Marshall v. Hendricks

307 F.3d 36

Robert O. MARSHALL, Appellant

v.

Roy L. HENDRICKS*, Administrator, New Jersey State Prison; John J. Farmer*, Attorney General, State of New Jersey

* Caption amended per Court's Order of 8/8/00

No. 00-9004.

United States Court of Appeals, Third Circuit.

Argued March 21, 2002.

Filed September 11, 2002.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Stephen W. Kirsch [Argued], Office of Public Defender, Richard J. Hughes Justice Complex, Trenton, NJ, Counsel for Appellant.

Robert E. Bonpietro [Argued], Office of Attorney General of New Jersey, Department of Law & Public Safety, Division of Criminal Justice, Richard J. Hughes Justice Complex, Trenton, NJ, Counsel for Appellees.

Before: BECKER, Chief Judge, ROTH and RENDELL, Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

1

Robert O. Marshall unsuccessfully appealed his sentence of death in the New Jersey courts. He then sought habeas corpus relief in the United States District Court for the District of New Jersey, and having been denied relief there, he has appealed to our court. For the reasons set forth below, we will affirm the District Court's orders as to all claims regarding the guilt phase of Marshall's trial, but we will remand for further evidentiary development as to his claim that his attorney was ineffective in the penalty phase.

I. Facts

2

Robert O. Marshall, a successful insurance salesman and active member of the community in Toms River, New Jersey, was convicted and sentenced to death in 1986 for having hired someone to murder his wife, Maria, in order that he might gain approximately $1.5 million in insurance proceeds. During the months prior to his wife's death, Marshall had been involved in an affair with Sarann Kraushaar, who, with her husband, belonged to the same country club as the Marshalls. Their affair had advanced to the point that they had made plans to leave their respective spouses, establishing a safe deposit box for joint assets and preparing to lease a cottage together.

3

Marshall frequented the casinos in Atlantic City and found himself burdened by debt. Within a year of Maria's death, Marshall purchased increasing amounts of insurance on Maria's life. On September 6, 1984, Maria and her husband both were examined by a physician to qualify for an additional insurance policy. That night, while driving home from dinner and gambling in Atlantic City, Marshall allegedly experienced trouble with a tire while on the Garden State Parkway. He pulled into a darkened rest stop area, and, after he had exited the car to examine the tire, Marshall was hit on the head and Maria was fatally shot. We will reprise the facts at some length as they provide a necessary background for understanding much of our analysis.

4

As police investigated, they uncovered numerous telephone calls from Marshall to Louisiana, primarily to a hardware store in Caddo's Parish. An employee at the hardware store, Robert Cumber, had attended a party in Toms River where he met Marshall. As Marshall told the story, during the course of the evening, he and Cumber discussed insurance and financial instruments, and, at some point, Marshall mentioned that he was seeking an out-of-town investigator to track missing casino winnings that he had given to his wife. He expressed his reluctance to hire a local investigator, since Toms River was a small community where news traveled quickly. After Cumber's return to Louisiana, Marshall mailed information on financial products to him. Cumber also put Marshall in contact with Billy Wayne McKinnon — although McKinnon did not use his real name in his dealings with Marshall, using the name James (or Jimmy) Davis instead — who agreed to conduct Marshall's investigation. Initially, Marshall's only contact with McKinnon was through telephoning Cumber — both at home and at the hardware store. Even after Marshall and McKinnon met in person, Cumber remained Marshall's primary contact in Louisiana. Marshall wired money to McKinnon — again as Jimmy Davis — on two occasions; McKinnon had a person whose name really was Jimmy Davis sign for the money each time. McKinnon traveled to Atlantic City to meet with Marshall three separate times. The numerous telephone conversations were, according to Marshall, following up on the financial information sent to Cumber. According to McKinnon, they were attempts to find out why it was taking so long for McKinnon to murder Maria Marshall.

5

On September 21, 1984, investigators met with Marshall in his home, and asked him whether he knew either James Davis or Billy Wayne McKinnon from Shrevesport, Louisiana. Marshall's sister, Oakleigh DeCarlo and Marshall's son, Robert were present during this meeting, which Marshall cut short by refusing to answer questions on the advice of his attorney. On September 25, 1984, Marshall admitted to Sarann Kraushaar that he had lied to her about his Louisiana contacts — he had previously told her they were related to payments he had made on bets on an NBA playoff game. Kraushaar then decided to end the affair. Shortly thereafter, on September 27, 1984, Marshall checked into a Best Western hotel, into the room that he and Kraushaar had frequented. He telephoned each of his sons, and he also prepared separate tapes for each son, his secretary, and his brother-in-law, Joseph Dougherty, who happened to be an attorney. 1 He took the tapes addressed to his secretary and his brother-in-law to the front desk, where he placed them in a container for outgoing mail. He then added a large quantity of prescription sleeping pills to a soda, explaining later that he had intended to drink the soda and commit suicide that night, but had fallen asleep prior to consuming the drink.

6

Hotel personnel alerted the police that Marshall had checked into the hotel. When Marshall did not respond to a telephone call to his room, they forced entry and transported him to a hospital. His counsel, Glenn Zeitz, arranged for him to be transferred to a Philadelphia psychiatric hospital for observation. Police also seized the tapes, but did not play them until after they had secured a search warrant.

7

The prosecutor entered into a plea bargain favorable to McKinnon, offering him an extremely light sentence and assistance with entry into the witness protection program in return for testimony against Marshall and for naming and implicating the person who actually shot Maria Marshall. McKinnon named Larry Thompson as the shooter. Larry Thompson was a person whom Marshall had never met, who lived in Louisiana near McKinnon.

8

Marshall and Thompson were tried together. Opening statements were made on January 27, 1986. McKinnon testified at length, as did Kraushaar. Prior to and between McKinnon and Kraushaar, and at the close of the State's case, the prosecutor interspersed the testimony of persons who independently corroborated pieces of McKinnon's testimony with the testimony of the officers who responded the night of the murder and those who investigated the crime, including forensics experts. The State also elicited testimony from Maria Marshall's attorney and an investigator she had hired prior to her death, so the jury knew that Maria Marshall had been aware of Marshall's affair prior to her death. Other witnesses testified as to the existence, timing, and amounts of the insurance policies taken out against Maria's life. The contents of the "suicide" tape to Marshall's brother-in-law were also played for the jury.

9

McKinnon testified that on his first visit to New Jersey, he had made reservations at the Islander Motel in Atlantic City because Harrah's was booked. Since the taxi driver could not find the Islander, he had dropped him off at Harrah's, where McKinnon was able to get a room. McKinnon further testified that Marshall had asked McKinnon to kill Maria that night in the parking lot of a local restaurant, the Ram's Head Inn, but that, though he did visit the parking lot that night, it was crowded, and he simply returned to the hotel. A taxi driver then independently testified that he had picked McKinnon up at the airport on the date in question, could not find the Islander, dropped him off at Harrah's, and then, an hour later, took him to the Ram's Head Inn, where they drove around the building and then returned to Harrah's. Direct Testimony of Tae Yeon, February 10, 1986, St. Ex. 18T at 22-25. Shortly before noon on February 20, 1986, the State rested.

10

Marshall's case began with the testimony of the letter carrier who collected the mail from the Best Western hotel, seeking to establish that the tapes — which the trial court had refused to suppress — had been taken from a closed depository rather than an open container as the officers who seized the tapes had contended. Other Best Western employees were also called to testify as to the mail container. One, Zillah Hahn, also testified that she notified the authorities when Marshall checked in.

11

Marshall called an insurance salesman from Cranford, New Jersey, who testified briefly that Marshall was viewed as an "upstanding professional, insurance agent, businessman and family man," and that the community considered him to be "a law abiding citizen, that he has integrity, that he has truthfulness." Direct Testimony of Gerald Hughes, February 20, 1986, St. Ex. 26T at 144-46. On cross-examination, Hughes admitted that he was not a member of the Toms River community; rather his acquaintance with Marshall was through the insurance business and social occasions. Id. at 146-47 . Other insurance and financial services salesmen testified about the company whose policies Marshall sold primarily, his success at selling, and described in general the insurance sales industry and its practices. Tamburin, the man who taught Marshall a system of "comps" that he practiced at the casinos, was, through confusion as to when he had been placed on the witness list, allowed to testify only as to his personal opinion that Marshall's reputation for being a law-abiding citizen and truthful and honest was "good." Direct Testimony of Henry Tamburin, February 20, 1986, St. Ex. 26T at 250-51.

12

One of Marshall's sisters, Oakleigh DeCarlo, testified, but only as to the events of September 21st, when the police questioned Marshall at his home about the names they had traced in Louisiana. Marshall then took the stand. He gave a brief autobiographical sketch, recounted his version of the affair with Kraushaar and his relationship with McKinnon, and gave his account of the events leading up to Maria's death. Then, a couple who were acquaintances of Marshall testified that he had a good reputation for being a law-abiding citizen and truthful and honest man. Marshall's youngest son, John, testified briefly, recalling that his father called him from the Best Western sounding "depressed and kind of upset." Direct Testimony of John Marshall, February 26, 1986, St. Ex. 29T at 186. His middle son, Chris, testified that his father had called him that afternoon, and sounded "nervous." On cross-examination, Chris testified that his father had sounded as though he were saying good-bye. Cross-Examination of Chris Marshall, February 26, 1986, St. Ex. 29T at 190. Marshall's brother-in-law, Joseph Dougherty, an attorney, testified that he had drafted powers of attorney, which Marshall signed, appointing Dougherty guardian over John and authorizing him to handle Marshall's affairs. They were executed shortly after Maria's death, but before the episode at the Best Western hotel. Dougherty characterized his role in trial preparation as co-counsel in a limited capacity. The tapes to Marshall's sons and secretary were played as part of Marshall's testimony.

13

Dr. Elliot Atkins, a licensed clinical psychologist, testified that he drove with Glenn Zeitz, Marshall's counsel, to see Marshall the night of the Best Western episode, and that, upon his recommendation, Marshall was transferred to the Institute of Pennsylvania Hospital, a psychiatric hospital, where Marshall remained as an in-patient for approximately two weeks. Because Dr. Atkins was not qualified as an expert witness, he was not allowed to testify as to any opinion regarding Marshall's condition at the time.

14

Marshall's oldest son, Robert, testified that he, his mother, and his father had had lunch at the country club the day of his mother's murder. This information contradicted McKinnon's testimony; McKinnon had testified that he and Marshall were on the Garden State Parkway looking for an appropriate site to stage the murder at the time in question. Robert also discussed the events on September 21, when the police questioned Marshall at their house; he had let them in and sat with his father during the questioning. He testified that his father had "warned them before hand [sic] ... that he was instructed not to answer them, and it didn't seem to matter to the two men, they just asked them anyway. They seemed to bounce off him." Direct Testimony of Robert Marshall, February 27, 1986, St. Ex. 31T at 163-64. When his father called him from the Best Western, "it wasn't the same dad that I'd been used to talking to. He sounded shaky, like he's been through a lot, that type of thing." Id. at 164 . Robert also testified that the family wanted to bury his mother in Florida, and had planned to travel there in December, but his father's arrest had caused them to postpone the arrangements.

15

Marshall's counsel had retained an investigator, Russell Kolins, who testified as to his investigation in Louisiana and his interviews with Billy Wayne McKinnon. Some of the investigators originally called by the State were recalled.

16

McKinnon had testified that he and Thompson had driven to New Jersey, and that he had met with Marshall late in the morning of September 6. Thompson's son, Brian, testified that his father took him to the dentist on September 6, which both Thompson and his wife confirmed. One of the dentist's employees produced a receipt made out to Larry Thompson that day, although she could not positively identify him as the person who had accompanied Brian. A friend of Thompson's, Garland Giddings, testified that he called and talked with Thompson at home on the evening of September 6. The phone call was confirmed both by Thompson's wife, Wanda, and Giddings' wife. Both Brian and Wanda testified that Thompson was with them throughout the weekend in question. Thompson's brother testified that he had seen Thompson and his wife on the morning of September 8. Mike Gentry testified that he had come to Atlantic City with McKinnon in July, had signed the hotel register himself, and during that trip never saw nor met either Rob or Maria Marshall. He also testified that the trip had taken about 28 hours each way.

17

Closing arguments were held on March 3, 1986. On March 4, the jury was instructed, and spent most of the day in deliberations. It resumed its deliberations on March 5, reaching a verdict shortly before noon.

18

Larry Thompson was acquitted, and no one was ever convicted of actually shooting Maria. Marshall, however, was convicted of murder as an accomplice by promising or paying money, and of conspiracy to commit the murder of his wife. After rendering the guilty verdict, the jury was dismissed for lunch. Then both counsel met with the judge to discuss the logistics of the penalty phase. As Marshall was being led from the courtroom, he fainted. According to the dispatch records, an ambulance was summoned at 11:36 a.m. An emergency room physician examined Marshall at 12:30 p.m. He conducted an examination and laboratory tests, and discharged Marshall approximately 50 minutes later. According to the sheriffs who transported Marshall back to the courthouse, the drive took an additional 15-20 minutes. After Marshall's return, he and counsel conferred. The penalty phase convened at 1:45 p.m. that same day.

19

After penalty phase statements by counsel and instructions from the judge, the jury retired to deliberate. One and a half hours later, it sentenced Marshall to death. It unanimously found one statutory aggravating circumstance, that Marshall "procured the commission of the offense by payment or promise of payment of anything of pecuniary value." N.J. Stat. Ann. § 2C:11-3c(4)e. The parties had stipulated as to the existence of one mitigating factor, Marshall's lack of a prior criminal history, 2C:11-3c(5)f, and the jury found unanimously the existence of a second under the statutory "catchall" provision, 2C:11-3c(5)h, on the basis of his "business, charitable, and community activities." State v. Marshall, 123 N.J. 1 , 586 A.2d 85, 114 (1991) ( "Marshall I" ).

20

The proceedings have been subject to extensive judicial review. On direct appeal, the New Jersey Supreme Court undertook a thorough and careful analysis of Marshall's claims. That analysis, and a more detailed recitation of the facts, are reported in Marshall I, 123 N.J. 1 , 586 A.2d 85 (1991). Justice Handler dissented from the Court's opinion, and Justice O'Hern concurred in part and dissented in part. Justice O'Hern opined that constitutional trial errors sufficiently undermined confidence in the sentencing and that the imposition of the death penalty could not be supported, even though he felt that the guilty verdict should stand. See id. at 196-99 (O'Hern, J., concurring in part and dissenting in part).

21

Approximately three years after trial, two documents were discussed in an article in the New York Times that had not been provided to defense counsel prior to trial. Upon learning of the documents, Marshall moved the New Jersey Supreme Court for a hearing to determine whether a Brady violation had occurred. The New Jersey Supreme Court ordered a limited remand hearing, discussed in detail in Marshall I, 586 A.2d at 175-78 . It also conducted a proportionality review, reported at 130 N.J. 109 , 613 A.2d 1059 (1992). Marshall's petition for certiorari was denied on February 22, 1993. See 507 U.S. 929 , 113 S.Ct. 1306 , 122 L.Ed.2d 694 (1993). Marshall's conviction became final as of the date of the denial of certiorari. See Kapral v. United States, 166 F.3d 565, 570 (3d Cir.1999).

22

Marshall then petitioned for state post-conviction relief, which was denied. Marshall had requested a "complete evidentiary hearing to support the claims raised in the petition through the presentation of testimonial and documentary evidence" and had "planned to amend the petition based on the evidence adduced at the hearing." State v. Marshall, 148 N.J. 89 , 690 A.2d 1, 26 (1997) ( "Marshall II" ). However, the Court granted a full evidentiary hearing as to only five of Marshall's claims, all of which related to defense counsel's promising, as part of his opening statement, that Marshall would take the stand, and to whether Marshall was competent to participate in the penalty phase, given his collapse following the verdict. For the remainder of the issues, the parties were required to submit documentary evidence only. Marshall's request for reconsideration of the denial was also denied. Marshall v. Hendricks, 103 F.Supp.2d 749, 771 (D.N.J.2000) ( "Marshall III" ). He appealed the denial to the New Jersey Supreme Court in his post-conviction relief appeal. Marshall also appealed the Court's denial of each of his "548 grounds for reversal." Marshall II, 690 A.2d at 26 . The New Jersey Supreme Court affirmed the decision of the post-conviction relief ("PCR") court. Again, Justice Handler dissented, and Justice O'Hern concurred in part and dissented in part from the New Jersey Supreme Court's opinion, reported at Marshall II, 148 N.J. 89 , 690 A.2d 1 (1997).

23

Marshall then filed for habeas relief in federal court. The District of New Jersey denied Marshall's petition for a writ of habeas corpus in Marshall III, 103 F.Supp.2d 749 (D.N.J.2000), and he has appealed that denial to us. In the District Court, Marshall also moved for discovery, including depositions, pursuant to Rule 6 of the federal rules that govern cases arising under 28 U.S.C. § 2254 , in order to develop his Brady and ineffectiveness claims. The District Court denied the requests. Marshall also sought evidentiary hearings regarding his claims under Brady and Strickland, as well as the search, seizure, and admission of the tape to his brother-in-law, a spectator outburst, and judicial bias. Id. at 767 . Marshall alleged that the New Jersey Supreme Court erroneously addressed the merits of his claims, despite the "lack" of a record, and that, as a consequence, the New Jersey Supreme Court's opinion "contains little by way of finding of fact, and much by way of conjecture and unwarranted assumption." Id. at 771 . The District Court found that Marshall did not "`fail' to develop the evidence supporting his claims in state court," but determined that "none of the Townsend factors requiring an evidentiary hearing" were applicable, and "all of petitioner's claims were fully and fairly developed during the state court proceedings;" accordingly, the District Court found that Marshall was not entitled to an evidentiary hearing. Id. at 771-72 . Marshall is also appealing those denials.

II. Jurisdiction and Standard of Review

24

The District Court had jurisdiction pursuant to 28 U.S.C. § 2241 and 28 U.S.C. § 2254 . Our appellate jurisdiction arises under 28 U.S.C. § 1291 and 28 U.S.C. § 2253 . The Certificate of Appealability ("COA") was granted on March 28, 2001 as to all issues raised by Marshall. Where, as here, a district court dismisses a habeas petition based solely on a review of the state court record without holding its own evidentiary hearing, our standard of review of the district court's determination is plenary. Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.2001). Thus, we will review the state courts' decisions applying the same standard as the District Court. Because Marshall's petition for a writ of habeas corpus was filed on October 30, 1997, the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") apply, and our standard of review of the state courts is dictated by those provisions, codified at 28 U.S.C. § 2254 . In pertinent part, those provisions are:

25

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

26

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

27

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28

The Supreme Court elucidated in [Terry] Williams v. Taylor how AEDPA has modified habeas review. 529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). We are to review the state court's determinations on the merits only to ascertain whether the court reached a decision that was "contrary to" or an "unreasonable application" of clearly established Supreme Court law, or whether it made an "unreasonable determination" of the facts. In order for a decision to be contrary to Supreme Court precedent, the court must have reached a "conclusion opposite to that reached by th[e] [Supreme] Court on a question of law or if the state court decides a case differently than th[e] [Supreme] Court has on a set of materially indistinguishable facts." Id. at 413 . An application is unreasonable "if the state court identifies the correct governing legal principle from th[e] [Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." 2 Id. While the United States Supreme Court's focus in [Terry] Williams was elucidating the provisions of § 2254(d)(1), a federal court can also grant habeas relief if a state court unreasonably determined the facts in light of the evidence presented to it. See 28 U.S.C. § 2254 (d)(2).

III. Discussion

29

Before us, Marshall alleges that there were eleven categories of error that so impugned the trial as to meet the stringent standard imposed by AEDPA and that would compel a reversal of the District Court's orders, and instead require the issuance of the writ as well as the grant of discovery and an evidentiary hearing.

I. Penalty Phase Ineffectiveness of Counsel

II. Denial of the Evidentiary Hearing

III. Brady Violations

IV. Guilt Phase Ineffectiveness of Counsel

V. Violation of the Right to Counsel

VI. Prosecutorial Misconduct

30

VII. The Aggravating Factor was the Same as an Element of the Conviction

VIII. Search and Seizure Violations

IX. Denial of Discovery

X. Willful Nondisclosure of Brady Material

XI. Cumulative Error

31

Although we will address each of Marshall's claims, several of the claims overlap in their issues of fact and law, and will be addressed together. 3 A roadmap is appropriate.

32

A. We will address all of Marshall's claims based on the State's alleged failures to disclose (III, IX, and X) together.

33

B. We will combine Marshall's claims regarding his right to counsel and prosecutorial misconduct (V and VI) together, as they are related.

34

C. We will discuss Marshall's claims of Fourth Amendment and related statutory violations together.

35

D. We will address separately the question raised by Marshall as to whether the aggravating factor upon which the jury relied in sentencing Marshall to death impermissibly duplicates elements of the crime of which he was convicted.

36

E. We will examine Marshall's complaints as to the ineffectiveness of his counsel in the guilt phase.

37

F. We will then consider Marshall's contention that the District Court erred in determining that the trial errors, taken together, were insufficient to constitute constitutional error.

38

G. Lastly, we will address Marshall's allegations that his counsel was ineffective at the penalty phase.

A. Government Failures to Disclose

39

Approximately one year prior to trial, Marshall's counsel requested that the prosecutor provide him with all exculpatory materials, including records of all agreements entered into with any witnesses. 4 Of all the State's witnesses at trial, two were undeniably the most critical to establishing the State's case: Billy Wayne McKinnon and Sarann Kraushaar. After the trial, it came to light that the State had entered into an immunity agreement with Sarann Kraushaar — an agreement that first surfaced and came to Marshall's attention three years after trial by a report in a newspaper article. Marshall I, 586 A.2d at 175 . In addition, although the prosecutor had disclosed the written plea agreement entered into with Billy Wayne McKinnon, he had not disclosed numerous additional favors that had been provided to McKinnon and his family, which had also come to light years after the trial. In the opinion issued on appeal from the denial of post-conviction relief, the New Jersey Supreme Court noted that these issues were "addressed and resolved" in the opinion issued on direct appeal. Marshall II, 690 A.2d at 57 . Thus, we will limit our consideration of the Court's analysis to its reasoning on direct appeal.

40

The principles enunciated in Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), protect a defendant's right to due process of law under the Fifth Amendment by requiring that a prosecutor disclose material exculpatory evidence to the defense. Where the prosecutor fails to do so, regardless of whether the omission was intentional or a product of bad faith, the defendant is entitled to a new trial — or, if pertinent, a new penalty phase — provided that the withheld materials were material to guilt or innocence or to punishment. These core teachings of Brady have been consistent throughout the United States Supreme Court's ensuing decisions; the Court has in its later decisions clarified that the "prosecutor's" obligation to disclose extends to "any favorable evidence known to the others acting on the government's behalf in the case, including the police," 5 and that "exculpatory" materials include impeachment evidence. 6 The standard for materiality is the same as that iterated in Strickland v. Washington, 466 U.S. 668, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). As the United States Supreme Court summarized:

41

[The] touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial."

42

Kyles, 514 U.S. at 434 , 115 S.Ct. 1555 , 131 L.Ed.2d 490 ( quoting United States v. Bagley, 473 U.S. 667, 678 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985)).

43

At trial, as noted before, Marshall did not dispute that he hired McKinnon, nor that he wired money to him. What was hotly disputed was the purpose of the contact and payments: Marshall claimed he hired McKinnon to investigate lost casino winnings, and McKinnon testified that Marshall hired him to kill Maria. McKinnon's elaborate narrative provided a detailed account of the progression of the plot from the time of the initial solicitation and meeting to the unfolding of events on the day and night of the murder. 7 In contrast, Sarann Kraushaar did not testify at all about McKinnon's relationship with Marshall or the details of the murder. Instead, she narrated convincingly the story of her relationship with Marshall, testifying that Marshall had told her that he wanted to get rid of his wife and had also confessed that he was burdened by extensive debt but that the insurance on his wife would cover the debt. Thus, Kraushaar provided a tangible "why" to accompany McKinnon's "what" and "how."

44

Because Marshall is claiming that the New Jersey Supreme Court unreasonably applied Brady and its progeny in holding the withheld information immaterial, we must test the undisclosed materials "when viewed collectively" to see if the resultant verdict was "unworthy of confidence." United States v. Pelullo, 105 F.3d 117, 123 (3d Cir.1997) (citing Kyles, 514 U.S. at 437 , 115 S.Ct. 1555 ). 8 Thus, we will examine in more detail what was withheld as to each witness, and ask then whether the New Jersey Supreme Court erred in deciding that the combined nondisclosure was immaterial.

1. Kraushaar

45

When Kraushaar's immunity agreement came to light through a newspaper article, the New Jersey Supreme Court issued an order remanding the matter to decide "whether correspondence in respect of a grant of immunity for Sarann Kraushaar was disclosed to the defense; if it was not, was the non-disclosure willful and was the information improperly withheld from the defense." Marshall I, 586 A.2d at 175 . In a footnote, the Court explained that the limitation of the scope was at the request of the defense, and agreed to by the State. Id. at 175 n. 3. The Court acknowledged that the scope of the remand was not consistent with Brady in that, under Brady , the prosecution's motives are immaterial to ascertaining whether a violation occurred. Id. The Court concluded nonetheless that its analysis was consonant with the dictates of Brady in that it "reach[ed] and determine[d] the ultimate issue under Brady — whether the withheld evidence is material either to guilt or to punishment." Id. 9 Because we find that the New Jersey Supreme Court reasonably concluded that the immunity agreement was non-material, we will not disturb the Court's conclusion.

46

When the remand hearing began, the parties stipulated that the documents in question had not been disclosed prior to or during trial. Id. at 175 . During the hearing, the State conceded that at least some of the documents should not have been withheld. Id. During the remand hearing, the Court limited discovery to "documents closely related to the scope of th[e] Court's remand order." Id. at 179 . Before us, Marshall claims both that he should have been entitled to broader discovery and an evidentiary hearing and that the New Jersey Supreme Court improperly assessed the materiality of the information under Brady and its progeny. We are persuaded that the Court did not err in limiting discovery because Marshall himself was responsible for the limited scope of the remand. We also find no reason to disturb the discretion of the District Court in its determination that no further evidentiary development was necessary. 10 Further, we conclude that the non-disclosure of the grant of immunity to Kraushaar was not material.

47

Kraushaar was first interviewed on September 7, 1984, the day after Maria Marshall was killed. Marshall I, 586 A.2d at 101 . She was stopped while driving and escorted to the prosecutor's office. Id. Her attorney was present at the interview. Id. In that interview, she told prosecutors that she and Marshall had had an affair since June 1983, that Maria had suspected that they were having an affair, and that Kraushaar and Marshall had made plans to leave their spouses. Id. They shared a post office box, and he had given her silver ingots that she kept in a safe deposit box. Id. Additionally, she stated that Marshall had told her that the insurance on Maria would cover his debts, and that he had at one point said of Maria that he "wished she wasn't around." Id. He had asked Kraushaar if she knew of "anyone who could take care of it," and she had replied with the name of a person who had been in trouble with the law, but that she "never wanted to be involved with him if he could do anything like that to his wife." Id.

48

Marshall and Kraushaar continued to see each other until September 25, when she ended the relationship. Two days later, Kraushaar again met with investigators, on her initiative, and, at her counsel's insistence, the prosecutor's office drew up a letter agreeing "neither to charge nor to prosecute Kraushaar in connection with the death of Maria Marshall, in return for her `truthful cooperation.'" Id. at 109 . Marshall alleges that in this second interview, both the content and the tone of Kraushaar's statements were "progressively more damaging." App. Br. at 72. He lists specifically three differences between the testimony at the first interview and the second, after the grant of immunity: "Kraushaar told the authorities that the debt had doubled to $200,000 and that she assumed it was a gambling debt." Id. at 73 , 586 A.2d 85 . Instead of reporting Marshall's having said he wished Maria wasn't around, she described his statement as "I swear if I thought there was a way of getting rid of her I would," and added that she did not doubt Marshall was referring to murdering his wife. Id. As to the first comment, we note parenthetically that on the same evening Kraushaar provided her statement, Marshall checked into the Best Western and made preparations to commit suicide. On one of the tapes he recorded, he acknowledged that his debt had "accelerated to almost two hundred thousand dollars." Marshall I, 586 A.2d at 103 . We question whether her reporting of the same amount of debt as Marshall himself reported on the same date was attributable at all to the existence of the immunity agreement or was mere repetition of what Marshall may have said to her.

49

At trial, Kraushaar recounted these events in arguably stronger terms, accentuating Marshall's "dire financial straits" and "constant" discussion of the debt, and replacing the idea of "getting rid" of Maria Marshall with "doing away with her." App. Br. at 73. Kraushaar also repeated that Marshall had indicated that the insurance on Maria would take care of his debts. Id. at 73-74 . Marshall also raises several other areas as to which Kraushaar testified at trial, but had not included as part of her initial statement. Id. at 74-76 .

50

Marshall contends that he was prejudiced at both the guilt and sentencing phases by the fact that the jury could not weigh Kraushaar's testimony against the immunity agreement. Id. at 77 . He finds fault with the New Jersey Supreme Court's determination that the agreement was not material — a conclusion with which the District Court agreed ( see Marshall III, 103 F.Supp.2d at 775 ) — arguing that it underestimated Kraushaar's importance to the prosecution, 11 and overgeneralized in its conclusion that her testimony at the two interviews and trial was consistent. App. Br. at 77, 79-80. We disagree with his characterizations of the New Jersey Supreme Court's reasoning.

51

The New Jersey Supreme Court did state that "none of [Kraushaar's] testimony directly implicated defendant in a homicide conspiracy" and that "[i]t is evident that the most damaging evidence against defendant came from McKinnon's testimony and defendant's tape to his brother-in-law, in which he admitted paying money to McKinnon the night of the murder." Marshall I, 586 A.2d at 194 . We think those statements were not a sign of denigration of Kraushaar's significance to the case, but were, instead, recognition that she was not an informant or co-conspirator actually implicated in the crime, who received immunity.

52

Under these facts, we cannot attribute the point that Marshall stresses — that the tenor of the remarks and their detail was heightened as the time toward trial progressed — to the existence of the immunity agreement. Where, as here, a former lover has had to confront publicly her previously private relationship, and has broken off the relationship in the face of mounting doubts as to her lover's veracity, we see nothing remarkable in the tone and details post-separation differing from those offered while the relationship was still extant. Further, the differences in tone and detail were available to the defense to use for impeachment purposes at trial. The existence of an immunity agreement would not alter the challenge counsel could raise as to the apparent or actual inconsistencies.

53

Further, the purpose of an immunity agreement is to put a person in the same position she would have been had she invoked her Fifth Amendment privilege against self-incrimination instead of testifying. Kastigar v. United States, 406 U.S. 441, 459 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972) ("[A]n analysis of prior decisions and the purpose of the Fifth Amendment privilege indicates that use and derivative-use immunity is coextensive with the privilege."). Thus, the impeachment value of the immunity agreement is inextricably tied to the self-incriminating evidence that was provided after the immunity agreement was executed. Put another way, its value lies principally in absolving the recipient of her admitted involvement. Here, the New Jersey Supreme Court noted that following the execution of the immunity agreement, Kraushaar provided no "significant, incriminating evidence that she had not already given before the prosecutor's agreement not to prosecute." Marshall I, 586 A.2d at 194 . Instead, as the Court also found, her testimony prior to and following the immunity agreement was consistent. Id. Hence, we conclude that the nondisclosure of Kraushaar's immunity agreement was immaterial.

54

As the State points out, there is no evidence in the record that on September 7, 1984, just hours after Maria Marshall's death, when Kraushaar was stopped in her car and taken in for questioning, she was contemplating an immunity agreement and tailored her first statement — or her retention of counsel — accordingly. Appee. Br. at 58-59. No additional self-incriminating details emerged in the second statement. Indeed, as acknowledged by Marshall, McKinnon had the "essential knowledge of the details of the alleged deal" but Kraushaar "gave the State's case ... credibility." App. Br. at 66. That credibility would be undermined only if the existence of the immunity agreement "if disclosed and used effectively, [] may make the difference between conviction and acquittal." United States v. Bagley, 473 U.S. 667, 676 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985).

55

Here, where we can posit no self-incriminating evidence that could have been accorded additional credibility by the jury in light of the undisclosed immunity agreement, the concerns that normally animate the Bagley analysis are absent. Thus, it was reasonable for the New Jersey Supreme Court to conclude that the nondisclosure was not material. 12 Further, it did not contradict or otherwise undermine any of her testimony. In fact, it is difficult to articulate or imagine exactly how a jury could use its existence as a reasonable basis to undermine the detailed version of events to which Kraushaar testified.

2. McKinnon

56

McKinnon received a very favorable plea agreement in return for his testimony, an agreement which the defense attacked vigorously at trial. After the trial, two additional — but related — pieces of information came to light. First, during the remand hearing to investigate the failure to produce the Kraushaar immunity agreement, documents were produced that indicated that McKinnon's family had been relocated and was being given monetary support by the government prior to trial. Second, in a television appearance, one of the investigators made a comment about the witness protection program that suggested McKinnon's participation was the result of his cooperation with federal authorities in other criminal investigations.

57

On December 15, 1984, McKinnon entered into a plea agreement with the State after reviewing the evidence that the State had compiled implicating him in the murder. During cross-examination, Marshall's counsel meticulously reviewed the extent to which the prosecutors had shown McKinnon evidence of the crime gathered prior to his formal statement, and, in some cases, prior to the plea agreement. See generally Cross-Examination of Billy Wayne McKinnon, February 4, 1986, St. Ex. 14T at 6-18, 20-25, 34-56, 211-13.

58

During McKinnon's direct testimony, the text of the plea agreement was read into the record.

59

Whereas Billy Wayne McKinnon is presently indicted by the Ocean County Grand Jury along with Robert Cumber and James Davis in indictment number I-62-01084 and is charged in count one of said indictment with conspiracy to murder Maria Marshall, the co-conspirators being Robert Cumber, James Davis and others both known and unknown; and whereas Billy Wayne McKinnon is charged in count three of said indictment as a principal in the murder of Maria Marshall, but not as the actual perpetrator of the murder, that is not to shoot her [sic]; and whereas the State of New Jersey would like to obtain the truthful cooperation of Billy Wayne McKinnon in identifying all others involved in the murder of Maria Marshall and the truthful testimony of Billy Wayne McKinnon in the prosecution of all of said individuals and whereas Billy Wayne McKinnon has indicated through his attorney, Maurice Loridans, that he is willing to truthfully cooperate with the State of New Jersey in exchange for certain concessions and assistance by the State of New Jersey. [sic] Now, therefore, it is hereby agreed by and between and among Billy Wayne McKinnon, Maurice Loridans and the State of New Jersey as follows:

60

(1) Billy Wayne McKinnon will give a complete and truthful statement to the State of New Jersey identifying everyone involved in the conspiracy to murder and the murder of Maria Marshall and the role which they played thereon;

61

(2) Billy Wayne McKinnon will sign a waiver of immunity and testify truthfully before the Ocean County Grand Jury with regard to all of the facts of which he has knowledge concerning the crime;

62

(3) if the Grand Jury returns an indictment, Billy Wayne McKinnon will appear as a witness and testify truthfully in the prosecution of said indictment;

63

(4) Billy Wayne McKinnon will be permitted to plead guilty to the crime of conspiracy to murder Maria Marshall. And it is understood and agreed by and between the parties that this crime does not fall within the purview of the so-called Graves Act;

64

(5) the State of New Jersey will recommend that if the Court decides to impose a custodial sentence on Billy Wayne McKinnon, that said sentence not exceed five years and that there be no period of parole ineligibility;

65

(6) the Ocean County Prosecutor's office will recommend to the State Department of Corrections that any custodial sentence be served in the Clinton Institution for security purposes;

66

(7) the Ocean County Prosecutor's office will recommend in writing to the New Jersey State Parole Board that Billy Wayne McKinnon be granted parole at the earliest eligible date;

67

(8) the State of New Jersey will immediately re-locate the family of Billy Wayne McKinnon for their protection to a safe location; and the Ocean County Prosecutor's office and the New Jersey State Police will recommend and support their entry into the witness protection program.

68

Witnesses whereof the parties to this agreement have affixed their signatures hereon this 15th day of December, 1984.

69

Direct Testimony of Billy Wayne McKinnon, February 3, 1986, St. Ex. 13T at 100-03.

70

The agreement was signed by McKinnon, his attorneys, and the Ocean County Prosecutor. Id. at 103. During his cross-examination, Marshall's counsel asked McKinnon about the witness protection program. Id. at 203-05. McKinnon admitted to having general knowledge about the program, but denied having specific knowledge of it, or whether or how his participation would take place. Id. Thompson's counsel questioned McKinnon extensively about the plea agreement, eliciting from McKinnon that he had a "very substantial motive to lie." Cross-Examination of Billy Wayne McKinnon, February 4, 2002, St. Ex. 14T at 135-36, 180. He also brought out that McKinnon understood the potential sentence for the crimes for which he was indicted — murder and conspiracy to commit murder — and how minimal his sentence was. Id. at 138-40. In the course of the cross-examination, McKinnon admitted that if he had stated that he was the shooter, he would not have gotten the "wonderful deal" that he did, and that he had to say that he did not shoot Maria Marshall in order to reap the benefits of the acknowledged plea agreement. Id. at 144. McKinnon also acknowledged that in his testimony he had admitted to lying about "some things," including his identity and the purpose of the money he received from Marshall. Id. at 145, 184-86, 192-95. McKinnon further conceded that under the terms of the plea agreement he would be allowed, following the trial, to plead to the second degree crime, and would not be charged with the murder, and that by securing the statement that the crime committed did not fall within the purview of the Graves Act, McKinnon avoided the three year mandatory imprisonment that was supposed to result when a gun was used in the commission of certain crimes, including murder. Id. at 164-66. He also admitted that the judge might not send him to jail at all, but that in any event the maximum sentence would be five years, with no period of parole ineligibility. Id. at 169-70.

71

Thompson's counsel also brought out the fact that the Clinton Institution is primarily a women's prison, and that McKinnon would be assigned there to protect him from abuse by other inmates. Id. at 171-72. He also elicited McKinnon's acknowledgement that, although not stated in the plea agreement, McKinnon was told that he would get credit for the time already served in jail, and, since that time was more than the standard period of parole ineligibility, McKinnon would be immediately eligible for parole, and the prosecutor's office would encourage the parole board to parole him immediately. Id. at 175-77. McKinnon also admitted that his family had been relocated pursuant to the terms of the agreement. Id. at 178. He denied having seen a recommendation supporting his entry into the witness protection program, but was questioned about some aspects of the program:

72

Q. Now, as part of relocating your family under the Witness Protection Act has their moving expenses been paid by the federal government?

73

A. No, sir.

74

Q. Have any moneys been paid to support your family by the federal government under the Witness Protection Act?

75

A. No, sir.

76

Q. Has any money been paid to you, even one dollar, in way of services, rent, electric, heat, telephone, or anything else, under the Witness Protection Act?

77

A. No.

78

Q. Do you know—strike that. Were you told by your attorneys that such benefits were available to persons under the Witness Protection Act?

79

A. No.

80

Q. Did you have an understanding on your own, regardless of what your attorneys told you, that you might be eligible for certain payments in money or in kind —

81

A. I didn't know —

82

Q. — by reason of your admission to the Witness Protection Act?

83

A. I didn't know exactly what that entailed.

84

Q. Didn't you inquire, since you were getting that as one of your concessions or assistance from the State?

85

A. I haven't been able to meet with the marshall and he has not contacted me in reference to that.

86

Id. at 179-80.

87

Counsel did not inquire as to whether the State had borne expenses on McKinnon's behalf aside from the aegis of the federal witness protection program. During the remand hearing, the State produced a correspondence file that contained two letters from the Office of the County Prosecutor of Ocean County New Jersey to the Criminal Investigation Division of the New Jersey State Police. The first was dated February 4, 1985, a year to the day prior to McKinnon's testimony on cross-examination. It detailed expenses of the investigation, and included the following paragraphs:

88

In addition, we have been required to incur substantial expenses in transporting the family of Billy Wayne McKinnen [sic] to the State of New Jersey and providing security for them until such time as McKinnen [sic] is accepted in the federal witness protection program. Expenses incurred for transportation of the family to New Jersey, obtaining temporary housing, doctors bills, food, heat and utilities thus far are in the amount of $6921.10.

89

We are requesting that the New Jersey State Police and/or the Garden State Parkway Authority reimburse this office for one-half of these expenses or $3,460.55.

90

In addition to the already incurred expenses, we must anticipate further expenses prior to trial of this matter. These expenses consist of maintenance and housing for the family of the defendant/witness, Billy Wayne McKinnen [sic]. The expenses appear to be as follows: monthly rent $500; heat $75; telephone $50; food, clothing and miscellaneous $750; or a total of $1300 per month expenses. We are requesting a commitment from the New Jersey State Police and /or the Garden State Parkway Authority that they will pay 50% of these anticipated costs for the next several months.

91

PCR Appeal, Defendant-Appellant Appendix, Vol. 20, Exhibit 36 at 2594a. The second letter was dated May 1, 1985, and stated in relevant part:

92

The family of Billy Wayne McKinnon (a key state's witness) has been relocated to New Jersey to assure their safety, in view of the violent propensities of other associates of McKinnon and co-defendant, Larry Thompson.

93

We have thus far expended $9,456.45 to maintain this family while awaiting trial of the matter and will be faced with continuing costs approximately $1,000 per month until trial of the matter, which is scheduled for September 1985.

94

Id. at 2596a.

95

a. The Expense Letters

96

Marshall claimed that the expense letters were evidence of additional favors received by McKinnon, and, as such, were Brady material that could have been used to impeach McKinnon's credibility. The New Jersey Supreme Court considered the merits of the claim, despite noting that the letters were outside the scope of the remand hearing. Marshall I, 586 A.2d at 195 . The Court rejected Marshall's argument that the non-disclosure was material, in part because of the extent of the cross-examination on the terms of the plea agreement, and in part because the Court deemed the evidence "merely cumulative." Id. at 195-96. The District Court agreed. See Marshall III, 103 F.Supp.2d at 762 .

97

Under the AEDPA standard, we ask only whether the New Jersey Supreme Court reasonably applied Brady and its progeny in concluding that the non-disclosure was immaterial as a matter of law. We conclude that it did. There is no question that McKinnon was a critical witness to the prosecution, and that the information as to the benefits received by his family was favorable to the defense and could have been used in cross-examination. But there is also no dispute that counsel's cross-examination did disclose some special favors from the government, and did cause McKinnon to admit to lying on several occasions. In his testimony McKinnon portrayed himself as a man who was stringing Marshall along, intending to get from him as much money as possible to murder Maria Marshall, and then simply to walk away with the money. He testified that he had never intended to allow Maria Marshall to be killed, but that Thompson had confronted him, claiming that there was a contract on McKinnon's life because of an "unfinished job." According to McKinnon's testimony, he thought Marshall had taken out the contract; it was on the basis of that conversation that McKinnon "agreed" to let Thompson murder Maria Marshall for him.

98

McKinnon provided many details of the trips to Atlantic City that were independently corroborated by investigators, and that he could not have known had he not met with Marshall. Marshall complains that the information links Marshall to McKinnon, but not Marshall to the crime. We disagree. While Marshall admitted that he had hired McKinnon, he had offered only that he was trying to trace the missing winnings that he had given to Maria. Between McKinnon's testimony and the corroborating evidence, the State was able to demonstrate that McKinnon had received much more than the value of the purportedly missing funds. Further, McKinnon's testimony and the corroborating evidence established that McKinnon was in Atlantic City the day of Maria's death, and that he received money from Marshall on that day. Both of those pieces of information were critical — albeit circumstantial — elements in challenging Marshall's benign explanation for his association with McKinnon, and they provided a basis for inferring that Marshall's motive for hiring McKinnon, paying him large sums of money, and meeting with him and paying him on the day of Maria's death was, as McKinnon testified, to arrange for Maria's murder.

99

Marshall also claims that, since the evidence was not merely repetitive of what was before the jury, the New Jersey Supreme Court erred in concluding that it was cumulative. He cites to Perdomo, where we stated:

100

The district court did not apply the correct standard for measuring materiality at the sentencing hearing. The court reasoned that the undisclosed information was not material because the jury had ample opportunity to evaluate [the witness's] credibility due to other damaging testimony that had been elicited concerning the government payments to [the witness] and his prior drug usage. Whether or not the jury has had an opportunity to consider other impeachment evidence is not the correct standard for determining materiality of undisclosed information.

101

United States v. Perdomo, 929 F.2d 967, 972 (3d Cir.1991). In Perdomo , the impeachment evidence of former convictions and a psychiatric examination was so compelling that we concluded, "Seldom have appellate judges seen such persuasive evidence that the availability of information on a prior conviction could have made a difference." Id. Here the evidence tends to indicate a motivation for McKinnon to provide testimony, and to provide testimony that the State finds satisfactory. But those precise motivations were brought out graphically at trial; it was clear after cross-examination that McKinnon's change of plea would not occur until after he had testified and that at his change of plea the State would withdraw the murder charge. Further, the jury was made aware that, pursuant to his plea agreement, McKinnon's sentence would be no more than five years for this terrible murder; in practical terms this meant that he either would serve no more jail time, or would serve what little post-plea time he did in a women's institution, a place that counsel implied offered McKinnon very favorable residential conditions. From the face of the plea agreement and the cross-examination, it was also clear that the prosecutor would assist McKinnon's entry into the federal witness protection program. It could not help but be evident to the jury that McKinnon's testifying to the satisfaction of the State was critical in determining McKinnon's future. Indeed, the jury apparently found McKinnon's testimony about Thompson incredible, since it acquitted him. Unlike in Perdomo , the ongoing support to McKinnon's family would not provide an alternative or stronger incentive for his testimony. Marshall also cites to two cases that he argues demonstrate that the evidence could not have been cumulative because it was not repetitive. We find those cases to be inapposite, because they were discussing the admissibility of evidence, not its materiality. See Elwood v. Pina, 815 F.2d 173, 178 (1st Cir.1987); United States v. Ives, 609 F.2d 930, 933 (9th Cir.1979).

b. The Witness Protection Program

102

Marshall further complains that it was unreasonable for the New Jersey Supreme Court, on appeal from the denial of post-conviction relief, to conclude that the prosecutor's failure to disclose information about McKinnon's possible cooperation with federal law enforcement agents was immaterial. App. Br. at 90. We note first that the New Jersey Supreme Court was skeptical about whether such information existed, and particularly whether it existed within the control of the prosecutorial team, reasoning only that if the information existed, it would have been immaterial. Marshall II, 690 A.2d at 38 . The District Court characterized Marshall's request to develop the limited information he has about the connection further as a "fishing expedition." Marshall III, 103 F.Supp.2d at 762 .

103

In order to agree with Marshall, we would need to hold the State accountable for knowledge possibly possessed by the F.B.I. or other federal agents. There is no indication in the record that the federal agents who might have possessed such information were working together with state agents investigating Maria Marshall's death. Thus, such a holding would require a further expansion of Brady , possibly beyond what we would consider "clearly established law" even now, and certainly beyond "clearly established law" as of the time Marshall's conviction became final. 13 Thus, we decline to hold that there was clearly established law requiring Brady disclosures in this situation; consequently, we do not reach the question whether the New Jersey Supreme Court's determinations were reasonable.

3. Combined Impact

104

While the New Jersey Supreme Court evaluated the Brady claims individually on direct appeal, on appeal from the denial of post-conviction relief, the Court recognized that it was required to "consider the State's non-disclosures collectively, not item-by-item." Marshall II, 690 A.2d at 33 . Further, the "best objective test derives from an assessment of the merits of the individual claims, combined with a part-subjective, part-objective effort to extrapolate those individualized assessments into an aggregate one." Id. at 90 (quoted in Appee. Br. at 65). The District Court also employed a collective approach. Marshall III, 103 F.Supp.2d at 775 . We agree with the New Jersey Supreme Court that a cumulative analysis begins at an analysis of the individual claims, and then requires a court to view the violations in the aggregate. We further agree that under these facts, our confidence in the verdict is not shaken when we weigh the impact of the jury's properly considering both the existence of the Kraushaar immunity agreement and the payments to McKinnon's family. In so concluding, however, we do not in any way condone the actions of the prosecutor in failing to provide the information in a timely manner.

B. Prosecutorial Misconduct

105

Unlike cases in which a defendant alleges prosecutorial misconduct with regard to an opening or closing statement, or the questioning of one witness, on direct appeal Marshall alleged "116 instances of prosecutorial misconduct in the course of his trial," Marshall I, 586 A.2d at 164 , instances that Justice Handler, in his dissent, characterized as "clearly deliberate" and "incurable." Id. at 212 (Handler, J., dissenting). These incidents span the course of both the guilt and sentencing phases of Marshall's trial. Marshall has asked us to weigh both the number of instances of misconduct and the alleged deliberate nature of the misconduct, and to grant him a new trial on the basis of the prosecutor's actions.

106

It is beyond peradventure that all of the salient caselaw argued to us by Marshall existed in February 1993 when Marshall's conviction became final. Berger v. United States was decided in 1935, Griffin v. California in 1965, Donnelly v. DeChristoforo in 1974, Doyle v. Ohio in 1976, Smith v. Phillips in 1982, United States v. Young in 1985 and Darden v. Wainwright in 1986.

107

In our analysis, we recognize that the United States Supreme Court has drawn a distinction between misconduct that, because of its capacity to divert the trier of fact from the task before it, so undermines the reliability of a verdict that it constitutes a due process violation (such as the conduct at issue in Berger v. United States ), and misconduct that implicates a specific right guaranteed by the constitution (such as that addressed by the Court in Doyle v. Ohio ). Marshall alleges both types. We will accordingly discuss the alleged prosecutorial misconduct from three vantage points. First, we shall ask whether the alleged improprieties, other than those that implicated a specific constitutional right, gave rise to a due process violation (1., below). Second, we shall examine the alleged violations of specific constitutional rights to determine whether habeas relief is warranted (2., below). Third, we will determine whether all of the foregoing, taken together, amount to cumulative error such that Marshall is entitled to habeas relief (3., below).

108

We note that, under AEDPA, our review is restricted. We are assessing not whether we independently would determine the misconduct to have been inappropriate, but whether the New Jersey Supreme Court's review applied the appropriate United States Supreme Court precedent reasonably. In order to make that assessment, we must look at the conclusions and the analysis of the New Jersey Supreme Court, and compare them to established United States Supreme Court jurisprudence.

109

1. Misconduct Alleged to Violate Due Process but not Implicating a Specific Constitutional Right

110

a. The Improprieties

111

In assessing Marshall's charges that the prosecutor's actions rendered his trial unfair, we are guided by the United Supreme Court's instructions in Smith v. Phillips, 455 U.S. 209 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (1982), where the Court reiterated the perspective initially set forth in Cupp v. Naughten, 414 U.S. 141, 146 , 94 S.Ct. 396 , 38 L.Ed.2d 368 (1973):

112

Before a federal court may overturn a conviction resulting from a state trial... it must be established not merely that the [State's action] is undesirable, erroneous, or even "universally condemned," but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.

113

Smith, 455 U. S. at 221, 102 S.Ct. 940 . In Smith , the Court employed the principles set forth in Brady v. Maryland and United States v. Agurs, both of which involved a prosecutor's non-production of evidence, to elucidate the standard by which prosecutorial misconduct must be measured, stressing that "the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith, 455 U.S. at 219 , 102 S.Ct. 940 . The test is whether the conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 , 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974). In examining what was done and its impact, we are to look at the entire proceeding. See id.

114

On direct appeal, the New Jersey Supreme Court evaluated the 116 alleged instances of misconduct, but found only nine to be of arguable merit, of which seven have been specifically raised before us on appeal. 14 We agree with the New Jersey Supreme Court's assessment. The seven are:

115

i. Defense counsel questioned Marshall's sister, Oakleigh DeCarlo, about the investigators' visit to Marshall's home on September 21, 1984. On cross-examination, the prosecutor repeatedly discussed with her the fact that Marshall had not answered the investigators because he had retained counsel. At one point, he went so far as to say, "Especially when your wife has been killed and you haven't — you didn't have anything to do with it, you still run out and hire an attorney?" Marshall I, 586 A.2d at 148 . The New Jersey Supreme Court characterized the prosecutor's questioning as "the offensive and impermissible suggestion that the retention of counsel is incompatible with innocence." Id. The trial court sustained counsel's objection to the question, but Marshall contends that the questioning required curative action by the court. 15 This is argued in Marshall's brief at 123-127, 128, 131.

116

ii. The prosecutor began his cross-examination of Marshall by asking him whether he had heard the reference in his opening statement to Marshall's owing over $300,000. When Marshall replied in the affirmative, the prosecutor stated that he was "going to put some figures up here and, if you disagree, I'd appreciate it if you let me know so we can bring in the people from the banks who gave me the figures to testify." Id. at 165. The New Jersey Supreme Court found the remark improper, but harmless. "The prosecutor's statement that he would `bring in people from the banks to testify' was clearly improper. It implied that the prosecutor's characterization of defendant's finances was accurate, and would be supported by other unidentified witnesses if contested by defendant." Id. at 165. This is raised in Marshall's brief at 131-32.

117

iii. Again in summation, the prosecutor vouched for McKinnon's testimony. As the New Jersey Supreme Court said, "The most critical issue at trial was the credibility of Billy Wayne McKinnon." Id. at 166. The prosecutor said:

118

Ladies and gentlemen of the jury, in order to save himself, Billy Wayne McKinnon had to tell the truth. That was the deal. Because when he gave that statement, we checked it out up and down and sideways, and if we caught him in one lie — and you heard the testimony. He waived immunity. Everything he said could be held against him. If we caught him in one lie, then he would be facing a murder charge.

119

Id. at 167. In reviewing this statement, the New Jersey Supreme Court noted: "Although the prosecutor was free to argue that McKinnon's testimony was credible, it was improper for the prosecutor personally to vouch for his credibility or to suggest that the truthfulness of his testimony had been `checked out up and down and sideways,' obviously referring to matters outside the record." Id. at 167. This is mentioned in Marshall's brief at 131.

120

iv. Also during his summation, the prosecutor informed the jury,

121

The bulk of that insurance was taken out in twelve-month period before Maria Marshall's death. I don't care if it's accidental; I don't care if it pertains to getting killed in a car on a Thursday only. That insurance was in effect, and he has the audacity to get up here and talk about contestability clauses, to give you the impression that he's not going to get any of that money. He's already received six hundred thousand dollars, and I can guarantee you, ladies and gentlemen, if you acquit this defendant, the checks will be in the mail within a week. Make no mistake about it.

122

Id. Counsel objected, and after the prosecutor finished, moved for a mistrial in part on the basis of the prosecutor's representation. The court denied the motion, but did issue a curative instruction. "[T]he prosecutor's assertions that defendant had `already received six hundred thousand dollars' and that `I can guarantee you if you acquit this defendant, the checks will be in the mail within a week,' were obviously mischaracterizations of the testimony, and, as such, highly improper." Id. at 168. This is discussed in Marshall's brief at 132.

123

v. The New Jersey Supreme Court characterized as "among the most inflammatory portions of the prosecutor's summation" the prosecutor's reference to the testimony of Marshall's sons:

124

And he has the audacity to bring in his three boys to testify. That's obscene. And I'm not being critical of them, because I would probably do the same thing. To put his boys on that witness stand is obscene, and for that there's a place in hell for him. He will use anybody, he will say anything and he will do anything, including his own family, to get out from under. And that's Robert Oakley Marshall. Make no mistake about it.

125

Id. at 169. The trial court refused to grant a mistrial in response to these comments, but did give a curative instruction, which the New Jersey Supreme Court noted "could have been more forceful, but ... was adequate to ameliorate any significant prejudice to defendant." Id. "The prosecutor's comments [about Marshall's having his sons testify on his behalf] were not merely `forceful and graphic,' they were inflammatory and highly emotional, possessing the capacity to anger and arouse the jury and thereby divert them from their solemn responsibility to render a verdict based on the evidence." Id. This is discussed in Marshall's Brief at 128-29.

126

vi-vii. In reviewing both the guilt and penalty phase, the New Jersey Supreme Court noted that "[w]here ... the victim's character has no bearing on the substantive issue of guilt or the penalty to be imposed, the prosecution may not comment on the evidence in a manner that serves only to highlight the victim's virtues in order to inflame the jury." Id. at 170 ( quoting State v. Williams, 113 N.J. 393 , 550 A.2d 1172, 1203 (1988)). Two of the prosecutor's statements — one in his guilt phase closing, and one in his penalty phase statement — crossed that line.

127

I didn't know Maria Marshall, but I know and you know that she loved her boys. I know and you know that she loved her husband. For eight months that lady knew that his afternoons were spent in the arms of another woman. She continued to cook for him, she continued to clean his clothes, she continued to keep the house clean, she continued to make love with him, because she loved him. She wanted to start all over. She wanted to give him a second chance. She had a right to live her life in full, to watch her boys continue to grow, to watch them graduate from school, to get married and have families of their own, but he tossed it all away because of his desperation and his greed. And that is Robert Oakley Marshall.

128

Id. at 169-70, 586 A.2d 85 .

129

I really cannot think of anything more heinous in our society than to, you know, hire somebody to kill somebody else, let alone a family member; in this case, your wife.

130

....

131

Maria Marshall had no prior criminal history. Maria Marshall was civic-minded, and this defendant did not give her the option of thirty years.

132

Id. at 171, 586 A.2d 85 .

133

The New Jersey Supreme Court found the guilt phase argument within the category of inappropriate argument but "much more circumscribed and far less emotional" than those it had found improperly diversionary. Id. It thus concluded that the remarks were harmless. As to the penalty phase comments, the Court concluded:

134

Although the prosecutor was free to depreciate the significance of defendant's mitigating evidence, the argument that the victim could claim the same qualities relied on by the defendant is diversionary, focusing attention away from the mitigating evidence and emphasizing the lack of justification for the homicide. We find the argument inappropriate, but have no doubt that this isolated statement in the prosecutor's brief closing argument did not have the capacity to affect the jury's deliberative process.

135

Id. This is discussed in Marshall's brief at 133-34.

136

In reviewing the claims of prosecutorial misconduct on appeal for post-conviction relief, the New Jersey Supreme Court noted that Marshall had characterized two additional comments in the prosecutor's opening statement as misconduct. The Court concluded that, after review, all of the claims were:

137

entirely without merit and do not warrant extended discussion. Indeed, many of defendant's claims are mere restatements of claims rejected by this Court on defendant's direct appeal. In respect of most of the claims in this category, defendant has failed to demonstrate that the prosecutorial conduct in question was improper. In the remaining instances, defendant has not established that the State's misconduct was "so egregious that it deprived defendant of a fair trial."

138

Marshall II, 690 A.2d at 73 (internal citations omitted). The District Court found that — with regard to each of the claims of prosecutorial misconduct Marshall raised before it — the conclusions of the New Jersey Supreme Court were neither contrary to nor an unreasonable application of United States Supreme Court precedent. See Marshall III, 103 F.Supp.2d at 779-82 .

139

b. Did the Misconduct Amount to a Due Process Violation?

140

Marshall urges that the New Jersey Supreme Court misapplied the United States Supreme Court's precedent in Berger v. United States, 295 U.S. 78 , 55 S.Ct. 629 , 79 L.Ed. 1314 (1935), by determining either that "no error" occurred, or that any error that did occur was harmless. App. Br. at 134. In Berger , the United States Supreme Court condemned the prosecutor's argument as "undignified and intemperate, containing improper insinuations and assertions calculated to mislead the jury." Id. at 85 , 55 S.Ct. 629 . The Court then enunciated the often-cited standard by which prosecutors must abide:

141

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

142

Id. at 88 , 55 S.Ct. 629 . But improper conduct is not, in itself, sufficient to constitute constitutional error, even when — as here — that conduct is alleged to be both deliberate and pervasive. Improper conduct only becomes constitutional error when the impact of the misconduct is to distract the trier of fact and thus raise doubts as to the fairness of the trial. 16

143

Under these facts, the two dissenting justices on the New Jersey Supreme Court would have held that the prosecutor's actions were so deliberate and so pervasive, and that at least some of the actions were either not cured, inadequately cured, or incurable by subsequent instructions from the court, that the fairness of the proceeding was threatened. For Justice Handler, the trial itself was rendered suspect, while for Justice O'Hern, the misconduct at the trial threatened the integrity of the penalty proceeding. Marshall I, 586 A.2d at 212 (Handler, J., dissenting); id. at 198-99 (O'Hern, J., concurring in part and dissenting in part). 17 Marshall relies heavily on the reasoning of these two justices in his argument that we, likewise, should deem the misconduct to have rendered his trial unfair. App. Br. at 134. We cannot condone the prosecutor's conduct here, which amounted to repeated, deliberate misconduct. But we believe that the majority of the New Jersey Supreme Court was reasonable in analyzing the impact that the conduct that amounted to constitutional error might have had upon the proceedings, thus looking at the "totality of the trial" in assessing whether his trial was rendered unfair. Indeed, we would be concerned if a court placed undue emphasis on the deliberateness of a prosecutor's actions, because the focus on the prosecutor might distract a reviewing court from its rightful focus upon the fairness of the trial itself. The critical question in assessing constitutional error is to what extent a defendant's rights were violated, not the culpability of the prosecutor. Smith, 455 U.S. at 219 , 102 S.Ct. 940 . Such an inquiry requires a focus upon the reliability of the verdict and whether the trial as a whole was rendered unfair. A prosecutor's deliberate acts might have no effect at all upon the trier of fact, while acts that might be inadvertent could serve to distract the jury from its proper task and thus render a defendant's trial fundamentally unfair.

144

A similar concern informs our reluctance to be swayed by the "extensive" nature of the misconduct. In Berger , the case that Marshall relies on, the United States Supreme Court addressed the interaction of the evidence of guilt and the impact on the jury of persistent misconduct:

145

In these circumstances prejudice to the cause of the accused is so highly probable that we are not justified in assuming its non-existence. If the case against Berger had been strong, or, as some courts have said, the evidence of his guilt "overwhelming," a different conclusion might be reached. Moreover, we have not here a case where the misconduct of the prosecuting attorney was slight or confined to a single instance, but one where such misconduct was pronounced and persistent, with a probable cumulative effect upon the jury which cannot be disregarded as inconsequential.

146

Berger, 295 U.S. at 89 , 55 S.Ct. 629 (internal citations omitted). Here, the New Jersey Supreme Court's opinions are replete with references to the overwhelming evidence of Marshall's guilt. In Moore v. Morton, 255 F.3d 95, 119 (3d Cir.2001), we read United States Supreme Court precedent as establishing the principle that the stronger the evidence against the defendant, the more likely that improper arguments or conduct have not rendered the trial unfair, whereas prosecutorial misconduct is more likely to violate due process when evidence is weaker.

147

When evaluating Marshall's claims, the New Jersey Supreme Court cited not to federal law, but to New Jersey precedent, State v. Ramseur, 106 N.J. 123 , 524 A.2d 188, 290 (1987), for its standard of constitutional error. Ramseur itself cites to earlier New Jersey law, rather than the applicable United States Supreme Court jurisprudence. Rather than dwell on the New Jersey Supreme Court's error in applying its own precedent, however, we believe AEDPA review requires a more nuanced approach in this situation. Because we are examining to see whether the New Jersey Supreme Court's analysis "resulted in a decision" that was either "contrary to, or involved an unreasonable application of, clearly established Federal law," we believe that any error that we find in the approach or specific analysis of the Court must be tempered by our overall assessment as to whether the result it reached is in fact consistent with Supreme Court precedent. 18 See 28 U.S.C. § 2254 (d).

148

The New Jersey Supreme Court did inquire whether the misconduct was such that it deprived the defendant of a fair trial, which is consonant with the dictates of the United States Supreme Court enunciated above. It also consistently examined the statements to determine whether they challenged the core of Marshall's defense, and repeatedly evaluated the comments within the larger context of the trial as a whole, asking whether prior testimony, curative instructions, or the collateral nature of the comments served to mitigate their impropriety, particularly in the face of what it viewed as overwhelming evidence produced by the State. This also is in keeping with the teachings of the Supreme Court — and our precedent — recited above.

149

The majority of the New Jersey Supreme Court found that, for the most part, the misconduct either impacted a collateral issue in the case, Marshall I, 586 A.2d at 166, 169, 171 , 19 was sufficiently remedied by the court's curative instructions, id. at 168, 169, 586 A.2d 85 , 20 was "of limited significance" because it was adequately challenged by the defense, id. at 167, or was an isolated reference that did not "have the capacity to affect the jury's deliberative process," id. at 171. 21 We agree that those conclusions are reasonable under Berger and its progeny.

150

Thus, the majority of the misconduct that we have reviewed did not deprive Marshall of his right to a fair trial, and we agree with the New Jersey Supreme Court's conclusions that no constitutional right was implicated; accordingly, for those instances we do not reach the question of whether the error was harmless. Two instances of misconduct, however, implicated specific constitutional guarantees and require further examination. 22

151

2. Violations of Specific Constitutional Rights

152

Marshall claims the prosecutor's misconduct violated two specific rights — his right to counsel and his right to call witnesses — both of which are rights that are specifically guaranteed by the Sixth Amendment. The United States Supreme Court has presumed that a due process violation has occurred when prosecutorial misconduct implicates specific rights guaranteed by the Bill of Rights. See Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965); Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976); see also Hassine v. Zimmerman, 160 F.3d 941 (3d Cir.1998). 23

153

The Supreme Court has only evaluated a presumptive due process violation where a prosecutor misused a defendant's exercise of his Fifth Amendment right to remain silent as evidence of guilt. See Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965); Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976). However, we think it clear that the same presumption applies when other enumerated rights are implicated. See United States v. Thame, 846 F.2d 200 (3d Cir.1988); United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir.), cert. denied, 414 U.S. 855 , 94 S.Ct. 154 , 38 L.Ed.2d 104 (1973). 24 We analyze whether the constitutional right was violated, and if so, whether the error was harmless. Marshall alleges two such violations: the exchange by the prosecutor with DeCarlo about Marshall's retention of counsel and the prosecutor's remarks about Marshall's calling of his sons as witnesses. We will examine each in turn.

154

a. Right to Counsel

155

i. Did the New Jersey Supreme Court Properly Conclude that the Error was of the Type Condemned in Macon ?

156

Oakleigh DeCarlo, Marshall's sister, was questioned on cross-examination about the visit police investigators made to the Marshall home on September 21, 1984, to inquire about the then newly discovered Louisiana contacts. Ms. DeCarlo was present. At trial, there was conflicting testimony as to whether Marshall was asked whether he knew certain names or was also shown photographs of the Louisiana contacts. Defense counsel had sought — and received — a ruling that the prosecutor could inquire as to Marshall's reaction to the photographs shown to him, but not as to Marshall's refusal to answer based on counsel's advice. App. Br. at 123-24. The prosecutor inquired of Ms. DeCarlo whether the interview ended after Marshall was shown the photographs.

157

PROSECUTOR: You didn't hear him answer any questions, did you, when they said —

158

DECARLO: Yes, I did.

159

PROSECUTOR: You did?

160

DECARLO: Yes.

161

PROSECUTOR: Answer their questions?

162

DECARLO: He answered a question.

163

PROSECUTOR: A question?

164

DECARLO: A question.

165

PROSECUTOR: One question?

166

DECARLO: One question.

167

PROSECUTOR: Then the conversation ended: is that correct?

168

DECARLO: No. They said they had other questions and he said, "I think I should have my lawyer here if you're going to ask any more questions."

169

PROSECUTOR: Did you say to him, "Hey, Rob. Why get your lawyer. Your wife was murdered. Maybe these people —"

170

Marshall I, 586 A.2d at 147 . The above were characterized by the New Jersey Supreme Court as verging on infringement of the right to counsel, but brief and "not dwell[ed] on." Id. at 148 .

171

After the prosecutor completed his cross-examination, Thompson's counsel, Mr. Hartman, cross-examined DeCarlo:

172

HARTMAN: You wouldn't think it unreasonable that if a person retained an attorney and was possibly under suspicion that they should have their attorney present?

173

DECARLO: Not at all. That's why you hire them for his advice.

174

Id. at 148 . Hartman then asked Ms. DeCarlo if she thought it unreasonable that a person under suspicion would want their attorney present during questioning, and she responded that that is why attorneys were hired. Then the prosecutor resumed his cross-examination:

175

PROSECUTOR: Especially when your wife has been killed and you haven't — you didn't have anything to do with it, you still run out and hire an attorney?

176

Id.

177

Marshall's counsel objected to the question, and the objection was sustained, but no curative instruction was sought or given. The New Jersey Supreme Court noted that what could be "characterized as a question only by a most indulgent reading" required a "clear and forceful curative instruction" by the court. Id. The New Jersey Supreme Court characterized the prosecutor's cross-examination of DeCarlo as "a highly improper and inexcusable attempt... to suggest that defendant's retention of counsel was inconsistent with his claim that he was innocent." Marshall I, 586 A.2d at 147 .

178

ii. Was the Error Nonetheless Harmless?

179

In analyzing whether the prosecutor's behavior impermissibly "suggest[ed] that retention of counsel is inconsistent with innocence," the New Jersey Supreme Court applied a harmless error analysis, reasoning that all courts of appeals to address the issue, except the Fifth Circuit Court of Appeals, had done so, and that the Fifth Circuit itself was inconsistent in whether it applied a per se or harmless error analysis. Id. at 148-49 . In examining the prosecutor's conduct for harmless error, the New Jersey Supreme Court focused on our rationale in United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir.1973), where we reversed the conviction in the face of a prosecutorial comment that impinged upon the defendant's right to counsel, because the "credibility of the petitioner as a witness was a central issue," given that "critical portions of the evidence were disputed." Id. at 616 .

180

The prosecutor's conduct during Marshall's trial was distinguishable, according to the New Jersey Supreme Court, for two reasons: the jury had already been made aware that Marshall had retained counsel by the time the episode in question had taken place, and had learned it from Marshall himself; and "the evidence of defendant's guilt was so persuasive that it is virtually impossible to conceive that this isolated comment by the prosecutor, however reprehensible it may have been, could have contributed significantly to the jury's determination of guilt." Marshall I, 586 A.2d at 149 .

181

When the New Jersey Supreme Court considered the same facts in its post-conviction relief review, it reiterated that the remarks were harmless error, and it likewise dismissed the possibility that they were evidence either of the ineffectiveness of Marshall's counsel (in not requesting a curative instruction) or prosecutorial misconduct, because there was no prejudice. Marshall II, 690 A.2d at 67-69 . When presented with the habeas petition, however, the District Court evaluated the claim as the New Jersey Supreme Court had on direct appeal, and found that the New Jersey Supreme Court's analysis and conclusions were neither unreasonable nor contrary to Supreme Court jurisprudence. Marshall III, 103 F.Supp.2d at 777-79 . Like the District Court, we will evaluate the reasonableness of the New Jersey Supreme Court's evaluation on direct appeal.

182

Before us, Marshall contends that the prosecutor "deliberately led" DeCarlo to the improper disclosure, and that, indeed, "the prosecutor's entire cross of DeCarlo was aimed at these topics." App. Br. at 124. But the New Jersey Supreme Court found that DeCarlo's comment was volunteered. Marshall I, 586 A.2d at 148 . Whether DeCarlo's disclosure was instigated or voluntary is, we believe, not clear. Thus we will not find the New Jersey Supreme Court's determination of the facts to be unreasonable.

183

Marshall also, however, challenges the prosecutor's follow-up comments implying that if Marshall were innocent, he would not have "run out and hire[d] an attorney." Marshall I, 586 A.2d at 148 . As noted above, the New Jersey Supreme Court concluded that the comments were constitutional error, but that they were harmless under Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). 25 Under Chapman , an error is harmless if there is no "reasonable possibility that the evidence complained of might have contributed to the conviction." Id. at 23 , 87 S.Ct. 824 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 , 84 S.Ct. 229 , 11 L.Ed.2d 171 (1963)). Further, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. Id. at 24, 87 S.Ct. 824 . The New Jersey Supreme Court concluded that the impact of the prosecutor's line of questioning was ameliorated because Marshall testified before DeCarlo and had himself disclosed that he had retained counsel prior to the incident in question. Marshall I, 586 A.2d at 149 . "We reach that conclusion in part because the jury knew from defendant's own testimony that he had retained counsel and did not consider that conduct to detract at all from his claim of innocence." Id. That reasoning, however, was secondary to the Court's conviction: "More important to our conclusion, however, is that the evidence of defendant's guilt was so persuasive that it is virtually impossible to conceive that this isolated comment by the prosecutor, however reprehensible it may have been, could have contributed significantly to the jury's determination of guilt." Id.

184

In Marshall's direct testimony at trial, he stated that his office was searched during the weekend prior to his wife's memorial service, and that as a result of that action, he consulted an attorney. Direct Testimony of Robert Marshall, February 26, 1986, St. Ex. 28T at 107-09. Immediately thereafter, Marshall discussed the visit paid him by the investigators on September 21, when his sister was present. Id. at 109-11 . He denied being showed photographs at that time. Id. at 110 .

185

DeCarlo's testimony occurred on February 24, 1986, two days prior to Marshall's testimony. Thus, Marshall had not in fact disclosed his retention of counsel before she testified. Rather, her testimony provided the initial impression to the jury as to Marshall's retention of counsel. Accordingly, we cannot discount the impact of the prosecutor's statements on the basis of the jury's knowledge via Marshall's testimony, as the New Jersey Supreme Court did. DeCarlo had testified that the investigators asked Marshall whether he knew "a couple of names." Direct Testimony of Oakleigh DeCarlo, February 24, 1986, St. Ex. 27T at 118. She further testified that Marshall was not shown any photographs at that time. Id.

186

From the beginning of the cross-examination, the prosecutor was combative with DeCarlo. She had testified that she had not heard one of the names asked by the investigators. The first question that the prosecutor asked was: "You didn't hear him answer any questions, did you, when they said —," to which DeCarlo responded that she had heard Marshall's response. Cross-Examination of Oakleigh DeCarlo, February 24, 1986, St. Ex. 27T at 119. Then the prosecutor asked whether the conversation ended, to which DeCarlo replied that Marshall had said he should have his attorney present if they were to ask more questions. Id. The prosecutor started to ask whether DeCarlo had said "Hey, Rob. Why get your lawyer. Your wife was murdered. Maybe these people —," but when DeCarlo attempted to answer, he cut her off. Id. Defense counsel objected, and the prosecutor reframed his question: "Did you say to your brother, `Rob, wait a minute. Don't just answer one question. Take a good look at these photographs.'?" DeCarlo replied — as Marshall would later confirm — that he was not shown any photographs at that point. Id. at 120 . The prosecutor then asked several questions attempting to elicit whether DeCarlo had ever stated that she could not tell whether Marshall was lying or telling the truth, and concluded his cross-examination. Thompson's counsel then asked DeCarlo whether she would think it unreasonable to want an attorney present if possibly under suspicion. She replied: "Not at all. That's why you hire them for his advice." Id. at 122 . The prosecutor then asked again, "Especially when your wife has been killed and you haven't — you didn't have anything to do with it, you still run out and hire an attorney?" Id. The "question" was objected to, and the objection sustained, and DeCarlo was permitted to step down.

187

The New Jersey Supreme Court properly considered the weight of other evidence against Marshall in determining that the error was harmless. See Brecht, 507 U.S. at 639, 113 S.Ct. 1710 . However, as we noted, the New Jersey Supreme Court stated that part of its determination was based on the fact — which is not actually a fact — that Marshall's testimony that he had retained counsel lessened the impact that the prosecutor's questioning of DeCarlo had upon the jury. We then must answer an additional question by looking at the record: Considering the totality of DeCarlo's testimony, was it unreasonable for the New Jersey Supreme Court to conclude that the disclosure that Marshall had hired counsel — absent the palliative ascribed by the Court of the jurors' having already heard from Marshall — was harmless beyond a reasonable doubt?

188

To answer that question, it is important to look at what the United States Supreme Court reacted to in Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), and Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976), and what we reacted to in Macon. In Griffin, the prosecutor used the defendant's silence — and his own powerful oratory — to convey that the defendant knew the truth, but was wilfully withholding it from the jury. 26 Further, the prosecutor's words were compounded by the court's instructions — consistent with California law — that the "jury could draw an inference unfavorable to the defendant as to facts within his knowledge about which he chose not to testify." United States v. Robinson, 485 U.S. 25, 30 , 108 S.Ct. 864 , 99 L.Ed.2d 23 (1988) (discussing Griffin, 380 U.S. at 610-15, 85 S.Ct. 1229 ). In Doyle , the prosecutor, on cross-examination of the defendant, repeatedly denigrated Doyle's assertions of innocence. 27 There, the trial court overruled objections and allowed the prosecutor to argue the post-arrest silence in closing. Doyle, 426 U.S. at 614 , 96 S.Ct. 2240 . In Macon, the prosecutor in his closing expressly tied the defendant's retention of counsel to the other circumstantial evidence of his guilt. 28 There was no objection or requested instruction. We concluded there that the error was not harmless, because the verdict rested on a credibility determination, and the comments "would appear to have been directed to, and may have had the effect of, raising in the jurors' minds the inference that petitioner was, or at least believed himself to be, guilty. Such an inference might certainly tend to cause the jury to disbelieve Macon's version of the story." Macon, 476 F.2d at 616-17 . We believe that there are important, though subtle, distinctions between the effect of the prosecutor's actions in these cases and in the one before us.

189

First, in Griffin, Doyle, and Macon, the prosecutor attacked the defendant directly. Here, the attack was indirect. Second, in each of the above cases, the prosecutor was allowed to wax eloquent without challenge or interruption, while here Marshall objected — and the objection was sustained — three times in the brief interchange between the prosecutor and DeCarlo. Finally, in part because both the direct and cross examination were brief, it was very obvious, even to us on a cold record, that the prosecutor was, for whatever reason, attempting to twist all of DeCarlo's testimony — intimating that she did not hear Marshall's answer when she had testified that she did not hear one of the names asked by the investigator; asking her why she didn't ask Marshall to examine the photographs when she had already testified that he hadn't been shown any — and we think that the way the prosecutor formulated the questions: "Didn't you ask him ..." would have been perceived as yet further attempts to badger and twist the testimony of a minor witness.

190

When all three factors are considered in combination, we cannot find the prosecutor's questions and comments, improper though they were, to support — as they did in as in Griffin, Doyle, and Macon — a clear inference that the exercise of the constitutional right was itself evidence of the defendant's guilt. Thus, we concur in the New Jersey Supreme Court's conclusion that the error was harmless.

191

b. Right to Call Witnesses

192

i. Did the New Jersey Supreme Court Properly Conclude that the Error was Not of the Type Condemned in Macon?

193

The remarks in question were quoted by the New Jersey Supreme Court:

194

And he has the audacity to bring in his three boys to testify. That's obscene. And I'm not being critical of them, because I would probably do the same thing. To put his boys on that witness stand is obscene, and for that there's a place in hell for him. He will use anybody, he will say anything and he will do anything, including his own family, to get out from under. And that's Robert Oakley Marshall. Make no mistake about it.

195

Marshall I, 586 A.2d at 169 .

196

Marshall raises these remarks before us twice, once by citing to the relevant portions of the dissent and including these remarks among those to be analyzed under Berger and Darden, App. Br. at 129-30, 132, and earlier, when Marshall discusses the infringement of the right to counsel discussed above. There, he states specifically that the right to counsel should be evaluated in conjunction with other misconduct "including the prosecutor's telling the jury in summation that there is a place in hell for Robert Marshall for exercising his 6th Amendment right to call his sons as witnesses." App. Br. at 127. The majority of the New Jersey Supreme Court did not directly address the contention that the prosecutor's comments were tantamount to a denial of Marshall's right to call witnesses, stating merely that:

197

Arguably, defendant's sons' testimony concerned only peripheral aspects of the case — except for that of Robbie Marshall who stated that defendant was at home at noon on September 6, 1984, the time, according to McKinnon, that he and defendant met on the Garden State Parkway. Thus, it was not unreasonable for the prosecutor to have implied that defendant's sons had been called as witnesses not so much for the substance of their testimony but because their mere presence as witnesses would suggest support for their father, support that would have been unwarranted if defendant had participated in the murder of their mother. Thus, in emotional and inflammatory terms, the prosecutor expressed his revulsion at what he perceived as defendant's `using' his sons in order to gain an acquittal.... Although the prosecutor's remarks went beyond the boundaries of permissibly forceful advocacy, we note that their focus was on a distinctly collateral aspect of the trial, not on a critical and contested issue of fact. We acknowledge that the trial court's curative instruction could have been more forceful, but we are satisfied that it was adequate to ameliorate any significant prejudice to defendant.

198

Marshall I, 586 A.2d at 169 .

199

It is beyond dispute that the right to call witnesses is protected by the Sixth and Fourteenth Amendments. "Few rights are more fundamental than that of an accused to present witnesses in his own defense. Indeed, this right is an essential attribute of the adversary system itself." Taylor v. Illinois, 484 U.S. 400, 408 , 108 S.Ct. 646 , 98 L.Ed.2d 798 (1988) (internal citations omitted). But even though the prosecutor's misconduct in this instance did touch on Marshall's exercise of a constitutional right, we conclude that the court's curative actions rightly kept the offending statements from the consideration of the jurors, and thus, that consonant with the United States Supreme Court's holding in Greer v. Miller, 483 U.S. 756 , 107 S.Ct. 3102 , 97 L.Ed.2d 618 (1987), there was no violation of Marshall's right to call witnesses.

200

As the United States Supreme Court characterized Doyle , the harm lay in using the defendant's constitutionally guaranteed silence to impeach him at trial. Greer, 483 U.S. at 763 , 107 S.Ct. 3102 . In Greer , a question was asked, counsel objected, and the court sustained the objection and instructed the jury to disregard questions that had been objected to if the objection had been sustained. Id. at 764 , 107 S.Ct. 3102 . Thus, "[t]he fact of Miller's postarrest silence was not submitted to the jury as evidence from which it was allowed to draw any permissible inference, and thus no Doyle violation occurred in this case." Id. at 764-65, 107 S.Ct. 3102 .

201

While the prosecutorial comments here are nowhere near as benign as the single prosecutorial question at issue in Greer , we think that Greer 's holding is controlling. Here, as in Greer , the comments the prosecutor made regarding Marshall's sons were at a single point in a long trial. Though they were more inflammatory — indeed, "[a]mong the most inflammatory portions of the prosecutor's summation," "possessing the capacity to anger and arouse the jury and thereby divert them from their solemn responsibility to render a verdict based on the evidence," Marshall I, 586 A.2d at 168 , 169 — the trial court instructed the jury specifically to disregard the prosecutor's comments: "A defendant in a criminal case has a right to bring in any witnesses or subpoena or bring in any other way any witnesses to testify on his behalf, and no adverse inferences should be drawn against the defendant merely because his sons testified as witnesses on his behalf." Id. at 169. The Court also instructed the jurors to disregard the reference to "a place in hell." 29 Id. Indeed, the instructions here were specifically directed at the prosecutor's statement, unlike the general instructions that the Court upheld in Greer.

202

As Greer stressed, we are to "presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an `overwhelming probability' that the jury will be unable to follow the court's instructions, and a strong likelihood that the effect of the evidence would be `devastating' to the defendant." Greer, 483 U.S. at 767 n. 8, 107 S.Ct. 3102 . Thus, the fact that Marshall called his sons as witnesses was "not submitted to the jury as evidence from which it was allowed to draw any permissible inference." Id. at 764-65 , 107 S.Ct. 3102 .

203

The New Jersey Supreme Court concluded that the prosecutor's statements were not directed at "a critical and contested issue of fact" and that the trial court's curative instructions were "adequate to ameliorate any significant prejudice to defendant." Marshall I, 586 A.2d at 169 . Although the New Jersey Supreme Court should have evaluated this misconduct to determine if there was a violation under Doyle , its conclusions are essentially the same as those we reach independently applying the proper framework, and we find no constitutional error. Accordingly, we will not disturb its conclusions. 30

3. Accumulation of Error

204

The New Jersey Supreme Court also evaluated the right to counsel claim separately from the other claims of prosecutorial misconduct, and Marshall complains vociferously that, if the instances of prosecutorial conduct that were found to be improper by the New Jersey Supreme Court were considered together, there would be error that would render the trial unfair and not be harmless. App. Br. at 127. Further, he alleges that the nondisclosure of Kraushaar's immunity agreement should be factored in as well. Id. As stated above, Marshall is correct that error attributed to prosecutorial misconduct is accumulated for the purposes of the Chapman analysis. Lesko v. Lehman, 925 F.2d 1527, 1541 (3d Cir.1991). Indeed, in Chapman itself, the cumulative effect of the error was weighed together.

205

Thus, the state prosecutor's argument and the trial judge's instruction to the jury continuously and repeatedly impressed the jury that from the failure of petitioners to testify, to all intents and purposes, the inferences from the facts in evidence had to be drawn in favor of the State — in short, that by their silence petitioners had served as irrefutable witnesses against themselves. And though the case in which this occurred presented a reasonably strong "circumstantial web of evidence" against petitioners, it was also a case in which, absent the constitutionally forbidden comments, honest, fair-minded jurors might very well have brought in not-guilty verdicts. Under these circumstances, it is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the prosecutor's comments and the trial judge's instruction did not contribute to petitioners' convictions. Such a machine-gun repetition of a denial of constitutional rights, designed and calculated to make petitioners' version of the evidence worthless, can no more be considered harmless than the introduction against a defendant of a coerced confession.

206

Chapman, 386 U.S. at 25-26 , 87 S.Ct. 824 (internal citations omitted). It is also true, as noted above, that in Brecht v. Abrahamson, the United States Supreme Court did not preclude the possibility that "in an unusual case, a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct, might so infect the integrity of the proceeding as to warrant the grant of habeas relief, even if it did not substantially influence the jury's verdict." Brecht, 507 U.S. at 638 n. 9, 113 S.Ct. 1710 .

207

But the essence of Chapman is that a prosecutor's misconduct is not harmless when it renders the defendant's "evidence worthless." Chapman, 386 U.S. at 26 , 87 S.Ct. 824 . Here, none of the misconduct properly before the jury undermined the integrity or fairness of the proceeding. While the United States Supreme Court has not clarified what might constitute an "unusual case," we do not think that the single instance of constitutional error — the prosecutor's questioning of DeCarlo — at Marshall's trial could suffice. 31

208

C. Fourth Amendment and Statutory Violations

209

After Marshall recorded the tapes to his brother-in-law, who was also an attorney, and to his secretary and sons in his motel room at the Best Western, he put stamps on the envelopes and took two packages to the front desk and placed them in a container designated for outgoing mail. 32 Alerted by hotel personnel, police who were surveilling Marshall awakened him, and he was taken to a hospital, and later to a psychiatric hospital. The police, claiming that the envelopes were in plain sight, with the topmost package bearing the words "To be Opened Only in the Event of my Death," retrieved the packages and later secured warrants to examine their contents. The tapes that were found pursuant to those warrants were played at trial, over Marshall's protest that the search of the mail depository and the seizure of the tapes violated his Fourth Amendment rights. Before the District Court, and now before us, Marshall also claims that the police actions violated federal statutes. The District Court concluded that the federal statutes and regulations Marshall cited were inapplicable because the United States Postal Service never had custody of the envelope. Marshall III, 103 F.Supp.2d at 784 . It further concluded that Marshall had a full and fair opportunity to litigate his Fourth Amendment claims before the state courts, and that habeas review was barred by the United States Supreme Court's holding in Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976). Marshall III, 103 F.Supp.2d at 785 .

210

Before we can reach the merits of these claims, we must determine whether we should address them at all. Two issues are presented to us: Are we barred from considering statutory, non-constitutional claims under AEDPA? And does Stone v. Powell, which prohibits us from examining Fourth Amendment claims that have been fully and fairly litigated in state courts, bar our consideration of the Fourth Amendment claims?

1. Statutory claims under AEDPA

211

In his brief on direct appeal to the New Jersey Supreme Court, Marshall cited to the United States Postal Service's Domestic Mail Manual in support of his argument that there was a Fourth Amendment expectation of privacy in his letters and that the search warrant must have been executed by a federal (not a state) officer. The New Jersey Supreme Court rejected those contentions because the envelope was not "within the custody of the postal authorities at the time of the seizure" and "[t]he statute does not limit search warrants to those issued by federal judges or magistrates." Marshall I, 586 A.2d at 118 . The District Court appeared to extend this reasoning to the additional statutes cited by Marshall before it: 5 U.S.C. § 301 , 39 U.S.C. §§ 201 , 404(a)(1) and 3623(d). See Marshall III, 103 F.Supp.2d at 783-84 .

212

We conclude that we do not have jurisdiction to entertain Marshall's complaint as to the District Court's determination of his statutory claims. In Slack v. McDaniel, 529 U.S. 473 , 120 S.Ct. 1595 , 146 L.Ed.2d 542 (2000), the Supreme Court noted that 28 U.S.C. § 2253 (c), that section of AEDPA that governs our ability to issue a COA to review a District Court's adjudication of the claims of a habeas petition, states explicitly that "a COA may not issue unless `the applicant has made a substantial showing of the denial of a constitutional right.'" 529 U.S. at 483, 120 S.Ct. 1595 . In that section, as Slack explains, Congress codified the standard of Barefoot v. Estelle, 463 U.S. 880, 894 , 103 S.Ct. 3383 , 77 L.Ed.2d 1090 (1983), except that Barefoot only required the denial of a federal right, while AEDPA requires the denial of a constitutional right. Slack, 529 U.S. at 483 , 120 S.Ct. 1595 .

213

While the Seventh Circuit Court of Appeals has extended Slack — and in our view, the explicit language of the statute as well — to allow "independently substantial statutory issue[s]" to "come along for the ride" if there is a "substantial constitutional question" within the case, Ramunno v. United States, 264 F.3d 723, 725 (7th Cir.2001), we refuse to deviate from Congress's express terms. In United States v. Cepero, 224 F.3d 256, 262-63, 267 (3d Cir.2000), we construed Slack and the plain language of 28 U.S.C. § 2253 (c) to deprive us of jurisdiction to hear statutory questions pursuant to habeas appeals. In response to "the ad terrorem argument that the defendant is thereby totally denied the opportunity to appeal nonconstitutional issues, the short answer is that Congress has indicated that these issues must be presented in the direct appeal from the conviction." Id. at 265. 33 Marshall did not, and he cannot now raise them here.

214

2. Stone v. Powell and the Fourth Amendment Bar

215

In Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976), the Supreme Court examined the nature of the exclusionary rule, which it characterized as a "judicially created means of effectuating the rights secured by the Fourth Amendment" and balanced its utility as a deterrent against the risk of excluding trustworthy evidence and thus "deflect[ing] the truthfinding process." Id. at 482, 490 , 96 S.Ct. 3037 . Finding that, as to collateral review, the costs of the exclusionary rule outweighed the benefits of its application, the Court concluded that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 494 , 96 S.Ct. 3037 . While the federal courts are not thus deprived of jurisdiction to hear the claim, they are — for prudential reasons — restricted in their application of the exclusionary rule. Id. at 494 n. 37, 96 S.Ct. 3037 .

216

Seeking to avoid this restriction, Marshall seizes upon the qualifying phrase in Stone , "where the State has provided an opportunity for full and fair litigation," and argues that he has not had an opportunity for full and fair litigation, and thus, that the bar of Stone v. Powell should not apply. 34 Appellant's Memorandum of Law in Support of Application for Certificate of Appealability 131-143.

217

We have recognized that there may be instances in which a full and fair opportunity to litigate was denied to a habeas petitioner, but this is not one of them. This is not a case where a structural defect in the system itself prevented Marshall's claim from being heard. See, e.g., Boyd v. Mintz, 631 F.2d 247, 250-51 (3d Cir.1980); see also Gilmore v. Marks, 799 F.2d 51, 57 (3d Cir.1986) (observing that a state's "failure to give at least colorable application of the correct Fourth Amendment constitutional standard" might amount to a denial of the opportunity for full and fair litigation). An erroneous or summary resolution by a state court of a Fourth Amendment claim does not overcome the bar. Id. And, as the District Court correctly assessed, Marshall III, 103 F.Supp.2d at 785-86 , Marshall is at most alleging that the Fourth Amendment claims were decided incorrectly or incompletely by the New Jersey courts, allegations which are insufficient to surmount the Stone bar.

218

Marshall tries to argue that a full and fair litigation would require consideration of the salient United States Supreme Court precedent, and he raises a very old decision that he argues should have controlled the New Jersey Supreme Court's decision. App. Br. at 140-41. See Rosen v. United States, 245 U.S. 467, 468 , 38 S.Ct. 148 , 62 L.Ed. 406 (1918). We do not need to decide on these facts what would be sufficient to constitute a "denial of opportunity for full and fair litigation," and because the holding of Rosen is clearly not controlling here we will not fault the New Jersey courts for failing to apply it. We are satisfied that there was no structural defect that prevented the full and fair litigation of Marshall's Fourth Amendment claims in state court, and we are thus barred from reconsidering them here. In retrospect, and in light of our determination of the Fourth Amendment and related statutory claims, we acknowledge that the COA was improvidently granted as to those issues and it will therefore be dismissed.

219

D. Murder for Hire: As both an element of the crime and an aggravating circumstance?

220

Marshall brings an as-applied challenge to New Jersey's death penalty statute, alleging that it violates the Eighth Amendment in its application to his crime. The aggravating factor relied on by the State — that Marshall arranged the murder for pecuniary gain — duplicated an element of the underlying offense. As Marshall correctly states, the United Supreme Court has held that the Constitution requires a capital sentencing scheme "genuinely [to] narrow the class of persons eligible for the death penalty and ... reasonably [to] justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. 862, 877 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 (1983). As the New Jersey Supreme Court correctly noted, the United States Supreme Court held in Lowenfield v. Phelps, 484 U.S. 231 , 108 S.Ct. 546 , 98 L.Ed.2d 568 (1988), that it may be permissible for an aggravating factor to duplicate an element of the underlying offense. See Marshall I, 586 A.2d at 155 . Although Marshall criticizes the New Jersey Supreme Court for failing to reference Zant , 35 we find no fault in the New Jersey Supreme Court's evaluating more recent United States Supreme Court precedent, and referring to its own caselaw which interpreted the earlier United States Supreme Court precedent, including Zant , instead. More recently, we had the opportunity to consider a similar challenge to Delaware's capital sentencing structure, and there we noted that, after Lowenfield , the "courts of appeals have consistently held that a sentencing jury can consider an element of the capital offense as an aggravating circumstance even if it is duplicitous [sic]." Deputy v. Taylor, 19 F.3d 1485, 1502 (3d Cir.1994).

221

Marshall alleges that the homicide statute itself is broadly drafted, encompassing "virtually every murder committed either `purposely' or `knowingly.'" App. Br. at 135. Marshall contends that since his conviction was for hiring someone to murder his wife, and since the aggravating factor duplicated the elements of the underlying crime itself, there was no possibility for narrowing or for channeling the jury's discretion. The United States Supreme Court addressed a similar contention in Arave v. Creech, 507 U.S. 463 , 113 S.Ct. 1534 , 123 L.Ed.2d 188 (1993).

222

When the purpose of a statutory aggravating circumstance is to enable the sentencer to distinguish those who deserve capital punishment from those who do not, the circumstance must provide a principled basis for doing so. If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm.

223

Id. at 474 , 113 S.Ct. 1534 (emphasis in original) (internal citations omitted).

224

Applying Arave 's standard, however, it is clear that the New Jersey legislature had a right to establish a motive (for pecuniary gain) as more culpable than other motives, and to determine that a motive-specific factor would narrow the class of death-eligible murderers and would provide a principled consideration for jurors to weigh in making an individualized determination at the capital sentencing phase. That one of the means by which a person may commit murder with this motive is to hire someone else actually to execute the crime is immaterial to the limiting analysis.

225

The strictures of the United States Constitution do not require New Jersey to assign a constitutionally mandated function to aggravating circumstances, but to design a scheme that both narrows the class of death-eligible defendants and channels the jury's discretion to ensure that a death-eligible defendant is not sentenced to death arbitrarily or capriciously. 36 Here there can be no question that the New Jersey legislature required sufficient culpability to withstand constitutional scrutiny. The New Jersey Supreme Court so held in Ramseur , and it was not unreasonable for the New Jersey Supreme Court to rely upon its detailed analysis in that opinion, and upon the more recent United States Supreme Court jurisprudence, in its consideration of Marshall's claim.

E. Guilt Phase Ineffectiveness

226

Marshall cites before us nine separate ways in which he contends his counsel was ineffective during the guilt phase of the trial. The State counters that Marshall's "litany of purported inadequacies is merely a lengthy series of inconsequential minutiae." Appee. Br. at 76. As both parties recognize, claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), and its progeny, although Marshall contends that, while the New Jersey Supreme Court correctly identified Strickland as controlling, it "both misconstrued and unreasonably applied" it. Marshall contends that he "has been afforded virtually no process on his ineffective-assistance claim." App. Br. at 99. As the State notes, Marshall originally raised claims of ineffectiveness in his direct appeal brief, and then raised "more than 300 claims in all" on appeal from the denial of post-conviction relief. Appee. Br. at 77. The New Jersey Supreme Court found all of Marshall's claims to be without merit. The District Court did not find the New Jersey Supreme Court's conclusions unreasonable under AEDPA, but Marshall contends that it merely agreed, "in summary fashion," with the conclusions of the New Jersey Supreme Court. App. Br. at 100-01. Actually, as discussed below, most of the New Jersey Supreme Court's conclusions were based on a finding that Marshall could not demonstrate prejudice. The District Court instead concluded that Marshall had not established that the performance of his attorney was deficient:

227

In hindsight, petitioner has compiled a long list of alleged errors and mistakes his counsel committed during his trial. The Court does not imply that defense counsel made no errors whatsoever, but that his performance was well within the required reasonable standard and his litigation strategy was based upon reasonable professional judgment.

228

Marshall III, 103 F.Supp.2d at 790 .

229

The nine areas of alleged ineffectiveness raised before us by Marshall are:

230

1. Counsel did not develop or present any defense to counter the State's contention that the murder was financially motivated. App. Br. at 104-07.

231

2. Counsel did not develop or present evidence to refute much of the State's circumstantial evidence about the events the night of the murder. App. Br. at 107-11.

232

3. Counsel did not provide independent evidence to refute McKinnon's testimony. App. Br. at 111.

233

4. Counsel did not present evidence to refute the State's allegations that Marshall's attempted suicide was staged. App. Br. at 111-13.

234

5. Counsel did not present evidence to counter the "prosecutor's theatrics [which] were sensational, shocking, and quite effective." App. Br. at 113-15.

235

6. Counsel did not present the evidence that his own testimony — at a limited PCR hearing — cited as his primary trial strategy: character evidence. App. Br. at 115-16.

236

7. Counsel had no coherent defense theory. App. Br. at 116-17.

237

8. Counsel did not present other evidence that was within his possession. App. Br. at 118-20.

238

9. Counsel did not object nor seek curative action when inadmissible testimony was admitted, or when the prosecutor engaged in misconduct. He also put "irrelevant, prejudicial facts before the jury." App. Br. at 120-23.

239

Under Strickland , courts are precluded from finding that counsel was ineffective unless they find both that counsel's performance fell below an objectively unreasonable standard, and that the defendant was prejudiced by that performance. Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 . In order to establish prejudice, a defendant need not demonstrate that the outcome of the proceeding would have been different, but only that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 37 Id. at 694 , 104 S.Ct. 2052 . Where prejudice is lacking, the court need not determine whether the performance was subpar. Id. at 697 , 104 S.Ct. 2052 . Further, it is critical that courts be "highly deferential" to counsel's reasonable strategic decisions and guard against the temptation to engage in hindsight. Id. at 689-90 , 104 S.Ct. 2052 . In part, this is because the purpose of the rule is not to improve the standard of professional conduct, but only to protect a defendant's right to counsel. Id. at 689 , 104 S.Ct. 2052 . Thus, the court is not engaging in a prophylactic exercise to guarantee each defendant a perfect trial with optimally proficient counsel, but rather to guarantee each defendant a fair trial, with constitutionally competent counsel. In order to assess an ineffectiveness claim properly, the court "must consider the totality of the evidence before the judge or jury." Id. at 695 , 104 S.Ct. 2052 .

240

The deference accorded to counsel's reasonable strategic decisions can be seen in numerous United States Supreme Court rulings following on the heels of Strickland. E.g., Burger v. Kemp, 483 U.S. 776, 794-95 , 107 S.Ct. 3114 , 97 L.Ed.2d 638 (1987); Darden v. Wainwright, 477 U.S. 168, 185-86 , 106 S.Ct. 2464 , 91 L.Ed.2d 144 (1986). Nonetheless, the Court has found the decisions of some attorneys to be objectively unreasonable. E.g., [Terry] Williams v. Taylor, 529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000); Kimmelman v. Morrison, 477 U.S. 365, 385-87 , 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986).

241

It is rare for a court to review claims of ineffective assistance of counsel on direct appeal, because the record is typically not adequately developed by that point to allow sufficient review. United States v. Cocivera, 104 F.3d 566, 570-71 (3d Cir.1996); State v. Morton, 155 N.J. 383 , 715 A.2d 228, 253 (1998). The New Jersey Supreme Court recognized this in the appeal from the denial of post-conviction relief. The PCR court had determined that all of Marshall's ineffectiveness claims were procedurally barred, since some ineffectiveness claims had been raised on direct appeal, reasoning that ineffectiveness had been previously adjudicated, and that Marshall was thus barred from raising new instances of ineffectiveness before the court. The New Jersey Supreme Court specifically rejected the PCR court's conclusion, explaining that its analysis on direct appeal was limited to the specific instances and the contours of the record that were before it at that time, and thus were not dispositive of the other instances of ineffectiveness raised in Marshall's application for post-conviction relief; nor could the treatment of the specific issues raised on direct appeal be viewed as dispositive of a broader claim of ineffectiveness on appeal from the denial of post-conviction relief. See Marshall II, 690 A.2d at 29-32 . However, when specific issues were adjudicated on direct appeal and found to be without merit, the New Jersey Supreme Court relied on its resolution on direct appeal in finding that counsel could not be constitutionally ineffective in those areas. Marshall II, 690 A.2d at 87 .

242

On direct appeal, the New Jersey Supreme Court read many of Marshall's contentions as suggesting trial strategies that, in hindsight, might have been more effective. Marshall I, 586 A.2d at 171-72 . As the Court correctly concluded, the mere existence of alternative — even preferable or more effective — strategies does not satisfy the requirements of demonstrating ineffectiveness under Strickland .

243

On appeal from the denial of post-conviction relief, the New Jersey Supreme Court prefaced its analysis of Marshall's claims with the observation that this was the first appeal taken to it from a denial of post-conviction relief under the then-recently enacted Capital Punishment Act. Marshall II, 690 A.2d at 27 . The New Jersey Supreme Court was clearly disturbed by the sheer magnitude of Marshall's presentation, stating both that it "question[ed] both the wisdom and the necessity for so massive a presentation" and that "[p]ost-conviction relief issues should be categorized broadly but coherently, and to the extent necessary illustrated by pertinent examples. No valid purpose is served when every minute example of trial counsel's alleged ineffectiveness is offered as a separate ground for post-conviction relief." Id.

244

Thus, while allowing Marshall to raise his ineffectiveness claims, the Court grouped them into more general categories and declined to analyze claims that, even if counsel had sought to proceed as Marshall suggested, would have been foreclosed or completely lacking in merit. In doing so, the Court reasoned from Strickland that if the claims would not have been meritorious if pursued, Marshall could not have been prejudiced. In Strickland , the United States Supreme Court stated:

245

Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.

246

Strickland, 466 U.S. at 697 , 104 S.Ct. 2052 . See Marshall II, 690 A.2d at 54, 87 . Given the sheer volume of the claims, and the related nature of many of them, we do not think that the New Jersey Supreme Court was unreasonable in this approach. 38 We note, as we discuss more fully below, that it is important here that we can focus on the prejudice analysis, because we do not have a complete record on which to assess some of the performance claims: while we have Zeitz's trial preparation file, he has never been questioned as to whether some of his actions were the result of strategic decisions.

247

Marshall has asked us to hold that it was error for the New Jersey Supreme Court not to "acknowledge or apply the requirement that it look outside the trial record and examine the circumstances underlying the claimed deficiencies." App. Br. at 102. But the purpose of assessing counsel's acts from an objective standpoint is to assess the reasonableness of counsel's actions. We do not need to reach the question of whether the attorney's actions fell below an objectively unreasonable standard if we can determine first that Marshall was not prejudiced.

248

But Marshall claims as well that the New Jersey Supreme Court failed equally in its determination of prejudice under Strickland (and the United States Supreme Court's more recent enunciation of how Strickland claims are to be evaluated under AEDPA, [Terry] Williams v. Taylor, 529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000)). Marshall urges that the New Jersey Supreme Court misapprehended its task under Strickland , misreading the explicit instruction to consider the totality of the evidence as requiring it "only ... to consider the strength of the State's case against petitioner at trial." App. Br. at 103. Such an analysis, according to Marshall, cannot comport with the teachings of the United States Supreme Court, because an assessment of the omitted evidence is required, and, since it was not in the trial record, it was not susceptible to analysis. Id. at 103-04. He cites in support two passages from [Terry] Williams, one penned by Justice Stevens in his majority opinion, and the other by Justice O'Connor in her concurrence.

249

In the passage quoted from Justice Stevens, the Court counters the Virginia Supreme Court's finding that there was no prejudice because the mitigation evidence not uncovered by counsel "barely would have altered the profile of this defendant that was presented to the jury" by noting that in so concluding the court "ignored or overlooked the evidence of Williams' difficult childhood and abuse and his limited mental capacity." [Terry] Williams, 529 U.S. at 374 n. 5, 120 S.Ct. 1495 . Justice O'Connor then notes that when the original trial judge was shown the newly unearthed mitigation evidence, he concluded that Williams was prejudiced and, despite earlier having found Williams' death sentence "justified and warranted," recommended a new sentencing hearing. Id. at 416 , 120 S.Ct. 1495 (O'Connor, J., concurring). Justice O'Connor concluded that the Virginia Supreme Court's decision not to grant the sentencing hearing thus "reveals an obvious failure to consider the totality of the omitted mitigation evidence." Id. However, we conclude that counsel's conduct during the guilt phase of Marshall's trial does not reflect the same concerns that animated the United States Supreme Court in its consideration of the unpresented evidence in [Terry] Williams, as is evident upon closer examination of the specific claims Marshall raises before us.

1. Financial and Insurance Information

250

Marshall contends that his trial counsel was ineffective for failing to develop financial and insurance information to demonstrate that Marshall could reasonably expect to cover his expenses and satisfy his debts through future earnings, and that insuring Maria Marshall was based on a rational analysis of the family's needs if she were no longer present. Further, he argues that proper psychiatric testimony would have revealed that his expressions of despair on the suicide tape were not probative of his actual financial situation.

251

The New Jersey Supreme Court found that the failure to develop those arguments was not prejudicial. As to the financial information, they found that it had been placed before the jury — albeit pursuant to the questioning by co-defendant's, not Marshall's counsel — and other witnesses had testified that Marshall was an outstanding insurance salesman. Marshall had explained at length why and how he assessed the amounts of insurance needed on Maria. In [Terry] Williams, the jurors had no opportunity to consider the mitigating evidence at all; as Justice O'Connor noted, if the trial judge himself felt a new sentencing was warranted on the basis of the information, the total absence of that evidence before the jury was prejudicial.

252

Further, it was not the fact of Marshall's financial situation, nor the rationality of accruing insurance on Maria that was in dispute: it was whether his perception of his increasing indebtedness led him to consider the magnitude of the assets available from the insurance policies as a solution to an overwhelming debt. Thus, Marshall is incorrect when he argues that his own acts and expressions of despair as to his finances could have been explained away by proper psychiatric testimony. His statements on the suicide tape that he was worried about his debt led the New Jersey Supreme Court to conclude that Marshall could not "demonstrate how trial counsel's more comprehensive preparation and different trial strategy could persuasively have overcome defendant's own perception that his debt was difficult to manage." Marshall II, 690 A.2d at 65 . We note as well that Kraushaar's testimony also portrayed Marshall as a man who was worried about finances and how to resolve his debt. It was not unreasonable for the New Jersey Supreme Court to find that the presentation of objective data justifying either the level of debt or the level of insurance maintained on Maria had no reasonable probability of impacting how the jurors perceived Marshall's response to his debt, nor to the insurance that indisputably would eliminate that debt.

2. Crime Scene Evidence

253

Marshall contends that he was prejudiced by his trial counsel's failure to test the tire and to bring out other evidence that would tend to demonstrate that Marshall pulled off the road where he did because he was afraid of being hit — as a friend of his recently had been — and had himself been seriously injured. He urges that if the car trouble were shown to be legitimate, and the circumstances surrounding the crime cast in a more accurate light, the jury could have found that Maria was killed to prevent her from identifying thieves, rather than as the result of a carefully arranged plot between her husband and McKinnon. Here, the New Jersey Supreme Court did find that Zeitz's performance was below objective standards of proficiency, but that there was no constitutional violation because there was but "scant support" for the alternate theory of the crime. Marshall II, 690 A.2d at 60-61, 63 . Under Strickland , the burden is on the defendant to establish that counsel's performance prejudiced the defense. Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 . It was not unreasonable for the New Jersey Supreme Court to conclude that mere articulation of an alternate theory of the crime was not adequate to satisfy this burden.

3. McKinnon's Statement

254

Marshall's counsel hired an investigator to go to Louisiana. While there, the investigator secured a statement, authored by McKinnon, suggesting an alternate and exculpatory explanation for his relationship with Marshall. At trial, despite repeated requests by the State, Marshall's counsel claimed that he did not have the statement, averring that it was shown to him "a long time ago, over a year ago, and I've been asking him to locate the thing since then and I said it over and over again, and I don't think I have to continue defending myself about it." Marshall II, 690 A.2d at 44 . On cross-examination, the investigator read the statement into the record. Because neither McKinnon nor Marshall had been cross-examined on the statement, the trial court ruled that both could be recalled for cross-examination, although McKinnon could be recalled only by the co-defendant's counsel, since he was "faultless" in having been unable to cross-examine on the statement. Id. at 44. Neither witness was recalled. Id.

255

Marshall claims that his trial counsel was ineffective in not utilizing McKinnon's prior statement to impeach his testimony on the stand, claiming that the omission revealed either "incredible lack of preparation, or demonstrated highly questionable conduct on the part of the defense of which the jury was made aware." App. Br. at 111. In a conclusory fashion, Marshall claims that "evidence that would cast doubt on McKinnon's testimony would have been some of the most valuable impeachment evidence available and thereby cast doubt on the State's entire case." Id. Marshall refers us to the determination of the New Jersey Supreme Court that, since the statement was ultimately before the jury, "its late admission into evidence was immaterial. The jury had the benefit of the statement itself, and counsel had the opportunity to present arguments concerning McKinnon's statement to the jury in summation." Marshall II, 690 A.2d at 45 . Reading Marshall's claim carefully, the prejudice that Marshall asserts would result from the jurors' being denied access to the contents of the statement and the fact that it contradicted McKinnon's testimony at trial. But, as Marshall's counsel pointed out, since the jury had received both statements it could draw its own conclusions. Id. at 44-45. Thus, although counsel should have ensured that the document that was in the possession of his investigator was produced to the State and co-defendant's counsel in a timely manner, it was not unreasonable for the New Jersey Supreme Court to conclude that Marshall was not constitutionally prejudiced since the contents of the inconsistent statements were indeed available for consideration by the jury.

4. The Suicide Attempt

256

As noted above, after his wife's death, with the pressures of the investigation mounting and his relationship with Kraushaar at an end, Marshall checked into the Best Western room where he and Kraushaar used to meet, and prepared tapes and a suicide drink, which he did not consume. At trial, the State intimated that the suicide attempt was staged, not genuine. Counsel did not present evidence to refute these allegations, except to elicit testimony from Marshall that the suicide attempt was genuine. App. Br. at 111-13. Although counsel had arranged for a psychologist, Dr. Atkins, to assess Marshall's condition, the report was not obtained until mid-trial, and was not used. Nor was Dr. Atkins called as an expert. Id. at 112.

257

Marshall contends that the psychological testimony is critical, because it would establish that the tape — discussed above as reflecting Marshall's despair over his finances — was the result of "a major depressive episode." Id. Marshall alleges that the New Jersey Supreme Court did not address these arguments in affirming the denial of post-conviction relief, even though he raised them, and that, as a consequence, we should not apply AEDPA deference. 39 In response, the State contends that the court did address Marshall's contention, albeit generally, and thus argues that Appel v. Horn, 250 F.3d 203 (3d Cir.2001), is inapplicable. See Marshall II, 690 A.2d at 73 .

258

Given the posture of Marshall's claim, we do not need to address the level of deference owed, because Marshall has stated that the purpose for which the report would have been used is to demonstrate that Marshall was depressed when he produced the tape, which in turn would impact the reliability of the financial data. Those issues, as discussed above, were adjudicated on the merits by the New Jersey Supreme Court. We have already indicated that Marshall has misapprehended the New Jersey Supreme Court's view of the significance of the tape: it is not that it reflects Marshall's true financial status, but that it reflects Marshall's reaction to and perception of his financial status, and, indeed, his state of mind. Thus, adducing testimony to demonstrate that the finances and other stressors in Marshall's life had caused him to enter a "major depressive episode" and attempt suicide could only bolster the image of Marshall's finances as sufficiently worrisome to provoke Marshall to commit desperate acts. The information therefore could not have a reasonable probability of affecting the outcome.

259

Further, courts are to be especially deferential to reasoned decisions by counsel. The fact that Marshall's counsel was the one who arranged for the psychological examination indicates that he was sensitive to the possibility that the information may be valuable for trial, and that he asked for it, received it, and did not use it places his decision squarely in the realm of the myriad tactical decisions counsel must make during a trial, and which courts, with the benefit of hindsight, should not second-guess.

5. Countering Prosecutorial Theatrics

260

During cross-examination, the prosecutor asked Marshall if he was wearing his wedding ring because he had been instructed to. Counsel objected, and the objection was sustained. Marshall volunteered the fact that he had had to surrender the ring when he was arrested, but, due to different policies in different locations, was now allowed to wear the ring. The prosecutor then asked whether the ring was a reflection of how much he loved and missed his wife, and, upon receiving an affirmative answer, asked why Maria's ashes were "still in a brown cardboard box at the funeral home in a desk —." Cross-Examination of Robert Marshall, February 26, 1986, St. Ex. 29T at 84. Counsel objected, and after a discussion at sidebar, the objection was overruled. Id. at 84-89. Marshall claims that counsel had avenues open to him to neutralize the effect of the prosecutor's questioning, and he suggests some options to us. But, as Strickland emphasizes, a trial does not have to be perfect to be constitutionally fair. Because reviewing courts are not seeking to enforce optimal attorney performance, they are not to question whether there was a "better" response possible — only whether the attorney's response was constitutionally adequate. The New Jersey Supreme Court recognized that counsel did attempt to neutralize the testimony, by eliciting from one of Marshall's sons the family's plans to travel to Florida together to bury Maria, plans that had to be postponed when Marshall was arrested. Marshall II, 690 A.2d at 74 . It concluded that the topic was "peripheral" and further testimony "would not have materially aided defendant's chances of being acquitted of the charged offenses." Id. Such a conclusion is reasonable, and our review is only as to reasonableness. Even were we to disagree with the New Jersey Supreme Court's conclusion, however, we would still hold that Marshall has not demonstrated performance that falls below the threshold set by Strickland .

261

6. Counsel's Non-Adherence to His Stated Strategy

262

Marshall claims — without citation to the record — that his trial counsel "testified that his trial strategy was to present character evidence" yet, for the witnesses that were called, he did not always interview them prior to their taking the stand, did not establish a proper foundation for their testimony, and did not elicit from them all of the information that should have been elicited. App. Br. at 115-16. The New Jersey Supreme Court considered Marshall's claims here in conjunction with other "miscellaneous claims" of ineffectiveness, and concluded that "[i]rrespective of whether those and analogous pretrial omissions by counsel constituted deviations that fell below an objective standard of reasonableness, we are convinced that defendant cannot demonstrate that counsel's alleged pretrial deficiencies either individually or collectively had the capacity to change the result of the proceeding." Marshall II, 690 A.2d at 87 . The claim Marshall raises has two aspects to it: first, were the witnesses in question adequately prepared to testify; and second, were they adequately prepared if, indeed, the character testimony was critical to his trial strategy. If the witnesses were not critical to counsel's trial strategy, but were called merely to provide limited testimony, Marshall could not realistically satisfy either prong of Strickland . Thus, the critical question to assessing the reasonableness of the New Jersey Supreme Court's conclusion is: Were the witnesses in question vital to counsel's trial strategy?

263

The witnesses Marshall called who did provide — or might have been expected to provide — character testimony included his sons, his sister, and other members of the insurance industry and the Toms River community. As noted above, the character testimony elicited consisted primarily of brief affirmations that Marshall had a reputation for being law-abiding and a man of integrity, and that he was an excellent insurance salesman.

264

At the limited remand hearing, Marshall's trial counsel explained why he chose from the outset to have Marshall testify, distinguishing Marshall's situation from one in which the defendant had an extensive criminal history, or one where the State's case was particularly weak — both of which were situations where a defense attorney would not want to commit the defendant to taking the stand from the outset. With Marshall, in contrast, the trial was expected to be lengthy, and counsel cited to jury studies that stated that eighty percent of a panel make up their mind preliminarily after the opening statements. Direct Testimony of Glenn Zeitz, December 1, 1994, St. Ex. 6PCT at 11-13. He then stated:

265

In this particular case, the way we defended this case, was to let the Jury know right from the beginning that there was going to be character testimony. I wanted to personalize my client. There's other references in the opening that deal with his background, the charitable things that he did, there were — there was a reference to character testimony that they were going to hear from. And, in essence, what we were trying to accomplish in this case was to wait and have the Jury wait in their own minds until they heard his version, to give him an opportunity to tell them what happened here, rather than make up their minds preliminarily, notwithstanding the advice that we knew they'd be getting from the trial Court.

266

Id. at 13. It cannot reasonably be inferred from counsel's explanation as to why he felt it important to tell the jury from the outset that Marshall would testify what significance he accorded to any of the other witnesses' testimony. Because their testimony accounted for only a tiny portion of the trial testimony adduced, and because Marshall has not demonstrated to us that any of the testimony that would have been provided would have any bearing at all on the jury's determination of guilt or innocence, it was not unreasonable for the New Jersey Supreme Court to conclude that ill preparation as to those witnesses, if it were found, would not be prejudicial to Marshall.

267

7. Counsel's Lack of a Coherent Defense Theory.

268

Although Marshall characterizes this claim as a failure to develop a coherent defense theory, his claim above would indicate that he thought that trial counsel had, indeed, formulated a coherent theory, one that focused on portraying Marshall as a good man, who would succeed by communicating directly with the jury. Further, the specific tactical decisions that Marshall cites in support of this contention 40 amount to little more than a listing of things that, with the benefit of hindsight, counsel might have handled differently.

269

8. Counsel's Failure to Present Certain Evidence

270

All of the examples cited to us are tied to Marshall's understanding of other parts of his defense that have been rejected by the New Jersey Supreme Court. For example, Marshall criticizes counsel for not contradicting a trooper's statement at trial that Marshall had reported a flat tire, with the report the trooper prepared, indicating that the tire was half-flat. This is addressed by the reasoning in 2, above. 41

271

Marshall also criticizes trial counsel for a witness's exclusion. Counsel had put Henry Tamburin's name on the witness list originally, then informed the court that his name was not on the list, and did not correct the error until he called Tamburin to the stand, at which point the court sustained the prosecutor's objection and limited the scope of the witness's testimony. Because Tamburin would have testified about the use of "comps" at casinos, and the gambling system he had taught to Marshall, Marshall now finds it "baffling in view of the voir dire he had requested on comp abusers" that he did not ensure that Tamburin was able to testify. Had he testified, however, all that would have become clear is what Marshall's gambling strategy was. As noted above, the issue before the jury was whether Marshall's perception of his financial circumstances was such that it could prompt a desperate act; explaining how he gambled would not address that issue, and thus the New Jersey Supreme Court reasonably concluded the omission of the testimony was not prejudicial.

272

Marshall also faults trial counsel for not having Marshall's secretary testify that Marshall had sent information on financial products to Robert Cumber. The jury knew that Marshall had met Cumber at a party in New Jersey, 42 and that Marshall had sent him information on financial products. They also knew that Cumber introduced McKinnon and Marshall. But Marshall is asserting that the secretary's verification that Marshall did send the financial records "would have rebutted the inferences that the many calls Marshall placed to Cumber were to locate McKinnon to hasten his wife's murder." App. Br. at 120. Even assuming that trial counsel had adduced testimony verifying that Marshall sent documents to Cumber, that testimony would not serve to verify that the numerous phone conversations over the course of the summer concerned those documents; the jury would still be compelled to determine whether it believed Marshall's or McKinnon's testimony as to the purpose of the telephone calls. Thus, the New Jersey Supreme Court was not unreasonable in determining that Marshall could not have been prejudiced by the failure to call Marshall's secretary.

273

Marshall also faults the New Jersey Supreme Court for evaluating each of counsel's alleged failures individually, characterizing it as the "divide-and-conquer approach of ruling on each individual Strickland error rather than assessing the joint prejudice from all the ineffective-assistance claims." App. Br. at 120. Marshall cites to [Terry] Williams v. Taylor, 529 U.S. 362, 397-98 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000), for this proposition. We think that Marshall misapprehends the guidance of the United States Supreme Court. In Williams , the United States Supreme Court found fault for "failing to evaluate the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding — in reweighing it against the evidence in aggravation," thus erroneously concluding that Williams had not been prejudiced by his counsel's errors at the sentencing phase. Id. But here, Marshall has not placed before us anything that would singly, or in combination, have had a reasonable probability of affecting the outcome of his trial. The New Jersey Supreme Court reasonably concluded precisely that. "[F]ew of the allegations of ineffective assistance at trial involved significant deficiencies in the quality of counsel's representation, and those that did were not material to the trial result." Marshall II, 690 A.2d at 90 .

274

9. Failure to Object or Seek Curative Action

275

Marshall alleges that trial counsel did not object nor seek curative action when inadmissible testimony was admitted, or when the prosecutor engaged in misconduct. He also put "irrelevant, prejudicial facts before the jury." App. Br. at 120. The New Jersey Supreme Court reasonably determined that Marshall could not demonstrate ineffectiveness under Strickland as to these alleged faults of counsel.

276

While we examine more fully the circumstances under which an evidentiary hearing is required below, we do conclude here that neither the New Jersey Supreme Court nor the District Court was required to hold an evidentiary hearing to develop the above claims of ineffectiveness at the guilt phase.

F. Cumulative Error

277

Marshall contends that even if we do not find the errors in his trial 43 individually so egregious that we would grant the writ of habeas corpus, the errors of all kinds that have been recounted are so invidious and numerous that we ought to aggregate them and find that, in sum, the constitutional error was sufficient to grant the writ.

278

We addressed this issue in the habeas context in United States ex rel. Sullivan v. Cuyler, 631 F.2d 14, 17 (3d Cir.1980), recognizing that errors that individually do not warrant a new trial may do so when combined. 44 Here, even were we to cumulate all the claimed errors and superimpose them over the extensive trial proceedings, given the quantity and quality of the totality of the evidence presented to the jury, we could not conclude that the New Jersey Supreme Court unreasonably applied Supreme Court precedent or unreasonably determined the facts in making its ruling.

G. Penalty Phase Ineffectiveness

279

As we noted at the outset, counsel and the court discussed the procedures that would be followed in the penalty phase while Marshall was at the hospital, and the jury was at lunch. Within a few minutes of Marshall's return, at 1:45 p.m., the court convened the penalty phase.

280

THE COURT: Gentlemen, we're now prepared, I believe, to move on to the penalty phase of this matter. I did have a discussion with counsel in chambers regarding the procedure that we're going to follow, and before we place that on the record, are counsel in agreement that that is the procedure that will be followed?

281

ZEITZ: Yes, sir.

282

KELLY: Yes, sir, your Honor.

283

THE COURT: As I understand it, what will now occur is that I will now make the usual opening statement to the jury that is made in this proceeding. I believe that the law now is — I know that the law now is, expressly, that any evidence which was introduced in the trial can be considered as evidence for purposes of this proceeding. Given that, I understand that neither counsel intend to introduce any further evidence in this proceeding.

284

KELLY: That's correct, Judge.

285

ZEITZ: That's correct, Judge. I would like, at least, to have the record reflect that I've had an opportunity to speak with my client and discuss his right, if he desired, to call any witnesses with regard to the penalty phase of the proceedings, and it's his desire, and it is also my feeling, that we do not intend to call any witnesses at this stage of the proceedings. And we've had, I believe, an opportunity to discuss this, and this is his intention.

286

It's also based on the understanding that what we will do procedurally, is that Mr. Kelly and I will not make any opening statement to the jury at the penalty phase, but, in essence, what we will do is, I will make my summation arguments and then Mr. Kelly will make his to the jury.

287

I've also explained to my client, as part of this proceeding, which I think I should spread on the record, that the State, in its argument on the penalty phase, will be proceeding on one aggravating factor, and this is aggravating factor two as outlined in the notice of aggravating factors that was filed in this case at or about the time of the return of the indictment, which states that the defendant procured the commission of the offense by payment or promise of payment of anything of pecuniary value.

288

I've also explained to my client that there are two mitigating factors which I will be arguing to the jury at the penalty phase, number one — and I might add, Judge, that we did file, even though it was certainly premature, but we did file a notice of mitigating factors earlier in the case; specifically, that the defense will argue, number one, that defendant Robert O. Marshall has no history of prior criminal activity, and, I believe, I asked the Court in chambers to delete the word significant, because that seems to relate to a situation that where someone may have something — some blemish in their past, and the jury has to make some consideration as to whether or not that's significant or not, and I think the State is at least prepared to at least stipulate on the record that he has no history of prior criminal activity and, therefore, that, in essenc

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