dissenting.
Respectfully, I dissent.
The Court of Appeals held that the trial court erred in three respects but then excused the three errors as harmless. The Majority of this Court has agreed with the Court of Appeals. I too agree that the trial court erred, but do not believe the errors were harmless. First, during cross-examination of Harman, the prosecutor improperly smeared Harman’s character with evidence of marital infidelity during a prior marriage. See Barnett v. Commonwealth, Ky., 763 S.W.2d 119, 124 (1989). The prosecutor then was erroneously allowed to argue that this irrelevant evidence of marital infidelity proved Harman was lying when he denied striking the child. The third error was that the trial court excluded evidence to prove Harman’s good character for truthfulness despite KRE 404(a)(1), which states, “Evidence of a pertinent trait of character or of general moral character offered by an accused, or by the prosecution to rebut the same” is admissable. See Shell v. Commonwealth, 245 Ky. 223, 53 S.W.2d 524, 526 (1932).
Important parts of the videotaped trial record of the voir dire are inaudible. Unless Harman’s version by narrative statement of the answers given on voir dire are accepted as true, Harman is denied due process by the state of the record.
Three jurors whom Harman challenged for cause should have been stricken by the trial court but were not. Prospective juror Gay, who was a retired Kentucky State Police Trooper, gave answers which “indicated he would not be fair and impartial” according to Harman’s narrative statement. Prospective juror Tudor, a trust officer at First Security Bank, had been represented by the prosecutor when the prosecutor was in private practice. According to Harman’s narrative statement, Mr. Tudor’s answers indicated he would be aligned more with the prosecution than with the defense. The trial court’s response, that he thought the juror was just trying to get off the jury, is speculation. The third prospective juror, Ms. Blevins, worked at Clay Hospital where Jesse was initially taken and was an acquaintance of Dr. Alan Richards, a pediatrician who treated Jesse in the emergency room of that hospital. Dr. Richards was an important witness who gave damaging testimony contradicting Harman and his expert witness, Dr. Bux, to the effect that Jesse’s injuries were “not the norm” to be expected from a crib fall. Accepting as true Harman’s version by narrative statement of the answers given on voir dire, there was “reasonable ground to believe” the jurors could not “render a fair and impartial verdict on the evidence,” RCr 9.36(1), and these jurors should have been excused for cause.
When his challenges for cause were denied, Harman was forced to use peremptory challenges against these three jurors, thus exhausting his peremptories. Thomas v. Commonwealth, Ky., 864 S.W.2d 252 (1993), holds that it is a denial of due process to require a defendant to “exhaust all his peremptory challenges ... by having been required to use peremptory challenges on jurors who should have been excused for cause.” Shelton v. Commonwealth, Ky., (1995), reiterates that improperly denying a challenge for cause denies due process when the defendant exhausts his peremptories.
Finally, two instances of impermissible hearsay provide further grounds for reversal. Coroner Hull testified to bolster his opinion by claiming “reports, I’m sure, are present in the literature....” Witness Suzie Woods testified to the effect that Harman’s wife (who did not testify) supposedly said that Harman did not think Jesse was his child.
*492Although the central purpose of a criminal trial is, as the Majority Opinion states, “to decide the factual question of the defendant’s guilt or innocence,” an appellate court has additional considerations. One of those considerations is that a conviction should be set aside unless “the reviewing court may confidently say, on the whole record that the ... error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). I am not prepared to “confidently say” that these errors were harmless beyond a reasonable doubt.
The heinous nature of the offense of which this appellant is accused must not cause us to lose sight of the fact that justice must be administered according to law. We have no better method for arriving at the truth than the rules of evidence and procedure we have developed over time.
STEPHENS, C.J., and STUMBO, J., join.