State v. Cooper

731 A.2d 1000 JERSEY, PLAINTIFF-RESPONDENT, OF NEW STATE COOPER, DEFENDANT-APPELLANT. v. DAVID 3, Argued September 1999. 1998—Decided June Mehling Deputy D. Mordecai Garelick and Linda Assistant (Ivelisse Torres, Defenders, argued appellant Public the cause for Garelick, Defender, attorney; Mehling, Public Mr. Ms. Claudia Astore, Defenders, Wyk Deputy II and Van and Matthew Public Jones, Defender, counsel; Deputy of Michael B. Assistant Public briefs). Garelick, Mehling, Wyk, Mr. Ms. and Ms. on the Van Foddai, General, Attorney argued Deputy A Catherine (Peter Vemiero, respondent Attorney cause General New Jersey, attorney). by opinion of the Court was delivered

STEIN, J. by May Cooper convicted defendant David murder, by County jury purposeful knowing of the Monmouth conduct, L.G., six-year-old girl. The also his own charges kidnapping, counts of him of the related two convicted assault, capital murder. On the aggravated sexual conviction, the sentenced defendant to death. For murder convictions, defendant non-capital the trial court sentenced on twenty-five fifty years’ imprisonment with kidnapping count to years ineligibility, aggravated sexual assault parole and on the twenty-five years’ years of imprisonment with ten convictions consecutively parole ineligibility, sentences to served both be imposed purposeful knowing for or murder. The the sentence 64

felony-murder merged conviction was with the conviction purposeful knowing murder. capital

This Court affirmed defendant’s conviction for murder 326, 406-07, Cooper, his death sentence. State v. 151 N.J. 700 and (1997). A.2d 306 also affirmed his conviction and sentence on We kidnapping charge. We vacated defendant’s conviction and sentence for sexual assault and held that that convic 406, merge kidnapping tion must with the conviction. Id. at 700 A .2d306. requested proportionality review for his death sen

Defendant granted request tence. and See N.J.S.A 2C:11-3e. We now disproportionality find no in defendant’s death sentence.

I Cooper, supra, The detailed facts are described in at N.J. 341-47, repeat only here A.2d we those facts that are proportionality material to our review. 1993, L.G., July 18, victim, sisters, six-yéar-old

On her two mother, R.G., Asbury and her were at the Park home of R.G.’s sister-in-law, porch sat on the front M.W. R.G. of the house with youngest daughter supermarket. her while M.W. was The victim, sister, daughter played yard her and M.W.’s the front eventually yard. moved to the fenced-in back backyard, in the

While children were defendant lured L.G. children, away fence, from the other lifted her over the away with her. The other walked children informed R.G. that M.W., by defendant had taken L.G. who R.G. now had supermarket, returned from the searched for and called out to joined Neighbors proved L.G. in the search. Their efforts to be fruitless. Asbury Park Department Police was notified of L.G.’s

disappearance, police officers commenced a search for AL.G. after, abduction, police body few hours officers found L.G.’s porch Asbury under the of an abandoned home Park. Defendant her porch. L.G. was found on back living under that had been mattress; panties were at pulled up, her a her shirt was lying on her face. Her ankles, shorts covered pair and a boxer her vaginal exposed and bloodied. area police clothing found and bloodstained body the

Next to L.G.’s gym bag that they defendant’s Nearby, recovered paper towel. wallet, social inside the wallet was defendant’s contained his identifying were found defendant security card. Other documents area, bag bottle that contained paper as a and beer in the as well fingerprints. defendant’s latent day the next and took him apprehended defendant

Police his Mi- interrogation. Defendant waived police headquarters for death. initially any involvement L.G.’s randa rights but denied already incriminatory evidence being confronted with the After sought to order would be gathered and informed that court person, defendant acknowl- additional evidence from his obtain edged responsibility for L.G.’s death. stated, however, accidental and that L.G.’s death was

Defendant According to defen- strangled when he her. that he. was drunk house, dant, backyard lifted playing in the of M.W.’s he saw L.G. fence, porch of the her to the area under the her over the and led condom, forcibly engaged in sexual Using a he house. abandoned her, L.G., leaving body strangled with and then intercourse nearby the condom a porch. He discarded underneath acknowledging signed then a written statement field. Defendant neck, L.G., he his hands on her lying top on that while resulting in vaginally causing her to bleed and penetrated her stains on his clothes. blood The asphyxiation. died of autopsy

An demonstrated that L.G. strangled for concluded that she had been medical examiner injuries autopsy also revealed four and six minutes. between cervix, vagina, and anal canal. to L.G.’s facts, County a Monmouth Substantially on the basis of those assault, kidnapping, aggravated sexual defendant of convicted capital murder. ensuing penalty phase jury, At the before the same the State (1) aggravating relied on three factors: the murder was vile, horrible, outrageously wantonly or inhuman in that it (2) mind, 2C:11-3c(4)(c); depravity involved of N.J.S.A that the during aggravated murder the commission of an sexual occurred (3) kidnapping, 2C:11-3c(4)(g); assault or N.J.S.A. that the and purpose escape apprehension, of the murder was to detection or 2C:11-3c(4)(f). N.J.S.A. presented mitigating focusing

Defendant substantial evidence on tragic resulting his childhood and emotional disturbance. Pursu- factor, mitigating ant to the “catch-all” defendant submitted evi- eighteen mitigating relating primarily dence circumstances to upbringing development his flawed and its effect on his emotional and behavior. mitigating

Defendant’s evidence demonstrated that his sixteen- year-old heavily during mother drank pregnancy. Defendant ailments, respiratory was born with heart spent and and he fifty-four days following hospital. During his birth in the period parents allegedly only his visited him three times. Because conditions, congenital of infectious and other hospi- defendant was birthday talized on nine other occasions before his first and required surgery heart when he was two. Defendant’s father was drugs diagnosed addicted to alcohol and and schizophrenic. was He often abused defendant’s mother and once broke her arm in presence. old, years defendant’s When defendant was two his imprisoned raping father was two of defendant’s older cousins. mother, alcoholic, apparently incapable Defendant’s also an was providing defendant with normal maternal affection. She dis- maternity, referring claimed her to defendant as the child of his paternal grandmother. defendant, was violent She and abusive to dangling apartment on one occasion him out of an window. old, eight years When defendant was he told his social worker wanted, that he to removed from his be home. When he was nine years old, By age his mother died in an automobile accident. eleven, caregivers, defendant had lived with at least ten different many In of those parents. and foster

including various relatives violence and substance exposed to placements defendant was abuse. sickly that his on defendant’s behalf experts testified

Several violence, childhood, and ne- exposure his to abuse unstable and mother any relationship with his glect, the lack of affectionate effect, his limited ability to understand cause had reduced hostile, others, him and rendered capacity empathize addition, expert testimony violence. aggressive, prone as an relating emotional disturbance presented defendant’s childhood. oppressive to his flawed and adult had commit jury unanimously that defendant The determined 2C:11-3c(4)(f), detection, escape N.J.S.A. the murder ted assault committing sexual had done so the course rejected 2C:11-3c(4)(g). kidnapping, N.J.S.A. torture or an the murder had involved contention that State’s 2C:11-3c(4)(c). battery. aggravated N.J.S.A. proffered by defendant:

Concerning mitigating factors (1) jurors following mitigating factors: that defendant or all of the found Some (6 (2) jurors); nurturing been bom to an infant that he had denied as had been (3) (12 jurors); drinking drug that his mother by parents alcohol-dependent during pregnancy and developmental had contributed to defendant’s physical (2 (4) jurors); of the when his father had abused members family that disabilities (8 exposing and abusive behavior him to violent infant, was an thereby defendant (5) throughout jurors); his youth had abandoned him with relatives that his mother (3 (6) neglected jurors); him because of her own his mother had and abused that (7) (10 jurors); throughout upbringing that his child- on alcohol and dependence substance amounts of domestic violence and to excessive hood, he had been exposed (10 (8) through jurors); he had suffered multiple placements that abuse (9) (10 jurors); that he had been 11 different schools had attended periodically throughout of emotion- childhood identification treatment despite denied consistent (3 (10) background jurors); psychological had increased that his al and problems (8 engaging behavior significantly in abuse and antisocial his risk of substance (6 age (11) drugs an jurors); and alcohol at early had been allowed to abuse that he (12) begun acting during jurors); childhood because of out his that he had (13) (6 during jurors); his that disturbances unresolved and untreated emotional (14) (6 jurors); father to an unstable he had been childhood, periodically exposed (5 throughout nurturing his childhood a stable home that he had been deprived (15) jurors); and necessary had not been with recommended that he provided 68 (4 (16) jurors); and that the sudden death of his mother had left him with therapy (6 grief through jurors).

unresolved issues that not were addressed therapy 306.] at 346, 151 N.J. 700 A.2d

[Cooper, supra, following mitigating unanimously rejected The two factors were (1) by jury: exposure had defendant been denied (2) childhood; proper during “any role models other reasons not mentioned” factor. jury unanimously aggravating found that the two factors

together outweighed mitigating beyond factors a reasonable Accordingly, doubt. defendant was sentenced death. above,

As noted this Court affirmed defendant’s conviction for sentence, capital murder and his death also affirmed his kidnapping conviction and sentence. vacated his We conviction assault; ordering sexual that that conviction must merge kidnapping Cooper, supra, with the conviction. 151 N.J. at 406, 700 A.2d 306. This Court also ordered the Administrative (AOC) Office of the update Courts its database to facilitate case, proportionality in Harvey, review this as well as in State v. 3, 1997, and State v. Chew. On December the AOC issued its (CCH report Report) revised statistical from a formed database death-eligible that included all through July defendants sentenced 31,1997.

II Proportionality Review opinion Loftin, 253, 266-77, In our recent State v. 157 N.J. (1999) II), (Loftin briefly history A.2d we summarized the proportionality review in the United States as well as New II, Jersey. As noted in we our trace overview of the Loftin objectives proportionality fundamental of review back to this Ramseur, 123, Court’s seminal in decision State v. 106 N.J. 524 (1987): A .2d188 among review has a function the review Proportionality entirely unique proceed-

ings proceeding. in a in the context of a capital review, Proportionality capital sentencing aggravating is not review to that scheme, ensure factors appellate

69 outweigh mitigating c. or to factors, 1985, 178, a reasonable doubt all the L. beyond to the in violation of the if death sentence is crime determine disproportionate against in is unusual That death not ban cruel and punishment. disproportionate being nature of of cruel and unusual is by the sense punishment presumed of is “of a sort---- It the review. review here different Rather, the-purpose in a is instead whether the nonetheless unacceptable purports inquire penalty others to the on case because disproportionate punishment imposed particular of crime.” convicted the same (quoting Harris, 871, v. 465 U.S. S.Ct. [ Id. 326, 37, 43, 104 at 524A.2d 188 Pulley (1984)).] 79 L.Ed. 875, 29, 2d at purpose is to

Accordingly, proportionality of review “is dis specific defendant’s death sentence determine whether cases, considering penalty imposed in similar proportionate to the 2C:11-3(e). N.J.S.A. In both the crime and defendant.” conducting principal inquiry our is whether proportionality review Marshall, 109, v. 130 N.J. criminal,” State punishment “the fits the (Marshall II), denied, (1992) cert. 507 U.S. 129, 613 A.2d 1059 1306, 122 (1993), S.Ct. L. Ed.2d 929, 113 objective is to and our rational, penalty being that administered in a “ensure the death is manner, fairly, non-arbitrary, reason and evenhanded and with 131, Id. consistency.” 1059. able 613 A.2d objective of to ensure proportionality A review is collateral capital causes are free prosecutorial that decisions race, gender, on socio-economic status from discrimination based Ramseur, supra, impermissible factors. In we observed: or other against further acts check the random and arbitrary review “as a Proportionality jury. “[G]iven aberrant the emotions by the death an imposition penalty” juries, judges, generated it trial crimes, well be by may appellate capital considering consider be] of death affected by courts sentences [may impermissible the basis or other characteristic race, sex, ations.” Discrimination on suspect through tolerated____ review therefore is a means cannot be Proportionality any which to monitor the death sentences thereby prevent imposition imposing the death discrimination penalty. impermissible (citations omitted).] [ 106 N.J. at 524A.2d 188 review, we have relied substantial- conducting proportionality In Master, Special David C. ly Report on the Final of our first Penalty Proportionality Project, Final Baldus, Review Death 1991) (Final Jersey Supreme (Sept. 24, Report to Court the New II, analytical Report). supra, explained the Marshall we 70

process underlying cases, pool our selection of a out of the homicides, death-eligible entire universe of to be as a used basis of comparison specific with a death-sentenced defendant’s in case determining whether that defendant’s death dispropor sentence is 141-45, tionate. 130 N.J. at generally 613 A.2d 1059. We have analytical adhered to the framework set forth in Marshall II and subsequent See, proportionality e.g., review decisions. State v. 334, 343-65, (1994) Bey, IV), 137 (Bey N.J. 645 A.2d 685 cert. denied, 1164, 1131, 513 (1995); U.S. 115 S.Ct. 130 L.Ed.2d 1093 Martini, 3, 20-51, (1994) (Martini State v. 139 N.J. 651 A.2d 949 II), denied, 875, 203, cert. 516 U.S. 116 S.Ct. 133 L.Ed.2d 137 (1995); DiFrisco, 148, (1995) State v. 142 N.J. 662 A.2d 442 (DiFrisco III), denied, 1129, 949, cert. 516 U.S. 116 S.Ct. 133 (1996). L.Ed.2d 873

Our basic methodology conducting proportionality re encompasses view first, two approaches: distinct we use a fre quency analysis that includes both mathematical and statistical compare calculations to defendant’s case to other cases with patterns similar fact culpability similar levels of in order to ascertain the rate sentencing of death cases; in those similar second, engage we in precedent-seeking review which we com pare all relevant factually factors in similar cases to determine whether defendant’s death appears sentence disproportion to be comparison ate in imposed the sentences on other defendants comparable who committed prior proportionali homicides. our ty review decisions we appropriate have found it place greater reliance on precedent-seeking frequency review than on analysis, noting process that the precedent-seeking is review one familiar judges to us as and is not vulnerable to the concerns about reliability that frequency analysis. II, burden supra, 157 Loftin 277, 129; III, N.J. at 724 A.2d supra, 184, DiFrisco 142 N.J. at 442; II, A.2d supra, Martini 139 N.J. at 651 A.2d 949.

In its current frequency analysis formulation is a meth odology simple that uses mathematical and complex statistical principles to frequency determine the with which defendants who subject by the to that committed offenses similar

committed defendant, comparable level of blameworthiness possess a or who Frequency analysis defendant, are sentenced to death. to that test and the approaches, the salient-factors two different combines II, supra, frequency test. Prior index-of-outeomes Lofbin numerical-preponderanee-of-aggrava- analysis also included the test,' death-sen- compared a which ting-and-mitigating-factors having death-eligible prosecutions case to other tenced defendant’s mitigating factors. aggravating the same number Lofbin II, contributed to the that that test “has not the Court concluded flaws, and, inherent light in of its proportionality reviews Court’s 295, at 724 in the future.” 157 N.J. expected to do so cannot be numerieal-pre- Accordingly, the Court abandoned A.2d 129. test. Ibid. ponderance-of-aggravating-and-mitigating-factors in database which test uses the AOC’s The salient-factors is into various death-eligible cases subdivided the universe of descending order of subcategories, ranked in categories and blameworthiness, statutory aggravating derived from the 1 assigns defen each Report at 81-82. The AOC factors. Final major categories. Each of these to one of the thirteen dant or subcategories aggravate that includes two to seven categories 1 categories basic are: The thirteen victims; (A) Multiple above; (B) without A Prior Murder Conviction above; (C) Assault without A-B Sexual above; (D) A-C Victim a Public Servant without above; (E) Robbery without A-D above; (F) A-E Arson without above; (G) Burglary [sic] without A-E above; (H) Kidnapping without A-G above; (I) Pecuniary A-H Motive without above; (J) Torture/aggravated without A-I assault above; (K) Depravity without A-J of Mind statutory aggravating (L) primary circumstance of death as Grave risk above; A-K without Detection, etc., (M) A-L above. Escape as sole factor without 2, III, supra, 442.] 662 A.2d at 166-67 n. [DiFrisco 142 N.J. 72

mitigate pri- the blameworthiness of defendants included in the mary category. test,

In applying compare the salient-factors we defen dant’s death imposed factually sentence to the sentences similar primary category cases within the same in order to ascertain the frequency generally with which death imposed sentences are such A regularly eases. demonstration that the death sentence is frequently imposed suggests may that there exist a societal penalty consensus that the appropriate punishment death is an category Although of homicides. we consider the salient- tests, persuasive factors test to be the most frequency of the III, supra, II, DiFrisco 173, 442; N.J. Martini 142 at 662 A.2d IV, supra, Bey 139 N.J. at 33, 949; supra, N.J. A.2d 685, 645 A.2d sample we are aware that the small sizes of the comparison groups, consequence Special of the Master’s decision relatively large to create a comparison number of groups, limits II, significance the value and of the salient-factors test. Loftin supra, III, 293, 157 N.J. at 129; supra, DiFrisco 724 A .2d 142 II, 174, 442; supra, N.J. at Martini 139 N.J. at 37-38, 662 A.2d 651A.2d 949. attempts index-of-outcomes test to compare the

death-sentenced involving defendant’s case to other cases defen comparable qualities blameworthiness, dants with of taking into statutory account both non-statutory factors. The blamewor thiness of defendants compared “statistically- is on the basis of relevant culpability measures of found in the circumstances of cases, their such as the pain suffering, infliction of severe or existence of a contemporaneous sexual robbery, assault or or the II, supra, Martini 42, commission of murder.” at N.J. 139 651 prepares A.2d 949. The grouping AOC tables in cases five of culpability levels on statistically-predicted probabilities based of a return of a death sentence. We then probabili derive the actual level, ties of death culpability sentences for cases in each apply that statistical data to proportionality assess the of the subject However, defendant’s death sentence! the Court has

73 recognized sample that “the small size of cases with similar levels great blameworthiness and the ranges in the confidence inter preclude! vals giving weight ] us from DiFris findings.” to these III, supra, co N.J. at 182, 142 Moreover, 662 A.2d 442. the AOC’s memorandum to the Court accompanying Report the CCH cau tions us culpability that “the estimate which purports give ‘predicted probability of soft, a death sentence’ is often still too and little substantive given reliance should be to this in statistic Chew, Cooper, Harvey II, cases.” As noted in Loftin supra, “we are uncertain whether sample we will soon reach a size capable supporting reliable in these models.” 157 N.J. results 296, at 724 A.2d 129.

A. The Universe Cases In order to proportionality conduct review we must establish the universe of cases to which compared. defendant’s case will be 1992, Legislature amended N.J.S.A 2C:11-3e to restrict comparative group only imposed those cases which a had 1992, sentence. L. 5, a death § c. previous 1. In proportionality review cases which appeals defendants’ from death sentences pending prior Legislature’s enactment, were to the we declined to III, Harvey amendment. See State v. apply 277, 291, 159 N.J. III, 1121; supra, DiFrisco 162-63, 731 A.2d 142 N.J. at 662 A.2d II, 442; supra, IV, Martini 23, 139 N.J. at 949; Bey 651 A.2d supra, II, 343-44, 137 N.J. at 685; supra, Marshall A.2d N.J. Instead, 613 A.2d 1059. applied pre-1992 we proportionality of N.J.S.A provision 2C:ll-3e, review pursuant.to which we appropriate held that the universe included all cases in penalty which a sought death had imposed been and also “clearly eligible death prosecutor homicides in which the elected II, not to seek supra, Marshall penalty.” the death 130 N.J. at 137, 613 A.2d 1059.

' II, supra, However, in we were confronted with a Loftin who, case, defendant inas this capital convicted of murder after the effective date of the 1992 amendment. We addressed in 74 II conflict the 1992 amendment potential the between

Loftin duty appro constitutionally prescribed to define the this Court’s capital explained in We scope appellate causes. priate of review scope appel the of appropriate determination of although the unqualified is “an and exclusive penalty in death cases late review II, 284, judiciary,” supra, N.J. at 724 of 157 function the Loftin 129, exclusivity power necessarily not of the Court’s need A.2d the Legislature. views of the Id. at preclude an accommodation of the 284-87, be 129. that the critical issue to 724 A.2d We observed on size of Legislature’s whether limitation the determined was proportionality prevent review effective the universe for would in of cases. Because we decided appellate penalty review death concerning proportionality II various review to refer issues Loftin Judge findings Baime make fact and recommendations David 14,1999, concerning by May any deferred decision to the Court we application of the 1992 amendment until the Court received interim, has Judge report. the Court decided to Baime’s death-eligible the full of in its continue to use universe cases 287, Id. 724 129.2 proportionality conduct of review. A.2d in also to adhere to our determinations We continue proportionality review cases that death-sentenced cases earlier appeal procedural, burden-of-proof, on of or reversed because Gerald-type category errors should be included of death- (A cases. error is one in which a death sentence sentenced Gerald that, capital impre followed a murder because an conviction jury charge, finding cise could been based on a that the have injury purposely knowingly bodily or serious defendant caused death, finding purpose of a that defendant that resulted instead Gerald, ly knowingly caused or death. See State v. N.J. report. Judge received Baime's David S. The Court has See Honorable Baime, Report Jersey Supreme Proportionality Project to the New Court: Review 28, 1999) Report). (April {Special Report The Court has scheduled Master argument Special Report subsequently render a oral on Master will concerning decision whether to what extent the in the recommendations Special Report, Report implemented. will on its review the be Based Master opinion. is that its do not deferral of the Court satisfied contents warrant this

75 (1988)). 90, explained A.2d 792 that 549 We such errors “affect trial, crime, procedural the of the fairness not the substance of the necessarily jury’s ‘do not .bear on of [and] the determination ” II, supra, deathworthiness.’ Martini 26, N.J. at 139 A.2d 651 IV, 685). supra, 347, (quoting Bey 137 N.J. at 949 645 A.2d For the in our reasons detailed earlier cases we to include continue those reversed death-sentenced cases as death-sentenced cases III, Harvey supra, purposes proportionality of review. See 159 III, supra, 291-92, 1121; N.J. at DiFrisco N.J. at 731 A.2d 142 II, 164-65, 442; supra, Martini 25-27, 662 139 N.J. at A.2d 651 IV, Bey 949; supra, 345-47, 685; 137 N.J. at A .2d 645 A.2d II, supra, 10, Marshall 130 N.J. at 194 n. 613A.2d 1059. review, purposes frequency For present of we sets of two sentencing, calculations the rate of death one calculation includ defendant, ing excluding the and the other him. “Using two sets data, it, one including defendant’s one excluding case and will give picture alerting us broadest of societal standards while us III, produced including bias DiFrisco by to the case.” defendant’s supra, II, 165, supra, N.J. at 142 662 Martini (quoting A.2d 442 949). 28, 139 N.J. at 651A.2d cases, however, twenty-three

The universe of excludes the death-eligible cases that were not proceeded but nevertheless to a II, supra, Marshall penalty-phase hearing. 130 N.J. 1059; Report, 2,3. CCH A .2d tbls. Adjustments Comparison Group

B. grouped death-eligible The AOC has com- defendants that prise proportionality-review categories our into database various subcategories, on the basis of aggravating factors found by jury in penalty phase, those cases tried to a or basis on the aggravating alleged apparently present factors in cases Report, See CCH penalty phase. not tried to a The basic tbl.7. categories subcategories Special from are derived the first Report Final report by adopted Master’s Court. at 80-84. acknowledged generally we will “defer previously have We unique assignment of expertise, particularly to its the AOC’s III, DiFrisco category.” only comparison one defendants 167, supra, 142 N.J. 662A.2d 442. at C-l, assigned subcategory to has defendant AOC conjunction in sexual comprises murders committed which terror, but ex by particular violence assaults characterized multiple involving or those by prior homicides murderers cludes defendants, relatively forty subeategory That includes victims. of purposes that for large comparison'group. Defendant contends evaluation, purposes precedent- as for of well as the salient-factors (entitled review, subcategory in the C-2 seeking the defendants statutory aggravating circum with one more additional “other stances”) indistinguishable from in the C-l virtually are those category. that nine are in the C-2 We note defendants included in subcategory, included an additional three defendants are (entitled “other”), last of subcategory the the subelassifi the C-3 composite category in the “C” of sexual assaults without cations previously murder We have multiple victims or convictions. assigned test the performed using the salient-factors both subcate III, supra, see DiFrisco composite category, well as gory as the IV, supra, 137 353-58, 174, 442; Bey 142 N.J. at N.J. at 662 A.2d 685, Concerning appeal. A .2d will do in this and we so comparison the cases for pool defendant’s contention that precedent-seeking expanded, review also should be we purposes question precedent- in address that the course of our discussion of 92-94, seeking review. 731 A.2d at 1021-22. Infra in objects to the of four The State inclusion defendants subcategory assigned: Koedatich to which defendant is James IB, Henry IB. Hampton, James Zola and Kevin Jackson James Hampton agree with the State’s contention that Koedatich and We Although prosecution should be its Koedatich excluded. alleged aggravating as factors kidnapping murder and the State in the course of a sexual that defendant murdered victim assault, assault, escape as well detection for sexual as found .neither of aggravating those Accordingly, factors. that case should assigned not have been to the sexual assault-murder cate- gory. Similarly, Henry Hampton defendant James murdered his victim apprehended after she attempt him in an burglarize barn, horse but allege the State did not sexually that he assaulted the victim. His case also should be excluded from the sexual- category. assault murder

Concerning Jackson, defendant Kevin after this Court reversed his murder conviction and death sentence he was retried and theft, convicted of assault, sexual al- c(4)(e) though (torture alleged only the State and depravity) aggravating factor. We are satisfied that strong evidence that attempted defendant sexually assault his victim warrants inclu- sion of his case category. sexual-assault murder Similarly, in the James Zola case there was conflicting evidence on whether sexually victim, defendant assaulted the but this Court affirmed Zola’s capital conviction for murder and sexual assault. We will not disturb assignment the AOC’s of Zola to the sexual- category. assault murder

C. Salietiir-Factors Test noted, As the salient-factors attempts test to measure the proportionality of a defendant’s by determining death sentence the frequency factually with which similar eases culminate in a death generally sentence. regarded We have the salient-factors test as persuasive the most frequency-analysis the tests because the compared factually cases are analogous to the case of the defen- III, Harvey dant seeking supra, 159 N.J. at 301, review. 731A.2d III, supra, 1121; DiFrisco 173, 142 N.J. at 442; Martini 662 A.2d II, supra, IV, 33, 139 N.J. at 949; Bey supra, 137 N.J. at A.2d II, 353, 685; supra, Marshall 645 A.2d 130 N.J. at 613 A.2d 1059. Cooper C-l,

Defendant assigned has been to subcategory desig- (but particular nated “sexual assault with exclud- violenee/terror” multiple previ- who ing victims or were defendants who murdered murder). thirty- Report, 7. the ously CCH tbl. Of convicted proceeded eight eligible subcategory, in that nineteen death cases defendants, including Cooper, eight were penalty phase the defendant, Accordingly, including the death- to death. sentenced we for all murders that include sentencing rate sexual-assault twenty-one percent, for those subcategory is advanc- the C-l percent. phase forty-two rate is Those ing penalty to a death-sentencing may compared be overall percentages universe, death-eligible in the percent for all cases rate of twelve thirty-one percent for all death- death-sentencing rate .of Repeating eligible penalty phase. to the cases that advance including comparisons same defendant’s case the C-l without significantly sentencing category not affect the death rates. does following The the result of the salient-factors table summarizes category: applied test as to the C-l composite category “C” Applying the salient-factors test (nine subcatego- results in addition of twelve cases cases from C-3). ry subcategory resulting C-2 and three cases from thirty-eight death-sentencing penalty-trial percent rate is cases death-sentencing death-eligible eigh- for all cases and the rate is being percent, percentages slightly teen both lower than the analogous category. death-sentencing rates the C-l The depicts result of test as following table the salient-factors category death-penalty “C” applied to cases:

79 foregoing The charts summarizing application of the salient-factors test to sexually defendants who assault and murder their victims demonstrate that such defendants often are sen death, tenced to and that their rate death-sentencing signifi cantly death-sentencing exceeds the rate for all death-eligible homicides, significantly and also exceeds the death-sentencing rate for all homicides that penalty Moreover, advance to a trial. we note that the result of the applied salient-factors test as comparable defendant is to the results obtained from that in test proportionality other review cases which we dispropor found no III, supra,. See DiFrisco tionality. 172-74, N.J. at 662 A .2d II, 442; supra, Martini 33-38, 139 N.J. at 651 A.2d 949. We are unable to application conclude that of the salient-factors test to Cooper defendant demonstrates that his death dispro sentence is portionate. Test

D. Index-of-Outcomes approach index-of-outcomes attempts identify “to those characteristics that degree establish the of a defendant’s blameworthiness,” considering statutory both non-statutory II, supra, factors. Martini 41, 139 N.J. at 651 A.2d 949. applying this identify test we seek “to the characteristics common to the degree cases terms of their of blameworthiness as II, perceived by prosecutors juries.” supra, Marshall N.J. test, 613 A.2d 1059. To application facilitate of this 80 statistieally-relevant according to mea “organizes

the cases AOC physical pain such infliction of severe or culpability, sures of as the victim, contemporaneous sexual assault suffering on the a mental IV, Bey prior a murder.” robbery, and the commission of 362, supra, to the salient- 137 N.J. at 645 A.2d 685. contrast test, compare test cases that factors “in the index-of-outcomes we comparable from factually are dissimilar but that are nevertheless II, blameworthiness.” Martini perspective of the defendants’ Moreover, supra, 139 N.J. at 651 949. unlike the salient- A.2d simply compares factors test which the AOC calculates ratios, uses a multi death-sentencing index-of-outcomes test II, in Martini analysis, explained we ple-regression process a 31-32, supra, 139 N.J. at A.2d 949: regression A We for a brief of some technical terms. here explanation pause decision-making algebraic a an process by uses model analysis represent showing of an variable on variable. Here, the influence a dependent independent sentencing decision-making is the determination. The process represented change, designated, variable, which, once does not a factor represents independent a is such murder or sexual assault that believed to as contemporaneous decision-making. of the variable is the result influenced influence dependent here variable, or absence of an by represents presence independent regression A decision whether to sentence multiple analysis capitally. simply algebraic than one variable in the model. includes more independent regression results are of uncertain reliabili- Because the models produced by generate we of death that those models use the sentences ty, predicted probability guidance. not accord them final or We do only comparison purposes weight. determinative multiple-regression analysis, the On the basis of its AOC has culpability prepared group that defendants five tables levels of the of a predicted probability imposition based on the death culpability ranging Each defendant receives a score sentence. .99, high from a low of .00 to based on score the assigned culpability are one of the five levels. Each defendants range of scores. represents culpability level one-fifth of the De- culpability range scores that between .00000 and fendants one, comprise .19999 level those with between scores .20000 two, .39999 level forth. form and so Four multiple regressions encompass the index-of-out III, supra, See DiFrisco comes test. 142 N.J. 179-82, 662 A.2d 442. regression The first considers both statutory and non- statutory factors in Id. at penalty-trial 179-80, the universe. 662 A.2d 442. appraises The second the same factors but uses the full Id. at 180-81, universe. 662 Statutory A.2d 442. aggravating and mitigating only factors are the variables in regressions. the other Id. at 181-82, 662 A.2d 442. Like the regressions, first two the third regressions and fourth employ penalty-trial the universe and universe, the full Ibid. respectively.

Preliminarily, we take note of several in deficiencies the index- of-outcomes test. Perhaps the most deficiency troublesome is the inconsistency of the regressions. results of the four Defendant Cooper’s culpability range percent scores from a predicted ten probability of a death in sentence the death-eligible universe considering statutory both non-statutory forty- factors to a percent predicted three probability of a death sentence in the penalty-trial considering only universe statutory pre factors. We viously have taken note of the inconsistent results of the four regressions in proportionality-reviéw other decisions. See DiFris III, supra, co 182, II, N.J. at 442; supra, Martini 662 A.2d 139 N.J. at 651 A.2d 949. addition, large the confidence applicable intervals to defen culpability

dant’s substantially scores qualify accuracy the of the predicted probability that defendant would be sentenced to death. Accordingly, culpability those may scores accurately not reflect the likelihood that defendant would a death sentence. As receive III, explained in supra, DiFrisco we 142 N.J. 179-80, 662 A.2d 442: range,

The or more probability the confidence appropriately, interval, is delineated and lower limits and is by upper established aby confidence ninety-five percent interval. That means we are certain that all ninety-five percent defendants with receiving [defendant] characteristics similar to will have a of a predicted probability range]; [within death sentence the the smaller the probability confidence interval, the more reliable the predicted probability. Thus, statutory non- regression in the considers first that universe, reliability statutory penalty-trial the of factors for predicted thirty-five percent probability of a death defendant’s by range of large sentence is undermined confidence interval seventy-five percent. range of percent nine the confidence regressions significantly is smaller. intervals the other A flaw test is in the index-of-outcomes more fundamental not into account the that the that the AOC’s models do take fact six-year-old girl. homicide None of victim defendant’s victim, statutory age aggravating factors on the of a focus non-statutory in the AOC’s do not factors included models on the basis of the victim’s evaluate defendant’s blameworthiness age. Accordingly, the value of the index-of-outcomes test assessing proportionality defendant’s death sentence is by recognition undoubtedly limited the test underesti probability a death predicted mates defendant’s sentence. reported The index-of-outcomes test are on two results reports Cooper, charts. The first chart the results for defendant Chew, Loftin, DiFrisco, Martini, Harvey, Bey, defendants Report Marshall the CCH database. The results for all four under regressions reported regres- for each For are defendant. each sion, score, interval, culpability the table shows the the confidence level, death-sentencing culpability and the rate that corre- sponds culpability to the level. respect:

The chart differs from first chart it second one Instead, every does not use the same database defendant. for chart, reported the second the data data each defendant is proportionality at each this Court had used defendant’s review. example, For the data used for Martini is derived from the Report. Martini test as follows: index-of-outcome results are

85 regression In the statutory that considers both and non-statuto- ry universe, penalty-trial factors for cases in the defendant’s predicted probability receiving thirty-five death sentence is percent. Report, CCH tbl. 22. The confidence interval extends percent seventy-five words, from nine percent. Ibid. other ninety-five percent we are certain that a defendant with character- actual, istics identical to defendant’s would have an rather than predicted, probability receiving a death sentence' of between percent seventy-five nine percent. culpability Defendant’s thirty-five percent places score of culpability him in level two. Ibid. Defendants in culpability level have received a death (%s) twenty-six percent sentence of the Report, time. CCH tbl. 21. Although most defendants whose cases were not found to be disproportionate higher have had regression scores on this than defendant, III, 180, supra, see DiFrisco 142 N.J. at 662 A.2d 442 (reporting seventy-four percent predicted probability of death sentence); II, supra, 43, Martini 139 at N.J. 651 A.2d 949 (reporting eighty-eight percent IV, predicted probability); Bey 362-63, supra, 137 at N.J. 645 A.2d (reporting eighty-one 685 percent predicted probability in Report Martini seventy-six percent predicted II, probability Bey Report); in supra, Marshall 173, 130 (reporting N.J. at 613 A.2d 1059 fifty percent predicted probability), Loftin’s, culpability defendant’s score exceeds see II, 331, supra, 157 (reporting N.J. at 724 A.2d 129 fourteen Loftin percent predicted probability in Report twenty-one Loftin percent predicted probability Report), equals CCH Har score, III, vey’s Harvey supra, see 159 N.J. at 731 A.2d (reporting thirty-five percent predicted probability). universe,

When the same variables are full considered culpability percent, defendant’s score falls to ‘ten and the confi- thirty percent. ranges percent from three CCH interval dence occupies Accordingly, culpability case Report, tbl. 14. defendant’s (x&4) one, percent have only five defendants level which Report, CCH tbl. 13. That result to death. been sentenced percent which a low of death. The five rate at probability reveals culpability in death is those defendant’s level receive sentences death-sentencing rate. less than half the overall However, disproportionate has Martini’s this Court found not culpability regres in although his score the same death sentence II, supra, sion was than defendant’s. Martini 139 N.J. lower See 43, predicted (reporting percent probability). at 651 949 five A.2d Moreover, upheld the death sentences of two other this Court culpability very that were defendants who had scores similar III, 305, Harvey supra, N.J. at A.2d defendant’s. 159 731 See percent probability (reporting predicted 1121 thirteen of death III, 180-81, sentence); supra, at 442 DiFrisco 142 N.J. 662 A.2d predicted compo That (reporting percent probability). one eleven may suggests of a that be frequency-analysis nent test there death disproportionality does not that a sentence is establish III, 182-83, disproportionate. supra, 142 N.J. at 662 DiFrisco (“Though predicted probability A 442 defendant’s of death .2d scenarios, they some not sentence was low under do case.”). any disproportionality [his] evidence aberration Hence, regression test does second index-of-outcomes disproportionate. establish is not that defendant’s death sentence Nonetheless, predicted requires this Court to scruti the low value precedent-seeking carefully nize defendant’s sentence in our re view. only regression

The third of the test uses index-of-outcomes Moreover, statutory that aggravating mitigating factors. regression penalty-trial run from the universe. is with data regression, probability predicted of defendant’s death forty-three percent. Report, is tbl. 24. Defen sentence CCH ranges twenty-three sixty-five dant’s confidence interval from percent. regression, culpability In this falls into Ibid. defendant three, capital given level at which defendants are sentence at rate) (x%9) forty-five percent Report, tbls. 23-24. Defen- CCH

87 forty-three percent culpability dant’s score does not dispro show portionality. already This Court has upheld the death sentences III, of two defendants with the same Harvey supra, score. See 307, 159 N.J. at (reporting 731 A.2d 1121 forty-three percent predicted sentence); probability III, of death supra, DiFrisco 142 181, (same). N.J. at 442 A.2d The Court found Martini’s disproportionate sentence not despite percent culpabili his fifteen II, ty supra, 44, score. Martini 139 N.J. at 651 A.2d 949. regression aWhen is run -with data from death-eligible universe and the same prior regression, variables as defen predicted probability dant’s of death is percent. nineteen CCH Report, tbl. 25. ranges The confidence eight percent interval from thirty-eight percent. Ibid. in culpability Defendant is level one. C^is) Ibid. Defendants are percent sentenced to death five of the culpability time this Report, level. CCH tbl. 23. Defendant’s culpability regression score for Harvey’s, this mirrors see Harvey III, supra, (reporting N.J. at 731 A.2d 1121 nineteen percent predicted probability sentence), of death and exceeds Martini’s, II, 44, supra, see Martini 139 N.J. at 651 A.2d 949 (reporting eight percent predicted Moreover, probability). defen dant, culpability because his percent, narrowly score is nineteen 2, (1%s) culpability evades twenty-six level at which percent of defendants Report, are sentenced to die. CCH tbl. 23. Conse quently, despite score, culpability defendant’s low regression this support does not finding that defendant’s death sentence is disproportionate. indicated,

As our discussion of the results of the four regressions reflects our conclusion that the index-of-outcomes test does not demonstrate that defendant’s dispro death sentence is portionate. Although relatively defendant’s culpability low scores in regressions troublesome, two of the are the wide in variations scores, culpability large intervals, defendant’s confidence inability AOC models’ age take into account the of Cooper’s significantly victim diminish the value of the index-of-outeomes applied test results as to defendant.

88 enduring frequency-review that

We conclude two test and the index-of-outcomes test —do tests —the salient-factors disproportion is defendant’s death sentence not demonstrate that However, relatively culpability low scores the defendant’s ate. test, and test’s regressions the index-of-outcomes two of weight enhanced to the reliability, require give that we diminished II, precedent-seeking supra, 157 process of review. See Loftin 384, (questioning frequency 129 at 724 A.2d review N.J. review). reaffirming primacy precedent-seeking Ill Precedent-Seeking Review component proportional characterize second We approach, attempt as in which we ity precedent-seeking review the by is sentence excessive to determine whether defendant’s death life-sen comparing case similar cases other defendant’s III, supra, DiFrisco tenced and death-sentenced defendants. 184, process 442. en precedent-seeking N.J. at 662 A .2d case-by-ease review in we gages the Court in a “traditional which cases, death-eligible considering the individ compare similar cases 442; IV, 366, 183, ually.” Bey supra, 137 at Id. at 662 A.2d N.J. necessarily expect Although 645 A.2d we not identical 685. would cases, substantially similar our imposed sentences to be even “singled seeks that the has not been review to ensure defendant II, supra, unfairly capital punishment.” Martini 139 N.J. out 47, cases, we proportionality-review at A.2d 949. consistently precedent-seek greater significance to have-accorded 28-29, 949; frequency ing review than to review. Id. at 651 A.2d TV, Bey supra, 685. 137 N.J. 645 A.2d Analysis Culpability A. of Defendant’s involv comparing

In defendant’s case to similar cases defendants, an ing death-eligible begin other we evaluation of (1) culpability, focusing defendant’s own on three elements: defen (2) blameworthiness; victimization; dant’s moral the extent

89 (3) II, supra, 336, 157 N.J. at defendant’s character. 724 Loftin III, 129; Harvey supra, 309, 159 N.J. at 1121; A.2d 731 A.2d II, supra, Marshall 155, N.J. at 130 perform- 613 A.2d 1059. In evaluation, ing objective we consider criteria that pre were 156, id. at penalty-phase jury, 1059, sented to the 613 A.2d “as statutory as all nonstatutory well aggravating mitigating factors that sentencing are ‘rooted guidelines, traditional were clearly presented to sentencing jury, likely and are to influ- ” II, jury’s supra, sentencing ence 157 N.J. at decision.’ Loftin 336, IV, (quoting Bey supra, 724 368, A.2d 129 N.J. 137 685). A .2d

1. Blameworthiness

In evaluating blameworthiness, defendant’s moral “we motive, examine such characteristics premeditation, justification as excuse, or disturbance, evidence of mental defect or knowledge of victim, helplessness level, of the age maturity defendant’s II, defendant’s planning involvement in the murder.” Loftin supra, at N.J. 724 A.2d 129. Those factors demonstrate defendant’s substantial moral blameworthiness. found that defendant escape murdered the victim to her, sexually

detection for assaulting relatively motive common for defendants whose conjunction homicides occur in with the felony. commission of a

Defendant’s significantly premeditated. murder was not At the earliest, may he have first decided to commit the homicide when latest, he observed the victim playing yard.' in M.W.’s At the he may have decided to murder the victim after the sexual assault. event, premeditation minimal, either involving no more than a matter of several minutes.

The record justification. reflects some evidence of excuse or Although defendant drank an unknown quantity of beer on the day homicide, of the its effect on defendant’s behavior is undeter- mined. allege Defendant did not intoxication as a mitigating factor penalty phase, at the nor did defense counsel contend at guilt penalty phase or that the of his alcohol

either the effect consumption mitigated excused the or crimes. penalty phase, presented and com

At the defendant extensive by devastating of a childhood sus pelling evidence characterized by parents caregivers. his neglect tained abuse and other jurors Findings mitigating by factors some in the of numerous deprivation penalty phase neglect verified that the childhood by in experienced psychological resulted emotional and defendant during his were unre problems childhood that untreated and 345-46, supra, Cooper, Howev solved. 151 N.J. 700A.2d 306. er, presented in penalty phase no evidence indicat defendant ing that he suffered from a mental disease or defect at the time of homicide, c(5)(a) (extreme rely nor on the did he emotional disturbance) c(5)(d) (diminished capacity) mitigating factors.

Among aggravating aspects the most of crimes was defendant’s knowledge Obviously of the six-year-old helplessness. his victim’s vulnerability, promised well aware of her defendant her ice cream n sexually to the he place to lure her where lived. He then her, strangled knowing incapable that assaulted and she was resisting attacks. his twenty-two years only

That defendant at the time of the was old homicide diminishes his some extent. Be- blameworthiness to age as rely mitigating cause defendant did not on his factor at penalty phase, finding. made no such solely responsible planning for The Defendant the crimes. that the crime scene contained of defen- fact substantial evidence identity and responsibility dant’s murder demonstrated engage planning prior did that defendant not substantial commission of sexual assault and homicide. sum, quite substantial. defendant’s moral blameworthiness is

Although premeditation, there was vulnerabil- limited the extreme proof ity of the victim the absence of of a mental disease or primary support finding high are moral defect factors blameworthiness. Degree

2. of Victimization extremely extent victimization defendant’s is case high. kidnapped, raped, Defendant strangled six-year-old torture, victim. The record indicates that there was neither aggravated battery nor mutilation of the victim. The incident was brief, relatively but there was evidence defendant choked the Although victim for four to six suffering minutes. was not prolonged, undoubtedly the victim obviously was terrified and physically emotionally suffered before her death.

3. Character of Defendant character, evaluating defendant’s prior we consider his record, previous violence, unrelated acts of cooperation with au thorities, remorse, IV, capacity Bey supra, for rehabilitation. 366, 137 N.J. at 645 A.2d 685. Defendant’s record consists conviction, drug of a distribution for which imprisoned, he was disorderly persons parole drug offense. He was on for the distribution offense at the time of engaged the homicide. He in no other unrelated acts of violence. initially Defendant denied re sponsibility ultimately for the crimes but raping confessed to victim, killing the although he contended that the homicide was police locating unintentional. He also assisted in officers evidence Although material to the crimes. police defendant told officers victim, sorry murdering that he was for express he did not during remorse over the homicide his trial. His rehabilitation whole, potential concerning is unknown. As a the available facts defendant’s character culpability. neither enhance nor diminish his culpability

We conclude that quite defendant’s is substantial. degree extreme, The of victimization was and his moral blamewor- very high. thiness is

B. Comparison Group Defendant’s beginning point comparative-culpability analy of the comparison group sis is the in used the salient-factor test. Marti II, 51, 949; IV, supra, ni at Bey supra, 139 N.J. 651A.2d 137 N.J. noted, in placed the AOC defendant A .2d685. As at accompa murders consisting of sexual-assault subcategory, C-l previously have dis by violence or terror. We particular nied from the C-l to exclude two cases our determination cussed 74-75, Excluding supra at 731 A.2d 1010-11. subeategory, case, thirty-seven are cases there those two cases defendant’s compared with defendant’s case. Of subcategory to be in the C-l cases, eighteen penalty trial. those involved comparative purposes of contends that

Defendant (entitled subcategory in “other culpability the nine cases the C-2 circumstances”) statutory aggravating with one or more additional subcategory. in the C-l virtually indistinguishable from those are concerning argument Defendant does not advance same “other”). (entitled Defen subcategory three cases the C-3 concerning to be included in his specific position the cases dant’s defendant’s brief to this comparison group is uncertain because only subcategory, specifically discusses six cases the C-l Court subcatego subcategory, no cases in the C-3 cases in the C-2 two In categories. performing the ry, and four cases from other appeal purposes of defendant’s we used the salient-factors test for in assigned subcategory and also used the cases cases in the C-l twelve additional sexual composite category that included the C precedent-seeking review homicides. To ensure that our assault results, see DiFrisco test complementary is to our salient-factor IV, III, 442; Bey supra, 137 N.J. 185, supra, 142 N.J. at 662 A.2d 366-67, composite in A.2d we will include the cases the comparative-culpability analysis. In category performing in the C the two cases completeness, of we also will consider interest categories. defendant relies on from other conducting Preliminarily, acknowledge process that the we subjective inherently is and does not precedent-seeking review any analysis prescribed on standards or lend itself to based standpoint comparing homicides from the of defen- factors. victimization, there obvi- or the extent of dant’s blameworthiness ously ample disagreement will be room for over which defendant culpable was more which homicide and was more violent and Similarly, disagreement concerning horrific. is inevitable our distinguish effort to defendants on the basis of their characters backgrounds. precedent-seeking The virtue of review is that examine, evaluate, impels compare it Court homicides by committed defendants whose crimes were similar to the homi- by cide committed the defendant whose death sentence is under review, sentences, whether, analyze resulting and determine context, unique that the defendant’s death sentence is aberration- fallibility process depends al. The is that it exclu- almost sively subjective imprecise, by on reactions the Court to the flaws, comparison Despite cases. its we remain that convinced process indispensable component is an proportionality review that, properly applied, identifying it can assist the Court in isolating disproportionate sentences of death. Penalty

C. C-l Cases That Proceeded to Trial comparison Appendix cases are described to this opinion. begin by comparing eighteen We defendant’s case with subcategory cases in the proceeded penalty C-l to a trial. Of eases, penalty those trials culminated in death sentences six 1A, Timmendequas, Joseph defendants: Kevin Jackson Jesse Harris, 1A, 1A, Bey James Williams James Zola and Marko 2A. Accordingly, disproportionality presented by no issue of is those defendants. imposed Cunningham,

The life sentences on defendants Bruce Dickerson, IB, Thomas, Christopher Keith Kevin Jackson Richard Blackmon, Johnson, Prater, Chippero, Craig Scott Michael Benjamin appear Lodato to be reconcilable defendant’s death primarily mitigating by sentence on the basis of accepted evidence disturbance, jury tending to show mental or emotional dimin- capacity ished or a connection between the homicide and a defen- Moreover, history of dant’s substance abuse. none of those as or victims as vulnerable murdered child victims defendants victim. defendant’s had met raped and murdered a woman he Cunningham

Bruce and drank history drug and alcohol abuse a He had a on bus. diagnosed with a had been heavily day of the homicide. He on the (ex- c(5)(a) jury found the The paranoid personality disorder. (diminished c(5)(d) disturbance), ca- c(5)(c)(age), treme emotional c(5)(h) (catch-all) mitigating factors. pacity), and abuser, Dickerson, drug high on twenty-year-old a Keith assaulted, robbed, fifty- murdered a sexually cocaine when he testimony experi- he Expert verified that six-year-old neighbor. abusing cocaine. The and hallucinations when paranoia enced (extreme disturbance), c(5)(a) emotional found the c(5)(d) (diminished mitigating capacity) factors. c(5)(c)(age), and guilty capital during murder his first pled IB to Kevin Jackson death, but this Court reversed trial and was sentenced purposely or plea did not establish that he conviction because his twenty-five-year-old the victim’s death. This knowingly caused home, attempted unsuccessfully to neighbor’s entered defendant her, her, inflicting fifty-three stab murdered rape and then trial, penalty-phase process. During his second wounds emotionally impoverished back- that he had an witnesses testified problem and that he had been ground and a substance abuse deficiVhyperactivity disorder and a diagnosed an attention with reality fanta- him to confuse personality disorder that caused highly offered daughters of his deceased fiancée sy. The two testimony compassion for their mother and the about his favorable jury, after role had assumed for them. positive caretaker he (diminished c(5)(d) convicting capital him of found the (catch-all) c(5)(h) mitigating factors. capacity) and Thomas, who at- thirty-one-year-old defendant Christopher in her sexually and then murdered a woman tempted assault long history drug and alcohol abuse. He was shop, tailor had a attempted Hospital after an Psychiatric admitted Trenton schizophrenic. diagnosed paranoid as a suicide in 1990 and was trial, jury a him Thomas waived and the trial court convicted c(5)(a) (extreme capital finding murder. After emotional disturbance) c(5)(d) (diminished factors, capacity) mitigating plus thirty years’ imprisonment court sentenced Thomas life forty-five years’ parole ineligibility. with defendant, Chippero, twenty-three-year-old raped Richard a twenty-five days being paroled his victim murdered after from a prison graduating sentence for other serious offenses. After from students, emotionally Chippero a school for disturbed was admit- psychiatric hospitals ted to on occasions for four bizarre behavior diagnosed bi-polar and was with a affective disorder and manic c(5)(a) (extreme jury behavior. The found the emotional distur- c(5)(d) (diminished e(5)(h) bance), c(5)(c)(age), capacity), and (catch-all) mitigating factors. Blackmon, defendant,

Craig twenty-two-year-old raped, a se- beat, stabbed, verely twenty-three-year-old and murdered his ingesting victim quantity post- after an unknown of PCP. His apprehended by neigh- homicide behavior was bizarre. He was a when, unclothed, completely bor of the victim defendant tried to car; parked violently police headquar- break into a he behaved occasionally spoke foreign Experts' ters and with a accent. at trial ingestion differed about the extent to which the of PCP affected c(5)(a) (extreme jury defendant’s behavior.. The found the emo- e(5)(d) (diminished disturbance), c(5)(c)(age), capacity), tional' c(5)(f) (no c(5)(h) (catch-all) significant history), criminal miti- gating factors. Prater, defendant, twenty-nine-year-old

Michael and a co- raped drug-addicted prostitute. defendant and murdered a While strangled victim the co-defendant Prater stabbed several times, pillow. men then smothered her with a both Defen- dant, abuser, diagnosed drug and alcohol an attention intelligence. deficit disorder and limited found the c(5)(h) (catch-all) mitigating factor. kidnapped three-year-old victim

Scott Johnson and her daughter. releasing After the child unharmed unattended on robbed, center, raped, day defendant of a closed care premises victim, thirty than times and stabbing her more and murdered the history had a body drainage in a ditch. Defendant leaving her quantity of heroin and an unknown drug abuse and had consumed diagnosed with day Defendant was on the of the murder. cocaine disorder, I.Q., organic a and brain developmental borderline a trial, daughter his expressed remorse at and damage. Defendant jury found the for defendant. The testified about her love c(5)(h) (catch-all) (diminished c(5)(d) and c(5)(c)(age), capacity), mitigating factors. Lodato, with a

Benjamin thirty-three-year-old a defendant behavior, raped and history institutionalization and violent had been thirty-eight-year-old his victim. Defendant murdered age since the imprisoned or for most of his life institutionalized organic damage and diagnosed with brain thirteen. He had been dementia, functioning as on the intellectual and was described e(5)(a) jury found the eight- nine-year-old an or child. The level of (diminished (extreme disturbance) c(5)(d) capacity) and emotional Although jury aggravating and mitigating factors. found erroneously mitigating equipoise, to be in the trial court factors and remanded for imposed a death sentence. This Court reversed resentencing imprisonment. to life death sentence of the life

The reconciliation with defendant’s Darrian, Reese, Seymour John sentences of defendants Charles Darrian, Rivera, is more difficult. Neither and Rafael somewhat Reese, significant nor had histories of emotional distur- Rivera Darrian, twenty twenty-two years old bance or mental disease. (the summary ages), raped both and murdered his AOC’s uses girlfriend to date other men and eighteen-year-old who wanted Based on engage refused to sexual relations with defendant. immaturity, jury jealous and found the evidence of his nature c(5)(f) (no (extreme disturbance), c(5)(a) c(5)(c)(age), emotional e(5)(h) (catch-all) history), mitigating fac- significant criminal addition, his victim was less vulnerable than defendant’s tors. victim. defendant, Reese, had a Seymour thirty-three-year-old

John toward known to be violent history of abuse alcohol drinking, evening’s an intoxicated. After women when he was seventeen raped neighbor, striking murdered a defendant At trial official penalty prison hammer. á times with claw kept inmates in a model inmate who other that he was testified e(5)(h) e(5)(d) (diminished capacity) and jury line. The found the (catch-all) history when of violence mitigating factors. Reese’s than that his was less vulnerable and the fact victim drunk may for the arguably factors account victim are defendant’s in their sentences. difference rob, seventy- attempted and murdered a raped,

Rafael Rivera fre- neighbor and eight-year-old who was his next-door widow The victim neck and cared his three children. had quently bruises, ribs, vaginal fractured tears and bruises. facial two Defendant, had a day of who was seen drunk on the c(5)(d) history drug found the long of alcohol and abuse. (diminished c(5)(h) (catch-all) mitigating factors. capacity) victim, reconciliation of defen- Except age of defendant’s the life is difficult. death with Rivera’s sentence dant’s sentence disproportionality on the significant We find no evidence subcategory the C-l comparison of the of defendant and basis proceeded penalty a trial cases to defendants whose Penalty Not to Trial D. C-l Cases That Did Proceed in the C- with nineteen cases compare next defendant’s case We those, proceeded penalty to subcategory. sixteen never Of cases, IB Edward Zola Two Williams and James trials. James IB, initially penalty-phase jury imposed a tried to were and his convictions penalty. This Court reversed Williams’s death On Zola’s death sentence. sentence and also reversed death remand, were thirty years’ parole ineligibility life with sentences they pled guilty to on after imposed both defendants guilty murder, pled respectively. Alphonso Timpson murder and assault, kidnapping, but capital to sexual plea was conditioned on the trial sentencing court him to life imprisonment non-jury penalty hearing. after a The court sen- tenced Timpson plus fifty years’ to life imprisonment fifty- years’ parole ineligibility. five difficulty process inherent in the of precedent-seeking

review is when the attempts compare Court to exacerbated defen- dant’s case to the cases- of other defendants whose ultimate imposed sentences were guilty as a result of plea a or a conviction following non-penalty cases, a phase trial. In some the AOC’s summary sufficiently permit is detailed to to by Court deduce may inference what persuaded considerations have prosecutor forego penalty cases, trial. In why other the reasons prosecutor forego capital elected to prosecution appar- are less ent. The lack contemporaneous of a summary by reliable prosecutors of the various factors that were considered in arriving forego at the decision capital prosecution diminishes the effec- reliability tiveness and of our precedent-seeking review. We anticipate that Special appointed by Master the Court in II, supra, 287-91, 157 N.J. 724 A.2d will address Loftin that concern. comparison six of the cases the basis for the decision to

forego capital prosecution readily is inferable from the AOC’s summary. Michael Relford was convicted of the murder and attempted aggravated sexual forty-four-year-old assault of a neighbor and grandmother. friend of his aOn occasion two years earlier attempted defendant had sexually assault the victim but she press elected not to charges because of her relationship grandmother. with defendant’s The victim was twenty-five stabbed may times. Factors that have affected the forego decision to capital prosecution include the defendant’s history drug abuse, of alcohol, alcohol consumption of heroin, murder, day cocaine on the of the ambiguous and the concerning evidence the nature and extent of defendant’s relationship with the victim. thirty-two-year-old victim he met at murdered a

Morey Marcus together, neighborhood drinking defendant and a bar. After bar; closed, they proceeded a when that bar left to second victim morning Early the the- victim together in defendant’s van. next Defendant, found, unclothed. stabbed times left was eleven discharged who honorably an War veteran had been Vietnam disorder, by a hospitalized post-traumatic stress was convicted for murder, murder, attempted aggravated sexual of imprisonment plus years’ life assault. He was sentenced to ten ineligibility. may that' have thirty years’ parole Factors with fact prosecution include the non-capital contributed to the decision relationship with the victim was origin of defendant’s record, consensual, military and the ab- exemplary defendant’s that the assault was consummated. proof sence of sexual murder, felony Clowney Defendant Sharob was convicted assault, attempted murder, two mur- aggravated sexual counts der, aggregate sentence was possessory offenses. His and various years forty years’ parole ineligibility. Defen- plus twenty life multiple stab wounds on his sexually assaulted and inflicted dant five- also and nine- twenty-eight-year-old victim and stabbed sons, Clowney the attack. year-old both of whom survived purchased drugs him. frequently from claimed that the victim by history of was evidenced Defendant’s emotional disturbance twelve, nineteen, as attempts eighteen, and ages three suicide arrest this prison after his attempt well as a suicide I.Q. a low scores and homicide. His school records reflected history of diagnosis Defendant’s emo- of emotional disturbance. may instability suggesting that victim tional and the evidence likely factors to affect purchased drugs from defendant were have capital prosecutor’s forego prosecution. decision to guilty capital plead Alphonso Timpson permitted was assault, plea was kidnapping; aggravated sexual imposition a life sentence after on the trial court’s conditioned fifty life hearing. plus His non-jury penalty-phase sentence ineligibility. His fifty-five years’ parole years’ imprisonment with 100

victim, girl, beaten, twelve-year-old severely viciously a was and sexually assaulted, by January murdered in and suffocation 1984. ultimately Defendant Timpson confessed to the crimes. was diagnosed mentally as with develop- borderline retarded severe disabilities, although years mental age and nineteen of when he murder, he possessing committed the as characterized juvenile development twelve-year-old. offender, mental of a As a Timpson had been sentenced November 1982 to an indetermi- Jamesburg nate term at for a on girl. similar attack a school Both requested defendant and mother remain his that he institutional- inability tendencies, ized because of his to control assaultive his 1983, but paroled August defendant was five months Despite aggravated homicide. circumstances of the as- victim, sault on prolonged history defendant’s defendant’s of emo- tional development undoubtedly disturbance and retarded influ- prosecutor’s enced the decision proceed non-capitally. pled guilty aggravated Frederick manslaughter, Ritchie kid- napping, assault, of two counts hindering sexual and apprehension; an aggregate plus he received sentence of life thirty years thirty-seven years’ parole ineligibility. Defen- victim, twelve-year-old boy, dant’s a who was was enticed into trailer, defendant’s induced to quantity consume a substantial beverages, sexually by alcoholic and assaulted defendant. Defen- dant injured the victim staggered maintained that when he himself washing into a and machine later fell after striking backwards head on a victim tree. The was found and facedown unclothed in creek, a having injuries. from drowning died head and The absence of direct purposeful evidence the homicide was knowing probably prosecutor’s was a factor that influenced the forego prosecution. decision to capital beat, Mincey raped Samuel strangled seventy-three-year- a old woman in November 1982. He also stole two oriental dolls a years later, television police set. November six investigating recovered one of the oriental dolls burglary. while a burglary The police victim of the told given that defendant had investigation defendant in the implicated in 1982. An her the doll homicide, him murder convicted assault summary that the prosecutor surmises murder. AOC’s may the statute limitations barred reliance have concluded that any provided could basis for a aggravating on factor that have capital prosecution. may group in in this present a number of other cases

Factors but decisive explain prosecute non-capitally, decisions to the the apparent speculative preced- more than the are less factors not ing presently compiled, the AOC summaries do cases. As forego prosecutor’s decision to specific reasons for the include the refer to the factors capital prosecution, nor do the summaries may specific decision. information contributed to that More have death-eligible prosecuted capitally why homicide was not on a ability precedent-seeking to conduct would the Court’s enhance circumstances, comparison our the we must base review. Under presently on the information available. in the as fourteen- same hotel

Lester Allen Wilson resided sister, time with them year-old spending and her often victim apparently had rebuffed their The victim’s sister Wilson’s room. sexually strangled assaulted Wilson sexual advances. Defendant, who pillow over her face. victim was found with a who retarded, mildly unsuccess- who was had no convictions and through custody by jumping fully police to from attempted escape headquarters. A police convicted a bathroom window at assault, aggravated and defendant of murder and sexual defendant years’ thirty parole imprisonment to with was sentenced life retardation, appar- no mental ineligibility. Other than defendant’s aggravated sexual concerning ent this homicide circumstances capital prosecution of forego explain assault determination Wilson. murder, murder, attempt- Fullard was convicted of

Isaac assault, an possession weapon of a for sexual aggravated ed burglary. victim was purpose; acquitted he unlawful was Defendant, who was sen- friend of sister. best defendant’s seventy years’ tenced imprisonment thirty years’ parole with ineligibility, by maintained that he and victim were attacked two apartment. men who broke into the Defendant’s version of supported by the crime was a witness who came forward after history defendant’s trial. Defendant had of narcotics abuse but displayed symptoms problems. no health mental The lack of incriminating forensic evidence and defendant’s insistence that persons may other committed the murder have contributed prosecute non-capitally. decision to Fullard girlfriend’s man, retaliation his involvement with another Leroy Taylor, in apartment November entered her sexually strangled girlfriend’s thirteen-year-old assaulted and his Taylor niece. fled to was California and there in arrested 1987. Taylor previously juvenile Because had been convicted as a four-year-old murdering girl, was charged he after arrest parole violating with and sentenced to an indeterminate term. Taylor charged Jersey felony murder, in New assault, hindering prosecution, sexual and witness tampering. guilty plea felony murder, His first-degree to aggra- assault, vated sexual and tampering accepted by witness was Taylor trial court and was sentenced to life imprisonment with thirty years’ parole ineligibility. prosecutor’s decision to accept Taylor’s guilty plea by could have been influenced uncer- tainty Taylor’s prior juvenile over whether murder conviction as a could an aggravating constitute factor a prosecution. murder Bolinger,

Robert a thirty-six-year-old Vietnam veteran War history drug abuse, with a and burglarized apart- alcohol ment twenty-three-year-old of his victim. victim When the re- home, turned observed, defendant to attempted leave. Once however, sexually victim, he assaulted and stabbed the removed wallet, money through from her escaped and the window. After being apprehended assault, for another sexual defendant confess- homicide, ed stating to the that he murdered the victim because she stepmother his sexually resembled who Charged abused him. murder, with capital aggravated assault, sexual weapon an for unlawful burglary, possession of robbery, and felony murder plead guilty to to permitted was defendant purpose, accept to defendant’s The decision and sexual assault. by impulsive rather than may influenced guilty plea have been by drug and defendant’s and premeditated of the homicide nature addiction. alcohol assaulted, beat, stabbed, sexually severely

David Collins girlfriend in retaliation her mother his tried to drown the Defendant, an girlfriend’s baby. permit to him to see refusal to high dropout, school confessed unemployed twenty-one-year-old form of mental required He and received some the murder. charged Defendant was incarcerated. health treatment while murder, robbery, burglary, possession of knowing purposeful hindering apprehension. purpose, and weapon for an unlawful an guilty charges those and received permitted plead He to to years’ plus twenty imprisonment with aggregate sentence of life prob- health parole ineligibility. Defendant’s mental forty years’ giving rise to defendant’s lem, the circumstances combined with ,to prosecu- victim, may have contributed hostility toward the non-capitally. proceed tor’s decision job at the fired from his maintenance Zola IB was James resided, part because of apartment complex his victim where into workmanship. Defendant broke complaint poor her about his beat, scalded, juryA strangled her. apartment murder, burglary, aggravated sexual capital Zola of convicted him to assault, robbery, and sentenced death. kidnapping, and improper of an sentence because reversed the death This Court remand, mitigating On factors. aggravating on instruction newly on granted Zola a trial the basis court new trial factor, ex- combined with defendant’s evidence. That discovered disturbance, prosecu- to the probably contributed emotional treme and receive permit plead guilty Zola to murder tor’s decision ineligibility. thirty years’ parole a life sentence with nineteen, murder his indicted for the Gary Lippen, age was assault, victim, aggravated sevénteen-year-old as well as for sexual conspiracy, hindering apprehension, possession weapon of a an purpose. plead for unlawful guilty aggravated Allowed manslaughter, hindering apprehension, conspiracy, Lippen thirty years’ imprisonment was sentenced manslaughter on the charge five-year and a consecutive term two and one-half years’ parole ineligibility hindering on apprehension the convic- aggravated tion. The manslaughter subsequently sentence was years twenty years’ reduced to parole ineligibility. with ten Lippen twenty-seven-year-old co-defendant, and his James Henderson, beat, raped, stabbed, strangled and tortured the vic- assaults, After tim. the Henderson victim hoisted the into a tree and, using leverage, legs. the branches as broke victim’s acknowledged Lippen complicity in the offenses admitted victim, participated that he in the assaults on the but claimed that he feared Henderson him if would kill he refused to assist and participate in Lippen the assault. had no no convictions and history of history emotional disturbance but had a of alcohol and drug body discovered, abuse. After the victim’s was Lippen initially any death, denied in involvement but quickly he retracted gave police voluntary his denial and and detailed concerning statement his and complicity Henderson’s mur- Lippen’s authorities, der. cooperation with law enforcement com- actor, bined with the likelihood that Henderson was the dominant probably prosecutor’s for accounts to forego capital decision prosecution of Lippen. explanation non-capital prosecution for the remaining of the subcategory

cases the C-l is more elusive. For example, Henderson, Lippen’s co-defendant, James primarily responsi- for assault, ble sexual and ferocious beating of savagery their victim. The of Henderson’s crimes was Although extreme. Henderson history was illiterate and had a undesignated treatment illness, an mental emotional distur- bance, abuse, drug instability extent his emotional is set summary not forth in the AOC’s with sufficient detail to support justified the conclusion that prosecutori- that condition

105 permit- proceed non-capitally. Henderson was to al determination hindering appre- plead guilty to murder and two counts of to ted hension, thirty life resulting imprisonment in a sentence of with ineligibility on murder conviction and consecu- years’ parole parole years years’ two and one-half sentence of five with tive charge. hindering apprehension ineligibility on the (1 3), 1991, raped period within a two-week in Frank Masini and raped eighty-five-year-old his aunt and also and and murdered by marriage. to him eighty-year-old woman related murdered an multiple sexually and received stab Both victims were assaulted addition, year approximately one later in the neck. In wounds carpen- elderly he had couple an for whom done Masini murdered entry any of sign was of forced at try work. Because there no victims, suspicion focused on Masini who homes the homicide his all the Masini lived with wife knew or related to victims. was carpenter self-employed with no two children. He was a and adult that in history drug He claimed the months alcohol abuse. from experienced he “detachments reali- preceding the homicides April pled he sought he no ty,” for which treatment. elderly pled couple his of the guilty to the murder of aunt and eighty-year-old county in to the murder of guilty another marriage. sentenced to two consecutive by Masini was relative to terms, thirty years’ parole ineligibility, and two each with life thirty years’ parole ineligibility. life with concurrent terms of summary to Masini’s the reference the AOC’s Other than reality,” sur- from no other factors experiencing “detachments explanation for the rounding suggest four an those homicides against proceed non-capitally Masini. prosecutorial decision to four-month committed five homicides within a Jerome Dennis 2) (Dennis in the 1 and are included C-l period, two of which felony permitted plead guilty to subcategory. Dennis was guilty pleas homicides. Dennis entered murder to those two murder, manslaughter homicides other The guilty two assault. pled also counts he abducted fourteen-year-old girl 1 whom Dennis was a victim point walking along sexually at knife she while was the street. He her, wounds, multiple assaulted inflicted stab covered body twigs. thirty-year-old leaves victim in Dennis undress, point, sexually also abducted knife forced to assaulted, and multiple explained stabbed times. Defendant committing by in 1 the Dennis homicide he was a influenced “demon.” Two paroled weeks to that offense he was from State and Supervision Yardville Prison admitted into the Intensive convictions, Program. of Probation several prior He had adult including three for sexual assault. Dennis was sentenced to two years’ life thirty parole ineligibility consecutive terms with and thirty years’ two concurrent terms parole ineligibility. life with explanation prosecutor’s No for the to forego capital decision prosecution can be inferred from the AOC summaries. raped

James Williams IB twenty-three-year-old and murdered a receptionist nursing in a Trenton home. Defendant took the pocketbook stabbing victim’s after thirty her more than times. capitally, murder, Prosecuted by jury defendant was a convicted of felony assault, robbery, sexual armed c(4)(c) (torture burglary. penalty phase, jury the the found the depravity) c(4)(g) (contemporaneous felony) aggravating c(5)(h) (catch-all) factor; factors and the mitigating jury (extreme c(5)(a) rejected disturbance), c(5)(c)(age), emotional c(5)(d) (diminished capacity) mitigating factors. Defendant was sentenced to death. This Court reversed defendant’s convic- primarily tions and death sentence because .the inadequacy of voir dire and the erroneous refusal jury prospec- to excuse a Williams, juror cause. State v. 393, 436, 113 N.J. tive (1988). remand, A.2d 1172 On pled guilty Williams to imprisonment murder and was thirty sentenced life years’ parole ineligibility. No mitigating factors other than the evidence penalty phase, offered substantially rejected but by the jury, explain prosecutor’s forego capital prosecu- decision to mitigating tion on remand. That testimony evidence included reflecting childhood, an placements, unstable numerous care foster and, instability, nine, emotional age intoxication the accidental testimony There also that shooting younger of his brother. shortly began to deterio- the murder before defendant’s behavior by head following in which he was struck rate an incident Nevertheless, mitigating that evidence did falling cinder block. imposing from the death sen- penalty-phase not deter the tence.

Summarizing comparison our of defendant’s death sentence with in the imposed on the nineteen defendants C-l the sentences penalty- not in a subcategory whose were determined sentences trial, significant disproportionali- we do not find evidence phase ample to conclude ty. from the AOC summaries bases We discern justify decision to persuasive reasons existed to the State’s Relford, Marcus, Clow- non-capitally against defendants proceed Ritchie, Similarly, somewhat ney, Timpson, Mincey. but with assurance, grounds existed to we also infer that reasonable less against proceed non-capitally support the State’s determination Collins, Wilson, Fullard, Taylor, Bolinger, Lippen, defendants there was adequate IB. lack information conclude that Zola We forego capital prosecution defendants justification to sufficient (1 (1 2), and, remand, 2), and Henderson on Masini and Dennis were not as Although IB. the victims of those defendants Williams victim, multiple by Cooper’s as the homicides committed young the of the homicides committed Masini and Dennis and viciousness culpability that of those by suggest and the Henderson Williams of, to, comparable if that of defendant is not excess defendants unavailable, information, presently Cooper. Perhaps additional non-capital prosecutions those clarify the reasons for the would is to conducting proportionality aim in review not cases. But our correlation, degree in the symmetry, high or even a insure comparable primary Our ob- imposed on defendants. sentences prevention of sentences. jective is and aberrational the detection II, supra, N.J. Despite 129. our 724 A.2d Loftin non-capital prosecution of four of these defen- concerns over dants, death Cooper’s a that we are not left with sense defendant compared to the defendants aberrational when sentence is C-l prosecuted capitally. who were not E. C-2 Cases eases, subcategory of nine

This consists five which concern prosecuted Edwards, capitally: who Ralph defendants were Mark Luciana, Harris, Jerry Spraggins, Ambrose Michael Manfre- and defendants, Of only donia. those Ambrose Harris was sentenced to death. Edwards, old, years eighteen attempted

Defendant then sexually nine-year-old assault a girl platform he saw on the anof attempted flee, abandoned station. she railroad When' he strangled plastic strap. restrained and a her with was Edwards charged knowing murder, murder, with purposeful felony attempted aggravated jury acquitted sexual assault. The him of murder, purposeful but him charges. convicted on all other c(4)(f) detection) penalty-phase jury (escape c(4)(g) found the (contemporaneous felony) aggravating c(5)(c)(age), factors and (diminished c(5)(d) (no c(5)(f) capacity), history), criminal c(5)(h) (catch-all) mitigating presented factors. was Evidence concerning history psychological prob- Edwards’s and mental lems and he functioned on the of nine-year- emotional level a penalty jury old. The deliberations in a non-capital resulted sentence. imprisonment Defendant was sentenced to life with thirty years’ parole ineligibility on murder count and a consec- years years’ utive ten parole ineligibility with five on aggravat- ed assault sexual conviction. Luciana, twenty-year-old defendant,

Mark party a left a Mends, twelve-year-old girl, two male fifteen-year-old and the nearby victim and went sexually wooded area. Defendant victim, strangled retrieving assaulted and body later from placing the woods and it in the trunk of his car. was Luciana apprehended police body. after a friend told about the Defendant charged murder, with and convicted of aggra- assault, hindering vated apprehension, sexual endangering welfare In penalty phase, child. expressed defendant jury contrition and spare asked his life. Witnesses testified disorder, immaturity, his anti-social personality drug and his c(5)(d) c(5)(c)(age), jury found the addiction. The and alcohol c(5)(h) c(5)(f) (no (diminished history), and prior criminal capacity), (catch-all) jury After the could not decide mitigating factors. fac- outweighed mitigating aggravating factors whether thirty tors, imprisonment with sentenced to life Luciana was murder, and to a consecutive parole ineligibility for the years’ aggravated for sexual as- years’ imprisonment term of nineteen hindering apprehension. sault and sixty-eight- Jerry apartment into the of his Spraggins broke her, victim, sexually and suffocated and stole year-old assaulted years He was arrested two pocketbook gold and a neck chain. in the same to the murders of two other women later and linked building, occurring prior to the enactment of one such homicide acquitted of both capital punishment statute. Defendant sixty- capital prosecution for the murder homicides. his victim, purposeful convicted of and eight-year-old defendant was assault, murder, aggravated sexual knowing trial, good of defendant’s burglary. penalty-phase At the evidence mother, testimony by as well as concern- character was offered compulsive counseling and evidence of his ing prior mental health voyeuristic found the behavior toward women. (no (diminished c(5)(f) c(5)(d) history) prior criminal capacity) and penalty trial resulted in a sen- mitigating factors. Defendant’s ineligibility thirty years’ parole imprisonment of life tence ineligi- twenty-year years’ parole term with ten plus a consecutive charge, assault and a concurrent bility on the sexual ten-year burglary. term Manfredonia, nineteen, age sexually assaulted and then

Michael allegedly refused fourteen-year-old victim after she murdered his him, clothing appearance, go out -with criticized his body twenty-six victim’s had stab generally ridiculed him. The dirt, in a ditch and covered with and was found buried wounds rocks, at home after apprehended Police Manfredonia and sticks. by ingesting pills trying to slit his wrists attempted suicide he right waived his capital In his trial defendant with a razor blade. lio murder, murder, felony, jury guilty found

to a trial and was assault, aggravated kidnapping, possession weapon and of a sexual phase, psychiatrist purpose. penalty for an unlawful In the mentally I.Q. of retarded with an testified that defendant was abnormal, structurally appeared to and that he that his brain be anger. to control his emotions and The trial court was unable detection) (commission e(4)(f) (escaping c(4)(g) and of a found the felony) aggravating single them as a factor. factors but treated (extreme c(5)(a) disturbance), emotional The court also found the e(5)(f) (no c(5)(c)(age), prior history) mitigating criminal fac- and tors, mitigating outweighed and concluded that factors imprison- aggravating factors. was sentenced to life Defendant murder, thirty years’ parole ineligibility plus for ment with consec- thirty years’ imprisonment years’ utive terms of with fifteen parole ineligibility kidnapping, twenty years’ imprisonment for years’ parole ineligibility with ten sexual assault. twenty-two-year-old raped Ambrose Harris and murdered his victim, automobile, stealing money, Capital- and credit cards. murder, ly felony kidnap- prosecuted, he was convicted of assault, theft, robbery, aggravated ping, possession of a sexual e(4)(f) weapon purpose. jury for an unlawful found the detection) (escape c(4)(g) (contemporaneous felony) aggrava- c(5)(h) (catch-all) ting mitigating factors and the factor. The Harris sentenced to death. subcategory capitally

Defendants in the C-2 who were not Marino, Brown, Williams, prosecuted were Vincent Vincent Gerald strangled sexually and Adam Marrero. Vincent Marino and then twenty-three-year-old voluntarily assaulted his victim who had gone intending to defendant’s home to smoke crack cocaine with him. The evidence indicated that defendant had smoked crack throughout day evening people, cocaine with several including acknowledged the victim. Defendant that he lured the pretext victim to his basement on the cocaine hidden there, advances, that the victim resisted his sexual that he strangled lingerie. the victim with her Defendant was addicted to

Ill addiction, cocaine, and had been treated for had a alcohol plead guilty problems. permitted Defendant was mental health thirty years’ imprisonment murder and was sentenced ineligibility. That victim had shared cocaine parole without day may influenced the defendant on the of the murder have prosecutor’s forego capital prosecution. decision to attempted sexually ten-year-old assault the Brown

Vincent girl resisted his advances. girlfriend. niece of Brown’s mother about defendant’s she threatened to inform her When assault, strangled body left her in a attempted Brown her and murder, murder, felony aggravated ditch. Brown was indicted for assault, prison he became sexual and sexual assault. While hallucinations, resulting in his confine- experienced suicidal and diagnosed major psychiatric hospital ment in a where he was with drug depression psychotic features. He also had a severe with addiction, competency to stand trial was and alcohol and his Ultimately, pled guilty murder and sexual questioned. Brown assault, thirty years’ imprisonment and was sentenced to life with years years’ parole ineligibility, and a consecutive ten with five charge. serious parole ineligibility on the sexual assault Brown’s undoubtedly the State’s deci- mental health disabilities influenced forego capital prosecution. sion to old, Williams, years employed in thirty-eight was Gerald then building for months until his dis- apartment the victim’s several apartments in vacant and stairwells charge, after which he lived strangled fifty-nine- building. sexually and He assaulted history depression, year-old long In addition to a of victim. many years. regularly alcohol and cocaine for Williams had used murder, felony by jury a of non-capitally, Tried he was convicted assault, murder, burglary, crimi- counts of sexual two restraint, purpose. possession weapon of a for an unlawful nal thirty years’ imprisonment to life Williams was sentenced twenty ineligibility plus murder consecutive terms parole for conviction, years burglary, for years assault ten for each sexual weapons offense. years for criminal restraint and the and five each summary why no The AOC’s includes indication Williams was non-capitally. prosecuted Marrero, .victim, twenty-three, thirty- age age

Adam met the four, They home of to drive her home. a friend offered together stopped left at a local restaurant for drinks and body dancing. reported missing. The victim was later Her area, nearby in a wooded and her death was found unclothed by strangulation. non-capitally Defendant was tried caused murder, by jury kidnapping, was convicted aggravated sexual assault. He was sentenced to concurrent life terms, thirty years’ parole ineligibility, each with and to a consecu- twenty-year kidnapping. tive The fact that sentence began may as a social influ- homicide consensual encounter have prosecutor’s forego capital prosecution. enced the decision to Summarizing comparison our of defendant’s death sentence with subcategory, the sentences of the nine defendants in the C-2 we no of disproportionality. find evidence Of the five defendants prosecuted capitally, defendant Harris was sentenced to death. Edwards, Luciana, Spraggins, The life sentences of defendants appear and Manfredonia to be reconcilable with defendant’s death Although young girl, sentence. Edwards’s victim was a evidence penalty phase in the indicated that he functioned as emotional the. equivalent nine-year-old long history of a psychologi- and had a problems. fifteen-year-old cal and mental Luciana’s victim was a girl, personality apparently persuaded and his disorder to spare Spraggins’s sixty-eight years his life. victim was old. His acquittal simultaneous of two other homicides and the evidence of history his problems may of mental health have influenced the jury’s impose penalty. decision not to the death Defendant Man- retardation, disturbance, fredonia’s mental emotional and abnor- development obviously mal brain were factors that affected the jury’s non-death sentence. noted, non-capital

As prosecutions of defendants Marino and probably by Marrero were influenced the consensual nature of relationships respective Although their their with victims. his old, suicide, years attempted psychiatric Brown’s victim was ten undoubtedly questionable competency influ- hospitalization, and proceed non-capitally. apparent enced the State’s decision to No forego capital prose- explain the decision to circumstances State’s cution of defendant Gerald Williams.

F. C-3 and Other Cases subcategory, the other two cases The three cases in the C-3 subcategories, were by relied on defendant from the B-2 and G-l prosecuted non-capitally.' all Frederick Neuschwanter’s victim acquaintance gone with whom he had to eighteen-year-old was an parked cemetery his ear near a purchase liquor, after which he together. he made unwelcome and he and the victim drank When advances, grabbed hunting to defend sexual the victim knife struggle A in the death of the victim due to a herself. resulted trauma. Neuschwanter had combination of stab wounds and blunt history or emotional prior no record and no of mental permitted plead problems, other than alcohol abuse. He was thirty-year aggravated manslaughter and sentenced to a guilty to - years’ parole ineligibility. term with fifteen strangled thirty- Brockington sexually assaulted and Founcil ambigu- summary is four-year-old victim in her home. The AOC’s acquaintances and the victim were ous on whether defendant non-capitally, prosecuted Defendant was unknown to each other.- murder, aggravated sexual as- charged with sault, assault, weapon for an possession of a guilty aggravat- permitted plead purpose. unlawful He was twenty-five years manslaughter, and sentenced to a term of ed eight years’ parole ineligibility. Prater lured a Eugene Edwards and co-defendant Michael by offering drugs in ex- residence her prostitute to Edwards’s sexually change relations. The two men assaulted for sexual victim, stabbing numerous co-defendant murdered the had no attempting strangle to her. Edwards times and Edwards prose- any history problems. of mental He was prior record nor murder, non-capitally pled guilty robbery, aggra- euted to imprison- vated sexual assault. Edwards was sentenced to life thirty years’ parole ineligibility ment with and a consecutive term years’ parole ineligibility aggravated with ten for sexual assault. Vasquez, Carlos who had been convicted of murder in Puerto 1975, sexually thirteen-year- Rico in asphyxiated assaulted and non-capitally, pled guilty old victim. Prosecuted to defendant felony aggravated murder and sexual assault. He was sentenced thirty years’ imprisonment parole ineligibility to life with on the felony charge twenty-year murder to a consecutive term with years’ parole 'ineligibility for ten sexual assault. nineteen, Aquino, age six-year-old girl Kevin abducted a from a neighbor’s intending sexually home to assault her. When awoke, protested, by smashing child she and defendant killed her child, against her head Aquino diagnosed tree. As a was as emotionally neurologically impaired. disturbed and Defendant had three receiving sexual-assault convictions and had been psychiatric counseling underlying impulse because of his control psychiatrist disorder. Defendant’s parents had informed his supervision placed defendant needed constant and should be program. Aquino prosecuted residential treatment non-capi- tally permitted murder, plead guilty and was to kidnapping. imprisonment Defendant was sentenced to life thirty years’ parole ineligibility charge on the murder and a twenty-five years’ consecutive life term with parole ineligibility on kidnapping charge. disproportionality find no We between defendant’s death sen- tence and the subcategory sentences of the defendants in the C-3 and the two additional defendants included in that discussion. That began defendant Neuschwanter and his victim their encoun- consensually ter and that the victim first reached the knife undoubtedly prosecutor proceed non-capitally influenced accept and to plea aggravated manslaughter. defendant’s Simi- larly, apparent ambiguity concerning origins of the en- Brockington counter between may defendant and his victim have

115 accept proceed non-capitally and to the State’s decision to affected manslaughter. fact that plea Brockington’s originated by Eugene Edwards as homicide committed defendant may drugs relations have influenced the exchange an for sexual Edwards, forego capital prosecution prosecutor’s decision not to of the murder. The decision despite the viciousness State’s by the Vasquez capitally unexplained is prosecute defendant summary, prior murder conviction and the in view of his AOC’s Aqui- only Although thirteen. defendant fact that his victim was years killing particularly victim was six old and no’s brutal, instability psychiatric disorders Aquino’s emotional forego capital decision to may have contributed to the State’s prosecution. Precedent-Seeking Review Conclusion

G. “[proportionality review emphasized,

As we have only particular death sentence is determine whether a seeks to aberrational, perfectly with other sen compares not whether it IV, 352, (citing A.2d 685 Bey supra, 137 N.J. at tences.” 1059). 131, II, careful supra, at 613 A.2d Our Marshall 130 N.J. sentence, compared to the sentences death review of defendant’s homicides, comparable who committed imposed on defendants aberrational, is not us that defendant’s death sentence convinces the non-death-sentenced defen respect with to almost all of dants, their sentences State’s is reconcilable with and/or concerning The cases forego capital prosecution. decision to readily on cannot be achieved reconciliation of sentences which significantly to diminish summaries are too few basis of the AOC is that defendant’s death sentence confidence in the conclusion our disproportionate. not

IV Arguments Other Defendant, and Na together with defendants John Chew challenging eonstitu- Harvey, jóint have filed a brief thaniel discrimination, tionality penalty of the death on the basis of racial discrimination, geographic apparent aggravating effect of the factor, mitigating extreme emotional disturbance and the low death-sentencing recently thoroughly overall rate. We reviewed rejected unconstitutionally the claim of based on racial bias II, supra, 157 N.J. 129, 724 A.2d and no additional Loftin underlying appeal information in the statistical impel tables this us rejected to alter that conclusion. We other asserted constitu II, 183, 220-27, in State v. Chew 159 N.J. challenges tional (1999), rejecting A.2d 1070 and adhere to those conclusions appeal. same contentions in this Cooper’s

Based on our conclusion that defendant death sentence disproportionate, is not we affirm the sentence of death.

APPENDIX COMPARISON CASE SUMMARIES Penalty

A. Trial Cases Bey Marko 2A Bey raped

Marko Bey and murdered Carol Peniston. accosted apartment front of her money. and demanded When he heard approaching, grabbed shed, someone he her and led her to a her, her, repeatedly where he stomped sexually struck on assault- her, her, strangled eight ed keys. stole dollars and her ear subsequently Newark, He drove her stolen car to where he getting abandoned it after into a one-car accident. murder,

In the Bey purportedly hours to the drank 120 liquor ounces of marijuana. malt and smoked Three and one-half incident, Bey weeks before this rape- had committed another murders, murder. Bey the time between the two turned eighteen years old.

Bey illegitimate rejected was an child whose father him and whose mother was an alcoholic brutally Bey who abused him. years fourteen marijuana when he was

began abusing alcohol and trial, and stated expressed remorse Overthe murder Bey At old. drugs never have taken it would “maybe if I never would have happened.” murder, kidnap- Bey capital

juryA convicted assault, assault, robbery, and aggravated sexual ping, aggravated penalty phase inadmissible at the Bey’s prior murder was theft. jury found the appeal. under the conviction was because c(4)(c) (extreme felony) c(4)(g) (contemporaneous suffering) and mitigating rejected Bey’s proposed all aggravating factors c(5)(a) (extreme distur- emotional rejection of the factors. The c(5)(h) (diminished c(5)(d) capacity), and bance), c(5)(c)(age), (catch-all) may to an erroneous factors be traced mitigating mitigating find jury that it must instructed the charge, which death, Bey to but this jury sentenced unanimously. The factors of the flawed instruc- because the death sentence Court reversed c(5)(a) c(5)(h) retrial, finding jury, despite tions. On case, That factors, Bey to death. again sentenced mitigating group because 2B, comparison Bey is not in defendant’s Marko murder) c(4)(a) aggravating jury (prior found the the second factor.

Craig Blackmon son, two-year-old Blackmon of the victim’s presence

In the ninety- abused, assaulted, victim. Over sexually and stabbed the her, stabbed, beat, kicked tied her and period, Blackmon minute jaw, broke Blackmon fractured her urinated on her. up, and brain, neck, in her caused hematomas every in her bone wounds, vagina. including in the three several stab inflicted old, ingested PCP Blackmon, twenty-two years had who was day behavior on He exhibited bizarre prior to this incident. while committing the murder and example, after For the murder. police Later at the naked, parked car. tried to enter still he occasionally began speak- station, violently at times and acted he accent. ing a West Indian juryA purposeful knowing convicted Blackmon of or murder (two (two counts), murder, felony aggravated sexual assault c(4)(c) counts), jury weapons and a offense. The found the (torture depravity) c(4)(g) (contemporaneous felony) and the e(5)(a) (extreme aggravating factors and the emotional distur- c(5)(d) (diminished c(5)(f) (no bance), c(5)(c)(age), capacity), signifi- c(5)(h) (catch-all) history), cant criminal mitigating factors. jury aggravating outweigh The found that the factors did not mitigating factors. impris- The court sentenced Blackmon to life thirty-year parole murdering onment with a for bar the victim and twenty years’ imprisonment ten-year parole disqualifier with a aggravated for the sexual assault.

Richard,'Chippero old,

Chippero, twenty-three years who was entered the victim’s through home the front door and asked her to have sex with him. refused, Chippero pulled pocket She aout knife and chased the victim into the bedroom. He forced her to raped undress and him, knifepoint. her at Chippero After the victim stared at feared identify that she could him and stabbed her ten times. She died from Chippero subsequently the wounds. discarded the knife in a bloody lake and washed his shirt.

Chippero only twenty-five days committed these offenses after being paroled. previously He aggravated had been convicted of assault, arson, arson, burglary, and theft.

Chippero’s stepfathers imprisoned abusing two were him. stepfather physically His first abused him and his mother. His stepfather physically sexually second abused him. When he old, years Chippero diagnosed was seven being hyperkinet- was as ic, emotionally disturbed, mentally year retarded. The after graduating students, emotionally from a school for disturbed Chippero psychiatric to a hospital admitted on four occasions. bipolar He suffered from disorder. Chippero murder, capital convicted

aggravated assault, hindering apprehension prosecution, sexual or c(4)(f) (escape detec- jury The found weapons a offense.

tion) felony) aggravating factors e(4)(g) (contemporaneous and the. disturbance), c(5)(a) (extreme c(5)(c)(age), emotional and the c(5)(h) (catch-all) (diminished mitigating e(5)(d) capacity), and Ac- agree on defendant’s sentence. jury could not factors. The imprisonment with to life cordingly, Chippero was sentenced The the murder conviction. disqualifier on thirty-year parole twenty- with a life sentence him to a consecutive court sentenced assault aggravated sexual disqualifier on the five-year parole conviction. Cunningham

Bruce attempted rape drinking, Cunningham morning After sexually assaulting him from prevented Their son former wife. her. old, a bus thirty-four years then boarded

Cunningham, was who walked off bus He and the victim he met the victim. where and took her to kidnapped then together. rum He and drank rock, area, with a hit her over the head where he a deserted dead, her, Realizing she was sexually her. assaulted stabbed body and fled. Cunningham buried her disorderly persons of- prior convictions Cunningham had Cunning- assault, burglaries. fenses, battery, two aggravated has a Navy veteran and childhood. He is a had an abusive ham diagnosed para- He drug and alcohol abuse. history of personality noid disorder. murder, murder, kidnap- capital jury him of

A convicted jury assault, The assault. aggravated sexual ping, felony) aggravating factor (contemporaneous c(4)(g) found the c(5)(d) disturbance), c(5)(a) (extreme c(5)(c)(age), emotional e(5)(h) (catch-all) mitigating factors. (diminished capacity), and c(4)(f) c(4)(c) (torture depravity) and jury rejected the The detection) concluded aggravating factors. (escape factors. outweigh mitigating not aggravating factor did eighty years’ impris- court sentenced For the him. onment, thirty parole ineligible. nonmerged of which If the were (the consecutively ran counts to each other AOC’s narrative does clear), years’ aggregate not make this sentence was 130 imprisonment fifty-year parole bar.

Charles Darrian (the

Darrian, twenty twenty-two years who was old AOC’s victim, point), eigh- narrative is inconsistent on this and the his teen-year-old girlfriend, ongoing dispute had an over her desire to They began argue apartment date other men. at the victim’s after she refused to have sex with him. He then beat her and Afterward, anally raped placed hanger her. Darrian a coat around her neck and twisted it six times. The victim died of asphyxiation, and Darrian fled. prior history

Darrian had no criminal record. He had no illness, nature, age, jealous immaturity mental but his were c(5)(a) (extreme disturbance) support deemed to emotional mitigating factor. murder, jury capital

A Darrian convicted assault, weapons jury sexual e(4)(g) offense. The found the c(5)(a) (ex- (contemporaneous felony) aggravating factor and the (no disturbance), c(5)(f) e(5)(e)(age), significant treme emotional c(5)(h) (catch-all) history), mitigating criminal factors. The agree sentence, not impose could on whether to a death so the court imprisonment thirty- sentenced Darrian to life with a year parole bar on the murder conviction and to an additional ten years five-year parole disqualifier with a on the sexual assault conviction.

Keith Dickerson cocaine, returning evening free-basing

After home from an Dickerson, old, twenty years who was walked across the street to neighbor’s through home. He entered her home an unlocked door, front and he encountered her the bedroom. She was partially preparing undressed because she was for bed. She yelled punched and cursed at him. He her the face and beat Afterward,

her unconscious. raped He then her. repeatedly- he stomach, throat, stabbed her in the slit strangled her with her, clothing. killing After thirty Dickerson stole dollars from her wallet. ultimately He committing confessed to the crimes. prior

Dickerson had convictions for assault and weapons possession and a parole. violation of long He had a history drug abuse and often smoked free-based and crack in cocaine the six leading up months to the murder. He had underlying impulses, violent and his changed markedly behavior began abusing when he being cocaine. As a result of high on cocaine, experienced Dickerson paranoia and hallucinations. jury murder,

A capital convicted him of aggra- assault, vated robbery, sexual burglary. jury found the e(4)(g) (contemporaneous felony) aggravating rejected factor but c(4)(f) detection) (escape e(5)(a) factor. The found the (extreme disturbance), e(5)(d) (diminished emotional c(5)(c)(age), c(5)(h) (catch-all) capacity), and mitigating jury- factors. The found that aggravating factor did not outweigh mitigating factors. imposed The court a life thirty-year sentence with a parole disqualifier capital on the charge. murder Dickerson’s aggregate plus sentence was life forty-five years’ imprisonment, fifty-two years and one-half parole ineligibility. Joseph Hards

Harris was losing $10,000 bitter over corpus of his invest- ment with Ron company, Ellison’s which in precious invested metals and company coins. The operations year ceased one after Harris money. invested his unsuccessfully Harris tried to recover his initial investment. years losing

Three after money, his sought revenge. Harris Wearing face, a mask that covered his he went to Ellison’s home. Ellison, wife, He handcuffed and blindfolded and his two daughters, who were years seven and nine old. Harris demanded money, and gave Ellison’s wife him raped He then Ellison’s $700. daughters. wife and He unsuccessfully sought money additional again. then went outside toward raped Ellison’s wife Harris Ellison, going to kill him. Ellison’s that Harris was who screamed Ellison, fatally for Harris shot neighbor help. out to a wife called ground fired the shot. probably on the when Harris who was bedroom, attempted return but Ellison’s wife then to Harris prevented Harris from had the door with a dresser and barricaded in crimes implicated not these until getting inside. Harris was later, murdering he was years when arrested three three work, workers, postal he and a former co- with whom used fiancé. worker’s literally began prison his life in because his mother was

Harris birth him. He he gave when she believed incarcerated rejected parents he and his prison because was born cursed years he Harris was convinced he him. When was ten old warrior, and heard of an Indian The voices was a he voices Chief. Ninja replaced by spirit. ultimately and were voices of a subsided Ninja spirit joined Navy because he believed the Harris employed by the him to travel to Asia. United directed When Service, Ninja garb occasionally Postal Harris worked States camouflage diagnosed military outfits. Harris was as a schizoid personality and a severe disorder. with murder, murder, capital aggra- jury convicted' him of A (three (four counts), counts), kidnapping assault vated sexual c(4)(f) jury the burglary, weapons and offense. The found detection) c(4)(g) (contemporaneous felony) aggrava- (escape and c(5)(f) (no history) ting significant and criminal and factors the c(5)(h) (catch-all) jury pro- mitigating rejected The the factors. disturbance) c(5)(a) (extreme c(5)(d) posed the emotional and (diminished mitigating and him capacity) factors sentenced death. 1A IB

Kevin Jackson & Jackson, old, twenty-five years who entered the victim’s her, through attempted rape an but home unlocked door and he rage, not achieve erection. In a fit of he stabbed the could an times, fifty-three including eighteen victim vagina. times in the The died as a victim result of the wounds. After Jackson stabbed her, he stole the victim’s car. public

Jackson had for burgla- convictions intoxication ry. an emotionally impoverished He had background and a problem. abuse diagnosed substance He was with attention defi- cit/hyperactivity disorder, disorder personality and borderline reality which him caused to confuse A fantasy. defense psychologist fiancée, theorized that after death of Jackson’s relationship Jackson created delusional with the victim and that rejection the victim’s of him him temporarily caused to become insane. c(4)(c) guilty pled capital jury

Jackson murder. A found the (torture depravity) c(4)(g) (contemporaneous felony) or and the c(5)(a) (extreme aggravating factors and the emotional distur- bance) e(5)(e) (duress) mitigating jury rejected factors. The e(5)(d) (diminished proposed Jackson’s c(5)(c)(age), capacity), e(5)(f) (no c(5)(h) (catch-all) significant history), criminal miti- gating jury The him factors. sentenced to death.

Finding the factual plea inadequate, basis elicited to be remand, this Court reversed the murder conviction. On Jackson guilty. plead jury did not A convicted him of capital assault, attempted jury sexual and theft. That found c(4)(c) (torture c(5)(d) depravity) aggravating factor and the (diminished c(5)(h) (catch-all) capacity) mitigating factors. c(5)(a) (extreme rejected jury proposed distur- emotional bance), c(5)(e) (duress) e(5)(c)(age), and mitigating factors. The agree sentence, could not on appropriate an court imprisonment thirty-year parole sentenced Jackson to life with a bar for murder conviction. R.

Scott Johnson Johnson, old, twenty-three years who was saw the victim load- ing groceries Though three-year-old into her van. the victim’s her, daughter approached was with Johnson the victim with a grabbed by the hah* and forced her He the victim folding knife. dropped off for hours. then the around two Johnson drive center, day care which had daughter property on of a victim’s raped victim. day. and robbed the closed for the Johnson him, he her identifying stabbed over prevent order her from body drainage thirty dumped and her in a ditch. times him, drug parents his father was a addict Johnson’s abused and drugs, drug also abused includ- who died of a overdose. Johnson cocaine, day of he used on the of the ing and both which heroin damage organic and borderline murder. He suffered from brain him development placed His mental at a intelligence. impaired age twenty-three. chronological of age younger mental far than committing for the crimes. expressed Johnson his remorse (four capital jury A murder convicted Johnson (two counts), assault, counts), kidnapping aggravated sexual rob- (two counts), bery burglary, weapons jury and offenses. The e(4)(f) detection) c(4)(g) (contemporaneous (escape found (diminished c(5)(d) felony) capacity) aggravating factors and the c(5)(h) (catch-all) rejected mitigating jury The factors. phase, At c(5)(c)(age) mitigating penalty factor. could sentence, him the court agree not on Johnson’s sentenced thirty-year parole ineligibility imprisonment period life with a aggregate imposed murder. court an sentence life sixty-five parole plus seventy years’ imprisonment years of with ineligibility.

Benjamin Lodato home, he to the victim’s where had raked leaves

Lodato walked water, let him weeks He asked her for drink of and she earlier. knife, her tore upstairs, in. her forced her He accosted downstairs, off, raped her He then took made clothing her. couch, cord, on bound her with an electrical her he facedown or his her. her with a blunt instrument fist gagged He beat fatally stabbing sixteen stab wounds before and inflicted nonlethal in the her twice heart. murder, Lodato,

At thirty-eight the time this who years was old, parole committing was on a knifepoint series of sexual ages thirty-eight, spent assaults. Between and thirteen fifteen he years prison in or in history institutions because he had sexually assaulting women, threatening and pre- and because he sented a to himself or threat others. mildly moderately

Lodato was to mentally He retarded. never higher I.Q. tested than 69 on an test. He suffered from an organic abnormality brain and dementia. He on functioned the eight- level of an or nine-year-old child. capacity He had little think in terms or consequences abstract conceive of his acts poor and impulses. had control over symptoms anti-social His suggested psychomotor may seizures that him have caused to act violently. guilty

Lodato pled jury murder and sexual A assault. found c(4)(c) (torture depravity) c(4)(g) and (contemporaneous c(5)(a) (extreme felony) aggravating factors and the emotional disturbance) c(5)(d) (diminished and capacity) mitigating factors. c(4)(f) detection) jury rejected (escape aggravating factor c(5)(h) (catch-all) c(5)(c)(age) and the mitigating factors. The jury aggravating mitigating concluded factors were in equipoise. The trial court sentenced Lodato to death. Because aggravating determined that the outweigh factors did not factors, the mitigating this reversed Court sentence death trial remanded for the court imprison- to resentenee Lodato to life thirty-year disqualifier. ment parole with a Michael Prater Eugene

Prater planned Edwards to offer a crack-addicted prostitute drugs exchange They agreed for sex. to kill if necessary. knife,

Armed awith Prater asked the victim if she wanted drugs. agreed She and went with the men inside Edwards’s knife, home. Prater brandished his forced her to remove her clothes, her, raped raped her. While Prater Edwards forced raped then her. mouth times. Edwards penis Ms in her several her, Afterward, began strangling and Edwards Prater stabbed pillow grabbed more He stabbed her three times. her. Prater assistance, and, the victim until she Edwards’s smothered her to the basement where Prater died. Prater and Edwards took that she dead. Mt her the head with tin shears ensure disorderly persons and three prior drug Prater had a conviction convictions. home, where his father emotion-

Prater was reared a violent attempt- mother and ally, sexually and abused Prater’s physically, intelligence, had a rape Prater’s sister. Prater borderline ed judgment, impulsive tendencies. ability limited to exercise and began disorder. He diagnosed He with attention deficit was abusing years started when he was eleven old and to abuse alcohol drugs years later. five (two murder, felony jury capital

A of murder convicted Prater (three counts), counts), theft, a aggravated sexual assault and (contemporaneous jury c(4)(g) The weapons offense. found c(5)(h) (catch-all) mitigating felony) and the aggravating factor (torture c(4)(c) jury rejected depravity) factor. or and The detection) c(4)(f) jury aggravating The not (escape factors. could outweighed aggravating factors the miti- determine whether imprisonment gating The to life factors. court sentenced Prater on Pra- thirty-year parole disqualifier the murder count. with plus twenty years’ imprisonment aggregate sentence was life ter’s forty years parole ineligibility.' with John Reese eveMng drinMng, apart-

After Reese entered the victim’s an placed a Finding asleep, her Reese tied hands and ment. her raped head. her hit her over the head shirt over her He injuries. from her with a claw hammer. She died seventeen times imtially claw After day, The Reese discarded the hammer. next subsequently claiming denymg the murder and involvement aggressor, victim ultimately that the was the Reese confessed to the crime. had no prison

Reese convictions and was model inmate. He was an alcoholic who became abusive toward women when he was intoxicated. murder, jury

A capital aggra- convicted Reese (two counts), kidnapping, restraint, aggra- vated assault criminal (two counts), vated sexual assault burglary, hindering apprehen- sion, c(4)(c) (torture a weapons charge. jury The found the depravity) c(4)(g) (contemporaneous felony) aggravating fac- c(5)(d) (diminished c(5)(h) (catch-all) capacity) tors and the c(4)(f) detection) jury mitigating rejected factors. (escape The aggravating agree factor. The could not on defendant’s imprisonment sentence. The court sentenced him to life with a thirty-year parole disqualifier. Rivera

Rafael Rivera lived relationship next door and had a close victim, a seventy-eight-year-old widow who often cared for Riv- era’s children. The children grandmother. called the victim their visiting While the victim girlfriend, Rivera and his Rivera into apartment money. went victim looked to apartment surprised struggle returned her and Rivera. A many between Rivera and the victim Rivera ensued. struck her face, forearms, ribs, vagina times and back. He tore her his by suffocating either hand or her cane. He killed her her pillow. with a car, prior possessing entry had for a

Rivera convictions stolen steal, receiving weapons with intent to stolen property, possession, disorderly persons history and eleven offenses. He had a of cocaine, abusing marijuana, and and drunk alcohol was seen shortly before the murder. murder, jury capital robbery,

A convicted Rivera e(4)(c) (torture assault, burglary. jury sexual The found the e(4)(g) depravity) (contemporaneous felony) aggravating c(5)(h) (catch-all) (diminished c(5)(d) capacity) and factors and the c(4)(f) detection) rejected (escape aggra- mitigating It factors. jury vating c(5)(c)(age) mitigating factor. The factor and outweighed agree aggravating not on whether the factors could imprison- him to life mitigating factors. The court sentenced thirty-year parole disqualifier the murder and to ment with for a fifty-five-year a aggregate an sentence two life terms with parole ineligibility. period of

Christopher Thomas 2 prison, days after his from entered the

Seven release Thomas heavy shop. He fractured her skull with a thirteen- victim’s tailor injuries. the head inch steel victim died from wrench. rings pocketbook Thomas from and stole from her took items attempted sexually fingers. assault her. He also assault, robbery, aggravated Thomas convictions for had (four (two convictions), convictions), larceny shoplifting and tam- crime, year this pering with an automobile. Over a before he elderly murdered woman. an paranoid schizophrenic auditory

Thomas had was a who prone also visual hallucinations fits of violence. He murder, yearA personality had before this anti-social disorder. Psychiatric an Hospital attempt- he was admitted to Trenton after his mother ed suicide. Thomas never knew his father and was an child, mentally alcoholic. As a Thomas was abused. He had abuse, long history drug and he alcohol for which received years treatment two before the murder. right

Thomas court waived trial. The convicted (two (two counts), capital robbery him of murder assault, counts), attempted and weapons sexual offenses. It found c(4)(g) (contemporaneous felony) aggravating factor and the (extreme c(5)(a) disturbance), c(5)(d) (diminished capaci- emotional c(5)(h) (catch-all) ty), mitigating court factors. The sentenced thirty-year disqualifier imprisonment parole him to life with a the Thomas’s aggregate plus thirty murder. sentence was life years’ imprisonment forty-five-year parole with a bar. Timmendequas Jesse Timmendequas anally Megan Kanka,

Jesse strangled raped victim, who lived him. across street from was seven who old, years Timmendequas’s had walked to neighbor’s next-door in to home order visit a After friend. she learned that her friend home, was Timmendequas not she encountered and asked to see his puppy. go new He told her that she would have to inside his home in to dog. order see the

Timmendequas bedroom, placed led Kanka his to where he his back, shoulders, hands on her and anus. She screamed and tried run, belt, Timmendequas to but corralled her with which his he wrapped Timmendequas tightened around her neck. the belt so escape. the victim could not struggled As she with Timmende- quas, she struck her head on door frame and her face on the Timmendequas dresser. then twisted the belt around victim’s face, neck until lost slapped pulled she consciousness. He her her down, attempted shorts penetrate vagina. her Unable so, Timmendequas do had anal intercourse with unconscious seven-year-old girl.

Timmendequas bags then plastic tied two the victim’s around rugs. toy so not placed head she would bleed on the He her in a transported body County dying chest and her to Mercer Park. He placed finger in vagina body her and then her dumped home, shorts, weeds. He returned ripped victim’s and dis- posed of toy them. He also cleaned the chest with ammonia. day, Timmendequas

Later that the victim’s asked if mother he had seen the victim. He he last saw said her when she was walking following day, Timmendequas friend’s house. The police body park. told that the victim’s occasions, Timmendequas sexually On two had assaulted young girls. history drug and abuse.

Timmendequas had a alcohol addition, replete physical sexual abuse. was and his childhood Timmendequas’s pets in on killed Timmendequas’s father occasion abuse. His reporting him in deter him from the front of order to parents, His who were alcoholics and once broke his arm. mother fought violently with other. He often each promiscuous, were was as educable progress made academic and classified slow injuries from several head mentally retarded. He also suffered motorcycle resulting from car and accidents. murder, felony Timmendequas capital mur-

juryA convicted (two (four counts), kidnapping, aggravated sexual assault der and detection) e(4)(f) counts). jury (escape and found the the felony) c(4)(g) (contemporaneous aggravating factors and the e(5)(d) c(5)(a) (extreme disturbance), (diminished capaci- emotional c(5)(h) (catch-all) ty), mitigating jury factors. The sentenced and Timmendequas to death. 1A

James Williams friends, drinking beer with his brother and some Williams After pushed nursing approached receptionist, He went to a home. room, her closed Williams ordered her into a back and the door. clothes, began off her She to take off her but take clothes. got hit her. forced stopped. angry then Williams and He her screamed, raped and her. After she he covered her floor feet, rose to her mouth and stabbed her. She somehow her in the back. As she was repeatedly dying Williams stabbed wounds, pocketbook. from the stab Williams stole instability and Williams’s childhood was filled with emotional nine, accidentally he he and killed his trauma. When was shot placed younger During youth, Williams was brother. psychiatric inadequate homes received several different foster murder, Williams, Less than two months before intervention. worker, by falling hit head a construction over the cinder markedly changed paranoid block. His behavior and he became injury. after the head (three jury

A convicted Williams of murder counts), robbery, armed jury sexual assault. The (torture c(4)(c) found depravity) c(4)(g) (contemporane- c(5)(h) (catch-all) felony) aggravating ous mitigat- factors and the (extreme ing c(5)(a) jury rejected factor. The proposed disturbance), c(5)(d) (diminished e(5)(c)(age), emotional capaci- ty) mitigating factors. The sentenced to death. Williams After this Court reversed convictions primarily and sentence dire, voir on the of an inadequate jury pled basis guilty Williams murder, to for which received a he life sentence with a thirty-year parole bar.

James Zola 1A

Zola a apartment had been maintenance at worker the victim’s fired, until in part complaint he was of a because that the victim lodged him against regarding poor installation her new apartment kitchen sink. Zola broke into victim’s the and tied her beat, scalded, up; mortally strangled he then and her. addi tion, scientifically sexually there was evidence that had dubious he supra 91-92, assaulted her. See 731 A.2d at 1021. convictions, charges Zola had no had two pending but theft murder, and pending burglary charge. one At the time of purportedly paranoid Zola had a being delusion that he was by police police dogs. chased and He claims he committed the against prevent calling crimes the victim in order her from child, police. When he was a Zola had been sexually abused. He diagnosed emotionally as disturbed addicted and was drugs. jury

A Zola capital burglary, convicted assault, kidnapping, robbery. sexual jury and found the c(4)(c) (torture depravity) c(4)(g) felony) (contemporaneous c(5)(a) (extreme aggravating factors and the distur- emotional bance) c(5)(h) (catch-all) rejected mitigating jury factors. The (diminished c(5)(d) proposed e(5)(c)(age) mitigat- capacity) ing death, factors. The Zola to this sentenced but Court jury instructions of erroneous reversed the sentence because a trial based on phase. granted The trial court new penalty guilty murder and re- pled Zola newly discovered evidence. ineligibili- period parole thirty-year a life sentence with ceived ty. Non-Penalty Trial

B. Cases Subcategory C-l Salient Factors Bolinger Robert fire-escape through victim’s home

Bolinger broke into the attempt- apartment, and he He her return to her window. heard him, saw he being seen. victim ed to leave without When stepped her her chest once. grabbed her. He on attacked shoelaces, gagged hands and feet with He then tied victim’s Afterward, her, money sexually her. took from assaulted he and left. wallet committing crime and Bolinger ultimately confessed to this said step- him of his killed the victim because she reminded he mother, subsequently him. He com- physically who had abused rape. mitted another to alcohol and

Bolinger is a veteran who was addicted Vietnam drugs daily. intoxicated and became murder, murder, felony aggravated charged capital with

He was assault, weapon robbery, burglary, possession of a for sexual felony purpose. pled guilty aggra- He murder and an unlawful Consequently, assault. he avoided a death sentence. vated sexual sentence.) (The specify narrative does not his AOC (torture c(4)(c) depravity) present coded The AOC as felony) aggravating factors and the c(4)(g) (contemporaneous c(5)(f) (no e(5)(d) (diminished significant criminal capacity), histo- c(5)(h) (catch-all) ry), mitigating factors. and the Clowney Sharob old, years raped

Clowney, who nineteen the victim. He left subsequently and chased her with a apartment her returned thirty-nine knife. He then stabbed the victim times. He also children, years stabbed her who were five and nine old. The survived, children but their mother- died from her wounds. Clow- ney returning apartment recalled to the victim’s but had no stabbings. recollection of the

Clowney drug was a drugs dealer and claimed to have sold adult, the victim on numerous occasions. As an he had a simple juvenile assault conviction. He also had an extensive record. alcoholics,

Clowney’s parents were both and his father abused drugs. His attempted diagnosed mother once suicide and was adjustment with depression. disorder and Both his mother and boyfriend physically emotionally Clowney. abused Clow- ney’s mother pet once cooked his hamsters in the oven and on another dog. occasion she forced him to kill his mother, Clowney

Like his was suicidal. He cut tried to old, wrists eighteen years when he was twelve. When he was he finger go hospital. year severed his but refused to to the One later, by drinking he tried to kill getting himself bleach. After jailed murder, committing attempted by bang- this he suicide ing against jail his head walls. arm He also burned his with cigarettes in order to anger. diagnosed alleviate his He was explosive intermittent personality disorder and borderline disor- der with anti-social drinking features. He had been beer since he years whiskey, marijuana, was eleven old. He also drank smoked and used cocaine. prosecute Clowney capitally.

The State did not A convict- murder, (two counts), him attempted ed murder assault, weapons sexual offenses. The court imprisonment sentenced him to life thirty-year parole with a bar aggregate for the imprisonment murder. His sentence was life plus twenty years’ imprisonment forty-year parole disquali- with a fies c(4)(b) (grave to present coded as risk of death

The AOC another) felony) c(4)(g) aggravating factors (contemporaneous (diminished c(5)(h) c(5)(d) c(5)(c)(age), capacity), and (catch-all) mitigating factors.

David Collins victim, mother, girlfriend’s angry at because

Collins was permit girlfriend’s baby. He waited to him to see his she’refused home, apartment an hour. When returned in the victim’s she her, leg, dragged with a stabbed hér to the he beat her table her, water, bathtub, hallway, raped placed in the filled it died of skull. and left. She a fractured offense, Collins, twenty-one incarcerated for this who was While old, years health This his first received mental treatment. was conviction. factors, aggravating notice of Collins

After State served a murder, guilty robbery, burglary, aggravated sexual as- pled sault, possession weapon purpose, of a for an unlawful and hinder- ing apprehension prosecution. or For the the court parole imprisonment thirty-year him to with a sentenced life twenty years’ disqualifier. aggregate plus His sentence was life forty-year parole with a imprisonment bar. (torture c(4)(c) present depravity) as

The AOC coded (contemporaneous felony) aggravating and the c(4)(g) factors (no c(5)(f) c(5)(h) history), criminal c(5)(c)(age), significant (catch-all) mitigating factors. Dennis 1

Jerome Dennis, old, twenty-five years who was encountered a fourteen- walking year-old girl knifepoint down the street. He forced her at go along the bushes side of the He stabbed her road. times, sweatshirt, her, twenty-four raped up tied her with a twigs. body dead found four covered her with leaves and Her months later. convictions, prior

Dennis had three sexual assault two convictions, criminal prior robbery restraint and one conviction. paroled He had been only from Yardville State Prison two weeks before this incident. In a period, four-month he committed this and four other homicides. murder, charged

Dennis pled guilty felony was with but he murder, for which he a thirty-year received life sentence with a parole disqualifier.

The present c(4)(g) AOC coded as (contemporaneous felony) c(5)(h) (catch-all) aggravating factor and mitigating factor. Jerome Dennis 2 raping

Six weeks after murdering fourteen-year-old girl described in thirty-year-old Jerome Dennis Dennis followed a woman who walking knifepoint, on the At street. he forced undress, stairway, her down a up made her tied her with shoe- strings, raped her. He then stabbed her ten times and hill, pushed body her down a was found four months where later. charged Simultaneously

The State Dennis with murder. with homicide, plea guilty pled guilty felony to the first Dennis murder for this homicide and received a life with a sentence thirty-year parole disqualifier. present c(4)(g) (contemporaneous felony)

The AOC coded as e(5)(h) (catch-rail) factors. Isaac Fullard sexually

Fullard assaulted and stabbed his sister’s best friend. She died from the seven puncture stab wounds. Fullard had a leg, presumably wound on his by struggle which was caused the victim. prior robbery aggravated

Fullard had assault convictions. ailments, history He had no mental but he did have narcotics abuse. noncapitally. juryA convicted prosecuted Fullard State murder, attempted sexual as-

him of sault, purpose. The possession weapon for an unlawful of a imprisonment, seventy years’ him of which sentenced court thirty parole ineligible. were felony) c(4)(g) (contemporaneous present coded as

The AOC c(5)(h) (catch-all) mitigating factor. aggravating factor and the Henderson James

Henderson, years old, Gary- twenty-seven Lippen, and who was old, years driving pickup in truck Lippen’s who was nineteen were victim, seventeen-year-old they acquaintance. the when saw their ride, accepted they their a and her to her She offer for drove house, in truck they The three her and left the home. entered shortly Lippen, thereafter. The victim sat between who bought driving, and Henderson. Henderson a two-liter bottle cooler, Lippen from drove wine which the three drank while aimlessly. a remote Lippen stopped around then drove to at wooden area. refused, asked the victim’s

Henderson to see breasts. She a harassing complied him to her. Lippen stop told Henderson began her shirt. minute and then threw her down and to tear her Henderson Lippen then fondled her and held down while raped Lippen may raped her. have her. also the a Lippen

Henderson and both struck victim with stick. began choking Lippen then her with hands. Henderson stick, the handed Henderson the which Henderson stuck into stick, put throat. his hand on and the two Lippen victim’s the her men crushed the victim’s throat. Henderson then stabbed chest, area, neck, in many genital times back. Henderson dragged up legs hill and in a tree. Lippen her hoisted her tree, legs breaking twisted around the them. Henderson pocketbook it put the victim’s and filled Henderson knife They pocketbook with sand. a lake. The victim’s discarded body dead was found three months later.

Henderson had drug possession. one conviction for He illness, history was illiterate and had a of mental for which he (The received treatment. specific AÓC does not delineate the diagnosis.) probation recognized His officer that Henderson was emotionally disturbed. pled guilty

Henderson hindering murder and two counts of apprehension. For the the court sentenced Henderson to imprisonment life thirty-year parole disqualifier. with a The court imposed five-year prison consecutive term with a two-and-one- half-year parole hindering apprehension bar for the convictions. c(4)(c) (torture present

The AOC coded as depravity) c(4)(g) (contemporaneous felony) aggravating factors and the c(5)(d) (diminished e(5)(h) (catch-all) capacity) and the mitigating factors.

Gary Lippen

Lippen seventeen-year-old murdered the victim with codefend-- ant James Lippen participated Henderson. claims he in the murder because he feared kill Lippen Henderson would him if refused to commit the crimes. The details of the crime are set summary forth in prosecution. of Henderson’s Infra 731 A.2d at 1046.

Lippen prior had no history convictions. He also had no alcohol, Lippen mental marijuana, illness. abused and metham- phetamines. found, body After the victim’s was he was remorse- ful.

Lippen murder, charged pled guilty aggra- but he manslaughter, vated hindering apprehension, conspiracy. The court thirty years’ imprisonment sentenced him to on the aggravated manslaughter years’ imprisonment conviction and five years’ parole with two and one-half ineligibility on hindering apprehension aggravated manslaughter conviction. The sentence was subsequently twenty reduced to years’ imprisonment awith ten-year parole disqualifier. e(4)(c) (torture depravity) present the coded as AOC felony) aggravating factors and the c(4)(g) (contemporaneous c(5)(f) c(5)(e) (duress), c(5)(d) (diminished capacity),

c(5)(c)(age), c(5)(h) (catch-all) (no mitigat- history), and the significant criminal ing factors.

Morey Marcus They together and went at a drank met the victim bar.

Marcus closed, and the victim left that bar Marcus to another bar. When her, rape and he stabbed attempted to in his van. Marcus then from her stab wounds. times. The victim died her eleven mail, assault, obstructing the prior had convictions Marcus' obtaining a due from money pretenses, false debt obtaining under an conspiracy engage in a theft of government, and the federal shipment. interstate combat, by he was wounded veteran.

Marcus was Vietnam receiving discharge, he was institu- shrapnel. After an honorable post-traumatic stress disorder. tionalized for a month with noncapitally. A convicted prosecuted Marcus The State murder, aggravated sexual attempted him of imprisonment him life with a court sentenced assault. The and to a consecutive thirty-year disqualifier for the murder parole attempted aggravated sexual assault. ten-year term for the felony) c(4)(g) (contemporaneous present the The AOC coded as c(5)(h) e(5)(d) (diminished capacity) and aggravating factor and (catch-all) mitigating factors.

Frank Masini 1 purport- home eighty-five-year-old aunt’s stopped

Masini at his washing glass out a soda edly telephone. While to use her sink, repeatedly stabbed his aunt he saw a knife. He kitchen neck, anally raped her. killing vaginally also her. He of four history, but this was one had no criminal Masini elderly people in a short against stabbings fatal he committed timeframe. the months before this Masini claimed experienced reality. that he detachments from pled guilty Masini to murder and received a life sentence with a thirty-year period ineligibility. parole present c(4)(g) (contemporaneous felony)

The AOC coded as (diminished e(5)(d) c(5)(h) aggravating capacity) factor and the (catch-all) mitigating factors.

Frank Masini S aunt, killing

Two weeks after Masini was at home of an kitchen, eighty-year-old talking relative. After with her in the he counter, grabbed grabbed a knife from the kitchen the victim from behind, neck, her, repeatedly sexually stabbed her iri the assaulted ring. and stole her The victim died from the stab wounds'. pled guilty Masini to this murder and received another life bar, thirty-year parole concurrently sentence and which ran to the killing sentence he received for his aunt and to the consecutive life murdering elderly couple. he an sentences received present c(4)(g) (contemporaneous felony) AOC coded as c(5)(d) (diminished c(5)(h) aggravating capacity) factor and the (catch-all) mitigating factors. Mincey

Samuel victim, Mincey seventy- broke into the home of who was her, years severely, raped strangled three old. He beat her Mincey her. He stole two oriental dolls and a television set. years arrested six and one-half later.

‘Mincey assault, had sixteen convictions for theft, battery, burglary, receiving proper- assault and auto stolen ty, escape. prosecute Mincey capitally, perhaps

The State did not because prosecutor believed that the statute of limitations barred a capital prosecution. Mincey A convicted murder and him imprisonment murder. The court sentenced to life thirty-year parole disqualifier. with a (torture c(4)(c) depravity), or present coded as the The AOC c(4)(f) detection), felony) c(4)(g) (contemporaneous (escape and c(5)(h) (catch-all) mitigating factor. aggravating factors and the Michael Relford victim, sexually who had attempted to assault

Relford Relford, of neighbor, top on of her. Because awoken to find her victim decided not friendship grandmother, with Relford’s her prosecution against a Relford. pursue later, Despite fact that the years Relford returned. Two kill help pled with Relford not to hurt or victim screamed for and neck, her, face, fatally grabbed in the her and punched he shoulder, back, neck, twenty-five and stabbed her times clothing from the waist down. chest. He also removed her prior disorderly person had convictions. The AOC Relford age. history drug a and summary does not reveal his He had whiskey, pint alcohol abuse and claimed have imbibed used heroin and cocaine in the hours to the murder. noncapitally. juryA prosecuted Relford convicted State assault, murder, felony attempted him sexual and a weapons imprisonment The court sentenced him to life offense. thirty-year parole disqualifier for the murder and to an with a years’ imprisonment for sexual assault. additional seven c(4)(c) (torture present depravity) The AOC coded as c(4)(g) (contemporaneous felony) aggravating factors and the (diminished e(5)(f) (no c(5)(d) significant “c(5)(c)(age), capacity), c(5)(h) (catch-all) history), mitigating factors. criminal Frederick Ritchie fun, victim,

Promising Ritchie enticed the a twelve- drinks and year-old boy, parents’ to sneak out of his house. Ritchie and the victim to Ritchie’s trailer. Ritchie offered the victim alcohol- went beverages got him the victim removed ic drunk. Ritchie and perusing pornographic magazines, Ritchie their clothes. While into masturbated and inserted one dildo into anus and another the victim’s.

Afterward, severely injured his Ritchie the victim head twice. victim, staggering stupor, claimed that the a drunken struck his washing following morning, on Ritchie’s machine. The Rit- head blanket, victim, wrapped nearby chie in a to a took the creek at into a wooded area. Ritchie maintained the victim walked head, tree, struck his and fell backward. Ritchie fled. The victim later in a victim found naked facedown creek. The died injuries. drowning from and Ritchie his and head cleaned trailer dildos, blanket, clothing. discarded and the victim’s He committing being to this confessed crime after arrested for sexual- ly assaulting seven-year-old boy. burglary,

Ritchie had convictions for lewd and lascivious children, against exposure, proposal crimes indecent and indecent Army diagnosed to a child. He was an veteran was with and disease. He an alcoholic Crohn’s was who had received treatment past. for alcohol abuse murder, charged pled guilty

The State Ritchie with but Ritchie (two- aggravated manslaughter, aggravated sexual assault counts), assault, attempted aggravated kidnapping, sexual hindering apprehension. thirty years’ The court him sentenced imprisonment, years parole ineligible, of which eleven were for the aggravated manslaughter imposed ag- conviction. The court an gregate plus thirty years’ imprisonment sentence of life with a thirty-seven-year parole disqualifier. c(4)(f) detection) present (escape

The AOC coded as c(4)(g) (contemporaneous felony) aggravating factors and the c(5)(d) (diminished c(5)(h) (catch-all) capacity) mitigating fac- tors. .

Leroy Taylor

Taylor got angry girlfriend when his told him that she was previously to kill involved with another man. He had threatened “put if him someone she ever down.” he went keys girlfriend’s apartment, and Taylor had the to his paramour. girlfriend was out with her apartment that while his thirteen-year-old strangled girlfriend’s niece. Taylor raped and victim, pants were removed Taylor’s girlfriend found the whose bloodstained, lying floor of the on the panties were torn master bedroom. police-that he to her that he

Taylor’s girlfriend told admitted victim. She later retracted raped had and murdered the statement. during wearing

Taylor gave police the clothes he had been sought prosecutor’s office of the crimes. When the commission samples, Taylor hair fled to California. his blood and murdering four-year- Taylor previously had convicted of been strangled. he had Because the victim’s girl old California who body badly decomposed, impossible it was to determine had sexually her. Taylor whether had assaulted girl- parole raped and murdered his Taylor was on when he serviceman. He airport niece. He was an maintenance friend’s school, He dropped high out of but he earned his G.E.D. had any history drug or alcohol abuse. denied murder, aggra- Taylor charged capital (three counts), threatening, hindering prose- sexual assault vated cution, pled guilty tampering with a witness. He and assault, murder, first-degree aggravated and witness tam- sexual thirty- a pering. Taylor imprisonment to life with was sentenced year disqualifier felony murder conviction. The parole on the felony) c(4)(g) (contemporaneous aggra- present AOC coded as (catch-all) vating c(5)(g) mitigating and the factor. factor Alphonso Timpson old, years approached a twelve-

Timpson, who was nineteen He forced her year-old girl walking as she was home from school. back, fought Timpson assaulted her. She and into the woods and penetrated severely knocked her unconscious. He beat her and vagina fingers penis. nearly off her her with his and He also bit regained The victim screamed when she consciousness. breast. throat, panties in she and died. He stuffed her suffocated sexually gasping dying, As she was for breath and he continued to assault her.

Timpson initially killing ultimately the victim con- denied but kidnapping, rape, fessed to the and murder. He blamed the friend, killing arguments parents, on a series of with his girlfriend, ex-girlfriend’s former and his brother.

Timpson developmental had severe disabilities and was border- nineteen, mentally age line retarded. At when he committed this crime, development twelve-year-old. mental of a he had the As student, violently angry. he acted when he became frustrated or diagnosed being highly impulsive He was as and unable exhibit Moreover, emotional control. he had a low frustration tolerance responded quick to stress with and uncontrollable behavior. marijuana cigarettes He smoked two and drank two cases of beer day. juvenile, girl each As a he had attacked a under circum- stances similar to those this offense.

Timpson pled guilty capital sexual as- sault, upon kidnapping. plea was conditioned the trial sentencing imprisonment penalty hearing. him court to life after plea agreement, court accordance with the terms of the Timpson imprisonment sentenced to life for the murder. The c(4)(c) (torture present depravity) c(4)(g) court found as c(5)(a) (ex- felony) aggravating (contemporaneous factors c(5)(d) (diminished disturbance), c(5)(c)(age), treme emotional ca- c(5)(h) (catch-all) mitigating pacity), and factors. The court found mitigating outweighed aggravating factors factors and that the imprisonment plus fifty imposed aggregate an sentence life years’ imprisonment fifty-five-year parole disqualifier. a IB James Williams friends, drinking

After beer with his brother and some Williams nursing approached receptionist, pushed went to a home. He room, ordered her and closed the door. Williams her into a back began off her clothes but then clothes. She to take to take off her forced her to the got angry and hit her. He stopped. Williams screamed, he covered her mouth raped her. After she floor and feet, rose to her and Williams her. She somehow and stabbed dying was from her in the back. As she repeatedly then stabbed wounds, poeketbook. her Williams stole stab instability and emotional childhood was filled with Williams’s nine, accidentally his was he shot and killed trauma. When he many During youth, placed younger brother. Williams inadequate psychiatric inter- different foster homes and received murder, Williams, a vention. Less than two months before worker, by falling cinder was hit over the head construction markedly changed, paranoid and he became block. His behavior injured after he his head. (three murder, felony murder

juryA convicted Williams counts), robbery, burglary, sexual assault. armed (torture e(4)(c) c(4)(g) jury depravity) found the c(5)(h) felony) (contemporaneous aggravating factors and the (catch-all) rejected mitigating jury proposed factor. The c(5)(d) c(5)(a) (extreme disturbance), c(5)(c)(age), and emotional (diminished capacity) mitigating factors. The sentenced After reversed the convictions and Williams to death. this Court sentence, pled guilty to for which he Williams thirty-year parole with a bar. received life sentence Lester Wilson fourteen-year-old victim resided in the same hotel as the

Wilson spent time in her hotel room. The victim’s sister often strangled sexually rebuffed sexual advances. Wilson Wilson’s victim, covering pillow who was found with a assaulted brought questioning, in for unsuccess- face. After he was Wilson police by jumping fully attempted escape from the station killing through a window. He confessed to the victim bathroom hospital. waiting transport while for an ambulance to him to the prior had convictions. mildly He no Wilson was retarded. juryA prosecute capitally. convicted The not Wilson State did The court sen- aggravated sexual assault. him of murder and years thirty parole imprisonment to life tenced him fifteen-year prison to a concurrent ineligibility for the murder and assault. term for the sexual detection) c(4)(f) present (escape and The as AOC coded felony) aggravating factors and e(4)(g) (contemporaneous c(5)(f) (no c(5)(d) (diminished criminal histo- capacity), significant (catch-all) c(5)(h) ry), mitigating and factors. IB

James Zola apartment worker at the victim’s Zola a maintenance had been fired, complaint part against until he because of the victim’s was Zola new kitchen sink. regarding poor him installation her her, her, and up, her scalded apartment, into her tied beat broke addition, some evidence mortally strangled there was her. her. See ante sexually may indicating that he have assaulted 73-75, A.2d at 1010. convictions, two pending burglary and

Zola no but one had purport- time of Zola charges. At the pending theft by police being he chased edly delusion that was paranoid had a against crimes dogs. He he committed the police and claims police. he calling from When prevent victim in order emotionally child, sexually He was Zola had abused. was been drugs. disturbed and addicted to murder, burglary, aggravated capital juryA convicted Zola of jury assault, The found the robbery. kidnapping, sexual (torture c(4)(e) felony) c(4)(g) (contemporaneous depravity) c(5)(a) (extreme distur- emotional aggravating factors and the bance) (catch-all) c(5)(h) rejected mitigating jury The factors. c(5)(d) (diminished capacity) mitigat- c(5)(c)(age) proposed death, but this Court ing The Zola to factors. sentenced granted a new trial based trial court the sentence. The reversed guilty to murder pled Zola newly on discovered evidence. received a thirty-year period parole life sentence with a ineligi- bility. Subcategory

Salientr-Factors C-2 Vincent Brown victim, ten-year-old girl, went to the motel room where aunt,

Brown had lived with the girl- victim’s who Brown’s day, friend. girlfriend Earlier that Brown and his had had an argument, Afterward, and she moved out. Brown drank vodka throughout and day. victim, used cocaine the invited the Brown into, who did longer Brown, not know that her aunt no with lived his room. get top He forced her to on pulled of the bed and down pants her panties. placed and Brown penis against vagina, her but the victim cried and resisted him. Brown then lifted himself off of her and masturbated while the victim next to sat him. After room, they left the hotel the victim away ran from Brown and said going she was tell to her mother the about sexual assault. eventually Brown ran caught up after and her. strangled to He the began victim until foaming she mouth the two to three her, minutes go later. he let ground. When she fell to the Brown away. left the victim in a ditch and ran After initially murder, implicating a the ultimately friend in Brown to confessed sexually assaulting murdering and the victim. Brown robbery, aggravated assault, had convictions for -

simple assault, resisting child, and arrest. he When was a stepfather Brown’s raped abused and him. At the time of the murder, Brown every day, used alcohol and cocaine and he had past. used heroin and LSD the a Brown was reservist in the Army. jail inWhile his arrest after for-the Brown became experienced suicidal and psychi- hallucinations. He was sent to a hospital, stayed atric where he for three and one-half months’ and diagnosed suffering was major as from depression psychotic features. The court declared him incompetent to stand trial. assault. eventually pled guilty murder and sexual

Brown thirty-year imprisonment him with a sentenced to life The court ten-year murder conviction and to consecutive parole bar the ineligibility for sexual assault years parole the term with five conviction. c(4)(f) present (escape apprehension) and

The AOC as coded felony) aggravating factors and c(4)(g) (contemporaneous (catch-all) (diminished c(5)(h) c(5)(d) mitigating capacity) fac- and tors.

Ralph Edwards old, along

Edwards, years walking rail- eighteen who was victim, nine-year-old was on the he saw the who road tracks when station, walk inside the station. platform of an abandoned railroad He to observe her. asked went inside station house Edwards was in the him on a mattress that station. her to sit with attempted her on her exposed put himself to her and Edwards The kneed him in penetrate her. anus. victim stomach so he could away. plastic her used a groin ran Edwards chased yanked strap, strap he had her. Edwards found restrain strangulation, Dying wrapped which was around her neck. from ground hit head. lifted her victim fell to the her Edwards He railings. track retrieved sheet placed her between two body with the sheet. the mattress covered from body hours later. After Edwards was was discovered victim’s tracks, boy he raping young a near railroad apprehended for committing murder this victim. to the of confessed history a of He had mental Edwards had no convictions. problems functioned on the emotional level psychological and and nine-year-old. of a and jury purposeful of murder convicted acquitted

A Edwards attempted aggravated sexual assault. of murder and him (con- c(4)(f) c(4)(g) (escape jury apprehension) the The found felony) c(5)(e)(age), and the temporaneous aggravating factors c(5)(f) (no (diminished c(5)(d) significant capacity), criminal histo- c(5)(h) (catch-all) ry), mitigating rejected jury factors. The (torture c(4)(c) depravity) aggravating the factor. The aggravating outweigh determined the factors did not the mitigating factors. The court imprison- sentenced Edwards to life thirty-year ment a parole disqualifier with on the convic- murder ten-year tion a and to years parole consecutive term five ineligibility attempted the sexual assault convic- tion.

Ambrose Harris co-defendant, Dunn, and his

Harris a Gloria met at street robbery they corner commit to a planning had been for several Harris, revolver, carrying weeks. who carjack was a decided to robbery. car to in the victim, use Harris and Dunn observed the female, twenty-two-year-old sports drive a nearby red ear into a driveway. Harris left and returned minutes driving later the car holding passenger revolver. The victim in the seat.

Dunn entered the ear and Harris drove to a secluded area. He forced the victim into trunk and then drove back to the scene carjacking of the bicycle, retrieve hide his which had he left trunk, behind. When victim made noise from inside the “See, Dunn, then, Harris stated to I popped should have her back making she’s too much noise.”

Harris back drove to the secluded get area made the victim out of the trunk and remove her reluctantly clothes. victim complied, victim, and Harris raping sodomized her. After put Harris her back in the trunk and closed the He hood. told Dunn, had rape, help who witnessed the get the victim out of trunk, the trunk. As Dunn helped the victim out Harris shot the victim the back the head. Harris dragged then to a area wooded and covered her with a mattress.

Harris and Dunn drove to Harris’s house retrieve shovels two' bury body. they order to the victim’s When returned to where they body, had left Harris shot the victim in the face to “make identification, money, the Harris took victim’s

sure she’s dead.” cards, body. the and he and Dunn buried and credit murder, years and forty old lived the Harris was At the time of father was mother, had for murder. His who a conviction with when was three heavy had the household Harris a drinker and left juvenile, he childhood. As a years old. Harris had an abusive Consequently, girls. extremely molested several violent and was Hospital a Psychiatric for number committed to State he was of months. He history drug alcohol was abuse.

Harris had a He an extensive mild retardation. had diagnosed with mental robbery, record, aggra- having of armed been convicted criminal offenses, assault, attempted robbery, weapons terroristic vated threats, larceny, breaking entering, receiving property, stolen assault, shoplifting. murder, capital jury Harris of

A convicted assault, of a robbery, aggravated possession sexual kidnapping, taking, by unlawful credit purpose, unlawful theft weapon an theft, jury The attempted a card. unlawful use of credit card detection) c(4)(f) c(4)(g) (contemporaneous (escape found (catch-all) c(5)(h) mitigating aggravating and the felony) factors aggravating unanimously also found factor. factors, and Harris was sen- outweighed mitigating factors remaining On the for the murder conviction. to death tenced convictions, aggregate an term Harris to the court sentenced fifty-two and one-half fifty-five years’ imprisonment, with plus life ineligibility. years’ parole Luciana

Mark evening old, party Luciana, an twenty-years attended who friends, fifteen-year- twelve-year-old girl, and the two male a.m., group party left approximately 12:30 victim. At old into the Luciana walked nearby wooded area. and headed for the victim and sexually assaulted with the victim. He woods body left the victim’s strangled Luciana her with brassiere. rejoined others, telling and the them that the victim left him for a pretended moment but not did return. Luciana then to look for later, the victim. he Of Sometime drove one his male friends home dropped twelve-year-old girl and the at off the victim’s home. Luciana and his other male friend returned to the wooded area and body. put retrieved the body victim’s Luciana the victim’s into the early trunk the car. When friend his awoke in the morning, body. Luciana showed him the victim’s Luciana’s friend murder, police informed about the and Luciana turned himself in police headquarters days ex-girlfriend two later. Luciana’s provided indicating a statement that Luciana would become vio- drinking being jail lent after and refused sex. Lueiana’s cellmate police told that Luciana him give told that “the bitch wouldn’t it up, breathing,” so now she’s not enjoys inflicting and that he pain partners during on his sexual encounters. dropped high

Luciana out of completing school after ninth grade, but he later his received G.E.D. and attended classes at a community college. murder, At the time of the Luciana was employed stepfather’s paving his business. There was evidence drug Luciana had both an problem alcohol and and that he physical suffered and emotional abuse a child. as Luciana stated empathy that he feels little year those around him. the murder, prior to the Luciana was of drug possession convicted receiving property. stolen charged murder,

Luciana purposeful murder, was with knowing felony murder, aggravated assault, sexual hindering apprehension, endangering trial, capital welfare In a child. Luciana guilty was found of all counts. At penalty phase, Luciana life, jury spare asked the saying that although he could not did, thing truly undo terrible sorry he he was and did not mean to kill psychologist the victim. A defense suggested that Luciana had personality an anti-social disorder as a of being result neglected as a child. psychologist The also testified that Luciana very that, was night immature and on Luciana’s marijuana. jury The found two by was alcohol and mind clouded detention) 4(f) 4(g) (contempora- (escape aggravating factors — 5(d) (mental 5(e)(age), mitigating felony) four neous factors — —and 5(h) (catch-all). disease), 5(f) (criminal history), regarding weighing of the factors. to reach decision unable years’ thirty imprisonment, to life was sentenced Luciana term of sentenced a consecutive ineligibility. He was parole hindering years’ imprisonment for sexual assault nineteen apprehension.

Michael Manfredonia walking fourteen-year-old victim was the

Michael Manfredonia’s and after high school home distance between her three-mile victim, to the Man- having missed the school bus. Unbeknownst As nearby gas station. the watching her from a fredonia was ground, pushed her down on the passed, Manfredonia victim twenty-six in the her times sexually her and stabbed assaulted twenty-six stab wounds did and area. Fifteen of the chest back body apparently and were deeply into the victim’s penetrate not fashion. Manfredonia then pain in a torture-like inflicted to cause woods, her in a dropped body through victim’s the dragged the dirt, and sticks. body pile with a of rocks and covered her ditch murder, police at'Manfre- the arrived days after when Two the him, in the they discovered Manfredonia home to arrest donia’s trying to slit his wrists. Manfredonia a razor blade bathroom with the and' pills. taken ambulance police the he also had some told assaulting and stab- hospital, admitted again at the Manfredonia bing the victim. Manfredonia, that, according he had to psychiatrist

A testified him. The go out with to the victim and asked talking been making fun at Manfredonia and began yelling and victim refused told victim to Manfredonia the way he looked and dressed. of returned, knife When he from car. wait while he retrieved being like fun of and threatened he didn’t made he told the victim like a little replied acting that was kill The victim he himself. kid not and she did care what he did. Manfredonia remem- down, pushing bered victim killing but he did not remember psychiatrist her. The also testified that Manfredonia’s electroen- cephalogram suggested possible abnormality structural in his brain.

Manfredonia, murder, who was nineteen of time is I.Q. mentally retarded with an 78. He had no criminal record. right

Manfredonia guilt waived his to a trial at both the penalty phases. trial The court convicted Manfredonia of murder, murder, felony assault, aggravated sexual kidnapping, possession weapon of a purpose. an unlawful judge The c(4)(c) (extreme e(4)(f) suffering), found the (escaping apprehen- sion), e(4)(g) (contemporaneous felony) factors, aggravating e(4)(f) factor, but c(4)(g) single treated as a finding them be overlapping intertwined factors with judge The motives. found (emotional c(5)(a) c(5)(c) defendant) disturbance), (age e(5)(f) (no record), significant prior criminal mitigating as factors. judge The mitigating outweighed found that the factors aggra- vating factors. For the the court sentenced Manfredonia imprisonment to life thirty-year period parole ineligibili- with a ty. murder merged with the murder count for purposes counts, of sentencing. remaining On the the court thirty years’ imprisonment sentenced Manfredonia to a fif- teen-year parole ineligibility period kidnapping, twenty for the years’ imprisonment ten-year period ineligibility a parole of assault, for the sexual both to sentences run consecu- tively imprisonment. with the of term life Vincent Charles Marino

Marino, thirty-two years old, spent the at afternoon the home of victim, the a twenty-three-year-old who lived with her woman boyfriend foúr-year-old Throughout afternoon, their son. the Marino smoked crack cocaine with people, including several the victim. Eventually, crack; Marino left with the last vial of Marino to lure hoped to the last vial crack police told that he use

later a his house for sexual encounter. the victim to friend, up a and Marino met with The victim went to a bar with evening. The victim left the bar with two later that the women and the victim went to his home. After Marino Marino and crack, brought her home. the victim’s friend smoked the vial boyfriend going was night, that victim told her that she Later the not return. for a few minutes. victim did out by basement. body police in Marino’s The victim’s was found Marino, weighed pounds, a feet made who stood six tall the that he smoked crack with formal statement in which he stated the pretense the on and then lured into basement victim sexual ad- there. Marino made additional cocaine was hidden victim, rejected his advances. Marino but she vances toward lingerie, engaged in sexual strangled her with her then victim. intercourse with the thirty sentenced to guilty murder and was pled

Marino At time of the years’ imprisonment parole. without a past, he had attended to crack. Marino was addicted meetings. Anonymous He program Alcoholics health mental n burglary. assault and prior convictions of sexual had Marrero Adam old,

Marrero, twenty-three years his uncle to a accompanied victim, thirty-four- to the home where he was introduced friend’s Marrero, left year-old evening, Later that the victim with woman. and the victim were had her home. Marrero who offered drive they a few drinks and where had seen at a local restaurant bartender, and the left According to the Marrero danced. victim later, the victim a.m. Twelve hours the restaurant about 1:30 investigation, preliminary Marrero reported missing. After jail safety public, pursuant county was held a court order. reported miss- forty-eight hours after she had been

Less than approximately area body was found in a wooded ing, the victim’s seventy yards from the body road. The victim was naked and her partially decomposed, positively through but she was identified autopsy dental records. An indicated that cause of death was strangulation. Although it not could be determined whether sexually assaulted, victim had been semen was found on the clothing. victim’s county jail

Marrero’s cellmate at the police told that he had a conversation with Marrero in which Marrero claimed that he went out with the victim for a stopped few drinks and to have sex on way “grabbed” home. Marrero victim she after smacked him. Eventually Marrero realized that the victim stopped had breath- (cid:127) ing. grew up

Marrero with an abusive alcoholic father and was regularly. beaten high He is a dropout. school Marrero claimed arrest, to his drinking he was two to three eight-packs week, smoking a marijuana beer week, once or twice a using a cocaine once week. Marrero had worked as a carnival

worker, employee, laborer, diner security farm guard. Mar- previous rero had a conviction of sexual assault and terroristic murder, threats. At the time of the awaiting he was on bail sentencing. charged

Marrero purposeful murder, was with felony kidnapping, aggravated assault, sexual assault, and sexual a guilty found Marrero of all except counts sexual assault. terms, Marrero was sentenced to two thirty concurrent life years’ parole ineligibility, for purposeful murder and mur- (cid:127) He der. also received a consecutive of twenty years’ sentence imprisonment kidnapping for a twenty concurrent sentence of years sexual assault.

Jerry Spraggins Jerome

Jerry Spraggins Jerome driving home from work when he an apartment noticed with the up. window shade He removed screen and through climbed victim, the window. sixty- woman, eight-year-old was lying on the Spraggins couch. put a and prevent screaming her from pillow over the victim’s face a pocketbook and sexually her. He took the victim’s assaulted autopsy later leaving through the window. An gold chain before strangled. the was smothered and confirmed that victim arrested, the sexual Spraggins confessed to he was When face, placing pillow the the victim’s but He admitted over assault. was when he he unaware that the victim dead claimed that was any posses- taking of the victim’s apartment. He denied left the eventually the murders of two Spraggins linked to sions. was building. apartment women in the same other privacy, larceny, prior for invasion of had convictions Spraggins contact; exposure. and indecent trespass, criminal criminal sexual counseling” past. the undergone had “minimal mental health He burglary, aggravated sexual jury Spraggins of A convicted assault, felony knowing murder purposeful and homicides. At the acquitted of the other two victim. He was trial, from psychiatrist Spraggins that suffered penalty a testified e(4)(f) to view women. The found an uncontrollable need detection) (contemporaneous felony) aggrava- c(4)(g) (escape c(5)(f) (no c(5)(d) (diminished capacity) and ting factors and the history) jury rejected mitigating factors. The significant criminal c(4)(c) (torture aggravating and the depravity) factor (catch-all) e(5)(h) Spraggins c(5)(c)(age) mitigating factors. disqualifier parole thirty-year to a life term with a was sentenced conviction, twenty-year a term with a consecutive on the murder assault, and sexual ten-year parole disqualifier for The murder ten-year burglary. a term for the concurrent charge. charge merged with the murder was Gerald Williams apartment employed in the victim’s had been

Gerald Williams fired, he After he was building approximately four months. building. in the apartments and stairwells began living in vacant woman, in her victim, found dead fifty-nine-year-old right ankle floor wrist and lying naked on the with her apartment, rope. autopsy tied with a An revealed that the victim had been strangled assaulted, sexually anally, vaginally both with a body small white vase thumbprint and a bottle of oil. Williams’s bottle, yellow on the was found and a sock on with semen it was found at crime gene scene. Williams had an unusual samples matched semen taken from sock.

Williams had robbery. convictions of assault and He had history depression using and had been cocaine and alcohol daily years. for fifteen He graduated high had from school and years college, Navy attended two had served in the until he was honorably discharged, recently and had employed been most as a maintenance worker. charged burglary,

Williams was with aggravated two counts of assault, restraint, murder, sexual criminal unlawful possession a weapon, possession weapon of a for an unlawful purpose; by jury he was on convicted all counts. He life, was to thirty years’ parole sentenced with ineligibility, for the murder following conviction and received the consecutive sen- years’ imprisonment tences: ten burglary; twenty years’ for imprisonment assault; for each count of sexual five years’ imprisonment restraint; years’ for criminal impris- and five onment for weapons charges conviction. The balance of the merged for sentencing purposes. were Subcategory

Salientr-Factors C-3 Brockington Founcill twelve-year-old

The son the victim by was awakened what he believed was someone screaming. He went to his mother’s room Brockington and saw kneeling on the floor next to the bed. Brockington appeared be engaging in activity. sexual When boy was, asked where his mother Brockington replied that she sleeping boy and told the boy left, to leave the room. As the Brockington leaned over close the door boy and the saw that Brockington was nude from the Brockington waist down. left the later, boy to his minutes and the returned

building ten to fifteen immediately body. her He room where he discovered mother’s police. contacted the lying floor and found the victim on the police arrived was blood on the pants pulled and underwear down. There

her nostril, wall, face, hair, carpet, in in each and on the victim’s her that the victim had been autopsy An revealed and bed sheets. Brockington police admitted to that he had strangled to death. pointed object, and that he victim in the head with a struck the penetrated vaginal her area with his hands had fondled and gratification. sexual history of

Brockington had no criminal record or mental weekly. problems. He claimed that he used cocaine pled guilty aggravated manslaughter. The court Brockington term, eight years twenty-five-year of which sentenced him to a ineligible. parole were

Eugene Edwards Edwards, old, thirty-years and co-defendant Michael

Eugene by offering prostitute to Edwards’s house agreed Prater to lure They agreed prostitute that if the drugs exchange for sex. end, strange, they eliminate her.” To that Edwards “got would in a first-floor room. Prater lured directed Prater to a knife room twenty-three-year-old victim to a second-floor and took the Prater knife and order to disrobe. produced he where .her holding knife to her head. Edwards raped then her while pleaded rape while the victim entered the room and watched urged Prater to not to harm her. Edwards with the two men raping the victim. After Edwards hurry up, then took his turn thump returned up, himself he heard a left the room to clean the victim. to find that Prater had stabbed bloody began killing Prater the need not be Edwards told Edwards then tried to strangle the victim with his belt. to with one hand and by covering victim her mouth asphyxiate the Meanwhile, Prater closed with the other. pinching her nose dead, appeared or four more times. After she stabbed her three body quilt wrapped and Edwards the victim’s in a Prater upstairs Edwards went to carried her down to the basement. hitting find Prater the victim up clean the blood and returned to cutters, saying he make she over the head with tin wanted sure to “let it was dead. Edwards told Prater to rest.” days wrapped body different.quilt in a Two later Edwards alongside an of his residence. After the and laid it outside wall arrested, voluntary body gave Edwards was he a was located and implicating statement himself and Prater. prior history prob- had no record and no of mental

Edwards lems. murder, pled guilty robbery to sexual

Edwards assault. For the the court sentenced him to a term of life imprisonment thirty years’ parole ineligibility. aggravat- For assault, court him to a ed sexual sentenced consecutive term years’ ineligibility. robbery, parole with ten For the the court term, twenty-year sentenced Edwards to a concurrent of which years parole ineligible. ten were

Frederick Neuschwanter driving party, home from a Frederick

While Neuschwanter saw victim, eighteen-year-old acquaintance. picked up an He her proceeded liquor purchased to a where store he alcohol. parked cemetery Neuschwanter then his car near a and he and began attempted the victim drink. Neuschwanter to remove pants stop. persisted, him victim’s but she told When he grabbed hunting began struggle. the victim a knife and the two head, neck, eight Neuschwanter stabbed the victim times in the her, causing breaking and chest. He also beat bruises and jaw. body day. victim’s was found later that Neuschwanter incident, initially gave police conflicting accounts of the but later confessed.

VNeuschwanter, high dropout, employed by school heat- ing conditioning company. and air He had no record and no history problems. He had a of alcohol physical

mental or health abuse. aggravated manslaughter. He pled guilty to

Neuschwanter years parole ineligi- thirty-year a sentence with fifteen of received bility.

Other Defendants Aquino Kevin sex,” glass

Nineteen-year-old Aquino, “desperate for broke the house, through family neighbor’s room at a which he door of the sleeping. A third six-year-old victim and her sister could see the girls’ parents were upstairs asleep in her bed. The sister was children home. attending neighbor’s party a and left their three backyard where Aquino picked girl up and carried her to his girl began to make a to sex with her. he intended have When noise, area behind his Aquino dragged her into the wooded lot to against Aquino a tree.” intended home and “smashed her head girl get caught.” kill the because “he didn’t want seventeen, Aquino had convicted of three age At the been- involving assault for incidents counts of sexual his brother, four-year-old boy. At younger five-year-old girl, and a convicted for two incidents of eighteen, Aquino was arrested and trespassing property. Approximately school two weeks before on offense, disorderly Aquino charged with conduct present was attempting thirteen-year-old lure into his home. after age of three placed emergency foster care at the Aquino was Aquino, prescription medication. suffering an overdose after trained, found yet speak and was not. then toilet was who did not by at the emotionally deprived. adopted parents was He be school, Aquino Shortly beginning after age of four and one-half. convictions for diagnosed emotionally disturbed. After his was as assault, Aquino diagnosed impulse aggravated sexual counseling up until psychiatric three control disorder and received present Aquino’s doctor concluded weeks before the offense. increasingly Aquino dangerous was because of his violent thoughts Aquino doctor believed sexual toward children. The supervision urged Aquino’s parents needed constant to find program. him a residential treatment murder, pled guilty felony kidnapping. Defendant murder and murder, For the the court sentenced him to a term of life imprisonment thirty years’ parole ineligibility. For with the kid- napping, the court sentenced defendant to a consecutive term of imprisonment, twenty-five years’ parole ineligibility. life The felony merged purposes sentencing. murder conviction of Vasquez Carlos victim, body Vasquez’s thirteen-year-old neighbor, of yellow plastic garbage bags placed

found inside in a box at the alleyway. entrance of an The victim’s hands and feet were tied together behind her back with electrical cord and clothesline. The asphyxia by strangulation; ligature cause death was caused strangulation; and spine. fracture the cervical crime,

Although initially denying Vasquez involvement in the ultimately sexually assaulting murdering confessed to Vasquez victim. at first stated that the victim went to his house him, eyes, to wrestle "with that the in victim had the devil rape that he tied her with a cord but did not her. He later rape indicated that he wished also to confess to the of the victim. interview, pre-tape Vasquez got In a stated that he the victim into through religious inside, his house a discussion of matters. Once Vasquez raped asphyxiated and then the victim with' a towel. followed, videotaped Vasquez confession that stated that he it, began talking realizing to the victim about the Bible. Without inside, they began up to walk the stairs towards his house. Once they struggled began and fell to the petting floor and each other. They got up began had intercourse and then the victim smacking Vasquez. put gag punching and He in her mouth and Vasquez a towel around her mouth and nose. stated the victim may banged piece have herself on a of furniture.

Vasquez had of murder in his native Puerto Rico been convicted paroled in 1975. He was 1982 and came to the United States any problems Vasquez physical denied or mental health 1987. any problems abuse. with substance

Vasquez pled guilty aggravated murder and sexual For the trial court sentenced him to a term assault. thirty-year period parole ineligibili- imprisonment of life with a assault, ty. For the sexual the court sentenced Vas- term, twenty-year years of which were quez to a consecutive ten ineligible. parole

HANDLER, J., dissenting. Cooper purposeful of the Defendant David was convicted L.G., jury knowing six-year-old girl, a whom the murder of kidnapped, sexually assaulted and then stran- concluded defendant factors, jury aggravating that defendant gled. The found two 2C:ll-3c(4)(f), detection, N.J.S.A. escape committed the murder to committing aggravated that he had done so in the course of an jury N.J.S.A. kidnapping, 2C:ll-3e(4)(g). The sexual assault and c(4)(e) factor, rejected aggravating the State’s submission of the aggravated murder had involved torture or assault to that the victim. jury mitigating pursuant numerous factors

The found e(5)(h) factor, picture of a provide the sum of which a catch-all throughout youth from abuse who suffered extensive defendant drug neglect, exposure as and alcohol addiction. well as however, found, 67-68, jury See ante A.2d at 1006-07. The 731 outweighed mitigating factors. aggravating factors murder Cooper capital to death on the The sentenced fifty years impris- court sentenced defendant to charge. The trial kidnap- twenty-five-year parole disqualifier on the onment with a ten-year twenty-five years imprisonment count and to ping assault count. The parole disqualifier aggravated on the sexual 162 judge merged

trial defendant’s murder conviction with the purposeful knowing murder conviction. appeal,

On direct this Court defendant’s affirmed convictions capital kidnapping. and sentences for murder and The Court assault, merg vacated defendant’s sentence for sexual ing kidnapping that conviction with his conviction. State v. Coo (1997). 326, 406-07, per, 151 N.J. 700 A.2d 306 requested proportionality Defendant for his death review 2C:ll-3e, pursuant granted. sentence to N.J.S.A. which we The proportionate. Court now finds that defendant’s sentence is I disagree, for several reasons.

First, delay declaring the Court should not 1992 amend- ment, comparison proportion- which limits the universe of cases in ality defendants, review to death-sentenced unconstitutional. Ac (1999) 277, 354, Harvey, cord State v. N.J. 731 A.2d III) (Handler, J., (Harvey dissenting); Loftin, State v. 157 N.J. (1999) II) 253, 373, (Loftin (Handler, J., dissenting). 724 A.2d 129 very clearly consisting only The Court has stated that a universe “inadequate,” of death-sentenced cases would be State v. Mar- (1992) shall, 109, 136, II), 130 N.J. 613 A.2d 1059 {Marshall death-eligible that a of all universe cases would best serve “the purposes by review[,]” 137, proportionality to be achieved id. at finding by 613 A.2d 1059. This has now been validated Baime, II, Court, supra, Honorable David S. whom the in Loftin 129, appointed Special 157 N.J. at 724 A.2d as Master to proportionality methodology examine our review and make recom- improvements. mendations for See- The Honorable David S. Baime, Report Jersey Supreme to the Proportionality New Court: 1999) (“I 28, Project (Apr. {Special Report) Review 10 Master emphasize that a universe in limited cases which the death imposed support proportionality sentence was cannot a coherent system.”). Having receipt review stated that our “[o]n of [the Special report], position Master’s in a we will be to determine statutory whether the proportionality limitation on the review review[,]” II, prevents meaningful appellate supra, universe Loftin

163 not, not, 287, 129, the Court need and should at 724 A.2d 157 N.J. unconstitutional, any longer declare the 1992 amendment wait II, 73-74, supra, (echoing at 731 A.2d at 1009-10 see ante Loftin “until on 1992 amendment in the Court deferred decision which report”). Judge Baime’s [has] the Court received Second, existing application of disagree I with the Court’s ease. methodology to defendant’s Given proportionality review in methodology is flawed acknowledgment that the current our compellingly by the ways, most important various evidenced Judge study problems,1 appoint decision to Baime Court’s cannot, conscience, ignore Special Master’s recom good we in of defendant’s improvement in our evaluation mendations III, Harvey supra, 159 at 731 A.2d claim. Accord N.J. (Handler, J., dissenting). rejec

Third, disagree I with the Court’s importantly, most must be penalty that the death statute tion of defendant’s claim risk that race discrimi because of the unconstitutional invalidated sentencing of death- plays prosecuting a role in the nation 115-16, 731 A.2d Jersey. See ante at eligible defendants New defendant, present him like those before who 1034. I find that at III, II, data, Harvey supra; compelling see ed the same Loftin no unconstitutional risk. We must supra, has documented such an justice system to cleanse the longer ignore the fact that our efforts III, Harvey may well have failed. See of race discrimination (Handler, J., 366-68, dissenting) A.2d 1121 supra, 159 N.J. at racially dire in early use of extensive voir (examining Court’s identify jurors). racist try and eliminate charged cases to to. cannot, death, good con we punishment the final is When data, science, acknowledgment our that statistical keep postponing society, at history and our see id. along with what we know about J., 361-74, (Handler, (detailing dissenting) evidence 731 A.2d 1121 1Judge explore eight areas in his evaluation. Baime was asked to substantive 454-56, II, supra, 724 A.2d 129. See 157 N.J. Loftin 164 Report CCH capital-sentencing

of race discrimination in from II, database, supra, 157 N.J. larger society); as well as in Loftin 405-409, (Handler, J., dissenting) (recounting at 724 A.2d 129 history justice system in race discrimination the criminal in ,us Jersey States), require New and United to declare the death penalty statute unconstitutional.

No evidence to date has demonstrated that race discrimination does not play a prosecution sentencing capital role our statute, penalty cases. must act now to We invalidate the death or, least, very place at the to a moratorium on executions until we III, Harvey 374, Accord N.J. have such evidence. 159 at 731A.2d II, (Handler, J., 446, 157 N.J. at dissenting); 1121 724A.2d Loftin (Handler, J., 129 dissenting). my issues,

In addition to regard systemic conclusions with I disagree with disposition the Court’s final on defendant’s individu- proportionality al existing proportionality review claim under re- methodology. view I dispro- believe defendant’s sentence is portionate compared similarly when his case is to those of other situated defendants. I also maintain approach that the Court’s proportionality review remains unworkable due to its inherent potential subjectivity manipulation. propor- The Court’s tionality methodology yields review “respond[ simply results that ] hopelessly subjective considerations that ‘are moral and DiFrisco, nature.” State v. 148, 213, 142 N.J. value-laden’ 662 (DiFrisco III) (1995) (Handler, J., A.2d 442 dissenting) (quoting II, supra, Marshall N.J. (Handler, J., 130 613 A.2d 1059 Martini, see also State v. dissenting)); 3, 106-07, 139 N.J. (1994) (Martini II) (Handler, J., A.2d 949 dissenting) (“Although originally designed objective as the more of the two methods that review, up proportionality make frequency analysis applied by as stage Court does little more than set for whatever subjective judgments might or moral determinations be made omitted). precedent-seeking approach.”) under the (citing majority’s analysis in the are not as Although pitfalls these cases, they never- present in case as in some other prevalent exist, ought delay not its examination of the and the Court theless of a more and the construction Special Master’s recommendations have methodologically sound review. Until we objective and methodology, refrain from conduct- such a we should established ing proportionality reviews. therefore,

I, dissent.

I systemic issues already previous in cases I have addressed II, 373, supra, A.2d 157 N.J. at 724 the Court.- See before Loftin (Handler, J., dissenting) (criticizing application of Court’s 129 case, decision to defer methodology to defendant’s Court’s faulty amendment, acknowledge failure to judgment 1992 and Court’s on scheme); sentencing capital in presence of race discrimination III, 352-55, (Handler, 1121 Harvey supra, 159 N.J. at 731 A.2d III, 212-13, supra, 142 N.J. at (same); DiFrisco J., dissenting) (Handler, J., dissenting) (citing coding problems, 662 A.2d frequency disproportionality in its quantify Court’s refusal review); review, precedent-seeking in “pervasive ambiguity” (Handler, J., II, 82-106, dissent Martini 139 N.J. at 651 A.2d 949 of the Here, solely my objection portions I will focus on ing). proportionality claim. analysis of defendant’s individual Court’s A.

First, explanation, dis- drastically, and without the Court has original standard of its own carded the fundamental basis review, proportionality In its first measuring disproportionality. clearly stated: the Court cases in terms of the will us to review believe that the approach help

We frequency controlling cases, in these namely, that we believe should be substantive principle similar if defendants with excessive other “[a] death sentence is comparatively generally committing characteristics receive sentences other than death for factual- jurisdiction.” similar offenses in the same ly (quoting [Marshall 130 N.J. at 613 A.2d 1059 v. II, 153-54, State, Tichnell supra, (1983)).] 432, 1, 17 297 Md. 468 A.2d n. 18 standard, itself, This in provide and of is one that fails to much guidance guide for the Court in the absence of some numerical posts consistency to ensure over time. II Marshall cases, however, subsequent injection substantively of a differ analysis, explanation, only ent standard into the without added to difficulty establishing disproportion a stable benchmark for ality. only The Court introduced the “aberrational” standard (“[BJecause first, passing at id. 613 A.2d 1059 the case values, partial community before the Court is a reflection of even aberrational, considered.”), if it should be and then more defini tively: capital sentencing conclude that death for “[W]e contract 174, murderers is not random or aberrational.” Id. at 613 A.2d II, however, in 1059. Even Marshall engage the Court did not any imposition discussion of how to reconcile the of an “aberra tional” goal standard with the Court’s dispro stated to measure portionality by general imposition a standard. time,

At employing “subjective I criticized the for Court a precedent,” intuitive examination of majority which allowed the to reach the conclusion that defendant Marshall’s sentence was not 250, disproportionate. (Handler, J., Id. at 613 A.2d 1059 dissent ing). I by noting have since echoed this concern the number of verbal, unquantifiable substantively different rather than nu merical employed standards the Court has over time to measure III, disproportionality. Harvey supra, 356-57, 159 at N.J. 731 (Handler, J., dissenting) A.2d 1121 (listing qualitatively fourteen by different standards used proportionality Court its to reviews date). base, quantifiable Unanchored to a or propor numerical tionality away goal. review continues to drift from its general imposition yield proportionate standard will never a death growing sentence because of our database remain- and.the ing infrequency Jersey juries with which New sentence defendants

167 II, 18, 724A.2d 129 supra, 157 N.J. at 418 n. See to death. Loftin (Handler, J., acknowledging develop- this dissenting). Instead of data, Court, existing changed ment, accommodating the has ante at findings proportionality. See produce to the standard (“Our objective 107, primary 1029 is the detection 731 A.2d at 115, sentences.”); at 731 A.2d at id. prevention of aberrational only to determine whether (“Proportionality review seeks 1034 omitted). aberrational____”) (citation is particular death sentence by guided to an effort to review seems almost be “[T]he Court’s costs, dispropor out rather than to root proportionality find at all. 413, III, 1121 Harvey supra, 159 at 731 A.2d tionality.” N.J. 268, II, (Handler, J., supra, 159 at dissenting); see also Chew N.J. (Handler, J., dissenting) (stating proportionali that A.2d 1070 731 justify to ty reduced to “whatever works” review has been finding proportionality). inseparable directly to address the

The Court’s failure over time as its subtle subjectivity application, as well issues of broad standards, narrow of reveals here of all but the most eradication preponderance numerical inability grasp the need for a its can, standard, finally, what things, that we be sure among other so III, 412, Harvey 159 N.J. at by “disproportionality.” See we mean (“It J., (Handler, dissenting) is time for the Court A.2d 1121 by disproportionate, rather than what it means articulate only a sentence is not it knows when continue to insist II, 724 A.2d 157 N.J. disproportionate.”); Loftin majority prepon (Handler, J., (calling numerical dissenting) (citing proportionality) DiFrisco equated that can derance be J., (Handler, dissenting); III, 442 142 662 A.2d supra, N.J. at (Handler, J., 90-91, II, A.2d 949 supra, 139 N.J. at 651 Martini (Han IV, 408, 645 A.2d 685 dissenting); Bey supra, 137 N.J. at dler, J., dissenting)). way, it ignore precedent in this dramatic

If is to the Court explanation for by providing an do in an overt manner should so determining when a narrowing standard for its of the Court’s 168 disproportionate. may It be that after of the

sentence is review recommendations, Special Master’s will want to start Court slate, clarifying only methodology, a clean not our but also very disproportionality. point, definition of At that we would subjectivity by be well-served attack the issue head-on establishing realistically by applicable standard which to mea- disproportionality, sure which the Court has so far failed to do. meantime, ask, Legislature In the we must as Nebraska state, recently why did in its own the individuals who now sit on only death-eligible death thirteen out of a universe of 433— row— Johnson, being differently are treated from Dirk the others. See Executions, Times, Legislature Nebraska Votes Pause In N.Y. 21, 1999, May at A14 (Reporting Republican Nebraska Senator statement, Kermit A. I in Brashear’s see 165 murderers “[W]hen row, know, prisons only Nebraska 10 are on death I want to Why differently?”).2 people are some of these treated our While proportionality reviews have been more extensive than those in Nebraska, why we have often been unable to articulate certain prison defendants are sentenced to and others to death. See ante 107, 111, 114-15, 1029, 1032, 731 at (stating A.2d that the provide explanation AOC’s summaries prosecutors’ no for the forego capital punishment decisions to in comparison six cases in case, group). long As as this is the we should take the Nebraska (and Legislature’s placing in lead a moratorium on executions reviews) proportionality adequate system until we an place have gather necessary the information prevent grave is injustice.

B. Second, Court, view, my again misinterprets once Here, cases, results in the salient-factors in past test. as see Legislature's Nebraska Governor Mike Johanns vetoed the bill Republican stating five it was that "it would allow death row inmates to days passed, after " 'advance further Nebraska Leader Vetoes unnecessary appeals.' Suspension of Executions, Times, 27, 1999, N.Y. at A21. May

169 III, Harvey supra, II, 159 N.J. at 301-03, 1121; 731 A.2d Loftin supra, III, 328-29, 129; at N.J. 157 supra, DiFrisco 724 A.2d 142 II, N.J. at 173-74, 442; supra, Martini 662 A.2d 139 N.J. at 33- IV, 38, Bey 949; 353-58, 651 supra, 137 N.J. at 685, A.2d 645A.2d majority compares death-sentencing of rate defendant’s salient-factors subeategory, involving C-l murders “sexual assault particular and that composite of his C cate violence/terror” gory, -with death-sentencing the overall rates for death-eligible defendants. See ante at 77-80, 731A.2d at 1012-13. designed salient-factors test is assign defendants to

categories based on the essential elements of their in crimes order identify sentencing similarly rate for situated defendants. “Using average death-sentencing rate as the benchmark of proportionality purpose would defeat the dividing the death- eligible subcategories cases into might at all ... [T]he court as comparing well be death-eligible defendant to all other defendants III, Harvey supra, who were not 159 N.J. at sentenced death.” 380, (Handler, J., believe, 731 A.2d 1121 dissenting). therefore, I simply that we should evaluate groupings of the results independently of the overall statistics.

In defendant’s category, percent C-l nineteen of the death- eligible defendants were thirty-nine sentenced to death per penalty-trial cent of the in eases resulted death sentences.3 In the category, broader C percent death-eligible sixteen defendants death, thirty-four were sentenced to percent penalty-trial while 78, cases in death sentences. See ante resulted 731 A.2d at 1012. not, themselves,

These numbers do and of suggest “general imposition” penalty of the death category, either the C even 3 "Placing Defendant's case is not included for defendant's case on analysis. gauging both sides of the aof defendant's comparison, proportionality comparing group sentence member, it to a of which he is a by skews the (Handler, II, 157 N.J. at 420 n. 724 A.2d analysis.” J., supra, Loftin dissenting). However, findings use these to- subcategory. we must the C-l review, attempts which to add a precedent-seeking inform our III, Harvey supra, qualitative analysis. to the See more element (“Without (Handler, J., 360, dissenting) at A.2d 1121 159 N.J. 731 fads to linking analyses, the salient-factors test inform the the two all____”). There, is we must look at whether defendant Court at to death among expect we would to be sentenced those whom 359-60, category. his Accord id. at 731 A.2d within salient-factors (Handler, J., dissenting). 1121

C. also meant to inform our The Court’s index-of-outcomes test is majority As judgment disproportionality. of defendant’s the out, however, problematic points test is because of incon sistency regressions large across and the confidence results 72-73, at 731 A.2d at 1009-10. These two intervals. See ante its plagued our index-of-outcomes model since problems have III, 303-04, supra, at A.2d inception. Harvey 159 N.J. 731 See (noting inconsistency culpability preced in 1121 scores Court’s range ing proportionality detailing reviews and wide confidence results); II, supra, intervals 159 at 205- defendant’s Chew N.J. 06, (urging relying 731 A.2d caution in on results of index-of- 1070 II, 21, 422 analysis); supra, 157 N.J. at n. outcomes Loftin (Handler, J., dissenting) range of (noting A .2d129 wide confidence intervals). Therefore, suspect, at I find the results best. Special agrees, recommending that for these reasons and Master others, proportionality be eliminated from our test review. Special supra, Report, at 76-107. See Master concerns, though confirm not as stark Defendant’s results these ranges ly previous culpability as in His level from one to cases. examining three and confidence interval for the model both statutory non-statutory penalty-trial factors with a universe seventy-five ranges percent. from nine to Ante 731 A.2d at noting 1015-16. It is worth culpability that defendant’s score is lowest in the two reflecting models range smallest of confi In measuring dence intervals. the model statutory and non- statutory universe, factors with a death-eligible the test reveals ninety-five that we are percent certain that defendant’s death sentencing percent rate falls between thirty percent. three Cooper assigned is to culpability level one based on his ten percent predicted death, probability of giving group a death- sentencing percent. rate of five measuring only the model statutory universe, death-eligible factors with a the confidence (and small): similarly interval is range low ninety-five we are percent certain that death-sentencing defendant’s rate falls be eight thirty-eight percent, tween again assigned he is culpability level one with a death-sentencing percent. rate of five 4 83, scores, Id. at 731 A.2d at 1015-16. These low indications of disproportionality, among are the most reliable we have seen to date5 because of the range small of the confidence intervals and they the fact that occur in juries’ the two measuring models both prosecutors’ namely, employ those that the death- decisions— my objections majority’s predicted probabilities 4 maintain to the use of as a defendants, comparison 85-88, Cooper basis for with other ante at 731 A.2d at actual, predicted, sentencing 1017-19. Our focus should on not rates. .be III, 383, Harvey (Handler, J., Accord dissenting); 159 N.J. at 731 A.2d 1121 II, 423, (Handler, J., Further, supra, dissenting). 157 N.J. at 724 A.2d 129 Loftin comparison Cooper levels, the culpability Court’s to defendants in different 85-88, 1017-19, purpose ante at 731 A.2d at defeats the of the index-of-outcomes III, 11, Harvey (Handler, J., test. Accord 159 N.J. at 383 n. 731 A.2d 1121 II, 423-24, dissenting); (Handler, J„ supra, 157 N.J. at 724 A.2d 129 Loftin test, dissenting). As in the salient-factors the index-of-outcomes results should merely defendant, culpability be used to tell us what level of to attribute to that, death-sentencing applies similarly from what rate to situated defendants. 5Only Harvey comparable defendants and Martini have confidence interval III, 305, ranges. Harvey supra, (reporting See 159 N.J. at 731 A.2d 1121 ranges 4); confidence interval of .05 to .32 for 2 model and .08 to .38 for model Report, (reporting ranges Martini tbls. 14 and 15 confidence interval of .01 to .30 4). for model and .02 to .27 for model incorporate only eligible other two models defen universe. The trial, penalty prosecutors’ to so proceeded dants whose cases charging are not taken into account. decisions results, by identical to those received defendant

These almost 1121, III, 805, Harvey, Harvey supra, at 731 A.2d see 159 N.J. blameworthy among of all death- suggest Cooper that is the least results, however, ques should us eligible The make defendants. accurately culpability viability the of the test to measure true tion Cooper’s given severity of the victimization case. likely flaw most to skew correctly points to the fundamental Court here, namely, not take account results models “do into six-year-old was a the fact that the victim of defendant’s homicide factor, likely play girl.” Ante at 731 A.2d 1014. This significant jury’s culpability, role in the assessment of defendant’s classify according figure attempt not into the AOC’s cases does to levels victimization. methodological flaws in the index-of-outeomes

Given evident test, regard generally specifi- and with to defendant’s cases both cally, Special as well recommendation to eliminate as Master’s test, rely I I hesitate to make much of the results. therefore precedent-seeking primarily on the salient-factors and review results, possible, finding the extent defendant’s sentence findings merely test disproportionate. The index-of-outcomes support this conclusion.

D. review, comprehensive, while precedent-seeking The Court’s inadequacies from of the same of reviews. suffers some cases, Following in litany of which the Court is often hard- its meaningful pressed to find distinctions between life-sentenced by finding Cooper, majority defendants concludes defen 115-16, proportionate. dant’s sentence id. at 731 A.2d See general imposition standard on our 1034. Pursuant to the which even, and, pursuant to the proportionality review was founded myopic standard, Court’s “aberrational” I by cannot abide such a conclusion. cases,

In I nine have any been unable to find adequate distin guishable feature to justify disparity between the defendants’ life Cooper’s sentences and death sentence.6 These cases account for one-quarter over of thirty-eight life-sentenced cases in comparison group. defendant’s Only six in defendants defendant’s group have been sentenced to death and not one of them has proportionality review, received a so we have no basis on which to judge these Contrary sentences as valid. to the Court’s assertion present the death-sentenced cases “no issue disproportion ality” death, they because in resulted see id. at 731 A.2d at 1022, these cases they must be reviewed yet because have not addition, been declared proportionate. they have some value in helping us to better juries understand the reasons prosecutors might opt for instructive, death instead of life. At their most may these cases call question into assumptions some the Court’s why about certain life-sentenced might defendants have been spared, thereby eviscerating the distinctions between those defen Cooper. dants and Bey,

Marko example, disturbance; suffered from emotional only he was murder; seventeen when he committed his first (the relationship with his victim awas consensual one victim actually first, had consensual sex with him rape and he did not time). kill Court, her until she refused to do so a second in justifying life sentences for several in Cooper’s comparison cases group, cites the ambiguous consensual or nature of the relation ship between the victim and the in defendant some of its discus 98-99, 103, 112-13, 114-15, sions. 1024-25, See id. at 731 A.2d at 1027, 1032-33, Quite apart 1033. from the fact that I find offen- group majority This does not include some cases the characterizes as difficult to with defendant's. See ante at square 96-98, 731 A.2d at 1023-24. Although distinguished I can, fact, find that those cases be from defendant's, making finding add to the they only on in this case. difficulty proportionality 174 punishment a any

sive that would warrant diminished standard woman, sexually simply defendant who assaults murders her, relationship I find has a that the because he consensual attempt distinguish other life-sentenced defendants Court’s squared Bey’s be with Marko Cooper from on that basis cannot bases, may distinguished These be on other death sentence. cases Court, however, be so are here. The should mindful not discussed examining of the in the cases distinc- facts death-sentenced when Cooper tions other defendants. between Harris, defendant, is another Joseph death-sentenced exam history psychiatric ple. long problems had a of Harris reported hearing early age voices as or ten. Some as nine suggested a psychological school that he have evaluation teachers mentally they He never had because believed he was disturbed. lapses Harris an evaluation. claimed he suffered from of con years. Navy, in his adult he had sciousness While three being psychiatric diagnosed evaluations in which he was as “schiz having “inadequate personality.” oid” an He no and as received office, employed post occasionally at a Harris treatment. While reported “Ninja garb” to work in an imitation or in a dressed outfit, military camouflage performing martial-arts maneuvers target front of his co-workers. He believed he of race discrimination and that he needed to himself in this defend Harris, 525, (1995). 538, v. 662 A.2d 333 manner. State N.J. facts, spite these failed to find the diminished capacity aggravating or mental disease or defect factors. Harris later suicide on row. committed death sentence,

In light capital attempt of Harris’s Court’s Prater, distinguish Clowney, Alphonso defendants Michael Sharob Timpson by pointing and David Collins from defendant out their 95, 99-100, 103, see problems, emotional ante at 731 A.2d 1025, 1027, juries weight. proof carries less Harris are is willing from to sentence death individuals who suffer mental Indeed, problems. and emotional statistics demonstrate that even juries 2C:11-3c(5)(a) defendants for whom have found the N.J.S.A. mental or emotional disturbance likely factor are more to be prosecuted II; capitally than supra, others.7 See Chew 159 at N.J. 269, 731 A.2d 1070. analysis

Harris’s ease warrants close for another reason. The plea State offered Harris a agreement began, before the trial which the defendant turned down. The fact that the State would capital have prosecution declined exchange of Harris in for a life sentence undermines justifica- the usefulness of Harris’s case as tion Cooper’s of death prosecutor, least, sentence. The at believed capital prosecution of Harris was not warranted.

Finally, only forty-five three of the capital- defendants who were ly currently tried are Joseph on death row. Harris committed suicide, but the others’ sentences have been varying reversed for reasons. These defendants capitally prosecuted were either not the second time around or juries were not sentenced by to death in their subsequent sentences, therefore, trials. Their death hold only minimal value.

I. A close examination of the life-sentenced defendants confirms disproportionality Many defendant’s death sentence. of the C-l, juries for life-sentenced mitigating defendants found the indicating factors that the defendants suffered from mental dis defect, e(5)(d) (extreme 2C:11-3c(5)(a) ease or N.J.S.A. emo tional capacity). addition, disturbance or diminished In the fact Cooper’s victim young undoubtedly was a child played a significant II, role in his supra, sentence. See Marshall 130 N.J. (noting 613 A.2d 1059 that Court has indicated that such. vulnerability victim, factors as factor, statutorily-defined not a might help explain jury judgments though they might even not case, however, make eligible). Cooper’s defendant death is not c(5)(a) juries factor was not found in the trial for by defendants Prater, and Collins. Clowney, Timpson young assault and murder of a only involving one the sexual addition, of the other crimes in defendant’s child. some victimization, though a category degrees involve similar even Many of young victim was not involved. the cases before I them square difficult with defendant’s. discuss Court are here. rob, attempted to and raped,

Defendant Rivera murdered who often took neighbor, seventy-eight-year-old widow next-door badly victim beaten all of defendant’s children. The was care bruises; hemorrhag- covered with Her face neck were over. eyes ing tongue, found under behind one of her her back, cheek; she had on her forearms and underneath bruises ribs; lips on her two fractured she had been abrasions had strangled autopsy to death. The also revealed that the victim vagina oozing sexually Her was tom been assaulted. back bruising suffered of the mucous and the She membrane blood. urethra, injuries by object to area near the believed be caused an diameter, as the cane or the at least three inches in such victim’s hand. defendant’s drug and was seen history

Rivera had a of alcohol abuse and day charged capitally of on the the murder. Rivera was drank states, age of “Except sentenced to life. The Court for the victim, of sentence defendant’s reconciliation defendant’s death Ante 97, at Rivera’s life sentence is difficult.” at 731 A.2d elderly compared six-year- an cannot be to a 1024. While woman many many ways, present only of old in does the case not another age clearly significantly faces of evil? The of Rivera’s victim given vulnerability his the elder increases blameworthiness victim, by ly especially light of the extreme violence committed require distinguish more to Rivera the defendant. We should Cooper. from strangled sexually assaulted

Defendant Lester Allan Wilson fourteen-year-old girl in the He who lived same hotel as he. custody escape police being for attempted to from after arrested him I.Q. qualifies mildly retarded. the murder. Defendant’s as

177 states, He was sentenced to life. The Court “Other than defen- retardation, apparent dant’s mental no concerning circumstances this explain homicide and sexual assault the determi- Id. prosecution 101, forego capital nation to Wilson.” at however, Here, A.2d at 1026. no evidence emotional distur- capacity bance or present diminished was suffers from —defendant solely I.Q. mild retardation based on a low somewhat sexually Leroy Taylor strangled girlfriend’s assaulted and his found, thirteen-year-old niece. When she was the victim’s under- wear was torn and contained blood and semen. The victim had a nylon stocking her neck and froth blood coming around were from her nose and mouth. Defendant to California fled and was eventually picked up violating parole. charged He was offenses, assault, including felony with numerous sexual hindering prosecution tampering. Taylor and witness was not charged capitally permitted guilty. plead He was sentenced to life. states, prosecutor’s accept Taylor’s Court “The decision

guilty plea uncertainty by could have been influenced over wheth- Taylor’s prior juvenile er murder conviction as a could constitute Id. an aggravating prosecution.” factor a murder justification A.2d at is speculation, 1027. The Court’s here mere Taylor’s which we death-eligibility crumbles when realize that indeed, prior does not rest on his murder conviction most alone — category of the defendants in the C do not have murder him Taylor’s eligible. convictions. sexual assault death makes apparent explain The Court is with no reason to then left prosecution’s forego capital prosecution. decision Bolinger,

Robert when his victim came home to find him leave, her, burglarizing apartment attempting her and to stabbed bed, sexually up gagged then tied her on the and assaulted rape attempt- her. and When arrested in connection with another murder, Bolinger only previous ed not the confessed to offense here, rape and the one but also to a third and murder discussed pled others. Defendant in between the two that he committed ultimately and attempted- murder rape to the and guilty charge, not until rape of murder but acquitted the second and prosecuted for the and sexual assault reviewed rape he was after capitally permitted tried and was Defendant was not here. guilty. sentenced to life. plead He was states, accept [Bolinger’s] guilty “The decision to Court impulsive than may by have influenced rather plea been by drug and of the and defendant’s premeditated nature homicide Any 1027. standard addiction.” Id. at 781 A.2d at alcohol solely Bolinger’s in the face impulsivity, especially on based confession, simply insupportable is here. Had the defendant away, argue the victim and run one could that his murder stabbed Cooper’s, thereby perhaps making impulsive than Bol was more However, given inger culpable. that the took less defendant up rape to tie victim and her while she was still alive trouble his chest, suffering impulsivity a stab to the and from wound meaningful distinguish argument weight loses it so really all —is his having plotted one defendant who lured his victim without who, victim, by from when his out surprised crime another carries Further, light equally prolonged attack? in an sinister and brutal rapes attempted the defendant’s confession two other (one successful), Bolinger’s apparent impulsiveness here murders possibly up culpability. for his cannot make severe beat, Gary Lippen raped, strangled, his co-defendant stabbed, seventeen-year-old girl. two tortured a After the victim, raping Lippen took turns beat her the head with stick, jaw, her. co- punched her and kicked The two legs. defendants then hoisted her into a tree and broke her disturbance, Lippen history no had a had of emotional but he history drug alcohol abuse found the diminish- Lippen eventually capacity mitigating Although factor. con- ed then, fessed, he first all in the murder and denied involvement confession, police. in his lied to the Both defendant and even in the playing co-defendant accused the other of a dominant role crime. capital addition to his charges, Lippen charged was hindering apprehension, for which he was sentenced to five years. accepted The State Lippen’s guilty plea and the defendant was twenty years sentenced to on his manslaughter conviction. states,

The “Lippen’s Court cooperation with law enforcement authorities, combined with the likelihood that Henderson was the actor, dominant probably prosecutor’s accounts for the decision to forgo capital prosecution 104, Id. at Lippen.” 731 A.2d at 1028. suspect This conclusion given Lippen is charged that with and hindering apprehension. convicted of The AOC narrative states clearly Lippen lied to law enforcement officers at first. Lippen eventually police aided in securing a against conviction co-defendant, (which but the notion that cooperation this he clear ly sentence) rendered in order to reduce his own formed the basis culpability his reduced is feeble. (I III)

Frank raped Masini eighty-five- and murdered his year-old eighty-year-old aunt and an woman within a two-week period. Both victims had multiple been stabbed times the neck sexually had been assaulted. Both women were found in a blood, pool of naked from They the breast down. also had stab later, wounds on their hands. Approximately year one Masini elderly murdered an couple for carpentry whom he had done work. Masini capitally charged was not in either sexual assault case. states,

The Court “Other than the reference the AOC’s summary to experiencing Masini’s reality,’ ‘detachments from no surrounding other factors those four suggests expla homicides an nation for prosecutorial proceed decision to non-capitally against Masini.” Id. 731 A.2d at 1028. This defendant elderly people, murdered four raping two of them. prosecu tor was aware of all of the determining murders when whether or capitally prosecute not to Masini for his first and third death- eligible crimes. unproven Defendant’s own contention that he crimes, suffers from reality,” “detachments in the face of these is the Court to distin- only information the AOC offers available This plea Cooper’s sentence. guish guilty from death Masini’s system inability of our current surely emphasizes case proportionality review demands— very question that answer the differently? being similarly defendants treated are situated scenario, (I II) only a the presents and similar Jerome Dennis five inequity glaring. more Dennis committed homicides is even months, in four two of which involved sexual assaults. Defendant sexually fourteen-year-old girl knife-point, at assaulted abducted a neck, in the in the and her times eleven times her stabbed three body in was at the times the abdomen. Her found chest and ten later, pine tied naked under a up hill four months and bottom of a thirty-year-old victim was a tree. The second sexual assault up and at the of a woman. was also found naked tied bottom She hill in her neck. had with ten stab wounds Defendant several convictions, including three for sexual assault. Defendant capitally not and was sentenced to life. The AOC prosecuted was any problems or mental summary makes no mention of emotional “No by recognizes, explanation As the Court suffered defendant. forego prosecution capital for the can be prosecutor’s decision Id. at A the AOC 731 .2dat 1029. inferred from summaries.” (IB), twenty-one, raped and age at murdered James Williams nursing twenty-three-year-old who in a Trenton woman worked naked, clothing her home. victim was found face down and The floor, walls, the the strewn the room. There was blood on about wounds, thirty-six and the furniture. She had stab bruises contu- body. all Her throat had been sions and abrasions over the victim slashed. The medical examiner testified that remained inflicted, after seven frontal stab wounds were conscious twenty-one sustaining several minutes after fatal she had lived trial, capital stab wounds to her back. Williams’s found that defendant had committed murder torture disturbance, jury rejected depravity, but the the emotional dimin- age mitigating ished factors sentenced capacity, reduced by defendant to death. Defendant’s sentence was reversed this retrial, inadequacy Court because of the of the voir dire. On prosecutor prosecute capitally, declined to Williams and defendant permitted plead guilty was in exchange for a life sentence. The states, Court mitigating “No factors other than the in evidence offered but penalty phase, rejected jury, forego decision to substantially by explain prosecutor’s mitigating on remand. That evidence included capital prosecution testimony

reflecting an childhood, unstable numerous foster care emotional placements, age shooting younger intoxication at and, nine, accidental of his instability, brother.” [Id. 1029.] 731 A.2d at 106-07, Although noting, precisely mitigating worth this is the kind of presented by Harvey evidence at trial defendant Nathaniel III, by ignored companion Harvey supra, the Court case 390-91, (Handler, J., dissenting). N.J. at 731 A.2d 1121 majority Harvey point fails to importance out the of the mitigating Harvey emotionally evidence that defendant having accidentally scarred from lit a match and set his sister on fire, her, killing when he was a child. See id. at 731 A.2d J., (Handler, dissenting). Harvey suffered other childhood abuse, addiction, including exposure drug to alcohol and also not Here, by considered willingness the Court. See ibid. the Court’s distinguish to Williams’s case—which involved a sexual assault particular Cooper’s on of violence and terror —from the basis mitigating presented regarding evidence at trial his traumatic youth acknowledge cannot be reconciled with the Court’s failure to review, Harvey’s in proportionality such evidence where the defen- significantly egregious. dant’s crime was less Vasquez, Carlos a defendant with a in murder conviction Rico, sexually asphyxiated thirteen-year- Puerto assaulted and a girl buy gone family. girl’s old who had out to bread for her body yellow in in plastic garbage bags was found box. cardboard pulled together The victim’s hands had been tied and behind her spine back with electrical cord and clothesline. was fractured Her strangled. Vasquez prosecuted capital- and she had been was not The Court offers' receiving a sentence of life. ly pled guilty, Cooper’s Vasquez’s and justification disparity between no for the sentences.

2. difficulty finding in the death perceived Despite possible disproportionate, Cooper’s as to be for a crime so heinous sentence similarly situated to other compare Cooper obliged to we are as a defendants, group death-eligible defendants not to the of distinguishing long this has no basis whole. As as Court large group similarly situated defen- from of defendant such dants, analysis our frequency results confirm especially when the Cooper will not be sen- defendants similar to expectation that death, an Cooper’s sentence be we must consider tenced it. and vacate aberration

II. methodology, I find existing proportionality review Pursuant to my I maintain disproportionate. also sentence to be defendant’s subjec- inherently methodology is too that the current contention clear-cut. I find the in cases that are not tive to be reliable faulty system readily what it admits is a of application Court’s of irresponsible light proportionality to defendant’s case review availability Judge report containing several recom- Baime’s Further, improvement.8 the Court’s refusal mendations for redefining pro- our 1992 amendment declare unconstitutional the unacceptable cases is portionality review universe of light precedent Special report. Master’s Court’s own is, this One of these notably, require prosecutors provide improvements forgo detailed reasons for their decisions to Court with more capital prosecution. would See Master 6. This provide very Special Report, supra, improvement acknowledges at 107, so often that it lacks. See ante information the Court here information, our 1029, 1032, A.2d at 1033. Without such 111, 114, 731 regarding conclusions review is any proportion- proportionality inadequate must therefore be ality postponed.

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 3, Argued March 1998—Decided June 1999.

Case Details

Case Name: State v. Cooper

Court Name: Supreme Court of New Jersey

Date Published: Jun 3, 1999

Citation: 731 A.2d 1000

Court Abbreviation: N.J.