State v. Papasavvas

LONG, J.,

dissenting.

This death sentence was imposed by a biased jury on tainted evidence. Because the majority holds otherwise, I dissent.

I

Death-qualification at the guilt phase of this trial impermissibly interfered with Pappasawas’ right to an impartial jury. I recognize that this Court has concluded otherwise under the federal and state constitutions. See State v. Hunt, 115 N.J. 330, 355-56 , 558 A.2d 1259 (1989); State v. Bey, 112 N.J. 123, 149-50 , 548 A.2d 887 (1988) (Bey II); State v. Ramseur, 106 N.J. 123, 248-54 , 524 A.2d 188 (1987). I feel compelled to state my view that the right to an impartial jury is entitled to broader protection under N.J. Const. art. I, ¶ 9, than under its federal counterpart, and that the state doctrine of fundamental fairness requires the right to an impartial jury to be even more carefully safeguarded when a life is at stake. Ramseur, supra, 106 N.J. at 433-34 , 524 A.2d 188 (Handler, J., dissenting); State v. Gilmore, 103 N.J. 508, 522 , 511 A.2d 1150 (1986).

I am further satisfied that jurors generally favoring the death penalty are more punitive than excludable jurors; they are “less likely to consider mercy, more likely to favor harsh punishment as a means of reducing crime, and more likely to believe in the strict enforcement of all laws no matter what the consequences.” See Robert Fitzgerald & Phoebe C. Ellsworth, Due Process vs. Crime *631 Control: Death-Qualification and Jury Attitudes, 8 Law & Hum. Behav. 31 (1984). 1

*632 Moreover, as explained by Justice Marshall, there is “overwhelming evidence that death qualified juries are substantially more likely to convict or to convict on more serious charges than juries on which unalterable opponents of capital punishment are permitted to serve.” Lockhart v. McCree, 476 U.S. 162, 184 , 106 S.Ct. 1758, 1771 , 90 L.Ed.2d 137 (1986) (Marshall, J., dissenting). As one commentator observed: “From a social scientist’s viewpoint the empirical question [whether death-qualified juries are biased against the defendant on the issue of guilt] has been conclusively answered.” R. Seltzer et al., The Effect of Death Qualification on the Propensity of Jurors to Convict: The Maryland Example, 29 How. L.J. 571 , 581 (1986); see also People v. Fields, 35 Cal.3d 329 , 197 Cal.Rptr. 803 , 673 P.2d 680, 709 (1983) (Bird, C.J., dissenting) (‘When an individual is accused of a noncapital crime ... the jurors who decide the question of guilt or innocence are drawn from virtually the entire population of fair and impartial, English-speaking adults in the community. However, when an individual’s life hangs in the balance, the state alters that jury pool. Excluded for all purposes is any adult who would not vote for a death sentence even though that person could fairly decide the question of guilt or innocence.”).

That empirical data is exacerbated by the troublesome fact that jurors excluded through death-qualification encompass a higher percentage of women and African-Americans than the remaining pool. Fields, supra, 197 Cal.Rptr. 803 , 673 P.2d at 711-12 (Bird, C.J., dissenting); see State v. Griffin, 251 Conn. 671 , 741 A.2d 913, 946 (1999) (Berdon, J., dissenting) (“[M]ore African-Americans and women are excluded because of their opposition to the death penalty despite their ability to serve impartially during the guilt phase.”); State v. Avery, 299 N.C. 126 , 261 S.E.2d 803, 814 (1980) (Exum, J., dissenting) (noting that opposition to capital punishment is “more pronounced” among women, non-whites, and college graduates; exclusion of those opposed to death penalty results in “systematic under-representation of black jurors”).

*633 Moreover, use of a death-qualified jury at the guilt phase “makes paramount the issue of the imposition of the death penalty itself, thus suggesting that the guilt of the defendant is a foregone conclusion---- One cannot read the transcript of a death-qualifying voir dire proceeding without a sense of impending doom.” Bey II, supra, 112 N.J. at 192 , 548 A.2d 887 (Handler, J., dissenting) (citing Craig Haney, On the Selection of Capital Juries: The Biasing Effect of the Death-Qualification Process, 8 Law & Hum. Behav. 121 (1984)). That combination of effects denies a capital defendant any hope that an impartial jury will decide his fate.

The only reason we have continued on the course of requiring death-qualification is the state’s purported interest in the prosecutorial convenience of a single-jury bifurcated trial. The Court has rooted its position on that issue on the United States Supreme Court decision in Lockhart, supra, 476 U.S. at 162 , 106 S.Ct. at 1758 , 90 L.Ed.2d at 137 . However, Justice Handler accurately distinguished Lockhart in Ramseur, supra, 106 N.J. at 432-33 , 524 A.2d 188 , and Bey II, supra, 112 N.J. at 191-95 , 548 A.2d 887 , as based on a different legislative scheme. Even if that were not the case, the truth is that the value of “prosecutorial convenience” is puny when weighed against a defendant’s interest in an impartial jury and the fundamental fairness guarantees of our constitution.

At the very least, I would adopt the conclusions expressed by Justice O’Hern in Ramseur, supra, 106 N.J. at 333 , 524 A.2d 188 (O’Hern, J., concurring), that death-qualification is inconsistent with New Jersey’s traditional sense of fairness and justice, and is a subject requiring our intervention — if not constitutionally, then in the exercise of judicial supervision over our criminal justice system. We need to develop an alternative that will “vindicate both the state’s interest in economical prosecution and a defendant’s right to a jury that has not been informed before deliberating on his guilt of a crime that they may have to consider executing him for it.” Bey II, supra, 112 N.J. at 198 , 548 A.2d 887 *634 (Handler, J., dissenting). That such alternatives are possible is clear. 2 -

II

The majority concedes that a series of errors occurred at Papasawas’ trial but characterizes them as harmless. In my view, the very notion of harmless error has no place in death penalty jurisprudence. Indeed, in State v. Bey, 112 N.J. 45, 106-19 , 548 A.2d 846 (1988) (Bey I) (Handler, J., concurring), Justice Handler discussed the need for an enhanced standard of appellate review in death penalty eases and rejected the contention that “harmless error” could be an adequate measure.

Because the capital sentencing decision is intrinsically a moral, rather than exclusively an evidentiary decision, harmless error is an inadequate standard in the context of a capital murder prosecution. This insight applies with equal force ... to the jury's guilt-phase determinations ... because the guilt-phase record is routinely moved into evidence as the foundation of the penalty-phase judgment, any distinction between the two phases disintegrates. A capital case is a prosecutorial continuum in which evidence moves without interruption or alteration from the trial of guilt to the imposition of sentence. A guilUphase determination in a capital case differs in kind, therefore, from a guilt determination in the normal criminal ease. To avoid the confusion that could easily arise, I believe that harmless error should be eschewed as a substantive standard of appellate review of error in death penalty cases. •

[Id. at 115-16, 548 A.2d 846 .]

*635 See also State v. Bey, 137 N.J. 334, 414-18 , 645 A.2d 685 (1994) (Bey IV) (Handler, J., dissenting) (finding that harmless error standard fails to account for complex value judgments made by jury in penalty phase; “harmless-error rulings cannot properly account for the effect those errors might have on the subsequent determination of the defendant’s sentence’s proportionality”); State v. Hightower, 120 N.J. 378, 427 , 577 A.2d 99 (1990) (High-tower I) (Handler, J., concurring and dissenting) (insisting that error in capital-murder case cannot “be assimilated under a traditional assessment of its prejudice as measured against the totality of the evidence”) (citations omitted).

Contrary to prior holdings of this Court, see Bey I, supra, 112 N.J. at 94-95, 548 A.2d 846 and State v. Marshall, 123 N.J. 1, 121 , 586 A.2d 85 (1991) (Marshall I), I would adopt a standard that would take into account both the moral considerations that pervade capital proceedings and the pragmatic vicissitudes of criminal justice administration.

The State should be required to show beyond a reasonable doubt, where the error is not of constitutional dimensions, that there was no realistic likelihood of prejudice affecting the jury’s deliberations arising from the error. Absent that demonstration, the error must lead to a reversal. Where the error is of constitutional dimension, however ... the substantive test must be further elevated____

The State shall be required to show that a constitutional error, whether arising in a pre-penalty phase of the prosecution or in the penalty phase itself, had “no effect” on the determination to impose the death sentence.

[Bey I, supra, 112 N.J. at 116, 548 A.2d 846 (Handler, J., concurring.) ]

Such a review contemplates first, a heightened scrutiny of the record, and second, an in-depth assessment, under the heightened standard, of all errors presented on appeal. Id. at 117-18, 548 A.2d 846 ; see State v. Koedatich, 112 N.J. 225, 344 , 548 A.2d 939 (1988) (Koedatich I) (Handler, J., dissenting). The “heightened scrutiny of the record, acting in combination with the stringent standard for reversibility, eliminates less protective tests for determining reversible error, such as ‘plain error’ and ‘harmless error.’ ” Bey I, supra, 112 N.J. at 118, 548 A.2d 846 (Handler, J., concurring). The benefit of that test is that

*636 it requires the appellate court to see the case as a whole. Thus, each error identified in the Court’s analysis of the record is critically evaluated in assessing prejudice both for its individual effect on deliberations and for its effect on the structure of the entire case.

[Ibid,]

See also Marshall I, supra, 123 N.J. at 253-56 , 586 A.2d 85 (Handler, J., dissenting) (criticizing majority for using “divide and discount the errors” tactics and arguing for application of more enhanced standard of review to capital eases).

Although that standard places a heavy burden on the State, the nature of the death penalty, which leaves no room for the error tolerable in other cases, requires “a level of error-free process that is commensurate with the criminal sanction of death.” Bey I, supra, 112 N.J. at 119, 548 A.2d 846 (Handler, J., concurring). The standard is “materially more protective, as a consequence of the severity of the penalty, than that applicable to the generality of criminal appeals.” Ibid. In short, I would not engage in a harmless error analysis in a capital murder ease. In any event, the errors that occurred at this trial were far from harmless.

Ill

Jury selection is one of the most crucial stages of a capital trial. “The purpose of voir dire is to ensure an impartial jury and a fair trial.” State v. Timmendequas, 161 N.J. 515, 599 , 737 A.2d 55 (1999). In fact, “[t]he securing and preservation of an impartial jury goes to the very essence of a fair trial.” State v. Williams, 93 N.J. 39, 60 , 459 A.2d 641 (1983) (Williams I); see, e.g., State v. Czachor, 82 N.J. 392, 401 , 413 A.2d 593 (1980) (declaring that right to impartial jury is “fundamental”). “The courts in this State have recognized that under the State Constitution [article I, paragraph 10], the right of a defendant to be tried by an impartial jury is of exceptional significance.” Williams I, supra, 93 N.J. at 60 , 459 A.2d 641 .

The fundamental right of trial by a fair and impartial jury is jealously guarded by the courts. The jury is an integral part of the court for the administration of justice and on elementary principles its verdict must be obedient to the court’s *637 charge based solely on legal evidence produced before it and entirely free from the taint of extraneous considerations and influences.

[Wright v. Bernstein, 23 N.J. 284, 294-95 , 129 A.2d 19 (1957).]

Thus, “the triers of fact must be as nearly impartial as the lot of humanity will admit.” Williams I, supra, 93 N.J. at 60 , 459 A.2d 641 (internal quotations omitted). This Court has “repeatedly stressed that the need for jury impartiality is heightened in cases in which the defendant faces death.” State v. Harris, 156 N.J. 122, 162 , 716 A.2d 458 (1998); see also Williams I, supra, 93 N.J. at 61-62 , 459 A.2d 641 (concluding constitutional right to impartial jury “is entitled to the most zealous protection in the context of a criminal prosecution in which the defendant faces the death penalty”).

A.

The process of voir dire is not an entirely random one in which the trial court is free to invent a new methodology as each ease arises. To be sure, tailoring is necessary but not out of whole cloth. There are fundamentals that have been established and that must be abided by in every case.

For example, the trial court must begin the voir dire in a capital case by outlining our death penalty law to the potential jurors. See State v. Williams, 113 N.J. 393 , 412 n. 5, 550 A.2d 1172 (1988) Williams II).

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.

[Ibid,.]

Giving prospective jurors an understandable definition of death-eligible murder is essential because “[i]n common parlance, murder and killing are interchangeable. Murder as used in the criminal-law system has a precise meaning, and capital murder is even more narrowly circumscribed.” State v. Biegenwald, 126 N.J. 1, 42 , 594 A.2d 172 (1991) (Biegenwald IV).

*638 In this case, the trial court neglected to define capital murder during voir dire. When giving initial instructions to the first of the two panels of the jury venire, the court said that the indictment charged Papasawas with “purposeful” or “knowing” murder “by his own conduct,” but did not further describe the meaning of those terms. When the second panel was called, the court did not even convey that much information. That panel was told only that Papasawas was charged with death-eligible murder. In other words, the court did not define capital murder in laypersons’ terms, or any other terms for that matter, to either panel of prospective jurors. Thus, the fundamental groundwork was not laid for further jurors’ responses.

Consequently, those responses were tainted by impermissible “misconceptions and faulty assumptions concerning how the law is administered in this state.” Williams II, supra, 113 N.J. at 412 n. 5, 550 A.2d 1172 . Indeed, potential jurors gave answers that indicated their misunderstanding of the law with respect to the death-eligibility of particular classes of homicides. For instance, it was not uncommon for prospective jurors to say during voir dire that they believed that “accidental murder” should not result in a death sentence. Of course, inadvertent homicides are not death-eligible in New Jersey.

The court exacerbated the effects of its failure to define death-eligible murder by typically neglecting to follow up on venireper-sons’ responses with a clarification that would alleviate their misunderstandings. The following excerpt from the voir dire of Stella Policare is an example:

THE COURT: Now, can you think of any eases where you would not impose the death penalty? That’s an unfair question. That is a very difficult question. I don’t know that — well, there may be someone.

JUROR POLICARE: If someone accidentally murder—

THE COURT: National news — huh?

JUROR POLICARE: I’m sorry. If someone accidentally murdered someone.

At that point, the court moved on to another subject:

THE COURT: Let me ask you this. Do you have any feelings at all, I don’t care how vague they are or that you might be more apt to not impose the death penalty *639 because you feel some religious compunction, you have some religious belief that militates against it?

JUROR POLICARE: No.

As can be seen from that exchange, the notion of accidental murder was allowed to float unchallenged throughout the voir dire process. The court’s questioning of Policare was typical. Out of the many potential jurors confused on that issue, it told only one that “there is no such thing as accidental murder.” That error had the effect of allowing a potential juror to present himself or herself as open-minded on the death penalty when, in fact, the only crimes for which he or she would not impose the death penalty were not death-eligible in the first place.

As a result, prospective jurors may well have misapprehended our death penalty law without having their misapprehensions come to light. Potential jurors may have said, based on an honest belief, that they could consider sentencing Papasawas to life imprisonment, when in fact, they only could consider a life sentence for homicides that are not actually death-eligible. Those prospective jurors, though appearing to be death-qualified, may not have been qualified to serve on a capital case.

B.

The absence of an understandable definition of capital murder was not the only deficiency in the voir dire. We have held that when a defendant is charged with both sexual assault and capital murder, it is imperative that the trial court ask the prospective jurors whether they could consider mitigating evidence during the penalty phase even if they convicted defendant of such abhorrent crimes. Biegenwald IV, supra, 126 N.J. at 31 , 594 A.2d 172 . Asking that question is crucial because “the brutality of a rape and murder could blind venirepersons in the performance of their duties as jurors.” Ibid. In Williams II, supra, 113 N.J. at 417 , 550 A.2d 1172 , we held 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 *640 counsel and the trial court the tools with which to insure that the jury panel could fairly undertake its role in this case.” We further concluded that merely asking each venireperson whether the fact that the defendant was charged with murder, aggravated sexual assault, robbery, and burglary would influence his or her sentencing decision was inadequate. Id. at 416-17 , 550 A.2d 1172 .

Despite our clear pronouncements in those cases, the trial court here only occasionally asked venirepersons if they could be impartial and consider mitigating evidence during the penalty phase if they convicted Papasawas of murder and aggravated sexual assault. Although defense counsel questioned several prospective jurors regarding their ability to be impartial if Papasawas was convicted of those separate crimes in the guilt phase, neither the defense attorneys nor the prosecutor queried the majority of potential jurors on that issue. The court’s questions to each prospective juror regarding whether he or she could be impartial despite the murder, aggravated sexual assault, and robbery charges against Papasawas were not a sufficient substitute. The failure to question most prospective jurors regarding the particular impact of convictions for aggravated sexual assault and purposeful or knowing murder constitutes harmful error. See Williams II, supra, 113 N.J. at 417 , 550 A.2d 1172 .

C.

In addition, I- believe the trial court committed reversible error by denying Papasawas’ challenges for cause of three prospective jurors. Although Papasawas peremptorily struck those jurors, the error was harmful because the jury that sat op Papasawas’ case was not impartial.

1.

The majority concedes that the trial court erred when it rejected Papasawas’ challenges of Bette Shampaner and Ira Leslie for cause. Ante at 584-85, 751 A.2d at 50. I agree that Shampaner and Leslie were not qualified and that Papasawas should not have *641 been required to use peremptory challenges to strike them. Unlike the majority, I also believe that Harry Applegate was not qualified to serve on Papasawas’ jury.

During defense counsel’s questioning, Applegate volunteered that, after due consideration, he was concerned about his ability to be impartial. The following exchange took place:

Q: Is there anything you think we haven’t asked you yet that you think would be important to us deciding whether or not you were going to sit on the jury?

A: One of the questions I thought about after leaving here last Tuesday, and I answered the questions on the survey as truthfully as I thought it was at the time simply because I didn’t relate it to my circumstance, and that was the age of the victim or age of someone being sixty-four. 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.

Q: Let me ask you this. Are you fearful that might somewhat impair your ability to be impartial in the case? I’m not asking you to predict the future, but sitting here now, do you think that’s a real possibility?

A: I can’t guarantee it wouldn’t be. I think it could be.

Q: I just ask you in all candor, can you tell us now you think probably that’s going to impact on the way you feel about things when you decide the case? I’m just asking for a candid response. I know you can’t predict the future, but don’t you think that may impact upon the way you see the case?

A: I think it, I believe it could possibly, yes, especially if, as one of the questions in the survey said, there’s photos of the victim or crime scene photos, I think I would relate her to it.

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

A: Probably.

Thus, four times Applegate reiterated his concern over his impartiality.

The prosecutor then expressed his incredulity at Applegate’s avowed position and attempted to get him to retract:

Q: You said obviously because of your mother you would relate to this. Are you telling us you realize from what the judge said that the state has to present evidence that convinces you beyond a reasonable doubt as to the defendant’s guilt or there isn’t any case, so are you telling us because of your mother-, you would sit here and because the victim might be that age and you may see pictures, are you telling us even though the state didn’t present enough proof to convict this defendant, you would convict him anyway just because he’s accused of a crime involving an old woman?

*642 Applegate recognized the clarion call for a negative response, and answered “no,” but immediately returned to his original misgivings about his impartiality:

A. I would think I would be able to fairly judge, but I think that, I don’t think I would be able to put that relationship clearly out.

Q. Okay. You can’t forget your life experience and the fact that you have a mother somewhat the age of the victim.

A. Eight.

Q. But you would be able to fairly judge in spite of your human experience?

A: I would think so.

Over Papasawas’ objection, the. court qualified Applegate.

The trial court must dismiss prospective jurors whose views on capital punishment would prevent or substantially impair the performance of their duties to follow the trial court’s instructions and obey the oath. State v. Simon, 161 N.J. 416, 465 , 737 A.2d 1 (1999). Conversely, a trial court should death-qualify potential jurors who would not be prevented or substantially impaired by their beliefs from performing their deliberative duties. See Ramseur, supra, 106 N.J. at 249 , 524 A.2d 188 .

The court must excuse potential jurors who say that they would automatically impose a death sentence if the defendant is convicted of capital murder, Williams II, supra, 113 N.J. at 438-41 , 550 A.2d 1172 , or who find it almost impossible to vote for life imprisonment, Bey II, 112 N.J. at 154, 548 A.2d 887 . In addition, venirepersons who will not consider and weigh mitigating evidence must be excluded for cause. Morgan v. Illinois, 504 U.S. 719, 729, 736 , 112 S.Ct. 2222, 2229-30, 2233-34 , 119 L.Ed.2d 492, 502-03, 507 (1992). Furthermore, the court must excuse a prospective juror with prejudices based on the age of the victim. See Timmendequas, supra, 161 N.J. at 601, 737 A.2d 55 (approving disqualification of potential jurors who indicated biases based on victim’s age); cf. State v. Marshall, 148 N.J. 89, 333 , 690 A.2d 1 (1997) (Marshall III) (Handler, J., dissenting) (noting voir dire must ensure jury not biased because of victim’s status).

Applegate’s expressed identification with the victim Mrs. Place, based on the similarity between her age and that of his mother, *643 reiterated five separate times, substantially impaired his ability to perform his duties as a juror. His comments regarding his bias based on the victim’s age were not fleeting; he raised the issue of the victim’s age himself and had thought about his potential prejudice for several days. It obviously troubled him. His answers to the prosecutor’s questions simply did not establish his impartiality. The prosecutor’s questioning “seemed calculated to draw out only such answers as would rehabilitate [him] as a juror,” Williams II, supra, 113 N.J. at 439 , 550 A.2d 1172 , and that was impermissible.

Moreover, Applegate never categorically stated that he could be impartial. In his most forceful assertion of his impartiality, dragged out of him by the prosecutor, he answered “I would think so.” Applegate raised clear and unequivocal reservations about his own bias based on the victim’s age five separate times; he did not, by stating that he ‘.“would think” he could fairly judge the evidence in the case, demonstrate that he was qualified to serve on Papasawas’ jury. Like Shampaner and Leslie, who the majority acknowledges were improperly seated, Applegate was not “as nearly impartial as the lot of humanity will admit.” Williams I, supra, 93 N.J. at 60-61 , 459 A.2d 641 (internal quotations omitted).

2.

We recently stated that the

erroneous failure to remove a juror for cause is reversible error if the defendant shows “(1) that the trial court erred by fading to remove a juror for cause; (2) that the juror in question was eliminated by the exercise of defendant’s peremptory challenge and that defendant exhausted his peremptory challenges; and (3) at least one of the remaining jurors that sat on the jury was a partial juror.”

[State v. Simon, 161 N.J. 416, 466 , 737 A.2d 1 (1999) (quoting State v. DiFrisco, 137 N.J. 434, 471 , 645 A.2d 734 (1994) (DiFrisco II), cert. denied, DiFrisco v. New Jersey, 516 U.S. 1129 , 116 S.Ct. 949 , 133 L.Ed.2d 873 (1996)).]

A defendant, of course, has a constitutional right to an impartial jury. See State v. Harvey, 151 N.J. 117, 210 , 699 A.2d 596 (1997) (Harvey II). The presence of a partial juror obviously violates that right. DiFrisco II, supra, 137 N.J. at 470-71, 645 A.2d 734 . *644 A necessary corollary is that the seating of a juror who is essentially an unknown quantity also violates defendant’s right to an impartial jury.

Because the trial court erred in failing to remove Shampaner, Leslie and Applegate for cause, and because Papasawas indisputably exhausted his peremptory challenges, his death sentence cannot be upheld unless an impartial jury sat on his case. In my opinion, the jury that decided Papasawas’ fate was not impartial and, thus, his sentence must be vacated.

The voir dire of Shilpaben Patel, one of the twelve jurors who convicted Papasawas and sentenced him to die, failed to establish that she was impartial. Patel had answered the jury questionnaire prior to the voir dire and expressed bias. The court asked her about her written response:

Q: Now, you stated in the questionnaire, that the fact the victim was 64 years of age, might or would impair your ability to be a fair juror? Is there any reason why that would impair your ability to be a fail- juror?

She answered:

A: I don’t know.

The following colloquy ensued:

Q: No?

A: I don’t know.

Q: Might that have been a mistake?

A: It could be.

Q: Is there anything about the age that bothers you?

A: I don’t know.

Q: You don’t know?

A: I don’t know.

Instead of pursuing that evasion, the court ceased questioning altogether about Patel’s attitudes pertaining to the victim’s age. No one else pursued that area.

Ultimately, the subject changed when one of the defense attorneys followed up on the court’s voir dire:

Q: Well, if you heard evidence, that Peter suffered brain damage, as a result of a bad motor vehicle accident, and that part of his brain, that controls behavior, was *645 damaged, would that be the kind of mitigating information, that might lead you to impose the life in prison as opposed to the execution?

A: I cannot decide right now.

Q: Would you consider it? Would you listen to the testimony regarding the mental damage?

A: Uh-hum.

Q: And then consider it, think about it? Or would you just dismiss it out of hand, and say, I don’t care, I don’t want to hear any of those mental defect reasons? His conduct led to the death of this woman, he should be put to death?

A: I have to listen. But I cannot just answer right away. I will think, you know.

Q: And consider the information that comes to you at that phase of the trial?

A: Uh-hum.

The other defense attorney subsequently supplemented his colleague’s questioning:

Q: If we get to the penalty phase ... the jury will have found he committed both the murder and the sexual assault of a 64-year-old woman, in her home, while he was in her home with no business being there.

Would that be the type of case where you might, if you made that finding, feel that death was definitely the appropriate punishment for such an individual.

A: I don’t know. I have to think. I cannot say right now what to do.

Despite Patel’s repeated evasive and noncommittal answers, the trial court qualified her.

It is important to understand that Patel’s “I don’t know” answers to the questions regarding her attitudes about the victim’s age do not indicate that she was impartial. Significantly, she never disavowed her answer in the questionnaire that directly stated that the victim’s age would impair her ability to be impartial. See Harris, supra, 156 N.J. at 164 , 716 A.2d 458 (excusing for cause prospective jurors who, on questionnaire, responded they were unsure if race would impact their verdict). Rather, when asked if that answer was a mistake, Patel replied, “It could be.” Her ambiguous answers regarding her biases based on the victim’s age left counsel and the trial court unable to evaluate Patel’s fitness to serve on the jury.

Patel gave additional problematic equivocal answers during her voir dire. When defense counsel asked her if evidence that Papasawas suffered brain damage that affected the part of his *646 brain that controls behavior might lead her to impose a life sentence, she answered, “I cannot decide right now.” After she said she would listen to the mitigating evidence, defense counsel asked if she would dismiss that evidence out of hand and sentence Papasawas to death. She reiterated that she would listen to the evidence and replied, “But I cannot just answer right away.” When the other defense attorney asked Patel if she felt that death was definitely the appropriate punishment for the alleged crime, Patel responded, “I don’t know. I have to think. I cannot say right now what to do.”

The majority concludes that Patel’s answers indicate her open-mindedness. Ante at 598, 751 A.2d at 58. Not so. Defense counsel asked Patel whether she was capable of imposing a life sentence, not whether she would do so. It is only the latter question to which, “I cannot decide right now” would have been an appropriate answer. See Witherspoon v. Illinois, 391 U.S. 510 , 522 n. 21, 88 S.Ct. 1770 , 1777 n. 21, 20 L.Ed.2d 776 , 785 n. 21 (1968) (“[A] prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him.”). Defense counsel, however, asked Patel if she had an open mind — whether she might sentence Papasawas to life imprisonment. In order to be qualified to serve on a capital case, a prospective juror must answer that question in the affirmative. Being able and willing to consider fairly both a life sentence and a death sentence is a prerequisite for death-qualification. See Williams II, supra, 113 N.J. at 438-42 , 550 A.2d 1172 . By stating that she could not decide whether Papasavvas’ mitigating evidence might lead her to vote for a life sentence, Patel did not demonstrate her qualifications to serve on Papasavvas’ jury. Although she said that she would listen to and consider Papasawas’ mitigating evidence in the abstract, she never stated whether she had the capacity to sentence Papasawas to life imprisonment or whether she would sentence him to death regardless of the mitigating evidence.

*647 Thus, there is no evidence that Patel was an impartial juror. See Williams II, supra, 113 N.J. at 422 , 550 A.2d 1172 (“Despite the deference normally accorded the trial court in assessing the demeanor and responses of potential jurors, our reading of this admittedly cold record leaves us no choice but to find that insufficient information was elicited from [juror] to evaluate properly his fitness to serve. Our conclusion does not constitute second-guessing of the trial court’s determination, based on [juror’s] credibility, that the juror was ‘forthright, direct and clear,’ but rather constitutes a finding that the substance of the elicited information ... left both counsel and the trial court unable to evaluate [juror’s] fitness to serve on the jury.” (citation omitted)). Indeed, because of the equivocal nature of Patel’s responses, the situation was no different from one in which the court simply plucked a juror out of the array and allowed him or her to sit without inquiry. As that is interdicted, so is this.

Because the trial court erroneously rejected Papasawas’ foreause challenges of three prospective jurors who were not death-qualified, Papasawas exhausted his peremptory challenges; consequently, a juror who was not shown to be impartial sentenced him to death. Thus, I believe Papasawas’ death sentence must be reversed. See Biegenwald IV, supra, 126 N.J. at 43 , 594 A.2d 172 (mandating reversal of death sentence when jury may have included biased jurors).

3.

The trial court improperly denied Papasawas two peremptory challenges by granting an extra challenge to the State without proportionally increasing the number of his challenges. In murder cases, - “the defendant shall be entitled to 20 peremptory challenges ... and the State shall have 12 peremptory chal-lenges____ The trial judge shall have the discretionary authority to increase proportionally the number of peremptory challenges available to the defendant and the State.” R. 1:8 — 3(d). When the court used its discretionary authority to give the State an extra *648 peremptory strike, it became obliged to grant Papasawas two additional peremptory challenges. 3 It erred by not providing Papasawas with any supplemental strikes. 4 The majority concedes that error. However, it concludes that Papasawas was not prejudiced by the denial of his motion for an additional peremptory challenge. Ante at 604-05, 751 A.2d at 61. I disagree.

Although “a peremptory challenge is not a fundamental constitutional right,” DiFrisco II, supra, 137 N.J. at 479, 645 A.2d 734 , the court’s error in denying Papasawas the challenges to which he was entitled cannot be harmless. Papasawas exhausted his peremptory challenges and juror Patel sat on the jury though she had failed to establish her impartiality during the voir dire. Under the three-part test this Court enunciated in DiFrisco II , Papasavvas’ death sentence must be reversed. Id. at 471 , 645 A.2d 734 .

The majority supposes that the trial court would have granted Papasawas an additional peremptory challenge if he had “shown” that he needed it. I am not confident that the trial court, that obviously, though erroneously, thought jurors Applegate, Shampaner, and Leslie were qualified, would have had reason to grant Papasawas’ request for an additional peremptory challenge. Moreover, the majority misses the point when it suggests that the trial court would have granted another peremptory strike if defense “counsel had an abiding concern about the need.” Ante at 604, 751 A.2d at 61. Once the trial court granted the State an extra strike, Papasawas had an absolute right t'o two additional peremptory challenges and by conditioning the grant on a showing *649 of need, the court infringed that right. Although Rule 1:8 — 3(d) requires that a defendant receive twenty and the State twelve strikes, in reality Papasawas had seventeen and State had thirteen challenges.

The majority underestimates the prejudicial impact of the trial court’s error. The bottom line is that Papasawas did not have an impartial jury to determine his cause. Had the court given Papasawas the two additional peremptory challenges to which he was undoubtedly entitled, he could have struck Patel from the jury.

IV

The last witness to appear at trial was Dr. Stanley Portnow, a psychiatrist who also holds a law degree. He was called to rebut evidence that Papasawas was legally insane and suffered from a diminished capacity when he killed Mrs. Place. Much of Port-now’s testimony, which is set forth in some detail in the majority opinion, ante, at 610-13, 751 A.2d at 64-67, was inadmissible and overall it sufficiently prejudiced Papasawas’ case so as to require a new trial.

In order to appreciate how pernicious Portnow’s testimony was, the exact nature of Papasawas’ defense must be recalled. Papa-sawas claimed that when he tried to render Mrs. Place unconscious by putting her in a “sleeper hold,” she passed out and accidentally fell down the cellar stairs, breaking her neck. Thereafter, because Papasawas thought Mrs. Place might be feigning death, he gagged her with a belt. Still unsure of whether Mrs. Place was pretending, Papasawas took preparatory steps threatening to sexually assault her, hoping to trick her into acknowledging that she was awake. As slim a reed as that might have been, it was Papasawas’ only factual defense. In addition, the defense presented expert testimony regarding Papasawas’ severe organic brain damage, that (it claimed) rendered him incapable of acting purposefully or knowingly in his encounter with Mrs. Place; it also presented evidence of legal insanity.

*650 Portnow’s rambling monologue improperly attacked those defenses. He was allowed to assert again and again not that Papasawas had the capacity to act purposefully or knowingly, which was the point of his testimony and which would have been proper, but that Papasawas actually had acted purposefully the night that Mrs. Place died. Portnow was allowed to declare that he did not believe that Papasawas had been abused as a child. He was allowed to attack Papasawas’ overall credibility. Most egregious, he was allowed to attribute unsubstantiated but highly incriminating thoughts to Papasawas.

As a psychiatric expert, Portnow’s role was to contribute a scientific opinion on whether Papasawas was capable of forming the necessary mental state (purposeful or knowing) for capital murder, or whether he had a mental condition that prevented him from understanding the nature of his acts or distinguishing between right and wrong. Portnow fulfilled that role by stating that Papasawas did not suffer from diminished capacity to form purpose or intent, or from any type of mental condition that would deprive him of the capacity to know or appreciate the nature of his acts or to know that they were wrong.

He did not stop there, however, but proceeded to inject into the case his own personal opinions about what happened the night Mrs. Place died. Before Portnow took the stand, defense counsel asked the court to preclude him from repeating a statement that he had included in his report to the prosecutor that said:

When the deceased 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.

Defense counsel argued that that was an improper opinion on the ultimate issues of Papasawas’ guilt or innocence. The trial court overruled the objection but directed the prosecutor to rein in Portnow. Instead, Portnow was allowed to launch into a discourse including the objected to portion of his report verbatim; he prefaced it with his opinion that “Mr. Papasawas knew exactly what he was doing.”

*651 It was for the jurors — not Portnow — to decide, based on the competing evidence concerning his mental capacity, whether Papa-sawas “knew exactly what he was doing” when he killed Mrs. Place, that is, whether he killed her purposefully or knowingly. Instead, cloaked in expert garb, Portnow was allowed to proffer those ultimate opinions himself.

For example, when Portnow summarized the events of the night Mrs. Place was killed, he presumed to tell the jury exactly what was going on in Papasawas’ mind at each stage of the events. Although some of his testimony reflected information learned from his interview with Papasawas, other portions were at odds with that information. For example, he said that Papasawas cut Mrs. Place’s clothes with the “express purpose” of engaging in a sexual act with her. Moreover, he did not testify merely that Pappasav-vas had the capacity to act purposefully, but that he indeed acted that way:

This was a thought, goal-directed action____there was nothing impulsive.

Portnow then put words into Papasawas’ mouth

The woman can identify me, I’ll put her in a sleeper hold, throw her doum the steps if she is not already dead. This is not an organic impulsive acting out. People who have organic damage are still capable of premeditating crime, just like schizophrenics.

Amazingly, Portnow then added his own philosophy of criminal responsibility to the mix:

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.

At that point, defense counsel objected to Portnow giving a speech that was not responsive to any pending question. The court, who said that it had been “waiting” for counsel to object to the testimony, told the jurors not that Portnow’s testimony was outrageously beyond his capacity or expertise, but that it was their job, not Portnow’s, to decide if Papasawas was guilty:

Let me stop you for a minute now that I have an objection.

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 gentlemen 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 *652 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 can 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 Papasawas is guilty of anything. That’s what you’re going to decide. And I want to make sure that your 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 these charges.

After Portnow testified, defense counsel moved for a mistrial that was denied. Alternatively, he moved to have the jury disregard all of Portnow’s testimony except for portions that the defense might use in summation. Noting that Portnow was a lawyer as well as a medical doctor, counsel argued that the court could fairly presume that he knew that he was exceeding the bounds. That was also denied.

Portnow questioned Papasawas’ credibility, both directly and indirectly, and repeatedly stated that Papasawas had acted purposefully when he killed Mrs. Place; he plainly conveyed that he did not believe Papasawas’ account of events. He also represented that Papasawas had killed Mrs. Place to make sure she “never” reported him to the police, and that he threw her down the stairs to make sure she was dead — intentions that Papasawas never acknowledged having.

Insinuating that Papasawas lied when he gave him his background information, Portnow questioned Papasawas’ credibility by suggesting that he had not been abused as a child. Noting that Papasawas did not report having suffered “any broken bones or welts,” Portnow volunteered that the “discipline” imposed on him could not have been very severe because Papasawas had continued to act out. I note that that testimony underscored the prosecutor’s denigration of Papasawas’ past abuse that the majority recognizes as “especially offensive.” Ante at 625, 751 A.2d at 74.

Portnow also strayed far beyond proper bounds of expert testimony by presuming to tell the jury — purportedly as a psychiatric expert — exactly what Pappasawas was thinking at each stage of the fatal incident. First, he put Mrs. Place into a sleeper hold, because he “just wanted to be sure that she never reported *653 him to the police.” Second, he “decided” to throw her down the stairs to kill her if she was not already dead from strangulation:

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, thrown her down the steps if she is not already dead.

Those assertions had no basis whatsoever in either the records that Portnow had reviewed or his interviews with Papasawas. Papasawas said nothing of the sort. Yet, in the guise of expert opinion with its overlay of importance, Portnow was allowed to put into Papasawas’ mouth highly incriminating statements that the trial court left totally unchecked.

In short, Portnow’s testimony broke several fundamental rules governing expert evidence. The role of an expert witness is to contribute the insight of his speciality. In re Hyett, 61 N.J. 518, 533 , 296 A.2d 306 (1972). In that capacity, he “should distinguish between what he knows as an expert and what he may believe as a layman.” Ibid. He is not the ultimate trier of fact; that is the role of the jury. Moreover, “it is impermissible for ‘an expert’s opinion [to be] expressed in such a way as to emphasize that the expert believes the defendant is guilty of the crime charged under the statute.’” State v. Sharpless, 314 N.J.Super. 440, 455 , 715 A.2d 333 (App.Div.1998) (quoting State v. Odom, 116 N.J. 65, 80 , 560 A.2d 1198 (1989) (alteration in original)).

Portnow breached those principles by communicating his improper conclusion that Papasawas had acted purposefully on the given night, and by directly and indirectly commenting on Papasawas’ credibility and the defense theory — both of which were issues for the jury to decide. “It is not a medical function to weigh the truth of assertions or statements.” Hyett, supra, 61 N.J. at 533 , 296 A.2d 306 . Rather, credibility is “an issue which is peculiarly within the jury’s ken,” and a subject on which jurors ordinarily do not need expert help. State v. Jamerson, 153 N.J. 318, 341 , 708 A.2d 1183 (1998) (quoting State v. J.Q., 252 N.J.Super. 11, 39 , 599 A.2d 172 (App.Div.1991), aff'd, 130 N.J. 554 , 617 A.2d 1196 (1993)). In addition, there is no scientific basis “for the conclusion that a psychologist ... has some particular ability to *654 ferret out truthful from deceitful testimony.” J.Q., supra, 252 N.J.Super. at 40 , 599 A.2d 172 .

The majority concludes that the court’s instructions were appropriate remedial measures. Ante at 614, 751 A.2d at 67. I disagree. The first instruction, which the court gave toward the end of Portnow’s testimony, simply told the jurors that they were to determine if the Papasawas was guilty and that Portnow was not “here to tell us if Pappasawas is guilty of anything.” The second instruction, which the court gave at the end of the guilt phase, was essentially the same. It told the jury that “some” of Portnow’s testimony “seemed to indicate his opinion regarding the guilt or innocence of the accused,” that it improperly did so, and that the jurors should disregard his opinion of Papasawas’ guilt or innocence “unless you find from the totality of the evidence that you can accept from other facts that you can draw the same inferences and reach the same conclusion.”

Those instructions were deficient in several critical respects. First, they did not address Portnow’s improper comments and insinuations about Papasawas’ credibility. Second, they did not explain that Portnow’s limited role was to determine whether Papasawas was capable of forming the requisite intent for capital murder, not whether he indeed formed that intent. Third, the instructions did not distinguish those portions of Portnow’s testimony that were proper from those that were not. Fourth, they did not tell the jury to ignore Portnow’s statements that attributed thoughts or intentions to Papasawas on that particular night. Fifth, and most important, the purported curative instructions omitted the only point that could possibly have ameliorated the devastating effect of Portnow’s testimony — a clear and unequivocal statement that, in testifying, Portnow had arrogated to himself powers that he did not have, expressed “expert opinions” on subjects over which he had absolutely no expertise, and was no more able to determine Papasawas’ truthfulness or to imagine his thoughts than they were. Only that kind of an instruction could deflate the power of Portnow’s “expert status.” It was simply *655 inadequate to tell the jurors to ignore his conclusions. That was like ignoring the proverbial elephant in the courtroom.

Portnow’s improper testimony essentially gave the lie to Papa-sawas’ entire defense. Its potential effect on the jury was enormous and that effect was not ameliorated by the court’s instructions.

V

Besides having the potential to skew the guilt phase of the trial, Portnow’s improper testimony had a spill-over effect on the penalty phase by supporting a crucial aggravating factor and undercutting several mitigating factors. See State v. Erazo, 126 N.J. 112, 132 , 594 A.2d 232 (1991).

His representation that Papasawas had “decided” to kill Mrs. Place to make sure she never reported him to the police supported a finding that Papasawas had killed her to avoid detection; in fact, five jurors found that factor. They were, however, not told to disregard that factor because of their lack of unanimity. See State v. Muhammad, 145 N.J. 23, 52 , 678 A.2d 164 (1996) (noting that jurors must be unanimous in finding existence of aggravating factor and they must adhere to trial court’s limiting instruction and deliberate about appropriate sentence without consideration of those aggravating factors that were not unanimous); DiFrisco II, supra, 137 N.J. at 489, 645 A.2d 734 (“[T]he death-penalty statute require[s] a unanimous jury finding to establish the existence of an aggravating factor.”).

Portnow’s unsolicited and speculative opinion that Papasawas was not really physically abused as a child militated against the jurors finding that Papasawas’ emotional disturbance was due to that abuse, and indeed, five jurors found that mitigating factor inapplicable. Further, his attributions of intentional behavior to Papasawas on the night Mrs. Place died and his claim that Pappasawas “knew exactly what he was doing” militated against finding that Pappasawas was under the influence of an extreme emotional disturbance. Nine jurors rejected that factor.

*656 To exacerbate matters, when the court instructed the jury at the sentencing phase, it gave no instruction at all on Portnow’s testimony. It merely said that the jurors could consider evidence presented at both phases of the trial and that the jurors could not base an aggravating factor on any “histories” that the experts obtained from the Papasawas. Moreover, the court did not remind the jurors to disregard Portnow’s opinion that Papasawas had killed Mrs. Place to escape apprehension.

Portnow’s comments and the court’s silence had the clear capacity to affect the outcome of the sentencing phase and, in all likelihood, did so to Papasawas’ detriment.

VI

For his crime against Mrs. Place, Peter Pappasawas has been sentenced to die. The jury that made that determination was death-qualified and thus predisposed towards a guilty verdict and a death sentence. The majority concedes that numerous errors occurred during Pappasawas’ trial, but concludes that those errors were harmless. Harmless error is not an appropriate standard in a capital murder case. In any event, the errors that occurred in this case were not harmless but crushing to Papasav-vas’ defense.

The trial court erroneously qualified three jurors; Papasawas was forced to exhaust his peremptory challenges to remedy that error; he was not given the two extra challenges due him; as a result, a juror not shown to be impartial sat on the jury. Further, the trial court improperly permitted Portnow, the State’s “expert” witness, to comment on Papasawas’ credibility; to state, not that Papasawas had the capacity to form the requisite mental state for murder, but that he actually did so; to read his mind; and to put highly incriminating words into his mouth. Thereafter, the court gave an impotent curative instruction that lacked the power to ameliorate Portnow’s excesses. Portnow infected not only the guilt phase but the penalty phase. Accordingly, I would reverse Papasawas’ conviction and death sentence.

*657 For affirmance and remandment — Chief Justice PORITZ and Justices O’HERN, GARIBALDI, STEIN, COLEMAN and VERNIERO — 6.

For reversal — Justice LONG — 1.

Relevant social science data supports those premises. See, e.g., James Luginbuhl & Kathi Middendorf, Death Penalty Beliefs and Jurors’ Responses to Aggravating and Mitigating Circumstances in Capital Trials, 12 Law & Hum. Behav. 263 (1988); Marilyn D. McShane et al., Eligibility for Jury Service in Capital Trials: A Question of Potential Exclusion and Bias, Texas Bar J., April 1987, at 365; Michael L. Neises & Ronald C. Dillehay, Death Qualification and Conviction Proneness: Witt and Witherspoon Compared, 5 Behav. Sci. & the L. 479 (1987); Irwin A. Horowitz & David G. Seguin, The Effects of Bifurcation and Death Qualification on Assignment of Penalty in Capital Crimes, 16 J. Applied Soc. Psychol. 165 (1986); Gary Moran & John C. Comfort, Neither “Tentative” nor “Fragmentary”: Verdict Preference of Impaneled Felony Jurors as a Function of Attitude Toward Capital Punishment, 71 J. Applied Psychol. 146 (1986); Rick Seltzer et al.. The Effect of Death Qualification on the Propensity of Jurors to Convict: The Maryland Example, 29 How. L.J. 571 (1986); Claudia L. Cowan et al., The Effects of Death Qualification on Jurors’ Predisposition to Convict and on the Quality of Deliberation, 8 Law & Hum. Behav. 53 (1984); Phoebe C. Ellsworth et al., The Death-Qualified Jury and the Defense of Insanity, 8 Law & Hum. Behav. 81 (1984); Craig Haney, On the Selection of Capital Juries: The Biasing Effect of the Death-Qualification Process, 8 Law & Hum. Behav. 121 (1984); Joseph B. Kadane, After Hovey: A Note on Taking Account of the Automatic Death Penalty Jurors, 8 Law & Hum. Behav. 115 (1984); David G. Seguin & Irwin A. Horowitz, The Effects of “Death Qualification” on Juror and Jury Decisioning: An Analysis from Three Perspectives, 8 L. & Psychol. Rev. 49 (1984); William C. Thompson et al.. Death Penalty Attitudes and Conviction Proneness: The Translation of Attitudes Into Verdicts, 8 L. & Hum. Behav. 95 (1984); Louis Harris & Associates, Inc., Study No. 814002 (1981); Edward J. Bronson, Does the Exclusion of Scrupled Jurors in Capital Cases Make the Jury More Likely to Convict? Some Evidence from California, 3 Woodrow Wilson J.L. 11 (1980); Phoebe C. Ellsworth et al., The Effect of Capital Punishment Attitudes on Juror Perceptions of Witness Credibility (1979)(unpublished); W. White, The Constitutional Invalidity of Convictions, Imposed by Death-Qualified Juries, 58 Cornell L.Rev. 1196 (1973) (citing L. Harris & Associates, Inc., Study No. 2016 (1971)); George L. Jurow, New Data on the Effect of a ‘Death Qualified’ Jury on the Guilt Determination Process, 84 Harv. L.Rev. 567 (1971); Edward J. Bronson, On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen, 42 U. Colo. L.Rev. 1 (1970); Fay J. Goldberg, Toward Expansion of Witherspoon: Capital Scruples, Jury Bias, and the Use of Psychological Data to Raise Presumptions in the Law, 5 Harv. C.R.-C.L. L.Rev. 53 (1970); Hans Zeisel, Some Data on Juror Attitudes Toward Capital Punishment, University of Chicago Law School: Center for Studies in Criminal Justice (1968); W. Cody Wilson, Belief in Capital Punishment and Jury Performance, University of Texas (1964)(unpublished).

See Donald P. Knudsen, Comment, Inequities and Abuses of Death Qualification: Causes and Cures, 32 S.D.L.Rev. 281, 292-98 (1987) (encouraging courts to seat separate death-qualified jury prior to guilt phase that will attend, but not participate, in guilt phase and then undertake sentencing if needed); Robert M. Berry, Remedies to the Dilemma of Death Qualified Juries, 8 U. Ark Little Rock L.J. 479, 501 (1986) (suggesting that courts seat entirely new death-qualified jury for penalty phase then use stipulated summaries of guilt phase); see also Hunt, supra, 115 N.J. at 396-402 , 558 A.2d 1259 (Handler, J., dissenting) (advancing that courts empanel two juries to hear all evidence together, but excuse each during presentation of evidence or testimony that is irrelevant or inadmissible in trial for which it is responsible); Fields, supra, 197 Cal.Rptr. 803 , 673 P.2d at 718-20 (Reynoso, J., dissenting) (advocating that, instead of two separate juries, courts empanel non death-qualified jurors for guilt phase but then replace those jurors with death-qualified alternates during sentencing); State v. Young, 853 P.2d 327, 394-95 (Utah 1993) (Durham, J., dissenting) (same).

In a murder case, for every extra strike given to the State, the court must give the defendant an additional challenges. R. l:8-3(d). Thus, the court should have rounded-up the fraction and provided Papasawas with two more peremptory strikes.

Although defense counsel told the court at the conclusion of the striking process that the jury was satisfactory, he preserved that claim for appellate review by objecting to the court granting an extra peremptory challenge to the State and requesting an additional peremptory challenge, which was denied.