State v. Chew

Finally, importantly, warnings and most we must heed the indicating the data before us a risk that has racism infected our capital punishment supplement scheme. When we the consistent (all role) statistical models playing which indicate that race is experience knowledge, with our common longer we can no present. conclude that such a risk is not must We declare the penalty death statute unconstitutional and vacate defendant’s sen- tence until such time as we can certain be that we are not executing individuals on the basis of their race.

I, therefore, dissent. PORITZ, For Justice and Justices affirmance —Chief POLLOCK, O’HERN, GARIBALDI, STEIN and COLEMAN —6.

For reversal—Justice HANDLER —1.

731 A.2d 1070 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW CHEW, . v. JOHN DEFENDANT-APPELLANT Argued March 1998—Decided June 1999. Garelick, Defender, Deputy Mordecai D. Assistant Public Clau- Astore, II, Wyk Deputy dia Van and Matthew Public Defenders (Ivelisse Torres, Defender, argued appellant the cause for Public attorney). General, argued Barlyn, Deputy Attorney A the cause Bennett (Peter Vemiero, Attorney Jersey). of New respondent General opinion of the Court was delivered

PORITZ, C.J. (1997) (Chew Chew, 30, I), we In v. 150 N.J. 695A.2d 1301 State conviction and death sentence for the affirmed John Chew’s “preserve[d] chal murder of Theresa Bowman. We defendant’s review, of his for later lenge proportionality to the death sentence” 1301; 2C:11-3e, and now find no 695 A.2d see N.J.S.A. id. disproportionality.

I

Facts I, supra, 150 N.J. at The facts are set forth detail Chew 42-50, only repeat 695 A.2d 1301. here that which is relevant We proportionality to our review. morning January police body

On the found the Theresa Bowman the driver’s seat John Chew’s Corvette. parked Woodbridge parking The car in the rear of the Hilton approximately lot. Ms. Bowman’s throat had been slashed ten eyewitness police An informed that he had seen hours earlier. the “grabbing” police in car. inter- a man a woman When afternoon, viewed Chew at his home that he told them that he had 12,1993. evening January last Bowman on the of seen Ms. Chew accompanied him of claimed that Ms. Bowman had to the home his sister, Charette, Crystal and then had driven off alone in his left, Corvette. Chew said that after Ms. Bowman he remained roommate, Borden, with his sister and her Helen for an hour-and- a-half and then both women drove him to his residence. statement, police first returned

After the obtained Chew’s Chew to his sister’s home. He told his sister and her roommate that he something expected to be blamed for he had not done. He said drug gone He that a deal had bad and that he needed an alibi. they police asked the two women to tell the had been 12, January evening him the and that he had remained at on of evening. They agreed. home the entire 14, 1993, January police spoke to Chew’s sister and her On meeting, corroborated roommate. At this first the women Chew’s night version of his activities on the of the murder. Later that day, questioning produced taped further a statement. Chew repeated story provided his initial information about his Chew murder, relationship with Ms. Bowman. At the time living together years. couple had been for over four telephone January police received several calls On murder. The first call came impheating Chew Ms. Bowman’s joint couple an who had sold the a life from insurance salesman policy policy, was to receive insurance 1991. Under the Chew $250,000 agent The informed the on the death of Ms. Bowman. 1992,just police days Eve thirteen before the that on New Year’s murder, stopped agent’s had at the home and had asked to Chew pay premium agent in cash. Chew told the that his the December policy lapse. that he did not want the check had bounced and directly agent police told the that no customer had ever come to his home with cash before. Chew’s, Tilton,

George employee also called the former police that had on police. Tilton informed the Chew $10,000 him to kill Ms. Bowman. numerous occasions offered Tilton, girlfriend kill in order to According to Chew wanted to collect on her life insurance. son, Chew, from Robert who at the

The third call came Chew’s County Robert Chew said time was incarcerated at the Ocean Jail. plan him to kill Ms. that in December 1991 his father told about proceeds. Bowman for life insurance F., Randy police yet additional corroboration from received mechanic, Bowman were a who said that he and Ms. Linden F., Randy having According an affair. to Ms. Bowman had him planned and move in with as soon as Chew to leave Chew At monetary settlement from an unrelated lawsuit. recovered trial, phoned January him on Randy F. testified that Ms. Bowman driving were to a location on 12 and told him that she and Chew up check. Parkway pick Chew’s settlement the Garden State motive and a reason for suggested All this information both a $250,000 timing Bowman’s murder: wanted the of Ms. Chew payment due on her death and feared that she would insurance policy. soon leave him and cancel the Chew, January police arrested and a team of On investigators again questioned his sister and her This roommate. time, story, implicated that the women told a different one John called from his home on Chew. Chew’s sister said Chew her pick up him at the night of the murder and asked her to Woodbridge Hilton. Chew told his sister that he and Ms. Bow- going pick up paycheck man were to the hotel to her he immediately, wanted to return but Bowman wished to remain with friends. Chew’s sister arrived with Borden at the hotel When lot, parking get she saw Chew out of his Corvette. He was not injured, clothing. but there was on his Chew removed his blood clothes, put plastic bag, into a instructed Borden outer them bag. put bag. in the He then discarded the Chew’s bleach home, police they sister told the that after returned to Chew’s her police brother told her what to tell the and threatened her. “scream,” story Borden’s was similar. She said she heard a later, that she believed came from the a minute Corvette. About got ran out of the Corvette and into the car with his sister Chew and Borden. being inculpatory

After confronted with the statements of his roommate, statement, agreed give taped sister and her Chew merely refused to discuss the murder. His first account but placed acknowledged him at the scene of the crime and that his sister and her roommate had driven him home from the Wood- bridge Hilton. The trial court held that this statement was inadmissible because it was obtained violation of defendant’s right to counsel. concluded,

Later, provided the the Chew taped after statement January of 12. a version of the events police with more detailed gone he Bowman had to the This said that and Ms. time Chew complete drug night the murder to Woodbridge Hilton on the of only to the deal she knew deal. Ms. Bowman was handle because the drug that he waited inside the other dealer. Chew stated Hilton, Bowman was that he returned to the car Ms. and when dead. attempted lawyer then unsuccessfully to contact his and

Chew spoke crime He of the cocaine began again. to talk about the deal, acknowledged Ms. was alive when this time Bowman but Chew, According Ms. to Bowman he returned to the Corvette. buyer “ripped off’ the and she and Chew claimed she was began quarrel. During argument this Ms. Bowman told Chew Randy F. then off” having an affair with Chew “went that she was on her. account, gave police new the readministered

After Chew this gave warnings He another signed and Chew waiver. Miranda driving again acknowledged he taped in which statement night January of Woodbridge Ms. Bowman on the Hilton with earlier, police that he kilo of As Chew told to sell a cocaine. buyer Ms. prospective buyer because the did not know car Bowman waited in the contact. He said that Ms. Bowman’s doorway in the of the Hilton. buyer stayed that he minutes, forty-five the Corvette after about When he returned to off,” they began to got ripped Ms. Bowman told him “she couple hit him argue. that Ms. Bowman “a times Chew said not him in the chin. He claimed he did face” and scratched [the] stabbing her. remember who, fight, her roommate left with his sister and

After the Chew up He him at the Hilton. request, pick had come blood, of all but denied being frightened remembered because the murder. Chew also knowing had committed whether he clothing asking his sister and getting bloody of his recalled rid on police her to talk to the about his whereabouts roommate not night the murder. claimed he He did not remember them, I threatening acknowledged but that “there’s much don’t so hearing, remember.” At the Miranda two corrections officials testified that Chew did not to be influence seem under the statement; drugs rather, or undue stress when made this he he appeared cooperative. calm and purposeful knowing by

Defendant was indicted for or murder conduct, possession weapon his own of a for purpose, an unlawful threats, by terroristic and other offenses later the trial dismissed prosecutor court. The of aggravating served notice one factor: that defendant killed Ms. Bowman as receipt, consideration for the or in expectation receipt, anything of the of pecuniary of value. 2C:11-3c(4)(d). N.J.S.A 13, 1995, jury On June the returned a on guilty purposeful knowing verdict of two counts: or murder 2C:11-3a(1) conduct, in violation of N.J.S.A defendant’s own or (2), possession of weapon purpose, a for an unlawful violation of N.J.S.A. 2C:39-4d. trial,

At penalty-phase the jury, the defense informed the board, through parole a of thirty years prison member the potential Chew’s A alternative sentence. of number witnesses testified personal about defendant’s childhood and relation- ships. A forensic social worker interviewed members and family reviewed records. family drinking beatings, binges, She described a of family history abuse, unfaithfulness, encouragement. and lack of or love Defendant’s mother and testified sister similarly. daughter Defendant’s of eleven-year-old Valerie her love her father spoke and of her contacts with him. A concluded that contin- family therapist Valerie’s ued contacts with her father would have a effect and two of positive that the them enjoyed gave sought Defendant an positive allocution in which he relationship. daughter. for the sake of his

mercy

[Chew I, at 49-50, 1301.] 150 N.J. 695 A.2d supra, jury The guilty murdering found Chew of Ms. Bowman in expectation the receipt anything of of pecuniary value. The jury ten mitigating statutory also found factors under the catchall factor, 2C:11-3c(5)(h). Having unanimously N.J.S.A determined single aggravating outweighed mitigating factor fac- merged court

tor, penalty verdict. The jury death returned and sentenced with the murder conviction weapon conviction directly to this Court as of appealed to death. Defendant Chew sentence, 2:2-1(a)(3), his conviction R. we affirmed right, I, 1301. supra, 150 N.J. at 695A.2d Chew request for preserved I defendant’s we noted and In Chew review, ibid., find 2C:11-3e. We now see N.J.S.A proportionality dispropor to be not shown his death sentence that defendant has tionate.

II Proportionality Review “is to goal proportionality review deter principal dispro is defendant’s death sentence particular mine whether a compared other defendants portionate” when sentences DiFrisco, v. similarly 142 N.J. who are situated. State (DiFrisco (1995) III); By N.J.S.A 2C:11-3e. 662 A .2d see ‘“to death comparison, the Court seeks ensure this rational, non-arbitrary, and in a penalty being is administered manner, consistency.’” fairly and with reasonable evenhanded II) (1999) 253, 265, (Loftin Loftin, 129 v. 157 N.J. 724 A.2d State (1992) Marshall, 109, 131, N.J. A.2d 1059 State v. 130 613 (quoting (Marshall II)). is considered dis A defendant’s death sentence jurisdiction who have if in the proportionate other defendants life similar offenses and receive similar characteristics commit (1994) Martini, 3, 20, 651 A.2d 949 v. 139 State N.J. sentences. (1994) (Martini 343, II); 334, A.2d 685 Bey, v. 137 N.J. 645 State II, 131, IV); supra, 130 at 613 A.2d 1059. (Bey N.J. Marshall sentence is aberration must show that “death The defendant IV, 352, A.2d Bey supra, 137 N.J. at 645 685. al.” proportionality review: ‘substan aspects “There are two review; ‘offense-oriented,’ tive,’ ‘procedural,’ or ‘offender- or 160, III, oriented,’ 662 A.2d 142 at supra, DiFrisco N.J. review.” 1059). 126, II; A.2d supra, N.J. at 613 (quoting 442 Marshall 130 196

Substantive or offense-oriented review examines “the offense to punishment is imposed determine whether excessive rela Ibid.; II, supra, tion to the crime itself.” see also Martini 139 20, at 651 A.2d 949. Procedural N.J. or offender-oriented review review, on “In question focuses the defendant. such is “wheth ” III, punishment supra, er the fits the criminal.’ DiFrisco 161, II, at 442 (quoting supra, N.J. 662 A.2d Marshall 130 N.J. at 1059) (additional omitted). quotations 613 A.2d internal Our review here is offender oriented.

A. Universe Cases any proportionality Our first to review is determine step universe compare of cases that we will use to with the defendant’s case. The 1992 to amendment N.J.S.A. 2C:11-3e comparison group only limits this to those cases in a which death actually II, however, imposed. sentence has been In we Loftin indicated that we were uncertain whether this limitation would “preclude[] meaningful appellate review.” 157 at N.J. prior A.2d 129. our We noted that cases II had Loftin. proportionality “established the size of the review universe to include death-eligible both pro defendants and defendants who trial____[and] to penalty categories ceed that such broad would provide the most useful information about how decisions are made capital sentencing system by prosecutors by juries.” (citations omitted). 264-65, questions Id. 724 A.2d 129 Because efficacy had been about present system, raised of the we asked special proportionality master our examine review methodolo gies report to the Id. at Court. A.2d 129. Until our special findings review of the master’s and recommendations is complete, are and we able determine the effect the 1992 function, amendment on our review “will to compare we continue death-eligible 317, all homicides with the case before Id. us.” at 724A.2d 129. (“AOC”) compiled

The Administrative of the Office Courts the data we will use in this case in Chew/Cooper/Harvey

197 Report. death-eligible cases known to the report includes all The 31, Barraco, Joseph July as of Memorandum from J. AOC 1997. Director, AOC Criminal Practice Division Esq., Acting Assistant Chief, Services, Rossi, Criminal Esq., Nina Assistant Court and Division, Townsend, W. Clerk Stephen Practice Criminal 1997) (Barraco (Dec. 3, Memoran 1 Jersey Supreme New Court dum) (on AOC). date, were, There as of that 401 file with the eases, forty-one percent, proceeded death-eligible of which 163 or ¡Harvey Chew!Cooper Report, tbl. 3. Of 163 penalty to a trial. cases, percent, in a death fifty, thirty-one or resulted penalty-trial Id., death-sentencing rate sentence. tbl. 2. overall (6V). Id., percent tbl. 1. therefore twelve Classifying B. Method of Cases determined, is database is Once the universe cases a considering comparison cases. In developed from the facts of the priori approach an data, approaches: an “we use two these II, 323, supra, N.J. at 724 A.2d empirical approach.” 157 Loftin III, 163-64, supra, 142 N.J. at 129; 662 A.2d see also DiFrisco IV, II, 949; Bey 24, supra, 139 442; A.2d Martini N.J. at 651 II, supra, N.J. 345, 685; 130 supra, 137 N.J. at Marshall 645A.2d 141-42, through experience A.2d 1059. We have learned at 613 decisions, capital-sentencing the factors that affect priori approach, we eases based on those factors. examine Loftin III, II, supra, 142 129; supra, DiFrisco 323, 157 N.J. at 724 A.2d II, 24, supra, 139 N.J. 164, 442; at Martini 651 N.J. at 662 A.2d IV, 345, Marshall 685; Bey supra, 137 949; A.2d N.J. at 645 A.2d II, 141-42, empirical “In supra, N.J. at A.2d 130 613 1059. method, to death who were sentenced we review both defendants ‘identify not to characteristics those were those who sentencing disparate outcomes. patterns’” behind determine II, 323-24, (quoting supra, N.J. at A.2d 129 724 157 Loftin III, supra, 442); see also 142 N.J. at A.2d DiFrisco IV, supra, 949; II, Bey supra, N.J. at Martini 651 A.2d II, supra, 130 N.J. at Marshall 685; 137 N.J. 645 A.2d 142-43, on By the cases based A.2d 1059. this method we sort 198 by prosecutors

the factors juries found “most be relevant.” II, supra, Marshall 143, 130 N.J. at 613 A.2d 1059. past

Consistent our practice, penalty reversed death prosecutor cases “where the proceed chose not to capitally on II, remand” are in included the death-sentenced universe. Loftin supra, 324, III, 129; N.J. 157 at 724 supra, also DiFrisco A.2d see II, 164, at N.J. 442; 142 supra, Martini 662 A.2d 139 N.J. at 25- IV, 26, 949; Bey supra, 651A.2d 137 N.J. at 345-49, 685; 645 A.2d II, supra, Marshall N.J. at 10, 130 194 n. 613 A.2d 1059. We continue to original believe that the penalty death verdict is a useful jurors’ reflection of views of a defendant’s deathworthiness. II, supra, 157 N.J. at 324, Also, will, 724 A.2d 129. as we Loftin before, consider data that includes the defendant and data that excludes him. Ibid.

Ill Comparison of Cases Having established both the of universe cases and the “ coded, standards which the cases are we ‘next group those ” according cases to their comparative levels of blameworthiness.’ Ibid, II, supra, Martini (quoting 139 N.J. at 28, 949). 651A.2d In analysis this measure “[w]e according blameworthiness to statuto ry aggravating mitigating factors as as nonstatutory well objectively-verified factors based on measures blameworthi ness.” Id. 324-25, (internal omitted). at 724 A.2d 129 quotations We using evaluate these factors approaches: two frequency analy sis and precedent-seeking In frequency review. analysis, we compute the sentencing rate of death in cases similar to defen attempt dant’s case in an to “measure[] the societal consensus that death is the appropriate penalty in the Bey measured cases.” IV, supra, 137 350, N.J. at 645 A.2d 685. In precedent-seeking review, engage we in a case-by-case traditional analysis “Compare the factually-similar defendant’s case to cases to deter mine whether the defendant is deathworthy light similarly- II, A.2d supra,, 139 Martini N.J.

situated defendants.” II, supra, 157 N.J. at 949. we discussed As Loftin reliability frequency about the A.2d of concerns because deciding review, review precedent-seeking have focused on we disproportionate. death sentence is whether a defendant’s Group Adjustments Comparison A. in catego in death-eligible defendants places The the various AOC in aggravating present the factors subcategories based on ries and Report, 7. There are Chew/Cooper/Harvey tbl. their See cases. subcateg contains two to seven categories, each of which thirteen 1 ories. review, not frequency has defendant purposes For the category AOC any changes Court to make asked the however, State, inclusion objects to the AOC’s assignments. The pecuniary-motive in the and Michael Rose of Walter Williams death-eligible IB in the universe. category, and of Clausell James and Rose should be deleted agree that Williams We State jury in cases the comparison group because both from Chew’s aggravating at defendants’ rejected pecuniary-motive factor III, supra, 142 N.J. at penalty trials. also DiFrisco See categories basic are: thirteen victims; (A) Multiple above; (B) A Murder Conviction without Prior above; (C) Sexual Assault without A-B above; (D) Servant without A-C Victim Public above; above; (F) (E) Robbery A-D Arson without A-E without above; (G) Burglary [sic] A-E without above; (H) Kidnaping A-G without above; (I) Pecuniary without A-H Motive above; (J) Torture/aggravated assault without A-I above; (K) Depravity without A-J of Mind (L) statutory aggravating primary circumstance risk of death as Grave above; A-K without Detection, etc., (M) Escape sole factor without A-L above. as Report, [Chew/Cooper/Harvey 7.] tbl. (deleting pecuniary-motive A.2d 442 Williams from DiFrisco’s comparison group jury rejected pecuniary-motive because “the trial”).2 aggravating penalty agrees factor at his Chew also belong Williams not in comparison group. does As to the IB, inclusion Clausell because the defendant was retried for capital properly death-eligible murder he included universe. review, purposes

For of precedent-seeking defendant suggested has thirty-four that we an consider additional cases. Thirty-two murders, robbery of those type cases are of murder significantly pecuniary-motive is different from murders. See I, supra, Indeed, Chew 150 N.J. at pecuniary- 695 A.2d 1301. are likely motive murders three-and-a-half times more result death robbery-murders. sentences than Chew/Cooper/Harvey are Report, cases, tbl. As 7. to the other two burglary one was a prosecution murder which the did pecuniary- not submit the aggravating jury, motive factor to the and the other involved A(l) multiple placement in an victims resulted in AOC the multiple category. Again, victim we decline to alter the decision to place only a in comparison defendant one category. DiFrisco III, 167, supra, 142 N.J. at 662A.2d 442.3 2 Although jury rejected aggravating the Rose the factor, pecuniary-motive group. Rose was included in DiFrisco's III, DiFrisco 142 comparison supra, 208, N.J. at 662 A.2d 442. We understand that it is AOC's informal practice generally category to exclude I defendants from the where the pecuniary-motive c(4)(d) jury rejected has factor. We will follow that here. practice 3 again The dissent once takes issue classification principle unique to seeks include certain defendants in robbery-murder Chew's comparison group because, view, in the dissent's their crimes have certain characteristics in common with Chew's Post 263-64, crime. at at 731 A.2d 1113-14. No doubt we could discover still other whose defendants murders share common factors. understanding science, Our not are an exact but an aid rather to comparisons defendant's sentence in relation other death to defendants share whose murders the same II, 321, "essential attribute.” 157 N.J. at 724 A.2d 129. supra, Loftin

-201 Frequency Analysis B. through frequency analysis seek to determine

We that defendant in the is a consensus whether there societal may sufficiently culpable such that sentence case us is before compare the defen not aberrational. We therefore be deemed defendants, those who have culpability with that of other dant’s “The and those who have not. basic sentenced death been degree of approach is whether the question frequency supports expec an reasonably case the instant blameworthiness result in a death sentence.” generally a case will tation such II, 30, supra, 139 N.J. at A.2d 949. Some statistical Martini 651 expected. “Proportionality review disparity is permissible, indeed is only particular death sentence to determine whether a seeks aberrational, compares perfectly with other sen not whether it IV, 352, Bey supra, 137 N.J. at A.2d For this 645 685. tences.” reason, repeatedly set threshold at has declined to “the Court penalty disproportion imposition of the death becomes which the II, 322, 129; see also supra, 157 N.J. at 724 A.2d ate.” Loftin II, 442; III, Martini 171-72, supra, 142 N.J. at 662 A.2d DiFrisco IV, Bey supra, 137 N.J. at 949; supra, 139 30, N.J. at 651 A.2d II, 685; 152-54, supra, 130 N.J. at 613 Marshall 645 A.2d designed provide “an Frequency analysis is not A.2d 1059. III, supra, 142 DiFrisco N.J. swers, at guidelines.” but 442. A.2d II, 31-32, 949, we supra, N.J. at

In Martini 651 A.2d techniques frequency used explained fully more the statistical except note repeat explanation here analysis. will not We II, frequency of three tests: review consisted that before Loftin test; test; and numerical-preponderance the salient-factors III, supra, 142 N.J. at DiFrisco See test. the index-of-outeomes II, 29-30, supra, 139 N.J. 442; 651 A.2d Martini A.2d 350-51, 685; IV, Marshall 949; Bey supra, 137 645 A.2d N.J. at II, II, supra, 157 154, supra, N.J. at A.2d 1059. In 613 130 Loftin 295, 129, numerical-preponder N.J. at eliminated the 724 A.2d we decided its inherent We test because of ance limitations. 202 frequency

conduct review means of the salient-factors and Special index-of-outcomes tests even as the appointed Master we developed respect recommendations of these tests. two 157 N.J. at 317, 724 Although Special A.2d 129. Master has Report report, Baime, submitted his to the Honorable David S. Jersey Supreme New Proportionality Court: Project Review 1999), (Apr. 28, yet we have not argument heard oral on the contains, recommendations it and therefore decline to comment on report or use the in this case. We note that both the defendant dissent, post 266, 1115, and the question at 731 A.2d at call into validity of frequency approach, pointing sample to small large sizes and confidence intervals. For on discussion confi dence intervals see 6, at n. 209 731 A.2d at n. 1084 6. We infra too remain concerned about the reliability frequency statistical analysis, shall, prior proportionality as in our opinions, review II, rely principally precedent-seeking on supra, review. Loftin III, 157 N.J. at 296, 129; supra, DiFrisco 724 A.2d 142 N.J. at II, 171, 442; supra, Martini 28-29, 662 139 N.J. at A.2d 651 A.2d IV, 949; Bey supra, II, 350, 137 N.J. at 685; Marshall 645 A.2d supra, 173-74, at N.J. 613A.2d 1059. Test

1. Salient-Factors test, “In the compare salient-factors we defendant’s sen faetually-similar tence to sentences in cases order to measure III, frequency the relative of defendant’s sentence.” DiFrisco supra, N.J. at test, 662 A.2d 442. In this we first categorize statutory factors, cases on aggravating based and then further group subdivide the ‘“according to circumstances that aggravate, serve either to mitigate or to the blameworthiness of ” II, supra, the defendants in those cases.’ 157 N.J. at Loftin II, supra, Martini (quoting 724 A.2d 139 N.J. 651 A.2d 949). designed The test is to determine the relative likelihood committing defendant type a certain particular of crime in a manner will receive penalty. the death Because the salient-factors factually test utilizes similar as a comparison, cases basis for we

203 of the persuasive as most “consistently test] the [this have viewed III, Ibid.; supra, 142 N.J. at frequency see also DiFrisco tests.” 949; II, 33, at 651 173, 442; supra, 139N.J. A.2d A.2d Martini 662 II, 685; 353, supra, IV, Marshall Bey supra, N.J. at 645 A.2d 137 168, A 1059. 130 at 613 .2d N.J. Chew/Cop pecuniary-motive killer. categorized as a

Chew is pecuniary-motive category is 7A. The per/Harvey Report, tbl. 1, killing subcategories: “a contract into four further divided I— killer;” 1-2, killing with defendant “a contract with defendant the pecuniary 1-3, principal;” motive was obtain “defendant’s inheritance) occurring upon of law (e.g., as a matter advantage death;” 1-4, to kill him paid “the victim the defendant victim’s Id., as an 1-3 killer. AOC has classified Chew or her.” 6. The tbl. subcategory, Id., Excluding from the 1-3 7A. Williams tbl. Walter 1078, defendant, 199, only one other supra at 731 A.2d at see analysis reason, any Payne, For statistical remains. this Celestine unproductive. only subeategory would the 1-3 be that considered group of with the entire Accordingly, compare will defendant we See, III, supra, 142 N.J. e.g., DiFrisco pecuniary-motive killers. DiFrisco, a (comparing pecuniary-motive 442 662 A.2d cate subcategory, murderer to the entire category, contract-killer murderers).4 gory pecuniary-motive cases, proceeded nine eligible category I Of the sixteen cases, result- penalty-trial five stage, of the nine penalty-trial sentences, The death- including defendant’s case. ed in death killers is death-eligible pecuniary-motive sentencing for all rate ad- death-sentencing rate for those thirty-one percent, fifty-five rates percent. These penalty-trial stage to the is vancing killings argue colleague or dissenting that "inheritance continues Our killings murders —are not non-contract for insurance proceeds specifically, — meaning statute.” Post at of the death penalty within "pecuniary" we I, 50-57, 695 A.2d explained Chew 150 N.J. at A.2d at 1109. In killings within the are included motivated properly insurance or inheritance c(4)(d). will not gain" aggravating 2C:11-3 We factor, N.J.S.A. "pecuniary discussion here. repeat considerably higher death-sentencing are than the overall rates of percent death-eligible thirty-one percent twelve for all killers and penalty-phase all Removing cases. defendant’s case from the group somewhat, lowers rates but we when look at the overall death-sentencing rates without defendant there is no diseernable difference.

We penalty observe that the death imposed is frequently more pecuniary-motive in the category general than in death-eligible the and penalty-phase juries groups, regularly and that pecuniary find motive deathworthy. killers be

“While we are sample mindful that small prevent sizes us II, relying test,” from on the results of supra, 157 N.J. this Lofbin 329, 129, at 724 A .2d significant proportion because a of defen dants in pecuniary-motive category have received death penalty, we conclude that the test does not dispropor demonstrate tionality.

2. Index-of-Outcomes Test ‘“comparéis] index-of-outeomes test cases are factually dissimilar but that comparable are nevertheless from the ” 330, Id. at blameworthiness.’

perspective of the defendants’ II, 949). 42, supra, 139 N.J. at Martini 651 A.2d (quoting A.2d 129 tests, comparison the basis for here is not “Unlike the other roughly-equiva patterns or numerical indices but ‘a similar factual ” II, supra, Martini 139 N.J. lent measure of blameworthiness.’ II, 172, supra, 130 N.J. at 42, Marshall (quoting at 651 A.2d 949 1059). compare of different 613 A.2d ‘We the blameworthiness statistically-relevant culpability measures of defendants Ibid.; IV, Bey see also found in the circumstances of their cases.” 362, supra, 137 N.J. at By approach, this we 645 A.2d 685. statutory nonstatutory, aggravating and attempt weigh according to influence each carries with mitigating “factors III, supra, 142 N.J. at DiFrisco jurors.” prosecutors and A .2d442. test, conducting we can use two differ

In the index-of-outcomes culpability prior estimates of defendants. ent sets of data II, supra, 139 N.J. utilized the Martini In 651 A.2d we prior report for the compiled data in each defendant’s AOC II, Martini howev culpability estimates of that defendant. Since er, compiled by the in its most utilized the data AOC we have II, 331-34, supra, 157 N.J. at 724 A.2d See Loftin report. recent III, 180-82, supra, DiFrisco 142 N.J. at 129; 662 A.2d 442. may vary culpability defendant’s measures Although an individual report, utilizing the data in the slightly report from to Chew/Coo per/Harvey Report will enable us to assess Chew’s culpability most death-sentenced defendants based on the relative to other II, 289, supra, estimates. See 157 N.J. at 724 A.2d recent Loftin general principle, a matter of the broadest (stating 129 “[a]s provide should the most useful possible statistical database infor mation”). relatively reports in the over this the variations While they analyses, alter the results of our period of time do not short regarding the usefulness of growing to our concern do contribute supra at Nevertheless, as indicated test. the index-of-outcomes 1079-80, 201-02, employ the test in at we will continue to 731 A.2d Special of the complete form until we our review present its findings Master’s and recommendations.

206 Chew/Cooper/Harvey Report prepared contains tables that are based on multivariate models5 measure AOC Chew/Cooper/Harvey Report, technical culpability.

defendants’ culpability, app. placed 9 at 1. The cases are into five levels jury that a predicted probability on the for each defendant based culpability of death. Those levels are: would return a sentence one, twenty percent of a death sentence level less than a likelihood returned; two, less-than-forty being twenty percent; level to level three, four, forty less-than-sixty percent; sixty to level less- and, five, than-eighty eighty per percent; level one hundred involving cent. Cases similar levels of blameworthiness are there III, together by grouped comparison purposes. DiFrisco 179, 442; II, supra, supra, 142 N.J. at 662 A.2d Martini 139 N.J. 42-43, at 651A.2d 949. eases, prior proportionality urges in our

As review the AOC analyses, relying stating caution in on the results of these impact a positive “the addition of cases over time has had on the models, stability pur culpability of the estimate which [but] ports give ‘predicted probability of a death sentence’ is often soft, given still too and little substantive reliance should be to this Chew, Cooper, Harvey statistic in the cases.” Barraco Memo randum, 4; II, supra, supra, at see also 157 N.J. at Loftin “ again 724 A.2d 129. therefore once must ‘treat the index-of- We ” III, accordingly.’ findings supra, outcomes DiFrisco 142 N.J. II, (quoting supra, 442 A.2d Martini 139 N.J. at 949). A.2d

The results of the index-of-outcomes test tabular form are as follows: regression, “multiple-regression Multivariate also as otherwise known analy- sis[,] is a statistical tool used to describe the one or more between relationship murder) (e.g., (e.g., variables and a variable independent prior dependent penalty)." (citing II, 157 N.J. at 295 n. 724 A.2d 129 supra, death Loftin Project, Baldus, David C. Death Review Final to the Penalty Proportionality Report 1991)). (Sept. 24,

New Court at 1.17 Jersey Supreme penalty- statutory nonstatutory factors

Considering both cases, sixty-seven percent predicted probabil- trial defendant has a sentence, probability range ity receiving a death Chew/Cooper/Harvey ninety-four percent. twenty-two percent sixty-seven percent probability of Report, predicted 22. The tbl. places culpability penalty-trial level four. Ibid. The Chew culpability seventy-five is sentencing death rate at that level (%). Id., 21. percent tbl. universe, comparison a

Utilizing the same factors and between prior proportionality and our review defendants reveals that Chew DiFrisco, Bey and comparable Chew’s rates are to those of Marshall, higher lower than those of Martini and far somewhat Id., figures 22. not demon- than those of Loftin. tbl. These do disproportionate. strate that Chew’s sentence is factors, nonstatutory Considering again statutory both and but eases, death-eligible expanding the universe to all Chew has a predicted probability percent, death sentence of a nineteen Id., probability range percent seventy-two percent. of two to tbl. one, ibid., places culpability 14. That defendant level which has id., Cfm), death-sentencing percent a rate of five 13. Al tbl. though only percent in culpability five of defendants level one have penalty, important received the death it is to that the remember (6%oi). just death-sentencing percent overall rate is twelve Ibid. Further, comparing previous proportionality Chew review de predicted probability fendants shows that the of a death sentence death-sentencing Bey and the rates for Loftin and are somewhat defendant’s, higher than and that defendant’s rates exceed those substantially of and Marshall are Martini and identical to those of Id., comparison DiFrisco. 14. support tbl. This also does not a finding disproportionality. of only

Considering statutory aggravating mitigating fac- tors, cases, limiting penalty-trial the universe to defendant has predicted probability ninety percent, probabili- a of of death with a Id., ty range fifty-one percent ninety-nine percent. tbl. 24. five, ibid., places culpability That defendant in level a which has (%), id., death-sentencing seventy-six percent rate of tbl. 23. statutory only, Considering using penal- factors the same universe, ty-trial probabilities Chew’s exceed those of the other proportionality support finding review defendants and do not a Id., disproportionality. 24. tbl. only

Finally, examining case the statuto- we look at defendant’s factors, ry using death-eligible entire universe. Chew has but probability forty-seven percent, of death of with a predicted Id., range percent eighty-eight percent. tbl. probability of nine three, places culpability 25. That defendant level which has (^7). Id. at tbls. death-sentencing fifty-two percent 25. rate Loftin, figures substantially to those of Chew’s are identical Id., again, those of the other defendants. tbl. 25. Once we exceed disproportionality. do not find that the index-of-outcomes test does not indi

We are satisfied Nevertheless, cate that Chew’s sentence of death is aberrational. wary previous proportionality we remain of this test. As in the “ cases, sample size of cases with similar review ‘the small levels great ranges in confidence inter blameworthiness and the 6 II, supra, prevent relying us from on the results.” vals’ Loftin III, supra, DiFrisco 295-96, 142 157 N.J. (quoting at 724 A.2d 129 442). 182, Moreover, N.J. at variability of defen 662 A.2d suggests further predicted probability dant’s of a death sentence that must the index-of-outcomes test is flawed and “we 334, Id. at 724 rely precedent-seeking continue to on review.” III, 183, supra, 142 see also DiFrisco N.J. 129; at 662 A.2d A.2d 442. Precedent-Seeking Review

C. to as com precedent-seeking approach, also referred

“The review, component proportion parative-culpability is the second II, 129; see 335, supra, 157 N.J. at A.2d ality 724 review.” Loftin III, 442; Martini 183, supra, 142 N.J. at also DiFrisco 662 A.2d 6 being sample quantity population a a in a is estimated on the basis of "When expressed range, population, a the estimate is sometimes drawn from that range____ probability This means that we can be called a confidence interval or population average ninety-five percent certain that the true lies within II, 330-31, pointed range." supra, we out in 157 N.J. at 724 A.2d 129. As Loftin II, being ranges probability to death from low when the sentenced Loftin high percentage, predicted probability percentage number is not useful. to a 331, Id. at 724 A.2d 129. 210

II, supra, 46, 139 N.J. at approach 651 A.2d 949. Under this we death-eligible examine cases similar to defendant’s case to deter compared mine whether his death sentence is aberrant when the sentences received defendants in those other cases. Identi “ expected required; closely-similar cal results are not or ‘even in cases____[proportionality merely requires review] that the defen ” punishment.’ Di- singled unfairly capital dant was not out III, supra, 142 184, Frisco N.J. at Martini (quoting 662 A.2d 442 II, supra, II, supra, 47, 139 N.J. at see also Loftin 949); 651 A.2d 157 N.J. at 724A.2d 129.

1. Relevant Factors undertaking

In precedent-seeking review we evaluate culpability by defendant’s considering statutory nonstatutory aggravating mitigating factors that “are ‘rooted traditional sentencing guidelines, clearly presented were sentencing to the jury, likely jury’s and are sentencing influence a decision.’” II, supra, IV, (quoting Bey 157 N.J. at A.2d Loftin supra, 685). N.J. recognize 645 A.2d We that even rejects factor, jury specific when a mitigating may it nonetheless by remain presented support influenced the evidence in of that Ibid.; III, supra, DiFrisco mitigating 185, factor. 142 N.J. at IV, 442; Bey supra, 137 N.J. at 368, A .2d 645 A.2d 685. We therefore include in culpability, our review of defendant’s informa supports mitigating rejected by tion that jury. factors the comparing defendants,

In defendant to other similar we II, three-part use a supra, culpability. model of criminal Loftin III, 336, 157 N.J. at supra, DiFrisco 129; 724 A.2d 142 N.J. at II, 203, 442, supra, Martini 74-75, 662 A.2d 139 N.J. at 651 A.2d IV, Bey 949, supra, II, 366, 137 N.J. at 685, 645 A .2d Marshall supra, 155, N.J. at weigh 613 A.2d 1059. We the evidence described in Marshall II: focusing categories on the the defen blameworthiness, victimization, dant’s moral degree the of and the 155, character of the defendant. 130 N.J. 613 A.2d 1059. We first review by examining defendant’s moral blameworthiness excuse,

motive, justification or evidence of mental premeditation, disturbance, disease, defect, helplessness of knowledge or victims, victim, defendant’s knowledge of effects on nondecedent etc., planning age, maturity, and defendant’s involvement victimization, degree consider the murder. Ibid. We then murder, brutality injury of the including the violence and Finally, the character of nondecedent victims. Ibid. we examine defendant, record, prior unrelated including his or her other violence, authorities, remorse, capaci- cooperation acts ty Ibid. for rehabilitation. Moral Blameworthiness

a. Defendant’s reveals that he is analysis An of defendant’s blameworthiness gain, that blameworthy. pecuniary motive was highly Defendant’s $250,000 is, to obtain insurance he killed Theresa Bowman comparison group is defined proceeds. Because defendant’s motive, approach precedent-seeking pecuniary his and because dispro- death sentence is seeks to determine whether defendant’s comparison out to others in his portionate to the sentences meted gener- only pecuniary-motive defendants have group, we note culpable. swpra at 731 A.2d ally highly been considered See at 1081. murderers,

Moreover, comparison pecuniary-motive to other him premeditation planning render the extent of Chew’s In blameworthy among group. the defendants in his exceptionally murder, defendant over nineteen months before June employee to kill Ms. Bowman so that defendant asked his former Then, in proceeds. the insurance December could collect Finally, girlfriend. plan about his to murder his Chew told son agent’s his insurance home unusual visit defendant made to killed demon- two weeks before Ms. Bowman was approximately leading up to planning in the weeks the defendant’s careful strates policy that the purpose was clear: to ensure the murder. His life. he could take Theresa Bowman’s lapse would not before equivocal provoked There is some evidence that Ms. Bowman police defendant at the time of the murder. Defendant told the him, that Ms. Bowman scratched and a detective noted that provocation defendant had scratches on his face. The AOC coded suggested as but not certain. mitigating

Defendant did not seek to establish as a factor that mentally during jurors, he was disturbed his adulthood. Nine however, found that he suffered “serious mental and emotional youth, by as a disturbance as was demonstrated his numerous juvenile years institutionalizations.” In seventeen before he Bowman, killed Ms. defendant escaping was arrested for from Psychiatric Hospital Marlboro where he had been sent psychiatric having evaluation after threatened to commit suicide prison. while in Defendant’s childhood mental defects and his suggest threats to commit suicide could that he suffered from a Yet, mental disease at the time of the murder. these events many years occurred pres- before his crime. Defendant failed to testimony ent direct any that he suffered from mental illness when Bowman, he murdered Ms. and therefore this element carries weight little in our determination.

Although Ms. Bowman any did not suffer from ailment that inherently helpless, rendered her defendant killed her while she trapped in the driver’s seat of his Corvette. The driver’s side inside, door opened of defendant’s car could not be from the a fact defendant must have known when he entered the ear from the side, Also, passenger blocking Ms. exit. Bowman’s defendant was armed with a knife and Ms. Bowman was unarmed. This is a case advantage which the defendant took helpless of his victim’s position she was boxed in weapon and did not have a slit —that —to her throat.

There were no present aggravate nondecedent victims defen- Yet, dant’s moral blameworthiness. defendant had lived with Ms. years Bowman presumably for over four family knew friends who would be devastated her death. Defendant was a forty-one years adult of plan when he mature carried out his to kill understanding magni- fully capable of and was Ms. Bowman impact on others. of his crime and its tude Degree b. of Victimization gaping knife wound Ms. Bowman with Defendant killed through the deep enough to cut to ear and was “extended from ear acute blood loss and esophagus.” died from box and She voice The wounds on her left happening to her. aware of what was herself, and her attempted to defend suggest that she hand intense experienced terror or screaming demonstrates that she degree victims the Because there were no other pain or both. in victimization, who killed compared to other defendants when witnesses, is somewhat family or other presence members less.

c. Defendant’s Character murder, that, Bowman’s points out other than Ms. Defendant possession in for conviction occurred only post-1977 his murder he had that before Ms. Bowman’s property, stolen Although it true that defen- crime. is committed a violent never twenty years preceding the only twice dant was convicted 1970s, In the prior to that is extensive. killing, his criminal record convictions, forgery. involving He four had five fraud defendant check, larceny and passing a bad convicted had also been prior criminal important than his burglary, escape. More the authorities. cooperate not history, in this case Chew did changed time he guilt story his each admitted his He never his and her roommate police. He convinced sister spoke to the night murder and threatened on the of the lie he was about where short, story. In he did they go along not with his them if did eoverup for him. get others to best murder, appeared to have a defendant Prior to Ms. Bowman’s convictions His multitude of strong capacity for rehabilitation. twenty only two convictions had been followed the 1970s Yet, for his brutal crime. no remorse years. defendant has shown death, responsibility for Ms. Bowman’s has refused to take He acts, acknowledged unlike those defendants who have their there- by demonstrating potential some for rehabilitation. three-part

Based on our culpability, model of criminal we con- overall, high clude that culpability. defendant exhibits a level of Comparison Group 2. Defendant’s analysis Comparative-culpability employs comparison the same See, group e.g., as that used in the salient-factors DiFrisco test.. III, 186, supra, 142 (using pecuniary- N.J. at 662 A.2d 442 AOC’s category motive murderer to form comparison group). defendant’s By using comparison group the salient-factors precedent- for review, seeking analyses Court ensures that the two are complementary 185, and can confirm each other. Id. at 662 A.2d 442 (stating “we limit the in precedent-seeking universe review those ... frequency analysis____so cases used in the two prongs proportionality may profitably review ... thus be II, compared”); 49, supra, see also Martini 139 N.J. at 651 A.2d IV, 949; 366-67, Bey supra, 137 N.J. at 645 A.2d 685. As noted earlier, placed subcategory, AOC defendant in the “1-3” which (Chew/Coo pecuniary-motive, consists of noncontract killers 7). per/Harvey Report, supra tbl. See 731 A.2d at 1080. only Because properly placed one other defendant has been in this ibid., subeategory, compare we have decided to defendant’s case all of I category (pecuniary-motive) with cases. comparing

In defendant’s case to those the other killers in his group, considering totality evidence, and in of the we find that culpability high defendant’s criminal is and his death sentence is disproportionate. not argues Defendant culpabili- that his level of ty is more like the comparison group life-sentenced eases cases; than reject the death-sentenced we that assertion and note “[disparity alone does not disproportionality.” demonstrate IV, Bey supra, Rather, 137 N.J. at 645 A.2d 685. we “ ‘search ... impermissible for some or pattern invidious factor or ” Ibid, II, that has (quoting been broken.’ supra, Marshall 1059.) fact that other defendants A.2d N.J. at dispositive. is not spared have been comparable cases other 1-3 murder- compare defendant first with one We mil er, principals. the contract the contract killers ahd and then with Comparison Cases to Defendant’s Case7

3. of Similar category. in the 1-3 Payne only is the other killer Celestine Chew, and was guilty to various murder counts pled she Unlike disqualifi- thirty-year parole imprisonment sentenced life twenty-year attempted murder. term er and a consecutive Yet, extent, are similar. Both the facts of their crimes to some Chew, husband, Payne, her persons close to killed them — insurance order to collect life whom he lived—in woman with they forty-one years old when committed Both were proceeds. Yet, highly premeditated. murders were the murders and both kill someone else to Payne herself and hired killed her husband attempts did not result although one of the people, two other is death; only person. respect, In this Chew one Chew murdered culpable Payne. than less however, case, we see of each examine the facts

When we explains the two defendants that between the another difference though had mental Even Chew in their sentences. difference that he had youth, provided no direct evidence problems in his he the years prior to instability eighteen in the from mental suffered Payne time committed Bowman. At the murder of Theresa had a murder, mental illness. She from severe she suffered suffering depression from was history psychiatric problems and of taking prescription and was She heard voices schizophrenia. expressed infirmity. When she psychiatric her medication for him, kill her threatened to and even anger at her husband sig- to Defendant seeks was increased. minimize medication They Appendix 7 on provided A. are based in of the I cases are Summaries AOC's cases found in the published opinions, discussions of the and on the Detailed Narrative Summaries. sentence, Payne’s in nificance of illness relation to her life but was, ample suggest there is evidence to that her condition relevant. view, Payne’s depression, schizophrenia In our and delusions distinguish her life sentence from of Chew’s sentence death. For reason, compare Payne, this when we defendant to we do not find “ singled unfairly ... capital punish ‘defendant was out III, supra, ment.’” DiFrisco 142 N.J. at 662 A.2d 442 II, 949). (quoting supra, Martini 139 N.J. at 651 A.2d Comparing category to the contract in Chew killers the 1-1 also cases, disproportionality. does not demonstrate In each of the 1-1 the defendant’s motivation was similar to that of Chew: expectation receiving something pecuniary of value. These because, distinguishable eases are nonetheless from Chew’s case (who exception initially with the of James Clausell sentenced death), each of category presented the defendants the 1-1 disease, disturbance, evidence of either mental defect or or that he substantially cooperat assisted the State or in some other manner authorities, ed with the or both. See id. at A.2d (distinguishing comparison defendants based on form “some organic disorder,” brain disease or mental or “substantial assis hirers”). Thus, prosecution tance and conviction of their Harris, Burroughs, Irizarry, cooperated Melendez and Pinchom substantially with the or prosecu State assisted the State else, tion of someone and Harris presented and Melendez evidence disease, of mental defect or disturbance as well. authorities, Burroughs readily

When confronted admitted Brand, killing Arthur implicated paid the man who him to do killing, and revealed weapon. the location of the murder Although money, he killed for Burroughs had the additional and culpable assisting less motive of a friend remove an abusive and drug-dealing family Irizarry similarly member. assisted the State prosecution in the principal. testify his contract He chose against the man who him promise hired even without a from the prosecute not capitally. injured State him Hams was in a motorcycle daily accident and needed medication to overcome the pain recurring of his headaches. He suffered from a mental And, impaired disease or defect that capacity. his mental unlike Chew, was,-for part, Harris cooperative police the most when the (he him placed confronted himself at the scene admitted the his). gun money was Melendez his victim killed for and to arrested, loyalty friendship. demonstrate When he acknowl- edged that he immediately had committed the murder and told the police presented expert testimony who had hired him. He also retarded, mentally IQ that he was borderline with an of 70. crimes, readily Pinchom part plea confessed to his and as of his agreement, cooperate said that he would with the State prosecution principal of his and other codefendants.

In 1-1 contrast killers who did not receive death sen- tences, authorities, Chew deceived the solicited the assistance of crime, others in concealing profess his and continues to his Moreover, comparing innocence. Di- Chew with Clausell and Frisco, culpability closely we see that Chew’s more resembles or is greater than that of the two 1-1 killers who received sentences exchange death. DiFriseo killed a man he did not know in drug plan and the cancellation of a debt. He did not $2500 $500 period many his crime over a months and his victim died Later, instantly. killing, implicated he confessed to the Franciotti, Although cooperation sporadic, the hirer. was six jurors State, c(5)(g), found the substantial assistance to the miti- Chew, hand, gating factor. on premeditat- the other committed a ed murder which he slashed the throat of a woman with whom long-term relationship, he had had and then denied and tried to up killing. presented mitigating cover Both men similar childhoods, concerning including paren- evidence a lack of troubled love, tal attention and and low self-esteem. DiFriseo was twice sentenced to death. $2,000 and, agreed kill

Clausell Edward Atwood for a few later, days Although shot Atwood his home. Clausell’s crime premeditated, compare leading up when we the events to both planned the Clausell and Chew murders we see Chew prior to the crime. We year Bowman for over of Ms. murder in, the murder his involvement at first denied that Chew also see him, and that to lie for and her roommate his sister and asked as victim died deception. ClauselTs engaged in no such Clausell wound; trapped victim was gunshot Chew’s the result of a life, slashed. car, had her throat for her struggled Chew’s history criminal Chew, significant have a did not Clausell Unlike Although Clausell of Atwood. initiate the murder and did not endangering the family, of his victim’s presence in the killed us of the record convinces young daughter, our review victim’s initially was culpable as Clausell who is at least as Chew sentenced death. principals, we compared to the contract Chew’s case is

When [again] us ... leads totality of the evidence “[t]he find that disproportionate.” is not death sentence [Chew’s] conclude First, TV, none of the 645 A.2d 685. Bey supra, 137 N.J. at pecuniary gain.8 solely for category in this killed defendants brother, Engel family of an abusive paid to rid his Brand warped ex-wife out of a planned the death of William’s brothers resentment, wife killed and Marshall had his jealousy sense his extramarital romance. an obstacle to in order to eradicate however, juries of both Brand the cases important, More group principal Engels two cases the contract and the —the found miti- imposed specifically was not a death sentence where — c(5)(a), or of extreme mental emotional gáting factor influence Also, inno- although profess continues to his Brand disturbance. cence, over his prior expressed record and remorse he had no brother’s death. Engels’ killing depravity and callousness of the

The level of arranged to culpable. Engels highly renders the brothers killing that Chew's "motivation in for observes part The dissent correctly leaving 731 A.2d at him," ... was because she post Bowman suggested dissent, but Chew cared for as however, not because Bowman^ on her to collect insurance proceeds because Chew would lose opportunity life. have William’s ex-wife Xiomara killed because apparently William accept could not relationship. end their paid As William’s Xiomara, strangled assassin cigarette William smoked a and called his ex-wife a “bitch.” Both William and Herbert deceived the police, attempted and William unwitting to use the victim’s mother part planned as of his alibi. Chew to kill Theresa long Bowman before she bloody decided leave him. He carried out plot only monetary Yet, alone and killed gain. these differences explain why cannot Chew was sentenced to Engels, death and the utterly who an reprehensible committed murder received life. Perhaps mitigating evidence Engels offered convinced jury spare them. The prior brothers had no criminal record. Each had three children and William was a successful many know, also, businessman in involved charities. We elderly their father testified about the murder of his own father in a Nazi camp during concentration Engels’ jury World War II. The distress, found extreme mental or emotional and that the brothers II, experienced duress. As we in supra, said Marshall at N.J. 613 A.2d Engel spared “[t]hat the brothers were their pattern lives does not establish a life-sentencing for such killings.”

Finally, compare we the facts of Chew’s murder to in those Marshall, case of many Robert a case in ways similar to defen- killed, dant’s. Marshall had his wife and Chew killed the woman living, with whom he was both for proceeds. life insurance Nei- State, ther man offered substantial assistance to the and neither mentally was disturbed the time of the murder. Both men objectives, devised elaborate accomplish schemes to their and both engaged time, premeditation long in for periods of from. Marshall killing December 1983 until early and Chew from as wife, however, as 1991until Bowman’s murder 1993. Marshall’s instantly wounds; gunshot died from Ms. Bowman’s throat was ear, Moreover, cut from ear to killed agonizing an death. Chew solely pecuniary gain, whereas money Marshall killed for paramour. Although be with his points defendant to his Marshall, abusive childhood in order to differentiate himself from blameworthy aspects of his the more fact overcome this cannot case. death not show that Chew’s review does precedent-seeking

Our mur- pecuniary-motive only Not are disproportionate. is sentence group, murderers as a but culpable of among the most derers sum, In high culpability. ranks group, this defendant within murderers, many pecuniary-motive of the life-sentenced unlike mentally was not substantially assist the State and not Chew did contemplated Ms. his victim. He he murdered disturbed when responsibili- accept year and refuses death for over Bowman’s to lie By asking his sister and her roommate crime. ty for his murder, Chew obstruct- night on the of the his whereabouts about victim, although And, finally, way he killed his justice. ed defendant com- brutal. Because relatively quick, particularly murderers, both unfavorably pecuniary-motive most pares not, his and those who were to death those who were sentenced justified. sentence is death

IV Arguments Other racially imposed in a penalty is claims that the death Defendant manner; more mentally-ill defendants are discriminatory subject to cruel are therefore likely capitally prosecuted and to be protection of the law equal punishment unusual and denied and and the New by States Constitution guaranteed both United gener Constitution; are not death sentences Jersey that because murder, the death capital imposing ally imposed for the crime of and Constitution him violates the United States penalty on also Constitution; geographic distribution Jersey and that the New sentencing decisions shows the death capital charging and arbitrarily, inconsistently, unfairly and penalty being applied is The latter and state constitutions. again in violation of the federal by rejected previously claims have been considered two Court, See reject them without further discussion. and we Loftin III, 129; II, 345, supra, 142 DiFrisco supra, 157 at 724 A.2d N.J.

221 II, 210, 442; supra, N.J. at Martini 79-80, 662 A.2d at N.J. 139 IV, 949; Bey supra, 396, 685; 651 A.2d N.J. 137 at 645 A.2d II, supra, Marshall 130 N.J. at 188-215, 613 A.2d 1059. We now consider the two first claims.

A. Racial Penalty Bias the Administration of the Death II,

In we reaffirmed our monitoring commitment to Loftin imposition penalty of the death in order to determine whether impermissible “present racial discrimination capital is in the sen 157 N.J. at tencing system.” 276, 129; see also Marshall 724A.2d II, supra, 207-08, at N.J. 613 A.2d 1059. We will not retreat from that commitment. If presented we are with a record in which the statistical relentlessly evidence documents the risk that a defendant’s sentence has by been influenced racial consider “ ations, measures, we will ‘seek' corrective and if that we fail[s] not, policy, [will] consistent with our State’s tolerate discrimination ” II, system threaten[s] the foundation of our of law.’ Loftin supra, II, 298, N.J. at supra, Marshall (quoting A.2d 129 209, 1059). 130 N.J. at 613A.2d II

Because in the statistical models used the AOC to Loftin capital measure sentencing race effect statistical “show[ed] significance in five ... id. categories,” six at 724 A.2d Loftin “strong claimed that there was evidence that race is a predictor trial.” Id. penalty the outcome of a 724 A.2d time, 129. At strongly the same accuracy State contested “the reliability of the statistical models.” Ibid. In order to learn results, more about the model and to understand whether racial decisions, sentencing considerations influence appointed we retired Superior Judge Court Special Richard S. Cohen as Master to review, perform analyses, “conduct a findings and make relating possible recommendations to defendants’ race as a factor juries in the State v. impose penalty.” decision of the death Loftin, A-86-96, (Oct. 22,1996). slip op. No. at 3 “

Judge Cohen did not find that Loftin had demonstrated ‘re- lentless preponderance documentation or even a in the direction of ” II, supra, any the existence of racial bias.’ N.J. 157 at Loftin 222

314, & Dr. John W. (quoting Richard S. Cohen 724 A.2d 129 Penalty Race Bias in Study Evidence Tukey, A Statistical of Moreover, 1997) 4, in Report)). (May (Supplemental 12 Trials review, questions more than he he raised the course of The time available to him. Court answer the short able to not been shown disparity that racial had accepted his conclusion 129, case, 316, sought A.2d further assis id. at Loftin’s 724 improved statisti Special developing tance from a new Master information about capable providing more reliable cal models determined, effect, 315, as indicated A .2d 129. We race id. at 724 Special earlier, reviewed the Master’s that until we have new essentially as proportionality our review report, we will conduct 724A.2d 129. before. Id. very like in Chew’s case are observe that the model results

We indicates, significance of the observed As the table below Loftin’s. percent, the threshold falls at or below five four of six variables commonly identify significance.9 statistical used to "statistically significant” to refer to statistical use the term Statisticians alone, "chance, findings acting probably would not have caused.” which Loftin II, (quoting Conley supra, M. & David at 301 n. 724 A.2d 129 John 157 N.J. Peterson, Gatekeeping: New The Federal ludicial Center's W. The Science of Evidence, n. 74 N.C. L.Rev. Manual on Scientific Reference (1996)). relationship occurring by generally probability chance is (a one-in-twenty probability "p-value.” p-value A of less than .05 stated as a alone), statistically relationship have chance is considered would occurred significant variety of research contexts. Ibid.. and therefore useful in

223 compared The consultant AOC the results set forth Chew/Cooper/Harvey Report, to those in Report Loftin major concluded that he could “not find impacts differences in the of race across the ... comparing schedules when proportion- this ality Memorandum, review to Loftin.” Weisburd at 1-2. Because changed the statistical models have little from II to Chew Loftin II, and because the serious flaws in the models used AOC, II, supra, 310-11, 129, 157 N.J. at 724 A.2d we are Loftin rely unable to on the results in disparity either case to find “racial imposition of the penalty,” death id. at 724 A.2d based on the models.

Defendant asks us to “refine proof’ the burden of such that even the flawed results in the models are considered sufficient to Jersey demonstrate that the New capital sentencing system is II, discriminatory. In rejected we considered and the same Loftin 314-15, request. Id. at 724 A.2d (concluding that defendant “ ‘relentlessly must the risk’ of disparity” document[ ] racial before sentence) we II, would overturn his (quoting death Marshall 1059). supra, N.J. 613 A.2d The record here does impermissible not sustain a claim of bias. B. Mitigating Extreme Mental or Emotional Disturbance

Factor argues

Defendant penalty that the death is unconstitution c(5)(a) al possess because defendants found to extreme mental or emotional mitigating likely disturbance factor are more to be prosecuted capitally and sentenced to death than defendants who do not suffer from extreme mental or emotional disturbance. cases, Defendant asserts that this capital factor is common in actually factor, that it aggravating functions as an increasing the increasing the likelihood phase penalty to a proceeding risk of receiving a sentence. death support this claim. data do not c(5)(a) factor is not from combined table that the can see the We (13J4oi) thirty-three percent among capital defendants: uncommon Cfe) all forty-five percent of death-eligible all defendants of possess found to the characteristic. penalty-phase defendants were (5fe) thirty-one percent specifically, the table shows that More death sentences and defendants have received penalty-phase all c(5)(a) possessing the twenty-seven percent (2%) of defendants (6%oi) death; percent that twelve factor have been sentenced sentences and death-eligible all defendants have received death c(5)(a) (z%3i) possessing the factor percent fifteen defendants (16%oi) and, death; forty-one percent sentenced to have been phase penalty to the death-eligible of all defendants have advanced (7%3i) c(5)(a) fifty-six possessing of the the percent defendants higher These data show a factor have been sentenced death. c(5)(a) mitigating eligible with the proportion of death defendants universe, advancing penalty phase general than the factor to the proportion category receiving the roughly equivalent each suggest does that defendants penalty. This mixed result death frequency extremely appear with some our who are disturbed sentencing system. It does not inform us about capital e(5)(a) so, improper operating factor is reasons this is or that the ly- points regressions

Defendant also four supporting e(5)(a) index-of-outcomes test it suggested wherein is mitigating positively factor correlates with incidence of the death However, penalty. this correlation statistically sig- is considered only nificant if p-value associated with a supra of 0.05 or less. See illustrates, n. A.2d at 1091 n. 9. As the table below p-values .7497, range associated with these data from .5539 to statistically significant. and are not C(5)(A) Mitigating Factor —Correlation with Death Sentence (data Chew/Cooper/Harvey from Report, Tech 3, 6, 9,12.) App. 10 Schls. experts present Defendant’s their own statistical studies an e(5)(a) effort to demonstrate that possessing defendants factor prosecuted capitally are significantly higher at a rate than defen- possess dants who do Although not this factor. defendant’s positive models show a correlation between the mental disturbance capital prosecution, factor and the schedules on which the defen- primarily dant warning, validity relies bear the “the of the model questionable.” fit is This means that the defendant’s statistics may way accumulated, reflect a flaw in the the data was grouped, analyzed. or That these models are flawed is also evident from the other purportedly correlations derived from By way them. example, according of to defendant’s models the c(5)(g) substantial mitigating assistance to the State factor also aggravating functions as factor. an This anomalous result —that helping capital prosecu- the State increases the of likelihood a question validity tion —in itself throws into of defendant’s models. reason, however,

There compelling unlikely is another that it is c(5)(a) prosecutors against possessing discriminate defendants At prosecution decisions. making capital mitigating factor when decision, wheth- generally unaware prosecutors are of the the time c(5)(a) Be- mitigating evidence. to assert intends er a defendant c(5)(a) to an “extreme mental mitigating applies factor cause the to to constitute defense insufficient disturbance or emotional c(5)(a) defense, and defendants is not a factor prosecution,” the they prosecutor that notice on the obligated to serve are not And, because B. 3:12-1. rely this factor at trial. to on intend in the absence even may rely on extreme disturbance defendants may be unaware problems, prosecutor any of mental evidence rely when the decision on this factor the defendant’s intent n not know prosecutors often do capitally is made. That prosecute c(5)(a) factor, rely negates the on the a defendant intends discriminating against de- prosecutors claim that are defendant’s mitigating or mental possessing the extreme emotional fendants whether to seek the death making decisions about factor when reasons, not find that defendants we do penalty. For these are more mental or emotional disturbance exhibiting extreme likely capitally prosecuted than other defendants. to be

Y

Conclusion dispro- sentence is that his death Chew has not demonstrated proving that racial bias nor has he met his burden portionate; in New operated impermissible factors disturbance as or mental Jersey’s sentencing system. death of death is affirmed.

Defendant’s sentence A

APPENDIX Pecuniary Advantaye: Pecuniary 1-3 Motive I. Other A) Payne 1 Celestine committed Celes-

During investigation of another murder suspicious of the circumstances Payne, police became tine surrounding investigation the death of her husband. Further Payne Eugene revealed that Cooper fatally had asked shoot her Later, Cooper husband but that Payne’s declined. husband died Cooper, Payne, Payne’s in his bed and placed children put victim in a box and the box next to a road. husband, regularly

Because she had poison threatened to her Cooper Payne assumed that had Payne’s carried out her threats. daughter, Wendy, also believed her mother killed the victim Payne put because often medicine her husband’s food and told Wendy children not to eat or drink guessed it. that her mother killed the victim in order to proceeds collect life insurance family danger losing because the was in their home. $49,000

Payne collected in life insurance after the death her autopsy An husband. revealed that the victim had died of a mix of antianxiety antidepressant prescription drugs. Notably, al- though depression, the victim did not suffer from drugs caused the Payne’s victim’s death matched the pre- Celestine scribed medication. murder,

At Payne the time of the forty-one-year-old was a school, graduated mother of four children. high She had from but poorly read years and wrote and had last worked ten earlier as a Payne history psychiatric bookbinder. had a problems and had psychiatric been under approximately years. care for two In August complained she depressed that she was and heard diagnosed voices. She was schizophrenia given and was prescription dosage medication. Her was increased after she expressed anger toward her husband and to kill him. threatened By Payne auditory June of experiencing hallucinations paranoid and was at times.

Payne prior had no convictions. After she murdered her hus- band, however, she took out policies insurance on behalf of life two other arranged individuals and for Charles Pinchom to kill both of victim, them. Pinchom stabbing killed one but his of the other did not result in that victim’s death. alia, with,

Charged conspiracy two of murder and inter counts murder, murder, attempted count of and various to commit one Payne May all charges, pled guilty charges to on other Celestine conviction, court her 1997. On each murder the sentenced thirty-year disqua- concurrently imprisonment parole to life to attempted murder she was sentenced lifier. On conviction twenty-year prison a consecutive term. e(4)(d), aggra- present pecuniary-motive,

The AOC coded as c(5)(d), capacity; vating mitigating factor and factors diminished e(5)(f), e(5)(h), significant history; catchall no criminal and mitigating factor.

II. Pecuniary-Motive 1-1 Killers: Contract A) Randy Burroughs began Randy asking Burroughs,

In Brand Francis friend, high Ar- longtime school to kill Brand’s brother Arthur. family many years drugs and to thur had his sold abused children, brother, Arthur’s including Joey Brand. Because of behavior, very very angry both at Arthur afraid Francis was and him.

Burroughs appealed him regularly to to testified Francis Arthur, implored kill and had in fact at least two to do so as others $350, initially Francis well. offered but later offered $1700 Burroughs’s killing then for his brother’s death. motive $2000 ridding family Arthur was Francis in thus twofold: assist monetary payment. an abusive hostile brother to obtain Arthur, agreed In October to kill but Burroughs Instead, Burroughs gun “chickened out.” fired a a wall inside July 4,1989, attempting up a the Brand house. while On break brothers, fight Burroughs engaged between the Brand became 11, 1989, July Burroughs an altercation with Arthur. On entered opened the Brand residence at 3:00 a.m. and Arthur’s bedroom said, got hurting Arthur Burroughs stop door. awoke and “You exclaimed, people.” He then “You’re Burroughs done!” shot shotgun Arthur twice with a and killed him.

Burroughs night returned to the crime scene later on the of the investigating police murder and told the officers that he had left during prior day. his hat in the house He met with Francis night day, payment. and the next but did not discuss a When him, Arthur, police interrogated Burroughs killing admitted to Francis, implicated and revealed that the weapon murder the Brands’ attic. classes,

Although Burroughs placed special-education was he graduated high jobs, from school. He held several but was never employed single more than six months. He was and had fathered history three children with three women. different He had no drug abuse and had never been prior institutionalized. He had a threats, making conviction for terroristic and received a fine but probation no or incarceration for the offense. murder, grand jury

A charged Burroughs conspiracy, with murder, felony burglary, possession weapon and of a for unlawful murder, purposes. Burroughs pled guilty to and the other charges Burroughs thirty were dismissed. The court to sentenced years in prison parole. prosecution without He later served as a witness the trial of Francis Brand. c(4)(d), present aggravating pecuniary

The AOC coded as factor motive, c(5)(e), duress; c(5)(f), mitigating signifi- and factors no State; history; e(5)(g), cant criminal substantial assistance to the c(5)(h) mitigating catchall and the factor.

B) James Clausell 1A and IB Atwood, victim, municipal complaint against Edward a filed Bartlett, neighbor, cruelty. his Roland for intentional com- plaint alleged provide dog Bartlett failed to water to his and did timely dog’s not remove feces from the kennel. Bartlett was acquitted charge former but fined for the latter. Subse- Bartlett, son, Grant, Anthony quently, Roland’s offered Paul code- friend, kill Grant Wright’s “someone.” Dwayne $5000 fendant Wright agreed to Clausell and and later testified refused that. each. murder Atwood $2000 call, 12, 1984, paged. placing After a August Clausell was

On night.... have to do it.” Wright: “Tonight’s the We told Clausell gun,” and Clausell re- “get Wright then asked Clausell p.m., At' 10:45 Clausell magnum from house. trieved a .357 house, by they were told Wright Atwood’s where went to returned not home. When Atwood wife that he was Atwood’s Wright knocked on the door. shortly midnight, Clausell after wife, proximi- in close daughter, grandparents were Atwood’s top was at the of the ty opened the door. His son as Atwood exchange, fired two shots. After a short verbal Clausell stairs. narrowly and the second missed The first bullet killed Atwood Wright left the Atwood home daughter. Clausell and Atwood’s they purportedly owned Bartlett where and went to club expected get paid. twenty-one years he murdered Atwood. old when

Clausell that, murder, regularly sold at the time of the he He admitted $800-per-day that he had an drugs. also admitted Clausell variety experimented of other and had cocaine addiction years preceding the murder. At the drugs throughout eight arrest, prior although convictions he Clausell had no time in a nonfatal facing pending charge a for his involvement was child, injury suffered a head that caused shooting. As a Clausell injured playing again his head when headaches. He later severe high school football. Wright jury and of own-conduct grand

A indicted Clausell murder, murder, conspiracy to commit five purposeful-or-knowing assault, weapon for an aggravated possession of a counts of handgun permit. a purpose, possession of a without unlawful and count, jury a convicted conspiracy the The court dismissed except counts of charges other for two the five Clausell of the Wright jury convicted of the same aggravated assault. The offenses, Wright but found that did not kill his own conduct. Wright thirty-year parole received a life sentence with a bar on Bartlett, trial, separate the murder conviction. Roland at a thirty-year convicted and to a parole sentenced life term with a arranging killing. bar for trial, penalty

At Clausell’s his mother testified that his father had left her approximately and six children when Clausell was six years began working age old. Clausell at the help of seven to support family. dropped high He out of school complet after ing grade the tenth and later' enrolled in vocational school. His house,” mother stated that Clausell was “man of and that siblings. he advised his Clausell’s brothers and sisters testified that he was like father to them. Clausell was the father of one c(4)(b), jury aggravating grave child. The found factors risk to c(4)(d) motive, pecuniary mitigating another and factors c(4)(e), c(5)(f), e(5)(h), age; significant history; no criminal mitigating jury catchall aggravating factor. The found that each outweighed factor mitigating all of the factors and sentenced appeal Clausell to death. On direct his death sentence was jury reversed because the trial court had failed to instruct the knowingly purposefully Clausell must or kill have intended to Clausell, guilty capital victim to be murder. v. State N.J. (1990). 298, 313-16, remand, 580 A.2d 221 On Clausell was noncapital convicted of murder.

C) Anthony DiFrisco 1A and IB Anthony Anthony DiFrisco met Franciotti 1984 when both released, imprisoned together. they were After were Franciotti asked DiFrisco to kill Edward Potcher. Franciotti believed that Potcher, owner, pizzeria police intended to inform the about drug-dealing enterprise. Franciotti’s agreed exchange DiFrisco to commit the murder for $2500 drug early August cash and the cancellation of a In debt. $500 12,1986, payment.- August Franciotti amade down On $700 picked up Franciotti DiFrisco and the two men drank alcohol and used heroin. marijuana. purportedly DiFrisco also smoked pizzeria where DiFrisco DiFrisco to the Franciotti then drove boy delivery entered the establish- with Potcher. When a chatted occupy time until ment, pizza, and soda to DiFrisco ordered a left, delivery boy After the alone with his victim. he could be for another soda. When Potcher reached DiFrisco asked Potcher soda, head and once in him four times for the DiFrisco shot Franciotti Franciotti’s car and DiFrisco returned to the arm. day, paid Franciotti the balance following drove him home. fee. following spring when unsolved until the The murder remained City arrested New York DiFrisco confessed after he was crimes, including car theft and reckless routine street several probation, DiFrisco was on he knew endangerment. Because jañ arresting time. He asked a conviction would mean certain going prison. to something if he could do to avoid officer there was improve that he could his situation The officer told DiFrisco crimes, major or informing any such as robberies police about Potcher, killing implicated then confessed to homicides. DiFrisco Franciotti, cooperate prosecution of Fran- agreed to with Later, however, prosecutors in refused to assist ciotti. DiFrisco tape-record Franciotti. their efforts jail and had served DiFrisco addicted to heroin and cocaine trespass convic- burglary and criminal prior time for two adult grew up childhood and without self- tions. He also had a troubled father, love, from his recognition and attention esteem. He lacked guidance, and his give discipline him his mother failed to drug brothers were addicts. weapons of- charged capital murder and

DiFrisco was murder, and pled guilty knowing-and-purposeful fenses. He jury. aggravating factors penalty-phase The court found waived a motive; c(4)(f), c(4)(d), murdering escape detec- pecuniary factor, tion, c(5)(g) mitigating assistance to the and the substantial appeal, him direct court sentenced to death. On State. The DiFrisco’s sentence was reversed because there was no extrinsic indicating corroboration of his confession that Franciotti had hired DiFrisco, DiFrisco to kill Poteher. State v. 118 N.J. 571A.2d I). (1990) (DiFrisco remand, penalty jury. jury On trial was held before The c(4)(d), motive, pecuniary aggravating found the existence of the factor, c(5)(g) mitigating factor and the substantial assistance to c(5)(h) State, eight separate as as well instances catchall unanimously mitigating concluding aggrava- factor. After that the factors, outweighed ting mitigating jury factors sentenced appeal, DiFrisco to death. The sentence was affirmed on direct DiFrisco, (1994) (DiFrisco II), State v. 137 N.J. 645 A.2d 734 III, disproportionate supra. and found not DiFrisco D) Danny Harris 23, 1991, police report

On November received a of a scene, shooting. Upon their arrival at the the officers were apartment, they directed to a third-floor where noticed that the damaged. They Georgia door frame had been entered and found standing Wooten in the kitchen. the officers to a front Wooten led they Germany lying bedroom where found Rondell face down on the floor. Wooten identified the victim as the father of her sister’s transported hospital children. The unconscious victim was to the day. Germany autopsy where he died later that The revealed that gunshot injuries causing died as a result of a wound to the chest to lungs and heart. Wooten, police Germany interviewed who told them that if stopped upstairs speak had and asked he could come Germany with her sister. Because had assaulted her sister a few earlier, days to him speak Wooten refused let "withher. Accord- Wooten, said, ing Germany angry going became “I’m not her, going up.” argued kill I’m shit bust her He and Wooten approximately forty minutes. building and allowed Ger- Eventually, another resident left the Germany landing, many met on the second floor to enter. Wooten According to spoke for about fifteen minutes. and the two Wooten, handgun standing on the a man with a she then noticed me,” yelled, and fled. landing. “Don’t shoot second floor Wooten however, heard a apartment, her Wooten Before she entered later, Germany yelled him into to her to let gunshot. Moments way collapsed in and on the front apartment. her He forced his floor. bedroom identify spoke to a-witness who said he could the police

The also he police that he went downstairs after killer. The witness told door, opened a man ring. doorbell When he the had heard the Germany. for The wit- wearing gray-hooded a sweatshirt asked Germany upstairs. As the man went told the man that ness Germany and told him that the upstairs, the witness called out to looking Germany for him. looked down man in the sweatshirt was with Wooten. The male and then returned to conversation handgun pointed Germany. it at long-barreled a and pulled out said, up?” Germany then shot and Germany The male ‘What’s fled. investigation, police tape a

During ensuing the the obtained talking Germany’s murder recording of a male and a female about get him money supplied to the shooter to and the that would be that of sister identified the female voice as out of town. Wooten’s nephew, that of Walter and the male voice as Wooten’s Wooten implicated rights, her and she police The read Wooten Wilson. Wilson. 25, 1991, reported that on the another witness

On November Harris, spoken Danny who also went day of the incident he had Tarique. told the witness that he was by the name of Harris day, day. Later that same being paid to shoot someone killed, Germany and that had been shot and witness learned Harris, photo a shooter. The witness identified Harris was the for and a bench warrant was issued Harris’s arrest. Harris was 27,1991. apprehended on December murder, charged conspiracy capital Harris was to commit murder, possession weapon, possession unlawful of a of a 28, 1993, weapon purpose. jury an unlawful for On October charges. penalty jury phase, convicted Harris of all At. the c(4)(d), murder, aggravating pecuniary mitigating found factor c(5)(d), disease, intoxication; c(5)(h), factors mental defect or c(5)(h) factor, mitigating jury the catchall factor. Under separate including found factors that Harris thirteen suffered disabilities, organic damage, learning history from brain abuse, drug upbringing. alcohol and and a troubled childhood and jury aggravating outweigh found that the factor did not mitigating beyond factors a reasonable doubt. The trial court thirty years parole, sentenced Harris to without with a concurrent four-year possession weapon. for term unlawful The other merged sentencing purposes. convictions were offense, thirty-one years At the time of the Harris was old and his mother. He was divorced and had fathered four lived with high dropped children three different women. Harris out of completing grade. self-employed after tenth He was as a school repairman and had also worked as a welder. Harris took home daily resulting motorcycle medication for headaches from a 1981 abusing past He admitted alcohol in the and claimed accident. that he was intoxicated at the time of the offense. Harris denied possession prior the use of narcotics but had a conviction for dangerous controlled substances.

E) Irizarry Richard Irizarry charged capital murder and other lesser was with 7, 1990, killing Angel part February offenses for his the 2, 1990, Laboy. Irizarry provided a statement to the On March 7, 1990, Irizarry February ap- on he was police. asserted that proached by Boeglin. Boeglin Irizarry Laboy to kill Julius asked talking Boeglin’s drug because he was too much about business Irizarry per- Boeglin to Boeglin offered $1000 and owed $1800. killing. form the where, Irizarry pizzeria a as

Boeglin, girlfriend, and drove to his car, Laboy. Boeglin gave they Boeglin identified sat Irizarry that “get him to him now.” stated .Irizarry gun and told Boeglin, getting out of the car with another when he hesitated on hand, watching him. Irizarry that he would be gun in his told me, said, Irizarry way [Boeglin] told he made me feel like he “The out Irizarry got out of the car and called gonna was shoot me.” turned, Laboy realizing Irizarry was Laboy’s name. and on what do, Irizarry Irizarry Boeglin kill him too. told would about Shortly Laboy then shot five or six times. thereaf- stated that he scene, ter, a call a homicide. At the police received about male, Laboy, twenty-eight year lying old on the police found Laboy from massive covered with blood. later died sidewalk bleeding by gunshot caused four wounds the chest. internal During investigation police Laboy learned that had their Boeglin dealing drugs Boeglin approximately for and owed been 12, 1990, January Boeglin police The also learned that on $1800. place possession for of a had arrested at his of business been Boeglin suspected Laboy dangerous controlled substance. Laboy. Additionally, kill up had set him and had threatened to death, prior Laboy attacked three two weeks to his had been cut men and was on throat. 27, 1990, police stating February a witness contacted the

On Laboy’s murder and that his life that he had information about and, danger. an informant on March The witness became 2, 1990, Irizarry, secretly recorded his conversations conver- Boeglin Although tapes and another witness. those 2, 1990, inadmissible, police March sations were later ruled on Irizarry Boeglin. ar- arrest warrants for Officers obtained Irizarry picked up rested a second witness who admitted Irizarry by throwing in a “getting gun” rid of a it river. they Boeglin. police where could find second witness also told the

237 result, girlfriend were later arrested at Boeglin and his As a police girlfriend’s towed the car be- Boeglin’s apartment. The Laboy’s in description of the car used cause it matched the murder. murder, conspiracy capital to commit

Irizarry charged was murder, witness, possession of a against retaliation a unlawful purpose. weapon, possession weapon of a for an unlawful testify against Boeglin, the State recon- When he volunteered agreed prosecute Irizarry capitally, but firmed its intention to mitigating against Boeglin to establish testifying his could be used State, Irizarry be convicted c(5)(g), factor assistance to the should noncapital murder. capital Boeglin murder. was convicted trial, Irizarry’s sought negotiate counsel Boeglin’s After with the plea Irizarry’s upon cooperation on based behalf unsuccessful, dispute negotiations were and a arose State. The improperly Irizar- prosecutor’s whether the office had used over testimony Boeglin preparing for Irizar- ry’s against immunized ry’s Appellate trial. The Division determined that the entire though disqualified not be even some of prosecutor’s office would Boeglin poten- trial and were its members were familiar with the Twenty-two penalty-phase hearing. in a tial defense witnesses later, 22, 1994, Irizarry pled guilty aggravated days on March manslaughter, forty-year to a term with and was sentenced Irizarry, N.J.Super. twenty-year parole v. bar. State (App.Div.1994). A.2d 305 offense, years Irizarry twenty-six

At was old and the time father of two with his mother. He was divorced and the lived grade Irizarry dropped out of school the tenth children. apparently had attended employed as a cabinet maker. He Anonymous meetings when incarcerated Alcoholics and Narcotics past and claimed to have been addicted to “hits” since robbery, burglary, age prior of twelve. His convictions included arrest, property, trespass, criminal resisting possession of stolen parole of a on at the time of the and unlawful use vehicle. He was. murder. c(4)(d), present aggravating pecuniary

The AOC coded as factor c(5)(d), motive, mitigating capacity; c(5)(g), and factors diminished c(5)(h) State; miti- substantial assistance to the and the catchall gating factor.

F) Miguel Melendez Melendez, allegedly fleeing military service and criminal convic- tions, came to the from Cuba in 1980. He lived for United States a time with Lazaro Trimino. Pedro Gerome offered Trimino and a Miami vacation if Trimino would kill or hire someone $5000 someone, person Jersey City. kill a certain Trimino hired and However, gave person gun. person Gerome that a was possessing gun plan arrested for before the could be carried Melendez, agreed perform out. Trimino then asked who killing prove friendship for and to to Trimino. Trimino his $5000 apartment building instructed Melendez to wait the victim’s identity by inquiring confirm the victim’s about a car that selling. victim was shopping ten-year-old

As the victim returned from with his daughter, approached Spanish Melendez him and asked in about replied already the car. The victim the car. he had sold money. Replying Melendez then asked for had the victim he none, away. daughter, walking the victim who walked was father, ahead of her heard two shots turned to her see father ground. hospital fall to the to a He taken where he died. scene, police daughter gave When officers arrived at the them description political of Melendez. The victim was a former prisoner prisoners. in Cuba and the head of a club of former He daughters. was survived his wife and two informant, Through provided by police information an were tape telephone able to in which conversation Melendez admitted receiving money killing Jersey City. someone in arrest- When

ed, rights gave a statement. He ac- Melendez waived his had knowledged that he had committed the murder and fled paid Rico. also stated that Trimino had hired and Puerto Melendez police kill told the that he killed to him to the victim. Melendez “My friend Trimino had a prove friendship to Trimino: you your friendship by problem with In Cuba show [the victim]. him____ asking questions. agreed I to kill I doing deeds without him in cold shot blood.” charged conspiracy to

Melendez and Trimino were commit murder, murder, handgun purposeful possession and unlawful of a possession handgun. unlawful of a purposes, for unlawful and trial, penalty a was convicted on all counts. At the Melendez psychologist a testified that Melendez was bor- psychiatrist and IQ mentally retarded and that he had an of 70. There derline police testimony given that Melendez had a statement to the also jury in of Trimino. The heard that which resulted the arrest Trimino, strongly influenced and that Trimino Melendez was day pills killing. on the of the Melen- gave Melendez alcohol and killing. expressed dez remorse for the c(4)(d), jury pecuniary murder for aggravating found factor e(5)(a), gain. mitigating had asserted factors Melendez extreme disturbance; c(5)(d), disease, or mental defect mental or emotional State; c(5)(h), intoxication; c(5)(g), to the' and assistance factor, c(5)(g) jury only mitigating found factors catchall but the c(5)(h) agree weighing to on the of the and and was unable mitigating Consequently, the trial court aggravating and factors. thirty-year parole imprisonment Melendez to life sentenced the murder merged conspiracy conviction into bar. The court conviction, ten-year sentence with a gave Melendez consecutive three-and-one-half-year disqualifler possession weapon of a for merged unlawful-possession convic- purpose, unlawful an possession-for-an-unlawful-purpose into conviction. tion commit murder and re- pled guilty conspiracy Trimino ineligibility. part As years parole with no a sentence of ten ceived in agreement, agreed Trimino to aid the State plea of his country prosecution apparently Gerome has fled the Melendez. prosecuted. and has not been

G) Charles Pinchom. 248-49, Payne, see 731 A.2d at Codefendant Celestine infra 1105, $25,000 policy eighteen-year- on an took out a life insurance Then, Payne, old woman who lived with her. December asked Charles Pinchom to kill the woman. Pinchom maintained However, initially Payne’s Payne’s request. that he refused daughter Wendy January said that she was aware Also, plan September kill Pinchom’s the victim. on Payne bought Pinchom had stabbed another victim for whom had policy beneficiary. as the a life insurance that named her Like the home; woman, young Payne’s this other victim lived unlike the woman, stabbing. young the other victim survived the 3, 1995, Payne’s request, At on March Pinchom came to her arrived, Payne gave home. he him a As the When crowbar. hair, lethally curling bludgeoned victim was her Pinchom her on Payne Pinchom then the head four or-five times. tried to hide blood, her, They up the murder. cleaned the victim’s dressed placed sleeping bag, dropped body park in a at a her her joggers subsequently planned where two found her. Pinchom also Payne’s very day Payne up to blow home that so that could collect $538,000 policy, on a insurance but this scheme was never carried out. committing

Pinchom to these crimes. At time of confessed murder, twenty-two years he was old and lived his parents. dropped high He had out of school while in eleventh grade, single, dealing was and had fathered He was two children. drugs, although previously boy, a he had worked as stock dish- washer, marijuana daily and cook. He had also smoked since he years prior was sixteen old and had convictions for sexual assault ' distribute. He was on possession and of with intent to cocaine parole murdered the victim. when he murder, jury conspiracy

A for to at- grand indicted Pinchom murder, murder, hindering capital appre- of two counts tempted hension, pled guilty of weapons and offenses. He to two counts murder, murder, noncapital attempted one count of conspiracy and As of weapon purpose. part for an unlawful possession of agreement, agreed cooperate with the State plea he Celestine, Wendy, Wendy’s or prosecutions of connection with the brother. twenty years imprisonment for at-

Pinchom was sentenced thirty years life and to a consecutive term of with tempted murder remaining corn- parole ineligibility noncapital murder. His for merged sentencing purposes. vietions e(4)(d), pecuniary aggravating as factor present The AOC coded c(5)(h) motive, mitigating factor. and the catchall Principal Pecuniary-Motive 1-2 Killers: III.

A) Francis Brand abusive, Randy Burroughs kill Brand’s Francis Brand hired 228-29, supra at at A.2d drug dealer brother for See $2000. 1094-95, description of crime. Brand for a more detailed killing, expressed any involvement in the but remorse denied solely Burroughs his had acted brother’s death. He claimed juryA convicted anger out an altercation with the victim. over conspiracy to commit murder. case Brand of murder have though the could prosecuted capital not as a case even State e(4)(e), pay- procuring murder for aggravating factor asserted c(5)(a), ment, mitigating factors presented and Francis could have record; c(5)(f), disturbance; prior no mental or emotional extreme c(5)(h), the catchall factor. high out dropped have criminal record. He Brand did not grade, diploma. but later received Unem- school in the twelfth arrest, ployed at the time his had sporadically he earlier worked janitor. single, abuse, as a history drug He was had no and any denied mental illness.

B) Engel Herbert and William State Engel together, The tried Herbert William and and William, sought the penalty. victim, death married to the Xiom- Engel, suspected ara infidelity. Although his wife of private a investigator hired William no that found evidence wife unfaithful, suspicious jealous. William remained He often suspicions, verbally confronted his wife with his her abusing both physically. Xiomara’s beatings, aunt and mother during witnessed two which William claimed that to Xiomara deserved be killed. marriage annulment, ended in an but William continued to harass sought prevent Xiomara and to obtaining employment her from that ensure she not began would meet other men. He also making harassing phone Diaz, calls to Andres whom Xiomara secretary had worked as a developed and with whom Xiomara had a relationship. 13, 1984, agreed

On December Xiomara to meet William at his joint on go shopping office order to trip daughter’s for their presents. dropped Christmas Xiomara off her children and her grandfather at her apartment, explaining way on she was her evening, meet William. That William called twice to tell grandfather that Xiomara had to keep appointment. failed p.m. police responded

At 8:00 a burglar alarm William’s place They of business. belonging, Engel, saw car to Herbert brother, parking William’s in the responded lot. William to the knocks, order, officers’ assured them everything was in quickly Suspicious, closed the door. the officers remained at the back, scene. When William came open the officers ordered him to door, William, nervous, but appearing came outside and shut the door. He questions answered the officers’ in an evasive

manner, recognized as policemen the William the because but pursue they not him or otherwise building, of the did detain owner the matter. day, daughter told Xiomara’s mother Xiomara’s oldest next returned, morning never and later that William

that Xiomara had shopping say appear had failed to for their called to that Xiomara going police, to call the trip. the mother said that she was When go to suggested until he could" with her the that she wait William by failed arrive afternoon. When William to police station that Diaz, mother, to p.m., accompanied by went the 11:00 Xiomara’s Subsequently, part as of their search for police William. without home, Xiomara, during which police William at his the interviewed again appeared repeated He his he chain-smoked and nervous.. 13. night he not seen the victim on the December claim that had body police a the South Carolina discovered On December removed, wagon. plates had station The license been a burned ownership ear’s to Xiomara police the were able to trace the but identify body through to her dental records. For reasons and her record, In police in the arrested James McFadden. not stated the capital promise prosecution the to waive return for State’s concurrently, run McFadden re- any sentences recommend murdered, explained had role that Xiomara been vealed killing, implicated both and Herbert. William by hired early

In McFadden had been Herbert December salesman, although they agreed salary. on a a had never as Shortly hired, Herbert to he McFadden was invited after was There, “cousin” him a Herbert introduced his meet at restaurant. had told McFadden that William a to McFadden and William harassing Herbert said that girlfriend who him. When $25,000 killed, girlfriend McFadden pay to have the William would they again met several respond. request, At did not Herbert’s offer, agreed repeated days McFadden later. Herbert They meet warehouse commit the murder. were to William’s arrived, Thursday. carrying a following McFadden briefcase that held a wire cord that he had removed from the back of a refrigerator. When Herbert learned McFadden was not carrying gun, opened a he his own briefcase which he had a revolver. strangle

Herbert directed McFadden to the victim when she arrived with William pretend who would to turn on the light. killing, After transport body McFadden was to to the Engels’ grandparents’ home in South Carolina. McFadden was place body acid, told in hole and cover it with and to have the car gave pair crushed. Herbert elbow-length, McFadden gloves thick disposing rubber to use in body. gave of the He then McFadden in cash and told him to hide the $1300 bathroom.

William entered the office with planned. Xiomara as He fum- light switch, work, bled with the claimed that did it not and walked past get the bathroom to a flashlight. followed, As Xiomara jumped pulled McFadden out and the cord around her neck. floor, When she fell to the strangled McFadden During her. the ordeal, watched, four-minute William cigarette, smoked a called his former wife a “bitch.” died,

After Xiomara McFadden her wagon backed station into and, garage the help, body William’s threw the into the car. William went outside body. while McFadden covered the When garage, William returned to the he was nervous and said that the police were outside. After William police, dealt with the MeFad- left, driving den wagon. picked Xiomara’s station up McFadden Lewis Wright, employee Engel’s “Pee Wee” agreed an of who had accompany ride, to McFadden on the and drove to South Carolina. Wright, uninformed of the drive’s purpose, body discovered the during trip. Carolina, On their arrival in South Wright car, burned the after which the two celebrated the occasion at men a bar. they

When Jersey, returned to New gave Herbert McFadden Later, Wright Herbert discovered accompanied $5000. had the trip. McFadden on Herbert instructed to McFadden kill did not Wright paid McFadden another McFadden $1000. murder, that he he assured Herbert agree this second but things.” ... of “take care would Pur- trial, against and Herbert. At McFadden testified William testimo- agreement prosecutor, McFadden’s with the suant promise not to seek the exchange for the State’s ny given was any penalty him and to recommend that sentences against death guilty of murder concurrently. run McFadden was found imposed parole ineligi- minimum imprisonment life with a and sentenced to thirty years. bility of murder, Engel was the father two

At time of the Herbert no criminal record and daughter. prior He had sons and trial, penalty regularly. church At the time attended forty years thirty-eight years old and William Herbert was daughter marriage and a two from his first old. William had sons graduated high from marriage to victim. He had from his years college. was a successful He school and attended two large two homes and was involved who owned businessman regularly, and had many organizations, attended church charitable prior no record. conspiracy of murder and and Herbert were convicted

William they paid have the jury had to commit murder. The found Engels’ father the.penalty phase, At murder committed. day in a Nazi concentration his own father was killed recalled may rougher one.” camp day than that and noted that “this be that and Herbert and his brother testified both William The father guidance The of their fathers. had three children who needed them, please kill let them live.” wrote: “Please don’t sons c(4)(e), killer, a hiring jury aggravating The factor found c(5)(a), mental or emotional dis- mitigating factors extreme and record; duress; tress; e(5)(e), c(5)(f); prior no criminal and c(5)(h), aggrava- jury further found the the catchall factor. The factors, outweigh mitigating court ting factor did not thirty- a life term with a William and Herbert each to sentenced year period parole of ineligibility. Appellate af Division Engel, firmed the convictions and State v. sentences. 249 N.J.Su denied, per. (App.Div.1991), 592 A. 2d 572 130 N.J. certif. (1991). 614A.2d 616 Engels’sentencing, After the testimony McFadden recanted his that conspired Herbert and William had with him to kill the victim they that paid killing. sought had him to do the He a vacatur guilty plea grounds of on the that was it not entered voluntari- ly. accidentally McFadden claimed he killed hitting Xiomara her in during burglary the head with rock a attempt at the a. trial, warehouse. Herbert and moved for a William new but repudiated McFadden later his recantation. The brothers’ motion denied, for a new trial was and on remand McFadden was imprisonment thirty-year resentenced to life period parole ineligibility.

C) Robert Marshall Marshall, fifty-four-year-old agent, began Robert insurance having an affair extramarital with Sarann Kraushaar in June 1983. Although resources, Marshall had substantial financial he lived accumulated, beyond $168,000. his means and debts excess of death, At the time of Maria Marshall’s her husband maintained policies insurance on her life totaling over one million dollars. policies just acquired Several of those were months before the homicide, and Marshall and the decedent were examined for an policy morning preceding additional on the early her death. As as December 1983 Marshall mentioned Kraushaar idea killing his wife.

In May Marshall met codefendant Robert Cumber at a party. Cumber him to Billy Wayne introduced codefendant McKinnon, a former sheriffs officer from Louisiana. Marshall arranged 18, 1994, meet with McKinnon on June at which time killed, Marshall told McKinnon that he wanted Maria he wanted place night. the murder to take McKinnon asked $100,000, $65,000. accepted but Marshall’s offer Marshall had $5,000 “investigate” Ms wife to

already paid McKinnon $10,000. remaining $50,000 an additional planned to advance proceeds. insurance anticipated from would come him night. called not that Marshall did Mil Maria McKinnon why did not take mormng inquire the murder following the Shreveport, return to he needed to place and McKinnon said McKinnon’s Louisiana, weapon. After appropriate the obtain July 1984. Louisiana, met on and McKinnon trip to Marshall all-night whereby stop he at an plan would had devised a Marshall the to use the he left car with his wife. When restaurant did not bathroom, Again kill McKinnon was to Maria. McKinnon parked at the Maria, officers were police time kill this because hour. appointed at the faded to arrive restaurant and Marshall complain- many to McKinnon placed calls Subsequently, Marshall an plan. Using as not the Cumber ing he had carried out $15,000 to mur- intermediary, an additional he offered McKinnon Day. Labor der before Maria 6, 1984. September more on McKinnon met once

Marshall and Parkway to select They southbound on Garden State drove locations, McKinnon rejecting After two site for the homicide. formulated Oyster Picmc Area. The men agreed Creek to use the They robbery awry. agreed gone designed to look like a a scheme City, park in Marshall would wayMs from Atlantic that on back Then, perpetrator, car claiming trouble. picmc area Larry Thompson, would by McKinnon to be codefendant alleged fatally shoot Maria. hit over head Marshall had evening according plan. She was murdered Maria range. wallet close Marshall’s twice in the back from been shot tire. ground by car which had slashed on the was found Cumber, charged all Marshall, Thompson were McKinnon and procur- with charged conspiracy and murder. Marshall was charged as murder-for-hire, ing Cumber and McKinnon were charged pur- with own-conduct accomplices, Thompson poseful-or-knowing murder. prosecution

McKinnon confessed. He testified for the at Mar- pled guilty shall’s trial conspiracy. only and He received a five- year prison guilty sentence. Cumber was found on all counts and thirty years imprisonment sentenced to parole. without Thomp- son, Marshall, who acquitted was tried with was charges. of all murder,

At the of time the Marshall was the of father three together sons. He and had college. Maria been since Marshall broker, an good reputation was insurance had á community, the many was organizations. and involved charitable guilt phase jury The convicted Marshall of conspiracy and capital penalty At phase, jury murder. the aggravating found c(4)(e), factor procured by payment, murder mitigating and factor c(5)(f), significant c(5)(h), no history; criminal the catchall mitigating Finding factor. aggravating that the outweighed factor mitigating factors, jury sentenced Marshall to death. Court affirmed the conviction and on

.This sentence direct Marshall, (.Marshall appeal, (1991) v. State 123 N.J. 586A.2d 85 I), review, proportionality II, supra. Marshall

D) Payne Celestine urging At the Payne, of Celestine beneficiary who was of a $25,000 victim, policy insurance on the of life Charles Pinchom killed the victim. The details of the murder are supra described 240-41, at 731 A.2d at 1101. investigation of this crime led to discovery implicating of Payne evidence in the murder of her husband, supra 226-28, see at 731 A.2d at and in the attempted victim, murder of supra still another see murder, A.2d at 1094. At Payne forty-four the time of the years old. lived with supported She two of her four children and money herself on the life insurance she collected she after killed her husband. crimes,

For grand jury charged her with her two counts of conspiracy murder, murder and to commit attempted one count of of murder, hindering two counts apprehension, of three counts an unlawful possession weapon of a forgery, two counts 28,1997. charges May on On each pled guilty all purpose. She conviction, Payne to concurrent terms the court sentenced murder thirty-year parole ineligibili- period imprisonment life ty. c(4)(e), procured present aggravating factor

The AOC coded as c(5)(d), capacity; mitigating factors diminished payment, and c(5)(h) c(5)(f), catch-all significant history; no criminal and the factor. J.,

HANDLER, dissenting. Jersey has in New Proportionality review of death sentences possibility It for the that imprecise. and allows become crude upon comparison may proportionate a based Court find sentence defendants; yet of that designated group of a to the sentences comparison to number of may individu review have overlooked defendant, culpable. We con perhaps even more als most like risk, accept may we sacrifice a sciously accept that as we that death sen perfectly assessment of defendant’s individualistic Ramseur, uniformity. v. 106 See in the interest of State tence (1987) 123, of 330, (noting that dual aims 524 A.2d 188 N.J. in the paradox an “inherent uniformity individualization create (Handler, J., 351, 347, 188 524 A.2d process”); also id. see individuality uniformity and dissenting) (noting premises of that fundamentally inconsistent underlying review are proportionality irreconcilable). of classification how risks present case demonstrates The may necessary of the review generally accept as elements that we designed protect The framework exploited. procedural be to defendant’s manipulated has been rights capital of defendants solely death-eligible on the as Chew was classified disfavor. John proceeds; a classification insurance ground he murdered for maintain, which, contrary to intent of N.J.S.A. 2C:ll-3c. I gain group pecuniary of a as a member Having sentenced Chew 250 apart,

killers from which he should have been set the Court death-eligible presently compare fails to Chew to the defendants with whom he has the most in common—those who murdered ones, relatives, or proceeds loved friends insurance or inheri- defendants, Comparison tance. with these none of whom were death-sentenced, arbitrary. shows that is Chew’s sentence reason,

For this I because maintain that evidence of the imposition risk race discrimination of this State’s death penalty capital punishment, mandates that we discontinue see 373-412, (1999) Loftin, 253, State v. 157 724 N.J. A.2d 129 (Handler, J., II); (Loftin dissenting) Harvey, see v. also State 277, (1999) (Handler, 361-74, J., N.J. 731 A.2d 1121 dissenting) III); 55, (Harvey Cooper, 163-64, accord State v. 159 N.J. (1999) (Handler, J., II), dissenting) (Cooper A.2d 1000 defendant’s death sentence must be vacated.

Therefore, I dissent.

I January 12, 1995, On John Chew slashed the throat Bowman, girlfriend, Theresa as she sat in the driver’s of his seat Chew, 30, 42, (1997). Corvette. State v. 150 N.J. 695 A.2d police affair, having learned Bowman was an id. at agreed 695 A.2d and that separate she and Chew had on day she was murdered. Id. at police 695 A.2d 1301. The $250,000 also beneficiary discovered that Chew was the aof life Bowman, policy plans insurance on that his to girl and kill his for the longstanding. 43-44, friend benefit were Id. at 695 A.2d 1301.

juryA purposeful knowing convicted Chew of by or murder his conduct, 2C:ll-3a(1) contrary (2), own to N.J.S.A. or as well as possession weapon of a for an unlawful purpose, contrary to jury’s N.J.S.A. 2C:39-4d. Id. at 695 A.2d 1301. finding The that Chew “committed as receipt, the murder consideration for the expectation or in receipt anything value,” of the pecuniary 2C:11-3c(4)(d), Id. at triggered penalty trial. N.J.S.A aggravating other factors. jury 1301. The found no A.2d trial, mitigating penalty presented extensive defendant At evidence, jury support N.J.S.A. 2C:11- found most which jury 3c(5)(h), mitigating factor. See ibid. the catch-all culturally emotionally and unanimously found that Chew was provide him with basic parents, his who failed deprived by delinquent was stability. His behavior guidance, and structure encouraged academically; ignored or he was not even condoned: tolerated, leaving culminating in his were excessive absences engaged grade; and and his brothers seventh he school acts, delinquent much of which was done thievery other Further, parents approval. knowledge both parents’ their affairs; mother often in numerous extramarital were involved present. the children brought lovers home with her ain violent jurors that defendant was raised Eleven also found parents by home, acts of violence both he witnessed serious where mother, imma- jury appreciated, was against His each other. meet for her children and ture, ill-equipped to care resentful and needs; his father emotional whereas physical and their basic absent, sexually promis- financially irresponsible, emotionally cuous. had from serious jurors that defendant suffered found

Nine youth, numer- reflected disturbance as mental and emotional multiple They recognized that juvenile institutionalizations. ous parents. by his effectively abandoned in his life Chew was times from other and separated each parents frequently were Chew’s non-custo- custody arrangements the parents alternated while their children. maintain contact with parent dial failed to family frequently moved so jurors that the Chew found Seven non-existent, any friendships but long lasting only not were problems family’s multitude of to address intervention impossible. Defen- almost or health officials was school mental early as the second as education were evident dant’s difficulties little, compensate was made correct or grade, any, if effort but 252 result,

for these deficiencies. As a developed Chew a fear of poor school which of contributed self esteem and loss self worth. jurors appreciated relationship Six defendant’s his eleven- Valerie, year daughter old whom he loved who loved him Although relationship daughter return. Chew’s with his was by incarceration, jurors recognized limited Chew’s these important necessary part Chew continued be an of Valerie’s play significant life and would upbringing. continue to role in her See ibid. jurors parents

Five found that defendant’s him to raised believe he was worthless —his mother told him him she hated and wished he dead paternity. jurors and his father often denied Three harm, found that parents protect defendant’s failed to him from ignoring signs by of sexual his witnessing abuse maternal aunt and physical abuse grandmother. jurors maternal Ten an found additional, unspecified mitigating catch-all factor. confessions,

Despite anguished Chew’s penalty jury conclud- aggravating ed sole pecuni- factor —that Chew killed for ary gain outweighed mitigating evidence and sentenced — Chew to death. Ibid.

II jury A sentencing unanimously must statutory find least one aggravating circumstance order a defendant convicted degree first eligible murder to be for a death sentence. See way jury’s N.J.S.A. 2C:11-3. “In this discretion is channeled. longer jury wantonly freakishly No can a impose the death sentence; always it by legislative guidelines.” is circumscribed Gregg 153, 206, v. Georgia, 428 U.S. S.Ct. 49 (1976). jury L.Ed.2d only Chew’s aggravating found one factor —that defendant “committed the murder as consideration receipt, for the or in expectation receipt of the anything pecuniary 2C:11-3c(4)(d). value.” N.J.S.A. N.J.S.A. 2C:11- 3c(4)(d), however, was not intended to encompass and should not Chew, killings proceeds. supra, for insurance See 150 N.J. at 88- c(4)(d) 101, (Handler, J., dissenting). aggrava The 695 A.2d 1301 jury as matter of ting not have been before the a factor should entirely eligibility for death was thus law. See ibid. Defendant’s Chew, if he mur dependent upon jury’s mistaken belief as proceeds, “pecuniary insurance killed for value” dered for 2C:11-3c(4)(d). contemplated by N.J.S.A. statutory provision of language

The and construction —“as receipt or in of of receipt, expectation consideration for the c(4)(d) aggra anything pecuniary value” —demonstrate that of killers, those vating apply solely was intended to to contract factor committing a “Con accept payment who return for homicide. parties, a a imports understanding mutual between two sideration” J., 90, (Handler, meeting the minds. id. at 695 A.2d 1301 of See receipt anything of of dissenting). “expectation of the clause to a pecuniary merely requisite extends the consideration value” 91, past payment, opposed present. future as to one or See id. at Clausell, (Handler, J., dissenting); State v. 695 A.2d 1301 accord (1990) 344, 298, (holding on 121 580 A.2d 221 instruction N.J. c(4)(d) requires “telling jury specifically it must find factor payment, expected or to receive that defendant either received [victim]”). such, statutory aggrava having As payment, for killed c(4)(d) 2C:11-3c(4)(e), applies which to a ting factors N.J.S.A by pay “procured of the offense defendant who the commission value,” are payment anything pecuniary of promise ment or apply symmetrical complements. Both consideration and involve gun, the applies former to the hired to contract murderers: Chew, 93, supra, N.J. at 695A.2d 1301 latter to the hirer. See 150 (Handler, J., dissenting). c(4)(d) aggravating factor consistent interpretation

This of the is DiFrisco, 148, v. 142 662 reasoning in State N.J. with the Court’s (1995) (DiFrisco III). mur was convicted of A.2d 442 DiFrisco c(4)(d) der-for-hire, sentencing jury found that the for which the DiFrisco, applied. 137 N.J. aggravating factor See State v. II). (1994) (DiFrisco purposes propor For 645 A.2d (AOC) review, of the Courts tionality the Administrative Office I, category classified DiFrisco in which includes defendants who involving pecuniary committed a a motive other than “murder robbery excluding or burglary,” those crimes whose involved assault, arson, victims, kidnapping, multiple sexual or a victim who (Nov.-7, public 1994); a Report, is servant. DiFrisco See tbl. (CCH (Dec. 1997) ChewICooper/Harvey Report, accord tbl. 7 Report). Category comprised subcategories: I is of four contract killers, 1-1; 1-2; subcategory principals, subcategpry contract murderers, 1-3; pecuniary gain other subcategory and contract victim, id., killers 1-4. subcategory who were hired See tbl. DiFrisco, killer, subcategory 6. hired classified in 1-1. For proportionality comparison, composite the Court used of the subcategories, comparing in category DiFrisco to all defendants I.

An of comparison unmodified DiFriseo’s sentence to the com posite category I have AOC-designated would included cases I- as murders, gain” for “other pecuniary 3 such murders as motivated by receipt the of inheritance or life insurance benefits. The Court, however, compare to declined DiFrisco to defendants who Specifically, killed for insurance proceeds. the Court removed Williams, 1-3, defendant on ground Walter classified as the th'at jury rejected “the pecuniary-motive aggravating the factor at his III, supra, penalty trial.” DiFrisco 662 N.J. at A.2d 442.1 request The Court expressly further declined DiFrisco’s to include Accetturo, Auriechio, Anthony Ricciardi, defendants Louis Thomas Pema, comparison Michael and Michael Tarcetta in the group on ground appeared] the that to allegation “there be no basis for an any of paid those defendants were either to commit murder so____” they 167-68, paid or that to do at another Id. 662 A.2d 442. And the Court denied to request DiFrisco’s include defen comparison, finding dant Patrick in the Lanzel his “motive for only subcategoiy Walter Williams was the defendant classified the 1-3 for pecuniary proportionality "other at motive" killers the time of DiFrisco’s review. III, supra, dismissing See DiFrisco at 167 142 N.J. n. 662 A.2d 442. While Williams, Rose, defendant, the Court allowed Michael an classified as 1-1 to group despite sentencing jury remain in the the fact that Rose's also failed to c(4)(d) aggravating the find factor. comparison

killing pecuniary; not therefore with defen- [his] was 169, 662 442. Lanzel inappropriate.” dant Id: at A.2d killed is his cousin share parents proceeds cousin’s so that he and could the of their life insurance and inheritance.

Thus, quite of language the thrust the Court’s DiFrisco III is killings killings proceeds— insurance clear: inheritance or for specifically, “pecuniary” murders —are not within the non-contract meaning penalty of the death statute. trial present in the case was exacerbated the

The error c(4)(d) jury aggravating instruction on the factor. court’s c(4)(d) jury apply the for the factor to court instructed unanimously death-eligible jurors for to be the “must defendant find, doubt, that, least, beyond purposes one of the reasonable had, Bowman, murdering for to obtain John Chew Theresa “although the proceeds.” the The court continued: insurance proceeds the does not have be the defen- receipt of insurance Bowman, killing receipt purpose exclusive Theresa the dant’s just an much than incidental proceeds of such must be more defendant, because of Theresa Bowman’s death. benefit to is, gain must of the expectation pecuniary That be cause murder, murder, of the of the and not of it.” or one causes result By inserting phrase proceeds’ place ‘to insurance obtain language statutory pecuniary gain’ ‘for without reference penalty jury arrangements, deprived the court Chew’s contractual e(4)(d) statutorily as de- any opportunity apply factor fined. have resulting prejudice is tantamount. Chew would not jury’s finding met death-eligible

been but for the that conduct c(4)(d) finding by jury that contemplated factor. Had consisting reading of a of the upon been a court instruction based only complained that statutory language, might have defendant judge’s statutory vague. here the trial language is But statutory provision in terms relevant decision to redefine the e(4)(d) finding aggravating jury’s of the case rendered the finding nothing factor more than a that Chew committed proceeds. murder collect the insurance Given that statuto ry provision apply does not proceeds to insurance in the absence kill, of a contract to defendant death-eligible, jury’s was not c(4)(d) finding error, of the aggravating factor inwas and vacation Chew, of required. Chew’s death sentence is supra, still Accord 99-101, (Handler, J., 150 N.J. at 695 A.2d 1301 dissenting). unsettling compare It is the death sentence of a defendant bywho law should not death-eligible have been with the sentences of Nevertheless, others who given were. majority that a of this Court affirmed defendant’s conviction and death sentence on appeal, 88, 1301, direct see id. at 695 A.2d Chew is constitutionally entitled to proportionality 2C:11-3e; review. See N.J.S.A State v. Marshall, 109, 117, (1992) (Marshall II). 130 N.J. 613 A.2d 1059

Ill The principles proportionality review are often recited. The applications secure, principles those are less purposes but for they this review remain those veteran and familiar: statistical frequency analysis, comprised of the salient-factors and index-of- tests, review, outcomes and precedent-seeking case-by-case com parison of defendant’s sentence by with those similarly received 199, situated defendants. See ante at 731A.2d at 1078. by

The basic standard which we have disproportional measured ity has been that “[a] death sentence is comparatively excessive if other defendants with similar generally characteristics receive sentences other than committing death for factually similar of jurisdiction.” II, fenses in the same supra, Marshall 130 N.J. at 153-54, (citation omitted). words, A.2d 1059 In other a death sentence is not disproportionate generally .if it is received similarly III, situated defendants. supra, See DiFrisco 142 N.J. 171, 442; Martini, 662 A .2d State v. 139 N.J. 651 A.2d 93-94, (1994) (Martini II); II, Cooper but see supra, 159 N.J. at (emphasizing 731 A.2d 1000 disproportion sentence is if ate it is “aberrational” or if defendant “singled has been out

257 III, Harvey supra, 159 N.J. at unfairly punishment”); capital for 356-57, (Handler, J., dissenting) (noting has Court 731 A.2d 1121 different standards substandards up used fourteen II, supra, at 417- measuring 157 N.J. disproportionality); Loftin (Handler, J., 18, (noting has used dissenting) Court 724 A.2d 129 measuring disproportionality). six standards for at least different standards, maintain, requires I some application The of these II, supra, 157 preponderance. Accord notion numerical Loftin J., (Handler, 419-20, dissenting); 129 DiFrisco at 724 A.2d N.J. 212, (Handler, J., III, dissenting); supra, 662 442 142 N.J. at A.2d (Handler, J., II, 90-91, A. 2d supra, 139 N.J. at 651 949 Martini (1994) 408, 334, dissenting); Bey, 645 A.2d 685 v. 137 N.J. State IV). (Handler, J., dissenting) (Bey are as proportionality review The deficiencies attendant to our customary inaugural of these process itself. From use as the models, scruti problems; subsequent and with noticed Court recognizable See ny, hidden have become blemishes. defects once II, 414-15, 129 724 A.2d supra, N.J. at generally 157 Loftin (Handler, J., identify standard dissenting) (discussing failure to imposition penalty and inherent general of death which to measure review); II, supra, 139 subjectivity Martini precedent-seeking (also (Handler, J., 82-106, dissenting) discuss at 651 A.2d 949 N.J. proportionality sentences in ing Court’s use of reversed death universe). review defects, Honorable light appointed the

In of these the Court proportionality Special Master to evaluate the David S. Baime as 263-77, II, supra, 157 at methodology. See N.J. review Loftin (Order). April report, Special submitted A.2d Master’s 1999, faulty and 28, aspects methodology are confirms that of our Baime, Report to the David S. in need of revision. See Honorable Project 6-7 Jersey Proportionality Supreme Court: Review New elsewhere, 1999) I 28, As I (Special Report). Master note (Apr. decision, majority’s see ante good support cannot faith 1077, Special not to consider 731 A.2d at recommendations, significant, assessing are Master’s which before III, Harvey proportionality the of Chew’s death sentence. See 354, (Handler, J., supra, at 1121 dissenting); 159 731 A.2d N.J. II, 163, 182, (Handler, J., Cooper 159 731 supra, N.J. at A.2d 1000 very least, Special dissenting). Report At the assures the Master many problems inadequacy us that there are that contribute to the review, proportionality ultimately arbitrary of our and to the mind, nature of defendant’s death sentence. in I With that only particular in pose problems discuss herein those that defen dant’s case.

A. undertaking frequency precedent-seeking analyses Before and sentence, my objection of Chew’s death I note Court’s adjustment comparison group. Having to Chew’s sentenced Chew group pecuniary gain as a member of a of which killers from he apart, proceeds should have set proportion- been the Court now in ality Williams, review to exclude Walter a defendant with whom common, Chew has most' in from AOC-designated Chew’s Further, comparison group. the Court’s inclusion of contract- murder defendants in proportionality Chew’s does not review square with the Court’s pecuniary-mo- exclusion non-contract III, tive defendants DiFrisco where the defendant was a killer; sample contract the small category size the 1-3 does not eviscerate I disagree this intellectual hurdle. also with the compare Court’s decision not to Chew’s sentence to sentences category certain defendants outside the I who further- killed pecuniary ance of a motive.

1. assigned category Chew was 1-3. Report (using See CCH 1997). including death-eligible database all cases through July 1-3, Subcategory designates which category defendants in I id., killing, 6-7, who did not see commit contract tbls. consists of defendants, id., Chew, including three see tbl. each of whom these, only Of Chew is the one insurance or inheritance. killed for e(4)(d) jury aggravating factor. That found the whom error, reasoning in DiFrisco III finding as this Court’s 192-96, at A.2d 1074-76. supports. supra at See discussion group the 1-3 removes Williams from Court Walter objection jury rejected response the State’s because c(4)(d) penalty at aggravating factor Williams’s (pecuniary-motive) Court trial.2 ante at 731 A.2d 1078. The reasons— See are improvidently concedes—that Chew Chew Williams 199-200, not, therefore, similarly A.2d at situated. See id. at object removal. disagree I to Williams’s Whereas 1078-79. killer, comparison group from a contract whose DiFrisco was removed, sensibly therefore Chew Williams— Williams was By much in this Court’s each a unilateral actor —have common. III, properly in Chew would be excluded judgment able DiFrisco By reasoning, review well. the same Williams from DiFrisco’s as comparison group. must in Chew’s remain any position modify prosecu- not Chew’s Although we are in to in of death-eligible as the wake tion and conviction defendant on of Chew’s conviction sentence this Court’s affirmance Chew, 88, 695 we supra, see 150 N.J. at A.2d appeal, direct by may remedy the of the situation partially least unfairness at Chew, Williams, who, unlike comparing to Chew Walter c(4)(d). qualified aggravating to for factor properly not have found great weight in a impropriety placing of may also consider the We Chew, for insurance comparison apparently murdered of who I killing. contract proceeds, party who were to a to defendants (and Rose) comparison group in for would the leave Williams 2 logic Williams, also Court the Court same which this excludes theBy upon c(4)(d) jury rejected aggravating factor as Rose, the excludes Michaél whose III, in DiFrisco 142 well. Court included Rose as a case supra, This comparison from the 170-71, at 662 A.2d I would not exclude Rose N.I. 442. comparison group here. 260 analysis,

frequency emphasize comparison and would defendant of similarly to and other defendants to the Williams situated extrinsic category precedent-seeking I on review.

2. to improper In addition the of from exclusion Walter Williams group, I the comparison compare lament Court’s failure to purposes for to precedent-seeking Chew’s sentence review select I catego- sentences of other defendants not classified in the ry who circum- pecuniary killed furtherance of a motive under stances similar defendant. presented thirty-four catego

Defendant cases I extrinsic ry deemed our comparison precedent.3 that he relevant for Court, abiding by classification, principle unique re any category fuses to include of the the I cases outside Chew’s III, ante at 200-01, See DiFrisco review. at (citing 731 A.2d 442). supra, N.J. categorically 662 A.2d The Court rejects comparison of preponderance Chew’s case of the suggested by cases they robbery the defendant because are murders, “significantly the Court as which views from different suggested by comparison multiple Five of the cases defendant involved victims, (A- category: and were therefore AOC-classified the A Lanzel Patrick 1); 2(A-1); (A-l); Roy (A-l); Mazique Bobby Frank Masini Ronald Watson (A-3). Report, Lee Brown See CCH Two tbl. 7. of the cases were classified category prior AOC in the B because the defendants had murder convictions: (B-l) 2(B-1). Fauntenberry John and Richard Feaster See One of the ibid. cases, Zeuner, proposed comparison by Robert was classified G-2 the AOCas for burglary entry particular residential with forced without or terror. violence remaining twenty-six suggested by See ibid. The cases involved defendant robbery category: Dwayne and were in the E murders AOC-classified Caviness (E-l); (E-l); (E-l); (E-l); Ploppert Albert Fains Carlton Felder Matthew (E-l); (E-2); (E-2); Anthony Campbell Fitzpatrick Szadorski Wanda James (E-2); (E-2); Musgrove (E-2); Darren Grant Michael Ira Jones Redden Richard (E-2); (E-2); (E-2); George (E 3); Larry Abdel Saleh Shaffer Durden Emman- — (E-5); l(E-5); (E-5); Corey uel Charles Richard Feaster David Mark Russo (E-5); (E-5); (E-6); Washington George Charles Williams Richard Cain Lazori- (E-6); (E-6); (E-6); (E-6); sak Vernon Mclver Carl Norman Kevin Smith (E-6); (E-6). Ronald Pierce and Mark See Robinson ibid. I disagree Ibid. with the Court on

pecuniary-motive murders.” points. both I

Although unique principle, I a do not favor classification as in some instances an AOC-elassifica- recognize possibility that sufficiently death-eligible to include may comprehensive be all tion precedential a of a defendant’s sentence. cases relevant for review murdered for is not in this case. Defendants who That so proceeds or not excluded from inheritance should be insurance they precedent-seeking merely because are classi- Chew’s review category purposes I of category trumps in a AOC- fied person a one or more than defendant kills classification. Whether inheritance, anticipated or person proceeds for insurance one pecuniary gain surely is of the crime. the “essential attribute” Therefore, proportionality comparisons as our review are insofar understanding sentence relation “an aid a defendant’s death murders share same ‘essential to other defendants whose ” Lanzel, attribute,’ 731 A.2d at 1079 n. Patrick ante at n. homicide, multiple as A-l for a who killed both of classified inheritance, parents expected for an should be added cousin’s 271-72, 731 A.2d at 1118. The the review. discussion See infra Collins, for insurance killed his wife son case Darrell who factors, jury aggravating no proceeds for whom the found but compared precedent-seeking on also to defendant’s' should be See ibid. review. rejection comparison robbery categorical

The Court’s question regarding the AOC’s sa- murders raises a fundamental killing arguably contract groupings. lient-factor Elements a during that occurs distinguishable make it from murder assertion, robbery. Contrary to the Court’s commission of a however, objectively significant an difference between there is not robbery who kill for murderers and defendants insurance all Robbery involving or murders victims who proceeds inheritance. assailant, particular, targeted acquainted with and their were or inheri- similarity to murders for insurance bear an intrinsic tance, beneficiary. The nature of is which defendant death-eligible suggests in the universe defen- current cases 262

dants such as Chew who acted alone and murdered for insurance 1-3, inheritance, or proceeds may now classified the AOC as have as much if not more in with certain common classes robbers, particularly acquain who those murdered robbed and tances, E-6, they now classified than do with conspiratorial as apparent contract killers.4 This is most in the case of codefend Smith, acquire ants Carl Norman and Kevin who killed a friend to the inheritance the victim had received a from deceased relative prior; Cooper, week and the case of William who murdered victim, eoworker, paycheck. for his See discussion at 272- infra at 731 A.2d 1118-19. twenty-one death-eligible category are There classified in defendants the E-6 (sen- involving robbery acquaintances: for murders between Jhi-Mar Anderson years (life); prison); (20 Reginald years); tenced to Richard Cain Clark (life); (life); Graf, Cooper (life); Larry William Daniels Ferrari Salvatori Clifford (life); (life); (15 years); Hedgespeth Jr. Michael Grant Louis Harris Frederick (life); (life); (life); (30 George Richard Jefferson Nathaniel Johnson Jones (30 years); (life); King years); George (life); Bruce Lazorisak Vernon Mclver (31 (life); years); (27 years); Carl Norman Pierce Ronald Robinson Mark Kevin (30 years); (life). 7A; id., Roy Report, Smith Sullivan CCH tbl. see defendants, Only Pierce, George Narratives. two of these Lazorisak and Ronald id., penalty reached a trial. See Narratives. homicides, many distinguishable Of the E-6 involved circumstances are from Chew's homicide Some offense. of the murders resulted from defendants' briefly premeditated possessions money people to take decisions or from See, they acquainted. (murdered minimally Larry e.g., boy whom were Daniels neighborhood get sweatpants); George he knew from to victim’s sneakers (murdered picked up nightclub night primarily Lazorisak man he same at to car); (male prostitute night obtain victim's Vernon Mclver murdered client met car); (slit money before for victim’s and Ronald Pierce throat of he and man cocaine). night seeking codefendant met same bar heat- victim’s Others are give money of-the-moment murders of friends or relatives to who refused to the See, (murdered e.g., Reginald give defendant. Clark aunt after she refused $20); (murdered give him Salvatore Ferrari mother when she refused to him (murdered money); drinking acquaintance give Louis Harris who refused to him (murdered money); Hedgespeth acquaintance give Frederick who refused $20); (stabbed grandmother during argument Nathaniel Johnson twice chest money); (killed Roy elderly give money over Sullivan friend who refused to him buy drugs). relationships predomi- Some of the crimes involved which were See, Anderson; drug-related. Grant; nantly e.g., Jhi-Mar Michael Richard Jefferson; King. and Bruce of adhering principle to the upon as insists

Insofar the Court classification, killings for insurance issue of whether unique robbery- might placed among be better proceeds and inheritance perhaps with killings, or combined murders than with contract acquaintances, warrants consideration. robbery between murders review sen- expand precedential of Chew’s present, At I would in the to defendants classified comparison to certain tence include impose a restriction robbery category, rather than blanket murder Therefore, in mem- addition to all comparison. such prohibiting Darrell and category, as well as Patrick Lanzel of I bers Collins, upon defendants particular I attention those would focus Chew’s, as fundamental such characteristics whose crimes share signifi- possessions, or that exceeds mere cash pecuniary motive with victim— acquaintance some premeditation, cant mentioned, Nor- namely, Cooper, William Carl previously those and Kevin man Smith.

B. briefly I am in frequency analysis because I discuss Chew’s as that the statistical results agreement with the Court overall finding disproportionality provide a basis for such do not 1078, supra at 731 A.2d previously, see sentence. As noted Rose in the 1-3 Michael I would include Williams Walter comparison. or without purposes 1-1 With category however, convincing. are Williams, numbers not Chew’s Rose death-sentencing high relatively Pecuniary-gain have a murderers high culpability Moreover, producing Chew’s the factors rate. are regressions derivative in the index-of-outcomes level heinous crime. own' n test, looking to the death-

According the salient-factors for all advancement rates sentencing penalty-phase rates and murderers, excluded Rose and Williams pecuniary-motive sentencing rate for I-class group, the death comparison from the fifty percent.5 Report, (reprinted defendants is CCH See tbl. 1081). Adding ante at 731 A.2d at Rose to the and Williams calculation, sentencing drops forty the death rate statistic percent. infra, Appendix suggest A. These See statistics similarly situated defendants receive sentences than death other alone, only slightly more often than death sentences. Considered provide argument do strong the numbers not for a basis disproportionate. percent defendant’s sentence was The ten de death-sentencing crease in when rate Williams and Rose are calculation, however, convincingly added to the demonstrates that sample groups “the small sizes of the this salient-factors test preclude investing great weight from us in those results.” Di III, supra, 142 Frisco N.J. at A.2d 442. ratings helpful

Chew’s index-of-outcomes are even less to his disproportionality. claim of regressions The results of the assess- ing only penalty-trial penalty-phase cases demonstrate that when juries defendants, similarly have decided sentences for situated they generally imposed have Considering statutory death. factors universe, only penalty-trial in the culpability Chew falls in level five, seventy-six percent in of which the received defendants the 23, 24; 207, death penalty. Report, See tbls. CCH ante at 731 by A.2d at He statutory non-statutory 1083. fares no better measure, falling four, factor culpability in level nine of the where proceeded penalty twelve defendants who to trial were sentenced 21, 22; Report, 207, to death. CCH See tbls. ante at 731 A.2d at 1083. by

Measured the full of death-eligible universe defendants and statutory only, three, is in culpability factors defendant level which death-sentencing fifty-two percent. the is rate See CCH 23, 25; Report, Although tbls. ante at 731 A.2d at 1083. 5 I refer those to statistics that exclude defendant from the only comparison group. “gauging As I have noted aof defendant’s previously, proportionality comparing group sentence it to a which he member, is a skews the (Handler, II, 157 N.J. at 420 n. 724 analysis.” J., A.2d 129 supra, Loftin dissenting). here, appears culpable mid-range

defendant less result does high percentage little offset peers of death-sentenced reflected in the other tests.

Only statutory non-statutory when are variables consid appear ered in the full universe does defendant’s death sentence disproportionate. By regression, culpability this defendant’s score one, percent occupies culpability falls to nineteen and he level at only percent which five of the defendants have been death- 13, 14; Report, sentenced. See CCH tbls. ante at 731 A.2d at regression disturbingly This probability 1083. reveals low death; yet, light regressions, of the other the results of this regression do not establish that defendant’s death sentence is disproportionate.

Nevertheless, predicted regression the low value of the last requires carefully this Court scrutinize defendant’s sentence in addition, precedent-seeking exceptionally large review. In confidence in this intervals case and the wide variance defen- culpability dant’s scores demand that not accord this Court 209-10, weight.6 test substantial See ante at 731 A.2d at 1084. indiscriminately compare The Court continues defendants with those subject prior proportionality whose sentences were the review. See ante at 207-10, comparisons 731 A.2d at 1083-84. I would restrict between Chew and prior proportionality they review defendants to circumstances in which share II, 423-25, culpability supra, levels. See 157 N.J. A.2d 129 Loftin J., (Handler, dissenting). culpability necessarily synony Because are levels not databases, ibid.; Special Report, supra, mous across see see also Mater at 93-94 cases), (discussing charting "instability” culpability of scores across in undertaking comparison, properly such a limited numbers would be Chew's compared prior proportionality gleaned with numbers for review defendants regression. from the same However, purposes for the for which the Court uses the index-of-outcome test namely, comparison culpability ratings conduct of Chew's with results — prior proportionality regardless culpability those of review defendants level— comparison upon given propor- based the data this Court used in a defendant's tionality provide example, review must would a more accurate measure. For culpability the data used to measure Martini's must be derived from the Martini Therefore, Report. although agree apply I with the Court's choice to the index- Indeed, regressions are so unreliable that the index-of-outcomes are, Report, supra, at Special Master they arguably, useless. See the index-of-outcomes (recommending that the Court abandon test).

C. comparison group have adjustments to the Although the Court’s results, analysis frequency minimal effect on the statistical substantially prece- group affects comparison definition Chew’s addressing how a dent-seeking of his sentence. Before review arbitrary nature of Chew’s expansive accentuates the more review sentence, upon precedent-seeking I pause to reflect death analysis by the Court. conducted

1. culpability is Generally, agree I Court that Chew’s girlfriend high. The manner which Chew murdered Nevertheless, brutally the attention the Court devotes to cruel. distinguish insurance- is routine. The Court fails to Chew’s Chew agree I killings. Even if were to motivated crime from contract comparison Chew and contract with the relevance of a between defendants, analysis reckless. I would find the Court’s murder defendants, 1-2 from the Attempting to differentiate Chew “[njone claims, category of the defendants this killed Court solely pecuniary gain.” Ante at 731 A.2d at 1089. And for brother, family explains: paid “Brand to rid his of an abusive ex-wife out of a Engel planned brothers the death William’s resentment, jealousy and Marshall had his warped sense of in order to an obstacle to his extra-marital wife killed eradicate distinguishes Id. at 731 A.2d at 1089. How this romance.” Bowman, Chew, killing as record part whose motivation for him, demonstrates, leaving is a amply was because she was of Marshall from is awk- mystery. The Court’s distinction Chew agree regression database, from the I do not with its of-outcome results present doing so or the for which use the data. reason comparison they

267 moralistic, wardly portraying culpable Marshall as less because he just money, killed not for paramour. but to be with his attempts The distinguish Engels Court then Chew from the “[mjore brothers, importantly],” ground on the that the Brand c(5)(a) juries Engels mitigating found the factor. See id. at 218, gel 731 A.2d at 1089. This does not with the claim Court’s “recognize rejects jury specific even when a mitigating factor, may it nonetheless remain influenced the evidence presented 210, in support mitigating of that factor.” Id. at 731 II, 336, 129; (citing supra, A.2d at 1085 157 N.J. at 724A.2d Loftin III, 185, supra, 442; IV, 142 Bey DiFrisco N.J. at 662 supra, A.2d 685). 368, 137 N.J. at disregards A.2d The Court here Chew’s mentally substantial account emotionally of his troubled life. inconsistency haphazardly continues as Chew is declared crime, culpable engaging 217, more for others see id. at 1088, blameworthy” having A.2d but also “more for “carried out alone,” bloody 219, plot id. at 731A.2d at 1089. attempts The Court’s to differentiate Chew from 1-1 defen- equally Referring dants are senseless. to this Court’s assessment why Chew deserves die while other life-sentenced 1-1 Harris, Pinehom) Melendez, (Burroughs, Irizarry, defendants not, may glean do one that Chew’s death sentence is understanda- proportionate—because cooperative Chew was not with the ble— police, stable, relatively mentally he was “planned and he 217-18, 1089; year.”7 murder ... over Id. at 731 A.2d at (“In sum, many see also id. at 731 A.2d at 1090 unlike of the murderers, pecuniary-motive life-sentenced Chew did not substan- tially mentally assist the State and was not disturbed when he victim.”). murdered the The notion that these characteristics 7 The claim that Chew the murder for over a see ante at 217- "planned" year, 731 A.2d at is an overstatement. The most that can be confidently killing drawn from the record in this case is that Chew had considered Bowman for over a year. is nota life death sentences between and rationalize a distinction absurd, moral determinations problematic illuminates the bly Accord Mar precedent-seeking review. undertakes this Court J., (Handler, 273-74, II, A.2d 1059 at 613 supra, 130 N.J. shall dissenting). by conducting a whimsical slights the

The Court defendant review has come to —if proportionality If this is what review. opinion simply analysis works” —an is “whatever root of sentence would suffice. Of affirming reversing or defendant’s Accordingly, course, than this. accomplish more we strive adjustments warranted. are

2. comparison to 1-3 of Chew particular I take note of Court’s poi- Payne. Payne killed her husband with defendant Celestine son, fatally spouse shoot her went request after her of a friend four, result, mother of Payne, unemployed unfulfilled. As a $49,000 Payne Subsequently, proceeds. in life insurance received boarders, and hired policies on two of her took out life insurance only attempt Pinehom’s Pinchom to kill them both. Charles successful, guilty murdering Payne pled to two partially one. thirty-year parole disqualifiers. life terms with concurrent Payne’s clinically diagnosed depression emphasizes The Court distinguishing her life schizophrenia as the factor between 215, 731 A.2d at death verdict. See ante sentence and Chew’s II, supra, similarly sought to distin In the Court 1087. Loftin similarly from the life sentences of guish Loftin’s death sentence present ground on the that Loftin failed situated defendants or that he suffered from mental disease uncontroverted evidence 345, 342-43, 724 A.2d of the crime. 157 N.J. at defect at the time B-2 defendants (distinguishing 129 Loftin from death-sentenced defendants). may completely Although the Court not be and B-3 jurors sympathetically to thinking respond off the mark disease, using of mental illness clinical evidence evidence mental distinction, fear, I is somewhat unfounded dispositive as .basis quite possibly presented mistaken. Defendant has evidence 2C:11-3c(5)(a) qualify that defendants who for the N.J.S.A. miti factor, gating recognizes which extreme mental or emotional dis turbance, likely prosecuted capitally are more to be than defen present dants who do not evidence extreme mental or emotional 224, Report, (reprinted distress. See CCH tbls. ante at 1092); (recognizing A.2d at see also ante at 731 A.2d at 1093 positive “a correlation between the mental disturbance factor and that, capital prosecution”). although The statistics also show c(5)(a) slightly likely defendants with the factor are less to be trial, they penalty sentenced to death at a are nevertheless higher death-eligible sentenced to death at a rate than defendants generally. Report, if See CCH tbls. 10. Even these results are anomalous, they present possibility somewhat that evidence of always help mental disturbance does not a defendant before a jury. sentencing regarding

The Court’s assessment mental distress is evidence conclusory. Although proportionality this Court’s review borders mechanical, jurors give on we must our more credit. must We jurors’ complex assume that deliberations are more and emotions proximate analysis more than the Court’s reflects. We should not jury’s possibility many dismiss a awareness of the that individuals psychiatric impairments diagnosis nor seek neither clinical indeed, may symptomatic such avoidance be treatment — hyperbole step affliction. If it is more than that the first recovery acknowledging problem, Payne may is Celestine juror’s beyond step along path.- view be a Chew In the same jurors regard, might Payne have concluded that the medication Court, therefore, taking helping was her is condition. impulsive rely confidently presentation so on the of evidence of dispositive mental distress as a factor.

Recognizing impetuous interpretation nature the Court’s of extreme emotional or mental distress does little to alter the fact present mental evidence of presented little direct that Chew his troubled a substantial account of offered problems. Yet Chew 251-52, At least 731 A.2d at 1106-07. supra at upbringing. See by presented evidence of mental distress juror found all of the one ibid. mitigating factor. See to the catch-all to contribute Chew extent, suggests, the mental previous discussion as the To some implicit and adolescence are problems rooted in Chew’s childhood to deal in the means he used in his homicidal act and reflected problems. personal with his fact, quite a lot in common. Both Payne, in have

Chew other; both proceeds; significant killed a for insurance both killed victims; in advance. planned and both the murders helpless killed whereas Payne respects: in two culpable is less than But Chew boarders, husband, to kill two Payne paid her Pinchom killed And, Payne only and acted alone. whereas killed Bowman Chew tendencies only proceeds, insurance Chew’s homicidal killed going to fact that Bowman was part motivated were compared only to very day. sentence him that Were Chew’s leave certainly unfair. Payne’s, it would seem

3. support finding Comparison Payne’s case alone cannot are, however, a number of defendants disproportionality. There Chew, culpable, who received similarly situated to some even more cases, a number of which are Comparison to these life sentences. review, sen- from the Court’s demonstrates Chew’s excluded and, therefore, unconstitu- arbitrary both inhumane and tence is analy- tional, proportionality review byif the Court’s limited even clearly disproportionate. sis it is not only compare to “the other undertakes to Chew When the Court 1087, blithely it category,” ante at 731A.2d at killer in the 1-3 Chew, Williams, like excluded a defendant most overlooks Walter c(4)(d) jury factor. analysis failed to find the from the because a loved only defendant on record who killed is not Williams proceeds one or relative to collect insurance or an inheritance that Lanzel, is excluded from Chew’s review. Defendants Patrick A-l, as classified and Darrell Collins are left out of the Court’s comparison as well. What makes this acute class of offenders Williams, Chew) Lanzel, Collins, (Payne, that, noteworthy is Williams, exception with the multiple Chew and all killed victims, and, remarkably, exception more all of Chew were sentenced to life.8 Williams, thirty-six year officer, police poisoned

Walter old his potassium cyanide first wife with up to cover an affair that had developed bigamous marriage. into a expressly Williams also sought to prior receive the first wife’s estate. had no Williams record, disturbance, presented no clinical evidence of mental but experience claimed to have flashbacks related to his in Viet- prison nam. He was sentenced thirty-year parole to life with a disqualifier.9 father, conspired

Patrick Lanzel with his cousin to kill her uncle, split expected and to attempts get inheritance. After the uncle to overdose on kill his own medication and to the uncle failed, poison with rat defendant beat his uncle to death with an upstairs iron rod. Defendant then went and murdered his aunt in cousin, way. the same younger He also beat a who survived. eighteen ultimately Defendant was at the time and confessed. He record, partially completed college, had no had criminal and had caddy. worked as a securities broker and a He did not have a II, Williams, supra, compared In Marshall the Court Marshall to Walter Johnston, Darrell Collins and Thomas all of whom killed their wives ain 175-76, 178-79, premeditated fashion. 130 N.J. at 613 A.2d 1059. The Court review, precedent-seeking included the three defendants in Marshall's not as class, comparison category, involving members of Marshall’s the I but as "cases highly-premeditated, cold-blooded murders of a defenseless wife” or as "first- 170, 175, spouses.” time murderers of See id. at 613 A.2d 1059. provided The fact are derived summaries from AOC Narratives Report. CCH disease, have had except that he claimed to history of mental the murder. Lanzel months before tendencies the suicidal thirty-year fifty-year terms with consecutive sentenced to two parole disqualifiers. times, cut her throat multiple his wife stabbed

Darrell Collins ear, history of son. He had no and suffocated his infant ear to abuse, the having committed drug and denied mental illness or murdered sentencing judge recognized that Collins The murders. their life insurance collect the benefits of his wife and child to $105,000. jury guilty found Collins policies, aggregate an of Williams, non-capital murder of both victims. As of the c(4)(d) gain. pecuniary factor for aggravating jury did not find found, case factors were Collins’s aggravating no other Because was sentenced to one life proceed penalty trial. Collins did not count, disqualifier on one and a thirty-year parole term with a thirty-year term on the second. consecutive troubling. is case to these cases Comparison of defendant’s Williams, Collins, all killed loved ones relatives and Lanzel .or policy premeditated All an insurance or inheritance. profit off clinical mental illness. presented None evidence of their murders. short, person. In killed more than one And Lanzel and Collins Chew, Williams, Collins, culpable than and Lanzel were each more Payne, to death. yet, like were not sentenced Celestine Norman, addition, Kevin Smith and In the crimes Carl robbery category, murder are Cooper, all classified William and Kevin ignored. to be Carl Norman too similar to Chew’s learning that had inherited upon a friend he decided to rob Smith $40,000. later, they invited the victim to One week approximately watching game. pretext football Norman’s home under kill they going were informed Smith that Norman then arrived, Norman hours after the victim victim as well. Two attacked, He beating victim with a wooden statue. the head cord and strangled the victim with an electrical and Smith then him plastic bag. They suffocated with a took from the $227 body. prior burglary, grand victim’s Norman had convictions for theft, robbery aggravated and multiple prior assault. Smith had arrest, assault, resisting drug possession convictions for and bur- glary. problems. had mental pled guilty Neither health Norman felony thirty-one years to murder and was in prison sentenced to thirty year parole disqualifier. with a pled guilty aggra- Smith manslaughter robbery, vated and for which he was sentenced to thirty years years, consecutive of respectively. terms and ten worker, coworker, Cooper, a William construction murdered a by beating him sledgehammer by attempting first with a and then decapitate the victim with a circular saw and electric drill. apparent Defendant’s intent was to rob the victim of a $360 paycheck. Cooper previously weapons had been convicted for drugs regularly, assault offenses. He used but claimed to be in good mental health. He was convicted of murder and was sen- in prison parole ineligibility thirty tenced to life with a minimum years.

These crimes were committed to obtain wealth that would some automatically robbery. not follow from a Norman and Smith $40,000 expected carry could not have that their victim would event, Cooper to a inheritance social would have had to tender any money. Accordingly, the victim’s cheek in order to receive robbery proceeds these murders are kin to murders for insurance Williams, Collins, such as Chew’s. As in the cases Lanzel and Payne, premeditated, the murders were and the defendants knew Further, their victims. present defendants did not evidence of illness; they clinical mental did not even claim to be otherwise mentally emotionally or disturbed. Norman, Cooper

The bottom line is that Smith and committed murders with the same “essential attribute” as Chew’s and are indeed, relatively culpable, yet as were sentenced to not death — pled guilty Norman and Smith to less-than-life terms. this Given Williams, Payne, Lanzel and recalling perspective, new sentence, life-sentenced, not which is Chew’s death were Collins by frequency analysis or aberrational clearly disproportionate review, precedent-seeking according manner of Court’s arbitrary appears nevertheless. theoretically proportionate and can be a death sentence

When of common sense simultaneously arbitrary, we have as a matter ought noticeably strayed the.purpose from of our endeavor. We. say purpose proportionality review. To to reconsider the then an infrastructure proportionate is evokes that a death sentence larger purpose, answer a this Court to serve a established Proportionality identify larger problem. larger question, and review, stated, similarly if to discern situated as we have seeks See death. generally receive sentences other than defendants II, supra, purpose Martini 139 N.J. at 651 A.2d 949. The being penalty that “the death is adminis inquiry this is to assure manner, rational, fairly non-arbitrary, even-handed tered in a II, supra, 130 N.J. at Marshall consistency.” reasonable and with naturally arbitrary that an It should follow 613 A.2d 1059. propor If our assessment of disproportionate. sentence is also conclusion, tionality one that conflicts with leads us to different issue, wrong. must be larger then assessment circumstances, by not be confined semantics or In such we must Although accepted delineated re rigor. administrative we have comparison, we need not strictions for the sake of statistical precedent. “[I]t limitations in our review of is impose the same comparison groups] in beyond that we look AOC’s [the crucial gain insight as much as precedent seeking review in order to III, Harvey supra, sentence.” See possible into defendant’s (Handler, J., dissenting). Disregarding N.J. at 731 A.2d classification, insight from those few we should derive the most defendant’s, maintaining a course strict most with cases that share in purpose rigid scope. less but case, In this the Court finds defendant’s death propor- sentence show, may sentence, tionate. The statistics so and Chew’s death compared plethora when to a of other designated by defendants majority, may not stick out as ought an error. We neverthe- less to be disturbed the fact that death sentences were not imposed upon those defendants whose crimes and circumstances closely most mirrored Chew’s. The fact that the defendants who committed the most similar culpable very and more crimes like circumstances received life sentences or less is sufficient evidence upon which to penalty conclude that the death arbitrarily has been imposed.

IV conclusion, In may death-eligibility we recall that Chew’s rested c(4)(d) improper application on the aggravating of the factor and only note that Chew is the defendant on death row who murdered for proceeds. insurance Far from heralding that it is somehow culpable less to kill for proceeds insurance than to hire someone to you else,10 I itdo or to do it for merely protest someone acts, the fine distinction recognized by between these so Legislature, 192-96, supra 1074-76, see discussion 731 A.2d at can be By broadening the difference between life and death. scope case, precedent-seeking might review this the Court sentence, recognize disproportionate, that Chew’s if not is arbi trary. may arbitrary Matters of life and death be in the well world; they natural should not be in a court of law.

Chew’s death sentence should be vacated. 10To make a humane, determination of whether it is more or impassioned, cold, to kill own hand or provoked sinister, more and removed to hire by your someone else to do it are the of moral conundrums that types place proportional- resentencing. review close to a ity precariously Justice PORITZ and Justices

For affirmance —Chief GARIBALDI, POLLOCK, O’HERN, and COLEMAN —6. STEIN HANDLER —1. For reversal—Justice

731 A.2d PLAINTIFF-RESPONDENT, JERSEY, v. STATE OF NEW HARVEY, DEFENDANT-APPELLANT. NATHANIEL Argued April 1999. 1998—Decided June

Case Details

Case Name: State v. Chew

Court Name: Supreme Court of New Jersey

Date Published: Jun 3, 1999

Citation: 731 A.2d 1070

Court Abbreviation: N.J.