State v. DiFrisco

CourtUnited States State Supreme Court (New Jersey)
Citation645 A.2d 734,137 N.J. 434
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Anthony DiFRISCO, Defendant-Appellant.
Decision Date27 July 1994

Paul M. Klein, Deputy Public Defender II, and M. Virginia Barta, Asst. Deputy Public Defender, for appellant (Susan L. Reisner, Acting Public Defender, attorney).

Hilary L. Brunell, Asst. Prosecutor, for respondent (Clifford J. Minor, Essex County Prosecutor, attorney).

Catherine A. Foddai, Deputy Atty. Gen., for amicus curiae, Atty. Gen. (Deborah T. Poritz, Atty. Gen. of New Jersey, attorney).

The opinion of the Court was delivered by


In State v. Di Frisco, 118 N.J. 253, 283, 571 A.2d 914 (1990) [Di Frisco 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. 2:2-1(a)(3). We affirm the imposition of the death penalty.


The facts of this case are discussed in detail in Di Frisco I, 118 N.J. at 255-60, 571 A.2d 914. We recite only the facts relevant to this appeal.

Page 449

A. DiFrisco I

On August 12, 1986, 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 1987, the police had no leads in solving this cold-blooded, execution-style killing.

On April 1, 1987, 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.

[Di Frisco I, supra, 118 N.J. at 258-59, 571 A.2d 914.]

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:11-3c(4)(c); murder for hire, N.J.S.A. 2C:11-3c(4)(d); and murder to escape the detection of another crime, N.J.S.A.

Page 450

2C:11-3c(4)(f). On January 11, 1988, 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:11-3c(1), 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:11-3c(4)(d), and one was 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.

[Id. at 259, 571 A.2d 914.]

We affirmed defendant's guilt-phase conviction, but reversed his death sentence and remanded for a new sentencing proceeding. Id. at 283, 571 A.2d 914. After Di Frisco 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:11-3c(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:11-3c(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:11-3c(5)(g); and any other factor relevant to defendant's character, record, or circumstances of the offense (the "catch-all" factor),

Page 451

N.J.S.A. 2C:11-3c(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.

Page 452

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, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136, 147 (1977), 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 Di Frisco 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, 115 N.J. 433, 442-43, 558 A.2d 1312 (1989); 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, 121 N.J. 483, 582 A.2d 630 (1990), 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, 582 A.2d 630; see State v. Bey, 112 N.J. 45, 98, 548 A.2d 846 (1988) (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...

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