State v. Di Frisco

Decision Date12 March 1990
Citation571 A.2d 914,118 N.J. 253
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Anthony DI FRISCO, Defendant-Appellant.
CourtNew Jersey Supreme Court

George T. Taite, for defendant-appellant (Samuel R. De Luca, attorney; Samuel R. De Luca and George T. Taite, Jersey City, on the brief).

Hilary L. Brunell, Asst. Pros., for plaintiff-respondent (Herbert H. Tate, Jr., Essex County Pros., attorney).

Catherine A. Foddai, Deputy Atty. Gen., on behalf of amicus curiae, Atty. Gen. of New Jersey (Peter N. Perretti, Jr., Atty. Gen. of New Jersey, attorney).

The opinion of the Court was delivered by

O'HERN, J.

In this capital-murder case, a hit-man has been sentenced to death on the basis of his confession that he was hired to kill a pizza-shop owner in order to silence the owner from informing on the higher-up. Killing for hire and killing to avoid detection are two of the statutory aggravating factors that make a murder death-eligible. N.J.S.A. 2C:11-3c(4)(d) and (f).

The murder was a cold-blooded, execution-style killing. Defendant has confessed that he fired four bullets at close range into the head of Edward Potcher, the owner of Jack's Pizzeria, at his Maplewood store on August 12, 1986. He fired a fifth bullet into the victim's body. DiFrisco has confessed that a man named Anthony Franciotti paid him $2500 to kill Mr. Potcher. In these circumstances, if proven, the two murderers fit Senator Russo's description of those for whom the death penalty was designed. His understanding, as the bill's chief sponsor, was that when such aggravating factors are found there are two classes of murderers who were exposed to the death penalty:

[ (1) ] the actual perpetrator of the murder, the one who wields the gun or the knife ... that results in the death ... [and (2) ] the one who hires one to commit murder * * *.

[State v. Gerald, 113 N.J. 40, 93-94, 549 A.2d 792 (1988) (quoting Capital Punishment Act: Hearings on S. 112 before the Senate Judiciary Committee at 2 (1982)).]

The central issue argued in the case by the defendant was the disproportionality of sentencing the gunman to death without even so much as seeking an indictment of the higher-up. Cf. State v. Marshall, appeal pending (No. A-3-89) (plea bargain offered to one of killers; husband of victim, who hired killers, was sentenced to death); State v. Engel, 99 N.J. 453, 493 A.2d 1217 (1985) (plea bargain offered to the killer; husband and brother of husband charged with capital murder of victim-wife). Underlying the argument is the belief that the State must have evidence in its file exculpating Franciotti of the connection with defendant; otherwise why not present Franciotti's case to a grand jury?

One thing is clear about this case: defendant was almost certainly involved in the murder of the pizza-shop owner. No one on the outside could have supplied the police with the details that he furnished. Less certain is the role of Franciotti.

On April 1, 1987, defendant was arrested in New York on routine street crimes, car theft and reckless endangerment. Apparently defendant thought at the time of the arrest that he would remain free if he implicated someone higher up in the murder. He tried to bargain by turning someone over to the New York City police. He claims that the New York police told him that they would go easy on someone who turns in the one who hires a killer. As Bronx Detective Kukk recounted it:

And he asked me, he said, "Harry, who is more guilty, a guy who shoots a guy or a guy who pays him to shoot the guy?"

I said, "I have no problem. A guy who pays him to shoot the guy."

He said, "Are you serious?"

I said, "Sure."

"The guy who killed the guy is only an intermediate, only a pawn."

He said, "Harry, I don't know whether to trust you or not. If I tell you something, you are not going to ram it down me."

The defendant's confession of murder followed.

We find no error in the trial court's ruling that the general statement by the New York City police officer did not taint the confession. The statement was not false, so far as it went. It may have been disingenuous, but it surely was not conduct that would invalidate the confession. The fact that an investigative officer is friendly, sympathetic, and encourages the trust of the defendant to give a statement ordinarily would not render the confession involuntary. See Miller v. Fenton, 796 F.2d 598, 605 (3d Cir.), cert. denied, 479 U.S. 989, 107 S.Ct. 585, 93 L.Ed.2d 587 (1986). Rather, the inquiry must be whether an investigator's "statements were so manipulative or coercive that they deprived [defendant] of his ability to make an unconstrained, autonomous decision to confess." Ibid.

Evaluation of "the totality of all the surrounding circumstances," Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854, 862 (1973), to determine the voluntariness of the confession indicates that the police officer's remarks did not overbear defendant's will. There was no indication that DiFrisco did not understand his circumstances because of a lack of education, that he suffered due to the duration or nature of the questioning, or that he was deprived of such comforts as food or sleep. See id. at 226, 93 S.Ct. at 2047, 36 L.Ed.2d at 862. Although the detective was seeking information, he did not believe his remarks would evoke a confession to capital murder, a result far beyond anyone's contemplation. See Bram v. United States, 168 U.S. 532, 562-63, 18 S.Ct. 183, 194, 42 L.Ed. 568, 580 (1897) (encouragement that an accused might obtain a mitigation of the punishment for a crime by confessing serves as part of totality of circumstances to taint a confession).

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 counseledS against further cooperation with the police without the advice of paid counsel.

Consequently, an Essex County Grand Jury indicted DiFrisco alone for the murder of Edward Potcher. The charge was capital murder. The aggravating factors noted were that "[t]he murder was outrageously or wantonly vile," N.J.S.A. 2C:11-3c(4)(c); that the defendant was paid to commit the murder, N.J.S.A. 2C:11-3c(4)(d); and that the murder was committed to escape the detection of another crime, N.J.S.A. 2C:11-3c(4)(f).

DiFrisco's case was called for trial on January 11, 1988. He pled guilty to murder, repeating to the court the essence of his confession. He was specifically asked, "And was it your intention to kill him at that time?" And his answer was "Yes."

Pursuant to N.J.S.A. 2C:11-3c(1), DiFrisco waived a jury for the penalty phase of his trial. The State sought to prove the three aggravating factors through his confession and the forensic evidence found at the scene. At trial, defense counsel claimed surprise to learn that the case against Franciotti was still "under investigation." He claimed injustice in permitting his client to die without the State even so much as concluding its investigation of the higher-up's case.

The trial court found that two aggravating factors had been proven: that defendant was a hired killer, N.J.S.A. 2C:11-3c(4)(d), and one who killed to avoid the detection of another, N.J.S.A. 2C:11-3c(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:11-3c(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. The defendant claimed a denial of discovery based on the fact that an investigation into Franciotti was continuing. He learned at the trial that the investigation was continuing. He appealed to us as of right under Rule 2:2-1.

I

Defendant claims a Brady violation. Under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), a prosecutor has a nondelegable responsibility to furnish the defendant with all exculpatory information that the prosecution possesses. But there is no Brady violation here. Brady presented the opposite side of the coin. Brady was told that his confederate had given a statement naming Brady as the killer in the robbery. Brady denied this role. Despite his protestations, Brady...

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