People v. Harris (98 N.Y.2d 452, 2002)

OPINION OF THE COURT

Wesley, J.

In 1995, the New York Legislature restored the death penalty to New York’s criminal statutes for the first time since 1984. Although this Court has on several occasions dealt with issues related to the new statute (see People v Mower, 97 NY2d 239; People v Edwards, 96 NY2d 445; Matter of Francois v Dolan, 95 NY2d 33; People v Couser, 94 NY2d 631; People v Mateo, 93 NY2d 327; Matter of Hynes v Tomei, 92 NY2d 613), this case presents the first full appeal of a sentence of death in New York in almost 20 years.

In the early morning hours of December 7, 1996, defendant entered a Brooklyn social club located on 178 Jefferson Avenue. Club 178, also known as Club Happiness, or KPs, is a small neighborhood club. Jerome Sims, Evelyn Davis, Michael Harris, Eddie Brown and Newbry Mitchell — all known to defendant — were in the club at that time. Defendant sat down at the bar and ordered a beer from Jerome Sims, the manager. After drinking his beer and smoking some cigarettes, defendant went to the bathroom. When he emerged, he spoke to Sims and then, while displaying a gun, announced “You all know what this is. Everybody get on the floor.”

Defendant demanded money from Brown who handed defendant over $200. Defendant directed Sims to approach him. As Sims walked past him, defendant turned and shot Sims in the head at point-blank range. Defendant then shot Michael Harris in the back of his head at close range as he lay behind a table. Defendant turned to Evelyn Davis, fired a shot at her and set his sights on Brown. Defendant shot Brown in the head, seriously wounding him.

Davis escaped the shot unharmed. She begged defendant to let her go, pleading with him “I got five babies.” As Davis tried to run out of the club, defendant stabbed her in the back. Davis struggled, screaming “let me out of here.”

While defendant attacked Davis, Newbry Mitchell escaped out a door leading to the second floor of the club and jammed the door closed behind him. Defendant ran after him and attempted to open the door but soon gave up. Mitchell fled to the second floor. When Mitchell reached a window, he heard the sound of the club’s front door slam shut. Mitchell peered out the window and saw Davis stagger across the street with defendant in close pursuit.

Davis ran to another social club nearby, Club 432, where she appeared breathless with blood coming from her mouth. She entered the club and sat down. When she heard the doorbell, she screamed “No, don’t let him in. That’s him, that’s him. Everybody around the corner is shot. Darrel shot * * * Shirt Man [Eddie Brown], everybody is shot.” No one opened the door. An ambulance arrived and took Davis to the hospital where she was pronounced dead.

Despite his head injury, Brown managed to leave the club. He was discovered by police officers who had stopped a vehicle for a traffic violation nearby. In the meantime, Mitchell, after returning downstairs and seeing the lifeless bodies of Harris and Sims, fled the scene. Defendant was apprehended approximately two weeks later.

Defendant was indicted on six counts of first-degree felony murder, for the deaths of Jerome Sims, Michael Harris and Evelyn Davis, with the robbery of Eddie Brown as the underlying felony for each count (Penal Law § 125.27 [1] [a] [vii]). He was also charged with six counts of first-degree same-transaction murder (Penal Law § 125.27 [1] [a] [viii]) and several other related offenses. On May 23, 1997, the District Attorney of Kings County filed a notice of intent to seek the death penalty pursuant to CPL 250.40 (2).

Following his arrest defendant gave a number of statements implicating Newbry Mitchell. However, at trial defendant acknowledged sole responsibility for the crimes but contended that his actions were the result of extreme emotional disturbance (Penal Law § 125.27 [2] [a]). Specifically, defendant contended that he suffered from post-traumatic stress disorder related, in part, to alleged abuse and spinal meningitis as a child and the trauma of a prison riot that occurred when he worked as a corrections officer. During the riot, defendant rescued a fellow corrections officer, an act of heroism that earned him a Medal of Honor from the Department of Correction in 1987.

The trial commenced on May 4, 1998 and was completed on May 18, 1998. After two days of deliberations, the jury returned a verdict of guilty on six first-degree murder counts, attempted first-degree murder and second-degree criminal possession of a weapon. The sentencing determination hearing took another week. After three days of deliberations, the jury sentenced defendant to death. This direct appeal pursuant to article VI, § 3 (b) of the State Constitution and CPL 450.70 (1) followed.

We conclude that defendant’s guilt was established beyond a reasonable doubt and that the verdict was not against the weight of the evidence. We further conclude, as discussed in the ensuing sections, that there was no reversible error in the conduct of the trial, and that the death sentence must be vacated.

I.

Defendant has briefed 28 issues and over 60 sub-issues seeking reversal of his conviction, vacatur of his sentence and other relief. Defendant attacks the constitutionality of the entire statutory scheme, and claims that his sentence is unconstitutional under Matter of Hynes v Tomei (92 NY2d 613).

We begin with the recognition that “death is different” (see Furman v Georgia, 408 US 238, 306 [Stewart, J., concurring]). The statutory scheme that makes the penalty a possibility imposes many standards and procedures that are different from other criminal proceedings. For our part, the statute confers a unique set of appellate responsibilities on this Court (CPL 470.30). In addition to the powers of an intermediate appellate court (CPL 470.15, 470.20) we are required to review the factual basis for the conviction and the sentence (see CPL 470.30 [1], [2]; NY Const, art VI, § 3 [a]). We are also directed to examine whether the death sentence was imposed “under the influence of passion, prejudice, or any other arbitrary or legally impermissible factor including whether the imposition of the verdict or sentence was based upon the race of the defendant or a victim of the crime for which the defendant was convicted” (CPL 470.30 [3] [a]). We must determine whether the death sentence is excessive or disproportionate to the penalties imposed in similar cases (CPL 470.30 [3] [b]) and whether the decision to impose the sentence of death was against the weight of the evidence (CPL 470.30 [3] [c]). By its very nature a capital case requires the most meticulous and thoughtful attention. A mistake discovered years later may not be correctable.

II.

Pretrial Motions

Defendant made several pretrial motions; two need be addressed more fully.

A. Grand Jury Instructions on Intoxication Defendant moved to dismiss the indictment on a number of grounds. Among them, he contended that the integrity of the grand jury proceeding was impaired when the People refused to give an instruction on intoxication. The trial court determined that the instruction was not required in this case (People v Harris, 174 Misc 2d 654, 656).

This Court has determined that a prosecutor is not required to present mitigating defenses to a grand jury (People v Valles, 62 NY2d 36, 38). We have recognized that the question whether a grand jury should be instructed with regard to a particular defense depends upon its potential for eliminating a needless or unfounded prosecution. Unlike exculpatory defenses, which may result in a finding of no criminal liability, mitigating defenses only reduce the gravity of the offense committed. Thus, while a grand jury instructed on an exculpatory defense might avoid an unwarranted prosecution, the same result would not follow if the grand jury were instructed on a mitigating defense (id.; see also People v Lancaster, 69 NY2d 20, 29). Like a mitigating defense, intoxication merely reduces the gravity of the offense by negating an element.

We see no reason to depart from Valles. The People here were not required to instruct the grand jury on intoxication.

B. Challenge to the Felony-Murder Provision of Penal Law § 125.27 (1) (a) (vii)

Defendant moved to dismiss the counts of the indictment charging first-degree and attempted first-degree murder under the felony-murder provision of Penal Law § 125.27 (1) (a) (vii). According to defendant, the felony-murder provision irrationally includes some felonies rendering them death-eligible while excluding others.

The Supreme Court of the United States has been clear that while states can impose the death penalty there should be a “ ‘meaningful basis for distinguishing the few cases in which (the death penalty) is imposed from the many cases in which it is not’” (Gregg v Georgia, 428 US 153, 198 [citation omitted]; see Godfrey v Georgia, 446 US 420, 433). The Court has further recognized that a state’s capital sentencing scheme must “ ‘genuinely narrow the class of persons eligible for the death penalty’ ” (Arave v Creech, 507 US 463, 474 [quoting Zant v Stephens, 462 US 862, 877]). In accomplishing that result the capital statute must distinguish on a principled basis between those who deserve capital punishment and those who do not (id.).

The Eighth Amendment does “not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved” (Gregg, 428 US 153, 175). The decision to authorize capital punishment for classes of crimes is one best left to the Legislature unless clearly wrong. We recognize that the Legislature can determine among the sins of society those that require a criminal sanction, and prescribe the appropriate punishment (see People v Broadie, 37 NY2d 100, 117). Moreover, “courts may not substitute their judgment for that of the Legislature as to the wisdom and expediency of the legislation” (People v Davis, 43 NY2d 17, 30, cert denied 435 US 998, rearg dismissed 61 NY2d 670).

Defendant contends that the statute fails to include a capital sentence for murders committed in the course of and in furtherance of many felonies that the Legislature has classified as among the state’s most serious crimes (see e.g. Penal Law § 105.17 [class A-I first-degree conspiracy]; Penal Law § 220.43 [class A-I first-degree sale of a controlled substance]). Defendant submits that the classification of felony murder is not only underinclusive in that equally serious crimes are treated unequally but it is perverse in treating lesser crimes more harshly than serious ones.

One legislative goal of the 1995 death penalty legislation was to “deal with those crimes which most seriously affect society and the community as a whole” (Mem of State Exec Dept, 1995 McKinney’s Session Laws of NY, at 1781). The Legislature made the assessment that the predicate felonies for first-degree felony murder should be those that are potentially the most violent and involve a substantial risk of physical injury. As one court has noted:

“[G]rand larceny in the first degree is a class B felony, yet it is not included in subparagraph (vii), while simple robbery, a lesser grade of offense, is included. Rationally, the Legislature could have concluded that because of its inherently violent nature, robbery regardless of degree should be included, while grand larceny, though a greater offense, should not because it is not inherently violent. Moreover, the Legislature could have concluded that since an intentional killing in the course of a grand larceny — a crime not usually associated with violence — is so unlikely, there would be little deterrent effect in making such an offense death-eligible. By contrast, one might expect a more widespread deterrent effect to result from making intentional killings in the course of violent felonies, such as robbery, subject to the death penalty” (People v Hale, 173 Misc 2d 140, 158, mod on other grounds sub nom. Matter of Hynes v Tomei, 237 AD2d 52, revd 92 NY2d 613, cert denied 527 US 1015).

The Legislature’s decision to exclude felonies of a similar grade, but lacking the inherent potential for violence and physical injury, was therefore rational.

III.

Jury Selection

Defendant raises seven issues concerning substantive and procedural aspects of jury selection; several merit discussion. As an initial matter, defendant does not challenge the composition of the jury that sat on his case, and makes no claim of bias on the part of any member of that jury.

A. Life/Death Qualification Under CPL 270.20 (1) (f)

Prospective jurors whose views on the death penalty are such that they would be committed, before trial has begun, to vote either for or against the death penalty, regardless of facts that might emerge in the course of the proceedings, are excludable for cause (see Witherspoon v Illinois, 391 US 510, 522 n 21; see also Wainwright v Witt, 469 US 412). This process is known as life/death qualification (see Lockhart v McCree, 476 US 162; see also Morgan v Illinois, 504 US 719). “Death qualification” ensures that prospective jurors are able to consider the death penalty; “life qualification” ensures that prospective jurors can consider a life sentence. In New York, CPL 270.20 (1) (f) sets forth the standard and procedure for excluding ineligible jurors.

Defendant moved to postpone the death qualification process until after the guilt phase of his trial. He argued that death qualification as required by the statute would result in a conviction-prone jury and would disproportionately and unlawfully exclude certain cognizable groups from the venire. The court denied the motion (People v Harris, 176 Misc 2d 967). Relying on Lockhart (476 US 162), the court concluded that the statute did not violate the Federal Constitution and declined to address defendant’s state constitutional claim, deferring that determination to this Court. We conclude that defendant has failed to overcome the presumption of constitutionality with respect to CPL 270.20 (1) (f) (see Matter of Hynes v Tomei, 92 NY2d 613, 626; v Davis, 43 NY2d 17, 30).

In Lockhart (476 US 162), the Supreme Court of the United States rejected a similar challenge to pretrial death qualification. The Court acknowledged that some social science studies presented to the Court indicated that the removal of jurors who held views against the death penalty could affect guilt determinations, but found “serious flaws” in those studies (id. at 168). Even assuming that the studies were both valid and adequate to establish that death qualification in fact produced more conviction-prone juries, the Supreme Court nevertheless concluded that the Constitution did not prohibit the states from “death qualifying” juries in capital cases (id. at 173).

In Lockhart, the defendant’s Sixth Amendment claim was premised on the contention that the death-qualifying procedure denied him a jury that represented a fair cross-section of the community. The Court noted that it had never invoked the fair cross-section principle to invalidate the use of either for-cause or peremptory challenges, or to require a sitting petit jury — as opposed to a jury panel or venire — to reflect the composition of the community at large (id. [citing Duren v Missouri, 439 US 357, 363-364; Taylor v Louisiana, 419 US 522, 538; Batson v Kentucky, 476 US 79, 84-85 n 4]). “The limited scope of the fair-cross-section requirement is a direct and inevitable consequence of the practical impossibility of providing each criminal defendant with a truly ‘representative’ petit jury” (id. at 173-174).

Death qualification at the beginning of the trial is designed to serve the state’s “concededly legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial” (id. at 175-176). If we took the fair cross-section requirement to its logical extreme, it would inappropriately produce a jury composed in part of individuals who have indicated that they cannot and would not follow a judge’s instructions on the law and would undermine the defendant’s right to an impartial jury (see Wainwright v Witt, 469 US 412, 424 n 5).

Defendant concedes that Lockhart informs our inquiry here. Nevertheless, he maintains that independent state constitutional treatment of the issue requires a contrary result. He suggests that pretrial death qualification nullifies our state’s historic commitment to diversity and nondiscriminatory jury-selection procedures. He also contends that this Court has regularly recognized the significance of a defendant’s right to an impartial jury (see People v Johnson, 94 NY2d 600, 610; People v Branch, 46 NY2d 645, 650) and argues that pretrial death qualification undermines this right because the process conditions jurors toward a guilty verdict by requiring them to assume defendant’s guilt prior to trial. Moreover, he relies on studies that purport to show that the surviving jury is more conviction-prone, possesses pro-prosecution attitudes and is thus poisoned by the process.

Defendant’s challenge is really no different than that made in Lockhart. At least one New York court has rejected similar claims by another capital defendant (see e.g. People v Hale, 173 Misc 2d 140, 189-191). Nothing in the language of the state’s constitutional counterpart of the Sixth Amendment right to a jury trial (NY Const, art I, § 2) or our jurisprudence suggests that defendant is entitled to greater protection here on state constitutional grounds (see People v McCray, 57 NY2d 542, 550). Defendant also overlooks New York’s history of ensuring that juries are death qualified (see former Code Crim Pro § 377 [8]). Thus, we see no state constitutional impediment to CPL 270.20 (1) (f).

We recognize the importance of an impartial jury, but do not agree with defendant’s contention that pretrial death qualification somehow abrogates that right. Defendant’s claim— that the jury could have been preconditioned by pretrial qualification — is totally unpersuasive in this case. Defense counsel specifically asked every final panel whether any prospective juror believed that, as a result of the qualification process, defendant was presumed guilty. Not one expressed that opinion.

Defendant does not assert that the studies upon which he relies avoid the flaws noted in Lockhart. Rather, he maintains that Lockhart “disregarded sound academic principles”— undefined by defendant — by failing to consider the studies collectively. We disagree. The studies provide no solid proof that pretrial death-qualification detrimentally conditions a jury, leads to a more conviction-prone jury or excludes identifiable groups of people.

Furthermore, death qualification does not impair or detract from our well-documented commitment to jury panel diversity or to nondiscriminatory jury selection procedures. As the Supreme Court noted in Lockhart, “the Constitution presupposes that a jury selected from a fair cross section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case” (476 US at 184). The simple fact remains that the State has a valid interest in excluding jurors from a capital trial whose views on the death penalty (whatever they may be) render them unable to perform their sworn duty to try the entire case free of prejudice.

B. Trial Court’s Jury Selection Procedure

Defendant also contends that the trial court improperly conducted jury selection. He maintains that the trial court erred when it instructed the venire panels on the standards for juror qualification. In his view, the instruction enabled potential jurors to manipulate the outcomes of their voir dires, thus tainting the selection process. In addition, defendant argues that the trial court erred by conducting group voir dire.

During preliminary instructions to the venire panels, the court explained the life/death qualification process. It stressed to the panels that it was looking for jurors who would be open to both available sentencing options after a guilty verdict of murder in the first degree. At first defendant made no specific objection to the instructions. However, defendant ultimately did complain that the court was highlighting the requirements for jury selection to the panels.

To the extent the trial court may have forecast the type of individual who could avoid jury service when it described the life/death qualification process, we do not see the prejudice defendant claims to have suffered in this case. We presume that jurors follow their oaths, answer the questions put to them truthfully and abide by the court’s instructions (see People v Acevedo, 69 NY2d 478, 488). However, courts should exercise caution in this regard. The way in which a court conducts death/life qualification should encourage honesty and frankness in a juror’s responses without seeming to place a value or reward on a “correct” or “appropriate” answer.

We also reject defendant’s contention that CPL 270.16 (1) requires only individual voir dire in capital cases. CPL 270.16 (1) directs that the court permit the parties on motion “to examine the prospective jurors individually and outside the presence of the other prospective jurors regarding their qualifications to serve as jurors.” CPL 270.15 (1) (c) states that the court shall permit both parties to examine the prospective jurors “individually or collectively” regarding their qualifications to serve as jurors. There is nothing to suggest that in adding CPL 270.16, the Legislature intended to supersede CPL 270.15 (see People v Santiago, 184 Misc 2d 403, 405).

Defendant claims he was prejudiced when the court conducted group voir dire after individually questioning prospective jurors. The panels were asked if they had changed their minds after having a chance to consider their answers in the individual sessions. Defendant contends that because the jurors were “educated” in the individual interviews they could then alter prior answers and escape unwelcome jury service.

Defendant never made any specific objection to the group voir dire procedure; defense counsel only expressed a concern regarding the scope of the questions presented to a group panel on the issue of whether prospective jurors had a change of heart about sitting on a death penalty case. In addition, the record does not indicate that during group voir dire, prospective jurors were pressed further on their views regarding the death penalty. When an individual juror expressed doubt about her ability to convict defendant of first-degree murder, given the uncertainty of the penalty phase, she was asked no further questions about capital punishment.

C. Standard for Determining When a Juror Should be Excluded Pursuant to CPL 270.20 (1) (f): “Preclude” vs “Prevent or Substantially Impair”

Defendant complains that the trial court applied the wrong standard in determining for-cause challenges during CPL 270.20 (1) (f) life/death qualification. We disagree.

Our analysis begins with the federal standard for juror disqualification in capital cases. In Witherspoon v Illinois (391 US 510, 512), the Supreme Court confronted whether an Illinois statute could exclude prospective venirepersons who possessed “conscientious scruples against capital punishment.” The statutory exclusion eliminated nearly half the venire. The Supreme Court noted that the statute produced a jury that fell “woefully short of that impartiality to which the petitioner was entitled under the Sixth and Fourteenth Amendments” (id. at 518). While the State had the right to exclude jurors who, despite their oaths, would not be able to impose the death penalty, it crossed “the line of neutrality” when it removed from the jury all who expressed conscientious objections against the death penalty (id. at 520). “The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings” (id. at 522 n 21 [emphasis in original]).

Twelve years later, the Court faced a similar conundrum involving a Texas statute that disqualified prospective capital jurors unless they affirmed under oath that the mandatory penalty of death or imprisonment for life would not “affect” their deliberations on any issue of fact. Looking back to Witherspoon and several subsequent cases, the Supreme Court noted “a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath” (Adams v Texas, 448 US 38, 45). The Court recognized that Witherspoon did not express a ground for challenging any prospective juror. It limited the State’s power to exclude: “if prospective jurors are barred from jury service because of their views about capital punishment on ‘any broader basis’ than inability to follow the law or abide by their oaths, the death sentence cannot be carried out” (id. at 48).

The Texas statute fell directly within the sweep of Wither-spoon) unlike exclusion based on noncapital categories (i.e., personal bias), the oath requirement in Adams focused on the prospective juror’s beliefs about the death penalty. Moreover, instead of testing the prospective juror’s ability to follow the law or abide by an oath, the statute allowed the exclusion of jurors who were merely “affected” by the death penalty. “[N] either nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey their oaths, regardless of their feelings about the death penalty” (id. at 50).

In Wainwright v Witt (469 US 412), the Supreme Court noted that Witherspoon recognized that there are individuals so opposed to the death penalty that their presence on a capital jury “might frustrate the State’s legitimate interest in administering constitutional capital sentencing schemes by not following their oaths” (id. at 423). There was “nothing talismanic about juror exclusion under Witherspoon merely because it involves capital sentencing juries. Witherspoon is not grounded in the Eighth Aanendment’s prohibition against cruel and unusual punishment, but in the Sixth Amendment” (id.). The quest is for “jurors who will conscientiously apply the law and find the facts” (id.). Thus, the Supreme Court concluded that the proper standard for determining when prospective jurors may be excluded for cause because of their views on capital punishment is whether a juror’s views would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath’ ” (id. at 424). This standard applies both to jurors who may be in favor of the death penalty and to those jurors who may be opposed to it (see Morgan v Illinois, 504 US 719, 735).

Under CPL 270.20 (1) (f) venire members are excluded for cause when they entertain views either for or against the death penalty that “preclude” them from performing their duties. The term “preclude” is generally defined as “to close” or “to make impossible by necessary consequence: rule out in advance” (Merriam-Webster’s Collegiate Dictionary 915 [10th ed]). Defendant contends that the People should be held to this higher standard, which for him differs markedly from the constitutional standard of “prevent or substantially impair.”

CPL 270.20 (1) (f) expressly mandates that a single standard be used to challenge prospective jurors who entertain “such conscientious opinions either against or in favor of ’ capital punishment (CPL 270.20 [1] [f| [emphasis added]). We understand the word “preclude” to relate to the ability of a prospective juror to perform his or her duty to act impartially and to follow a court’s instructions in accordance with the law and not as a measurement of the strength or sincerity of an individual’s feelings on the death penalty. As the Supreme Court cases tell us, the focus is on the jurors’ ability to serve impartially and not on how the death penalty affects them generally (see Wainwright, 469 US 412; Adams, 448 US 38). Thus, the word “preclude” must be understood as an embodiment of the Wainwright “prevent or substantially impair” standard.

Where jurors express conscientious views concerning the death penalty yet still make clear that they are able to follow their oaths to act impartially, they cannot be excluded for cause from participating on the jury. But where jurors express an inability to set aside their personal views on the death penalty in deference to the court’s instructions, their judgment is substantially impaired to a degree that it “preclude [s] [them] from rendering an impartial verdict or from properly exercising [their] discretion” under CPL 400.27 (CPL 270.20 [1] [fl). The trial court applied the appropriate standard for both the prosecution’s and defendant’s for-cause challenges under CPL 270.20 (1) (f).

D. Defendant’s For-Cause Challenge of Prospective Juror No. 233

Defendant claims that the trial court erroneously denied his for-cause challenge under CPL 270.20 (1) (f) to prospective Juror No. 233, thereby causing him to use a peremptory challenge to remove her from the jury. Because he exhausted all his peremptory challenges before the completion of jury selection, defendant argues he is entitled to a new trial under CPL 270.20 (2). We disagree.

Prospective Juror No. 233 indicated on her questionnaire that she was not certain of her feelings about the death penalty. During individual voir dire she stated that she did not feel that “anybody has a right to judge who dies and who doesn’t.” She did note that her sentence determination would depend on the situation and further stated that while she could vote for the death penalty in this case, she would not necessarily do so. She agreed that she would listen to all the factors that defendant would offer for consideration of the sentence to be imposed. In particular, she indicated that she would want to hear about defendant’s criminal record and life experiences. She then expressed strong skepticism about child abuse as a cause of adult behavior.

Juror No. 233 later indicated that she could consider evidence about trauma a person suffered as an adult, and how it might have affected defendant. Specifically, she noted that she could take into account defendant’s experiences as a corrections officer, his involvement in protecting another officer’s life during a riot and resulting psychiatric damage. Finally, Juror No. 233 reiterated that she would never automatically vote for the death penalty.

Defendant moved to excuse Juror No. 233 for cause, claiming that “her inability to consider and give any weight to * * * what will be one of the relevant mitigators is the basis to disqualify her [for] cause from serving on the jury.” The court denied the motion, ruling that No. 233’s feelings — that child abuse was merely the favored excuse of the 1990s — were not grounds for her exclusion from the jury. Ultimately, the defense excused her peremptorily. Because defendant exhausted his peremptory challenges before completion of jury selection, we may review the claimed error on this appeal (see CPL 270.20 [2]).

CPL 270.20 (1) codifies the grounds upon which a for-cause challenge may be made. Defendant’s challenge to Juror No. 233 was premised solely on CPL 270.20 (1) (f). While Juror No. 233 did not express any strong opinion either for or against the death penalty, she did indicate she was skeptical of child abuse and its subsequent effect on an adult’s behavior. But No. 233 was never asked if her uncertainty would affect her views on the death penalty in general or in its application to this case after a jury verdict of capital murder. Critically, No. 233 was never asked if despite her doubts concerning the significance of child abuse evidence she could still vote to give defendant life without parole.

CPL 270.20 (1) (f) is specifically directed at a potential juror whose views concerning the death penalty preclude the juror from serving during either stage of a capital trial. Thus, the statute anticipates a connection between the juror’s attitude regarding a mitigator and its effect on that juror’s consideration of the appropriate sentence. Defendant made no correlation between Juror No. 233’s views on child abuse and her views on the death penalty or her ability to exercise sentencing discretion conferred by statute. Thus, defendant has failed to make a claim that his for-cause challenge against Juror No. 233 pursuant to CPL 270.20 (1) (f) should have been granted.

IV.

Guilt Phase

We part company with our dissenting colleague on only two error claims identified in defendant’s 779-page main brief. As noted above, we do not share his legal analysis of the challenge to prospective Juror No. 233. In addition we disagree with his conclusion that the trial court committed reversible error during the guilt phase of the trial. However, three trial rulings merit discussion.

A. Trial Court’s Preclusion of Defendant’s Rebuttal

Defendant argues that the trial court erred in precluding the rebuttal testimony from a defense expert witness. Defendant contended at trial that he acted under extreme emotional disturbance due, at least in part, to post-traumatic stress disorder. Defendant retained two mental health experts: Dr. H. Westley Clark, a psychiatrist and expert in post-traumatic stress disorder, and Dr. Sanford Drob, a forensic psychologist who administered a battery of psychological tests to defendant. The prosecution, in turn, retained Dr. Daniel Martell, a forensic psychologist who also tested defendant extensively.

Clark noted that he had reviewed Drob’s tests and Martell’s report. Indeed, during his direct testimony, Clark continually referred to the tests performed by both Drob and Martell. However, Clark conceded early in his direct testimony that the psychological testing did not adequately address post-traumatic stress disorder. Rather, Clark indicated that his diagnosis of post-traumatic stress disorder ultimately was based on his own clinical evaluation.

During Clark’s direct examination, defense counsel asked him to comment on the differences between his report and its conclusions and that of Martell, who had not yet testified. The prosecution objected and the court ruled that defendant could not ask Clark questions that anticipated Martell’s testimony. Later, during a scheduling break, defense counsel expressed uncertainty whether Clark or Drob would be brought back to rebut Martell’s testimony. According to defense counsel, that decision would depend on Martell’s testimony. Following Clark’s testimony, the defense did not call Drob.

Drob listened to Martell’s testimony. Martell stated that based on his tests and some of Drob’s, he could not conclude that defendant suffered from post-traumatic stress disorder. Defendant cross-examined Martell on his conclusions. After Martell’s testimony, defendant sought to call Drob as a rebuttal witness to refute Martell’s findings with specific reference to certain psychological tests. The prosecution objected and defense counsel made a proffer.

In New York, “[t]he rules concerning the proper scope of rebuttal evidence are clear. The party holding the affirmative of an issue must present all evidence concerning it before he closes his case. Thereafter, that party may introduce evidence in rebuttal only” (People v Harris, 57 NY2d 335, 345; see also Fisch, New York Evidence § 326, at 211 [2d ed 1977]). Rebuttal evidence is limited to evidence in denial of an assertion of a new affirmative fact or other new matter which the opponent has endeavored to prove in reply to the case-in-chief (see Harris, 57 NY2d at 345). In some instances, rebuttal evidence may also be used for impeachment purposes (see id.; Ankersmit v Tuch, 114 NY 51). Notably, at trial, defendant did not contend that Drob’s testimony should be received to impeach Martell’s credibility.

The opportunity to present rebuttal, however, does not permit a party to hold back evidence properly part of the casein-chief and then submit that evidence to bolster the direct case after the opponent has rested (see e.g. Prince, Richardson on Evidence § 6-504, at 441 [Farrell 11th ed 1995]). The limitation on rebuttal evidence is to avoid “first, the possible unfairness to an opponent who has justly supposed that the case in chief was the entire case which he had to meet, and second, the interminable confusion that would be created by an unending alternation of successive fragments of each case which could have been put in at once in the beginning” (6 Wigmore, Evidence § 1873, at 672 [Chadbourn rev 1976]). Even where evidence is not technically of a rebuttal nature and more properly a part of the party’s direct case, however, a court has discretion, in the interest of justice, to allow its admission on rebuttal pursuant to CPL 260.30 (7) (see Harris, 57 NY2d at 345-346; see also People v Alvino, 71 NY2d 233, 247-248).

Defendant bore the burden of establishing that he suffered extreme emotional disturbance at the time of the killings. In that regard, Clark testified that defendant suffered from post-traumatic stress disorder. His diagnosis was premised, in part, upon neurological deficits, revealed in Drob’s and Martell’s neuropsychological testing of defendant. Clark believed those deficits rendered defendant vulnerable to traumatic stress. In reply, Martell testified that defendant did not have a serious neuropsychological dysfunction that made him especially susceptible to post-traumatic stress disorder. Martell utilized tests conducted by Drob and himself for his conclusion. Martell was asked on cross-examination why he had omitted certain tests performed by Drob. Martell did not dispute the validity of those tests in assessing defendant’s neuropsychological dysfunction; he simply chose to employ others.

Drob’s proposed rebuttal testimony disagreed with Mar-tell concerning the significance of tests both had performed, and Martell’s conclusion that defendant did not suffer any significant neuropsychological impairments. Drob did not challenge Martell’s testing methods or the results, only their significance. In essence then, Drob’s opinion as to the tests was no different than Clark’s — both relied on the same data. Thus, virtually all of Drob’s proffered testimony was cumulative to, and corroborative of, the evidence presented on defendant’s case-in-chief on the affirmative defense.

CPL 260.30 (7) vests the trial court with discretion to act as the gatekeeper of rebuttal requests. Because the proposed rebuttal was both cumulative to, and duplicative of, evidence already presented on defendant’s direct case, with only the same relevancy, it was within the trial court’s discretion to disallow the presentation of that evidence on rebuttal. This was a lengthy trial in which two experts testified extensively about defendant’s mental and emotional state. We are careful to note, however, that capital trial courts should exercise great caution in making discretionary determinations such as this. The stakes are high for all involved.

B. Testimony by the Family Members of the Victims

Prior to the People’s case, defendant moved to limit the testimony of some of the victims’ family members. The People submitted that their testimony would focus mainly on the identification of the victims. Nevertheless, Detria Davis, Rosalyn Harris and Moses Sims supplied personal details about the murder victims and their families.

The admission of this type of evidence is problematic. We have long held that testimony about victims’ personal backgrounds that is immaterial to any issue at trial should be excluded (see People v Miller, 6 NY2d 152; People v Caruso, 246 NY 437). The testimony here is indistinguishable from that in Miller and Caruso. Although family information about a victim is an important aspect of the victim’s life, generally, it has no bearing on defendant’s guilt or innocence. We are not unmindful of a prosecutor’s desire to convey to the jury the seriousness of the loss of a life. However, our case law is clear that testimony of this type should not be used for that purpose.

After all the victims’ family members had testified, defendant moved unsuccessfully to strike that testimony insofar as it went beyond identification of the victims. Defendant now contends that the admission of this testimony violated his rights to a fair trial and due process. However, by not objecting earlier, defendant deprived the trial court of the opportunity to avoid the error (see People v Luperon, 85 NY2d 71, 77-78). Thus, the constitutional claims are arguably unpreserved. To the extent that defendant’s claims may be preserved, we conclude that the error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s guilt (see People v Crimmins, 36 NY2d 230, 237).

C. Improprieties During the Prosecutor’s Summation

Of defendant’s numerous claims of prosecutorial misconduct during summation, only one requires discussion — the prosecutor’s references to defendant allegedly having smiled during the testimony of two witnesses. During the prosecutor’s examination of Detective Whiteside, the prosecution asked the detective if the “smile that the defendant is giving you now” was the same smile that defendant purportedly gave the detective shortly before his arrest. The trial court sustained defense counsel’s objection. The prosecutor then asked Whiteside when “you just looked at the defendant now, did he make an expression towards you?” Over defense counsel’s general one-word objection, the detective was allowed to reply “A smirk.”

On summation, the prosecutor stated, “Angie Brown. Do you think it was fun for her to come in here and testify through the tears? To identify this defendant who, as he did with Detective WThiteside, smiled at her.” The trial court overruled defense counsel’s single-word objection to the statement.

We have recognized that admitting evidence of a smile as circumstantial evidence of consciousness of guilt is error (People v Basora, 75 NY2d 992, 994). “A smile * * * can convey many different states of mind — for example, relief, bewilderment, nervousness, exasperation or happiness” (id.). Though not reversible error here, this type of evidence is of questionable and limited probative value; we caution against its admission.

Defendant now contends that the prosecutor’s summation statements concerning defendant’s court demeanor violated his constitutional rights against compelled self-incrimination, to due process, to a fair jury trial, and to confront those who testify against him (US Const 5th, 6th, 8th, 14th Amends; NY Const, art I, §§ 5, 6). Here, defendant’s single-word objections to the smile/smirk statements fell far short of apprising the court of the constitutional claims he now raises on appeal. Moreover, defendant’s motion to set aside the verdict based on this conduct does not cure his failure to register a specific objection (see CPL 330.30 [1]; see also People v Padro, 75 NY2d 820, 821). Even if we were to review these claims in the interests of justice (see CPL 470.30 [1]; see also CPL 470.15, 470.20) we would find that the error was harmless beyond a reasonable doubt (see Crimmins, 36 NY2d at 237).

D. The Trial Court’s Instructions

Defendant contends that the trial court’s unanimity instructions on the affirmative defense of extreme emotional disturbance and its refusal to poll the jurors individually on their verdict regarding the affirmative defense created the possibility that defendant was convicted of first-degree murder notwithstanding that one or more of the jurors found that he had established extreme emotional disturbance.

The verdict sheet used in this case required the jury first to determine whether the prosecution had proven beyond a reasonable doubt defendant’s guilt for counts one through eight of the indictment (charging murder in the first degree, attempted murder in the first degree and attempted murder in the second degree). If the jury found defendant guilty on any one of those counts, it was to proceed to Question A which asks: “Did the defendant establish the affirmative defense of extreme emotional disturbance?” The jury was required to check “yes” or “no.”

Near the end of its deliberation instructions, the trial court reminded the jury that its job was:

“to go through this verdict sheet and attempt to reach a verdict on each of the counts submitted to you and to follow the instructions on the verdict sheet. * * *

“I’m going to send you into the juryroom in a few. minutes to start your deliberations. The goal of this process is an unanimous verdict. You should, therefore, attempt to reach such a verdict.

“You may well find that you differ among yourselves. You should, therefore, make every effort to harmonize your various views so that you can come to an unanimous agreement as to the facts of this case” (emphasis supplied).

During the second day of the guilt-phase deliberations, the jury issued a note asking the court to “review the criteria for extreme emotional disturbance” and asking whether “a unanimous vote [is] required on the question ‘A’ re the establishment of extreme emotional disturbance by the defense.” The court re-read its extreme emotional disturbance charge and then told the jury, “[t]he answer to question 2, is a unanimous verdict required, is yes.”

When the jury returned from deliberations, the foreperson announced that the jury had reached a verdict and that the verdict was unanimous in all respects. The jury found defendant guilty on counts one through seven. The foreperson was then asked how the jury answered Question A. The foreperson indicated that the jury had answered that question in the negative, thus rejecting defendant’s affirmative defense. Each of the jurors was asked if the verdict announced by the foreperson was their verdict in all respects. Each responded “yes.”

Under the circumstances here, we conclude that the trial court’s instruction was sufficient to convey the need for unanimity with respect to the issue of extreme emotional disturbance. The question asked of the jury on the verdict sheet to which both sides subscribed — whether defendant established the affirmative defense of extreme emotional disturbance — could only be answered yes or no.

Prior to deliberations, the jury was instructed that the goal of the process was a unanimous verdict. They were told that they needed to come to a unanimous agreement as to the facts of the case. When the jury inquired whether it had to be unanimous in answering the question on the affirmative defense, they were told, in no uncertain terms, “yes.” Finally, when each individual juror was polled to ascertain whether the verdict announced by the foreperson was their verdict in all respects, each juror stated “yes.” Thus, we conclude that, taking the trial court’s instructions, supplemental instructions and the polling into consideration, the jury reasonably understood that its decision with respect to defendant’s affirmative defense required unanimity.

V.

The Death Sentence

In United States v Jackson (390 US 570), the United States Supreme Court struck down the death penalty provision of the Federal Kidnaping Act. The Act authorized the death penalty only on the recommendation of the jury while a defendant convicted of the same offense through a guilty plea or a non-jury trial escaped the threat of capital punishment. Under the Act, “the defendant who abandons the right to contest his guilt before a jury is assured that he cannot be executed; the defendant ingenuous enough to seek a jury acquittal stands forewarned that, if the jury finds him guilty and does not wish to spare his life, he will die. * * * The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial” (id. at 581). Thus, the Act “needlessly” encouraged guilty pleas and jury waivers (id. at 582). According to the Supreme Court, “[wjhatever the power of Congress to impose a death penalty for violation of the Federal Kidnaping Act, Congress cannot impose such a penalty in a manner that needlessly penalizes the assertion of a constitutional right” (id. at 583).

After Jackson, the Court noted that an otherwise valid plea under a Jackson-defective statute was not involuntary merely because it was motivated by defendant’s desire to avoid the death penalty (see Parker v North Carolina, 397 US 790; Brady v United States, 397 US 742; see also People v Edwards, 96 NY2d 445). Nevertheless, while a guilty plea would be upheld, “[i]t may be that under United States v. Jackson * * * it was unconstitutional to impose the death penalty under the statutory framework which existed * * * at the time of [the] plea” (Parker, 397 US at 794-795). Three years later, in a series of cases, the Supreme Court reversed the death sentences of defendants who had gone to trial under statutory schemes that ran afoul of Jackson and remanded them for resentencing (see Funicello v New Jersey, 403 US 948; Childs v North Carolina, 403 US 948; Atkinson v North Carolina, 403 US 948; Hill v North Carolina, 403 US 948; Roseboro v North Carolina, 403 US 948; Williams v North Carolina, 403 US 948; Sanders v North Carolina, 403 US 948).

In keeping with Jackson, this Court in Matter of Hynes v Tomei (92 NY2d 613), struck the post-death-notice plea bargaining provisions of the death penalty statute as unconstitutional (CPL 220.10 [5] [e]; 220.30 [3] [b] [vii]). Those provisions allowed different penalties for the same offense “imposing death only on those who assert innocence and proceed to trial” (Hynes at 620 [citation omitted]). We concluded that “‘a procedure which offers an individual a reward for waiving a fundamental constitutional right, or imposes a harsher penalty for asserting it, may not be sustained’ ” (id. at 621-622). Only those defendants who exercised their Fifth and Sixth Amendment rights to a jury trial put themselves at risk of death (see id. at 623).

The People and the Attorney General urge us to review Hynes and “modify” our holding to restore the sections we declared unconstitutional. Neither offers a new argument for a different result. Both acknowledge that if Hynes remains the law, defendant’s death sentence must be vacated. All seven of us have concluded that there is no reason to retreat from Hynes; all of us agree that the statute at the time of defendant’s trial impermissibly discouraged defendant’s assertion of his Fifth and Sixth Amendment rights. Accordingly, the trial court could not constitutionally impose the sentence of death on this defendant. The appropriate remedy is to vacate his death sentence and to remit his case to Supreme Court pursuant to CPL 470.30 (5) (c) for resentencing in accordance with Penal Law §§ 60.06 and 70.00 (5). In light of that determination, we decline to comment on the propriety of the sentencing proceedings at this juncture.

Finally, defendant urges that we address the issue whether the entire death penalty scheme is unconstitutional pursuant to the State Constitution’s Cruel and Unusual Punishment Clause (NY Const, art I, § 5). The People claim that defendant’s inability to demonstrate any as-applied harm necessarily precludes him from bringing a facial challenge (see People v Parker, 41 NY2d 21, 24; People v Drayton, 39 NY2d 580, 586). Defendant, on the other hand, relies on various Supreme Court cases including Gregg v Georgia (428 US 153) and notes that the Supreme Court examined facial claims irrespective of the defendants’ lack of an as-applied challenge (see also Proffitt v Florida, 428 US 242, 247; Jurek v Texas, 428 US 262, 268).

Despite the success of defendant’s Jackson challenge to his sentence, his conviction remains. Defendant’s situation is distinguishable from the petitioners in Gregg, Proffitt and Jurek, who were not sentenced under Jackson - violative statutory schemes and were facing the death penalty. Because the disposition of this constitutional issue is not necessary to this appeal, we need not decide it at this time (see People v Carcel, 3 NY2d 327, 330).

The judgment of Supreme Court should therefore be modified by vacating the sentence and remitting to Supreme Court for resentencing in accordance with CPL 470.30 (5) (c) and Penal Law §§ 60.06 and 70.00 (5) and, as so modified, affirmed; the appeal from Supreme Court’s order dated June 10, 1999 should be dismissed as academic.

Smith, J. (concurring in part and dissenting in part). I agree with the majority insofar as it holds that defendant’s sentence of death was unconstitutional because it resulted from a conviction under a statutory scheme violative of his Fifth and Sixth Amendment rights. In addition, I would reverse the conviction, primarily because of three trial court rulings — the denial of defendant’s motion for heightened scrutiny, at least as it applied to issues affecting the sentence, the refusal to permit rebuttal to the testimony of a prosecution witness, and the failure to grant defendant’s motion to exclude a prospective juror for cause.

Heightened Scrutiny in All Stages of a Capital Case

Although the Supreme Court has found that the death penalty is not per se unconstitutional, the Court has consistently proclaimed the truism that death is a different type of penalty. Death is different primarily in its severity and irrevocability (see Furman v Georgia, 408 US 238, 306 [1972] [Stewart, J., concurring]). Because of this difference, the determination that death is the appropriate punishment involves a “heightened ‘need for reliability’ ” (see Caldwell v Mississippi, 472 US 320, 340 [1985], quoting Woodson v North Carolina, 428 US 280, 305 [1976] [plurality op]).

By motion, defendant requested the trial court to apply “heightened scrutiny and a heightened standard of due process throughout all of the proceedings in this capital case.” The People opposed the motion, arguing that “it is well-settled that a capital defendant is not entitled to greater rights at all stages of a prosecution on the ground that ‘death is different.’ ” The court denied the motion, finding that neither this Court nor the United States Supreme Court “ha[s] required the application of such a broad elevated across-the-board standard.”

On appeal here, the People argue that the fact that death is different requires heightened reliability only at the sentencing stage. ******009The People’s limitation of heightened reliability to the sentencing stage, however, is inconsistent with the Supreme Court’s evolving death penalty jurisprudence, which makes clear that regardless of when in the proceedings the issues arise, a trial court’s resolution of some issues affecting the guilt determination, as well as the sentencing determination, must comply with the heightened reliability standard (see Caldwell v Mississippi, 472 US at 340; Beck v Alabama, 447 US 625 [1980]).

Initially, the Supreme Court’s concerns centered primarily on the procedures under which the death sentence is imposed. In Furman, the Court held that the death penalty in the cases before it violated the Eighth and Fourteenth Amendments. In Gregg v Georgia (428 US 153 [1976]), the Court identified one of several safeguards that addressed the arbitrary and capricious imposition of the death penalty: a “bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information” (id. at 195). While the Georgia death penalty statute reviewed in Gregg satisfied the Furman concerns, the death penalty statute of North Carolina reviewed in Woodson v North Carolina (428 US 280), which mandated the imposition of the death sentence upon a guilty finding, did not. The Court found that

“in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U.S., at 100, 78 S.Ct., at 597 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

“This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case” (428 US at 304-305).

Consequently, the rights of a capital defendant are greater than those of a noncapital defendant at the sentencing stage. In fact, a capital sentence proceeding is treated like a trial for purposes of double jeopardy (see Bullington v Missouri, 451 US 430, 438 [1981]; Monge v California, 524 US 721, 725 [1998]). In addition, the sentencer in a capital case must consider virtually all of the defendant’s mitigating factors (Lockett v Ohio, 438 US 586, 603-605 [1978]; Eddings v Oklahoma, 455 US 104 [1982]). Aggravating circumstances must be proven beyond a reasonable doubt (Lewis v Jeffers, 497 US 764 [1990]; see also Ceja v Stewart, 97 F3d 1246 [9th Cir 1996]).

In Gardner v Florida (430 US 349 [1977]), the Court found that defendant’s right to due process was violated when he was sentenced to death based on information that was not disclosed to him, and thus, he had no opportunity to explain or deny. The Court rejected the holding of an older similar case which was decided at a time when the death sentence was perceived as no different from any other sentence.

The Court has applied heightened reliability to the selection of jurors, who under most death penalty statutes, including New York’s, determine whether defendant is guilty or not, and if guilty, whether the death sentence is appropriate (see Lockhart v McCree, 476 US 162, 182 [1986] [citing Witherspoon v Illinois, 391 US 510, 519 (1968)]). In Turner v Murray (476 US 28 [1986]), the Court found the lower court’s failure to question prospective jurors on racial bias violated the defendant’s right to an impartial jury under the Sixth and Fourteenth Amendments. Before Turner, lower courts relied on Ristaino v Ross (424 US 589 [1976]), in which the Court stated that the Constitution did not necessarily require trial courts to question jurors on racial bias simply because the defendant was black and the victim white. The Turner Court distinguished Ristaino because it was not a capital case, and concluded that in capital proceedings involving an interracial crime, upon defendant’s request, trial courts must inform prospective jurors of the race of the victim and must conduct voir dire on the issue of racial bias (see Turner, 476 US at 35-36). Because the trial court failed to conduct such voir dire below, the Turner Court vacated the death sentence, but left the conviction undisturbed.

In Morgan v Illinois (504 US 719 [1992]), the trial court denied defendant’s request to ask jurors whether they would automatically vote for the death pe