# State v. DiFrisco > Supreme Court of New Jersey · July 27, 1994 · 137 N.J. 434 URL: https://www.frixlaw.com/law-library/cases/9701250 ## Case - **Full name:** State of New Jersey, Plaintiff-Respondent, v. Anthony Difrisco, Defendant-Appellant - **Court:** Supreme Court of New Jersey - **Decided:** July 27, 1994 - **Citations:** 137 N.J. 434; 645 A.2d 734; 1994 N.J. LEXIS 637 - **Precedential status:** Published - **Opinion:** Dissent by Handler - **Judges:** Garibaldi, Handler - **Cited by:** 420 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9701250 ## How later opinions describe it (automated extraction) - explaining that to establish the prejudice prong of the Strickland/Fritz test to set aside a guilty plea based on IAC, a defendant must show "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insist… - finding introduction of evidence about prior car theft to be harmless. “Considering that the defendant had confessed to the execution-style killing of [the victim], the fact that he stole a car, committed a few traffic violations and yelled at his mother had very little tenden… - holding that in order to win reversal, defendant must show that “a juror who was partial” sat as a result of a loss of a peremptory challenge, and noting that several federal circuits and twenty-two states have held “that a peremptory challenge is not a fundamental constitutio… - holding that in order to establish the Strickland prejudice prong to set aside a guilty plea based on IAC, a defendant must show "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going … - holding that in order to win reversal, defendant must show that "a juror who was partial" sat as a result of loss of a peremptory challenge, and noting that several federal circuits and twenty-two states have held "that a peremptory challenge is not a fundamental constitutiona… ## Opinion text HANDLER, J., dissenting. Today’s decision marks the second time this Court has reviewed a sentence of death imposed on Anthony DiFriseo. This is the fourth time the Court has sustained the imposition of the death penalty. Regretfully, its decision does nothing to clarify the confusion or to harmonize the inconsistencies of the Court’s capital-murder jurisprudence. Indeed, the opposite is true — the implausibility and incomprehensibility of the Court’s treatment of capital-punishment only worsens. The Court continues to strain to achieve the impossible: a constitutionally-valid administration of the death penalty. See State v. Ramseur, 106 N.J. 123 , 524 A.2d 188 (1987) (Handler, J., dissenting). DiFriseo was tried, convicted, and sentenced to death for the 1986 contract killing of Edward Potchner. DiFriseo confessed to his part in the killing of Potchner after being stopped by police for reckless driving. On the advice of counsel, DiFriseo pled guilty to *509 purposeful and knowing murder. On the strength of his confession alone, defendant was sentenced to death. Although affirming his conviction, this Court vacated his death sentence and remanded for a new penalty trial. State v. Di Frisco [I], 118 N.J. 253 , 571 A.2d 914 (1990). Prior to the start of his second penalty trial, DiFrisco twice sought unsuccessfully to withdraw his guilty plea. Following the second penalty trial, defendant was again sentenced to death. On this appeal, defendant points to several egregious errors in his second penalty trial. To affirm defendant’s sentence the Court explains away serious errors. The Court’s failure to assign error where it is clearly warranted is troubling enough, but even more disturbing is the utterly unconvincing manner in which the Court reasons to its conclusions. I The most arresting of the errors occurring in DiFrisco’s penalty trial arises out of the confusion that surrounded the jury’s aborted attempt to return a verdict. The record plainly reveals that the trial court failed to exercise the proper degree of control and direction in its handling of the now-disputed verdict, and, as a result, defendant irretrievably lost the opportunity to have his life spared through the return of a non-unanimous verdict. A. Consonant with our decisions in State v. Hunt, 115 N.J. 330, 382-83 , 558 A.2d 1259 (1989), and State v. Ramseur, 106 N.J. 123, 301 , 524 A.2d 188 (1987), the trial court instructed the jury that a non-unanimous verdict resulting in a life-sentence was an entirely appropriate outcome. In addition, the verdict-sheet handed to the jury set forth the possibility of a non-unanimous, life verdict. After four hours of deliberation, over two days, the jury, without inquiry from the court, indicated that it had reached its verdict. *510 After the jury had been assembled in the court room, the trial court asked the foreman, “Mr. Foreman, the jury has reached a verdict. Is that correct?” The foreman responded, “Yes.” The court then asked, “Are the verdicts unanimous?” The foreman responded, “No, its not.” As is customary, the court then proceeded to inquire about the jury’s findings with respect to the particularized aggravating and mitigating circumstances. The court began to ask specifically whether the jury had found unanimously the “murder for hire” aggravating factor. Instead of responding to the question, the foreman stated, “We have to go back.” Additionally, juror 9 blurted out, “We have to go back, we didn’t complete the entire list. We didn’t unanimously decide on that.” Assuming, quite reasonably given the context, that the jury had failed to complete the verdict form, the court sent them back with the instructions, to “[f]ill in the verdict form. Just remain, we’ll wait.” After the jury retired with instructions to complete the verdict sheet, the trial court apparently began to have second thoughts. Although we cannot know the precise course of the court’s reasoning, apparently the court believed that it should have told the jury to continue deliberating. The court made the following statement: In reconsidering my suggestion that the jury go back and fill out the verdict form, I think that’s not in accordance with State v. Ramseur, 106 N.J. 123 [ 524 A.2d 188 ] or State v. Hunt, 115 N.J. 330 [ 558 A.2d 1259 ]. The jury indicated that their verdicts were not unanimous. If that’s referring to the ultimate verdict, they have only been out about four-and-a-half hours all together and its clear to me under Hunt and Ramseur that at the very least where they have not sent out a note indicating they were deadlocked, further deliberations should take place. So I’m inclined to bring them out and tell them that. When it called the jury back into the court room, the court posed the confused state of affairs as follows: Mr. Foreman, my firs.t question to you, I guess, was whether the jury had reached a unanimous verdict and in asking that question I intended to be referring to the last page, namely the decision of the jury. You had indicated, I am not sure whether my statement or question was clear, but you had indicated that the jury had not reached a unanimous agreement. With respect to the situation as it stands now, the question would be, whether you had deliberated sufficiently and had reached a genuine stalemate unth respect to the question of what the verdict should be or whether further deliberations would be productive. So I want you to *511 return to your deliberations and consider that Okay, you may return to your deliberations, (emphasis added) Having asked the relevant question, the court did not pause for an answer. It admitted the possibility that the jury had in fact intended to return a non-unanimous verdict, but having decided that such a verdict would not be accepted anyway, the court sent them back to deliberate farther. An hour and a half later, the jury returned a unanimous, death verdict. Further insight into the court’s uncertainty is gleaned from its statements denying defense counsel’s motion to set aside the capital verdict: The transcript is absolutely clear that the jury did not indicate an inability to reach a verdict. In fact what the jury said was they had reached a verdict. When I asked whether the verdicts were unanimous, they said no. But, of course, that was an ambiguous statement because of all the — because of the writings on the verdict form indicated partial votes with respect to all the mitigating factors and could not necessarily agree with respect to the aggravating factors. When I asked them whether they unanimously found the first aggravating factor, their response was, not me, their response was, "Mr. Foreman, we have to go back.” They’re the ones who wanted to go back and the only question I put to them was hardly coercive of getting a verdict. The only question I put to them was, “Would you let me know whether you had reached the final verdict or a final inability to reach a verdict and let me know.” The next thing they do is reach a verdict. This doesn’t come close to an inappropriate conduct under Ramseur or Hunt therefore, the motion is denied. The inescapable fact is that the jury’s initial attempt to return a verdict was mishandled by the trial court. B. I have no doubt that the jurors thought that they had reached a verdict. They reported from the jury room to the court that they had done so, and responded unequivocally in the affirmative to the court’s question, “The jury has reached a verdict. Is that correct?” If, as the majority suggests, the jury had not reached a verdict, ante at 485, 645 A.2d at 760, then their actions indicate that they fundamentally misunderstood the proper procedures to be followed in their deliberations and in reporting their decision. *512 In addition, I have no doubt that some aspect of the jury’s intended verdict was non-unanimous. In response to a direct question, the foreman said so. No one knows, for sure, whether the non-unanimous portion was the final, overall verdict, a finding on an aggravating factor, or a finding on a mitigating factor. The trial court never ascertained the locus of the non-unanimity. The jury clearly had not complied exactly with the trial court’s original instructions. The foreman and juror nine’s statement, “We have to go back,” was an indication that something had been left undone. The jury could have fully deliberated on all the issues, reached an overall non-unanimous determination, but could have merely neglected to complete the ministerial act of filling in the verdict sheet. At least initially, that is what the trial court thought had happened. It returned the jury to the deliberation room to fill out the verdict sheet. Juror nine’s statement could lead one to conclude that the jury had not deliberated on the murder-for-hire aggravating circumstance. If that is so, one must also conclude that the jury, in returning to the courtroom to announce its verdict totally misunderstood the court’s instruction regarding the requirements needed to return a final verdict, i.e., the jury would have had to find and weigh the aggravating and mitigating factors before reporting a verdict. Even if one accepts the majority’s assessment of the jurors’ statements, “We have to go back” as a request to return, not simply to record their final verdict on the verdict sheet but to continue their deliberations, ante at 484, 645 A.2d at 760, and thus an indication that the jury was not deadlocked, that interpretation does not overcome the apparent confusion of this jury over how to deliberate and report its findings. In sum, the record reveals that either the jury sought to return a final non-unanimous verdict but neglected to fill out the verdict sheet and were prevented from doing so by the trial court, or they incorrectly thought they should report a verdict even though it was not final, thus failing to comply with the steps necessary to *513 reach a verdict in a capital cause. We will never know which scenario is accurate. Yet either requires reversal. The majority, however, seizes on one set of those possible explanations to ground its conclusion that no harm was done to defendant despite the confusion surrounding the jury’s initial verdict. In so doing, the majority unfairly resolves all doubt in favor of the State. That simply is not tolerable in any criminal matter, let alone a capital case. Too much is at stake for the Court to grasp onto but one of several explanations concerning what occurred. Moreover, the explanation on which the majority does rely is unconvincing. It is no more than conjecture. The key to the entire question, according to the majority, lies in the jury’s request to return to its deliberation as evidenced by the foreman’s and juror nine’s statement to the court, “We have to go back.” Ante at 484, 645 A.2d at 760. The majority concludes, “the foreman’s response ... was most likely an indication of the non-unanimity of the jurors with respect to one of the aggravating factors and many of the mitigating factors.” Ibid, (emphasis added). On that highly strained and selective reading of the jurors’ statements, the majority hangs all its legal analysis and attempts to distinguish both Ramseur and Hunt . In Ramseur , the decision of this Court that unqualifiedly established the legitimacy of a non-unanimous life verdict in a capital case, the jury sent a note to the trial court stating, “Jury unable to reach a unanimous decision. Suggestions please.” 106 N.J. at 301 , 524 A.2d 188 . The Court determined that the phrase “Suggestions please” indicated that the jury had not reached a final non-unanimous verdict. Id. at 302, 524 A.2d 188 . The Ramseur Court analogized the situation before it to Jones v. State, 381 So.2d 983 (Miss.) cert. den., 449 U.S. 1003 , 101 S.Ct. 543 , 66 L.Ed.2d 300 (1980), in which the jury sent a note stating, “We the jury cannot come to a unanimously [sic] decision — What shall we do?” Ramseur, supra, 106 N.J. at 303-04 , 524 A.2d 188 . The majority suggests that the juror’s statements “We have to go *514 back” are the functional equivalent of “Suggestions please” or “What shall we do?” That assertion is implausible. First, this jury, unlike the jury in Ramseur , had been explicitly instructed that a final non-unanimous, life verdict was perfectly acceptable. 1 Second, this jury, unlike the jury in Ramseur , did not announce that it was dead-locked but rather that it had reached a verdict. Finally, as noted, the spontaneous statements “We have to go back” are susceptible of several interpretations, the least plausible of which is the majority’s. No one knows what the jurors meant because the trial court did not ask. 2 The majority also attempts to distinguish Hunt by selectively reading “We have to go back” as an expression of a desire to continue deliberating on the ultimate, life or death, issue. Ante at 487, 645 A.2d at 762. The majority straight-facedly asserts that “We have to go back” indicates that “this jury was positive that it wanted to continue its work,” and therefore “the court was under no obligation to inquire whether the jurors had reached a final impasse because obviously they had not.” Ibid. The majority does not satisfactorily explain why the “work” the jury sought “to continue” was not the filling out the verdict sheet to record their non-unanimous verdict. It overlooks the plain fact that the trial court itself thought that that was a clear possibility. In denying defense counsel’s motion to vacate the capital verdict, the court claimed that the only question it had posed to the jury was whether they had reached a final non-unanimous verdict or wheth *515 er they needed more time to deliberate. The jury’s disposition certainly was not “obvious” to the trial court. How can it be so to the majority? Common sense and fairness dictate that a court has a duty to inquire whether a jury has reached a final non-unanimous verdict whenever there is ambiguity. Hunt, supra, 115 N.J. at 380 , 558 A.2d 1259 (“[T]he trial court should have asked whether the jury’s note indicated its final verdict or whether the jury wanted more time to deliberate.”) (citing Lowenfield v. Phelps, 484 U.S. 231, 240 , 108 S.Ct. 546, 552 , 98 L.Ed.2d 568, 579 (1988).) The majority’s assertion that no ambiguity clouded this situation is a wishful interpretation that is wholly unfair to defendant. C. Even accepting the majority’s own explanation of what happened, this case reveals a jury that badly misunderstood the proper form for its deliberation. According to the majority, this jury precipitously and erroneously reported to the court that it had reached a verdict when in fact it had not. Ante at 485, 645 A.2d at 760 (“What is clear ... is that the jury did not view itself as having reached one of the three permissible verdicts....)” According to the majority (and arguably juror nine) this jury was prepared to render a verdict without reaching a unanimous decision on the “murder for hire” aggravating factor. Ante at 485, 645 A.2d at 761 (“[T]he foreman’s response ... was most likely an indication of non-unanimity of the jurors on one of the aggravating factors and many of the mitigating factors.”). Further, according to the trial court, this is a jury that disregarded instructions to deliberate on the question of whether they had reached a final non-unanimous verdict or whether they needed more time, and proceeded to deliberate on the ultimate issues. Almost as an after-thought, the majority acknowledges that “it would have been better if the court had explored with the jury the reason for its own request to return to the jury room.” Ante at 485, 645 A.2d at 761. Yet this is the same jury which, according to the majority, *516 needed no supplemental instruction after its aborted attempt to return a verdict. Ante at 489, 645 A.2d at 762. The majority’s mistake is in focusing exclusively on the coercive propensity of the trial court’s interaction with the jury after its attempt to return some form of a verdict. The proper focus should be on the apparent confusion of the jury and the total absence of any guidance for the jury through supplemental instructions. Faced with an obviously confused jury, the trial court allowed them to return to deliberations without additional instructions. The majority insists that the trial court did “nothing that was coercive.” In that, the majority is only partially correct: the trial court did nothing. To vindicate the constitutional norms that legitimate the imposition of a death sentence, both our Capital Murder Act and the decisions of this Court lay considerable stress on the quality of the deliberative environment in which a capital jury makes its life-and-death determinations. The deliberative environment of a capital jury is carefully structured. The maintenance of that environment, including the giving of clear and complete instructions and assessing the jury’s compliance with those instructions, is among the most challenging tasks facing trial courts in capital cases. To no small degree the constitutionality of a given death sentence depends upon the quality of the jury’s deliberative environment. See State v. Collier, 90 N.J. 117, 122 , 447 A.2d 168 (1982) (noting a defendant’s right to a “jury verdict free from untoward interference from any source, including the court”). The indispensable mechanism for creating that environment is the trial court’s jury instructions. Likewise, the primary mechanism for salvaging that environment when it has evidently broken down is the prompt use of supplemental jury instructions. Although the use of a supplemental charge is fraught with potential danger, see State v. Czachor, 82 N.J. 392 , 413 A.2d 593 (1980) (detailing the coercive propensities of the so-called Allen-charge, from Allen v. United States, 164 U.S. 492 , 17 S.Ct. 154 , 41 L.Ed. 528 (1896)), the *517 failure to re-instruct an obviously confused jury is equally risky. The failure to provide a needed supplemental charge can be fatal to the integrity of a capital jury’s deliberations. When a jury is the final sentencer, “it is essential that the jurors be properly instructed regarding all facets of the sentencing process.” Walton v. Arizona, 497 U.S. 639, 653 , 110 S.Ct. 3047, 3057 , 111 L.Ed.2d 511, 528 (1990). Among the more prominent complicating features of a capital penalty trial is the possibility of a non-unanimous verdict. The non-unanimous, life-verdict option, provided by the Legislature, see N.J.S.A. 2C:3c(3)(c), reflects the heightened concerns for fairness and the need for reliability in a jury’s capital-sentencing determinations. “ ‘As long as one juror believes that the aggravating factors do not out-weigh the mitigating factors, the jury must not impose the death penalty’.” Hunt, supra, 115 N.J. at 383 , 558 A.2d 1259 (quoting Mills v. Maryland, 486 U.S. 367, 374 , 108 S.Ct. 1860, 1865-66 , 100 L.Ed.2d 384, 393-95 (1988)). Accordingly, we have held that jurors must be informed of the consequences of their deliberations, including the consequences of their inability to agree. Ramseur, supra, 106 N.J. at 312 , 524 A.2d 188 . Moreover, we have held that a deadlocked jury that indicates that its non-unanimity is not a final verdict should be reminded of its option of returning a non-unanimous verdict before being dispatched to deliberate anew. Hunt, supra, 115 N.J. at 385 , 558 A.2d 1259 . Even accepting the majority’s highly implausible reading of the jury’s aborted attempt to return a verdict, i.e., that their non-unanimity was not an expression of a final non-unanimous verdict, ante at 485, 645 A.2d at 760, the fact remains that the trial court should have re-instructed the jury concerning its option to return a non-unanimous verdict. D. Because the trial court failed to ascertain whether the jury had reached a final non-unanimous life verdict, and because this Court *518 has no ability to divine which of several potential explanations of what happened is accurate, its conclusion that a non-unanimous verdict was not lost is pure speculation. Defendant’s death sentence cannot be based on guess-work, and must be reversed. Even if it were possible to determine conclusively that the jurors statements “We have to go back” indicated a desire to resume deliberation on the ultimate issues of life or death, the jury had manifested confusion over the most critical aspect of its responsibilities — reaching and returning a verdict. The trial court never cleared up the confusion or dispelled the ambiguity of the jury’s actions. The trial court’s failure to re-instruct this jury permitted defendant’s life to swing in the balance, and that failure is, itself, reversible error. II The majority rejects as harmless the trial court’s error in refusing to instruct the jury that defendant’s allocution could be considered in its deliberations about punishment. Ante at 480, 645 A.2d at 758. In so doing, the majority, although conceding defendant’s right to have the jury consider his allocution in its determination of mitigating factors, denies him the right to an instruction that would so inform the jury. More egregiously, the majority rationalizes its conclusion by resorting to harmless-error analysis, which substitutes the speculations of an appellate court for the reasoned consideration of a jury, and which is wholly inappropriate in the penalty phase of a capital case. During the trial court’s initial instructions to the jurors before opening statements, it advised them that their decision on the facts could be based only on “evidence as presented during the trial,” which the court defined as “the testimony of witness and such exhibits and documents as they may come into evidence.” At end of the presentation of evidence, after defendant had informed the court that he desired to exercise his right of allocution, the trial court again addressed the jury: *519 Members of the jury, under our law a defendant in a case such as this is entitled to what we call a right of allocution. It is not an exercise of testifying, it is a right to speak to the jury and I had explained to Mr. DiFrisco what the limits are with respect to that and his remarks will be within those limits. It will be a brief discussion to you. Please give him your attention. You may address the jury sir. (Emphasis added). Then defendant spoke: Thank you, your Honor. Ladies and gentlemen of the jury, I am deeply, deeply sorry for taking the life of Mr. Potcher. I’m equally sorry for his family as well as mine. I ask you and I plead with you to spare my life, not to give me the death penalty. Thank you. Thank you all. The prosecutor then sought a ruling from the court on whether counsel could comment on defendant’s allocution during summation. The trial court ruled that neither the prosecutor nor the defense counsel could comment on defendant’s allocution because it was not evidence. In the midst of the discussion of that issue, the topic of instructions on allocution arose in the following confusing colloquy. Court: It would follow from what you’re saying, wouldn’t it, that I should charge the jury with respect to [mitigating factor] 0, Anthony DiFrisco remains remorseful about killing Edward Potcher, that as a mitigating factor they may not consider his statement in allocution. 1st Def. Atty: Well, we object to that, Judge. We don’t believe that either. We think that that should be left — that you should not say you can’t consider the allocution. We would object to that. 2nd Def. Atty: I mean, I don’t think anything in addition to the allocution charge which says that, as I understand it, says it’s not evidence and the jurors will know that that’s not evidence and then it should be applied that way. There’s nothing more additional than the allocution charge we already discussed. Court: There is no allocution charge. 2nd Def. Atty: I’m sorry, reference to it in the charge. There’s nothing. The next day, the prosecutor then sought the limiting jury instruction the court had suggested, an instruction to the effect that defendant’s statements in allocution “cannot be used in finding a mitigating factor.” The trial court rejected the prosecutor’s request, saying: I’m certain that such a charge might undercut, in the Supreme Court’s view, the value of allocution. Therefore, I have decided and I hold that I will only deal with *520 it indirectly insofar as I tell them what evidence is; namely, sworn testimony which comes from the witness stand or exhibits in evidence. In the trial court’s charge to the jurors before they retired to deliberate, the court made no direct reference to defendant’s allocution. It did again remind the jury that their decision should be based only on testimony, only on evidence. You must decide these matters of fact, the weight of testimony of each witness, the credibility of each witness, the inferences to be drawn from a witness’ testimony and the ultimate conclusions about punishment to be reached upon all the facts. Your decision as to the facts must be based solely and exclusively on the evidence presented during the trial. That means the testimony, the sworn testimony of witnesses and such physical exhibits as have come into evidence. [A reasonable doubt] may arise from evidence or from a lack of evidence. The evidence to be considered by you includes that material presented by both sides at this trial; all of the witnesses, any testimony read and all the physical exhibits. You must decide the ease on the evidence. The trial court made clear to counsel (outside the hearing of the jury) its reasons for not charging the jury with respect to the allocution. It did not believe that the jury should be allowed to consider defendant’s allocution in support of any mitigating factor. It reasoned that “allocution is not testimony, thus it’s not evidence,” and the jury may consider only evidence, thus the jury may not consider the defendant’s allocution. As a consequence of that reasoning, it instructed counsel for both sides not to comment on defendant’s statements made in allocution. The majority concedes that the trial court erred. Because “defendant sought to prove his remorse as a specific mitigating factor, ... the jury may consider his allocution statement in determining whether he is, in fact, remorseful, or whether the defense has established any other mitigating factor.” Ante at 479, 645 A.2d at 757. Further, the Court acknowledges “[bjecause a *521 jury may consider defendant’s statement in allocution insofar as it affects any mitigating factors presented,” the trial court should have instructed the jury as such. Ante at 479, 645 A.2d at 757. See Capital Causes Committee, Bench Manual J(2)-40 (“If the defendant exercises his right to allocution, the judge should instruct the jury that it may consider what the defendant stated insofar as it impacts on one or more of the mitigating factors.”). Nevertheless, the Court concludes that the error was harmless, and because, the right of allocution is not “constitutional in dimension,” the failed instruction was not “ ‘clearly capable of producing an unjust result’.” Ante at 480, 645 A.2d at 758. I strongly disagree. Allocution refers to the right of a criminal defendant to deliver an unsworn statement to the jury. This Court has held that such statements should be limited in scope to allow a jury to consider that defendant’s are “ ‘individuals] capable of feeling and expressing remorse and of demonstrating some measure of hope for the future * * *.’ ” State v. Zola, 112 N.J. 384, 430 , 548 A.2d 1022 (1988) , cert. denied, 489 U.S. 1022 , 109 S.Ct. 1146 , 103 L.Ed.2d 205 (1989) (quoting J. Thomas Sullivan, The Capital Defendant’s Right to Make a Personal Plea for Mercy: Common Law Allocution and Constitutional Mitigation, 15 N.M.L.Rev. 41, 41 (1985)). Although “the right of allocution [is] not in itself a constitutional right,” id. at 429, 548 A.2d 1022 , the Court has held that it is a common-law right of the criminal defendant. Id. at 428, 431-32 , 548 A.2d 1022 . ' “[Wjhatever the Constitution permits,” this Court remarked in Zola , “it bespeaks our common humanity that a defendant not be sentenced to death by a jury ‘which never heard the sound of his voice.’ ” 112 N.J. at 429-30 , 548 A.2d 1022 (quoting McGautha v. California, supra, 402 U.S. 183, 220 , 91 S.Ct. 1454, 1474 , 28 L.Ed.2d 711, 733 (1971)). At the same time, the Court made clear that there must be limitations on what a defendant can say, holding: “He would not be permitted to rebut any facts in evidence, to deny his guilt, or indeed, to voice an expression of remorse that contradicts evidentiary facts.” Id. at 430, 548 A.2d 1022 . *522 Thus, a defendant’s allocution is not testimony in the normal sense but is nonetheless relevant to the jury as they make determinations with regard to mitigating factors and ultimately their overall determination. The majority, as noted, fully acknowledges the propriety of such an instruction. However, it gravely underestimates the need for such an instruction. The need for such an instruction is obvious. That need, however, becomes acute when other instructions create an impression that the jury cannot consider the defendant’s statements. See Booth v. State, 327 Md. 142 , 608 A.2d 162, 180 , cert. denied, — U.S.-, 113 S.Ct. 500 , 121 L.Ed.2d 437 (1992). Here, the trial court never directly told the jury they could not consider defendant’s allocution, rejecting such a limiting instruction for fear it would be error. Nevertheless, an attentive and discerning juror could have thought that was the court’s view. The trial court told the jury they could consider only testimony, and, that defendant’s statement was not testimony. The only logical conclusion a conscientious juror could draw was that the jury could not consider defendant’s allocution. The rulings of the trial court and the limited presentation to the jury created the distinct risk that the jury would not consider defendant’s allocution as a circumstance bearing on mitigation. To cure that risk, which arose because of the trial court’s repeated emphasis on “evidence” and “testimony,” the court should have pointedly and directly instructed the jury that it could consider defendant’s statement in allocution. Given that context, I find it difficult to conclude that such omission is harmless. The Court’s analysis on this point is unconvincing and indicative of the futility of applying conventional harmless-error analysis to penalty-trial proceedings. In finding the error harmless, the Court states: The failure to give instructions did not in any way prohibit the jury from considering defendant’s allocution statement as an indication of his remorse, which is the only mitigating factor it could have affected. Although the court advised the jury that the evidence it could consider in its deliberations consisted of sworn testimony and exhibits, later in the charge the trial court made clear that that *523 evidence included all “material” presented by both sides at this trial. The court also advised the jury that the mitigating factors listed on the verdict sheet were non-exclusive. Moreover, continued remorse for the victim was listed in the verdict sheet as a mitigating factor. Still, eleven jurors did not find that mitigating factor. [Ante at 480, 645 A.2d at 758.] The problematic nature of the Court’s analysis is self-evident. The Court’s harmless-error determination is driven by the unwarranted assumption that the jury understood the proper relationship between defendant’s allocution and the finding of the “remorse” mitigating factor. Nothing supports that assumption. The Court relies on the fact that eleven jurors rejected the “remorse” factors as support for the proposition that the failure to properly instruct this jury was harmless error. But those eleven jurors made their determination without proper instruction. The fact remains the Court cannot predict the likely effects the failure to instruct may have had on the jury. In State v. Marko Bey, 137 N.J. 334, 397 , 645 A.2d 685, 716 (1994) (Handler, J., dissenting), I argued that harmless error analysis in a penalty trial of a capital case was inappropriate. Id. at 415 , 645 A.2d at 725 . At the penalty-trial of a capital case, jurors are engaged in a delicate process of identifying and weighing several factors. It is virtually impossible to reconstruct that process after it has been completed. Therefore “ ‘predicting the reaction of the sentencer ... on the basis of a cold record is a dangerously speculative enterprise’.” Id. at 416 , 645 A.2d at 725 (quoting Satterwhite v. Texas, 486 U.S. 249, 261 , 108 S.Ct. 1792, 1800 , 100 L.Ed.2d 284, 297 (1988)). The Court’s ruling with respect to defendant’s allocution is a telling example of that point. Here the Court relies on its assumption that the jury understood the relevance of defendant’s allocution. The Court simply has no basis, and no right, to make such an assertion. Further, the trial court ruled that neither party could comment on defendant’s allocution. Indeed, the court threatened that if defense counsel did argue to the jury that defendant’s unsworn statements supported the present remorse mitigating factor, then *524 the court would specifically instruct the jury that it could not consider defendant’s statement in allocution. The trial court’s ruling on comments during summation shared the same premise as it’s jury-instruction ruling — allocution is not evidence, juries can consider only evidence, therefore juries cannot consider allocution. Thus, not only was the absence of a jury instruction that the jury could consider the allocution error, but so was the court’s ruling that counsel could not comment on the allocution. The harmfulness of the errors and their clear capacity to produce an unjust result are essentially the same — both deprived the jury of the opportunity to consider the strongest available information in support of one of defendant’s mitigating factors. The Court is surely wrong when it traduces defendant’s simple effort, however feeble, to express his remorse to the persons who hold his fate in their hands. Ill Defendant contends that he pleaded guilty because he was assured by counsel that he would not be sentenced to death. He challenges his guilty plea on two bases. First, he asserts, his plea was not knowing and voluntary because, in light of his reliance on his attorney’s predictions, he did not understand its consequences, chiefly that he might actually receive the death penalty. Defendant also contends that he was denied effective assistance of counsel because of his attorney’s erroneous and misleading advice. The trial court determined that when defendant entered his guilty plea to capital murder, he understood that he could receive the death penalty. The court’s determination was based on the following findings: (1) DeLuca testified that he had never told DiFrisco that he absolutely would not receive the death penalty; (2) although DeLuca did testify that he had told DiFrisco that he “never thought for a second” that Judge Dios would impose the death penalty, that view was expressed as an opinion, not a promise or guarantee; (3) defendant signed forms and acknowl *525 edged in open court that he understood he could receive the death penalty; (4) the defendant admitted that third parties had told him, albeit well before the actual entry of the guilty plea, that death was a “realistic possibility;” and (5) defendant testified that he “got real nervous about pleading” — presumably that nervousness related to his fears about the possibility of receiving the death penalty if he did plead. We have recognized that “[t]he touchstone of any guilty plea is that it is voluntarily made by the defendant with an understanding of the nature of the charge as well as the consequences of the plea, and that there is a factual basis to support the plea of guilty for the crime or crimes.” State v. Warren, 115 N.J. 433, 442-43 , 558 A.2d 1312 (1989). The majority rests assured that defendant did not misunderstand those consequences, namely, the possibility that he would receive the death sentence. Ante at 454, 645 A.2d at 744 . The Court fails to recognize the crucial factor in assessing both the voluntariness of defendant’s plea and the effectiveness of defendant’s counsel: defendant’s attorney offered his client erroneous advice regarding the consequences of a guilty plea and allowed his client to rely on that advice although he had no prior experience in death-penalty litigation and had not undertaken a proper investigation. Moreover, the majority’s analysis is premised on a need for finality and administrative convenience that is wholly inappropriate to adjudication in a capital context. The Court accepts the State’s argument that at most defendant was relying on mistaken opinion, not mistaken fact, regarding the consequences of his guilty plea. Yet, it is not at all clear that the opinion expressed by DiFrisco’s attorney was not a mistake of fact or was not understood as a promise or assurance. The attorney believed, and effectively assumed, as a matter of fact, that there was a very small chance that his client would be sentenced to death if he pled guilty. The truth of the matter was that the attorney had no basis for making any prediction to his client, *526 especially one that was so critical to his client’s decision to enter a plea. The rationale for treating mistaken predictions differently from mistakes of fact or law is grounded in concerns about finality. In exercising its discretion the court must fairly and justly weigh the policy considerations which favor the finality of judicial procedures against the policy considerations which dictate that no man be deprived of his life or liberty except upon conviction after a fair trial or after the entry of a plea of guilty or its equivalent under circumstances which evidence that it was made truthfully, voluntarily and understanding^. [State v. Deutsch, 34 N.J. 190, 197-98 , 168 A.2d 12 (1961).] See also State v. Taylor, 80 N.J. 358, 362 , 403 A.2d 889 (1979) (holding that defendant’s “claim to be relieved of ... consequences [of guilty plea] must be weighed against the strong interests of the State in its finality”); Little v. Allsbrook, 731 F.2d 238, 242 (4th Cir.1984) (allowing withdrawal of pleas whenever defense attorneys seriously underestimated sentences their clients received “would seriously undermine the finality of judgments entered pursuant to plea bargains”). In the context of a capital prosecution, however, concerns about the finality of judicial judgments must be balanced against the categorical finality of the death penalty. See State v. Davis, 116 N.J. 341, 355 , 561 A.2d 1082 (1989) (recognizing that “finality” of capital cases elevates fairness concerns to “categorical imperative”). Moreover, concerns about abuse of such an exception that would allow the withdrawal of guilty pleas are exaggerated. Existing ethical restrictions would deter defense attorneys in capital cases from automatically predicting death sentences for their clients just to create grounds for withdrawing a guilty plea later. See A.B.A., Standards for Criminal Justice Standard 4 — 5.1(b) (1980). We have stated that “[i]f a defendant is misinformed about his or her eligibility for the death sentence, and if that misunderstanding is material to the plea, he or she cannot be deemed to have entered a guilty plea with a full understanding of the penal consequences.” State v. Kiett, 121 N.J. 483, 489 , 582 A.2d 630 *527 (1990). Thus, a guilty plea can be withdrawn when a defendant shows that the plea resulted from defense counsel’s mistake of law or fact. Ibid. Although pleas based on defense counsel’s “bad guesses” about sentencing generally ought not to justify the withdrawal of a guilty plea, in a capital context, allowing guilty pleas to be withdrawn when defense counsel mistakenly, assures a capital defendant that he or she will most likely not receive the death penalty is necessary to ensure that due process values essential to the constitutional imposition of a death sentence are achieved. On this record, I conclude that defendant has shown that he did not understand that a realistic and substantial possibility existed that he would receive a death sentence as a consequence of pleading guilty, and that his lack of understanding was a material factor in his decision to plead. See Kiett, supra, 121 N.J. at 489 , 582 A.2d 630 . Similar considerations should guide the Court when it considers defendant’s claim of ineffectiveness of counsel as a basis for withdrawing his guilty plea. In Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), the United States Supreme Court adopted a two-step analysis for determining when a criminal defendant was denied the Sixth Amendment right to counsel on account of ineffective assistance of defendant’s counsel. The defendant must first show that defendant’s counsel performed deficiently. The defendant must then show that the counsel’s deficient performance prejudiced the defense. Id. at 687 , 104 S.Ct. at 2064 , 80 L.Ed.2d at 693 . The Supreme Court has also held “that the two-part Strickland v. Washington test applies to challenges of guilty pleas based on [ineffective assistance of counsel].” Hill v. Lockhart, 474 U.S. 52, 58 , 106 S.Ct. 366, 371 , 88 L.Ed.2d 203, 210 (1985). To set aside a guilty plea based on those grounds, a defendant must show: (i) counsel’s assistance was not “within the range of competence demanded of attorneys in criminal eases,” Tollett v. Henderson, 411 U.S. 258, 266 , 93 S.Ct. 1602, 1608 , 36 L.Ed.2d 235, *528 243 (1973); and (ii) “that there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Hill, supra, 474 U.S. at 59 , 106 S.Ct. at 370 , 88 L.Ed.2d at 210 . A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Strickland, supra, 466 U.S. at 694 , 104 S.Ct. at 2068 , 80 L.Ed.2d at 698 . This Court has adopted the Strickland standard for determining ineffective assistance of counsel under the right to counsel provided in the New Jersey Constitution. See State v. Fritz, 105 N.J. 42, 58 , 519 A.2d 336 (1987). • The majority points out that the Court has refused to adopt a more stringent standard for reviewing ineffective assistance of counsel in capital cases, citing State v. Davis, 116 N.J. 341, 356 , 561 A.2d 1082 (1989). Ante at 457, 645 A.2d at 746 . The trial court concluded the attorney’s performance was “reasonable considering all of the circumstances” under the first prong of the Strickland/Fritz test. It ruled that a legally-signifieant difference exists “between an erroneous prediction of sentence ... [a]nd an indication that it is ... a done deal.” The trial court found that the defendant “understood that his lawyer had ... a very strong opinion, very firmly conveyed.” Nevertheless, although “the defendant knew it was [only] an opinion,” the trial court found that defendant relied on that prediction. The majority accepts the trial court’s conclusion that DeLuca’s ultimate prediction that the trial court would not sentence his client to death was reasonable, although it was wrong. Ante at 458, 645 A.2d at 746 . It contrasts this case with the relatively few decisions in which defendant did receive ineffective assistance of counsel based on the erroneous advice on sentencing questions. Those decisions allowed defendants to withdraw guilty pleas based on ineffective assistance of counsel claims because counsel either made mistakes of law resulting in a grossly misinformed defendant, O’Tuel v. Osborne, 706 F.2d 498, 500 (4th Cir.1983); Strader v. Garrison, 611 F.2d 61, 63-65 (4th Cir.1979); Hammond v. *529 United States, 528 F.2d 15, 18-19 (4th Cir.1975), or intentionally misled the defendant, Napper; see A.B.A. Standard on Criminal Justice Standard § 4-5.1(b) (1980). The Court fails to explain why DeLuca’s insistence that a relatively slight possibility of a death sentence existed did not grossly misinform defendant. There is virtually no indication that the attorney undertook any investigation of the likelihood of defendant receiving the death sentence. The trial court further found that DeLuca’s “investigation was essentially limited to reviewing the discovery provided by the State, which was a substantial amount of discovery, listening to the New York police tape [defendant’s confession], and interviewing the client.” Nevertheless, the court concluded that defendant had not shown that “counsel failed to make a reasonable decision with respect to whether further investigation was necessary.” Because the case against DiFrisco “was so overwhelming,” according to the trial court, DeLuca had acted within the range of professional competence in limiting his trial preparation to review of the State’s discovery and doing no additional independent investigation. Clearly, defense counsel had a duty to make “‘reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’ ” State v. Savage, 120 N.J. 594, 618 , 577 A.2d 455 (1990) (quoting Strickland, supra, 466 U.S. at 691 , 104 S.Ct. at 2066 , 80 L.Ed.2d at 695 ). Under that reasonableness standard, DeLuca should have done more to investigate the sentencing predilections of Judge Dios, and he could have consulted with experienced capital defense counsel. Minimally, he should have explained that he had little, indeed, almost nothing, to go on in suggesting that only a small possibility existed that he would receive the death sentence. The recklessness of his prediction without bases was sufficiently unreasonable to constitute deficient performance, particularly for an attorney representing a defendant accused of a capital crime. See Davis, supra, 116 N.J. at 356 , 561 A.2d 1082 (noting that expectations of expertise are higher for capital defense counsel). *530 DeLuca’s own testimony suggests that his performance falls short of the expectations that this Court has required of attorneys representing defendants eligible for the death penalty. Davis, supra, 116 N.J. at 356 , 561 A.2d 1082 (“We expect capital defense counsel to have an expertise regarding the special considerations present in capital cases.’.’). DeLuca had never before represented a capital defendant, had never tried a case before the judge before whom he was about to appear, but he nevertheless assured his client in strong terms that if his client pled guilty, he would not receive the death penalty. That bespeaks a brazenness and imprudence poorly suited for the delicate and serious task of capital defense representation. The Court refuses to acknowledge that the Strickland/Fritz standard does not serve to address the heightened concern for fairness that must predominate in a capital proceeding. Davis, supra, 116 N.J. at 356 , 561 A.2d 1082 . I remain convinced of the wisdom of Justice Marshal, who dissenting in Strickland , stated: The importance of the process of counsel’s efforts, combined with the severity and irrevocability of the sanction at stake, require that the standards for determining what constitutes “effective assistance” be applied especially stringently in capital proceedings. [ 466 U.S. at 715-16 , 104 S.Ct. at 2079 , 80 L.Ed.2d at 711-12 .] This case underscores the need to require counsel whose skills are commensurate to the herculean task of defending a person charged with capital murder. Defendant contends further that whether the withdrawal of his guilty plea is based on his inadequate understanding of its consequences or on the ineffectiveness of counsel, he should be entitled to a new trial on the issue of innocence or guilt. The trial court, however, had concluded that all defendant would be entitled to was a new sentencing proceeding in front of a jury; moreover, because defendant has already received a new sentencing proceeding in front of a jury on other grounds, Di Frisco [I], supra, 118 N.J. 253 , 571 A.2d 914 , he is not entitled to any remedy at this point. Similarly, with respect to the “prejudice” prong of the Strickland/Fritz test of ineffectiveness of counsel, the trial court *531 concluded that defendant had not been prejudiced. The Court insisted that defendant had not demonstrated that there “a reasonable probability [existed] that the result of the guilt phase would have been different” if the attorney had rendered effective assistance. It disallowed any remedy for defendant, stating, “I don’t see how it would have made any difference on the trial of guilt.” The trial court’s conclusion on the issue of remedy seems plainly wrong. The standard set forth by the United States Supreme Court requires that the defense show only a reasonable probability that the defendant would not have pled guilty. Hill, supra, 474 U.S. at 59 , 106 S.Ct. at 370 , 88 L.Ed.2d at 210 . The trial court’s emphasis on the evidence of defendant’s guilt was misplaced. The right to trial by jury, which is what defendant is arguing he has been denied, does not require a predicate showing of innocence. See State v. Ingenito, 87 N.J. 204, 211-12 , 432 A.2d 912 (1981). In this case, the testimony of DiFriseo and DeLuca directly supports the defendant’s argument. DiFriseo said he “[absolutely” would not have pled guilty, instead he would have “[gone] with the jury.” Similarly, DeLuca testified that if any question had existed that defendant would not receive a life sentence, he “would have tried the case” because DiFriseo “had nothing to lose.” In sum, the circumstances surrounding defense counsel’s advice to defendant approximate gross negligence and constitute deficient performance. Further, the evidence satisfies the prejudice prong of the Strickland/Fritz standard. The record supports only one conclusion — a reasonable probability exists that if DeLuca had not strongly advised DiFriseo that Judge Dios was not likely to impose a death sentence, then DiFriseo would not have pled guilty. No evidence directly contradicts that claim. IV The majority suggests that the trial court did not err in failing' to excuse prospective juror Leslie Dawson for cause, thus requiring defendant to expend a peremptory challenge unnecessarily. *532 Ante at 466, 645 A.2d at 751 . It nevertheless concludes that any putative error in that regard was harmless. I believe that the trial court did err in failing to excuse Juror Dawson and further that the error could not be considered harmless under the criteria adopted by the Court. In assessing the prejudicial capacity of the trial court’s error, the majority imposes a nearly impossible burden on the defendant. Because I am convinced that the majority’s conclusion is inconsistent with the heightened due process con-' cerns that attend a capital trial, I am impelled to express my disagreement with the reasoning of the majority. In its attempt to settle what has been an open question, see State v. Williams, 113 N.J. 393, 445 , 550 A.2d 1172 (1988) (“We need not decide whether the loss of a peremptory challenge * * * where all peremptories were ultimately exhausted would, by itself, warrant reversal.”), the majority adopts a juror-bias rule where the defendant must demonstrate that because of the error and the defendant’s consequent exhaustion of peremptories, a partial juror eventually was seated. Ante at 468, 645 A.2d at 752 . In adopting this position, the majority mis-perceives the unique function of a peremptory challenge. In my view, the purpose of peremptory challenges is to enable the parties to participate in jury selection and thereby bring to bear their own perceptions of the kind of jurors who are especially qualified or unqualified to determine the issues in the case being tried. See Williams, supra, 113 N.J. at 463-64 , 550 A.2d 1172 . Peremptory challenges are critical not only to reinforce participation values, but also because they bring the truth-seeking advantages of the adversarial system to bear in jury selection. The majority notes the harmful effects likely to result from the unnecessary use of a peremptory challenge. Ante at 472, 645 A.2d at 754 . It further acknowledges that the trial court “would have been obliged to be receptive” to defense counsel’s request for additional peremptories. Ante at 472, 645 A.2d at 754 . It nevertheless proceeds to impose a nearly impossible burden on defendants who have exhausted peremptory challenges because of *533 improvident trial court rulings. Under the majority’s rule, a defendant must show (1) that the trial court erred by failing to remove a juror for cause; (2) that the juror in question was eliminated by the exercise of defendant’s peremptory challenges, which were subsequently exhausted; and (3) that at least one of the jurors who eventually sat on the jury was a partial juror. Ante at 471, 645 A.2d at 753 . The majority’s rule is overly formalistic and reduces the role of peremptory challenges to that of a mere supplement to the trial court’s responsibility to ensure an impartial jury. Williams, supra, 113 N.J. at 468 , 550 A.2d 1172 . It makes peremptory challenges into a “safety net” for imprudent trial court decisions on juror exclusion. Ibid. I remain convinced that this is error. “[Wjhere an erroneous denial of a challenge for cause prompts a defendant to dismiss a juror peremptorily, and the defendant ultimately exhausts his supply of peremptory challenges prior to the completion of jury selection and is denied an additional peremptory challenge state constitutional standards of due process and fundamental fairness compel a reversal.” Id. at 471 , 550 A.2d 1172 . V The greatest failure in this case is the Court’s refusal to acknowledge and correct the extraordinarily prejudicial course of events that may have deprived defendant of a non-unanimous, life verdict. Based on a pure guess as to what the jury meant by its verdict, the Court, astonishingly, approves a death sentence. That grave shortcoming is compounded by the Court’s patent unfairness in truncating defendant’s slender but singular right to seek mitigation through allocution, and its sterile consideration of the peculiar infirmities that undermine the validity of defendant’s guilty plea. The Court’s evident inability to recognize the serious prejudicial capacity of those errors underscores the basic impossibility of a fair and humane administration of a capital punishment. Like *534 former Supreme Court Justice Lewis F. Powell, Jr., I am convinced that our continued attempts to administer capital punishment, have the inevitable effect pf bringing the whole edifice of the law into disrepute. See John C. Jeffries, Jr., JUSTICE LEWIS F. POWELL, JR., 452 (1994). Today’s decision exemplifies the baleful influence capital punishment exerts, on the Court’s jurisprudence and work-product. Loath to reverse defendant’s death sentence again, see Di Frisco, supra, 118 N.J. 253 , 571 A.2d 914 the Court engages in a perfunctory analysis that in no way measures up to the rigorous demands for securing justice in a capital ease. Its uncritical treatment of life-and-death issues deprives its opinion of the persuasive authority to which this Court has become accustomed. Sadly, in the face of significant doubt, it leaves a defendant under the sentence of death. Justices CLIFFORD and STEIN join in Part I of this opinion. They would vacate the death sentence and remand to the trial court for the imposition of a life sentence. For affirmance — Chief Justice WILENTZ, and Justices POLLOCK, O’HERN and GARIBALDI — 4. For reversal and remandment — Justices CLIFFORD, HANDLER and STEIN — 3. In the original charge to the jury in Ramseur , the trial court did "inform the jury of the consequences of a non-unanimous verdict.” 106 N.J. at 305 , 524 A.2d 188 . That contradicts sharply with the affirmative instruction given to this jury, "A decision to disagree as to punishment after due deliberation is permissible since your job is not necessarily to reach agreement but to deliberate.” Even though ultimately determining that requiring the Ramseur jury to deliberate further was not error, this Court there noted, that the "trial court should have explored with the jury whether it had deliberated sufficiently and had reached a genuine stalemate, a point at which further deliberation would have been counter productive.” 106 N.J. at 304 , 524 A.2d 188 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9701250. Public record. Not legal advice.