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State v. Difrisco

August 14, 2002

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



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

SYLLABUS BY THE COURT

(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).

VERNIERO, J., writing for a majority of the Court.

This is a capital case. Defendant, Anthony DiFrisco, appeals the denial of his petition for post-conviction relief (PCR), in which he asserts that he was denied effective assistance of counsel during the penalty phase of the trial.

DiFrisco pled guilty to the August 12, 1986 murder of Edward Potcher, the owner of Jack's Pizzeria in Maplewood. After being arrested in New York on unrelated charges, DiFrisco admitted committing the murder for a friend, Anthony Franciotti, who paid DiFrisco $2,500. DiFrisco met Franciotti in a New York prison approximately two years before the shooting, when DiFrisco was in his early twenties and Franciotti was in his fifties. The two remained friendly after their release from prison, with DiFrisco visiting Franciotti often and relying on Franciotti for narcotics to support his drug habit.

One night in the summer of 1986, Franciotti told DiFrisco that someone was planning to accuse Franciotti and his associates of illegal drug activity, and that he wanted to have that person killed. Franciotti asked DiFrisco to commit the homicide. DiFrisco responded that he had never killed anyone before, but he would do what Franciotti asked. DiFrisco explained that he acceded to the request because he owed Franciotti money, Franciotti supplied his drugs, and he "looked up to" Franciotti.

On the night of the murder, Franciotti picked up DiFrisco in the Bronx and took him to a bar for a few drinks. Because DiFrisco was nervous, Franciotti bought him some heroin. After ingesting the drug, DiFrisco felt better and told Franciotti he wanted to "get it over with." Franciotti drove DiFrisco from New York to Jack's Pizzeria in Maplewood. DiFrisco went into the pizzeria while Franciotti waited in the car. DiFrisco ordered a whole pizza because Jack's did not sell slices, and took a few bites from one slice. After a delivery person left the store to make a delivery, DiFrisco asked Potcher for some water. As Potcher turned, DiFrisco shot him five times at close range, using a gun with a silencer. DiFrisco then returned to Franciotti's car.

Potcher's murder remained unsolved until April 1, 1987, when New Jersey authorities were alerted to DiFrisco's confession to the crime. DiFrisco had been arrested in New York for car theft and other crimes, and told a New York detective that he wished to cooperate to get out of the charges. The detective suggested that DiFrisco provide information about a more serious crime, and DiFrisco admitted he had been hired to kill someone in a pizzeria in New Jersey. New Jersey authorities were brought in, and DiFrisco gave a taped statement and a signed confession implicating Franciotti. Arrangements were made for DiFrisco to make a recorded telephone call to Franciotti to connect Franciotti to the murder. DiFrisco, however, refused to cooperate, explaining that his father told him not to do so without the advice of paid counsel.

DiFrisco was indicted for capital murder and weapons charges. He entered a guilty plea and waived a jury for his sentencing trial. The trial court found two aggravating factors, that DiFrisco was a hired killer, (4)(d), and that he killed to avoid detection of another, (4)(f), and that they outweighed the mitigating factors beyond a reasonable doubt. The Supreme Court overturned the death sentence in 1990 and remanded for a new sentencing trial.

On remand, DiFrisco expressed dissatisfaction with his privately retained attorney, Samuel DeLuca, and requested appointment of new counsel. DeLuca was allowed to withdraw from the case, and the trial court ordered the Public Defender to represent DiFrisco. The Public Defender's Office assigned Assistant Public Defenders Barbara Lapidus and Michelle Soto to the case. Lapidus, who was lead counsel, had no experience in capital cases but was a seasoned public defender. Soto also had no experience trying capital cases, and had only two years of experience trying criminal cases. Attorneys with previous capital experience were already engaged in other death penalty cases.

Prior to the retrial, Lapidus and Soto filed two motions to withdraw DiFrisco's guilty plea. In one, they argued that the decision to plead was rendered involuntary by the erroneous assurances of DiFrisco's attorney, DeLuca, that DiFrisco would receive a life sentence. The second motion was based on the ground that DiFrisco's plea resulted from ineffective assistance of counsel. In support, counsel presented the testimony of DiFrisco and DeLuca. In essence, they argued that DeLuca did not develop mitigation evidence because he was convinced DiFrisco would not receive the death penalty. The trial court denied both motions, finding that DeLuca's decision not to investigate had been reasonable. The Supreme Court ultimately affirmed the trial court determinations in both motions.

Lapidus and Soto retained several experts to assist in their mitigation investigation. Dr. Silikovitz, a licensed psychologist, was retained initially to evaluate DiFrisco for purposes of withdrawing the guilty plea. Dr. Silikovitz met with DiFrisco for three hours and performed a number of tests. Although his report indicated that DiFrisco demonstrated guilt and remorse for his criminal and drug activity, Dr. Silikovitz also diagnosed DiFrisco with antisocial personality disorder (ASPD) and multiple drug dependencies.

Soto believed that Silikovitz's report was harmful to DiFrisco's case, especially his diagnosis of ASPD. Joseph Krakora, who supervised Lapidus and Soto, agreed. Lapidus, however, felt that the diagnosis, viewed in conjunction with the entire report, was not too damaging. Notwithstanding Soto's and Krakora's doubts about Silikovitz, Lapidus also retained him to evaluate possible mitigating factors. After meeting with DiFrisco a second time, and interviewing family members and a former girlfriend, Silikovitz changed his diagnosis from APSD to Adult Antisocial Behavior. He prepared a report providing greater detail about DiFrisco's remorse; his broken home and his need for male role models, which were linked to his history of substance abuse; discussed at length DiFrisco's drug abuse and addiction; and included some of DiFrisco's positive character traits.

Lapidus liked the revised report because it conveyed DiFrisco's remorse, his regard for Franciotti as a father figure, and his susceptibility to Franciotti's influence because of his drug addiction. Soto, however, was adamant that Dr. Silikovitz should not be called because of his original diagnosis of ASPD and his later diagnosis of Adult Antisocial Behavior. The two also disagreed about whether Dr. Silikovitz would be an effective witness. Lapidus believed that he was genuine and credible, and that those qualities would come across to the jury. Soto found him inarticulate and unclear.

The defense team also retained Alfonso Associates, a consulting firm specializing in the collection and presentation of psychological mitigation evidence. Cessie Alfonso, who was in charge of the firm, was highly regarded in the Public Defender's Office. Counsel also asked Pam Cuevas, who had worked as an investigator for the Public Defender, to perform her own investigation of DiFrisco's background. With the exception of Cuevas, none of these experts were made aware of the other's reports. Alfonso testified that if she had seen Dr. Silikovitz's report, she would have conducted a more thorough investigation into DiFrisco's relationship with Franciotti, his drug abuse, and his remorse. Dr. Silikovitz testified that if he had received the school records contained in Alfonso's report, he would have conducted further testing because those records indicated DiFrisco suffered from a learning disability.

In October 1992, Lapidus expressed dissatisfaction working with Soto. Their disagreement about Dr. Silikovitz was partly to blame. Krakora removed Soto from the case and assigned Peter Liquori, whose level of experience doing defense work was similar to Soto's. In November 1992, Alfonso advised counsel that she would be unable to testify because of health problems. She recommended a social worker with experience testifying in capital trials, to replace her. Also in November, approximately six weeks before the trial date, Lapidus resigned from the Public Defender's Office. Krakora, concerned because the presiding judge was strictly enforcing trial dates, asked Soto to resume work as the lead counsel because he wanted someone who knew the case.

Soto decided to use Carmeta Albarus, one of Alfonso's associates, to testify in place of Alfonso. Although Albarus had no experience testifying, counsel believed that she was the more appropriate choice because she was more familiar with DiFrisco's case. Albarus did not have any contact with counsel until November 1992.

Also, Soto decided not to call Dr. Silikovitz to testify, believing that any benefits from his testimony were outweighed by his diagnosis of ASPD and Adult Antisocial Behavior. Soto considered replacing Dr. Silikovitz, but ultimately rejected that idea because she could not be sure what another expert might say about ASPD. Instead, Soto called Dr. Peter Schiffman as an expert witness on drug abuse and its effects on a person's judgment. Soto believed she had to confine the scope of Dr. Schiffman's testimony to the effects of drug abuse in general so that the court would not disallow it entirely (the discovery deadlines had long passed), and because she had not uncovered sufficient evidence to corroborate DiFrisco's specific claim that he was using drugs at the time of the offense.

The sentencing retrial lasted five days, one of which was devoted to DiFrisco's mitigation case. Albarus and Dr. Schiffman testified as experts, and members of DiFrisco's family testified about DiFrisco's unhappy home, his father's neglect, and his drug abuse. On cross-examination, the prosecutor brought out that Albarus had only an undergraduate degree that was not in psychology, and that Albarus had never testified before at trial. Soto viewed the testimony of Dr. Schiffman to be devastating to the defense. The testimony deviated from that anticipated by Soto and made DiFrisco appear to be a danger. Dr. Schiffman told the jury that heavy cocaine use could lead to paranoia and even psychosis. He also stated that a cocaine addict could be driven to hurting people to get his drugs. After both sides rested, DiFrisco made a brief statement to the jury asking them to spare his life.

The jury found unanimously the existence of the first aggravating factor, murder for pecuniary gain, but did not find unanimously, and therefore rejected, the second aggravating factor, that the murder was committed to avoid detection for another. The jury unanimously found several mitigating factors: that DiFrisco suffered from his father's lack of love and attention and his mother's inability to discipline him; that his emotional maturity was stunted due to his early drug addiction, and that DiFrisco was vulnerable to and manipulated by Franciotti. By a vote of 11-1, the jury indicated it did not find that DiFrisco was remorseful for the murder of Potcher. The jury unanimously determined that the one aggravating factor outweighed all of the mitigating factors beyond a reasonable doubt, and DiFrisco was sentenced to death.

DiFrisco filed his PCR petition in February 1997, alleging he had been denied the effective assistance of counsel and of experts. He sought an evidentiary hearing to present the testimony of newly retained experts and others, arguing that the new experts had conducted the thorough, competent investigation that should have been conducted by retrial counsel and the experts they retained. Two experts concluded that DiFrisco suffered from a learning disability, Attention Deficit/Hyperactivity Disorder (ADHD), which, combined with his drug use, explained DiFrisco's poor judgment and over-reliance on others. Another expert with expertise in drug abuse concluded that defendant's ability to appreciate the wrongfulness of his actions was diminished due to his substance abuse and that his cognitive capacity was severely impaired at the time of his confession. DiFrisco sought to introduce the testimony of another mitigation specialist, who completed a comprehensive psychosocial history and found DiFrisco to be remorseful, a conclusion supported by her interview with a prison chaplain who met with DiFrisco many times. Finally, DiFrisco sought to introduce the expert report and testimony of David I. Bruck, an attorney with expertise in capital litigation. In his report, Bruck stated that his analysis of DiFrisco's case led him to conclude that retrial counsel's performance fell well below national standards for capital defense counsel.

The PCR court accepted into evidence the written reports prepared by the new experts, with the exception of Bruck's report. The court declined to hear in-court testimony from any of those experts or their sources. Instead, the court heard testimony from DiFrisco's previous experts, and from the lawyers who represented him at his sentencing retrial and their supervisors.

The court denied DiFrisco's PCR petition. As to all but one of DiFrisco's claims of ineffective assistance, the court found the performance of retrial counsel to be reasonable. The sole issue on which the court found deficient conduct was the second motion to withdraw the guilty plea. On that issue, however, the court held that DiFrisco had not been prejudiced by counsel's performance. DiFrisco also contended that he was deprived of his constitutional right to the effective assistance of experts, and that the death penalty is unconstitutional. The court ruled that both claims were beyond the scope of the PCR hearing.

DiFrisco appeals to this Court as of right.

HELD: The representation provided by DiFrisco's trial attorneys did not constitute ineffective assistance of counsel.

1. New Jersey has adopted the two-prong Strickland test established by the United States Supreme Court for determining whether a criminal defendant has received effective assistance of counsel. First, counsel's performance must fall below an objective standard of reasonableness. Second, there must be a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A capital defendant does not need to show that the result of the penalty phase would have been different, as in a non-capital proceeding, but rather that the omitted information would have substantially affected the jury's deliberations during the penalty phase. The probability that the jury's deliberations would have been substantially affected by counsel's error equates with a probability sufficient to undermine confidence in the outcome. (Pp. 25-31)

2. In his first claim of ineffective assistance of counsel, DiFrisco argues that counsel failed to discover and present evidence of remorse. He contends that counsel was incompetent for not replacing Dr. Silikovitz with a new psychological expert and for not presenting the evidence in Dr. Silikovitz's report about DiFrisco's remorse. Although the Silikovitz report referred to DiFrisco's remorse, other aspects of the report, such as the diagnosis of APSD, would have devastated the mitigation case. Counsel also would have been reasonable in expecting that another expert would have rendered a similar diagnosis. DiFrisco therefore has not satisfied the first prong of Strickland. Even if the Court were to conclude otherwise, the Court is confident that DiFrisco has not met the second prong. Given the State's evidence reflecting the nature and brutality of the crime, it would have been extremely difficult to convince jurors of DiFrisco's contrition. (Pp. 31-37)

3. DiFrisco next argues that counsel failed to develop evidence of his psychological dependence on Franciotti. There is no dispute that retrial counsel presented evidence about DiFrisco's relationship with Franciotti, and that that relationship weighed heavily in DiFrisco's commission of the murder. Additionally, retrial counsel presented testimony of DiFrisco's difficult personal life and history of drug abuse, and portrayed DiFrisco as Franciotti's victim. While the case in mitigation suggested by PCR counsel may have been more thorough and more cohesive in its presentation, the Court is persuaded that DiFrisco received adequate representation on this issue. (Pp. 37-43)

4. Next, DiFrisco claims that retrial counsel failed to conduct a reasonable investigation of evidence about his positive character traits and rehabilitative potential. Retrial counsel made a reasonable, tactical decision to limit good character evidence to avoid the admission of DiFrisco's prior bad acts in rebuttal. The Court finds no deficient performance under Strickland's first prong and no prejudice under the second prong. (Pp. 43-47)

5. The Court is not persuaded by DiFrisco's other claims: that counsel failed to pursue his cooperation with the State; that counsel failed to present evidence of his deference to authority figures or his drug use in support of the motions to withdraw the guilty plea; and that the cumulative errors of counsel require a retrial. (Pp. 47-53)

6. Although it might have been preferable for the PCR court to permit DiFrisco's experts to testify, the written reports covered the subject matter about which they would have testified, and the PCR court was within its discretion to rely solely on the written submissions. The PCR court erred when it refused to consider the report of David Bruck, a lawyer who was offered as an expert in capital defense litigation. The field of capital defense litigation is a constantly evolving, specialized area of the law, and all judges, irrespective of their experience, can be informed by such information. In view of the Court's earlier conclusion that retrial counsel did not render ineffective assistance, the PCR court's error was harmless. And, because DiFrisco ultimately failed to satisfy the second prong of Strickland, Bruck's opinion would not alter the Court's disposition. (Pp. 53-58)

7. DiFrisco challenges the trial court's denial of his motion to interview jurors from the sentencing retrial. He sought this exceptional remedy based on statements of an alternate juror as conveyed through PCR counsel's affidavit. The PCR court denied the motion, reasoning that the alternate juror's statements were hearsay because she was not in the deliberating room; the information was stale, having been made to PCR counsel more than three years after the retrial; and the substance of the statements were not sufficient to overcome the presumption against interviewing jurors. The Court concludes that DiFrisco has not made the strong showing necessary to warrant the extraordinary procedure of post-trial interrogation of the retrial jurors. (Pp. 58-63)

8. DiFrisco seeks reversal of his death sentence on the ground that he was deprived of his right to effective assistance of experts at the sentencing retrial. The Court concludes that such a claim is not separately cognizable in the context of a PCR petition, and is subsumed under the auspices of an ineffective assistance of counsel claim. (Pp. 63-66)

9. Relying on its prior precedent, the Court disagrees with DiFrisco's remaining argument that the death penalty statute is unconstitutional under either the federal or State Constitution. (P. 66)

The judgment of the Law Division denying DiFrisco's PCR petition is AFFIRMED.

JUSTICE LONG, joined by JUSTICES STEIN and ZAZZALI (except with respect to Point IV which states that the Court should revisit the issue whether the death penalty is unconstitutional) has filed a separate, dissenting opinion, expressing the view that DiFrisco was provided inadequate representation at his sentencing retrial by counsel that was devoid of capital experience and whose presentation of the case in mitigation was incoherent, ill-conceived, and scattershot, betraying the internal disagreements, disregard of mentors' advice, incompetent investigation, and a lack of preparation that took place behind the scenes.

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN and LaVECCHIA join in JUSTICE VERNIERO's opinion. JUSTICE LONG, joined by JUSTICES STEIN and ZAZZALI (except with respect to Point IV), has filed a separate, dissenting opinion.

The opinion of the court was delivered by: Verniero, J.

Argued March 26, 2002

This is a capital case. This Court previously affirmed defendant's conviction for capital murder, State v. DiFrisco, 118 N.J. 253 (1990) (DiFrisco I), upheld his death sentence, State v. DiFrisco, 137 N.J. 434 (1994) (DiFrisco II), and determined that his sentence was not disproportionate when compared to similar cases, State v. DiFrisco, 142 N.J. 148 (1995) (DiFrisco III). Defendant now appeals the trial court's denial of his petition for post-conviction relief (PCR) in which he asserts that he was denied effective assistance of counsel during the penalty phase of trial. We affirm.

I. Facts and Procedural History

In what this Court has described correctly as a "cold- blooded, execution-style killing," DiFrisco I, supra, 118 N.J. at 256, defendant murdered Edward Potcher, the owner of Jack's Pizzeria, at his Maplewood restaurant on August 12, 1986. Defendant fired four bullets into the victim's head and a fifth bullet into his body. Defendant confessed to the homicide after being arrested in New York on unrelated charges. Defendant also admitted that a man named Anthony Franciotti paid him $2500 to commit the murder. The other facts relating to our previous decisions are set forth at length in DiFrisco I, supra, 118 N.J. at 255-60, DiFrisco II, supra, 137 N.J. at 448-51, and DiFrisco III, supra, 142 N.J. at 157-59. We recite only those facts relevant to defendant's PCR petition or as necessary background to our disposition.

A.

The Homicide and the First Penalty Trial

Defendant and Franciotti had met in a New York prison approximately two years before the shooting, when defendant was in his early twenties and Franciotti was in his fifties. Franciotti befriended defendant after defendant arrived at the prison and remained friendly with him during the period that their sentences overlapped. The two men spent a great deal of time together, often eating meals together and talking to each other, and remained in touch after Franciotti's release. When defendant was released on parole, he visited Franciotti often and relied on him for narcotics to support his drug habit.

One night in the summer of 1986, Franciotti told defendant that someone was planning to accuse Franciotti and his associates of illegal drug activity, and that he wanted to have that person killed. Franciotti asked defendant to commit the homicide. Defendant responded that he had never killed anyone before, but he agreed to do what Franciotti asked. Defendant later explained why he acceded to Franciotti's request, "I mean I owed [Franciotti] money. You know, I kind of looked up to the man and I guess like, rather than see him go to prison and that I owed him money and I was getting my drugs from him, I said yes."

On the night of the murder, Franciotti picked up defendant in the Bronx and took him to a bar for a few drinks. Because defendant was nervous, Franciotti bought him some heroin. After defendant ingested the drug, he felt better and told Franciotti, "If we are going to do this, let's get it over with." Franciotti then drove defendant from New York to Jack's Pizzeria in Maplewood. Defendant went into the pizzeria while Franciotti waited in the car. Defendant ordered a whole pizza because Jack's did not sell slices, and took a few bites from one slice. After a delivery person left the store to make a delivery, defendant asked Potcher for some water. As Potcher turned, defendant shot him five times at close range, using a gun with a silencer. Defendant then returned to Franciotti's car. The day after the killing, Franciotti paid defendant in cash. Defendant later used the money to visit his sister in New Mexico.

Potcher's murder remained unsolved until April 1, 1987, when New Jersey authorities were alerted to defendant's confession to the crime. Defendant had been arrested in New York for car theft and reckless endangerment, and he told a New York detective that he wished to cooperate to get out of the charges. The detective suggested that defendant provide information about a more serious crime. Defendant asked the detective, "who is more guilty, a guy who shoots a guy or a guy who pays him to shoot the guy?" The detective replied, "A guy who pays him to shoot the guy . . . The guy who killed the guy is only an intermediate, only a pawn." Defendant admitted killing someone in a pizzeria in New Jersey, but offered few details. The detective contacted New Jersey authorities, who identified an unsolved murder in Maplewood that fit the offense described by defendant. Within hours, the Maplewood police and Essex County homicide officers arrived at the New York precinct.

Defendant recounted details of the crime to the New Jersey authorities. Defendant also gave a taped statement and signed a confession implicating Franciotti. Several days later, New Jersey authorities made arrangements for defendant to make a recorded telephone call to Franciotti, to connect Franciotti to the murder. A public defender with whom defendant consulted advised him to make the call. Defendant ultimately refused to call Franciotti, explaining that defendant's father advised him not to cooperate further with the police without the advice of paid counsel.

Defendant was indicted for capital murder and weapons charges. He entered a guilty plea and waived a jury for his sentencing trial. At the first sentencing trial, the trial court found two aggravating factors: that defendant was a hired killer, N.J.S.A. 2C:11-3c(4)(d), and that he killed to avoid the detection of another, N.J.S.A. 2C:11-3c(4)(f). The court found as a single mitigating factor that defendant cooperated with authorities in the prosecution of another person for murder, N.J.S.A. 2C:11-3c(5)(g).

Finding that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt, the trial court sentenced defendant to death. For reasons not relevant here, this Court overturned the death sentence in DiFrisco I, supra, and remanded the matter for a new sentencing trial. 118 N.J. at 283.

B. Representation Prior to Sentencing Retrial

On remand, defendant's attorney, Samuel DeLuca, moved for a directed verdict of life imprisonment. DeLuca argued that no additional evidence existed to corroborate the aggravating factors that gave rise to the death sentence. The trial court denied the motion, and the Appellate Division declined to grant leave to appeal. In September 1991, defendant wrote a letter to the court, requesting appointment of new counsel. Defendant expressed his dissatisfaction with DeLuca's representation. The court allowed DeLuca to withdraw from the case and, in his stead, ordered the Public Defender to represent defendant.

The Public Defender's Office assigned Assistant Deputy Public Defenders Barbara Lapidus and Michelle Soto to the case. Lapidus, who was assigned as lead counsel, had no experience in capital cases but was a seasoned public defender. Soto also had no experience trying capital cases, and had only two years experience trying criminal cases. Lapidus and Soto were chosen because attorneys with previous capital experience were already engaged in other death penalty cases. Lapidus was initially reluctant to defend a capital case, but her supervisor, Joseph Krakora, chief of the homicide division, expressed confidence that she could do the job. He also assured her that Soto would do the necessary legal writing. The supervisor talked to them about the case and made himself available for questions and discussions.

1. The Motions to Withdraw Defendant's Guilty Plea

Prior to the sentencing retrial, Lapidus and Soto filed two motions to withdraw defendant's guilty plea. In the first motion, counsel argued that defendant's guilty plea should be withdrawn because his decision to plead was rendered involuntary by DeLuca's erroneous assurances that defendant would receive a life sentence. Counsel's subsequent motion was based on the ground that defendant's plea resulted from ineffective assistance of counsel.

In support of both motions, counsel presented the testimony of defendant and DeLuca. In essence, counsel argued that DeLuca did not develop mitigation evidence on defendant's behalf because he was convinced that defendant would not receive the death penalty. According to counsel, DeLuca so grossly misinformed defendant regarding the consequences of pleading guilty that defendant did not enter his plea knowingly and voluntarily. The trial court denied both motions, finding that DeLuca had not misled defendant nor made any improper promises. The court also found that DeLuca's decision not to investigate had been reasonable. This Court ultimately affirmed the trial court's determination on both motions in DiFrisco II, supra, 137 N.J. at 451-59. 2. The Mitigation Investigation

Counsel began their mitigation investigation about the time that they had begun preparing the motions to withdraw defendant's guilty plea. They retained a licensed psychologist, Dr. Ronald Silikovitz; a psychiatrist specializing in substance abuse, Dr. William Annitto; and a mitigation specialist, Cessie Alfonso. They also requested the assistance of an investigator at the Public Defender's Office, Pam Cuevas. Toward the end of the investigation, counsel asked a different mitigation specialist, Carmeta Albarus, to take the place of Alfonso. Finally, counsel retained Dr. Peter Schiffman, a psychiatrist, as an expert witness on drug abuse.

Although Dr. Silikovitz had never worked on a capital case before participating in defendant's case, his specialties included psychological testing, behavior modification, and neglected children. He had experience with child welfare cases involving the Division of Youth and Family Services. Krakora approved retention of Dr. Silikovitz to evaluate defendant for purposes of the motion to withdraw defendant's guilty plea.

Counsel did not provide Dr. Silikovitz with the legal standards for plea withdrawal. However, to assist him in his task, counsel provided Dr. Silikovitz with their case report, the incident report, and the transcripts of the guilty plea and original sentencing hearing.

Silikovitz met with defendant for three hours, and he performed a number of tests, including a WAIS-R for intellectual evaluation, H-T-P, D-A-P, Projective Drawings, Bender, Rorscharch, WRAT, sentence completion, TAT, and Three Wishes. Dr. Silikovitz delivered his first report to defense counsel on February 25, 1992, several months prior to the hearings for both motions to withdraw defendant's guilty plea. The report discussed defendant's overall psychological status and reported defendant's account of his confession to authorities.

Dr. Silikovitz stated that defendant could not "recall any phase of the confession process" because "he was high on cocaine and probably also heroin at the time when the 'confession' was made." The report indicated that several people, including defendant's mother and his attorney, witnessed defendant's condition. The report also indicated that defendant "manifests guilt and remorse related to his history of criminal and drug activity." The report observed, "One has the sense that [defendant] may be more of a follower and a victim of circumstance rather than an individual who tends to initiate, originate, and create difficulty." Based on Dr. Silikovitz's three-hour meeting with defendant, the psychologist diagnosed defendant with antisocial personality disorder (ASPD) and multiple drug dependencies.

Soto believed that Dr. Silikovitz's report was harmful to defendant's case, particularly the ASPD diagnosis. Krakora, Soto's supervisor, agreed. Lapidus, on the other hand, felt that the diagnosis, viewed in conjunction with the entire report, was not too damaging. Notwithstanding Soto's and Krakora's doubts, Lapidus asked Dr. Silikovitz to evaluate and assess possible mitigating factors. Dr. Silikovitz met with defendant a second time, again for three hours. Dr. Silikovitz relied on defendant's own reasons why he should not be put to death. After defendant's interview, counsel gave Dr. Silikovitz a copy of the statutory aggravating and mitigating factors used in capital cases and told him to call either Lapidus or Cuevas, the investigator, if he had any questions.

Dr. Silikovitz met with counsel, conducted telephone interviews with four family members and defendant's former girlfriend, and reviewed the Diagnostic and Statistical Manual of Mental Disorders, revised third edition (DSM-III-R). He then produced a revised report. He changed his ASPD diagnosis to a diagnosis of "Adult Antisocial Behavior." Dr. Silikovitz's revised report also provided greater detail regarding defendant's remorse for his crime; included information about defendant's broken home, lack of supervision, and need for male role models, all of which were linked to defendant's history of substance abuse; discussed at length defendant's drug abuse and addiction; and included some of defendant's positive character traits.

Lapidus liked the revised report because it conveyed defendant's remorse, his regard for Franciotti as a father figure, and his susceptibility to Franciotti's influence because of his drug dependency and need for a male role model. Soto, however, was "adamant" that Dr. Silikovitz should not be called as a witness because of the initial ASPD and revised "Adult Antisocial Behavior" diagnoses. As for Dr. Silikovitz himself, the two lawyers also differed. Lapidus felt that he was genuine, that he cared for defendant, that he was credible, and that those qualities would come across to the jury. Soto, on the other hand, felt that the doctor was inarticulate and unclear. Dr. Silikovitz met with counsel twice after completing his revised report.

Dr. Annitto, a board-certified psychiatrist with expertise in the field of substance abuse, met with defendant and submitted a brief report to counsel addressing defendant's drug use at the time of his confession. Dr. Annitto concluded that defendant's use of cocaine, Valium, and heroin would have had a dramatic impact on his physical condition at the time of his arrest and confession. The report further concluded that defendant would have been suffering severe withdrawal by the time of his confession, which would have led him to "say just about anything so as to get some relief and peace." Because defendant described his symptoms of withdrawal without any prompting from Dr. Annitto, the doctor found defendant's account to be credible.

Counsel also retained Alfonso Associates, a consulting firm that specializes in, among other things, the collection and presentation of psychosocial mitigation evidence. Cessie Alfonso, who ran the firm, was highly regarded in the Public Defender's Office. Counsel asked Alfonso to evaluate defendant's history, background, and family relationships for mitigation purposes. Soto told Alfonso to obtain as much information as possible, even if "bad," because it might be useful in developing some mitigating factors. Soto also asked Cuevas, who had worked at the Public Defender's Office for about a year, to conduct her own investigation of defendant's background. Although counsel met with Cuevas to discuss the case, they did not direct Alfonso on how she should focus her investigation. Lapidus and Soto later testified that they relied on Alfonso's expertise and, therefore, did not feel the need to supervise her.

Alfonso never saw Dr. Silikovitz's reports, and the work of Alfonso Associates and Cuevas was never shared with Dr. Silikovitz. Lapidus later testified that the reports were never shared because they were being prepared "contemporaneously." Alfonso, however, testified that had she seen Dr. Silikovitz's report during her investigation, she would have done substantially more research into defendant's relationship with Franciotti, defendant's need for a father figure, the losses that occurred during defendant's childhood and adolescence, defendant's depression, and defendant's remorse. Likewise, Dr. Silikovitz later testified that had he received defendant's school records incorporated in the Alfonso report, he would have conducted further testing because the records indicated a learning disability.

Cuevas reviewed all available discovery and set up appointments to interview a number of witnesses. She interviewed defendant and spoke to his relatives. She obtained defendant's prison records from the State and from the Essex County jail. The investigator also received some of defendant's school records, and she interviewed defendant's former girlfriend. However, defendant's stepmother, Janet DiFrisco, made it difficult to involve defendant's half-sister, Theresa, in the investigation. Although Theresa was supposedly close to defendant and Soto felt that she might be helpful to the defense, she did not testify. Soto decided not to subpoena Theresa because counsel did not know what she would say at the retrial.

In June 1992, Alfonso Associates sent defense counsel an initial report prepared by Alfonso and two associates, one of whom was Carmeta Albarus. The report revealed that defendant's father was emotionally unavailable, that his mother was depressed and unable to provide discipline, and that defendant received little attention or family support. The report also provided information about defendant's drug use, and stated that defendant was exposed to drug use in the home at a young age. Finally, the report noted that defendant never had appropriate male role models, and that his father's neglect led to defendant's lack of self-esteem.

In October 1992, Lapidus expressed dissatisfaction about working with Soto (the disagreement over Dr. Silikovitz helped put a strain on their relationship). Krakora then removed Soto from the case and assigned Peter Liguori to replace her. Soto and Liguori had similar legal backgrounds at the Public Defender's Office.

In November 1992, Alfonso notified defense counsel that, due to health problems, she would be unable to testify at the sentencing retrial. She recommended Billy Feinberg, a social worker with experience testifying in capital cases, to replace her. Also in November, approximately six weeks before the sentencing retrial, Lapidus resigned from the Public Defender's Office. Krakora asked Soto to resume work on the case as lead counsel and to try the case with Liguori. Krakora later testified that he had decided to reassign Soto to the case because the presiding judge was strictly enforcing court deadlines, and Soto was the only person with knowledge of the case who was in a position to take over.

Soto and Liguori decided that Carmeta Albarus, one of Alfonso's associates, would testify in place of Alfonso. Although Albarus had no experience testifying, counsel felt that she would be a satisfactory witness. They believed that she came across as a genuine, warm person, and other attorneys in the Public Defender's Office agreed that Albarus would be the more appropriate choice. Albarus had no contact with defense counsel prior to November 1992. Liguori later testified that they rejected Alfonso's recommendation to call a different witness, Billy Feinberg, because Feinberg did not know defendant's case and Albarus did.

In December 1992, defense counsel's focus turned toward preparing Albarus to testify. Albarus conducted re-interviews of several people so that she would have personal knowledge of the individuals and the information in Alfonso's report. Also, Alfonso Associates prepared a second report that incorporated the information gained from those additional interviews. The cover letter to the second report stated that the report's substance bore "no significant changes and the themes and issues remain consistent" with the first Alfonso report.

After becoming lead counsel, Soto decided not to call Dr. Silikovitz to testify. She believed that the expected benefits of the doctor's testimony were outweighed by his diagnosis of ASPD. Additionally, in a conversation with Soto, Dr. Silikovitz described defendant as a "sociopath." Soto feared that the jury would reject defendant's mitigation defense if it heard that defendant suffered from ASPD, or if it heard him labeled a "sociopath." Soto considered replacing Dr. Silikovitz, but ultimately rejected that idea because she could not be sure what another expert might say about ASPD. Counsel thought that stressing defendant's drug addition and family background would be a better approach under the circumstances.

Soto decided to call Dr. Peter Schiffman as an expert witness on drug abuse and its effects on a person's judgment. Soto chose to limit the scope of Dr. Schiffman's testimony to the effects of drug abuse in general. She believed that she had to confine his testimony so that the court would not disallow it entirely (the discovery deadlines had long passed), and because defense counsel had not uncovered sufficient evidence to corroborate defendant's specific claim that he was using drugs at the time of the offense.

C. The Sentencing Retrial

The sentencing retrial lasted five days, one day of which was devoted to defendant's mitigation case. Two expert witnesses testified, Albarus and Dr. Schiffman. Also, defendant's sister, father, brother, and mother testified.

Albarus testified as a mitigation specialist, stating that she performed a psychosocial assessment of defendant. She narrated his family background and history of drug abuse. Albarus also briefly discussed defendant's relationship with Franciotti. On cross-examination, the prosecutor attempted to discredit Albarus by bringing out the fact that she did not have an undergraduate degree in psychology, did not have any advanced degree beyond the undergraduate level, and lacked training in substance abuse. The prosecutor also highlighted the fact that Albarus had never before testified in court, and that her report was very similar to the prior report submitted by Alfonso.

With regard to Dr. Schiffman's testimony at the sentencing retrial, Soto recounted that his testimony was "devastating to [defendant's] defense." Soto noted that the doctor's testimony, which deviated from that which Soto had anticipated, "made it look like [defendant] was a danger." For example, Dr. Schiffman told the jury that heavy cocaine use usually leads to paranoia, followed by "out and out psychosis," and that a cocaine addict may even be driven to the point of "hurting people trying to get [drugs]." One of Soto's supervisors testified that he would not have agreed to present Dr. Schiffman as a witness.

Members of defendant's family testified. They recounted defendant's unhappy home, his father's neglect, and his drug abuse.

After both sides had rested, defendant made a brief statement to the jury asking the members to spare his life. Outside the jury's presence, counsel engaged in a colloquy with the court about whether defense counsel would be permitted to allude to defendant's remorse. Counsel intended in their summation to submit defendant's remorse to the jury as a mitigating factor. The court told counsel that it was considering striking remorse as a mitigating factor because "there's no evidence of it." The only suggestion of remorse, the court observed, was in defendant's statement to the jury. Defense counsel objected, stating that "remorse is one of the central themes of our defense."

The court ultimately ruled that "although it may be a stretch, the jury may infer the continuing presence . . . of remorse from the prior statements [the confession] and prior testimony, if they so wish." In closing, Soto did argue defendant's remorse by contending that defendant's confession to an otherwise unsolved murder should weigh heavily against the death penalty, as well as defendant's cooperation with the police. Finally, Soto spoke of defendant's drug use and how that affected Franciotti's influence over defendant.

In its verdict, the jury found unanimously that the first aggravating factor, that the murder was for pecuniary gain, had been established beyond a reasonable doubt. The jury did not unanimously find, and therefore rejected, the existence of the second aggravating factor, that the murder was committed for the purpose of escaping detection for another crime.

As reflected on the verdict form, the jury's findings on mitigation were as follows: a. The defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution[.]

(12) No (0) Yes b. The defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication, but not to a degree sufficient to constitute a defense to prosecution[.]

(12) No (0) Yes c. The defendant rendered substantial assistance to the State in the prosecution of another person for the crime of murder[.]

(6) No (6) Yes d. The childhood and upbringing of Anthony DiFrisco.

(0) No (12) Yes e. Anthony DiFrisco suffered from his father's lack of love, recognition and attention.

(0) No (12) Yes f. Anthony DiFrisco's mother was unable to provide him with the discipline and guidance he needed while growing up. (0) No (12) Yes g. Anthony DiFrisco could not turn to his two older brothers for guidance and support because they were drug abusers. (0) No (12) Yes h. Anthony DiFrisco never developed any self-esteem.

(0) No (12) Yes i. Anthony DiFrisco's emotional maturity level was stunted due to his early addiction to drugs.

(0) No (12) Yes j. Anthony DiFrisco's excessive drug abuse affected his ability to make sound judgments.

(8) No (4) Yes k. Anthony DiFrisco was vulnerable and susceptible to the older Franciotti because he looked up to him as a father figure.

(0) No (12) Yes l. Anthony DiFrisco was dependent upon Franciotti for drugs.

(11) No (1) Yes m. Anthony DiFrisco allowed himself to be manipulated by Anthony Franciotti.

(0) No (12) Yes n. Anthony DiFrisco's motivation in confessing to the murder was remorse. (12) No (0) Yes o. Anthony DiFrisco remains remorseful about killing Edward Potcher.

(11) No (1) Yes p. Edward Potcher's killing would have remained unsolved, if Anthony DiFrisco himself had not confessed.

(0) No (12) Yes q. Any other factor which is relevant to the defendant's character or record or to the circumstances of the offense. (12) No (0) Yes As indicated, one or more jurors found thirteen of the mitigating factors. Of those thirteen, the jury found nine factors unanimously, including that defendant's emotional maturity level was stunted due to drug addiction, that defendant was vulnerable and susceptible to Franciotti, that defendant allowed himself to be manipulated by Franciotti, and that the murder itself would have remained unsolved had defendant not confessed. The jury concluded that it was "unanimously satisfied" that the one aggravating factor outweighed the mitigating factors beyond a reasonable doubt. Consequently, the trial court sentenced defendant to death.

D. The Petition for Post-Conviction Relief

In February 1997, defendant filed the present petition for PCR alleging that he had been denied the effective assistance of counsel and of experts at his sentencing retrial. Defendant also sought the court's permission for leave to interview jurors from the sentencing retrial, based on unsolicited information provided by an alternate juror. That information, according to defendant, suggested that the jury had received extraneous information and attempted to return a non-unanimous verdict. Defendant also sought an evidentiary hearing in which he would have the opportunity to present testimony by factual witnesses and four expert witnesses retained by PCR counsel. The newly- retained experts, defendant argued, conducted the thorough, competent investigation that should have been conducted by defense counsel at the penalty retrial.

First, defendant sought to introduce the testimony of Alan M. Goldstein, Ph.D., a forensic psychologist, who conducted twenty-six hours of interviews with defendant, interviewed family and friends, and administered a set of psychological tests. Dr. Goldstein concluded that defendant was and is remorseful and does not suffer from ASPD. Dr. Goldstein also found that defendant suffers from a learning disability, Attention Deficit/Hyperactivity Disorder (ADHD), which, combined with years of substance abuse, explained his poor judgment and excessive reliance on others in social situations. Finally, in his report, Dr. Goldstein discussed the ways in which, in his opinion, Dr. Silikovitz's evaluation of defendant was incomplete and inadequate as compared to the standard of care of a competent psychologist.

Second, defendant sought to introduce the testimony of Wilfred Van Gorp, Ph.D., a neuropsychologist. Dr. Van Gorp concluded that defendant had suffered from ADHD since childhood, and his abilities were further diminished by years of substance abuse. Dr. Van Gorp concluded that defendant's impairments made it difficult for him to make sense of social situations, and resulted in his being excessively influenced by mentor-type figures like Franciotti.

Third, defendant sought to present the testimony of Robert L. Smith, Ph.D., a psychologist with an expertise in the diagnosis and treatment of substance abuse. Dr. Smith evaluated the effects of defendant's drug abuse on his cognitive functioning and concluded that, at the time of the offense, defendant's ability to appreciate the wrongfulness of his actions was diminished due to his substance abuse. Dr. Smith further concluded that defendant's cognitive capacity was severely impaired at the time of his confession, due to the combination of withdrawal from heroin and acute cocaine intoxication.

Fourth, defendant sought to introduce the testimony of Jill Miller, a mitigation specialist, who completed a comprehensive psychosocial history of defendant. Miller found defendant to be remorseful, a conclusion supported by her interview with Sister Gnam, a prison chaplain who met with defendant many times and reported that defendant was remorseful. Based on interviews with people who have known defendant throughout his life, Miller concluded that defendant was capable of rehabilitation. In addition, Miller evaluated the mitigation investigation conducted by the defense counsel for retrial and concluded that it was inadequate and deficient.

Finally, defendant sought to introduce the expert report and testimony of David I. Bruck, an attorney with expertise in capital litigation. In his report, Bruck stated that his analysis of defendant's case led him to conclude that retrial counsel's performance fell well below national standards for capital defense counsel.

The PCR court accepted into evidence the above reports prepared by the new experts, with the exception of Bruck's report. The court declined to hear in-court testimony from any of those experts or their sources. Instead, the court heard testimony from defendant's previous experts, and from the lawyers who represented defendant at his sentencing retrial and their supervisors. The PCR court denied defendant's motion to interview jurors.

After all witnesses had testified, defendant argued six points of ineffective assistance of counsel. The court denied defendant's petition. As to all but one issue, the court found that retrial counsel's performance had been reasonable. The sole issue on which the court found deficient conduct was the second motion to withdraw defendant's guilty plea. On that issue, however, the court held that defendant had not been prejudiced by counsel's performance. Defendant also contended that he was deprived of his constitutional right to the effective assistance of experts, and that the death penalty is unconstitutional. The court ruled that both claims were beyond the scope of the PCR hearing.

Defendant appeals to this Court as of right. R. 2:2- 1( a)(3).

II.

Standard of Review

The legal principles governing our review may be stated briefly. In Strickland v. Washington, the United States Supreme Court set forth the applicable test for determining whether a criminal defendant has received effective assistance of counsel as required by the Fifth Amendment to the United States Constitution. 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, counsel's performance must fall "below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. That prong is satisfied when counsel's acts or admissions fall "outside the wide range of professionally competent assistance" considered in light of all the circumstances of the case. Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Second, there must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. That prong is satisfied when counsel's errors are sufficient to undermine confidence in the outcome of the trial. Ibid.

This Court adopted the Strickland formulation in State v. Fritz, 105 N.J. 42 (1987). We concluded:

Even if we are not constitutionally compelled to adopt the Strickland [] test, the development of the law in this area impels us to conclude that we should recognize the soundness and efficacy of both the substance and formulation of this federal Constitutional standard in defining our own State Constitutional guarantee of effective assistance of counsel. We therefore hold that under Article I, paragraph 10 of the State Constitution a criminal defendant is entitled to the assistance of reasonably competent counsel, and that if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right will have been violated.

[Id. at 58.] In State v. Davis, this Court applied the Strickland standard to the guilt phase of a capital trial. 116 N.J. 341, 356-57 (1989). We reasoned that the standard was the appropriate test, stating:

Capital defendants are guaranteed competent capital counsel. Obviously the measure of an advocate's competency depends on the task to be accomplished. The best intentions and the most devoted of efforts do not necessarily equate with capital competence. We expect capital defense counsel to have an expertise regarding the special considerations present in capital cases.

The Strickland/Fritz standard demands no less.

[Id. at 356.] In State v. Marshall, the Court differentiated the prejudice prong of the Strickland standard when evaluating counsel's performance at the penalty phase. 148 N.J. 89, 250 (1997) (Marshall III). We concluded that a capital defendant may demonstrate prejudice by showing a "reasonable probability that, but for counsel's unprofessional errors, the jury's penalty-phase deliberations would have been affected substantially." Ibid. Thus, a capital defendant does not need to show that the result of the penalty phase would have been different, as in a non-capital proceeding, but rather "that the omitted information would have substantially affected the jury's deliberations during the penalty phase." State v. Bey, 161 N.J. 233, 252 (1999).

We further explained that "[t]he reasonable probability that ineffective assistance of counsel in the penalty phase of a capital case substantially affected the jury's penalty-phase deliberation equates with 'a probability sufficient to undermine confidence in the outcome.'" Marshall III, supra, 148 N.J. at 250 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Within the context of this petition, the relevant inquiry under the prejudice prong is whether defendant's argument in respect of mitigation, as well as his other asserted errors, undermines the Court's confidence in the outcome of the penalty-phase deliberations. Ibid.

Ultimately, a defendant must satisfy both prongs of the Strickland/Marshall test before a court will set aside a capital sentence on grounds of ineffective assistance of counsel. Strickland, supra, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699; Marshall III, supra, 148 N.J. at 251. Within that framework, a defendant is entitled to competent counsel, not perfect counsel. Kokoraleis v. Gilmore, 131 F.3d 692, 696 (7th Cir. 1997) (observing that "Constitution is satisfied when the lawyer chooses a professionally competent strategy that secures for the accused the benefit of an adversarial trial"). Additionally, this Court has noted that "[m]erely because a trial strategy fails does not mean that counsel was ineffective." Bey, supra, 161 N.J. at 251.

Lastly, a reviewing court must assess the performance of counsel with a "'heavy measure of deference to counsel's judgments.'" State v. Martini, 160 N.J. 248, 266 (1999) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). Accordingly, "when counsel's decision to limit an investigation is supported by 'reasonable professional judgments,' we will not find deficient performance." Ibid. (internal citation omitted). We likewise noted in Marshall III, supra, that "'[j]udicial scrutiny of counsel's performance must be highly deferential.' . . . [A court] must avoid second- guessing defense counsel's tactical decisions and viewing those decisions under the 'distorting effects of hindsight.'" 148 N.J. at 157 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694)).

III.

We now consider defendant's claims. Defendant argues that counsel at the sentencing retrial was ineffective because: (1) they failed to present available evidence of defendant's remorse, (2) they failed to present available evidence of defendant's relationship with Franciotti and its role in the crime, (3) they failed to present evidence of defendant's positive character attributes and rehabilitative potential, (4) their cumulative errors at the sentencing retrial prejudiced defendant, (5) they failed to pursue ...


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