State v. Harvey

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

731 A.2d PLAINTIFF-RESPONDENT, JERSEY, v. STATE OF NEW HARVEY, DEFENDANT-APPELLANT. NATHANIEL Argued April 1999. 1998—Decided June Jones, Deputy D. and Michael B. Assistant Mordecai Garelick (Ivelisse Torres, Defenders, argued appellant the cause for Public Defender, attorney). Public Hulett, General, argued

Nancy Deputy Attorney A. the cause (Peter Vemiero, Attorney Jersey, respondent General New for attorney). by opinion the Court was delivered

GARIBALDI, J. Harvey of Irene jury originally A convicted defendant Nathaniel him to in October 1986. Schnaps’s murder and sentenced death in the that conviction because of errors This Court reversed in the failure of the trial of defendant’s confession and admission 407, Harvey, charge.”1 v. 121 N.J. give State court “Gerald charge” charge distinguishes intent to kill 1 A "Gerald is a murder with only bodily injury to cause serious that resulted in from murder with intent Gerald, (1988). 549 A.2d 792 The constitutional death. State v. 113 N.J. largely significance charge has been eliminated the amendment of the Gerald 3C:11-3, 5,May "homicidal act” as effective that defines to N.J.S.A. 284 (1990) I), denied, (Harvey

581 A.2d 483 cert. 111 U.S. (1991). retrial, jury S.Ct. 113 L.Ed.2d 268 At defendant’s again purposeful knowing convicted defendant of the or murder of Schnaps, imposed penalty. Irene the death We affirmed Harvey, conviction defendant’s and death sentence. State v. (1997) II). 117, 233, (Harvey granted N.J. A.2d We request proportionality defendant’s review of his death sen tence, 2C:11-3e, disproportionality. see N.J.S.A. now find no

I

FACTS Harvey The facts are set forth in detail in 151 N.J. at 137-44, repeat only 699A.2d 596. We here those facts relevant to proportionality our review. Discovery Body

A. of the and the Crime Scene 16, 1985, evening during Sometime in the of early June or 17, 1985, morning hours of apart- June defendant broke into the Schnaps “brutally Harvey ment Irene murdered” her. supra, 151 Schnaps, age thirty-seven, N.J. 699 A.2d 596. ground-floor apartment lived alone in a apartment complex. in an Although investigating police signs detected no of forced entry, signs struggle. the bedroom showed of a Bloodstains were carpet throughout on the Schnaps’s body the room. naked lay face-up Despite on the floor. the severe head and facial wounds, present no bloodstains were Schnaps’s on chest and stomach, leading leaving to the conclusion that apart- before her ment, defendant had undertaken measures to cover his tracks. pillowcase bloody

A white bore a sneaker-print with a chevron pattern and the Although bedding appeared letters “PON.” clean, mattress, blood stained the underlying spring, box injury resulting "conduct that causes death or serious in death." N.J.S.A. bodily 2C:11-3. bed, An and a towel. protruding from under cardboard box box, box, Olympus camera empty an empty watch Seiko-LaSalle In in the empty jewelry box were also found bedroom. and an bathroom, contain- investigators Schnaps’s open pocketbook, found money. ing no Autopsy

B. The Examiner, Shuster, County Medical Dr. Marvin the Middlesex approximately fifteen Sehnaps had sustained determined wound, long one- largest The six-inches blows to the head. wide, top front of her forehead to the inch extended from the caused Schnaps’s of the fractured skull and her head. Some blows delivered from both injury direct to the brain. Blows had been front, sides, most from right and left some from the but behind. pressure appeared marks on both sides of the neck.

Triangular out, jaw and her Schnaps’s teeth were knocked Some cheek, neck, jaw, and forehead were right side of her broken. bruised, ear. and she was cut behind one wound, Dr. any particular Shuster to attribute death

Unable Sehnaps, had killed concluded that a combination blows by “quite a bit of force with Schnaps’s wounds had been caused profusely and died heavy object,” Sehnaps and that had bled a matter of minutes. within Harvey and His First Conviction

C. The Arrest of unsolved police investigating a series of On October One of the burglaries and sexual assaults arrested defendant. “show-up.” subsequent at a burglary victims identified defendant committing a number During questioning, defendant confessed to Windsor, assault. burglaries in as well as a sexual West of his accompanied police point out the locations Defendant crimes. charged purposeful knowing

Defendant was with the or murder Sehnaps, second-degree robbery, second-degree burglary. County Aggravating The Middlesex Prosecutor filed Notice jury Factors. A him convicted and sentenced him to death. As mentioned, previously appeal on direct this Court reversed defen I, Harvey dant’s conviction and remanded for new trial. 121 N.J. at 581A.2d 488.

D. The Retrial

1. Guilt Phase guilt retrial, phase investigating At the of the officers testified regarding discovery bloody print, empty of the sneaker box, box, empty jewelry watch -empty Seiko-LaSalle and the Olympus camera box—all of which were admitted into evidence.

Philip Beesley, employed by Jersey a forensic scientist the New Police, that, State testified based on blood work done on control samples from Sehnaps, both defendant and the stains found on the spring box piece and on the of cardboard were consistent with blood, Harvey’s Schnaps’s. and not Dr. Marvin Shuster testified about the nature the wounds by Sehnaps Mozer, suffered and the cause of death. Theodore her employed by Police, a forensic Jersey scientist the New State testified that one of the Schnaps’s hairs recovered from back did belong not to her. Mozer hair testified was consistent with a control Harvey. hair taken from Mozer also testified that he had pairs Harvey’s examined two of sneakers from seized ex- apartment “Pony” wife’s West Windsor and the size sneakers Harvey wearing arrested, explained when he was Harvey’s “Pony” sneakers were consistent with the im- sneaker pression at the Although Harvey’s scene. sneakers “could” have bloody mark, left definitively Mozer could not conclude that they had done so. evidence, support

In of the admission of the DNA the State presented Cooper, two witnesses from Cellmark: Julie a senior Word, microbiologist a biologist, and Dr. Charlotte

molecular tests They testified that DNA supervisor of forensic casework. at the crime scene were samples recovered conducted on the blood comparable to defendant’s DNA. generally testify. guilt-phase case consisted of not His Defendant did First, from testified that only a witness Seiko two witnesses. seized from the thousands of watches like one had made Seiko Shaler, of Forensic car. Dr. Robert Director trunk of defendant’s City for the of the Chief Medical Examiner Biology for the Office York, tests were that he that the DNA of New testified believed “scientifically indefensible.” hours, jury and one-half re- deliberating for three

After guilty purposeful-or-know- finding defendant turned its verdict murder, robbery, murder, first-degree and second- ing felony degree burglary. Penalty

2. Phase guilt adduced at the exclusively on the evidence The State relied the murder aggravating factors: phase support proof of three 2C:11-3c(4)(c); victim, N.J.S.A. aggravated assault of involved detection, 2C:11- escape N.J.S.A. the murder was committed during of a 3c(4)(f); the course the murder was committed 2C:11-3c(4)(g). robbery burglary, N.J.S.A. factor, mitigating alleged the catch-all mitigating defendant

As factor, is relevant to the defendant’s “any other factor which defense,” to the circumstances of or record or character 2C:11-3e(5)(h) non-statutory factors to ten and submitted N.J.S.A. A.2d at 1138. jury. factors are listed The ten infra Moran, criminologist specializing in the Professor Richard crime, of defen- age and testified that because correlation between death, rather than defendant age, prison if sentenced to dant’s chances of eligible parole that his would be so old when he was minute. A forensic committing violent crime would be another history. social worker testified about defendant’s social Various father, family caring testified that defendant was a who members developmentally-disabled also comforted his brother. Defendant’s family jury asked the not to sentence defendant to death. Defen- right dant also exercised his of allocution and asked that he be given thirty years so he could teach and communicate with his family.2 jurors non-statutory mitigating

Some found some of the factors. 312, jury at 731 A.2d at 1139. The returned a unani See infra mous verdict that defendant had committed the murder for the 2C:11-3c(4)(f), purpose avoiding apprehension, N.J.S.A. robbery burglary, 2C:ll-3c(4)(g). the course of a N.J.S.A It aggravating did not as an find factor that the murder involved 2C:11-3c(4)(c). victim, aggravated assault to the N.J.S.A. The jury aggravating outweighed further found that the factors all of mitigating aggravating factors and that each factor alone outweighed mitigating all of the factors. The trial court sentenced defendant to death.

Subsequently, persis- the trial'court sentenced defendant as a non-capital tent on first-degree robbery offender counts of convictions, second-degree burglary. For those defendant re- aggregate plus sixty-five years ceived an sentence of life with a fifty-seven year parole disqualifier. Harvey one-half su- 146, pra, 151 at N.J. 699A.2d 596.

We affirmed defendant’s convictions and death sentence. Id. at regard 699 A.2d 596. The Court reserved decision with disproportionality defendant’s claim. Ibid. 31, 1997, July orders, pursuant

On to Court the Administrative (“AOC”) Office of the Courts issued its statistical revised (CCH Chew/Cooper¡Harvey Report Report). report That includes death-eligible July all cases known to the AOC as of 1997. (Memorandum Barraco, Joseph Esq., from Acting J. Assistant 2 For a more detailed of defendant's defense at the explanation penalty phase 310-12, see 731 A.2d at 1139. infra

289 Rossi, Esq., Director, and Nina Practice Division Criminal AOC Services, Chief, Practice Divi Court Criminal Criminal Assistant Townsend, Supreme Court sion, Clerk of the Stephen W. AOC). Memorandum) (on 1997)) (Barraco (Dec. file with cases, date, death-eligible of which were 401 As of there Report penalty trial. proceeded to a CCH forty-one percent, or cases, thirty-one percent, penalty-trial fifty, or tbl. 3. Of the The death- at tbl. 2. overall in a death sentence. Id. resulted (6%oi). therefore, was, 1. percent Id. tbl. twelve sentencing rate II REVIEW PROPORTIONALITY 265-277, A.2d 129 Loftin, v. In 157 N.J. State (1999) II), principles (Loftin we reviewed fundamental goal proportionality re principal review. proportionality death particular defendant’s “is to whether view determine compared to the sentences disproportionate” is when sentence DiFrisco, similarly State v. are situated. other defendants who (1995) (DiFrisco III); 160, 148, see A.2d 442 142 N.J. 662 and thus capital “A sentence is excessive N.J.S.A. 2C:11-3e. similar to if with characteristics disproportionate other defendants generally receive sentences under review those of the defendant in the committing factually-similar crimes than other death 3, 20, Martini, 651 A.2d 949 jurisdiction.” v. 139 N.J. State same 334, 343, (Martini II) (1994) Bey, (citing v. 137 N.J. 645 State Marshall, 109, 131, (1994) IV)); 130 N.J. (Bey v. A.2d 685 State denied, 929, 113 (1992) (Marshall II), 507 cert. U.S. A.2d 613 1059 (1993). conducting 1306, proportionality In 122 L.Ed.2d 694 S.Ct. penalty being is review, “‘to ensure that death we seek manner, rational, nonarbitrary even handed in a administered ” II, N.J. consistency.’ 157 at fairly and with reasonable Loftin 131, II, 130 at 613 265, (quoting supra, N.J. 724 129 Marshall A.2d 1059). A .2d

290 to set a

“We have declined numerical standard to deter point mine at ‘generally’ penal what defendants receive death ty, because such a determination would introduce undesirable III, supra, review.” DiFrisco proportionality arbitrariness into II, 160, supra, 142 N.J. at Martini 139 N.J. at (citing 662A.2d 442 II, 949). 20, supra, 322-23, See 157 N.J. at 651 A.2d 724 Loftin comparisons A.2d 129. Instead we often make overall rates, 181, id. at sentencing 173, 442; see Martini death 662 A.2d II, IV, supra, 949; Bey 33, supra, 139 N.J. at 137 N.J. at 651 A.2d II, 354, 685; supra, 168, Marshall 645 A.2d 130 N.J. at 613 A.2d 1059; previous eases, and to see DiFrisco proportionality review III, II, supra, 183, 442; 142 N.J. at 181, supra, Martini 662 A.2d IV, 40-41, Bey 139 N.J. at 34, 45, 949; supra, 137 N.J. at 651A.2d 359, 645 A.2d 685. 353-54, are two aspects proportionality

There review: “substan tive,” review; “offense-oriented,” or “procedural,” or “offend II, supra, er-oriented,” review. Marshall 130 N.J. at 126-27, 613 A.2d 1059. Offense-oriented review focuses on the offense to determine punishment imposed whether the is excessive in rela supra, 20, tion to the crime itself. Martini N.J. 139 at 651 Georgia, Cokerv. 584, A.2d 433 U.S. (citing 592, 2861, 97 S.Ct. 2866, (1977)). 53 L.Ed.2d

Conversely, procedural presumes or offender-oriented review penalty that the proportionate death is to the offense focuses Harris, defendant, Pulley on not the v. crime committed. 37, 43, U.S. 104 S.Ct. (1984). 876 79 L.Ed.2d In such review, question ‘punishment “whether fits the crimi II, supra, nal.’” Marshall 130 N.J. 613 A.2d 1059 (additional omitted). quotations internal

Defendant bears the proving burden of that his death III, DiFrisco disproportionate. sentence is 142 N.J. IV, 162, 442; Bey supra, 343, 662 A.2d 137 N.J. at 645 A.2d 685. defendant, imposed That State, burden is on the rather than the N.J.S.A. 2C:ll-3e speaks because proving of terms that the III, supra, disproportionate. DiFrisco N.J. at sentence is 142

291 IV, (citing Bey supra, 137 162, 349, N.J. at 645 A.2d A.2d 442 662 685).

A. The Universe Cases first the universe of cases to which defendant’s We define 1992, compared. Legislature In the amended case shall be N.J.S.A. 2C:11-3e to to those cases in which limit the universe 5, § P.L. c. actually imposed. been 1. death sentence has intend not the amendment was Legislature The did state whether III, IV, Bey DiFrisco to In apply pending appeals. ed II, apply to those Marshall declined to that amendment we appeals, appeals pending were before because those defendants’ Likewise, we decline Legislature the enacted the amendment. death apply that amendment this case. Defendant’s sentence years took imposed in six before the amendment was first his Following this Court’s reversal of first conviction and effect. July retrial, again sentenced to death after his defendant was genesis proceeding this was defendant’s first convic 1997. The amended. See tion, long which occurred before the statute was III, Additionally, supra, DiFrisco N.J. at 662 A.2d 442. challenge, rejection disproportionality the amend given our of this case. ment would not affect outcome death-eligible homi all comprises of cases universe penalty of the death statute cides committed since the enactment imposed. In our regardless of whether death sentence n earlier reviews, death- proportionality we determined pool sentenced will include those cases where defendant’s mostly to appeal death sentence was reversed on burden-of- —due prosecu proof errors Gerald issues —and or those cases where the II, remand. See Martini capitally proceed tor not to on chose IV, 949; Bey supra, N.J. 25-26, supra, N.J. 651A.2d 685; Marshall 130 N.J. 345-47, at 194 n. A.2d and Gerald explained burden-of-proof 1059. 613 A.2d We trial, not the sub procedural “affect the fairness errors jury’s crime, necessarily on not bear [and] stance of ‘do 292 ” II, supra, deathworthiness.’ Martini

determination 139 N.J. IV, 26, (quoting Bey supra, 347, at 651 A.2d 949 at N.J. 137 645 685). Similarly, reprosecute A.2d the “State’s decision not to a capitally necessarily defendant is not reflection a defen 27, Id. at dant’s lack of deathworthiness.” 651 A.2d 949. For reasons, those opinions, the reasons detailed in our earlier we category continue to include such cases in the of death sentence II, supra, 157 N.J. at 324, eases. 724A. 2d 129. Loftin Additionally, present we continue to the data both “ including excluding Ibid. ‘Using data, defendant. two sets of including it, one excluding give defendant’s case and will one us picture the broadest alerting societal standards while us to the III, produced by including defendant’s case.’” DiFrisco bias supra, II, 165, at N.J. 142 supra, 662 A.2d 442 (quoting Martini 949). 139 N.J. at 28, not, 651 however, A.2d The universe does twenty-three include proceeded cases that penalty to the II, supra, phase despite Marshall being death-eligible. not 130 138, 1059; Report, N.J. CCH 2, at 613 A.2d 3. tbls. The AOC Report. the universe in the CCH coded all 401 cases in We refer to that universe as the “full “death-eligible universe” or universe.” statistics, For some used a AOC smaller universe 163 death- eligible proceeded penalty phase capital cases of a trial. We refer to that “penalty-trial truncated universe as the uni verse.”

B. Classifying Method of Cases established,

Once the comparison universe of cases is we II, must sort them a database. As we have done Loftin supra, III, 323, 129; supra, N.J. DiFrisco 157 at 724 A.2d 142 IV, 442; Bey supra, 163-64, N.J. 345, at 662 137 N.J. A.2d at 645 II, 685; supra, 141-42, and Marshall 130 N.J. at A.2d 613 A.2d 1059, priori approach approaches we use two and an —an priori the empirical In procedure, analyze method. we cases on experience based those factors that has shown influenced the II, supra, capitally. decision whether to 157 N.J. sentence Loftin

293 III, supra, 142 N.J. 129; at 662 DiFrisco 724 A.2d at II, Bey 949; A.2d supra, Martini N.J. 442; at A.2d IV, supra, 685; Marshall 137 N.J. A.2d method, 141-42, we empirical “In the N.J. 613 A.2d 1059. identify those cases to and death-sentenced review life-sentenced sentencing patterns of life determine characteristics that II, 323, supra, N.J. at 724 sentencing.” 157 versus death Loftin III, supra, 142 164, N.J. at 662 A.2d DiFrisco (quoting A.2d 129 949; II, 24, supra, N.J. at 442); 651 A.2d also Martini see 139 II, 142-44, “The supra, 130 N.J. at 613 A.2d 1059. Marshall juries prosecutors and those factors that empirical method reveals III, 164, supra, 142 N.J. at 662 DiFrisco find determinative.” II, 949; Bey 24, supra, 139 A.2d Martini N.J. 442; at 651 A.2d IV, 345, A.2d supra, 137 N.J. at 645 685.

Ill COMPARISON OF CASES rely on those contained of cases that we are The universe coding prior in We adhere to our criteria Report. the CCH Also, we as or life-sentenced. those cases either death-sentenced comparative levels of blame group according to their those cases . II, 324, 129 supra, N.J. 157 at 724 A.2d worthiness Loftin 949). II, 28, supra, Fur 139 N.J. at A.2d (quoting Martini 651 statutory miti ther, by relying on we measure blameworthiness nonstatutory “as as factors aggravating factors well gating and ‘objectively verified measures blameworthiness.’” based on II, IV, Marshall 350, Bey supra, N.J. at (quoting 685 645 A.2d 137 III, supra, 142 DiFrisco 145, 1059); supra, N.J. at 613 A.2d 130 164, 442. N.J. at 662A.2d evaluate a defendant’s blamewor use two methods to

We precedent-seeking review. frequency analysis thiness: cases, both, whether, compared to similar Through we determine III, DiFrisco disproportionate. sentence is death defendant’s II, supra, N.J. 166, 442; supra, N.J. Martini 662 A.2d at 28, 949;- II, 148, at 651 A.2d supra, Marshall at 130 N.J. 613 A.2d 1059. III, explained we supra,

As DiFrisco N.J. 662 A .2d 442: sentencing In we determine the rate of death frequency analysis, similar cases. jurors This reveal how treat similar helps cases. Precedent- prosecutors seeking judicial engages review familiar analysis. We defen- ease-by-case compare dant’s case to similar cases to discern whether defendant factually is deathworthy

vis-a-vis other situated defendants. We then similarly the results compare two determine whether the death sentence in this analysis instance imposition is disproportionate. however, emphasize, We continue to “[p]roportionality review only seeks particular to determine whether death sentence is aberrational, not compares perfectly whether it sen other III, supra, tences.” DiFrisco 142 N.J. at 662 A.2d 442 IV, Bey 685) (quoting supra, 137 (citing N.J. 645 A.2d 1059)). Marshall 130 N.J. at 613 A.2d Adjustments A. Comparison Group

The AOC maintains the database on which we our base proportionality review universe. It breaks list of death- eligible defendants categories into various subeategories. See Report, CCH tbl. 7. There are thirteen categories, basic each of which subeategories.3 contains two to seven

3 categories The thirteen basic are: (A) victims; Multiple (B) Prior Murder above; Conviction without A (C) Sexual Assault without A-B above; (D) Victim Public above; Servant without A-C (E) above; without A-D Robbeiy (F) above; without Arson A-E (G) Burglary [sic] above; without A-E (H) Kidnapping above; without A-B (I) Motive above; without A-H Pecuniary (J) Torture/aggravated assault A-I above; without (K) above; Mind without A-J Depravity (L) Grave risk of death as primary statutory

aggravating above; circumstance without A-K

295 the AOC’s generally “we defer to previously, As we have done assignment of defendants particularly unique to its expertise, comparison category: each case the universe only to one catego only comparison category, and within assigned to one II, supra, N.J. ry, only subcategory.” 157 at to one Loftin III, supra, 142 N.J. 662 DiFrisco (quoting 724 A .2d 129 (citations omitted)). placed The AOC has defendant A.2d 442 “Robbery A-D.” That means designated without category E— case, not a only public one victim who was servant had defendant’s sexually no not assaulted and that defendant had who was assigned to The defendant’s case prior murder conviction. AOC E, entry designated forced subcategory category 1 in “residential has identified particular AOC violence/terror.” in the E-l death-eligible category, in the E cases cases category represent the E-l subcategory. Two of the cases in subsequent death sentence initial death sentence and defendant’s reversal of the first. after adjustment classifica- proposed has no AOC’s

The State however, Defendant, proposed has vari- tion of case. defendant’s categorization, suggesting that adjustments to the AOC’s ous group. comparison numerous cases should be added defendant’s cases, compare seeks to his cases In to the E-l defendant addition factually Spe- twenty-four cases describes as similar. other he adjust comparable cifically, seeks to the universe defendant category A cases it three including in defendants cases murders), victims), B eleven category (prior cases (multiple two -violence/terror), (sexual and two particular C—1 cases assault with or more (involving a sexual assault with one additional C-2 cases III, circumstances). In DiFrisco statutory aggravating compare the 142 N.J. A.2d the Court refused to (M) Detection, etc., sole factor without A-L above. as Escape 7.] tbl. [CHC Report, 4 group of cases are set forth in Summaries of the E-l comparison Appendix cases in on on the discussion of found A. are based published They opinions the AOC’s Detailed Narrative Summaries. higher defendant’s ease to eases in categories. blameworthiness compare We likewise refuse to higher defendant’s case cases in Moreover, categories. blameworthiness consistent with this eases, principle comparing only Court’s similar the cases in suggested comparison group defendant’s involving sexual assault murders should not be included. Cases of that are kind so dissimilar, factually both in blameworthiness, their levels of they “that do any insight not offer into proportionality sentencing.” defendant’s Martini 139 N.J. at A.2d 949. also

Defendant seeks to include category six cases in the E-3 (robbery, entry, violence/terror). particular with forced with but no in category (robbery, One ease E-2 with no forced residential entry violence/terror); particular but with catego- and one ease in ry (burglary, G-3 entry no particu- residential forced and no violence/terror).5 cases, lar eight Of proceeded those four to the penalty phase, but none resulted in compari- a death A sentence. eight son of those supports cases the conclusion that the E-l category proper is the comparison group for defendant and that his death sentence not disproportionate. is

The dissent asserts that our decision to limit defendant’s com- parison group subeategory E-l cases rather than to the entire category E represents far too restrictive and depar- serious practices. ture from past prior Post A.2d at 1184. In cases, applying precedent-seeking salient-factors test and approach we have as comparison used group compos- an entire However, ite category. in those subcategory cases the was too statistically small to productive be and the total cases category chosen consisted of much smaller number of cases than category. the 126 cases in Ethe Summaries those cases are B. summaries are provided Appendix

based on on discussions of published opinions the cases found in the AOC's Detailed Narrative Summaries.

297 II, 1070, 203, example, supra, 731 A.2d In Chew N.J. at killer, pecuniary pecuniary-motive other categorized Chew as a we only one other defendant advantage subcategory 1-3. Because any statistical subcategory, we determined in that remained subcategory cases would be only of 1-3 analysis that consisted 203, Id. Accordingly, we com 731 A.2d 1070. unproductive. at pecuniary-motive killers that group with the entire of pared Chew III, supra, In DiFrisco eligible cases. only of sixteen consisted 442, 174, had also been 142 N.J. at 662 A.2d where the defendant subcategory, we pecuniary-motive, contract-killer placed category pecuniary-motive of murder him to the entire compared analysis. At the a statistical productive ers to be to have able review, pecuniary the entire proportionality of the DiFrisco time only eligible category I of fourteen category consisted motive Id. A.2d 442. cases. at supra, N.J. 724 A.2d we found In Loftin prior was his murder convic the defendant’s “essential attribute” However, of “exceedingly small number because of the tion. all compared Loftin’s case to subcategory, in the B-l we cases” Id. prior category. death-eligible cases in the B or murder category only eligible cases 724 A.2d 129. There were sixteen B.

Here, subcategory provide in' E-l twenty-two cases analysis precedent- sufficient basis for both the salient-factors E Moreover, comparison in the seeking of all eases review. proportionality make review category impractical and would is unnecessary. cases unmanageable. is Such a review also E-2, subeategories E-3 and proposes in the G-3 that defendant factually case. not similar defendant’s are murder, Schnaps’ forty-four at the time Defendant was murder, he was prior record. At the time of an extensive nor his any emotional under the influence disturbance not wrongfulness impaired of his conduct appreciate the capacity to dis- or Defendant not of a disease defect. as a result mental E-2, because of E-3 and G-3 defendants tinguished from the 298. crimes, brutality

differences of their all which were horrendous, presented but those evidence defendants mitigating presented factors. Several evidence of either mental disease, or Many defect emotional disturbance. also were much younger significant than defendant and no prior had criminal records. cases, only Bushy Huff, the eight Harvey,

Of and like were charged Busby, with aggravating Harvey, two factors. like was factors, charged aggravating c(4)(g), contemporaneous felony c(4)(f), seeking escape However, and detention. jury found Busby, murder, that attempted who suicide after the was under the influence of extreme mental or emotional disturbance and that capacity wrongfulness his to appreciate the signifi- his act was cantly impaired defect, because a mental or disease or intoxi- Huff, cation. who twenty-three murder, was at the time of the c(4)(c), charged was causing with both murder extreme suffer- ing c(4)(g), However, and contemporaneous felony. jury Huff’s hearing testimony after psychiatric that Huff an had antisocial disorder, an personality mentally antisocial and was still an adoles- cent, capacity found that his appreciate the wrongfulness of his conduct was significantly impaired as a result of a mental disease defect, or or intoxication. Busby Huff, prosecutor

In sought penalty, the death jury but the agree could not on death Harvey a sentence. Unlike only jury factor, c(5)(h), where the found mitigating catch-all Huff, Busby jury factor, found in addition to that other mitigating factors. Accordingly, their factually cases are not Harvey’s similar to why and it is Harvey understandable was the only one of the three sentenced to death. mitigating

There also were factors distinguished defen- dant’s ease from Age cases of other mitigating defendants. was a Dollard, factor twenty-two Wolfe Hart who all years were younger they or when they committed the murders for which were Wolfe, remorse, charged. who also showed and Dollard had no significant prior prior records and no Suarez had record. The

299 a from mental jury and Hart suffered also found that Wolfe capacity to disease, impaired their defect or intoxication wrongfulness of appreciate their conduct. E-3, E-2, sum, and G-3 many the life-sentenced unlike

In defendants, mentally emotionally Harvey not or disturbed was man, victims, a young without nor he when he murdered his differences, significant prior criminal record. Because those jury’s insight propriety of the into the provide such cases little case, inapplicable proportionality are to our in this decision his request expand refuse defendant’s review. We therefore commented, a “capital previously we comparison cases. As have cases, universe of identical perfect is not entitled to defendant III, can achieve.” DiFrisco only the best that we but instead 170-71, Martini (quoting supra, A.2d 442 N.J. at TV, Bey supra, 137 N.J. 139 N.J. (citing A.2d 949 685)). comparison find A.2d that defendant’s We twenty-two subcategory E-1. of the cases group consists Frequency Approach The B. of degree the principal inquiry here is whether

“The ‘reasonably an present supports in case the blameworthiness in a death generally result expectation such a case will ” III, 171, 442 N.J. at 662 A.2d sentence.’ DiFrisco 949). II, “Fre supra, 139 N.J. at 651 A.2d Martini (quoting in a is helps to whether defendant quency analysis us determine to likely other him or more than killers category that renders her penalty.” Ibid. It is into two statistical divided the death receive culpability: the criminal a relative gauge to defendant’s tests test, test. and the index-of-outcomes salient-factors supra, 157 N.J. appointed A.2d we In Loftin Master, Baime, to a Judge Special as Division David S. Appellate proportionate of the and evaluation an extensive review conduct years. last six We methodology have used the that we (1) of following: scope to the Special the Master consider directed (2) cases; accuracy of the of universe proportionality the review (3) data-coding techniques; reliability frequen AOC’s statistical of base; (4) cy given the review results small size of the data (5) test; strengths sys and weaknesses of the index-of-outcomes proportionality (specifically, temic development par review of simonious models to of possible measure the role race discrimina (6) decisions); prosecuting sentencing tion in possibility and of reduction in the number ease classifications salient-factors (7) test; possible a appointment panel judges perform to outcomes; (8) periodic penalty-trial assessments of and mainte nance of a proportionality separate proceeding. review as Loftin II, supra, 454-56, N.J. at 724 A .2d129. 28, 1999, April

On Special report, Master released his Baime, Report Honorable David S. Jersey Supreme the New 28, 1999) Proportionality Project Court: (Apr. Review at 1-4 (Special Report). report, Master In that the Special Master aspects determined that several our methodology faulty are require Special Report revision. Master at 6-7. the Court sched- argument uled oral Special Report on the Master’s on June Pending 1999. Court’s decision that proceeding, we have determined analyze that we will continue to defendant’s ease according methodologies procedures to the previously utilized, except longer that we no conduct the numerical-preponderance previously test part frequency approach. used as of our

Although thirty-two the AOC has added cases Report, database since and the addition of cases “has Loftin positive impact stability models, had on the of the [the AOC’s] is culpability view that purports give estimate which ‘predicted probability soft, of death sentence’ is often still too little given substantive reliance should be to this statistic Chew, Cooper Harvey cases.” Barraco Memorandum 4. Consequently, frequency analysis statistically based, because sample may and because small sizes undermine statistical reliability, we remain reliability concerned about the statistical frequency analysis, place greater and continue emphasis on the II, precedent-seeking results supra, 157, review. at Loftin

301 III, 129; 171, supra, 142 N.J. 291-97, at DiFrisco A.2d 662 724 II, 949; Bey supra, N.J. 442; 29, Martini 651 A.2d A.2d 139 at IV, supra, 137 N.J. at 351, 645A.2d 685.

1. Test The Salient-Factors compare test enables us to defendant’s

The salient-factors factually in similar cases to measure the sentence to sentences III, supra, DiFrisco frequency sentence. relative defendant’s II, supra, 139 172, 442; 33, Martini N.J. at N.J. at 142 662 A.2d statutory comparability on the 651 A.2d 949. We first base “ factors, group ‘according to aggravating and then subdivide the aggravate mitigate that or to circumstances serve either ” II, in of the defendants those cases.’ blameworthiness Loftin II, supra, supra, Martini 328, 129 157 N.J. (quoting at 724 A.2d 949). 33, 651 139 N.J. at the salient-factors test A.2d Because similar, factually are find it compares sentences in cases that we Ibid.; also see frequency persuasive of the tests. most III, supra, 142 N.J. at 173, 442; Martini DiFrisco 662 A.2d IV, supra, 137 949; supra, Bey N.J. at 139 N.J. at A.2d II, supra, 130 N.J. 685; Marshall 613 A.2d 645 A.2d E, designated Harvey assigned category has “rob 1059. been bery Harvey subcategory has further classified killer.” been E, particular designated entry category “residential forced Report, tbl. 7. Of the twenty-two violence or terror.” CCH group, eight penalty to the death-eligible proceeded cases in that eases, penalty phase. Including four of those trial defendant’s Thus, death-sentencing death sentences. eases resulted percent those robbery eighteen and for advanc rate for killers is trial, fifty percent. ing penalty The overall death- to the it is eligible percent for is twelve sentencing rate the death universe forty-one penalty-trial in the universe the rate those Therefore, higher percent. figures for E-l defendants are rates, death-sentencing leading to the conclusion than the overall particular commit violence or terror society views those who See significantly blameworthy. entry as in a residential forced III, (stating 142 N.J. A.2d DiFrisco higher sentencing category rates for society one indicates views category “significantly those within that blameworthy”). as Removing defendant’s eases from group lowers the rates somewhat, but still not does indicate that sentence is defendant’s cases, disproportionate. sentencing Without defendant’s the death percent, rate for E-l advancing defendants is ten and for those penalty phase thirty-three percent. it is percent That ten figure slightly general percent lower than the twelve rate for all cases, death-eligible thirty-three percent but the slightly rate is higher than thirty-one the overall percent penalty rate for trial figures support cases. Those do not defendant’s claim that his disproportionate. sentence is following

The table summarizes the outcome of the salient- respect factors test with category: the E-l robbery category The entire E can be broken down as follows: Salient-Factors “E” Category Test: overall rates for somewhat below the

Those numbers are do penalty trial universe. We death-eligible universe and the robbery however, shows that not, that such a deviation believe blameworthy. mere fact by society as less killings are viewed disproportion not establish disparity exists does that a statistical 352, “A low IV, 645 A .2d 685. Bey supra, 137 N.J. at ality. mean, imposition of ipso facto, that the not predicted value does simply means we must disproportionate; it penalty is the death proportionality of aspects the other carefully scrutinize more III, 662 A.2d 442. The supra, 142 N.J. at DiFrisco review.” higher than the rates death-sentencing for E-l killers is rate sentencing death robbery higher is than the overall all killers and commit society those robbers who signifies that views rate. That particularly as entry significant violence forced a residential Also, argue not that the notably, does blameworthy. defendant disproportionate. that his sentence test reveals salient-factors Test 2. The Index-of-Outcomes statistically complex is the most test The index-of-outcome merely calculat Rather than frequency-analysis tests. of the two analysis. The ratios, multiple-regression utilizes a ing this test degree a identify characteristics establish “to those test seeks III, supra, 142 N.J. DiFrisco of a defendant’s blameworthiness.” Further, “organize[s] the cases test 442. 662 A.2d culpability, such as statistically-relevant measures ‘according to victim, suffering on pain or mental infliction of severe robbery, commission or and the sexual assault contemporaneous ” Ibid, IV, supra, 137 N.J. at (quoting Bey murder.’ prior 685). 645A.2d performed, each AOC has multiple regression

For each score, on the which is based culpability receives a defendant Id. at receiving a sentence. death predicted probability to .99. The ranges from .00 culpability score A.2d 442. The evenly scores are culpability divided into five levels. Cases with culpability likely level one are the least to receive a death sen- tence, and culpability cases with a likely level of five are most penalty. receive the death multiple regressions

Four encompass the index-of-outcomes 179-82, test. Id. at 662 A.2d 442. regression The first considers statutory non-statutory both penalty-trial factors in the uni- 179-80, verse. Id. at appraises A.2d 442. The second 180-81, same factors but utilizes the full universe. Id. at 662A.2d Statutory 442. aggravating mitigating only factors are the regressions. 181-82, variables the other Id. at 662 A.2d 442. regressions, Like the first two regressions third and fourth employ penalty-trial universe, universe and respective- the full ly. Ibid. regressions

The results of the four diverge considerably. This drawback of the index-of-outcomes test has revealed itself in each proportionality this Court’s precedents. review See DiFrisco III, supra, 211, 142 at N.J. 662 A.2d 442 (reporting culpability ranging scores percent seventy-four from eleven percent); to II, supra, 43, Martini 139 at N.J. 651 A.2d 949 (reporting culpability ranging scores from percent eighty-eight five to per cent); IV, Bey supra, 362-64, 137 N.J. at 645 A.2d (reporting 685 culpability Bey scores from the ranging twenty-five data from percent seventy-six percent to culpability scores from the ranging Martini data thirty-three percent from eighty-one to II, percent); Marshall 130 N.J. at 613 A.2d 1059 (reporting culpability ranging scores from percent seventeen fifty-two percent). case, In this culpability defendant’s scores (cid:127)range from percent, thirteen places which him in culpability level one, forty-three percent, places which culpability him in level three. following chart figures shows all the relevant for the four

index-of-outcomes tests:

305 statutory and both regression, which considers In the first universe, defen- penalty-trial in nonstatutory for cases factors thirty- receiving sentence is a death predicted probability dant’s sixty- range percent to probability is eleven percent. The five words, ninety-five percent certain are In other we eight percent. Harvey would have similar to with characteristics that a defendant of between receiving a death sentence predicted probability of culpability sixty-eight percent. Defendant’s percent eleven culpabili- in that culpability level 2. Defendants places him score twenty-six percent of the ty a death sentence level have received time. significantly lower regression are results

Defendant’s II, supra, 139 N.J. at 651 A .2d in Martini than those III, supra, probability), DiFrisco percent predicted (eighty-eight (seventy-four percent predicted 142 N.J. at 662 A.2d IV, 362-63, A.2d Bey supra, 137 N.J. probability), Report in Martini predicted probability (eighty-one percent Marshall Bey Report), seventy-six probability percent (fifty percent predicted supra, 130 N.J. 613 A.2d 1059 hand, sentence upheld have a death the other we probability). On See lower than defendant’s. significantly score culpability with a (fourteen II, percent supra, 157 N.J. at 724 A.2d Loftin predicted probability). universe,

When the same variables are in considered the full culpability defendant’s percent score falls to thirteen and the ranges confidence internal percent thirty-two percent. from five Accordingly, one, occupies culpability defendant’s case level at percent which five of the defendants have been sentenced to Although low, death. they those results are also are within a range that previously Court has disproportionate. held not III, supra, See DiFrisco 180-81, (eleven 142 N.J. at 662 A.2d 442 II, percent predicted death); supra, Martini probability of (five N.J. percent A.2d 949 predicted probability); Marshall (seventeen 130 N.J. 613 A.2d 1059 percent predicted probability). regression

The third of the only index-of-outcomes test utilizes statutory aggravating mitigating factors and is run with data penalty-trial from the regression, universe. In that predicted probability receiving forty-three death sentence is percent, and the ranges confidence interval twenty-three from percent to sixty-five percent. places That culpability defendant in level level, three. culpability At that defendants are sentenced death forty-five percent of the regression time. When a is run with data from the full universe and with the same prior variables as in the regression, predicted probability defendant’s of death is nineteen percent. The confidence spans eight interval from percent thirty-eight percent. one, Defendant is in culpability level which, above, as noted defendants are sentenced to death five percent of the time. argues

Defendant that the frequencies index-of-outcomes are so they prove low that defendant’s disproportionate. sentence is disagree. Although We defendant’s numbers are low some of scenarios, they the other range scenarios are within the previously the Court has disproportionate. held to be not More- over, even in the lowest, scenarios where defendant’s score is defendant’s numbers are not the lowest score of a defendant whose claim disproportionality we have Accordingly, denied.

307 no test indicates we are satisfied index-of-outcomes disproportionality. Frequency Approach

3. Conclusion produce showing of are defendant’s “results no We satisfied that has failed to offer reliable randomness or aberration. Defendant find do not that for cases disproportionality, evidence and we generally imposed.” his other is such as a sentence than death III, supra, 183, DiFrisco N.J. at (quoting 142 662 A.2d 442 II, IV, 949) Bey 46, supra, Martini 139 N.J. (citing at A.2d 651 II, supra, 130 N.J. 365, 685; supra, 137 Marshall N.J. at 645 A.2d 1059). 174, 613 at A.2d predicted

Although proba of the defendant’s in some scenarios low, his bility do that evidences that of death is we not believe wary frequency is of the sentence an aberration. We remain defects, noted and therefore continue approach of its because See on the place greater emphasis precedent-seeking approach. DiFrisco, II, 334-35, 129; supra, 157 N.J. at A.2d 724 Loftin 182-83, supra, 142 N.J. at 662 442. A.2d Precedent-Seeking Approach The C. component is the precedent-seeking approach second II, 335, supra, N.J. at 157 724 proportionality review. Loftin III, supra, 183, 442; 129; 142 N.J. at 662 A.2d DiFrisco

A.2d II, engage supra, 139 N.J. at 46, Martini 651 A.2d 949. “Here we case-by-case compare in which we similar in traditional review individually.” DiFrisco cases, death-eligible considering the cases IV, III, 442; Bey supra, N.J. 183, supra, 142 N.J. at 662 A.2d 137 366, whether approach 645 This seeks determine at A.2d 685. comparison to other sentence excessive defendant’s death Id. at defendants. similar life-sentenced death-sentenced 662A.2d 442. analy

Precedent-seeking “complement frequency reviews noted, Ibid. rates and have lower overall “[T]he sis.” As we analysis, greater the need for frequency reliability of our 308 Id. at 183-84,

precedent-seeking A.2d review.” 662 442. In eaeh cases, prior our proportionality consistently review have we placed greater on precedent-seeking reliance review than on fre II, supra, review. Id. at 442; Martini quency 662 A.2d IV, Bey N.J. at 28-29, 949; supra, 137 N.J. 651 A.2d 685; Marshall N.J. A.2d A.2d 1059. We Special continue do so. The Master has recommended methods by representative which to select a cases within number the group of similar comparison cases for consideration and to defen Special Report Although dant’s case. Master at 68-70. some of Special valid, comments are the Master’s until Court has a hearing opinion regarding Special and issues its Master’s Report, analyze “we will continue case according defendant’s methodologies procedures Supra previously utilized.” at 300, 731 at A.2d 1133. Precedent-seeking statutory review considers and non- “

statutory aggravating mitigating that are factors ‘rooted in ” III, supra, 142 sentencing guidelines.’ traditional DiFrisco N.J. 184-85, supra, (quoting at Marshall 130 N.J. at A.2d 442 2C:44-1)). N.J.S.A (citing 613 A.2d 1059 approach That culpability categories: divides criminal into three defendant’s mor blameworthiness, victimization, degree al and defendant’s Id. at character. A.2d 442. application begin

We precedent-seeking ap by proach identifying They the cases that we use. will consist of Report AOC as E-1. CHC categorized those cases tbl. 7. Including Harvey’s sentences, two death the total number of cases twenty-two. Ibid. By comparing Harvey to those other nine review, teen defendants the traditional manner of we seek to any determine the existence aberration in defendant’s sentenc IV, ing. Bey supra, 137 N.J. at goal 645 A.2d 685. The is to unfairly singled ensure defendant has not been capital out for However, punishment. facts, because each case involves different defendants, juries, issues, legal proportionate to be even closely-similar require cases not identical verdicts. DiFrisco do IV,

III, Bey 442; supra, 137 N.J. 142 N.J. A.2d 369, 645 685. A .2d culpability components by measure defendant’s which we as are follows:

1. Defendant’s moral blameworthiness a. Motive Premeditation

b. excuse

c. Justification or disease, Evidence defect or disturbance d. of mental Knowledge e. of victim’s helplessness Knowledge on nondecedent victims f. of effects age g. Defendant’s planning murder involvement

h. Defendant’s Degree 2. of victimization

a. of the murder Violence and brutality Injury victim to nondecedent b. Character of defendant

3.

a. Prior record of violence

b. Other unrelated acts

c. with authorities Cooperation

d. Remorse

e. rehabilitation. for Capacity accord 155, 1059; supra, 130 N.J. Marshall 613 A.2d III, 142 N.J. 203, 442. 662A.2d DiFrisco 1. Defendant’s Case 1985, early morning or in evening in of June the

Late the of apartment into the defendant broke hours June know, brutally did not and Schnaps, a woman whom he Irene bedroom, attack, Schnaps’ was of the murdered her. The scene throughout the Defendant disarray. in Blood was room. left head such force Schnaps fifteen times on the struck Irene lacerated the blows open. her skull was fractured Some head, to as well lacerations her suffered numerous her brain. She face, jaw, to a broken several her as bruises and contusions neck. of the blows pressure marks on her Some teeth and broken front, most were from behind. from the but were delivered hammer, weapon murder was a blunt instrument: a which left wounds; item, iron, curving two-by-four, as a and an such tire or a axe, dull left linear which wounds. After he murdered Irene Schnaps, body defendant washed the off the blood front of her and changed apparent attempt sheets on in an the the bed to avoid then lying detection. He left her naked on the floor. phase penalty

At the the State relied on relevant c(4)(c), e(4)(f) guilt phase prove e(4)(g), evidence to and factor, alleged aggravating mitigating factors. Defendant one c(5)(h).. factor, catch-all factor under Within he itemized the ten, following non-statutory factors: age 1. defendant’s at the time of offense; age tragic 2. defendant had been traumatized at an when he early witnessed sister; death of his older grandparents 3. defendant was from and sent to uprooted his home live with who abused him and resented his physically verbally presence; feelings 4. defendant suffered when not abandonment his did take him parents with them as continued have other yet promised, children; grandparents; 5. defendant domestic violence in the exposed home of his 6. defendant was to domestic violence the home of exposed his parents; caring loving 7. is a defendant father; continuing 8. defendant’s with his children and the financial contribu- relationship tion that makes he still to them; daughter; 9. defendant’s with his disabled relationship mentally 10. other factor that relates any family background. childhood or

defendant’s phase, childhood, At penalty focused defendant on his his family background, Moran, parent. and his role as a Professor criminologist specializing age correlation between crime, testified that if were prison defendant sentenced to rather than eligible parole age sixty- death he would not be prior to four, by that group time defendant would age be an less likely to commit violent crime. Alabaras, worker,

Carmetta a forensic social testified about history. defendant, defendant’s social had Albaras as interviewed family well testimony as some Her members. focused on the adolescence, early and on his years from childhood defendant’s was one marriage up separation from his wife. Defendant to the children; Joyce wife four children of twelve defendant and his had Joyce and later bore a together. separated, she Defendant man. child with another four, how, age lit a jury for the defendant

Albarus recounted keep coal in generate heat on kerosene-laden order to match sister, Unfortunately, five-year-old Mary, warm. himself and his on her Mary got severely splashed binned when some kerosene ignited. days a few later from her burns. Albarus She died grandpar- to live with his also how defendant was left recounted to look for parents in 1956 when left south Georgia ents his grandparents were work the north. Albarus said defendant’s many take Albarus having to care of so children. resentful about was to his grandfather abusive further testified defendant’s eventually away ran lived and to wife defendant. Defendant reuniting Jersey. parents his in New with an uncle before with Also, parents said it was hurtful to defendant his Albarus said was for him. there no room stated parents, his Albarus

Once defendant reunited with siblings. “big younger to his that defendant acted as brother” However, mother and father was abusive toward defendant’s his marriage. outside the Defendant was devoted fathered children mother, suffer hands pained his it him to see her at the father. his sharing “special as characterized

Albarus also defendant James, developed signs of relationship” who had with his brother added that defendant being developmental^ disabled. She daughter Tanya, developmen- who sensibility toward his showed tally disabled. wife, told defen- defendant’s who her that spoke

Albarus with at the father and husband “very responsible” dant was as a incarcerated, marriage. while Albarus beginning of their Even children, relationship” his maintained a “close said defendant writing sending them cards. sending money, to them and them Taliah, Joyce’s man, Defendant treats child with another as his own. professor historian,

In addition to the and the social members of family, father, James, defendant’s his sister-in-law, his brother his wife, his and Taliah testified. right

Defendant also exercised his of allocution and made the following, jury: terse statement to the “I’m going you to ask give thirty years me stay so I can around about do [sic] the best I can, teaching my family and communicate with them. Thank you.” rebuttal,

On produced the State evidence that in 1994 defendant jail. surrebuttal, had no visitors at the On defendant’s wife testified that she did bring jail not pursuant children to the defendant’s wishes. juror

Each non-statutory deliberated on the mitigating factors juror submitted defendant. No age, expo- found defendant’s sure to home, domestic violence in grandparent’s his exposure to home, domestic parent’s violence his relationship defendant’s with his brother Taliah, James and daughter any his or other relating factor to defendant’s background childhood or inbe However, mitigation. mitigation, jurors following found the jurors facts: six defendant was traumatized when he wit- —that sister; nessed the death of juror his older one defendant —that was sent to live with grandparents physically who verbally him; jurors abused four defendant feelings suffered —that abandonment father; and that defendant loving was a and two jurors relationship jurors, with his children. The —defendant’s however, unanimously c(4)(f), found aggravating escape factors detection, c(4)(g), contemporaneous felony, present to be they outweighed mitigating beyond factors a reasonable They doubt. sentenced defendant to death as a result. Analysis

2. of Defendant’s Moral Blameworthiness. analysis An of defendant’s moral blameworthiness reveals that he quite blameworthy. is indeed He broke into someone’s home night Clearly, to rob. defendant could not surprised have been occupant

to find the brutally home. He then murdered the occupant escape apprehension. so he could Schnaps, Irene victim, helpless sleeping was her bedroom. As the medical opined, mostly examiner she hit from behind. She was attacked with blunt instruments and struck so hard that her skull fractured, lacerated, jaw was her brain and her broken. was She many beaten about the face and sustained bruises a brutal murder. justification

There is no or many excuse for the murder. Unlike defendants, E-l of the other there is no evidence that defendant disease, suffered from a mental defect or disturbance. respect age maturity,

With to and age present- defendant’s was non-statutory factor, a mitigating jurors ed as and all twelve rejected E-l, it. Unlike most of the defendants in defendant was murder, forty years over old at the time of the and he can be mature, categorized only full-grown as a man.

Although may specifically defendant not have known that Irene friends, family previously recognized had and we have “[wjhile might a specific defendant be unaware of the characteris particular tics of his victims or of the survivors that the victim will behind, completely leave it is killing foreseeable that will unique person destroy eliminate a and a web of familial relation Muhammad, 23, 46, (1996). ships.” State v. 145 N.J. 678 A.2d 164 Moreover, family defendant must have realized that Irene had personal photographs apartment friends because there were in her Unquestionably, and he stole a man’s Seiko LaSalle watch. privacy defendant Schnaps’s entered the of Irene to bedroom rob detection, cold, her. He then killed her to avoid and had the calculating presence body of mind to wash change her sheets to further avoid detection.

3. Victimization Victimization consists “the extent of mutilation of the victim IV, Bey injury surviving 366, 137 N.J. victims.” case, Schnaps repeatedly Irene was struck A.2d 685. In this Although opined Schnaps in the head. the medical examiner unconscious, she conscious when defendant rendered was was upon is not began his brutal assault her. Even when victim death, III, impending as the case DiFrisco this aware day has that “at the end of the there is still Court observed murdered____” victim, [brutally] who was DiFrisco [woman] III, supra, 142 662 A.2d 442. There were no other N.J. victims.

4. Defendant’s Character his greatly contributes moral blame Defendant’s character prior is extensive worthiness. Defendant’s record and involves serious, May convictions for violent crimes. On defen pleaded rape, battery. guilty dant atrocious assault and In pleaded guilty degree kidnapping October he to first aggravating guilty pleaded assault. He also to second sexual burglary, degree attempted kidnaping, degree second and third receiving degree burglary. prop He also was convicted of stolen erty. into Schnaps’s: has broken homes other than on Defendant day house, In of his arrest he broke into two homes. one he ax; another, attempted a in couple attacked with an he to abduct a Also, teenaged girl. committing he later to confessed number of II, 117, burglaries Harvey supra, 151 in Windsor. N.J. at West say, Harvey very 699 A.2d it to 596. Suffice Nathaniel is a dangerous kidnaped, raped, has man who robbed and killed. remorse, scant, respect any,

With there if of it. is evidence allocution, In in no expressed his statement he remorse for murdering any express humility Irene. Nor did he shame or for family. pain suffering Schnaps’s he inflicted on

Finally, hope Harvey. in little for there rehabilitation His prior has record reveals that he chosen for himself life of violent multiple rape, kidnap- crime. He assault has convictions for ping. Schnaps The of Irene was the an murder culmination of escalating pattern paroled of violence. Defendant had been in May 1983 for Ms twenty sentence of fifteen years rape. for Schnaps Irene was killed a years little over two later. Unfortu- nately, years Ms prison four had little deterrent or rehabilita- tive effect on defendant. respect

With to defendant’s moral blameworthiness and charac- ter, highly defendant is culpable. contrast, In respect degree victimization, defendant’s moderately culpa- defendant is ble.

5. Summaries of Similar Cases starting point of the comparative-culpability analysis is the comparison group IV, used Bey salient-factors test. supra, 367, 137 N.J. at 645 A.2d 685 (“IMtially, from the umverse of all cases, death-eligible we select a class of according cases to their factors.”); III, salient see also supra, DiFrisco 142 N.J. at 662 A.2d 442 (using pecuMary-motive murderers to form defen comparison dant’s group); supra, Martini 139 N.J. at (using A.2d 949 same comparison salient-factors group). By using comparison salient-factors test’s group precedent-seeking review, the Court ensures analyses that the two complementa are ry, other, can confirm each compared and can be to each other. II, supra, 1070; III, Chew 159 N.J. at 731 A.2d DiFrisco supra, 442; IV, 142 N.J. at Bey 662 A.2d 137 N.J. at 366-67, 645 A.2d 685. earlier,

As noted placed the AOC defendant in the E-l subcate gory. When compared defendant’s ease is to the others in the E- category, A, summaries which are set in Appendix forth we find that culpability defendant’s criminal Mgh and his death disproportionate. sentence is not Defendant that asserts Ms level culpability is more like the compari life-sentenced cases his group son than reject the death-sentenced cases. We asser tion and observe “[disparity alone does not demonstrate disproportionality.” supra, 214, Chew 159 N.J. at 731 A.2d IV, (quoting Bey 685). 386, 137 N.J. at 645 A.2d Rather, impermissible factor or that pattern we some search for been broken. Id. at 731 A.2d 1070. has E-l Harvey, category from two in the re Aside defendants Mejia. argues death Gerald and Defendant ceived sentences: disagree. he. Mejia culpable are more than We that Gerald and Gerald, Gerald, (1988), 549 A.2d 792 and Both State v. N.J. (1995), Mejia, Mejia, 141 A.2d 308 were State v. N.J. Gerald, the capital sentenced to death. In we reversed murder pre concluded the state constitution conviction. The Court that penalty of the death on defendant who imposition cluded (SBI) bodily knowingly injury or caused that purposely serious reviewing 792. 113 N.J. at 549 A.2d After resulted death. trial, produced the evidence at Gerald’s this Court was unable purposely knowingly or death discern whether Gerald caused his own he in death. conduct or whether caused SBI resulted 91-92, 100-101, According Id. at 549 A.2d 792. defendant’s confession, victim, “stepped he but one of the hit and on” codefendants off’ on the victim and threw the on him. “went TV 100, 549 Id. at A.2d 792.

Moreover, Gerald, jury mitigating found several factors psychiatrists not found here. Defense testified Gerald was drug dependent depressed personality and suffered severe Moreover, expert drugs one that his desire for disorder. claimed control Gerald made Gerald unable to his behavior. testified murder. sisters expressed sorrow for the Gerald’s testified about life, family their how their father’s death affected Gerald 62-63, drugs. Gerald’s use of alcohol and Id. at 549 A.2d 792. jury emotionally was found that Gerald disturbed and suf- signifi- fered from a He also mental disease defect. had no prior activity. cant criminal

Mejia caught up angry was a kitchen worker a hotel an dispute thought leaving with a whom co-worker the defendant country Mejia paying without owed him. Based on the $750 accident, Mejia’s gun shooting that the was an that his defense kill, accidentally fired and that he intended to the Court never found a rational basis for Mejia, SBI murder. supra, 141 N.J. at 489-90, 662 A.2d 308. eases,

In both those the Court found that there was a rational jury basis for a to find that each defendant purposely had not kill, knowingly intended to but merely had intended to inflict bodily injury serious case, resulted in In death. this the evidence was clear that purposely defendant knowingly in- by tended to kill Irene Sehnaps his own conduct.

Other cases in the E-l group problems contain proof. similar Caviness and his cohorts entered the apartment, victim’s tied the up, victim apartment. and ransacked the A eodefendant said by Caviness killed the victim hitting him numerous times with a But,

baseball bat. Caviness said that this codefendant had the (cid:127) bat, and that he left the codefendant with the victim. Gerald Williams’s conviction felony murder was reversed Appellate because the Division held that charge the trial court’s on Martin, causation was deficient under State v. 119 N.J. 573A.2d (1990). Appellate Division jury concluded that a could have burglary found that the robbery were not the direct cause of the victim’s death.' Williams had testified that the victim during awoke burglary the and was at the legs window with his dangling he, Williams, outside and that help had tried to victim, Here, but was unsuccessful. defendant Schnaps’s caused by repeatedly death striking her on the head with a blunt instru ment. There is no issue that he did not by commit the murder his own conduct or that killing was accidental.

In comparing the relative blameworthiness of defendant and the defendants, other E-l brutality dissent focuses on the of the Undoubtedly, crimes. all the murders in E-l category are But, savage. brutal and many of those cases mitigating involved factors that present are not in defendant’s In Reigle, case. jury found the capacity defendant’s appreciate wrongfulness significantly his conduct impaired was as the result of mental disease, defect, or Felder, or intoxication. There were facts in Brown, Mann, Lee, jury and Britton that also would allow a capacity wrongful- appreciate conclude that the defendant’s or or impaired ness of his conduct was mental disease defect presented here. intoxication. No such evidence is Defendant’s impulsive not an act. breaking apartment act of into Irene’s burglaries. numerous previously He had committed his mitigating Brunson also elicited evidence about substantial early and his emotional As a abusive life extreme disturbance. by psychiatrists psychologists, he treated often child had and been including by He psychoactive treatment medications. had twice attempted diagnosed being paranoid He suicide. had been as schizophrenic, having and as conduct Not surprising- disorder. factors, ly, jury mitigating as found that at the time of the mentally crime he also was disturbed. Szadorski had severe illness, including mentally mental abuse. Mendez was substance learning age retarded disabilities and mental six. He read, English. not or also had speak prior does write He no viciously criminal Herman shot his to record. Williams victims However, “culturally death. Williams was characterized as re- Harvey tarded.” no such infirmities. He not suffered from mentally or ill emotionally Schnaps. disturbed when he killed Moreover, Harvey was significant- when committed murder he ly they older than several of the other were when defendants Brunson, Caviness, Felder, Phillips, committed their murders. Ploppert, younger and Szadorski all much than were defendant. killers, Harvey Because was more mature than the other E-l he is blameworthy. more Gerald, Brown, Caviness, Mendez,

Finally, Felder, Reigle Indeed, significant history prior activity. also had no criminal Williams, Harvey’s aside from Gerald criminal record is more above, extensive than the other E-1 killers’ noted see records. As - - Harvey at 380 731A.2d at 1176 has been convicted infra kidnapping rape. danger Harvey poses society, record, as evidenced his violent criminal makes him more blameworthy than the E-l killers. other

Defendant calculating is a cold and murderer. He invaded the privacy Schnaps’s of Irene night brutally home at murdered conclude, escape her to detection. To surrounding facts each of the above category eases the E-l they demonstrate that are distinguishable Moreover, from defendant’s case. to the extent they case, comparable are to defendant’s this Court has not required identical in all similar cases. State v. Martini verdicts (II), supra, 139 N.J. 651 A.2d 949. Defendant was not singled unfairly out capital punishment. His death sentence cannot be seen as an aberration. Defendant has failed to show any way his death sentence is in disproportionate. Precedent-Seeking

B. Review Conclusion

Proportionality only review seeks assure that defen III, dant’s sentence is not an aberration. See DiFrisco N.J. 662 A.2d 442. It is not intended to ensure that one killer’s sentence is identical similarly categorized all other killers. Ibid. Additionally, the mere fact that or compari one two son may cases be more deathworthy Harvey than does not estab III, Harvey’s lish that See DiFrisco disproportionate. sentence is supra, 142 N.J. at 209, 662 A.2d 442. A comparison between defendant’s case and other similar disproportion cases reveals no ality in defendant’s sentence.

IV Arguments Other Defendant asserts that penalty the death is unconstitutional because black likely defendants are more to receive the death II, supra, penalty than 157 N.J. at white defendants. In Loftin 154-55, 129, rejected major 724 A.2d we that claim. There is no II, supra. change Therefore, statistical since we continue Loftin reject that claim. Defendant also claims that geographic capital distribution of charging sentencing renders penalty the death unconstitution- 320 any

al, sentencing rate death is so low and that overall excessive, arbitrary, unprincipled. This sentence is death III, claims, see DiFrisco 142 previously rejected has those Court II, 80, 442; Martini 139 N.J. A.2d at N.J. at IV, Bey 949; 685; supra, 137 N.J. Marshall 645 A.2d A.2d 195-200, supra, 130 N.J. again A.2d so and we do today.

V CONCLUSION. that his is

Defendant has not demonstrated death sentence is af- disproportionate. Accordingly, defendant’s death sentence firmed.

APPENDIX A Comparison E-l Case Summaries

A) Walter Gerald Gerald, v. at State 113 N.J. reported 549 A.2d This case (1988). Matusz, old, eighty-nine years fifty-five year- lived with John his son, Paul Matusz. as old John was disabled the result of a stroke. self-sufficient, nor Neither John Paul were so two John’s daughters staying took turns at the house to care for them. 13,1982, Lottie, August daughter, staying

On at the John’s evening p.m. house. John retired for the at 6:30 Paul went to his television, to watch later retired. televi- room Lottie watched sion until she went at 9:30. bed The defendant his two co-defendants broke into the home. bedroom, first-floor Lottie heard.noise from the other and as she room, opened eye by Lottie was the door struck standing behind door. Lottie attacked someone was then males. One of 'intruders had a The two knife or blade. floor, punched intruders threw Lottie to the and kicked her and threw her into the bathroom. One of the intruders continued to stomp on her and up you.” she was told “shut or-I’ll kill She face, neck, suffered a broken nose and contusions of the and chest. money When asked where her kept, she him told the location purse. of her Paul heard the commotion and came down the investigate. Paul, stairs to Two of the intruders attacked and one struck Paul in the face with a television set. knowing house,

Not whether the intruders were still telephoned Lottie police and her sister. then She saw Paul lying on the floor with a television overturned on his face. After set, removing the television Lottie found Paul dead. Paul died of injuries blunt force to the head. He suffered contusions and swelling in the brain and he drowned the blood from his broken Meanwhile, nose. John dragged had been from his bed to the hallway bleeding and was left there profusely. John suffered bruises and resulting lacerations of the face being from hit object. injuries blunt required Those hospital continued care and 2, 1982, convalescence treatment. John died on October never having returned home. The intruders stole a new color television set, portable set, an old black-and-white television and Lottie’s purse, which contained about $60. police tip received a that Gerald had committed the mur- They

ders. arrested him outstanding on failing warrants. After polygraph, he, Walker, Gerald confessed. He stated that Eddie house, and John Bland had entered intending the Matusz to steal they a television set previously had seen from outside the woman, house. Gerald “had” the striking and admitted her a couple (Paul), of times. younger Walker “had” the man while (John) Bland roused the old young man from bed. The man was trouble, giving Walker a lot of so Gerald and Bland went to assist They younger hands, Walker. beat the man with their then left woman, him alone. Gerald went back to the and Bland returned to the older man. lamp Bland beat the older man with a and a cane, “just or both. Gerald said that Walker went off’ on the him, man, younger hitting trophy, punching him with that, set on his face. Gerald also admitted throwing a television house, on way stepped on the out of the he Paul’s face. twenty-four years graduated Walter Gerald old. He from high college scholarship. an school and entered on athletic He scholarship leg the injury. completed lost because of a He then community college. three at a suffered semesters Gerald from theft, drug His reveals one conviction for addiction. record sixty days jail year which he was sentenced to and one probation. murder, felony aggravated tried for

Gerald was murder and assault, conspiracy burglary, robbery bodily injury, to commit assault, aggravated aggravated and two counts of assault. The jury except aggravated defendant on all counts convicted assault. trial, e(4)(c), jury aggravating At the the found factor penalty outrageously contemporaneous felony. It c(4)(g), vile and found c(5)(a), disturbance; c(5)(d), mitigating age factor emotional c(5)(f) defendant; record; c(5)(h), significant no prior the jury catch-all The aggravating factor. found the factors outweighed mitigating factors and sentenced the defendant to imposed death. The court a custodial term for the other convic- tions. capital

We reversed Gerald’s conviction on count on ground precluded imposition that the State constitution of the penalty knowingly death purposely on a defendant who or caused (SBI) bodily injury serious that resulted in After review- death. evidence, ing the we unable to whether were determine Gerald knowingly purposely or caused death his own conduct or whether caused SBI According he that resulted in death. confession, Paul, “stepped Gerald’s he one hit and on” but of the “went off’ victim and co-defendants on the threw the television set jury on him. also it had not been instructed that must find aggravating outweighed factors mitigating beyond factors doubt. conviction on reasonable The Court sustained the motion, non-capital prosecutor’s count. capital On indictment was dismissed. Defendant was then imprison- sentenced to life ment.

B) Rijoberto Mejia . Mejia, v. reported This case is State N.J. 662 A2d (1995).

In Mejia the summer of and Balbino Garcia were co- Mejia fired, workers at a hotel. Before was he asked to Garcia safeguard savings his moving After Brooklyn, Mejia to $750. called to money, Garcia recover his but Garcia refused to return money. Mejia the then learned that Garcia intended to return to Mexico. on December 1991. flight, Three hours before the Mejia, armed Magnum, armed, with a .357 accomplice and an with knife, a confronted Garcia in the hotel basement.

Mejia chased occupied by Garcia into a bedroom Garcia’s broth- nephew. Mejia er-in-law and pointed gun the at the three men. Garcia pistol Mejia, Garcia, tried to take the Mejia from but struck fracturing his skull. Garcia fled hallway Mejia down the pursuit, Mejia and shot According and killed him. to the State’s expert, gun ballistics was within inches of Garcia’s head when Mejia he was shot. days was arrested three later after Garcia’s nephew spotted him walking on the boardwalk.

Mejia thirty-two years was old at the time of the crime. He illegal immigrant was an dishwasher, and painter had worked as a and construction worker. He through eighth was educated grade and had an discharge received honorable from the Hondu- Army ran having years. after served five prior He had no Mejia criminal record.' had an drug problem alcohol and and had been abused as a child.

Mejia murder, capital murder, was convicted of felony armed robbery, assault, aggravated possession weapon of a for an unlaw- purpose, ful possession weapon. and unlawful penalty of a At the trial, jury aggravating found factor c(4)(g), that the murder was during robbery, convicted mitigating course of a c(5)(h), e(5)(h), jury found factor. Under factor catch-all physical abuse at the Mejia psychological that had suffered father, was of emotional hands that he the victim of his Mejia parents. jury death. deprivation from his sentenced to imposed a term on the other convictions. The court custodial Mejia’s finding plain error We reversed death sentence with the jury trial court’s failure instruct the that it could return a non- only cause unanimous verdict that defendant intended SBI that Mejia’s Relying in death. on confession which he resulted gun accidentally he never claimed that his fired and that intended kill, jury that for a to find we found there was rational basis Mejia purposely knowingly not intend to kill Garcia did only injury that bodily but intended to him serious resulted cause Mejia’s Mejia, supra, A.2d 308. death. 141 N.J. convictions were affirmed.

C) Alexander Will man, 28, 1993, victim, thirty-five-year-old July On girlfriend home two children. with his and her small Alexander and two or three male co-defendants knocked on the victim’s apartment gained entry by they stating police door and were entry conducting gaining a drug officers raid. After to the girlfriend apartment, pushed one of the to the floor and men flee, stay attempted ordered her to As the victim to there. back, him in killing Alexander shot the lower him. and Alexander rummaged then through his co-defendants dresser drawers and girlfriend’s girlfriend took wallet purse. the victim’s and the and her were into the room and to children forced front ordered lay on and his then the floor. Alexander co-defendants went they in apartments complex, other informed the residents that raid, conducting drug were a and took cash from one of those apartments. having aggravating

The AOC narrative classifies this case as factor, contemporaneous felony, c(4)(g), mitigating and factor c(5)(h), capitally prosecut- the catch-all factor. Alexander was not conspiracy, burglary, ed. He was convicted of one count of two murder, murder, felony robbery, possession counts of unlawful weapon, possession weapon purpose, a of a for an unlawful and murder, trespassing. felony criminal For Alexander was sen- imprisonment thirty-year parole disqualifier. to life with a tenced murder, imprisonment thirty- For he life was sentenced to with a bar, year felony parole burglary concurrent to the murder. For each, robbery years he was sentenced to ten concurrent with felony the sentence for murder. was also Alexander sentenced eighteen trespassing years months for criminal and five for unlaw- possession, felony ful both concurrent to the murder sentence. high graduate training á Alexander was school and had received conditioning heating.1 unemployed air He was the time arrest, past factory of the but had worked as a worker. He drug previous denied alcohol or abuse. Alexander had convictions burglary. simple assault and

D) Jerry Britton 13, 1995, victim, woman, twenty-four-year-old March a On Jerry through apartment. was in her Britton climbed the window apartment. Britton into the victim’s The victim confronted breaking into said that she had known he was the one apartments. telephoned police. then Britton took two She victim knives from the kitchen and stabbed the sixteen times head, neck, back, shoulders, killing It the area of the her. appears that the victim was beaten. Britton later told a also hoped not friend that he had he killed her so she could be machine, Sega game witness. Britton stole a video and which he immediately money buy drugs. sold for

Britton was arrested after a witness stated that Britton had arrest, gave killing admitted to the victim. After his Britton age 1 The AOC Narrative does not Alexander's at the time of the provide offense. police murder. Britton also to the about the sworn statement apartment. having previously burglarized the victim’s admitted to apartment complex in the same lived in a second-floor Britton among as widely suspected the residents as the victim. He was high He was a school being responsible multiple for thefts. However, assembling worked air conditioners. graduate and had murder, a unemployed had been for about at the time of the he previously year. a heroin addict. He had been Britton was downgraded simple to robbery, which had been convicted of assault. factors, having aggravating two

The AOC classifies Britton as detection, c(4)(f), c(4)(g), contemporaneous escape and murder factors, c(5)(d), disease, felony, defect mitigating and two mental e(5)(h), intoxication and the catch-all factor. Britton was or murder, robbery, felony charged burglary, two counts murder, weapon, possession of possession unlawful of a and burgla- weapon purpose. pleaded guilty for an unlawful Britton murder, murder, ry, robbery, felony possession of a unlawful weapon possession weapon purpose. of a for an unlawful He and thirty-year parole imprisonment was sentenced to life with a bar remaining charges merged felony for murder. The were sentencing purposes. dismissed

E) Brown David 16, 1995, On November David Brown and two co-defendants apartment drinking using alcohol were at a co-defendant’s beer, they drugs, money, drugs. When ran out of one of the they fifty-eight-year-old drug suggested co-defendants rob a drugs money. dealer known to have both Brown and one co- drug apartment. defendant went to the dealer’s When the dealer door, partially opened the one of the co-defendants kicked inside, struggle attempted door. Once ensued. The dealer apartment. out of the narrative states that throw them AOC pulled a defendant him several the “victim knife and stabbed co-defendant, According “pulled times.” to Brown’s the defendant ginzu out a and stabbed the victim several times.” The victim multiple body. stab wounds all his died from over twenty-seven years killing. Brown was old at the time of the high graduate a school and had attended technical school. He was killing, painter a At the time of the he worked as freelance car and employed security guard. prior was as a He had no record. He outpatient drug and had received and alcohol treatment claims to stopped using drugs years prior killing. have three to the Howev- er, appears drink it he continued to alcohol and he was intoxicated at the time of the offense. having aggravating

The AOC narrative classifies Brown as c(4)(g), contemporaneous felony, mitigating factor and factors. c(5)(d), disease, intoxication, c(5)(f), significant mental defect or no record, c(5)(h), prior charged and the catch-all factor. Brown was murder, felony conspiracy robbery/murder, to commit mur- der, robbery, possession weapon, possession of a unlawful a weapon purpose. pleaded guilty for an unlawful Brown to con- spiracy, aggravated manslaughter, possession weap- unlawful of a on, possession weapon purpose. of a for an unlawful He was thirty-five years aggregate sentenced to an sentence of with a year parole seventeen-and-one-half bar.

F) Alphonso Brunson 28, 1987, 3, 1987, Alphonso Between November and December eighty-two-year-old home Brunson broke into an woman’s three time, surprised times. The third the woman him. The woman later, days having was found two died from several severe blows burglarizing the head. Brunson later admitted to the woman’s times, on occasion home three but claimed that the third he was accompanied by companion panicked a who and hit the woman however, companion, leg. with a table had an alibi. murder, twenty-one years At the time of the Brunson was old. high-school dropout sparse employment He was a and had a history. history age He From the had mental disorders. institutions, eighteen thirty hospitals, seven to he was in over schools, to kill himself twice and foster homes. He had tried schizophrenic. being extremely paranoid and diagnosed as impulse he lacked control and had the Psychiatrists testified that At the maturity juvenile. He was abused as a child. level of arrest, indigent. Brunson of his Brunson was homeless time arrests, attempted prior burglary two for and one for had three escape. including purposeful charges, of several

Brunson was convicted murder, murder, robbery burglary. penalty and At the felony not out- jury aggravating factors did phase, the found jury aggravating two weigh mitigating factors. The found c(4)(f), detection, factors, c(4)(g), that murder was escape and burglary. mitigating The during the course of a committed disturbance; c(5)(a), jury by factors found were emotional intoxication; c(5)(c), c(5)(d), disease, defendant’s mental defect or c(5)(h), Brunson was sentenced to an age; and the catch-all. fifty years aggregate prison imprisonment plus with a term of life years becoming eligible mandatory fifty-one minimum of before n parole. H) Duane Vance Caviness Duane Caviness and two co-defen- On or about June stepfather apartment building where Caviness’s dants entered the they acknowledged that had intended to rob lived. Caviness later system alarm stepfather they kill until discovered that the and his Instead, they stepfather’s apartment. broke operating in the was belonging fifty-five-year-old to a man. The apartment into an him up the man and Caviness hit with baseball assailants tied They apartment looking for items with resale bat. ransacked the They they took some items. then ransacked another value and fifty-five-year-old apartment in no home. The man which one was autopsy hands and feet bound. The was later found dead with his physical cause of death as ten wounds and identified the revealed neck, head, injuries multiple and chest caused assault with force. blunt years was nineteen old at the time of the murder. He

Caviness through grade. sporadic He had a work was educated tenth history unemployed and was at the time of the offense. He had a cocaine, history marijuana, “pill” police and His adult abuse. burglary, record consists of two arrests for but no convictions. prose- other. The Caviness and the co-defendants blamed each Caviness, initially sought penalty against cutor the death Ultimately, charged purposeful-or-knowing him with murder. Ca- pleaded guilty felony burglary. and two counts of viness murder thirty-years imprisonment parole He was sentenced to life murder, ineligibility years prison on the and four for each burglary. factors, having aggravating this case as AOC classifies two

c(4)(f), detection, escape c(4)(g), contemporaneous murder to factors, c(5)(c), felony, age, mitigating and three defendant’s c(5)(h), c(5)(f), record, significant prior no the catch-all factor. I) Albert Carrow Fains wheelchair, Arthur to a so he with a Williams confined lived aide, keep home health Ella was known to Johnson. Williams large apartment gave people money amounts of cash in the run errands for him. left On March Johnson Williams patient. Early alone so that could care for she another Fains, evening, Lisa who Daniels visited Williams. Albert lived Williams, apartment next door to went to about fifteen Williams’ gave money buy cigarettes, minutes later. Fains Williams sandwiches, Fains, Williams, marijuana. spent and and Daniels evening apartment. Fains first to the Williams’ was the leave apartment apartment, returning but was later seen to the night. of the middle she

When Johnson returned found Williams’ apartment, body plastic bag A dead on the floor with a knife his back. had pulled been over Williams’ head. The cause of death was later a determined to be contusion of the brain caused three skull, right bridge fractures on the side of the a wound on the nose, eight wounds on the side of the head. The wounds a A search of corresponded shape to the of the head of hammer. apartment pair pants stained Fains’s revealed blood Williams’wrist watch. twenty-six high He is a

Fains was at the time the murder. years unemployed for four to five graduate. school He had been marijuana, preceding Fains used but had never been the crime. adjust- drug diagnosed having an treated for abuse. He was as personality. depressed disorder with mood and avoidance ment murder, robbery, felony mur- knowing Fains was convicted der, possession weapon purpose. of a for an unlawful On the count, imprisonment to life with a murder Fains sentenced years thirty-year parole He was sentenced to fifteen for the bar. count, robbery concurrent to the murder conviction. The remain- merged. ing convictions were factor, having aggravating this as

The AOC classifies ease factor, c(5)(h), c(4)(g), contemporaneous felony, mitigating catch-all factor.

J) Felder Carlton 14, 1989, September approxi- Felder had smoked On Carlton “jumbo” “extremely mately ten vials of crack cocaine and was neighbor’s apartment seventy- to a wired.” Felder went where five-year-old babysitting woman was three small children. Felder bell, door, opened rang the door and when the woman Felder chest, stabbing killing her in the pushed her inside and started resisting, grabbed gold chains stopped her. she he When money. upstairs looking her neck and went for When he from any money, he took a and left the could not find more VCR women in an act of apartment. Felder stated that he killed the money desperation to obtain for crack. initially charged purposeful-or-knowing mur-

Felder was der, murder, weapon felony robbery, burglary, possession of a weapon. purpose, possession an unlawful and unlawful of a Feld- robbery pleaded guilty aggravated manslaughter, and bur- er thirty years year glary. He was sentenced to with a fifteen aggravated manslaughter, twenty-year a for the minimum eonsec: ten-year parole robbery, utive sentence with a bar and five- year burglary. concurrent sentence for the having aggravating

The AOC classifies this case as factor factors, e(5)(e), felony, mitigating c(4)(g), contemporaneous c(5)(d), disease, intoxication, age, defendant’s mental or defect or c(5)(f), record, c(5)(h), significant prior no criminal catch- eighteen years killing. all factor. old at the Felder time dropped high grade. killing, He in ninth to the out school Prior working had at a fast-food restaurant for a month. he been about Felder that he was addicted to crack cocaine and used stated had daily age it since fifteen. .

K) Franklin Flowers Hudson 1, 1986, September Franklin Flowers Hudson broke into a On through home the basement window. When the homeowner laundry, basement to Hudson forced her at walked down do bedroom, knife-point up to the master where he tied her jewelry. gagged her. Hudson took a small amount of cash and money keys. Hudson told her he wanted her boarder’s and car boarder, man, sixty-year-old shortly returned home thereaf- stay put, ter. Hudson told the woman to and he went downstairs keys money, to confront the boarder. The boarder offered his struggle multiple but a ensued. Hudson the boarder stabbed up following times. The boarder ran the stairs with Hudson him. boarder, causing Hudson then kicked the him to fall. Hudson hit over the head with a baseball bat. On then the boarder sentenced, days four before Hudson was November injuries. approximately boarder died from his Hudson took $200 keys. and the car

(cid:127) spotted fleeing A from After his witness Hudson the scene. arrest, everything except stealing Hudson admitted to the wom- jewelry. an’s He also stated that he was under the influence of cocaine at the time of the crime. and beer guilty felony Charges aggravat- of pleaded Hudson to murder. sentenced burglary ed assault and were dismissed. Hudson was thirty-year parole imprisonment with a bar. to life having aggravating classifies this' case as factor The AOC c(5)(d), felony, mitigating factor c(4)(g), contemporaneous and intoxication, c(5)(h), disease, or and the catch-all mental defect twenty-one years age at time of the factor. Hudson was mother, killing. living He was with his sisters and brother at the above, time of the offense. As noted Hudson was under the influence of cocaine and alcohol at the time of the crime. He had crime, history no of mental illness. Prior to the Hudson had groom a at two and as a worked as race tracks sanitation worker disposal company. prior Hudson had two convictions for for a aggravated assault.

L) Timothy Paul Lee 18, 1988, morning Timothy up of March Paul Lee woke On the feeling a his the need heroin. He took knife and drove sixty-five-year-old car to the of a man. Lee kicked mother’s home noise, in the back door of the home. The man woke from the so chest, killing him him in him. approached Lee and stabbed Lee then took the man’s wallet and a bottle of and left. Valium money purchase stopped by Lee used the heroin and was heroin, police in possession while of the Valium and the victim’s gave police. wallet. He a full confession murder, initially charged robbery, Lee was two counts of CDS, burglary, weapon possession possession of a for an purpose, felony pleaded guilty Lee unlawful murder. felony imprisonment murder and was sentenced to life with a thirty-year parole bar. killing, thirty-five years

At the time Lee was old. He was carpenter plumber a trade and had also worked as a computer repair high graduate man. and had He is school completed computer repair course. He had no mental health heroin, problems. prior four Lee was addicted to and had convic- cocaine, marijuana, importing shoplifting, possession tions for by deception. and theft having aggravating, factor classifies this case as

The AOC c(5)(d), felony, mitigating factors e(4)(g), contemporaneous c(5)(h), disease, mitigating factor mental defect or intoxication the catch-all factor.

M) Dwayne Mann 3, 1988, Dwayne Mann and two co-defendants were On October three-or-four-day binge. The three high on crack cocaine after a apartment thirty-one-year-old of a man to steal his broke into the keys asleep his car. The man was on the couch while car and take keys. co-defendants searching three were for the One of the up, gave gun to hold. the man woke Mann Mann a loaded When head, panicked killing and him in the him. The three then shot driving the man’s car. The victim’s brother later saw Mann took arrested, gave he subsequently the victim’s car. After Mann was police. a full statement to the murder, in the commission of a

Mann was convicted of murder robbery, burglary, possession commission of a murder murder, weapon purpose. for an unlawful For Mann thirty-year parole imprisonment to life with a bar sentenced years to five with a possession, for unlawful Mann was sentenced merged. year parole bar. The other counts two and one-half murder, twenty-one years old. At the time of the Mann was point through grade, at which Mann had been educated the tenth drug problem. Mann was addicted dropped he out because of his cocaine, heavily. Mann claimed he and he used POP to crack renovating apartments. He has an exten- “worked off the books” record, including prior nine arrests and six convictions prior sive arrest, charged prior narcotics. For one he was possession for attempted murder with a firearm. with aggravating factor having this case as The AOC classifies e(5)(d), mitigating c(4)(g), contemporaneous felony, and factors disease, defect, intoxication, c(5)(h), mental or the catch-all factor.

N) Incenzio Mendez 25, 1983, September planning Incenzio Mendez was to rob On working. he was the home of the owner of the farm on which Lum, ninety-five-year-old owner of the farm was Ms. woman. Mendez checked to see if Ms. Lum was home. He then saw Ms. up with a stick approaching, Lum so he came behind her he found stick, Using the knocked her down with near the house. Mendez attempted get up, three head. Lum blows When Ms. her in Mendez kneed her her side and struck the neck. She Lum, injuries. killing died from her After Ms. Mendez went into looking money jewelry. her house gave police. In Mendez later two statements to the the second statement, he admitted that he struck Ms. Lum to kill her so that identify she could not him later. twenty-seven years

Mendez was old at the time of the murder. retarded, mentally learning He is disabilities and a mental children, years age of six old. Mendez was one of fifteen and his parents were second cousins. Mendez was a resident of Puerto Rico, periodically but came to the United States to work as a migrant grade age farm laborer. He left the sixth at the write, read, twenty-two English. and not or understand does prior had no Mendez criminal record. trial, capital purposeful-or-

In a defendant was convicted of (two murder, counts), felony knowing aggravated murder assault deadly weapon, robbery, burglary, possession awith armed of a weapon purpose, possession for an unlawful and unlawful of a e(4)(c), weapon. jury aggravating outrageously The found factors vile, c(4)(g) contemporaneous felony, mitigating factors c(5)(f), record, c(5)(h), significant no criminal the catch-all jury mitigating outweighed factor. The found that factors the aggravating imprisonment to life factors. Mendez sentenced for the murder conviction. He also was sentenced to consecutive twenty years ten-year parole a bar on the armed

terms of count, robbery years year period of-parole with a five and ten burglary count. ineligibility on the

O) Philips Lance 21, 1991, victim, male, July twenty-year-old a and a On eleven-year seventeen-year-old female were at the home of an old afternoon, girl preparing That Lance cocaine distribution. Philips seventeen-year-old pre- a continued paid them visit. The Philips twenty-year-old paring spoke. the cocaine as male kilo- Philips bag containing approximately showed a blue one-half year gram Philips then left. The seventeen old female cocaine. room, sleep living twenty- while sister and the went her year-old porch. went out on the front day, Philips

Later that and two co-defendants went to the house black, hoods, masks, or material dressed in with black ski other twenty-year-old ran house and covering their faces. The into the men ran after the attempted to close the door. Two of the sister, grabbed pointed gun a twenty-year-old, Philips while missed, head, The shot and she fled and hid. her and fired. twenty-year-old, then shot him Philips struggled with the Philips and one of his co-defendants each shot the five times. eleven-year-old seventeen-year-old. Another of the men shot the again. Only They twenty-year-old the chest. then shot injuries. The assailants left with twenty-year-old died from his bag of cocaine. he Philips eventually gave police a statement to the which shooting. the two in the He also named admitted his involvement gave a accompanied him. of the co-defendants also men that One statement, containing police storage bin more and he led the cocaine, drug paraphernalia, hand- than three hundred vials of rifles, variety of ammunition. guns, and a murder, murder, robbery, felony armed Philips was convicted of murder, weapon for an attempted possession two counts possession weapon. Philips of a purpose, unlawful and unlawful however, murder; attempted on three counts of had been indicted murder, jury Philips found attempted of the counts of for one guilty aggravated offense of assault. For of the lesser included murder, Philips imprisonment a was sentenced to term life thirty-year parole of his is as a bar. The remainder sentence robbery, twenty years ten-year parole for armed with a follows: murder; bar, for the count of consecutive to the sentence for first murder, bar, twenty years, ten-year parole attempted with a sentences; to the other for the second count of consecutive murder, twenty-year ten-year attempted a concurrent term with a bar; assault, eighteen-month parole aggravated for a concurrent term; weapon, possession and for unlawful of a a concurrent five- year remaining merged. term. The convictions having aggravating classifies this case as factor AOC c(5)(c), c(4)(g), contemporaneous felony, mitigating factors c(5)(h), age, the catch-all factor. At the defendant’s time offense, Philips nineteen-years-old living was with his high mother. He is the father of one child. He is a school dropout. Philips employed It not certain whether was at the crime, though previously cleanup time of the he had worked as a person Philips having drugs at a restaurant. denied ever used or alcohol, though positive marijuana for he has tested cocaine and past. Additionally, police reports prior from a arrest note that Philips juvenile, Philips was under the influence of alcohol. As a adjudicated delinquent on seven occasions. As an adult he prior possession dangerous for a had convictions controlled possession weapon purpose. an substance and for unlawful

P) Ploppert Charles 19, 1987, Ploppert On November Charles and a co-defendant man, forty-one-year-old went the residence of blind with the robbing Ploppert intention of him. and the co-defendant had intended to hit the man over the head with a baseball bat when he however, door; answered the the screen door was locked and the identify gain entrance to to himself to Ploppert was forced man’s house. house, sat at entering Ploppert and the co-defendant

After the Ploppert approached the talking the man. Then table with the After on head his fist. struck him the man from behind and man in and kicked the. ground, Ploppert man fell to the beat the head, the rendering Ploppert and co-defen- him unconscious. the $1500, money, finding approximately dant searched the house piled wood on they split Ploppert them. then which later between and the poured lighter fluid on the wood around the man and The died. Ploppert ignited the wood. man house. then police detailing Plop- a to the gave The co-defendant statement Also, Ploppert’s killing. girlfriend role live-in stated pert’s in the they Ploppert had told her that were and his co-defendant in the the fire. involved assault and both committed the twenty-four-years old when he Ploppert was learning high graduate, had a Ploppert a school but crime. was murder, living with his disability. Ploppert was At the time of daughter. Ploppert had a serious girlfriend five-year-old and through drug three though he had been drug problem, and abuse drugs. A clinical he to use programs, continued rehabilitation impaired with a perceptually as diagnosed Ploppert psychologist methamphetamine to an range intelligence and addiction low Ploppert previous had convictions. cocaine. no and knowing-or-purposeful counts of Ploppert charged with two was murder, robbery, murder, felony and two counts count of one purposeful- guilty He aggravated pleaded arson. counts of two murder, pen- robbery, aggravated arson. At or-knowing c(4)(c), trial, extreme jury aggravating factors alty found detection; e(4)(f), c(4)(g), contemporaneous suffering; escape c(5)(a), following mitigating factors: felony. jury The found c(5)(d), disturbance; c(5)(e), age; men- the defendant’s emotional e(5)(h), jury defect; catch-all factor. tal disease or outweighed aggravating mitigating factors found Ploppert factors. thirty-year was sentenced a life term with a murder, parole twenty-year bar for a concurrent for robbery, term ten-year aggravated and concurrent term for arson.

Q) Reigle Thomas 1, 1984, September Reigle On Thomas girlfriend his re- Reigle’s drugs. turned to purchasing Reigle high home after speed money purchase drugs. on and needed Reigle additional mother, aunt, seventy-three-year-old resided in a house with his sixty-two-year-old home, and a story uncle. The was a house two upstairs and the aunt and apartment. uncle shared an Reigle asked the aunt to him apartment allow to enter the so refused, money. that he could borrow Reigle After she broke into apartment. Reigle entered the room aunt’s and broke her bathroom, glasses. took purse He her into the but before he could any money, get he heard stirring. Reigle her returned to the aunt’s room and hit her several times with the bat. He then went his uncle’s room and struck him several times pipe, with the killing Reigle’s girlfriend Reigle him. mother and saw with the pipe. state, He fled to another apprehended shortly but was Reigle eventually gave thereafter. a full confession.

Reigle twenty-four years high speed was old and on at the time of the offense. a of history drug dating He has and alcohol abuse years. Reigle back his high childhood is a school dropout. There was Reigle psychiatric evidence that had emotional and problems. age eight, At the put seven or was he on Ritalin for hyperactivity. Reigle unemployed was at the time of the crime. prior He had drug two possession convictions for damage and property.

Reigle murder, was convicted of purposeful-or-knowing two felony murder, aggravated assault, counts of robbery, burgla- and trial, ry. penalty At jury found aggravating c(4)(g), factor contemporaneous felony. jury mitigating found factors c(5)(d), disease, intoxication; e(5)(f) mental defect or significant no record; c(5)(h), prior jury the catch-all factor. The did not mitigating find fac- outweighed the aggravating factors that the (cid:127) imprisonment. to life Reigle was sentenced tors. R) Anthony Szadorski seventy-six-year-old at an woman met a Anthony Szadorski They friends Szador- Anonymous meeting. became Alcoholics May Szadorski yard the woman. On did work for ski apartment.- When the woman’s a broke into and co-defendant doing, what he was jumped up and asked Szadorski woman multiple her pocket knife a from his stabbed pulled Szadorski away, continued woman tried to crawl Szadorski As the times. the room stabbing co-defendant then entered her. The carrying. BB was gun the co-defendant asked for Szadorski gun until she in the head with the then beat the woman Szadorski injuries. Szadorski from her stopped moving. The woman died car. from woman’s house and took items and the co-defendant acquaintance he had killed the woman an later told Szadorski throat, he stabbing started her and that once he by slashing her stop. not could purposeful-or-know- charged four counts of

Szadorski murder, of a murder, robbery, burglary, possession felony ing an possession a knife for purpose, weapon for an unlawful weapon, possession possession unlawful purpose, unlawful theft, hindering apprehension. a and weapon permit, auto without murder, of a robbery, possession guilty felony to pled Szadorski auto, hindering appre- purpose, theft of and for an unlawful knife life murder, was to felony sentenced For Szadorski hension. theft, he parole For auto thirty-year a bar. imprisonment with concurrent, appre- years hindering and for to sentenced five was robbery hension, years to consecutive. sentenced five he was n merged. weapons and offenses having factor aggravating has this case as The AOC classified c(5)(c), mitigating contemporaneous felony, and factors c(4)(g), intoxication; disease, defect, c(5)(d), or age; mental defendant’s c(5)(h), c(5)(g), gave police; substantial evidence the and the catch-all factor. twenty years

Szadorski was old at time of the the crime. He history has an extensive of mental and illness substance abuse. began drinking using drugs age Szadorski at the and of nine. The life, drinking drug throughout and abuse continued his except during periods .Beginning of institutionalization. age at the thirteen, hospitalized Szadorski was for several times mental illness and substance abuse. He also attempted had suicide diagnosed psychotic several times. Szadorski was disorders. mother, stepfather. He was abused his father and Szadorski dropped eighth grade out of high school and never went to sporadic school. history doing He has a landscaping work dishwashing. juvenile Szadorski was arrested a several times as adjudicated delinquent and was theft burglary two of- fenses.

S) I. Gerald Williams 28, 1984, evening On the of November Gerald Williams was walking eight year daughter home with his buying old after her They upon ice cream. Boyd. came friend J.C. Williams’ Williams Boyd purchase had drugs. some drinks and decided to some They Boyd’s money; however, went to wife’s home borrow she They was apartment not home. then to an belonging went to a Boyd. friend way,

On they that a noticed door one of the other television, apartments ajar. Hearing they knocked on the answer, door. they When there was no apartment. entered the daughter Upon Williams’ entering remained at the door. apartment, Boyd fifty-one-year-old Williams and found a male asleep on the -couch. were There two television sets in the apartment. As off Williams turned the television in the bedroom it, Boyd punched to steal pushed man awoke. man Williams, him banged toward who threw a cover over man and against free, head man’s man windowsill. The broke went to window, hit man the help. and the over called for Williams the out threw the man of the put down the television and head. He con- fell three floors. medical examiner The man window. being from struck on the head a blunt the man died cluded that instrument, he not been thrown and have died even had would through pair pants a searched from the window. Williams chair, apartment money, and left draped a took some over of the television sets. the newer Boyd and investigation that Williams police

After a revealed crime, police for took may responsible have been seeing daughter. Williams She admitted from Williams’ statement throw the man out window. aggravating having case this as

The AOC narrative classifies contemporaneous felony, mitigating factors c(4)(g), and factor intoxication, c(5)(h), disease, e(5)(d), and or mental defect thirty-four years at the time was old catch-all factor. Williams six, by five different the father of murder. Williams drugs, being Williams Although previously addicted women. and denied from 1978 program underwent a treatment However, prior to the the murder. any at the time of addiction dropped murder, drinking. out had been Williams Williams and grade he was arrested subse- in the tenth because school years, was arrested incarcerated. Over the Williams quently as of incarceration thirty and different terms times served twelve juvenile. an adult murder, burglary, felony for Boyd were indicted

Williams immunity, Boyd robbery. being granted testified After defense, own his against Williams testified Williams. as the accidentally fell out window claimed that the victim on all attempted help. call was convicted for Williams victim felony murder, impris- to life he was counts. For sentenced three thirty years. The two other ineligibility parole onment with felony murder merged. Defendant’s conviction convictions charge on causation was trial court’s because the was reversed Martin, (1990). v. State N.J. deficient under A.2d Appellate jury Division concluded that a could have found that burglary robbery the were not the direct cause of victim’s death. had during Williams testified the victim awoke burglary legs and was at the with his dangling window outside and he, Williams, victim, help had tried to but was unsuccess- ful.

T) Herman Williams 3,1984, February (who On accomplice Herman Williams and an co-defendant) a minor and not a Spencer thus was broke into the home. handgun. Williams was armed with a They went there family rob one yet members who not was home. There people Spencer were six at the home at the time. Williams hit one person in handgun. Benjamin the face with the Spencer, an older man, handicapped struggled awoke and Benjamin with Williams. days died later in hospital seventeen from an infection result- ing from the release contaminated materials from his bowels into his bloodstream. accomplice money, Williams and his took wine, jewelry, a case and a television set.

Benjamin’s daughter photo a Williams selected and said that Later, he had accomplice killed their father. gave a statement claiming that participate robbery Williams forced him to in the trial, response and murder. At promise to the State’s not to juvenile move for jurisdiction waiver of and not to seek the sentence, maximum the accomplice against testified Williams. murder, murder, Williams was felony convicted of burglary, robbery, possession unlawful weapon, of a possession of a weapon murder, for an purpose. unlawful For Williams was sentenced life thirty-year parole with a robbery, bar. For Williams was to a fifteen-year sentenced consecutive term a seven-and-one-half-year parole bar. For unlawful possession, he given term, four-year a concurrent and he was sentenced to seven-year concurrent term weapons for the other offense. At the time of the murder. twenty-two at the

Williams was offense, had his mother and been Williams lived with of the time age years. school at four Williams left unemployed for about for He a school barely had attended and is literate. of fifteen mentally or retarded. emotionally disturbed as those classified tests, him as Also, I.Q. and doctor viewed low on scored Williams retarded, He has an mentally culturally retarded.” but “not theft, record, burglary, with convictions extensive criminal disorderly persons convic- entering, as well as five breaking and having aggravating as has classified this case tions. The AOC c(5)(h), catch-all felony, and the c(4)(g), contemporaneous factor factor.

APPENDIX B E G that Defendant Comparison of and Cases Other Category E-l Be in the Asserts Should A) DeJesus Jesus apartment of a the Jesus DeJesus entered On March his. apartment in the below forty-nine-year-old woman who lived on the woman fire. the to death and set DeJesus stabbed woman jewelry The woman’s apartment. from the DeJesus took some by her dental records. remains were identified selling police that DeJesus was the DeJesus’s brother informed belonging as subsequently identified jewelry. jewelry The was jewelry by the the police confronted with the victim. When cut woman. stolen, had not DeJesus stated he he had not of death had police informed him that the cause When the determined, an put requested his and head down been DeJesus attorney. murder, murder, felony armed rob- charged with

DeJesus was arson, charges burglary. He convicted of all bery, armed and thirty year parole imprisonment with a life and was sentenced murder, year with a ten twenty-year term for a concurrent bar n parolebar a robbery, five-year term with for a consecutive armed arson, year parole two-and-one-half bar for and a ten- consecutive year year parole term a two-and-one-half for bar armed burglary. The having aggravating AOC has classified DeJesus as c(4)(g), contemporaneous felony, factor mitigating factor c(5)(h), the catch-all. murder,

At the time of forty-four years DeJesus was old living daughters. with one of his two DeJesus left school after the grade fourth printing later a attended school to learn to operate printing press. Although he had as worked a Hi-lo past, driver unemployed DeJesus had been years two prior to the crime. drinking DeJesus admitted alcohol three times a week having drug problem. but denied prior He had convic- theft, robbery, tions for trespass, possessing criminal drug para- phernalia, and motor vehicle violations.

B) Wayne Busby 9, 1985, April Wayne On Busby twenty-four-hour had been on a binge drinking and smoking Needing crack. more money to drugs, purchase Busby broke into apartment seventy- of a four-year-old neighbor. femalé As the woman went downstairs door, who Busby face, see was at the hit the woman broke ribs, strangled her her by Busby to death. force applied caused During the broom to break. straggle, the woman managed Busby to scratch on the neck. strangling After woman, Busby went to the woman’s bedroom and her son’s bedroom, money, film, and took a camera and and other items.

Busby charged was with knowing-or-purposeful murder and felony murder. Defendant was convicted of both The counts. prosecutor aggravating served a notice of c(4)(g), for factors contemporaneous felony, c(4)(f), seeking escape and to detection. penalty trial, the jury At factors, the found both aggravating and e(5)(a), mitigating disturbance; also found factors emotional c(5)(d), disease, intoxication; c(5)(h), mental or defect the catch-all. Additionally, jury the found that the aggravating fac- Busby was sen- outweigh mitigating factors. not the tors did thirty-year parole bar. imprisonment life with a to tenced As a time of the murder. thirty-one-years old the Busby was subjected child, family” to and was embarrassment his he was “an fifteen, Busby age began At physical psychological abuse. to crack, PCP, abusing marijuana, eventually using and he started emotionally thought that he was unstable. Relatives and alcohol. Busby a murder, prior had Busby attempted suicide. After the disorderly person two convictions. robbery conviction and C) Dollard Thomas co-defendants, 14, 1990, July Dollard and two Thomas On Durhan, building apartment an Dwayne Knight and entered Leon drugs. money or Dollard was to in search someone rob shotgun. Knight The trio handgun and with a armed with a building, of the and asked couple a in the stairwell encountered not, they they drugs. couple if The stated did couple had the pants the made take down their couple three and the couple couple drugs. The three forced three searched the try use apartment and to to the resident’s to on an door knock familiarity couple get open to door. When with the to them work, ran into the Knight in the door. Dollard not kicked did brought couple into apartment Knight while and Durham forty-seven apartment, apartment. of the residents One man lie man, told the began get out of bed. Dollard year old it, why doing Dollard the man asked Dollard down. When it, why man he did and then man in the asked shot the chest. collapsed. from his He died wounds. he police in which gave a

Durhan later statement gave implicat- Knight a statement implicated Knight and Dollard. ing Durhan and Dollard. aggravated charged burglary, two counts of

Dollard was murder, murder, posses- assault, robbery, felony counts of three possession weapon, of a of unlawful weapon, sion of a two counts purpose. possession weapon for an unlawful counts of two He was convicted of all aggregate counts and was sentenced to an plus years sentence of life ten thirty-five-year parole bar. murder, At the time of twenty-one years Dollard was old. He grandmother lived with his and worked as a “material han- dler.” dropped high Dollard out of school in the grade. eleventh good health, He is in ulcers, mental from bleeding but suffers anemia, sickle shotgun cell and an old leg. wound to the Dollard cocaine, using hits, admits to “p-dope.” and prior Dollard had one possession conviction for weapon. unlawful of a The AOC narra- tive having aggravating classifies this case as c(4)(g), factor con- temporaneous felony, mitigating c(5)(c), factors the defen- c(5)(h), age, dant’s the catch-all.

D) Larry Durden Larry part-time Durden worked security as a guard in an apartment building. changed Durden the locks on the door aof seventy-two-year-old apartment, tenant’s and the woman invited Durden for dinner. Durden to apartment went dinner her during sometime evening, Durden stabbed the woman. The woman died from stab wounds to her forehead and abdomen. ax-type object A small apartment found the victim’s was weapon. believed to be the murder Durden took the woman’s groceries, set, television and radio.

Durden went to apartment another building the same asked family they if buy groceries to wanted he had gotten for free. day, Later that Durden went back the same apartment try sell the radio and television. Eventually, Durden stealing admitted to radio, the television and he but stated the woman was dead apartment. when he went to the

Durden charged murder, with purposeful-or-knowing felony murder, and burglary, and was convicted on all counts. The prosecutor aggravating c(4)(g), submitted contemporaneous factor felony, jury. to the jury The found that factor and the catch-all factor, c(5)(h). mitigating jury aggrava- determined that the ting factor did outweigh not mitigating factor. Durden was thirty-year parole for with a bar imprisonment to life sentenced burglary. for seven-year a consecutive sentence murder and crime. He years old at the time of the thirty-one Durden was honorably general equivalent diploma and had been a had received the Navy. employed He discharged was from the United States drug or addiction. problems had no mental time of his arrest and felony breaking and robbery, prior convictions armed He had entering, parole a violation. and

E) Aaron Huff Huff, into 4, 1984, twenty-three, broke February age On Aaron seventy-four-year-old man steal of a to apartment money always cash man withdrawn the man had. The had Huff knew month. pay to his rent on the first his account from bank sitting in a chair. apartment, the man was Huff entered the When Huff, changed up move but he get man and towards The started man’s began As Huff disconnect his mind and sat down. set, man at Huff. Huff then beat the charged the man television dead, bloodied, moving. man later found stopped he The was until nose, hands, neck, his beaten, on bruises and lacerations and with $270, the ears, chest, Huff took television top of his head. and set, radio. and clock murder, felony charged purposeful-or-knowing

Huff was The murder, charges. of all burglary, and was convicted he and e(4)(c), factors for extreme aggravating prosecutor filed notice felony. jury found contemporaneous suffering, e(4)(g), c(5)(d), mitigating factors aggravating and found factors both e(5)(h), defect, intoxication; disease, catch-all or mental did not aggravating factors jury also found that factor. The life Huff was sentenced outweigh mitigating factors. disqualifier. thirty-year parole with a imprisonment day the murder. A drinking heavily on the Huff had been was “goes when drunk. that Huff wild” Huff psychiatrist testified family shack, Huff and his living in a poverty. After raised His an alcoholic and living in a ear. mother was eventually began his father drinking age was incarcerated. Huff started four- using drugs shortly teen and started point thereafter. At some adolescence, during attempted his Huff psy- suicide. There was disorder, testimony chiatric Huff had an antisocial an antiso- personality mentally cial still an adolescent. Between eight disorderly persons 1978 and Huff was convicted of offenses, conspiracy, larceny, two of burglary. counts

F) Michael Suarez 3, 1991, apartment On October Michael Suarez entered the twenty-five-year-old neighbor his to rob him. went Suarez to the neck, back, man’s bedroom and stabbed him eleven times in the cutting face, and chest. The also man sustained to wounds scalp, and neck. containing Suarez stole the victim’s wallet and $5 money a position access card. The victim was discovered in a fetal top pile clothes, on of a of lying blood-soaked between the wall and bed. statement, taped

In a gave Suarez a full police. confession to the murder, charged murder, felony Suarez was with robbery, two burglary, possession counts of and unlawful of a weapon, and was convicted all charges. robbery he For was sentenced twenty-years’ imprisonment bar; ten-year parole with a for bur- glary, ten-year he was sentenced a concurrent term with a five- bar; year parole murder, and he a received consecutive term of life with thirty-year parole a bar. The remaining convictions merged. crime,

At the twenty-three time years Suarez was old and employed was as a video residing distributor. Suarez had been with his approximately uncle and aunt for year. one quit He age sixteen, school at the general and he equivalent received his diploma in 1994. daily usage marijuana, Suarez admits to LSD alcohol, and and he was under the influence of alcohol when he committed the murder. had prior Suarez no record. The AOC having classifies this case aggravating as c(4)(g), factor contempo- c(5)(f), significant prior mitigating factors no felony, and raneous record, c(5)(h), the catch-all.

G) Thomas Wolfe 23, 1990, drinking and had been September Thomas Wolfe On the home of a throughout day. He went to using drugs through a rear window. seventy-two-year-old female broke woman, struggle ensued. Wolfe by and a surprised was Wolfe also suffered three times. The woman the woman’s throat slashed neighbor A found the to her back.' puncture numerous wounds covered a blanket. body lying pool in a of blood and woman’s bled to death. autopsy that the woman An determined to the mother, gave statements stepfather, brother Wolfe’s come home they stated that Wolfe had county prosecutor which that he broke into the clothes and confessed blood on his with Subsequently, Wolfe surrendered home and killed her. woman’s police. murder, murder charged purposeful-or-knowing was Wolfe crime, a robbery, possession of burglary, in the commission of possession of purpose, and unlawful for an unlawful weapon penalty phase, In on all counts. He convicted weapon. felony, contemporaneous c(4)(g), factor jury aggravating found c(5)(d) factors, c(5)(c), age; mental the defendant’s mitigating record; e(5)(f), intoxication; significant prior disease, defect, no or unanimously agree c(5)(h), jury could not catch-all. The and imprison- and, thus, to life was sentenced defendant on a sentence murder, a consecutive ten- for thirty-year parole a bar ment with seven-year parole twenty years a burglary, year term for and and the life sentence robbery run consecutive to for bar burglary. for to the sentence concurrent old, murder, twenty-two years was Wolfe At the time of the child, age a unemployed. As school parents, and living with his placed and was emotionally disturbed as was classified Wolfe in the out of school dropped classes. Wolfe special education conditioning repair. training heating/air had grade and eleventh abuse, history drug Wolfe had an extensive for which he repeatedly trial, penalty peo- received treatment. At the several ple good person testified that was a drugs Wolfe and that alcohol had ruined him. also Wolfe testified that he hated himself letting get having power his life out of control and for not stop taking drugs. expressed He also killing remorse for woman.

H) Daniel Hart 22,1990, January On Daniel Hart and Hoffman William were at drinking getting high Hoffman’s home alcohol and on PCP and marijuana. up Hoffman twenty-three- came with the idea to kill a year-old they woman whom believed to be a “snitch.” Hoffman key had taken a apartment building to the woman’s from the ex-boyfriend. get woman’s To the woman out apartment, of her rang Hoffman the buzzer at the main entrance. When the woman entrance, went to the main Hart apart- tried to sneak into her ment. The apartment woman saw Hart enter her when she and returning apartment. Hoffman were to the Hoffman and the woman went into the bedroom to talk while Hart waited in the living room. Hoffman told her that he and Hart had been in a fight and place Sensing needed a to hide. lying, that he was woman asked Hoffman to leave. Hoffman then tried to smother her pillow. attack, with a The woman tried to off fend Hart entered the room and thirty slashed the woman’s throat times, killing autopsy her. An revealed that the woman had neck, numerous stab wounds to the head and back. Hoffman took from the put woman. He also bag, $25 VCR a but decided they not to going take it because were to have to walk home. gave Hoffman police statement to the detailing the crime. charged Hart murder, with two felony murder, counts of robbery, burglary, possession weapon of a pur- for an unlawful pose, possession weapon of a other than a firearm. Pursuant plea agreement, to a pled guilty Hart aggravated manslaughter, robbery burglary. thirty-years’ He was sentenced to impris- manslaughter, consecu- fifteen-year for a parole a bar onment with robbery, and ten-year parole bar for twenty-year term with a tive manslaughter run concurrent the ten-year burglary, for a term robbery charge. and crime, twenty years old. For a few Hart was

At the time of the murder, employed by an Hart had been prior months to the quit Hart an alcoholic and airline. Hart’s father was abusive drinking at twelve grade. began Hart beer school in the tenth years marijuana daily at thirteen smoking on a basis years age, seventeen, using various age, by the time he was he was and juvenile multiple convictions as drugs daily on a basis. Hart has adult, aggravated assault. including a as an conviction c(4)(g), aggravating factor this ease with AOC has coded The c(5)(c), mitigating factors the defen- contemporaneous felony, and defect, intoxication; e(5)(d), disease, or age; mental dant’s c(5)(h), the catch-all factor. J.,

HANDLER, dissenting. retrial, Harvey was convicted In on a Nathaniel October Schnaps found Schnaps. by jury for the murder of Irene several having struck on the head apartment, in her been alone apparent burglary. in an times with a blunt instrument —killed signs struggle in signs entry and no of a There were no of forced jury found defen- The where she was discovered. bedroom murder, murder, first- felony guilty purposeful-or-knowing dant robbery, second-degree burglary. degree jurors that the had phase, the determined State penalty At the statutory aggravating beyond a reasonable doubt two proven (murder 2C:11-3e(4)(f) escape factors: N.J.S.A committed offense) 2C:11-3c(4)(g) and N.J.S.A. apprehension for another (murder robbery burglary). during the course of a committed aggravating factor the State’s submis jury did not find as an aggravated assault of the victim, murder involved sion that the 2C:11-3c(4)(c). jury found some of the members N.J.SA Several presented defendant non-statutory mitigating factors of the ten 2C:11-3c(5)(h), pursuant mitigating to N.J.S.A. the “catch-all” 312, Finding factor. See ante at 731 A.2d at 1139. the aggravating outweighed factors, mitigating jury- factors the charges. sentenced defendant to death for capital The trial aggregate court sentenced defendant to an plus sentence of life sixty-five years fifty-seven one-half-year with a parole disqua non-capital lifier for the first-degree robbery counts of and second- degree burglary. The Court affirmed defendant’s convictions and 117, 233, Harvey, death sentence. State v. 151 N.J. 699 A.2d 596 (1997) II). (Harvey appeal

This request proportionality based on defendant’s for a Loftin, 253, (1999) review. In State v. 157 N.J. 724 A.2d 129 II), (Loftin appointed Special Court a Master to evaluate its proportionality methodology review and make recommendations improvements.1 The proceeded apply Court then to existing methodology case, stating, to Loftin’s “Until we have had Special the benefit of report, [the ... Master’s] we will continue carry ... proportionality 266, to out review as before.” Id. at 724 A.2d 129. Special 28,

The Master report April released his on 1999. The Baime, Report Jersey Honorable David S. to the Supreme New 1999) Proportionality 28, Court: Project (Apr. Review (Special Report). report, Master In that Special Master determined aspects that several methodology faulty our require are revision. Despite Special Id. at 6-7. Master’s recommenda- tions, goes Harvey’s case, the Court ahead apply- with defendant ing action, existing methodology. This course of in addition to its inefficiency unfairness, needless only can further confuse and accuracy undermine the integrity proportionality of our re- view. eight The Court directed the Master to examine substantive Special areas. (citing See ante 731 A.2d at 1132 157 N.J. at 454-56, 724 Loftin 129).

A.2d review, pointless makes it Court, with this proceeding The it to Report in detail here. Suffice Special Master delve into the predict, will—have revisions would —I proposed say that review. proportionality impact on defendant’s significant - oral review when proceed with defendant’s Court’s decision occur the week methodology are scheduled to arguments on a new A.2d at does filing, ante at see of this decision’s this Court’s commitment defendant and to both grave disservice justice. disproportion sentence is not that defendant’s holds

The Court First, has 1124. the Court A.2d at ate. See ante capital 1992 Legislature’s the apply not to decided previously amendment, severely limits the universe which murder statute defendants, until among comparison constituting a basis cases validity such a the reviewed Special Master appointed the 265-66, 129. II, 724 A.2d 157 N.J. at supra, See limitation. Loftin spoken on the has case, though Special Master even In this constitutionality judgment on the issue, majority again defers - 289, A.2d at at 288 731 statutory See ante amendment. of the - Further, has not relent holds that defendant the Court 1126 27. racial discrimina adequate evidence that lessly documented See penalty. the death imposition of this State’s tion influences - - affirms Finally, the Court at 1143 44. 731 A.2d ante at 319 sentence, holding that death of defendant’s proportionality death- similarly situated compared to other defendant when disproportionate. defendants, is not sentence defendant’s eligible 1143. A.2d at ante at 731 See systemic issues holdings regarding disagree with the Court’s

I Jersey capital murder statute. of the New application in the constitutionality of the First, that consideration I reiterate II, postponed. Accord not be should 1992 amendment Loftin (Handler, J., dissenting). 373, 724 A.2d 129 supra, at 157 N.J. meaningful strong commitment expressed a This has Court rejected possibility firmly and has proportionality review a universe limited to in penalty cases which the death has been imposed could form the basis for such review. See State v. Marshall, (1992) (Marshall 109, 137, II). 130 N.J. 613 A.2d 1059 light In Special strong of the Master’s statement that “a universe limited to imposed cases which the death sentence was cannot support proportionality system,” Special a coherent review Master Report, supra, at by declaring Court should act at this time the 1992 amendment unconstitutional.

Second, I Court, believe the statistical evidence before the II, already presented supra, demonstrates a constitution Loftin ally impermissible risk that race discrimination infects our State’s imposition penalty. of the death especially great This risk is one, transracial cases like this involving black defendants and white victims. startling Given the evidence of race discrimination us, before the Court should penalty declare the death statute or, least, very unconstitutional place a moratorium on the imposition penalty of the death until such time as the evidence playing demonstrates that race is not capital a role in prosecuting sentencing. Accord N.J. Loftin (Handler, J., A.2d dissenting). regard review,

With proportionality defendant’s individual I object majority’s to the novel decision to limit the class of cases to which compared defendant is in precedent-seeking review to his (E-l), subcategory salient-factors step that renders the Court’s proportionality incomplete. Further, review I find the Court’s analyses statistical and its precedent-seeking extremely review subjective, arbitrary, ultimately I strongly unreliable. dis- agree with the Court’s conclusion and find defendant’s sentence to be disproportionate.

I, therefore, dissent.

I Proportionality always review has integral been an and indis- pensable part of this capital Court’s review of sentences. It is meant “to penalty ensure that the death being is administered in a

355 manner, fairly and with rational, non-arbitrary, and evenhanded 275, II, 724 supra, 157 N.J. at consistency.” reasonable Loftin 131, II, A.2d at 613 supra, 130 N.J. (quoting Marshall A.2d 129 Ramseur, 123, 327, 524 A.2d 188 1059); 106 N.J. v. see State 2909, 49 L.Ed.2d (1987); 96 S.Ct. Georgia, 428 U.S. v. Gregg ensuring uniformi (1976). tasks of emphasis on the dual Our 859 defen of each individual circumstances accounting for the ty and 330-31, Ramseur, 524 A.2d crime, supra, 106 N.J. see dant’s inability view, by been, hampered our my irreparably has aims. two to reconcile these approach: sta two-pronged of a consists

Proportionality review Both of review. analysis precedent-seeking frequency tistical II, methods, however, See from deficiencies. suffer these Loftin (Handler, J., dissenting) 413-15, A.2d 129 724 supra, 157 N.J. 148, 212, 245, DiFrisco, 662 A.2d (citing v. N.J. State III) (1995) (DiFrisco (Handler, J., v. dissenting)); State Martini II) (1994) (Martini (Handler, J., 81-82, 651 A.2d 139 N.J. compari for of cases used dissenting) (discussing flaws universe judge general son, standard which failure to use workable subjective inherently nature penalty, and imposition of death review). precedent-seeking deficiencies, of these problematic the most I now reiterate

. (1) for objective, numerical standard lack of an namely, a death sentence analysis of when frequency determinations (2) compari- in the data base deficiencies “generally” imposed; (3) precedent-seeking cases; subjective nature son review.

A. quantify its stan refusing attempt to persists in The Court imposed “generally” determining what constitutes dard analysis measurements examining frequency sentence when supra, 139 N.J. at See Martini disproportionality. (“A disproportion and thus capital sentence is excessive

A.2d 949 to those of the similar with characteristics ate if other defendants 356 generally

defendant under review receive sentences other than committing for factually-similar jurisdic death in crimes the same tion.”). bring This objectivity consistency failure to some to meaningful its determinations proportionality renders review an II, illusory goal. supra, 415, See 157 at 724 N.J. A.2d 129 Loftin (Handler, J., dissenting) (stating that Court’s standard of review is inherently subjective, as majority’s shifting evidenced determinations). principles proportionality for only purely subjective Not is the “general standard of imposi pinpoint any ease, tion” difficult to particular only it is one of a substantively different, yet number of equally imprecise standards attempted this Court has apply, often within the same case. attempts The Court thus impossible: “proportion ascertain ality” has, without a stable benchmark or measure. The Court fact, review, proportionality since its first invoked fourteen differ amorphous ent standards and substandards discussing when “ (1) determining test for proportionality: principal inquiry ‘The frequency analysis] [in degree whether the of blameworthiness present in the reasonably supports case expectation an that such a ” generally case will 299, result in a death sentence.’ Ante at 731 III, (quoting A.2d at 1132 supra, 171, DiFrisco 142 at N.J. 662 “ 442) (internal (2) quotes omitted); A.2d and citation capital ‘A sentence disproportionate is excessive and thus if other defendants with characteristics similar those of the defendant under review generally receive sentences committing other than death for factu ” ally similar .jurisdiction.’ 289, offenses the same Ante at 731 A.2d at 1127 (quoting 20, Martini 139 N.J. 651 A.2d (citing (1994) Bey, 334, 351, State v. 137 N.J. 645 A.2d 685 IV) (other (3) (Bey omitted)); citation seek to “[W]e determine any existence of aberration in sentencing.” defendant’s Ante IV, (citing Bey 731 A.2d at 1137 supra, 137 N.J. at 685); (“[W]e A.2d see also ante at 731 A.2d at 1137 do not believe that evidences that [defendant’s] sentence is an aberra “ (4) tion.”); ‘Frequency analysis helps us to determine whether category defendant is him likely renders or her more ” than other killers to penalty.’ receive the death Ante at III, 171, N.J. 142 at 662 (quoting DiFrisco at 1132 A.2d enough in a (5) imposed often 442); sentence is “If the death A.2d cases, confident that there then we feel comparable category of appropriate punish death is the consensus that exists a societal (6) III, 172, 442; supra, 142 N.J. at 662 A.2d DiFrisco ment.” higher than the overall are figures for E-l defendants “[T]he (7) 1133; 301, 731 A.2d at Ante at death-sentencing rates----” a defendant the lowest score of are not numbers “[D]efendant’s 306, Ante at disproportionality we have denied.” whose claim (8) showing 1136; produce no ‘results “[D]efendant’s at 731 A.2d randomness____Ante 307, (quoting 1137 at 731 A.2d at 442) (citations III, 183, supra, 142 N.J. at 662 A.2d DiFrisco (9) ... a vehicle to ensure omitted); [ ] review is “[Proportionality] insupportable.” Mar jury’s decision is not penalty-phase that the (10) II, 22, 949, goal is supra, 139 N.J. “[0]ur at 651 A.2d tini to sentence a defendant jury’s decision whether the determine appropriate capital reached in the comparable to decisions death is Ibid.; (11) salient-factors “[T]his in our universe of cases.” cases in the portion of defendants significant analysis reveals that penalty.” category ... have received the death pecuniary-motive (12) 442, III, 174, “The supra, 142 N.J. at A.2d DiFrisco consistently case' are not in defendant’s index-of-outcomes results generated prior eases----” than results higher or lower Lof- (13) 129, II, 334, disproportionality supra, 157 N.J. at 724 A.2d tin “more culpability is looking at whether defendant’s measured or of those death sentences who received like that of defendants II, supra, 139 N.J. at terms.” Martini who received life III, 442; supra, 142 N.J. 949; at 662 A.2d see DiFrisco A.2d IV, Bey II (14) not find a in Marshall [here] “we do “As an invidious factor sentencing or the taint of pattern of life ” death sentence.’ require [defendant’s] us to reverse would Lof IV, Bey (quoting A.2d 129 supra, 157 N.J. tin 685). supra, 137 N.J. 645A.2d acknowledge The Court must “generally that its imposed” stan- dard, already inherently subjective unquantifiable, has evolved range equally vague immeasurable, into a substantively but different, standards, rendering proportionality review unworkable. employed by two standards the Court in this case could not be more different: when one declares that a death sentence is disproportionate similarly if situated “generally” defendants re- death, ceive a sentence other than imposes very one different standard than when one seeks to determine if such a sentence is “random” or “aberrational.” The Court’s application errant these inconsistent only highlights standards susceptibility their manipulation.

I my reiterate contention that the Court should use a numerical preponderance standard to determine when death sentence is proportionate. II, Accord supra, 419, 157 N.J. at 724 A.2d Loftin (Handler, J., 129 dissenting). ‘Without the discipline doctrinal certainty of a defined numerical majority consistent with the concept generality to proportionate sentences, demonstrate it is arbitrary inevitable death sentences of individual defendants will verbiage be lost in the that rationalizes a death sentence as proportionate.” may Ibid. Verbal thresholds in work other areas law, they of the but cannot be determinative when death is the outcome.

B. Second, there are deficiencies in the database used as a basis for comparison to defendant’s case that pro- undermine the Court’s portionality review. This case presented involves data previously by defendant Loftin incorporated into the database of the (AOC). Administrative Chew, Office of the Courts Cooper, See (Dec.1997) (CCH Harvey Report Report). Previously indicated problems with the database still exist: remains too “[it] small to provide review,” a reliable 157 N.J. Loftin (Handler, J., A.2d 129 dissenting); the universe of cases still erroneously includes death reversed, sentences that were id. at (citations (Handler, J., dissenting) omit- A.2d 129 416 n. analy- in erroneously include its ted); and the Court continues case, n. 724 A.2d see id. at 420 including defendant’s sis data on (Handler, J., (“[P]lacing defendant’s case both dissenting) proportionality of a defen- gauging the comparison, of the sides group of which he is a comparing it to a by dant’s sentence member, analysis.”). skews

C. frequency review the Court The standards circumscribed review. precedent-seeking to its particularly not suited are defi- analysis from a different suffers precedent-seeking Court’s microscope the Court the defendant under ciency: by putting impossible to it individualized that becomes employs a review so defendant’s compared with the that can be gather a class of cases Id. can be measured. against defendant’s sentence which (Handler, J., dissenting). 724 A.2d 129 Harvey is starkly problem: this demonstrates Defendant’s ease currently faces the subcategory who only his defendant Yet, proportionate, finds his sentence the Court penalty. death egregious among the most is not fact that his crime spite of the necessity of recognize fails group. in the The Court analysis frequency quantitative its between drawing a connection in order review quality-driven precedent-seeking the more If the of the latter. application subjectivity our reduce the yield cases like defendant’s indicate that test results salient-factors time,2 precedent- of the only percent ten sentences death if is defendant used to seeking should then be determine review category of 20 blameworthy in his two most among the one or defendants whose database of two disagree in the with the AOC’s inclusion 2 I the death cases, of these inclusion were reversed. Without sentences death than the lower still sentencing be zero defendants would percent, rate for E~1 Court's use of majority. However, even under the cited ten by percent underestimates coding that the Court decisions, I contend misapplies AOC's the evidence of disproportionality. linking analyses, defendants. Without the two the salient-factors test fails to inform the Court at all: the test tells us that the death penalty generally imposed category; is not if defendant’s we fail to conclude from this that dispropor- defendant’s sentence is tionate, the test all value unless the results are then used loses backdrop precedent-seeking serve as a for our review. addition, In AOC-designated comparison subcategories, used by claim, the Court to assess disproportionality defendant’s do not always include all relevant cases. The Court defers to the AOC’s judgment defining comparison groups, ante at 731A.2d failing recognize groupings overly these can be limiting; beyond it is crucial that precedent- we look them in seeking gain insight review in order to possible as much as into a sentence. defendant’s

D. problems, Given these availability and the of the recommenda- improvement by Master, tions for appointed Special the Court’s I object to application of our methodology current to defendant’s light case. In system the Court’s concession that the of review requires perhaps evaluation and reconfiguration, one must assume any death sentence reviewed proportionate by and found existing methods, including Harvey’s, will be reconsidered in the adopts event that the Court Special some or all of the Master’s suggestions. only just postpone propor- alternative is to all tionality until reviews such time as opportu- the Court has had the nity to Special consider and evaluate the findings Master’s to- wards the creation of a more sound judge method which to proportionality of a defendant’s death grossly sentence. It unfair, profoundly misleading, patently prejudicial to deter- mine, upon faulty methodology, that defendant’s death sentence is so, proportionate. By doing the Court moves the defendant execution; path further down the simultaneously toward it erects high another and unfair hurdle —the need to have the Court reconsider then reverse this determination proportionality. put To through defendant such an obstacle course to save his own life, just and secure a sentencing result offends fundamental fairness.

II Because applied system the Court has our of proportionality case, review to defendant’s I attempted have to determine the - proportionality of his sentence. See at 374 731 A.2d at infra - is, however, 1173 96. There an issue that should be addressed first graver that is even importunate and more than defendant’s proportionality individual review. That compelling posed issue is by recurring persistent evidence of a systemic risk of race discrim- ination penalty, administration of the death particularly in prosecution II, of cases such as this one and transracial Loftin murders in which the defendant is black and the victim is white. majority finds that defendant prove has failed to that New Jersey’s penalty implemented death racially statute is in a dis- - - criminatory manner. ante See at 319 731 A.2d at 1143 44. We are faced here with the compiled same data in the AOC’s CCH Report, supra, presented by defendant Donald Loftin. Given methodological certain concerns with the statistical models em- ployed to assess whether or not plays racism a role in this State’s prosecution cases, sentencing capital the Court in II Loftin asked the appointed Special and, Master to if necessary, evaluate redevelop the methodologies statistical or models to more accu- rately accomplish important this purpose proportional- intended ity review. 157 N.J. at 724 A.2d 129. At Loftin time, however, the same applied existing the Court models to spite defendant Loftin’s case in of their doing identified flaws. In so, majority discounted as overwhelmingly unreliable the persistent consistent and results derived from numerous models that have implementation indicated race effect in our capital punishment.

Here, spite Special in the again, of the addition of Master’s development parsimonious the of more models must findings that in pursued long-held are commitment be if we to be resolved our system, justice Special racism in Master Re- eliminating our applies existing system port, supra, at the Court our of II, hand, finding, as in proportionality review to the case Loftin an race that the statistics do not indicate unconstitutional risk of - - Ante 731 44. discrimination. at 319 A.2d at 1143 disagree. existing I I of deeply oppose application our system Harvey’s proportionality given of review sentence that Second, currently methodology is under I that review. find data, by supple- racism the evidence of demonstrated when through experience what we know human mented common knowledge, compelling to be so that it an demonstrates unconstitu- Jersey’s sentencing singles tional risk that New scheme out minority (particularly guilty killing defendants those white victims) penalty. presence requires for the death The of this risk penalty us to invalidate the death statute.

A. presents highlighting statistics a race Defendant effect New Jersey’s sentencing death-eligible prosecution and defendants. worrisome, ominous, The alone raw data reveal indeed trends: of victims, death-eligible black defendants who killed nonblack (3/te) forty-eight percent charged capitally, over were none of while proceeded the six nonblack defendants who killed victims black penalty trial. 157 724 N.J. at A .2d 129 Loftin (10hi) (Handler, J., dissenting). forty-eight percent Over of cases tried, involving only twenty- capitally nonblack victims were while (4%u) eight percent Discrepancies black-victim were. cases jury sentencing startling percent are eighteen as well: of all black-defendant, (%) death-eligible nonblack victim cases resulted sentences, nonblack-defendant, in death none of while the six black-victim cases did. Ibid. logistic regressions very demonstrate same poten real sentencing

tial race is our capital discrimination at work in scheme, revealing statistically significant first time a race In the prosecutorial effect. three AOC models used to measure jury sentencing Report, supra, decisions from the CCH statistically significant black-defendant effect reflected in the (Schedules 5), statistically first and second models and a significant white-victim effect is reflected the first third (Schedules 8). (Handler, 379-80, J., 2 and A.2d Id. dissenting). alarming in light These statistics are more fact culpability ratings that the AOC’s indicate white defendants are, average, culpable (compare on more than black defendants 1.32, (Handler, J., respectively). 1.43 and Id. at 724 A.2d 129 dissenting). multiregression analyses again

The AOC confirm once the indi- pervades in capital system. cations that racism the “Differences of percentages black and nonblack death defendants sentenced to high thirty-three percent are as culpability as when the are levels ranges thirty-six into categories equal divided five ... and percent culpability when the levels are divided into levels with (Handler, J., equal numbers of Id. at A.2d cases.” 724 129 (citations omitted). dissenting) by Tukey,

The statistical models created Dr. John the acknowl- edged expert Special a retained as consultant Master Richard Cohen, attempted Special S. to correct for what the found Master methodological in to be flaws the models.3 new AOC These models also revealed a race effect: the model a third demonstrates statistically significant black-defendant on the effect likelihood model, that a defendant will be The sentenced death. second reconfigured by when Public the Defender’s statistician to include 3 primary they problem The concern with the AOCmodels is that suffer from a is, overfitting known as small in the number of cases database and —that large of model number variables in each serves to undermine the results. Dr. Tukey employed by pooling together, attempting fewer variables various factors overfitting problem parsimonious to solve with more models.

364 variable, statistically significant white also reveals a victim (Handler, J., effect. Id. A.2d black-defendant dissenting). in Defender’s modifica

The results model two after Public the race of the victim seems to have highlight tion the effect that outcomes, minority involving in sentencing particular on in cases defendants, transracial, in disparity The or white-victim cases. prosecutions involving cases black capital between transracial forty-nine involving those white defendants is defendants and (as sentencing percentage of percent, disparity capital and the in cases) eighteen percent. A.2d death-eligible all Id. at (Handler, J., dissenting). AOC-assigned of While the number cases defendant’s offense E-l, subcategory, inadequate sample is an from which to draw (nor category used in a conclusions should this alone be do so claim), systemic prosecutorial race discrimination and sentenc- ing group on results this of cases underscore what numbers system-wide scale seem to indicate about the intensified atten- and, paid involving specifically, tion cases white more victims minority category those with defendants. E-l consists defendant’s), twenty-two eighteen (including cases of which both (black minority Hispanic) involve or and four which defendants minority involve white defendants. Twelve the cases involve seventy-eight percent victims and ten involve white victims. Over (%) capitally prosecuted of the not cases were either or victims, agreements minority plea spite resulted in involve minority-victim only fifty-four comprise the fact that cases about time, percent cases. of the total number of At the same almost eighty-eight percent capitally of those cases that were tried with- .victims, agreement in resulting plea spite out in a involve white © comprise fifty-six of the that eases less than fact white-victim disturbing percent suggestion of the total —a of some form prosecutorial profiling. the the is fac- When race of defendant (all well, see tored as we that five the six transracial cases victims) involving minority defendants and white capitally were Further, prosecuted.4 three of four the death resulting sentences (Walter capital prosecutions from Gerald’s and both of defendant Harvey’s) were for transracial in spite cases of the fact that these comprise only cases twenty-seven percent of the total number of Finally, cases. all four of the resulting cases in a death sentence minority involve defendants.

While, admittedly, methodological there are flaws in the models Tukey, created Dr. AOC, the Public Defender and the Court’s apply decision to them to defendants Loftin Harvey least, implies, at a level of confidence in methodologies em ployed without the benefit of Special Master’s recommenda models, perfected tions. Even without the Court compelling has findings raw data recounted herein to which it can refer. Its conclusion, therefore, the numbers do not make out an adequate discrimination, case for a risk of race given startling consistency throughout the data and across the models indicating effect, betrays race belies and long-professed the Court’s posi not, tion that it “could policy, consistent with our State’s tolerate discrimination that threatened the foundation of system our II, supra, law.” Marshall (reject N.J. at 613 A.2d 1059 ing Supreme Court’s statement in McCleskey Kemp, v. 481 U.S. 279, 312, 1756, 1778, (1987), S.Ct. 95 L.Ed.2d “disparities sentencing part are an inevitable of our criminal justice system.”). 4 One transracial case not tried is Walter Gerald’s on capitally retrial. Gerald originally tried and sentenced to death. After this Court’s capitally reversal sentence, of his declined to conduct another prosecutor trial, so penalty challenged. Gerald’s life sentence was not The fact that the State attempted time, Gerald the first capitally prosecute of the lack of spite evidence at its heightens argument might murder, intent to disposal prove that race only playing be a role in decisions. The State's prosecutorial decision not to try obtain a sentence on retrial after the Court’s capital reflects, reversal perhaps, realization simply prosecutor’s that the case was appropriate never death- in the first worthy place.

366

B. minority- always paid scrupulous This Court has attention cases, provide specific fully acknowledging the need to defendant sentencing protections to does not infect the ensure racism arena, process. penalty especially In we be the death must social, ignore signs, both that racism careful not statistical and outset, From the in may be at work. this State’s first death statute, penalty penalty the new the ease under death Court against dangers of racism: intoned the jurors prejudice, We are sensitive racial to the reality possibility prejudge a in the race, defendant because of his or her even absence of an may prejudice crime. for when the instance, interracial Racial defendant may operate, regardless is is black and of the victim’s color. black because the defendant simply case. We must be sensitive to this in a As the particularly capital possibility “[bjecause range recognized, Court has of the of discretion entrusted to a Supreme sentencing jury hearing, in a is a there for racial capital opportunity unique prejudice to but remain undetected." operate (quoting [State v. 106 524 188 Turner v. Ramseur, N.J. A.2d (1986)).] 28, 35, 1683, 1687, L.E.2d, 27, 476 U.S. 106 S.Ct 35 Murray, supra, Ramseur remedy require protections Our was to in enhanced dire, voir thorough penalty examining death trials in the form of a jury pool potential racial biases members in cases Id. involving minority race. defendants or other issues of Williams, 188; 393, 428, see also State v. N.J. 524 A.2d (1988) (Williams II) (“Racial prejudice may A.2d 1172 be either easy or blatant and to detect subtle and therefore more difficult to dire voir “yes” A probing discern. that elicits more than a or “no” jurors response excusing will aid trial prospective court exercising peremptory and will its cause assist defense challenges. cognizable the defendant is a of a When member voir dire minority conducted, group, searching a more be if should requested.”). transracial, sharply disproportionate representation

The among capitally prosecuted white-victim cases those that are particular result in death sentences seems to reflect a societal placed on life and degradation value white a concurrent minori- ty specifically has noted life. Court that when crime interracial, thorough a more voir dire should be conducted Ramseur, supra, 245-46, 188; trial court. 106 N.J. at 524 A.2d Harris, 122, 237, (1998) see also State v. 156 N.J. 716 A.2d 458 (Handler, J., dissenting) (stressing need to delve into both blatant bias, and, and latent racial particularly in interracial cases even specifically, more in involving one' a white suburban woman and black, defendant). inner-city, male remedy may To this be added specific jury instruction admonishing against racial bias to be given in Special all such cases. Report, See Master supra, at 7. early

The Court’s acknowledgment protections that need to be guard established against to bespeaks racism an understanding virulent, that obvious, and, racism is though always not more crucially, it likely jury that is so to pool infect a that when requested, potentially time-consuming voir dire must be con try ducted to to uncover it. Given that when we decided Rams eur, we had no gather data from which to statistical evidence that might jurors’ defendants, race be a factor in sentencing capital this only solution seemed the addressing viable one for the risk of might racial bias that occur an individual case.' But we must acknowledge remedy now that this is not efficacious to weed out jurors may subject who be to inarticulable and subconscious racial addition, cannot, biases. In remedy and was never intended to, II, prosecutors. address the biases of supra, See Marshall (“[W]e N.J. at 613 A.2d 1059 ... charging believe that the prosecutors, decisions of as sentencing well as the decisions of (cid:127)juries, both representing society’s crime, in punishing interest will excessive____”). demonstrate when a death sentence is high cases, Because the stakes are so penalty death we must willing supplement racism, be attempts to eradicate such as vigorous voir dires jury and clear curative instructions. These should be combined with our continued efforts to create methodo logically sound statistical simplified models and and realistic read ings of the resultant data informed what we know about human history, nature and have from learned see Loftin 405-10, (Handler, J., N.J. at 724 A.2d 129 dissenting) (recounting discriminatory Jersey history racially laws in New and around States, discriminatory of racial- as well as enforcement United laws). vital comprehensive approach This if we are ly neutral simply singled that will be out death the risk individuals avoid their race. because of Ra/mseur, likely perception, beginning in that racism is

Our dire, adequate augmented now been take hold without voir has ways strongly suggest that our curative sharpened warding off not sufficed. solution for the inevitable has Governor recently acknowledged Troopers engage State Whitman some is, Jersey Turnpike they on profiling in racial the New —that single Hispanic out black and drivers based on ostensible traffic subject them to criminal searches. See Iver Peter violations Times, son, Says Profiling, Troopers N.Y. Whitman Used Racial 21, 1999, A1, Apr. begins at B8. Are we to assume that racism and Troopers? acknowledge must Jersey ends with the New We State jury-based prosecutorial supported the racism that risk of is by the we us its documentation in all numbers have before society, attempts keep sectors of our and that our to racial biases capital sentencing may out of our scheme well have failed. cases, prior significantly In in bearing areas of law less risk decisions, injustice willing in life have to than and death we been beyond they inadequate give look the when us numbers are to a proof relationship. recently, conclusive causal Most this 112, (1999), Cromedy, Court in v. 158 N.J. 727 A.2d 457 State in knowledge determining allowed for a flexible standard of requiring of social evidence a basis for usefulness science as specific jury in transracial crimes. The held instructions Court jury explaining potential unreliability that a instruction appropriate in a case a transracial identifications was in which rape solely on a black defendant tried for based white victim’s spite prosecutor’s presentation of him. In of the identification that evidence that some researchers do not subscribe the idea

369 identifications, impairment cross-racial affects real-life the Court held that [various consistent with cases]; the Task Force our review of Report; literature of the behavioral and social that a

professional sciences, we hold cross- jury racial identification ... a instruction in an requires special appropriate case---- that We conclude data of the much empirical encapsulate ordinary requiring human an frame of reference for experience provide appropriate [such an] instruction. [Id. 727 457.] A.2d 131-32, path We must not be reluctant this in to follow an arena where the ultimate, significantly higher stakes are irreversible —where 399, penalty implicated. See 157 724 N.J. Loftin (Handler, J., (“Nowhere A.2d 129 dissenting) in the law is more at greater or positing stake is there a need for a definitive resolution case, a capital on sound and understandable basis than in a even if by falling that resolution errs on the side of rather fairness than Carolina, 280, accuracy.”) (citing Woodson v. North 428 303- U.S. (1976).) S.Ct. L.Ed.2d certainty The Court continues insist that scientific —statistical significance required accept be it will before notion —should plays capital sentencing that racism role our scheme. Even demands, however, it ninety-five percent as must be we sure plays sentencing that race role in will death before it consider bias, by death such sentences be tainted racial the Court allows liability to on imposed be toxic-tort when tortfeasors cases alleged relationship causal between the harmful conduct and the plaintiffs injury is much v. less clear. See Rubanick Witco (Because (1991) 421, 434, Corp., 125 N.J. Chemical A.2d 733 “plaintiffs litigation, despite strong toxic-tort and indeed com pelling they previously indicators have toxic been harmed exposure, may required general accep never recover if to await by reasonable, community yet tance the óf a as of scientific but causation,” theory may uncertain of strict scientific standards be relaxed.); see also N.J. A.2d 129 Loftin (Handler, J., Rubanick, dissenting) (citing supra). juxtaposi In tion, diametrically the it in opposing Court’s views leave an posture. widely irrational and accepted nonsensical standard ninety-five certainty percent may appropriate of be in the scienti statisticians, community willing adjust fic of we to but should be community modify the of when our focus is a and norms that decidedly near-certainty non-scientific one and when insistence on opens injustice. the doors of arbitrary disciplines question value of inflexible and

Other the line-drawing of the of and the use science to exclusion common- threatening less than death. sense observations circumstances beyond to look the non- They stress need hard sciences to quantiflable evaluating relationships. factors when certain

Economists, example, impos- for are faced with the almost often policy economy. of evaluating likely task of effects on the sible M. Nobel Laureate Robert Solow believes that when science is evaluations, inadequate necessary to must make we broaden identifying explaining our rela- tools reference causal tionships: argue[s] against thinking of as [Solow] economics science with a S. ‘That is capital strong belief wr[ites], he *with a that economics should perfectly consistent,’ try hard to be scientific with a small s. that I mean that we should think

very By only logically enlarged include, fact.’ Fact ... should be ‘to respect say, generalizations and casual market attitudinal opinions experts participants, regularities, judgments institutional our even surveys, plausibility. My pre- image is the cleaner, ferred vacuum not the microscope.’ Challenge [Louis Uchitelle, Economics, A N.Y. Jan. Times, 23, 1999, Scientific B9.] at B7, sciences, adoption in the Even hard blind of the scientific Levine, certainty challenged. been threshold has Robert J. Ethics (2d 1986) (‘We Regulation 200-01 ed. Clinical Research arbitrarily say something have chosen is true when probability is less than 0.05 that it could occurred chance have ____”) added). (emphasis example, challenged For some have trials, preserve notion that order to the value of medical suspected disclose potential researchers should not benefits of until participants one treatment over another to trial there is (ninety-five certainty percent) statistical' that one treatment ibid, See, superior e.g., (suggesting partici- others. pants exacting certainty able be to choose less level of concluded). deciding whether trials clinical can be

371 Here, itself must of Court decide whether the values community ought employed scientific to be when the failure to scientifically pinpoint relationship may a causal that at work be in signifi- results the unfair execution of individual. an Statistical displace knowledge, cance cannot all or override understand- basic ing, in dispositive or be all Parman contexts. Mahesh K.B. & (1995) Machín, Analysis, Approach Survival A Practical David “clinically” (stating may significant though be results even not Maltz; Deviating From the statistically significant); D. Michael Declining Significance Significance, Mean: The 31 Journal of (“Statis- (Nov.1994) Delinquency Research in Crime and significance tical imply significance, does not substantive and most stop implying researchers know this —but this not does them from does.”). that it only beyond signifi- Court’s failure to look not statistical agree

cance—which is arbitrary point— even scientists an cut-off themselves, beyond but also the statistical capacity results has the gravest injustices. to result in objectivity, knowledge

Th[e] ideal of mechanical based rules, .on completely explicit regard is never attainable. matters, Even with scientific fully purely knowledge recognized. of tacit In efforts to solve importance widely problems from outside the scientific all informed intuition is the more posed community, crucial. Objectivity [Theodore Porter, M. Trust in the Numbers: The Pursuit in (1995).] Science Public Life longer optimum no This Court should wait for the model statistical has, fact, statistically rejected or the ideal cases. It number of rigid, approach such a mathematical proportionality review developing analyzing analysis methodology frequency its re- sults a defendant’s individual claim: Several courts have concern expressed application strictly quantitative subject drawing legitimate to the could lead to line and limit the approach arbitrary judicial exercise of discretion. More such an may importantly, approach inappro- suggest judgments that the involved in determina- priately complex proportionality tions can be with mathematical expressed precision. (quoting [.Marshall Baldus, 613 A.2d 1059 David C. 130 N.J. Project: Review Final the New RepoH Jersey

Death Penalty Proportionality 5 24,1991).)] (Sept. Court, 1,42-13 Supreme racism question The is not whether we are certain crucial here capital sentencing, but there is “a constitu plays a role in whether tionally affecting capital the ... significant risk of racial bias McCleskey Kemp, supra, v. at sentencing process.” U.S. Special 292. himself 95 L.Ed.2d at The Master S.Ct. entirely possible that our efforts will acknowledges that is “[i]t problem identifying the role of naught come because the [of to discrimination, may if any,] beyond race be the reach of the social Special Report, 108-09. that Master Given sciences.” discrimination, models a serious risk of race various indicate adjured potentially we to consider all sources of relevant are knowledge and information. jurisdictions

We look to other to determine whether should justi- duplicated these have are indications been elsewhere. We doing charged proving so fied because defendant is not discrimination, was the race that he alone victim of or even systemic definitely To if racism on a level is at work. determine of race the diverse and numerous statistical indications discrimina- risk, tion it perfectly form the basis for an unconstitutional appropriate expand inquiry findings to to examine the of other our Note, given Easing states on our limitations universe. See Compromise Proposal Fear Too Much A Rinse the Justice: to 5 While, unlike the I believe a cut-off is a Court, numerical preponderance quantifying applying "general means for our fairly necessary imposition" attempting standard, this is because we are not to a causal actually prove review, with numbers individual we are proportionality merely relationship defining using a base. a standard numerical In our attempt quantify systemic racism, however, such cut-off is unrealistic. The numbers will never be point Court, therefore, able to or should racism. disprove prove presence be at adamant its least as about its reluctance to on statistical models in rely of race as it is examination discrimination in its individual proportionality suggest give review I do not that we do with the on models or analysis. away up them, our but rather we them with common attempts perfect supplement sense and experience. Act, (1995) Racial Justice 30 Harv. C.R.-C.L. L.Rev. (“Because requires significance, [Racial Act] Justice statistical absolutely jurisdictions it will have no effect on where the number of death preclude any statistically sentences is so small as to conclusions.”). reliable inquiry

That is instructive. A Accounting 1990 Government report, Office based on twenty-eight the examination of state- specific on penalty studies the role of race in death sentencing, alarming consistency reveals across disparities. states racial In studies, eighty-two percent of the the race of the victim influenced charging (i.e., sentencing patterns in capital cases white- sentences). likely victim cases were more to result in death Further, more than three-fourths of the studies that identified a race-of-the-defendant effect found that black defendants were likely more penalty receive the death than white defendants. Office, Accounting Penalty States General Death Sentenc- United. ing: (Feb.1990), Disparities Research Indicates Pattern Racial reprinted 1990). in Cong. (daily May Rec. S6889-90 ed. Legislature recently passed Nebraska imposing a bill two-year moratorium on study executions until further on the possible role that the race economic status of defendants and/or playing and victims capital the state’s sentencing process.6 Johnson, Dirk Legislature Nebraska Votes Pause in Execu- tions, Times, May N.Y. Republican at A14. Senator Brashear, say Kermit A. while unwilling still racism has taken Nebraska, hold in clearly notes that component “there is a racial and a component socioeconomic sentencing. nationwide” death defendants, Ibid. Black who percent account for thirteen of the country’s population, occupy forty-two percent of its death row cells. Ibid. later, Republican days stating Governor Mike Johanns vetoed the bill five unnecessary ap

that "it would allow death row inmates to 'advance further ” Executions, Times, peals.’ Suspension May Nebraska Leader Vetoes N.Y. 1999, at A21. results of our acknowledge that the consistent finally must

We aberration, they explained nor can be not an models are statistical themselves, com- only but the rejecting not the models away by majority states that significant of other of a experience mon now before we execute must act impose capital punishment. We legislative scheme that has under a capital first defendant our with race discrimination. likely been infected

Ill proportionality of defendant’s decision to review the The Court’s that the sentence is not determination sentence and its death again, an assessment of the soundness disproportionate impels, sen- validity of defendant’s death review and the proportionality methodology, application of our current I believe that tence. (to the extent only “generally imposed” standard employing review, reveals that de- coupled precedent-seeking possible) vacat- disproportionate and should be sentence is indeed fendant’s ed.

A. analysis. frequency review is step proportionality The first Here, representation, to examine attempt, through statistical we offenses similar to defendants who have committed how often recognizes The Court are sentenced to death. of defendant determining propor statistically-based approach to limitations of a the statistics are not determina tionality emphasizes thus reliability the of our overall rates and tive. lower the ‘“[T]he precedent-seeking analysis, greater the the need frequency ” III, DiFrisco 307, (quoting Ante at A.2d at 1137 731 review.’ 442). 183-84, indicating supra, 142 Results N.J. at 662 A.2d place greater emphasis prece on “require us to disproportionality 308, Ante at 1137. dent-seeking 731A.2d at review.”

375 1. Salient-Factors Test test, rejection numerical-preponderance

Since the Court’s of the 295, 129, supra, only 157 at 724 A.2d two see N.J. tests Loftin remain, the salient-factors index-of-outcomes tests. majority The concludes that the salient-factors test does not disproportionality. at 731 at establish See ante A.2d 1134 (“[T]he disparity mere fact that a statistical -not exists does IV, Bey disproportionality.”)(citing establish at N.J. 685). so, in methodology doing 645 A.2d The Court’s howev er, faulty significant ways. is in two

a. time, only For the first the Court relies on the defendant’s E-l,7 subcategory, analysis for its of salient factors. See ante at - - 731 A.2d at 1130 31. The Court’s decision to so drasti- cally comparison significant limit the universe of eases has conse- quences accuracy proportionality for the and fairness of our Master, fact, Special recognizes problem in review. The maintaining subcategories purposes at all for of statistical analysis: reading subeategories death-eligible Our of the 433 eases indicates that many [salient-factors] contained the current model lack resonance terms of factual outcome____ sentencing subcategories While the are comparability descrip- surrounding

tive in terms of the circumstances our statistics crime, particular outcome____ determining reveal that have no relevance in death they Master 56-57.] [Special Report, supra, Special subcategories Master recommends that the be elimi- deathworthiness, inability predict nated due to their id. adding specific changes category to defendant’s E should be changes clearly significant impact made.8 These on would have a analysis, judgment salient-factors I Court’s and while withhold category The E-l of defendants who commit murders comprised robbery with forced violence or terror. entry particular Master salient factor recommends Specifically, robbery Special subcategories. Master "residential, be divided into business and other” Special at 59. Report, supra,

376 appropriate, his remedies are Special Master’s

on whether meaningful be subcategories are not must heeded. finding that the conducted the Court proportionality In reviews all date, category in which the defendant composite salient-factors (the comparison cases broader formed the basis for placed is has case). for Harvey’s set the standard category E in The Court comparison cases should be determining large how the universe II, review, supra, stating that Marshall proportionality in its first striking factual dissimilarities be- in “there are no cases which for the should form the basis [defendant’s]” [them] tween 181, A.2d comparisons. 130 N.J. at 613 precedent-seeking review 55, 72-74, 1059; Cooper, 731 A.2d 1000 v. 159 N.J. see also State II) (1999) C-category defen- (Cooper (comparing defendant to all (1999) 214, Chew, 183, dants); 731 A.2d 1070 v. 159 N.J. State defendants); (Chew II) I-category (comparing to all defendant 326-27, II, (comparing A.2d 129 supra, 157 N.J. at 724 Loftin III, defendants); 142 DiFrisco category all B defendant to (“the statutory factor ... is the 662 A.2d relevant N.J. at pecuniary the murder for a factor that committed [defendant] II, motive,” supra, 139 N.J. at category); the I Martini involving “kidnapping (comparing defendant to cases A .2d 949 terror, kidnapping of non-strangers particular with violence or terror, prin contract-murder strangers particular with violence or killers, non-robbery pecuniary-advan cipals, and other contract IV, killers”); Bey supra, 137 N.J. at 645 A.2d 685 tage prior murder (comparing defendant to all other defendants conviction). step limit its salient-factors The Court’s drastic result, (and, precedent- its subcategory the E-l as review to - 1134-35), review, 731 A.2d at seeking see infra methodology frequen insupportable light of our established findings. cy Special review and the Master’s comparison of majority explains its to limit its decision First, prior proportionality ways. it contends that cases in two only comparison class has been extended to defen- reviews our composite category up sample dant’s in order to make for small - - 97, subcategories. sizes in the See ante at 295 731 A.2d at 1130 beyond (stating comparison that Chew Court’s extended only subcategory group 1-3 because consisted of one other Chew’s defendant; compared in III to entire that DiFrisco defendant was analysis;” category provide productive I to for “a statistical compared B-category in II that defendant was to all Loftin “ ” ‘exceedingly small number of eases’ in because defendants subcategory). his B-l selecting comparison our for

The Court misconstrues method group, glaring as is demonstrated its failure to note the 55, companion Cooper, supra, approach taken the case 159 N.J. Cooper 1000. In the selected the entire 731 A.2d Court composite category comparison C for not on the basis of the size subcategory, ample forty an of defendant’s C-l which contained cases, but because of the essential similarities between the defen spite crime and those of other In of the fact dant’s defendants. specifically request Cooper did not even that the C-3 cases be his, stated, compared previously performed to the Court have ‘We subcategory using assigned the salient-factors test both the as composite category well as the ... and we will do so this (citation omitted). 76, appeal.” at 731 A.2d 1000 The Court Id. proceeded compare Cooper only category to all defendant not C defendants, proposed by from but also two cases the defendant categories. other See id. at 731 A.2d 1000. The Court’s focus Cooper’s accompanied by a was on the fact that murder was assault, defining category. feature of the C sexual Further, approach to defin the Court here mischaracterizes the III, ing comparison eases taken in DiFrisco the universe of defining group comparison for cases where the rationale Cooper Although II. it is indeed correct was similar to that (nine) subcategory that DiFrisco’s 1-1 contained too few eases alone, provide meaningful proportionality for a review see ante expand 731 A.2d at the Court did not the universe of category solely of the composite because comparison cases to the III, In deficiency subcategory. DiFrisco in the size of the defendants, only I-category but also the examined not Court beyond composite I possibility comparing defendant to cases contained in DiFrisco’s despite adequate sample size category, (fourteen). reject ultimately Although the Court composite group comparison, it expanding recommendations ed defendant’s adequate number of cases to it had reached an did so not because review,” “statistically but rather because productive provide for factually proposed not similar found that the cases were the Court inclusion. See DiFrisco enough to defendant’s to warrant their III, (excluding proposed 662 A.2d 442 supra, 142 N.J. appears pecuniary gain category because “there defendants from allegation any those defendants were no basis for an to be they paid murder or that another to do paid either to commit so....”). excluding for E-2 and E-3 cases

The Court’s second reason proportionality review is that because of the differences from its E-2, distinguish the defendants in the E-3 and G-3 cases insight propriety Harvey, provide from “such cases little into the case, inapplicable to our jury’s of the decision this and are 299, Ante at 731 A.2d at 1132. The proportionality review.” cases, however, misguided of the is both and Court’s examination incomplete.

First, comparison cases to the Court bases its restriction of the subcategory E-subcategory on fact that other defendant’s the distinguishable by aggravating the number of factors cases are case, defendants, age problems the mental of the the reduced their defendants, defendants, prior of the records of the level they or their level of intoxication when remorse demonstrated - 99, at 297 at they committed their crimes. See ante 731 A.2d however, very comparisons, kinds of are the 1131-32. These review, precedent-seeking of our and should be made heart examining context of the actual crimes of the defendants. The determining comparison initial basis for the class of cases should AOC, premised solely categorical groupings by made be on the characteristics, by any which are defined not of the above but rather, stated, by previously as the essential elements of the case, defendant’s offense. In this the essential characteristic of category the E is that the defendant murdered in the course of a E-1, E-2, robbery. The cases are then down into the broken subcategories particular or E-3 based on the violence terror employed robbery robbery in the whether or not the and/or Court, therefore, entry. justify involved a forced can its distinguish Harvey subcategory E-2 decision to from the and E-3 only purposes selecting comparison group by defendants for determining correctly placed first that these defendants have been II, 76-77, subcategories, Cooper supra, in their see 159 N.J. at (examining A.2d 1000 four defendants whom the State contended improperly category excluding were included in defendant’s second, arguments); two of them based on State’s that the subcategories meaningful pur distinctions between the are review, poses proportionality of our see Chew 159 N.J. 253-54, (Handler, J., I- dissenting) (arguing 731 A.2d 1070 pecuniary “other motive” defendants are more similar to some robbery-category than to 1-2 and 1-3 contract killer defendants defendants). clearly The Court has failed to meet this burden.

Second, only E-2 the Court discusses five of the seven and E-3 only proposed G-category one of four A- and defendants and - defendants, Notably, see ante at 297 731 A.2d at 1131-32. (E-2) Larry distinguish the Court fails to Jesus DeJesus (E-3) Harvey. only Durden from defendant Not are these defen- factually Harvey’s, crimes similar to the measure which dants’ cases, ought determining comparison we to be our universe of see supra at are in 731 A.2d the defendants themselves many respects indistinguishable Harvey. from Neither DeJesus young enough age nor Durden were to claim their diminished (DeJesus thirty-one his culpability their when he committed forty-four); drug problem; murder and Durden was neither had a problems; neither suffered from emotional or mental and both why prior had criminal histories. The Court’s failure to address group, comparison these defendants should be excluded from the given they pass misplaced even the test for determin- Court’s defendant’s, ing similarity proposed the level of between cases and exclusion, and, indeed, question makes one the Court’s basis for if exists. one limiting comparison

The Court’s reasons for the class here are analysis precedent disregard based on selective and utter defining categories, greatly compromis- the AOC’s method of ing completeness proportionality of our review.

b. Next, methodology suspect Court’s salient-factors due to comparison death-sentencing the reliance on a of the rate for the subcategory average death-eligible defendant’s E-1 to the rate for - - cases, 35; see ante at 301 731 A.2d at 1133 see also DiFris III, co 442 (stating N.J. at 662 A.2d that because sentencing significantly higher death rates of contract killers were rates, average than the by society contract killers are “viewed as (citation omitted). ‘significantly blameworthy.’”) approach This renders superfluous. the salient-factors test

I believe the misinterprets logical purpose Court of the designed classify salient-factors test. It is defendants subca- tegories purporting to measure similar characteristics of the Using average death-sentencing crimes committed. rate as proportionality the benchmark of purpose would defeat the dividing death-eligible subcategories By cases into at all. comparing category death average rates each to the death rates, might comparing the Court as well be defendant to all other death-eligible defendants who were not sentenced to death. In- stead, ought simply using Court to be the test results to assess culpability defendant’s according death-sentencing to the actual assigned categories. rates in Cooper his Accord 159 N.J. at (Handler, J., 731 A.2d dissenting).

381 accepts average if the Court’s use of rates as á basis Even one sentence, comparison disproportionality to examine the of a the apply majority’s analysis problematic. is The Court chooses to standard, in selectively relatively quantifiable established Di- III, supra, sentencing rates comparing Frisco when the death sentencing if categories average within to the rate: the death rate average, category higher is than the overall this defendant’s those, society leads “to the conclusion that views who commit entry in particular violence or terror a residential forced as 301, blameworthy.” significantly Ante at 731 A.2d at 1133-34 442). III, 173, (citing supra, 142 From DiFrisco N.J. at A.2d this, sentencing if one can also conclude that rate defen category average, society dant’s is lower than the overall views particularly blameworthy compared these defendants as not when however, spite finding, In E-l to other defendants. of the time, only percent of defendants are sentenced to death ten percent average sentencing than the death rate for all two lower defendants, concludes, death-eligible a deviation Court “Such robbery killings society are viewed as less [does show] not blameworthy,” thereby implying ante at 731 A.2d at disproportionate that the salient-factors test does not indicate sentence. duplicitous application

This of the one standard that the Court developed remotely question has that is even concrete calls into any meaningful, desire to craft consistent standard Court’s only percent proportionality review. The statistics show that ten death-eligible sub-category thirty- E-l defendants percent advancing penalty to the trial are sentenced three of those Report, supra, compelling, to death. CCH tbl 7. Even more examined, category death-sentencing E when the as a whole is death-eligible only percent, six and for those rate for defendants only twenty-four percent. Ibid. proceeding penalty to a trial figures average sentencing rates of Both of these are below numbers, my opinion, are death-eligible all defendants. These finding “‘generally receive adequate for a that such cases will death____’” other than See ante at 731 A.2d sentences 949) (quoting 651 A .2d Martini N.J. (other omitted). citations

2. Index-of-Outcomes Test attempt The index-of-outcomes test is a different to examine the categories blameworthiness of the defendant: are created not crimes, according to similarities between the but rather similari- ties the defendants. meant to between Characteristics measure culpability, statutory non-statutory, both are defendant’s regardless of whether examined the crimes themselves are similar weighted assigned in nature. Each factor is a coefficient" according imposed to how often a death sentence is when the present. culpability factor is each is assigned, Then case a score present weighted based on the factors and their coefficients. out, majority correctly points persistently As the there is wide range culpability assigned scores to defendants across the four - 04, regression (noting models. ante at 303 731 A.2d at 1135 See culpability range forty- defendant’s scores here from thirteen to percent; culpability ranged three DiFrisco’s scores from eleven to seventy-four percent; culpability ranged Martini’s scores five from eighty-eight percent; Bey’s culpability ranged scores from twenty-five seventy-six percent; culpability and Marshall’s ranged fifty-two percent). scores from seventeen to This wide accuracy range highly questionable.9 renders the of the models II, (Handler, supra, See 157 N.J. at n. 724 A.2d 129 Loftin J., dissenting). addition, range In among the wide of confidence intervals significantly reliability cases detracts from the of the test.10 See - 06, (detailing ante at 305 731 A.2d at 1135 of results defendant’s regression four displaying, models with confidence intervals at reason, Special agrees, recommending Master that for this and various others, proportionality the index-of-outcomes test be eliminated from the Court’s Special Report, supra, review. Master at 90-107. 10Again, agrees. Special Special Report, supra, Master Master 95. fifty-seven greatest, percent range upper their between the II, death); predicted probability of lower levels for accord Loftin (Handler, J., dissenting). supra, 157 N.J. at 422 n. 724 A.2d 129 itself, Beyond majority misinterprets its the flaws the test sentencing by relying results not on death rates for the various proportionality, on culpability levels as indicators but defen probability predicted receiving dant’s a death sentence. See - - 06, probabilities ante at 305 731 A.2d at 1135 36. Predicted are place culpability used to the defendant level and are not provide finding proportionality. meant to a basis for a sentencing [T]he mandate of consideration in Constitutional individualized capital juries, sentencing that we on actual decisions and the characteris- rely requires tics of actual felons' and their to determine when a sentence is crimes, death generally situated defendants. we could not imposed upon similarly Certainly, grounds reversal; to our at defendant’s death sentence as nor point surprise should our that a certain defendant will receive the death serve expectation penalty finding as for a adequate support proportionality. (Handler, dissenting) 724 A.2d 129 J., N.J. [Loftin added).] (emphasis focus, therefore, sentencing Our should be on rates for the levels placed in culpability which the defendant has been for each (as category).11 is in the salient-factors test for each crime model it culpability sentencing The death rates for the levels to which assigned thirty-five percent in defendant was the four models are 2), 1), percent (culpability forty-. (culpability level thirteen level 3), (culpabili- percent (culpability percent three level and nineteen 1). ty general imposition Not level one these rates indicates to Another with the Court's is its Harvey problem analysis comparison other defendants who have not been classified within the same level. culpability categories comparing defendants across this the entire of the By way, purpose sentencing test —to measure defendant’s and establish the rate of culpability II, at defendants —is eviscerated. See 157 N.J. similarly culpable supra, Loftin (Handler, dissenting). singular J., ”[T]he that a 423-24, 724 A.2d 129 fact subject justify defendant was the of a review does not his prior proportionality (Handler, 424, J., at with the defendant.” Id. A.2d 129 comparison present dissenting). that, by penalty strongly

the death and two of the four indicate standard, any disproportionate. defendant’s sentence is This con- supported by fact that confidence inter- clusion is defendant’s upper much of other His vals are lower than those defendants. sixty-nine percent, limit for all four models never exceeds while all proportionality defendants examined the Court for re- other ninety- views have at least one confidence interval that reaches percent. suggests four that defendant’s low numbers are This predictions more stable than those of the other defendants. methodology, Under the old both the salient-factors and the view, tests, my suggest in index-of-outcomes that defendant’s might disproportionate. Accordingly, sentence be the Court apply precedent-seeking only way: should review one unless culpable category, defendant is of the most defendants his one. 1128, supra point see 731 A.2d at unless we can to some sentences, justification pattern for the break in the of life see II, supra, Marshall N.J. 613 A.2d we must find Harvey’s disproportionate. Although sentence to be these statisti limitations, they cal tests have their can serve as a useful kaleido review, scope through precedent-seeking which to examine which designed identify justifications help possible us for a defen seemingly-arbitrary dant’s sentence.

B. Precedent-seeking attempt engage review is the Court’s in an approach proportionality by making individualized review factu comparisons death-eligible al between defendants and their precedent-seeking crimes. Because review is not statistical nature, inevitably qualitative quantitative it is more than and less the salient-factors and index-of-outcomes determinations. Loftin (Handler, J., dissenting). 157 N.J. at 724 A.2d 129 Precedent-seeking complement frequency review is meant to anal ysis, relationship and the Court has defined this functional as reliability “[T]he follows: lower the overall rates and the of our frequency analysis, greater precedent-seeking the the need for

385 III, supra, 183, 142 N.J. at 662 A .2d 442 review.” DiFrisco (citation omitted). analysis frequency rates Because defendant’s defendants, prece comparison quite in to those other are low this dent-seeking significance on added case. review must take (“The II, 154, supra, 130 A.2d See Marshall N.J. at 613 1059 compari sentencing the greater frequency the of life statistical cases, the greater the will be need the group son of similar in the people” the involved defendant’s Court to focus on “real 2 cases.”).1 other similar factors, mitigating statutory aggravating and addition to In non-statutory takes into account factors precedent-seeking review II, supra, Marshall sentencing guidelines,” “rooted traditional (citation omitted), 159, which fall within N.J. at 1059 613 130 A.2d blameworthiness, degree categories: moral three defendant’s crime, and resulting from defendant’s defendant’s of victimization II, Marshall 309, (citing ante at 731 A.2d at 1138 character. See 1059). 155, A.2d supra, 130 N.J. at 613 past much or more than cases case demonstrates as Defendant’s review is an inher- precedent-seeking that presented this Court subjective culpability assessments ently exercise that “invokes II, are, Court, essentially, judgments.” moral which Loftin J., (Handler, dissenting). As N.J. 157 at 724 A.2d 129 demonstrate, a death sentence of defendant’s case some features individuality afforded the always justified given level can be supra, 159 N.J. at A.2d Chew Accord analysis. (Handler, J., (stating proportionality review has dissenting) that propor- justify finding to “whatever works” been reduced tionality). precedent-seeking acknowledgement review the Court’s In face of significance heightened case, ante 731 A.2d in this see

has to the E- cases majority’s limit the universe comparison decision drastically afford subcategoiy puzzling. effort to We should make very is especially precedent-seeking review when individual com- defendant comprehensive an role in review. of cases such important parisons plays 386

1. The Court first independent examines defendant’s case of other cases, taking Harvey’s into account moral blameworthiness and character, well resulting as as the level of victimization from his majority crime. The concludes respect to “[w]ith defendant’s character, moral blameworthiness and highly culpa- defendant is contrast, In culpability ble.”’ defendant’s merely is moderate with respect degree to the of victimization. Ante at 731 A.2d at I disagree 1141. with the Court’s assessment of defendant’s moral blameworthiness.

In determining blameworthiness, a defendant’s the Court is to motive; following: premeditation; examine the justification or excuse; disease, disturbance; evidence of mental defect or knowl edge of helplessness; knowledge victim’s on effects nondece victims; age; dent defendant’s and defendant’s involvement planning murder. See ante at (citing A.2d II, (other 1059) Marshall 130 N.J. at 613 A.2d citation omitted). was, motive committing according

Defendant’s for the murder jury, escape Although to the to detection. aggravating this factor (c(4)(f)) is considered to increase defendant’s moral blameworthi- ness, widespread, its application, regardless almost universal the lack presented cases, of evidence to establish it in various destroys efficacy its appropriate aggravating as an factor. Its unbounded, application inherently amoebic is expansive, making it impossible to narrow death-eligible the class of defendants ade- quately meaningful to allow regarding distinctions defendants’ blameworthiness. See supra, 157 N.J. at 724 A.2d Loftin J., (Handler, dissenting). Harvey’s problem: case demonstrates the prosecution pre- sented no evidence at trial that would indicate defendant mur- dered to escape only detection. The evidence that defendant tried (he escape to detection came the murder up tried clean after blood). jury likely aggravating The most found factor mistakenly inappropriately projecting or post-murder defendant’s actually only proves The murder itself. evidence actions onto the for the escaping about detection was concerned that defendant murder, escape detection for he murdered the victim not that escape robbery. conclusion that defendant murdered lack of wholly application, given its speculative; detection it, highly demonstrates that the factor is evidentiary support for Similarly, cases culpability. in where suspect measure escape to detection overwhelm that a defendant killed evidence Mejia, v. 141 ing, jury may fail to find the factor. See State (defendant (1995) in fleeing shot victim 662 A.2d 308 N.J. c(4)(f) factor); v. jury not find State did back of head Alexander, Penalty Tri Report, Narratives for “No CCH (defendant fleeing 1 victim back AOC Cases at shot al/Life” c(4)(f)). The record aggravating ease factor classify did not the motive of strongly to the conclusion that points in this case be used to increase his blame is unknown and cannot defendant II, supra, 157 724 A.2d Accord N.J. worthiness. Loftin J., (Handler, dissenting). 129 He

Next, premeditation. no en- murder involved defendant’s process Schnaps it killed Irene in the the house to rob tered was to doing presented so found her. No evidence when he suggest planned. that the murder

Third, justification or for the apparent no excuse defendant had murder, moral this factor fails to decrease his blameworthi- thus ness. indicating mitigating factors

Although jury did not find disease, defect or distur- that suffered from mental defendant bance, mitigating presented were non-statutory factors when ten c(5)(h) factor, some members jury part of the catch-all to the as from trauma for suffered emotional found evidence defendant was traumatized jurors six found that defendant various reasons: as a of a kerosene accident his sister die result when he witnessed fire; juror that defendant was caught on one found which she with his verbally when he was live physically and abused sent jurors found that defendant suffered grandparents; and four feelings parents promised of abandonment when his to but did not they take him with them when moved from their home. See ante 731 A.2d at 1139. These factors decrease the moral blameworthiness of defendant.

Fifth, indicating we have no evidence helpless the victim was fact, when In presented defendant attacked her. the State evi dence at trial that DNA on tests conducted blood found Schnaps’s apartment indicated blood was consistent with Harvey, 117, 143-44, DNA. v. defendant’s State N.J. A.2d (1997) II). (Harvey therefore, way We no knowing, have if first, responded' defendant struck or if he an attack from the information, disproportionate victim with force.13 Without more heighten this factor used cannot be defendant’s blameworthi ness. had knowledge

Defendant no of his on effects actions victim, nondecedent victims. He did not know the and therefore could not have known how her death would affect those left behind. age

Defendant’s not does decrease his blameworthiness because forty 313, he was when the he committed offense. See at ante 731 A.2d at 1140.

Finally, premeditation, because defendant’s murder involved no regarding the factor planning defendant’s involvement in the murder is irrelevant and does of not increase his level blamewor- thiness. sum,

In extremely a low of level blameworthiness: He did not (to murder, detection) plan escape the his motive is a that motive 13 might The fact that defendant's blood at the scene of the crime be an indication he was attacked first is consistent confession, with defendant’s he which told the woke she when heard him and police then Schnaps up causing nose, defendant in the him to bleed. See State v. punched Harvey, (1990) I). 407, N.J. 412, A.2d 483 While the confession was {Harvey background trial, in defendant’s second this information suppressed should assuming make Court of the victim was especially wary there helpless when is no evidence to that conclusion. support indiscriminately accompanies many other defendants’ crimes when involved, particular no burglary/robbery is and defendant had a his crime would have on nondecedent knowledge of the effect or murder was not a random Although defendant’s victims. murder; act, justification had excuse or for senseless he no jury suffered and members found that defendant had still some of incidents from trauma as result does suffer severe emotional nor throughout age increases his childhood. Defendant’s neither no Finally, his we have evidence decreases blameworthiness.14 entirely indicating helpless. victim was heavily It on majority conclusion. relies reaches a different detection, motive, fails to Harvey’s escape factor that lend defendants, see insight much into the overall blameworthiness 1139, explaining By way of supra 731 A.2d at 1140. victim, only a provides the Court alleged helplessness itself, or not the condition description the murder detailed attack: “She was position of the victim before the homicidal that her skull blunt instruments and struck so hard attacked with fractured, lacerated, jaw was and her broken. She her brain in a many bruises brutal the face and sustained beaten about is not correct Ante A.2d at 1140. The Court murder.” helpless when concluding the victim was evidence that without —the attacked, at 1180 n. 13 supra at 388 n. 731 A.2d she was only when injuries should be considered description detailed savagery of the If the evaluating degree of victimization. “help- more, victim to characterize the can without serve homicide detection, c(4)(f) less,” this, aggravating escape like factor All victims any utility as a measure of blameworthiness. will lose are, they mur- ultimately helpless if have been degree, to some particular looking here is a should be dered. What we 14 justification age not factors that increase of are lack Defendant's knowledge the effect on nondecedents blameworthiness, such as of defendant's distinguish defendant as less fail of the or helplessness they simply victim — justification. average without than who murder maturity others blameworthy 390

helplessness, handicap, young age such as a victim’s or uncon- sciousness, knowingly advantage. which defendant takes

The Court finds knowledge that of the effects of the decedent’s weighs defendant, death on against nondecedent victims stating, “Although may defendant not specifically have known that Irene family friends, had previously recognized we have ‘[w]hile that a might specific defendant be unaware of the characteristics of his particular or of victims survivors that victim will leave behind, completely it is killing foreseeable that the will eliminate a ” destroy unique person a relationships.’ web familial Ante Muhammad, at (quoting v. A.2d State 145 N.J. 23, 46, (1996)). A.2d The fact that defendant “must have family that realized Irene had and friends because there were personal photographs apartment in her and he stole man’s Seiko watch,” LaSalle ante only 731 A.2d at adds to the transparency of this Court’s fictionalized assessment. Defendant is to compared be to others who committed robberies. The majority, seriously rationale, proffering implies only by this entering containing bare house personal no indicating effects relationships the victim has people, with other perhaps only person if actually then does not have relationships, such would the Court decline find that a knowledge defendant had impact that his crime would and victimize other unknown or persons. emphasis unknowable The Court’s aon factor of such universality requires which no evidence fails to narrow the field of comparable in any meaningful way. cases

Next, the any Court fails address evidence of defendant’s blameworthiness, mental considering state when his though even prior analysis to its it pages fills almost four regarding details presentation defendant’s mitigating relevant beginning evidence early childhood, in his as jury’s well as findings on that - evidence, -12, ante at 310 731 A.2d at 1138 40. Similar factors have been prior considered Court in cases even when the mitigating indicating factors mental disease or defect are not

391 Court, ease, Indeed, very in this the by jury. in found the culpable is than concluding less that E-l defendant Walter Gerald life, family about their Harvey, sister testified notes that “Gerald’s use of and Gerald’s their father’s death affected Gerald how then, 316, Surely, at 731 A.2d at 1142. drugs.” and Ante alcohol of examination mentioning it the Court’s would be worth by deeply was affected Harvey’s that defendant blameworthiness in a death of his sister in childhood and the the abuse he suffered accidentally caused.15 kerosene fire which he complete- premeditation factor Finally, majority ignores the the ly. There was none here. blameworthy,” “quite is that defendant

The Court’s conclusion view, is, 1139, my an at on this record ante at 731 A.2d see scale, and, comparative a factor on assessment of this inaccurate unjust conclusion. an other factors two agree the Court’s assessment

I de- of victimization precedent-seeking review—level used murder resulting from the The victimization fendant’s character. at 731 A.2d accurately as “moderate.” See ante is described certainly culpable: highly is he at character 1142.16 Defendant’s 15 examining blameworthiness, Court cited evidence a has When moral e.g., See, IV, or trauma. Bey supra, defendant's childhood abuse emotional jury's (observing catch-all failure find 384, 645 A.2d 685 N.J. at despite mitigating other defendant Koedatich any factor no submission by childhood, violent mitigating abusive His factors, suffered an childhood. "Bey Koedatich, ... who also had that of ... however, not differ from materially does violence.”). other suffered from child abuse or subjectivity precedent-seeking is Again, review revealed in however, acknowledged Having was struck from the victim the Court's analysis. was therefore not aware of blows, and rendered unconscious behind when victim is states, “Even her, forced the Court much of brutality upon III, this Court has impending death, as was the case in DiFrisco aware of not who victim, [woman] there still that ’at the end of observed day " murdered____' (quoting III, DiFrisco 731 A.2d at 1140 Ante [brutally] 442). distinguish defendant’s What, then, is A.2d 142 N.J. history, including guilty rape,

has a serious criminal pleas to assault, assault, attempted second-degree sexual sec kidnapping, burglary, third-degree receiving property. ond- and stolen 313-15, See Ante at 731 A.2d at 1140-41.17 He no showed remorse, cooperated there was no evidence that he with the authorities, and presented there was no evidence that he was susceptible rehabilitation, to although his allocution statement and positive relationships his perhaps speak with his children could to this factor.

I conclude that has culpability. a low level of His bad defendant character relatively is counteracted his low moral blameworthi- degree ness the moderate of victimization.

2. part precedent-seeking The second of comparison review is a of similarly defendants case to those of situated defendants. As in analysis, its salient-factors the Court here limits the universe of comparison precedent-seeking cases for only review to those placed in 296, the E-l subcategory. salient-factors ante See By fading 731 A.2d at compare 1131. defendant to other factually similar in category, cases the broader E the Court only partial conducts a proportionality review. The deci Court’s drastically sion so limit comparison the universe of cases in this case, analysis one in which frequency results are so as low to require emphasis a greater review, on precedent-seeking see ante 307, 1137, grave A.2d at is a mistake. blameworthiness from other will, defendants? There at the end of the capital abe victim who was day, always murdered, unless the Court brutally means to assert that all not murders are brutal. The Court could it never find implies a low level and, indeed, of victimization it never has. 17Although agree I Court that defendant's record of convictions prior lengthy, is both violent I the Court's inclusion of the two oppose robberies to he which confessed on the his of arrest for day murder. See ante at Schnaps's 314, 731 A.2d at 1141. Because defendant’s confession was not admitted into jurors knowledge alleged evidence in retrial, Harvey's had no of these sentencing robberies and therefore could not have factored them into their II, decision. See 117, 151 N.J. 699 A.2d 596. Harvey subcategories E-2 the E-l and only between

The difference ques entry into residence. involve forced that E-l cases seemingly inconsequential adhering to such a of tionable wisdom review, light precedent-seeking purposes distinction face; committed, the cases are on its but when is clear the crimes inconsistency in the closely, a marked more we see examined calling into categories, within further placement of eases these precedent-seeking review Court’s decision to limit question the perfect Harvey’s provides case group. to the E-l here presentation in its facts example. The Court states “[djefendant apartment Schnaps.” Ante at into the of Irene broke however, is, support at 1138. There no evidence 731 A.2d entry placed category Harvey is the forced this statement. signs “investigating police detected no spite of fact that the fact, In 731 A.2d at 1124. entry.” Ante at forced through an un Schnaps’s body “entered person who discovered N.J. at 699 A.2d doorway,” Harvey supra, 151 locked through police that he had entered confessed to the and defendant I, doorway. Harvey supra, 121 N.J. at See that same unlocked AOC, knowledge of all of these with full 581 A.2d 483. The E-l, entry details, in forced placed defendant the nonetheless category. Williams, example. provides apt another case

Gerald Williams’s through defendant, he an apartment the robbed an E-l entered then, is he door, Why, ajar finding asleep his victim inside. committing robbery that involved as a defendant classified defendant, his Ploppert, and entry? Another E-l Charles forced by identify- they accomplice gained entrance to the home robbed knew, inhabitant, defendant ing to the whom themselves talking the They even sat getting open him to the door. then they eventually attacked him. before man at kitchen table his evidence, therefore, forced that the co-defendants is no There way placed also in Ploppert, into however was their the house. entry category. the forced errors, categorization

These clear meaning- combined with the lessness of the distinction categories between the E-l and E-2 with, begin render the Court’s decision not to include E-2 defen- proportionality dants its review indefensible.

The categories, distinction between the E-l and E-3 while not (it as inconsequential categories as that between the E-l and E-2 is based on or not the whether murder was committed with terror), particular subjective violence or still lends itself to rather line-drawing always wholly that not Many is understandable. placed category belong the cases in the E-l seem to due there extremely components the violent their crimes. What is more justifications difficult to many discern are the for placing of the E- blameworthy defendants the less category. Defendant Aaron example. c(4)(c) good jury Huff is a The aggravating found the factor, indicating Huff caused the murder extreme suffer- ing, having struck his victim’s on a head coffee table beaten him until died. Yet placed he Huff was in the subcategory, E-3 indicating robbery particular was not committed with prosecutors violence or terror. The sought fact that have penalty against death E-3 killers they at more than twice rate sought have penalty death for E-l (comparing sixty- killers percent thirty-percent, defendant), seven excluding Re- CCH port, supra, enough tbl. should be indication that E-3 eases are necessarily blameworthy not Many less than E-l cases. describing AOC narratives these crimes indicate much more ter- against ror and violence Harvey’s used the victims than case. Comparison of defendant’s case these E-3 defendants war- given subjectivity ranted line-drawing between the two subcategories. Special agrees Master that the distinctions between the subcategories

salient-factors given should be eliminated their fail- adequately ure to -10, measure Supra blameworthiness. at 309 1138; (“I Special Report, 731 A.2d at Master at recommend that we abandon the current hierarchical structure Court’s, intuition.”). primarily which is based on decision to comparison reduce the universe of general category cases of the E even, times, arbitrarily drawn far to the more restrictive past departure from E-l is a serious subeategory defendants Further, step is in a this drastic taken proportionality reviews. particularly crucial precedent-seeking plays review a in which case given the results proportionality in our overall review role analysis. frequency compare himself several defendants

Defendant also seeks presented by defen- category. E of the cases outside the Some therefore, and, disagree I factually to his case dant are similar precedent- to include them in its with the decision not Court’s seeking review.

First, Hart, G-category as defendant Daniel who was classified a (murder committing burglary) convicted for was also while robbery burglary, and the robbery. is more serious than Because category in serious are meant to be classified the most cases (classifying G Report, supra, App. CCH E-3 applies, see robbery sexual “Burglary involving not or category as murder assault”), category placed in the E Hart should have been is among defendant com- be the cases which should therefore pared. Godette,

Next, argues a defendant from defendant that William agree. comparison group. I category, B should be in the category prior conviction because murder Godette murder, killing his Jersey convicted of his New he was addition to suggests that Godette Defendant step-father North Carolina. murderer, however, because prior as a should not be classified step-father’s his murder at yet convicted of Godette had not been fact, Jersey murder. In Godette was arrested his New the time of months after the New a full ten for the North Carolina murder in the why placed Godette Jersey It is unclear the AOC murder. Jersey jury for his given prosecutor that the New category, B prior convic- not able to consider a murder trial would have been Because was tried and convicted.18 tion at the time the defendant murder its Godette in The AOC have based may placement prior category court of notice of submission to the trial prior on prosecution’s strikingly Harvey’s, Godette’s crime was similar to and because the essential element his crime that the AOC should have used categorize robbery, him was his be he should included comparison defendant’s universe.

Finally, suggests A-category defendant that some defendants victims) (involving E multiple category would have been in the but they multiple for the fact that committed murders. Defendant’s again assertion alert the potential problems should Court to some simply deferring judgment to the on category AOC’s its groupings. accomplices Gerald and Walter his attacked three them; people, killing yet two placed he is in the E-l category multiple category. and not the victim plays Gerald significant role in the finding proportionality Court’s because he only is one of two category defendants in the E-l other than Harvey to (though have received death sentence his sentence prosecution was later capitally prose- reversed and declined to retrial). cute at For the place emphasis Court to so much on a defendant, multiple-victim placed in E-l category for no reason, compare identifiable and then to decline to defendant to multiple-victim similar cases in A category makes no sense. Further, although I find that the number impor- of victims is an tant distinction categories, between these A-category some of the factually enough ways eases are similar in all other to warrant comparison. agree, The Court must or it would remove Gerald’s analysis. case from its instances,

In separate three compari Court has conducted sons with fall AOC-designated defendants that outside the salient- grouping subjected factors for the defendant proportionality II, Cooper review. See supra, 159 N.J. at 731 A.2d 1000 (including by two cases relied on defendant outside defendant’s (c(4)(a)), aggravating reasoning murder factor but such be would In misplaced. c(4)(a) finding, jury order to amake find "[t]he must has defendant been convicted, time, at [A] of another murder ... any conviction shall be deemed 3(c)(4)(a) final when (emphasis sentence N.J.S.A. imposed____" add 2C:11— ed). II, 50-51, supra, 139 N.J. Martini category); composite C category involving I (including cases outside defendant’s A.2d 949 supra, 130 N.J. motives); 613 A.2d Marshall pecuniary III, defendant). In DiFrisco proposed (comparing eases III, II, II, Harvey opted to has Chew and now the Court Loftin “ particularly to its expertise, and generally to the AOC’s ‘defer comparison catego only one assignment of defendants unique ” II, 295, Ante at (quoting at 1130 731 A.2d ry____’ Loftin III, supra, 142 N.J. DiFrisco 327, (citing 157 N.J. at A.2d 129 724 omitted)). 442) (citations This deference is ironic 167, 662 A.2d at “danger that there is past acknowledgement light of the Court’s all characteristics of attempt in advance ‘any to define inherent case’ critical facts of defendant’s capture the [to] a murder case defen- distinguish individual fail to between that ‘would because ” 164, III, 442 supra, 142 N.J. at 662 A.2d DiFrisco dants.’ 949) (other II, 24, A.2d supra, 139 N.J. at 651 (quoting Martini omitted). Indeed, stating that it past, even when in the citation 167, expertise,” see id. at 662 generally to the AOC’s “defer will adjustments to the AOC’s 442, has allowed A.2d the Court 170, 442 id. at 662 A.2d see necessary, categories when (‘Williams’s comparison group] is defendant’s [from exclusion jury rejected pecuniary the the grounds that justified on trial.”). Although defen- penalty factor at the aggravating motive all other death- realistically compared to cannot be ease dant’s 436, supra, 157 N.J. defendants, at 724 A.2d see eligible Loftin solely J., group (Handler, limiting comparison dissenting), fails to a limitation subcategory is too restrictive. Such E-l to the in the same com- cases factual similarities between recognize the indeed, in others. posite category, from by defendant factually proposed eases Adding the similar dispropor- E-2, E-3, G, highlights the categories,19 B Aand majority to all 126 cases agree defendant with the compare 19 I 1131; A.2d at but ante at would be see classified as E cases impractical, State and cases minimum, examine all the should, by proposed the Court - tionality supra of defendant’s sentence. See 731 A.2d - at 1131 32. A close examination of the facts of each case renders

problematic the Court’s conclusion that because of the differences distinguish E-2, defendants E-3 and G-3 cases from Harvey, provide insight “such cases little propriety into the of the jury’s case, decision in this inapplicable proportion- and are to our ality review.” Ante at 731A.2d at 1132.

3. The Court category concludes that the E-l defendants are distinguishable from defendant’s and therefore defendant has not made a disproportionality. case for See ante at 731 A.2d at strongly 1179. I disagree explain disagree- the basis for that analysis ment a detailed compared of the cases.

Defendant compared first to Rigoberto Walter Gerald and Mejia, only other two defendants in E-l subcategory who death, were sentenced to currently both of whom are serving life First, sentences. majority concludes that defendant is more blameworthy Mejia than both and jury Gerald because the found a they rational basis that only intended bodily inflict serious injury victims, Harvey on the while kill Schnaps. intended to Irene addition, Ante at at 1141. In points the Court out A.2d jury that the found that Gerald suffered from emotional distur defect, bance and mental disease or expressed that he had re morse, Gerald, that his father’s death affected that defendant used enough the defendant to determine which are similar to defendant’s factually Following case to warrant inclusion in the I do not analysis. approach, into several of the incorporate my defendant, cases analysis includ- proposed by ing B-categoiy convictions) (prior one defendant murder and all of his proposed (sexual C-categoiy assault). Barring defendants of defendants any misplacement categories, ( discussing in these see 731 A.2d at 1185 supra B- why categoiy class), defendant Godette should be included in defendant's comparison agree general finding I with the Court’s these of cases are too types meaningfully dissimilar to defendant’s to contribute to our re- proportionality view. See ante at 731 A.2d at 1130. significant prior record. had no that Gerald drugs, and alcohol and See ibid. suspect given Harvey to Gerald is comparison

The Court’s did and that the State was reversed death sentence that Gerald’s anything, the If again on retrial.20 penalty death not seek the Harvey’s sentence be- disproportionality highlights ease more demonstrate, many ways, that Gerald cause the facts defendant, concluded yet prosecutor blameworthy than capital prosecution. worthy of a second was not the case to steal a into a house co-defendants broke and his two Gerald for some observing the household They set. had been television and entered accord- time, of inhabitants they knew the number so and three intruders plan. There were ing to a formulated three (the not self- two men were victims, helpless all of whom were old; fifty-five years sufficient, years old and one eighty-five one weapon). had no Gerald care of them who took and the woman breaking in. The before of the victims’ vulnerabilities knew of all face, stomped on and threatened in the punched was woman including contusion's injuries, knife, suffering serious numerous result, hospitalized for she was face, As a neck and chest. of the weeks; The for six jaw wired shut days and her twelve by all having been beaten killed after the men was younger of then, in the face with finally, struck perpetrators three nose from his broken drowned the blood set. He television unclear It was swelling to the brain. suffered contusions (evident the head by stomp a foot broken the nose was whether face) by set. or the television the victim’s print across a' sneaker dragged beaten and victim, eighty-five-year-old, was The third caused to his face bed, suffering and lacerations bruises from his involved multi- comparison problematic Gerald’s crime because is also The Harvey’s willingness compare to Gerald's case ple victims. The Court’s other, A-category, multiple-victim request spite denial of defendant's of its supra comparison, suspect. See be included in defendants ' at 1185. A.2d by lamp blunt-force blows with a and his own cane. He died shortly after the incident. prior history comparison

While Gerald’s criminal is minimal in Harvey’s addiction, drug and he jury suffered from made no findings regarding Harvey’s a troubled childhood as in case.21 In addition, jury that sentenced Gerald to death believed that his c(4)(c) vile, crime outrageously wantonly finding or aggra vating finding surely factor. This counteracts the Court’s conten only bodily tion that because injury, Gerald intended serious he is culpable less than defendant. See ante at 731 A.2d at 1177. c(4)(c) Though the State submitted aggravating factor to the case, jury Harvey’s jury did find his not crime be outrageously wantonly or vile.

Further, (two died) there were three resulting victims of whom crime, from Harvey Gerald’s whereas Although had one victim. Harvey murderer,” the Court describes calculating as a “cold and ante at 731 A.2d at there is more evidence that Gerald’s premeditation crime involved calculated exploitation and the of the helplessness of his three victims. part Confrontation was plan Gerald’s because he knew the inhabitants were home. Har- vey, contrast, upon seems to have merely by come his victim chance. only

The other E-l Rigoberto defendant sentenced to death is Mejia. Mejia’s Inclusion of sentence as a death sentence is also appropriate, given not that on only retrial he received a life sentence because his crime was death-eligible. deemed not Mejia’s AOC chose to exclude non-death-eligible, life sentence database, yet from the the AOC included his death sentence. Mejia’s death-eligible Either case is and therefore both his life and included; death sentences should be or his case is non-death- eligible and both sentences should be excluded. disregard The Court's on Gerald’s childhood and its concurrent emphasis defendant's, context, in this is therefore all the more See problematic. supra at 390-98, 731 A.2d at 1182-86. in hotel Garcia a accomplice attacked Balbino

Mejia and an ran, Mejia accomplice chased and his basement. When Garcia bedroom, Mejia gun at Garcia and pointed a where him into Mejia pistol, take the tried to When Garcia one of his relatives. it, fracturing He then his skull. him in the face with struck of the victim’s him within inches and shot from chased Garcia back. defendant, that of similarly childhood to

Mejia troubled had factor, mitigating but finding the catch-all jury’s of resulting Mejia defendant’s. armed aggravated than his crime was more He specific victim. sought to confront pistol with a himself him in enough to catch person unfortunate simply kill the did not and shot him threatened an individual robbery; of a he the middle aggravating jury’s failure to find away. ran The when he important is escape detection shot Garcia factor defendant is indis- finding that the factor this demonstrates to note: either (to lack of evidence spite of the criminately applied defendant Mejia spite of the but not to escape detection that he killed to did, shot Garcia that he since he overwhelming evidence seemingly cruelty with running away); or it demonstrates he as he ran shoot Garcia as Mejia out his crime —to carried which detection, a conscious only have been away, escape could if not to Harvey’s suffer, killing’s to kill for sake. Garcia choice to make choice. this kind of calculated not demonstrate case does done, Mejia nor neither Gerald Finally, all is said and when crimes, therefore, Even, characters if their on death row. defendant’s, for the than culpability less indicate blameworthiness these cases is proportionality on finding its to base Court life received culpable less defendants The fact that suspect. deserves culpable more defendant not mean that a does sentences death. of defendant’s case comparison its majority reduces characteristics of simple discussion E-l cases to a

other themselves. defendants, any of the crimes omitting examination certainly Although part factors an important these are our analysis, Court’s failure to examine the crimes renders its When, here, proportionality startlingly incomplete.22 review as death, the salient-factors results a low indicate incidence we everything must do we can ensure has not defendant been unfairly singled swpra, out. at Marshall 130 N.J. 613 therefore, especially A.2d is important, 1059. It that we examine cases, defendants, compare along and the of the with the facts lengthy gruesome might however and that endeavor be. The by are, question, crimes committed these E-l defendants without by defendant, than more heinous that committed all of E- and the serving 1 currently defendants are life sentences or less. perhaps stage analysis The Court tries to set the for its truncated when it proportionality describes the nature our review: or “[Procedural offender- presumes penalty proportional oriented review that the death is to the offense defendant, review, and focuses on the not the crime committed.” such In 290, question punishment "whether fits criminal." 731 A.2d Ante at II, 129, 1059) (additional (citing Marshall 130 N.J. at 613 A.2d omitted). quotations

internal and other citation certainly one, Although it is true that here is our review not a substantive is, it is not offense-oriented as described the Court in see Marshall 130 N.J. 127, ("[T]he proportionality 613 A.2d 1059 or substantive offense-oriented punishment particular review looks whether the to of death is for a excessive offense."), procedural specifically incorporates only our review not the charac defendants, teristics of the but also the circumstances of the Such crime. factors particular out, as the violence or terror with which the crime was carried involved, premeditation knowledge and the defendant's of non-decedent victims examining culpability. are critical we are when the defendants' See ante at haips 731 A.2d at 1173-74. The Court on these factors in its assessment of 379-81, 1175-76, Harvey, see ante at 731 A.2d at and then fails to discuss them regard at all most of the other defendants. really suggest Does the Court mean to that if a murder were carried out with particular victim, depravity against helpless something insignifi- torture and so immaturity justify cant as the defendant's would a life if sentence the death- sentenced defendant under review out his carried murder with no torture or premeditation By failing compari- but was older? to examine the of the crimes here, majority exactly son cases does that. See ante at A.2d at 1143 (citing age only Harvey’s as the difference between murder and those of two defendants, Phillips, age Ploppert, age Lance Charles whose crimes defendant’s). significantly were more brutal than apart- gained entry to an and his co-defendants Alexander Will home with two girlfriend and his were in which victim ment pushed the Upon entry, one of the defendants children. small flee, defen- attempted floor. man to the When the girlfriend back, killing him. then him in the The defendants shot lower dant ordered into another room and the woman her children forced they apartments stay on the while raided other floor them capitally building. prosecuted was not Alexander prison. to life sentenced Britton, against seek the death

Jerry whom the State did not young apart- through the window of woman’s penalty, climbed when she her times with knives ment and stabbed sixteen two head, neck, police. wounds in the began to call the The stab were shoulder, off in the and one of the knives was broken back appeared to have been beaten. neck. victim also victim’s he her so that hoped a friend that he had killed Britton told habit, no had a but not a witness. Britton heroin she could be prison. life in problems. He was sentenced to mental health robbery accomplices for planned a with two other David Brown drug to money. They apartment to a drug and beer went dealer’s ensued, pulled argument him. Brown and rob an confront When body. multiple knife all his and stabbed the victim times over out a case, in and Brown penalty not did seek the death The State thirty-five years prison. was sentenced eighty-two-year-old woman’s Brunson into an Alphonso broke woman day she killed. The for the third time on the was home later, to the days having received several blows found two was to two had death. Brunson sentenced which caused her head fifty years. terms life and concurrent co-defendants, by en- Caviness, accompanied two Duane Vance man, up him and fífty-four-year-old tied apartment an of a tered dead on The man was later found him a baseball bat. beat with wounds, hands and feet floor head his apartment with severe his bound. permitted plead guilty felony-murder Caviness was burglary/robbery. and two counts of He was sentenced to life.23 Albert Carrow Fains murdered his neighbor, wheelchair-bound Williams, by striking Arthur him in the head thirteen times with a claw buy cigarettes, hammer. Williams had sent him Fains to marijuana, following morning sandwiches and but the the victim was found on the floor knife in his back and blood everywhere, including on plastic bag the chairs and A walls. had pulled been over Williams’s head. Williams suffered three frac- skull, tures on right side of bridge a wound on the of his culpability asserting The Court minimizes Caviness’s that the defendant’s bat, own confession indicated that he did not have the baseball his co-defendant effectively did. Because the Court asserts here that Caviness’s case should perhaps death-eligible not be in the universe at all because of an own-conduct problem, only majority judgment" not does the fail to "defer to the AOC’s in the cases, categorization 317-18, comparison see ante at 731 A.2d at as it opinion, does in all question other instances in this it calls into Caviness’s pled guilty assumption sentence itself. If the defendant under the that he would trial, penalty face the questions death if he went to and the Court now his death eligibility, question it plea. must also the voluntariness of Caviness’s If the Court challenge is to make plea, this kind of to Caviness's it should remove Caviness’s him, death-eligible case Having from the universe. chosen to include it cannot successfully argue then death-eligibility distinguishes that Caviness's lack of his culpability Harvey’s. death-eligible level of purposes from Either Caviness is for of our review or he is not. Here, clearly review, scope proportionality Court has redefined the rendering judge jury’s it a re-examination of the or sentence rather than a mere II, quality-control. vehicle supra, Accord 157 N.J. at 724 A.2d 129 Loftin (Handler, J., II, dissenting); supra, see also Marshall 130 N.J. at 613 A.2d (Garibaldi, J., concurring part dissenting part) ("Proportionality appellate review is not a second process review nor a broad review of due concept concerns---- It ais narrow directed to whether the defendant received disproportionate imposed defendants____"). a sentence to that on other Although may engage the Court the AOC want to in this kind and/or of detailed analysis purpose defining cases, see, for the comparison e.g., class of Chew (Handler, J., dissenting) 159 N.J. at (arguing 731 A.2d 1070 Walter group Williams should not be included in of contract killer defendants improper jury because jury’s finding trial instruction led to of contract killer factor), aggravating entirely inappropriate part it is precedent- to do so as of its seeking review once the comparison group. case has been included in the head, nose, the of the the eight other on side and wounds to the cause death. of which were determined be combination to Fains sentenced life. was rang seventy-five-year-old neigh- his the bell at

Carlton.Felder door, pushed opened the Felton her apartment. When she bor’s side repeatedly in the left of her stabbing inside and her started grabbed gold from h'er neck and chest. then the chains He murder, money. At of the to look for the time proceeded upstairs babysitting three small children. State did the woman was to permitted plead and he prosecute capitally not Felder was manslaughter, robbery burglary. and He guilty aggravated to fifty years. to was sentenced through a entered home the base-

Franklin Flowers Hudson knife-point the home- gagged tied and up ment "windowand sixty-five-year-old him. owner found When owner’s who him, home, leaving the own- Hudson confronted boarder returned gave money Hudson his up. er tied Even after the boarder dead, yet keys, multiple Not stabbed him times. Hudson run chased him and upstairs, to Hudson boarder tried hitting by repeatedly him over kicking him down him knocked not die from his a baseball The boarder did head with bat. permitted plead injuries until over a month later. Hudson was felony was sentenced to life. guilty to murder and he in the back door to Timothy Paul Lee took a knife kicked the man woke from sixty-five-year-old man. When the home of chest, killing noise, in the him. Lee him defendant stabbed felony and was sentenced permitted plead guilty to murder was to life.24 might suggests Although have been Lee’s mental the Court that capacity drug murder, he his see ante to a addiction when committed due impaired ("There ... in ... ... would allow 317-18, at 1142 were facts Lee 731 A.2d wrongfulness jury of his to conclude that defendant’s appreciate capacity intoxication.”), Court or defect or conduct mental disease was impaired was Lee trial, evidence. evidence indeed

misconstrues the At presented however, victim's house with heroin; defendant, broke into his addicted to Dwayne the Mann two co-defendants broke into home of a robbing up, man with the intention of him. the man woke When head, killing him in defendant shot the him. was Mann sentenced years to prison. two consecutive terms of life and five Mendez, attempting robbery, lay Incenzio in wait for the approaching ninety-five-year-old woman who owned the farm on her, Coming which up he worked. behind defendant used a stick to knock the woman with hits to The down three the head. victim get up, point tried to which the defendant kneed her side and injuries. struck the her in neck. The woman died from the capitally prosecuted Defendant was and was to sentenced consecu- life, twenty years years. tive terms of and ten Phillips accomplices Lance and his stormed a house armed with guns hoping kilogram Phillips steal a of cocaine that had seen at raid, During Phillips the house earlier. the course of the and his (a everyone man, co-defendant twenty-year-old shot the house girlfriend, his a seventeen-year-old-girl, eleven-year-old and an girl). times, Phillips shot killing the man five him. He also shot seventeen-year-old in the arm. One of the co-defendants shot eleven-year-old in prosecutor not chest. did seek the against penalty Phillips death he and was sentenced consecutive twenty years. terms of life and Ploppert

.Charles and a co-defendant knocked on the door of a man, Ploppert knew, blind immediately whom with the intention hitting him on the head with a bat in to be baseball order able to stealing money buy the intention so from her he could The AOC heroin. states, specifically, "Timothy feeling up Lee narrative ... woke the need for Therefore, drugs.” drugs the defendant not on when he committed the presented murder. There was no other evidence at trial of mental or .disease states, fact, good defect. In the AOC narrative "D was in health has no - Significantly, problems.” present any mental health the defendant did not expert indicating at trial evidence that he was unable to control his actions addiction, as, drug example, because of his defendant Walter Gerald had. conclusion, then, The Court's mental state Lee's at the time of the murder distinguishes Harvey highly application from him flawed and affirms disparate similarly sentences for two situated defendants. identify Ploppert himself The man forced before rob house. so, man him Ploppert door. did let open he would When man, chatting amicably with the his in. After co-defendant him, by hitting him him Ploppert beating unconscious attacked Ploppert leaving, piled Before kicking with his fists and him. victim, over spread lighter on fluid him and wood the unconscious house, capitally Ploppert and then set a fire. tried around the jury and the to life. sentenced apartment uncle Reigle into the of his and aunt

Thomas broke stir as money. Hearing steal his aunt in her bed he was looking purse, Reigle pipe. a through her beat her with She' Reigle his room and beat him to survived. then went into uncle’s sought prosecutor The the death pipe. death with the same Reigle jury to life. penalty and the sentenced the broke into home of a Anthony a co-defendant Szadorski met at Alco- seventy-six-year-old woman whom Szadorski had an jumped the woman out of bed Anonymous meeting. holics When bedroom, her upon entering her he stabbed several Szadorski’s away. as to crawl continued to do so she tried times. He gun his for a BB that he used asked co-defendant Szadorski then eventually died from her to beat woman over the head. She penalty against injuries. prosecutor not seek the death The did sentenced to life. Szadorski and he was Williams, eight-year-old a Gerald co-defendant Williams’s they apartment happened passing to be daughter entered an Inside, they fifty-one-year-old found man through ajar door. a an Williams set turned off the television to steal who awakened when a punched the man threw it. The and Williams co-defendant beating against him man’s and started cover over the head yelled help, man free and at which window sill. The broke hit the up set and man over picked time Williams the television set and threw put the head it. He then down television with stories died. man The man fell three out of the window. defendants, significant criminal Williams had a Unlike the other as an adult history, having terms incarceration served twelve juvenile. prosecutor penalty and a The did not seek the death Williams was sentenced to life. Williams, handgun,

Herman armed with entered a home planning family one of the rob members whom he had observed. Upon entering, Williams found six residents there. He hit one in handgun got the face his struggle and then into a with an older, man an handicapped who had artificial arm. After the man hand, successfully gun knocked out Williams’s the defendant picked up gun man in and shot the the chest. The man died days seventeen later in hospital. prosecutor did not seek penalty against the death Williams. The defendant was sentenced to life.25 sum, many victims,

In multiple these cases involve and those not, that do involve Harvey’s. more extensive victimization than exception With the of Franklin Flowers Hudson and Gerald Williams, personal- all of the defendants either knew their victims ly or had them enough observed know of their vulnerabilities. Many selected, presumably, of the victims were even because of wheelchair, blind, (cid:127)their one vulnerabilities: was in one was one (one handicapped, two fifty- were unable to be self-sufficient old), five eighty-five-years and one two were women in their seventies, man, eighty-two-year-old one was an ninety- one was a woman, five-year-old an eleven-year-old girl. one was The fact that all of the in serving defendants these are cases life Harvey sentences boggles faces execution the mind. Defen- definitely dant is among most not culpable the one or two most category, defendants in his as the salient-factors test indicates he 25The Court that Bronson is the defendant with a white victim who Alphonso only minority was not capitally prosecuted. they drugs. found When search them could

the defendants building the none, couple take them around made the defendants a woman behind apartments. When help gain access them in, defendants to let them apartment first refused door of the They them. brought couple inside with kicked in the door bedroom, ‘Why asked are by man in the who a were confronted Dollard shot the man nothing here.” you doing this? There is man, expressing still alive and immediately in chest. The have to do asked, you do that? You didn’t incredulity, “Why did The man from shortly afterward. He from the wound that.” died jumped out the window hall then couple encountered capitally charged and being Dollard was not shot. from fear a life sentence. received

n seventy-two-year-old of a dinner at the home Larry Durden ate changed him if he the locks to have over woman who had offered during evening, Durden stabbed At time on her doors. some object. of wounds to the ax-type a small She died the woman with groceries, the woman’s Dollard took forehead and abdomen. to life. Durden was sentenced television and a radio. his head goes on: Aaron Huff struck victim’s gruesome

The list moving. He stopped him until he coffee table and then beat on a neck, stabbed a man to life. Michael Suarez was sentenced lying position The victim was found the fetal and chest. back clothes and top on of blood-soaked the wall and bed between not seek the death wearing prosecutor did boxer shorts. to life. Thomas Wolfe slashed penalty and was sentenced Suarez from numer- three times and she also suffered a woman’s throat to life. puncture wounds. He was sentenced ous robbery, entry and murder All involved a forced of these cases category victim, in the E-l yet none of them was classified of one particular violence or terror. requiring Hart, burglary, robbery and was convicted of both Daniel who surely blameworthy category, is more placed in the G but was plan kill formulated a than defendant. Hart and a co-defendant they thought was a snitch. When twenty-three-year-old woman the woman confronted them in apart- the main entrance to her ment, Hart tried to pillow. smother her with a He then killed her by slashing stabbing thirty neck, her throat and her times in the head and back. prosecutor He took from her. The did not $25 penalty seek the death Hart fifty years was sentenced to prison. Godette,

William a B-category defendant who was convicted of felony robbery, murder and went to seventy-nine- the home of a year-old payment man to demand day. for work done earlier in the pay, When the man refused to pushed way Godette his inside and pounced on man. The defendant strangle then tried to his finally victim and by striking killed him him several times head with a hammer. permitted plead Godette was to guilty and was sentenced to life. robbery

Several A-category, cases classified as multiple murder highlight eases the disproportionality of defendant’s sentence as Significantly well. blameworthy more committing defendants murder in forced-entry robbery the course of a were not sen- tenced to death. Felix Diaz planned and his co-defendant robbery and murder of an younger older man who lived with a eight-year-old man girl. and an The defendants shot all three victims and burned their given bodies. Diaz was three consecu- tive life terms. Regan girlfriend’s and,

Peter broke into his mother’s house upon being by fifteen-year-old found girl, hit her five times over the head with a baseball bat until stopped screaming. Regan she girlfriend’s twelve-year-old then killed his by hitting sister her six times over the head with the same bat. He removed the dead girl’s clothing from the waist down in it if appear order make as there had been a sexual robbery assault. He was convicted of prosecutor penalty. Regau did not seek the death sentenced to two concurrent terms of life.-

Roy eighty-four seventy- Watson broke into the home of an nine-year-old couple on his street. He went into the bedroom and beat the man to death. The attack was so severe that Watson man’s man’s eyes. out the one of the The wife

knocked lens of her to death. up during the attack and Watson then beat woke jury consecutive terms penalty-trial sentenced Watson two of life. crime, brutal,

Harvey’s certainly pales comparison while victimization, in terms similar crimes in terms of and often other are given the of victims who of moral blameworthiness number the elderly handicapped or in the aforementioned scenarios and knowledge helplessness of premeditation of and of level commit victims involved. other life-sentenced defendants When ting robbery theoretically blameworthy category in a more are cases, comparison finding to the that added universe of the Court’s unjustifia proportionate more defendant’s sentence is seems even ble, by any pointing the Court is in out standard. While correct cases, require that we do not identical verdicts in all similar see 1143, Harvey placed ante at 731 A.2d at one of the culpable categories category least and no defendant in that but he on death for the articulate what now sits row. It is time Court to by disproportionate, it means rather than to continue to insist that only Only disproportionate. it knows when a sentence is not then moving by adding very it unable keep will be to line specific justify including facts of each case new defendant’s him increasingly growing proportionately-sen or her to the list of tenced defendants.

IV findings only I not principal believe the Court’s in this case are error, grave implications have us but the defendant before finding, again, to come. once and those In that the statistical presented models not reflect an risk of race do unconstitutional scheme, sentencing ignores capital discrimination our the Court only plays impermissible not hard that race an role in evidence charging sentencing procedures, general capital and evi- but clear, ubiquitous, poses us dence all around that racism is significant present particular, In evidence that risk. prosecutors juries significantly are likely more to charge with and sentence to death killing victims, black defendants white overwhelming. longer We must no ignore the serious risk that these singled defendants are out premium because of the our society places on white life degradation and its simultaneous minority system justice life. No operate can fairly long as as this risk exists. find, also,

I starkly this case underscores the fact that our proportionality individual process review is rife with subjectivity. Cooper (“[W]e See 159 N.J. at 731 A.2d 1000 acknowledge .process conducting precedent-seeking inherently subjective____”). review is Our methodology is devoid quantifiable the kind of standards that necessary provide are comparison real basis for against which to measure all defen claiming dants disproportionality. simply The Court has raised the bar for disproportionality case, with each new narrowing the comparison class of cases reducing the discussion of the cases cursory lump statements that together numerous defendants complete disregard for the facts of their crimes. This blatantly incomplete review obscures the Harvey’s arbitrariness of death relying sentence. nothing While on less than scientific certainty of race discrimination in response to system defendant’s challenge, ic any the Court has declined to define numerical cut-off disproportionality for frequency in analysis its in defendant’s proportionality individual review.

Proportionality very review is the last means available to us for correcting Yet, in capital sentencing. arbitrariness the Court’s review guided by seems almost to be an effort to proportion- find costs, ality at all rather than to root out disproportionality. Our very proportionality first portended review this inevitable result: majority sentencing and excuses the occasional depreciates treatment unequal attributing of similar defendants that to sentencer ... But that “mercy”

rationalization aberrational explains sentences, not aberrational death sen- life tences. (Handler, [Marshall dissenting).] II, 130 N.J. at 241, 613 A.2d 1059 supra, J., Here, groupings indicating in spite of the salient-factors never category is in a of who are almost defendant defendants death, effectively begun with the sentenced to the Court has expect to to would defendant be sentenced contention that we It unusual requires defendant to show circumstances death. warranting a life sentence order to achieve such a sentence.27 indeed to the burden does rest on the defendant’s shoulders While prove presumption proportionality a in favor of disproportionality, integral method of proportionality was never intended to be to our review. II recognizing dispropor

The Court in Marshall that in stated sentences, looking pattern are if an tionate we to see identifiable no explanation. life has been broken with See sentences (“That A Marshall 130 N.J. 613 .2d 1059 [two spared other were their lives does not establish defendants] Here, life-sentencing killings.”). pattern such there is pattern without a sentences that broken doubt life has been Harvey’s are with death verdict. Because there no defendants execution, Harvey’s category salient-factors who await we would expect Harvey himself receive would also a life sentence. Although only category awaiting fact that he is the one in his proportionality, death cannot alone denote see id. at 613 A.2d (“[S]imply may because Marshall be the first does not mean statute.”), disproportionate that his death will be under our we distinguish must demand some defensible him from the reason arbitrary single others —to him out for death —in order to avoid an so, trampling very sentence. The Court fails do on the heart of equal protection our Constitution’s clause: sentencing A which in differential system similarly results treatment capital situated felons has similar capital classified felons effectively differently rights ... their to life Where sentences cannot be respect rationally capital distinguished significant from a of cases where was a life number the result than the failure of human sentence, more is irremediable an present imperfect high 27 I contend, believe in fact here, defendant has met this burden but case, that such a hurdle is not the one to raise. any appropriate sentencing When this occurs, has system. capital become constitution- system ally arbitrary. (Handler, dissenting) (quoting [Id. at J., A.2d Gary Goodpaster, Criminology Judicial Review Death Sentences, 74 J.Crim. Law & 786, 788, of (1983).)] 802-03 This case compellingly any demonstrates more than to date the errant standard which the Court implement has chosen to our final against defense arbitrariness: “a death dispro sentence is portionate if other defendants with similar general characteristics ly receive committing sentences other than death factually similar offenses unless the Court through subjective concludes its precedent intuitive examination that the sentence is Id. fair.” (Handler, J., “standard,” 613 A.2d 1059 dissenting). This course, defies the Court’s goal maintaining oft-stated consis “[Tjhere tency: justice can degree be no without a predictable uniformity sentencing.” (Handler, J., Id. at 613 A.2d 1059 (quoting 369, 379, Hodge, State v. 95 N.J. 471 A.2d 389 dissenting) (1984)). employing review, In faulty subjective its method of managed the Court has clearly disproportionate to find a sentence proportionate.

I, therefore, joins dissent. Justice STEIN in the conclusions III, 2B, reached Point opinion, and 3 of this and also dissents. STEIN, J., part concurs in part. and dissents in For Justice PORITZ and Justices affirmance —Chief POLLOCK, O’HERN, GARIBALDI and COLEMAN —5.

For reversal —Justices HANDLER and STEIN —2. notes "Herman Williams victims shot his to death. viciously However, Williams was characterized as retarded.” This character- "culturally distinguish ization alone should not have the from Williams. capacity Harvey justification It finding does not an excuse or in the a provide of mental way testifying disease or defect would. The doctor stated that Williams clearly "not retarded but retarded." Without mentally further culturally explanation meaning justify term, of this I fail to see that it alone should term 45-year for Williams and a sentence imprisonment death for Harvey. in only should be order to be sentenced to death. Is the differ- Harvey ence here that is black and his victim was a white data, supra (noting woman?26 See 731 A.2d at 1131 capitally prosecuted five of six transracial eases were and three of though those five resulted death sentences even transracial only twenty-seven percent subeatego- cases account for of the E-l ry). only hope explanation. I can that this is not the The Court provides no other. comparison When the universe of cases is extended similar E-2, E-3, G, B categories, holding eases and A the Court’s implausible. becomes even more DeJesus, defendant, an E-2 apartment Jesus entered the of a forty-nine-year-old living woman below him. He stabbed her to body death and then set her bed on fire with her on it. The remains were identified with her dental records. DeJesus stole jewelry. capitally some He was not tried and received consecutive fifteen-year life and sentences. Wayne defendant, Busby, certainly an E-3 should have been given classified as an E-l Busby defendant the facts of the case. apartment into seventy-four-year-old broke of a woman who watching lived behind his residence. been prior He had her to the try break-in to to discern when she was home. When the woman half-dressed, unexpectedly, came downstairs the defendant hit her face, ribs, strangle broke her and used a broom to her to enough death. He used force break the broom handle. While being strangulated, fight Busby the woman tried to off scratch- ing camera, him Busby money, about the neck. took film and perhaps clearly other particular items. This case involves violence Busby or in prison. terror. was sentenced to life apartment Thomas Dollard and two co-defendants an. entered building They in search of someone to rob. encountered two people pants on a stairwell and forced them to take their so down

Case Details

Case Name: State v. Harvey

Court Name: Supreme Court of New Jersey

Date Published: Jun 3, 1999

Citation: 731 A.2d 1121

Court Abbreviation: N.J.