dissenting.
Today the Court vacates the death sentence of Richard Biegenwald for the murder of Anna Olesewicz and remands for yet another penalty-phase proceeding. The majority concludes that the jury voir dire was constitutionally deficient. I disagree. I conclude that the overall voir dire was adequate and that the defendant received his constitutional due: a fair and impartial jury. Accordingly, I dissent from the majority’s ruling and would affirm the defendant’s sentence of death.
I
Overall Voir Dire
The purpose of voir dire is the creation of an impartial jury. State v. Williams, 113 N.J. 393, 409-10, 550 A.2d 1172 (1988) (Williams II); State v. Biegenwald, 106 N.J. 13, 29, 524 A.2d 130 (1987). The test for determining if one may serve as a juror in capital cases is whether the prospective juror’s opinions, be they for or against the death penalty, would “ ‘prevent or substantially impair the performance of his duties in accordance with his instructions and his oath.’ ” State v. Bey, 112 N.J. 123, 151, 548 A.2d 887 (1988) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589 (1980)); see also State v. Ramseur, 106 N.J. 123, 255, 524 A.2d 188 (1987) (quoting same). “ ‘The quest is for jurors who will conscientiously apply the law and find the facts.’ ” State v. Koedatich, 112 N.J. 225, 293, 548 A.2d 939 (1988) (quoting Wainwright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 851, 83 L.Ed.2d 841, 851 (1985)), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989). The examination of each juror’s views on capital punishment, however, must be sufficiently probing to assure compliance with the governing legal standards and to expose potential bias. State v. Perry, 124 N.J. *66128, 155, 590 A.2d 624 (1991); State v. Hunt, 115 N.J. 330, 354, 558 A.2d 1259 (1989).
Determining whether a voir dire is adequate requires an examination of the entire record. It is a fact-sensitive task. As this Court has previously recognized, the voir dire process frequently takes on a “rhythm of its own.” State v. Dixon, 125 N.J. 223, 244, 593 A.2d 266, 276 (1991); State v. Moore, 122 N.J. 420, 447, 585 A.2d 864 (1991). Each judge conducts voir dire in his or her own way. The creation of an impartial jury, through the process of voir dire, follows “no particular tests” and “is not chained to any ancient and artificial formula.” United States v. Woods, 299 U.S. 123, 145-46, 57 S.Ct. 177, 185, 81 L.Ed. 78, 88 (1936); see also Mu’Min v. Virginia, — U.S.-, -, 111 S.Ct. 1899, 1917, 114 L.Ed.2d 493 (1991) (Kennedy, J., dissenting) (noting that “[tjhere is no single way to voir dire a juror” and that he “would not limit the trial judge’s wide discretion to determine the appropriate form and content of voir dire questioning”). Because an assessment of an individual juror’s impartiality rests on a close personal examination, this Court has accorded trial courts great deference in conducting voir dire. State v. Koedatich, supra, 112 N.J. at 275, 548 A.2d 939; see also State v. Jackson, 43 N.J. 148, 160, 203 A.2d 1 (1964) (“The trial court is vested with broad discretionary powers in determining the qualifications of jurors. * * * [I]ts exercise of discretion will ordinarily not be disturbed on appeal.”), cert. denied, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965). In State v. Singletary, 80 N.J. 55, 402 A.2d 203 (1979), we set forth the rationale underlying that rule of deference:
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.
*67Although a juror’s professions of impartiality will not always insulate him from excusal for cause, see, e.g., State v. Jackson, supra; State v. Deatore, [70 N.J. 100, 358 A.2d 163 (1976) ], they will be accorded a great deal of weight, see, e.g., State v. Grillo, [16 N.J. 103, 106 A.2d 294 (1954) ]; State v. Jefferson, 131 N.J.L. 70, 72 [34 A.2d 881] (E & A 1943). 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. 80 N.J. at 63, 64, 402 A.2d 203.]
In State v. Biegenwald, supra, 106 N.J. at 35-37, 524 A.2d 130, and State v. Ramseur, supra, 106 N.J. at 256-57, 524 A.2d 188, this Court reaffirmed its special deference to the trial court in reviewing voir dire. “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.” State v. Ramseur, supra, 106 N.J. at 257, 524 A.2d 188. Except in the rarest of circumstances, appellate judges should follow the prudent course of deferring to the court that was in the position to make such a close, personal inspection. State v. Williams, supra, 113 N.J. at 411, 550 A.2d 1172; see also Wainwright v. Witt, supra, 469 U.S. at 425-26, 105 S.Ct. at 852-53, 83 L.Ed.2d at 852-53 (noting that deference should be given to trial court decisions because “there will be situations where the trial judge is left with the definite impression” regarding a prospective juror despite a “lack of clarity in the printed record”); State v. Hunt, supra, 115 N.J. at 357, 558 A.2d 1259 (noting “sound measure of discretion” given to trial judges).
We measure the adequacy of the trial court’s inspection of prospective jurors by its character and tone, not by any one question of the court or one response of a venireperson. State v. Zola, 112 N.J. 384, 397, 548 A.2d 1022 (1988); State v. Ramseur, supra, 106 N.J. at 256-57, 524 A.2d 188. Unlike the majority, after reading this “unanimated” record, I find that the voir dire as a whole was sufficiently probing to weed out any prospective jurors whose ability to decide defendant’s correct sentence was impaired.
*68The voir dire spanned three days. The trial court took numerous precautions in conducting the voir dire. All prospective jurors completed a questionnaire. The questionnaire contained general questions concerning the juror’s age, marital status, age and sex of children, occupation, physical condition, familiarity with defendant, the prospective witnesses, and the lawyers in the case, whether the juror or a member of his or her family or a close friend was employed in law enforcement, had ever been charged with a criminal violation or had ever been the victim of a crime. Each potential juror also was asked whether he or she had heard of a murder case involving defendant from any source and whether they had discussed defendant with anyone. Finally, each juror was requested to disclose any personal bias or prejudice that they believed would disqualify them from serving as a juror.
As each prospective juror was questioned individually, the court reviewed his or her questionnaire and inquired about any answer that raised a concern. For example, if the prospective juror was a young woman or had young women family members, the court would ask whether that fact would create a bias against a defendant convicted of murdering a young woman. Invariably the court- also asked each venireperson if he or she had any preconceived bias or prejudice against psychiatric testimony.
The trial court’s general instruction to the potential jurors set the tenor of the voir dire early in the proceeding.
The point [is] that you have to evaluate yourselves, the judge will explain the case to you, introduce the various people connected with it and you have to listen and say would I then able to be fair and impartial and objective on that case? Could I be open minded? Could I listen to all the witnesses and listen to the judge and then call it fairly?
And if you think yes, fine, sit there, but if someplace along the line you get the idea that gee, maybe I oughtn’t be a juror on this case for whatever reason, * * *
[w]ell, that’s okay. Everybody is entitled to their opinion ... [but] the juror should not just forget about the law when they are sitting deciding the case. The jurors take an oath to observe the law, to follow the law. But if you ever got yourself in a situation like that where you are a prospective juror and *69you have strong feelings, okay. You are entitled to the feelings, but you should not sit as a juror on that particular case. That's all we try to do in the jury selection.
***** ***
I want to assure you that there are no things such as the right answers or the wrong answers to the questions that we put, either the written questions or the oral questions. All we want are honest answers. You know we’re not trying to measure you to somebody’s standards. Try to give us an honest evaluation of yourself and that’s all we ask.
By the same token, if for some reason you should kind of fudge an answer on the questionnaire or fail to answer a question you really ought to answer, that would not be the right thing, we need that openness, frank response, because otherwise if you conceal something, it could result in a terrible miscarriage of justice which nobody wants. [Emphasis added.]
That instruction went beyond dispelling the notion that there were any “right” answers. See State v. Dixon, supra, 125 N.J. at 246, 593 A.2d at 277. It impressed on jurors that they should report anything possibly compromising their duty or oath directly to the judge, regardless of when it occurred. On the morning of closing arguments, the following occurred:
(The following was recorded in chambers.)
THE COURT: You have asked to talk with me, we will just make a record of it so we know what’s going on?
A JUROR: Right. This weekend, I found out something I didn’t know.
THE COURT: Yes?
THE JUROR: My husband’s brother who I have never met, never seen, who I don’t consider family, he’s in Trenton State Prison, which I wasn’t aware of.
THE COURT: Would that affect you as a juror?
THE JUROR: Well, no, I was thinking, I don’t want to cause a mistrial.
THE COURT: Well, don’t worry about that. But you didn’t know this man at all, your husband’s brother, you never met him?
THE JUROR: No.
THE COURT: So all you have learned over the weekend is information he’s in Trenton State Prison?
THE JUROR: Right, he called Friday night.
THE COURT: When he called, did he have a specific message for your husband?
THE JUROR: No.
THE COURT: And your husband didn’t say anything to you more than that?
THE JUROR: More than how are you doing?
THE COURT: What did your husband say to you about his telephone conversation with his brother?
*70THE JUROR: Nothing, he told me Tommy had called.
THE COURT: But how did you discover somebody was his brother then?
THE JUROR: He told me, I knew his brother was in jail, I didn’t know where or why or anything, and—
THE COURT: Okay. Don’t get nervous, I understand where you are, that’s all. You knew your husband had a brother who was kind of a ne-er-do-well, criminal of some sort in jail someplace?
THE JUROR: Yes.
THE COURT: Up until the weekend you didn’t know where. You tell me the only additional bit of information you got was — where was it, Trenton State Prison?
THE JUROR: Right.
THE COURT: Now, I’m asking you, bottom line, is that going to affect you somehow, that knowledge now, affect you somehow in deciding this case?
THE JUROR: No, I don’t see why it would.
THE COURT: You are the only one who can tell me?
THE JUROR: No, doesn’t make any difference to me.
THE COURT: Okay. Do me a favor, go back to the jury room. Don’t mention anything to the jurors about what we have talked about here. Sit tight, I’ll be talking to the lawyers. If they have a problem I’ll let you know. But thank you very much for letting me know.
(The juror leaves the chambers)
THE COURT: On the record, with the counsel in chambers here. Mrs. Robinson indicated to the Court officers this morning that she wanted to speak with me and I brought her in here with the reporter and I asked her what she wanted [to] talk about and she said this: That she didn’t know up until Friday night that her husband’s brother was an inmate in the State prison.
She did know before Friday that her husband had a brother who was kind of a ne’er-do-well and was in jail someplace. She has never met the brother, never talked to the brother, but Friday night the brother called her and said, "Hi, how are you?” And the husband indicated to her and all he indicated to her was "That’s my brother calling from the State prison.”
I asked her on the record, “Do you think that would somehow affect your judgment here as a juror?” And she said, “No, I don’t know why it would.” I said, “Okay. Go back in the jury room, I’ll talk to the lawyers and if they have a problem we’ll be in touch with you further.” That’s where we are. MR. DIAMOND: I have no problems with that.
MR. FAGEN: Well, I sure would have liked to ask her more questions.
THE COURT: I’ll bring her in if you want more questions.
MR. FAGEN: Well I may give it some thought?
THE COURT: Okay, I’m not rushing.
THE COURT: I have asked Mr. Fagen whether he would like to.question the juror further and he said—
MR. FAGEN: No.
*71THE COURT: And I understand it’s satisfactory to both sides to allow her to continue?
MR. DIAMOND: Yes.
Alternate Juror Robinson’s concerns and behavior exhibit a juror educated to the solemnity of her task and recognizing the on-going need to assure not only fairness and impartiality but the appearance of fairness and impartiality.
Only by reading the entire voir dire can an appellate court ascertain whether the trial court’s voir dire is adequate. The questioning of venirepersons Zetkulic, Sacchi, and Chang impresses me as indicative of the character of the overall voir dire. The persistence of the court in unearthing potential prejudice and in allowing, indeed forcing, jurors “to air their views on the death penalty” in their own words, State v. Hunt, supra, 115 N.J. at 354, 558 A.2d 1259, demonstrates the adequacy of that court’s inquiries.
Q Mr. Zetkulic, the answers you gave us on this questionnaire are the truth I take it?
A Yes, sir.
Q You have lived in Monmouth County a long time now, you indicate that you have served as a juror during that long time that you have lived here?
A Yes I do.
Q How long ago was that?
A A round three years ago, your Honor.
Q Here at the Courthouse?
A Yes.
Q Do you recall what kind of cases you may have sat on as a juror?
A The one I sat on?
Q What kind of case was it?
A It was criminal charge of rape.
Q Did you go all the way through to a verdict?
A Yes.
Q Anything about that experience sitting as a juror on that case, any impressions you may have formed which you feel might affect you in one way or another sitting as a juror on this case?
A No, I don’t think so, sir.
Q There is a difference, obviously, with a rape case, sometimes you may have strong feeling about the process or something of that nature as the result of your service, you don’t have those very strong feelings?
A No, sir.
*72Q You did cheek off the fact that you have heard of Mr. Biegenwald, and that you read of a case involving him?
A I read it at the time of the case, I read the newspaper about it, but as I indicated, I didn’t discuss it or anything, I really forgot.
Q What do you remember about reading, that’s the next question?
A Hardly anything, sir.
Q Well, what do you remember reading?
A That it was quite a — what shall I say — sensational, you know, just—
Q Aside from the fact it may have made headlines, what content do you recall, what facts?
A I recall something about, maybe I mixed it with something else, something like it was in the parking lot or something like that, if this is the one, I don’t know, but that’s all.
Q You recall something about a parking lot?
A Yes, sir, I couldn’t say I did not hear of it.
Q Okay, that’s fair. What we’re trying to figure out is what might be still ■ in the back of your head?
A Hardly anything, your Honor, because I don’t recall fully what it was all about.
Q All right. Are you saying that if you should sit as a juror on this case in that jury box, that you would decide the question of what the proper penalty is based solely upon what you hear in this Courtroom?
A I believe so, yes.
Q And whatever it is, that faint memory you have, you will put that aside, is that what you are saying?
A Yes, I think I would.
Q We’re asking — we wouldn’t want a faint memory to blossom out to be big and affect your decision in this case?
A I understand.
Q You don’t think that would?
A No, I don’t think so.
Q One of the possibilities, and there are only two, is the death penalty. What are your views concerning the death penalty?
A I have no firm conviction either way, I think that I’m not against it and I’m not totally for it. I would be for it in certain circumstances.
Q Okay. So depending upon the circumstances?
A Yes, sir.
Q Well, that’s another way of saying depending upon the good things and the bad things that are revealed to you in the courtroom?
A I would say so.
Q I don’t want to put words in your mouth, that’s what you are saying?
A I would think I would have to find in my own mind whether it’s justified.
*73Q But it’s depending upon how things come out, you could go either for the death penalty if you think it’s right or for life imprisonment with no parole for 30 years?
A I think I could, yes, sir.
Q Some of the testimony as I indicated this morning will be psychiatric testimony which will be given to us by Dr. Eshkenazi.
Do you think there’s anything about psychiatric testimony just as such that would make you feel you might not listen to it or sort of poo-poo it or put it aside?
A No, I have no feeling about it at all.
Q One way of the other?
A Yes, sir.
Q Are you saying you would listen to it?
A I would listen to it and judge it on its merits, sir.
********
THE COURT: Mr. Zetkulic, thank you, take a seat in the jury room there and don’t engage in any discussion with the jurors who are ahead of you in this case, if you want to talk about the weather or sports, it’s all right.
A Thank you, sir. [Emphasis added.]
The trial court, influenced perhaps by the tone of the responses or the demeanor of the responder, asked follow-up questions regarding the possible effect of prior jury service, knowledge of the Biegenwald case, the death penalty, and psychiatric testimony. Those questions were neither close-ended nor suggestive. Furthermore, even if they could have been misunderstood to be so, the court dissipated the effect of that misunderstanding by stating that it did not “want to put words in [the venireperson’s] mouth.”
The voir dire of venireperson Sacchi also demonstrates the patient probing that characterized much of the voir dire.
Q You did say that either you personally or some member of your family was the victim of a crime?
A Yes.
Q What was that about?
A It was an assault.
Q Who?
A My mother.
Q How long ago was that?
*74A Approximately two years ago, she answered the door to her house and she was accosted at gun point.
********
Q Did they find the person who did it?
A They did, and I believe he was convicted, yes.
Q Is there anything about your mother’s experience which certainly was a terrifying one, that has affected you to the point where it may influence your judgment some how or other here?
A It has in a way because it was an emotional experience. I was upstairs at the time and I wasn’t aware of what was going on downstairs. So I felt I could have done something, quite a duress for my mother.
Q But you understand that was a separate incident?
A Yes.
Q You think the memory of it would linger onto the point where when you came to decide what the appropriate penalty is in this case, it might affect you in coming to that decision?
A I can’t be sure of that because—
Q Well, nobody can be sure. We’re trying to probe you?
A Yes, I understand.
Q You understand how this case will work?
A Basically.
Q Okay. Because what will happen, so you are clear, is that there will be information presented to you, evidence as to what they call aggravating factors and mitigating factors, and in shorthand form the aggravating factors are the minuses if you will, mitigating factors are the pluses insofar as the death penalty is concerned.
And then at the end of that presentation I’ll explain the law that applies to the jurors when they come to do the weighing of those pluses and minuses. Do you think that you would be able to listen to the law as I explain it, accept that, then make your own independent evaluation of the evidence that’s given to you and then come to a conscientious decision as to which penalty is the right one without being influenced by your mother’s experience?
A I would hope that I would be — I think I can do that, yes.
Q You have served as a juror before yourself?
A Yes.
Q When was that?
A Must have been about four years ago in Bergen County, Hackensack.
Q Remember what kind of case it was?
A Vandalism.
Q Anything about that experience as a juror or anything about what you heard during that case which again you feel would affect your judgments as a juror if you are sitting here?
A I don’t think so in that case, no.
*75Q One of the witnesses who will testify as I indicated to the jurors is a Dr. Eshkenazi. Dr. Eshkenazi is a psychiatrist. Do you have any pre-conceived notions about the value of psychiatric testimony?
A My own personal feelings about psychiatry can be — I feel it can be misleading in some respects, I don’t think so — it can be misleading in my own opinion.
Q Well, maybe it can be in the hands of some psychiatrists. The question is here, you’ll see Dr. Eshkenazi, you will listen to him, do you think that you’ll be able to decide whether his testimony is valuable testimony to you in deciding what the appropriate penalty should be or will you just say okay, here comes another psychiatrist and forget about paying any attention to him?
A Well, I’m a law man, I don’t know, it would probably lay with the rest of the evidence, I don’t know where it is.
Q You can talk about any kind of medical man or professional man and there are good and bad in any profession.
A Yes.
Q You wouldn’t take it — you tell me if I’m wrong — you wouldn’t just simply backhand psychiatric testimony and say forget about it?
A No I certainly wouldn’t.
Q And as to the death penalty, what is your view of that?
A That it could be appropriate or not appropriate. I’m — my feeling is yes, I do believe.
Q Yes what?
A I’m for that.
Q For it all the time?
A I feel that — well, it’s hard to answer because — how can I say it, I don’t know if you can rephrase that. I mean—
Q I’m not trying to prompt you but we’re trying to—
A I’m trying to give you the right answer.
Q There’s no right answer. Give me the answer from the heart?
A Could you tell me—
Q What do you think about the death penalty?
A I think it’s right.
Q In all cases, that was my follow up question, all the time?
A Oh, I’m sorry, no I guess there’s—
Q In other words, Mr. Biegenwald is sitting there as a murderer. Are you going to say you get the death penalty without going any further?
A No, it wouldn’t be fair.
Q Of course it wouldn’t be. Might you be doing that?
A No, not consciously I wouldn’t do that. I would tend to be fair about it judgment wise in my own, if that answers your question.
Q Well, see, there is no answer that you have to please me with, we just want to know —
A I didn’t know how to phrase it really, it’s a little—
*76Q Well, pluses and minuses, good and bad, weighing of good and bad always indicates the possibility you could go one way or another. I’m not so sure that possibility exists for you.
A I had some very strong feelings about the death penalty, being more sort of proper in that respect. That’s my honest opinion.
THE COURT: Any other questions?
MR. DIAMOND: Could we have a brief side bar?
THE COURT: Sure.
(The following was recorded at sidebar.)
THE COURT: I’m inclined to excuse him for cause.
The Court excused Sacchi for cause.
The voir dire of Sacchi captures the trial court’s approach and attitude for voir dire. “We’re trying to probe you,” “you tell me if I’m wrong,” “I’m not trying to prompt you,” “there’s no right answer,” “[g]ive the answer from your heart,” and “there is no answer that you have to please me with” illustrate the court’s willingness to delve deeply when it believed a venireperson was less than forthcoming. See State v. Dixon, supra, 125 N.J. at 246, 593 A.2d at 277. The court’s directness is refreshing because “plain speaking is the best way to get at such predisposition.” State v. Moore, supra, 122 N.J. at 445-46, 585 A.2d 864.
Typical also of the openness of the trial court’s questioning regarding a juror’s views on the death penalty is the following exchange between the court and potential juror Chang:
Q Since the death penalty is a possible choice we would like to know what are your views on the death penalty?
A Well, I really don’t know what to make of it, really, yet, because I never have to go through that myself. And as far as I see about the death penalty, it has some good points and some bad points, a good point is that for one thing, the taxpayers won’t have to spend the money to support the criminal. And the bad thing is that you can always encounter the fact a person could be innocent and in killing that person. So by doing that you yourself are a criminal.
Q I didn’t hear that, by doing what?
A By doing that incorrectly you yourself are the criminal.
Q Aha. Well, okay, how would that affect you, you are entitled to those views, how would that affect you if you were selected as a juror?
A I would feel bad if I didn’t do the best I could, I do the best I can based on what the evidence shows me, if I did bad, I didn’t make a good choice, then I would feel bad.
*77Q Well, I’m sure anybody would. But with all those feelings that you have now, how would that react on your ability to sit as a juror?
A Whatever I do, I do according to what’s presented to me and if I made that choice, I made it because that was what was presented to me.
Q Are you saying that you want to be sure?
A Yes, I want to be sure I make the right choice, if I made that choice because I did it when I thought about it, not because I just did it hastily.
Q You understand this not flipping a coin.
A Yes, you are putting a person in line.
Q In line with those views you have expressed, do you believe if you sat there now, imagine you are sitting there, there will be evidence presented to you on what are called these aggravating factors and there will be evidence presented to you on mitigating factors. Do you think you’d be able to listen to both of them and sift through them and evaluate them and come to a decision based upon the law as I’ll explain it to you?
A Yes, I could do it.
********
Before ending Ms. Chang’s voir dire the court asked, as it almost invariably did, “[a]ny additional questions?” The following dialogue then took place.
MR. DIAMOND: Yes, your Honor. I believe Miss Chang stated one of the problems she had with the death penalty was the alternative of the State having to take care of the person, the cost factor.
THE COURT: Yes.
MR. DIAMOND: The two alternates, one is death or the State taking care of this person for the rest of his life, would that affect your decision, the cost factor.
THE COURT: As a taxpayer, would you think to yourself that I’m a taxpayer paying for this and therefore I will vote for the death penalty and not—
MR. DIAMOND: In other words would you rather kill him than feed him?
THE COURT: Let her answer my question first?
A. Well, I don’t see the money anyway, I wouldn’t even know exactly if that person has been supported by my taxes.
THE COURT: Is that going to be in your mind when you are deciding as to whether to impose the death penalty or not?
A No, what would be in my mind is, should that person deserve death or life, that’s all, and whatever is presented to me, I really don’t even know if it’s going to make any difference in paying him because it’s not going to matter, maybe a couple of cents.
Q You are not going to be thinking dollars and cents?
A No, of course not. I wouldn’t be, it’s just whether the person is going to live or going to die, simple as that, but I’m not going to think of anything else, money doesn’t really make a whole lot of difference if a person—
*78THE COURT: Bottom line value is human life?
A. Right.
Ms. Chang’s voir dire was then concluded.
Each of the foregoing examples (voir dire of Zetkulic, Sacchi, and Chang as well as the general instruction) combines with the admittedly-proper voir dire of venireperson Russo to demonstrate the overall sufficiency of the voir dire.
The majority points to the voir dire of juror Mitchell to provide “a sense of the court’s approach to death qualification.” Ante at 36-37, 594 A.2d at 190. However, the majority ignores Mitchell’s actual responses and does not consider the effect of the non- or extra-verbal modes of communication and observation that give trial courts an overwhelming advantage over appellate courts in assessing the character of a venireperson’s responses.
“We can profit from an occasional reminder of the limitations that our isolation from the courtroom imposes on a full appreciation of the trial dynamics. * * * A bloodless record conceals subtle nuances; although we cannot always sniff them out, they do not often escape detection by our trial judges.”
[State v. Gilmore, 103 N.J. 508, 547, 511 A.2d 1150 (1986) (Clifford, J., dissenting) (quoted in State v. Ramseur, supra, 106 N.J. at 260, 524 A.2d 188).]
Instead the majority focuses on an ensuing colloquy between counsel and the court, during which the court said of venireperson Mitchell’s response, “You may not like that answer but it’s absolutely the correct answer.”
I agree with the majority’s abstract point that “the suggestion in the colloquy that there is a ‘correct’ answer to the open-ended question ‘what are your views on the death penalty?’ is most troubling.” Ante at 39, 594 A.2d at 192. If the record indicated any attempt by the trial court to condition, coerce, or predetermine a venireperson’s response or to qualify an unqualified juror, I would agree with the majority. However, the majority’s hyper-technical sensitivity confuses a shorthand, imprecise description used among learned participants, out of earshot of the jury panel, with an improper attempt to suggest or elicit an untruthful, less-than-honest “qualifying” response. Cf. Wainwright v. Witt, supra, 469 U.S. at 433-34, 105 S.Ct. at *79856-57, 83 L.Ed.2d at 857 (“[rjelevant voir dire questions * * * need not be framed exclusively in the language of the controlling appellate division opinion; the opinion is, after all, an opinion and not an intricate devise in a will”). An imprecise description (that of calling a “qualifying” answer a “correct one”) exchanged between officers of the court belies the repeated attempts here to elicit the actual, rather than the acceptable, beliefs of jurors.
This trial court conducted a voir dire that did, indeed, “draw out the potential juror’s views, biases, and inclinations and [that] provide[d] both counsel and the court the opportunity to assess the venireperson’s demeanor.” Ante at 39, 594 A.2d at 192. The trial court certainly never exhibited an intent to elicit a “correct” answer. See State v. Dixon, supra, 125 N.J. at 246, 593 A.2d at 277 (voir dire questions “did not attempt to force the jurors into any mode”). In fact, the court specifically warned against any such notion. More importantly, by focusing only on the dialogue between the trial court and defense counsel after Mitchell’s voir dire rather than on Mitchell’s voir dire itself, the majority erroneously concludes that the voir dire of juror Mitchell is inadequate. I agree with the Court’s observation that Mitchell's voir dire could have been more probing — indeed, I suspect the same could be said of any voir dire. Cf. Mu’Min v. Virginia, supra, — U.S. at-, 111 S.Ct. at 1904, 114 L.Ed.2d at 504 (“[t]o be constitutionally compelled, it is not enough that such questions might be helpful”). However, his voir dire certainly was adequate. Ibid.; see also id. at-, 111 S.Ct. at 1909 (O’Connor, J., concurring) (that “the trial judge could have done more” does not automatically mean that a Sixth Amendment violation has occurred).
RANDALL MITCHELL, sworn.
EXAMINATION BY THE COURT:
Q Take a seat there, please. You tell us that you and your family have lived
in Oceanport for two years, where did you live before Oceanport?
A Toms River before that and Bradley Beach before that.
*80Q Okay. You indicate that during some period of time you had heard of Richard Biegenwald. How did that occur?
A Just through the papers back at that time.
Q Back some years ago?
A Oh, yeah.
Q Do you recall what it was through the papers that you read back then?
A No, I have just read the name, having seen it in the papers.
Q In what context?
A In relation to some type of a trial or, you know, you have stories that you don’t really know the contents about but you remember certain individuals that were involved, that’s about it.
Q All right. When you say that’s about it, is there any precise fact that you remember from that time or from whatever you read?
A Actually, no, it was just a name, familiarity only because I have lived in the county for a number of years.
Q None of your family members or you have ever been connected with police work or Prosecutor’s office or anything of that nature I take it from your answers?
A Correct.
Q These answers are all true answers?
A Yes, sir.
Q You have never sat as a juror before?
A No, sir, I have not.
Q You work for Bridgewater Wholesalers and you are the manager of a wholesale — what is that?
A Well, it’s basically building materials, wholesale.
Q Building materials wholesale?
A Right, up in Somerset County.
Q All right. And your wife is a dental office manager?
A Right.
Q You have some small children, you have a girl who is age 12 I see. The victim in this case, Anna Olesiewicz was a young female, there’s anything about having a young daughter and a young female victim that you think is going to affect your decision if you should sit as a juror?
A No, I don’t think so, primarily one of the reasons is my daughter doesn’t live with me, she lives with the mother.
Q Well, all right, wherever she lives, the question is still the same?
A No, that doesn’t seem to create a problem for me.
Q All right. The obligation of the jurors here in this trial is a limited one as I explained, has to do with which penalty is appropriate to this situation based upon aggravating factors that are presented and mitigating factors that are presented. Unless those words throw you, I don’t think they should, but aggravating factors would be those things which would tend to lean you towards the death penalty, mitigating factors would tend to lean you away from *81the death penalty and toward life imprisonment with no parole for 30 years, those are the two options?
A Yes.
Q Since death is a possible option, what do you think generally about the death penalty?
A It applies in certain cases and sometimes it doesn’t, it’s not something that I have taken a position on definitely, that it goes or doesn’t go in cases.
Q There are some people conscientiously think the death penalty should never be imposed and they are entitled to that view. That’s not your view?
A No.
Q There are also some folks who are more, if you will, hard-nosed and they would say if there is a murder involved whoever is convicted of that murder should get the same penalties, death penalty. Are you of that persuasion?
A No, I think you have to weigh each case by its merits.
Q Okay. Part of the evidence that will be presented to you is that of Dr. Eshkenazi, I mentioned his name yesterday, he’s a psychiatrist. Anything about psychiatric testimony which you think is less worthy of acceptance than maybe other kind of medical testimony?
A No, sometimes, in some cases it’s very valid.
Q At the end of the case after you have heard all the evidence on the aggravating and mitigating factors, I’ll be explaining to all the jurors who sit how they should handle those and what principals of law apply to the decision. I tell you that your obligation under your oath is to accept the law as I explain it and not to substitute for it your own views as to what you think the law is or what it ought to be, you think you can do that?
A Yes, sir, I do.
Q Sitting there now and knowing it’s important to all of us, you think that if you are selected as a juror on this case you would be able to sit, listen in that open minded way that I have described before, make your evaluation and then decide what is the appropriate penalty and do that fairly objectively and conscientiously?
A I believe so.
THE COURT: Any additional questions of the prospective juror? All right. Then thank you, Mr. Mitchell, will you take a seat in the jury room please, there are others there, don’t discuss this case. Oh, one question I didn’t ask. Yesterday I was very emphatic about not listening to anything, reading anything that has to do with this case. Now I understand there may have been something on T.V. last night, I understand there may have been something in the paper. Did you do any reading or listening?
A I chuckled only because I fell asleep last night.
Q All right. That’s good, before you fell asleep did you see anything on T.V. and this morning did anybody have a newspaper you happened to see?
A No I brought some of my own paperwork.
THE COURT: Okay, bring your own paperwork, don’t look at any newspapers.
*82MR. DIAMOND: Your Honor there is one question I had, on number 19, ever heard of a murder case involving — I believe the juror said he recalled the headline but not the facts, but here there is a specific mention he said yes to having heard of a murder case, his recollection then is of a murder and I would like to inquire of that.
THE COURT: Of the recollection that you said you had about Richard Biegenwald, was that in connection with the murder?
A Not really, no.
THE COURT: Well, that’s what you checked here?
A It was — I tried to get that — I checked it only because I wanted to have an opportunity to explain it to you.
THE COURT: Okay, explain it?
A It was a situation, name association with a case that hit the papers, if you live in the area for a long enough period of time the name, oh yes, I remember that, but you’ll not remember anything about it and that’s basically what I was trying to say there, yes, I heard of it but nothing about it.
THE COURT: Of Richard Biegenwald in connection with murder?
A Of Richard Biegenwald but not with relation to any specific crime.
Q Generic crime of murder?
A What was the question, I’m sorry.
Q The question is, before coming here today had you ever heard of a murder case involving Richard Biegenwald from any source whatsoever, either today or at any time previously, Richard Biegenwald of a murder case involving Richard Biegenwald and you checked yes?
A Yes, I was under the impression the question was Mr. Biegenwald with reference to whatever the situation happened to be and you people more or less have identified what the crime had been.
Q Oh, because I said this is a murder case and you had heard Biegenwald and that’s the association that made you check yes?
A Yes, sir.
THE COURT: All right. Thank you, same spot.
A Okay.
The voir dire of Mitchell, which the majority holds out as illustrative of some inadequacy, actually demonstrates the persistence and open-mindedness of this trial court. The court initially asked an open-ended question about the death penalty, five questions concerning previous knowledge of defendant, two questions related to the potential impact of the victim’s status, and a question about the use and appraisal of psychiatric testimony. The trial court also responded positively to counsel’s request for further inquiry and asked at least six more questions regarding Mitchell’s prior knowledge of Biegen*83wald or his crimes. The voir dire of Mitchell exemplifies how this trial court, unlike the court in Williams, repeatedly asked the “follow-up questions requested by counsel in order to explain” previous answers. 113 N.J. at 420, 550 A.2d 1172.
Finally, the trial court’s failure to pry into the terse responses of venireperson Black does not change my opinion that the general character of that voir dire was constitutionally-adequate. A host of reasons, not apparent from the written record, may have contributed to the court’s acceptance of them without further inquiry. Defense counsel also declined to ask any further questions of this venireperson, apparently believing he had received enough information about her from her responses and demeanor during questioning. Such conduct by counsel strengthens my impression of the adequacy of this voir dire. See State v. Zola, supra, 112 N.J. at 396-97, 548 A.2d 1022.
This voir dire met every standard we have previously formulated and fulfilled the historic purpose of voir dire. Courts have long stated that voir dire is not a process of selection but one of rejection. See Hayes v. Missouri, 120 U.S. 68, 71, 7 S.Ct. 350, 351, 30 L.Ed. 578, 580 (1886); State v. Moore, supra, 122 N.J. at 454, 585 A.2d 864; State v. Manley, 54 N.J. 259, 280-81, 255 A.2d 193 (1969). In State v. Manley, we defined the purpose and scope of voir dire, noting that
counsel [had begun] to subvert the function which was to assist in the impaneling of an impartial jury by using it to educate the jury panel on the facts of a particular case, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, to induce the jurors by use of the hypothetical questions or otherwise to commit themselves to vote in a particular way, or to instruct them in matters of law. [54 N.J. at 276, 255 A.2d 193.]
We went on to observe that “the impression is inescapable that the aim of counsel is no longer exclusion of unfit or partial or biased jurors. It has become the selection of a jury as favorable to the party's point of view as indoctrination through the medium of questions or assumed facts and rules of law can accomplish.” Id. at 281, 255 A.2d 193. To remedy the situation this Court adopted Rule l:8-3(a),
*84the basic intent of which was to have the voir dire conducted exclusively by or through the trial judges to the extent reasonably possible. * * * Of course supplementary questioning by counsel personally is not foreclosed entirely, but control over its scope and content is left to the experienced judgment and discretion of the trial judge to be exercised with the history and purpose of the rule in mind. [Id. at 282, 255 A.2d 193].
The court’s exercise of discretion in dealing with such requests is subject to reversal only on a showing of prejudice resulting from an abuse of that discretion. See State v. Biegenwald, supra, 106 N.J. at 27, 524 A.2d 130. The majority’s view that “shopping,” with its connotation of selection and post-comparison purchase, is a “permissible or appropriate,” indeed “necessary,” metaphor for the voir dire process, see ante at 32-33, 594 A.2d at 188, ignores the abuses, concerns, and solutions that have shaped the evolution of voir dire. Courts, along with counsel, are not consumers in the voir dire market, picking and choosing jurors who meet their personal tastes; they are only inspectors in that market, examining and testing venirepersons to ensure the creation of an impartial jury from those that remain.
The entire voir dire was more than sufficient to fulfill that goal. There was nothing “perfunctory” about the death-qualification process. See State v. Williams, supra, 113 N.J. at 408, 550 A.2d 1172. Moreover, for reasons stated more fully below, I believe that the trial court’s failure (1) to define the crime of murder or (2) to ask venirepersons about the possible effect that evidence of Biegenwald’s prior murder convictions would have on their decision-making process did not render this voir dire constitutionally deficient.
II
The Trial Court’s Failure to Define Murder During Voir Dire
For the first time on appeal defendant raised the issue that failure to define the crime of murder denied defendant a fair and impartial jury. The trial court did not define murder for *85prospective jurors because it was unnecessary. This jury did not have to determine whether Biegenwald had committed murder; that had already been determined. This jury’s sole function was to determine the appropriate penalty. Failure to provide a legal definition on a tangential issue during voir dire is not “clearly capable of producing an unjust result.” State v. Hunt, supra, 115 N.J. at 363, 558 A.2d 1259 (citing R. 1:7-2 and R. 2:10-2).
Defendant’s reliance on State v. Williams, supra, 113 N.J. at 412 n. 5, 550 A.2d 1172, is misplaced for three reasons.
First, Williams was a case in which the same jury would be called on to decide the guilt/non-guilt issue and the life-imprisonment/death-penalty issue. Of course, “knowledge about what constitutes capital murder,” ibid., would have a place in such a pre-guilt setting. This jury never had a pre-guilt stage.
Second, this trial court in fact met the Williams command. “It would be helpful if the trial court provided the jurors with an outline of the State’s death penalty statute.” Ibid. The trial court gave, in its words, “a basic outline to them.” It said that it was usually “done in a two-stage procedure.” The court then continued:
This case is a murder case, but your task is somewhat unusual. It’s a different kind of task that you’ll be asked to perform.
ft#***#*#
The first stage before the jury is to determine whether or not the person who is accused of the crime is guilty of the crime of murder, the jury sits and decides whether the man is or woman is guilty or not guilty of murder. That’s the first stage [in the typical case].
Then the legislature has said after that’s finished, then there is a second proceeding, a second trial and the purpose of the second trial is to determine what the penalty is that should be imposed, the jury in New Jersey is the one that decides the penalty. And the options that the legislature has enacted in the law are two: The penalty, if somebody is convicted of murder the penalty is either death or the life imprisonment with no parole for at least 30 years. Those are the options.
Ultimately when a case is tried, it’s tried to the same jury for the first part and for the second part. So the jury that heard all the evidence on whether or not the person is guilty of the crime, if it decides the person is guilty, then that *86same jury sits and the case continues with the presentation of additional proofs which bear upon the jury’s decision in the second part of the case, whether the man is to be penalized by death or penalized by life imprisonment with no parole for at least 30 years.
Of course if the jury in the first part of the case decides the person is not guilty, that’s the end of it.
The proofs that are proffered in the second part of the case are proofs which bear upon what are called aggravating and mitigating factors. Common sense tells you the aggravating factors are those proofs which would cause you to kind of lean towards the death penalty. Mitigating factors are those factors which would cause you to lean towards life imprisonment with no parole for at least 30 years. Those are the proofs that are presented in the second part of the case.
And after those proofs are presented, then the jury deliberates as to what the penalty should be and it weighs and carefully considers those aggravating and mitigating factors under principles of law which the trial Judge explains to the jurors.
Now, the legislation, while it provides that usually the same jury takes care of both parts of the case also allows in specific cases for a different jury to be impaneled for the second part than that jury which heard the first part. And that’s exactly what’s happening here.
Richard Biegenwald has been convicted of murder, no question about that, he’s guilty of murder. The question the jurors in this case will be deciding is what is the appropriate penalty of the two options which the legislature has provided. The jury we’re going to select then will have to decide whether from all of the proofs that are [proffered] on these aggravating and mitigating factors and after weighing them in accordance with the law, will have to decide whether death is the appropriate penalty or rather whether the other appropriate penalty is life imprisonment with no possibility of parole for at least 30 years. This jury then we’re going to pick is not going to be concerned at all with deciding whether the man was, should have been, or is not guilty. He is guilty. No question about that. And you don’t have any concern over that. The jury that’s going to decide this case will decide punishment or penalty.
Now, our purpose is to select from among you, jurors who will be able to fulfill that responsibility in a fair and impartial way. We will attempt to ascertain from each of you whether you think that you can do so by way of an inquiry which will involve, one, your preparation of answers to a written questionnaire that we’ll distribute, that written questionnaire will ask questions about your background, things of that nature, and then we will, after you fill out the questionnaires, you’ll come in individually and we will look at the answers to the questions and we’ll ask you certain questions which will enable us, that means the Court and the lawyers involved, to get an idea of your background and your thinking, so that we can evaluate whether you ought to be able to be a fair and impartial juror on this case.
Because trial counsel asked for no more-elaborate definition of the issues before the jury, we appraise this issue under the *87plain-error standard. An “outline” of this detail convinces me that the court’s failure to adorn it further did not contribute to an unjust result. See State v. Hunt, supra, 115 N.J. at 350, 558 A.2d 1259. These jurors certainly had “some basic comprehension about what their legal duties as jurors would be.” State v. Moore, supra, 122 N.J. at 446, 585 A.2d 864.
Finally, it is not at all clear that Williams itself would have held such a failure to be reversible error. Williams stated that “it would be helpful” for the trial court to provide such a definition. Ibid. Williams did not state or imply that failure to do so gave rise to a presumption or even an inference that jurors were confused or misinformed.
I am not convinced that either the facts of this case or the holding of Williams made defining murder during voir dire an absolute imperative. I am also not convinced that even if they did, this Court’s instructions did not meet that standard. I am convinced, however, that the failure to define murder was not plain error.
Ill
The Trial Court’s Refusal to Ask Jurors on Voir Dire How They Would React to Evidence of Aggravating Factor N.J.S.A. 2C:11-3c(4)(a)
The trial court refused to ask prospective jurors whether they could consider evidence in mitigation once they heard evidence that Biegenwald had been convicted of murdering another person in addition to Anna Olesewicz. I believe that the trial court had the discretion to refuse to ask that question. I also believe that even if the court should have allowed the question, any resulting error was harmless. Hence, I must disagree with the majority.
A
“Jurors must not be asked categorically to prejudge their willingness to impose the death penalty in the case.” State v. *88Ramseur, supra, 106 N.J. at 257, 524 A.2d 188. Here, the proffered question comes dangerously close to doing exactly that. Obviously defense counsel would have liked to know the answer to that question; undoubtedly he could have more intelligently made peremptory excusáis if he could have forced a response to that question. Those two observations themselves do not create a constitutional command. Mu’Min v. Virginia, supra, — U.S. at -, 111 S.Ct. at 1904, 114 L.Ed.2d at 504. Moreover, the prospect of uniformly requiring such a question troubles me.
The Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice veniremen against him. * * * Thus, the State’s obligation to the defendant to impanel an impartial jury generally can be satisfied by less than an inquiry into a specific prejudice feared by the defendant. [Ristaino v. Ross, 424 U.S. 589, 594, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258, 263 (1976)].
As the United States Supreme Court has stated: “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.” 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). Whether to allow this inquiry on voir dire is, and should remain, within the sound discretion of the trial court. State v. Hunt, supra, 115 N.J. at 357, 558 A.2d 1259.
I remind the majority that “[t]he distinction between questions which ask jurors how they would decide issues of a case if and when such issues are presented and questions which merely inquire whether jurors can start the case without bias or prior inclination is not always crystal clear.” Waters v. State, 248 Ga. 355, 363, 283 S.E.2d 238, 247 (1981). That is precisely why we accord a “sound measure of discretion” to trial judges in the conduct of voir dire. State v. Hunt, supra, 115 N.J. at 357, 558 A.2d 1259. The written record may not only “ ‘conceal[ ] subtle nuances,’ ” State v. Ramseur, supra, 106 N.J. at 260, 524 A.2d 188 (quoting State v. Gilmore, supra, 103 N.J. at 547, 511 A.2d 1150 (Clifford, J., dissenting)), but it may also permit overly-precise dictionary distinctions not appreciable in *89the discourse of the trial. This trial judge, after lengthy consideration of draft questions proposed by defense counsel, the prosecutor, and himself, rejected inquiries on this subject because it asked “the ultimate question” in the case. His reasons, detailed and thorough, showed no abuse of discretion. They covered roughly twenty-six pages of transcript and all the relevant statements of this Court and clearly indicated careful consideration. Moreover, they accord with the decisions of other jurisdictions that have decided the issue. I find no abuse of discretion and would accord this trial court’s well-reasoned, competent, and conscientious decision the deference it deserves.
Other states have voiced similar concerns and reached similar conclusions when faced with this issue. In Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806 (1983), the Georgia Supreme Court considered the propriety of the following question in a capitalresentencing hearing:
Assume there’s a murder, two murders with aggravating circumstances proved to your satisfaction, would you be * * * willing or able to consider a sentence less than death under those circumstances and follow the law that allows it. [Id. at 667, 308 S.E.2d at 819.]
It held that “the defendant cannot create error by eliciting' responses to questions that solicit the juror’s views on evidence not yet presented.” Ibid. In this Georgia case even the dissent believed that mentioning “two murders” in the voir dire question was “possibly objectionable,” noting that “questions incorporating facts yet to be proved are often quite improper.” Id., 308 S.E.2d at 822 (Gregory, J., dissenting). The Georgia Supreme Court has rejected similar questions in other cases. In Castell v. State, 250 Ga. 776, 783, 301 S.E.2d 234, 243 (1983), the court rejected certain voir dire questions in a capital case because they “might require [jurors] to prejudge the case.” Similarly, in State v. Waters, supra, 248 Ga. at 363, 283 S.E.2d at 247, another capital case, the court held that “no question should require a response from a juror which might amount to prejudgment of the case.” In all three cases the Georgia court carefully expressed its decision in terms (e.g., “might require”) *90that indicate its resolve to stay far clear of such areas on voir dire. Perhaps more importantly, the appellate court deferred to the sound discretion of the trial court in all three cases. See Godfrey v. Francis, supra, 251 Ga. at 667, 308 S.E.2d at 819; Castell v. State, supra, 250 Ga. at 783, 301 S.E.2d at 243; State v. Waters, supra, 248 Ga. at 363, 283 S.E.2d at 247.
The main thrust behind such resolve springs from a desire to avoid trying the case during voir dire. The jury should decide the ultimate issues of fact based on the evidence they all hear at trial, not the questions any one of them is asked on voir dire. “The parties are furnished the opportunity to make proper inquiry, but they are foreclosed from trying their cases at the time of voir dire.” State v. Jahnke, 682 P.2d 991, 1003-1004 (Wyo.1984). Even where the question itself does not seek an immutable commitment from the juror, it can result in a similar dynamic. “The question was improper because it went to the ultimate issue of fact. * * * The question required the jury to speculate on evidence to be presented at trial. Furthermore, the question was designed to probe a juror’s present impression of facts which were to be later developed at trial.” Reynolds v. Commonwealth, 6 Va.App. 157, 367 S.E.2d 176, 183 (1986); see also State v. Montez, 309 Or. 564, 584, 789 P.2d 1352, 1366 (1990) (a question may be improper even if it only “asks the juror to comment in advance on how he would react to specific evidence”). I find these cases, along with those of Georgia, soundly reasoned, employing an analysis comparable to that used by the trial court here.
Today’s majority believes that the question considered by the trial court merely sought to “inquire about the impact that knowledge of other murder convictions would have on the ability of prospective jurors to credit or consider evidence in mitigation.” Ante at 34, 594 A.2d at 189. It views that question as reflecting a straight-edge distinction between responses that commit prospective jurors to accept a certain result and those that commit prospective jurors to consider a certain result. Ante at 34, 594 A.2d at 189. Although in the *91proper case I agree that “an adequate voir dire should incorporate the suggestions of Williams II and Moore,” ibid., I do not believe the “suggestions” in those cases are applicable here. The accept/consider distinction often evaporates as a constraint on voir dire because it transforms the process into “the selection of a jury as favorable to the party’s point of view as indoctrination through the medium of questions or assumed facts and rules of law can accomplish.” State v. Manley, supra, 54 N.J. at 281, 255 A.2d 193 (emphasis added). We have never sanctioned that as a legitimate aim of voir dire. Voir dire should produce neither a final verdict nor an arbiter’s nonbinding resolution.
Moreover, the majority also believes that it can merely interchange “another murder” for “rape” for the purpose of analysis under State v. Williams, supra, 113 N.J. 393, 550 A.2d 1172. Ante at 31, 594 A.2d at 187. It cannot. Although each establishes a statutory aggravating factor, the prior-murder factor is unique among the statutory aggravating factors. State v. Biegenwald, 110 N.J. 521, 538, 542 A.2d 442 (1988). The distinction between these two aggravating factors is more than semantic.
In State v. Williams, supra, 113 N.J. at 412-13 n. 5, 550 A.2d 1172, we approved of voir dire questions with “hypothetical examples to probe how various factors might affect a person’s decision-making process” in the context of examining the effect of a victim’s status or other non-statutory factors. We sought to ensure only that a jury remain focused on the defendant before it.
As this Court has stated,
the consideration of the individual characteristics of the offender and his crime is “a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976); see also Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990 (1978) (“an individualized decision is essential in capital cases”). In sentencing, the jury must have before it all the possible relevant information “regarding the individual characteristics of the defendant and his offense, including the nature and circumstances of the crime and the *92defendant’s character, background, history, mental condition, and physical condition.” California v. Ramos, 463 U.S. 992, 1006, 103 S.Ct. 3446 [3456] 77 L.Ed.2d 1171, 1184 (1983); Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929, 941 (1976).
In sentencing a defendant in a capital murder case, it is extremely important that the jury, in determining whether a defendant should receive the death penalty or life imprisonment, know that the defendant has previously been convicted of one or more murders. [State v. Biegenwald, supra, 110 N.J. at 538-39, 542 A.2d 442.]
Precisely because the determination of whether to inflict capital punishment on a given defendant is an “individualized decision,” Lockett, supra, 438 U.S. at 605, 98 S.Ct. at 2965, 57 L.Ed.2d at 990, based on the “character of the individual and the circumstances of the crime,” Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2744, 77 L.Ed.2d 235, 251 (1983), we stated that
in accordance with our decisions in Williams II, Long, and Zola, voir dire should allow more open-ended questioning on the issue of the status of the victims as it relates to any prejudice or predisposition affecting the juror’s ability to consider mitigating evidence in any penalty phase. [State v. Moore, supra, 122 N.J. at 451, 585 A.2d 864 (emphasis added).]
By going beyond that rationale in this case, the majority fundamentally recasts this Court’s understanding of the goal of voir dire under the guise of applying established law.
Sympathy engendered by the victim’s status must not infect the careful balancing of evidence “ ‘regarding the individual characteristics of the defendant and his offense.’ ” State v. Biegenwald, supra, 110 N.J. at 539, 542 A.2d 442 (quoting California v. Ramos, supra, 463 U.S. at 1006, 103 S.Ct. at 3456, 77 L.Ed.2d at 1189). Despite the United States Supreme Court’s recent decision in Payne v. Tennessee, — U.S. -, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1990), the propriety of introducing victim-impact evidence during any part of a capital case in New Jersey remains subject to the capital-sentencing jurisprudence of this state. Payne merely held that introducing victim-impact evidence is not a per se violation of the eighth amendment, and that state law may, but need not, allow the use of such evidence so long as such use conforms to the due process requirements of the federal constitution in any given *93case. Id. at -, 111 S.Ct. at 2608, 115 L.Ed.2d at 735. However, “the primary responsibility for defining crimes against state law [and] fixing punishments for the commission of these crimes * * * rests with States.” Ibid. New Jersey has chosen, as it may under our constitutional system, id. at -, 111 S.Ct. at 2609, 115 L.Ed.2d at 736, not to allow the introduction of victim-impact evidence unrelated to “the substantive issue of guilt or the penalty to be imposed.” State v. Williams, supra, 113 N.J. at 452, 550 A.2d 1172; see also State v. Clausell, 121 N.J. 298, 341, 580 A.2d 221 (1990) (citing Williams); State v. Pennington, 119 N.J. 547, 566-67, 575 A.2d 816 (1990) (same).
Voir dire affords an important opportunity to inquire about potential victim-related biases. The questions suggested in Moore and Williams II involved cases in which a murder victim was raped or was a child or was the pregnant spouse of the defendant. A rape/murder is often, though not exclusively, a gynocide causing excessive, and deserved, sympathy for the victim. Likewise, infanticide, foeticide, and uxoricide have the potential to divert jurors from their duty to assess the defendant to their desire to avenge the victim. Voir dire questions, like this trial court’s repeated inquiries regarding a venireperson’s ability to decide after hearing evidence regarding the murder of a young woman, properly explore the effect of a victim’s status on the prospective juror’s decision-making process.
Although the presence of evidence relating to N.J.S.A. 2C:11-3c(4)(c) (murder involved torture or aggravated assault resulting in pain in addition to that necessary to cause death), c(4)(g) (murder involved other crimes, like rape, committed against this victim and/or other victims), or c(4)(h) (murder involved killing a public servant) may raise heightened concerns that demand further voir dire to establish that the victim’s status will not prejudice the jury, the other aggravating factors simply do not raise those concerns. In State v. Marshall, 123 N.J. 1, 586 A.2d 85 (1991), we did not insist that voir dire examine the *94impact of evidence on N.J.S.A. 2C:11-3c(4)(e) (murder involved paying another to kill). We have never suggested in any of our previous decisions in this case, see State v. Biegenwald, supra, 106 N.J. 13, 524 A.2d 130, and State v. Biegenwald, supra, 110 N.J. 521, 542 A.2d 442, that adequate voir dire must include questions on the impact of N.J.S.A. 2C:11-3c(4)(a) evidence. The difference between Marshall and the Biegenwald cases and those cases like Moore and Williams II is that the latter two contained evidence of aggravating factors that could easily be transformed from lenses through which the jury should examine the defendant into mirrors in which it saw the victim. When the reflection in such a mirror is not related directly to the circumstances of the crime, it has no place at trial and may be weeded out at voir dire. However, evidence of the c(4)(a) factor is non-reflective and could not implicate a victim’s status in the way in which the facts and factors in Moore and Williams II could.
I have one further reason for disagreeing with the majority’s insistence that this type of question is a required part of an adequate voir dire. This “question,” if mandated in all future voir dire, promises to unravel much of the capital sentencing jurisprudence we have painstakingly developed. We have had to recast the New Jersey Capital Punishment Act numerous times to insure its constitutionally-satisfactory tone. See State v. Marshall, supra, 123 N.J. at 208, 586 A.2d 85 (O’Hern, J., concurring in part and dissenting in part). That has rightly resulted from the application of
our interpretative decisions in State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987); State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987); State v. Bey, 112 N.J. 123, 548 A.2d 887 (1988) (Bey II); and State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988). We have had to reverse capital cases often for reasons with which the Legislature itself has concurred. See, e.g., State v. Biegenwald, supra, 106 N.J. 13, 524 A.2d 130 (burden is on State to prove beyond a reasonable doubt that aggravating factors outweigh mitigating factors before sentence of death may be imposed); and see L. 1985, c. 178, § 2 (to the same effect); State v. Bey, 112 N.J. 45, 548 A.2d 846 (1988) (Bey I) (sentence of death may not be imposed on juvenile offender); and see L.1985, c. 478, § 1 (to the same effect). [Ibidi]
*95However, the death penalty cannot continue to serve its purpose, “consistent with our history and tradition,” id. at 209, 586 A.2d 85 (O’Hern, J., concurring in part and dissenting in part), unless it operates actually, consistently, and fairly.
Today the majority undertakes an unnecessary recasting of the capital-punishment jurisprudence of this state. With but one exception, this Court professes “to believe that conscientious prosecutors and capable courts and counsel can fairly try capital cases.” Id. at 208, 586 A.2d 85 (O’Hern, J., concurring in part and dissenting in part). This case was fairly tried, in keeping with our major interpretative statements as well as with the limited holdings of State v. Moore, supra, 122 N.J. 420, 585 A.2d 864, and State v. Williams, supra, 113 N.J. 393, 550 A.2d 1172. In insisting that it was not, the majority reaches well beyond established law in defining the requirements of what it understands as “fairness.” That in itself is unfair and could lead to the perception of an inconsistent application of capital punishment because
[t]hese decisions do not justify today’s decision. They merely prove how a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision. [United States v. Rabinowitz, 339 U.S. 56, 75, 70 S.Ct. 430, 439, 94 L.Ed. 653, 665 (1950) (Frankfurter, J., dissenting).]
The majority’s reliance on Moore and Williams II is a “progressive distortion,” ibid., that “giv[es] fair ground for the belief that Law is the expression of chance.” Id., 339 U.S. at 86, 70 S.Ct. at 444, 94 L.Ed. at 670. “Respect for continuity in law, where reasons for change are wanting,” and where the change will produce uncontemplated results and confusion, demand that the court not extend the law as it has today. Ibid.
This case, in many ways, is an easy one in which to introduce this type of voir dire question because it consisted only of a penalty phase. The intimation of a prior murder conviction during voir dire could not adversely influence the guilt/non-guilt determination. However, in the normal case, voir dire occurs before the determination of guilt. Unlike a case with an accompanying rape (in which the guilt-phase evidence will es*96tablish that the rape occurred or did not occur regardless of the questions asked during voir dire), evidence of a prior murder conviction is unlikely to emerge in the evidence presented during the guilt phase. By hinting at it during voir dire, the inquiry invites wild speculation during the initial segment of the trial. The majority understands that this type of question, logically extended to its reasonable conclusion, most probably will mandate a two-jury system for all capital trials involving the c(4)(a) aggravating factor to ensure that juries’ verdicts were not based on or influenced by such non-evidence. Ante at 44, 594 A.2d at 194. However, the majority cannot simply pull that thread from our capital-sentencing jurisprudence. The momentum created by this decision pushes us inevitably toward a two-jury system in all capital cases, whatever the aggravating factors alleged. What we have rejected explicitly, see State v. Ramseur, supra, 106 N.J. at 253-54, 524 A.2d 188, we should not now adopt implicitly. My fear that the majority’s position will cause the “unravel[ing] of much of the capital-sentencing jurisprudence we have painstakingly developed,” supra at 94, 594 A.2d at 223, gains strong support from the majority’s problematic return to issues decided in our original examination of the death penalty. See id.
The death-qualification process is a difficult one. Could an honest venireperson not answer “yes” when asked if evidence of a prior murder made it more likely that he or she would vote for death or that it would be very hard to find that mitigating evidence outweighed that aggravating factor? Yet, it would be difficult to say fairly that this juror was not “as nearly impartial ‘as the lot of humanity will admit,’ ” State v. Singletary, supra, 80 N.J. at 62, 402 A.2d 203 (quoting State v. Jackson, supra, 43 N.J. at 158, 203 A.2d 1), in a society where there is “substantial unanimity * * * as to the validity of the [prior murder conviction aggravating] factor. Perhaps the majority of decisionmakers in the system, including penalty-phase jurors, believe that this factor, if it exists, ought to be the factual basis for the imposition of a death sentence.” L. Bienen, N. Weiner, *97D. Denno, P. Allison, and D. Mills, The Reimposition of Capital Punishment in New Jersey: The Role of Prosecutorial Discretion, 41 Rutgers L.Rev. 27, 247 (1988).
Certainly, the Legislature believed evidence of a prior murder conviction ought to provide the factual basis for the imposition of the death penalty: it made such a finding a statutory aggravating factor militating in favor of a death sentence. Aggravating factors are meant to sway jurors. The death-penalty statute spells out specific aggravating circumstances that one may legitimately rely on when considering the death penalty in a given case. When, without any previous acquaintance with the actual contents of the Capital Punishment Act, a prospective juror believes that evidence of a prior murder conviction would influence, perhaps strongly influence, his or her decision to impose the death penalty, that citizen merely adds unstated support to a society-wide consensus enacted into law by our Legislature. One may agree naturally and unwittingly with most of society, our Legislature, and our courts that a prior murder conviction provides a legitimate basis to support consideration of the death penalty in a given case. Such a shared sentiment, discovered by the court during voir dire or realized by a juror during the later trial, does not deprive a defendant of an impartial jury.
I would defer to the trial court’s field-tested wisdom.
B
“Voir dire is not an end in itself but merely an effective means to select an impartial jury.” State v. Long, 119 N.J. 439, 479, 575 A.2d 435 (1990). I am convinced of the overall thoroughness of this voir dire. I am also convinced that the trial court’s instructions and the jury’s conduct vitiate any fear that this jury was biased or refused to consider evidence on mitigation. Therefore, I believe that this jury was impartial, or at least “as nearly impartial ‘as the lot of humanity will admit.’ ” State v. Singletary, supra, 80 N.J. at 62, 402 A.2d 203 (citation *98omitted). Any error resulting from failure to ask the proffered questions was harmless.
Like other cases with technical demerits directed at a voir dire where further questioning could have been helpful, see Mu’Min v. Virginia, supra, — U.S. at-, 111 S.Ct. at 1904, 114 L.Ed.2d at 504, the record here nonetheless assures me that “the overall scope and quality of the voir dire was sufficiently thorough and probing to assure the selection of an impartial jury.” State v. Biegenwald, supra, 106 N.J. at 29, 524 A.2d 130; see also State v. Dixon, supra, 125 N.J. at 247, 593 A.2d at 278 (“the questioning was sufficiently calculated to produce a fair and unbiased jury”); State v. Hunt, supra, 115 N.J. at 354, 558 A.2d 1259 (“although voir dire may not have been perfect in all respects * * *, it was sufficient to enable counsel and the court to evaluate the juror’s fitness to serve”); State v. Zola, supra, 112 N.J. at 397, 548 A.2d 1022 (citing State v. Biegenwald, supra, 106 N.J. at 29, 524 A.2d 130). The record also shows that the jury actually selected through this voir dire apparently proceeded in an impartial manner, even though they were not asked during voir dire how Biegenwald’s prior conviction would affect them.
Of course it may have been preferable for the trial court to have allowed the voir dire questioning requested by defense counsel with respect to the jurors’ attitudes about the “prior murder” factor. See post at 105-106, 594 A.2d at 229. (Stein, J., dissenting). We have repeatedly emphasized that Manley was never intended to freeze voir dire into a judicial straitjacket and that it is “appropriate for the court or for counsel to have asked additional open-ended questions directed to any specific feelings that the jurors might have had about capital punishment in that case.” State v. Moore, supra, 122 N.J. at 449-50, 585 A.2d 864 (emphasis added) (citing State v. Long, supra, 119 N.J. 439, 575 A.2d 435; Williams II, supra, 113 N.J. 393, 550 A.2d 1172; and State v. Zola, supra, 112 N.J. 384, 548 A.2d 1022).
*99However, it does not follow that the discretionary determination by this trial judge fell so far from the mark as to constitute a due process violation or an infringement on fair trial rights. See post at 104, 594 A.2d at 228 (Stein, J., dissenting) (“the Court’s holding attaches undue significance to the question the trial court refused to ask”). I am comforted in that conclusion in this case by the fact that on those few occasions when jurors were asked the question (because they had disclosed their knowledge of the prior murders) the jurors evidenced no unwillingness to consider the mitigating evidence, even in light of the prior murders. For example, prospective juror Russo was asked:
Q But even with another murder in your words, would you still be willing to listen and open to the possibility that the mitigating factors might still outweigh even that?
A Oh, yes, I’d listen, yes.
Q So even with another murder, it’s possible, I think, from what you have said, you still could vote for life imprisonment with no parole for at least 30 years?
A Yes.
Q Depending upon what you hear?
A Yes.
And prospective juror McCormack was asked:
Q Is there anything about what you have read about killings, plural, that you believe might affect your judgment in this case where essentially this case is the fact that he has been found guilty of a killing. Now we're going to decide the penalty. Do you think all that background information is going to have an effect on you?
A No.
Q You mean you’ll just be able to listen to what you hear in the Court room?
A Yes.
Q And if it’s different from what you read in the newspaper you’ll forget all about what you read in the newspaper?
A Yes.
Throughout the voir dire, all of the jurors who were qualified agreed that they would consider the mitigating evidence proffered by the defendant in evaluating the statutory aggravating factors. This jury was not closed-minded.
The majority states that
*100[t]he refusal to permit questioning on the impact of other murder convictions during voir dire constitutes serious error. Such error, however, is not irremediable. Defendant’s sentence may be upheld if the voir dire was otherwise so thorough and probing as to ensure that the jurors empaneled had the “capacity to credit the evidence in mitigation,” State v. Bey, 112 N.J. 123, 154 [548 A.2d 887] (1988) (Bey II), and the ability to perform their duties in accordance with the court’s instructions and their oaths, see Adams v. Texas, supra, 448 U.S. at 45 [100 S.Ct. at 2526] 65 L.Ed.2d at 589. [Ante at 34-35, 594 A.2d at 189.]
In addition to the obvious strengths I found in my review of the overall voir dire, and to the comfort I find in the responses of jurors like Russo and McCormack, other evidence demonstrates that the Bey II and Adams demands were met and any error remedied.
Defendant concedes that some venirepersons, unlike Russo and McCormack, whose understanding of the applicability of the death penalty was flawed and who indicated they would not be able to follow the law were properly excused for cause. Cf. State v. Dixon, supra, 125 N.J. at 247, 593 A.2d at 278 (“Any of those who had preconceived notions of guilt were excused.”). Venireperson Piceaci, for example, was excused for his belief that the “only case” in which he would not vote for a death sentence was “negligence * * * something like a hit and run.” Prospective juror Tulibacki was excused for his belief that capital punishment was appropriate for all murders except those committed either in anger or accidentally. Venireperson Luzzati was excused because he stated, “if it was cold-blooded murder, I feel that his life should be taken, too,” but “[i]f it was an accident, that’s something totally different.” Those three venirepersons’ answers about their death-penalty views were elicited through an initial, general, open-ended question by the trial court, followed by an invitation to the prospective juror to elaborate.
Of the questions defense counsel requested, most were asked by the court. There were approximately six or seven times when the court refused to ask questions requested by defendant. Those refusals followed two related types of requests. First, when a venireperson indicated that he or she would vote *101for the death penalty under “certain circumstances,” defendant requested an inquiry into what those circumstances were. Closely allied to that request, counsel occasionally sought inquiry into whether the knowledge that defendant had two prior murder convictions would substantially impair the juror’s ability impartially to decide defendant’s sentence. Unlike Williams II, in which the questioning was “woefully inadequate” and “marked by repeated defense objections” and in which defense counsel had exhausted all his peremptory challenges, 113 N.J. at 404-05, 550 A.2d 1172, here the questioning was adequate, there were few objections by defense counsel, and the defense used only thirteen of its peremptory challenges. Ante at 42, 594 A.2d at 194. The majority agrees that the voir dire with respect to pretrial publicity was adequate.
I also find that the voir dire was sufficiently probing to weed out any prospective jurors whose ability to determine defendant’s proper sentence was impaired. See State v. Hunt, supra, 115 N.J. at 351, 558 A.2d 1259; State v. Biegenwald, supra, 106 N.J. at 29, 524 A.2d 130. As in State v. Zola, supra, 112 N.J. at 396, 548 A.2d 1022, there were “some areas in which more inquiry would have undoubtedly been of assistance, as in the questioning of some jurors who expressed the view that capital punishment would be appropriate in some cases but not in others.” The Court indicated in Zola, however, that the critical information to be garnered through voir dire is that jurors “be able to follow the law and to weigh the factors prescribed by the capital punishment act.” Ibid. The voir dire in the present case appears to have accomplished that task.
The jurors understood that the trial would provide the appropriate considerations for sentencing, and venirepersons who expressed their inability to conform to the process were excused. That is the aim of a proper and adequate voir dire, no more, no less. Those jurors professed to be fair, and we cannot forget their conscientious efforts. People will “inevitably react to what [they] hear as [they] hear it.” State v. LeFera, 42 N.J. 97, 108, 199 A.2d 630 (1964). That fact of human nature should *102not lead us to assume that they were unequal to their oath to apply the law conscientiously and to find the facts. All those jurors said that they would “leave their prejudices on the courthouse steps and decide [the] case on the merits alone.” Id. at 110, 199 A.2d 630. The record indicates that they did so.
My confidence in the fairness of the outcome receives further support in the court’s instructions, instructions that we must assume the jury followed:
Under your oath you are obligated to accept [the law as I have explained it] and then use those principles in deciding the case.
********
If, in your deliberations, you should become confused as to the legal principles that I have defined and explained for you, simply frame a question in writing * * * and after reading it and discussing it with counsel, if necessary, we’ll call you back into the jury box and I’ll go over it again. We don’t want you to decide the case in a state of uncertainty as to what the law is. Any problem with that, let me know.
* * * It may well be that as you sit there now, each of you has a tentative conclusion in your mind as to how you are going to vote on the aggravating and mitigating factors, and how you intend to vote on the ultimate penalty that you will choose as appropriate to this case.
********
What would be wrong is if you were to blindly cling to that tentative conclusion despite persuasive arguments for considerations raised by your fellow jurors during the deliberative process.
The jurors were also told that
[i]n deliberating on whether one or more of the mitigating factors has been established, you will focus primarily on the testimony of Dr. Eshkenazi [Biegenwald’s psychiatrist].
Armed with those instructions, this jury did not behave like a group that had foreclosed consideration of evidence in mitigation. It asked for read-backs of Dr. Eshkenazi’s testimony, testimony going directly to the issue of mitigating factors. It did find two aggravating factors present. However, a number of the jurors concluded that two mitigating factors, N.J.S.A. 2C:11-3c(5)(d) (impairment by mental disease or defect) and c(5)(h) (the “catchall” factor), also existed. Only after deliberating in this manner did this jury find unanimously and beyond *103a reasonable doubt that the aggravating factors outweighed the mitigating ones.
The jurors who were chosen all agreed that they believed the death penalty was appropriate in some instances and not in others, that they could consider and weigh the aggravating and mitigating factors presented at trial and determine the sentence, that they could impose either life or death, that they could listen to and consider psychiatric testimony, and that they could follow the trial court’s instruction on the law. See State v. Dixon, supra, 125 N.J. at 247-248, 593 A.2d at 278. In sum, they were a jury that could “ ‘conscientiously apply the law and find the facts.’ ” State v. Koedatich, supra, 112 N.J. at 293, 548 A.2d 939 (quoting Wainwright v. Witt, supra, 469 U.S. at 423, 105 S.Ct. at 851, 83 L.Ed.2d at 851). The overall thoroughness of the voir dire remedied the error, if any, occasioned by failure to expand voir dire to include a specific inquiry into the effect defendant’s prior murder convictions would have on a venireperson’s ability to credit and consider evidence in mitigation.
IY
Other Issues
I, like the majority, believe the New Jersey Capital Punishment Act is constitutional. See State v. Ramseur, supra, 106 N.J. at 185-90, 524 A.2d 188. I also believe that the majority correctly rejects defendant’s claims under State v. Gerald, 113 N.J. 40, 69, 549 A.2d 792 (1988). As in numerous other cases, this record and the record at the guilt/non-guilt phase provide no rational basis on which a jury could conclude that defendant shot this young woman with an intent to cause serious bodily injury rather than death. See, e.g., State v. McDougald, 120 N.J. 523, 577 A.2d 419 (1990); State v. Rose, 120 N.J. 61, 576 A.2d 235 (1990); State v. Pitts, 116 N.J. 580, 562 A.2d 1320 (1989); State v. Hunt, supra, 115 N.J. 330, 558 A.2d 1259.
*104I also agree with the majority that there was no abuse of discretion in failing to relieve defense counsel or in failing to change venue sua sponte. I only wish that the majority would have similarly deferred to the trial court’s exercise of discretion during jury-selection. Ante at 23, 594 A.2d at 183 (noting that “the nature of jury selection inherently requires evaluation of the demeanor of venirepersons, an assessment narrowly circumscribed on appellate review of an unanimated transcript”).
Finally, I do not believe that any of the issues not reached by the majority have merit.
V
Conclusion
Both the jury that initially decides a capital case and the appellate court that inevitably reviews that decision understand the gravity of a decision to impose the death penalty. Appropriately selected and properly educated on the law and the facts of the case, neither views its duty with anything but solemnity, because the decision to impose or to uphold society’s ultimate sanction is not undertaken lightly. The record demonstrates that this jury was properly selected for, and educated to, its task. That being the case, and no other ground for reversal being present, my duty is clear. I would affirm the sentence.
O’HERN, J., concurs in this opinion.