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State v. DiFrisco

Decided: July 27, 1994.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY DIFRISCO, DEFENDANT-APPELLANT.



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

Garibaldi, Wilentz, Pollock, O'Hern, Handler, Clifford, Stein

Garibaldi

The opinion of the court was delivered by

GARIBALDI, J.

In State v. DiFrisco, 118 N.J. 253, 283 (1990) [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. 2:2-1(a)(3). We affirm the imposition of the death penalty.

I. FACTS AND PROCEDURAL HISTORY

The facts of this case are discussed in detail in DiFrisco I, 118 N.J. at 255-60. We recite only the facts relevant to this appeal.

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.

[DiFrisco I, supra, 118 N.J. at 258-59.]

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. 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 "the 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.]

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: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), 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.

II. DEFENDANT'S GUILTY PLEA

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 "solemn 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 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, 115 N.J. 433, 442-43 (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 (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; see State v. Bey, 112 N.J. 45, 98 (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 "if 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 "the 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. 146, 162 (1964). 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 (10th Cir. 1970); accord United States v. Garcia, 909 F.2d 1346 (9th Cir. 1990); Little v. Allsbrook, 731 F.2d 238, 241 (4th Cir. 1984); United States v. Hollis, 718 F.2d 277, 280-81 (8th Cir. 1983), cert. denied, 465 U.S. 1036, 104 S. Ct. 1309, 79 L. Ed. 2d 707 (1984); Stout v. United States, 508 F.2d 951, 953 (6th Cir. 1975); Masciola v. United States, 469 F.2d 1057, 1059 (3d Cir. 1972); Holland v. United States, 406 F.2d 213, 216 (5th Cir. 1969); see also State v. Rodriguez, 179 N.J. Super. 129, 136 (App. Div. 1981) (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 stated 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 weighed 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.

[State v. Deutsch, 34 N.J. 190, 197-98 (1961).]

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, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (adopting deficiency-and-prejudice standard for determining violations of Sixth Amendment right to counsel); State v. Fritz, 105 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, 106 S. Ct. 366, 371, 88 L. Ed. 2d 203, 210 (1985). 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, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973); 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, 106 S. Ct. at 370, 88 L. Ed. 2d at 210.

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, 630-31 (7th Cir. 1991) (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, 116 N.J. 341, 355-57 (1989). 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, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).]

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, 104 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. 1983) (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 521, 524 (Pa. Super. Ct. 1978) (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 4-5.1(b) (1980) ("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 made particular investigations unnecessary.'" State v. Savage, 120 N.J. 594, 618 (1990) (quoting Strickland, supra, 466 U.S. at 691, 104 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.

III. JURY ISSUES

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, 131 N.J. 176, 218 (1993); State v. Pennington, 119 N.J. 547, 589 (1990). A trial court's removal of a prospective juror for cause will not be reversed unless the court has abused its discretion. Pennington, supra, 119 N.J. at 589; State v. Ramseur, 106 N.J. 123, 260 (1987). 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., 19 N.J. Super. 100, 104 (App. Div. 1952); A bloodless record conceals subtle nuances; although we cannot always sniff them out, they do not often escape detection by our trial Judges.

[106 N.J. at 260 (Clifford, J., Dissenting) (quoting State v. Gilmore, 103 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, 100 S. Ct. 2521, 2526, 65 L. Ed. 2d 581, 589 (1980)). 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. 412, 423, 105 S. Ct. 844, 851, 83 L. Ed. 2d 841, 851 (1985).

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, 106 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, 100 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.

[Emphasis added.]

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.

[Emphasis added.]

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, 113 N.J. 393, 439-40 (1988).

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, 131 N.J. at 217-18, 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, 126 N.J. 1, 29 (1991) (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, 123 N.J. 1, 96 (1991) (upholding exclusion for cause of juror who "expressed significant doubts about her ability to follow the court's instructions"); State v. Moore, 122 N.J. 420, 456-57 (1991) (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, 115 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, 119 N.J. at 589; Ramseur, supra, 106 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, 113 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, 106 N.J. at 255 (quoting Adams, supra, 448 U.S. at 45, 100 S. Ct. at 2526, 65 L. Ed. 2d at 589); see also State v. Bey, 112 N.J. 123, 152 (1988) ("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 ...


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