State v. DiFrisco

804 A.2d 507, 174 N.J. 195, 2002 N.J. LEXIS 1110

• Court: Supreme Court of New Jersey
• Decided: August 14, 2002
• Status: Published

Opinions

The opinion of the Court was delivered by

VERNIERO, J.

This is a capital case. This Court previously affirmed defendant’s conviction for capital murder, State v. DiFrisco, 118 N.J. 253, 571 A.2d 914 (1990) (DiFrisco I), upheld his death sentence, State v. DiFrisco, 137 N.J. 434, 645 A.2d 734 (1994) (DiFrisco II), and determined that his sentence was not disproportionate when compared to similar cases, State v. DiFrisco, 142 N.J. 148, 662 A.2d 442 (1995) (DiFrisco III). Defendant now appeals the trial court’s denial of his petition for post-conviction relief (PCR) in which he asserts that he was denied effective assistance of counsel during the penalty phase of trial. We affirm.

I.

Facts and Procedural History

In what this Court has described correctly as a “cold-blooded, execution-style Wiling,” DiFrisco I, supra, 118 N.J. at 256, 571 A.2d 914, defendant murdered Edward Potcher, the owner of Jack’s Pizzeria, at his Maplewood restaurant on August 12, 1986. Defendant fired four bullets into the victim’s head and a fifth bullet into his body. Defendant confessed to the homicide after being arrested in New York on unrelated charges. Defendant also admitted that a man named Anthony Franciotti paid him $2500 to commit the murder. The other facts relating to our previous decisions are set forth at length in DiFrisco I, supra, 118 N.J. at 255-60, 571 A.2d 914, DiFrisco II, supra, 137 N.J. at 448-51, 645 A.2d 734, and DiFrisco III, supra, 142 N.J. at 157-59, 662 A.2d 442. We recite only those facts relevant to defendant’s PCR petition or as necessary background to our disposition.

A.

The Homicide and the First Penalty Trial

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

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

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

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

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

Defendant was indicted for capital murder and weapons charges. He entered a guilty plea and waived a jury for his sentencing trial. At the first sentencing trial, the trial court found two aggravating factors: that defendant was a hired killer, N.J.S.A 2C:ll-3c(4)(d), and that he killed to avoid the detection of another, N.J.S.A. 2C:ll-3c(4)(f). The court found as a single mitigating factor that defendant cooperated with authorities in the prosecution of another person for murder, N.J.S.A 2C:ll-3c(5)(g). Finding that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt, the trial court sentenced defendant to death. For reasons not relevant here, this Court overturned the death sentence in DiFrisco I, supra, and remanded the matter for a new sentencing trial. 118 N.J. at 283, 571 A.2d 914.

B.

Representation Prior to Sentencing Retrial

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

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

1. The Motions to Withdraw Defendant’s Guilty Plea

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

In support of both motions, counsel presented the testimony of defendant and DeLuca. In essence, counsel argued that DeLuca did not develop mitigation evidence on defendant’s behalf because he was convinced that defendant would not receive the death penalty. According to counsel, DeLuca so grossly misinformed defendant regarding the consequences of pleading guilty that defendant did not enter his plea knowingly and voluntarily. The trial court denied both motions, finding that DeLuca had not misled defendant nor made any improper promises. The court also found that DeLuea’s decision not to investigate had been reasonable. This Court ultimately affirmed the trial court’s determination on both motions in DiFrisco II, supra, 137 N.J. at 451-59, 645 A.2d 734.

2. The Mitigation Investigation

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

Although Dr. Silikovitz had never worked on a capital case before participating in defendant’s ease, his specialties included psychological testing, behavior modification, and neglected children. He had experience with child welfare eases involving the Division of Youth and Family Services. Krakora approved retention of Dr. Silikovitz to evaluate defendant for purposes of the motion to withdraw defendant’s guilty plea. Counsel did not provide Dr. Silikovitz with the legal standards for plea withdrawal. However, to assist him in his task, counsel provided Dr. Silikovitz with their case report, the incident report, and the transcripts of the guilty plea and original sentencing hearing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

c.

The Sentencing Retrial

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

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

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

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

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

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

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

As reflected on the verdict form, the jury’s findings on mitigation were as follows:

a. The defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution[.]

(12) No (0) Yes

b. The defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication, but not to a degree sufficient to constitute a defense to prosecutiont.]

(12) No (0) Yes

c. The defendant rendered substantial assistance to the State in the prosecution of another person for the crime of murder[.]

(6) No (6) Yes

d. The childhood and upbringing of Anthony DiFrisco.

(0) No (12) Yes

e. Anthony DiFrisco suffered from his father’s lack of love, recognition and attention.

(0) No (12) Yes

f. Anthony DiFrisco’s mother was unable to provide him with the discipline and guidance he needed while growing up.

(0) No (12) Yes

g. Anthony DiFrisco could not turn to his two older brothers for guidance and support because they were drug abusers.

(0) No (12) Yes

h. Anthony DiFrisco never developed any self-esteem.

(0) No (12) Yes

i. Anthony DiFrisco’s emotional maturity level was stunted due to his early addiction to drugs.

(0) No (12) Yes

j. Anthony DiFrisco’s excessive drug abuse affected his ability to make sound judgments.

(8) No (4) Yes

k. Anthony DiFrisco was vulnerable and susceptible to the older Franciotti because he looked up to him as a father figure.

(0) No (12) Yes

l. Anthony DiFrisco was dependent upon Franciotti for drugs.

(11) No (1) Yes

m. Anthony DiFrisco allowed himself to be manipulated by Anthony Franciotti.

(0) No (12) Yes

n. Anthony DiFrisco’s motivation in confessing to the murder was remorse.

(12) No (0) Yes

o. Anthony DiFrisco remains remorseful about killing Edward Potcher.

(11) No (1) Yes

p. Edward Potcher’s killing would have remained unsolved, if Anthony DiFrisco himself had not confessed.

(0) No (12) Yes

q. Any other factor which is relevant to the defendant’s character or record or to the circumstances of the offense.

(12) No (0) Yes

As indicated, one or more jurors found thirteen of the mitigating factors. Of those thirteen, the jury found nine factors unanimously, including that defendant’s emotional maturity' level was stunted due to drug addiction, that defendant was vulnerable and susceptible to Franciotti, that defendant allowed himself to be manipulated by Franciotti, and that the murder itself would have remained unsolved had defendant not confessed. The jury concluded that it was “unanimously satisfied” that the one aggravating factor outweighed the mitigating factors beyond a reasonable' doubt. Consequently, the trial court sentenced defendant to death.

D.

The Petition for Post-Conviction Relief

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

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

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

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

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

Finally, defendant sought to introduce the expert report and testimony of David I. Brack, an attorney with expertise in capital litigation. In his report, Brack stated that his analysis of defendant’s case led him to conclude that retrial counsel’s performance fell well below national standards for capital defense counsel. The PCR court accepted into evidence the above reports prepared by the new experts, with the exception of Brack’s report. The court declined to hear in-court testimony from any of those experts or their sources. Instead, the court heard testimony from defendant’s previous experts, and from the lawyers who represented defendant at his sentencing retrial and their supervisors. The PCR court denied defendant’s motion to interview jurors.

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

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

II.

Standard of Review

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

This Court adopted the Strickland formulation in State v. Fritz, 105 N.J. 42, 519 A.2d 336 (1987). We concluded:

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

[Id. at 58, 519 A.2d 336.]

In State v. Davis, this Court applied the Strickland standard to the guilt phase of a capital trial. 116 N.J. 341, 356-57, 561 A.2d 1082 (1989). We reasoned that the standard was the appropriate test, stating:

Capital defendants are guaranteed competent capital counsel. Obviously the measure of an advocate’s competency depends on the task to be accomplished. The best intentions and the most devoted of efforts do not necessarily equate with capital competence. We expect capital defense counsel to have an expertise regarding the special considerations present in capital cases. The Strickland/Fritz standard demands no less.

[Id. at 356, 561 A.2d 1082.]

In State v. Marshall, the Court differentiated the prejudice prong of the Strickland standard when evaluating counsel’s performance at the penalty phase. 148 N.J. 89, 250, 690 A.2d 1 (1997) (Marshall III)- We concluded that a capital defendant may demonstrate prejudice by showing a “reasonable probability that, but for counsel’s unprofessional errors, the jury’s penalty-phase deliberations would have been affected substantially.” Ibid. Thus, a capital defendant does not need to show that the result of the penalty phase would have been different, as in a non-capital proceeding, but rather “that the omitted information would have substantially affected the jury’s deliberations during the penalty phase.” State v. Bey, 161 N.J. 233, 252, 736 A.2d 469 (1999).

We further explained that “[t]he reasonable probability that ineffective assistance of counsel in the penalty phase of a capital case substantially affected the jury’s penalty-phase deliberation equates with ‘a probability sufficient to undermine confidence in the outcome.’ ” Marshall III, supra, 148 N.J. at 250, 690 A.2d 1 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). Within the context of this petition, the relevant inquiry under the prejudice prong is whether defendant’s argument in respect of mitigation, as well as his other asserted errors, undermines the Court’s confidence in the outcome of the penalty-phase deliberations. Ibid.

Ultimately, a defendant must satisfy both prongs, of the Strickland/Marshall test before a court will set aside a capital sentence on grounds of ineffective assistance of counsel. Strickland, supra, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699; Marshall III, supra, 148 N.J. at 251, 690 A.2d 1. Within that framework, a defendant is entitled to competent counsel, not perfect counsel. Kokoraleis v. Gilmore, 131 F.3d 692, 696 (7th Cir.1997) (observing that “Constitution is satisfied when the lawyer chooses a professionally competent strategy that secures for the accused the benefit of an adversarial trial”). Additionally, this Court has noted that “[mjerely because a trial strategy fails does not mean that counsel was ineffective.” Bey, supra, 161 N.J. at 251, 736 A.2d 469.

Lastly, a reviewing court must assess the performance of counsel with a “ ‘heavy measure of deference to counsel’s judgments.’ ” State v. Martini, 160 N.J. 248, 266, 734 A.2d 257 (1999) (quoting Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695). Accordingly, “when counsel’s decision to limit an investigation is supported by ‘reasonable professional judgments,’ we will not find deficient performance.” Ibid, (internal citation omitted). We likewise noted in Marshall III, supra, that “ ‘[judicial scrutiny of counsel’s performance must be highly deferential.’ ... [A court] must avoid second-guessing defense counsel’s tactical decisions and viewing those decisions under the ‘distorting effects of hindsight.’” 148 N.J. at 157, 690 A.2d 1 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694).

III.

We now consider defendant’s claims. Defendant argues that counsel at the sentencing retrial was ineffective because: (1) they failed to present available evidence of defendant’s remorse, (2) they failed to present available evidence of defendant’s relationship with Franciotti and its role in the crime, (3) they failed to present evidence of defendant’s positive character attributes and rehabilitative potential, (4) their cumulative errors at the sentencing retrial prejudiced defendant, (5) they failed to pursue defendant’s cooperation with the State, and (6) their performance on the motions to withdraw defendant’s guilty plea prejudiced defendant.

Defendant also appeals the PCR court’s exclusion of the experts’ in-court testimony, the refusal to consider the report of David Brack, and the denial of the motion for leave to interview the jurors from the sentencing retrial. Finally, defendant argues that he was deprived of his constitutional right to the effective assistance of experts, and that the death penalty is unconstitutional. We conclude that even if defendant’s claims of counsel error have merit under Strickland/Marshall’s first prong, we are satisfied that such errors did not substantially affect the jury’s penalty-phase deliberations. We further conclude that no asserted error on the part of the PCR court warrants reversal of that court’s ultimate disposition.

Ineffective Assistance of Counsel

1. Evidence of Defendant’s Remorse

Defendant first argues that he received ineffective assistance of counsel at his sentencing retrial when counsel failed to discover and present evidence of his remorse. The evidence to which defendant refers is both information that counsel possessed at the time of retrial and information gathered by Dr. Goldstein and Jill Miller, the mitigation specialist, for this PCR petition. Specifically, defendant contends that retrial counsel was incompetent for failing to replace Dr. Silikovitz with a new psychological expert; that counsel failed to present relevant expressions of remorse by defendant that were in their possession, namely, Dr. Silikovitz’s reports and Carmeta Albarus’s interview notes; and that counsel was incompetent for failing to instruct Alfonso, the mitigation specialist, to investigate remorse. '

The State counters that retrial counsel did present evidence of remorse but strategically chose not to present Dr. Silikovitz as a ■witness. Although the Silikovitz report referred to defendant’s remorse, other aspects of it would have devastated the defendant’s mitigation case. The State also argues that counsel was not obligated to seek another expert witness to testify about defendant’s remorse. More fundamentally, the State disputes the power of remorse evidence, arguing in essence that because anyone can express regret, such evidence has a limited impact on a jury.

The State also points out that Albarus testified at the PCR hearing that she knew that she was supposed to testify about remorse at the retrial. Thus, contends the State, counsel was not responsible if Albarus’s testimony was deficient on the issue of remorse. The State further notes that defendant cannot demonstrate any prejudice from counsel’s failure to present greater evidence of remorse under the second prong of Stricklcmd/Marshall.

The PCR court found that counsel did not overlook remorse at retrial, and that counsel was not ineffective in its presentation of remorse. The court noted that Dr. Goldstein’s and Jill Miller’s reports, although impressive, reflected the same “dilemma” faced by retrial counsel regarding Dr. Silikovitz’s report. The dilemma was that every piece of good information about defendant seemed to carry with it bad information. Consequently, the court concluded that it was reasonable for counsel to choose not to call Dr. Silikovitz as a witness.

The PCR court also found that although Dr. Silikovitz may not have performed a comprehensive battery of tests on defendant, he did assure counsel that he had conducted all necessary tests. Therefore, the court concluded, it was reasonable for counsel to rely on those assurances and to decide not to replace Dr. Silikovitz with another expert.

The PCR court explained:

The record in this case is not one in which trial counsel completely omitted to conduct any factual investigation of potential mitigation. A number of experts were utilized in the investigation of mitigating factors although they were not called to testify as witnesses at the trial.

The presumption of prejudice is reserved for those cases where there has been a complete denial of counsel. Counsel’s performance in this case is not deserving of that judgment. Remorse was an issue that was submitted to the jury in the manner described previously in this record. The jury rejected that evidence, obviously, not convinced that the defendant was remorseful at the time of his arrest and confession. Additional evidence of remorse elicited many years after the fact would not likely be more convincing.

We agree. As a general principle, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Martini, supra, 160 N.J. at 266, 734 A.2d 257 (quoting Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695). Consistent with that duty, retrial counsel engaged the services of a psychologist, two psychiatrists, a mitigation specialist, and an investigator from the Public Defender’s Office. Those professionals may have lacked specific experience with New Jersey’s capital sentencing system, but they assisted counsel in exploring how to present a sympathetic portrait of defendant to the jury. That was a difficult task given the calculating, brutal nature of defendant’s crime.

Further, counsel argued remorse in both the opening argument and summation, and asked the retrial jury to consider two mitigating factors on remorse. Specifically, Soto argued to jurors that it was illogical to believe that defendant confessed to escape a short jail term for car theft; rather, he “did it because the remorse is overwhelming. That’s why he confessed. He had to get it off his chest. He had to clean the slate.” In addition, counsel reached out to defendant’s family and presented their testimony at the sentencing retrial.

Based on the information generated through the experts and investigators on the case, retrial counsel made a reasonable, tactical decision not to call Dr. Silikovitz. To defendant’s benefit, that decision shielded the jury from the diagnoses and other negative information that the Silikovitz reports revealed about defendant. That counsel decided not to replace Dr. Silikovitz with a new psychological expert is understandable given the fact that Dr. Silikovitz assured counsel that he had performed all the necessary tests and interviews on defendant. Dr. Silikovitz had diagnosed defendant with ASPD and then modified that to “Adult Antisocial Behavior.” Thus, counsel would have been reasonable in expecting that another expert would have arrived at a like conclusion.

Although there may be an occasion when the choice not to replace an expert would indicate a fatally inadequate investigation, counsel’s decision not to replace Dr. Silikovitz was within an appropriate range of discretion. See McDowell v. Calderon, 107 F.3d 1351, 1362 (9th Cir.), superceded in part on other grounds, 130 F.3d 833 (9th Cir.1997), cert. denied, 523 U.S. 1103, 118 S.Ct. 1575, 140 L.Ed.2d 807 (1998) (finding no ineffective assistance when counsel chose not to call any mental health experts because one of three expert witnesses prepared report with extremely damaging information). Moreover, we are not persuaded that defendant’s new experts could have avoided the admission of damaging information about defendant. The reports of the new experts, Dr. Goldstein and Dr. Smith, both indicate that defendant suffers from a personality disorder with “antisocial” traits. The Goldstein report recounts defendant’s perspective on the murder, which reflects negatively on defendant:

[Defendant] stated, “Did I do it smartly? Yes; it was unsolved. Obviously I did it okay. Did I understand why? People don’t understand this____It’s just not real, especially when he [the victim] looked at me and I’m thinking I don’t know him; he’s a rat guy telling on Tony [Franciotti] and he’s dealing drugs too and he wants to put us — Tony and the guys away — in my mind, I’m not just walking in and killing an innocent person. He’s doing what Tony is doing and he got caught and now wants to tell on Tony.” According to [defendant], “I’m looking at him. He looks nice, but he’s also a scumbag and he’s selling drugs and he’s telling on Tony and I’m thinking about my mother — like a thousand times a minute.”

When asked whether he was struggling with his thoughts, [defendant] replied, “I’d be lying if I said my conscience but I didn’t do anything like this before. I can’t explain it. I felt nothing ... blank; just had to shoot [him] to make my life easier.”

We are satisfied that had retrial counsel replaced Dr. Silikovitz, they would have been faced with the same or similar damaging information that led them to forego calling Dr. Silikovitz in the first instance.

Defendant, therefore, has not satisfied the first prong of Stricklcmd/Marshall. Even if we were to conclude otherwise, we are confident in our view that defendant has not met that test’s second prong. The jury found the murder-for-hire aggravating factor based on evidence that reflected the nature and brutality of defendant’s crime. Moreover, defendant remained silent about the murder for eight months, confessing only after he had been arrested on unrelated charges in a different state. Lastly, had Dr. Silikovitz been replaced by Dr. Goldstein, the jury would have been exposed to defendant’s statements, reflected in the Goldstein report, that he considered Poteher to be a “rat guy” and “scumbag” and that he killed him to “make my life easier.” Those statements demonstrate how extremely difficult it would have been to convince jurors of defendant’s purported contrition. Under those circumstances, we are satisfied that some greater portrayal of defendant’s remorse would not have significantly affected the jury’s deliberations.

2. Evidence of Defendant’s Relationship with Franciotti

Defendant next argues that the “real” story of how defendant came to commit the murder was not told to the jury because counsel had failed to develop evidence of defendant’s dependence on Franciotti. Defendant adds that counsel failed to present to the jury a coherent narrative of how and why Franciotti grew to occupy such an important role in defendant’s life. Before the PCR court, defendant attempted to demonstrate his dependence on Franciotti by presenting evidence of his troubled family life, his long history of drug abuse, his desperate need for a father figure, his neurological impairments, and the numerous traumatic losses in his life. According to defendant, that evidence explained why he had committed murder at Franciotti’s behest.

Defendant contends that retrial counsel essentially was aware of that evidence and that further investigation would have led them to learn of defendant’s ADHD, later diagnosed by Dr. Goldstein, and the tragic loss of loved ones during his childhood and teenage years. Though defendant concedes that retrial counsel presented evidence of defendant’s dependency on Franciotti, defendant argues that such testimony was minimal and insufficient to justify defendant’s apparent willingness to kill for Franciotti.

The PCR court found that the testimony presented at the sentencing retrial painted a picture of defendant’s background and home life, including his lack of a father figure and his drug use. According to the court, the evidence that PCR counsel presented was not new and was, at best, cumulative. The court concluded that the fact that more could have been done to present mitigation evidence does not establish ineffective assistance of counsel.

We reason similarly. There is no serious dispute that retrial counsel presented evidence about defendant’s relationship with Franciotti, and that that relationship weighed heavily in defendant’s commission of the murder. Additionally, retrial counsel presented testimony of defendant’s difficult personal life and history of drug abuse, and portrayed defendant as Franciotti’s “victim” in summation. In its brief, the State accurately summarizes that testimony:

At the penalty phase, Carmeta Albarus spoke of defendant’s strained relationship with his father and defendant’s attempts to look for a replacement. With regard to Franciotti, Albarus testified that they met at a penitentiary in New York State. When she asked defendant what attracted him to Franciotti, defendant answered that Franciotti had a “presence” about him, that he was strong and intelligent and reminded defendant of his father except that Franciotti listened to him which defendant’s father did not do. Because of that quality, defendant formed a close relationship with Franciotti who told him that when he was released from prison, he could “check him [out].” That dependence on Franciotti deepened when Franciotti provided him with drugs for sale which defendant used himself. Defendant was nervous about telling Franciotti that he had used the drugs that he was supposed to sell. However, Franciotti told defendant not to worry and gave him more drugs. Eventually, defendant became totally and completely addicted to drugs. When asked to assess defendant, Albarus indicated that because he was deprived of nurture, guidance and emotional stability which he needed to become a socialized adult, he could not resist Franciotti.

Fran DiFrisco, defendant’s sister, testified that their father was a cold, hard man who did not know how to show love and who had no relationship with defendant. She believed that defendant began to use drugs to get her father’s attention because their father only paid attention to his children when they did something wrong. In 1986, while Fran was living in New Mexico, defendant came out to visit her. He was “dressed beautifully” and “really looked good.” During his visit, defendant told her about Franciotti. He described Franciotti as wonderful, a man who believed in defendant as a person and was going to give him a good job in the construction industry in New York.

Fred DiFrisco, defendant’s brother, testified about his drug addiction, which he attributed to peer pressure and his non-nurturing family life. Fred claimed that while they were growing up, there was no constructive role model to lead the children into adulthood. As for defendant, Fred indicated that he got the “shortest end of the stick” because he had no real relationship with his father and his older brothers were unavailable to teach him positive things.

Albarus also testified about defendant’s home life, including how defendant’s father abandoned the family to begin a relationship with a younger woman; how defendant’s father provided no emotional support, including not showing up for a school concert where defendant performed; of defendant’s feeling of abandonment when Fran, his surrogate mother, moved to California and his brothers also left; of defendant’s dropping out of school when he was [13] and of defendant’s disappointment when, having helped run the flower shop [his father’s business] while his father was ill, being told to leave the shop by his father.

Fran also described her father’s affair and the negative impact it had on the family. She noted that when defendant was about 6 or 7, at an age when he wanted his father around, defendant’s father had a new wife and daughter and had no relationship with defendant. She spoke of how defendant “idolized” his father and how he would cry and ask why his father did not love and want his children around him. Fran believed that defendant was very hurt by his father. Fran described the drug use in the family by her brothers and revealed an incident in which defendant saw Fred beat Fran up while Fred was high on drugs. Defendant’s own drug use was catalogued. Finally, Fran talked about how, when she left home, defendant felt all alone and abandoned.

Fred talked about his drug addiction, which began when he was about 12 and intensified when his father was incarcerated. He mentioned incidents in which both his brother, Richie, and he would use drugs and overdose in the house and be seen by defendant. Fred admitted that because of his drug addiction, he could not be a role model for his brother, as he tried being “on drugs” as much as he could be. During his teen years, defendant started getting involved with drugs, to “stay numb and not feel anything.” Once he kicked his drug habit, Fred tried to help defendant but defendant did not listen. When asked why, Fred answered: “[d]rugs does something to you. It niimbs you. It separates you from yourself. You don’t hear it. You have to be in pain to get help.”

With regard to the traumatic losses that retrial counsel allegedly did not investigate, the record indicates that neither defendant’s family nor defendant mentioned those losses in interviews with the defense team. Counsel cannot be faulted for failing to expend time or resources analyzing events about which they were never alerted. Fretwell v. Norris, 133 F.3d 621, 627 (8th Cir.), cert. denied, 525 U.S. 846, 119 S.Ct. 115, 142 L.Ed.2d 92 (1998). The Court in Strickland, supra, observed along those same lines:

The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether.

[466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695-96.]

One event known to counsel presented its own problems. Counsel knew that defendant’s Mend had been shot and paralyzed in connection with a high-speed chase with police in Virginia when defendant was sixteen years old. Counsel reasonably chose not to present that tragic incident to the jury because it also involved defendant. Defendant had driven the car involved in the chase, with his Mend as the passenger. Rather than support mitigation, that incident likely would have placed defendant in a negative light in the jurors’ minds.

Counsel’s adequate presentation of evidence regarding Franciotti is confirmed by the fact that the jury unanimously found the following mitigating factors: (1) that defendant suffered from his father’s lack of love, recognition, and attention; (2) that defendant was vulnerable and susceptible to the older Franeiotti, whom he looked up to as a father figure; (3) that defendant allowed himself to be manipulated by Franeiotti; (4) that defendant’s mother was unable to provide him with the guidance and discipline he needed while growing up; (5) that defendant could not turn to his two older brothers for guidance and support, because they were drug abusers; (6) that defendant never developed self-esteem; and (7) that defendant’s emotional maturity level was stunted due to his early addiction to drugs.

Additionally, four jurors found that defendant’s excessive drug abuse affected his ability to make sound judgments. While the case for mitigation suggested by PCR counsel may have been more thorough and more cohesive in its presentation, we are persuaded that deféndant received adequate representation on this issue.

3. Evidence of Defendant’s Positive Character Attributes and Rehabilitative Potential

Defendant argues that retrial counsel failed to conduct a reasonable investigation of evidence regarding defendant’s positive character traits and rehabilitative potential. Defendant states that he had no history of violent offenses, and had many positive character attributes and a' positive record in prison. He cites the positive descriptions provided by witnesses who were interviewed by retrial counsel, namely, defendant’s sister, brother, mother, and father. PCR counsel interviewed other persons, such as defendant’s elementary school teacher, who characterized defendant in favorable terms. Defendant also submits that his prison records demonstrate his rehabilitative potential.

Defendant contends that the only evidence retrial counsel presented about his positive attributes was the testimony of his siblings. He argues that his counsel failed to investigate thoroughly defendant’s background for positive information, and that that failure was objectively unreasonable given the State’s attempt to depict defendant as a cold-blooded contract killer.

Defendant, however, acknowledges that retrial counsel directed Cuevas to investigate defendant’s adjustment to incarceration over the five years during which he had been incarcerated for this crime. As a result of that investigation, Cuevas found that defendant had been involved in a “sneaker scam,” in which he obtained brand-name sneakers and sold them to other prisoners. At the PCR hearing, Soto recalled that defendant described himself as a wild kid whose hobby was stealing cars. Soto also had notes that contained references to defendant shooting someone, and that he was arrested as a juvenile for possessing a gun. In an interview with Albarus, defendant described a long history of stealing cars and characterized his court appearances as a “joke.” Soto thus chose to limit presenting good character evidence to avoid the admission of defendant’s prior bad acts.

The State argues that retrial counsel presented some positive information, and made a wise tactical decision not to present evidence of rehabilitative potential to avoid opening the door to far more damaging information. Had retrial counsel argued rehabilitation, the State could have responded with defendant’s history of criminal activity. In that respect, the State points out that defendant was sentenced to one-and-one-half to three years imprisonment for burglary in 1984, absconded from a work release program for two months in 1985, and killed Edward Potcher shortly after his release from parole.

The PCR court agreed with the State, finding that the new evidence presented by PCR counsel regarding defendant’s positive character attributes was not “significantly different than that which was presented at the time of trial,” and that “[t]he new evidence is at best cumulative.” The PCR court further found that retrial counsel had made a reasonable, tactical decision to avoid much of the evidence proffered by PCR counsel, because the evidence opened the door to damaging rebuttal evidence.

We concur. Soto, in deciding to limit evidence of defendant’s good character, made a strategic decision that was not unreasonable. She wanted to prevent rebuttal evidence of prior bad acts and other damaging testimony, and that tactical decision is entitled to a “heavy measure of deference.” Martini supra, 160 N.J. at 266, 734 A.2d 257.

In Martini the defendant, like defendant here, had argued that his trial counsel’s failure to present certain mitigation evidence at the penalty-phase trial constituted ineffective assistance of counsel. Id. at 261, 734 A.2d 257. The Court rejected that claim, concluding that “[i]n effect, the usefulness of the evidence as mitigation [was] seriously undermined by its unfavorable aspects.” Ibid. Our rationale for that conclusion informs our decision here:

We recognize [] that the evidence if used would have opened the door to damaging rebuttal evidence by the State. In a penalty-phase trial, the State is entitled to impeach mitigation testimony with relevant evidence of a defendant’s past conduct, subject to an instruction that the evidence is admissible only for the limited purpose of rebutting mitigating factors and cannot be used to add to the weight assigned by the jury to the aggravating factors. Even with a limiting instruction, in this case the presentation of evidence of limited mitigating value would have opened the door to powerful countervailing testimony that could have swayed the jury against defendant.

[Id. at 261-62, 734 A.2d 257 (internal citations omitted).]

In arguing for a contrary conclusion, defendant cites Collier v. Turpin, 177 F.3d 1184 (11th Cir.1999). In Collier, the defendant’s sentencing-phase counsel failed to present evidence of the defendant’s upbringing, gentle disposition, record of helping families in need, and displays of heroism and compassion. Id. at 1202. In addition, trial counsel failed to present evidence that the defendant was suffering from a diabetic seizure at the time of the crimes. Ibid. The court found that trial counsel rendered ineffective assistance of counsel because the jury was given the impression that the witnesses “knew little or nothing” about the defendant, and that counsel had failed to humanize the defendant for the jury. Ibid.

Collier, however, is distinguishable. In that case, trial counsel presented ten mitigation witnesses in a little more than one hour. Id. at 1201. Counsel conducted a cursory examination of the witnesses, a number of whom were questioned merely in respect of the defendant’s reputation for truth and veracity. Ibid. In contrast, retrial counsel here presented witnesses who gave a detailed account of defendant’s background and attempted to “humanize” defendant for the jury. Those efforts are demonstrated by the various mitigating factors the jury identified on its verdict form.

Thus, in respect of defendant’s character attributes and rehabilitative potential, we find no deficient performance under Strickland/Marshall’s first prong and no prejudice under the second prong.

4. Cumulative Errors in Mitigation Case

Defendant contends that the cumulative errors that retrial counsel committed in their presentation of mitigation evidence require a new penalty-phase trial. We disagree. In view of our previous analysis, we conclude that defendant has not demonstrated cumulative error. Counsel presented a mitigation case that stressed defendant’s childhood, drug use, and dependence on Franciotti, and engaged the assistance of mitigation and psychological experts in an effort to investigate defendant’s background. Counsel also made decisions, understandable at the time, to avoid the presentation of evidence that may have led to the revelation of damaging information about defendant.

As important, assuming that retrial counsel had been deficient in one or more areas, we do not believe that the jury’s deliberations would have been affected substantially as a result of those deficiencies. “We are unpersuaded that the cumulative force of all the penalty-phase claims is measurably greater than that of the individual claims.” Marshall III, supra, 148 N.J. at 258, 690 A.2d 1.

5. Counsel’s Failure to Pursue Defendant’s Possible Cooperation With the State

Defendant next argues that retrial counsel’s failure to pursue the possibility of defendant’s cooperation with the State in the prosecution of Franciotti constituted deficient performance that prejudiced defendant. Defendant asserts that his first attorney, DeLuca, rejected the State’s efforts to secure defendant’s cooperation. Defendant contends that retrial counsel’s subsequent refusal to explore the possibility of cooperation, even in the absence of an offer of a life sentence, compounded DeLuca’s deficiency.

The PCR court summarily dismissed this claim, finding that defendant had made no record to support it. The court noted that DeLuca was not called to testify as a witness at the PCR hearing, and therefore defendant did not meet his burden of proving his entitlement to relief. However, the PCR court did not directly address whether retrial counsel, not DeLuca, rendered ineffective assistance of counsel by failing to pursue defendant’s cooperation with the State.

With regard to DeLuca, we have previously determined that his representation of defendant was not constitutionally deficient in relation to his advice that defendant plead guilty. DiFrisco II, supra, 137 N.J. at 459, 645 A.2d 734. We now find, as did the PCR court, that no evidence supports a claim that DeLuca rendered deficient representation with regard to defendant’s cooperation with the State.

With regard to retrial counsel, the record indicates that defendant repeatedly conveyed to Soto his concerns about being perceived as a “snitch” if he cooperated. The day before opening arguments in the sentencing retrial, Soto and Liguori met with the assistant prosecutor and made clear that defendant would not testify before the grand jury unless the State agreed to a life sentence. Counsel spoke to defendant about this subject before presenting their position to the prosecutor. We are satisfied that counsel had consulted defendant concerning possible cooperation with the State, and that retrial counsel’s representation was neither deficient nor prejudicial.

6. Performance on the Motions to Withdraw Defendant’s Guilty Plea

Defendant’s final ineffective assistance claim centers on retrial counsel’s failed effort to withdraw defendant’s guilty plea. According to defendant, but for counsel’s deficient performance it is reasonably probable that defendant would have been permitted to withdraw his guilty plea and would not have received the death penalty at retrial.

In respect of the first motion to withdraw defendant’s guilty plea, counsel asserted that defendant’s guilty plea was not knowing and voluntary. Counsel’s argument in support of that motion primarily rested on what DeLuca said to defendant, and what defendant understood to be the consequences of his plea. Defendant maintains that retrial counsel’s approach was unreasonable because they had evidence, through Dr. Silikovitz’s report, that defendant gave excessive deference to authority figures. If that psychological information had been developed appropriately, defendant argues, it would have explained why DeLuca unduly influenced defendant and, consequently, why his plea was not knowing or voluntary. Echoing an earlier argument, defendant contends that counsel’s decision not to replace Dr. Silikovitz with another psychologist constituted ineffective assistance of counsel.

In respect of the second motion, counsel argued to the motion court that DeLuca was ineffective in advising defendant to plead guilty because DeLuca did not investigate possible defenses for the case and erroneously assumed that defendant’s confession would not be suppressed. Although ample evidence of defendant’s drug use at the time of the confession existed prior to defendant’s guilty plea, DeLuca failed to uncover it. The motion court denied the second motion, noting that retrial counsel failed to produce the same evidence that they claimed DeLuca had failed to produce: that defendant was under the influence of drugs at the time of his confession.

Defendant now contends that that evidence was available to retrial counsel at the time of the second motion, as was evidence that defendant was under the influence of drugs at the time of the murder. Defendant thus argues that had retrial counsel presented that evidence in their argument of DeLuca’s ineffectiveness at the second motion, defendant would have been permitted to withdraw his guilty plea.

The PCR court rejected both claims relating to defendant’s guilty plea. The court found no deficiency in retrial counsel’s failure to present evidence of defendant’s deference to authority figures. The court noted that the “newly discovered evidence [that defendant was overborne by DeLuea’s advice] simply did not overcome the ‘formidable barrier’ posed by the record made by the trial court[.]” (That record indicates that defendant understood the consequences of his plea.)

The PCR. court found as the only deficiency that counsel had faded to present evidence of defendant’s drug use at the time of his confession during the second motion. However, the PCR court concluded that had counsel presented that evidence it would not have affected the outcome of the motion. Accordingly, the court held that defendant had not satisfied Strickland/Marshall’s prejudice standard.

The law governing admissibility of confessions may be succinctly stated. “A custodial confession is admissible only if there has been a knowing, intelligent, and voluntary waiver of Miranda rights.” State v. Cooper, 151 N.J. 326, 354-55, 700 A.2d 306 (1997) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 707 (1966)). When evaluating voluntariness, a court reviews the totality of the circumstances, including the characteristics of the defendant and the nature of the interrogation. State v. Miller, 76 N.J. 392, 402, 388 A.2d 218 (1978). At the root of the inquiry is whether a suspect’s will has been overborne. Ibid.

In this case, the record supports the conclusion that defendant’s confession was voluntary under applicable standards. After waiving his Miranda rights, defendant confessed to the murder, he gave a detailed description of the crime, and he drew a diagram of the pizzeria and its surrounding area. Defendant further recalled that Jack’s pizzeria did not sell pizza by the slice. That defendant was able to recount those facts so vividly suggests that he was not unduly impaired when he spoke to the police. Moreover, a detective present at defendant’s confession testified that defendant did not appear to be under the influence of drugs when he was speaking to him. Under those circumstances, evidence of defendant’s drug use at the time of the confession likely would not have resulted in a favorable disposition on the motion to withdraw the plea.

We thus conclude that the PCR court properly dismissed defendant’s ineffective assistance of counsel claims relating to the guilty plea.

Exclusion of the PCR Experts’ Testimony

Defendant asserts that the PCR court erred in refusing to hear in-court testimony from four experts, Dr. Goldstein, Dr. Van Gorp, Dr. Smith, and Jill Miller. Before the PCR court, counsel asked that the court permit such testimony as well as receive the experts’ reports into evidence. Specifically, PCR counsel stated that “the testimony would certainly be within the four corners of the reports, but I’m sure the State would like the opportunity to cross-examine, and — and we would like the opportunity to present their testimony.”

After some review of the trial record, the PCR court stated:

I’m now aware of what your experts would say if they had been the experts that were called during the original trial____

I know that there is now some difference of opinion as to what his true psychological condition was. And quite frankly, if we get past the first prong, [I] could accept that that’s what your witnesses would say, and wouldn’t need to hear from one of those witnesses. And I could still make a legal ruling.

The point is, do I need them to repeat what I know they’re going to say? You couldn’t have been more thorough____

[I] don’t necessarily know that I need to hear every single person come here and tell me what your best presentation would be. You have done a very, very thorough job on presenting to me what your best case would have looked like.

In challenging the PCR court’s ruling, defendant argues that the experts’ in-court testimony was necessary for the experts to explain that their findings were significantly different from those presented at the sentencing retrial. The State responds by arguing that, because of their detail, the reports obviated the need for in-court testimony.

We agree with the State. “Ordinarily, the necessity for and admissibility of expert testimony are matters to be determined within the sound exercise of discretion by the trial court.” State v. Berry, 140 N.J. 280, 293, 658 A.2d 702 (1995) (citation omitted). Generally, a trial court will admit expert testimony if the subject matter at issue, or its specific application, is one with which an average fact finder might not be sufficiently familiar, or if the trial court determines that the expert testimony would assist it in understanding the evidence and determining facts in issue. Id. at 292-93, 658 A.2d 702.

We are satisfied the PCR court did not abuse its discretion in excluding the testimony. The experts were offered to show that their findings were significantly different from the findings of the experts at retrial. The PCR court recognized that the purpose of the new expert reports was to demonstrate that which the retrial experts failed to uncover.

Dr. Goldstein’s and Miller’s reports explicitly state how the performance of the retrial experts allegedly was deficient. With respect to Dr. Silikovitz’s evaluation of defendant, Dr. Goldstein expressed his view that Dr. Silikovitz had failed to administer a series of personality tests that are “an essential element of a comprehensive forensic psychological evaluation conducted by the reasonably prudent professional.” Similarly, Miller’s report extensively details the asserted deficiencies of the Alfonso investigation, noting that “[i]n addition to their failure to interview many potential sources of information, Alfonso Associates made mistakes in the interviews they did conduct, that resulted in their failure to obtain significant and valuable information.”

It might have been helpful to the PCR court to hear from the new experts on- how their diagnoses and investigations differed from the former experts. In our view, to have permitted the experts to testify would have been preferable. That said, the differences between the new and former experts are clear from the written reports. Indeed, defense counsel acknowledged that “the testimony would certainly be within the four corners of the reports,” indicating that those reports covered the subject matter about which the experts would testify. Under those circumstances, the PCR court was within its discretion to rely solely on the experts’ written submissions.

C.

Refusal to Consider the Report of David Bruck

Defendant argues that the PCR court’s denial of his PCR petition must be reversed due to the court’s exclusion of the testimony and report of David Bruck, who was offered as an expert in capital defense litigation. The question is whether the PCR court abused its discretion in excluding Brack’s opinion without considering the content of Brack’s report and, if so, whether that error requires reversal of the lower court’s ultimate disposition.

Defense counsel argued to the PCR court that Brack, an attorney with over twenty years of experience working in the area of capital defense, should be allowed to present his opinion on the norms for competent capital defense attorneys prevailing at the time of defendant’s sentencing retrial. Counsel argued that the defense “should be permitted to put an expert on so that a record is made as to the right way to do this.” Counsel rejected the State’s characterization of Brack’s testimony as calling for a “cookie-cutter approach,” but rather described it as outlining “certain fundamentals” of capital defense litigation.

The PCR court declined to consider Brack’s testimony and report, as well as any other testimony from other PCR experts on the proper relationship between capital counsel and defense experts. The court concluded, “I don’t need a lecture from a lawyer as to capital presentations. I presided over the cases. You may argue law to me. I can understand that. But I don’t need to hear a separate presentation on that subject.” The court added that defendant’s case is not complicated either in terms of its proofs or presentation, and that if the content of the expert testimony is within the court’s knowledge and experience, then there is no requirement to hear it.

We agree with defendant that the PCR court erred when it refused to consider Brack’s opinion. The field of capital defense litigation is a constantly evolving, specialized area of the law. See Bailey v. State, 309 S.C. 455, 424 S.E.2d 503, 507 (1993) (quoting capital defense expert on specialized area of capital litigation). All judges, irrespective of their experience level, can be informed by such information. Thus, when PCR counsel offers that form of testimony in a capital case, the court should hear it or at least consider it in written form.

In this ease, however, in view of our earlier conclusion that retrial counsel did not render ineffective assistance of counsel, the PCR court’s error was harmless. Significantly, Brack’s report focuses solely on Strickland/Marshall’s first prong. Because defendant ultimately has failed to satisfy the second prong of the test, Brack’s opinion would not alter our disposition. Thus, no remand or reversal is required in these circumstances.

D.

Denial of the Motion for Leave to Interview Jurors

Defendant argues that the denial of his PCR petition must be reversed and his case remanded to the PCR court so that jurors from the sentencing retrial can be interviewed. Defendant maintains that statements made by an alternate juror to counsel indicate that the jurors considered extraneous information and misunderstood the jury instructions.

The facts in respect of defendant’s claim are these. Three years after defendant’s sentencing retrial, an alternate juror, Margaret Whittaker, stated to defendant’s appellate counsel that the jurors “did not want to come down ‘that way,’ but felt that they had no choice because of the way the judge .gave the instructions.” Based on that information, defendant moved for permission to interview the jurors. The motion court denied the request, stating that the claim hung “on the thinnest of threads.”

Several months later, PCR counsel renewed the motion before the PCR court. Counsel represented in an affidavit that Whittaker called him several times, unsolicited, and provided him with more information about the deliberating jurors. The jurors allegedly relayed to Whittaker that one or more of them believed that: (1) defendant would not be executed, even if sentenced to death, because the appellate process takes so long; (2) defendant was facing serious criminal charges in New York, although the jury was not told of any charges; (3) defendant had visited the victim’s pizza parlor on occasions prior to the murder; and (4) during deliberations, one or more jurors believed that to return a life verdict, the jury had to be unanimous for life, and because the jurors would not unanimously find for life, some just went along with the death verdict.

The PCR court denied defendant’s renewed motion. The court reasoned that Whittaker was not in the deliberating room, and thus the information was mere hearsay; that Whittaker’s communications were “stale” given that Whittaker waited three years to make her first overture to counsel; that there was no indication in respect of how many jurors made the troubling statements to Whittaker; and that the substance of the statements were not sufficient to overcome the presumption against interviewing jurors.

The law in this area is well settled. “Calling back jurors for interrogation after they have been discharged is an extraordinary procedure which should be invoked only upon a strong showing that a litigant may have been harmed by jury misconduct.” State v. Athorn, 46 N.J. 247, 250, 216 A.2d 369 (1966). See also R. 1:16-1 (instructing that jurors may not be interviewed, examined, or questioned “[ejxcept by leave of court granted on good cause shown”). The requirement that a defendant make such a strong showing is intended to prevent juror harassment and avoid chilling jury deliberations. State v. Harris, 156 N.J. 122, 154, 716 A.2d 458 (1998), cert. denied sub nom. Harris v. New Jersey, 532 U.S. 1057, 121 S.Ct. 2204, 149 L.Ed.2d 1034 (2001); Marshall III, supra, 148 N.J. at 280, 690 A.2d 1.

Defendant first argues that Whittaker’s statement relating to the length of the appellate process indicates that the jury may have believed incorrectly that it was not responsible for the verdict. We disagree. Nothing in the affidavit recounting Whit-taker’s statements indicates that the jurors considered the lengthy appeals process during deliberations. The same is true in respect of Whittaker’s second statement regarding pending charges against defendant in New York. Although the jury knew from testimony that defendant had been arrested in New York, DiFrisco II, supra, 137 N.J. at 492-94, 645 A.2d 734, there is no evidence that the jury improperly considered other-crimes evidence during deliberations.

With regard to Whittaker’s third statement, that defendant had previously visited the pizza parlor, defendant argues that the jury may have concluded that his actions were more premeditated than was supported by the evidence. Defendant’s argument is misplaced. Defendant’s diagram of the restaurant, which was introduced at the retrial, depicts the parking lot behind the pizzeria, the stairs, the back and rear doors of the pizzeria, and the bus stop on the corner. In our view, the evidence presented supports a reasonable inference that defendant may have visited the pizzeria before the murder. Therefore, if the jury had drawn that inference it would not have been improper.

Defendant’s final argument is that the jury erroneously believed that to return a life verdict, a unanimous decision was required. That argument, based on Whittaker’s fourth statement, also is without merit. Whittaker did not say that the jury ultimately misunderstood the court’s instructions on unanimity. Our conclusion is buttressed by the fact that the verdict sheet explicitly allowed for a non-unanimous verdict, and the trial court gave instructions on the issue of unanimity (which we reviewed in DiFrisco II, supra, 137 N.J. at 483-89, 645 A.2d 734).

Defendant seeks the exceptional remedy of interviewing jurors not because a deliberating juror presented an affidavit alleging misconduct, see State v. Kociolek, 20 N.J. 92, 95, 118 A.2d 812 (1955), but based on statements of an alternate juror as conveyed through PCR counsel’s affidavit. In State v. Koedatich, we denied a similar motion because “the contents of a single newspaper article, indisputably hearsay, cannot be the sole basis for the extraordinary procedure of a post-trial jury interrogation.” 112 N.J. 225, 289, 548 A.2d 939 (1988). Our conclusion is the same here. Defendant has not made the strong showing necessary to warrant the extraordinary procedure of post-trial interrogation of the retrial jurors.

E.

Ineffective Assistance of Experts

Defendant seeks reversal of his death sentence on the ground that he was deprived of his right under federal and State law to receive effective assistance of experts at the sentencing phase of his trial. We conclude that defendant’s claim of ineffective assistance of experts is not separately cognizable in the context of this petition. Stated differently, defendant’s claim is subsumed under the auspices of an ineffective assistance of counsel claim.

In Ake v. Oklahoma, the Supreme Court declared that meaningful access to justice, under the Fourteenth Amendment to the federal Constitution, requires that the government provide an indigent defendant with “the basic tools of an adequate defense or appeal.” 470 U.S. 68, 77, 105 S.Ct. 1087, 1093, 84 L.Ed.2d 53, 62 (1985) (internal quotation marks and citation omitted). The Court determined that when a defendant demonstrates that sanity will be a significant factor at trial, the government must assure that the defendant has access to “a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation” of the defendant’s ease. Id. at 83, 105 S.Ct. at 1096, 84 L.Ed.2d at 66. The Court was careful to note, however, that an indigent defendant did not have a right to choose a specific psychiatrist or to receive funds to hire his or her own expert. Ibid.

Numerous courts have cited Ake for the proposition that due process requires appointment of an expert when an indigent defendant establishes a substantial need for such an appointment, without which the fairness of his or her trial will be called into question. See, e.g., Terry v. Rees, 985 F.2d 283, 284-85 (6th Cir.1993) (involving pathologist on cause of death); Little v. Armontrout, 835 F.2d 1240, 1243-45 (8th Cir.1987) (involving expert on hypnosis); State v. Coker, 412 N.W.2d 589, 592-93 (Iowa 1987) (involving expert on intoxication defense); Harrison v. State, 635 So.2d 894, 900-02 (Miss.1994) (involving forensic pathologist).

Prior to Ake, New Jersey courts had found the assistance of experts to be guaranteed by the right to effective assistance of counsel under Article I, paragraph 10 of the New Jersey Constitution. See State v. Green, 55 N.J. 13, 18, 258 A.2d 889 (1969) (analyzing right to appointment of expert within framework of right to counsel). Additionally, this Court determined that a specific provision of the Public Defender Act, N.J.S.A. 2A:158A-5, grants indigent defendants in New Jersey the statutory right to the assistance of experts necessary to their defense. In re Cannady, 126 N.J. 486, 492, 600 A.2d 459 (1991); see also In re Kauffman, 126 N.J. 499, 501, 600 A.2d 465 (1991) (finding that “the Public Defender Act mandates that the [Office of the Public Defender] pay for expert services that are necessary to any indigent defendant’s case”).

We find no reason to depart from our precedent in Green and similar cases that have analyzed the right to effective assistance of experts as part of a defendant’s right to the effective assistance of counsel. We read Ake as merely confirming the guarantees regarding expert services already provided to defendants through our State Constitution and the Public Defender Act. To conclude otherwise would require New Jersey courts to sort out difficult distinctions between expert opinions. As federal courts have noted, a difference in opinion among experts is not unusual, Harris v. Vasquez, 949 F.2d 1497, 1522 (9th Cir.1991), cert. denied, 503 U.S. 910, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992), and to allow defendants to litigate such disagreements would place courts in “a never-ending battle of [experts] appointed ... for the sole purpose of discrediting a prior [expert’s] diagnoses.” Silagy v. Peters, 905 F.2d 986, 1013 (7th Cir.1990).

We are mindful that a psychiatric or other expert may provide substandard services. However, the deficient performance that implicates a defendant’s right in that respect is the performance of counsel who obtained the expert’s examinations or presented the evidence at trial. Consistent with Ake and its progeny, New Jersey courts should continue to evaluate the competence of experts within the framework of a defendant’s claim of ineffective assistance of counsel. Accordingly, in view of our rejection of defendant’s ineffective assistance of counsel claims, we also reject defendant’s ineffective assistance of experts claim.

F.

Constitutionality of the Death Penalty Statute

Relying on our prior precedent, we cannot agree with defendant’s remaining argument that the death penalty statute is unconstitutional under either the federal or State Constitution. State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987); In re Proportionality Review Project (II), 165 N.J. 206, 757 A.2d 168 (2000).

IV.

Summary

We do not suggest that retrial counsel’s performance was the model of representation in a capital ease. To the contrary, the record indicates that counsel could have exercised greater care in managing the various experts and investigators in the case, and given better guidance to those experts charged with finding mitigation evidence. Moreover, counsel’s experience level was not what we have come to expect in capital litigation. To prevail in this setting, however, defendant must do more than show that his retrial counsel lacked experience with New Jersey’s capital sentencing system. He must demonstrate that such inexperience reflected an objectively unreasonable level of performance, and that it ultimately resulted in errors or omissions that substantially affected the jury’s deliberations.

Defendant has not carried that considerable burden. Demonstrating his purported remorse was a difficult task for even an experienced capital litigator because of the nature of defendant’s conduct. As for other possible mitigation, the fact that the jury unanimously found two factors related to defendant’s relationship with Franciotti indicates that counsel performed adequately in focusing jurors on that aspect of the defense. Additionally, counsel’s efforts to portray defendant in a more positive light were blunted by defendant’s criminal past. Prosecutors could have presented damaging rebuttal evidence had counsel given them that opportunity by opening the door to that evidence.

The dissent asserts that we misconceive our appellate function. Not so. We do not conclude that a capital litigator acts reasonably by avoiding mitigating evidence that contains any negative component, however slight. Rather, our analysis merely recognizes the reality, seemingly ignored by the dissent, that the unfavorable aspects of the available mitigation evidence significantly diminished its usefulness to defendant. As made clear by our rationale in Martini, supra, 160 N.J. at 261-62, 734 A.2d 257, such considerations are entirely consistent with the Court’s appellate function.

The jury considered, found, and weighed evidence of mitigation, and nonetheless determined that the aggravating factor outweighed the mitigating factors beyond a reasonable doubt. According counsel the heavy measure of deference to which they are entitled in these circumstances, we cannot trespass on the jury’s finding. We are confident in our belief that even if retrial counsel had performed to the level advocated by PCR counsel, it would not have substantially affected the jury’s penalty-phase deliberations. We thus reject all claims of ineffective assistance of counsel and of experts, and likewise find no reversible error on the part of the PCR court.

V.

Conclusion

The judgment of the Law Division denying defendant’s petition is affirmed.