(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued May 3, 1994 -- Decided July 27, 1994
GARIBALDI, J., writing for a majority of the Court.
Anthony DiFrisco pled guilty to the 1986 contract murder of Edward Potcher, a Maplewood pizzeria
owner. A sentence of death was imposed. DiFrisco appealed, and in 1990 the Supreme Court affirmed the
conviction for murder but vacated the death sentence and remanded the matter for a new penalty-phase
proceeding. At the retrial of the penalty phase, the jury returned a death-penalty verdict. DiFrisco appealed
directly to the Supreme Court.
HELD: For the forced use of a peremptory challenge to constitute reversible error under New Jersey law, a
defendant must demonstrate that a juror who was partial sat as a result of the defendant's exhaustion
of peremptories. Erroneous advice from counsel did not constitute constitutionally-ineffective assistance
of counsel. The trial court did not erroneously refuse to accept a non-unanimous verdict from the jury.
1. DiFrisco has failed to demonstrate that he was unaware of the nature and consequences of his plea to the
capital murder charge. (pp. 7-13)
2. Original trial counsel's erroneous sentencing prediction -- that DiFrisco would not receive the death penalty
on the facts of his case -- did not amount to constitutionally defective assistance of counsel. (pp. 13-17)
3. The trial court did not abuse its discretion in removing prospective juror Darlene Grant for cause because
of her stated position that she did not believe she could vote to impose a sentence of death. (pp. 17-24)
4. The dilution of the number of statutorily-prescribed peremptories by an erroneous failure to excuse a juror
for cause is of no moment to the constitutional guarantee of an impartial jury. The trial court's failure to excuse
a particular juror for cause was harmless error because no partial juror sat as a result of that error. (pp. 29-39)
5. The failure of the trial court to instruct the jury that it could consider DiFrisco's exercise of his right of
allocution insofar as it impacted on a mitigating factor was harmless error. It did not in any way prohibit the
jury from considering DiFrisco's statement as an indication of his remorse. (pp. 43-49)
6. Under a close examination of the facts, the Court concludes that the jury had not reached a final non-unanimous verdict when it returned to the courtroom after four hours of deliberation. The jury clearly indicated
that it did not regard itself as deadlocked. (pp. 49-59)
7. The trial court did not err in its supplemental instructions to the jury on its deliberations. Nothing in those
instructions could have had a coercive effect on the jurors. (pp. 59-62)
8. The trial court properly instructed the jury on the need for unanimity to establish an aggravating factor.
(pp.62-67)
9. The admission of "prior-bad-act" evidence was relevant, probative, not unduly prejudicial, and appropriately
limited by the trial court. (pp. 67-76)
10. The trial court correctly refused to permit DiFrisco to introduce, under the "catch-all" mitigating factor
provision, the fact that the State had failed to prosecute the person who was alleged to have hired DiFrisco and
also the devastating emotional effect that DiFrisco's execution would have on his mother. Neither of those
subjects related to DiFrisco's character or record or to the circumstances of the offense. (pp. 82-87)
11. Pursuant to DiFrisco's request for proportionality review, the matter will proceed according to a briefing
and argument schedule to be set by the Clerk of the Court. (p. 90)
The judgment imposing a sentence of death is AFFIRMED. The matter is to proceed to proportionality
review.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK and O'HERN join in JUSTICE GARIBALDI's
opinion. JUSTICE HANDLER has filed a separate dissenting opinion, Part I of which JUSTICES CLIFFORD
and STEIN join.
HANDLER, J., dissents on several grounds. In Part I of his opinion, he would reverse because the trial court
failed to determine whether the jury had reached a final non-unanimous life verdict, and because the majority's
decision on this issue is based on pure speculation. In Part II, he would reverse on the allocution issue, having
concluded that not only was the absence of an instruction that the jury could consider DiFrisco's allocution error,
but also that the trial court's ruling that counsel could not comment on the allocution was error. In Part III, he
would reverse on the grounds that DiFrisco did not have a full understanding of the consequences of his plea
of guilty and that he received ineffective assistance of counsel. In Part IV, he would reverse based on the trial
court's failure to excuse a prospective juror for cause.
SUPREME COURT OF NEW JERSEY
A-
98 September Term l993
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY DIFRISCO,
Defendant-Appellant.
Argued May 3, l994 -- Decided July 27, 1994
On appeal from the Superior Court, Law Division,
Essex County.
Paul M. Klein, Deputy Public Defender II, and
M. Virginia Barta, Assistant Deputy Public
Defender, argued the cause for appellant
(Susan L. Reisner, Acting Public Defender,
attorney).
Hilary L. Brunell, Assistant Prosecutor,
argued the cause for respondent (Clifford J.
Minor, Essex County Prosecutor, attorney).
Catherine A. Foddai, Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (Deborah T. Poritz,
Attorney General of New Jersey, attorney).
The opinion of the Court was delivered by
GARIBALDI, J.
In State v. DiFrisco, ll 8 N.J. 253, 283 (l990) [DiFrisco I], we affirmed Anthony DiFrisco's conviction for the murder of Edward Potcher but vacated his death sentence and remanded the case for a new penalty-phase hearing. At the second penalty
phase proceeding, the jury returned a death-penalty verdict, and
the trial court sentenced defendant to death. Defendant appeals
directly to this Court as of right. R. 2:2-l(a)(3). We affirm
the imposition of the death penalty.
The facts of this case are discussed in detail in DiFrisco I, ll8 N.J. at 255-60. We recite only the facts relevant to this appeal.
A. DiFrisco I
On August l2, l986, Edward Potcher, the owner of Jack's
Pizzeria in Maplewood, was killed when an assailant shot him at
close range four times in the head and once in the body. Through
March l987, the police had no leads in solving this cold-blooded,
execution-style killing.
On April l, l987, defendant was arrested in New York for
various traffic violations, car theft, and reckless endangerment.
Believing that he would be better served by implicating a
"higher-up" in a murder, defendant confessed to the New York City
police that a man named Anthony Franciotti had paid him $2,500 to
kill a pizzeria owner in New Jersey.
At first incredulous of the defendant's
story, the New York police officer asked
defendant for details. Defendant did not
know where the crime had taken place, nor
even the name of the victim. He did know
that it involved a pizzeria in New Jersey.
He said that Franciotti had paid him to do
the killing because the pizza-shop owner was
about to inform on Franciotti. He said that
Franciotti drove him there on the day of the
murder. DiFrisco stated that he entered the
pizzeria alone and Franciotti waited in the
car while the crime took place.
Bit by bit, the New York police closed in on
the case. They called New Jersey
authorities. They found an unsolved murder
in Maplewood, Essex County, fitting the
description of the murder in respect of time
and place. The last links were the details
furnished by the defendant that there were
five shots from a .32 caliber automatic gun,
that a silencer was used, and that the store
sold only whole pizza pies, not slices.
Within hours, the Maplewood Police and Essex
County homicide officers arrived at the
precinct house in the Bronx. Defendant
repeated the story to them and signed a
confession to the murder implicating
Franciotti. Several days later, while in
police custody in New Jersey, defendant was
to call Franciotti to link him to the murder.
The police intended to tape that
conversation. Defendant had consulted with a
public defender, who advised him to make the
call. At the last moment, defendant refused
to call Franciotti. He said that his father
counseled against further cooperation with
the police without the advice of paid
counsel.
An Essex County Grand Jury subsequently indicted defendant for the capital murder of Edward Potcher. The State noted three aggravating factors: "outrageously or wantonly vile" murder, N.J.S.A. 2C:ll-3c(4)(c); murder for hire, N.J.S.A. 2C:ll-3c(4)(d); and murder to escape the detection of another crime, N.J.S.A. 2C:ll-3c(4)(f). On January ll, l988, defendant pled
guilty to capital murder, repeating the essence of his confession
and responding "Yes" when asked, "And was it your intention to
kill him at that time?"
Pursuant to N.J.S.A. 2C:ll-3c(l), defendant waived a jury
for the penalty phase of his trial.
The trial court found that two aggravating
factors had been proven: that defendant was
a hired killer, N.J.S.A. 2C:ll-3c(4)(d), and
one was killed to avoid the detection of
another, N.J.S.A. 2C:ll-3c(4)(f). Although
the court made no specific finding, it ruled
that the c(4)c factor "was encompassed in the
commission of the murder for a
consideration." The trial court also found
one mitigating factor, that "[t]he defendant
rendered substantial assistance to the state
in the prosecution of another person for the
crime of murder [N.J.S.A. 2C:ll-3c(5)(g).]"
It found that the aggravating factors
outweighed the mitigating factors beyond a
reasonable doubt. The trial court sentenced
the defendant to death. The trial court
later denied defendant's motion for a new
trial.
We affirmed defendant's guilt-phase conviction, but reversed
his death sentence and remanded for a new sentencing proceeding.
Id. at 283. After DiFrisco I but prior to the new penalty-phase
hearing, defendant twice moved to withdraw his guilty plea. The
trial court denied both motions.
B. Second Penalty-Phase Proceeding
Defendant initially moved for a directed life verdict, but
the trial court denied the motion. At the penalty-phase remand
the State alleged two aggravating factors: that the murder had
been committed both for payment and to escape detection for
another crime. In mitigation, defendant asserted that he had
been under the influence of extreme mental or emotional
disturbance, N.J.S.A. 2C:ll-3c(5)(a); that his capacity to
appreciate the wrongfulness of his conduct had been significantly
impaired as a result of mental disease or defect or intoxication,
N.J.S.A. 2C:ll-3c(5)(d); that he had rendered substantial
assistance to the State in the prosecution of another person for
the crime of murder, N.J.S.A. 2C:ll-3c(5)(g); and any other
factor relevant to defendant's character, record, or
circumstances of the offense (the "catch-all" factor), N.J.S.A.
2C:ll-3c(5)(h). Under the catch-all factor, defendant listed
thirteen different circumstances he believed were mitigating.
The jury unanimously found as an aggravating factor that
defendant had committed the murder for payment, but only eleven
jurors found the second aggravating factor, that defendant had
committed the murder to avoid detection for another crime.
Hence, the jury rejected that factor. At least one juror found
thirteen of the mitigating factors presented. The jury concluded
that the unanimously-found aggravating factor outweighed all the
mitigating factors beyond a reasonable doubt. In conformance
with the jury verdict, the trial court sentenced defendant to
death. Two weeks later, the trial court denied defendant's
motion to set aside the death sentence in favor of a life
sentence.
In this appeal, defendant sets forth a number of reasons why
his death sentence should be reversed. We address the most
significant issues in chronological order.
Prior to the second penalty-phase hearing, defendant made two motions to withdraw his guilty plea. He initially argued that his plea was not a knowing and voluntary waiver of his right to trial. After conducting a hearing, the trial court found defendant's testimony in support of that claim "to be utterly incredible." Thus, the trial court denied the motion. Defendant subsequently moved to withdraw his plea on the ground that the plea had resulted from ineffective assistance of counsel. The trial court once again denied the motion.
The crux of defendant's argument in both motions was that his attorney had so grossly misinformed him of the potential of a death sentence that he had entered his plea without understanding the charge and knowing the consequences of that plea.
A. Voluntary and Knowing Plea
Although defendant recognizes that his "[s]olemn
declarations in open court carry a strong presumption of verity,"
Blackledge v. Allison, 43l U.S. 63, 74, 97 S. Ct. l62l, l629,
52 L. Ed 2d l36, l47 (l977), he maintains that he believed that his
open-court guilty plea and waiver of right to a trial were mere
"formalities" necessary to secure a life sentence. Although we
upheld the validity of the plea in DiFrisco I, defendant argues
that we should now vacate the plea because he rendered it without
a clear understanding of the penal implications associated with
it.
Defendant's argument tracks our consistently-held position
that the "touchstone of any guilty plea is that it is voluntarily
made by the defendant with an understanding of the nature of the
charge as well as the consequences of the plea, and that there is
a factual basis to support the plea of guilty for the crime or
crimes." State v. Warren, ll
5 N.J. 433, 442-43 (l989); see also
R. 3:9-2 (stating that trial court must be satisfied that
defendant's "plea is made voluntarily . . . and with an
understanding of the nature of the charge and the consequences of
the plea").
More specifically, defendant relies on our decision in State
v. Kiett, l2l N.J. 483 (l990), in which we held that a juvenile
who had pled guilty to capital murder believing his plea was the
only way to avoid a death sentence could withdraw his plea
because the plea had been based on the mistaken belief that a
juvenile could be sentenced to death under the capital-punishment
statute. Id. at 491; see State v. Bey, ll
2 N.J. 45, 98 (l988)
(holding that juveniles are not death eligible under capital
punishment statute).
Kiett, however, is distinguishable because of the nature of
the alleged misinformation involved. In Kiett, we reasoned that
"[i]f a defendant is misinformed about his or her eligibility for
the death sentence, and if that misunderstanding is material to
the plea, he or she cannot be deemed to have entered a guilty
plea with a full understanding of the penal consequences." 121
N.J. at 489. Here, DiFrisco was allegedly misinformed regarding
the likelihood of the imposition of a death sentence. The
alleged misinformation in Kiett concerned a concrete legal fact -- namely, Kiett's counsel had told him that he was death
eligible, even though he was not. The alleged misinformation in
this case concerns a legal opinion: defendant's counsel told
defendant that in his opinion the court would not enter a death
sentence on the guilty plea.
For defendant to prevail he must show that he did not
understand that a death sentence was a possible consequence of
pleading guilty and that his lack of understanding was a material
factor in his decision to plead. DiFrisco has failed to
demonstrate that he was unaware of the nature and consequences of
his plea.
Defendant appeared before the trial court to enter a guilty
plea to the indictment. At the outset of the proceeding, the
assistant prosecutor explained that defendant would plead guilty
and that with the consent of the State, the penalty-phase hearing
would be held before the court. However, the prosecutor
emphasized that "[t]he State will still be proceeding with
aggravating evidence and the State will still continue to
actively seek the death penalty."
At that point, the court directed questions to defendant.
It set forth the charges contained in the indictment and asked
defendant whether defense counsel had reviewed the charges with
him. Defendant answered that he understood the charges and had
reviewed them with his counsel. The court then focused on the
consequences of defendant's action in entering a guilty plea:
THE COURT: And do you understand that the
maximum sentence on count one can either be
from thirty years to life, without parole for
thirty years, or the imposition of the death
penalty upon you? Do you understand that?
THE DEFENDANT: Yes, sir.
The court then described the rights defendant had waived by
entering a guilty plea and ascertained that defendant understood
those rights. Then the court addressed the potential sentence
that defendant faced:
THE COURT: Now, do you understand that
although you are entering a plea of guilty to
murder, . . . that there has to be another
hearing to decide what the sentence shall be?
THE DEFENDANT: Yes, sir.
THE COURT: And do you further understand
that if this Court should find beyond a
reasonable doubt that the aggravating factors
outweigh the mitigating factors, that this
Court could impose the death penalty.
THE DEFENDANT: Yes, sir.
* * * *
THE COURT: You have thought this over
carefully?
THE DEFENDANT: Yes, sir.
THE COURT: And you still wish to plead
guilty?
THE DEFENDANT: Yes, sir.
The court then elicited from defendant that no promises had been
made by the prosecutor or any other person to induce a guilty
plea and that no threats or coercion were employed to induce the
plea. Finally, the court showed defendant the LR-27 form, which
defendant stated he had reviewed with his defense counsel and had
understood. That form clearly set forth that entering the guilty
plea did not preclude the court from imposing a death sentence
from being imposed.
Prior to the second penalty-phase hearing, the court held a
hearing on DiFrisco's motion to withdraw his plea. Both
defendant and his former attorney, Samuel DeLuca, Esq., testified
at the hearing. At the conclusion of the hearing, the trial
court found DiFrisco's testimony to be "utterly incredible."
According to the trial judge,
Although I believe that the defense counsel's
opinion expressed to his client was that
death was not a likely verdict, and that he
firmly conveyed that opinion to the
defendant, I'm equally satisfied that defense
counsel understood and that the defendant
knew that a death sentence was possible as
he, the defendant, acknowledged to the trial
court when he pled guilty.
The factual findings of trial court need be supported only
by sufficient credible evidence. State v. Johnson, 42 N.J. l46,
l62 (l964). Considering the following evidence, we agree with
the trial court's factual finding that defendant did understand
the nature and consequences of his plea.
(1) Defendant signed forms and
acknowledged in open court that he
understood he could receive the
death penalty;
(2) Defendant admitted that the court
told him that he was subject to the
death penalty as did both the
public defender who had represented
him briefly and an assistant
prosecutor who had told him that
death was a "realistic
possibility";
(3) DeLuca testified that he had never
told DiFrisco that he absolutely
would not receive the death
penalty;
(4) DeLuca testified that he had told
DiFrisco that he "never thought for
a second" that the court would
impose the death penalty. That
view, however, was expressed as an
opinion, not as a promise or
guarantee.
In addition, the erroneous sentencing prediction of a defense counsel does not warrant vacating a guilty plea rendered
because of it. Wellnitz v. Page,
420 F.2d 935 (l0th Cir. l970);
accord United States v. Garcia, 909 F.2d l346 (9th Cir. l990);
Little v. Allsbrook, 73l F.2d 238, 24l (4th Cir. l984); United
States v. Hollis, 7l
8 F.2d 277, 280-8l (8th Cir. l983), cert.
denied, 465 U.S. l036, l04 S. Ct. l309,
79 L. Ed.2d 707 (l984);
Stout v. United States,
508 F.2d 95l, 953 (6th Cir. l975);
Masciola v. United States, 469 F.2d l057, l059 (3d Cir. l972);
Holland v. United States,
406 F.2d 2l3, 2l6 (5th Cir. l969);
see also State v. Rodriguez, l79 N.J. Super. l29, l36 (App. Div.
l98l) (holding that defendant's negotiated guilty plea to sexual
assault rendered in part on counsel's erroneous sentencing
prediction could not be withdrawn).
In Wellnitz, a habeas corpus petitioner alleged that "on the
day of his plea hearing, his attorney drew him aside in the
courtroom, and state[d] that `25 years was the best he could
do.'" 420 F.
2d at 936. Based on that advice, the defendant
entered a guilty plea. Denying the defendant's attempt to
withdraw his plea, the Tenth Circuit held that a "prediction"
offered by an attorney "based upon his experience and instinct,"
that turns out to be wrong "does not render a plea involuntary."
Ibid.
We agree. Nothing in the record suggests that DiFrisco's
attorney ever advised him that pleading guilty forestalled the
legal possibility of a death sentence. That his attorney's
opinion, viewed with hindsight, was mistaken, cannot transform
DiFrisco's voluntary plea into an involuntary one.
We are satisfied that the trial court's refusal to grant
defendant's motion to withdraw his plea was a proper exercise of
discretion. The trial court
fairly and justly weigh[ed] the policy
considerations [that] favor the finality of
judicial procedures against the policy
considerations [that] dictate that no man be
deprived of his life or liberty except upon
conviction after a fair trial or after entry
of a plea of guilty or its equivalent under
circumstances which evidence that it was made
truthfully, voluntarily and understandingly.
See also State v. Taylor, 80 N.J. 353, 362 (1979) (holding that defendant's claim to be relieved of consequences of guilty plea must be weighed against strong State interest in finality).
B. Ineffective Assistance of Counsel
Defendant also seeks to have his plea vacated on the ground
that his attorney was constitutionally ineffective. According to
defendant, his attorney, DeLuca, virtually directed him to plead
guilty to capital murder. Defendant maintains that that advice
constituted constitutionally-deficient legal service that
resulted in severe prejudice.
The trial court analyzed defendant's claim under the two
prong Strickland-Fritz test. See Strickland v. Washington,
466 U.S. 668, 687, l
04 S. Ct. 2052, 2064,
80 L. Ed.2d 674, 693
(l984) (adopting deficiency-and-prejudice standard for
determining violations of Sixth Amendment right to counsel);
State v. Fritz, l
05 N.J. 42, 58 (1987) (adopting Strickland test
for determining violations of right to counsel under New Jersey
Constitution). The court determined that DeLuca's performance
had not been constitutionally deficient and that DiFrisco had not
been prejudiced by DeLuca's advice to plead guilty. The trial
court therefore denied the motion to withdraw the plea because he
found that neither prong of the Strickland-Fritz test was
satisfied.
The United States Supreme Court has applied the Strickland
test to challenges of guilty pleas based on ineffective
assistance of counsel. See Hill v. Lockhart,
474 U.S. 52, 58,
l
06 S. Ct. 366, 37l,
88 L. Ed.2d 203, 2l0 (l985). To set aside
a guilty plea based on ineffective assistance of counsel, a
defendant must show that (i) counsel's assistance was not "within
the range of competence demanded of attorneys in criminal cases,"
Tollett v. Henderson, 4ll U.S. 258, 266, 93 S. Ct. l602, l608,
36 L. Ed.2d 235, 243 (l973); and (ii) "that there is a reasonable
probability that, but for counsel's errors, [the defendant] would
not have pled guilty and would have insisted on going to trial."
Hill, supra, 474 U.S. at 59, l06 S. Ct. at 370, 88 L. Ed.
2d at
2l0.
We agree with the trial court that DeLuca's performance was
not constitutionally defective. The crux of defendant's
"ineffectiveness" claim is DeLuca's erroneous sentencing
prediction. Erroneous sentencing predictions, however, do not
amount to constitutionally-deficient performance under
Strickland. E.g., Chichakly v. United States,
926 F.2d 624, 630-3l (7th Cir. l99l) (holding that erroneous sentencing prediction
did not amount to constitutionally-deficient performance); People
v. Jones,
579 N.E.2d 829, 839 (Ill. 1991) (holding that counsel's
erroneous prediction that trial court would not enter death
sentence did not amount to constitutionally-deficient
performance), cert. denied, __ U.S. __,
112 S. Ct. 3038,
120 L.
Ed.2d 906 (1992).
We have rejected the argument that we should adopt a more
stringent standard for reviewing the performance of counsel in
capital cases. See State v. Davis, ll
6 N.J. 34l, 355-57 (l989).
Thus,
[a] fair assessment of attorney performance
requires that every effort be made to
eliminate the distorting effects of
hindsight, to reconstruct the circumstances
of counsel's challenged conduct, and to
evaluate the conduct from the counsel's
perspective at the time. Because of the
difficulties inherent in making the
evaluation, a court must indulge a strong
presumption that counsel's conduct falls
within the wide range of reasonable
professional assistance; that is, the
defendant must overcome the presumption that,
under the circumstances, the challenged
action "might be considered sound trial
strategy."
[Strickland, supra, 466 U.S. at 689, l04 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting
Michel v. Louisiana,
350 U.S. 9l, l0l, 76 S.
Ct. l58, 164, l
00 L. Ed. 83, 93 (l955)).]
Here, DeLuca made a reasonable determination that DiFrisco
would not be acquitted by a jury, given his confession and the
corroborating forensic evidence. He also reasonably believed
that a cold-blooded, execution-style murder for hire posed a
devastating set of facts to present to a jury. Moreover, DeLuca
reasonably perceived that the trial court was impressed with his
client's cooperation and was also disturbed at the State's
failure to indict Franciotti, the man who allegedly paid DiFrisco
to commit the murder. DeLuca's ultimate prediction that the
trial court would not sentence his client to death, although
wrong, was reasonable. Strickland, however, demands that the
ineffective-assistance-of-counsel analysis "eliminate the
distorting effects of hindsight." 466 U.S. at 699, l04 S. Ct. at
2065, 80 L. Ed.
2d at 694.
Moreover, DeLuca never misinformed DiFrisco about the law,
see O'Tuel v. Osborne,
706 F.2d 498, 500 (4th Cir. l983) (holding
that mistakes of law that grossly misinform defendant amount to
constitutionally-deficient performance), nor did DeLuca ever
intentionally mislead defendant. See Commonwealth v. Napper,
385 A.2d 52l, 524 (Pa. Super. Ct. l978) (holding that counsel's
intentional misleading of client regarding benefit of plea
constituted constitutionally deficient performance); cf. A.B.A.
Project on Standards for Criminal Justice Standards Relating to
the Defense Function, Standard 4-5.l(b) (l980) ("It is
unprofessional conduct for the lawyer intentionally to understate
or overstate the risks, hazards, or prospects of the case to
exert undue influence on the accused's decision as to his or her
plea." (emphasis added)).
Likewise, we are satisfied that although DeLuca had never
before represented a capital defendant and did not engage in a
lengthy investigation of the facts and circumstances of the
murder, he did "`make a reasonable decision that ma[de]
particular investigations unnecessary.'" State v. Savage, l
20 N.J. 594, 6l8 (l990) (quoting Strickland, supra, 466 U.S. at 69l,
l04 S. Ct. at 2066, 80 L. Ed.
2d at 695). After the trial court
denied the motion to suppress DiFrisco's confession, DeLuca
testified that searching for non-existent witnesses would have
proved fruitless. He was legitimately convinced that DiFrisco
had no viable psychiatric or fact-based defense.
We agree with the trial court that DeLuca's representation
of DiFrisco was not constitutionally deficient. Hence, defendant
has failed to prove the first prong of the Strickland test.
Accordingly, his claim for ineffective assistance of counsel
fails.
A. Dismissal of Darlene Grant
Defendant claims that the trial court's dismissal of Darlene Grant for cause because of her views on the death penalty
violated his rights to due process and an impartial jury.
Defendant maintains that Grant's feelings about capital
punishment as elicited during voir dire did not meet the legal
threshold for removal for cause.
Trial courts possess considerable discretion in determining
the qualifications of prospective jurors. State v. Martini, l3l
N.J. l76, 2l8 (l993); State v. Pennington, ll
9 N.J. 547, 589
(l990). A trial court's removal of a prospective juror for cause
will not be reversed unless the court has abused its discretion.
Pennington, supra, ll9 N.J. at 589; State v. Ramseur, l06 N.J.
l23, 260 (l987). The wide latitude afforded trial courts in the
determination of a prospective juror's qualifications stems from
the inability of appellate courts to appreciate fully the
dynamics of a trial proceeding. As we noted in Ramseur, supra:
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. As Judge Jayne once put
it, even the best and most accurate record of
oral testimony is like a `dehydrated peach;
it has neither the substance nor the flavor
of the peach before it was dried.' Trusky v.
Ford Motor Co., l9 N.J. Super. l00, l04 (App.
Div. l952); A bloodless record conceals
subtle nuances; although we cannot always
sniff them out, they do not often escape
detection by our trial judges.
[l06 N.J. at 260 (Clifford, J., dissenting)
(quoting State v. Gilmore, l
03 N.J. 508, 547
(1986).]
Nonetheless, "`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 oath.'" Id. at
255 (quoting Adams v. Texas,
448 U.S. 38, 45, l
00 S. Ct. 252l,
2526,
65 L. Ed.2d 58l, 589 (l980)). If the reason for exclusion
is other than an inability to follow the law or abide by one's
oath as a juror, the death penalty may not stand. Id. at 255-56.
The improper removal for cause of a prospective juror violates a
defendant's Sixth Amendment right to an impartial jury.
Wainwright v. Witt,
469 U.S. 4l2, 423, l
05 S. Ct. 844, 85l,
83 L.
Ed.2d 84l, 85l (l985).
In determining whether a prospective juror's views on the
death penalty warrant removal for cause, a trial court need not
demonstrate the prospective juror's bias "with unmistakable
clarity." Ramseur, supra, l06 N.J. at 256. In fact, to warrant
removal for cause a juror's opposition to the death penalty need
not be automatic. Yet, "`nervousness, emotional involvement
[and] inability to deny or confirm'" that the gravity of the task
would not have any effect on their ability or willingness to
perform their duties is not "`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.'" Ibid. (quoting Adams, supra, 448 U.S.
at 50, l00 S. Ct. at 2529, 65 L. Ed.
2d at 592-93).
No hard-and-fast rules exist to determine whether the
removal for cause was proper. In the end, a trial court in the
exercise of sound discretion, must decide whether the responses
elicited from a prospective juror indicate a view that would
prevent or substantially impair that juror's performance in
accordance with court's instructions and that juror's oath.
Grant's responses during voir dire establish her inability
to perform as a juror in a capital case.
Court: . . . The jury is going
to have to make a
decision whether he
should go to prison, and
if he goes to prison,
he's got to go for 30
years without parole.
Juror: Yes.
Court: And I can sentence him up
to life imprisonment but
there's another
alternative. The jury
may decide to sentence
the Defendant to death.
That is the choice for
this jury, between life
and death. Do you
understand that?
Juror: Yes.
Court: Could you make that
choice?
Juror: I don't think so.
Court: Pardon me?
Juror: No, I don't think so.
Court: Okay, tell me why it
troubles you? Tell me
why you couldn't make
that choice?
Juror: Well, I would probably
think about it a lot, you
know, it would bother me
afterwards, I would keep
thinking about it about
whether I should not or
shouldn't [sic], you know
about whether I made the
right decision or
whatever.
Although Grant did not feel compelled by any religious or
doctrinal belief to oppose capital punishment, she indicated that
she would not be able to look at the evidence as it was
presented.
Court: Is there anything in your
-- do you have any
particular religious
training that instructs
you either way with
respect to the death
penalty?
Juror: No.
. . . .
Court: Okay. Is there any
ethical or moral view
that you have of your own
that says that the death
penalty is either right
or wrong punishment for
murder?
Juror: I don't think, I would
have to look at so many
things, your Honor, why -- how it was committed.
Court: Would you be willing to
look at it and consider
those things?
Juror: Not really.
. . . .
Court: Why not?
Let's take an example
of a murder for hire,
suppose it was proven
beyond a reasonable doubt
that a Defendant had
murdered somebody to get
money. Is that somebody
who you would be leaning
towards death as
punishment or away from
death as a punishment in
terms of what would be
appropriate?
Juror: I wouldn't say death.
. . . .
Court: Is there anything in your
personal views that would
prevent you from
returning a verdict of
death in a murder case?
Juror: I just wouldn't want to
do it.
When repeatedly pressed by defense counsel, Ms. Grant did
respond affirmatively when asked if she thought she could do her
duty as a citizen, could listen and could evaluate the case
fairly. She also hesitatingly agreed at one point under defense
counsel's questioning that capital punishment could be an
appropriate punishment in some cases and that she could engage in
discussions about the case with other jurors. Yet, in the end,
she repeated that she did not believe she could vote to sentence
a defendant to death.
Court: Would you be able to
sentence a Defendant to
death?
Juror: I am not sure, honestly.
Court: What is that?
Juror: Honestly speaking?
Court: All we're asking you to do is
to be honest. Would you be
able to sentence a Defendant
to death, ma'am?
Juror: Whatever, I don't think so.
We are satisfied that Ms. Grant's entire testimony reflects
more than the "significant uncertainty [that] is to be expected
in the average citizen when asked to discharge the task [of
deciding between a sentence of life or death]." Ramseur, supra,
106 N.J. at 257. Although some of Grant's responses on cross-examination demonstrate a willingness to listen to the evidence
and to consider the relevant law, we are mindful that "further
questions . . . calculated to draw out only such answers as would
rehabilitate her as a juror" are "not conducive to a sound
determination of whether a juror should be dismissed for cause."
State v. Williams, ll
3 N.J. 393, 439-40 (l988).
Although Grant's opposition to capital punishment was not
grounded in a verifiable religious or moral code, her inability
to serve as a capital juror was nevertheless apparent. We have
approved the excusal of prospective jurors for cause in similar
situations. See Martini, supra, l3l N.J. at 2l7-l8, 219
(upholding exclusion for cause of juror who "expressed
significant doubts about his ability to impose a death sentence
under any circumstances," despite juror's assurance that he could
follow oath and vote for death and upholding exclusion for cause
of juror who expressed "ambivalence about the possibility of
voting for a death sentence"); State v. Biegenwald, l26 N.J. l,
29 (l99l) (upholding exclusion for cause of juror who expressed
dissatisfaction with sentencing options and indicated that it
would be "`very difficult'" for him to vote to impose death);
State v. Marshall, l23 N.J. l, 96 (l99l) (upholding exclusion for
cause of juror who "expressed significant doubts about her
ability to follow the court's instructions"); State v. Moore, l
22 N.J. 420, 456-57 (l99l) (upholding exclusion for cause of juror
who expressed unwillingness to vote for death sentence and
upholding exclusion for cause of juror who stated that she would
find it difficult to vote for death sentence); State v. Hunt, ll
5 N.J. 330, 358 (upholding exclusion for cause of juror who stated
that she would not want and probably could not vote for death
sentence). Applying the Adams-Witt test, we find that Grant's
scruples "substantially impaired" her ability to follow the law.
Thus, the trial court did not abuse its discretion in removing
her for cause.
B. Exclusion of Leslie Dawson
We turn next to the propriety of the trial court's decision
not to exclude Leslie Dawson from the venire for cause based on
pro-death penalty views. We then address the related issue of
under what circumstances an erroneous failure to excuse a
prospective juror for cause constitutes reversible error. After
the court's refusal to excuse Dawson for cause, defendant
exercised a peremptory challenge against her. Before the final
juror was qualified, defendant had already exhausted his
allotment of peremptory challenges, forcing him, he claims, to
seat a "partial juror," Kennedy.
The threshold question that we must resolve is whether the
trial court's decision not to exclude Dawson for cause was an
abuse of discretion. Pennington, supra, ll9 N.J. at 589;
Ramseur, supra, l06 N.J. at 260. We employ the same standard in
reviewing the propriety of a trial court's decision to exclude or
not to exclude a juror because of the juror's pro-death penalty
views as we do when a juror expresses opposition to the death
penalty. See Williams, supra, ll3 N.J. at 437-38 ("The same test
that applies to a juror biased against imposition of the death
penalty applies to a juror biased in favor of imposing capital
punishment in all murder cases. Neither can serve fairly in the
penalty phase."). The standard for both a pro- and anti-death
penalty juror is whether the juror's views about capital
punishment "`would prevent or substantially impair the
performance of his or her duties as a juror in accordance with
his instructions and oath.'" Ramseur, supra, l06 N.J. at 255
(quoting Adams, supra, 448 U.S. at 45, l00 S. Ct. at 2526, 65 L.
Ed.
2d at 589); see also State v. Bey, ll2 N.J. l23, l52 (l988)
("Although Witherspoon, Adams, and Witt dealt with the exclusion
of opponents of the death penalty, we believe that the same
standard should apply to jurors who are proponents of the death
penalty.").
Whether Dawson's views would have prevented or substantially
impaired her performance as a juror is a close question. The
most troubling responses elicited from Dawson concern her views
on murder for hire.
Q Do you have any feelings about
murders that are done for hire?
A Yeah.
Q What are your feelings?
A I believe if you're paid, if
someone pays you to kill someone
else, then that's another case
where, for me, for the death
penalty.
Q Would you vote for the death
penalty automatically in such a
case?
A Most likely, unless I heard
something, some strong evidence to
change my mind and most likely I
would go for the death penalty.
* * * *
Q Good afternoon, ma'am. Miss
Dawson, my name is Peter Liquori
and I, along with Michele Soto, we
represent Mr. DiFrisco here.
MS. SOTO: Good afternoon.
Q And coming off of what Mr.
Bogdanski was saying, you know, in
our minds we make decisions by
balancing things. Right? Would
you agree with that?
A Yes.
Q Kind of weighing things from side
to side.
Would you--and I--hearing what you
said, you're very concerned
something about murder for hire,
that that's murder in which you
thought you would feel strongly
about the death penalty.
A Yes.
Q Would your feelings about the death
penalty weigh so heavily or weigh
heavy enough in your mind that you
would expect a lot of proof from
the Defense about mitigating
factors?
A Pretty much, yeah. I'd expect a
lot of evidence to prove otherwise
that this wasn't, I don't know--
Q I mean --
A I would need a lot. You see, I
don't know what a lot in my mind
would be. I would need enough in
my mind, I would feel it would be
enough for me to say, okay, I'd go
a different way.
* * * *
Q What if I tell you, what if you
hear evidence that someone took--was paid money, got the money,
agreed to go kill somebody and then
purposely, by their own hand, by
their own conduct, walks up to
somebody and basically unloads a
gun into them, killing them.
After hearing that, what do you
think about that, I mean, after
hearing those facts, could you
consider anything but the death
penalty?
A Not if they were paid money to go
up and do this, no.
Yet, Dawson repeatedly indicated that she would consider all
evidence presented before reaching a conclusion.
Q Would that aggravating factor
affect you to the degree that in
reality you really couldn't
consider mitigating evidence? Is
that what you're telling me?
A No, I would consider it. I would consider it. I would listen to it and consider it and like I said, if it was very very good evidence, to sway me in a different way, then, you know, I would take it into consideration and listen to it and
maybe go another way. But if it
wasn't, if I didn't feel it was
good enough for me to sway me in a
different way, then I'd have to go
with what I feel.
* * * *
Q I mean, if you hear testimony, if
the testimony that you hear that's
presented to you, would you
consider testimony that wasn't
related to the circumstances of the
offense but were related to
someone's -- their background,
their family, you know, their
mental state of mind?
A I would take every bit of evidence,
I would take everything I heard
into consideration and like I said,
if it was enough to make me sway a
different way, then I would, you
know, I would have to consider
going instead of the death penalty,
for life.
If it was enough to make me say
that, you know, I don't think the
death penalty is good for this
situation, but it would have to be
enough to make me want to, you know
* * *.
Ms. Dawson also indicated that she believed that her personal
views on capital punishment would not prevent or substantially
impair her from performing her duties as a juror.
Unlike the prospective juror we felt should have been
excluded for cause in Williams, supra, ll3 N.J. at 439, Dawson
never indicated that "she would automatically impose a death
sentence for deterrence purposes even if circumstances warranted
a life sentence." Yet, her responses did suggest the possibility
that her ability to deliberate impartially was "substantially
impaired" by her belief that those who murder for compensation
should be put to death. See Bey, supra, ll2 N.J. at l54 (holding
that failure to exclude for cause juror who indicated that
violent murders should be put to death in almost all
circumstances was abuse of discretion). Whether Dawson was not
"`nearly as impartial as the lot of humanity will admit,'"
Williams, supra, ll3 N.J. at 44l (quoting State v. Jackson, 43
N.J. l48, l58 (l964) (quoting State v. White,
196 A.2d 33, 34
(N.H. 1968)), cert. denied,
379 U.S. 982,
85 S. Ct. 690,
13 L.
Ed.2d 572 (1965)), is an extremely difficult question. Indeed,
the trial court reserved its decision on defendant's motion to
excuse Dawson until it reviewed a transcript of her testimony.
Considering our deference to trial courts in voir dire, we are
not convinced that the trial court erred in not excusing Ms.
Dawson for cause, but, as our discussion below indicates, we need
not decide that question.
C. Forced Use of Peremptory Challenge
We now turn to an issue not initially addressed by either of
the parties -- but raised by the Court -- namely, when a trial
court erroneously fails to excuse a prospective juror for cause
and the defense then peremptorily challenges that juror, does the
subsequent exhaustion of peremptory challenges per se constitute
reversible error or must defendant show actual prejudice?
In Ross v. Oklahoma,
487 U.S. 8l, l
08 S. Ct. 2273, l0l L.
Ed.2d 80 (l988), the Supreme Court held that an erroneous
failure to excuse for cause followed by a peremptory challenge
and the subsequent exhaustion of the defendant's allotment of
peremptory challenges was not per se reversible error. Id. at
85-86, l08 S. Ct. at 2277, l0l L. Ed.
2d at 88. To establish a
violation of the Sixth Amendment guarantee of an impartial jury,
a defendant must demonstrate that one of the jurors who actually
sat on the jury was partial. "Any claim that the jury was not
impartial, therefore, must focus not on [the juror ultimately
excused by a peremptory challenge], but on the jurors who
ultimately sat." Id. at 86, l08 S. Ct. at 2277, l0l L. Ed.
2d at
88. The loss, by itself, of a peremptory challenge does not
violate the constitutional right to an impartial jury because
"peremptory challenges are not of constitutional dimension." Id.
at 88, l08 S. Ct. at 2278, l0l L. Ed.
2d at 90.
Nonetheless, the Ross Court left open the possibility of an
automatic-reversal rule under state law. Id. at 89, l08 S. Ct.
at 2279, l0l L. Ed.
2d at 90. We have not heretofore explicitly
rejected a per se reversal rule as matter of state law. See
Williams, supra, ll3 N.J. at 445 ("We need not decide whether the
loss of a peremptory challenge in this case where all
peremptories were ultimately exhausted would, by itself, warrant
reversal."); see also Bey, supra, ll2 N.J. l54-55 ("In the
present, we need not determine whether that error would be
reversible under article I, paragraph l0 of the New Jersey
Constitution.").
Such a rejection, however, is implicit in a number of our
cases. See, e.g., Williams, supra, ll3 N.J. at 462-63 (Handler,
J., concurring) (noting that "the majority here seemingly adopts
a jury-bias standard as the operative test for reversal"). In
fact, our explicit holding in Bey, supra, ll2 N.J. at l54, that
the erroneous failure to excuse a juror for cause where the
defense had not exhausted its allotment of peremptory challenges
was harmless error, demonstrates that we have never viewed the
loss of a peremptory challenge as per se reversible error. See
State v. Rios, l
7 N.J. 572, 592 (l955) (applying harmless error
standard to erroneous loss of peremptory challenge); ; State v.
Deegan, l
33 N.J.L. 263, 268 (E. & A. l945) (same); State v.
Calabrese, l07 N.J.L. ll5 (E. & A. l930) (same); State v. Lynch,
l
03 N.J.L. 64 (E. & A. l926) (same); see also State v. Deatore,
70 N.J. l00, l05 (l976) (reversing for failure to excuse juror
for cause where peremptories were exhausted because of indication
that error was prejudicial); Wright v. Bernstein,
23 N.J. 284,
294 (l957) (reversing for failure to excuse juror for cause where
peremptories were exhausted because potentially-biased juror sat
on jury).
Moreover, we have consistently held that the right of a
peremptory challenge is not a fundamental right guaranteed by the
federal or State Constitutions. State v. Brunson, l0l N.J. l32,
l36 (l985). Although the right to exercise peremptory challenges
is a "`substantial right,'" State v. Singletary,
80 N.J. 55, 62
(l979) (quoting Wright, supra, 23 N.J. at 295), "with deep
historic roots," Brunson, supra, l0l N.J. at l36, it is a
creature of statute designed "`to eliminate extremes of
partiality on both sides, [and] to assure the parties that the
jurors before whom they try the case will decide on the basis of
the evidence placed before them and not otherwise.'" Id. at l37-38 (quoting Swain v. Alabama,
380 U.S. 202, 2l9,
85 S. Ct. 824,
835, l
3 L. Ed.2d 759, 772, reh'g denied, 38l U.S. 92l, 85 S. Ct.
l528, l
4 L. Ed.2d 442 (l965) (alteration in original)); see also
J.E.B. v. Alabama, ___ U.S. ___, ___ n.7,
114 S. Ct. 1419, 1426
n.7,
128 L. Ed.2d 89, ___ n.7 (l994) ("Although peremptory
challenges are valuable tools in jury trials, they `are not
constitutionally protected fundamental rights; rather they are
but one state-created means to the constitutional end of an
impartial jury and a fair trial.'" (quoting Georgia v. McCollum,
505 U.S. ___, ___,
112 S. Ct. 2348, 2358,
120 L. Ed.2d 33, ___
(l992))).
The goal of peremptory challenge is to secure an impartial
jury. See Brunson, supra, l0l N.J. at l38; see also Swain,
supra, 380 U.S. at 2l2-20, 85 S. Ct. at 831-36, l3 L. Ed.
2d at
768-73 (sketching origins of right of peremptory challenge).
Thus, to hold that the loss of a peremptory challenge will cause
a reversal unless that loss ultimately results in a partial jury
makes little sense. The argument that such a jury-bias standard
for reversal effectively eliminates the need for peremptory
challenges because "for cause" removals already guarantee
impartiality misunderstands the nature of "for cause" challenges.
To remove a juror for cause, the challenging party must
demonstrate that the juror's views would prevent or substantially
impair the performance of that juror's duties in accordance with
the court's instructions and the juror's oath. Ramseur, supra,
l06 N.J. at 255. Absent violations of equal protection, see,
e.g., J.E.B., supra, ___ U.S. ___,
114 S. Ct. 1419,
128 L. Ed.2d 89 (holding that peremptory challenge exercised solely on basis
of gender violated Equal Protection clause); Batson v. Kentucky,
476 U.S. 79, l06 S. Ct. l7l2,
90 L. Ed.2d 69 (l986) (holding
that peremptory challenge exercised solely on basis of race
violated Equal Protection clause), "[t]he peremptory challenge,
unlike challenges for cause, requires neither explanation nor
approval by the court." Brunson, supra, l0l N.J. at l38.
In certain situations, a prospective juror's responses
during voir dire may not indicate that his or her views would
prevent or substantially impair performance as a juror, but a
party may nonetheless detect some disfavorable leaning. That is
precisely the situation in which a party is likely to exercise a
peremptory challenge. Thus, a jury-bias rule does not render
peremptories superfluous, but merely recognizes that only when
jurors who should have been removed for cause sit on the jury is
the constitutional guarantee of an impartial jury offended.
The dilution of number of statutorily-prescribed
peremptories by the erroneous failure to excuse a juror for cause
is of no moment to the constitutional guarantee of an impartial
jury. Were it otherwise, we would be forced to recognize a
constitutional right to an unlimited number of peremptories
because, like the dilution of the number of peremptories caused
by a trial judge's erroneous failure to remove a juror for cause,
the Legislature's provision for a certain finite number of
peremptories would have to be seen as an unconstitutional
limitation on the ability of a defendant to secure an impartial
jury. We have never suggested such a rule. To the contrary, the
Legislature may set the number of peremptory challenges at fifty,
twenty, ten or zero, if it so choses, because the choice of
peremptory challen