjg trial and subjected him to cruel and unusual punishment. In other words, defendant argues that the court should have informed the jury that defendant was serving a life term plus twenty years with a forty-year parole-ineligibility period for the murder and aggravated sexual assault of Cheryl Alston. The trial court refused to present that information to the jury in response to both a defense request and a jury question. Although we hold that the trial court erred in both instances, the court’s ruling was harmless error because the jury had already been adequately informed that a life sentence would result in a seventy-year period of parole ineligibility.

The defense submitted a written request to charge the jury that defendant was serving prior sentences carrying forty years of parole ineligibility, and that a life sentence in this case would mean that defendant would serve a total of seventy years before being eligible for parole. The court refused the requested charge and, on nine occasions, instructed the jury that its choice lay between sentencing defendant to death or to life with thirty years of parole ineligibility. In addition, the verdict sheet posed the choice as death or life with a thirty-year parole disqualifier. In overruling defense counsel’s objection to that instruction, the court noted that the Alston case “is on a [sic] appeal and always a possibility of getting reversed * * * [so he] may not be serving any time on that conviction.”

Approximately two hours into their deliberations, the jury sent the trial court a note with the following question: “Is Mr. Bey ever eligible for parole in the next seventy years?” Some time elapsed before the court met with counsel to discuss the jury’s question. During that discussion, defense counsel argued that the jury should be informed that defendant would not be eligible for parole for seventy years. The court again expressed concern that the Alston murder conviction was on appeal and might be reversed. Nearly one hour after the note had been sent, the court officer interrupted that discussion by announcing that “[t]he Foremen [sic] informed me he has a verdict and they don’t need the answer to the question.” When the jury was brought into the courtroom, the trial court engaged in the following colloquy:

THE COURT: And before I answered your question, you advised the Court that you had a verdict and you didn’t want this question answered, is that correct?

THE FOREMAN: That’s correct.

Thereupon, the foreman announced the jury’s verdict.

The question posed by this case is whether a capital defendant has the right to have his sentence for a prior conviction presented to the jury. At first glance, that issue appears to be foreclosed by our recent decision in State v. Biegenwald, 126 N.J. 1, 594 A.2d 172 (1991) (Biegenwald IV). In that case, we rejected a defendant’s attempt to submit his prior life sentences for murder as evidence under the catch-all mitigating factor c(5)(h).

[Defendant's] request * * * raises the specter that a jury in this case may be unduly influenced by the determination of another jury made on a substantially different record. Because the sentencing determination is fact specific and remains subject to significant sentencer discretion, the sentence imposed in another case under different circumstances has little probative value to the present jury’s sentencing decision. A properly-impanelled jury in a capital case is aware of the limited options available in sentencing a defendant convicted of murder. Furthermore, tke argument that defendant will never be eligible for parole can be made based on the current proceeding.

[.Id. at 49, 594 A.2d 172 (emphasis added).]

Essentially, we decided that a sentence for a different crime is not “relevant to the defendant’s character or record” under c(5)(h). But see Harris v. State, 312 Md. 225, 539 A.2d 637, 649-50 (1988) (sentences for armed robbery and possession of a handgun are mitigating factors); Davis v. State, 512 So.2d 1291, 1293 (Miss.1987) (sentence for assault is mitigating factor), cert. denied, 485 U.S. 913, 108 S.Ct. 1088, 99 L.Ed.2d 247. Our decision in Biegenwald IV accords with the focus of the statutory mitigating factors on an individualized consideration of a defendant’s culpability. A prior sentence does not reduce a defendant’s degree of culpability for a later crime.

However, the instant case differs from Biegenwald IV in two important respects. First, defendant here did not seek to introduce his prior sentence as a mitigating factor but rather as part of the jury charge on the sentencing options. Second, defendant could not argue that a life sentence would effectively keep him in prison for his lifetime without adducing evidence of his prior murder sentence.

The principle of reliability in capital sentencing requires that a jury be fully informed of its responsibility in determining the appropriateness of the death penalty. Woodson v. North Carolina, 428 U.S. 280, 804-05, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976); Bey II, supra, 112 N.J. at 162-63, 548 A.2d 887. As we stated in Ramseur, supra, 106 N.J. at 311, 524 A.2d 188:

To hide from the jury the full range of its sentencing options, thus permitting its decision to be based on uninformed and possibly inaccurate speculation, is to mock the goals of rationality and consistency required by modem death penalty jurisprudence.

For juries in death-penalty trials to be fully informed about their sentencing options, they must be apprised of the practical effect of a life sentence. In California v. Ramos, 463 U.S. 992, 1009, 103 S.Ct. 3446, 3457, 77 L.Ed.2d 1171,1186 (1983), on remand, 37 Cal.3d 136, 207 Cal.Rptr. 800, 689 P.2d 430, 439-41 (1984), the United States Supreme Court upheld a state statute requiring the judge to inform the jury that a life sentence without parole may be commuted by the governor. The Court ruled that the instruction “gives the jury accurate information in that it corrects a misleading description of a sentencing choice available to the jury.” Id. 463 U.S. at 1004 n. 19, 103 S.Ct. at 3455 n. 19, 77 L.Ed.2d at 1183 n. 19. In Doering v. State, 313 Md. 384, 545 A.2d 1281, 1295 (1988), the court held that a capital defendant must be allowed to submit non-speculative evidence about his eligibility for parole: “a jury seeking to determine the appropriateness of a life sentence will be aided by information correctly describing the legal and practical effects of such a sentence.” See State v. Henderson, 109 N.M. 655, 789 P.2d 603, 606-07 (1990) (reversed death sentence where the court refused to instruct the jury that a life sentence carried a fifty-six-year parole ineligibility period).

Not informing jurors about a prior sentence invites speculation that the capital defendant might be released after serving only a thirty-year mandatory minimum. A death sentence should reflect the “jury’s normative judgement that death is ‘the fitting and appropriate punishment,’ ” Bey II, supra, 112 N.J. at 162, 548 A.2d 887 (quoting Ramseur, supra, 106 N.J. at 316 n. 80, 524 A.2d 188), rather than its unwarranted fear of the defendant’s premature release from prison. See California v. Ramos, supra, 463 U.S. at 1021, 103 S.Ct. at 3464, 77 L.Ed.2d at 1194. (Marshall, J., dissenting) (“the possibility of eventual release through commutation and parole * * * * bears no relation to the defendant’s character or the nature of the crime, or to any generally accepted justification for the death penalty”).

Our Court has long recognized the need to preclude speculation about a defendant’s release from distorting a jury’s decision to impose life or death. In State v. White, 27 N.J. 158, 170-79, 142 A.2d 65 (1958), the Court reversed a death sentence under the prior death-penalty statute because the trial court had failed to respond to a jury question about the possibility that the defendant would be paroled for good behavior.

Logically, the jury should be told simply that the subject of parole must not be considered by it. But the efficacy in fact of an instruction to that effect is questionable and since there may reside in the jurors’ minds varying understandings * * * the jury may as well be informed of the true basis [for granting] parole. Hence the question should be answered, but followed by a direction to exclude the subject from consideration.

[Id. at 178-79, 142 A.2d 65.]

Consequently, White set forth a model jury charge that informed jurors that a life-sentenced prisoner would be eligible for parole after twenty-five years, less time for good behavior and work credits, and that instructed them “not [to] speculate as to whether parole would or would not be granted.” Id. at 179, 142 A.2d 65. In State v. Sinclair, 49 N.J. 525, 547-48, 231 A.2d 565 (1967), we held that a trial court should give the White jury charge on a defendant’s request.

Following those precedents, we hold that courts in capital cases should inform juries about the defendant’s prior sentences either on the defendant’s request or in the event of a jury inquiry. If the defendant is appealing those convictions and sentences, the jury should be informed that the sentence is not final. The court should also instruct the jury that the court alone will decide whether a sentence in the present case is to be served concurrently or consecutively to any prior sentences.

Finally, the court should instruct the jury that it should not consider prior sentences in its decision to impose a life or death sentence because they are not statutory aggravating or mitigating factors. The focus of the Capital Punishment Act is on individualized sentencing, requiring that the jury determine whether death is the appropriate punishment based on the circumstances of the offense and the aggravating and mitigating factors. To permit consideration of pending sentences for prior crimes might lead to the incongruous result that first-offenders would be more likely to be sentenced to death than would repeat-offenders. The proper balance is struck by informing a jury of pending sentences on request, but instructing the jury to base its life or death decision only on the aggravating and mitigating factors presented by the evidence.

Moreover, we note that the foregoing jury instruction is all the more necessary when, as in this case, the State uses the defendant’s prior murder conviction as an aggravating factor under c(4)(a). If a sentencing jury is informed of the defendant’s prior murder conviction, but not the sentence imposed, its sentencing decision may be affected by uncertainty about whether the defendant has been punished adequately for the earlier murder. Harris, supra, 539 A.2d at 650.

We find that the trial court erred by not instructing the jury, at both the defendant’s and the jury’s request, that a life sentence might result in a seventy-year period without parole. The court’s concern that the prior murder conviction was on appeal could have been dealt with by a jury instruction to the effect that the sentence was not final. Moreover, the court’s concern was misplaced; the reversal of a prior conviction used as an aggravating factor in capital sentencing may require that the death sentence be vacated. See Johnson v. Mississippi, 486 U.S. 578, 585-86, 108 S.Ct. 1981, 1986, 100 L.Ed.2d 575, 584-85 (1988).

The question then remains whether the court’s error could have produced an unjust result. Based on our thorough review of the record, we conclude that the jury was fully informed of the practical consequences of imposing a life sentence in this case. During voir dire, the trial court apprised all twelve final jurors of defendant’s sentence for his prior murder conviction and then posed the following question:

Knowing the defendant has previously been convicted of murder and is serving 40 years without parole, in addition to whatever the sentence may be in this case, would you still be able to consider any aggravating or mitigating factor that may be submitted by the State or the defendant?

[Emphasis added.] ³

During voir dire, either the prosecutor⁴ or defense counsel⁵ informed the ten final jurors that defendant was already serving a sentence of forty years without parole. In both their opening and closing statements, the prosecutor and defense counsel informed the jury that the defendant was already serving a life sentence with a forty-year parole disqualifier for the Alston murder. In her opening statement, defense counsel argued:

No matter what your judgment is in this case, Marko Bey will pay with his life for his crimes. He will live for as long as he lives in a maximum security prison from which he will never be set free. He is serving a term of years which includes 40 years before he can see the Parole Board for the murder of Cheryl Alston. And if your verdict here is * * * a term of imprisonment, that will add at least another 70 [actually 30] years onto the term he must spend in prison before he even sees the Parole Board. And there’s no guarantee that they will ever let him out.

Defense counsel reiterated this point in her' summation:

[W]hat you are going to have to decide is whether or not Marko Bey is sentenced to what’s affectively [sic] going to be life imprisonment before he can see the Parole Board, he must serve at least seventy years, if not more.

There is no possibility in this case that he’s going to get out earlier for quote/unquote good behavior or anything like that.

In his closing, the prosecutor argued that death, not seventy years, was the appropriate punishment for defendant's crimes:

Counsel in her opening remarks said to you, that were you to return a verdict, a life sentence, the thirty years, that the Defendant would be serving seventy years without parole; and that’s a true statement of the law.

And she went on to say, that by serving that sentence, that the Defendant would be forfeiting his life for his crimes. That is not true.

********

So, he doesn’t forfeit his life by serving seventy years without parole. He forfeits his freedom * * *.

Thus, the jury was repeatedly informed, by the judge, prosecutor, and defense, that a life sentence with a thirty-year mandatory minimum would be served consecutively to defendant’s forty-year parole-ineligibility period for the Alston murder. Although the court’s instructions presented the jury with the option of sentencing defendant to death or life with thirty years of parole ineligibility, that option was placed in the specific context of the Peniston murder and in terms of the statutory requirements:

You will shortly begin to decide what punishment will be imposed on Marko Bey for his murder of Carol Penniston [sic].

********

Under the law of New Jersey all murderers are not subject to the death penalty. Unless at least one of the aggravating factors listed in the law is proved to your satisfaction, unanimously and beyond a reasonable doubt his sentence will be life imprisonment with no parole for at least thirty years.

You will decide whether the sentence should be life imprisonment on the terms I just described or death.

[Emphasis added.]

During its deliberations, the jury asked the judge the following question: “Is Mr. Bey ever eligible for parole in the next seventy years?” The question can be understood in two different ways: either the jury was confused about the length of the parole-ineligibility period, or the jury was asking whether the defendant could be paroled at any time before the completion of the seventy-year period. We find the latter reading more plausible because the phrasing of the question itself reveals that the jury knew the aggregate parole-ineligibility period from two life sentences would be seventy years. More importantly, though, the jury reached its verdict without waiting to have its question answered. Thus, we conclude that the trial court’s failure to inform the jury in its charge that a life sentence would cause the defendant to spend seventy years in prison without parole constituted harmless error because the jury already knew the practical effect of a life sentence and nevertheless chose to return a death sentence.

2. The. Court’s Delay in Answering the Jury Question.

Defendant contends that the trial court’s failure to answer the jury’s question was reversible error. The jury submitted a question regarding defendant's eligibility for parole, and then, approximately one hour later, returned its verdict, without the question having been answered. Only a small portion of the court’s delay in answering that question is attributable to its discussions with counsel over how to answer the question. The record does not reveal the reason, if any, for the delay in convening the court and counsel.

Several jurisdictions have held that a trial court’s delay in responding to a jury question does not require reversal of the conviction. In Ebens v. State, 518 So.2d 1264, 1268 (Ala.Crim.App.1986), the trial court had informed the jury that the court could not answer its question until the court had finished conducting voir dire in another case, and the jury had later returned a verdict without waiting for its question to be answered. The appellate court held:

The jury was not denied access to the court; they could have waited a short time for further instructions if they deemed it necessary. The jury chose to proceed under the court’s prior charge and was obviously able to reach a unanimous verdict. We find no error in the trial court’s failure to address the jury’s question * * * in light of the fact that they chose to continue deliberations and reached a unanimous verdict without additional instructions.

[Id. at 1268.]

Similarly, other courts have found no error because of a delay in answering a jury question. See, e.g., United States v. Barnes, 586 F.2d 1052, 1060 (5th Cir.1978) (verdict returned while judge and defense counsel were discussing how to answer jury’s question); People v. Sims, 166 Ill.App.3d 289, 116 III.Dec. 706, 720, 519 N.E.2d 921, 935 (1987) (jury announced its verdict before judge could consult with defense counsel), appeal denied, 119 Ill.2d 571, 119 Ill.Dec. 394, 522 N.E.2d 1253 (1988), cert. denied, 488 U.S. 844, 109 S.Ct. 118, 102 L.Ed.2d 92 (1988); People v. Chandler, 110 A.D.2d 970, 487 N.Y.S.2d 887, 888-89 (1985) (judge unaccountably absent from courtroom for fifty minutes during which time jury asked question and then returned verdict).

We conclude that the court’s delay in answering the question did not constitute reversible error. First, the jury question regarding defendant’s eligibility for parole is best characterized as an issue of fact that did not implicate any legal concerns over the weighing of aggravating and mitigating factors. See Chandler, supra, 487 N.Y.S.2d at 889 (finding no reversible error in delay to jury question, court noted that jury question was one of fact rather than law). The court’s delay was not inordinate, and was due in part to its deliberations with counsel. Most importantly, though, the jury answered the question for itself by continuing its deliberations and reaching a unanimous verdict. Indeed, the foreman informed the court before delivering the verdict that the jury no longer required an answer to its question.

3. Court’s Instruction on Photograph

Defendant contends that he was denied a reliable determination of sentence and full consideration of the mitigating evidence due to the court’s instructions regarding the photograph of the victim that the State had introduced into evidence.

The trial court excluded all but one of the State’s proffered slides and photographs. One 8 X 11-inch photograph of the victim as she was found at the murder scene was admitted over defense counsel’s objection. The photograph depicts the victim from slightly below the waist to the chin, thus excluding her battered face. In the photograph, the victim is nude and supine, with a scarf and belt tied around her neck and a left shoe imprint on her chest. In summation, the prosecutor directed the jury’s attention to the photograph and argued:

This is the chest and neck of Carol G. Penniston [sic]. This is the force. This is the strangulation and I ask you to recall one other thing.

I ask you to recall the testimony of Doctor Stanley M. Becker regarding the destruction to Carol Penniston’s [sic] face in and around the area of her eyes for looking at Marko Bey.

Later, defense counsel requested the court to instruct the jury that the photograph was to be considered only as it related to defendant’s sexual assault, and also submitted a proposed instruction charging the jury to ignore any of the State’s proofs that were not relevant to the aggravating factors. The court rejected both those requests, and instead charged the jury:

Your decision is to be based upon your consideration of the evidence presented as it relates to the aggravating and mitigating factors which you find to be present.

After that charge, defense counsel again requested, and was again denied, a limiting instruction on the use of the photograph.

Penalty-phase evidence proffered by the State must be relevant to the aggravating factors or to the rebuttal of the mitigating factors. Biegenwald II, supra, 106 N.J. at 71-72, 524 A.2d 130. Here, the photograph’s depiction of the victim’s nudity and the violence inflicted on her body was marginally relevant to the fact that defendant had committed the murder during the course of a sexual assault and robbery (aggravating factor c(4)(g)). Also, the prosecutor referred to the photograph in his summation in the context of proving robbery and sexual assault.

Nevertheless, we have repeatedly expressed our concern about the admissibility of crime-scene and autopsy photographs in capital cases. “Although as a general rule the admissibility of photographs of a crime victim rests in the trial court’s discretion, the need to balance the ostensible relevance of such evidence against the likelihood of jury prejudice is especially critical in the penalty phase of a capital case.” Pitts, supra, 116 N.J. at 638-39, 562 A.2d 1320 (citation omitted). We have found the use of such photographs more appropriate when the State is trying to prove that the murder involved torture, depravity of mind, or an aggravated assault to the victim (aggravating factor c(4)(c)). See McDougald, supra, 120 N.J. at 580-83, 577 A.2d 419. In (Samuel) Moore, supra, 122 N.J. at 466-69, 585 A.2d 864, we held that gruesome photographs of victims were relevant to the c(4)(c) aggravating factor but were not needed to establish the c(4)(g) aggravating factor. Thus, we conclude that the photograph here should have been excluded, especially given the fact that the medical examiner and investigators testified in sufficient detail to prove that the murder had occurred during the course of a rape and robbery— a fact that the defense never contested. In the context of the totality of the evidence before the jury, however, we are satisfied that the photograph was not unduly inflammatory and that its admission into evidence did not have the capacity to cause an unjust result.

4. Court’s Instruction on Defendant’s Prior Crimes

Defendant argues that the trial court delivered an inaccurate and misleading jury instruction about the use of defendant's prior criminal acts. At trial, both prosecution and defense witnesses testified about defendant’s earlier crimes as a juvenile and about his incarceration at Yardville. As requested by defense counsel, the court gave the following limiting instruction:

You have received evidence offered by defense witnesses to prove the existence of a mitigating factor or factors. And during the course of that testimony, whether on direct examination or cross examination or rebuttal by the State, there has been mention made of a criminal history of the Defendant as a juvenile.

********

[Y]ou may consider such evidence or testimony only as adding to or rebutting mitigating factors and thereby affecting the weight the Jury chooses to assign to the mitigating factors.

In that charge, the court explicitly instructed the jury that defendant’s criminal history could not be considered “as adding to the weight assigned to aggravating factors.” See State v. (Marie) Moore, 113 N.J. 239, 276-77, 550 A.2d 117 (1988).

Defendant now argues that that requested instruction was plain error, claiming that the jury should not have been told it could use the prior-crimes evidence to rebut mitigating factors. Although defendant contends that he did not present evidence of his character or record in mitigation, that claim is belied by the record. In particular, Dr. Young testified that defendant’s behavior had improved in the structured environment of prison, enabling him to complete a high-school-equivalency examination. That testimony constituted mitigating evidence intended to persuade the jury to impose a life sentence. After reviewing the entire record, we are satisfied that there was relatively little testimony about defendant’s prior criminal acts and that the prosecutor barely adverted to that issue in his summation. Cf. Rose I, supra, 112 N.J. at 505-08, 548 A.2d 1058 (death sentence reversed where repetitive and highly inflammatory evidence of defendant’s past misconduct came before jury in penalty phase). We also find no error in the trial court’s charge.

5. Court’s Instruction on c(5)(c) Mitigating Factor

Defendant contends that the trial court gave an incorrect and unconstitutional jury instruction regarding the age mitigating factor, c(5)(c). In her closing argument, defense counsel framed the age mitigating factor in terms of defendant’s emotional and intellectual maturity:

The concept of personality doesn’t even really begin until age eighteen and why is that?

Because people are changing. They are growing, they are maturing, they are developing their personalities, if you will or their style. They are more susceptible to this kind of chaos of how they integrate experience, the decisions they are able to make. The judgment that they are able to exercise. The maturity and the ability to really think out the consequences of their actions[.]

[Y]ou can find in this case that the youth of the Defendant at the time these crimes were committed mitigates in that sense.

[Wjhat was his ability to judge? What was his ability to realize the consequences of his actions? How old was he? How much life experience had he had? How much guidance had he had? When at barely eighteen years old, he went out and committed this crime.

After instructing the jury to disregard the prosecutor’s remark during summation that “age per se is just not relevant,” the court later gave the following charge on the age mitigating factor:

[Y]ou must consider not only his chronological age, for that is not controlling on whether youthfulness is present as a mitigating factor, but also his mental and physical development and life experiences as bear on his level of maturity.

Defendant argues that the jury should have been instructed that defendant’s age, standing alone, constituted sufficient evidence of the mitigating factor, and that the court’s reference to physical development prejudiced defendant.

The Death Penalty Act defines the age mitigating factor as “[t]he age of the defendant at the time of the murder.” N.J.S.A. 2C:ll-3c(5)(c). In Ramseur, supra, we interpreted that statutory provision as mandating that age be recognized as a mitigating factor

only when the defendant is relatively young, or when the defendant is relatively old, in accordance with the probable legislative intent to recognize our society’s reluctance to punish the very young and the very old as severely as it punishes others.

[106 N.J. at 295, 524 A.2d 188 (citations omitted).]

In determining a defendant’s “relative” youth, a jury must look beyond chronological age to considerations of defendant’s overall maturity.

The United States Supreme Court has stated that “the background and mental and emotional development of a youthful defendant [must] be duly considered in sentencing.” Eddings v. Oklahoma, 455 U.S. 104, 116, 102 S.Ct. 869, 877, 71 L.Ed.2d 1, 12 (1982). As one court observed,

[a]ny hard and fast rule as to age would tend to defeat the ends of justice, so the term youth must be considered as relative and this factor weighed in the light of varying conditions and circumstances. It is well known that two young persons may vary greatly in mental and physical development, experience and criminal tendencies.

[Giles v. State, 261 Ark. 413, 549 S.W.2d 479, 483 cert. denied, 434 U.S. 894, 98 S. Ct. 272, 54 L.Ed.2d 180 (1977).]

The Maryland Court of Appeals has held that “the mitigating circumstance of youthful age is not measured solely by chronological age,” Stebbing v. State, 299 Md. 381, 473 A.2d 903, 921, cert. denied, 469 U.S. 900, 105 S.Ct. 276, 83 L.Ed.2d 212 (1984), but rather encompasses such factors as prior criminal conduct, home environment, and degree of maturity, Johnson v. State, 303 Md. 487, 495 A.2d 1, 19 (1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 868, 88 L.Ed.2d 907 (1986); see also Thompson v. State, 542 So.2d 1286, 1297 (Ala.Crim.App.1988) (upholding trial court’s finding that twenty-year-old defendant did not establish age mitigating factor because he “was mature enough to plot, plan and scheme before, during and after the criminal activities”), aff'd, 542 So.2d 1300 (Ala.), cert. denied, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d 161 (1989); State v. Walton, 159 Ariz. 571, 589, 769 P.2d 1017, 1035 (1989) (“When the judge considers age in mitigation, he weighs evidence of experience and maturity.”), aff'd, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990); State v. Dixon, 283 So.2d 1, 10 (Fla.1973) (noting that jury may consider “the inexperience of the defendant” in assessing the age mitigating factor), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974); State v. Oliver, 309 N.C. 326, 307 S.E.2d 304, 333 (1983) (following Giles, supra).

Thus, we interpret c(5)(c) as requiring juries to consider both chronological age and maturity in determining the applicability of the age mitigating factor to relatively young defendants. However, the statutory language makes clear that juries should give greater weight to a defendant’s chronological age. Here, the court’s instruction, as well as the defense counsel’s summation, adequately informed the jury about the age mitigating factor. Despite testimony concerning defendant’s age and level of maturity, all the jurors found that defendant’s youthfulness did not mitigate the brutality of the homicide of which he had been convicted. See also Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75, 82 (1990) (rejecting defendant’s claim that his age, eighteen years and four months at the time of the murder, was a per se mitigating circumstance). A defendant’s young age does not divest a jury of its discretion to determine whether or not the age mitigating factor applies.

6. Court’s Instruction on Catchall Mitigating Factor c(5)(h)

Defendant also contends that the court’s inadequate instruction on the catch-all mitigating factor, c(5)(h), warrants reversal of the death sentence. At trial, defense counsel submitted a set of proposed jury charges, including proposed instructions for the catch-all mitigating factor. Those instructions asked the jury to consider defendant’s emotional and physical neglect, abused childhood, habitual use of alcohol and drugs, possible organic brain damage, and in útero exposure to his mother’s alcoholism. The court rejected defendant’s proposed instructions and declined to leave a blank space on the verdict form where jurors could list other mitigating factors under c(5)(h). The court gave the following jury instruction on the catch-all factor:

Any other factor which you find relevant to the Defendant’s character or record or to the circumstances of the murder is not really a single factor.

Rather, it requires that you consider all the evidence received as it relates to or concerns Defendant’s life, his character, his characteristics or record and the totality of the circumstances of the crimes.

You do not have to describe such evidence or factor in words on the Jury verdict form. This is a catchall [sic] mitigating factor.

Thus, the court’s instruction added little to the statutory language of the c(5)(h) factor.

In Bey II, supra, 112 N.J. at 169-70, 548 A.2d 887, we held that jury charges on the mitigating factors that merely recite statutory language generally are inadequate. There we noted that “[t]he requirement that capital sentencing must not preclude consideration of relevant mitigating circumstances would be hollow without an explanation of how the evidence can mitigate the imposition of the death penalty.” Id. at 169, 548 A.2d 887 (emphasis added). Our decision also emphasized the need for jurors to give the defendant individualized consideration in death-penalty sentencing. Id. at 168, 548 A.2d 887; accord Clausell, supra, 121 N.J. at 344-45, 580 A.2d 221; Pennington, supra, 119 N.J. at 595-97, 575 A.2d 816; Williams II, supra, 113 N.J. at 456-57, 550 A.2d 1172; State v. Zola, 112 N.J. 384, 432-33, 548 A.2d 1022 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed.2d 205 (1989); Rose, supra, 112 N.J. at 539-40, 548 A.2d 1058. In Biegenwald IV, supra, we held that

[c]ommon sense compels the determination that when evidence of wholly-unrelated circumstances is offered pursuant to c(5)(h), it is not intended to be considered as a single factor by the sentencer. The language of the provision is too broad to permit a contrary conclusion. For example, a defendant could offer evidence of a violent and abusive childhood, of his or her potential for rehabilitation, and of specific past acts of discrimination against the defendant. To consider that evidence as probative of only one factor is not only illogical but also runs afoul of the requirement that mitigating circumstances receive individualized consideration.

[126 N.J. at 48, 594 A.2d 172.]

In that case, we found that the trial court also had erred by refusing to list the separate factors under c(5)(h) on the verdict form: “Any other factor * * * that a defendant submits for consideration and that could be established by some reliable evidence should be listed on the jury-verdict form.” Id. at 47, 594 A.2d 172 (citations omitted). We noted that the jurors should be instructed that the list of mitigating factors is not exclusive. Ibid. By those standards, the court’s instructions here were inadequate in that they did not present mitigating factor c(5)(h) in terms related to the individual defendant or particular evidence of this case. Nor did the court give the jury any examples of the types of mitigating factors that it could consider.

Nevertheless, we have not held that faulty instructions on c(5)(h), standing alone, constitute grounds for reversing a death sentence. See, e.g., Biegenwald IV, supra, 126 N.J. at 45-49, 594 A.2d 172. In State v. Marshall, 123 N.J. 1, 141-48, 586 A.2d 85 (1991), we found defense counsel’s summation, coupled with the court’s instruction to consider all the evidence in assessing c(5)(h), adequate to inform the jury. In that case, we stated that “[although arguments of counsel can by no means serve as a substitute for instructions by the court, the prejudicial effect of an omitted instruction must be evaluated ‘in light of the totality of the circumstances — including all the instructions to the jury, [and] the arguments of counsel.’ ” Marshall, supra, 123 N.J. at 145, 586 A.2d 85 (quoting Kentucky v. Whorton, 441 U.S. 786, 789, 99 S.Ct. 2088, 2089, 60 L.Ed.2d 640, 643 (1979)) (citation omitted).

In this case, the court’s inadequate instruction on mitigating factor c(5)(h) was partially remedied by defense counsel’s explanation of the mitigating factors in her summation:

You don’t have to pigeonhole all of the information that you have heard only in one category. You can assign it what weight you think it has and put it under whatever factors strikes you as having been established.

Not necessary that you say, for example, the testimony about his drinking is relevant only to his background.

If you find that its [sic] relevant to something else, you can allocate it and give it whatever weight you find appropriate * * * and this is extremely important because this is really the keystone of the system.

Thus, defense counsel made it clear to the jury that all the evidence presented at trial about defendant’s background could be viewed as part of the catch-all mitigating factor c(5)(h). The court made that point as well, but not with sufficient clarity.

In assessing the significance of the court’s instruction on the catch-all mitigating factor, we note that six members of the jury found that that factor had been established. In comparison, only two jurors found that the mitigating factor of extreme mental or emotional disturbance, c(5)(a), had been proved, and none of the jurors found that the age mitigating factor, c(5)(c), or the significant impairment of moral faculties factor, c(5)(d), had been established. Much of the evidence that jurors might have considered relevant to the catch-all factor was also germane to the factors that most of the jurors specifically rejected. In view of the strength of defendant’s evidence of mitigating factors, the jury’s reluctance to find that mitigating factors — other than the catch-all factor — had been established reflects the jury’s qualitative determination that despite its credibility, the testimony on mitigation was insufficient to diminish defendant’s culpability for his crimes. We consider extremely unlikely the possibility that the court’s instruction on the catch-all mitigating factor had the capacity materially to affect the jury’s deliberations or produce an unjust result.

G. Other Issues

1. Constitutionality of Aggravating Factor c(4)(a)

Defendant argues that N.J.S.A. 2C:ll-3c(4)(a) (the prior-murder aggravating factor), as amended by the Legislature in 1985, is unconstitutional because it contradicts the Legislature’s statement of intent, violates the ex post facto clauses, and constitutes a bill of attainder. In State v. Biegenwald, 96 N.J. 630, 634-40, 477 A.2d 318 (1984) (Biegenwald I), and State v. Bey, 96 N.J. 625, 628, 477 A.2d 315 (1984), we held that a prior murder conviction could be used as an aggravating factor under c(4)(a) only after all avenues of direct appeal had been exhausted. Apparently, in response to our decisions, the Legislature amended the statute to allow the use of prior murder convictions still on appeal. L. 1985, c. 178.

After we had reversed defendant’s first conviction for the Alston murder in Bey I, defendant was retried and again convicted of murder. The Appellate Division affirmed that conviction, 258 N.J.Super. 451, 610 A.2d 403, and we denied certification. Prior to defendant’s second sentencing proceeding in the Peniston case, defendant moved to strike the c(4)(a) factor, arguing that the statute, as originally enacted and interpreted by this Court in Bey and Biegenwald I, would not have allowed the State to allege that factor for a murder conviction still on appeal. The trial court denied the motion, ruling that the State could submit the c(4)(a) factor based on defendant’s second conviction for the Alston murder.

Defendant now argues that submission of the c(4)(a) aggravating factor in that resentencing trial contradicted the Legislature’s intent. The Judiciary Committee Statements to L. 1985, c. 178 contain the following preamble: “In enacting the amendments contained in this bill, the intent of the Legislature is to effect only prospective changes. The amendments are not intended to apply retrospectively or to affect cases now on appeal.” Senate Judiciary Comm.Statement to S.950, supra at 1. See also Assembly Judiciary Comm.Statement to S.950 at 1 (Feb. 4, 1985). However, we have held that that statement of legislative intent is not dispositive on whether the amendments should be given retroactive effect because the amendments merely clarify a pre-existing law. Biegenwald II, supra, 106 N.J. at 64-66, 524 A.2d 130. Indeed, many of the amendments to the Capital Punishment Act have been applied retroactively by this Court. See, e.g., (Marie) Moore, supra, 113 N.J. at 306-07, 550 A.2d 117 (Court partially relied on 1985 amendment authorizing substitution of juror after guilt phase but prior to sentencing phase); Bey I, supra, 112 N.J. at 95-105, 548 A.2d 846 (Court applied 1986 amendment providing that juvenile may not be sentenced to death); Biegenwald II, supra, 106 N.J. at 63-65, 524 A.2d 130 (Court relied in part on 1985 amendment in holding that State must prove aggravating factors outweigh mitigating factors beyond reasonable doubt); Ramseur, supra, 106 N.J. at 311-12, 524 A.2d 188 (Court relied in part on 1985 amendment in holding that capital sentencing juries must be reminded of alternative sentence to death penalty and of consequences of non-unanimous jury). Although the amendment was enacted after the Alston and Peniston homicides, its passage predated defendant’s resentencing proceeding. The Legislature’s expressed intent that the amendment apply prospectively does not preclude the use of a prior murder conviction pending on appeal in a resentencing proceeding that commenced after the amendment was passed. Thus, we hold that the submission of the c(4)(a) factor in this sentencing proceeding does not contradict the legislative intent.

Defendant contends that the use of the Alston murder as an aggravating factor violates the state and federal constitutional prohibitions on ex post facto laws because defendant committed both murders before our decisions in Bey and Biegenwald I. See U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3. The purpose of the ex post facto clauses is to ensure that criminal statutes “give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.” Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, 23 (1981). To violate the ex post facto clauses, the law at issue must be “both retrospective and more onerous than the law in effect on the date of the offense.” Id. at 30-31, 101 S.Ct. at 965, 67 L.Ed.2d at 24 (emphasis added). Here, on the dates of defendant’s murders, the c(4)(a) factor simply stated that “the defendant has previously been convicted of another murder.” Therefore, defendant was on notice that any murder conviction, final or not, could potentially be used to support the c(4)(a) aggravating factor. The Court’s subsequent interpretation of the c(4)(a) factor in Bey and Biegenwald I, later overridden by the Legislature, was not controlling law at the time of the murders. Thus, it would be incongruous to find the Legislature’s amendment, which merely clarified this Court’s statutory interpretation and reinstated, in effect, the plain meaning of the statute as enacted to be ex post facto.

Defendant contends that the amendment is a bill of attainder because it substitutes a legislative determination of his guilt for a judicial decision. See U.S. Const, art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3; United States v. Brown, 381 U.S. 437, 446-49, 85 S.Ct. 1707, 1713-15, 14 L.Ed.2d 484, 490-92 (1965). Although the amendment was a response to decisions of this Court affecting Bey and Biegenwald, it changed the law for all capital defendants and did not effect legislative determinations of guilt for any particular defendant or group of defendants. We conclude the amendment is not a bill of attainder.

2. Prosecutorial Misconduct

Defendant contends that several instances of prosecutorial misconduct warrant reversal of his death sentence. Here, we address only those allegations that we believe raise important legal issues.

The prosecutor’s primary duty is to serve justice rather than to win convictions. State v. Farrell, 61 N.J. 99, 104, 293 A.2d 176 (1972). The principle of prosecutorial fairness is all the more imperative in the context of capital cases because death is the ultimate punishment. Consequently, this Court will apply a stricter standard of review to prosecutorial misconduct in capital cases. Ramseur, supra, 106 N.J. at 324, 524 A.2d 188. We set forth that standard of review in Ramseur:

In determining whether prosecutorial misconduct is prejudicial and denied defendant a fair trial, we consider whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.

[Id. at 322-23, 524 A.2d 188.]

See Rose I, supra, 112 N.J. at 509, 548 A.2d 1058; State v. Koedatich, 112 N.J. 225, 338, 548 A.2d 939 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989). More recently, we observed that the assessment of prosecutorial misconduct “must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to the improprieties when they occurred.” Marshall, supra, 123 N.J. at 153, 586 A.2d 85.

In this case, the alleged misconduct occurred primarily during the prosecutor’s summation. We have held that a prosecutor’s closing argument must be limited to the facts in evidence and inferences reasonably to be drawn therefrom. See State v. Carter, 91 N.J. 86, 125, 449 A.2d 1280 (1982); Farrell, supra, 61 N.J. at 102, 293 A.2d 176. Defense counsel did not object during or after the summation. Rather, the defense first raised its objections to the prosecutor’s summation the following morning but did not present the court with a request to charge. The court thereupon issued curative instructions immediately prior to charging the jury. In State v. Winter, 96 N.J. 640, 647, 477 A.2d 323 (1984), we stated that “[t]he adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached.”

(a) Mischaracterization of Mitigating Factors

In his closing statement, the prosecutor improperly characterized a possible mitigating factor as an excuse: “Child abuse is a horrible, horrible thing * * * but its [sic] not an excuse and he wasn’t a child when he killed Carol Penniston [sic].” As we have explained, the purpose of the mitigating factors is “not to justify or excuse defendant’s conduct, but to present extenuating facts regarding the defendant’s life or character or the circumstances surrounding the murder that would justify a sentence less than death.” Bey II, supra, 112 N.J. at 170, 548 A.2d 887. The trial court remedied the prosecutor’s error by instructing the jury that mitigating factors are extenuating circumstances for purposes of punishment, not excuses for murder. Therefore, the prosecutor’s misstatement did not have the capacity to cause an unjust result.

(b) Miseharacterization of the Age Mitigating Factor

At the time of the Peniston murder, defendant had just turned eighteen years of age. The prosecutor, in his closing statement, argued that the jury should not find the age mitigating factor.

As we sit here today there are * * * eighteen year olds performing everywhere. I dare say of the fifty thousand people who are sitting in Saudi Arabia in our military, many of them are eighteen.

So, age per se is just not relevant and in growing up and in immaturity this is a guy whose [sic] out on the street at thirteen. This is the guy whose [sic] away from the evil influences of his mother by the time he’s fourteen.

[Emphasis added.]

Both the Death Penalty Act and our decisions make clear that age should be considered a mitigating factor when the defendant is young. Ramseur, supra, 106 N.J. at 295, 524 A.2d 188. See infra at 624-625, 610 A.2d at 848-849. Although “the prosecutor was free to depreciate the significance of defendant’s mitigating evidence” by comparing him to his peers, the prosecutor’s comment was highly misleading. Marshall, supra, 123 N.J. at 164, 586 A.2d 85. However, the court issued a curative instruction before the jury charge:

[T]he Prosecutor in his summation stated that “age per se is just not relevant.”

I instruct you to disregard this comment because age is a proper mitigating factor for you to consider * * *.

Thus, the court’s instruction rendered the prosecutorial error harmless.

(c) Prosecutor’s Attack on Defense Experts

Throughout his summation, the prosecutor criticized the defendant’s medical experts:

You heard the diagnosis from everybody. Everybody [says] he’s an antisocial person. ‘

Oh, now we can disagree as to how it came about, but ever [sic] responsible doctor in this case tells you antisocial personality, except Pincus.

********

I suggest to you, that you should question Dr. Pincus’ science.

[H]e’s got a theory first and he’s going to pick and choose facts to make the theory work.

********

And [Dr. Kay says], well [defendant’s brain damage has] got to be in the left temporal lobe. * * * I can’t show you on a machine, but it has to be there.

Why does it have to be there? Because we know that that’s what controls behavior. Its [sic] self-fulfilling.

It has to be there because its [sic] suppose [sic] to be there.

In those comments, the prosecutor not only impugned the integrity of the defense experts, he also characterized their scientific conclusions as being predetermined by their theories. Under the ABA Standards for Criminal Justice § 3-5.8(a), “It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.” In Rose I, supra, 112 N.J. at 518-24, 548 A.2d 1058, we reversed the death sentence for prosecutorial misconduct where the prosecutor implied, among other things, that the expert’s testimony was fabricated or contrived at the urging of defense counsel. By contrast, the prosecutor here did not imply any impropriety on the part of defense counsel. Moreover, the trial court issued a curative instruction:

[A]ny references made by the Prosecutor during his summation, that any of the defense Doctors were predisposed to making a certain diagnosis of the Defendant, Marko Bey, should be disregarded by you.

The weight to be given to the expert testimony of the Doctors, both for the defense and for the Prosecution, is for your evaluation and determination.

Overall, we conclude that any prosecutorial misconduct in the summation, when viewed in the context of the entire record, was harmless.

3. Ineffective Assistance of Counsel

Defendant argues that the trial court’s rulings prohibiting defense co-counsel from addressing the court, prosecutor, or jury denied him effective assistance of counsel.

Given the inherent complexity of capital cases, the Office of the Public Defender assigns two attorneys to represent every capital client. At the outset of trial, the court made it clear that only one Public Defender would be permitted to examine and cross-examine witnesses. Later on, the court refused to listen' to co-counsel when he attempted to participate in a motion in limine. As a result of the trial court’s ruling, lead counsel repeatedly had to request conferences whenever her co-counsel sought to make a point, thereby occasioning needless delays. At one point, during a sidebar conference, co-counsel attempted to object to the prosecutor’s cross-examination of Dr. Young. The court stopped him, reminding him that it would listen only to lead counsel:

[CO-COUNSEL]: He’s introducing prior bad acts through the back door.

THE COURT: I’ll listen to her.

[LEAD COUNSEL]: What were you saying, [co-counsel]? Whatever he’s said. I concur with.

[CO-COUNSEL]: He’s trying to introduce characters—

THE COURT: I’m not listening.

[CO-COUNSEL]: —characters not in issue.

The court then ordered a recess, and the following colloquy occurred:

THE COURT: [Co-counsel], I hope you’re not having difficulty following my instructions. I told you that [lead counsel] is the one who is handling this case. If you want to consult with [lead counsel] and [lead counsel] wants to consult with you with regard to the [sic] any objections or'statements, fine.

I’m not going to listen to both of you at sidebar nor in open Court. ********

[CO-COUNSEL]: Your Honor is threatening and chilling the Defense.

THE COURT: This is not a debate. You can talk to [lead counsel] and she can make her notes and she can put your objections on the record. I’m only going to listen to [lead counsel] or her objections, not yours.

Defense counsel thereupon consulted for thirty-five minutes. Although the trial court’s rulings strike us as unwise and unnecessarily restrictive, we reaffirm the proposition that a trial court generally possesses broad discretion over the conduct of trial. Smith v. Smith, 17 N.J.Super. 128, 132-33, 85 A.2d 523 (App.Div.1951), certif. denied, 9 N.J. 178, 87 A.2d 387 (1952).

A showing of ineffective assistance requires that counsel “performed below a level of reasonable competence” and “that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” State v. Fritz, 105 N.J. 42, 60-61, 519 A.2d 336 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)). Defendant concedes that co-cpunsel was involved in all aspects of the case other than addressing the court and jury. Additionally, defendant does not claim that lead counsel was overburdened. Although the trial court’s ruling certainly occasioned some inconvenience, the court allowed defense counsel to confer on request, and apparently did not set any time limits on those discussions. Defendant cannot show that co-counsel’s inability to speak in court undermined the defense’s performance or that it created a reasonable probability that the result of the sentencing would have been different.

4. Cumulative Error

Defendant contends that even if the individual errors are deemed harmless, their cumulative effect requires reversal of defendant’s death sentence. We have acknowledged that several errors were committed during the course of the penalty phase trial, although none of those constitutes reversible error.

We had occasion to discuss the issue of cumulative error in Marshall, supra, 123 N.J. at 169-70, 586 A.2d 85. There we noted that although capital defendants are entitled to fair trials, they cannot be assured of error-free trials. Id. at 170, 586 A.2d 85 (citing Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L.Ed. 593, 605 (1953)).

The fact that capital cases are vigorously contested, protracted, and consistently implicate subtle and difficult legal issues virtually assures that in the course of each trial some errors and imperfections will be apparent. Trial judges, unlike appellate judges, make their rulings in the heat of trial, without the opportunity for deliberative review, and not even the most experienced and conscientious trial judges can be perfect.

[Id. at 169, 586 A.2d 85.]

Nevertheless, we are still bound to make “a qualitative determination that considers, in the context of the entire case, whether the error was clearly capable of affecting the verdict or the sentence.” Bey I, supra, 112 N.J. at 94-95, 548 A.2d 846. Under that standard, we have carefully reviewed each of the errors identified by this opinion. In conducting that review, we are influenced significantly by defendant’s poignant presentation of substantial mitigating evidence that attempted to relate his adulthood criminality to the abuse he suffered as a child. The failure of some jurors to find any mitigating factor, and the jury’s unanimous conclusion that the mitigating evidence was substantially outweighed by the aggravating factors, reflects the jury’s conclusion that despite the strength of the mitigating evidence, death was the appropriate punishment.

We are fully satisfied that the errors committed during the penalty phase, considered both individually and cumulatively, were not clearly capable of affecting the sentence.

5. Constitutionality of Capital Punishment Act

Defendant argues that New Jersey’s Death Penalty Act violates the Eighth Amendment’s prohibition against cruel and unusual punishment. We rejected that constitutional challenge in Ramseur, supra, 106 N.J. at 182-90, 524 A.2d 188, and we have consistently reaffirmed that decision in our subsequent capital cases, as we do today.

6. Proportionality Review

Defendant contends that his death sentence is disproportionate to the penalty imposed in similar cases, and points to two factors: the Prosecutor’s Office’s retreat from its initial willingness to enter into a plea bargain and defendant’s mental illness and abused childhood. N.J.S.A. 2C:ll-3e mandates that this Court undertake a determination of proportionality on a defendant’s request. However, we defer proportionality review until a full record has been established and argument can be scheduled by the Clerk of the Court after consultation with counsel.

IV.

Conclusion

We affirm defendant’s conviction for the murder of Carol Peniston and we affirm the sentence of death.

Footnotes

1

The American Psychiatric Association defines organic personality syndrome as follows:

The essential feature of this syndrome is a persistent personality disturbance * * * that is due to a specific organic factor. Affective instability, recurrent outbursts of aggression or rage, markedly impaired social judgment, marked apathy and indifference, or suspiciousness or paranoid ideation are common.

The person' may be belligerent or have temper outbursts that are grossly out of proportion to any precipitating psychosocial stressors.

[American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (DSM-III-R) 114 (3d ed. revised 1987).]

2

The American Psychiatric Association defines anti-social personality disorder as follows:'

The essential feature of this disorder is a pattern of irresponsible and antisocial behavior beginning in childhood or early adolescence and continuing into adulthood.

********

Lying, stealing, truancy, vandalism, initiating fights, running away from home, and physical cruelty are typical childhood signs. * * * These people fail to conform to social norms and repeatedly perform antisocial acts * * *.

People with Antisocial Personality Disorder tend to be irritable and aggressive and to get repeatedly into physical fights and assaults * * *. Finally, they generally have no remorse about the effects of their behavior on others; they may even feel justified in having hurt or mistreated others.

[DSM-III-R, supra, at 342.]

3

Harrington: 8/27/90 T 104-15 to 25; Olski: 8/21/90 T 55-10 to 17; Grubb: 8/22/90 T 173-5 to 20; Papierman: 8/23/90 T 157-13 to 24; Jones: 8/21/90 T 178-5 to 15; Leonard: 8/21/90 T 197-12 to 22; Boileau: 8/22/90 T 25-13 to 24; Luisi: 8/23/90 T 99-5 to 16; Duyckinck: 8/27/90 T 42-11 to 25; Glickman: 8/22/90 T 95-18 to 96-4; Hoffman 8/22/90 T 113-15 to 114-1; Schuppenhauer: 8/28/90 T 36-14 to 24. (Citations refer to the transcripts of the voir dire by date.)

4

Olski: 8/21/90 T 56-12 to 19; Papierman: 8/23/90 T 160-16 to 25; Jones: 8/21/90 T 186-5 to 22; Leonard: 8/21/90 T 199-18 to 24; Boileau: 8/22/90 T 28-6 to 14; Duyckinck: 8/27/90 T 44-12 to 19; Hoffman 8/22/90 T 117-11 to 18.

5

Harrington: 8/27/90 T 116-18 to 117-1; Luisi: 8/23/90 T 104-5 to 20; Schuppenhauer: 8/28/90 T 40-6 to 16.