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State v. Difrisco

Decided: March 12, 1990.


On an appeal from the Superior Court, Law, Division, Essex County.

For affirmance in part, reversal in part and remandment -- Chief Justice Wilentz, and Justices Clifford, Pollock, O'Hern, Garibaldi and Stein. The opinion of the Court was delivered by O'Hern, J. Handler, J., concurring in part and dissenting in part.


[118 NJ Page 255] 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 counseled

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.


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 was convicted of the murder. When the State prosecuted the confederate in a later trial, it used another statement by him in which he did not blame Brady but admitted to the murder. This admission would have sustained Brady's defense theory. According to the Court, the prosecutor had a duty to furnish the exculpatory evidence to Brady. 373 U.S. at 87-88, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218-19.

Our case is different. The putative exculpatory evidence in this case does not sustain DiFrisco's version of the facts. But more significantly, the file appears to be a blank sheet with nothing to confirm or dispute the State's case or provide exculpatory evidence for the defendant.



But does this state of the record create, as defendant argues, an unjust disproportionality that invalidates his death sentence? Perhaps the most telling summary of the defendant's argument is found in the remarks of the trial court prior to pronouncement of sentence:

As the Court has already indicated, this Court is perplexed by reason of the Prosecution's failure to move an indictment against Tony Franciotti, who the defendant names as the person who paid him to kill Edward Potcher because, according to the defendant, Potcher was about to "rat" on Franciotti and his associates. The testimony elicited from the State's witnesses with respect to an explanation of the failure to proceed against Franciotti is that calls to a New York City Assistant District Attorney and others did not disclose that Franciotti was a member of organized crime. I am not mindful that the law applies only to members of organized crime. And, further, that beside the defendant's statement, that the State had no evidence to link the defendant with Franciotti except for the fact that Franciotti and the defendant had known each other in jail.

With the exception of the foregoing, the record is totally bare of any reasons why the Franciotti investigation was not concluded or pursued or [why he] was not indicted. On the day of his arrest, Anthony DiFrisco, the defendant, informed both New York Detective Kukk and Detective Sergeant Saunders of Maplewood in detail concerning his role and that of Franciotti in the death of Potcher. He described Franciotti. He provided his address. He related when and where he had been paid as well as how Franciotti had transported him to and from the scene of the crime. And the State does have in its possession at least circumstantial evidence to corroborate that Franciotti and the defendant were well known to each other.

Apparently, upon the retention of and prior to speaking to private counsel the defendant, upon the advice of his father, ceased his cooperation until such time, he stated, as he should have had an opportunity to speak to counsel or to the counsel that his father had retained to represent him. Since that time the State had not requested nor has the defendant further offered any further cooperation. The State's witnesses, Detective Kukk and Detective Saunders and Investigator Kennedy, all offered the opinion that the defendant's confession was a truthful one. It is noteworthy that until the defendant voluntarily related his participation and that of Mr. Franciotti in the crime, that no one had the slightest idea or even a scintilla of evidence of any culpability on their part.

At the penalty-phase hearing, an assistant prosecutor described defendant's partial cooperation with the State's investigation of Anthony Franciotti and testified that Franciotti was still a possible subject of an indictment. He also testified that attempts had been made, independent of the defendant's confession, to substantiate the role that Franciotti had played in the murder. That investigation established a connection between the defendant and Franciotti, but the testimony did not refer to other elements of defendant's story -- for example, the fact that the car in which defendant and Franciotti had driven to New Jersey was rented. Of preeminent importance, however,

was defendant's refusal to make the phone call to Franciotti that might have produced an admission of Franciotti's involvement. The prosecutor said:

Q. And do you wish to use the cooperation of Mr. DiFrisco?

A. At this point, sir, I don't believe it would be fruitful at all.

Q. Because he did not make the phone call.

A. He did not cooperate.

Q. Listen to me carefully, sir. You say he did not cooperate. He did not make the phone call. Isn't that true?

A. Correct.

Q. And as a result of not making the phone call, sir, you are saying that that is the end of the cooperation in this case?

A. He would not make the phone call, nor would he testify before a Grand Jury or testify at trial. He said he did not want to cooperate.

Q. When did you invite him to go to the Grand Jury, sir? I have been his attorney since the indictment. When did you invite him to do that?

A. When he said he did not want to cooperate and he said to take him back, sir, that was the end of it. He made the decision, not I.

Defense counsel renewed the inquiry:

Q. Now I ask you, sir, is it your understanding that, as far as Mr. Franciotti is concerned, that even if right now Mr. DiFrisco cooperates and goes to the Grand Jury and testifies, that that would be a fruitless attempt by your office to indict Mr. Franciotti?

A. I am not going to speculate, sir.

Q. So there is always the possibility. Is that correct?

A. I am not going to speculate.

Q. * * * Don't you believe that [the confession and the jailhouse link] is substantial evidence?

A. Not in this situation. It is enough to get an indictment perhaps, sir, but I don't think it is enough to prove it to a jury beyond a reasonable doubt.

Q. So what you are saying is that you are making a judgment with respect to what a Petit Jury may do. Isn't that true?

A. Not only I, sir.

Q. Whoever made the judgment. Somebody made a judgment. Correct?

A. Correct.

Q. You said that you have enough to get an indictment, but you are not sure whether you can get a conviction. True? You said that a little while ago.

A. There would not have been enough to get an indictment on the hearsay statement of Mr. DiFrisco.

Q. Is it your obligation to present a case to the Grand Jury and if there is an indictment, sir, there is an indictment? Isn't that true?

A. The obligation is to see that justice is done, sir. To get an indictment that cannot be proved is not seeking justice.

Q. When you say [an indictment against Franciotti] cannot be proved, sir, you are now [stating] your judgment with respect to what 12 men may do. Isn't that true?

A. No, sir. Mr. DiFrisco did not want to testify.

This exchange suggests that the State's assessment of its case against Franciotti was based on the understanding that defendant would not testify against Franciotti.

The question of defendant's willingness to testify arose when defense counsel questioned whether defendant had refused to cooperate. The following ensued:

[PROSECUTOR]: He said he did not want to cooperate.

Q. When did you invite him to go to the Grand Jury, sir? I have been his attorney since the indictment. When did you invite him to do that?

A. When he said he did not want to cooperate and he said to take him back, sir, that was the end of it. He made the decision, not I.

Q. Are you aware of my conversation with this Prosecutor before Christmas?

MR. BOGDANSKI: Objection, Judge.

MR. DeLUCA: Judge, this is --

MR. BOGDANSKI: Counsel is now making himself a witness.

MR. DeLUCA: Judge, if I have to, then I will. I mean I think the Court should know that that offer was made, Judge, in light of this statement. I had no problem before. But in light of this.

MR. BOGDANSKI: In light of what, Your Honor?

MR. DeLUCA: In light of this now new testimony.

THE COURT: What Mr. DeLuca is saying, and, of course, that's a problem -- I realize the kind of hearing we are involved in. I also realize what the rules provide. You cannot back a witness in the case. You can ask him if he is aware that an offer was made. You can ask the witness that.

Are you aware that an offer was made?

THE WITNESS: I believe it was sometime around the holidays, Judge.

THE COURT: All right.

Apparently, the "offer" under discussion concerned defendant's willingness to testify against Franciotti. Defense counsel renewed the effort to demonstrate his client's willingness to testify against Franciotti:

DEFENSE COUNSEL: When you say [an indictment against Franciotti] cannot be proved, sir, you are now [stating] your judgment with respect to what 12 men may do. Isn't that true?

A. No sir. Mr. DiFrisco did not want to testify.

Q. I am telling you now, sir, that he testified and he is willing to testify.

MR. BOGDANSKI: Objection. Counsel is testifying, Your Honor. We have rules.

MR. DeLUCA: I will withdraw that, Judge.

Q. Sir, this man has pled guilty to a murder. When this hearing is over he will be sentenced. After he is sentenced you still have the statement that you read to the Grand Jury and you now have the body of the man subject to subpoena and also telling this Judge that he was never asked after that to cooperate and he will testify. You are not going to get an indictment?

A. I am not going to speculate, sir.

It thus appears from this representation of counsel that defendant was willing to testify against Franciotti and that his willingness to testify was made known to the State at least some weeks before his trial and again during the penalty phase.

Defendant contended before us that the State's handling of the Franciotti investigation required a reversal of defendant's conviction. The State explained its reasons for not indicting Franciotti. After recounting the events leading to defendant's arrest in New York and extradition to New Jersey, the ...

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