State v. Feaster

388 review to hope accomplish proportionality in Harris’s is

can abstract, culpability in the without reference his moral assess comparative culpabili standards for other cases our established to “administer most ty. unacceptable That means an II, penalty in a and consistent manner.” extreme fair Loftin 279, 724 A.2d 129. supra, 157 N.J.

I, therefore, dissent. O’HERN, PORITZ and Justices For Justice affirmance —Chief STEIN and LaVECCHIA —4. vacate remandment —Justices COLEMAN

To and for LONG —2. A.2d PLAINTIFF-RESPONDENT, JERSEY,

STATE NEW v. OF FEASTER, RICHARD DEFENDANT-APPELLANT. August Argued March 2000 Decided 2000. Defender, Schwartz, Deputy and Clau- Abby Public P. Assistant II, argued for the cause Wyk, Deputy Public Defender dia Van (Ivelisse Torres, Defender, attorney). Public appellant General, Owens, argued Deputy Attorney the cause A. Debra Fanner, Jr., (John Attorney of New General respondent for J. Jersey, attorney). by opinion of was delivered

The the Court STEIN, J. 15,1996, by convicted defendant Richard Feaster was

On March County jury purposeful-or-knowing murder of the Gloucester Donaghy. felony-murder of The own and the Keith conduct charges conspiracy to commit him on related also convicted murder, robbery, conspiracy to commit armed rob- first-degree posses- bery, possession weapon purpose for an unlawful of a conviction, capital shotgun. murder of a sawed-off On sion convictions, non-capital defendant was sentenced to death. On merged conspiracy into related sub- defendant’s convictions felony-murder merged was stantive offenses and the conviction purposeful-or-knowing for murder. Defen- into the conviction possession weapon for for of a an unlawful dant’s conviction robbery-murder purpose merged convictions. into twenty-year to a consecutive term of court sentenced defendant robbery years parole ineligibility imprisonment with ten for the five-year imprisonment conviction and term the conviction concurrently. possession shotgun, of a sawed-off to be served capital This affirmed defendant’s conviction for murder Court Feaster, v. N.J. and his death sentence. State

393 (1998). We also affirmed his convictions and on sentences charges. other Ibid. requested proportionality

Defendant review for his death sen pursuant Feaster, tence supra, to N.J.S.A. 2C:11-3e. 156 N.J. at 93, 716 A.2d granted request 395. We and now find no disproportionality in defendant’s sentence of death.

I

Facts Feaster, The facts of case supra, this are detailed N.J. 18-33, we opinion draw from that those facts proportionality that are material to this review.

Several weeks before the October 1993 murder of Keith Donaghy, began asking Kaighn defendant if friend Daniel he handgun, purportedly money could borrow a to collect that his employer murder, Kaighn owed to him. Two weeks before the and, complied use, payment in return a day’s for one $100 gave twenty-gauge shotgun him a sawed-off and ammunition. night, Kaighn That gun along same defendant returned the with given day. gave all ammunition he been had earlier He Kaighn $30, saying employer pay that his had failed to the full Subsequently, gun amount him. owed to was stored Shiplee, back of the car of Tina friend defendant and of Kaighn. night murder, friend,

On the of the defendant and a Michael Mills, Café, bar, playing were at the pool drinking Columbia friends, including Shiplee. time, gun some Tina At that Shiplee’s gym Shiplee was still in the back of bag. car a blue approached requested gym bag defendant and that he remove the leaving night. agreed before Defendant to remove it. Shi- plee’s parking unlocked car was in the lot of Café. the Columbia Shiplee night, When left the Columbia later that Café she noticed gym bag that the blue had been removed from car. her She was eventually unsure whether it was Mills defendant who took p.m., and Mills bag At around 8:00 defendant from the car. Feaster, one hour. left the bar about borrowed a car and 21, A .2d supra, 156 N.J. at 395. only working at attendant night, Donaghy was the

That Keith Township. between Family Deptford Sometime Texaco lying the floor of body on p.m., his was discovered 8:20 and 8:25 of his had taken from one Ibid. been the station office. $191.32 24, 716 A.2d 395. pockets. Id. at evening, that at returned to the Columbia Café defendant When using drugs, appeared have been as approximately p.m., he 9:00 leaving Before the bar that powder he around his nose. had white say Michael evening, Shiplee defendant to Mills and overheard Sadlowski, acquaintance, “believe he that he could not another 22, get any money.” at 716 A.2d 395. guy and didn’t Id. killed trial, that had made that statement At Sadlowski denied defendant to him. house night, defendant was at friend’s

Later that same describing segment watching o’clocknews. After the eleven aired, observed that Donaghy of Keith had Sadlowski murder stated, sweaty ‘fidgety,’ he T and that “defendant had become Why I You I this can’t believe this. me? can’t believe did shit. ended, again defendant told know.’” After the news broadcast Sadlowski, I did shit.” Ibid. “I can’t believe this home, said to Sadlowski that he going he was defendant

When off,” up tonight.” Id. “screwed head and that he “blew dude’s said, 23, I also “I can’t believe did 716 A.2d 395. Defendant home, tearfully ex- During drive “defendant this.” Ibid. their repeated plained place’ all that ‘his brains went over the ” dropped I then T believe did this shit.’ Ibid. Sadlowski can’t defendant off. Ibid.

Initially, investigation Donaghy into the murder of Keith however, 31, 1993, October another met with little success. On Pine, attendant, gas Ronald was murdered. Defendant’s station friend, Shiplee, had suspected that defendant committed Tina and, might murder fearing again, that he kill lawyer contacted a police. Shiplee gave implicat- who contacted then a statement ing Subsequently, defendant both murders. defendant was charged with both murders but the indictments were later severed and no mention of permitted the second murder was at defen- 24, trial Donaghy. dant’s for the murder of Keith Id. at 716 A.2d 1996, 1, April pled knowing-and- 395. On guilty defendant to the purposeful murder of Ronald Pine. Donaghy single shotgun

Keith from a died wound to the head. indicating There was no a struggle evidence had occurred. Only Donaghy’s pockets Id. at one 395. was in plain lay ground, view he money dead on the remained in Donaghy’s pockets exposed. other that were not Id. at 395. A.2d That evidence led the State believe that defendant money did not the Donaghy take until after sup- was dead and ported argument the State’s that defendant to intended kill and to rob the gas station attendant even before he reached station. Ibid. trial, Wrigley holding

At Kevin testified that he a shared cell period with defendant for a brief awaiting while defendant was 26, trial. Id. at A.2d Wrigley among 395. stated that other by defendant, statements made he heard defendant “describe how point-blank he in range shot someone the head at order ‘see it what felt like’ to kill someone before he entered the Marines.” Wrigley say Ibid. also said he heard defendant that he stole couple “a hundred dollars” from the scene of murder and that he, defendant, 27, weapon away. threw the murder Id. at A.2d 395.

Other State witnesses included members the circle of friends previously They with whom defendant had socialized. testified concerning about the various statements the murder that defen- physical directly dant had made. No evidence linked defendant to Donaghy’s murder. Ibid. testify strategy

Defendant did not at The trial. defense was to credibility challenge the of the State’s witnesses to raise the triggerman. Mills had met was the possibility that Michael Mills statement, but because he and made police before trial June, 1994, his was not admitted statement committed suicide drugs use of witnesses’ highlighted various at trial. The defense alcohol, by for their testimo- given the State the consideration they made authori- in the statements ny, discrepancies 27-29, 716 395. Id. at A.2d ties. lack emphasized the closing arguments, counsel

During defense and attacked the evidence the case physical and direct suggest- credibility counsel also witnesses. Defense State’s Mills, defendant, the murder. Id. at had committed ed that not 395. premedita- indicated prosecutor the evidence that stressed 716 A.2d 395. part on the Id. tion and intent defendant. emphasized “getaway driver” and characterized Mills as He defendant, Mills, triggerman. was Ibid. not 15, 1996, all guilty of crimes found defendant March On charged. Ibid. al- aggravating factor penalty phase, the sole ensuing

At the was murder occurred while defendant leged the State that the robbery. See N.J.S.A. 2C:11- engaged the commission of was 3c(4)(g). on ten factors: Defendant relied of a had never been incarcerat-

1. had been convicted crime and Defendant never ed previously. matured at the time of the crime. 2. Defendant not twenty-two fully resulting organic in an brain one or more head traumas 3. Defendant suffered judgment [extent] that his and control to the condition affected impulse normal not are affected. people wrongfulness his or conform to conduct to 4. Defendant’s ability appreciate result of mental to of the law was as a his conduct the requirements impaired intoxication. defects and emotional disturbances and disease and/or which raised in a household with one alcoholic parent, predis- 5. Defendant was undermining to behavior, him substance abuse and delinquent posed controls others. normally present a with an and abusive was raised in home emotionally physically 6. Defendant affecting and the effect, his maturation father, development, substantially among predisposing him to and violent to others, behavior delinquent extent normal not adults are so predisposed. living 7. Defendant had an excellent work while in Florida, record from the away injury. turmoil of which his was a family, interrupted only work-related by during high a 8. Defendant was successful athlete school, adolescence and re- sponding coaching well to and discipline. coaching working 9. Defendant’s success under and in in an and environ- sports ment from the turmoil of his he away family demonstrated that could be regimented rehabilitated such environment as prison. jurors, 10. other factor that the or Any one of any them, may deem relevant defendant’s character record or to the circumstances of the offense. [Id. 395.] 31-32, A.2d experts Several testified about defendant’s mental health. A neurologist abnormally activity described excessive electrical the left frontal lobe of defendant’s brain and people testified that abnormality with that impulsive memory tend to be and have problems. Similarly, neuropsychologist a clinical testified that injuries ability left frontal lobe affect one’s to control impulses diagnosed suffering encephalopa- defendant as from thy, injury, likely or brain as a result of a series of concussions. alleged injuries Id. at 716 A.2d 395. Defendant’s head were truck, pickup injury caused fall from a an sustained when tree, repeated impacts defendant’s head hit a that occurred during psychiatrist his football A career. Ibid. also testified that ability impulses compromised by defendant’s to control ence- phalopathy, helped through psychotherapy but that he could be counseling. having Ibid. Defendant was described as bor- intelligence. psychologist derline A also testified the alcohol- ic and abusive household in which defendant was raised awas environment, traumatic expressed therapy but the view that could help Ibid. defendant. home,

A social worker described the Feaster which Mrs. abused, Feaster and defendant were as one “in denial.” Ibid. Defendant’s mother also testified that defendant’s father anwas that, verbally alcoholic who abused her and defendant and older, grew frequent physical defendant there were altercations him between father. Ibid.

398 commit- aggravating defendant jury factor that found as an

The robbery. engaged in the commission ted the murder while factor, mitigating that defendant third jurors accepted the Two resulting from head organic brain disorder suffered from an jurors accepted judgment. Five impaired his Ibid. that traumas physically and that father was factor defendant’s factor, jurors ninth emotionally Ibid. Three found abusive. high school in Florida and work record that defendant’s be that he could rehabilitated demonstrated experience athletic 32-33, unanimously reject- jury 716 A.2d 395. The prison. Id. at 33, A.2d at 716 395. remaining mitigating factors. Id. ed the unanimously aggravating factor sole that the also concluded any beyond mitigating factor or outweighed a reasonable doubt factors, resulting Ibid. in defendant’s death sentence. thus noted, conviction this affirmed defendant’s previously Court

As 93, Feaster, at A.2d 395. We supra, 156 N.J. 716 and sentence. defendant’s sentence proportionality review of now conduct death.

II Proportionality Review (1999) 253, 266-77, A.2d 129 Loftin, N.J. In State v. II), history purpose (Loftin summarizеd the this Court Jersey. and in New proportionality review the United States 68-73, 731 A.2d 1000 Subsequently, Cooper, v. 159N.J. State (1999) II), methodology our basic when (Cooper reiterated we There, explained it we conducting proportionality review. first, we use a analysis two distinct approaches: frequency encompasses calculations to defendant’s case both mathematical statistical compare includes to similar in order cases with similar fact levels culpability other patterns sentencing engage in eases; second, in those we the rate of death similar ascertain precedent-seeking all in factually review in which we relevant factors compare to be death sentence similar cases determine whether defendant’s appears who on other defendants to the sentences comparison imposed disproportionate committed homicides. comparable [Id. 1000.] II, Cooper Since we decided supra, we have reevaluated the proportionality of elements individual review. In Proportional re 71, (1999) ity Project, Review 161 N.J. (Proportional 735A.2d 528 I). I, ity supra, Review In Proportionality Review we reviewed Special Judge Master findings David Baime’s and recommenda tions. held that proportionality We the universe of eases for review eligible should continue to include all defendants who were penalty, for the they prosecuted death whether or not were 84-87, capitally. Id. at 735 A.2d 528. We also determined that a containing modified test subcategories salient-factors fewer should 87-89, adopted, 528, be id. at 735 A.2d and that the index-of- 91, outcomes test should be abandoned. Id. at 735 A.2d 528. formulation, In frequency analysis its current thus con solely of sists the salient-factors test. The salient-factors test frequency measures the relative of a defendant’s sentence determining frequency factually at which similar cases result II, Cooper 70-71, in a supra, death sentence. 159 N.J. Through

1000. that test we seek to determine “whether there is a societal consensus that the defendant in the case before us is sufficiently culpable may such that his sentence be deemed not Chew, 183, 201, aberrational.” v. State 159 N.J. 731 A.2d 1070 (1999) (Chew II). If the of penalty-trial ratio death sentences to death-eligible high, cases of thereby or death sentences to cases is demonstrating a substantial correlation between a defendant’s may most salient sentencing, interpret factor and death then we relatively high rate sentencing “strong of death evidence of reliability Bey, [the] defendant’s death sentence.” v. State 334, 358, (1994) IV). 137 N.J. (Bey 645A.2d 685 A. Universe Cases

Our first task is to establish the universe of cases to which compared. I, defendant’s case In Proportionality will be Review supra, existing we clearly death-eligible held that the universe of proportionality cases for review should be retained. N.J. at 84, A cases, 735 .2d 528. in our proportionality As earlier review cases category of death-sentenced in the continue to include

we appeal because were reversed on cases that death-sentenced those See, e.g., burdеn-of-proof, Gerald-type errors. procedural, However, 74, II, those 731 A.2d 1000. Cooper supra, 159 N.J. at proceeded penalty- death-eligible but were not cases that Id. at in the universe of cases. phase hearing not included are A.2d 1000. II, Cooper salient-factors test “uses explained in As we is death-eligible cases the universe database which the AOC’s subcategories, descend categories ranked into subdivided blameworthiness, statutory from derived ing order of Each 731 A.2d 1000. defendant factors.” Id. at aggravating major categories. Ibid. Each assigned to one of the thirteen subcategories “that two and seven category contains between included mitigate blameworthiness defendants aggravate or 71-72, 731 1000. “In category.” Id. at A.2d primary in the test, compare death we defendant’s applying the salient-factors factually similar cases within imposed to the sentences sentence frequency category in to ascertain the primary order the same imposed in such cases.” generally are which sentences death of the sets of calculations at A.2d 1000. We use two Id. sentencing, that includes defendant of death one rate 75, 731 1000. him or her. Id. at A.2d another that excludes Proportionality Re to our order that followed Pursuant view) F, robbery-murder, I, category supra, the AOC has divided subcategories large of the number of cases three because into Here, has category. 735 A.2d 528. AOC 161 N.J. F-2, comprises murders commit assigned to cell which defendant robbery of a We continue in the of the business. ted course expertise, particularly to its generally to the “defer AOC’s only comparison catego unique assignment of defendants to one (1995) 148, 167, DiFrisco, ry.” v. 142 N.J. State (DiFrisco III). Attorney nor the Public Neither the General defendant, they assignment nor do objects to Defender object to the or any inclusion exclusion of or defendants in from subcategory.

B. Salientr-Factors Test thirty-three F-2, death-eligible

Of in subcategory cases eighteen proceeded cases penalty phase, to the and five defen dants, (2), Morton, Feaster) (Long, Hightower were sentenced defendant, Hightower, to death. One Jacinto received a second sentence of death after his first death sentence was vacated. Morton, Defendant Robert whose death sentence we affirm also today, is included the statistics one below as of the defendants subcategory in the F-2 Accordingly, who was sentenced death. defendant, including death-sentencing rate for all murders robbery committed in the course of the aof business that we subcategory (fe), include F-2 is 15.2% for those {%). proceeding penalty phase to a the rate is 27.8% Excluding subcategory substantially defendant from the F-2 does not significantly death-sentencing following alter the rates. The table applied summarizes the results of the salient-factors test as to the subcategory: F-2

SALIENT-FACTORS TEST: SUBCATEGORY F-2 Report, from Feaster (data 7) tbl. Proportion Cases Death-Sentencing Rate Rate Death-Sentencing Penalty Cases At Trial for All Eligible to P-Trial Advancing (jis) 27.8% 15.2% 54.5% F-2 In {%) cl D (&) 23.5% 12.5% {fa) 53.1% {fa) {'fa) F-2 DExd. 29.5% 11.4% 38.7% All Ds fc) (5?ta) (nf/155) 29.1% 11.2% 38.5% Ds All but D (5Ji?ó) (5M (17ft>0 Applying general the salient-factors test to the “F” category results in a death-sentencing pеnalty-trial rate (including cases defendant) 0%i), death-sentencing of 29.3% and the rate for all Q%í). death-eligible following cases is 8.4% The table summarizes applied category the result of the salient-factors test as to “F” death-penalty cases: CATEGORY TEST:

SALIENT-FACTORS F Report, Fear;ter (data 7) tbl. from Cases Proportion Rate Rate Death-Sentencing Death-Sentencing Cases Penalty to P-Trial Advancing for All Eligible At Tidal 28.7% 08.4% 29.3% fllu) (7n) (!5iis) Intel.D Excl, F 28.2% 07.7% 27.5% (%) D F (‘*42) (49¡42) 11.4% 38.7% 29.5% (17fe) (I7jbi) (sfe) (=5170) AllDs 38.5% 29.1% 11.2% (3,fe) (sfe) All Ds but D for those defendants demonstrate that preceding tables robbery a committing in while the course of murder who commit proceed- business, death-eligible that percentage of cases higher average overall for death- phase is than the penalty to a ed to Thus, penalty death it not aberrational for the eligible is cases. Moreover, indicate that five the tables sought in such a case. be defendant), (including or four of seventeen eighteen defendants defendant), (excluding the defendant has com- where defendants committing robbery of a in the murder while course mitted business, proceed to a death those cases that is sentenced to death-sentencing for those defendants penalty The rate of trial. death-sentencing full of death- rate in the universe exceeds application of the salient-factors eligible We conclude that cases. death does not demonstrate test to defendant Feaster disproportionate. sentence

Ill Precedent-Seeking Review previously “appropriate it is We have observed fre precedent-seeking than on review place greater reliance on precedent- process of quency analysis” have noted “that the judges us and is not vulnerable seeking review is one familiar to analysis.” reliability frequency that burden to the concerns about omitted). (citations II, Cooper supra, 159 N.J. unchanged and review remains precedent-seeking Our task factually “compare all similar requires relevant factors us appears to whether defendant’s death sentence cases to determine comparison imposed on to the sentences disproportionate be

403 comparable other defendants who committed homicides.” Ibid. We seek “to that the singled ensure defendant has not been out unfairly capital punishment” by engaging and we do that in a case-by-case compare “traditional in review which we similar cases, death-eligible 88, considering individually.” the cases at Id. (internal omitted). quotation 731 A.2d 1000 marks and citations Analysis Culpability A. of Defendant’s against specific cases which we measure a defen case are from dant’s chosen universe cases we use frequency analysis. our review That analy ensures that the two complementary ses are may and confirm each other. We choose comparison aggravating mitigat cases on based relevant and factors, ing statutory non-statutory, both that are “rooted Marshall, sentencing guidelines.” traditional v. State 130 N.J. (1992) (Marshall 109, 159, II). 613A.2d 1059 recognize We that a jury may rejected defendant’s have mitigating an enumerated factor but by presented nonetheless been influenced the evidence support Therefore, mitigating of that factor. we consider mitigating though jury evidence “even found it insufficient to Martini, a statutory mitigating establish factor.” State v. 139 (Martini 3, 54, (1994) II). II, N.J. A 651 .2d 949 See also Loftin 336, 129; III, supra, 157 N.J. at 724 A.2d supra, DiFrisco 142 185, 442; IV, 368, N.J. at 662 Bey supra, A.2d 137 N.J. at 645 “objective A 685. .2d We consider criteria derived from both statutory nonstatutory aggravating factors.” II, supra, N.J. 724 157 at 129. The A.2d criteria must Loftin clearly have been likely submitted to the to have influ IV, jury’s Bey supra, enced decision. 137 N.J. at analyze A.2d 685. We those factors within a framework culpability ‍​​​​‌‌‌​‌‌​‌‌​​​​‌​​‌‌‌​‌‌‌​​‌​​​​​​​​​​​‌‌‌​​‌​‍blameworthiness, of the consists defendant’s moral degree of victimization and the defendant’s character. Marti II, 48-49, supra, Here, ni N.J. 949. we will consider cases which the defendants committed deliberate robbery murders in the course of a business. Our task is to culpability, objective decide whether defendant’s measured relevant to blame- clearly present in the record that are factors character, like worthiness, more that of “is victimization who received sentences or of those received death defendants who Id. at 651 A.2d 949. terms.” life Blameworthiness

1. examining moral blame purposes the of defendant’s For motive, worthiness, premedi as “we such characteristics examine excuse, tation, or distur justification of mental defect or evidence victim, age bance, or knowledge helplessness of the defendant’s level, planning mur maturity involvement the and defendant’s (citation II, A.2d supra, 157 N.J. at der.” Loftin omitted). defen demonstrates that of those factors Consideration average high level of moral blameworthiness. has an dant murdering Donaghy monetary Keith was Defendant’s motive pocket, apparently Donaghy’s Mr. gain. was taken from $191.32 Monetary is in the gain a motive common he was shot. as after eases, constituting than universe a motive more death-eligible height- blameworthiness is one third of those cases. Defendant’s ened, however, accomplished he could have by probability the committing robbery murder. the without sparse. Although premeditation defendant Evidence weapon in advance of the several weeks defendant borrowed weapon day that he borrowed it. killing, returned that the same he gun trunk of from the That retrieved Mills defendant suggests may night the murder that defendant have car on Café on the commit the murder while at Columbia decided to Thus, any, if mini- premeditation, night of the murder. mal. may been the murder have

There was some evidence drinking He was part to defendant’s intoxication. attributable apparently using night question also was on the alcohol However, drugs on drugs. of the alcohol and defendant effect rejected jury unanimously intoxication as a is unknown and the mitigating any factor. Nor provocation, was there evidence of justification or excuse. phase trial, penalty

At the presented of defendant’s he extensive physical impairments evidence that he from suffers brain as well psychological impairments. capaci- Defendant’s low intellectual ty places approximately eight him at percent the bottom of the poрulation, mentally within the borderline retarded low-normal category. Despite dys- evidence that defendant’s childhood was disorders, personality functional and contributed to his unanimously rejected defect, mental disease or or emotional dis- turbance, however, jurors, as a factor. Some found that resulting defendant suffered one or head more traumas in an condition, organic brain and that was he raised a home with an emotionally physically abusive father. likely knowledge

It is that had help- defendant of his victim’s only Donaghy duty lessness. Keith was the attendant on in the gas night station on the he was murdered. Other than defen- suicide, dant’s co-defendant who committed there no were wit- crime, to nesses which indicates the area was deserted Donaghy especially and that Mr. was vulnerable to attack. It appears that defendant relied on the victim’s solitude and vulnera- bility planning the attack. twenty-two

That years defendant was old the time of the homicide diminishes his blameworthiness to some extent. Defen- presented maturity signifi- dant also that his evidence level was cantly age lower than his actual because of childhood traumas and I.Q. however, jury, age low The not did find defendant’s or maturity level be a mitigating to factor. planner

Whether defendant was the sole of the murder is trial, uncertain. Mills committed before suicide defendant’s testify therefore was unable to about whether defendant was solely responsible Moreover, for the crimes. there is evidence to finding support played a that Mills a substantial role planning robbery and commission of the and murder. is sum, moral blameworthiness of defendant’s

In the level premeditation have little appears to been average high. to There However, murder. young at the time was and defendant complete and lack remorse callousness exhibited defendant Donaghy a that he shot told cellmate his victim when he toward Moreover, kill defendant’s if like” to someone. “to see what felt vulnerability helplessness also a knowledge of the victim’s high average moral blamewor- supports finding factor thiness. Degree

2. of Victimization on the relative degree of victimization based evaluate the We injury to nondece- brutality and the of the murder violence and average in this case is of victimization dent victims. extent present people while this were no other low. Because there injuries no victims. place, there were to nondecedent murder took instantaneously shooting him in Donaghy killed Mr. Defendant through passed his brain exited his left cheek. The bullet lingering death. Donaghy not suffer a back of his skull. Mr. did presence no that was aware of defendant’s or There is evidence he appears Mr. in fear his life. It that defendant shot that he was happening Donaghy had chance to realize what before he Thus, indica- instantaneous. there is little and that his death was emotionally physically suffered either tion that the victim Moreover, concerning no evidence was adduced his death. before family. of the on the victim’s effect offense

3. Character of Defеndant history, Here, prior criminal un we defendant’s consider violence, authorities, cooperation with remorse and related acts of TV, 366, Bey supra, capacity for 137 N.J. at 645 rehabilitation. prior of arrests and 685. Defendant’s record consists three A.2d possession His first was for of one unindictable conviction. arrest charge outstanding. marijuana is still His second arrest and that assault, pled guilty to and was assessed a simple for which he possession was for of controlled fine. His last arrest $100 charges drug paraphernalia. and Those dangerous substance 407 murder, were Prior to engaged dismissed. this defendant had no acts other unrelated of violence. There is no evidence cooperation Although with authorities. not defendant did submit factor, as a mitigating remorse the record indicates that he disbelief, regret exhibited emotion and over what he had done. Nevertheless, defendant’s callous comments to his cellmate about why Donaghy point he killed range at blank indicate callousness any Concerning belies potential remorsefulness. his rehabilitation, presented defendant evidence that he could be prison, rehabilitated in a structured environment such as jurors potential three found that to exist.

Overall, culpa- these facts lead us to conclude defendant’s bility low, Although degree is substantial. of victimization is culpability average moral high. are blameworthiness to Comparison

B. Group Defendant’s precedent-seeking In comparison we review use the same group II, that was supra, used salient-factors test. Chew 214, 159 A compare N.J. 731 .2d 1070. We the facts of the comparison group cases to the facts of case and defendant’s disproportionate determine whether is defendant’s sentence comparison culpability comparison group. with the levels of “identify comparison We group aggravating all relevant factors, statutory non-statutory, both that are ” sentencing II, guidelines.’ ‘rooted in supra, traditional Loftin III, (quoting supra, N.J. at 724 A.2d 129 DiFrisco 442). 184-85, N.J. at A.2d above, assigned subcategory

As noted the AOC defendant F- parties agree factually 2. The on thirteen cases that are similar to purposes precedent-seeking defendant’s for review. With the (murder exception assigned Loftin Donald who to cell F-3 robbery business), in the course of than other a home or all of those are cell assignment proposes eases within F-2. Defendant objects. ten excep- additional cases which the State theWith Fauntenberry, tion of assigned (prior John who is to cell B-l conviction), are also within cell of those additional cases murder all that all those cases have assignment F-2. Defendant contends they all involve deliberate similarly-situated defendants because robberies, during planned in which the defen- committed murders death of the victim. To were certain to cause the dant’s actions complementary to our precedent-seeking that review is ensure our results, by proposed cases test we will include those salient-factors subcategory performing are in the F-2 defendant analysis. completeness, In of the interests comparative-culpability Fauntenberry, who is we consider the case John will also B-l, 1, assigned to Donald Loftin who is cell assigned cell F-3. II, supra, process “the acknowledged Cooper

As we inherently subjective conducting review is precedent-seeking prescribed any analysis on standards not itself to based does lend N.J. A.2d 1000. We noted that when or factors.” 159 at “compar[e] standpoint of a we homicides from the defendant’s victimization, obviously or the extent of there will blameworthiness ample disagreement over which defendant was more be room Id. culpable and which homicide was more violent and horrific.” However, 92-93, “[t]he virtue of 731 A.2d 1000. we believe that examine, precedent-seeking impels is it review that the Court evaluate, compare by committed whose homicides defendants by crimes were to the homicide committed the defendant similar review, analyze resulting is whose death sentence under whether, context, sentences, unique in that and determine aberrational.” Id. at defendant’s death sentence is acknowledge fallibility process ... “[t]he [a] 1000. We also subjective depends exclusively imprecise, ... on reactions almost Despite comparison Ibid. to the cases.” flaws the Court however, process, process “we of the remain convinced that the that, indispensable component proportionality an review and identifying properly applied, it the Court in and isolat can assist ing disproportionate sentences of death.” Ibid.

C. F-2 That Trial Penalty Cases Proceeded to Appendix opinion a description this contains of the comparison descriptions cases. The of the cases are on based published opinions the of in and on discussion cases found AOC’s Detailed Narrative Summaries. twenty-one subcategory

Of the in the F-2 cases that are to be ease, compared penalty with defendant’s twelve involved a trial. cases, Of those twelve two resulted in death sentences: Jacinto Hightower Accordingly, dispro- and Robert Morton. no issue of presented portionality those defendants. Downie, imposed capital

The life on sentences defendants John Hart, Craig Roger Hoyte, David Joseph Mark Russo and Wilson sentence, readily can large be reconciled with death defendant’s part mitigating accepted by jury because evidence that part showed extreme mental or emotional on disturbance defendants, crime, youth immaturity their at the time of the capacity their diminished at time of the crime and that the significant history. acknowledge defendants had no criminal We age defendant Feaster’s when he committed the was homicide defendants, comparable to that of jury those but Feaster’s not did age find be mitigating jury accept a factor. did the Nor evidence that defendant suffered a mental disease or defect or mitigating emotional disturbance as factors.

(We dissenting colleague note that that connection our relies II, 340-41, opinion on this Court’s 157 at A.2d N.J. Loftin 129, in which thе Court reconciled life a Feaster’s sentence after attendant, guilty plea gas to the a murder of station committed homicide, subject subsequent to the on the basis Feaster’s head injuries, 411-12, 414, youth, and abusive childhood. Infra II, Notwithstanding A.2d at 281. those observations Loftin question primary there can no be basis reconciliation with life Loftin’s death sentence Feaster’s sentence for his previously second homicide is in the fact rooted that Feaster had homicide.) subject been sentenced to death for the Downie, prior twenty-four-year-old defendant no a John history, gas a station attend- and then murdered criminal robbed running police who him ant. then at a officer witnessed He shot dysfunctional upbringing gas Downie’s from the station. A long history he of emotional disturbance. chaotic and had family members psychologist at his trial that defendant’s testified c(5)(a) (extreme schizophrenic. The found the emotion- were (diminished c(5)(f) c(5)(d) disturbance), c(5)(c)(age), capacity), al e(5)(h) (catch-all) (no history) and significant criminal factors. Hart, defendant,

Craig twenty-five-year-old robbed and mur- prior record had a a taxi Hart had no criminal but dered driver. c(5)(a) marijuana history jury found the of cocaine and use. The (diminished e(5)(d) (extreme disturbance), c(5)(c)(age), emotional c(5)(h) (catch- c(5)(f) (no significant history) and capacity), criminal all) mitigating factors. history a

Roger Hoyte, twenty-two-year-old with a defendant abuse, heroin, marijuana shot and killed three taxi cocaine and (no c(5)(f) c(5)(c)(age), significant jury The found drivers. state) c(5)(h) history), c(5)(g) with (cooperation criminal and (catch-all) mitigating factors. Russo, thirty-two year Mark a old intoxi-

David defendant was employee seriously a and gas when he murdered station cated c(5)(a) (extreme injured jury two others. The found the emotional c(5)(d) (diminished (no disturbance), c(5)(f) c(5)(c)(age), capacity), c(5)(h) (catch-all) significant history) mitigating fac- criminal and tors. Wilson, nineteen-year-old history with a

Joseph a defendant use, employee marijuana and cocaine murdered an at a meat c(5)(d) (diminished c(5)(c)(age), jury found the ca- market. c(5)(h) (catch-all) pacity) and factors. the life

To reconcile defendant’s death sentence with sentences Jones, imposed Larry Slaughter, Stamps Aaron and on Rafael more Those had Charles Wiliams is difficult. defendants neither significant histories of extreme mental or emotional disturbance or disease, jury nor did the they believe capaci- exhibited diminished ty did, at the time of jury however, their crimes. The attach significance youth immaturity in three of the four defen- Jones, dants’ Slaughter Stamps. cases— Jones, Larry twenty-seven-year-old defendant who was raised poverty support little parents, emotional from his shot and killed the owner of a produce seafood and distribution busi- ness. He and his co-defendant then employees locked four other of the into business a walk-in freezer and left them there. The jury c(5)(h) (catch-all) c(5)(c)(age) found the mitigating fac- presented tors. That evidence was of Jones’ intoxication when he committed the may murder jury have influenced the in its decision imрose not penalty. the death Slaughter,

Rafael twenty-two-year-old defendant, shot and young employee killed a aof fast-food restaurant because the employee provide was unable to the defendant with the combina- c(5)(h) tion jury (catch- to the safe. The found the e(5)(c)(age) and all) mitigating factors. Slaughter’s youth Evidence of and imma- turity may jury’s have contributed to the decision not to sentence Testimony by him to death. helpfulness relatives of his toward family and involvement may with his also have influenced the may account for the difference between his sentence and Feaster’s. Stamps, defendant,

Aaron twenty-six-year-old a shot and killed security guard a jury in a bank. The c(5)(c)(age) found the and c(5)(h) (catch-all) mitigating too, jury factors. apparent- Here the ly Stamps’s age believed that immaturity contributed to the Moreover, I.Q., crimes. evidence of his low troubled childhood history, and medical apparently precluded which him from work- ing, arguably account for his life sentence. Williams, twenty-eight-year-old

Charles a defendant with a his- tory disturbance, severely of emotional a abusive childhood envi- cocaine, history use, ronment marijuana and of and alcohol shot and killed a manager. fast-food restaurant He also shot at and and at a witness as the

severely employee, shot wounded another jury rejected mitigating the The all of witness fled scene. (catch-all) e(5)(h) than presented by other factors Williams mitigating twenty-eight fifty It of the catch-all factor. found Thus, espe- of his by the defendant. evidence factors submitted subsequent drug his cially horrific and abusive childhood jury’s impose to likely decision not abuse affected the alcohol penalty. death us to reconcile with case of Jaber Saleh is difficult for Abdel Saleh, twenty-two-year-old defen- of defendant Feaster.

that history psychological problems, no or mental stran- dant with workplace, gled a ware- and assaulted his victim in the victim’s bound, gagged and set victim on fire before house. Saleh then he on fleeing the scene. The victim was still alive when was set steadily prior no employed and had criminal fire. Saleh was (no c(5)(f) significant history) jury criminal record. The found c(5)(h) (catch-all) part mitigating factors. As catch-all factor, family, including his found that Saleh’s two-year-old daughter, psy- would suffer emotional and wife jury was to chological harm if were executed. The unable Saleh thereby agree sentencing, precluding imposition of the death on penalty. more than in the Without information that available summary, case we are to account for the difference AOC unable sentencing in case and that of defendant Feaster. this acknowledge imposed on

We life sentence defendant readily cannot be reconciled with defendant’s death sen- Saleh Nevertheless, significant dispropor- find tence. we no evidence tionality comparison subcatego- and the based on the of defendant ry proceeded penalty F-2 defendants whose cases to a trial. Trial Penalty

D. F-2 That Did Proceed to Cases Not compare with nine cases the F-2 We next defendant’s case so, subcategory proceed penalty doing not In we that did trial. difficulty comparing death concede defendant’s sentence guilty plea are the result of a or a the sentences defendants that following non-penalty phase conviction a largely trial. That is because the AOC summaries do specifically not indicate the fac may tors that have proceed contributed to the decision to non eapitally. II, As in Cooper supra, eases, we observed some “[i]n summary sufficiently permit AOC’s detailed to the Court to by deduce may inference what persuaded considerations have prosecutor forego penalty eases, to a trial. In other the reasons why prosecutor forego capital prosecution elected to a are less apparent.” proceed because, N.J. at 731 A.2d 1000. We limitations, despite comparisons may those be useful. comparison Emmanuel, In the Hickson, cases of Dwight Charles Inman, Anthony Jones, Khalif Rodriquez Soto, Harold and Jose forego rationale for the decision to capital prosecution can be summary. inferred from the AOC’s Emmanuel, eighteen-year-old

Charles an high-school student juvenile with history an extensive history regular and a mari- juana use, pled guilty felony-murder for the homicide of a fast- employee. food restaurant present (implying AOC coded as they likely were by jury to have been found a in the event of c(5)(d) (dimin- capital prosecution) a c(5)(c)(age), factors c(5)(f) (no c(5)(h) capacity), significant ished history) criminal (catch-all). Among likely the factors that were to have influenced prosecution prosecute its decision not to the defendant capitally youth, were the defendant’s as well apparent as his intoxication at the time the murder. Hickson,

Dwight twenty-six-year-old a high dropout school history marijuana, use, angel alcohol and dust and a co- defendant, gas shot and killed a station attendant. The AOC c(5)(d) (diminished c(5)(h) present coded as capacity) (catch-all) mitigating prosecution’s factors. The prose- decision to non-capitally cute the likely case was influenced the defendant’s capacity drug diminished due abuse at the time of the crime. Anthony Inman, twenty-one-year old defendant who was significantly drugs under the influence of and alcohol at the time homicide, he committed a entered a store to rob it. Defendant to employees. pled guilty Inman and killed one of the store’s shot manslaughter, among charges. The aggravated other related e(5)(d) (diminished ca- present mitigating as factors AOC coded c(5)(h) (catch-all). likely prosecu- pacity) among It is that the and non-capitally were the prosecuting the defendant tion’s reasons for capacity due to intoxication youth and diminished defendant’s an apparently murder that Inman did not form the time of the weapon. intent to kill until the reached for his own victim defendant, James, nineteen-year-old and killed a Khalif a shot station, robbing gas guard dog gas a station attendant. While The was to shoot bit one of his co-defendants. defendant about dog second when the victim also attacked the co-defendant. as then killed victim. The coded The defendant shot and AOC (no c(5)(d) (diminished c(5)(f) (c)(5)(c)(age), capacity), present the c(5)(h) (catch-all) history) mitigating fac- significant criminal may prosecution’s have to the tors. Factors contributed prosecute capitally decision to the defendant included evidence not murder, may he that James was intoxicated at the time of the merely to intended to not have intended kill the attendant but and, shooting leg although to by him him in the insufficient wound defense, legal provocation. a some evidence of constitute Rodriguez, thirty-seven-year-old unemployed defen- a Harold children, history a dant married with three has of severe who was AIDS, pled diagnosed heroin and was with and cocaine abuse guilty gas to the murder of a station customer. The coded AOC c(5)(d) (diminished present mitigating capacity) and factors c(5)(h) (catch-all). prosecution’s prosecute to decision non-capitally apparently defendant was affected the defen- capacity his dant’s diminished due to intoxication and addiction twenty years. heroin for That the and cocaine over defendant may married three and has also affected with children AIDS have prosecution’s decision. Soto, nineteen-year-old high drop-out Jose school history use, marijuana pled guilty aggravated of alcohol manslaughter homicide the co-owner of a Chinese restaurant. The defendant also shot at the victim’s husband. The (di- c(5)(d) present mitigating c(5)(c)(age), AOC coded as factors e(5)(f) (no capacity), significant history) minished criminal c(5)(h) (catch-all). Among may the factors that have influenced prosecution’s prosecute non-capitally determination to the case capacity were the defendant’s diminished due to intoxication and youth at the time of the murder. prosecution’s To determine the reasons that affected the deci- proceed non-capitally sion to of the P-2 some other cases is apparent difficult more because of the absence of decisive factors. Nonetheless, compare non-capitally prosecuted we those to eases currently defendant’s case based on the information available to us. defendant, Culley, nineteen-year-old gas a

Carl murdered a presumably station attendant because he did not want the victim identify present c(5)(c)(age) to him. The AOC coded as c(5)(h) (catch-all) mitigating Among may factors. the factors that prosecution have influenced the prosecute its decision to non-capitally age, significant defendant were his his lack of a child, history, sexually criminal indications he was abused as a accidentally and the defendant’s claim that the first shot was fired grabbed gun. when the attendant the barrel of the Harris, Timothy nineteen-year-old a defendant with an exten- juvenile record, prior sive record but no adult criminal shot and store-employee money killed who refused to hand over to him present c(5)(c)(age), and his co-defendant. The coded as AOC c(5)(f) (no e(5)(h) (catch-all) significant history) criminal miti- gating prosecution’s prosecute factors. The decision to the defen- non-capitally likely youth dant was influenced the defendant’s and lack of a criminal record. summary prevents

The lack of detail in the from AOC’s us reason, defendant, discerning youth why other than the of the prosecution prosecute non-capitally Corey chose to case Washington. Washington nineteen-year-old was a defendant who pled guilty purposeful knowing to the murder of clerk- coded as The AOC cashing establishment.

employee at a check c(5)(h) (catch-all). c(5)(c)(age) and mitigating factors present death sentence sum, comparison of defendant’s our In cases nine defendants whose imposed on the sentences with the subcategory F-2 phase within the penalty to a proceed not did disproportionality. significant evidence us to find does not lead to provide with sufficient bases us case summaries The AOC’s accounted apparently existed and justifiable reasons conclude against non-capitally proceed decision to prosecution’s for the James, Hickson, Inman, Emmanuel, Rodriguez and defendants reasons for Likewise, although easy to infer the it is not as Soto. prosecu satisfied that the non-capital prosecutions, we are their non-capitally in the cases proceeding cogent reasons for tion had information Culley do not have sufficient and Harris. We non-capital prose justification for the there was ascertain whether review, conducting proportionality Washington. When cution of prevention however, objective primary is the detection “[o]ur II, Cooper supra, 159 N.J. sentences.” of aberrational 129). II, (citing supra, 157 N.J. at A.2d 1000 Loftin such, death sentence that defendant Feaster’s we do not find As imposed on those compared the sentences aberrational when prosecuted category F-2 who were not within the defendants capitally. Categories

E. Other section, the cases of two compare defendant’s case to In this we Fauntenberry, defendants, who are Loftin and John J. Donald subcategory, of the F-2 neither assigned categories other than to phase. penalty to a proceeded cases whose (1), college twenty-seven-year-old full-time stu- a Donald Loftin housekeeper in dent, killing of a of murder for the was convicted (extreme c(5)(a) City hotel. The found an Atlantic casino (no c(5)(f) disturbance), significant criminal c(5)(c)(age), emotional (catch-all) c(5)(h) prosecu- mitigating factors. The history) and non-capitally likely prosecute the defendant tor’s decision to tending by mitigating evidence to show extreme influenced the time of the murder. mental or emotional disturbance Moreover, prosecutorial strategy prior-murder to enable the a aggravating an factor Loftin’s conviction to be offered as may to subsequent murder trial have contributed to decision proceed non-eapitally. Fauntenberry, unemployed twenty-seven-year-old a de-

John J. alcohol, abuse, history pled cocaine and fendant with LSD guilty driver he shot once in the to the murder of truck whom stop way to his home in head at a truck while on his back Ohio. activity The truck driver solicited the defendant for homosexual subjected him. to before the defendant killed The defendant was step-fathers physical mental and abuse at the hands of various childhood, during his and there are indications that the defendant being sexually witnessed his sister abused. own c(5)(h) (catch-all) likely prosecution was factor was found. The by prosecute non-eapitally the evi- influenced to the defendant severely abusive child- dence of the solicitation and defendant’s Further, already a death hood. that the defendant had received try may have contributed to that decision to sentence Ohio also non-eapitally. the defendant Precedent-Seeking Review

F. Conclusion 1000, and Cooper, supra, 159 N.J. As we noted now, acknowledge again process precedent-seeking review subjective apply: imperfect, is and difficult to acknowledge conducting precedent-seeking we Preliminarily, process subjective on is does not lend itself to based analysis review inherently any comparing of a standards or factors. In homicides from the prescribed standpoint will be victimization, defendant’s blameworthiness or the extent of there obviously disagreement which room for over which defendant was more ample culpable disagreement was more violent and horrific. is inevitable Similarly, homicide distinguish concerning on the basis of their characters and our effort defendants backgrounds. precedent-seeking that it The virtue of review is the Court impels committed defendants whose crimes examine, evaluate, and homicides compare by were similar to the homicide committed the defendant whose death sentence resulting in that sentences, whether, under determine review, analyze the defendant’s death sentence is aberrational. The context, fallibility unique subjective on reactions that it almost exclusively imprecise, depends process its we remain convinced flaws, to the eases. Despite the Court by comparison and that, review is an component proportionality process indispensable identifying isolating in it can assist the Court and disproportion- applied, properly of death. ate sentences [Id. 1000.] 731 A.2d 92-93, conducting acknowledged Cooper that “our aim alsoWe high symmetry, even a review is not to insure or proportionality correlation, imposed comparable in the sentences on degree of objective preven primary is the detection and defendants. Our 1000. That Id. at tion of aberrational sentences.” proportionality impelled review is New Jer narrow focus of juries sey’s capital punishment penalty-phase that vests statute reject impose based on the discretion to death sentences broad balаncing mitigating factors specific jury’s aggravating of the virtually specific in a case. That element of discretion necessarily “symmetry, be or even a assures that there will not high degree imposed in the sentences on defen of correlation” goal proportion comparable who commit homicides. Our dants review, ality accepting a fact that correlation of sentences occur, unlikely identify among comparable homicides is is to imposition capital punishment. prevent the aberrational carefully comprehensively reviewed defendant’s We have compared imposed it to sentences on other death sentence and factually homicides. Defen- defendants who committed similar attitude the cold- dant’s lack of remorse for and callous about blooded, execution-style helpless murder of a defenseless and culpability. persuad- are victim indicate a substantial level of We is not aberrational and is ed that defendant’s death sentence reconcilable with most of the non-death-sentenced defendants’ prosecute those cases sentences or with the State’s decision to easily non-capitally. eases that are not reconcilable are few Those in number and do not diminish our conclusion that defendant’s disproportionate. Although acknowledge death sentence is not we cases, proceed especially for those that did not that for some penalty phase, information in the case to a more detailed AOC’s ability prece- enhance the to conduct summaries would Court’s cur- review, persuaded that the information dent-seeking we are goal of enable us to achieve rently available is sufficient to review, detecting preventing aberrational sen- proportionality Here, Feaster’s sentence convinced that defendant tences. we are not aberrational. of death is

IV Arguments Other constitutionality of his death sentence challenges the Defendant argues Defendant that grounds of racial discrimination. on the helps which defendants victim determine the race of the murder prosecuted. capitally will be special commitment emphasized repeatedly “our has

This Court II, justice.” supra, of Marshall equality in the administration 207, that “New have observed at 613 A.2d 1059. We 130 N.J. racial never countenance Jersey’s history and traditions would ... “would mock capital sentencing.” Ibid. To do so disparity in equal protection of the laws guarantee of our ... constitutional I, paragraph Article 1.” Ibid. Jersey under New Constitution methodologies employed proportionality about the Concerns 286, 129, II, us, at supra, 157 N.J. review led Loftin requesting the Special designating a Master an order issue among things, covering, other report to the Court of a submission in both individual relating models used “questions to the statistical 1, December proportionality review.” Ibid. On systemic Report to the Judge David Baime issued Special Master (Dec. 1, Project Proportionality Review Systemic Supreme Court: II). 1999) (Baime Report (II), Project 165 N.J. Proportionality Review

In In re (II)), (2000) thor- we reviewed (Proportionality Review A.2d Judge findings and recommendations. oughly Judge Baime’s of statistical evidence report that no reliable Baime’s concluded been penalty has application of the death effect race produced: We find no statistical evidence that the race of the defendant influences reliable sentencing stage larger death-eligible at trial or in the death either the penalty of cases. Nor does the statistical evidence the thesis that the race support sample progress Further, of defendant affects which cases to a trial. penalty suggests that of victim not affect death statistical evidence the race does sentencing victims are no more to receive the death rates —killers white likely monitoring than killers of non-white victims. our Finally penalty application indicating no consistent statistical evidence the race of the discloses system progress However,

victim affects which cases to a trial. some penalty conflicting, be evidence in and the issue should revisited when the respect database increases.

[Baime II, 66.] Report supra, Accordingly, Judge appli- we concurred Baime’s conclusion that penalty racial cation the death is not affected bias or (II), Proportionality supra, discrimination. Review 165 N.J. at reject argument. 757A.2d 168. defendant’s We thus V Based on our determination that defendant Feaster’s death disproportionate, sentence is not we affirm the sentence of death.

APPENDIX COMPARISON CASE SUMMARIES Penalty

A. Trial Cases John Downie 25,1985, gas

At a.m. 3:35 on December Downie robbed a station planned robbery and murdered the attendant. Downie had open gas advance and had searched for a while before he found an gas duty, station. he When encountered station attendant on missed, he fired two shots at him. The first shot but the second shot hit the attendant in the chest and killed him. As Downie ran station, gas police from the a officer observed him. Downie shot times, Downie, officer four but none of the shots hit him. station, possessing gas cash he from stole hid the woods. emotionally male whose avidly religious, disturbed is an Downie dysfunctional family described at trial members were depression. His mother suffered from schizophrenic. Downie’s affair after Downie was born a child in an extramarital father had schoolchild, peers ridiculed Downie’s rarely home. As and was school, disruptive in “fatty.” he was him Because him and called Study team. him to a Child When authorities referred school old, years parents moved to eighteen his Downie was seventeen Florida, spite of his they let him move with them refused to in a left behind and lived Downie thus was desire to do so. abused, there and which where he was beaten household drugs consumed. parties and alcohol were were where twenty-four years old when he committed Downie considerably than most less mature robbery-murder, but was may a head trauma that age. Downie had suffered people his syndrome. He was unmarried organic personality have caused high-school steady girlfriend. He was a had a and had never jobs. On prior record who worked odd graduate no criminal crime, get commit suicide to night he had intended to of the However, changed mind and decided family. he his even with committing the robbery confessed to instead. Downie to commit presentence prepared his probation officer who murder to report. murder, murder, felony capital Downie of

A convicted murder, weapon for an robbery, possession of a attempted jury ensuing penalty phase, a found the At the purpose. unlawful e(4)(f) (escape felony) rejected the but c(4)(g) (contemporaneous (extreme c(5)(a) detection) jury found the aggravating factor. The c(5)(d) (diminished disturbance), capacity), c(5)(c)(age), emotional (catch-all) c(5)(h) (no c(5)(f) miti- history), and significant criminal outweigh the mitigating factors were found gating The factors. Therefore, the the determined aggravating factor. Dow- imposed. court sentenced not be The penalty should death years with imprisonment plus eighteen aggregate life to an nie disqualifier. thirty-six year parole Craig Hart 26, 1984, got April Hart into a taxicab at 5:30 a.m. He told

On going driver that he was to rob him and ordered the driver to the in the seat of the taxi. Hart shot the driver lie face-down front firing gunshots, in the of the head. After the fatal twice back cash, card, the driver’s credit wallet and watch. Four Hart stole later, committing weeks Hart was arrested for an unrelated robbery robbery-murder. to the and confessed unemployed twenty-five-years-old high-school

Hart was an graduate had as a clerk who worked mailroom and cabinet maker. marijua- prior history. He had no criminal He abused cocaine and appeared psychological problems. na to have no but pled guilty purposeful-or-knowing Hart murder armed robbery. prosecuted capitally. jury, believing him The State robbery-murder, that Hart was intoxicated when he committed the c(4)(g) (contemporaneous felony) aggravating the found factor and c(5)(a) (extreme ‍​​​​‌‌‌​‌‌​‌‌​​​​‌​​‌‌‌​‌‌‌​​‌​​​​​​​​​​​‌‌‌​​‌​‍c(5)(d) disturbance), c(5)(c)(age), emotional (diminished c(5)(f) (no capacity), significant history), criminal c(5)(h) (catch-all) mitigating aggravating factors. The factor was clearly outweighed by found to be factors. The imprisonment court sentenced Hart to life for the murder and a twenty-year prison robbery consecutive term for the with an aggregate forty-year period parole ineligibility. of a Hightower Jacinto 7,1985, July Hightower

On walked into the Cumberland Farms Willingboro. Hightower Cynthia convenience store in asked Bar- lieb, clerk, cigarettes. the store for a carton of While she was retrieving cigarettes, Hightower changed sign on the “open” store’s front door from to “closed.” He returned to the counter, pulled gun, open out a and order Barlieb to the cash declined, register. She and he shot her the chest. She open register, continued to refuse to and he shot her Hightower open register neck. tried to himself and became inability grab frustrated his to do he so. When felt Barlieb

423 body dragged lifeless Hightower her in the head. leg, he shot her freezer, lights left the store. and turned off into the lеave from the years and was on twenty-one old Hightower was Disciplinary murder. Army the time of the States United grade, in tenth but drop high school him to out of problems caused diagnosed him with Psychiatric experts later earned GED. he abuse, neurosis, drug borderline episodic and alcohol depressive and antiso- disorder, personality disorder narcissistic personality the antisocial A defect caused brain personality cial disorder. disorder, affective His mother had mild personality disorder. impulse control. difficulty with swings, and had experienced mood him; nonethe- boys young, other sodomized Hightower was When Hightow- him. less, attention for not seek medical his mother did time, engaged long periods of often absent for er’s mother was affairs, hated them because children that she and told her multiple in an abusive and He was raised they deprived her of freedom. dysfunctional environment. murder, murder, felony armed jury Hightower of

A convicted sentenced to He asked to be robbery weapons offenses. and c(4)(f) c(4)(c) (torture depravity), jury The found the death. murder) detection), (felony aggravating factors e(4)(g) (escape and c(5)(h) (catch-all) record) e(5)(f) (no prior but reversed the convictions affirmed factors. This Court erroneously instructed the the trial court sentence because death 120 mitigating factors. unanimity required to find jury (1990). Hightower, and The retried A.2d 99 State N.J. jury found the him to death. also sentenced the second murder) detection) aggravating c(4)(f) (felony c(4)(g) (escape c(5)(h) (no record), c(5)(f) prior c(5)(e)(age), and the factors improperly (catch-all) trial court Because the mitigating factors. deliberations, again reversed this Court juror during removed (1996). A .2d 649 146 N.J. Hightower’s death sentence. pending. penalty trial is Hightower’s third Roger Hoyte November, 1995, Hoyte

In October and murdered three taxicab killings, drivers the Newark area. For the first two he and co- Larry Mayo defendants Andres Torres and called for a taxicab. occasion, Hoyte got each when the On taxi arrived into the back head, fatally seat of the taxi injuring and shot the driver the taxis, money, him. His the co-defendants drove took each driver’s removed their shoes and discarded their bodies.

Only Hoyte murder, participated and Torres in the third which nearly was committed in a similar manner and occurred two weeks after the gunshot second murder. The driver survived the first wound, Hoyte him so shot twice more him in and stabbed the taxi, Hoyte neck. Torres drove the and he and took the victim’s money dumping body garbage and shoes before his dead in a can. Hoyte and his co-defendants removed each victim’s shoes so the police fingerprints they could not trace to them the had left on the shoes.

Hoyte handgun used the same .22 caliber in all three homicides. gun He and co-defendant Torres stole the a month before the murder, during Hoyte’s burglary employer. a days former Two killing, Hoyte gun fifty after the last sold the for dollars. Mayo’s girlfriend implicated Co-defendant Hoyte and Torres well-publicized arrest, the Following taxicab-driver murders. his Hoyte confessed, telling police the officers of his and his co- Hoyte defendants’ involvement inculpаted crimes. also Mayo and two other men in an unsolved taxicab-driver murder years that had occurred two earlier.

Hoyte, twenty-two-year-old unemployed a high-school graduate, heroin, cocaine, marijuana every used day years for the three preceding prior posses- arrest. He had a arrest unlawful weapon pursuant sion of a participation was dismissed to his in pre-trial program. intervention

Hoyte pled guilty capital murder, to three felony counts each of murder, robbery, carjacking, possession unlawful weapon, of a weapon purpose, conspiracy to possession for an unlawful each robbery. pled guilty He to one count also commit penalty phase, jury At found that for burglary theft. proven c(4)(g) (contemporaneous the State had each murder c(4)(f) rejected (escape detec- felony) aggravating but it factor tion) jury c(5)(c)(age), aggravating factor. The found (no c(5)(f) history), c(5)(g) (cooperation significant criminal state), c(5)(h) (catch-all) present mitigating factors were unanimously agree on could not sen- for each victim. Hoyte term of tencing. aggregate to an The court sentenced ninety years parole ineligi- and life sentences three consecutive bility.

Larry Jones victim,

Larry partners one of in a and killed his two Jones shot him, distributorship. he shot produce After and wholesale seafood against put gun the neck of employee to the an tried flee. Jones if partner kill the partner threatened to the surviving the and (no away. Eugene Jones employee Jones and co-defendant ran relation) partner’s and at surviving the wallet from stole $1000 plea help to Rejecting get a the from the victim. least $2000 victim, employees, a customer partner, two and Jones forced the fleeing. in which them before go into walk-in he locked a freezer escaped unharmed. four from the freezer men old,

Jones, nurturing in little his twenty-seven years received family when Jones was His father abandoned the childhood. completing dropped school after years out of three old. Jones family, rarely grade support but worked. eighth in order to had problems. two or substance abuse Jones He had no emotional psychiatric had an extensive were under care. children who He_ robbery prior convictions stem- juvenile He had seven record. may when he been intoxicated ming from two incidents. He have victim, but shooting the murder. He confessed committed grabbed it. gun off the victim went when he claimed juryA murder, felony murder, convicted Jones of four counts robbery each kidnapping, weapons offenses. The c(4)(b) (grave found the risk of death person) to another c(4)(g) (contemporaneous felony) aggravating factors and the c(5)(h) (catch-all) c(5)(c)(age) and rejected factors but c(5)(d) (diminished proposed capacity) mitigating factor. The jury found that aggravating outweigh factors did not mitigating factors and did not sentence Jones to death. The court him imprisonment. sentenced to life Weary Robert Morton night 23, 1993,

On the February Mortоn and his co-defendant Bryant Alonzo decided to commit robberies. p.m., At about 10:20 they Toby stabbed parking Chrostowski go-go lot of a bar in Burlington Township. Chrostowski stabbing, survived the report- provided ed the incident and description of his attackers. later, About two early hours in the morning February hours of police officer gas discovered a attendant, station Michael Eck, on the floor of the attendant’s office at an Amoco station. Money had been taken pocket, from Eck’s front and several cigarettes cartons of missing were from the attendant’s booth. Eck arm, had been groin, stabbed and chest. Eck told the officer that he had been men, stabbed young two black described their car. Eck later died.

That morning, same Bryant Morton and went hospital to a local because Morton had a Eck, knife wound. stabbing While Mor- ton’s penetrated knife had glove and cut finger. his left index injury, His witness Bryant, identifications of Morton and and incriminating Bryant’s girlfriend statements from and her room- police mate led Bryant. to arrest Morton and Morton admitted to stabbing Bryant him, Eck as beat Bryant and said that had also stabbed Chrostowski. Morton said that Eck offered no resistance begged alone, and to be left and that he killed him to eliminate a witness. twenty-five-years lived with his mother was old and

Morton age of had a car at the the time of the murder. He been struck and two concussion brain contusion and suffered cerebral seven, temporarily paralyzed. age placed he was left him At impaired. learning His perceptually classes disabled child, I.Q. mother, special classes as a was 82. His who was placed special Morton to have Morton classes. resisted efforts and a graduated high and had worked for K-Mart from school no pizza He is has one child. He has restaurant. divorced and mitigating No evidence was prior criminal convictions. other things a man presented felt that “there are some because Morton private.” keep must murder, murder, felony capital four convicted of

Morton was aggravated robbery, and counts of assault. counts of two detection) (con- c(4)(f) jury c(4)(g) (escape The found c(4)(c) rejected felony) but aggravating factors temporaneous (torture jury The found depravity) aggravating factor. (catch-all) c(5)(h) rejected c(5)(c)(age) mitigating factor but aggravating determined that mitigating factor. Morton outweighed the factors sentenced factors years’ aggregate an sentence of forth Morton also received death. other twenty years parole ineligibility. His imprisonment with sentencing purposes. merged for convictions Mark Russo David gas Mark Russo robbed station March 1985 David

On Swedesboro, seriously injured employees its murdered one of prior to planned the two weeks had crime about two others. He attempted victims to execute his three its Russo first commission. point-blank person at they lay the floor. He shot each on seriously injuring killing the other Joseph Iovanisci and range, seriously two, Kiley. Kiley brain- and Ann Dino Rossi damaged. old,

Russo, he years was intoxicated when committed thirty-two alcoholism, heroin history of cocaine and had a the crimes. He depression. completed grade addiction and Russo the eleventh and later obtained his He GED. enlisted the Air Force while in grade apprehen- eleventh in the Air remained Force until prior weapons sion. His record of a consists offense and a court drug martial for a offense. jury murder, murder,

A capital felony convicted Russo of two attempted murder, assault, counts of four aggravated counts of robbery possession armed of a weapon for an unlawful purpose. ensuing penalty phase, At the several Air Force Senior Officials about competence testified Russo’s extreme at work and nature, his non-violent and that Russo could still contribute to society sufficiently jury’s imposing warrant not the death c(4)(b) penalty. jury present (grave found risk of death to others) c(4)(g) (contemporaneous felony) aggravating factors c(4)(f) detection) rejected but (escape aggravating factor. The c(5)(a) (extreme jury disturbance), found emotional c(5)(d) (diminished (no c(5)(c)(age), c(5)(f) capacity), significant e(5)(h) (catch-all) history) criminal factors. The aggravating concluded to outweigh factors failed mitigating factors. The court sentenced aggregate Russo an imprisonment term plus forty years of life fifty-year period with a parole disqualification. Abdel Jaber Saleh

Abdel Saleh Jaber rented a U-Haul van and drove to Michael place of Rehani’s business in Hackensack to consummate a busi- buy ness deal in which Saleh towas videocassettes from Rehani. strangled Saleh Rehani and himhit over the with a head crowbar. dragged He then office, Rehani into his own gagged bound and him, him doused fluid charcoal and set him fire. on Rehani began still alive when burning Saleh him. While the fire burned, Saleh loaded his van with the videocassettes. Saleh then placed tapes in storage area he had rented in his wife’s name. They Rehani’s friends Rehani burning. put found out the fire but Rehani had firefighters died the time arrived at the strangulation, that the The medical examiner concluded scene. blows, capable causing death and burns were each head themselves. there, Angeles. A to Los to Ohio and flew drove from

Saleh Rehani, Angeles police murdering went to a Los after Saleh week murdering and that he had witnessed two Latino men station said investigation was the Subsequent revealed Saleh Saleh. perpetrator of the crime. twenty-two offense. He years was old at the time the

Saleh two-year-old daughter. He worked as married and had a was no operator company. He had for his father-in-law’s machine problems, prior abuse no criminal mental health or substance record. murder, murder, felony aggra- jury capital

A convicted Saleh c(4)(f) arson, jury (escape robbery. The found the vated detection) felony) aggravating fac- c(4)(g) (contemporaneous (torture e(4)(e) rejected depravity) or factor. It found the tors but (catch-all) (no c(5)(h) e(5)(f) significant history), and criminal the rejected c(5)(c)(age) The but the factor. faсtors Thus, to agree sentencing. the court sentenced Saleh could not on period thirty years forty-five year imprisonment plus with a life parole ineligibility. Slaughter

Rafael robbery of a Slaughter planned the Twenty-two-year-old Rafael about three the murder of his victims restaurant and fast-food employees As restaurant of the crimes. hours advance evening, down the preparing to close restaurant were employee, eighteen-year-old who Slaughter approached an male restaurant, gun taking put a behind the out trash him for back, and asked him to walk inside the restaurant ordered Slaughter employee told safe. combination When Slaughter employee combination shot that he did not know the pro- point-blank range. victim bled in the back from twice shooting, and after the fusely, lost twelve minutes consciousness shortly by drowning Slaughter died thereafter in his own blood. employees ground, had also ordered two female to the but he did Slaughter shooting, not shoot them. After the left the restaurant empty-handed.

Slaughter’s parents young were and immature when he was They neglected allegedly born. Slaughter gave his brother preferential Slaughter any treatment. not did have substance problems. abuse emotional helpful He was to his relatives they chores, when needed babysitting, assistance with or other matters. jury Slaughter murder, felony murder,

A capital convicted of weapons phase, In penalty offenses. the jury the found the c(4)(g) (contemporaneous felony) factor, aggravating and the c(5)(h) (catch-all) c(5)(e)(age) present. jury factors The deter- aggravating mined the factor outweigh mitigating did not the present Slaughter factors not and did sentence to death. The aggregate fifty years’ court sentenced him an imprisonment of thirty years parole ineligibility. with of Stamps Aaron

Stamps brothers, and his two co-defendants Melvin and Charles Stamps, conspired During robbery, to rob a bank. the Aaron Stamps middle-aged, shot security a guard married twice the chest. Stamps high

Aaron is a drop-out. school At of the time the he twenty-six-years arrest unemployed. old and He had previously worked a laborer at a sheet metal company. There history psychological is no problems. Although many used he drugs past, Stamps in the denied using being them or addicted to any adult, substance at the time of the murder. As an Stamps and, was arrested nine times was convicted of three robbery. penalty counts armed At phase, the psychiatrist a Stamps I.Q. testified that has an relatively good He 76. was a grade father, until student the ninth when his with whom he was close, very left grades the household. dropped, When his Stamps drugs. He in an air- got worked quit school and involved with quit. him to After conditioning plant severe asthma forced but stayed girl- job, babysat home and his quitting Stamps friend’s children. murder, murder, felony conspiracy jury Stamps of

A convicted robbery, robbery weapons offenses. armed armed commit factor, c(4)(g) (contemporaneous jury aggravating The found detection) c(4)(f) rejected (escape factor. It found felony) but e(5)(h) (catch-all) e(5)(e)(age) factors. outweigh mitigat- аggravating did not that the factors decided Stamps aggregate to an sen- ing The court sentenced factors. forty-year plus twenty years imprisonment tence of life period parole ineligibility.

Charles Williams restaurant, at McDonalds Charles eating a meal

After counter, up pulled out a .38 caliber to the Williams walked manager and money the restaurant handgun, from demanded top of each other. employees to lie down on ordered two other emptied out the cash accompanied manager as he Williams drive-through area. front counter and Williams registers employees into of the restaurant. the back then ordered three money from the safe and told manager to remove He ordered the manager He then made employees to lie face down. the other manager and one other shot the lie next to them. Williams down escaped employee The from in the other employee head. away. ran The fired at him as he although Williams shots store employee gunshot his head. manager from the wound to died damage that but severe brain Williams survived sustained shot permanently him disabled. left he murdered the twenty-eight years old when was

Williams prior several manager. He has never worked. With restaurant resisting theft, assault and robbery, burglary, convictions days of adult arrest, ninety-three his spent has all but Williams placed Special him in a Service authorities imprisoned. School life emotionally School because he was classified disturbed. He cocaine, marijuana, alcohol, abused but he never received child, substance abuse treatment. When he was a Williams’s parents, alcoholics, drug were both who addicts and abused and ten, neglected age him. From Williams’s father took him drinking neighborhood father, bars. His was who described as pimp, and a paramour womanizer his forced and Williams to engage in various sex acts while father watched. Williams’s sexually father abused sexually Williams’s sister and once abused violently Williams. His father also was abusive toward Williams’s mother, eyes, ribs, who received numerous black fractured hospital. once needed treatment at a Williams’s father broke years Williams’s when ribs he nine old because he had accidentally spilled frequent his father’s cocaine. Williams’s at- tempts protect siblings to from abuse often resulted in his receiving even more prostitute abuse. Williams’s mother was a and often left her children home alone entertaining while other During abandonment, men. periods these Williams would provide siblings food for himself by stealing and his from a local supermarket. Williams’s mother suffered several emotional breakdowns.

juryA capital murder, murder, convicted felony Williams of two attempted murder, counts of robbery, three counts of two counts aggravated assault and weapons four counts of offenses. The c(4)(f) detection) jury found (escape c(4)(g) (contempora- felony) c(4)(b) aggravating rejected neous factors but (grave another) risk of death aggravating jury factor. The also found c(5)(h) (catch-all) factor. The agree could not оn the appropriate penalty. The imposed court an aggregate imprisonment ninety-five sentence of plus years life seventy- years seven and parole ineligibility. one-half Joseph Wilson

Employees of a meat market working were outdoors when nineteen-year-old Joseph go Wilson told them not inside the happen.” He then “something was about to market because mask over his face. wearing meat-market a ski entered the owners, register Brian over to a where the market walked Wilson Szoke, Kennedy bagging were merchandise. Wilson and Peter gun toy gun, Kennedy. Assuming the to be a pointed gun a at thing Kennedy away “get and pushed gun the told Wilson to placed gun then went to and out of here.” Wilson Szoke Kennedy. had as against head. the same reaction Szoke’s Szoke head, died a then fled the market. Szoke Wilson shot Szoke days few later. fighting the ninth expelled from after

Wilson was school cook, factory worker and subsequently worked grade. He a daughter He has whom he sometimes gas station attendant. any psychological problems. from supports. He does not suffer fifteen, by the abusing age and time began alcohol Wilson seventeen, alcohol, marijuana and he smoked used he was drank he was daily. that at time of the offense cocaine Wilson said 1986, he was alcohol cocaine. In under the influence of robbery, theft. common assault and convicted of murder, murder, felony robbery, armed Wilson was convicted of weapons conspiracy, aggravated offenses. assault (concurrent felony) aggravating c(4)(g) jury The factor found jury present all the factors present. The found be also (diminished e(5)(d) capacity); c(5)(c)(age); submitted Wilson: c(5)(h) (catch-all). impose death declined aggregate term of life to an penalty and Wilson was sentenced disqualifi- thirty-three year period parole imprisonment cation. Non-Penalty Trial

B. Cases Emmanuel Charles murder, day Emmanuel duty on

Although not on Kentucky he restaurant where worked to the Fried Chicken went Suddenly, pulled Emmanuel helped up. clean his co-workers times, killing him. handgun and a co-worker three out a shot office, When the manager restaurant came out of his Emmanuel fired three shots at him manager but the survived. Emmanuel then stole three thousand dollars from the restaurant safe. eighteen-year-old

Emmanuel was an high school student at the time of the offense. He has no mental illnesses. This was his offense, first adult but he committed numerous theft and assault juvenile. crimes as a began He drinking alcohol when he was began smoking thirteen and marijuana daily age at the of sixteen. He was under the influence of drugs alcohol and when he commit- ted the crimes at the restaurant. pled guilty felony-murder

Emmanuel attempted and murder. He received a life thirty-year sentence with a period parole ineligibility. The present AOC coded as c(4)(g) the (contempora- felony) aggravating e(5)(d) (di- neous e(5)(c)(age), factor and the c(5)(f) (no capacity), minished significant history) criminal and e(5)(h) (catch-all) mitigating factors. Culley

Carl Armed with an shotgun automatic wearing a ski mask and gloves early morning the 21, 1983, hours of November Culley gas drove into a intending station to rob it. When he told the attendant that money he did not pay have gasoline, for the the responded attendant that he police would call the Culley unless gas left his car at Culley station. claims that he then attempted to scare the pointing him, attendant gun but that the grabbed attendant gun barrel of the and was shot gun when the accidentally discharged. Culley got then out of his car and shot the attendant in the back. The attendant died from gunshots. confession, In Culley admitted that he intended to kill the attendant with the prevent second shot to the attendant identifying from him. offense,

At the time of Culley nineteen-years was old. He college was enrolled in and had landscaper worked as a maintenance man. prior He had a conviction for theft and crimi- sexually he when he nal mischief. He claimed that was abused awas child.

Culley non-capitally. A convicted him of prosecuted murder, judge weapons felony-murder and offenses. sen- thirty imprisonment during he years’ which would tenced him to c(4)(f) present parole. The coded eligible not be AOC detection) felony) aggrava- c(4)(g) (contemporaneous (escape (catch-all) c(5)(h) c(5)(c)(age) ting factors and factors.

Timothy Hards Laquam Robert Lee and co-defendant Lassiter followed

Harris Audrey a retail Newark. Rose into store and Williamson head, money. Pointing Harris a revolver at Rose’s demanded pointed gun Harris Harris then his Rose handed a total $150. forty gave money. him dollars at Williamson demanded She money. Frightened, for more she tried but resisted his demands head, in the Harris shot her to run behind the store counter but that he Williamson killing Harris told his co-defendant shot her. money. give did not him all her because she Harris, month he murdered William- who turned nineteen the son, juvenile had an prior had no record but extensive adult his first indictable conviction. He had record. This offense was history have of sub- psychiatric problems and claimed to no no high grade tenth dropped He out of school after stance abuse. and did work since then. not jury convicted prosecutor non-capitally.

The tried Harris .The assault, murder, conspiracy to commit robbery, aggravated him of him robbery weapons sentenced to an offenses. The court years imprisonment plus twenty with a aggregate term of life pres- as forty-year parole ineligibility. The coded period of AOC detection) c(4)(g) aggravating factor and (escape ent c(5)(h) c(5)(f) (no history) and significant criminal c(5)(c)(age), (catch-all) mitigating factors.

Dwight Hickson Hickson,

Dwight Johnson, Shane Blunt and William decided to gas gave rob station. Blunt gun Hickson a .25 caliber automatic they gas walked toward the station. The three of them entered gas station office and Hickson told the attendant that it was a holdup. him, Hickson saw the attendant come toward so Hickson attendant, shot the who fell to the floor. night lying attendant was found later that face down

gas parking station lot. head, There was a bullet wound large pool head, of blood under his pants. blood on his Police transported the hospital, victim to the pronounced where he was autopsy dead. An revealed that gunshot he died as a result of leg. wounds to the head and twenty-six years

Hickson was old at the time of the murder. history marijuana, He had a angel dust and usage. alcohol police Hickson’s statement to the implicated all three of the perpetrators. pled guilty aggravated Hickson manslaughter robbery, for which he aggregate received an forty-six term of years’ imprisonment twenty-three with a period parole ineligi- bility. present (con-

The AOC coded as the aggravating c(4)(g) factor temporaneous felony) c(5)(d) (diminish- and the factors c(5)(h) (no capacity) ed and significant history). criminal Anthony Inman looking drug

While out they rob, dealers whom could twenty-one year Anthony old Inman and Wayne co-defendant Harvey decided instead to grocery rob a pair store. The went inside pulled and Inman out a .45 handgun caliber and ordered the victim, store, give money co-owner of the to Harvey, to who was aiming handgun his nine-millimeter at the victim. The victim gun, reached for his and Inman him shot twice in the chest. Although yelled the victim to the co-owner to run because he was shot, being the co-owner did warning not heed the but instead ran shot Inman twice. Inman and into the front of the store and Harvey then fled. drugs alcohol when he

Inman under the influence of being a robbery Except for heroin committed the and homicide. addict, physical psychological problems. He Inman had no unemployed. prior He had grandfather with and was lived his drug weapons as well offenses. convictions for theft conspiracy, aggravated manslaughter, pled guilty Inman rob- him bery weapons The court to an offenses. sentenced years’ twenty-year period aggregate forty imprisonment with a parole ineligibility. c(4)(g) felony) present (contemporaneous coded as AOC (diminished c(5)(d) capacity), and aggravating factor and the (catch-all) c(5)(h) mitigating factors. James

Khalif Jason Means co-defendants Lawrence McGriff and James and They at the gas were intoxicated time. decided to rob a station. car, gas station they got out of their McGriff reached When arrived, pistol-whipping the he saw McGriff first. When James McGriff, guard dog A bit and James drew gas-station attendant. Then, dog. gun, purportedly to attendant shoot McGriff, fatally in the and James shot the attendant attacked head. nineteen-year-old high-school graduate who had

James was a occasionally He used alcohol or worked at a fast-food restaurant. marijuana. prior confessed He had no adult convictions. James claimed, however, He gas-station attendant. shooting thought he leg in the had shoot the attendant he tried to had shot him in the back. murder, murder, felony robbery and

juryA convicted James of aggregate term weapons The court sentenced him to an offenses. parole ineligibility. The thirty years of imprisonment life felony) (contemporaneous aggra- present e(4)(g) AOC coded as c(5)(d) (diminished vating c(5)(c)(age), capacity), factor and the c(5)(f) (no c(5)(h) ‍​​​​‌‌‌​‌‌​‌‌​​​​‌​​‌‌‌​‌‌‌​​‌​​​​​​​​​​​‌‌‌​​‌​‍(catch-all) significant history) criminal miti- gаting factors. Rodriquez

Harold Rodriguez and attempted co-defendant Marceliano Guetierrez gas a Rodriguez rob station. shot a and killed customer and. shot gas-station owner six times. The owner survived. offense, old, At Rodriguez thirty-seven years the time of the was married and the father parents of three children. His were not married and he was raised Rodriguez father. When old, fourteen-years away unemployed he ran from home. He was when he previously committed the murder but had worked as a operator. machine daily twenty He used heroin and cocaine for years. abuse, Other than substance there no indication that Rodriquez any problems. suffers, had however, emotional He from AIDS.

Rodriguez pled guilty conspiracy murder, murder, to commit murder, attempted robbery, two weapons counts of offenses. The court him aggregate sentenced to an imprison- term of life thirty-year period ment with parole a ineligibility. c(4)(b) risk) present (grave AOC coded as c(4)(g)

(contemporaneous c(5)(d) (di- felony) aggravating factors and the c(5)(h) (catch-all) capacity) minished factors.

Jose Soto Jorge

Soto and his co-defendant planned Eddie to rob a Chinese restaurant. money co-owners, Soto demanded from one of the twenty-three-year-old woman. When she told him there was no money, he shot her. She died get before she could medical co-owner, attention. Soto then shot at the other the victim’s thirty-year-old husband shooting. who survived the

Soto, nineteen-year-old high drop-out, previously school had delivery worked as a track driver and man. He claimed to have working job been at the same prior the six months to his history but to problems He of mental admitted arrest. has no thirteen, marijuana drinking smoking daily age the and to since preceding in the murder. large quantities of alcohol month prior has no criminal record. Soto robbery pled guilty aggravated manslaughter and and

Soto to fifty years’ imprisonment aggregate an term of was sentenced to twenty-three parole ineligibility. years of felony) c(4)(g) (contemporaneous present The AOC coded as (diminished c(5)(d) capaci- aggravating c(5)(e)(age), factor and the (no c(5)(h) (catch-all) c(5)(f) significant history) criminal and ty), mitigating factors.

Corey Washington planned to

Corey Washington, John Bultran and Jerome White had check-cashing Washington previously rob a establishment. drugs to at the and believed that he and his sold the clerk store easily The get able behind the counter. co-defendants would be to they Bultran when arrived and and White store door was locked opened The and gunshots floor. clerk then the door fired into the They perpetrators open him the safe. ordered the three forced to lie on the while sixty-eight-year-old him and his co-worker floor left, Washington they Before shot they removed the cash. head, and the older clerk younger clerk in the Bultran shot died, younger the older clerk survived. head. The clerk but nineteen-years-old lived with mother at Washington and high and had dropped He out of school the time the murder. history working He had no experience some laborer. prior illness. had a conviction or mental He substance abuse weapons offenses. assault purposeful-or-knowing

Washington pled guilty murder. thirty years imprisonment parole with no him to court sentenced c(4)(f) present (escape coded as detec- eligibility. The AOC tion) felony) aggravating (contemporaneous factors c(4)(g) c(5)(h) (catch-all) c(5)(c)(age) mitigating factors. Categories

II. Other (F-S) Donald Loftin

Approximately robbery-mur- five weeks before he committed a Lawreneeville, der at the Exxon on 1 in Business Route Loftin fatally Fetter, chambermaid, Sophia sixty-nine-year-old shot cleaning the head while she was a room Harráh’s Casino Hotel City. in Atlantic He had fired another shot that Fetter. missed keys opened guest Loftin stole Fetter’s bedrooms and maintenance closets.

Loftin, old, twenty-seven years who prior had no record. driver, He had worked in a warehouse and as an armored car and he college was a full-time student when he committed the offenses. marijuana Aside teenager, from use as a Loftin had no substance problems. expert abuse A gas-station robbery- defense in the murder personality case concluded that Loftin had borderline disorder, prosecution expert disagreed but a with that conclusion. five, family. When Loftin was his father year abandoned the One later, Loftin set his family mattress afire and caused his home to burn counseling down. Loftin never received for those traumatic events. non-capitally

Loftin was tried and purposeful- was convicted of murder, murder, or-knowing felony robbery, burglary, weap- and ons offenses. The court him aggregate sentenced to an term of imprisonment life plus years fifteen thirty-five-year period with a parole c(4)(f) ineligibility. present The AOC coded as detection) (escape c(4)(g) (contemporaneous felony) aggrava- c(5)(a) (extreme ting factors and disturbance), emotional c(5)(f) (no c(5)(e)(age), c(5)(h) significant history) criminal (catch-all) mitigating factors. (Bl) Fauntenberry

John Fauntenberry John stop was at a truck in Jersey New with no money as he drove from Connecticut to in his home Ohio. He personal tried to sell some of his trip. items to finance his He met a male truck driver who solicited him Fauntenberry for sex. truck, accompanied driver back to his shot him once in the money pistol head with a .22 caliber and stole the driver’s month, property. following Fauntenberry in was arrested Juneau, custody, for murder. While in he confessed to Alaska murders, including truck-stop committing five other murder Jersey. admitted that he killed his victims order to New7 He leaving avoid witnesses. murder, Fauntenberry unemployed

At the time of the was an twenty-seven-year-old high-school graduate previously who had Navy discharged from the worked as a truck driver. He had been heavy drinking. due to He also had abused cocaine and LSD. childhood, mentally During stepfathers physically and his various him, He sister abused his mother and sister. witnessed his abused, sexually being sexually and he abused her. He himself assault, carrying prior aggravated theft and had convictions for case, disposition weapon. At the of the of this concealed time Alaska, Fauntenberry convicted of murder in for which had been Ohio, ninety-nine years, prison he was sentenced to for for Charges pending also were which he was sentenced to death. Oregon. against him for two of three murders he committed non-capital robbery Fauntenberry pled guilty to murder and aggregate imprisonment which he was sentenced to an of life thirty-year parole ineligibility. period c(4)(f) c(4)(a) murder), present (prior coded as AOC detection) felony) (escape c(4)(g) (contemporaneous aggrava- and e(5)(h) (catch-all) ting mitigating factor. factors and the LONG, J., dissenting. and state constitutions instruct that the death

The federal inconsistent, arbitrary, penalty applied in an must not be review, discriminatory proportionality in- manner. Because no ours, penalty cluding sufficiently that the death is can ensure rationally consistently, I and would vacate applied dissent Richard Feaster’s death sentence.

442

I. years, diligently proce worked to devise For thirteen we have proportionate. to determine whether a death sentence is dures judicial family have the best members of our We commissioned justice improve employ experts statisticians to our criminal Currently, process we are in the of another proportionality tests. review, In design procedures proportionality effective effort 206, Project, A.2d 168 Proportionality re Review 165 N.J. 757 (2000) II), anticipate ongoing (Proportionality Review and we improve procedures more deliberations about how to those information becomes available.

Despite expended, the enormous effort we have it has become provide apparent proportionality does not “a standard review process protection gravity of due commensurate with the of the 334, 427, imposed.” Bey, sentence to be State v. 137 N.J. 645 A.2d IV) (1994) (Handler, J., (Bey dissenting). Because “death is severity finality, Gregg Georgia, different” in its v. 428 U.S. 188, 2932, 859, (1976), 2909, merely 49 L.Ed.2d 96 S.Ct. justifications identifying for a death sentence under review is inadequate. required comparative rationality What is is a sense of consistency. Although pride on we ourselves the fact our provides expansive protections Constitution a “more source of against arbitrary imposition and nonindividualized of the death Constitution, penalty” than does the United States State v. Rams eur, 123, 190, (1987), propor I 106 N.J. 524 A.2d 188 believe our tionality guaranteeing penalty review falls short of that the death is in a fair and administered consistent manner. that, despite improve for the failure

One reason our efforts to review, consistent, yet proportionality we have not on settled meaningful standards for our two tests: salient-factors and com parative culpability. scrutiny opinions Close of our reveals that change propor the standards from case to case. Since our first Marshall, tionality opinion, review v. State 130 N.J. (1992) (Marshall II), employed we have fourteen different

descriptions disproportionality. of the standard for See State v.

443 III) (1999) 355-58, 277, (Harvey A .2d 1121 Harvey, 159 N.J. 731 (Handler, J., dissenting). employ standards we are

Equally important is the fact Precedent-seeking arbitrary applied haphazard in a fashion. litany pejorative generic descrip into a of but review has devolved accompanied by catalogue listing of distinc tions of defendants cases; any meaningful comparison there is never tions from significant. v. why those distinctions are See State discussion of (1999) II) 253, 439-40, (Loftin A Loftin, 157 724 .2d 129 N.J. denied, 897, 229, (Handler, J., dissenting), 120 S.Ct. cert. 528 U.S. (1999). consistency among our 193 There is also little 145 L.Ed.2d signifi regard objective are most opinions with to which factors how, cant, aggravated, and which make a case more or less perform comparisons. It is not that we proeedurally, we are to de generally analyses, simply irrational but that we have offer loosely any negative description of process so that almost fined why any rationalization for he was sentenced to a defendant or proportionality. death can lead to a conclusion Many proportionality review have been of the deficiencies extensively Proportionality In re Re elsewhere. See discussed (1999) Project, (Proportionality 735 A.2d 528 view 161 N.J. I) (Handler, J., dissenting part) concurring part Review assessing disproportionality); (criticizing for Court’s standard (DiFrisco (1995) 148, 224, DiFrisco, 142 A.2d 442 v. N.J. 662 State III) (Handler, J., principle unique dissenting) (pointing to Martini, 3, 90-91, A .2d 949 assignment); v. 139 N.J. State II) (1994) (Martini (Handler, J., dissenting) (discussing lack of frequency disproportionality under statistical standard measure 263-65, II, 249-50, review); supra, 130 N.J. at Marshall (Handler, J., coding dissenting) (criticizing of reversed death sentences; subjec inconsistency inherent sentences as death tests; case in tivity inclusion of defendant’s own proportionality standard analysis; generally-imposed frequency abandonment arguments, I repeat those sim proportionality). Rather than concerns. I in them and add two additional ply note that concur First, comparative in used the salient-factors and the standards allow the culpability tests continue to be so flaccid as to Court proportional engaging any that death sentence is without conclude Davis, searching stringent v. 116 N.J. in a review. State Cf. (1989) 341, 356, (affirming heightened concerns 561 A.2d 1082 searching responsibilities capital require in and strin eases record). Second, comparative process of gent review of review, nature, subjective very proven has to be so its unreliable, longer guarantee a that it can no be counted on as Bey, 112 by our State v. the fairness demanded Constitution. Cf. II) (1988) 45, 95, (noting (Bey that constitution N.J. 548 A.2d 846 proceedings) on fairness of al violations cast “tremendous doubt” Texas, 249, 250, 1792, (quoting 486 108 S.Ct. Satterwhite v. U.S. (1988)). 284, 1794, 100L.Ed.2d

II. The salient-factors test was conceived as a measure of the single significant aggravating most factor correlation between case, factor,” death-sentencing particular in a the “salient and the group rate of cases with the same salient factor. We have penalty-trial said that if the ratio of death sentences to or death- eligible high, relatively high cases is then the rate of death sentencing “strong reliability [the] constitutes evidence of the TV, 358, Bey supra, defendant’s death sentence.” 137 N.J. at relatively sentencing A .2d685. A low rate of death indicates that possible imper we should the ease for the influence of “scrutinize II, 30, 47, supra, missible factors.” Martini 139 N.J. at theory practice. 949. That standard fails in both By omitting any range sentencing identification of rates that strong reliability would constitute evidence of the un of a defen sentence, dant’s death the salient-factors test cannot serve as a II, 153, consistency.” supra, “coefficient of Marshall 130 N.J. at supposed 613 A.2d 1059. The to determine what kinds of test society regards reprehensible, give murders as most and thus us category more confidence a death sentence that is deemed 168, However, particularly reprehensible. Id. at 613 A.2d 1059. that, if particular catego- even the salient-factors test reveals in a death, ry, singled the defendant alone was out for we do not utilize Indeed, suggest disproportionality.1 fact we use salient only factors to determine whether there is a societal consensus for murders, penalty categories the death for certain never to against determine whether there ais societal consensus the death penalty. growing skepticism Such a standard is at odds with propriety penalty. our state about the fairness and of the death (N.J. 2000) 1817, (proposing See A. 106 Sess. Jan. bill abolish- (N.J. ing penalty Jersey); the death in New A. 106 Sess. 2000) 24, (proposing three-year imposition Jan. moratorium on of interim); penalty creating study Kathy death commission Carter, Jerseyans Penalty, Barrett 63% Favor Death The Star- 10, Ledger, (reporting poll Oct. 1999 results that 63% of New Jersey approve penalty, residents of death down from 72% in 1994, although disproportionately imposed 56% believe it is on the poor, imposed disproportionately 42% believe it is on African- Americans, only support penalty if 44% death life without available). parole 1987,

Since when a record nine death sentences were handed down, imposed no more than four death sentences have been 1998-99, any year. thirty-three death-eligible In out eases and trials, capital juries only twelve handed down two death sentences. Only imposed year one death sentence has been this after six inquire penalty-phase trials. To whether there is a societal con penalty appropriate punishment sensus that the death is an for a homicides, 55, 72, category Cooper, v. certain see State 159 N.J. (1999) II), (Cooper ignoring 731 A.2d 1000 while the fact that our instance, 1 For Robert Marshall and Martini were both in factor John salient percent, subcategories sentencing excluding with death rates of zero their own 1059; II, 168, II, supra, supra, case. Marshall 130 N.J. at Martini 139 subcategory, N.J. at A.2d In Marshall's of the other 651 949. none three death-eligible penalty, subcategory, cases resulted in the death and in Martini's death-eligible penalty. none of the five other cases resulted in the death Ibid. Still, upheld disproportionate. their death sentences were as not impose penalty, is juries increasingly the death are reluctant difficult to rationalize. differing practical problem is that we do not relate

A more precedent-seeking review to en salient-factors test outcomes “complementary, proportionality are can that the two tests sure other, compared Harvey can be to each other.” confirm each Indeed, III, apparent it 731 A.2d 1121. supra, 159 N.J. scrutiny precedent- link we accord to that we do not the level of of the salient-factors test. seeking review at all to the outcome Rather, precedent-seeking opinions our reveal that we conduct degree, scrutiny degree, or an even lesser review with the same relatively death-sentencing example, For with low rates. cases in Marshall and Martini were classified subca the defendants (i.e., sentencing tegories possible the lowest death rates zero with defendants). percent excluding person A reasonable would those seeking expect concomitantly precedent review. enhanced On contrary, opinions provide in those cases the briefest comparative culpability pages, respec discussion of and six —three II, 181-82, 185-86, 187-88, tively. supra, Marshall 130 N.J. at 1059; II, 74-79, supra, A 139 N.J. at 651A.2d 949. 613 .2d Martini Ironically, in-depth comparative culpability the cases with more sentencing. analyses higher frequencies are of death those (Chew Chew, 183, 211-20, See, A.2d 1070 e.g., State v. 159 N.J. — II), denied, —, 593, 145 cert. U.S. 120 S.Ct. L.Ed.2d (1999); II, 336-45, 157 at 724A.2d 129. N.J. Loftin fully integrated prece- salient-factors test should be relatively dent-seeking review. Where similar cases result high sentencing, precedent-seeking rate of death review should be subject analogous used to determine whether the case is more large group group of death-sentenced cases or the smaller Baldus, Master, Special life-sentenced cases. See David T. Death Project Penalty Proportionality Report Review Final to the New 1991). 24, Jersey Supreme (Sept. Conversely, in Court at 34 sentences, comparison generally case where cases result life we precedent-seeking should use review to determine whether the

447 among culpable comparison case under review is the most of the cases. out, presently plays nothing

As it the salient-factors test reveals comparative appropriateness particular about the of a death sen nothing stage tence and than does more “set the for whatever subjective judgments might determinations moral be made II, precedent-seeking approach.” supra, under the Martini (citations 106-07, (Handler, J., dissenting) N.J. at 651 A.2d 949 omitted).

III. test, completing After the salient-factors the Court selects simi subcategory, lar cases from a defendant’s salient factor and com pares the defendant’s case with AOC summaries of similar cases subcategory. Specifically, in that we are directed to examine the cases, particular facts of the relative defendant’s ease to other compare statutory aggravating both the cases’ factors, objective non-statutory culpability factors indicative offense, gruesomeness capacity such as of the mental of the defendant, III, prior Harvey supra, criminal record. See 294, II, 1121; 198, supra, N.J. 731 A.2d Chew 159 N.J. at 1070; III, 183, supra, 142 A.2d DiFrisco N.J. at 662 A.2d 442. defendants, facts, juries, Taking into account the different case, similarly legal issues in each we must determine whether generally given Bey situated defendants are life sentences. See TV, 369, supra, Theoretically, 137 N.J. at 645 A.2d 685. the death if sentence under review will be overturned it does not follow a typical sentencing pattern. practice, hap In it has never Ibid. pened. significant problem compar

The most with the standard culpability truly comparative. Although ative test is that it is not believe, crime, theory, we that “no matter how heinous the we focus, defendants; lives,” finally, on individual their acts and their II, supra, 157 N.J. at we have not done Loftin practice. Realistically, analyses closely inso our more resemble 448 they

traditional, proportionality review because non-comparative appropri particular death sentence is whether a primarily discuss issue, disparate it is separate from whether an abstract ate as questioning whether Instead of to results other cases.2 relative compared when to particular sentence is aberrant death cases, factually Har similar imposed on defendants sentences 1121, we, effect, III, A .2d at 731 vey supra, 159 N.J. justification at all for any possible merely there exists ask whether satisfied, accept propor as if the sentence the death sentence tional. proportionality telling example of turn toward traditional

A our opinions. proportionality recent may be seen our most review Martini, prefacing began practice of our case Starting we culpability. analysis 139 comparisons with an of the defendant’s 74-76, analysis, In that we assess the at 651 A.2d 949. N.J. low, average, high culpabil an undefined scale of defendant on comparison ity. The are made with no reference assessments cases, morality. only to the Court’s intrinsic sense of comparison opin of our important, in the actual section

More consistently ions, validate death comparison true occurs. We no in which defendant received a despite similar cases sentences by focusing all way we achieve that result is life sentence. The See, 412-13, e.g., 757 single feature. Ante our attention on (distinguishing defendant’s case from life-sentenced A.2d at 280 circumstance); Harvey single mitigating eases based on lack of (same). III, 317-18, 1121 There is supra, 159 N.J. at ever, significant. rarely, explanation why if the distinction is an view, just by honing presence one or my In in on the or absence case, in a defendant’s the Court fails to honor its a few factors duty culpability by an entire set of to evaluate a defendant’s whether, proportionality requires review a court to determine on Traditional level, enough justify imposition the death an a crime is heinous abstract contrast, penalty. a defendant's sentence In our statute directs us to consider II, supra, only compares it to other sentences for similar crimes. Marshall 129-30, A.2d 130N.J. at 1059. objective blameworthiness, victimization, factors relevant to II, 50, supra, character.3 Martini 139 N.J. at 651 A.2d 949. Worse, practice it has been our exclusively to focus almost on aggravating circumstances of the case under review while cases, underscoring mitigating comparison circumstances of See, distorting comparison process altogether. and thus e.g., III, 316-19, Harvey supra, at (highlighting 159 N.J. 731 A.2d 1121 ugly minimizing mitigating facts and evidence in defendant’s case cases). using opposite comparison focus The results of analysis inevitably an such will be biased toward the State’s position and lead us to render inaccurate conclusions. typical precedent-seeking

The Court’s only review suffers not result, superficiality predetermined from its but from the inconsistency approach of its in labeling a defendant more or less culpable. catego- Some of the factors that the Court considers rizing highly culpable vague universally defendant as are so See, applicable III, meaningless. e.g., as to be Harvey supra, 159 319, (finding culpability height- N.J. at 731 A.2d 1121 defendant’s III, ened calculating”); supra, because he was “cold and DiFrisco 205, 142 (determining culpability N.J. at 662 A.2d 442 defendant’s heightened day was “at because the end of the there is still a victim”); TV, 384, Bey supra, (concluding at 137 N.J. 645 A.2d 685 culpability heightened defendant’s because evidence contested). was factors, proverbially they

With other defendants are if damned II, they do if example, and damned don’t. For supra, Chew 159 3 complete objective supposed The list of factors that the Court is to use to motive, culpability premeditation, evaluate a defendant's relative is as follows: excuse, disease, defect, disturbance, justification or evidence of mental knowl- victims, edge helplessness, knowledge of victim's of effects on nondecedent murder, age, planning defendant's defendant's involvement in violence and murder, victim, record, brutality injury prior to nondecedent other violence, authorities, remorse, cooperation capacity unrelated acts of II, 155, supra, rehabilitation. Marshall 130 N.J. at 613 A.2d 1059.

450 1070, 213, relative A.2d we found that defendant’s N.J. 731 the con culpability high because he failed to confess. On was 102, II, 1000, we said trary, supra, 159 N.J. at A.2d Cooper deathworthy comparison the defen case was less because murder. a co-defendant had committed the dant claimed Cf. III, (explaining 662 A.2d 442 supra, DiFrisco N.J. at culpability high because he confessed but relative defendant’s IV, Court); Bey supra, N.J. at for reasons unknown to culpability high (finding because 645 A.2d 685 defendant’s relative confess). phase penalty waited he until double-edged Execution-style killing is a sword. likewise determined, turns, by made one more has that it defendant Court II, deathworthy deathworthy. Compare less and another Loftin 338, killing (noting execution-style supra, 157 at 724 129 N.J. A.2d victimization) III, supra, 142 N.J. indicative of low with DiFrisco 205, (noting execution-style killing 662 442 indicative at A.2d victimization). Killing money high for is also Janus-like. Com- (determin- III, 209, supra, 142 662 442 pare DiFrisco N.J. at A.2d II, culpability) ing pecuniary high motive indicates with Chew 217, in supra, (determining 159 at 731 A.2d 1070 defendant N.J. because, culpable loyalty friend- comparison case ‍​​​​‌‌‌​‌‌​‌‌​​​​‌​​‌‌‌​‌‌‌​​‌​​​​​​​​​​​‌‌‌​​‌​‍less out of ship, money). he killed for upgrade downgrade to

Other factors that the Court has used culpability similarly unjustifiable. a defendant’s are In DiFrisco III, perform we said it worse hire and that was murder for pecuniary gain, kill purely thus than it was to be the hirer and employ family kill 142 someone to a “destructive” member. N.J. 208-09, II, being In at A.2d 442. we said that 662 Loftin only “sporadic” victim of makes a more child abuse defendant subject deathworthy who abuse. than one “chronic” child 340, III Harvey 157 N.J. at 724 A.2d In said that a 129. we bodily injury defendant who intended to inflict a that he knew probably deathworthy in less than a would result death was death, despite defendant intended to fact that the who cause Legislature equally culpable. both has deemed mental states 317, II, N.J. at Inexplicably, 731 A.2d 1121. Cooper in we found because, two deathworthy case, murders less in one the fatal began encounter, events other, as a consensual social bought drugs because the victim from the defendant. 159 N.J. 99, 112, IV, 731 A.2d In Bey 1000. we determined that a defendant who lacked much-needed mental health care as a child culpable was more than another defendant because the other 384, defendant was institutionalized as a child. 137 N.J. at A .2d685. judgments

Those only purely subjective, are, value are not they part, objectively for the most Giving stamp unreasonable. our approval to a analyses sentence of death based on such as those long-standing contradicts our commitment to “ensure that penalty death being rational, non-arbitrary, administered manner, fairly evenhanded consistency.” and with reasonable II, 131, supra, Marshall 130 N.J. at 613 A.2d 1059.

Despite heavy, our almost precedent- exclusive reliance on review, see, seeking II, e.g., Cooper supra, 159 N.J. at is, practice, it meaningless as frequency analysis. mission, Although namely we are clear our to determine wheth particular er a death sentence compared is aberrant when to the cases, sentences factually received defendants in similar we guidance actually have offered no about how to conduct the comparison except III, grossest in the Harvey of terms. See 307, 1121; II, supra, 159 N.J. at 731 supra, A.2d Chew 159 N.J. at 210, practice, 731 A.2d 1070. In comparative culpability analysis free-form, has sloppy become and inconsistent from to case case. Unsurprisingly, injected it has impermissible degree an of ran proportionality domness into review. past,

In recognized problems subjective the we have with the II, in precedent-seeking evaluations inherent Cooper review. 92-93, supra, Despite 159 N.J. at 731 A.2d 1000. the obvious process, course, stayed deficiencies the we have nonetheless declaring go through that it is compara useful to the mechanics of review, that, “properly tive applied,” help and it can the court

452 93, A.2d

identify Id. at 731 disproportionate death sentences. going optimism simply I do share the Court’s that 1000. not comparative review satisfies our constitu- through the motions of dispropor- duty distinguish proportionate and to between tional promise not to death We have fulfilled our tionate sentences. “explicit, they subjective judgments value so that can be make our objective against analyzed and whatever measurements are tested II, 120, supra, N.J. at 613 A.2d 1059. applicable.” Marshall 130 assessments, objective thinly disguised personal Our moral conclusions, subject meaningful any guidelines, mea- are not to surements, Simply put, criteria. our Constitution demands more.

IV. standards, that, light I of Even with better doubt review, inescapable subjectivity any form of proportionality it say Again, will be workable. that is not to that the Court has fair, extraordinary impartial, to to failed invest resources create objective proportionality process. Proportionality review See I, 528; 71, Proportional at supra, Review 161 N.J. In re (1990). Review, dangerous ity 122 N.J. 585 A.2d 358 investment, however, result has been imbue our flawed accuracy. process pseudo-science with an aura of That scientific is application core: to an inher its mathematical methods ently subjective give effort to the observer unwarranted confi 11, 40, J.Q., N.J.Super. dence an outcome. State v. (1993). aff'd, 172 (App.Div.1991), A.2d N.J. 617 A.2d 1196 review, Through procedures proportionality we our have subjective kind of tried insulate ourselves from the decisions capital juries quantitative face. The test salient-factors comparison objective analysis precedent-seeking factors appearance deceiving. appear to narrow our That discretion. mitigat- witnessing Without benefit of a live defendant and his evidence, ing impossible be it is almost not to overwhelmed bloody description of a stark often murder scene

453 Indeed, gruesome defendant’s “[f]aeed acts. with a horrific crime overwhelming guilt, reviewing evidence courts often are imagine imposed unable to any that a would have sentence Marshall, (1997) 89, 248, but death.” State v. 148 1 N.J. 690 A.2d (Marshall III). Thus, although juris penalty much death of our discretion, prudence struggles limiting jury ques even more own tionable is our exercise of discretion. acknowledge

It is to comparison time that the reasoned objective merely difficulty, practical impossi is a factors not abut bility. recognizing precedent-seeking “depends While review exclusively subjective imprecise, almost on reactions the Court cases,” comparison forged impels to the have we ahead because it examine, evaluate, compare” us “to thereby similar crimes and particular a Cooper determine whether sentence is aberrational. II, 92-93, supra, goal 159 N.J. at 731 A.2d 1000. The latter in light problem. cannot be achieved former history drug suggests The determination that abuse com blameworthiness, paratively shooting less victim close blameworthiness, range suggests may rather than from afar more among Court, subjective majority be constant views of a of the objectively but that not does make the determination reasonable. By results, making comparisons, we only such not reach untoward thinly “objectivity,” but veiled as we do a disservice to victims incidents, of terrible crimes characterized as “low victimization” lawyers simply well as to defendants whose are less skilled describing way their traumatic life histories in such a make to II, relatively them “compelling” more to supra, us. 157 Loftin 340, N.J. at 724 Although A.2d 129. the criminal often law crudely thought processes translates human into behavior and categories, legalistic by public authority imposition “the of death ... profoundly penalties....” all different from other See Rams eur, 326, Ohio, supra, (quoting 106 N.J. at v. 188 Lockett (1978)). 605, 2954, 2965, 98 U.S. S.Ct. 57 L.Ed.2d review, twenty gruesome With ten to murder cannot cases we hope impose varying expressions suffering order on of human efforts, end, imper an despite good our evil. In the

and human II, persist. See Martini degree randomness will of missible (Handler, J., 100, dissenting). In supra, N.J. at 651 A.2d 949 139 distinguishing the Jersey, meaningful no basis for New “there is many imposed is from the penalty] in which death [the few cases 238, 313, Georgia, v. 408 U.S. is not.” Furman it cases in which (1972) (White, J., 2726, 2765, 346, concur 33 L.Ed.2d 392 92 S.Ct. why may try explain are ring). Although certain defendants we life, conjecture is in the end our sentenced to death and others to only that. Ramseur, paramount purpose propor

In of we stated that the consistency achieving is similar results similar tionality review — 330-31, way N.J. at 188. another 524 A.2d Stated cases. 106 Baldus, proportionality review was estab Special Master former are the in which death sentences lished “to insure that cases distinguished meaningfully can from those cases carried out be normally imposed,” and to limit death penalties are which lesser only for “death aggravated most cases which sentences to the Report Baldus n. practice.” the at 25 sentences are usual routine 23. reviewing

It from case is obvious to me the AOC summaries similarly situated who have committed similar defendants Pulley v. vastly different sentences. crimes often receive Cf. Harris, 29, 37, 68, 871, 889, 79 L.Ed.2d 104 51-52 U.S. S.Ct. 465 (1984) (Brennan, J., dissenting) (describing unpredictability of nationwide). juries capital sentencing Jersey infrequently New juries impose assume the penalty the death we reserve II, supra, 157 N.J. at penalty for death the worst crimes. Loftin II, 322, 153, supra, 130 N.J. at Marshall (quoting 129 613 1059). death-sentencing A.2d rate for Based on fact that death-eligible percent and the death- all cases is thirteen total thirty percent, sentencing penalty rate we have conclud at trial is proper of death ed that low rates show a reservation “[t]he II, supra, Martini only truly sentence for worst murderers.” tempting to N.J. 139 A.2d 949. It believe argument infrequent imposition that the death sentences this cases, state funneling is the result of careful leaving death row However, only “deathworthy.” experience the most shows only that that quantity is not true. Numbers reflect death out, sentences meted not the deathworthiness of the crimes for imposed. which it has been

Currently, August there are men on row.4 fourteen death From enacted, penalty when the new death statute was until 1999, only percent death-eligible December ten about imposed cases have resulted a death sentence. Juries death only fifty-seven sentence in capitally- cases—one fifth of the 276 prosecuted fifty-seven sentences, cases. Of those death this Court thirty-nine has vacated death sentences because of constitutional deprived errors that the defendant of a fair trial.5 A review of those cases reveals that there no indication that the men on row the culpable among death are most the state’s they that gruesome murderers or the most committed crimes. Indeed, likely it is much more that a of host factors other than culpability, moral blameworthiness and character are determina- tive of who is sentenced to life and who is death. sentenced to (or counsel, competence incompetence) of defendant’s trial the committed, county resources of in which the the crime was the popularity county, penalty notoriety of the death of the victim, resources, particular policy the defendant’s financial of victim(s), county prosecutor, the race of the defendant and/or publicity surrounding probably and the are better crime See, predictors jury’s e.g., of a life death decision. American (Feb. Penalty Bar Death Association Moratorium Resolution 1997) incompetent (citing counsel and racial discrimination as causes, including Joseph Two death natural row inmates died of Harris who sentences; received two death died as a one result of homicide. 5 Recalculating sentencing light only death rates in of reversals shows percent phase penalty percent death-eligible seven of and three of all cases cases penalty. have resulted death in the penalty); Stephen B. of death fair administration

barriers to Poor: The Death Sentence Not For the Bright, Counsel for 103 Yale L.J. 1835 Lawyer, But Crime For Worst Worst (1994); Baime, Project: Systemic Proportionality Review David S. 1999) (Dec. 1, Jersey Supreme New at 54 Report to the Court only although cases constitute (reporting that Caucasian-victim cases, imposed were death-eligible of death sentences 46% of 62% cases); al, Leigh B. Bienen The Re- Caucasian-victim et for Capital Jersey: The Role Imposition Punishment in New of of (1988) Discretion, (tracking Rutgers higher Prosecutorial L.Rev. pro-death penalty particular group capital prosecution risk counties, with Cauca- especially for African-American defendants victims). sian defendant, yet, has no been

Although we have concluded that supply of the effect of those able to “relentless documentation” sentence, particular on a death the State has never shown factors Moreover, sentencing factors do not affect decisions. that those savvy past any penalty two observer of the death over decades help skeptical be least the insulation death can not but about impermissible sentencing from those factors. David decisions Science, Weisburd, Purpose?: Good Social Race and What University Proportionality Jersey, Review New Hebrew (visited 21, 2000) July (http://mishpatim.mscc.huji. Jerusalem CrimeGroup/weisburd/workpap.htm) (printed in So- ae.il/newsite/ Science, Law, R. Policy Sage, Kagan, Russell cial Social and the (1999)). A. P. Ewick and Sarat eds. phase may explained penalty

The of decisions also be outcome juries. grant mercy by part by the common of our state’s However, appears rationally mercy apportioned it is not or on factors similar to those examined the Court for based Brown, v. 479 precedent-seeking review.6 See U.S. California justification motive, excuse, are: or evidence of factors premeditation, knowledge defect, disease, disturbance, mental or of victim's helplessness, knowlеdge age, victims, effects on nondecedent defendant's defendant's in- 538, 561-62, 837, 849-50, (1987) 107 S.Ct. 93 L.Ed.2d 952-53 (Blackmun, J., (“While dissenting) the sentencer’s decision to life might accord to a defendant at times be a rational or moral one, may also appeal it arise from the defendant’s to the sentenc sympathy mercy, er’s qualities undeniably human that are nature.”). Mercy depend emotional in can on a multitude looks, good factors: a support defendant’s the enthusiasm and members, family jury’s background, identification with his (an essayist or the status of the victim of note once observed that society outraged perpetrated against college our is more at crimes waitresses). girls against than those cocktail Such factors are infinite, personal, inexplicable. Parks, and often See v. Saffle 484, 493, 1257, 1262-1263, U.S. 110 S.Ct. 108 L.Ed.2d 427-28 (1990) (rejecting permitting sympathy instruction to consider it because would “allow[] the fate of a defendant to turn on the sensitivities”).

vagaries particular jurors’ emotional Proportionality review is at once an essential element of the and, process constituted, appellate presently inadequate to the simply task. It provid- fails to meet the constitutional mandate of ing meaningful appellate procedures against to ensure an arbi- trary capricious penalty system. and death

V. my Separate apart proportionality from reservations about general, way review it applied is clear the Court it that, unjust Richard case Feaster’s even if its methodolo- gy accepted, considering disproportionate, is Feaster’s sentence is both the crime and the defendant.

A. SalienP-Factors Test begin, To I note anomalous fact that Feaster’s own case ineomprehen- included the salient-factors test’s statistics. It is planning injury volvement in violence murder, murder, of the brutality victim, record, violence, to nondecedent criminal other unrelated acts of prior authorities, remorse, rehabilitation. cooperation capacity'for 458 sen determining particular death me in whether a

sible to that pattern sentencing pattern, the conformity in with a tence is scenario, a death In such a case under review. includes the II, supra, N.J. propriety. Marshall 130 confirms its own sentence J., (Handler, 263, dissenting). 613 A.2d 1059 F- Equally troubling is the fact that one the death-sentenced Morton, is of Robert category in Feaster’s that cases included today. upheld In case the Court case we also decided whose finding disproportionate.7 it There is death sentence not Morton’s upholding validity of tautological problem the Feaster’s validity of Morton’s sentence and based on the assumed sentence simultaneously upholding validity of the Morton’s sentence based validity on assumed of Feaster’s sentence. that, F- problematic the fact of the four other cases

As is sentence, yet subcategory in a none has been that resulted death imposed proportionality affirmed after review. The two sentences they Hightower been because on have since vacated Jacinto Long’s constitutionally deficient trials. Ronald resulted from pled has sinсe death sentence has also been overturned and he guilty non-capital sentence has been murder. Morton’s death only today. disproportionate not deemed test, Excluding under the thirteen Feaster’s case salient-factors category percent death-eligible the F-2 result cases penalty, percent Excluding compared death to eleven overall. should, Morton, as I we the death both Feaster and believe sentencing among death-eligible F-2 rate all cases subcate- only gory percent, sentencing rate for those is ten death proceeding only From penalty phase percent. to the nineteen eases, group impossible F-2 it is to find a “societal penalty appropriate punishment death is an consensus” 287-88, Morton, 7 I dissented in that case as well. State v. 165 N.J. J., (2000) (Long, dissenting). 757 A.2d 184 II, F-2 subcategory for the of Cooper supra, homicides. See 159 72, at N.J. 731 A.2d 1000. Comparative

B. Culpability Test Culpability

1. Defendant’s that, Concluding least, from very the salient-factors test at the majority sentences, vast of F-2 result in precedent- cases life seeking analysis should inform us “singled whether Feaster was unfairly” out penalty, the death truly or whether he was among culpable the most of the F-2 searching defendants A comparison F-2 of cases that demonstrates Feaster is far from the culpable most of F-2 closely His defendants. case more large majority resembles in of cases that resulted life sen- tences and his death accordingly sentence should be vacated. precedent seeking analysis

The opinion, the Court’s all prior proportionality opinions, subjective review is a moral evalua- of opposed analysis tion Richard Feaster as the comparative to promised. is precedent-seeking analysis that bulk The of is recounting setting compar- devoted to defendant’s crime and forth paid ison case summaries. Scant attention is to actual com- parison objective analysis factors in each exactly case. That is traditional, proportionality the kind of offense-oriented review that See, II, directly rejected. e.g., supra, we have Marshall 130 N.J. 129-30, at A.2d 1059. cases, comparison

Without reference to the Court characterizes “average of moral high” Feaster’s level blameworthiness as to weighing youth premeditation lack against and the victim’s justification excuse, vulnerability, “complete lack or callous- 404-06, support- ness.” Ante at 757 A.2d at 275-76. The factors ing “average high” rating illusory they to the Court’s are because present nearly factors death-eligible descrip- are all cases. a “completely tion of against callous crime” committed a “vulnera- justification nearly ble victim” without can applied excuse be to every death-eligible certainly ease in universe to all the comparison group. Calling cases Feaster’s a defendant a “cold descriptor fitting, is may be but calculating murderer” every person who commits a applicable it insofar as useless such, proportionality place in it has no death-eligible As crime. 319, III, A.2d 1121. The N.J. Harvey suрra, 159 at review. from simi suffer of victimization character discussion Court’s 406, Ante at subjective, evaluation. problems standardless lar victimization was “aver Its 757 A.2d at 276. determinations demon that Feaster’s character age in Feaster’s case and to low” at culpability, high” ante “average strated imply nothing about solely on visceral reactions are based of the The Court’s discussion Feaster’s relative death-worthiness. directly opinion in victimization, fact, our degree in contravenes of 338, There, analyzed we A.2d 129. N.J. at 724 II. 157 Loftin labeling shooting, rather than it very “execution-style” but similar victimization, comparison “[i]n we “average to low” stated as examined, particu this was not cases we have to other murder fails killing.” also to larly brutal Ibid. Court violent or cooperation with and explain how lack of authorities Feaster’s jailhouse nega allegedly snitch8 are so callous comments to the tively as his light mitigating in circumstances such probative rehabilitation, record, capacity for testi minimal criminal expressed when mony remorse and disbelief that he cried and night of the murder. driving home on II, in we disturbing is the fact that character Even more Loftin light good in a relative to moral ized of Feaster’s case the facts culpable that Loftin was more to blameworthiness demonstrate II, 340-41, 724 A.2d supra, 157 N.J. at than Feaster. See Loftin problematic 8 especially Testimony by jailhouse in and of informants is itself. Tribune, Informant, Chicago Armstrong, The Nov. Steve Mills and Ken Jailhouse 16, "jailhouse testimony leading wrongful (describing cause of snitch" 1999 Gross, convictions); Miscarriages capital Justice in R. Lost Lives: Samuel 125, (1998) Cases, (citing Capital Contemp. 138-39 exam- 61 Law and Problems capital persons); ples testimony resulting of innocent informant in conviction Thieves, Curriden, (1989) (same). Among Honor ABAJournal Mark No opinion, In that presented 129. we said that Feaster “uncontro defect, verted evidence” that he suffers from a mental disease or namely encephalopathy, injury “an region to the left frontal lobe making prone.” 340, him more violence Id. at 724 A.2d 129. We recognized relatively also II that young Feaster was at Loftin juvenile the time of the leading (e.g., offense and still of a life living parents lacking 341, employment). with his Id. at highlighted A.2d 129. We parents the facts that Feaster’s were both alcoholics and that his father was abusive. That can we spotlight those portray having facts one to case Feaster as relatively culpability, virtually ignore low them in Feaster’s hopelessly own case demonstrates the unstructured and unreliable precedent-seeking nature of our review. Comparative Culpability

2. Only eighteen thirty-three of the F-2 eases Feaster’s subea tegory proceeded penalty to In phase. eighteen penalty those trials, people sentenced three other than Feaster (affirmed (two today), Hightower death: Morton death sentences (death vacated), overturned, Long guilty sentence entered murder). plea non-capital duty portion propor Our this tionality review is “to ensure that the defendant has not been ” ‘singled II, unfairly capital punishment.’ out Cooper supra, 88, II, (quoting 159 N.J. at 731 A.2d 1000 supra, Martini 139 N.J. 949); II, at supra, accord Chew 159 N.J. review, purpose precedent-seeking

A.2d 1070. For the there fore, we comparison determine whether the life-sentenced cases disproportionate. important render Feaster’s death sentence It is not, process justifying to note that that is not one. It does in any way, attempt to deflect from notion of murder as evil or imply anything that the death of the victim is other than horrific. only place Its focus is to a defendant’s terrible crime on a continuum other terrible crimes. said, relatively

That Feaster’s case is notable for its low victim- only aggravating The ization. factor in Feaster’s case was that in robbery, the murder was committed the course of a and that not, way, Thus, any it does every F-2 case. present factor is any F-2 defen- culpable than other distinguish as more Feaster however, unusual, he fired a Feaster somewhat dant. suffering to either the prolonged cause single and did not shot instantly, Donaghy any victims. died or non-decedent victim threatened, take forced to that he was ever no evidence there is any way injured in other than the any gunpoint, or action at distinguish on basis of Again, Feaster shooting itself. diminish the horrible relatively aggravation is not meant to low victim, on place Feaster a scale impact crime on the but of the culpability relative to murderers. other cases are acknowledges that four life-sentenced The Court questions about to raise sufficiently to Feaster’s serious similar 410-12, Ante at proportionality of Feaster’s sentence. Jones, Larry agree. I The life sentences A.2d at 278-79. are, as the Stamps Charles Williams Slaughter, Rafael Aaron states, with Feaster’s death difficult” to reconcile “more Court 411, A.2d at 279. Ante at sentence. life sentence recognizes that Abdel Jaber Saleh’s

The also Court readily death sentence.” [Feaster’s] be reconciled with “cannot degree an of victimization Ibid. That is understatement. F-2 among the most serious caused Abdel Jaber Saleh is chain, subcategory. strangled his with a metal bound Saleh victim ties, body dragged gagged tape plastic him duct with fluid, floor, then set him on doused him with charcoal across autopsy report that the victim was still alive fire. The indicated 4(g) aggravating fire. In to the when set him on addition Saleh 4(f) factor, aggravating found factor Saleh Saleh’s —that apprehension. or Like escape the murder to detection committed offense, Feaster, only 22 at time of the had no Saleh was history, uncooperative en- significant and was law criminal however, Feaster, presented no officers. Unlike Saleh forcement defect, trauma, any brain mental disease childhood evidence Still, Saleh damage, or intoxication at the time of offense. life given a sentence.

Jones, Williams, Slaughter multiple all harmed victims— five, four, three, 4(b) respectively. Although aggravating case, only factor was found Jones’s all three cases involved a bystanders serious risk death innocent as well as the use against threats and violence non-decedent victims. Neither Jones Slaughter presented nor mitigating compelling evidence as Feaster’s evidence. Williams’s evidence sexual history unusually tragic, abuse and of emotional are disturbance history Feaster’s; but his criminal much is more extensive than spent days Williams all but 93 of his adult life incarcerated. culpability heightened by Williams’s the fact that one of his surviving damage victims sustained brain serious while another was left disabled.

Stamps’s quite closely. Stamps, case resembles Feaster’s who security guard during robbery, shot twice the chest a bank cooperate acted with co-defendants and did not with authori- Feaster, home, Stamps grew up ties. Like in an unstable has problem, substance intelligence. abuse and has borderline however, Stamps, robbery prior had three armed convictions. major The differences between the two cases—Feaster’s minimal history, organic damage, criminal brain and abuse at the hands relatively culpa- his alcoholic father —underscore Feaster’s lower bility. Viewed side side those five life that are sentences mitigated, both, aggravated, either more less Feaster’s death anomaly. sentence stands out anas curiously penalty phase Court finds five F-2 other cases “readily”

that resulted in life distinguishable sentences from case, despite Feaster’s similarity. their close Ante at In distinguishing given A.2d 277. the life sentences to John Downie, Hart, Wilson, Craig Roger Hoyte, Joseph and David Russo, that, Feaster, the Court states unlike those cases contain of, (1) (2) disturbance, evidence extreme mental or emotional (3) (4) youth, offense, capacity diminished at the time of the history. significant lack of a criminal Ante at 757A.2d at 278. (1) with, Those distinctions cannot be reconciled Feaster’s uncon- psychological organic damage and brain of troverted evidence (he younger (2) youth young as or was as problems; Feaster’s offense, Russo, the Downie, Hart, Hoyte at time of and the than (3) Wilson); alcohol and years Feaster’s only older than a few and (4) offense; and his night of the the intoxication on cocaine consisting single, conviction. prior of a unindictable minimal record to our difficult reconcile with conclusions are also The Court’s II, relatively to be in which we found Feaster opinion in Loftin specifically because evidence culpable than similar cases less and that his a mental disease or defect suffered from that he 157 N.J. immaturity. at youth mitigated by and crime Hart, Downie, In 340-41, comparing Feaster 724 A.2d 129. 424-25, 408-10, at ante at Wilson, Russo, Hoyte, and 286-87, 277-78, ignores Feaster’s evidence the also Court II. “compelling” in found chronic child abuse that we Loftin comparison defendants 340, None of the N.J. at 724 A.2d 129. Only pattern that Feaster did. from same of abuse suffered the unstable, Hoyte vio comparable offered evidence Downie and environments, lent, the offenses dysfunctional childhood but and police at as well as by (shooting officer Downie committed attendant) Hoyte (shooting gas and murdering a station and drivers) aggravated than stabbing are much more three taxicab Feaster’s. 5(d) 5(c)(age) jury the failure of the to find

Regarding intoxication) (mental mitigating factors Feaster’s disоrder Wilson, Downie, “we free to found Hart and are case that were mitigating go beyond respect of a factor.” jury’s conclusion in II, Although we supra, Martini 139 N.J. at 651 A.2d 949. regarding are say jury’s findings those factors cannot phase wrong, they inexplicable comparison penalty to other are Court, jury, age a Why would a and the find cases. 22), 24), 25), Hoyte (age (age (age but for Hart Downie factor 22)? case, any (age 278. In Ante 757 A.2d at not Feaster youth immaturity be considered should Feaster’s relative 5(d) comparisons. logic applies mitigat- the case The same to the ing factor Although for intoxication. Feaster’s did not find 5(d) factor, evidence uncontroverted was that he had night consumed alcohol on and cocaine offense and that culpability precedent-seeking lowers his relative review. Downie, comparison Hoyte

In with Feaster’s case is not sure, particularly aggravated. cooperate To be Feaster did not hand, Hoyte Hoyte’s cooper- authorities as did. On the other opportunity plead ation was fueled had he to a non- capital testimony Thus, in against accomplices. offense return for revelatory, any way, it is not in meaningful of better character. Moreover, Hoyte because Downie and shared other similar charac- Feaster, teristics with such a a significant as lack of criminal record, youth, offense, during and intoxication there no logical explanation discrepancy for sentencing. (a record, mitigating

Russo’s history evidence minor criminal a abuse, psychiatric history, of diagnosis substance no serious a disorders, personality and evidence that he succeeded controlled Feaster’s, employment) environments such as is also similar to but shooting gas his aggravated three station attendants is more comparison sentence, In than Feaster’s offense. with Russo’s life Feaster’s death sentence is aberrant. theoretically distinguishable

Hart and Wilson are from Feaster 5(c) jury finding because there was a mitigating of the for factor 5(d) age for factor mental disease or defect or However, intoxication in each case. that distinction does not hold age water. Feaster’s at the intoxication time of the offense precedent-seeking despite should be considered in review jury finding. reality, youth, absence of a In Feaster’s evidence of immaturity, and intoxication was similar to Hart’s and Wilson’s. truly isWhat different about Hart and Wilson is those gunpoint defendants both threatened victims at and Wilson’s protracted victim suffered a nor death. Neither Hart Wilson up did, grew in the of violent kind and unstable home that Feaster impaired damage brain affected

and neither was entirety, in their functioning. Viewing the cases mental Feaster’s this their life culpable Feaster and more than are Hart and Wilson proportionality questions about raise serious sentences sentence. Feaster’s death trial, penalty proceed a that did not comparison cases

Other non-capital pled to offense or was the defendant either because dispro- support for the provide further capitally prosecuted, not Four such cases involve death sentence. portionality of Feaster’s to a homicide addition injuries victims to non-decedent serious head; elderly Corey Washington an store clerk shot victim. times; manager Ha- three shot a restaurant Emmanuel Charles times; gas owner six and Jose Soto Rodriguez station rold shot Soto there was no after his wife told a restaurant owner shot with three Rodriguez, ‍​​​​‌‌‌​‌‌​‌‌​​​​‌​​‌‌‌​‌‌‌​​‌​​​​​​​​​​​‌‌‌​​‌​‍is married money Except for who to steal. AIDS, not those cases contains from one of and suffers children suf- significant as Feaster’s. None mitigating circumstances abuse, depression, damage, severe organic brain fered from child Rodriguez much intelligence. or the constraints borderline offense, Soto, he than Feaster when committed older only years younger. Charles, Like Washington were a few Charles, Feaster, except prior records who have minimal all juvenile including numerous thefts and record has an extensive as much about the true that we do not know assaults. It is they pled because all mitigating circumstances of those defendants murder; Rodriguez to (Washington and non-capital to offenses murder; aggravated manslaughter). felony Soto Charles Feaster, However, have also benefited those defendants unlike coding procedures, under which Feaster would from AOC’s 5(d) 5(f) mitigating factors. See have been coded with the Courts, Screening Instructions Administrative Office of the (Feb. 5, 1999) Rea, Factors Conduct and Cases: Mens Ozon 5(d) head (directing where record indicates serious to be coded 5(f) addiction, where damage drug to be coded injury, brain or an indictable offense and less has no convictions for defendant convictions). disorderly persons than four Timothy presents yet Harris example another stark of how Harris, alone, acting anomalous Feaster’s sentence is. followed store, people two into a gunpoint, robbed them at and shot one money. victim the head because she did not hand over all her The victim survived for emergency dying hours in the room before gunshot only as a result of mitigating wound. The evidence the record about Hands is that he at the time of nineteen offense, and that that was his first indictable offense as an adult. 5(c) 5(f) Accordingly, the AOC mitigating coded the factors However, present. essentially Harris had led life of crime juvenile thirty-one complaints reflected in beginning when he was thirteen, variety including assault, for a robbery, of offenses weapons offenses. twenty-three

Of comparison Feaster, cases to least easily sixteen can be culpable classified as more than Feaster. Their aggravated, presented offenses were either more fewer both, circumstances, yet in a resulted life sentence. me,

To this entire exercise underscores the randomness of the process death sentence and reveals that Feaster’s death sentence consistent, disproportionate because it cannot be on a reconciled majority imposed reasoned basis with the of life on sentences similarly situated defendants.

Accordingly, I dissent. O’HERN, For Justice PORITZ and Justices affirmance —Chief STEIN, COLEMAN, and 5. LaVECCHIA— vacating For and remandment —Justice LONG —1.

Case Details

Case Name: State v. Feaster

Court Name: Supreme Court of New Jersey

Date Published: Aug 2, 2000

Citation: 757 A.2d 266

Court Abbreviation: N.J.