State v. Papasavvas

751 A.2d 40, 163 N.J. 565, 2000 N.J. LEXIS 528

• Court: Supreme Court of New Jersey
• Decided: May 16, 2000
• Status: Published

Opinions

The opinion of the Court was delivered by

O’HERN, J.

In this capital case a jury has convicted defendant of murder and recommended that he be sentenced to death. Defendant contends that he was denied a fair trial. The major contentions in his appeal are that (1) the jury selection process (the voir dire) was so inadequate that it violated defendant’s constitutional rights to a fair trial; (2) that the trial court failed to excuse three jurors whose views in favor of the death penalty substantially interfered with the performance of their duties as jurors; (3) that, conversely, the trial court excused one juror who had reservations about the death penalty but not such opposition to the death penalty that it would interfere with the performance of his duties as a juror; (4) that in mid-trial the court changed the order of exercise of peremptory challenges; (5) that the court granted an extra peremptory challenge to the State without awarding an additional challenge to defendant; (6) that the State’s medical examiner was permitted to express a vague and conclusory opinion that the “assault” on the victim and not an accidental fall had caused her death; (7) that a State psychiatrist expressed an opinion on the guilt of defendant, contrary to our holding in State v. Odom, 116 N.J. 65, 560 A.2d 1198 (1989). We find that the measures taken by the trial court sufficiently ensured that a fair and impartial jury was chosen and that evidentiary rulings did not deny defendant a fair trial. We find no other errors that tainted the trial. We affirm the convictions of murder and of other crimes and affirm the sentence of death. Proportionality review will take place in later proceedings.

I.

On April 25, 1996, defendant broke into the home of Mildred Place who lived alone at 11 West Henry Place in Iselin. She was then age sixty-four. Defendant was fleeing from the police, who had come to his nearby home in order to question him about an unrelated matter. He and the other members of his family were in a distraught state because a brother of defendant had attempted suicide. In his hurry, defendant left dressed only in his underclothing. He hid in the basement of the victim’s house, which is located four blocks from Papasawas’s residence. When Mrs. Place came home, he did not at first confront her. She spoke on the telephone at about 10:00 p.m. with a friend. The conversation lasted about fifteen minutes.

Some time thereafter, the fatal encounter took place. Because there were no witnesses to the attack, there was no direct evidence of the precise manner in which the death occurred. There was evidence of bizarre and repulsive conduct by defendant such as “very straight [scissor] cuts” of her clothing, leaving exposed her private parts. This cutting was concededly done when the victim was motionless.

The State infers that Papasawas attacked Mrs. Place so that he could escape capture by preventing her from calling the police. Whatever may have been his motive, defendant left a trail of incriminating evidence. At 11:15 p.m., he called his home, leaving a record of that call on Mrs. Place’s telephone bill. He stole her car and partied in New York with a girlfriend, using Mrs. Place’s credit cards.

A Middlesex County grand jury indicted defendant for murder, robbery, aggravated sexual assault, burglary, and other offenses. The State informed defendant that it would seek the death-penalty and establish as aggravating factors c(4)(c) (torture or depravity), c(4)(f) (escape detection), and e(4)(g) (felony murder).¹ Before trial, the court granted defendant’s motion to strike the c(4)(c) aggravating factor. Given the overwhelming evidence of his involvement in the killing, defendant sought to show that he lacked the intent or purpose to kill.

According to defendant,² he planned to hide in the basement until Mrs. Place went to bed, when he planned to leave the home quietly. Mrs. Place foiled those plans when she opened the basement door and found defendant, who was still wearing only his underwear. Attempting to escape without allowing her to inform anyone that he had broken into her home but without severely injuring her, defendant put his hands around her neck, in what he described as a “sleeper hold,” in order to induce unconsciousness. After the sleeper hold caused her to pass out, Mrs. Place fell down the cellar stairs. While falling down the stairs, Mrs. Place broke her neck, a severe injury that may have caused her death.

Believing that Mrs. Place was feigning death, defendant said that he attempted to place a gag in her mouth so she would stop pretending she was dead but be unable to make noise. This gag was a belt that defendant retrieved from Mrs. Place’s raincoat. The belt, which the State medical examiner referred to as a ligature, impeded Mrs. Place’s breathing because it pushed her tongue to the side. When she remained motionless, defendant, hoping to frighten her into getting up, threatened to sexually assault her if she did not comply. Sexual contact was evidenced by sperm found on Mrs. Place’s body during the autopsy.

A forensic pathologist, testifying for the defense, expressed the opinion that constriction of the neck and the broken neck should both have been listed as causes of death because he could not state to a .reasonable degree of medical certainty that either trauma alone caused Mrs. Place’s death.

Concerning defendant’s mental state, the defense presented expert testimony from a clinical neuropsychologist and a psychiatrist. These witnesses described his prior life. He was born in Livingston, New Jersey on June 14, 1972. His parents were immigrants. He was one of four children. Violence filled the Papasawas household. Defendant’s father abused defendant and his two older brothers. When he thought that his sons were misbehaving, he would take them downstairs, strip them, tie them to a lally column, and beat them with a belt or stick. He took nude photos of them. He beat defendant’s mother, Fotini. He even beat the family’s pets.

In search of acceptance, defendant fell in with bad companions, engaging in truancy, and shoplifting. He began to abuse alcohol and drugs, including marijuana and cocaine. In school, he was classified as emotionally disturbed. Minor stresses made him irritable, angry, and occasionally aggressive.

In 1989, when he was seventeen-years-old, he received court-ordered in-patient psychiatric counseling at the Carrier Clinic, where he was hospitalized for twenty days. He suffered from insomnia, flashbacks, hallucinations, and suicidal thoughts. In 1992, he was struck in the head and suffered a concussion.

That incident foreshadowed a more serious head injury defendant suffered during a motorcycle accident in 1993. He was in a coma for almost three weeks. A CT scan revealed that defendant had bilateral frontal traumatic subdural hygromas, a diagnosis suggesting that defendant had a fluid buildup in both frontal lobes, the portion of the brain needed for high-level reasoning, judgment, and decision-making. The frontal lobes also control one’s personality. The injury significantly impaired defendant’s planning, problem solving, and strategy formation. The severe head injury greatly exacerbated defendant’s existing impediments in insight and judgment.

Defendant’s personality changed after the accident in 1993. In July 1994, defendant pulled a knife on a girlfriend. His drinking escalated. His criminal activity intensified.

A defense psychiatrist testified that defendant’s motorcycle accident caused him to suffer severe organic brain syndrome, a form of brain damage. According to the psychiatrist, this organic brain disorder prevented him from acting purposefully or knowingly during his deadly encounter with Mrs. Place. This doctor believed that defendant could not know the nature and quality of his acts or differentiate between right and wrong.

In rebuttal, the State offered evidence from a psychologist and a psychiatrist. The psychiatrist, Dr. Stanley Portnow, diagnosed defendant as having at most an antisocial personality disorder and a substance dependence problem. Dr. Portnow did not believe that defendant suffered from a major mental disorder or disease.

The jury convicted defendant of murder, felony murder, burglary, robbery, auto theft, and credit-card theft. The jury acquitted him of aggravated criminal sexual assault but convicted him of aggravated criminal sexual contact, a lesser-included offense. This latter offense was not a felony-murder predicate.

Before the penalty phase, defendant served the State with a notice of mitigating factors. Defendant informed the State that he would seek to establish the c(5)(a) (extreme emotional disturbance), e(5)(c)(age), c(5)(d) (diminished capacity), and c(5)(h) (the catch-all) mitigating factors. Defendant’s abused childhood was the recurring theme of the catch-all factors defendant delineated. The penalty phase commenced before the court and the jury that had convicted defendant. Concluding that defendant had not introduced character evidence, the trial court granted defendant’s motion to preclude the State from introducing victim-impact evidence.

In the penalty phase, the State relied entirely on the evidence presented at the guilt phase to establish that defendant murdered Mrs. Place during the commission of a burglary and to escape detection for committing those crimes. Defendant relied on the psychiatric evidence offered at trial and additional lay testimony. An aunt, who was often present while defendant’s father abused him, described how she could not go into the basement because she could not bear to watch the torture. She observed defendant’s father humiliate his sons by causing them to walk around naked. The aunt saw the father use pinch pliers on his sons’ toes or legs until they cried. She saw defendant left alone in puddles of urine.

Defendant’s brother, Manny, and defendant’s mother, Fotini, who was gravely ill with cancer, pleaded to the jury not to sentence defendant to death. In his allocution, defendant apologized for killing Mrs. Place and pleaded for his life.

Finding that defendant had murdered Mrs. Place during the commission of burglary and robbery, the jury unanimously concluded that the State had established the c(4)(g) (felony murder) aggravating factor. Five of the twelve jurors found the c(4)(f) (escape detection) factor. Three jurors found the c(5)(a) (extreme emotional disturbance) mitigating factor. The jury unanimously rejected the c(5)(c)(age) and c(5)(d) (diminished capacity) factors. Concerning the c(5)(h) (catch-all) factors, ten jurors found that defendant was subject to cruelty as a young child, all twelve found that defendant’s school system classified him as emotionally disturbed, seven found that his emotional disturbance was at least partly due to cruelty he had experienced as a child, all twelve found that he suffered from a mental defect, disorder, or other mental disturbance, two found an undesignated factor that warranted mercy. All twelve rejected the other proposed catch-all factors. The jury unanimously determined that the felony-murder aggravating factor outweighed the mitigating factors beyond a reasonable doubt. The trial court imposed the sentence of death and additional sentences on the noncapital offenses. Defendant appealed to us of right under Rule 2:2-l(a).

II.

Pretrial Issues

1. OVERALL ADEQUACY OF VOIR DIRE

Defendant asserts that the trial court conducted the death-qualification process in an inadequate manner. According to defendant, the voir dire failed to reveal prospective jurors’ views on the death penalty and their ability to disregard their biases and follow the law. Consequently, court and counsel did not have sufficient information on which to determine whether prospective jurors were death-qualified, and defense counsel were unable to exercise their twenty peremptory challenges intelligently.

A.

Specifically, defendant argues that the court failed to educate the jurors on the provisions of the death penalty act and did not explain which murders are death-eligible. As a result, potential jurors did not understand the distinction between death-eligible and non-death-eligible homicides. Furthermore, the court failed to correct prospective jurors when they indicated misconceptions regarding the law. The court also neglected to ask jurors whether the applicable aggravating factors would cause them to vote automatically for a death sentence. In addition, the court failed to pose appropriate follow-up questions to potential jurors who expressed an unwillingness to consider defendant’s mitigating evidence. Finally, the court often asked closed-ended questions that suggested an answer.

B.

State v. Williams, 93 N.J. 39, 459 A.2d 641 (1983)(Williams I), and State v. Williams, 113 N.J. 393, 550 A.2d 1172 (1988) (Williams II), are the primers for the conduct of voir dire in capital cases. We simply repeat the salient points emphasized in those cases.

It is axiomatic that an impartial jury is a necessary condition to a fair trial. “This requirement of fairness — and particularly jury impartiality — is heightened in cases in which the defendant faces death.” Williams I, supra, 93 N.J. at 61, 459 A.2d 641.

In order to insure the impartiality of the jury, we have emphasized the critical importance of the voir dire in exposing potential and latent bias. Under our single jury capital trial system, jury selection must serve double duty as a time to death qualify jurors and to enable counsel to exercise the valuable constitutional prerogative of selecting a fair and impartial jury. In that dual setting, voir dire acts as a discovery tool. It should be like a conversation in which, without manipulation or delay of trial, the parties are able to discern the source of attitudes that would substantially interfere with the jurors’ ability to follow the law. In order for this discovery procedure to be effective, potential jurors must have a full comprehension of their legal duties. In Williams II, the Court wrote:

[T]he trial court [should] provide[ ] the jurors with an outline of the State’s death penalty statute.

Knowledge about what constitutes capital murder, the bifurcated proceeding that separates the guilt and penalty phases, and the use of the “aggravating and mitigating factors” scheme during sentencing will enable all potential jurors to answer questions concerning the death penalty free of misconceptions and faulty assumptions concerning how the law is administered in this state. Additionally, this type of instruction will provide all jurors with a common base of information from which to answer questions, removing any difference between jurors based on knowledge of law.

[W]e believe that providing jurors with a concrete and accurate view of the death penalty in New Jersey will enable them to answer questions concerning their attitudes about the death penalty based on an accurate portrayal of what the law is, and thus put the juror in a position to answer questions free of mistaken notions concerning the law, which appeared to be so prevalent on review of the transcripts of this voir dire and so many others.

[Williams II, supra, 113 N.J. at 412-13 n. 5, 550 A.2d 1172 (citation omitted).]

We have disapproved close-ended questions that predetermine answers or elicit narrow “yes” and “no” responses. Williams II, supra, 113 N.J. at 423, 550 A.2d 1172. We have encouraged the formulation of additional questions that will provide insight into a juror’s views on the controversy. Obviously, a court must control voir dire examination, but in doing so it must remain neutral. The court must not proselytize; it must not indicate its views of the “right” or “wrong” answers to voir dire questioning. The voir dire should be probing, extensive, fair and balanced.

It is against these standards that we measure the voir dire in this case.

C.

The court substantially accomplished the purposes of voir dire, however a number of problems arose. The court might better have educated the jurors initially about the capital-sentencing scheme in the context of this case involving the potential aggravating factors of rape, robbery, and burglary. The court failed to define which murders were death-eligible and neglected to correct misconceptions regarding these issues. However, the trial court was extremely open to allowing significant inquiry into a juror’s feelings, views, and attitudes about the case. It allowed attorneys to conduct substantial portions of the voir dire with a single requirement that the attorneys attempt not to repeat the questions that the court had already asked. The court did not fall into the error of Williams II, id. at 416, 550 A.2d 1172, in which the court flatly refused counsel’s request to ask jurors if they thought that the death penalty should automatically apply to someone who was found guilty of a knowing and purposeful murder in the course of rape, or the error of State v. Moore, 122 N.J. 420, 446-48, 585 A.2d 864 (1991), in which the court refused to ask whether a juror would automatically apply the death penalty when a child was killed. Previous courts had resisted such questioning on the thesis that it would preview the jurors’ ultimate verdict. But we have emphasized that counsel must know in such cases whether a juror is willing to follow the bifurcated procedure of the statute and consider mitigating evidence that might result in a life sentence even in such cases. The trial court was quite open to all such questions posed by counsel in this case. With that as background, we shall briefly describe the conduct of the voir dire.

D.

When speaking to the first group of forty-five potential jurors, the court explained:

The first charge is murder in the first degree. That particular charge could result in the death penalty. If you determine as judges [of the facts] that [defendant] is guilty of that particular crime as it will be defined for you, that is a purposeful and knowing murder by his own conduct or that he purposefully or knowingly by his own conduct inflicted serious bodily injury upon Mildred Place which resulted in her death, if you find him guilty of that charge then there will be a second phase to this trial. That will be the penalty phase.

The court added:

[I]f you find him guilty of that murder charge then, of course, there will be a second phase to the trial and the prosecution and the attorneys will present to you what are known as aggravating factors and mitigating factors and then you will have to decide, and again I will explain all of the law involved to you at a later date, you would then have to decide whether the State has proven to your satisfaction beyond a reasonable doubt the existence of an aggravating factor, and then, of course, you have to decide whether there are mitigating factors. You would have to weigh the mitigating factors and the aggravating factors in making a decision as to what the proper penalty would be.

Before they were questioned, each of the prospective jurors had completed a detailed questionnaire containing sixty questions that explored potential sources of bias or disqualification.

During voir dire, the court questioned each juror first. After it completed its questioning, the court then allowed counsel to question each juror. The defense almost always questioned each juror. The prosecution also often took advantage of the opportunity to question potential jurors, and co-counsel for the defense often added questions.

After completing the voir dire of the first group of jurors, the court instructed another group of prospective jurors. These preliminary instructions lacked the detail of its earlier instructions. The court described the charges as “murder in the first-degree, death-eligible,” for which the jury “would have to determine the sentence of death or thirty years imprisonment.” The court explained that felony murder was not death-eligible and that if it found defendant death-eligible, the jury “would move to the second phase of the trial.” In addressing a third panel, the court described the case as involving “murder in the first-degree, death-eligible.”

Defendant complains that when asked which murders they believed warranted a life sentence, several potential jurors answered “accidental murders.” In most instances, the court did not explain to these jurors that an accidental homicide was not death-eligible. Defendant also complains that the court did not inform the prospective jurors which aggravating factors the State sought to establish and asked very few prospective jurors if they could be impartial during the penalty phase if they convicted defendant of murder and aggravated sexual assault. Some jurors were asked:

[W]ould you tend after the penalty phase, would you tend to be in favor of the death penalty? Would you be in favor of the life imprisonment with minimum thirty years of incarceration or would you be not inclined to do anything until you heard everything that [is involved] ...

However, this was the exception, not the rule. On the other hand, the court had instructed the jurors that defendant was being charged with aggravated sexual assault, burglary, and robbery, and the jurors had been asked in the detailed questionnaire whether the nature of the charges against defendant would impair their ability to be impartial.

Although it is the non-delegable responsibility of a court to ensure that a fair and impartial jury is seated, Williams II, supra, 113 N.J. at 409, 550 A.2d 1172, this does not mean that a reviewing court may not take into account the role that counsel has played in ensuring that end.

For example, defense counsel often asked jurors whether they could be impartial at the penalty phase after finding defendant guilty of murder and aggravated sexual assault. The defense posed that question to Juror Reagan, who replied:

A: I really can’t say yes or no to that. I guess it would have to depend on all

Q: The circumstances?

A. Right.

Another juror, Harmon, was asked:

Q. [W]hen [the court] told you that the charges are murder and aggravated sexual assault, and the other things, what was your gut reaction to that?

A: ... I think of my little nieces or nephews or my Mom or, you know, my girlfriend or something like that. For some reason. It’s just something I don’t approve of, regardless of what happened, whether he was drunk or on drugs or whatever.

Q: Okay. Do you think you can put aside your strong feelings, against aggravated sexual assault, and listen to all the evidence, and be impartial and fair?

A: I would try. You know, like I told the Judge before, I think it will still stick in the back of my mind, so no, you know.

Q. [W]here would you be leaning, if you can say.

A: Maybe the death.

Q: Okay. With that same scenario, add in that, assume Mr. Papasawas has organic brain damage, which happened as the result of a motor vehicle accident.

A: Okay. Uh-hum.

Q: Could you see yourself considering that physical injury as mitigating against the death penalty, and leading you, perhaps, to impose life in prison?

A: ... [B]ut if this is something he just got, just got prior to committing this crime, then it is a little bit different. If this is something he knew he had, or his family knew he had, then they should have been taking care of that.

The prosecutor followed up:

Q: I think the important question is, would you listen to this kind of testimony?

A: Yeah, I would listen.

In short, there was every opportunity to explore the jurors’ views. In Williams II, this Court held that the trial court, which did not permit any attorney-conducted voir dire, erred when it refused defense counsel’s request to ask potential jurors whether they could consider mitigating evidence after convicting the defendant of rape and murder. Id. at 417, 550 A.2d 1172. This Court reasoned that “the failure to inquire into whether any juror could consider the mitigation evidence if it was established that defendant was guilty of rape and murder denied counsel and the trial court the tools with which to insure that the jury panel could fairly undertake its role in this case.” Ibid. That did not happen here.

As noted, the trial court was extraordinarily tolerant of the fullest inquiry on the part of counsel. Together court and counsel accomplished a most thorough and searching voir dire. This voir dire, like so many others that we have reviewed, took on a rhythm of its own. The trial court fully achieved the conversational mode of inquiry that this Court has encouraged. The exchanges among the court, counsel and jurors were open, frank, sometimes humorous, but always revealing. Generally the questionnaire pointed the court to the key areas of concern. Would a juror tend to favor the State’s witnesses; would a juror hesitate to believe in psychiatric testimony; did the juror’s reading or listening habits betray a bias for or against the death penalty?

For example, one juror, when asked how he felt about psychiatric testimony, replied that he did not think so much of it but “My wife tells me that I should see a psychiatrist.” Another was asked if she listened to a certain all New Jersey news radio station. She replied that the people who listened to that station “are so stupid you can’t listen to that.” Another person who listened to a “shock-jock” radio program was asked how she felt about “Baba Booie.” One described the crime novelist Mary Higgins Clark as a favored author, another Langston Hughes as a favored poet, and one who watched the series Ally McBeal observed that “lawyers looked better on TV.” In short, there was every opportunity to discern jurors’ biases and attitudes in the context of this case. Defense counsel was wisely prepared with a jury consultant who was often introduced to jurors and suggested lines of questioning. The pool of jurors appeared to be fair and balanced with no knowledge at all of the specifics of this ease. The jurors brought a breadth of life experience into the courtroom. Poets, professors, and laborers were represented. Many jurors possessed a natural eloquence, often expressing views about the death penalty that matched the statutory scheme, viewing death as the appropriate penalty for “serial killers,” those who imposed “additional cruelty,” those who killed police officers, and those who were “thrill killers.”

On balance, the voir dire was sufficiently probing to discover any potential bias and permit counsel to exercise peremptory challenges intelligently. See State v. Harris, 156 N.J. 122, 164, 716 A.2d 458 (1998) (upholding voir dire in which trial court informed potential jurors about capital-trial process and asked open-ended questions regarding their attitudes about capital punishment and inquired into their ability to follow law). Specifically, the court asked prospective jurors about their receptiveness to psychiatric testimony (through which most of defendant’s mitigating evidence was ultimately introduced), their general views on the death penalty, whether their religious beliefs would interfere with their decision-making process, in which cases they would tend to impose the death penalty, in which cases they would tend to impose life imprisonment, whether their friends and relatives’ views on capital punishment would influence them, and whether they could consider both sentencing options during penalty-phase deliberations. The court always permitted counsel to supplement its questions. The defense attorneys, whom a jury consultant assisted, often questioned prospective jurors regarding their impartiality in a case in which they would be asked to convict defendant of both murder and aggravated sexual assault. In addition, the trial court often asked each prospective juror, consistent with Moore, supra, 122 N.J. at 454, 489-90, 585 A.2d 864, about his or her ability to evaluate defendant’s psychiatric defense.

Based on this voir dire, the court struck fifteen jurors for cause based on apparent biases concerning capital punishment. In addition, defendant and the State both exhausted their peremptory challenges, most of which were used to strike jurors who, although death-qualified, expressed views on capital punishment that seemed unfavorable to the striking party’s interests.

The trial court did not employ a double standard in its death-qualification of prospective jurors. Rather, the court’s decisions to qualify or disqualify potential jurors were fair and evenhanded. The court qualified two jurors who indicated their willingness to disregard their anti-death-penalty views and follow the law. The trial court also death-qualified two jurors who both answered at the conclusion of their questioning, “I don’t know” to whether they could impose the death penalty in this case.³

2. THE FAILURE TO EXCUSE DEATH-PRONE JURORS.

The first juror whom defendant unsuccessfully challenged for cause was Harry Applegate. After stating that “in general I believe in the death penalty,” he added that for “you know, vicious types ... [my] gut feeling is that ... it is sometimes too good for some people.” He complained that because of judicial delays, “the guy dies of old age” before the sentence is carried out. When asked whether the age of the victim would influence his judgment, he said:

That’s right at my mother’s age. I don’t know whether I can draw a clear line between the two. I think I would wind up, although I wouldn’t tend to, associate some of that.

He repeated this concern in the context of viewing photographs:

Q: And that would be to Mr. Papasawas’ detriment you think?

A: Probably.

The defense argued that Applegate could not assure the court that he would be impartial in view of the victim’s age and that it was the prosecutor’s later questions that had suggested the rehabilitating answer that Applegate could fairly judge the matter in spite of his feelings about his mother. After reviewing the transcripts, the court said:

All right, my own, my own interpretation of the answers by this particular potential juror is that he would be brutally honest to a fault, and he obviously has a mom that’s about the same age as the victim in this case or the alleged victim in this case, but he clearly stated he would look at the evidence and decide the case on the evidence and he would decide the death penalty issue on the evidence, one way or the other.

The next juror unsuccessfully challenged was Bette Shampaner. Asked for her reaction to a case involving the sexual assault and murder of a sixty-four-year-old woman, she described her reaction:

Pretty lousy I think. It goes against me.

Asked if she could nonetheless consider in mitigation defendant’s mental disturbance or childhood abuse:

Well, actually we’ve had those kind of conversations in my office about dysfunctional upbringing and all that stuff and, you know, you can just use that to a certain point. That’s it.

Her tendency, she admitted, heading into the penalty phase would be death. Defense counsel asked:

Q: Do you think it would be hard for you to put aside your personal feelings about this abuse excuse type evidence in assessing the penalty in the case?

A: No.

But when pressed, she acknowledged that for her,

It’s not an excuse.

Again, the prosecutor sought to rehabilitate her.

Q: If you heard psychiatrists with two different points of view could you sit down and evaluate what they had said and decide how relevant either testimony was?

A: Yeah. I would have to, you know, weigh both sides and see which I felt was more correct.

Asked if she would favor the State’s psychiatrists over defendant’s, she said:

No, I’ll try not to.

Asked if she would not always disregard a mental state defense, she said:

A: Yeah. I’m not eliminating it total.

Q. So you could evaluate and come to a conclusion.

A: I would tiy.

The defense asked that Shampaner be removed for cause. The court responded:

The lady obviously has some reservations as to some of the possible mitigating factors____ I did not hear her say that she would absolutely not listen to any of the testimony and not consider any of the testimony____ I believe that she would fairly and impartially listen to all of the testimony. That’s not to say that she may not have some preconceived ideas when she walked into this courtroom, whether those will override my instructions and her ability to follow my instructions. It’s very, very doubtful. I think she’d be a proper juror. I won’t exclude her for cause. I’ll qualify her.

,c.

The third juror unsuccessfully challenged was Ira Leslie. When asked about the death penalty, he answered:

Well, I’ve got to be honest with you, Judge. I’m pretty conservative. I believe one life is no different than another life, a police officer or a young girl.

And later:

Q: Does that statement that you just made, one eye, you were going to say an eye for an eye?

A: Yeah.

After further questioning, the court asked,

Q: So it’s not strictly an eye for an eye?

A: If you’re in a bar and you’re talking, an eye for an eye is one thing, but when you’re making a decision on somebody, then you’ve got to look at more than eye for an eye.

But when asked about a sexual-assault-strangulation of a woman, he said thirty-years imprisonment was not enough punishment.

Asked later by defense counsel if he believed in an eye for an eye:

A: It all depends on the circumstances and the story, you know, how much proof there is. But, you know, on one hand I believe, you know, you take a life, you should give a life. But when you look at it and you sit here now the way I am, maybe life’s the way to go.

Asked if he could accept psychiatric evidence as potential evidence in mitigation of that act, he said:

A: No.

Q: That’s not something you would think would matter in that context?

A: I’ll listen to it. I’m a very good listener____ [B]ut, no I won’t take it as an excuse, you know?

A: I can’t answer that until I hear the whole circumstances____ And this insanity is not an excuse.

A: It’s just an excuse to get out of the death penalty.

A: I’ve got to be honest with you, I don’t look at it as an excuse.

Reminding Leslie of his barroom example, the prosecutor got Leslie to agree that he could not reject the evidence out of hand.

Boy, it goes against me right now, but I probably could.

And to agree that he would not “vote against” defendant “no matter what you heard”:

A: No, I couldn’t live with myself and do that, no.

The court agreed to reconsider its decision on the motion to disqualify Leslie until it read the transcript of the questioning.

I read the transcript that was provided to me____ Obviously one of those reluctant jurors who would rather not make the decision but if he did he would — he would be very fastidious with respect to any psychiatric testimony____ “You mean it’s easy to say in a barroom kill them all but when you got to do the voting it is a little tougher?” Answer: ‘Yeah.[”] [“]Would you give both sides in this case an honest and fair evaluation and listen and make a fail- decision?” Answer: “Definitely.!”] !“]And no matter what you heard would you vote against him?” Answer:

“No.” And then the question was “Would you do that?” And the answer was “No, I couldn’t live with myself and do that, no.”

The court qualified Leslie.

Voir dire procedures and standards are traditionally within the broad discretionary powers vested in the trial court and “its exercise of discretion will ordinarily not be disturbed on appeal.” State v. Jackson, 43 N.J. 148, 160, 203 A.2d 1 (1964), cert. den. sub norm. Ravenell v. New Jersey, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965). State v. Singletary, 80 N.J. 55, 402 A.2d 203 (1979), discussed the rationale for this deference to the trial court:

Decisions concerning the potential bias of prospective jurors are primarily subjective in nature. They require at bottom a judgment concerning the juror’s credibility as he responds to questions designed to detect whether he is able to sit as a fair and impartial trier of fact. Consequently, such evaluations are necessarily dependent upon an observation of the juror’s demeanor during the course of voir dire — observations which an appellate court is precluded from making.

Inasmuch as the trial judge observed the venireman’s demeanor, he was in a position to accurately assess the sincerity and credibility of such statements, and we should therefore pay due deference to his evaluation____

Id. at 63-64, 402 A.2d 203 (citations omitted).]

In reviewing capital jury voir dire proceedings in State v. Biegenwald, 106 N.J. 13, 35-37, 524 A.2d 130 (1987)(Biegenwald I), and State v. Ramseur, 106 N.J. 123, 256-57, 524 A.2d 188 (1987), we found in each case that the trial court’s approach to the problems of death qualifications and pre-trial publicity were entitled to deference. We further noted in Ramseur that “[a] sensitive weighing and appraisal of a juror’s entire response must be made by the trial court in its duty to resolve the question of whether the juror has shown bias or prejudgment----” Id. at 257, 524 A.2d 188. It has also been observed that this Court is “perhaps too far removed” from the realities of the voir dire to appreciate the nuances concealed by a “bloodless record”; therefore deference to the trial court is usually prudent. Id. at 260, 524 (quoting State v. Gilmore, 103 N.J. 508, 547, 511 A.2d 1150 (1986) (Clifford, J., dissenting)); see also Biegenwald I, supra, 106 N.J. at 37, 524 A.2d 130 (noting that trial court’s rulings on excusáis for cause are “highly discretionary”).

We are satisfied that the trial court correctly qualified Applegate, but we cannot agree that Shampaner or Leslie were qualified to serve. Each expressed a convincing bias against considering psychiatric evidence. That bias was especially crucial here because the defense included a claim of organic brain defect, not the type of thing about which a fair-minded juror should have reservations. Here, as in Moore, supra, 122 N.J. at 453-54, 585 A.2d 864, the concept of mental disease was critical to defendant’s case. “Anyone moderately familiar with criminal trials and the public’s reaction where juries acquit on murder charges by reason of defendant’s insanity knows the strength of these concerns and the vulnerability of the justice system to extreme erosion of confidence. Sociological studies confirm this.” In re Edward S., 118 N.J. 118, 139, 570 A.2d 917 (1990) (citing Valerie P. Hans, An Analysis of Public Attitudes Towards the Insanity Defense, 24 Criminology 393, 396, 404 (1986) (89.2% of those polled believed that insanity defense allowed guilty persons to go free)). Of course the prosecutor’s questions enabled each to agree that he or she would not reject the evidence out of hand. There is hardly ever a juror seated who will directly state that he or she would be unfair and reject evidence out of hand.

One of the problems that we have in capital cases is that the constitutionally-limited Adams-Witt standard for disqualification of jurors in capital cases (would their personal views in the morality, utility, or efficiency of the death penalty ‘‘substantially interfere” with then- ability nevertheless to follow and apply the State’s death-penalty statute?) gets confused with the more general inquiry into juror predispositions or preferences that should mark the general jury-selection process. Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed,2d 581 (1980) and Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). For example, in a non-capital case, we almost invariably permit questioning of jurors about whether they would be inclined to give more credence to law-enforcement witnesses than to others. However, we do not ask the jurors whether the fact that some witnesses are law-enforcement officers “would substantially interfere with their ability to follow the law.”

[Moore, supra, 122 N.J. at 445, 585 A.2d 864.]

If a juror said that she did not believe in the presumption of innocence but would “try” to follow it, we doubt that a court would hesitate to remove such a juror. Mental disease or defect presents a slightly different set of values, but a defendant is entitled not to have to move a mountain to persuade a person of the relevance of mitigating evidence that the Legislature has expressly recognized in its capital sentencing scheme. Challenges for cause are grounded on legally cognizable bases of partiality such as “a personal relationship with a party or witness, or attorney in the litigation, or a biased state of mind concerning a party or issue in the ease.” United States v. Annigoni 96 F.3d 1132, 1138 (9 th Cir.1996).

The trial court’s responsibility to preserve the integrity of the jury “under both the federal and state constitutions ... is at its peak in cases involving the death penalty.” Williams I, supra, 93 N.J. at 63, 459 A.2d 641; see Ramseur, supra, 106 N.J. at 324 n. 84, 524 A.2d 188. The Sixth Amendment right to a “trial by an impartial jury ... goes to the very essence of a fair trial.” Williams I, supra, 93 N.J. at 60, 459 A.2d 641. “All doubts concerning a juror’s ‘sense of fairness or ... mental integrity’ should be resolved by dismissing the challenged venireman.” Singletary, supra, 80 N.J. at 65, 402 A.2d 203 (quoting Jackson, supra, 43 N.J. at 160, 203 A.2d 1); State v. Deatore, 70 N.J. 100, 106, 358 A.2d 163 (1976)(holding that “the obvious and practical way to handle the situation of a prospective juror having connections with a party or witness which might possibly affect impartiality is to excuse the juror by consent at the outset.”).

This Court has emphasized the right to trial by an impartial jury, secured by Article I, paragraph 10 of the New Jersey Constitution as well as the [S]ixth [A]mendment of the United States Constitution, requires that a jury panel must be “as nearly impartial ‘as the lot of humanity will admit.’ ” Williams I, supra, 93 N.J. at 60-61, 459 A.2d 641 (quoting Singletary, supra, 80 N.J. at 62, 402 A.2d 203). “This requirement of fairness — and particularly jury impartiality — is heightened in cases in which the defendant faces death.” Id. at 61, 459 A.2d 641. These two jurors were not as nearly impartial “as the lot of humanity will admit.”

Although the trial court erred in qualifying those two jurors, we do not find that the loss of two peremptory challenges to excuse the jurors produced an unfair trial. In State v. Bey, 112 N.J. 123, 154, 548 A.2d 887 (1988) (Bey II), we explained that an improper denial of a for-cause challenge does not always require a new trial. Among the factors to be considered are whether the jurors were eventually removed from the jury, the stage at which they were removed, the effect on counsel’s strategy, any apparent unfairness to the defendant, and whether additional peremptory challenges were required.

In this case, each juror was qualified at an early stage in the voir dire process and was eventually removed from the jury without any apparent unfairness to defendant. Before us, defendant claims that unfairness arose because two jurors sat who were biased or at least unfavorable to him. Specifically, defendant contends that Juan Valdes and Shilpaben Patel were partial jurors who sat on his case.

The only indication of partiality Patel gave was in her questionnaire, in which she wrote that Mrs. Place’s age might impair her ability to be impartial in this case. The totality of her voir dire demonstrates that Patel had an open mind. Patel indicated that she had not formed opinions on the case. In her questionnaire, she expressed no general views on the death penalty, explaining, “I wasn’t sure, so I didn’t answer that.” She worked in a hospital and was aware of the fact that psychiatric counseling can be helpful to people. Juan Valdes said in his questionnaire that his general view on the death penalty was that it was a “tough decision for anyone to make. It’s against, kind of, I guess, my religion.” Furthermore, defendant’s claim that Valdes and Patel were partial jurors is belied by defendant’s decision not to challenge either juror for cause or peremptorily. State v.DiFrisco, 137 N.J. 434, 471, 645 A.2d 734 (1994) (DiFrisco II).

3. THE DISQUALIFICATION OF A LIFE-PRONE JUROR

The trial court removed for cause Mario Roberti, a juror who had reservations about the death penalty. Defendant argues that the exclusion of Roberti was error. Here is some of the colloquy with the court.

Q: What would you say is your general feeling about the death penalty?

A: Probably be against it if I had to absolutely choose.

Q: Okay. Let us assume for a second that you won’t absolutely have to choose but that it is an option that you have. If you are presented with the proper evidence could you choose that option?

A: Probably not, no.

Asked if he would sentence one such as the Oklahoma City bomber to death, Roberti said he would “probably not” impose the death sentence.

Q: Why not? I want reasons. What are your reasons for not imposing the death sentence in that case?

A: Because, like I said, I don’t know if anyone can really say just because you did this, he did all that, that you could kill him for it.

There followed an exchange during which Roberti explained that he was not likely to sentence to death one such as Jeffrey Dahmer, who had cannibalized his youthful victims:

Q: Are there any kinds of murders where you would believe that the death penally is appropriate penalty? Other than your family?

A: Probably not, no.

Q. Under any circumstances.

A. No.

The defense sought to rehabilitate Roberti.

Q. Can you put aside ... your own personal beliefs about the goodness or the badness of the death penalty and participate with the other eleven jurors and reach a determination as the judge gives you the law and then vote your conscience on it? I mean can you do that?

A: Yeah, I — yeah.

Q. Can you participate in the process and hear the judge’s charge and tell the judge that you’ll consider both alternatives personal feelings aside?

A: I guess. I mean since I don’t feel like obviously when I filled that [questionnaire] out I didn’t feel that strongly, but I guess I really could, though I really wouldn’t want to____

Q: But you would follow the judge’s instructions and you would basically follow the law as the judge gives it to you as a juror and a citizen?

A. Yeah____ I mean I don’t think it’s like my place but I guess I would have to____ If it was so bad that I thought so. I mean obviously if I felt that I could then I would.

The prosecutor then followed up:

Q: Okay. How about a case with one person strangling another person in their home?

A: That wouldn’t be enough I don’t think.

The court then followed up Roberti’s answer that he could impose the death penalty if the law required it by explaining that the decision was ultimately the juror’s choice. The court asked Roberti if he was saying the following:

But if I am not forced by law to do it then I won’t do it. If I have the choice for— of life imprisonment for thirty years I will always give the life imprisonment for thirty years. Even in the Dahmer case, even in the McVeigh case or any other case?

A. Eight.

We are satisfied, as was the trial court, that Roberti’s views, to which he was fully entitled, would have substantially interfered with his ability to perform the duties of a juror in a capital case. The trial court did not abuse its discretion in disqualifying him.

4. REVERSAL IN THE ORDER OF EXERCISE OF PER-EMPTORIES AND GRANT OF AN ADDITIONAL PEREMPTORY CHALLENGE TO THE STATE.

These two issues are related. Thus, we shall discuss them together. Because this was a murder case, defendant had twenty peremptory challenges and the State had twelve. R. 1:8-3D.

A.

The trial court employed a struck jury in this case. After qualifying fifty jurors, voir dire ceased, and the parties exercised their peremptory challenges. The peremptory challenge process commenced with the court seating in the jury box fourteen qualified prospective jurors. When potential jurors were struck, other jurors replaced the excused prospective jurors. At the conclusion of the striking process, the fourteen jurors situated in the jury box sat on the case.

At a pre-trial hearing, defendant had moved for additional peremptory challenges. The court believed that it should wait until voir dire and said that it would decide the issue if it arose during the jury-selection process.

The State exercised the first peremptory challenge. The jury-selection process continued with defendant and the State alternating removing jurors. After defendant exercised his fifth peremptory challenge, the court directed the defense to strike another juror. On behalf of defendant, counsel struck a juror and immediately thereafter asked to be heard at sidebar. At defense counsel’s request, the court held an off-the-record discussion. On the record, the court explained that it had asked the defense to excuse two jurors consecutively because defendant had eight more remaining peremptory challenges than the State and the court believed that it would be fairer to have defendant exercise back-to-back strikes so he would not have the ability to excuse eight consecutive-jurors after the State had exhausted its challenges. Specifically, the court stated to counsel: “I want to bring a little more balance to the selection process between the two sides, because otherwise you’re going to be sitting here selecting the last eight or excusing the last eight.”

Counsel argued that he, co-counsel, and defendant’s jury consultant had planned a strategy for striking jurors based on the assumption that defendant and the State would alternate exercising peremptory challenges. Counsel argued that the order for excusing jurors should have been discussed beforehand. The court agreed that the striking order should have been discussed prior to the commencement of the striking process and stated that it had planned to hold a discussion of this issue earlier in the morning but had not done so. After the objection, the court reversed its ruling and reverted to having the parties alternate using their peremptory strikes.

Later in the striking process, the State had passed on three opportunities to exercise a peremptory challenge. The defense then exercised its fourteenth challenge, and thus had six strikes remaining, while the State had used all but two of its challenges. At a sidebar, the prosecutor asked the court to modify the striking order. The court declined but noted that it had the discretion to grant additional peremptory challenges to the State and that it would exercise that discretion if needed.

After defendant exercised his nineteenth peremptory challenge, Juror Jeffreys took her place in the jury box. At a sidebar, the prosecutor, who had exhausted his strikes, moved for an additional peremptory challenge so that he could strike this juror whose fiancé had been convicted of arson in Middlesex County, the venue of both the murder and trial. Jeffreys believed that her fiancé was treated unfairly because he received an inferior deal through plea bargaining than his co-defendant. Over defendant’s objection, the court gave the State an extra peremptory challenge because it believed that the State had a good reason to strike the juror. The defense asked for an extra peremptory challenge, but the court declined to grant the request. Instead, the court stated it would consider granting an extra peremptory strike if defendant needed it and had a good reason for it.

The State struck Jeffreys, who was replaced by Juror Knight. The defense, exercising its final peremptory challenge, excused Juror Harmon, whom Juror Burton replaced. The trial court asked counsel if they had any applications. The defense answered, “No, Judge. The jury is satisfactory to the defense.” The State also found the jury satisfactory. Occupying jury seat fourteen, Burton was an alternate juror. He did not deliberate in either phase of the bifurcated capital trial.

In State v. Brunson, 101 N.J. 132, 501 A.2d 145 (1985), Justice Stein exhaustively, reviewed the subject of the proper order of exercising peremptory challenges. Despite the importance of the matter, the subject appears to have been left to the discretion of courts with little guidance and without uniformity. See State v. Myers, 239 N.J.Super. 158, 167, 570 A.2d 1260 (App.Div.1990)(reciting prosecutor’s response to adversary that “I’ve been trying cases here for ten years” to rely on a local practice that allows a challenge after both parties have passed). After reviewing practices in federal and state courts, Brunson held that the order of exercise of peremptory challenges was not of constitutional dimension but the existing practice deserved more careful study. Id. at 145, 501 A.2d 145.

In Branson, the trial court had adopted a one-for-two challenge procedure during the first eight rounds of challenges. Id. at 135, 501 A.2d 145. In other words, the defendant was required to exercise, during those eight rounds, two challenges for each one exercised by the State. Observing that the same effect could have been achieved by strategy of the prosecutor, the Court found no reversible error but saw the need for change. It said:

We are nevertheless impressed by the desirability of a standardized procedure for the implementation of the exercise of peremptory challenges in criminal cases. Accordingly, we will solicit the recommendation of our Criminal Practice Committee as to the establishment by Court Rule of a procedure governing the exercise of peremptory challenges. In the interim, to maintain uniformity trial courts should refrain from using peremptory challenge procedures that differ from the customary, one-for-one, alternating method.

[Id. at 145, 501 A.2d 145 (footnote omitted).]

The Criminal Practice Committee declined to adopt a hard-and-fast rule but, instead, recommended the rule in place at the time of the trial that stated:

Upon indictment for kidnapping, murder, aggravated manslaughter, manslaughter, aggravated assault, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, aggravated arson, arson, burglary, robbery, forgery if it constitutes a crime of the third degree as defined by N.J.S.A. 2C:21-lb, or perjury, the defendant shall be entitled to 20 peremptory challenges if tried alone and to 10 such challenges when tried jointly; and the State shall have 12 peremptory challenges if the defendant is tried alone and 6 peremptory challenges for each 10 afforded defendants when tried jointly.

In any ease in which each side is entitled to an equal number of challenges, those challenges shall alternate one by one, with the State in a criminal case and the plaintiff in a civil case exercising the first challenge.

The passing of a peremptory challenge by any party shall not constitute a waiver of the right thereafter to exercise the same against any juror, unless all parties pass successive challenges.

[a 1:8 — 3(d),(e).]

Applying the analysis of Brunson, we are satisfied that there was no fundamental constitutional error in the court’s mid-trial change in the order of exercise of peremptories. The court rather quickly reversed course and reinstated the customary procedure.

Concerning the grant of an extra peremptory to the State without a corresponding grant of an extra peremptory to defendant, we believe that the proper analysis should be that which applies to the loss of a peremptory challenge by the failure to excuse a juror for cause. Applying the balance of factors set forth in Bey II, supra, we are satisfied that prejudice did not arise. As noted, the trial court indicated its willingness to grant an extra peremptory to defendant if needed.

Were we not convinced from the general tenor of the voir dire that the court would have responded to such a request, we would have genuine concern. The relationship of court and counsel was marked by candor and professionalism. Had counsel had an abiding concern about the need for an extra peremptory challenge, we surmise that the court would have responded favorably. Moreover, Jeffreys could well have been excused for cause. Remember, at this stage, the State held no more challenges. If defendant asked for one more peremptory challenge and exercised it, he might have drawn a juror less desirable than those who sat.

III.

Trial Issues

1. ADMISSIBILITY OF MEDICAL EXAMINER’S EXPERT TESTIMONY REGARDING CAUSE OF DEATH

Because Dr. Marvin Shuster, the Middlesex County Medical Examiner, was ill and unable to testify at trial, he gave a videotaped deposition, which the trial court admitted in lieu of his in-court testimony. Shuster was qualified at the deposition as an expert in forensic pathology.

Shuster saw Mrs. Place at the crime scene the day neighbors found her, and he performed an autopsy on her two days after she died. At the deposition, Shuster detailed Mrs. Place’s injures, which he observed while conducting the autopsy, and their significance.

When the prosecutor asked Shuster about the belt that was tied around Mrs. Place’s mouth, the State broached the subject of cause of death:

Q: If [the ligature was] all she had on her neck would that cause her death?

A: I thought she had a combination of mechanisms of strangulation and those were both manual and ligature strangulation.

The State’s direct examination of Shuster concluded with a brief discussion of the causes of Mrs. Place’s death.

Q: Okay. As a result of your — of your autopsy and the — and the viewing at the scene and whole procedure that you did with Mrs. Place I would ask whether or not in your area of expertise you have an opinion on the cause of death.

A: I thought she died of the assault which was compounded by strangulation, both manual and ligature.

Q: Okay. So the total assault plus strangulation manually and by this ligature?

A: Yes.

Defendant did not object to this testimony.

On cross-examination, Shuster testified that he did not believe Mrs. Place’s broken neck (injured in the fall) caused her death because the fracture occurred “without separation and without overriding.” The cross and redirect examinations did not cover the cause of Mrs. Place’s death, except for whether the fractured vertebrae constituted a mechanism of death.

At trial, Dr. John E. Adams, the defense expert in forensic pathology, testified that either the manual strangulation or the broken neck could have caused Mrs. Place to die.

Defendant contends that Shuster’s testimony that “the assault” caused Mrs. Place’s death was inadmissible “ultimate issue” evidence and should have been deleted from the videotape shown to the jury. According to defendant, this testimony failed to identify the mechanism or cause of death and “put an impermissible expert imprimatur on the State’s theory that the death was intentional.” Defendant argues that Shuster’s cause-of-death testimony was not supported by the factual evidence and hence was also inadmissible net opinion.

It is defendant’s position that by designating “the assault” as the cause of death, Shuster implied that defendant had intentionally murdered Mrs. Place. This conclusion exceeded the bounds of proper expert testimony and encroached on the jury’s duty to decide the ultimate issue, whether defendant purposefully or knowingly murdered Mrs. Place. According to defendant, Shus-ter’s testimony therefore violated defendant’s right to a fair trial and its admission into the trial was plain error.

[E]xpert opinion is admissible if the general subject matter at issue, or its specific application, is one with which an average juror might not be sufficiently familiar, or if the trial court determines that the expert testimony would “assist the jury in comprehending the evidence and determining issues of fact.”

[State v. Berry, 140 N.J. 280, 292-93, 658 A.2d 702 (1995) (quoting Odom, supra, 116 N.J. at 70, 560 A.2d 1198).]

Despite the imprecision of his testimony, we are convinced that Shuster’s cause-of-death testimony assisted the jury’s understanding of the facts. Most importantly, the totality of the testimony informed the jury that he considered the two forms of strangulation to be causes of Mrs. Place’s death. The portion of the testimony in which Shuster named “the assault,” or in the prosecutor’s words “the total assault,” revealed that the combination of injuries Mrs. Place suffered during her encounter with defendant also could not be ruled out as causes of death.

Shuster’s opinion regarding the cause of Mrs. Place’s death was not an inadmissible net opinion. The net-opinion rule forbids the admission into evidence of an expert witness’s conclusion that is unsupported by factual evidence. Lanzet v. Greenberg, 126 N.J. 168, 186, 594 A.2d 1809 (1991). Shuster based his opinion concerning the cause of death on his crime-scene observations and his autopsy of Mrs. Place, which he described at length during his deposition before announcing his cause-of-death opinion. Although Shuster did not explicitly testify that he based his opinion on his crime-scene observations and autopsy findings, the jury could easily infer the bases of Shuster’s expert opinion regarding the cause of Mrs. Place’s death.

Whether Shuster’s cause-of-death testimony exceeded the scope of permissible expert opinion is a more complex question. Defendant argues that by expressing the opinion that “the assault” was a cause of death, Shuster essentially told the jury that he believed defendant had committed a purposeful-or-knowing murder. In Odom, supra, we held that “the determination of facts that serve to establish guilt or innocence is a function reserved exclusively for the jury. Hence, an expert’s testimony that expresses a direct opinion that defendant is guilty of the crime charged is wholly improper.” 116 N.J. at 77, 560 A.2d 1198 (citation omitted). However, “as long as the expert does not express his opinion of defendant’s guilt but simply characterizes defendant’s conduct based on the facts in evidence in light of his specialized knowledge, the opinion is not objectionable even though it embraces ultimate issues that the jury must decide.” Id. at 79, 560 A.2d 1198 (permitting detective to testify as illegal-narcotics expert and express the opinion that defendant possessed drugs for distribution).

State v. Jamerson, 153 N.J. 318, 708 A.2d 1183 (1998), set the bounds of proper expert testimony by a medical examiner qualified only as an expert in forensic pathology. In Jamerson, the medical examiner stated that an automobile accident caused by a drunk driver was a homicide. Id. at 330-33, 708 A.2d 1183. The defendant contended that he did not recklessly cause the victims’ deaths and, as a result, was not guilty of reckless homicide. Id. at 334-36, 708 A.2d 1183. Holding that the medical examiner should not have been permitted to testify that he believed the defendant had committed reckless homicide, we concluded that the medical examiner’s “testimony should have been limited to describing the physical properties of the implement that caused the [victims’] deaths, narrating the physiological status of the bodies at the time of death, and ruling out the possibility that the injuries were self-inflicted or sustained as a result of mere inadvertence.” Id. at 337, 708 A.2d 1183. Noting that there were no wounds to analyze, we reasoned that the medical examiner could not assist the jury with respect to whether the collision was a reckless homicide or an accidental death because, as a forensic pathologist, he was in no better position than the jury to make that determination. Id. at 340-41, 708 A.2d 1183. We also emphasized that the trial court did not qualify the medical examiner as an expert in accident reconstruction. Id. at 330, 339, 708 A.2d 1183.

Shuster, unlike the medical examiner in Jamerson, did not testify that defendant purposefully or knowingly murdered Mrs. Place. Thus, he did not express a direct opinion on defendant’s guilt of capital murder. However, Shuster’s characterization of Mrs. Place’s encounter -with defendant as an assault was not based on his specialized knowledge as a forensic pathologist. Odom, supra, 116 N.J. at 79, 560 A.2d 1198. The trial court qualified Shuster as a forensic pathologist, not as an expert in crime scene reconstruction. Defendant argues that Shuster had no greater ability than the jurors to determine whether the deadly encounter was an assault or an accident, Jamerson, supra, 153 N.J. at 341, 708 A.2d 1183, and that the trial court should not have permitted Shuster to testify that “the assault” was a cause of Mrs. Place’s death.

There is a significant difference between Shuster’s statement concerning the cause of death and expert testimony that explicitly states that defendant intentionally killed Mrs. Place. Although an “assault” might connote a deliberate attack, it also served to describe the two neck injuries and other signs of trauma that he found. In addition, intentional conduct is conceptually distinct from intent to bring about a specific result. Defendant’s intent to cause severe bodily injury or. death does not follow logically from his intent to cause some bodily injury. Not every non-deadly assault is an attempted murder, as evidenced by State statutes proscribing felony murder, manslaughter, or death by automobile. Therefore, we believe that Shuster’s testimony that “the assault” caused Mrs. Place’s death was not tantamount to an expert opinion that defendant purposefully or knowingly murdered Mrs. Place or a mischaracterization of the events.

Although Shuster might better have described Mrs. Place’s cause-of-death as resulting from two forms of strangulation, the trial court did not commit plain error when it failed to redact his reference to “the assault.”

2. ADMISSIBILITY OF THE STATE PSYCHIATRIST’S EXPERT TESTIMONY

In response to testimony that defendant suffered from a mental condition that prevented him from acting purposefully or knowingly when he killed Mrs. Place, the State introduced the psychiatric expert testimony of Doctor Stanley Portnow. The trial court qualified Portnow as an expert. He had thirty-nine years of experience in practice and at that time held the position of clinical professor of psychiatry at the New York University Medical School.

Portnow testified that defendant suffered from no major mental disease or disorder but had antisocial personality disorder and a polysubstance dependence problem. Despite the court’s cautionary instruction to the prosecutor, Portnow was permitted to embark on these rambling monologues:

Q. And you indicated earlier on the evening previous to the homicide that he had, he had been in a bar, he had been drinking, I think?

A. Yes.

Q. Is that — would you expect that?

A. Yes, that’s his everyday operation. He intentionally ran from his parents’ home, not because he was mentally ill or he was hearing voices telling him to run, but he intentionally ran with the purpose of evading the police because he was scared.

He arrived at the decedent’s home knowing that it was not his home and that it was illegal to enter the premises. He was not so out of it that he did not know those things. He nevertheless climbed through the open basement window. His intention and purpose was to evade the police and hide out so he could not be discovered.

He was not hearing voices at the time and was able to adequately use his judgment for its criminal purpose.

When the lady, when Mrs. Place came home and they confronted one another, he put her in a sleeper hold with the express, with the express purpose of making her unconscious so that she would never be able to report him. He did not feel a threat — a physical threat from her. He just wanted to be sure that she never reported him to the police.

Believing that the woman was faking unconsciousness, he threatened to assault her in the anus if she did not wake up. He said that women don’t generally like anal intercourse and if she heard him, she would wake up. With the express purpose of engaging in the threatened sexual act with her, he cut off her clothes with a with pair of scissors which he retrieved from the basement and apparently had some form of sexual contact with her. At least some sperm was found around the anal orifice.

He did not have any money so he stole his victim’s credit cards and car keys for the purpose of furthering his intention of escaping. He made a phone call about which we have talked in order to conceal the location of where the call originated from. He phoned a girlfriend in New York. They used the lady’s credit cards to purchase wine and champagne, and he got drunk again.

There is no underlying mental disease or disorder in this case. And if I read Dr. Apolito’s [the defense witness] report correctly, he agrees. Mr. Papasawas does have an antisocial personality disorder which is an Axis II [psychiatric diagnosis], but that is not a [major] mental disease or disorder in the sense of an Axis I of the American Psychiatric Association. Mr. Papasawas knew exactly what he was doing. He exercised his judgment for the purpose of keeping the police from detecting his whereabouts so he would not be arrested. In order to achieve this purpose, he broke into and entered the home of the deceased and hid there. When Mrs. Place happened upon him and he realized that she would call the police, he killed her and sexually assaulted her before stealing her credit cards and car keys.

Q: [W]hat relevance did [defendant’s head injuries] have in your estimation ?

A: Well, I don’t think they played much of a role here. This is a man who was not deranged either organically or psychiatrically. He certainly was oriented. He was not hearing voices. He, he was, everything that he did was goal-directed and purpose-directed.

I do not believe — I don’t doubt that he was, that he sustained concussions and serious injuries on both of those occasions, but according to at least Dr. Miller’s report, he had made a complete recovery, at least was back to his baseline level from before the accident and, therefore, the accidents can play no role in the understanding of this incident.

People who, people who act aggressive, people who act out, who have organic brain damage, do so impulsively, almost like without thinking. They get a discharge from the central nervous system and they run amok. That is not what happened here. This was a thought, goal-directed action. This was, there was nothing, in other words, there was nothing impulsive. The woman can identify me, I’ll put her in a sleeper hold, throw her down the steps if she is not already dead. That is not an organic impulsive acting out. People who have organic brain damage are still capable of premeditating crime, just like schizophrenics. Just because you’re schizophrenic doesn’t mean you have the right to go out and Ml someone and the type of activities as I have it recorded here.

At this point, defense counsel objected. Sustaining the objection, the trial court immediately gave a curative instruction:

Ladies and gentlemen of the jury, I’ve got to tell you something. I’ve been listening to this doctor now for the last five minutes tell us that this gentleman is guilty of everything he’s charged with. That is not his job. That is your job. You are here; you’ve heard all of the evidence. You’ve heard all of the testimony and you’re going to decide whether this gentleman is guilty of any of the crimes charged, not this doctor. That is not his job. He call tell us about psychiatric, state of mind, cognitive functions. That’s what he’s an expert on. But, he’s not here to tell us that Mr. Papasawas is guilty of anything. That’s not his job.

That’s what you’re going to decide. And I want to make sure that you realize that because sometimes we are led by an expert’s opinion. If the expert believes so, it must be so. No. It will be your job to determine whether he’s guilty of any of the charges.

When the State resumed its direct examination, Portnow concluded that defendant did not suffer from any type of mental disease or disorder that would have deprived him of a substantial capacity to know or appreciate the nature and quality of his actions or that they were wrong. Defense counsel, arguing that Portnow had testified to the ultimate issues in the case, moved for a mistrial. In the alternative, defense counsel asked the court to instruct the jury to disregard Portnow’s entire testimony. The trial court agreed that Portnow had usurped the jury’s function by giving an opinion of defendant’s guilt. However, the court denied the motions and concluded that the curative instruction sufficiently remedied the admission of improper expert testimony. The trial court noted that the jurors had understood the instruction, and the court had observed several jurors nod their heads in assent to the cautionary instruction.

In the guilt-phase charge, the court gave a general expert-testimony instruction. The court also gave an additional cautionary instruction regarding Portnow’s testimony:

Now, one of the doctors, Doctor Portnow, gave you some testimony that seemed to indicate his opinion as to the guilt or innocence of the accused. Those answers were inappropriate and improper, and I so told you at the time that he made these statements.

As stated earlier, an expert witness may not express a direct opinion on the defendant’s guilt or innocence. Odom, supra, 116 N.J. at 77, 560 A.2d 1198. Moreover, it is impermissible for an expert to express his or her opinion “in such a way as to emphasize that the expert believes the defendant is guilty of the crime charged under the statute.” Id. at 80, 560 A.2d 1198. However, “as long as the expert does not express his opinion of defendant’s guilt but simply characterizes defendant’s conduct based on the facts in evidence in light of his specialized knowledge, the opinion is not objectionable even though it embraces ultimate issues that the jury must decide.” Id. at 79, 560 A.2d 1198.

An expert witness also may not comment ón a witness’s credibility. Jamerson, supra, 153 N.J. at 341, 708 A.2d 1183. Credibility judgments come within the jury’s province. Ibid. “There is simply no scientific foundation for an expert’s evaluation of the credibility of a witness or the conclusion that a psychologist or other social scientist has some particular ability to ferret out truthful from deceitful testimony.” State v. J.Q., 252 N.J.Super. 11, 40, 599 A.2d 172 (App.Div.1991), aff'd, 130 N.J. 554, 617 A.2d 1196 (1993).

A portion of Portnow’s expert testimony was thus improper. Portnow twice exceeded the limits of permissible expert testimony by commenting on his opinion of defendant’s guilt. In one instance, Portnow testified that defendant, to evade police officers who had questioned him, “broke into and entered the home of the deceased and hid there. When Mrs. Place happened upon him and he realized that she would call the police, he killed her and sexually assaulted her before stealing her credit cards and car keys.” This statement represents Portnow’s direct opinion that defendant was guilty of the crimes of which he was charged. In another instance, Portnow again, albeit less explicitly, as much as accused defendant of committing a purposeful murder — “... just because you’re schizophrenic doesn’t mean you have the right to go out and kill someone and the type of activities as I have it recorded here.”

The trial court, however, issued a curative instruction immediately after that statement, telling the jury that it, not Portnow, would decide whether defendant is guilty of any of the crimes charged. The trial court repeated a similar instruction during the guilt-phase charge, in which the court told the jury that Portnow’s testimony regarding defendant’s guilt was improper. The court also stressed that Portnow could testify only to defendant’s psychiatric condition and state of mind.

Although the bulk of Portnow’s testimony was permissible, the testimony in which he directly commented on his belief in defendant’s guilt was improper. However, the trial court’s curative instructions given immediately after Portnow’s statements and at the guilt-phase charge were sufficient to remedy Portnow’s improper testimony. State v. Winter, 96 N.J. 640, 477 A.2d 323 (1984); see also State v. Timmendequas, 161 N.J. 515, 580, 737 A.2d 55 (1999)(holding curative instruction ameliorated prejudice from witness’s emotional outburst). We therefore hold that the testimony did not create reversible error.

3. ADMISSIBILITY OF EVIDENCE OF LAWSUIT FILED BY THE VICTIM’S DAUGHTER

Defendant claims that the trial court erred in denying counsel the right to cross-examine Sandra Nutbrown⁴, the victim’s daughter, concerning the basis of her civil lawsuit against defendant and his doctors. In that lawsuit, she alleged that defendant was a dangerously ill person, and that his physicians had negligently failed to protect others such as Mrs. Place from his condition. The trial court correctly excluded this line of questioning because the witness’ lawsuit did not affect her credibility on the matters to which she testified. In the penalty phase of the trial, such evidence would have been relevant if its purpose was to establish that defendant did in fact suffer from a mental disorder. Nutbrown, however, lacked the expertise to offer such an opinion. If she possessed expert opinion evidence to that effect, the evidence would have been admissible, if properly presented. Because that type of evidence was not present, we hold that the trial court did not err denying defense counsel’s questions concerning the legal theories of Nutbrown’s civil lawsuit. Recall that in State v. Nelson, 155 N.J. 487, 520-21, 715 A.2d 281 (1998), the claimant alleging police misconduct that was relevant in the penalty phase did possess the expertise to make the allegations.

4. OTHER GUILT PHASE ISSUES

Defendant claims that the prosecutor committed misconduct during his summation because his allegation that defendant threw Mrs. Place down the steps was not supported by the evidence. The prosecutor made the following assertions:

And this all happens at the top of the stairs, not the bottom of the stairs.

And it shows beyond a reasonable doubt that this confrontation took place in the hallway at the top of the stairs. Look at the pictures. The button is found there. The button cover is found there. The earring is found there. The skirt is in the closet. The scissors are up there that did the cutting, the straight scissors. And you’ll see them.

This is all purposeful conduct at the top of the stairs by a person who is not insane, who has not diminished capacity, but somebody who has a goal. Does it have to make sense? Does the state have to prove motive? No. The judge will tell you we don’t have to because we can’t figure it all out, but it wasn’t a result of somebody falling down the stairs.

This attack, this assault, this homicide took place upstairs in the hall. And why did the state say that? Because that is what Dr. Shuster basically said. He said in his report, and he still said it, that that broken neck was not a mechanism of death. She could have lived with that.

At trial, defense counsel did not object to any portion of the State’s summation.

Defendant now argues that the prosecutor misrepresented the evidence in the ease and made baseless accusations against him. According to defendant, the forensic pathology evidence unequivocally showed that Mrs. Place was alive when she fell down the stairs. Further, defendant claims that the prosecutor had no evidentiary basis from which to allege that defendant fatally strangled Mrs. Place and threw her body down the steps. The prosecutor’s accusation that defendant beat Mrs. Place prior to strangling her was therefore “pure fabrication.” Finally, defendant argues that the prosecutor’s allegation that defendant propped open the door with a broom so that he could throw Mrs. Place down the steps was not supported by the evidence.

“[P]roseeutors in criminal cases are expected to make vigorous and forceful closing arguments to juries.” State v. Frost, 158 N.J. 76, 82, 727 A.2d 1 (1999). Prosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct was so egregious that it deprived defendant of a fair trial. Timmendequas, supra, 161 N.J. at 575, 737 A.2d 55; Ramseur, supra, 106 N.J. at 322, 524 A.2d 188. “To justify reversal, the prosecutor’s conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant’s fundamental right to have a jury fairly evaluate the merits of his defense.” Timmendequas, supra, 161 N.J. at 575, 737 A.2d 55 (internal quotations omitted).

A prosecutor’s theory of the case will constitute prosecutorial misconduct if it draws unreasonable inferences from the evidence adduced at trial. The prosecutor’s comments, however, contained reasonable inferences from the record. It was reasonable to infer that defendant assaulted Mrs. Place at the beginning of their encounter. There was physical evidence of a struggle on the ground floor of Mrs. Place’s home. Mrs. Place’s earring and two buttons from her sweater were found there. Several articles of her clothing and the scissors that defendant utilized to cut Mrs. Place’s clothes were also found on that floor. The cuts in Mrs. Place’s clothes were straight, suggesting that Mrs. Place was not conscious when defendant removed her clothing.

The prosecutor also reasonably inferred that defendant fatally strangled Mrs. Place on the first floor. Both Shuster and the defendant’s expert listed manual strangulation as possible causes of Mrs. Place’s death.⁵ Furthermore, the prosecutor’s allegation that defendant threw Mrs. Place down the basement stairs derived from the evidence. Defendant’s misbehavior that evening gave the prosecutor reason to believe that defendant did not accidentally allow Mrs. Place to fall down her basement steps. Finally, we believe that it was reasonable for the prosecutor to invite the jury to infer that defendant used the broom to prop open the basement door.

Therefore, we conclude that the prosecutor offered reasonable inferences drawn from the evidence presented and did not commit any misconduct during the guilt-phase of this trial.

IV.

Penalty Phase Issues

1. RETENTION OF JUROR WHO OVERHEARD EXTRANEOUS INFORMATION REGARDING DEFENDANT

After conviction, defense counsel moved to dismiss the jury and empanel a new jury to decide sentencing. Defense counsel argued that the media reports about the trial mentioned defendant’s pending separate charge for aggravated sexual assault about which no evidence had been presented during the guilt phase. The trial court did not find that good cause existed to empanel a new jury but did agree to individually voir dire the jurors to ask if any of the jurors had read the articles or discussed them with friends or family.

During the process of questioning the jurors, one juror reported that he had overheard co-workers discussing a murder case in Middlesex County that may have involved defendant. The conversation took place four days after the jury convicted defendant of capital murder. The court asked if that conversation would affect his “ability to be fair, to be impartial” and the juror responded that it would not.

Where the court concludes there is a realistic possibility that information with the capacity to prejudice defendant’s right to a fair trial may have reached members of jury, it should conduct a voir dire to determine whether any exposure has occurred. If there is any indication of such exposure or knowledge of extra-judicial information, the court should question those jurors individually in order to determine precisely what was learned, and establish whether they are capable of fulfilling their duty to judge the facts in an impartial and unbiased manner, based strictly on the evidence presented in court.

[Bey II, supra, 112 N.J. at 86-87, 548 A.2d 846.]

The trial court promptly corrected the juror’s misperception that another murder charge against defendant existed. The court emphatically told the juror that defendant had never been accused of committing another murder and that defendant was not the subject of the conversation that the juror had overheard. Once the court established that the juror could remain fair and impartial, no further questioning by the attorneys transpired.

The trial court’s conclusion that it did not have good cause to remove the juror from the jury has support in the record; thus, the court did not abuse its discretion by retaining the juror on the jury.

2. SUBMISSION OF N.J.SA. 2C:ll-3c(4)(f) (ESCAPE DETECTION) AGGRAVATING FACTOR

At the penalty phase, the State had sought to establish the c(4)(f) escape detection and c(4)(g) felony murder aggravating factors. On the evening of the murder, the police sought to arrest defendant for an unrelated sexual assault, but he managed to flee from his home before the officers could handcuff him. The trial court precluded the State from attempting to prove the escape-detection factor under the theory that defendant murdered Mrs. Place to avoid apprehension for the unrelated sexual assault. Consequently, the State alleged that defendant murdered Mrs. Place to avoid apprehension for the crimes he had committed within Mrs. Place’s house, including burglary, robbery, theft, and aggravated sexual contact. Five of the twelve jurors found the e(4)(f) aggravating factor.

“The key to finding factor c(4)(f) is that the defendant intended to eliminate a potential witness to his crimes.” State v. Martini, 131 N.J. 176, 280, 619 A.2d 1208 (1993) {Martini I). Therefore,

aggravating factor c(4)(f) may be submitted to the jury when the State has produced sufficient evidence on which a jury can reasonably conclude that at least one of the motives of the defendant in killing his or her victim was to eliminate a witness or avoid subsequent apprehension and prosecution for criminal acts.

[Id. at 282-83, 619 A.2d 1208.]

We believe that the State’s circumstantial evidence of defendant’s motive was sufficient to submit the c(4)(f) aggravating factor to the jury. Based on the facts presented at trial, a rational factfinder could have reasonably inferred that one of defendant’s motives for murdering Mrs. Place was to escape detection for the burglary of Mrs. Place’s home or other crimes committed within her house. See State v. Harvey, 151 N.J. 117, 225-26, 699 A.2d 596 (1997)(Harvey II)(holding State presented sufficient circumstantial evidence to support escape-detection factor in residential-burglary-murder) .

Defendant also contends that the escape-detection aggravating factor aggravating factor is unconstitutionally vague or overbroad in that the factor impermissibly duplicates the felony-murder factor. The Court has previously rejected a similar impermissible-duplication claim. Id. at 224-26, 699 A.2d 596.

Moreover, “when essentially the same evidence is used to support both the c(4)(f) and c(4)(g) aggravating factors,” the trial court must instruct the jury not to double count evidence. State v. Hightower, 146 N.J. 239, 268, 680 A.2d 649 (1996)(Hightower II). The double-counting charge, which the trial court gave in this ease, tempers the potential prejudice stemming from the use of overlapping evidence to support the escape-detection and felony-murder aggravating factors.

In any event, only five of the twelve jurors found the e(4)(f) aggravating factor. “Even if the trial court’s submission of aggravating factor (f) was in error, the error would have been harmless because the jury did not find aggravating factor (f) unanimously.” DiFrisco II, supra, 137 N.J. at 502, 645 A.2d 734.

3. PROPRIETY OF ULTIMATE-OUTCOME CHARGE

Defendant asserts that the trial court improperly instructed the jurors not to be concerned “as to whether this defendant, Mr. Papasawas, will ever be released from prison.” Defendant complains that the court’s instruction violated his Eighth Amendment right to present mitigating evidence, infringed his due process right to rebut the State’s arguments, and conflicted with this Court’s holding in Nelson, supra, 155 N.J. at 505, 715 A.2d 281. Although the jury was instructed not to consider such information, defense counsel emphasized that defendant will spend the remainder of his life in prison regardless of the jury’s sentencing decision during her opening statement and summation.

In Nelson, id. at 501-05, 715 A.2d 281, this Court determined that the trial court’s ultimate-outcome charge that instructed the jury not to consider in its sentencing decision the likelihood that the defendant would receive consecutive sentences on the two murders she committed, was not reversible error because the jury was fully aware of the consequences of its decision, specifically a choice between death and life in prison.

When a jury is choosing between life and death, it should not be misled into treating the case as one that it is not. The jury should not be told that in choosing between life and death it may not consider the fact that a forty-year-old defendant is likely to spend the next sixty years in prison if its verdict is life. Such an instruction would conflict with our Ramseur holding and impermissibly “hide from the jury the full range of its sentencing options.”

In future cases, courts should explain to jurors what we mean when we say that the length of the possible sentences other than death should not influence the jury's determination concerning the appropriateness of a death sentence on a murder count.

[Id at 505, 715 A.2d 281 (quoting Ramseur, supra, 106 N.J. at 311, 524 A.2d 188).]

Although the trial court’s ultimate-outcome charge in this case did not precisely follow the charge suggested in Nelson, the charge conveyed to the jury that it was to decide between a death sentence and a life sentence with a minimum of thirty years of parole ineligibility. Moreover, defense counsel was given the freedom to argue that defendant would never be released from prison if the jury did not sentence him to die.

This case was tried shortly after our decision in Nelson, but counsel did not specifically request the Nelson charge. In Nelson, we concluded that prospective jurors should not be told to disregard the fact that a defendant would spend the rest of his or her life in prison but should be told how that fact relates to deathworthiness. Id. at 505, 715 A.2d 281. We held that the prior charge would not be reversible error if the jury was fully informed of the consequences of its decision. The charge in this case was similar to the charge given in Nelson. Id. at 502, 715 A.2d 281.

Defendant also complains that the trial court provided the jury with inconsistent and inaccurate information about the minimum terms that defendant would receive as an alternative to a death sentence. Initially, the. court told the jury that the alternative to death would be life imprisonment without the possibility of parole for sixty-three and three-quarter years.⁶ During the trial, however, the court stated that the minimum term as an alternative to death would be thirty years. Although the court’s preliminary instruction was not the same as its final, it did not constitute prejudicial error. The court cautioned the jury in the preliminary instruction that the number of years of parole eligibility might be different in his final charge, and that the court’s final charge as well as the verdict sheet stated that the parole disqualifier for a life-sentenced purposeful-or-knowing murder was thirty years. There is no evidence that the jury was confused about the period of parole ineligibility. The court’s instructions were not so inconsistent that the jury would not have accepted as accurate the thirty-year figure that the court later gave during the voir dire and penalty-phase charge and listed on the verdict sheet.

4. ALLEGED PROSECUTORIAL MISCONDUCT AT PENALTY-PHASE SUMMATION

In reviewing capital prosecutions, we continue to be dismayed by the frequency of prosecutor’s comments that lay “beyond the bounds of propriety.” State v. Marshall, 123 N.J. 1, 160, 586 A.2d 85 (1991)(Marshall I). In Marshall I, for example, the prosecutor stated that “that there [was] a place in hell for [the defendant].” Id. at 159, 586 A.2d 85. In Timmendequas, supra, the prosecutor referred to the defendant as the “village pervert.” 161 N.J. at 583, 737 A.2d 55. In State v. Rose, the prosecutor referred to inadmissible evidence and information “not based on any evidence adduced at trial,” and “on two occasions ... the prosecutor’s argument constituted an inaccurate assertion to the jury that ‘the law1 mandated the death penalty for [the] defendant.” 112 N.J. 454, 522, 548 A.2d 1058 (1988). In Moore, supra, “the prosecutor encouraged imposition of a death sentence by focusing on extraneous matters, namely, noting a general need to protect society, implying that justice mandated a death sentence for a double murder, and characterizing [an] expert witness ... as a ‘professional bleeding heart who was indeed duped by the defendant.’ ” 122 N.J. at 461-62, 585 A.2d 864. On remand, this Court “caution[ed] against comments such as the accusation that the defense realized that the defense of insanity was meritless,” noting that such comments were “clearly an improper expression of the prosecutor’s own conclusion.” Ibid.

In this case, defendant complains of several instances of prose-cutorial misconduct. First, the prosecutor made several refer-enees to the relative weights of the aggravating and mitigating factors without accurately stating the burdens of proof. He argued:

[I]f you find the aggravating do outweigh the mitigating, then the verdict is death. And if you find that the mitigating outweigh the aggravating or you can’t agree, then the verdict is life imprisonment.

[Defense counsel] said she is not going to try to convince all of you. Well, the state has to convince all of you ...

Defense counsel objected to this as a misstatement of the law. The court replied: “Beyond a reasonable doubt. You left out beyond a reasonable doubt. Aggravating factors outweigh ...” The prosecutor then assured the court that he had not finished his sentence and told the jurors that the State had to convince all of them beyond a reasonable doubt. Later in the closing argument, the prosecutor asserted repeatedly that the mitigating factors did not outweigh the aggravating factors. Defense counsel asked the court to charge the jury that the prosecutor had misstated the law. The court agreed to instruct the jury very strongly that the aggravating factors must outweigh the mitigating factors. The court properly charged the jury with respect to the State’s burden of proof and specifically instructed the jury that it must follow the court’s instructions, accept and apply the law as stated by the court, and disregard counsel’s statements regarding the law if they conflicted with the court’s instructions.

Second, the prosecutor told the jury several times during summation that it had to decide the case without an appeal to its emotions and that the State could not make an emotional claim on behalf of the victim’s family. Although defense counsel did not object to these remarks, the court nevertheless instructed the jury that it must “decide this case on the evidence without reference to conjecture and without any sympathy except such sympathy as any mitigating factor may inspire.”

The prosecutor also inferred that he had personal knowledge of the relevant facts when he commented on one of defendant’s mitigating factors under N.J.S.A. 2C:ll-3c(5)(h), the catch-all mitigating factor, that defendant’s school system classified him as emotionally disturbed. The prosecutor asserted:

I would suggest to you a lot of kids get that tag and they start these home study teams and Juvenile Intervention Bureau, and they have all kinds of things now to help kids get straightened out. So that they don’t end up in a courtroom like this.

Finally, the prosecutor’s comments on the physical abuse that defendant received as a child, comparing it to common corporal punishment, present perhaps the most troubling issue in the ease.

This Court has repeatedly expressed concern for “prosecutorial propriety. We have said time and again that ‘because the prosecutor represents the government and people of the State, it is reasonable to say that jurors have confidence that he will fairly fulfill his duty to see that justice is done whether by conviction of the guilty or acquittal of the innocent.’ His comments during opening and closing carry the full authority of the State. Hence, we cannot sit idly by and condone prosecutorial excesses.”

[Frost, supra, 158 N.J. at 87-88, 727 A.2d 1 (quoting State v. Spano, 64 N.J. 566, 568, 319 A.2d 217 (1974) (citations omitted)).]

Specifically, the prosecutor implied that his own childhood upbringing was not markedly different from defendant’s childhood experiences. During summation, the prosecutor stated:

I would suggest to you there should be no doubt in your mind that Mr. Papasawas administered corporal punishment to his kids.

I would guess that probably some of you, I mean it’s not in vogue anymore since Dr. Spock hit the scene, but I would suggest some of us are probably old enough, I know I am, to remember corporal punishment. My mom had a switch. She would get one of those switches and I hopped to it right away. I didn’t like those switches, and I got those switches a long time. And I had ftiends who father’s got on them with belts and things.

Well, I’ve already suggested to you the corporal punishment, sure that should upset you and there is no question that kids get a lot of corporal punishment and had a little different attitude towards life than somebody [whose] parents never lay a hand on them. There is no question. My mother gave me that switch and I didn’t like it, and it hurt. And I really didn’t get that stopped until I was like thirteen years old. But the kids whose fathers whacked them more than my mom whacked me around, they were a little less apt to get in trouble than I was, usually because they didn’t want to go home and get it from their old man. I mean I didn’t want to go home and get that switch, but spare the rod, spoil the child, that book by Spock.

So, you know, that’s there. But does that mean that this whole psyche or this, his, his whole psyche, or his whole life changed to the extent that it mitigates a whole lot what we are talking about here, the aggravating factors? I would suggest not.

There is a world of difference between a strict upbringing that the prosecutor experienced and an abusive upbringing in which a small child is chained to a post in the basement and beaten by his father.

The aggregate effect of the prosecutor’s misconduct on defendant’s ability to receive a fair trial in this case must be carefully considered.

The standard for reversal based upon prosecutorial misconduct is well-settled in the law. It requires an evaluation of the severity of the misconduct and its prejudicial effect on the defendant’s right to a fair trial. We long have held that prosecutorial misconduct is not grounds for reversal of a criminal conviction unless the conduct was so egregious as to deprive defendant of a fair trial. The “fair trial” test applies to alleged prosecutorial misconduct in both the guilt, and penalty phases of a capital trial.

To justify reversal, the prosecutor’s conduct must have been “clearly and unmistakably improper,” and must have substantially prejudiced defendant’s fundamental right to have a jury fairly evaluate the merits of his defense. In determining whether the prosecutor’s comments were sufficiently egregious to deny defendant a fair trial, we consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred. Specifically, the Court should 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.”

Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. Failure to object also deprives the court of the opportunity to take curative action.

Even if defense counsel fails to object, “[a] prosecutor’s remarks and actions must at all times be consistent with his or her duty to ensure that justice is achieved.” Absolute adherence to this duty is stringently compelled in capital cases where the penalty is death.

[Timmendequas, supra, 161 N.J. at 575-76, 737 A.2d 55 (citations omitted).]

Although the Court considers especially offensive the prosecutor’s allusions to his own upbringing, the comments were not so prejudicial as to deny defendant a fair trial. Defense counsel did not object to the prosecutor’s statements.

Because defense counsel did not object to any of the prosecutor’s opening remarks, or to many other remarks now claimed to constitute prosecutorial misconduct, defendant must demonstrate plain error to prevail. Plain error is “error possessing a clear capacity to bring about an unjust result and which substantially prejudiced the defendant’s fundamental right to have the jury fairly evaluate the merits of his defense.”

[Id. at 576-77, 737 A.2d 55 (citations omitted).]

In addition, the prosecutor’s comparison of corporal punishment to the abuse defendant received at the hands of his father was so untenable that it is improbable that any juror believed that the abuse defendant suffered was beneficial.

“After carefully examining the record and recognizing that some of the prosecutor’s remarks were improper, nonetheless, we are fully satisfied ‘that it was the weight of the evidence ... that led to this capital murder conviction rather than the prosecutor’s improper comments.” Id. at 596, 737 A.2d 55 (quoting State v. Feaster, 156 N.J. 1, 63-64, 716 A..2d 395 (1998)).

V.

Other Issues

For completeness of the record, we note and preserve defendant’s challenge to the constitutionality of the Death Penalty Act and the proportionality of his death sentence. Defendant argues that the statute fails to define narrowly the class of death-eligible persons and fails to provide a system of meaningful appellate review. Defendant first asserts that since this Court’s decision in Ramseur, supra, the Legislature and the Court have created new aggravating factors and broadened the scope of existing factors under the death-penalty statute, thereby rendering the statute unconstitutional. In addition, defendant contends that the system of appellate review has eroded, given that the Legislature has limited the right to proportionality review and the Court has affirmed death sentences even though finding numerous instances of trial error.

We disagree with defendant’s assertion that the recent amendments and interpretations of the death-penalty statute has rendered it unconstitutional. We continue to “hold that the Act is constitutional under the Eighth Amendment to the federal Constitution. We conclude, furthermore, that the Act is valid under [Article 1, paragraph 12 of] the New Jersey Constitution.” Ramseur, supra, 106 N.J. at 190, 524 A.2d 188.

Because this appeal and other appeals that arose before our decision in In re Proportionality Review Project, 161 N.J. 71, 735 A.2d 528 (1999), proportionality review will take place in later proceedings. In the future, proportionality review will be consolidated rather than take place in a separate proceeding.

Defendant also challenges the imposition of the non-capital sentences as illegal, excessive, and confusing. Defendant received five extended term sentences. Defendant argues, and the State agrees, that the imposition of extended terms on all counts was unlawful and that this Court should remand the case for resentencing of the noncapital counts. Pursuant to the pertinent sections of the extended-term statute, the extended term is discretionary, not mandatory, and does not apply to fourth-degree crimes. State v. Martin, 110 N.J. 10, 16, 538 A.2d 1229 (1988); N.J.S.A. 2C:44-5a(2). In addition, a court may impose only one extended term on one sentencing occasion. State v. Pennington, 154 N.J. 344, 360-61, 712 A.2d 1133 (1998); N.J.S.A. 2C:44-5a(2). Defendant’s noncapital sentences are vacated and remanded for resentencing.

Defendant also challenges the consecutive features of the non-capital sentences. Specifically, defendant alleges that the court imposed the consecutive burglary sentence in violation of the guidelines set forth in State v. Yarbough, 100 N.J. 627, 643-44, 498 A.2d 1239 (1985). Defendant contends that the trial court could not have found that the capital murder and the burglary were crimes involving “separate acts of violence or threats of violence” or “were predominantly independent of each other,” id. at 644, 498 A.2d 1239, because the jury found that the sole aggravating factor used to impose the death penalty was the fact that the killing had taken place during the commission of a burglary and robbery.

Finally, defendant contends that the court failed to give a statement of the actual time defendant would have to serve before being eligible for parole on the non-capital counts and that there are inconsistencies between the sentencing transcripts and the judgment of conviction. These issues should be resolved at the required resentencing on the non-capital convictions.

VI.

The State’s Cross-Appeal Claims

In a cross-appeal, the State challenged the trial court’s refusal to permit it to introduce victim-impact evidence, and conversely its permission to defendant’s family to plead for his life.⁷ Defendant’s counsel responded that they had “scrupulously avoided” introducing any evidence of defendant’s character, therefore rendering the State’s victim-impact testimony inadmissible. Instead, they claim that they simply presented testimony of how he was abused as a child and evidence of his mental and emotional disturbance, without asserting that he had a good character or a good record.

In capital sentencing each juror must individually determine whether each mitigating factor exists, and then individually decide whether the aggravating factors outweigh the mitigating factors beyond a reasonable doubt. Bey II, supra, 112 N.J. at 161, 548 A.2d 887. The death penalty is imposed only if the jurors unanimously agree that the aggravating factors outweigh the mitigating factors. Ibid. One mitigating factor, N.J.S.A 2C:11-3c(5)(h), is defined as “[a]ny other factor which is relevant to the defendant’s character or record or to the circumstances of the offense.” Essentially, section 5(h) is a catch-all factor of defendant’s mitigating evidence not encompassed in the other defined factors. The victim-impact statute, N.J.S.A. 2C:11-3c(6), provides that if the defendant presents evidence of his character or record pursuant to section 5(h), the State may present evidence of the murder victim’s character and background and of the impact of the murder on the victim’s survivors. The statute then directs the trial court to inform the jury that if the jury finds that the State has proven at least one aggravating factor beyond a reasonable doubt and the jury finds evidence of a mitigating catch-all factor, then the jury may consider the victim impact evidence presented by the State in determining the appropriate weight to give the catch-all factor.

In State v. Muhammad, 145 N.J. 23, 678 A.2d 164 (1996), the Court upheld the constitutionality of the victim-impact statute and set forth procedures for its implementation.

As noted, the statute both authorizes and limits the use of victim-impact evidence. In this case, the evidence of defendant’s background primarily related to his defense under mitigating factor e(5)(d) that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as a result of mental disease or defect. Although in other circumstances, generalized reference to a troubled childhood might be within the scope of c(5)(h), given the emphasis on the nature of defendant’s condition as involving an organic brain defect, the trial court did not abuse it discretion in ruling that the victim-impact statute did not apply.

On the question of a brief plea for life, it was within the trial court’s discretion to allow defendant’s family members to make brief pleas for his life “[g]iven the impermissible inferences that might arise if a close relative did not plead for mercy while testifying.” Moore, supra, 122 N.J. at 478-80, 585 A.2d 864; see also, DiFrisco II, supra, 137 N.J. at 506-07, 645 A.2d 734 (“Although we may not agree with the trial court’s decision to prohibit defendant’s two siblings from asking the jury to have mercy on him, that decision was well within the bounds of the court’s discretion”).

VII.

We affirm defendant’s convictions. We also affirm his sentence of death. We remand the non-capital counts for resentencing.

1 For convenience, we omit the complete citations to the aggravating factors, N.J.S.A. 2C: 1 l-3c(4)(c),(f), and (g), and the complete citations to the related mitigating factors.

2 Defendant’s version of events was admitted into evidence through the testimony of Dr. Arnaldo Apolito, a psychiatrist who testified for the defense, and Dr. Stanley L. Portnow, a psychiatrist who testified for the State. Both psychiatrists had examined defendant. The testimony was admitted to show the basis for the experts’ opinions. It was not admissible to prove the truth of the matters asserted.

3 The State used two of its peremptory challenges to remove these jurors from the jury.

4 In Nutbrown's testimony, she authenticated photographs of Mrs. Place's bedroom. She also testified that Mrs. Place owned both the scissors, which were used to cut Mrs. Place's clothing, and the shoes, which were found in Mrs. Place's car in New York City.

5 Contrary to defendant’s argument in his presentation, Shuster did not rule out manual strangulation as a cause of death. Shuster said "the assault" was compounded by manual and ligature strangulation and then agreed that the “total assault plus strangulation" were the causes of death. Although the prosecutor in his opening statement told the jury that Shuster’s testimony would identify manual strangulation as the cause of death, he shortly thereafter accurately stated that Shuster would testify that strangulation and assault caused Mrs. Place’s death.

6 The court initially believed that the No Early Release Act, N.J.S.A. 2C:43-7.2, applied to this case. The No Early Release Act requires defendants to serve at least eighty-five percent of their sentences for convictions of violent crimes. Because defendant committed the crimes against Mrs. Place prior to the enactment date and effective date of the Act, the law cannot be applied to him.

7 The State also challenges the trial court’s ruling that precluded it from using the prior sexual assault (for which the police sought to arrest defendant) to establish the c(4)(f) escape-detection factor. That was a discretionary ruling based on a lack of any connection of that incident to Mrs. Place, a lack of notice, and the prejudicial effect of such evidence. We would not disturb that ruling.