State v. Di Frisco , 118 N.J. 253 ( 1990 )

The opinion of the Court was delivered by

O’HERN, J.

In this capital-murder case, a hit-man has been sentenced to death on the basis of his confession that he was hired to kill a pizza-shop owner in order to silence the owner from informing on the higher-up. Killing for hire and killing to avoid detection are two of the statutory aggravating factors that make a murder death-eligible. N.J.S.A. 2C:ll-3c(4)(d) and (f).

The murder was a cold-blooded, execution-style killing. Defendant has confessed that he fired four bullets at close range into the head of Edward Potcher, the owner of Jack’s Pizzeria, at his Maplewood store on August 12, 1986. He fired a fifth bullet into the victim’s body. DiFrisco has confessed that a man named Anthony Franciotti paid him $2500 to kill Mr. Potcher. In these circumstances, if proven, the two murderers fit Senator Russo’s description of those for whom the death penalty was designed. His understanding, as the bill’s chief sponsor, was that when such aggravating factors are found there are two classes of murderers who were exposed to the death penalty:

[ (1) ] the actual perpetrator of the murder, the one who wields the gun or the knife ... that results in the death ... [and (2) ] the one who hires one to commit murder * * *.

[State v. Gerald, 113 N.J. 40, 93-94, 549 A.2d 792 (1988) (quoting Capital Punishment Act: Hearings on S. 112 before the Senate Judiciary Committee at 2 (1982)).]

The central issue argued in the case by the defendant was the disproportionality of sentencing the gunman to death without even so much as seeking an indictment of the higher-up. Cf. State v. Marshall, appeal pending (No. A-3-89) (plea bargain offered to one of killers; husband of victim, who hired killers, was sentenced to death); State v. Engel, 99 N.J. 453, 493 A.2d 1217 (1985) (plea bargain offered to the killer; husband and brother of husband charged with capital murder of victim-wife). Underlying the argument is the belief that the State must have evidence in its file exculpating Franciotti of the connection with defendant; otherwise why not present Franciotti’s case to a grand jury?

One thing is clear about this case: defendant was almost certainly involved in the murder of the pizza-shop owner. No one on the outside could have supplied the police with the details that he furnished. Less certain is the role of Franciotti.

On April 1, 1987, defendant was arrested in New York on routine street crimes, car theft and reckless endangerment. Apparently defendant thought at the time of the arrest that he would remain free if he implicated someone higher up in the murder. He tried to bargain by turning someone over to the New York City police. He claims that the New York police told him that they would go easy on someone who turns in the one who hires a killer. As Bronx Detective Kukk recounted it:

And he asked me, he said, “Harry, who is more guilty, a guy who shoots a guy or a guy who pays him to shoot the guy?”

I said, “I have no problem. A guy who pays him to shoot the guy.”

He said, “Are you serious?”

I said, “Sure.”

“The guy who killed the guy is only an intermediate, only a pawn.”

He said, “Harry, I don’t know whether to trust you or not. If I tell you something, you are not going to ram it down me.”

The defendant’s confession of murder followed.

We find no error in the trial court’s ruling that the general statement by the New York City police officer did not taint the confession. The statement was not false, so far as it went. It may have been disingenuous, but it surely was not conduct that would invalidate the confession. The fact that an investigative officer is friendly, sympathetic, and encourages the trust of the defendant to give a statement ordinarily would not render the confession involuntary. See Miller v. Fenton, 796 F.2d 598, 605 (3d Cir.), cert. denied, 479 U.S. 989, 107 S. Ct. 585, 93 L.Ed.2d 587 (1986). Rather, the inquiry must be whether an investigator’s “statements were so manipulative or coercive that they deprived [defendant] of his ability to make an unconstrained, autonomous decision to confess.” Ibid.

Evaluation of “the totality of all the surrounding circumstances,” Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854, 862 (1973), to determine the voluntariness of the confession indicates that the police officer’s remarks did not overbear defendant’s will. There was no indication that DiFrisco did not understand his circumstances because of a lack of education, that he suffered due to the duration or nature of the questioning, or that he was deprived of such comforts as food or sleep. See id. at 226, 93 S.Ct. at 2047, 36 L.Ed.2d at 862. Although the detective was seeking information, he did not believe his remarks would evoke a confession to capital murder, a result far beyond anyone’s contemplation. See Bram v. United States, 168 U.S. 532, 562-63, 18 S.Ct. 183, 194, 42 L.Ed. 568, 580 (1897) (encouragement that an accused might obtain a mitigation of the punishment for a crime by confessing serves as part of totality of circumstances to taint a confession).

At first incredulous of the defendant’s story, the New York police officer asked defendant for details. Defendant did not know where the crime had taken place, nor even the name of the victim. He did know that it involved a pizzeria in New Jersey. He said that Franciotti had paid him to do the killing because the pizza-shop owner was about to inform on Franciot-ti. He said that Franciotti drove him there on the day of the murder. DiFrisco stated that he entered the pizzeria alone and Franciotti waited in the car while the crime took place.

Bit by bit, the New York police closed in on the case. They called New Jersey authorities. They found an unsolved murder in Maplewood, Essex County, fitting the description of the murder in respect of time and place. The last links were the details furnished by the defendant that there were five shots from a .32 caliber automatic gun, that a silencer was used, and that the store sold only whole pizza pies, not slices.

Within hours, the Maplewood Police and Essex County homicide officers arrived at the precinct house in the Bronx. Defendant repeated the story to them and signed a confession to the murder implicating Franciotti. Several days later, while in police custody in New Jersey, defendant was to call Franciotti to link him to the murder. The police intended to tape that conversation. Defendant had consulted with a public defender, who advised him to make the call. At the last moment, defendant refused to call Franciotti. He said that his father counseled against further cooperation with the police without the advice of paid counsel.

Consequently, an Essex County Grand Jury indicted DiFrisco alone for the murder of Edward Potcher. The charge was capital murder. The aggravating factors noted were that “[t]he murder was outrageously or wantonly vile,” N.J.S.A. 2C:ll-3c(4)(c); that the defendant was paid to commit the murder, N.J.S.A. 2C:ll-3c(4)(d); and that the murder was committed to escape the detection of another crime, N.J.S.A. 2C:11-3c(4)(f).

DiFrisco’s case was called for trial on January 11, 1988. He pled guilty to murder, repeating to the court the essence of his confession. He was specifically asked, “And was it your intention to kill him at that time?” And his answer was “Yes.”

Pursuant to N.J.S.A. 2C:ll-3c(l), DiFrisco waived a jury for the penalty phase of his trial. The State sought' to prove the three aggravating factors through his confession and the forensic evidence found at the scene. At trial, defense counsel claimed surprise to learn that the case against Franciotti was still “under investigation.” He claimed injustice in permitting his client to die without the State even so much as concluding its investigation of the higher-up’s case.

The trial court found that two aggravating factors had been proven: that defendant was a hired killer, N.J.S.A. 2C:11-3c(4)(d), and one who killed to avoid the detection of another, N.J.S.A. 2C:ll-3c(4)(f). Although the court made no specific finding, it ruled that the c(4)c factor “was encompassed in the commission of the murder for a consideration.” The trial court also found one mitigating factor, that “[t]he defendant rendered substantial assistance to the state in the prosecution of another person for the crime of murder [N.J.S.A. 2C:11-3c(5)(g) ].” It found that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. The trial court sentenced the defendant to death. The trial court later denied defendant’s motion for a new trial. The defendant claimed a denial of discovery based on the fact that an investigation into Franciotti was continuing. He learned at the trial that the investigation was continuing. He appealed to us as of right under Rule 2:2-1.

I

Defendant claims a Brady violation. Under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), a prosecutor has a nondelegable responsibility to furnish the defendant with all exculpatory information that the prosecution possesses. But there is no Brady violation here. Brady presented the opposite side of the coin. Brady was told that his confederate had given a statement naming Brady as the killer in the robbery. Brady denied this role. Despite his protestations, Brady was convicted of the murder. When the State prosecuted the confederate in a later trial, it used another statement by him in which he did not blame Brady but admitted to the murder. This admission would have sustained Brady’s defense theory. According to the Court, the prosecutor had a duty to furnish the exculpatory evidence to Brady. 373 U.S. at 87-88, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218-19.

Our case is different. The putative exculpatory evidence in this case does not sustain DiFrisco’s version of the facts. But more significantly, the file appears to be a blank sheet with nothing to confirm or dispute the State’s case or provide exculpatory evidence for the defendant.

II

A.

But does this state of the record create, as defendant argues, an unjust disproportionality that invalidates his death sentence? Perhaps the most telling summary of the defendant’s argument is found in the remarks of the trial court prior to pronouncement of sentence:

As the Court has already indicated, this Court is perplexed by reason of the Prosecution’s failure to move an indictment against Tony Franciotti, who the defendant names as the person who paid him to kill Edward Potcher because, according to the defendant, Potcher was about to “rat” on Franciotti and his associates. The testimony elicited from the State’s witnesses with respect to an explanation of the failure to proceed against Franciotti is that calls to a New York City Assistant District Attorney and others did not disclose that Franciotti was a member of organized crime. I am not mindful that the law applies only to members of organized crime. And, further, that beside the defendant’s statement, that the State had no evidence to link the defendant with Franciotti except for the fact that Franciotti and the defendant had known each other in jail.

With the exception of the foregoing, the record is totally bare of any reasons why the Franciotti investigation was not concluded or pursued or [why he] was not indicted. On the day of his arrest, Anthony DiFrisco, the defendant, informed both New York Detective Kukk and Detective Sergeant Saunders of Maplewood in detail concerning his role and that of Franciotti in the death of Potcher. He described Franciotti. He provided his address. He related when and where he had been paid as well as how Franciotti had transported him to and from the scene of the crime. And the State does have in its possession at least circumstantial evidence to corroborate that Franciotti and the defendant were well known to each other.

Apparently, upon the retention of and prior to speaking to private counsel the defendant, upon the advice of his father, ceased his cooperation until such time, he stated, as he should have had an opportunity to speak to counsel or to the counsel that his father had retained to represent him. Since that time the State had not requested nor has the defendant further offered any further cooperation. The State’s witnesses, Detective Kukk and Detective Saunders and Investigator Kennedy, all offered the opinion that the defendant’s confession was a truthful one. It is noteworthy that until the defendant voluntarily related his participation and that of Mr. Franciotti in the crime, that no one had the slightest idea or even a scintilla of evidence of any culpability on their part.

At the penalty-phase hearing, an assistant prosecutor described defendant’s partial cooperation with the State’s investigation of Anthony Franciotti and testified that Franciotti was still a possible subject of an indictment. He also testified that attempts had been made, independent of the defendant’s confession, to substantiate the role that Franciotti had played in the murder. That investigation established a connection between the defendant and Franciotti, but the testimony did not refer to other elements of defendant’s story — for example, the fact that the car in which defendant and Franciotti had driven to New Jersey was rented. Of preeminent importance, however, was defendant’s refusal to make the phone call to Fran-ciotti that might have produced an admission of Franciotti’s involvement. The prosecutor said:

Q. And do you wish to use the cooperation of Mr. DiFrisco?

A. At this point, sir, I don’t believe it would be fruitful at all.

Q. Because he did not make the phone call.

A. He did not cooperate.

Q. Listen to me carefully, sir. You say he did not cooperate. He did not make the phone call. Isn’t that true?

A. Correct.

Q. And as a result of not making the phone call, sir, you are saying that that is the end of the cooperation in this case?

A. He would not make the phone call, nor would he testify before a Grand Jury or testify at trial. He said he did not want to cooperate.

Q. When did you invite him to go to the Grand Jury, sir? I have been his attorney since the indictment. When did you invite him to do that?

A. When he said he did not want to cooperate and he said to take him back, sir, that was the end of it. He made the decision, not I.

Defense counsel renewed the inquiry:

Q. Now I ask you, sir, is it your understanding that, as far as Mr. Franciotti is concerned, that even if right now Mr. DiFrisco cooperates and goes to the Grand Jury and testifies, that that would be a fruitless attempt by your office to indict Mr. Franciotti?

A. I am not going to speculate, sir.

Q. So there is always the possibility. Is that correct?

A. I am not going to speculate.

Q. * * * Don’t you believe that [the confession and the jailhouse link] is substantial evidence?

A. Not in this situation. It is enough to get an indictment perhaps, sir, but I don’t think it is enough to prove it to a jury beyond a reasonable doubt.

Q. So what you are saying is that you are making a judgment with respect to what a Petit Jury may do. Isn’t that true?

A. Not only I, sir.

Q. Whoever made the judgment. Somebody made a judgment. Correct?

A. Correct.

Q. You said that you have enough to get an indictment, but you are not sure whether you can get a conviction. True? You said that a little while ago.

A. There would not have been enough to get an indictment on the hearsay statement of Mr. DiFrisco.

Q. Is it your obligation to present a case to the Grand Jury and if there is an indictment, sir, there is an indictment? Isn’t that true?

A. The obligation is to see that justice is done, sir. To get an indictment that cannot be proved is not seeking justice.

Q. When you say [an indictment against Franciotti] cannot be proved, sir, you are now [stating] your judgment with respect to what 12 men may do. Isn’t that true?

A. No, sir. Mr. DiFrisco did not want to testify.

This exchange suggests that the State’s assessment of its case against Franciotti was based on the understanding that defendant would not testify against Franciotti.

The question of defendant’s willingness to testify arose when defense counsel questioned whether defendant had refused to cooperate. The following ensued:

[PROSECUTOR]: He said he did not want to cooperate.

Q. When did you invite him to go to the Grand Jury, sir? I have been his attorney since the indictment. When did you invite him to do that?

A. When he said he did not want to cooperate and he said to take him’back, sir, that was the end of it. He made the decision, not I.

Q. Are you aware of my conversation with this Prosecutor before Christmas?

MR. BOGDANSKI: Objection, Judge.

MR. DeLUCA: Judge, this is—

MR. BOGDANSKI: Counsel is now making himself a witness.

MR. DeLUCA: Judge, if I have to, then I will. I mean I think the Court should know that that offer was made, Judge, in light of this statement. I had no problem before. But in light of this.

MR. BOGDANSKI: In light of what, Your Honor?

MR. DeLUCA: In light of this now new testimony.

THE COURT: What Mr. DeLuca is saying, and, of course, that’s a problem — I realize the kind of hearing we are involved in. I also realize what the rules provide. You cannot back a witness in the case. You can ask him if he is aware that an offer was made. You can ask the witness that. Are you aware that an offer was made?

THE WITNESS: I believe it was sometime around the holidays, Judge. THE COURT: All right.

Apparently, the “offer” under discussion concerned defendant’s willingness to testify against Franciotti. Defense counsel renewed the effort to demonstrate his client’s willingness to testify against Franciotti:

DEFENSE COUNSEL: When you say [an indictment against Franciotti] cannot be proved, sir, you are now [stating] your judgment with respect to what 12 men may do. Isn’t that true?

A. No sir. Mr. DiFrisco did not want to testify.

Q. I am telling you now, sir, that he testified and he is willing to testify.

MR. BOGDANSKI: Objection. Counsel is testifying, Your Honor. We have rules.

MR. DeLUCA: I will withdraw that, Judge.

Q. Sir, this man has pled guilty to a murder. When this hearing is over he will be sentenced. After he is sentenced you still have the statement that you read to the Grand Jury and you now have the body of the man subject to subpoena and also telling this Judge that he was never asked after that to cooperate and he will testify. You are not going to get an indictment?

A. I am not going to speculate, sir.

It thus appears from this representation of counsel that defendant was willing to testify against Franciotti and that his willingness to testify was made known to the State at least some weeks before his trial and again during the penalty phase.

Defendant contended before us that the State’s handling of the Franciotti investigation required a reversal of defendant’s conviction. The State explained its reasons for not indicting Franciotti. After recounting the events leading to defendant’s arrest in New York and extradition to New Jersey, the State’s brief gives the following account of defendant’s refusal to cooperate:

[Defendant] agreed to contact Franciotti by telephone on the following Friday and the State made arrangements to tape the conversation. However, the call was not made on Friday because the defendant did not want to talk to Franciotti at his place of employment. He indicated that he preferred to contact Franciotti at home on Saturday. On Saturday morning defendant again refused to make the call. He indicated that he had spoken to his father who had advised him not to cooperate or to talk to the police. An Essex County Assistant prosecutor advised the defendant that it was his “last chance” to cooperate. The assistant prosecutor explained,

It would shortly become known that Mr. DiFrisco was in fact charged with this homicide. Once Mr. Franciotti or anyone else involved in the homicide became aware that Mr. DiFrisco was arrested, then certainly they would not engage Mr. DiFrisco in any conversation about the homicide.

The brief reiterates the prosecutor’s assertion during the penalty phase that “the State did not have sufficient evidence to prove a case against Anthony Franciotti,” and in a footnote argues:

The sole evidence against Franciotti was the defendant’s confession. Under Bruton v. United States, 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476] (1968), the confession would have been inadmissible at Franciotti’s trial unless the defendant agreed to testify. The defendant did not make such an agreement. Even at the time of his trial, it was uncertain that the defendant actually wished to testify. [Citations omitted.]

As noted, there were several attempts by defense counsel to make defendant’s willingness to testify a part of the record.

The State maintains that defendant’s assistance in prosecuting Franciotti should be rejected because his testimony would have no credibility with a death sentence hanging over his head, adding that the State did not even want post-indictment assistance from DiFrisco because post-indictment assistance would lack credibility. The trial court was understandably troubled by the State’s failure to prosecute Franciotti.

B.

Concededly, the prosecutor has wide discretion to charge or not to charge persons suspected of criminal offenses. State v. Hermann, 80 N.J. 122, 127, 402 A.2d 236 (1979); see also United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 3100, 41 L.Ed.2d 1039, 1055 (1974) (“the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case”). The constitutional principle of separation of powers discourages judicial review of the decisions of the executive branch of government. See Morrison v. Olson, 487 U.S. 654, 685-97, 108 S.Ct. 2597, 2616-22, 101 L.Ed.2d 569, 602-09 (1988).

Beyond purely constitutional concerns, the judiciary generally defers to the prosecuting attorney’s discretion to charge or not to charge because “enforcement decisions are the product of prosecutorial value judgments and expertise, and [because] courts lack standards by which to review these decisions.” Givelber, “The Application of Equal Protection Principles to Selective Enforcement of the Criminal Law,” 1973 U.Ill.L.F. 88, 102. In the context of discriminatory enforcement cases, the general rule is:

“[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364, [98 S.Ct 663, 668,] 54 L.Ed.2d 604, [611] (1978). This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.

[Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547, 556 (1985).]

Although broad, the prosecutorial discretion is not absolute. Id. at 608, 105 S.Ct. at 1531, 84 L.Ed.2d at 556; In re Investigation Regarding Ringwood Fact Finding Comm., 65 N.J. 512, 516, 324 A.2d 1 (1974).

Courts have considered the issue of limitations on prosecutorial discretion in several contexts but most frequently in the area of discriminatory or selective prosecution. In order to prevail on a claim of discriminatory enforcement, the defendant must plead and prove intentional selectivity as well as an unjustifiable basis for the discrimination. “[The] standards require petitioner to show both that the * * * enforcement system had a discriminatory effect and that it was motivated by a discriminatory purpose.” Wayte, supra, 470 U.S. at 608, 105 S.Ct. at 1531, 84 L.Ed.2d at 556.

The burden in such cases is heavy. . In the context of statutory schemes inviting judicial review, this Court has asserted a minimal but significant role in the review of the exercise of prosecutorial discretion. See State v. Koedatich, 112 N.J. 225, 250-59, 548 A.2d 939 (1988), cert. denied, — U.S. -, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989); State v. McCrary, 97 N.J. 132, 142, 478 A.2d 339 (1984); State v. Leonardis, 73 N.J. 360, 376-79, 375 A.2d 607 (1977).

In our death-penalty jurisprudence, we have had several occasions to consider the role of the prosecutor in administering our capital-murder statute. In State v. McCrary, supra, 97 N.J. 132, 478 A.2d 339, we asserted a limited role in reviewing the prosecutor’s decision to seek the death penalty. McCrary involved a death-penalty prosecution in which the defendant sought to have the aggravating factors dismissed for lack of supporting evidence. In response, the State argued “that prosecutorial charging discretion foreclosed the trial court from exercising jurisdiction.” Id. at 137, 478 A.2d 339. We affirmed the trial court’s decision to hold a Wade-type hearing to determine the sufficiency of the aggravating factors the State intended to prove. We said:

Remaining respectful of and sensitive to a prosecutor’s charging discretion, we seek to fetter it only to the extent necessary to protect a defendant’s rights. Historically, a prosecutor has been vested with broad discretionary powers to be exercised in the conscientious discharge of the manifold responsibilities of his office. The effect of this broad grant of power has been to accord a presumption of validity to the conduct of the prosecutor.

Our goal is to effect only a minimal intrusion into this area of prosecutorial discretion.

[Id. at 142, 478 A2d 339 (citations omitted).]

In State v. Koedatich, supra, 112 N.J. at 258, 548 A.2d 939, we acknowledged our holding in McCrary “that while prosecutorial decision-making is normally beyond [a court’s] purview, fundamental fairness” may justify some “minimal intrusion.” In addition, N.J.S.A. 2C:ll-3 requires the court to conduct proportionality review when the defendant requests it. State v. Ramseur, 106 N.J. 123, 324, 524 A.2d 188 (1987). In Koedatich, we reviewed geographical data presented on the issue of prosecutorial discretion in capital cases to determine the likelihood that a homicide prosecuted as a capital case in one county would receive the same treatment in another county. 112 N.J. at 254-56, 548 A.2d 939. We also considered statewide data for evidence of gender or racial bias in capital prosecutions. Id. at 256-58, 548 A.2d 939. Finally, we recommended the adoption of guidelines for use by prosecutors throughout the state in selecting capital cases for prosecution. Id. at 258, 548 A.2d 939.

Defendant has made no showing of invidious discrimination but rather has premised his proportionality challenge on the basis that the reason for non-prosecution proffered by the State has no support in the record. But the State has also determined that the only proof that it has — defendant’s confession — even if repeated in court against Franciotti, will not be of sufficient probative value to convict Franciotti. As the State suggested in oral argument before us, it would be in “bad faith” to charge Franciotti with the murder. As the Essex County Prosecutor explained to the trial court: “The obligation is to see that justice is done, sir. To get an indictment that cannot be proved is not seeking justice.” Yet, if DiFrisco was unwilling to cooperate in implicating Franciotti, why did he testify in his own trial concerning Franciotti’s role?

Of course, the State need not believe in Franciotti’s innocence when it does not indict him. Many guilty people can never be brought to trial. But the defendant implies now that the investigation must have generated evidence that Franciotti was nowhere near the Maplewood pizza shop on the day of the murder. Obviously, in what appears to be a gangland murder, the State must have investigated Franciotti’s whereabouts when the crime took place. The assistant prosecutor seems to have regarded the case as such when he explained to the court: “In May of 1987 [DiFrisco] did not want to cooperate. That means, to me, that he was keeping with the code of silence. He did not want to say anything.” But if the “code of silence” could not be broken, did telephone records disclose the presence or absence of contacts between the two? DiFrisco said that he called Franciotti “collect” when they were in communication. We do know that Franciotti and DiFrisco met each other at the New York Downstate Correctional Center when both were confined there in 1984. The record does not disclose any further contact between the two after they had both been released. DiFrisco testified that after the murder, he was returned to the Downstate Correctional Center for violating parole on another matter, and that he called Franciotti from there. No reference has been made to efforts to corroborate such calls, nor does the record before us reveal any.

Yet, we may surmise that not all is known about this case. Was DiFrisco’s offer to testify against Franciotti conditioned on a deal that the prosecutor forego the death penalty against him or perhaps give him immunity? We cannot say that it would be arbitrary for a prosecutor to refuse such a bargain in a case like this. In many cases there is much more evidence that links the higher-up to a crime, such as a motive to kill or a known relationship gone bad. None of that was present here. We cannot, then, treat every hired-gun case as identical; we do not know the evidence that the State may have in each case. Nor can we say that kingpins are categorically more evil than executioners. Indeed, some may believe that morally they are indistinguishable, or even that the executioner is worse. There may not be a sufficient public interest to give up DiFrisco’s case on the chance that Franciotti will be convicted.

Ill

But given this state of the record, defendant then argues that his capital sentence must be set aside for want of any extrinsic corroboration of his confession. He relies on State v. Lucas, 30 N.J. 37, 56, 152 A.2d 50 (1959), in which the Court ruled that when a confession is offered for the truth of its contents,

the State must introduce independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness, plus independent proof of loss or injury, [to] afford[ ] ample protection for the accused and * * * to serve the ends of justice in the administration of the criminal law.

The rule of Lucas is that

[o]n motion to direct an acquittal on grounds of lack of corroboration the trial court must determine whether there is any legal evidence, apart from the confession of facts and circumstances, from which the jury might draw an inference that the confession is trustworthy.

[Id. at 62, 152 A2d 50 (emphasis added).]

The State counters that the Lucas rule applies only to the corpus delicti (i.e., the body of the crime, usually meaning at common law the fact of death or the fact of an arson), and that the Lucas reference to independent proof of “loss or injury” means here only the death of the victim, a point beyond doubt. The State asserts that there is no need to corroborate Franciotti’s role in the murder. This doctrine generally applies when we are dealing with non-capital sentencing, an area in which courts are normally free to entertain evidence beyond that adduced at the guilt phase of the trial. See State v. Marzolf, 79 N.J. 167, 398 A.2d 849 (1979) (when imposing sentence, court is free to consider factors established, although defendant found not guilty of the charge at trial).

But capital sentencing is not like custodial sentencing. In capital sentencing the Rules of Evidence govern the admissibility of proofs by the State. N.J.S.A. 2C:ll-3c(2)(b). The aggravating factors serve not just to measure the length of a sentence, but are regarded as “essential elements” of capital murder. As we ruled in State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987), appeal after remand, 110 N.J. 521, 542 A.2d 442 (1988), aggravating factors must be proven to outweigh beyond a reasonable doubt any mitigating factors that may be found. Even at common law, corpus delicti had a broader meaning, “the substance or foundation of a crime.” Black’s Law Dictionary 310 (5th ed. 1979). Hence we cannot say that the Lucas rule is irrelevant here. It is a rule of evidence; rules of evidence apply in the sentencing phase of the State’s case as well as the guilt phase. N.J.S.A. 2C:ll-3c(2)(b).

The more pointed question is whether there was, within the circumstances of the case, corroboration of Franciotti’s role as one who paid the hired gun to kill in order to avoid detection. Surely the surrounding circumstances bespeak the crime. There is no known connection between DiFrisco and the pizzeria owner. Why else would he have done it? Is the fact that there is no other explanation enough corroboration?

There has been much debate about the need for any such corroboration rule. The rule’s origins are unsettled in English law, 7 J. Wigmore, Wigmore on Evidence, § 2070, at 508 (Chadbourn rev. 1978), and care must be taken not to subject the rule to “loose judicial comment” or to give it “an unjustifiably broad meaning.” Id. at § 2072, at 524. Not long ago, we reviewed the rules governing the evidence that will suffice to establish corroboration of a confession in State v. Krieger, 193 N.J.Super. 568, 475 A.2d 608 (App.Div.1983), rev’d, 96 N.J. 256, 475 A.2d 563 cert. denied, 469 U.S. 1017, 105 S.Ct. 431, 83 L.Ed.2d 358 (1984). In that case, a 4-3 majority of the Court sustained the conviction of an arsonist although the details of his confession were not corroborated in every respect. 96 N.J. at 257, 475 A.2d 563. The four members of the majority adopted the views of Judge Michels’ dissent in the Appellate Division, 193 N.J.Super. at 579, 475 A.2d 608, but every member of the Court agreed with the general principles of law applied by both majority and dissent. 96 N.J. at 257, 475 A.2d 563.

The majority and dissent differed in State v. Krieger on the extent to which the extrinsic evidence corroborated the trustworthiness of the confession. In his dissent, Judge Michels reviewed aspects of the confession — the defendant’s reference to the use of a fire extinguisher, the fact of an earlier fire, and the absence of harm. 193 N.J.Super. at 579-83, 475 A.2d 608. He found each of them corroborated in the State’s proofs. Id. at 580-82, 475 A.2d 608. Thus, Judge Michels concluded that “there was more than sufficient corroborative evidence to establish that defendant was telling the truth * * Id. at 582, 475 A.2d 608. Although there were missing details or discrepancies in the story (e.g., how defendant could have done all that he said in the short time described), such gaps were but “arguments and speculations [that] do not undercut as a matter of law the truthfulness of defendant’s confession. They simply raise issues of fact as to corroboration of the confession, which are properly to be resolved by the jury.” Id. at 583, 475 A.2d 608 (emphasis added) (Michels, J.A.D., dissenting). In short, some corroboration is required as a matter of law but if there is such corroboration, the jury should resolve “arguments and speculation” about its weight and sufficiency.

Applying that two-part test, we must first ask what “independent proof of facts and circumstances” corroborates defendant’s statement that Franciotti hired him to silence the pizzeria owner. No link has been developed between Franciotti and the victim. The proofs that appear thus far are as follows: Detective Saunders of Maplewood said: “No one positively identified them [DiFrisco and Franciotti]” as having been at Jack’s Pizzeria, and there was “no evidence that Mr. Potcher was selling drugs or anything in the pizzeria.” Essex County Detective Kennedy said they had interviewed

witnesses through the Maplewood Police Department to see if the names or anything like that rang a bell between Franciotti, DiFrisco and Edward Potcher. We could not make any connections anywhere.

We checked with other law enforcement agencies to see if there was a connection, to see if Mr. Franciotti was in the mob, as Mr. DiFrisco said he was, whether there were any organized crime connections. We interviewed the witnesses. We could come up with no connection between the victim, Mr. Franciotti and Mr. DiFrisco [with the exception of the Downstate Correctional Facility],

Bronx County Detective Kukk was not permitted to say in the Miranda hearing whether he believed the story about Franciotti. He did say at the penalty phase: “He answered most of the questions, sir, except for the fact that I wanted to know Franciotti’s telephone number. * * * I called the DA’s office in Manhattan, sir, who I felt knew about the mob connections in the city. I gave him the name [Franciotti]. I got back a negative result.” Kukk nevertheless took the story to his supervisor: “No one in their right mind would ever tell me that they did a homicide for a grand larceny auto. * * * He [the supervisor] thought I was kidding trying to make overtime by giving him this outlandish story of a homicide.”

Furthermore, the trial court found that “the State had no evidence to link the defendant with Franciotti except for the fact that Franciotti and the defendant had known each other in jail.” On cross-examination, defendant admitted that the statement in his confession about taping his fingers to avoid fingerprints was false.

Does it follow that there is not legally sufficient corroboration? New Jersey’s requirements are narrow with respect to the quantum of evidence required to establish corroboration in law. 7 J. Wigmore, supra, § 2071, at 515 n. 3 (citing, inter alia, State v. Lucas, supra; State v. Johnson, 31 N.J. 489, 158 A.2d 11 (1960)). The Lucas Court, quoting McCormick, Evidence, at 230 n. 5 (1954), stated that “hard-and-fast rules requiring corroboration are as likely to obstruct the punishment of the guilty as. they are to safeguard the innocent.” 30 N.J. at 52, 152 A.2d 50.

Under the New Jersey rule, the State need not produce independent proof that Franciotti paid DiFrisco but must produce only “independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness.” Lucas, supra, 30 N.J. at 56, 152 A.2d 50. Or, in other words, “[a]ll elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense ‘through’ the statements of the accused.” Smith v. United States, 348 U.S. 147, 156, 75 S.Ct. 194, 199, 99 L.Ed. 192, 200-01 (1954), quoted in 7 J. Wigmore, supra, § 2071, at 512 n. 3.

Obviously, some aggravating factors do not easily admit of extrinsic corroboration. The killer who admits killing for the thrill of it may indeed find his confession corroborated by the circumstances of the crime, e.g., no prior relationship between the victim and the killer. But even if the extrinsic circumstances of the victim’s death and the prison relationship corroborate the story, what is missing in this case is evidence of the application of the second part of the Lucas test, namely, the fact-finder’s admonition to deliberate about the presence or absence of corroborative evidence in evaluating the trustworthiness of the confession.

It is the jury, or in this case the judge sitting as jury, that “is the essential link between capital punishment and the standards of decency contained in the eighth amendment.” State v. Zola, 112 N.J. 384, 438, 548 A.2d 1022 (1988) (citing Spaziano v. Florida, 468 U.S. 447, 469-70, 104 S.Ct. 3154, 3167, 82 L.Ed.2d 340, 359 (1984) (Stevens, J., concurring and dissenting)). “At the heart of the guarantee of a fair trial is the ‘jury’s impartial deliberations upon the guilt of a criminal defendant based solely upon the evidence in accordance with proper and adequate instructions____’” State v. Collier, 90 N.J. 117, 122, 447 A.2d 168 (1982) (quoting State v. Simon, 79 N.J. 191, 206, 398 A.2d 861 (1979)) (emphasis added). It is “the nondelegable and nonremovable responsibility of the jury to decide” the question of guilt or innocence in accordance with correct principles of law. State v. Ingenito, 87 N.J. 204, 211, 432 A.2d 912 (1981).

The confession here does not make this case different. Confessions are not self-executing. As with any other part of a prosecutor’s case, a confession may be shown to be “insufficiently corroborated or otherwise deemed unworthy of belief.” Lego v. Twomey, 404 U.S. 477, 486, 92 S.Ct. 619, 625, 30 L.Ed.2d 618, 626 (1972); see also State v. Krieger, supra, 193 N.J.Super. at 583, 475 A.2d 608 (Michels, J.A.D., dissenting) (“issues of fact as to corroboration of the confession * * * are properly to be resolved by the jury”). How did the judge sitting as jury resolve the issues of fact and under what standard? This record does not tell us. In the ordinary jury trial, a defendant would be entitled to request and receive a charge to the jury on its duty with respect to issues of corroboration. See State v. Lucas, supra, 30 N.J. at 62-63, 152 A.2d 50 (not plain error with “clear capacity to bring about an unjust result” to have failed to charge jury specifically with respect to corroboration in light of balance of charge and “entire thrust of defense”); accord State v. Ordog, 45 N.J. 347, 364, 212 A.2d 370 (1965), cert. denied, 384 U.S. 1022, 86 S.Ct. 1942, 16 L.Ed.2d 1025 (1966) (not plain error where “the judge did not specifically charge the jury on [its] duty to find corroboration, in light of his charge that the weight and credibility to be given to the confession were for the jury in the light of all the evidence”). This comports with Wigmore’s admonition: “No one doubts that the warning which it conveys [the need for corroboration of accused’s confession] is a proper one, but it is a warning which can be given with equal efficacy by * * * the judge in his charge on the facts.” 7 J. Wigmore, supra, § 2070, at 510.

In a capital case, when a confession is used to establish the aggravating factors of capital murder,, the court must first determine whether there is sufficient corroboration in law to permit the sentencer to consider the confession. When, as here, there is sufficient corroboration in law (there was a prior relationship between Franciotti and DiFrisco; there was a murder as DiFrisco described it), the sentencer must understand the relevance of corroboration in its evaluation of the evidence. The jury (or the judge sitting as jury) must find the statutory aggravating factors to be present beyond a reasonable doubt and find that they qualitatively outweigh any mitigating factors beyond a reasonable doubt. State v. Bey, 112 N.J. 123, 161, 548 A.2d 887 (1988). The jury (or judge sitting as jury) may consider the presence or absence of any corroborating proofs offered by the State in determining the existence and weight to be accorded the aggravating factors charged. When there is no extrinsic corroboration of the aggravating factors themselves, the jurors must be satisfied beyond a reasonable doubt that the confession itself is sufficient to establish the aggravating factors beyond a reasonable doubt.

A judge sitting as a jury must have that understanding of the law. There is no evidence that this legal format was followed. There are no instructions that a judge sitting as a jury gives to himself or herself.

Our Court Rules do not require a judge conducting a criminal bench trial to set forth the principles of law that the court follows. The applicable rule, Rule 1:7-4, reads in part:

In civil actions tried without a jury and on every motion decided by written orders which are appealable as of right, the court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon. In criminal, quasi-criminal and juvenile actions tried without a jury, the court shall make a general finding and shall, in addition, on request find the facts specially. The court shall thereupon direct the entry of the appropriate judgment.

This accords with the general principle that

[i]n actions at law tried to the court, * * * either party has the right to have the judge declare the theory of the law by which he is governed in reaching his conclusions. The fact that the verdict is to be rendered by the court sitting as a jury, it has been said, does not impair the right of either party to a correct statement of the principles by which the decision of the issues of fact should be controlled; these principles are enunciated by the so-called declarations of law which are analogous to instructions to the jury * * *.

[89 C.J.S. Trial § 598, at 406 (1955).]

But although judges conducting civil bench trials and deciding motions must state their conclusions of law, judges in criminal bench trials often need not. The general theory is that these judges are presumed to know the law. See State v. Rowland, 509 So.2d 779 (La.App.2d Cir.), cert. denied, 513 So.2d 290 (La.1987); State v. Aldridge, 450 So.2d 1057 (La.App. 1st Cir.1984). Contra State v. Sargent, 241 Mo.App. 1085, 1097, 256 S.W.2d 265, 273 (1953) (“It is just as important in a criminal case tried by a court without the aid of a jury to know the theory of law upon which the trial court ruled the action as it is in a civil action.”). However, in those cases in which a criminal bench trial is conducted, we may assume that the issues are more of fact than of law. Often, as in Rowland, supra, and Aldridge, supra, criminal bench trials involve uncomplicated legal issues such as, in the cases above, simple battery or cruelty to animals. In New Jersey, by far the vast majority of bench trials involve simple uncomplicated fact issues, such as motor vehicle or disorderly-persons offenses.

Whether due process requires a particular step in the decision-making process is judged under the familiar three-factor standard of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See Black v. Romano, 471 U.S. 606, 618, 105 S.Ct. 2254, 2261, 85 L.Ed.2d 636, 647 (1985) (Marshall, J., dissenting) (explanations required when they would significantly contribute to “fairness and reliability”). The Mathews test considers three factors: (1) the private interest affected; (2) the risk of error and probable value of additional procedural safeguards; and (3) the government’s interest. 424 U.S. at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 33.

Applying that test, we must ask if a “declaration of law” is a step in the decision-making process reasonably to be required in a capital bench trial. As noted, most criminal bench trials are routine and pose no occasion to consider whether a “declaration of principles” is required. But when, as here, in a capital sentencing, the question of law is obviously of great importance and of sufficient complexity, a reviewing court will want to know that the lower court understood and applied the correct principles of law.

Under the Mathews test, given the enormity of the public and private interests affected and the risk of error suggested by these facts, a declaration of law would certainly contribute to the reliability of the decision-making process. It may not be a constitutional command but it comes down to whether we want to “presume” that a capital defendant has received a fair trial.

The State argues that a judge sitting as a jury is presumed to know the law. The trial court stated:

I have been sitting in this courtroom on criminal trials for many years and I have for many years instructed juries on their duty to follow the law. Sitting in place of a jury, I can do no less than to practice what I preach.

But what law is it? Is it the law as the Attorney General sees it, that the Lucas rule has no relevance to the sentencing phase of a capital case? The trial court’s only statement with respect to corroboration of the confession was with respect to the killing itself. It said:

The defendant confessed. However, the confession is corroborated by other circumstantial evidence obtained during the investigation that directly and inexorably ties Mr. DiFrisco to the killing.

No corresponding finding of corroboration directly and inexorably ties the killing to Mr. Franciotti, the tie that establishes capital murder.

Of course, some will see this as sophistry, if not worse, in the context of a case in which the defendant insists that his confession is true to the extent that he repeats it at his trial. His attorney’s trial strategy was to convince the court that his client had killed at the behest of the older and more culpable Franciotti, whom he described as a drug-dealer, and that this implication of Franciotti was a mitigating factor. It makes no sense, the argument goes, to apply the Lucas rule. But making up a story like this one makes about as much sense as confessing to capital murder to beat a car-theft rap.

Finally, it may be argued that a defendant’s testimony in court ought require no corroboration. See State v. Gleitsmann, 62 N.J.Super. 15, 161 A.2d 747 (App.Div.), certif. den., 33 N.J. 386, 164 A.2d 849 (1960) (stating the proposition but finding corroboration to statement made before Law Enforcement Council). That may be so in non-capital cases, but here, however scant the quantum of corroboration, the reason for the corroboration rule remains: “[I]ts foundation lies in a long history of judicial experience with confessions and in the realization that sound law enforcement requires police investigations which extend beyond the words of the accused.” Smith v. United States, supra, 348 U.S. at 153, 75 S.Ct. at 197, 99 L.Ed. at 198.

Our history and tradition suggest no less. An 1893 amendment to our former death-penalty law substituted for the prior practice (which allowed judges discretion to accept such pleas) “the mandate of the law, that the citizen shall not be adjudged to death upon his own confession, but that, in favorem vitae [in favor of life], the [S]tate shall prove, in all respects, to the satisfaction of a jury, the crime laid in the indictment.” State v. Genz, 57 N.J.L. 459, 463, 31 A. 1037 (Sup.Ct.1895). To this end, the authority of the court to impose the death sentence on a plea of guilty was withdrawn. The law was altered so as to ban a plea of guilty and to authorize the court in its discretion to accept a plea of non vult, in which event “the sentence to be imposed * * * shall be the same as that imposed upon a conviction of murder of the second degree.” L. 1893, c. 36.

In a bitter twist of irony, this ameliorative amendment of our death-penalty law, which allowed defendants to avoid the possibility of death when they pleaded non vult or no contest to a murder charge, was found to invalidate the scheme of capital punishment for creating too high an inducement to forego the right to have the charges proved by the State. State v. Forcella, 52 N.J. 263, 279, 245 A.2d 181 (1968), rev’d in part by Funicello v. New Jersey, 403 U.S. 948, 91 S.Ct. 2278, 29 L.Ed.2d 859 (1971). Of course, these humane amendments were made in the context of a death-penalty law that at one time made the sentence of death automatic for first-degree murder and only later allowed juries to recommend imprisonment. Nevertheless, the underlying State policy remained constant — that of “being opposed to the imposition of a death sentence upon a defendant’s plea * * Forcella, supra, 52 N.J. at 277, 245 A.2d 181.

Hence, we see no occasion to depart from the principles of Lucas in this setting. Our State policy seems always to have favored that something more than his or her words would send a defendant to death. Capital punishment has never been a game to be played on a defendant’s terms. Society has its own interest in the appropriateness of a capital sentence. We ought no more risk departure from the rule of law in this context than we would when a defendant seeks to bar his or her attorney from offering evidence in mitigation of the death penalty. State v. Koedatich, 98 N.J. 553, 489 A.2d 659 (1984); see also N.J.S.A. 2C:ll-3e (capital-punishment act requires the Office of the Public Defender to appeal capital sentences even when the defendant wishes not to appeal). Whatever perverse truth lies behind this case, it must be tested in accordance with correct legal principles.

There is a paradox in the proofs: the sentencing court has found beyond a reasonable doubt that defendant acted as a hired gun for Franciotti. In contrast, the State’s own investigation of the case has apparently resulted in a conclusion that there is insufficient extrinsic evidence presented of a connection between the two on the date in question to bring the matter before a grand jury. We need not resolve whether there is a constitutional or statutory impediment to sentencing a gunman to death while the higher-up goes free, but it is surely unusual, although this has been an unusual case from its inception. Even the trial court felt compelled to take the most unusual step of speaking ex parte to the State concerning whether it was conscientiously pursuing justice. But DiFrisco has played cat-and-mouse with the police. He would lead them to the bait, then withdraw it. The assistant prosecutor’s recollection of the failed phone call was not that the defendant had been cautioned by his father but that he refused to make the call. Moreover, defendant’s own counsel apparently never took advantage of an offer to review the State’s file.

Regardless of the explanations, when, in a capital case, there is no congruency between the defendant’s statement and the State’s investigative results with respect to the aggravating factors that are essential elements of capital murder, the fact-finder ought to be instructed to determine, with respect to the essential elements of capital murder, whether the State has “introducefd] independent proof of facts and circumstances [that] strengthen or bolster the confession and tend to generate a belief in its trustworthiness,” State v. Lucas, supra, 30 N.J. at 56, 152 A.2d 50.

IV

To sum up, “[imposition of the penalty of death is ‘profoundly different from all other penalties,’ Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990 (1978), and, as such, requires more, not fewer, procedural safeguards * * State v. Biegenwald, 96 N.J. 630, 639, 477 A.2d 318, clarified, 97 N.J. 666, 483 A.2d 184 (1984). It would contradict that principle not to try a capital defendant by the everyday procedures of the law. In any other case a jury evaluating the trustworthiness of a confession would have to be instructed to consider the extent to, which the State’s independent proofs bolster a confession and generate belief in its reliability. It may be that the sentencing court applied those principles of law, but its sentencing opinion and judgment make no reference to them.

The public wants to see that our death penalty works. It is understandable. We see how swiftly the death penalty is administered in other societies. But we would expect that the first to die in New Jersey would at least have met the statutory prerequisites of having the sentencer determine in accordance with law whether the State has established beyond a reasonable doubt the aggravating factors that a man named Franciotti hired DiFrisco to kill in order to silence the victim. The State may use the defendant’s confession to establish these factors but must do so in accordance with the principles of State v. Lucas.

One might wonder if it is not unfair to insist on those requirements here. The crime is so cruel, the defendant so remorseless. We can only repeat what we said in State v. Biegenwald, supra:

[W]e note that there is no substantial problem of judicial administration here. Although our holding will require retrial of the sentencing proceeding in this case * * *, the price is relatively small for assuring fairness in this most awesome of all determinations: shall the defendant live or shall he die?

[106 N.J. at 67, 524 A.2d 130 (footnote omitted).]

Obviously, the matter would be much simplified if the cause could be remanded to the trial court for clarification of its ruling or for further findings. The issue of guilt and death-eligibility has been met by the plea in this case. Only the penalty phase need be rerun. This Court has on several occasions followed the practice of directing a remand for a hearing before the trial court when a direct appeal from a conviction was pending before us, without vacating the conviction or ordering a new trial. See State v. Loray, 46 N.J. 179, 186-87, 215 A.2d 539 (1965) (citing State v. Hutchins, 43 N.J. 85, 202 A.2d 678 (1964) (legality of search and seizure), Appellate Division reversed and convictions affirmed on return of remand, 44 N.J. 49, 207 A.2d 163 (1965); State v. Doyle, 40 N.J. 320, 191 A.2d 478 (1963) (legality of search and seizure), convictions affirmed on return of remand, 42 N.J. 334, 200 A.2d 606 (1964); State v. LaPierre, 39 N.J. 156, 188 A.2d 10 (voluntariness of confessions; convictions affirmed), cert. denied, 374 U.S. 852, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963); State v. Scrotsky, 38 N.J. 14, 182 A.2d 868 (1962) (legality of search and seizure), conviction reversed on return of remand, 39 N.J. 410, 189 A.2d 23 (1963)). However, each of those cases involved “a preliminary constitutional issue” or what the Court called a “subsidiary issue,” Loray, supra, 46 N.J. at 186-87, 215 A.2d 539, not an ultimate factual determination. Although use of that procedure here would not afford the government an opportunity to “introduce new evidence in an attempt to save a conviction * * *,” the procedure at. least presents a close question on whether, “[i]f this does not technically infringe the protection against double jeopardy it seems to * * * violate its spirit.” United States v. Shotwell Mfg. Co., 355 U.S. 233, 250, 78 S.Ct. 245, 256, 2 L.Ed.2d 234, 245 (1957) (Black, J., dissenting). Given the cost of prosecuting capital cases, we do well to avoid the possibility of constitutional error in these cases.

And as we stated in Biegenwald, supra, 106 N.J. at 70, 524 A.2d 130, “[wjhile the original jury [there deciding guilt and penalty] has the advantage of having heard the testimony, * * * the disadvantages [of empaneling the same jury] far outweigh the advantages.” Among the concerns is whether “any juror’s mind had become unalterably fixed on the question of sentencing.” Ibid.

Our decision is limited to the penalty phase of defendant’s trial; his plea to capital murder is upheld, and his conviction will stand. On remand of the penalty phase, defendant may seek a new trial with the same or another judge, or he may seek to withdraw his waiver of jury trial. Although the general rule with respect to withdrawal of a waiver of the right to a jury trial is that it is within the discretion of the trial court, there is authority to the effect that in criminal retrials, when an appellate court remands because of error, neither party is bound by a prior waiver. See United States v. Lee, 539 F.2d 606 (6th Cir.1976); United States v. Lutz, 420 F.2d 414 (3d Cir.), cert. denied, 398 U.S. 911, 90 S.Ct. 1709, 26 L.Ed.2d 73 (1970). Given the difficulties that we noted in Biegenwald, supra, 106 N.J. at 70, 524 A.2d 130, defendant should have the right on retrial to withdraw his waiver of jury trial or seek a bench penalty trial before another judge. Prior to such a retrial (or, if relevant, during it), the State should avail itself of the opportunity to dispel any notion of arbitrariness in the prosecutorial decision not to pursue the higher-up in this murder.

Should the defendant obtain additional evidence on remand (in the sense that the State’s investigation tends to disprove that Franciotti could have been in New Jersey on the date of the murder), the sentencer will have to reconcile that evidence with the confession. Should the evidence “strengthen or bolster” the confession, it will add to its evidentiary reliability and establish the grdundwork for a case against Franciotti. In either event, justice is done.

The conviction of murder is affirmed. The sentence of death is reversed and the matter remanded to the Law Division for retrial of the sentencing proceeding in accordance with this opinion.