# State v. Perry > Supreme Court of New Jersey · May 20, 1991 · 124 N.J. 128 URL: https://www.frixlaw.com/law-library/cases/9764591 ## Case - **Full name:** State of New Jersey, Plaintiff-Respondent, v. Arthur Perry, Defendant-Appellant - **Court:** Supreme Court of New Jersey - **Decided:** May 20, 1991 - **Citations:** 124 N.J. 128; 590 A.2d 624; 1991 N.J. LEXIS 45 - **Precedential status:** Published - **Opinion:** Concurring in part by Handler - **Judges:** Garibaldi, Handler - **Cited by:** 140 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/9764591 ## How later opinions describe it (automated extraction) - rejecting a defendant's assertion that it had been plain error for the trial court to fail to issue a sua sponte jury instruction on self defense because there was a "non-compatible defense strategy" and "courts must carefully refrain from preempting defense counsel's strategi… - concluding that trial court properly imposed consecutive sentences even though four of Yarbough's five factors militated in favor of concurrent sentences - holding that trial court erred in submitting depravity factor because evidence pointed to drug dispute as motive for killing - finding one general question investigating potential presence of "any passion, prejudice, sympathy or bias" is sufficient absent request from counsel for more specific inquiry ## Opinion text HANDLER, Justice, concurring in part and dissenting in part. In this case the essential evidence of defendant Perry’s guilt is his confession to the homicide. In that confession, Perry recounts an altercation between himself and the victim, and repeatedly states that he did not intend to kill the victim but rather only to subdue him. This gives rise to several valid claims of reversible error with respect to the murder conviction. Defendant also makes claims of reversible error relating to voir dire. Additionally, defendant makes a broad-based claim that he received constitutionally-deficient representation at virtually all stages in the prosecution. *187 The Court reverses defendant’s death sentence but upholds his conviction for non-capital murder. I agree with the Court’s reasoning but believe that prejudicial error also surrounds defendant’s conviction for non-capital murder, justifying a reversal of that conviction. In addition, while the Court reverses the death penalty, finding insufficient evidence to support the sole aggravating factor, N.J.S.A. 2C:11-3c(4)(c), there are additional substantial claims of error relating to the penalty phase that the Court neglects to address but that nevertheless should be the subject of comment to emphasize that such errors are not tolerable in capital-murder prosecutions. These reasons, as well as my continuing conviction that our death-penalty statute is unconstitutional as enacted, construed, and applied, e.g., State v. Di Frisco, 118 N.J. 253, 284 , 571 A.2d 914 (1990) (Handler, J., concurring in part and dissenting in part), impel me to write separately. I. The Court reviews the facts surrounding the empaneling of the jury but finds nothing untoward with respect to that phase of the prosecution. Ante at 154-158. I believe the selection of the jury involved reversible error. The voir dire spanned five trial days. Initially the trial court provided prospective jurors with an outline of the charges and an overview of the jury’s function, the bifurcated nature of a capital ease, and the role of aggravating and mitigating factors. Next, each panel of prospective jurors completed a questionnaire covering their general background, exposure to the case or acquaintance with anyone involved, association with law-enforcement personnel, views on the criminal-justice system, ability to follow the law, and the like. In addition, the questionnaire referred to potential prejudice engendered by homosexuality or use of illegal drugs. The court then questioned each prospective juror about problematic responses before proceeding to death qualification. With respect to death qualification, the *188 trial court asked virtually the same series of questions of each potential juror: whether that person was willing to discuss his or her beliefs about the death penalty “openly and freely,” whether the person inflexibly favored or opposed the penalty, generally what the person’s opinion on the death penalty was, and whether the prospective juror could and would follow the law as charged. If the juror indicated he or she strongly favored or opposed capital punishment, the court asked further questions regarding that person’s ability to decide the issue of punishment pursuant to the law and despite his or her beliefs. Defendant brings a plain-error challenge to the voir dire process as a whole, arguing, among other points, that the death-qualification interrogation was superficial and insufficient to permit the court and counsel to determine the opinions and views of prospective jurors. It is well-settled that in capital-murder trials only a duly-qualified jury may be empaneled to determine a defendant’s guilt of capital-murder and, if there is a “guilty” verdict, whether the defendant deserves to die. The jury’s heavy and special responsibilities in a capital-murder case are unique. In such cases, the jury must be specially qualified in order to assure that high degree of fairness and impartiality essential to determine criminal guilt and appropriate sentence. Ross v. Oklahoma, 487 U.S. 81 , 108 S.Ct. 2273 , 101 L.Ed.2d 80 (1988); State v. Bey, 112 N.J. 123, 151-54 , 548 A.2d 887 (1988) (Bey II); State v. Ramseur, 106 N.J. 123, 248-54 , 524 A.2d 188 (1987); State v. Williams, 93 N.J. 39, 61-62 , 459 A.2d 641 (1983) (Williams I). Because adequate juror qualification is an imperative condition for a valid capital-murder prosecution, extraordinary importance attaches to the voir dire and particularly the death-qualification process. Bey II, supra, 112 N.J. at 152 , 548 A.2d 887 . Because a jury in a capital case is called on to determine both ordinary criminal guilt and the sentence, which may be life or death, we take extensive measures to ensure the empaneling of a jury that is both conventionally qualified and specially quali *189 fied. See State v. Marshall, 123 N.J. 1, 216-17 , 586 A.2d 85 (1991) (Handler, J., dissenting). In particular, all potential jurors must submit to “thorough and searching inquiry by the trial court into each individual’s attitude concerning the death penalty.” State v. Williams, 113 N.J. 393, 413 , 550 A.2d 1172 (1988) (Williams II). The examination of each juror’s views on capital punishment must be particularly probing to ensure his or her ability to comply with the governing legal standards, and open-ended questions are required so that jurors can fully express their views in their own words. State v. Hunt, 115 N.J. 330, 354 , 558 A.2d 1259 (1989); Williams II, supra, 113 N.J. at 413 , 550 A.2d 1172 . We insist that no person may serve on a jury in a capital case whose views concerning the death penalty “would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Williams II, supra, 113 N.J. at 415 , 550 A.2d 1172 (quoting Adams v. Texas, 448 U.S. 38, 45 , 100 S.Ct. 2521 , 65 L.Ed.2d 581, 589 (1980)). Defendant argues that the trial court’s death-qualification questioning was “perfunctory” and failed to garner adequate information, so that the attitudes of the prospective jurors remained unknown. Noting that no ADP’s, persons who would automatically vote to impose death, were identified, and that only two potential jurors were excused because of death scruples, he argues that the questions posed were leading, closed-ended, and framed to preserve the juror for service. Several examples can be cited. In the examination of juror Kathleen Porter on the first day, the juror revealed generally that she believed “there are some crimes that deserve the death penalty,” but she was not questioned further about which crimes she believed warranted death. Similarly with respect to the death qualification of alternate Linda Matrange, she indicated that she “favored” the death penalty but that “it depends on the situation”; however, she was not asked to explain what situations would or would not impel her to favor a death sentence. Another juror, John Benedict, indicated generally *190 that the death penalty was a better deterrent than prison, but the court then posed only closed-ended questions that masked real insight into the juror’s thinking. The death-qualification questioning of the other thirteen jurors sworn was similar. I firmly believe that our law demands more searching inquiry into the jurors’ views on the death penalty. Moreover, the absence of objections by counsel to the empaneling of the jury in these circumstances does not overcome the infirmity inherent in an inadequately-qualified jury. The judicial responsibility to secure a properly-qualified jury in a capital-murder prosecution is nondelegable. See State v. Marshall, supra, 123 N.J. at 220 , 586 A. 2d 85 (Handler, J., dissenting). That the response by a potential juror that the death penalty is appropriate in some cases and not others is not sufficiently informative should be clear; it cannot constitute an adequate basis for the conclusion that a juror will be conscientious in attempting to understand the distinctions that are critical in deciding guilt and sentence in a capital-murder trial and will be able to follow the special principles of law in the assessment of evidence and determination of guilt and sentence. The juror-qualification process here, in my view, was not adequate to evaluate the jurors’ fitness to serve in a capital case. I submit that defendant’s general challenge to the voir dire should be sustained. II. A. • Defendant raises several substantial claims that serve to impugn the reliability of his murder conviction. One such claim is based on a violation of the principles of State v. Gerald, 113 N.J. 40 , 549 A.2d 792 (1988). Defendant argues that the record does not disclose whether the jury convicted him of knowingly causing death or of knowingly causing serious bodily injury resulting in death. We have recognized that “[i]n order to *191 establish death-eligibility, the jury must determine that the defendant had the knowledge or purpose to kill and not the knowledge or purpose merely to inflict serious bodily injury that happened to result in death.” State v. Long, 119 N.J. 439, 450 , 575 A. 2d 435 (1990). Defendant contends that the facts adduced at trial rationally supported the lesser murder offense and therefore that the jury was constitutionally required to draw that distinction. See State v. Gerald, supra, 113 N.J. at 92, 549 A.2d 792 . Because the Court reverses defendant’s death sentence on other grounds and holds that defendant cannot be again subjected to a capital sentencing proceeding, it chooses simply to disregard the issue. Ante at 164. I would reverse (defendant’s murder conviction on this ground. Both the indictment and the trial court’s charge on murder served to obliterate any distinction between intentional murder and inadvertent, serious-bodily-injury murder. The trial court’s charge is plainly incorrect in a critical aspect: it eliminates the necessity of a finding of an intent to cause death, which is essential to a verdict of guilty of capital murder. The jury was told that it could return a verdict of guilty to murder if it found defendant had been practically certain that he would cause “serious bodily injury” resulting in death. Serious bodily injury in turn was defined as a “serious risk of death.” Practical certainty that what one is doing is causing a serious risk of death, however, is not equivalent to practical certainty that those actions will cause death itself, despite the fact that death does occur. Accordingly, I submit, based on those inconsistent and incorrect instructions, that the jury’s verdict does not reveal whether it found that defendant knowingly caused his victim’s death or knowingly caused Jerome Redd serious bodily injury that happened to result in death. Moreover, the verdict sheet completed by the jury in no way required it to differentiate between the intentional and the unplanned murder. If the jury’s verdict cannot be interpreted to distinguish between capital and non-capital murder, it is important to determine whether a rational evidentiary basis exists for a *192 finding of that form of murder that is not punishable by death. See State v. Harvey, 121 N.J. 407, 412-14 , 581 A.2d 483 (1990), cert. denied, — U.S. -, 111 S.Ct. 1336 , 113 L.Ed.2d 268 (1991); see also State v. Crisantos, 102 N.J. 265, 278 , 508 A.2d 167 (1986) (criminal code imposes “low threshold ... for permitting a charge on a lesser-included offense”). The State concedes that the jury was not asked to distinguish between the two forms of murder, but argues that such a rational basis for serious-bodily-injury murder does not exist in this case, that “under the facts of this case there can be no doubt that defendant intended to kill Jerome Redd.” Accordingly, the State argues that the charging error was harmless because there can be no doubt that defendant intended to kill his victim. The evidence, particularly defendant’s own confession, demonstrates a rational basis for the jury to have been charged on serious-bodily-injury murder. While defendant’s capital murder conviction is properly reversed on other grounds, I disagree with the majority that defendant’s conviction can simply be molded to a conviction for non-capital murder. We cannot be certain that had the jury been given a full and proper charge on murder that included and clearly differentiated between capital and non-capital murder, it would not have rejected a determination of guilt with respect to both and have found that a lesser form of homicide had been established in the evidence. In State v. Hunt, I explained that [t]he real harm in failing to instruct the jury on serious-bodily-injury murder is that the jury was deprived of the full spectrum of choices on which to base its weighty determination of criminal liability, denying the defendant the opportunity to secure a conviction on a less serious offense, namely, a form of manslaughter. So in this case, the failure to charge a less serious offense that is supported by the evidence could subtly induce a jury to believe that the evidence would support the more serious offenses; the failure to charge could prevent the jury from deflating the weight of the evidence in order to conform to a lesser charge. What the Court conveniently overlooks here is that the jury might not have so readily rejected the evidence of a form of manslaughter had it been *193 given the appropriate, full range of choices. [ 115 N.J. at 407, 409-10 , 558 A.2d 1259 (1989) (Handler, J., dissenting) (footnote omitted).] B. In addition to knowing murder, the trial court also charged the jury on aggravated manslaughter and reckless manslaughter. Defendant argues that the trial court committed plain error in failing to charge sua sponte self-defense and passion/provocation manslaughter, and that the omission of those jury charges violated his right to due process of law.. The Court, improperly, in my view, rejects those contentions. Ante at 158-165. A trial court is obligated to charge lesser offenses “when the facts ‘clearly indicate’ the appropriateness of that charge,” irrespective of the parties’ wishes. State v. Choice, 98 N.J. 295, 298 , 486 A.2d 833 (1985) (quoting State v. Powell, 84 N.J. 305, 318 , 419 A.2d 406 (1980)) (emphasis added). What must be clearly indicated, however, is a rational basis in the evidence. A lesser included offense must be charged if there is a rational basis in the evidence to support such a charge. State v. Crisantos, supra, 102 N.J. at 271-73 , 508 A.2d 167 . Although that standard impels a court to charge only those offenses for which a rational basis can be found in the evidence, the court is not ordinarily required “meticulously to sift through the entire record ... to see if some combination of facts and inferences might rationally sustain” lesser charges. State v. Choice, supra, 98 N.J. at 299 , 486 A. 2d 833 . In a capital-murder prosecution, however, the interest in having factually-justified charges given to the jury is heightened. The standards for vindicating that interest must be correspondingly enhanced. Consequently, the trial court cannot be allowed to temporize its duty “meticulously to sift” through the record searching for rationally-supported lesser offenses. It has a firm obligation to do so in a capital-murder prosecution. The record so examined clearly indicates a rational basis to support a valid claim of self-defense, which should have been *194 charged to the jury. N.J.S.A. 2C:3-4a provides that “the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other on the present occasion.” See State v. Bowens, 108 N.J. 622 , 532 A. 2d 215 (1987). Once the issue of self-defense has been raised, the burden to disprove the issue shifts to the State. State v. Kelly, 97 N.J. 178, 200 , 478 A.2d 364 (1984). The record discloses that defendant told police that “there was a dispute over monies.” The victim came to 762 Division Street in Camden (alleged to be his “home”) to get Perry to sell drugs for him, and became enraged when Perry refused. “When I resisted and, to do so, we got into an argument. I did not mean to kill this man.” Redd cursed and came at Perry. Perry, who was “shooting up” drugs, removed the syringe and told Redd “you better back the fuck up and wait,” but Redd “came at [Perry] as if he had something” (meaning a knife or the gun he was known to carry). Defendant asserts that he then grabbed Redd to “restrain” and subdue him, but when he “gave a little bit of leeway is to let him go,” Redd “broke on me again and he had strength that I’ve never felt before and I knew if I let him go it was either me or him.” That evidence supports a self-defense charge. Self-defense involves a reasonable, even if incorrect, belief that the victim, “unless forcibly prevented,” will inflict fatal or serious bodily injury. State v. Bowens, supra, 108 N.J. at 628 , 532 A.2d 215 . The evidence rationally suggests that possibility. Moreover, other support for the self-defense claim identified by defendant includes the fact that the victim was six feet tall, an established drug dealer, usually armed, and often cheated his customers and, inferentially, was therefore prone to engage in violent confrontations. The State proffers its own version of the facts to contradict a basis for self-defense. Suffice it to say that either version advanced by the parties could rationally be inferred from defendant’s statement. However, “[t]hat a jury might easily reject *195 defendant’s view of the facts and draw inferences different from those reached in defendant’s brief ... is of no moment, for ‘[t]he test is whether there was room for dispute.’ ” State v. Mauricio, 117 N.J. 402, 415 , 568 A.2d 879 (1990) (quoting State v. Crisantos, supra, 102 N.J. at 285 , 508 A. 2d 167 (O’Hern, J., dissenting)). Despite the appropriateness of the self-defense charge based on the evidence, the Court suggests that a charge of self-defense would have been directly contrary to defendant’s position at trial and might have possessed the capacity to prejudice his chances on knowing murder as discussed in Choice, supra, 98 N.J. at 301 , 486 A.2d 833 . Ante at 162-163. A charge of self-defense, however, does not necessarily concede defendant’s presence at the scene of the crime, because the defense is to be considered only if the jury is otherwise satisfied, over defendant’s contrary contentions, that defendant was present. See, e.g., Model Criminal Jury Charge to 2C:3-4. Here, charging the jury on self-defense would have had little potential to prejudice defendant’s chances with respect to the charge of knowing murder because there was other evidence that defendant was present. Accordingly, on balance, it was plain error for the trial court not to have charged that defense. By similar reasoning, defendant was entitled to a charge of passion/provocation manslaughter. The Court rules to the contrary. Ante at 159-161. Murder is reduced to manslaughter if “committed in the heat of passion resulting from a reasonable provocation.” N.J.S.A. 2C:11-4b(2). Unlike aggravated or reckless manslaughter, which involve mental states different from knowing murder, passion/provocation involves mitigation of intentional murder because of the existence of objectively reasonable provocation. State v. Grunow, 102 N.J. 133 , 506 A.2d 708 (1986). Passion/provocation manslaughter has four elements: the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the *196 slaying. [LaFave & Scott, Substantive Criminal Law § 7.10, at 255 (1986) ]. The first two criteria are objective, the other two subjective. If a slaying does not include all of those elements, the offense of passion/provocation manslaughter cannot be demonstrated. [State v. Mauricio, supra, 117 N.J. at 411 , 568 A. 2d 879 .] I believe the appropriateness of a passion/provocation charge is fairly inferable from the evidence, including defendant’s account of the altercation between himself and Redd. The provocation asserted on appeal is that the two were engaged in “mutual combat” during which defendant became impassioned. See Mauricio, supra, 117 N.J. at 414, 568 A.2d 879 (physical confrontation between bouncer and bar patron was sufficient evidence to require trial court, at defendant’s request, to provide passion/provocation manslaughter charge). Defendant was in the middle of injecting drugs with a hypodermic needle when Redd came at him, telling him he owed Redd money. Evidence suggested that defendant suspected Redd had a knife or a gun. “[A] threat with a knife or a gun might constitute adequate provocation.” Ibid. Further, Redd had an opportunity to provoke greater violence from defendant because even though he was held in a necklock throughout the entire incident, he appeared to become enraged in the effort to free himself, ultimately leading defendant to kill him. Accordingly I believe that the trial court erred in failing to charge passion/provocation manslaughter. C. Related to those substantive errors surrounding defendant’s murder conviction are errors relating to the way in which the homicide offenses were charged. On the murder count, the trial court charged the jury on knowing murder, aggravated manslaughter, and reckless manslaughter in that order. The court instructed the jury to begin by deliberating on knowing murder and to move on to aggravated manslaughter only if the jury acquitted defendant of murder. Similarly, the jury was *197 instructed to move to reckless manslaughter only after acquitting on aggravated manslaughter. The Court has noted the implications of the use of sequential homicide instructions in relation to passion/provocation manslaughter. State v. Coyle, 119 N.J. 194, 223-24 , 574 A.2d 951 (1990). The Court there said: “In murder cases in which there is evidence of passion/provocation ... a court must take additional care .in issuing clear instructions. In those cases a sequential charge coupled with an instruction that inadequately defines the elements of the greater offense ... can mislead the jury. Such a charge is inadequate.” The Court did not, however, expressly prohibit the use of sequential charges where there is evidence of passion/provocation. See ibid. I am constrained to repeat what I stated in Coyle : We have consistently recognized that a jury should not be either directly or subliminally conditioned to reach a particular verdict. State v. Simon, 79 N.J. 191, 206-08 [ 398 A.2d 861 ] (1979); see State v. Collier, 90 N.J. 117, 122-23 [ 447 A.2d 168 ] (1982). The hierarchical charge has a clear capacity to encourage the jury to determine guilt because the jury must acquit before turning to lesser-included offenses. Because the jury must first find a defendant not guilty of the greater offense, such a charge may coerce the jury and limit its freedom to consider lesser-included offenses. ******** In capital cases the court should not only give the jury the most complete range of verdict choices covering possible homicide offenses, but also assure it the widest opportunity to determine guilt and decide which offense, if any, is justified by the evidence. See, e.g., State v. Rose, 112 N.J. 454, 566 [ 548 A.2d 1058 ] (1988) (Handler, J., dissenting). The hierarchical charge goes against this grain. The hierarchical submission of offenses under which the jury is required to find defendant not guilty of a greater offense before considering lesser-included offenses serves to narrow the range of available choices and reduce the capacity to determine guilt. People v. Mays, [ 407 Mich. 619 , 288 N.W.2d 207, 211-12 (1980) ]; State v. Ogden, [ 35 Or.App. 91 , 580 P.2d 1049, 1052 (1978) ]. This concern is critical in a capital-murder case where a determination of the greater offense, intentional murder, will automatically expose defendant to the death penalty. If the jury has not fully and objectively been able to reach this conclusion, because its deliberations on lesser-included offenses have been short-circuited, the defendant will have been unfairly brought closer to a death sentence. The court should by its instructions give the jury an order in which offenses are to be considered but specifically allow the jury to consider lesser *198 offenses before it has determined guilt on the greater offense. [Id. 119 N.J. at 243-44, 574 A.2d 951 (Handler, J., concurring in part and dissenting).] That the distinctions between the mental elements of these forms of homicide are “subtle one[s] at best” cannot be overemphasized. See State v. Rose, supra, 112 N.J. at 562, 548 A.2d 1058 (Handler, J., dissenting). That is particularly so where the evidence provides a rational basis not only for a finding of any one of the lesser forms of homicide but for passion/provocation murder and the defense of self-defense as well. See Coyle, supra, 119 N.J. at 224, 574 A. 2d 951 ; see also id. at 223, 574 A.2d 951 (citing State v. Zola, 112 N.J. 384, 405 , 548 A.2d 1022 (1988)). Juror understanding of the distinctions among the several forms of homicide requires that the jury be permitted to make cross-references and comparisons of the several offenses during the course of its deliberations on ultimate guilt. The sequential, hierarchical instruction forecloses that kind of deliberative process by blocking concomitant consideration of the less serious manslaughter offenses; it has a strong capacity prematurely to induce a guilty verdict on the most serious form of homicide. When, as in this case, the most serious offense is capital murder, the sequential charge is fundamentally unfair. D. In sum, the trial court erred by failing to charge the jury in accordance with State v. Gerald, supra, 113 N.J. 40 , 549 A.2d 792 ; by failing to charge sua sponte self-defense and passion-provocation manslaughter; and by giving a sequential homicide instruction when there was evidence of passion-provocation manslaughter. In my view, any and all of those errors mandate the reversal of defendant’s murder conviction. III. Defendant alleges that defense counsel’s performance was deficient during various stages of his prosecution and severely *199 prejudiced his case in violation of his right to counsel under the sixth amendment to the United States Constitution and article I, paragraph 10 of the New Jersey Constitution. The ineffectiveness of counsel, according to defendant, includes counsel’s failure to investigate and present viable defenses at the guilt phase of the trial, and to present any semblance of a penalty-phase case. The Court, finding other grounds for reversals of guilt and penalty, treats those contentions dismissively. Defendant’s complaint, in my opinion, is valid and underscores a profoundly troublesome aspect of this Court’s attitude on appellate review toward claims of ineffective counsel. Its importance merits comment. In actuality, ineffective-assistance-of-counsel claims are essentially allegations that the trial was unfair. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 , 104 S.Ct. 2052, 2064 , 80 L.Ed.2d 674, 692-93 , reh’g denied, 467 U.S. 1267 , 104 S.Ct. 3562 , 82 L.Ed.2d 864 (1984). In order to prevail defendant must show that counsel's representation fell below an objective standard of reasonableness, Strickland, 466 U.S., at 688 , 80 L.Ed.2d 674 , 104 S.Ct. 2052 [at 2064], and that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694 , 80 L.Ed.2d 674 , 104 S.Ct. 2052 [at 2068]. [Kimmelman v. Morrison, 477 U.S. 365, 375 , 106 S.Ct 2574, 2582-83 , 91 L.Ed.2d 305, 319 (1986).] We endorse that standard, State v. Fritz, 105 N.J. 42 , 519 A.2d 336 (1987), and apply in it capital-murder prosecutions. State v. Davis, 116 N.J. 341 , 561 A.2d 1082 (1989). A strong presumption exists that counsel’s conduct falls within the range of reasonable professional practices and tactical judgments, Strickland v. Washington, supra, 466 U.S. at 690 , 104 S.Ct. at 2066 , 80 L.Ed. 2d at 695 , and, although a defendant bears the added burden of establishing the prejudicial impact of that dereliction on the ultimate verdict, that burden is removed in those cases where “the level of counsel’s participation makes *200 the idea of a fair trial a nullity____” State v. Davis, supra, 116 N.J. at 352 , 561 A.2d 1082 (citing United States v. Cronic, 466 U.S. 648 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984)). At the guilt phase, defense counsel pursued a reasonable-doubt defense, arguing to the jury that the State could not prove defendant’s guilt beyond a reasonable doubt. Defendant’s lawyers sought to show that there were lies within defendant’s statement itself and inconsistencies between it and the State’s evidence, rendering it generally unreliable and unworthy of belief. In challenging that strategy on appeal, defendant points to the account of the killing contained in his own statement and asserts that the defense of self defense and the lesser offense of passion/provocation manslaughter are strongly supported thereby. See discussion, supra at 140-142. Defendant contrasts the strength of those theories against the weakness of the theory embraced — that his statement was inconsistent with the remainder of the State’s evidence. Furthermore, defendant argues that counsel’s failure to gather readily-available evidence that would have made the chosen defense more tenable also demonstrates counsel’s incompetence. Thus, the core of defendant’s argument is that defense counsel’s tactical decisionmaking at trial was unreasonable. With respect to the penalty phase, defendant also argues that trial counsel’s failure to investigate and present relevant mitigating' evidence in the form of testimony of family members and school, military, and medical records detailing his troubled childhood and background violated his right to effective assistance of counsel. Apparently, only defendant’s aunt was interviewed on the telephone by a defense investigator about a week before the trial began, and was prepared to tell the jury of defendant’s learning disabilities and childhood neglect. Defendant also argues that other family members had relevant information about his upbringing, character, past experiences, relationships, and difficulties, but were never interviewed by counsel. He also identifies relevant documentary evidence, *201 some that trial counsel had in their possession but did not use, and some that appellate counsel obtained, that both complement his family’s information and possess independent mitigating weight. There was evidence of defendant’s mental and academic deficiencies and his struggles with drug addiction, as well as military records that show that Perry was discharged from the Marine Corps due to his limited mental ability. Yet trial counsel did not have defendant evaluated by an expert. Appellate counsel obtained an evaluation from Dr. Bogacki, in whose opinion defendant is functionally illiterate and has low intellectual functioning and an underlying learning disability. Dr. Bogacki believed that “the combination of cognitive, personality[ ] and substance abuse factors no doubt played a significant role in the emergence of antisocial patterns of behavior throughout [defendant’s] lifetime.” Defendant contends that all of the above information about his childhood experiences, mental and emotional deficits, and struggles with drug addiction had the capacity to engender sympathy, understanding, and mercy in the minds of the jurors, and that counsel’s failure to investigate those sources of evidence thoroughly strip any decision not to present that material of the presumption of attorney reasonableness. In State v. Savage, 120 N.J. 594, 625 , 577 A.2d 455 (1990), this Court concluded that counsel had acted unreasonably in limiting investigation into potential mitigating evidence. There counsel presented two mitigating factors involving defendant’s mental condition, yet conducted no investigation into that condition. Id. at 623-24 , 577 A.2d 455 . Nor did counsel explore obvious and available sources of information relevant to all five mitigating factors alleged. “[C]ounsel interviewed no potential witnesses with respect to defendant’s background; he did not investigate, and hence presented no evidence regarding, defendant’s education, religious or cultural influences, or employment history. In sum, counsel 'provided the jury with little or *202 no evidence to find any mitigating factor.” Id. at 624 , 577 A.2d 455 . It may be that defendant’s complaints do not approximate those engendered in Savage and that the merits of defendant’s complaint cannot be resolved on this record. But defendant makes a plausible argument that he did not have sufficiently-skilled defense attorneys. This case underscores the inadequacies of the standards of professional competence required in a capital-murder prosecution. The basic test of professional competence seems to be that which is regarded as reasonable in terms of an average attorney or is measured by the task to be accomplished. The Court’s definitions do not provide adequate guidance. Thus, in this case, counsel’s problematic representation is equated with effective assistance of counsel apparently because his level of competence is average or ordinary. That the Court’s test for assessing attorney competence does not assure a sufficiently high level of attorney performance in the defense of a capital-murder prosecution is clear. The level of competence that suffices for general criminal defense work cannot satisfy the heightened fair-trial standards that apply to capital-murder prosecutions. State v. Savage, supra, 120 N.J. at 644 , 577 A.2d 455 (Handler, J., concurring in part and dissenting in part). The exigencies of capital-murder prosecutions demand specialized competence on the part of counsel. State v. Oglesby, 122 N.J. 522, 544 , 585 A.2d 916 (1991) (Handler, J., concurring); see the American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Commentary to Guideline 1.1. Counsel in such cases must provide competence grounded in experience, training, and professional skill that will assure a defendant the full measure of all the heightened protections a capital-murder prosecution engenders. State v. Davis, supra, 116 N.J. at 402 , 561 A.2d 1082 (Handler, J., concurring in part and dissenting in part). *203 The substantial and numerous differences between capital and non-capital criminal prosecutions compel, as a matter of state constitutional law, the adoption of an enhanced standard by which to measure the competence of counsel and the degree of prejudice sufficient to find a violation of the right to such assistance. See State v. Oglesby, supra, 122 N.J. at 544-45 , 585 A.2d 916 (Handler, J., concurring). The enhanced level of professional performance demanded in capital prosecutions does not appear to have been achieved in this case. The Court’s failure to acknowledge that should not engender judicial complacency with counsel’s performance in such cases. IV. Defendant alleges that the cumulative effect of prosecutorial misconduct resulted in the denial of his right to a fair trial under the federal and state Constitutions. I agree with that contention, while the Court does not. Ante at 166-170. Defendant contends that that prosecutorial misconduct all related to the culpability of Clark Miller. He asserts that defendant was selectively prosecuted, while Miller’s culpability was not investigated, and that defendant was further prejudiced by a Brady [v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963)] violation when the State failed to turn over to the defense the crucial portion of the report on Miller’s polygraph wherein he makes inculpatory admissions. He also claims that the State’s entire case was grounded on the “fundamental misrepresentation” that defendant alone had committed the crimes. An overview of the evidence of Miller’s involvement is instructive. On Sunday, March 2, 1986, Miller and Perry reported to police that they had found a body in the basement of Perry’s house. The police interviewed both and noted a contradiction in their stories. Accordingly, each volunteered to submit to polygraph examinations. Perry was “escorted immedi *204 ately” to the prosecutor’s office that evening for that purpose. On invocation of his right to counsel the examination ceased. The following day, March 3, 1986, both men returned to the police administration building to be examined. Perry was taken to the scheduled examination and began the pre-test interview, but the test had to be cut short soon thereafter because he was intoxicated. He did tell Examiner Bandock during the pre-test interview that he and Miller together had boarded up 762 Division Street on the preceding Friday, that Miller financially supported his drug habit, and that the victim had been in 762 Division Street on prior occasions dealing drugs. Defendant was then transported to Cooper Medical Center for a “sex kit” test, but refused to wait and was taken back to the police administration building. The record does not disclose what Miller was doing in the meantime, but he was waiting at the police station when Perry returned and the two men left together. Later that day, Investigator Milbury received information from a teacher that two of his pupils had helped Perry secure the house. The two boys, Troy Hunt and Todd Lewis, confirmed that. Todd Lewis also said in his statement that Miller had been present when the work began at the house, and had watched as the basement door was being nailed shut. Troy Hunt said that he was sent to call Miller, and that Miller had arrived and watched Perry nail shut the basement door. On the morning of March 4, 1986, Miller arrived for his polygraph and said that defendant would appear later but intended to first use drugs. Miller was sent back to Philadelphia to locate and deliver Perry to the police. He returned at approximately noon, unsuccessful. At 12:04 p.m. on that date Miller was given a polygraph examination. In it, he stated that on Friday, February 28th, he had taken Perry to Camden to purchase drugs and had left him at 762 Division Street to inject those drugs. He returned on a call from a neighborhood boy to find defendant and two boys *205 securing the front door and á window, later leaving, with defendant. He did not return to the house until Sunday, at which time they found the body. On being informed that it was the examiner’s opinion that he had not been entirely truthful, Miller admitted that he had not told the whole truth, that on Sunday defendant had asked him to help move the body, saying that “if worse came to worse he would tell the police that he used him as a alibi and would take the weight himself and should have gotten rid of the body in his own way.” Miller also admitted having purchased drugs from the victim in the past. Miller subsequently refused to answer any more questions. Defendant’s statements during his polygraph examination that same afternoon, and his confession, offer conflicting versions of Miller’s complicity. The statements range from Miller having done the killing by himself, to both of them doing it, to Perry alone being responsible. For example, Examiner Ban-dock noted that after he had determined that Perry was psychologically stressful, Perry first said that he had discovered the body in the house on Thursday and that he and Miller had nailed the door shut so it would not be discovered, planning to return on Sunday to dispose of it. He then said that Miller had showed him the body in the basement on Thursday and that the two men proceeded to hide the body in the corner of the basement. Perry next said that he wanted to tell the “whole story” and stated that Miller had killed Redd in the house on Thursday. Perry then admitted that he had killed Redd and that Miller had helped him hide the body. During the subsequent taped confession, Perry first stated that Miller was present and aided in hiding the body but later retracted that and indicated that Miller had not been involved. Statements of friends of the victim taken in the following week also relate to Miller. Walter Pitt stated that he saw the victim selling drugs at about midnight on that Thursday before leaving with defendant and Miller. He next saw defendant the following day at noon on the same corner selling the victim’s coat to Charles Turner. Charles Turner, however, said he had *206 bought the coat from Wayne Robinson at Robinson’s house on Thursday at about 7:00 p.m., and that Robinson said he had bought it from Perry. Turner also said that he had seen Perry and Miller together buying drugs on the corner in the past. Tony Floyd said that on Thursday at about five or six in the evening he saw Redd talking to Perry and the “white guy” (Miller?) on the corner and that Redd left with them. Two cell-mates of defendants gave statements that also implicate Miller. One was given by Leroy Harris in April 1986, prior to the Grand Jury proceeding. Harris, who testified at trial, said Perry told him that defendant and Miller had picked up Redd, defendant had killed him, and Miller had orchestrated the disguise of the body as “a faggot” and its concealment in the basement. Although defendant was charged with capital-murder and other serious substantive offenses, Miller was charged only as a material witness and with four counts of hindering apprehension. The cases against them were submitted to a Grand Jury, and Investigator Milbury testified to the details of the crime and investigation. The prosecutor told the Grand Jury at an initial session that he would “tie up some loose ends together, specifically, with regard to the involvement of Clark Miller in the case.” Milbury later testified that “Mr. Miller was not involved in any way,” and that with respect to Miller “[t]he State recommends a no bill on those charges because at this point we have no additional evidence that would indicate that he was involved.” Miller was called to testify before the Grand Jury but declined to answer any questions. Defendant claims selective prosecution in that Miller, a “similarly situated wrongdoer,” was not indicted or prosecuted, and that the decision not to indict or prosecute was motivated by illegitimate racial considerations (he is black and Miller is white). He relies on this Court’s expression of heightened concern regarding arbitrary action by the State in capital cases. See State v. Ramseur, supra, 106 N.J. at 324 , 524 A. 2d 188 . *207 Concededly, prosecutors have very broad discretion in determining whom to prosecute and whom not to prosecute, but may also have an obligation to exercise that discretion in good faith. State v. McCrary, 97 N.J. 132, 142 , 478 A.2d 339 (1984); State v. Hermann, 80 N.J. 122, 127 , 402 A.2d 236 (1979); State v. Laws, 51 N.J. 494, 510 , 242 A.2d 333 , cert. denied, 393 U.S. 971 , 89 S.Ct. 408 , 21 L.Ed.2d 384 (1968); State v. Winne, 12 N.J. 152, 171 , 96 A.2d 63 (1953). See ante at 184-186 (Stein, J., concurring in part and dissenting in part). Recently, in State v. Di Frisco, supra, 118 N.J. 253 , 571 A.2d 914 , the defendant argued that the prosecutor had abused his discretion in failing to investigate and prosecute a putative accomplice. Di Frisco confessed that he had done the killing at the behest of one Franciotti. Only Di Frisco was prosecuted for the crime. The Court noted that the defendant’s claim that Franciotti should have been prosecuted rested on his assertion that the State’s reasons for failing to prosecute lacked support. Id. at 267-68 , 571 A.2d 914 . The Court concluded that the State’s belief that it had insufficient evidence to prosecute Franciotti was entitled to deference, given the scant evidence generated after some investigation. The Court here concludes that defendant has similarly failed to overcome the presumption that the Government’s abandonment of prosecution against Miller was a legitimate exercise of discretion. Ante at 168. It may be that defendant has not demonstrated prosecutorial selectivity for an illegitimate purpose. The critical point, however, is that the issue is presented and resolved exclusively on an ad hoc basis that in no way can ensure the objective and even-handed administration of capital-murder prosecutions. The vice in this case, and the flaw in the Court’s acquiescence in the State’s position, is the absence of any general, uniform standards that prosecutors must follow and apply in determining whether and against whom to mount a capital-murder prosecution. See, e.g., State v. Marshall, supra, 123 N.J. at 250-52 , 586 A.2d 85 (Handler, J., dissenting); State v. Di Frisco, supra, 118 N.J. at 302-05 , 571 A.2d 914 (Handler, *208 J., concurring in part and dissenting in part); State v. Matulewicz, supra, 115 N.J. 191, 204 , 557 A.2d 1001 (1989) (Handler, J., concurring); State v. McCrary, supra, 97 N.J. at 147-48, 478 A. 2d 339 (Handler, J., concurring). “The impression is unavoidable that there was scant basis in the accumulated evidence to distinguish this homicide as one warranting a capital prosecution.” Ante at 186 (Stein, J., concurring in part and dissenting in part). Absent clear uniform standards to guide — and explain — the exercise of prosecutorial discretion, the capital prosecution of one of two or more similarly-situated or equally-culpable perpetrators constitutes improper discriminatory prosecution. Given the heightened protections standards accorded a capital defendant, that kind of error violates fundamental fairness. V. For the reasons expressed, I dissent in part from the Court’s opinion and judgment. Affirmance in part; reversal in part; remandment —Chief Justice WILENTZ and Justices CLIFFOED, POLLOCK, O’HEEN and GAEIBALDI — 5. Concurring in part; dissenting in part — Justices HANDLEE and STEIN — 2. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9764591. Public record. Not legal advice.