State v. Martini

651 A.2d 949 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW v. MARTINI, SR., JOHN DEFENDANT-APPELLANT. Argued January 1994 Decided 1994. December Smith, Deputy Mark H. B. Assistant Friedman and William (Zulima Defenders, argued appellant Public the cause for V. Farber, Defender, attorney). Public Zwillman, General,

Craig Deputy Attorney argued the V. cause (Deborah Poritz, respondent Attorney for T. General of New Jersey, attorney). opinion by of the was Court delivered

CLIFFORD, J. Defendant, Martini, Flax, kidnapped Irving John a Fair Lawn businessman, $25,000 receiving and held him for ransom. After by shooting him three money, killed Flax

the ransom defendant juryA extremely range. close in the back of the head at times purposeful knowing murder his own convicted defendant of or murder, conduct, weapons offenses. felony kidnapping, and two trial court sentenced penalty-phase proceedings After the purposeful knowing or murder and to defendant to death for the murder, felony thirty-year parole with a bar for the life term also received a consecutive merged those sentences. Defendant ineligibility twenty-five-year period parole life term with a weap four-year terms for the kidnapping, and two concurrent convictions, except This Court affirmed defendant’s ons offenses. sentences, handgun permit, and his possession for of a without Martini, State v. imposed kidnapping. for 131 except for that (1993). request granted defendant’s N.J. 619 A.2d 1208 We sentence, see N.J.S.A. of his death proportionality for review 2C:ll-3e, disproportionality. find no and now

TABLE OF CONTENTS 16 I Facts................................................. 20 Proportionality II Review................................. ............................ 23 A. The Universe of Cases B. Method of Classifying 24 Cases ....................... 28 Comparison III of Cases.................................. 29 Frequency Approach.......................... A. The ...................... 33 1. The Test SalienL-Faetors Numerical-Preponderance-of-Aggravating~ 2. The and-Mitigating-Factors 38 Test.................. 41 Test................... 3. The Index-of-Outcomes Frequency-Approach 45 4. Conclusion................ B. The Precedeni^Seeking Approach................... 46 48 1. Relevant Factors.............................. Precedeni^Seeking Approach...... Application 51 2. Arguments........................ 51 a. Parties’ 54 Cases................ b. Summaries Similar Non-Stranger Kidnapping.............. 54 i Stranger Kidnapping................... 58 ii Principals............ 59 iii Contract>-Murder 65 iv Contract Killers....................... Non-Robbery Pecuniary-Advantage v Other 72 Killers.............................. Culpability Analysis ......... 74 c. of Defendant’s Comparison to Defendant’s d. of Similar Cases 76 Case................................... 3. Other Cases.................................. Arguments...................................... IV Other Conclusion............................................ V I

FACTS Martini, supra, 131 N.J. facts are set forth detail 191-207, facts that are repeat here those 619 A.2d 1208. We proportionality review. to our relevant Jersey to New from Martini returned In November Afdahl, for whom defendant had girlfriend, Therese Arizona. His Using him. a credit thirty-nine years, accompanied his wife of left friend, apartment rented an from a defendant card borrowed money, Lacking defendant the friend’s name. Fairview under friend, Doorhy, quick advice on a sought from another John Doorhy, dwindling supply of funds. replenishing his method of having large noticed having recently worked at Flax’s home house, suggested in the and several bankbooks amounts of cash Flax, Flax kidnap acquainted defendant with the that Martini driving exchange Martini family’s morning schedule. that defendant giving him written directions Flax’s house there, Doorhy accepted defendant’s to return would later use anticipated money that defendant percentage of the promise of a receiving kidnapping. from retrieved from kidnapping, defendant preparation for the him, holding for Doorhy had been

Doorhy’s house a revolver that January Jersey City. On another revolver in purchased house. When Flax came and Afdahl drove to Flax’s Martini house, and called Flax alighted from his car of the defendant out used, formerly having been by nickname that he knew Flax had thirty years previously. Flax asked him some acquainted with lied, saying Army. had been in the Defendant defendant whether cup they to a diner for a suggested go in Flax’s car “yes,” and coffee. car, pulled men Martini agreed. Flax After the two entered revolver, being he recently-purchased told Flax that was out his Plaza kidnapped, him to drive to a Garden State and directed them. After both cars parking lot in Paramus. Afdahl followed lot, car Flax into defendant’s had reached the defendant ordered apartment. and drove to the Fairview wife, place call his then bound Flax and Martini made Flax alive, she that if wanted to see her husband told Mrs. Flax she $100,000. give Defendant also threat- would have to defendant police. kill and her if she notified the ened to both her husband if again p.m. at 1 to see Mrs. Flax had raised .the Defendant called money. said that she could not obtain ransom When she cash, p.m. call back at 6 to see much Martini he said that he would $25,000. re- Throughout the call defendant if she could raise kill both the Flaxes. peatedly threatened to afternoon, police placed taps on Mrs. Flax’s During the $25,000, agents Flax withdrew the F.B.I. telephone. After Mrs. p.m., defendant numbers of the bills. At 5:30 recorded the serial money, delivery the ransom again, arranged the called if kill the Flaxes again that someone would come to threatened the conversation. arrested. The F.B.I. recorded defendant were thereafter, hysterical Shortly Flax received a call from her Mrs. husband, give money. begging her to defendant money Martini dropped off the arranged,

As Mrs. Flax him, defendant, but fearful picked up. agents it F.B.I. followed Bronx, followed, agents managing to lose the being drove into the to the in traffic. He returned during the course of an hour’s drive victim, whom apartment and retrieved Afdahl and Fairview lot, parking Plaza to drive to the Garden State defendant ordered arrived, they parked. When defendant where defendant’s ear was because, head, defendant Flax three times in the back of shot claimed, on opened placed door and his foot Flax had the driver’s escape. feared that Flax would ground, and defendant ear, his own car onto body in the Martini drove

Leaving Flax’s gun his and his Ferry, from which he threw both Island the Staten keys to car into the New York Harbor. He then drove victim’s car, Afdahl, a disposed arranged of the for the Bronx with he had ride back to Fairview from the friend whose credit card using. been 24, 1989, day, January security guard

The next a discovered body parking in his car Plaza lot. That Flax’s at the Garden State afternoon, acquaintance on an of Martini identified the male voice taped telephone conversation Martini’s. flyer

Alerted that defendant and Afdahl were wanted Arizona, police in Fort Lee connection with double homicide and, carrying bag, leave a walk to a saw the two motel black station, placed at a where a call. telephone gas booth defendant arrived, it, whereupon and Afdahl When a taxi defendant entered $23,760 police bag them. A of the arrested search revealed recorded, bearing the F.B.I. had the borrowed serial numbers that revolver, using, credit card that had been the second defendant just key they not and a motel that had left. Police did drug-related any signs in defendant intoxication. observe Miranda arrested, being being receiving warnings, After Afdahl, cooperate to consult with he with allowed whom advised do, gave police he the authorities as intended to defendant oral and his consent his motel written and statements to search apartment. his rented rooms and trial, expert pattern

At State’s forensic testified that spattering physical evidencé that Flax blood other indicated range shot at a close that the victim could not have had been so opened placed ground foot on the as defendant the door his physician claimed. A whom Martini had consulted on had 12, 1988, that he had evidence of December testified observed no objection telephone Mrs. Flax without cocaine use. testified Finally, a conversations with both her husband and defendant. who had from read them police officer taken statements defendant record. into the which, habit, his cocaine presented

Defendant evidence of Afdahl, had ten-year prostitute, affair a former to addition his claimed, and, up marriage, had diminished defendant broken his knowingly. or His capacity purposefully his his crimes to commit “unquestionably” under expert testified that Martini was defense cocaine, give opinion not an but witness could the influence of defen- degree probability whether within reasonable medical during shooting. knowingly had or purposefully dant acted had, expert that defendant within The State’s rebuttal testified purposefully acted or degree probability, reasonable of medical shooting. knowingly during the penalty jury guilty on all counts. At the The found defendant murder, knowing sought to purposeful for or State trial c(4)(f) (murder escape to detec- prove aggravating two factors: (murder tion), kidnapping). c(4)(g) during the course c(5)(a) (extreme mental mitigating five factors: Defendant offered to to constitute a defense disturbance insufficient or emotional (diminished c(5)(d) c(5)(c) defendant), capaci- (age of prosecution), (fur- intoxication), defect, c(5)(g) ty or or due mental disease prosecuting another nishing assistance to the State substantial factor). c(5)(h) (the murder), The trial person for catchall c(5)(g). granted mitigating factor court the State’s motion to strike his drug of his and its effects on Martini evidence abuse offered concerning rebuttal evidence personality, and the State offered defendant’s character. beyond jury aggravating factors a reasonable

The found both (extreme c(5)(a) mental mitigating factors juror No found doubt. disturbance) c(5)(d) (diminished capacity). Six or or emotional c(5)(c) (defendant’s age), and six jurors mitigating factor found factor). c(5)(h) (the jury unanimously found found catchall factors, together or considered aggravating whether individually, factors. outweighed mitigating judgments of and sentences of death

From the conviction offenses, defendant prison terms for the other the murder and 2:2-l(a)(3). Court, R. affirmed directly this We appealed death, defendant’s conviction for murder and the sentence of but possession reversed the conviction for handgun of a without a permit prove for failure to an essential element of the offense. 191, 320, 131 N.J. at 619 A.2d 1208. We further vacated defen kidnapping dant’s term, sentence it statutory because violated the resentencing remanded for on that count. Id. at A .2d 1208.

II PROPORTIONALITY REVIEW purpose proportionality review is to determine specific whether a defendant’s death disproportionate. sentence is capital See N.J.S.A. 2C:ll-3e. A sentence is excessive and thus disproportionate if other defendants with characteristics similar to those of the defendant generally under review receive sentences committing other than death for factually-similar crimes in the jurisdiction. 334, same Bey, 343, State v. 137 N.J. 645 A.2d 685 (1994) IV); Marshall, (Bey 109, 131, State v. 130 N.J. 613 A.2d (Marshall (1992) II). 1059 We have declined to set a numerical standard to point determine at what “generally” defendants re death, II, ceive sentences of supra, 152-53, Marshall 130 N.J. at 1059, 613 A.2d because such a unaccep standard would introduce table proportionality arbitrariness into review.

Proportionality procedural, review is a or “offender- oriented,” safeguard is, defendant, it focuses on the not on —that II, the crime supra, 126-27, committed. Marshall 130 N.J. at 613 focusing A.2d 1059. In offense, on the offender and not the that presumes form of crime, review proportional that death is to the Harris, 37, Pulley 43,104 v. 871, 876, 29, 465 U.S. S.Ct. 79 L.Ed.2d (1984), 36 and is therefore different Eighth from the traditional contrast, Amendment substantive In review. substantive review offense, offender, considers the not the to determine whether the punishment is excessive for Georgia, the crime itself. Coker v. 433 584, 592, 2861, 2866, 982, (1977). U.S. 97 S.Ct. 53 L.Ed.2d 989 For

21 constitutional, facially magnitude of the a sentence to be goals of punishment measurably acceptable punish must serve the “grossly degree to the may proportion” ment and not be out of 2909, 153,173, 2925, Gregg Georgia, harm. v. 96 S.Ct. 49 428 U.S. (1976) 859, (finding per does L.Ed.2d that death sentence not 875 Coker, Amendment); supra, 433 at Eighth se violate accord U.S. 592, 2866, (concluding death S.Ct. at 53 L.Ed.2d that for grossly disproportional and excessive crime of sentence is II, 129, (tracing rape); supra, 613 A.2d 1059 Marshall 130 N.J. review); Supreme development of see U.S. Court’s substantive Florida, 797, 3376, 3368, 102 S.Ct. Enmund v. U.S. (1982) 3378-79, 1140, 1151, (finding Eighth 73 L.Ed.2d who prohibits capital Amendment sentence for defendant aids felony others but abets in course which murder committed kill, kill, killing or attempt who himself or intend does not place). force take use lethal Georgia, v. response is a to Furman

Proportionality review (1972), 408 U.S. 92 S.Ct. 33 L.Ed.2d 346 which reversed sentences, rape. three death for murder and two one II, concurring supra, this cited Marshall Court Justice Stewart’s opinion that the whether to sentence defendant to state decision jury, capitally, if left to the unfettered discretion of a violates “ ‘wantonly and Eighth the sentence can be Amendment because ” * * * 125, A freakishly imposed.’ N.J. at 613 .2d 1059 130 Furman, 2762-63, 310, supra, at at (quoting 408 U.S. 92 S.Ct. review, (Stewart, concurring)). Proportionality L.Ed. 2d at 390 J. discretion, jury is the results of which allows this Court to monitor way nor the required Eighth neither Amendment through constitutional. capital-sentencing to make a scheme which 44-46, 876-77, at supra, 465 at 104 S.Ct. Pulley, See U.S. However, Jersey’s permits capital- it New L.Ed.2d at 36-37. sentencing comply scheme to with dictates Furman Amendment, arbitrary prohibit and incon Eighth which 44, 104 penalty. at at application of the See id. S.Ct. sistent death 876, 70 L.Ed.2d at 36. goals

The of that kind review are ensure that a capitally-sentenced substantial distinction exists between and life- defendants; capital sentencing sentenced to limit to those cases aggravated that are sentencing most and in which death is the result; consistent, expected rational, promote and to and fair II, application supra, of the death sentence. Marshall N.J. 131, 1059; Baldus, Penalty Proportional 613A.2d David C. Death ity Project Report Jersey Supreme Review Final New 1991) (hereinafter 24, (Sept. Report). Court 24-25 Final disproportionality by burden is on the defendant to show estab lishing factually-similar similar defendants who commit IV, generally crimes receive sentences other than death. 343, 349, supra, impose 137 N.J. at A 645 .2d685. We that burden defendant, State, statute, on the not on the because the N.J.S.A 2C:ll-3(e), speaks proving disproportionality, terms of not proportionality. Id. at 645 A.2d 685.

We believe that misperception the dissent reveals a fundamental of the proportionality “system role of review. That review is not a validation,” post death-sentence 651 A.2d at but is penalty-phase jury’s instead a vehicle to ensure that the decision is insupportable. purpose not That stems from the mandate of the * * * statutory language Supreme itself: “the Court shall deter disproportionate mine whether the sentence penalty to the cases, imposed considering in similar both the crime and the Thus, defendant.” N.J.S.A. 2C:11-3e. our search is not for proportionality, goal but rather one in which our is to determine jury’s whether the decision to sentence a defendant to death is comparable appropriate capital to decisions reached in the cases in question our universe of cases. The is whether other defendants generally with similar characteristics receive sentences other than II, supra, death. Marshall 130 N.J. at 613 A.2d 1059. palpable The dissent finds “a proportionality bias favor of the bias, present, of a death sentence.” Ibid. if That does not stem colleague from what our describes as a “selective and convenient Rather, imposing rationalization.” our on the defendant the bur

23 statutory showing from lan disproportionality den stems the itself, as law. held much guage above. It is settled We discussed IV, 343, 349, supra, at 645 The dissent Bey 137 N.J. A.2d 685. “treacherous,” 84, nothing post A at or at .2d unearths new 989, contrary, attempts it rewrite simply On to estab here. the Therefore, jurisprudence. the statement proportionality lished proof on the put the burden of that the “Court is determined to 995, accurate, defendant,” 97, post although at A.2d hardly damning accusation.

Likewise, concerning first-impression mur the claims dissent’s Being first incorrect of the law. murder ders are statements “apparently given category er in of intentional homicide does not guarantee[ Post at proportionality of the sentence.” ] Instead, only weigh requires that we our at 996. that status A.2d capital other comparison of such a defendant with murderers categories. ap That light respective in the of the differences sensitivity certainty not of result. proach guarantees process, The Cases A. Universe of step proportionality first review is to determine

The case. compare eases we defendant’s universe of to which to limit the Legislature amended N.J.S.A 2C:11-3e in which a death sentence group those cases comparison to However, § actually imposed. L. c. 1. been has to it intended the amendment Legislature did not state whether 343-44, IV, Bey supra, 137 pending appeals. N.J. apply to IV, apply II and we declined In Marshall A.2d 685. others, reason, among appeals for the amendment those Legislature pending before the appeals were those defendants’ here: Mar pertains situation the amendment. same enacted 12, 1990, appeal and his on December tini sentenced to death was amendment. We the effective date pending was before to defen apply N.J.S.A amended will not 2C:ll-3e therefore proportionality review. dant’s

24 (AOC) responsible

The Office of is Administrative the Courts maintaining by for the data base of homicide cases used this Court proportionality developed review. It has its statistics based on Baldus, procedure Special created Professor David appointed by proportional- Master this Court to model for create a review, ity and on the that modifications thereto this Court outlined in employ Marshall II. universe of eases that we this compiled Report prepared by case is in the Martini the AOC. report 25, That cases collected to includes from 1983 June 1993. cases, death-eligible It penalty contains 298 125 went to of which trial, forty-two percent. Report a rate of Martini tbl. 3. Of the cases, penalty-trial thirty-eight sentence, 125 in a death resulted thirty percent. rate of Report Martini The overall tbl. 2. death- (38/298). sentencing percent Report rate is thirteen Martini tbl. 1. Classifying

B. Method of Cases establishing cases, comparison After the universe of we must sort in a Bey those cases data base. in Marshall II As IV, we approaches: priori use two an a determination and an empirical priori procedure requires analyze method. The us to cases according experience to features that has shown influenced IV, the decision to capitally. Bey supra, whether sentence 137 345, 685; II, 141-42, at supra, N.J. 645 A.2d 130 Marshall N.J. at empirical process A.2d 1059. In the we assemble life-sen identify tenced and death-sentenced cases to the characteristics that patterns sentencing determine capital of life versus II, sentencing. 142-44, supra, Marshall 130 N.J. at 613 A.2d 1059. approach juries That reveals which prosecutors factors IV, 345, consider supra, determinative. N.J. at 645 A.2d 685.

Any attempt to define advance all of a characteristics murder “capture case,” the critical facts of [a] defendant’s as the do, urges post dissent us to 651 A .2d at would fail to distinguish between individual capital defendants. Because each facts that a murder unique, defining important all case However, hardly circumstance impossible. might include is turning disproportionality to flaw. amounts a fatal Instead propor into rationalization for review “a selective convenient each its tionality,” post dealing A.2dat case on unique sensitive to its set facts is own merits in a manner they only way capital the full review which give defendants entitled, finality of the death sentence. given are assumptions” that he a number of “alternative Defendant makes persuade adopt in our review of his seeks to this Court Ramseur, cases, First, argues that State v. sentence. he three Lodato, 141, 123, (1987), v. 107 N.J. 106 N.J. 524 A.2d 188 State Hunt, 330, (1987), A.2d A.2d and State v. 115 N.J. 558 526 204 (1989), cases be coded as life-sentenced because 1259 should Second, have us exclude nine at trial. defendant would errors er pool for “deliberative other cases from the death-sentenced 13, A.2d Biegenwald, v. 106 N.J. 524 rors.” Those cases are State Roedatich, (1987); 112 (unreported); v. v. Kise State 130 State Zola, 384, (1988); 225, 112 N.J. 548 v. 548 A .2d 939 State N.J. 40, Gerald, (1988); 549 A.2d 792 v. 113 N.J. A.2d 1022 State (1988); Williams, 393, (1988); A.2d 113 550 1172 v. N.J. State 194, (1990); v. A.2d 951 State Coyle, v. 119 N.J. 574 State Johnson, 263, (1990); Oglesby, and State v. 576 A.2d 834 120 N.J. (1991). Third, 522, he excludes his own case 122 A.2d 916 N.J. 585 pool comparable from the cases. argument rejected Bey’s that

In Bey TV we defendant Ramseur, Coyle treated life-sen Biegenwald, and should be as cases, involving sentences that were Those death tenced cases. reversed, penalty-trial pursued reversal either were not after Bey argued that those cases or in life sentences. cases resulted indicators of deathwor be considered reliable therefore could not 345-46, IV, A.2d 645 685. Bey supra, 137 N.J. at thiness. cases, and we concluded coded as death-sentenced AOC those 347, at juror deathworthiness. Id. they evaluations of reflected Marshall, 194 n. supra, A.2d observed N.J. 685. We 1059, penalty A trials that result in death are most 613 .2d (A burden-of-proof often reversed for and Gerald issues. Gerald capital error is one in which a sentence followed a conviction purposely knowingly causing bodily injury that results or serious death, knowingly causing purposely instead of for or death. See 792.) Gerald, supra, Burden-of-proof 113 N.J. at 549A.2d trial, errors, procedural fairness of the not Gerald which affect crime, necessarily jury’s the substance of the “do not bear on the IV, supra, determination of deathworthiness.” 137 N.J. II, 685; 5,194 645 A.2d accord Marshall at 169 n. n. N.J. proportionality Bey’s 613A.2d 1059. our review of sentence Ramseur, Biegenwald, we therefore continued include Coyle category in the here as of death-sentenced cases. We do so well. repeats accepting its of the

The dissent criticism Court for not proposition may the dissent’s that reversed death sentences not be proportionality review as That used death-sentenced eases. only objective criticism is based on the notion that “the indicator imposition that can establish ‘deathworthiness’ is the of a death 84, support, sentence.” Post at 651 A.2d at 989. For the dissent examples involving improper jury cites of cases instructions that 85-86, required at reversal the death sentence. Post 651 A.2d dissenting colleague again at 989-990. That leads our to insist adopt presumption that the Court a “rebuttable that reversed death sentences are invalid determinations of deathworthiness.” 87, II, supra, Post at 651 A.2d at 990. As we stated in Marshall 5, 1059, IV, 347, Bey supra, at 169 n. 613A.2d 137 at N.J. N.J. today, again 645 A .2d errors that do not affect the crime, fairness, opposed procedural substance of the as do not necessarily jury’s affect a determination of deathworthiness. similarly reject argument.

We defendant’s “deliberative error” (1) jury Martini that such claims errors the failure to instruct a beyond aggravating that it must find a reasonable doubt that the outweigh mitigating impose factors factors before it can (2) factor sentence, charge aggravating improper on an death (3) unanimously find c(4)(c) (torture), jury must charge that a or factor so undermine weigh can that mitigating factor before it sentence is that when a life reliability capital of the sentence retrial, may coded as death sentenced. cases not be given on those eases squarely considered argues that have never Defendant we death overturned fairness” of such involving the “fundamental in that the death sentences continue to believe sentences. We acceptably-reliable so- are procedural error cases overturned deathworthiness. cietal determinations of IV, note, Bey swpra, that the State’s did in also as we We necessarily capitally is not reprosecute a defendant decision not lack of deathworthiness. of that defendant’s a reflection as the issues such may based on unrelated decision be State’s financial resources availability the amount of of witnesses or reject Accordingly, we willing to commit to retrial. State to code argument and continue “fundamental fairness” defendant’s Johnson, Gerald, Williams, Rise, Roedatich, Zola, Oglesby, as IV, acknowledge that Bey supra, we cases. As death-sentenced infallible, A .2d scientifically 137 N.J. our data are not subjectivi degree of coding contain some all decisions because (“[W]e II, 613 A.2d supra, 130 N.J. ty. Marshall every practical into judgment is built recognize that a value measurement.”). However, re that “even we remain convinced of “the sufficiently valid indicators” are death sentences versed cases. as death-sentenced community” to be used of the conscience IV, 348, 645 A.2d 685. Bey supra, 137 N.J. at not assumption that he will reject

Finally, we defendant’s we comparable to his own. As of cases in the universe be included including IV, the data both we will evaluate did including acknowledge a defendant excluding Martini. We rate of increase the proportionality review will or her own his to the inversely proportional sentencing extent that is to an death However, propor analysis. used in the cases that are number of values, the case community and tionality is a search review partial under is a reflection of the values that we review those data, Using including seek to discover. two sets of one defen- it, excluding give picture dant’s case and one will us the broadest alerting produced by of societal standards while us to the bias including defendant’s case.

Ill COMPARISON OF CASES established, first, Having the universe of cases on which rely, specifically, Report, we shall in those contained the Martini and, second, coding the criteria for those cases as either death sentenced, group sentenced or life we must next those cases IV, according comparative Bey to their levels of blameworthiness. supra, at In II in N.J. A.2d 685. Marshall by considering statutory ag IV we determined blameworthiness gravating mitigating “nonstatutory factors as well as factors ” ‘objectively based on verified measures of blameworthiness.’ Ibid, 1059). II, (quoting supra, Marshall N.J. 613 A.2d through approaches: frequency

We evaluate those factors two analysis precedent-seeking purpose in review. Our that eval uation, above, stated is to determine whether defendant’s sentence II, disproportionate comparison in similar cases. Marshall IV, supra, 130 in Bey N.J. 613 A.2d 1059. As we declared supra, “Proportionality review seeks to determine whether aberrational, particular compares death sentence is not whether it perfectly with other sentences.” 137 N.J. at 645 A.2d 685. frequency analysis allows us to determine the rate of imposition of designed death sentences similar cases. It is jurors prosecutors prece reveal how treat similar cases. dent-seeking compare factually- review we the defendant’s case to deathworthy similar cases to determine whether the defendant is light similarly-situated compare defendants. We then analyses proportionality results of the two to ensure that our However, sample pools review is reliable. the size of used Therefore, smalj. fre because frequency approach remains the entirely statistically, we are not reliable quency-analysis results precedent-seeking the review. rely heavily more on the results of IV, 351, 645 A.2d 685. Bey supra, 137 N.J. at See relatively-small objects of a to the Court’s use The dissent disproportionality. our number of cases our search for view, dissenting colleague’s uniqueness of a case under review * * * Post at project frequency of review a sham.” makes “the 95, sample recognize the small size and 651 A.2d at 995. We capital unique in universe of fact that defendant’s case is our noted, from preclude considerations us eases. As we have those analyses under those giving great weight frequency derived dissent, however, we do not see that In contrast to the conditions. review, by frequency agreed model on the offices both Defender, approved Attorney and the Public General Court, of the Courts and this the Administrative Office both Instead, 96, cases we use the Post at 651 A.2d at 995. “falters.” they discounting guidance analogous guides, most similar or frequen dissimilarity. reliance on provide by degree their Our In the grows. cases cy analysis will increase as our universe of meantime, analysis tool in our review. frequency as a we will use place necessarily forces us to complete of more data The absence review. greater emphasis precedent-seeking on frequen predicted low The dissent’s discussion defendant’s 993-994, cies, 92-94, their function A at overlooks post at 651 .2d only. They provide not an purpose. They predictors are value, therefore, predicted does only guidance. A low swers but automatically a death sentence as overturn not mean that we must Instead, presence of danger of the disproportionate. it shows carefully more requiring us to scrutinize disproportionality, II, at supra, 130 N.J. review. See Marshall other elements of A .2d 1059. Frequency Approach A. The TV, frequen Bey separated the

In Marshall II and we test, numeri- analysis parts: three the salient-factors cy into test, and cal-preponderance-of-aggravating-and-mitigating-factors IV, 350-51, Bey supra, 137 N.J. at the index-of-outeomes test. II, supra, 130 N.J. 645 A.2d Marshall 613 A.2d 1059. of gauging a different method a defendant’s Each is statistical IV, supra, culpability. 137 N.J. relative criminal approach in the question frequency A.2d 685. The basic degree of in ease reason whether the blameworthiness the instant expectation ably supports generally an that such a result case will method to in a death sentence. We use that determine whether likely him or than category defendant is in a that makes her more types penalty. killers the death other of to receive 20-21, 957, supra at at we

As indicated 651 A.2d point employ no set level at what sentences to determine death imposed type of may “generally” given be considered for a However, frequency murder. the lower the of death sentences murderers, scrutiny greater bring to bear a class of we must any impermissible a role in to determine whether factor has had Likewise, determining greater frequency the sentence. cases, in a more that a death sentences class of certain we are for given proportionate any death sentence is member of II, IV, supra, 351, 685; Bey Marshall 137 N.J. at 645 class. A.2d supra, 130 N.J. at 153, Accordingly, 613 A.2d 1059. we use frequency approach a strict rule but as a measure of not as II, supra, consistency capital-sentencing regime. Marshall in our 130 N.J. A.2d 1059. above, pointed penalty death-eligible out

As the rate trials sentencing the rate of to a cases and death cases that advanced (125/298) forty-two penalty fairly percent trial are both low— (38/125) Report Martini thirty percent respectively. 3. tbls. death-sentencing yields percent That a total rate thirteen (38/298). However, aberration, looking potential for a not we are IV, comparison perfect to all other eases. As we stated every disparity disproportionali supra, “Not statistical establishes Moreover, compare ty.” 137 N.J. at 645 A.2d 685. must we eases, considering case to the crime and defendant’s “similar both defendant,” 2C:ll-3e, any N.J.S.A. before we can make deter- frequency. minations about relative Finally, we heed the admonition of the that at AOC this time we place should little substantive reliance on the statistical models. cases, cases, small number of especially death-sentenced large combined with the number of independent factors used as reliability variables undermines the regression the results of the models used. recognize

Whatever frequency analysis, concerns we nonetheless, do not mean unique that sentences for murders must automatically only be struck down and that those of run-of-the-mill may upheld. defendants capital be A defendant is not entitled to perfect cases, universe of identical but instead the best that IV, we can generally Bey achieve. See supra, 137 N.J. (stating proportionality

A .2d 685 review searches for aberra tion, perfect comparison), not for (limiting identify search to arbitrariness). ing irrationality and pause explanation We here for a brief of some technical terms. regression analysis A algebraic uses an represent model to decision-making process by showing indepen- the influence of an Here, dependent dent on a decision-making variable variable. the process represented sentencing is the determination. The inde- variable, which, pendent designated, change, repre- once does not prior sents a factor contemporaneous such as a murder or a sexual assault that is believed to influence the result of the decision- making. dependent by presence variable is influenced the or variable, independent absence of an represents and here the decision capitally. multiple regression whether to sentence A analysis simply independent includes more than one variable algebraic model. produced by regression

Because the results models are of reliability, uncertain predicted probability we use the of death generate only purposes sentences that those models compar- of guidance. ison and We do not accord them final or determinative Jr., McCarthy, weight. Memorandum from P. Assistant See John Townsend, Director, AOC, Stephen Supreme Clerk of the W. Court, (July Proportionality Martini: Review 3 State v. John 1993) (on AOC). file with

Nonetheless, disagreement a main area of between the Court presence and the involves the of standards. Our dissent dissent colleague any ing our refusal “to set standard which laments death,” distinguish high predicted frequency post a low from “any at 651 A.2d at as well as the lack established category captures the facts of defendant’s case.” Post critical 992. A.2d at dispropor- setting

We numerical standards to determine avoid absolute, tionality system from because such an numerical suffers distinguish exam- an inherent failure to between defendants. For thirty percent acceptability if certain ple, we set at of a disproportionality, frequency indicating no we would criterion who, then be hold that the of one defendant bound to sentence thirty percent, disproportionate. met'that characteristic was not Likewise, disproportionality be bound to find in the case we would twenty-nine percent another defendant who achieved overall, category. might Yet be more latter defendant scheme, two, deathworthy statutory might our and of the under actually properly be the one sentenced. however, problems, foregoing

Even statistical with the approach permits it receives our attention because us to distin- guish by culpability; it allows us to cases because determine community consensus, in the individual contrast to assessment case-by-case creates approach; and because it a basis for evaluating sentencing system.' fairness of the entire Unlike precedent-seeking approach, provides the statistical method deciding comparison for whether used for are means the cases Therefore, disproportional. approaches themselves we use both complementary techniques. 1. The Salient-Factors Test

The salient-factors test allows us to measure the rela frequency by comparing tive of a defendant’s sentence it to factually-similar purpose help sentences in cases. Its is to us imposed category determine whether the death sentence is in a comparable enough cases often to create confidence the exis appropriate remedy. tence of societal consensus that death is the group initially specific statutory aggravating We cases around group according factors and then subdivide that to circumstances aggravate mitigate that serve either to or to the blameworthiness of the defendants those cases. We view that method as the tests, IV, persuasive frequency supra, most of the 137 N.J. at 353, 685; II, 168, supra, 645 A.2d Marshall at N.J. 613 A.2d 1059, statutory link because of its close factors and its sensitivi ty Report to nuance. Final 82-83. Martini, involving kidnapping

For similar cases are those particular Report group violence and terror. Martini tbl. H(2). death-eligible group, Of six cases three went to trial, penalty resulting in and defendant’s was the case death-sentencing thirty- death sentence. That creates rates of percent penalty-trial percent three for cases and seventeen for all H(2). death-eligible Report group Martini tbl. Those cases. higher sentencing ratios are somewhat than the overall rates of thirty percent penalty-trial percent cases and thirteen for all death-eligible supra cases. See 651 A.2d at 959. The figures for the similar cases are as follows:

Death-Sentencing H(2) Kidnapping Non-Stranger Rates for Death-Sentencing Death-Sentencing Proportion Advancing for All Rate Rate Cases Penalty Death-Eligible

Trial Trial Penalty Cases Including Martini .33 .50 ©_.17 ©_ ©_ (%) Excluding Martini .00 .00 .40 © © H(2) group [Martini Report tbl.

(Table defendant).] does not exclude excessive he is argues Defendant that his sentence is because H(2) category the sentence. only in to receive death the defendant category not fit in The contends that defendant does well State H(2) only kidnapped for murderer to have because he is Moreover, adds, sample size six cases is ransom. the State reliability. with to The AOC concurs too small create statistical sample to It notes that its size is too small the State’s view. AOC, according to generate figures. Additionally, reliable because, out, dissimilar, factually pointed five other are cases terrorizing or non- group no other case in that involved a ransom may be suggests decedent victims. The AOC that Martini’s case pecuniary compared involving to other murders motive. H(2) agree and the AOC that We with State case, Martini’s of the comparison is not instructive. Unlike none period ransom an extended of terroriz other five eases involves or family. rates of ing threatening the lives the victim’s nevertheless, high enough to that to death-sentencing, are show may in compared extent that Martini be to others who murder kidnapping, his is not disproportionate. the course sentence Although only defendant is the one to be sentenced to death H(2), rates, thirty-three category percent penalty-trial for his death-eligible cases,, percent for are com cases and seventeen all Marshall, 1(2), placed in con parable group to For Marshall’s. percentage sentencing principals, tract-murder of death was twenty-five thirty-three all penalty-trial cases and for death- II, 1059; supra, eligible cases. 130 N.J. at A .2d Marshall H(2), I(2); Report group Report, Martini tbl. Marshall tbl. I(2). Martini, group person Like Marshall was the his sentence, category yet dispropor to we found receive the death no Bey tionality. Similarly, multiple Marko the first murderer was upheld Being proportionality death sentence we on review. whose category support in a not the first murderer does a conclusion IV, 349-50, disproportionality. supra, 137 N.J. at See 685; II, supra, A .2d 130 N.J. at 613 A.2d 1059. Marshall Aside from kidnapping the feature of non-stranger of a with terror, particular may violence or profitably defendant’s case be compared kidnapping to stranger particular of a violence or terror, killers, principals contract killings, contract and to other pecuniary-advantage may killers. compare We Martini to kidnappers strangers, although of singled because Martini had out advance, were, Flax in practically speaking, two strangers. Thirty years kidnapping, before the defendant and Flax had had an acquaintanceship, apparently they but had not seen each other since. perspective, From the victim’s defendant was a virtual stranger. stranger kidnapping The numbers in the are somewhat Martini) higher, sample two, but (including size of stranger-kidnapping reliability very rates’ statistical low. The figures are:

Death-Sentencing H(l) Stranger Kidnapping Rates for Death-Sentencing Sentencing Death Propoi’tion Advancing Rate at Rate for All Cases Penalty Death-Eligible

Tidal Tidal Penalty Cases Including Martini .50 (1/2)_.50 (1/2)_1.0 (2/2)_ (0/1) (0/1) (1/1) Excluding Martini .00 .00 1.0 H(l) group [Martini Report tbl. 7, (Table defendant).] does not include rates, give weight To the extent that they support we to those finding of disproportionality. no may compare

We Martini to contract killers because he killed plan his victim as endanger money. the result of his Flax for Moreover, completion depended part successful of his crime on the death of Flax. prevent Defendant needed to kill Flax to the victim identifying from him being and from later a witness him, against and he stated that he thought shot Flax because he Martini, supra, escape. 279-85, that Flax would 131 N.J. See A .2d 1208. extremely Contract high frequency receiving killers show an Forty-three percent death sentence. death-eligible of such sentence, sixty percent capital as did received a defendants with and figures, trial. The penalty advanced to a those who Martini, are as follows: without

Death-Sentencing 1(1) for Killers Rates Contract

Death-Sentencing Death-Sentencing Proportion Advancing Rate All Cases Rate at Penalty Death-Eligible Trial to Penalty Trial Cases (6/8) (4/6) (4/8) Including .66 .50 .75 Martini (3/7) (5/7) (3/5) Excluding .71 Martini .60 .43 1(1) group [Martini Report tbl. 7, (Table defendant).] not include does rates, no When strikingly high, disproportionality. show Those proba- 1(1), sixty-six-percent group into shows placed defendant at note bility receiving penalty his trial. We of death sentence size, defendant, including and that sample eight is small that the comparable to a contract obviously perfectly is not defendant not in the selection generally A contract killer is involved killer. Here, money reputation. simply but for the of the victim kills victim and actively in the selection of the defendant was involved Although completion plan. his killed to ensure successful of group to closely enough to the is related contract-killer defendant merit consid- analogy, comparison problems an with allow weight give to its results. eration we killings may principals in contract compared to Defendant be the crime. similarity planning their roles in because of of Martini, death-eligible cases twenty-five percent of such Without sentence, thirty-three those capital percent of in a as did resulted figures, penalty advanced trial. The to a cases defendant, are: without

Death-Sentencing 1(2) Principals Rates Contract

Death-Sentencing Death-Sentencing Proportion Advancing Trail Rate for All Cases Penalty Death-Eligible Trial Penalty Cases (2/4) (2/5) (4/5) Including Martini .50 .40 .80 (1/3) (1/4) (3/4) Excluding Martini .33 .25 .75 1(2) group [Martini Report tbl. (Table defendant).] does not include figures, results, Those clearly support like the contract-killer 1(2), finding disproportionality. group of no Placed defendant fifty-percent shows a receiving chance of a death sentence at the penalty However, size, sample trial. five .with defendant and him, rely four without is too heavily small to allow us to on the 1(2) percentages generated by the table. 1(3), category group

The last pecuniary-advantage other compare group killers. We Martini to defendants because 1(3), money. he committed his crime for in group With defendant percentages high: fifty percent death-eligible his are cases penalty, fifty percent penalty-trial receive the death as do cases. Death-Sentencing 1(3) Pecuniary-Advantage Rates for Killers

Death-Sentencing Death-Sentencing Proportion Advancing Rate Rate for All Cases Penalty Death-Eligible Trial Trial Penalty Cases (1/2) (1/2) (2/2) Including Martini .50 .50 1.0 (0/1) (0/1) (1/1) Excluding Martini .00 .00 1.0 1(3) group [Martini Report tbl. 7, (Table defendant).] does not include Although capital-sentencing fifty percent supports a rate of two, finding disproportionality, sample including of no the size of defendant, precludes reliance on those results.

Accordingly, measure, we conclude that the salient-factors the measures, persuasive supports finding most of the statistical generally It shows that defendant’s class disproportionality. no sample Although the small sizes of penalty. the death receives investing preclude in the us from groups the salient-factors test weight, as a great we will use them check those results against findings two statistical tests and our under both the other approach. precedent-seeking under the Numerical-Preponderance-of-Aggravating-and-Miti- 2. The gating-Factors Test compares Martini’s case other cases hav

This test to ing aggravating mitigating factors. It the same number of blameworthiness, on raw to the uses those numbers measure aggravating factors assumption presence that of more the blameworthy. mitigating renders more fewer factors a case provide purpose using numerical-preponderance is to the test problem the fundamental of the salient- means to control for test, ie., any universe contains too few cases factors that our category permit to inferences. The obvious one factual reliable approach is that it problem numerical-preponderance with the inability juries equally. weigh each factor Its to assumes jury qualitative the deliberations makes account for character problematic than the test this test more either salient-factors or II, supra, 130 N.J. index-of-outcomes test. Marshall numerical-prepon problem, 613 A. 2d 1059. To alleviate weight statutory attempts test to factors to account derance qualitative determinations. c(4)(f), Here, jury aggravating factors: murder found two detection, c(4)(g), during escape murder the course of a jurors mitigating found kidnapping. Six of the twelve factor c(5)(h), c(5)(e), age, mitigating and six factor found catchall c(5)(a), jurors rejected mitigating factor. All factors extreme disturbance, c(5)(d), capacity. mental or emotional diminished IV, supra, frequency analysis, “In we As we stated will mitigating jury those factors that the found relevant consider 137 N.J. penalty.” imposition 645 A.2d the death review, precedent-seeking 685. Unlike which we will consider “objective clearly present factors that are in the if record even the jury relevant,” frequency analysis did not find them to be on we will not use additional factors the need “because of to maintain the case, uniformity of the we statistics.” Ibid. If reworked one comparison valid statistical require would that we rework and reweigh all the in the cases universe. Report'

The Martini twenty-three penalty-trial identifies cases that aggravating mitigating contain two and two factors. Thirteen penalties, those cases death producing resulted a death- sentencing fifty-seven percent. rate of Report Martini tbl. 8. class, forty-eight death-eligible percent- For the cases in (13/48). age twenty-seven percent figures is Id. tbl. 9. The slightly without defendant are lower: Death-Sentencing By Statutory Rates Factors

Death-Sentencing Death-Sentencing Rate Rate Death-Eligible Trial for All Penalty Cases (13/23) (13/48) Including Martini .57 .27 (12/22) (12/47) Excluding Martini .55 .26 (Tables [Martini Report tbls. defendant).] do not exclude c(4)(f) (murder aggravating Of those eases in which factor detection) escape present and contain a was total two each, aggravating mitigating death-sentencing and two factors (5/18) death-eligible percent rate in twenty-seven cases is (4/17) percent twenty-four Martini and without him. For cases aggravating including c(4)(g) (contemporaneous felony), factor death-sentencing containing aggravating rate in cases two and two (8/41) mitigating percent factors is nineteen with defendant and (7/40) H, eighteen percent App. without Report him. Martini (Tables defendant). tbls. do exclude death- not The overall c(4)(f) aggravating factor containing sentencing rate for all cases (5/31) (6/32) percent and sixteen with defendant percent nineteen c(4)(g), factor containing aggravating For all cases without him. (15/87) percent death-sentencing rate seventeen the overall (14/86) him. Ibid. percent sixteen without defendant and factors, the numbers mitigating Arranged aggravating and are: Mitigating Aggravating Death-Sentencing By Factors Rates Sentencing All

Death-Sentencing Rate for Rate at Death Pen- Death-Eligible Cases Trial alty Excluding Including Excluding Including Martini Martini Martini Martini (14/60) (13/59) (14/37) (13/36) Aggravating .22 .23 .37 .36 . e(4)(f) Factor (escape detec- tion) (26/221) (25/220) (26/81) (25/80) Aggravating .11 .12 .32 .31 c(4)(g) Factor (kidnapping) (6/42) (7/91) (6/90) (7/43) .07 Mitigating .08 .16 .14 c(5)(c) Factor (29/113) (30/287) (29/286) (30/(114) Mitigating .10 .26 .10 .26 c(5)(h) Factor (catchall) (Table [Marshall Report tbl. 10 Martini).] does not exclude- so argues foregoing frequencies are Defendant The disproportionality of sentence. his low as to demonstrate disproportionali figures that those do not indicate State contends sentencing is for the worst ty, because death reserved sentencing per statutory factors murderers. rates death Bey death- penalty-trial IV. had comparable are those fifty-five death-eligible rate of sentencing percent rate of IV, 645 A.2d twenty-six percent, Bey supra, 137 N.J. twenty-seven per fifty-seven and compared to Martini’s rates of twenty percent rates and seven Defendant Marshall had cent. low, percent. We that although frequencies concluded those were factor, murder, aggravating payment Marshall’s fre more produces quently aggravating a death sentence than do other II, supra, 171-72, factors. Marshall 130 N.J. at 613 A.2d 1059. Here, aggravating Martini’s separately factors taken produce detection) thirty-seven percent thirty-two rates (escape percent (kidnapping), which are They somewhat low. do not disproportionality, establish however. As with Mar defendant shall, actions, Martini’s kidnapping for ransom and extreme ter family, rorization the victim’s create factual situation not readily comparable to that of other murderers class. defendant’s

3. Index-of-Outcomes Test approach

Through attempt identify this we char those degree acteristics that establish of a defendant’s blameworthi factors, but, statutory ness. We non-statutory consider both analysis, in all frequency areas of the factors that we consider only jury are those that the found to relevant imposition be to the penalty. of the death We leave precedent-seeking to our review objectively consideration of in present those factors that are the jury record but that did the not find relevant to the on decision capitally. whether to sentence challenges non-statutory dissent the in inclusion of factors review, stating

frequency they belong precedent-seeking that in 94, only. objection review Post at 651 A.2d That at 994. misses point part frequency the of the index-of-outcomes test. That of non-statutory necessarily jury review considers factors that the deciding to be found relevant in to death. sentence defendant to of approach “expedient” Our use that is not or driven.” “result[ ] Rather, 994. Post 651 A.2d at use it of our we because restricting recognition statutory only may ourselves to factors always quantify jury’s not allow us to the decision. See Marshall II, supra, 156-59, (discussing 130 N.J. at 613 1059 use of A.2d review). non-statutory frequency factors For that we reason reject argument the well-thought-out dissent’s otherwise limit for 42 objective to measures de

ing frequency-approach consideration If A.2d at we did Legislature. Post at 998. fined the part frequency of the non-statutory factors some not consider uniqueness of a fail to for the approach, we would account case, of for purpose our search and that would fail defendant’s disproportionality. eases, of

By looking at facts all instead salient all factors, we seek to determine factors or the raw number test, capital sentencing. Unlike salient-factors pattern in factually compare are we cases that the index-of-outcomes test comparable perspec from the but that are nevertheless dissimilar nu In contrast to the blameworthiness. tive the defendants’ test, attempt we here account for merical-preponderance juries give Unlike the weights that the various factors. different tests, comparison not factual here is similar other basis roughly-equivalent but “a measure patterns or numerical indices II, supra, Marshall 130 N.J. of blameworthiness.” A .2d 1059. by the of different defendants compare

We the blameworthiness culpability found in the circum statistically-relevant measures cases, pain or such as infliction of severe stances of their contemporaneous sexual assault or suffering, the existence of IV, supra, robbery, prior commission of murder. See or 685; Report App. 9 at A.2d Martini Technical 137 N.J. at listing Report, prepared has tables the AOC 3. the Martini death-sentencing culpability based rates that defendant measure appear important prosecutors case to be on characteristics jurors. Report at 1. Those App. Technical tables Martini culpability predicted proba in on group cases five levels of based culpability return of a sentence. The levels of bilities of a death one, twenty-percent of a than a likelihood death are: level less three, two, sentence; less-than-forty percent; level twenty level to four, sixty less-than-sixty to less-than- forty percent; to level five, Id. percent; eighty percent. level to one-hundred eighty grouping in that manner is purpose at 5. The of cases ensure groups-contain only that involving cases similar of levels blame- groups, probabilities worthiness. From those we derive the actual sentencing of death for in culpability. cases the various of levels Again, urges using the AOC caution in findings of those regression analyses, especially concerning comparatively rare fac- tors. Id. at 7. Because Martini’s case involves the murder ransom, that kidnapping resulted from a we treat the index-of- findings accordingly. outcomes

Considering statutory non-statutory both penalty- factors in cases, predicted trial defendant probability eighty-eight has of percent, probability range with a containing a lower limit of twenty-five percent upper ninety-nine percent. and an limit of (The upper probability and lower range limits establish the re- quired yield ninety-five percent. a confidence interval of A chance, simply designates confidence interval expressed as a percentage, that a range defendant’s case will fall within a certain sentence.) predicted probabilities receiving a death predicted probability eighty-eight percent places Martini five, highest culpability. level Report level of Martini tbl. penalty-trial death-sentencing 12. The category rate in that (23/26). eighty-eight percent Report Martini tbl. 11. Cases with predicted sentencing rate of seventy percent greater death or four) (culpability upper level culpability five and the half of level sixty-one percent imposed account for of all death sentences category. Ibid. Considering statutory both the non-statutory factors in all cases, death-eligible predicted probability defendant has a of five percent, percent upper with a lower limit of one and an limit of thirty percent. places culpability That him in level one. Martini Report 14. death-sentencing category tbl. The overall rate (10/248). percent is four Report Martini tbl. 13. In the death- universe, eligible predicted capital cases with a rate of less than seventy percent yield capital an actual percent rate of nine (26/284). However, cases, for actual death-sentenced those cases fifty percent less predicted probability of or account awith (21/38). imposed Ibid. capital all sentences fifty-five percent of mitigating statutory aggravating and When we consider (which weighing not the ransom scheme or factors does allow non-decedents), compared penalty-trial to other terrorizing of probability receiving of defendants, predicted has Martini upper with limits of percent, fifteen lower death sentence of in respectively, placing culpability him fifty-one percent three and him Report gives 16. That an actual tbl. level one. Martini (3/58) among penalty-trial death-sentencing percent of rate five only statutory Again considering Report 15. cases. tbl. Martini factors, compare death-eligible case other Martini’s to all when we percent, cases, predicted probability eight has a defendant percent upper twenty-seven two respective limits of lower culpability in level one. Martini percent, again placing him death-sentencing again, actual rate is five Report Here his tbl. 17. (12/249). Report tbl. 15. percent Martini argues frequencies the index-of-outcomes

Defendant disproportionate and sentence is so to show that his are low as his such as are random aberra penalties that death cases weigh urges heavily the further this Court not to tional. He sentencing based percent probability actual death eighty-eight of that mea comparison penalty-trial other cases because on Last, range. asks seventy-four probability he percent surement’s for his alterna accept tables that account this Court to re-worked not claims that the numbers do assumptions. tive State disproportionality, and cites the AOC’s admonition any indicate sample large and the number variables size small analysis of the make the results index-of-outcomes .considered vulnerable. test indicates no that the index-of-outcomes

We are satisfied II, disproportionality. Bey As was the case IV and Marshall with similar levels of blameworthi sample the small size cases great weight to these See precludes giving us from results. ness II, 685; IV, A. Marshall supra, 137 N.J. at 2d 173-74, Thus, although 613 A.2d N.J. 1059. the index-of- IV, higher Bey, Bey outcomes results are for supra, see 137 N.J. 362-65, Marshall, slightly higher 645 A .2d and for see II, 172-74, supra, 1059,they Marshall 130 N.J. at 613 A.2d do not disproportionality any indicate or aberration in Martini’s case. Although disparate the index-of-outcomes test’s results cause us to conclude, first, scrutinize closely, defendant’s case we yield extremely percentages tables that low do not include non- statutory factors grava and therefore do not account well for the (ransom men of terrorizing defendant’s crime and extreme of the and, second, family), unique victim’s that defendant is in our case hand, universe. On the other the test that does account for the factors, non-statutory aggravating yields eighty-eight per an receiving cent penalty, probability likelihood of the death has a range seventy-four percent. of Although that test best accounts culpability, large for a span upper defendant’s its between reliability lower limits detracts from the of that test’s results. Accepting cautionary suggestion concerning AOC’s rare fac tors, we do not find that any the index-of-outcomes test shows imposition penalty aberration of the death Martini’s case. Last, expressed above, supra the reasons in Part II B. at 24- 959-961, reject 651 A.2d at we defendant’s re-worked tables and use those tables constructed the AOC. Frequency-Approach 4. Conclusion cases,

Compared penalty-trial to other Martini’s case predicted probabilities receiving shows of the death sentence of test; thirty-three percent fifty-seven under the salient-factors percent test; and, numerical-preponderance under the under the test, percent considering only statutory index-of-outcomes five eighty-eight percent considering statutory factors and both non-statutory Report factors. Compared Martini tbl. 19. to all cases, death-eligible predicted defendant has salient-factors-test probability percent; numerical-preponderance-test seventeen probability twenty-seven percent; and index-of-outeomes-test probabilities percent, considering statutory only, five factors non-statutory statutory and percent, considering both four produce Those no show Report tbl. 20. results factors. Martini has to offer Defendant failed randomness or aberration. ing of not find that for disproportionality, and we do evidence of reliable generally im than is a sentence other death cases such his 685; IV, supra, N.J. at 645 A.2d posed. See II, A.2d 1059. supra, 130 N.J. at Marshall Approach Precedent-Seeking The B. prece review the part proportionality second test, comparative-culpability It is the

dent-seeking review. or traditional, compare case-by-case form of in which we review IV, 366, 645 Bey supra, 137 N.J. at death-eligible similar cases. frequency approach, in which we look A In to the .2d685. contrast cases, approach consider precedent-seeking in the we groups to of review, comparative-culpability individually. The need for cases review, IV, supra, at complements frequency Bey 137 N.J. which 685, frequency 366, rates A.2d increases as the overall 645 sentencing in a frequency of death analysis decrease. Where the low, precedent-seeking method given type of is we use murder impermissible factors. detect influence cases have considered proportionality-review that both review, heavily we have relied more of the two forms of interaction analysis. frequency precedent-seeking approach than on the on the 27-28, (placing greater reliance on at A.2d at 961 Supra 651 review); TV, 350, supra, 137 N.J. at 645 precedent-seeking (same). Thus, II to on the dissent’s reliance Marshall A.2d 685 ap up regarded precedent-seeking argue that we have now “thoroughly here proach “primary,” and that we deconstruct 995, review,” 97, support. post at A .2d is frequency 651 at without merely designations. II It states makes no such Marshall scrutiny frequencies, predicted the more intense our the lower 159, changed. has A.2d 1059. That not be. 130 N.J. at must proposition We continue to adhere to the first announced greater predicted frequencies require in Marshall II that lower 120, scrutiny precedent-seeking. in the 130 N.J. at 613A.2d 1059. may relationship the two forms of review We not base the between must, any arbitrary on numerical standards. The two methods course, 107, degree commensurability,” post have “some at relationship at but their a tool in our review. A.2d is insupportable, jury’s We seek to determine if the decision is approaches guide the two and their interaction us.

Through method whether a defen this we determine culpability dant’s criminal exceeds' that of similar life-sentenced equal greater it than that of other defendants whether to or defendants, that the defendant’s death-sentenced such culpability sentence; justifies capital culpability or whether a defendant’s than is more like that of similar life-sentenced defendants and less defendants, such that the defendant’s death-sentenced culpability requires a to a life term. We reduction of sentence statutory proportionality require does not identical note that II, closely-similar supra, even in cases. Marshall verdicts merely requires 613 A.2d 1059. It that the defendant N.J. singled unfairly capital punishment. not out Id. at was 613 A .2d 1059.

Moreover, assertion, contrary the Court does to the dissent’s committing adopt proposition not that “similar defendants blameworthy.” 651 A.2d at equally similar crimes are Post similarly blameworthy, defendants are and therefore 992. Those review, may usefully compared proportionality in but we never be blameworthy regardless any equally two defendants are state that similarity they of the factual of the murders that have committed. holding replace jury’s discretion with our own. Such a would whether, Thus, only question, “direct which asks the dissents’s things being equal, necessary complete a other a murder that to 105, murders,” post at criminal scheme is worse than other 999, irrelevant, is, things,” at is because the “other that A.2d murder, “equal” from one will never be surrounding the facts murder to next. bright-line measures of reject colleague’s proposed our

We encourage culpability. them arbitrariness. Adopting would only argue simplistic markers can of blameworthiness dissent example, by assuming uniqueness For it away the of each case. victim, things than “other that one more one asserts who murders only culpable than a killer of being equal,” unquestionably is more 100, of victims at at 997. The number one. Post 651 A.2d blameworthiness, extremely important and obviously is an affects However, things” the dissent component of the “other it. comparison any may actually in a apparently overlooks control example, persons who two who two For someone shoots cases. instantly blameworthy statutory might under our die be less through protracted torture. kills one scheme than one who simplistic adopt inadequate standards refusal to our “evade[j” “obvious, blameworthiness, an any do direct we not swer^],” disingenuously-easy post 651 A.2d at realistic, Rather, troubling questions. recognize more issues. we judgments” Finally, “endlessly “moral debat[e]” we do not even concerning culpability capital defendants. As we the relative IV, irrationality Bey is or supra, in our search limited stated necessary capital aberrancy sentencing, and closure even (“At even point, A.2d 685 some cases. 137 N.J. at end.”). death-penalty ease must

1. Relevant Factors identify comparison precedent- cases used in

To to be review, identify mitigating seeking aggravating relevant we all factors, statutory non-statutory, “rooted in that are both II, sentencing guidelines.” supra, 130 N.J. Marshall traditional 2C:44-1). here, (citing We use 613 A.2d 1059 N.J.S.A II, structure of criminal we did IV Marshall main culpability categories. main The first consists three blameworthiness, which includes category is a defendant’s moral

49 motive; justification excuse, premeditation; elements such as or defect, provocation; disease, such as evidence of mental or distur bance; victim; knowledge helplessness knowledge of the of the victims; any age the murder’s effects on non-decedent defendant’s maturity; planning and defendant’s in involvement the mur victimization, category degree der. The second main is the murder, brutality which includes the violence and of the and the injury existence of catego non-decedent victims. The last main defendant, ry components is the character of the which includes record, violence, any prior such as cooperation unrelated acts of authorities, remorse, capacity for rehabilitation. Mar II, supra, 155, 1059; IV, Bey shall 130 at N.J. 613 A.2d accord supra, 137 at N.J. 645 A.2d 685. IV, Bey

inAs limit the we universe of cases to those used in the frequency approach. purpose using two different kinds of tests, proportionality frequency precedent-seeking, is to con interpretation firm our purpose requires of the data. That IV, analyze group Bey the two methods the same of cases. See 366-67, supra, 137 at N.J. 645 A.2d 685. cases, death-eligible

From the universe of we select com parable according aggravating present cases to the in factors (We longer defendant’s case. no use the term “salient factors” in precedent-seeking potential review because of confusion with the use, frequency approach, use of that term in which its as a art, statutory aggravating Compare term of is limited to factors. IV, Bey supra, (using 137 645 A.2d term N.J. “salient review).) precedent-seeking prece factors” discussion of review, dent-seeking statutory non-statutory we consider both aggravating “encompass factors to all of characteristics that persons affect the blameworthiness or deathworthiness of who II, supra, commit murders.” Marshall 613 A.2d N.J. Although mitigating 1059. we do not use factors to make the comparability, mitigating initial determination of we do use factors IV, comparable supra, our evaluation of the eases. aggravating N.J. at 645 A.2d 685. We do so because the factors, factors, deathworthy. a mitigating make case not the Here, determining proportionality the of factors the relevant for are, first, statutory factors of the the defendant’s death sentence escape felony kidnapping of the murder to contemporaneous and, second, ransom, detection, demand for which likens the pecuniary a motive. case that involve Martini’s to other murders IV, supra, comparison in cases As we evaluate jury. objective presented on that were to the based criteria non-statutory factors at 645 A.2d 685. We consider N.J. may jury information both in recognize we that a use such because in finding rejecting statutory its process its of or factors qualify impose penalty. Ibid. To decision death consideration, objective, non-statutory must be be such factors sentencing guidelines, clearly in traditional have been rooted likely jury’s a jury, and to influence decision. submitted to the be finding mitigating in recognize as well that catchall Ibid. We factor, jury by may evidence that a defendant be influenced jury presents specific statutory in factor that the support of rejects. ultimately See ibid. Report in the

Accordingly, those eases Martini we will consider kidnapping particular in committed with which defendants terror, principals, or were contract violence or were contract culpability is more killers. We will then decide whether Martini’s or of like received death sentences those defendants who so, doing objective received terms. In we consider factors who life clearly present in record and that reflect blamewor that are thiness, victimization, id. at and defendant’s character. See 368- A .2d 685. reject the “corrections” to the data base. therefore dissent’s

We rejected at 993. defendant’s “alternative Post at A.2d We 25-27, assumptions” opinion, supra at 651 A .2d earlier this see 959-960, respect not here. at we do revisit decision comparable as thirty-four eases that the dissent lists pecuniary present were defendant’s inasmuch motives murders, comparison, specifically, we included our have some Clausell, DiFrisco, Marshall, and Jamie Anthony James

Robert 976-977, 63-70, 58-59, 978-982. 651 A.2d Barone. Infra kidnapping particu others, not involve crimes did whose killers, terror, other non- principles or or contract violence or lar killers, inapplicable to find to be we robbery pecuniary-advantage review, in the murders committed because precedent-seeking our multiple relating to robbery burglary, or those or course of this defen victims, torture, not match well sexual assault do or kidnapping. dant’s crime Precedent-Seeking Approach Application

2. approach precedent-seeking begin application of the We They of those cases will use. consist identifying the cases that we non-strangers kidnapping of tables for appear in the AOC’s that terror, strangers with kidnapping of particular violence or terror, contract principals, contract-murder particular violence or killers. Mar killers, non-robbery pecuniary-advantage and other 1(3). H(1), 1(2), 1(1), H(2), The total 7, groups Report tbl. tini to By comparing Martini eighteen. Ibid. is number of eases manner of in the traditional eighteen defendants other those in any aberration review, to determine the existence we seek IV, 645 A.2d supra, N.J. at sentencing. Bey defendant’s IV, closely- note, supra, that even as we did 685. We proportionate, verdicts to be require not identical cases do similar facts, defendants, legal issues juries, light the different involved. Ibid. n in Marti- disprop'ortionality no Precedent-seeking review reveals ni’s sentence. Arguments Parties’

a. murders is most like argues that his ease Defendant arising from a kidnapping robbery or involving premeditated from distinguish himself pains to He takes pecuniary motive. such argues He killers. principals and contract contract is, crimes,” crimes which precondition “fatal murders are directly or purpose of the crime itself the killing is either way, In that complete the criminal scheme. required to Marshall, from Robert as different Martini sees himself example, policies. Mar- his wife’s life-insurance sought to collect on who Similarly, of his wife. obviously required the death plan shall’s to hitmen who seek distinguishable from himself as defendant sees kill. through willingness to figures their impress organized-crime completion of his is that the distinction The basis of defendant’s ransom, of his crime, depend on the death did not the collection of necessarily less such as his are argues He that crimes victim. That precondition” crimes. blameworthy “fatal than the so-called We distinction, his deathworthiness. argues, minimizes defendant disagree. do argument. We reject precondition” “fatal defendant’s

We kill, who, to with intent proposition that one accept not always culpable robbery rape less or a crime such as commits Moreover, precondition” crime. commits a “fatal than one who notwithstanding, contrary defen- arguments to defendant’s once her husband promise Mrs. Flax to release implied dant’s do so. his intent not establish paid the ransom does she Irving identity from steps to hide his Martini took no Because any thought of Flax, that defendant entertained the likelihood remote indeed. freeing his victim is always are Thus, fatal-precondition crimes find that we cannot killing in which the blameworthy murders than all other more in Again, our decision to the crime. arguably was not essential that, notwith reality the dissent simply recognizes the regard that things equal.” [are] may not that “other standing, we assume course, will, as an 106, of consider at 1000. We Post at 651 A.2d necessity victim’s death of the of blameworthiness element However, refuse to restrict ourselves plan. we the defendant’s artificial, absolute, ignore the nuances that constructions such cases. individual one who reject arguments that as well defendant’s

We death- single victim is less knowingly murders a purposefully and

58 cannot murders more than one victim. We worthy than one who through is- person torture say that a murderer who kills one more than one necessarily culpable than a murderer who kills less one accept arguments that person quickly. Nor do we defendant’s culpable than one who kidnaps ransom is never more who premedi kidnapping, length types other or that commits culpability. Finally, affect a defendant’s level of tation does not reject request prosecuted cases not we defendant’s to treat all Koedatich, supra, non-deathworthy. capitally As we stated capitally for reasons prosecutor may prosecute elect not to a case 256, at to the deathworthiness of the case. N.J. unrelated reasons, proof In of the actual we will A.2d 939. the absence of concerning speculate way about decisions deathworthi not either II, 202-04, A.2d 1059. supra, 130 at ness. See Marshall N.J. juries required identical argues are not to return that State Therefore, continues, it closely-similar cases. verdicts even the influence of limited to a search for proportionality should be given defendant impermissible factors in the decision sentence propor essentially correct. capitally. propositions Those are review, defendant has not tionality we seek to ensure that the II, unfairly. Marshall capital punishment singled been out for 159, 181, 613 A .2d 1059. supra, 130 N.J. at acceptance our “irrational[ ]” also characterizes as The dissent cases, though each closely-similar even even in of different results defendants, facts, juries legal issues. involves different case 996; A.2d at 973 compare supra at at 651 A.2d at Post cases). closely-similar The dissent bases (discussing treatment the life of importance of the issue stake: description on the dissenting 651 A.2d at 997. Our Post the defendant. every “admit[ting] uniqueness of case” argues colleague “unmanageable.” 651 A.2d at 997. We Post at makes review every unique proportionality review disagree. case is makes That Moreover, capital cases as impossible. to treat but not difficult searching thorough, rob defendants of the interchangeable would statutorily they are entitled. review to which to jury’s also that failure find The State contends great weight. Although mitigating factor be accorded should this proportionality proceeding review not a in which Court required second-guess jury’s findings, we are in penalty should comparative-culpability weigh objec all that is review to evidence tively that present the record and is rooted traditional Therefore, review, precedent-seeking sentencing guidelines. jury mitigating though even it we consider evidence found IV, statutory mitigating insufficient to establish a factor. 367-69, supra, 645 A.2d 685. 137 N.J.

b. Summaries of Similar Cases or, if published opinions the cases We base our summaries on are on the contained in the unpublished, discussion those cases AOC’s Detailed Narrative Summaries. Non-Stranger Kidnapping

i. Jalil, male, planned thirty-two-year-old for five Nelson Jalil pregnant, twenty-two-year-old to kill his wife because of months frequent carry arguments them. He decided to out his between plan accompany on November He asked his wife to him 1987. evening when he to clean an office. At a.m. on went wife, began arguing November he with his handcuffed her back, face, strangled and hands her beat her back and her. behind bloody, Both his wife’s and shoes his and clothes were was swollen, bruised, interior the car. victim’s face was bloody. body with Jalil covered his wife’s a blanket drove jobs, leaving body two in his car while he worked. On a.m., dumped at about defendant his November 1:30 wife’s body junkyard, yard in a deserted area of a where a worker morning. discovered it later having Charged purpose-

Jalil confessed to killed his wife. with murder, knowing possession weapon, ful and unlawful of a aggravated manslaughter kidnapping, pleaded guilty he thirty-year court him to a term kidnapping. The sentenced parole manslaughter a consecutive fifteen-year disqualifier for and kidnapping. five-year for twenty-year parole a bar term with high dropped of States in out Jalil came to the United ability English to grade speak his school at the tenth when work, him and was a maintenance sufficient to allow to became office, poor in hospital, race track. He is at an a and a worker health, anxiety, and has no physical depression from and suffers record. prior May-

Gary Mayron twenty-two-year-old March On They seventeen-year-old at an met his female victim arcade. ron beer, truck, to a Mayron’s bought six-pack and went left a thereafter, motel, Shortly Mayron they engaged in where sex. victim conscious- strangled the with his belt. After the lost victim truck, her, ness, Mayron placed in his the belt dressed her broke. area, regained conscious- to where the victim and drove a secluded not pleaded her life. Defendant said that he was ness and her lesson about going was to teach “a going to hurt her but rock, down, her a shoved hit head with promiscuity.” He then her hill, The victim punched and kicked her. dragged her a and down stick, overpowered defendant herself with but tried defend to a Defendant then went and left face-down water. her her to wash his hands shoes. bar assault, called Mayron girlfriend his about she After told arrested, Mayron but confessed first denied then police. being On kill his victim killing, claiming he intended to that had not He left her. she still alive when he thought and that he that was kidnap- knowing purposeful murder and of guilty found was trial, aggravating factors jury both ping. penalty At the found e(4)(c), c(4)(g), suffering, and extreme that the State had asserted: experts Defense testified kidnapping. of a murder the course alcohol, experienced he Mayron when combined sex and violent, biological mother episodes. Mayron’s psychotic sister in foster care. spent much of his childhood testified he had disturbance; c(5)(a), jury mitigating emotional found factors defect, intoxication; c(5)(h), disease, e(5)(d), or mental c(5)(c), age. Because rejected mitigating It factor catchall factor. sentence, agree imposition of a death juror could not on the one for the thirty-year parole bar Mayron received a life term with ineligibility thirty-year period parole a consecutive murder and kidnapping. for the charged rape and assault with

Mayron previously had been charge. of the assault deadly weapon, and had been convicted aggravated assault. He had been He had also been convicted school, Army, in the and had graduated high from had enlisted committing aggravated discharge for an received a dishonorable every day age eighteen, had consumed beer since assault. He had Psychiatric Building at Trenton been committed to the Vroom alcohol programs in treatment for both Hospital, and had been and cocaine abuse. McKenzie, 9, 1985, twenty January age McKenzie On Clifton

nine, place employ- twenty-six-year-old victim at her met the ment, against apartment, her to her and held her there went with will, assaulting physically sexually. and repeatedly her her while 12, 1985, January family apartment on her arrived her When family victim’s took through fled a back window. The McKenzie supposed to police report. station to file a She was her to the disappeared doing sign complaint, but before so. return to 9, 1985, manager police that the February a motel notified On guests. one of the Police and a first- staff was unable to awaken McKenzie, transported occupant, squad responded and the aid drug-overdose Police then searched hospital treatment. body in trunk. An found the victim’s McKenzie’s car and oxygen deprivation or autopsy that she had died of showed exposure or both. riding in police that he and the victim had been

McKenzie told arguing, her nose and begun and had that he had covered his car state, lapsed into an unconscious mouth with his hand until she the next two placed that he then had her his trunk. Over and victim, noticing days, on his that she had become he had checked knowing and “shrinking.” was He was convicted of “cold” and murder, murder, felony kidnapping. and purposeful c(4)(f), aggravating factors murder The State served notice detection, felony. jury c(4)(g), contemporaneous The escape c(5)(d), only c(4)(g). mitigating factors mental found It also found e(5)(f), disease, defect, intoxication; history; prior no criminal or c(5)(h), rejected mitigating the catchall factor. It factor c(5)(c), age. aggravating It did not find that factor out- weighed mitigating a life term factors. McKenzie received knowing purpose- thirty-year parole disqualifier for the kidnapping. fifteen-year term for the ful murder and a consecutive felony-murder into sentencing merged The court conviction knowing-and-purposeful-murder conviction. college completed one semester of but had Defendant had a heroin addict and had dropped out to work full time. He was evalua- through programs two treatment and mental-health been He had several convic- Diagnostic tion at Menlo Park Center. offenses, tions, disorderly-persons forgery. including burglary, 22, 1988, the victim told a September Valdez On Gilberto battery where that codefendant could obtain some codefendant chargers. chargers turned out to be defective. When returned, drinking. the two codefendants were victim Valdez and victim, by him dragged then a tie The three defendants beat the There, they wrapped his neck to some railroad tracks. around him, hose, beating stripped him. him with a continued tied object and stabbed him. The hit the victim with a steel Valdez strangulation. beating of the and of victim died murder, kidnap- Charged felony aggravated manslaughter, with purpose, ping, possession weapon a for an unlawful and unlaw- weapon, pleaded guilty aggravated possession ful of a Valdez eode- twenty-five-year a term. One manslaughter and received murder, felony thirty-five-year a term for fendant received pleaded guilty kidnapping. the other He was at the time of the offense. was homeless Valdez a and as having formerly worked a mechanic unemployed, health, and enjoyed good physical mental and He stonemason. drugs alcohol. using other than denied Wat- Ricky was a codefendant of Valdez. Watkins Watkins the victim’s wrapped the tie around kins was the defendant who was dragged the railroad tracks. Watkins neck and him to murder, kidnap- felony aggravated manslaughter, charged with unlaw- purpose, a an unlawful ping, possession weapon for counts, jury him all possession weapon. of a A convicted ful thirty-year imposed thirty-five-year term with a and the court eight-year felony-murder conviction and an parole bar for merged court aggravated term for the assault. The concurrent felony-murder other counts into the conviction. drop-out time of the eleventh-grade is an who at the Watkins he where lived a trailer house inside warehouse offense problems had no operator. as a forklift He mental-health worked cocaine, dizziness, and had from was addicted to but suffered arrest, larceny, resisting invasion of burglary, convictions privacy. Stranger Kidnapping

ii. 21, 1987, place of August the victim left her Barone On Jamie at a mall. never returned. employment to meet a friend She days body found area several Fifty-two later her was wooded mall. of a skull caused miles from the had died fractured She body. bludgeoning separated her skull from her had possession in anoth- victim’s car Barone’s was discovered victim’s credit cards. Barone had also used several er state. shopping at investigation that Barone had been Police revealed eyewitness disappeared. An mall from which the victim had any victim Barone at the mall. Barone denied had seen the abduction, given had in the and claimed that someone involvement given and the in the then had him the car him a ride car and wallet. victim’s mur- knowing purposeful

The defendant was convicted der, weapon, kidnapping, robbery, possession unlawful of a trial, jury aggravating felony penalty At the found murder. c(4)(f), detection, escape c(4)(g), contempo- factors murder to c(5)(c), felony. jury mitigating factors raneous also found e(5)(f), c(5)(a), rejected age, and the catchall factor. It extreme jury mental or emotional disturbance. Because the was unable weighing process-, the trial court sentenced reach a decision thirty-year parole He also Barone to a life term with a bar. thirty-year fifteen-year period parole received a term with a sentence, ineligibility kidnapping, consecutive to the murder twenty-year ten-year parole for the and a term with a bar merged robbery, kidnapping consecutive to the term. The court felony-murder purposeful-and-knowing- conviction into the murder conviction.

Barone, Army, he had age twenty-six, had been in the where significant history drug college credits. He had no earned prior previously crack use. He was convict- abuse but admitted driving larceny, possession motorcycle, grand ed of of a stolen license, burglaries, theft. without a two and auto Principals

iii. Contract old, 1988, Brand, thirty-two years Brand In began Francis long-time high-school importuning Randy Burroughs, Brand’s friend, drugs selling Arthur was to kill Brand’s brother Arthur. family. drugs abusing his He also sold from out of the home and brother, Joey. to another ever-increasing money promised Burroughs amounts of

Brand murder, persons to and also asked at least two others for the 1988, Burroughs agreed to kill killing. commit the October Later, Arthur, carry July on unable to out the murder. but was fight Arthur Burroughs attempted up to break between fought. Joey, Burroughs and Arthur the course of which a.m., week, 11,1989, carrying July Burroughs, The next on at 3:00 through an unlocked door shotgun, entered the Brands’ house began Arthur slept. where Arthur As and went into the bedroom 60 said, hurting people,” and rise, got stop Burroughs “You to

to twice. then shot Arthur “you’re done.” He day during and also Burroughs met later and defendant night Burroughs returned to discussing payment. That without present at the police, told the who were the Brands’ home. He scene, by only pick a hat that he stopped up to crime that he had by police the follow- previous day. Questioned had left there the police killing, told ing day, Burroughs admitted to the attic, implicated Francis. shotgun in his and was killing of his any Francis Brand denied involvement death, brother, and claimed that expressed remorse over his July anger fight on 4. Burroughs solely out of over the had acted murder. conspiracy him to commit juryA convicted of murder and case, capital although the State presented as a The case was not c(4)(e) Francis could aggravating factor could have asserted c(5)(h). c(5)(a), c(5)(f), mitigating presented have factors Although dropped high he out Brand had no criminal record. diploma. grade, he later received his Unem- school the twelfth arrest, previously worked of his he had ployed at the time children, history janitor. single, has no no sporadically as a He abuse, any drug and denies mental illness. reported as Engel Engel This case is and Herbert William N.J.Super. (App.Div.1991), A.2d 572 Engel, v. State (1991). denied, The State tried 130 N.J. 614 A.2d certif. William, penalty. together, seeking the death the defendants victim, Engel, suspected his wife of Xiomara married to the private investigator, who found no evidence infidelity. He hired a jealousy. infidelity, finding not overcome William’s but that did groundless suspicions, his wife with his He often confronted verbally physically. abusing her both during beatings, and mother witnessed two Xiomara’s aunt to be killed. The claimed that Xiomara deserved which William annulment, to harass marriage in an but William continued ended obtaining employment to sought prevent her from Xiomara and ensure that she did not began calling meet other men. He also Diaz, secretary Andres for whom Xiomara had worked as a developed with whom Xiomara relationship, pose had unwar- insinuating questions. ranted and 13, 1984,

On December agreed Xiomara to meet William at his preparatory shopping office trip daughter’s to a for their Christ- presents. Dropping mas grandfather off her children and her apartment, explained grandfather, her she to her who towas babysit children, way for the that she was on her to meet with evening, grandfa- William. That William called twice to tell the ther keep appointment. that Xiomara had failed to the night, police responded burglar

At 8:00 that to a alarm at place They William’s Engel’s business. saw Herbert car in the knocks, parking Engel responded lot. William to the officers’ order, assured them everything quickly that was in closed the Suspicious, door. the officers remained at the scene. When reappeared, open William the him officers ordered to the door. William, nervous, appearing came outside and shut the door. He manner, questions answered the officers’ in an evasive but because policemen recognized building, the William as the owner of the they pursue did not detain him or otherwise the matter. day, daughter

The next Xiomara’s oldest told Xiomara’s mother returned, that the victim morning had never and later that Wil- say liam called to that appear Xiomara had failed to for their shopping trip. going When the mother said she was to call police, suggested the accompa- William that she wait until he could ny police her p.m. to station that afternoon. When 11:00 arrive, mother, Diaz, accompanied by William had failed to police went to the without William. Xiomara, part police

As of their search for interviewed William home, during very at his appeared which he chain-smoked and repeated nervous. He his claim that he had not seen the victim on night of December 13. body in police a discovered 14 South Carolina December On removed, plates had been but wagon. license burned station ownership to Xiomara trace car’s were able to police through dental records. identify body her her record, James police arrested not stated in the For reasons capital promise to the State’s waive In return for McFadden. concurrently, run recommend that sentences prosecution and to murdered, explained had been Xiomara McFadden revealed implicated William and Herbert. killing, both his role by Herbert early McFadden had been hired December salary. salesman, agreed although they had on a never as a McFadden, hiring invited McFadden to Shortly after Herbert restaurant, McFad- he William to him at where introduced meet had a that William as his “cousin” and told McFadden den him. Herbert said that harassing When girlfriend who was killed, $25,000 did not to have her McFadden pay would William days they again several later. request, met respond. At Herbert’s offer, repeated agreed to commit the and McFadden Herbert following They at William’s warehouse murder. were meet arrived, he Thursday. carrying a briefcase which McFadden had from the back placed cord that he removed had a wire was not learned that McFadden refrigerator. When Herbert to a revolver. carrying gun, opened a his own briefcase reveal he strangle the when she to victim Herbert directed McFadden light, William, pretend to to turn on the with who was arrived body Engels’ transport the to the to after which McFadden was told to McFadden was grandparents’ home South Carolina. acid, the car it and to have body in a hole and cover with place the acid, body in Herbert purposes disposing of the crushed. For elbow-length, gloves. He pair of thick rubber gave McFadden a him in cash told to hide the gave McFadden and $1300 then bathroom. light the He fumbled with entered with Xiomara.

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

After Xiomara station-wagon McFadden her backed garage into help and with William’s body threw the into the car. body. William went outside while McFadden covered the When he garage, returned to the was William nervous and said police that the were police, outside. After William dealt with the left, driving station-wagon. McFadden Xiomara’s picking After up acquaintance, Wright, an Lewis “Pee with Wee” he drove Wright Wright, South Carolina. uninformed of drive’s purpose, body during trip. discovered the On arrival in South Carolina, car, Wright burned the after which the two men cele- brated the occasion at a bar. Jersey, gave

On their return to New Herbert McFadden $5000. Wright When Herbert later accompanied discovered that had trip, on Wright, McFadden he kill instructed McFadden to paying him another $1000. trial,

At William Herbert were convicted of murder conspiracy to commit murder. jury found that the defendants paid to had have the murder At the penalty phase, committed. c(4)(e), jury hiring did not find the aggravating factor killer, c(5)(a), outweighed mitigating factors extreme mental or distress, duress, record, c(5)(e), c(5)(f), prior emotional no criminal e(5)(f), factor, catchall wherefore the court them sentenced thirty-year parole to a term period ineligibility. life with a Marshall, Reported Robert Marshall N.J. State v. (1991) (Marshall I), proportionality aff'd, A.2d Marshall II, Marshall, supra, 130 fifty-four- N.J. 613 A.2d 1059. year-old agent, began insurance having an affair extra-marital early following Krausharr in June Sarann 1983. As as the December, the prospect defendant mentioned to Krausharr the wife, killing Although his wealthy, Maria. was lived Marshall he beyond his means and was indebted to the extent of more than on life to

$168,000. the amount of insurance Maria’s He increased $1,400,000 neglecting policies. his own while about McKinnon, Wayne paid Billy a former Louisiana also Marshall officer, they Jersey. to meet him New When sheriffs $5000 18, 1984, City Marshall offered McKinnon met Atlantic on June $10,000 $65,000 promised in advance to kill Maria. He McKinnon $50,000 gave proceeds. He McKinnon from the insurance and Marshall, Maria, he, assuring him that picture $7000 suspected outstanding was citizen. because he an would not be evening. McKinnon to kill Maria that He instructed murder, attempt carry out not make an the McKinnon did meeting on After a second instead returned to Louisiana. but life, 19, 1984, July attempt an on Maria’s Marshall ended without $15,000 if McKinnon kill Maria McKinnon an extra would offered 6, 1984, Day. September they again, met Labor On before Parkway at which McKinnon spot on State selected a the Garden Maria, like plans to make the murder look kill and made would Maria, City robbery. spending evening that at Atlantic After Parkway’s Oyster picnic area his to the Creek Marshall drove car car, lay got sleeping in the Marshall out planned. as While Maria flat He then to be pretext fixing tire. allowed himself on part staged robbery. Maria was shot hit on the head as instantly. twice the back and died McKinnon, police who telephone led Marshall’s records Larry Thompson, a turned State’s evidence. McKinnon identified man, police investigation also gunman. Louisiana policies and the life insurance disclosed Marshall’s financial straits juryA he taken out on Maria. convicted Marshall had At murder of murder hire. his conspiracy to commit c(4)(e), trial, procuring jury aggravating found factor penalty c(5)(f), record, prior mitigating factors no by payment, murder c(5)(h), jury’s finding factor. Based on the the catchall factors, outweighed trial aggravating mitigating factors convic- to death. We affirmed both his court sentenced Marshall proportionality of sentence. tion and the his

iv. Contract Killers Randy Burroughs Burroughs’ part case is out as set of the iii, 59-60, discussion supra of Francis Brand in subsection Burroughs A.2d at charged 976-977. was with conspiracy, mur der, murder, felony burglary, possession of a weapon for murder, unlawful purposes. pleaded guilty He to and the other charges were dismissed. The court Burroughs sentenced to a thirty-year thirty-year term period parole ineligibility.

Burroughs school, graduated high having was from spe- taken jobs cial-education He classes. has had several but has not held any longer of them single for than six He is months. and has three children three different He history women. has no drug abuse. record His shows one conviction terroristic threats, in which resulted a fine.

James D. reported part Claused This case as State v. Claused, (1990). victim, 121 N.J. 580 A.2d 221 Edward Atwood, complaint municipal against filed a neighbor, court his Bartlett, Roland cruelty failing provide for intentional dog his leaving dog’s with water and for excrement in the kennel for periods excessive of time. acquitted Bartlett was of the intention al-cruelty charge was failing dog’s but fined for clean the kennel. 12, 1984, August game

On Atwood was at a basketball with his grandparents when two men arrived at the door of his house at p.m. them, recognize 10:45 wife Atwood’s did not and when she home, they told them that husband her was not left. Atwood grandparents shortly midnight, returned with whereupon his after opened door, the men returned and knocked. When Atwood wife, grandparents, daughter by. his Tanya were close His top man, Dwayne son Darrell sat at the of the stairs. The first “Ed,” Wright, replied they asked for to which Atwood had wrong guy.” door, “the Wright As Atwood tried to close stepped way out of the and Clausell fired two shots from his .357 Magnum handgun. The first shot Atwood. The killed second narrowly Tanya. shot missed Grant as the killers anonymous tip identified Clausell and

An car. Clausell and getaway as the driver of Schall Jennifer purpose- knowing and together for own-conduct Wright were tried murder, aggravat- murder, five counts of ful to commit conspiracy intent, assault, weapon with unlawful possession ed Grant, permit. Paul a friend of possession handgun of a without a son, Anthony, had ap- that Roland Bartlett’s Wright, testified killing for He also testified proached him someone $5000. about call, they a that were phone had stated that Clausell had received evening, apiece murdering someone that going to receive for $2000 Magnum. and had armed himself with a .357 Schall, immunity, that Clausell testifying grant under a stated drug attempt an to collect some Wright and had embarked on up also testified that money perhaps and to beat the debtor. She the two men had run gunshots, heard after which she had two they dropped off at a car drove off. She them back to the Bartlett, paid. they expected to be allegedly club where owned charge. jury The conspiracy The trial court dismissed murder, finding knowing that purposeful or convicted Clausell of him of three of the five gun, he fired and also convicted had weapons charges. The aggravated-assault charges the two jury charges, but it did Wright guilty of the same because found subject to gun, that he fired the he was not death- not find had thirty- Wright received a life term with penalty proceedings. murder, totaling year and consecutive sentences parole bar for the charges. years six and three months for the other Clausell, jury aggravating penalty for found At the trial the. subjected c(4)(b), purposely knowingly or that Clausell had factors c(4)(d), death, grave other than his victim to a risk someone mitigating factors payment. of murder for It found commission record; c(5)(f), c(5)(h), c(5)(c), prior the catchall age; no outweighed aggravating that factor all It also found each factor. beyond mitigating a reasonable doubt. court factors It also sentenced him to a custodial Clausell to death. sentenced term the other convictions. for sentence,

We reversed defendant’s death 121 N.J. 580 A.2d (1990), jury because the trial court had failed instruct the capital Clausell could be convicted of murder if he purposefully Atwood, knowingly or had caused the death óf opposed purposely knowingly causing injury or bodily serious death, Gerald, resulted a Gerald See supra, error. remand, N.J. 549 A.2d On 792. was defendant not sentenced capitally.

Roland Bartlett was convicted and sentenced to a life term parole thirty-year bar. Clausell, tenth-grade dropout, daily. used cocaine After At- murder, murder, wood’s but before Clausell’s arrest for that shooting Clausell had been leg arrested another man in the child, injury resulting three times. He had suffered a as a head severe headaches.

Anthony Reported DiFrisco at 118 N.J. 571 A.2d 914 (1990) I) (DiFrisco (affirming reversing sen conviction but death II) tence), (1994) (DiFrisco and at 137 N.J. A.2d 734 review). (upholding death but postponing proportionality sentence four, twenty age Anthony At DiFrisco met Franciotti the when serving prison. released, two were time in After had both been Franciotti, drugs, who distributed became convinced that Edward Potcher, an pizzeria, owner of a to police intended inform the Franciotti’s He activities. therefore asked DiFrisco to kill Potch er in drug return the cancellation of a debt and for $500 $2500 agreed. DiFrisco cash. early August gave Franciotti DiFrisco a down $700

payment, bar, August they and on 12 took to a DiFrisco where marijuana. had some drinks and p.m., used At about 7:30 Fran- pizzeria. ciotti drove to the DiFrisco claimed also to used have pizza heroin. He shop, walked into the where man he saw a description behind the counter given by who matched the Fran- man, delivery While talking boy ciotti. DiFrisco was to the a time, entered. To stall for a pizza DiFrisco ordered slice of and a left, boy the soda. After DiFrisco When ordered second soda. soda, him a .32 the DiFrisco shot with get to Potcher turned arm. The and once four times in the head caliber revolver face, ear, forehead, top entry were fatal wounds the head. they away. The drove to Franciotti’s car

DiFrisco returned no of the fee. Police had day, paid Franciotti the remainder next leads. later, City police DiFrisco for

Eight New York arrested months theft, violations, endangerment. reckless traffic ear various have probation, on conviction would Because DiFrisco was arresting if prison. officer him return to He asked the caused to The officer him anything he do to avoid incarceration. told could major any help. When DiFrisco revealing crimes would principal or the in a contract inquired whether the assailant replied principal that the culpable, more the officer murder was murder, to subsequently confessed the Potcher was. DiFrisco although know victim’s name or address. he did not nothing DiFrisco’s prosecution had other than

Because the prosecutor suggested place that DiFrisco allegations, the assistant Franciotti, incriminating make to induce Franciotti to a call to being tape informed about the murder. After statements on mitigating meaning aggravating and prosecutor about the consulting public defend- capital in a and after factors case However, er, agreed call. DiFrisco’s father to make the DiFrisco cooperate paid advice of counsel. The him without the told not after was made prosecutor told him that his arrest assistant given cooperate. He public, not a chance DiFrisco would be jail. to be returned to not to make call asked decided murder, capital charged with State After DiFrisco was c(4)(c), outrageously or vile aggravating factors wanton alleged c(4)(f), murder; c(4)(d), gain; and murder to pecuniary murder for his pleaded guilty, DiFrisco admitted that escape detection. Potcher, jury right his to a been to kill and waived intention had aggravating penalty The trial court found factors for his trial. submitted, c(4)(d) c(4)(f). mitigating five factors and Of the c(5)(c), c(5)(d), disease, defect, intoxication; age; c(5)(f), mental or significant prior history; c(5)(g), no criminal substantial assistance State; c(5)(h), factor, to the and only the catchall the found court c(5)(g), substantial It assistance. sentenced DiFrisco to death.

This Court affirmed the defendant’s murder conviction but reversed his death lack of corroborating sentence for evidence of his confession that he had hired kill been Franciotti to Potcher. On sentencing proceedings remand the the defendant elected to jury e(4)(d) alleged have a trial. aggravating The State factors e(4)(f), again alleged c(5)(a), mitigating defendant factors c(5)(h). e(5)(d), jurors All found that DiFrisco had committed payment, the murder for but eleven found that he had However, it to committed avoid of another detection crime. jury beyond found aggravating reasonable doubt that the factor found, outweighed all the mitigating factors that it had accordingly the trial again court sentenced death. DiFrisco to We sentence, upheld capital that second 137 N.J. 645 A.2d 734 (1994).

DiFrisco was addicted prior to heroin and cocaine. has two He convictions, burglary adult for and for trespass. criminal Miguel Melendez came to Melendez the United States from 1980, fleeing military Cuba in criminal convictions and service there. lived He for a time Lazaro with Trimino. Trimino had Gerome, Pedro contacts with who offered Trimino and a $5000 vacation in Miami if or Trimino killed hired to kill a someone someone, Jersey person City. certain Trimino hired and Ger- gave person person ome gun, but was arrested gun. Melendez, possessing agreed asked Trimino then who perform killing proof friendship of his with Trimino. Trimi- no instructed Melendez apartment building to wait in victim’s and, identity, inquire to confirm victim’s car that about a selling. victim was apartment

As the victim returned to shopping his from his ten-year-old daughter, approached Melendez him and asked in Spanish replied already about the car. had The victim that he Replying money. him car. then asked for sold the Melendez none, away. daughter then heard he the walked had victim ground. her fall to the around to see father two shots and turned scene, police pronounced arrived the He was later dead. When A former daughter gave description the them a of Melendez. prisoner head a club of such former political in Cuba and the daughters. two prisoners, victim was his wife and the survived informant, police Through provided by an were able information in which admitted tape telephone to a Melendez conversation Jersey paid killing City. When having for someone been arrested, gave rights his a statement Melendez waived killing, acknowledged he committed the after which he had fled Puerto Rico. Melendez and which he and Trimino had to murder, pur- charged conspiracy to commit Trimino were murder, possession handgun for unlawful poseful knowing of a jury possession handgun. a A convicted purposes, and unlawful trial, penalty jury the found all At the Melendez on counts. c(4)(d), gain. The pecuniary murder for de- aggravating factor c(5)(a), mental or emo- mitigating asserted factors extreme fense intoxication; c(5)(d), disease, defect, disturbance; mental or tional c(5)(h), prosecution; in another c(5)(g), assistance to the State c(5)(h). jury only c(5)(g) the factor. The found catchall agree weighing of the jury was unable to on the Because factors, thirty- to life with a the trial court sentenced Melendez ineligibility, merged conspiracy conviction year parole term of ten-year conviction, gave Melendez a consecutive into the murder three-and-one-half-year disqualifier parole sentence with merged purpose, and possession weapon of a for an unlawful possession-for-an-unlawful- unlawful-possession conviction into the purpose conviction. guilty conspiracy to commit murder and pleaded

Trimino ten-year country. has fled term. Gerome received Cveticanin, who wanted Rose Michael Rose met Zoran Michael inheriting Kathryn, prevent killed her from step-mother, his husband, father, Vlado. Zoran also of her the defendant’s estate fifteen-year-old Quinton part convinced Edwin to take Quinton scheme. operated by lived next to Glassboro store Kathryn. having Kathryn Vlado and Zoran had talked about day Quinton couple killed since the that he and had met months before. murder, Quinton

About month gave keys a before the Zoran to Quinton the told going Kathryn. store and that Rose was kill to Quinton He asked to lock the door behind to act Rose and as a July 20, 1983, morning gave Quinton lookout. theOn of Zoran sixty place dollars and told him that the murder take was to that noon, day. Quinton Zoran Philadelphia say Around called from to p.m. Quinton, that Rose would arrive 2:00 around Rose met told strangle him probably Kathryn, Quinton that he would and asked so, to Quinton enter the store to see if was she alone. did returned, alone, reported Kathryn and was after indeed which Rose about waited five minutes and then the entered store. Quinton went home. then store, knives, tackhammer, stick,

Inside the Rose a a used two a hacksaw, sump kill pump pregnant Kathryn. and to the He eighty-three stabbed her and times inflicted several blunt-force Quinton later, to the wounds. When returned store he saw the body lying keys in blood. he Thereafter returned the to Zoran. later, days gave Several Zoran and his sister of Rose $540 promised dispose and him to his directed of bloodstained $1000 clothes. charged purposeful

Rose arrested with knowing was and and trial, conspiracy murder with commit At and to murder. he gone in his testified defense that he had to the store to warn her, Kathryn going whereupon Zoran to kill was she had attacked Rose with a knife. claimed to killed Rose have the victim ensuing in the struggle. self defense course of the The State’s struck, expert that the stated bloodstains established that when away backing the victim had been from her assailant and that thirty-six thirty-eight eighty-three to of the wounds stab were jury charges. A defensive wounds. convicted Rose on both aggravating trial, sought prove penalty to At the State e(4)(d), murder, c(4)(c), vile outrageously wanton or factors mitigating factors pecuniary gain. urged The defense for murder c(5)(e), wrongfulness; c(5)(d), appreciate capacity to diminished record; c(5)(g), c(5)(f), sub- duress; prior criminal significant no assistance; c(5)(h), penalty factor. catchall stantial c(4)(c) c(5)(e), mitigating factors jury factor aggravating found c(5)(h). wrongly required c(5)(f), e(5)(g), sheet The verdict However, jury to was unable unanimity mitigating factors. weighing process, so the trial court reach a decision thirty-year disqualifier parole Rose to life with sentenced ten-year term a five- conviction and consecutive murder period conspiracy for the conviction. year parole-ineligibility I.Q. sixty-eight, dropped an out school Defendant who has murder, working. At the time of the grade tenth start separated from collecting compensation. workers’ He is he was two children. He was a member his common-law wife and has memory developed loss due his church’s choir. He claims have problems reports physical He cocaine abuse. also to alcohol and prison. in being and nosebleeds from assaulted such as dizziness Yugoslavia, his to the former Zoran Cveticanin fled with sister thirty years he convicted of murder and sentenced to where was hard labor. Pecuniary-Advantage Killers Non-Robbery

v. Other thirty-six-year-old married was a Walter Williams Williams He lived with his wife and three policeman and veteran. Vietnam daughters in his her mother. a house owned wife and 1979, police duty high-school function Williams on

While reading began he an After young whom affair. met woman with cyanide hydrochloric poison, purchased he acid a book on and claiming July falsely that he use them official would Later, falsifying a after divorce decree police business. his November papers, the defendant married mistress on related house, nights girl’s parents’ began spending at the 1984. He nights at a spending that he was V.A. telling his actual wife hospital to receive exposure treatment for wartime Agent Orange. suspicious Mrs. Williams became that Williams was having an affair. 31, 1985, January

On stopped by Williams his wife’s house. Having young learned that the woman had been his car when accident, Williams had been involved in an Williams’ wife asked him about it they and indicated that would discuss the matter departed. later. Williams After dinner that evening, Mrs. passed Williams, Williams out. duty, on came to the house and took her to hospital. appear upset. He did not At the hospital, cyanide Mrs. Williams poisoning, died of symptoms headaches, which mouth, include an acrid taste in the difficulty breathing, and nausea. morning

The next Williams moved back into the house. He wanted body Mrs. Williams’ objections, cremated. Over his performed authorities autopsy, an which revealed a lethal dose of potassium cyanide in organs. 11, 1985, the victim’s February On Williams learned that Mrs. Williams’ will left her house to the daughters one dollar to daughter him. One heard him say that he happen, “knew that this get would that he wouldn’t anything.” later, About two daughter weeks another found a second will that left the estate to Williams. 7, 1985,

On March Mrs. Williams’ mother became ill. She too died exhibiting symptoms after daughter same as her had displayed. day, The next Williams showed second will to his They sister-in-law and her police. husband. called the 18, 1985, July police On arrested A Williams. search of the potassium house cyanide revealed bottle of with Williams’ hand- writing on the label in May the attic under some insulation. On misconduct, charged he was forgery, perjury, official murder, purposeful knowing bigamy. The State served c(4)(d), aggravating motive, c(4)(f), notice of pecuniary factors and escape murder to argued detection. The mitigating defense fac- c(5)(e), c(5)(f), age; significant tors prior history; no criminal and c(5)(h), the catchall jury factor. The aggravating found factor 74 c(5)(f) c(5)(h).

c(4)(f) It mitigating found the and factors and equal aggravating with the mitigating factors to be in balance factor, term with a to a life so the trial court sentenced Williams murder, five-year a thirty-year parole bar for the to consecutive misconduct, parole to two-year bar for the official term with a convictions, forgery five-year terms for the three three concurrent bigamy. to a concurrent six-month term and have who claims to earned is Vietnam veteran Williams science, university although from degree in masters behavioral graduated has no record of his which he claims to have been justice. in degree an criminal He has associate’s enrollment. history prior drug no Williams has no or alcohol abuse and history. to He a trustee his church. He claims criminal was experience relating his service in Vietnam to flashbacks to outpatient counseling through the Admin- Veterans’ have received istration. Analysis Culpability

c. of Defendant’s 971-972, above, 48-49, supra at A .2d when 651 As discussed three-part evaluating culpability, we consider model defendant’s looks, first, culpability moral blame of criminal defendant’s third, second, victimization; worthiness; degree to the 366, IV, supra, 137 N.J. at defendant’s character. See II, 685; supra, A.2d 1059. To Marshall 130 N.J. at A.2d weigh the set forth evaluate those three factors we elements II, supra, N.J. at 613 A.2d 1059. chart Marshall separate Application of elements that bear on moral chart, identified the Marshall 130 N.J. at blameworthiness as A .2d to the conclusion that Martini’s moral leads is, great. pecuniary, His motive was blameworthiness is $100,000 simply the crime to obtain first defendant committed $25,000 meticulously planned then in ransom. His crime was justification carefully premeditated. any or Defendant lacks ex cuse, jury rejected provocation. his evidence of such as disease, defect, disturbance, although or defendant claims mental rejection that that improper was contention that we do not —a accept. Martini’s acute awareness of the effect of the crime on nondece- dent victims was also clear. attempt His to obtain ransom de- pended ability on his family, to terrorize Flax’s and he threatened only Irving to kill not Flax Only jurors but Mrs. Flax as well. six age, fifty-eight found his crime, at the time of the to be a mitigating Finally, factor. planning his role in the murder was a major one. Those considerations all establish defendant’s moral blameworthiness, and their combined effect is extreme.

The category second degree to consider is the of victim components ization. The two of victimization listed Marshall II, supra, N.J. 613 A.2d are the violence and brutality of injury the murder and the to nondecedent victims. emphasizes Defendant physically that he did not torture his victim, points out that the manner which he murdered his quick painless victim led to a argues death. He also Flax, although he terrified Mrs. his designed give calls were her hope unharmed; moreover, that he would release her husband he contends that for great weight this Court to accord to the effect of his family actions on Flax’s prohibition against violates our victim- impact Although evidence. recognize we that Martini did not physically torture Flax and that other defendants have inflicted victims, pain on their we conclude degree nevertheless that the victimization was depended substantial. Defendant’s scheme on terror, can, abuse, physical circumstance that like high create a degree Moreover, of victimization. because Martini’s victimization Flax completion crime, Mrs. was essential to the of his our having consideration of her been victimized does run not afoul of prohibition against our victim-impact evidence, designed which is preclude the introduction of inflammatory immaterial testimo ny. II group third of factors set out in Marshall focuses

on the character of the deféndant. In that connection we note pleaded first that Martini guilty has to a double homicide in Arizona, Pennsylvania, and awaiting for murder in is trial jury killings. neither of suspect in four other Because heard violence, howev- prior nor of unrelated acts of his record evidence Second, er, although defen- that information. we do not consider killing kidnapping and and told dant confessed to the instant same, jury to permit court did not to do the the trial Afdahl mitigating a c(5)(g), circumstance consider factor which treats as prosecution cooperation in the of another defendant’s substantial beyond go jury’s to person murder. we are free for Because factor, respect mitigating have examined the conclusion in of a we cooperation with authorities and have con- evidence of Martini’s “cooperat- although did and hence that defendant confess cluded respect, in his confession was de- ed” the authorities one product signed the illusion that his actions had been a to create Third, showing limited to poor his of remorse is mental health. Fourth, family. fifty-eight apologizing his own Martini was to 1989; he crime in therefore his years when committed his old limitations. capacity for rehabilitation suffers obvious jury give proper to Finally, argues that the failed defendant jurors mitigating mitigating Only his six found credit to evidence. e(5)(d), juror c(5)(c), age, mitigating factor factor and no found wrongfulness mental capacity appreciate due to diminished to disease, defect, hardly that the or intoxication. We can conclude factors, findings respect in compelled affirmative those evidence persuaded we our own are not that should substitute we judgment jury. for that of the Case Comparison of Similar Cases Defendant’s

d. distinguishable argues not from Defendant that his ease is eases, non-stranger-kidnapping each of which result the other five correctly that each victim 685; (discussing prior see also id. at 645 A.2d 685 effect conviction). Martini, Accordingly, compare murder we cannot pleaded guilty who at the time of his trial had to the Arizona homicide, Pennsylvania charge double and whose murder remains unresolved, prior to defendants whose murders had been revealed jury. to the stranger- Barone the in

Jamie sole defendant kidnapping category. argues culpable Defendant that he is less Barone, innocence, although protesting than Barone because his any failed to show remorse. He also claims that Barone is more deathworthy greater present because of the of victimization level responds in his case. State that Barone’s crime was one of opportunity, premeditation, not of and that the case did not family involve the same level of terror for the victim and her as capital Martini’s case did. The tried Barone’s as a State case prosecution, jury but the was unable to reach a unanimous deci penalty phase. juries in sion Because must consider each case individually, expect we cannot the same result even in similar IV, supra, cases. See 137 N.J. at 645 A.2d 685. Accord- factually-dissimilar cases have similar levels ingly, even if those that require the conclusion culpability, circumstance does not that aberrantly sentencing him to jury in in case acted defendant’s death. Brand, principals, the contract group

The next cases contains brothers, Engel Marshall. Defendant characterizes murders, precondition” “fatal murders their cases as involved argues killings as can never be as from which he such his reject that blameworthy precondition” a “fatal murder. We as 52-53, supra 651 A.2d 973. Of argument. discussion See cases, did penalty. Marshall the death Brand those received death, his brother’s but instead pecuniary not have interest family. stop drug his brother’s sales abuse his wanted prosecution. present capital not Brand’s case The State did penalty against in its case William and sought The State death jury beyond did find a reasonable Engel, but the -not Herbert outweighed mitigat aggravating doubt that the circumstances say moral blamewor ing circumstances. We cannot that Martini’s motive, thiness, much egregiously accentuated his ransom is so brothers, Engel murder of than that of Brand or of the whose less jealousy, from as to render defen Xiomara stemmed William’s Likewise, his level of disproportionate. sentence dant’s death family less terrorizing and Flax’s no both Flax —is victimization — contract-principal Marti defendants in the cases. than of the character, that his when ni therefore has failed to demonstrate group, compared this warrants to that other defendants finding disproportionate. sentence is that his cases, comparing remaining which Martini’s case to the motives, killing pecuniary and we also involve contract other Burroughs did in defendant’s sentence. perceive no aberration solely pecuniary kill out of a motive did not visit extensive not capital Arthur Brand. did receive a victimization on Clausell for a error. On but that sentence was reversed Gerald sentence retrial, capitally. he DiFrisco received a death was not sentenced reversed, again

sentence that this and on trial was sen- Court capitally. juries in cases tenced both Melendez’s and Rose’s penalty phase. In the last were unable to reach verdicts Williams, case, jury ag- pecuniary-advantage found that the gravating mitigating weighed equally. factors view of cases, imposition penalty those death not offend of the does principles proportionality, given terrorizing Flax and his motive, family and Martini’s ransom Martini’s moral blameworthi- ness, victimization, degree compari- his and his character. The traditional, son of defendant’s ease to similar cases under the precedent-seeking reveals no on which to disturb review basis defendant’s sentence.

3. Other Cases compare We do not Martini to those defendants who committed assaults, Vasquez contemporaneous sexual such as or Je- Carlos Dennis, killings depravity of rome or to defendants whose involved mutilation, Henry mind and such as Nicholas Correa and Miche- dissimilar, in their factual liche. Cases of that kind are so both blameworthiness, any patterns they not offer their do insight proportionality sentencing. valuable into the of defendant’s reasons, reject comparison For like we Martini’s of his case to victims, multiple killings involving murders of sexual assaults burglaries, kidnapping, during to murders robberies or without Again, yield killings through and to torture. those cases would insight propriety jury’s in Martini’s little into the decision case.

IV ARGUMENTS OTHER argues unconstitu Defendant that his death sentence is Jersey under the federal and New tional both Constitutions. First, penalties generally he contends that because death are not murder, imposed capital death-penalty violates this State’s law Eighth Fourteenth Amendments to the United States 80

Constitution, one, paragraphs one twelve of the and article and Jersey points out that the death-sentenc New Constitution. He death-eligible percent the ing rate all cases is thirteen and for thirty percent, death-sentencing penalty rate trial total at 1, 2, frequencies argues Report and that those Martini tbls. “generally” not in a capital that cases do result death demonstrate sentence, making imposed under our scheme thus death sentences and comparatively excessive and violative of federal State II, rejected arguments in Marshall We those Constitutions. 188-95, 1059, A.2d do so supra, 130 N.J. at 613 continue to proper show a reservation of death here. The low rates truly phenomenon That murderers. sentence worst at bespeak violation. See id. does not a constitutional A .2d 1059.

Second, argues statistically-significant that dis defendant sentencing depend in rates of that on the parities exist death Those and on the race of the defendant. race the victim claims, subject disparities, him to cruel unusual defendant deny protection. him relies on punishment equal Defendant arguments as were advanced on behalf of precisely the same IV, Bey rejected supra, in 137 N.J. 388- Bey. Marko We them at 96, 645 we do here. A.2d Finally, geographic that data argues defendant show rates, capital disparities death-sentencing in which indicate inconsistently in applied unfairly, violation of punishment is Eighth Constitution and of Amendment the United States one, Jersey paragraph twelve of the New Constitution. We article II, IV, rejected argument Bey and in Marshall and do so IV, 685; Bey supra, here. 137 N.J. 645A.2d Marshall See II, 195-206, supra, N.J. at 613 A.2d 1059.

Y

CONCLUSION 396-97, IV, supra, A.2d Noting 137 N.J. as we did support too that the universe of cases is small reliable areas, comparisons many accept limitations statistical we places proportionality that the small universe on review. Howev- er, analysis support frequency precedent-seeking both review and Defendant, finding disproportionality. of no who bears the review, proof proportionality burden of has demonstrated no trial, penalty aberration in the nor he shown the result of the has presence impermissible Accordingly, of we conclude that factors. disproportionate. his death sentence is not Sentence affirmed.

HANDLER, J., dissenting. today capital The It Court seals the fate this defendant. disproportionate, and determines that his death sentence is not may proportionality be carried out. The looseness of the review finality that has led to a determination of such awesome demands exposure our the continued of the fundamental flaws that beset system current of death-sentence validation. prominent proportionality in the

One of most defects Court’s in the review is the continued use of reversed-death sentences comparable universe of cases. The reversal of a death sentence reliability, disabling robs it of it as a measure of the deathworthi- major deficiency is the ness of the sentenced defendant. Another subjectivity techniques inconsistency and inherent of the Court’s determining proportionality frequency analysis, prece- and for — dent-seeking analysis. persists applying those meth- Court intelligible guidelines. any clear or As a ods without standards result, analytical integrity proportionality review lacks the its Beyond necessary in a life and death decision. the context of review, proportionality there remains problems peculiar those regime, a great systemic capital punishment of our flaw conflicting contradictory principles and regime founded on degree consistency. any without administered design application deprive proportionali- The deficiencies of might had to ty faint chance it otherwise have review of whatever imposition of a death provide legitimacy constitutional to the short, proportionality, as measured notions sentence. sentencing fairly justly a defendant to death project of has, proportionality review de- to failure. The Court’s doomed work, unprincipled spite prodigious become so good intentions and in a affirming a of death —is intolerable that its sentence result — procedural process. and due society committed to fairness propor case all the fundamental difficulties This accentuates kidnapping tionality review. Defendant was indicted Jersey prosecuted The State murder of New businessman. prove by serving it capital case notice that intended as a cause trial, jury found aggravating two factors. At the close of court guilty all counts of the The trial defendant on indictment. jury following to death determination sentenced defendant outweighed any mitigat aggravating factors existed and both jurors. ing by appeal, as six On this affirmed factors found Court A.2d 1208 conviction and sentence. 131 N.J. 619 defendant’s (1993). requested pursuant proportionality Defendant then review 2C:11-3(e). to N.J.S.A. case, acknowledges involving it that this as does

The Court ransom, kidnapping highly is The Court’s method of unusual. instances, review, proportionality problematic in other breaks application down in its here.

I to purpose proportionality review is ensure the The “ fairly, penalty ‘imposed is and with reasonable consisten death ” (1992) Marshall, 109, 130, cy.’ 613 A.2d 1059 State v. 130 N.J. (Marshall II) 37, 42-43, Harris, Pulley 104 (quoting v. 465 U.S. (1984)). 871, 875-76, Ultimately, 79 S.Ct. L.Ed.2d 35-36 cognizable proportionality guarantee aims to that a distinc review capitally-sentenced defen tion exists between and life-sentenced cases; dants; sentencing aggravated limit to most capital to rational, consistent, promote application and fair 1059; Baldus, 613 David C. death sentence. Id. A.2d Project Report Penalty Proportionality Final Death Review (hereinafter 24,1991) Jersey Supreme (Sept. 24-25 New Court wheth Report). Proportionality review seeks to determine Final is, goals and fails to meet those er a defendant’s death sentence therefore, capital disproportionate. A See N.J.S.A 2C:11-3e. disproportionate if characteris sentence is other defendants with generally tics similar to those of the defendant under review committing factually-simi receive sentences other than death for (1994) 334, 343, A .2d 685 Bey, lar crimes. State v. 137 N.J. IV). (Bey of a proportionality

Our review evaluates “deathworthiness” defendant, as measured that defendant’s “blameworthiness.” concept, “Blameworthiness” an elusive but we nevertheless jury prosecu persist using encompasses it because it both in a propriety penalty of a torial decisions about the death prosecutors, well as particular case. the decisions of Because deathworthiness, death-eligible homi juries, on we use all bear cides, prose including prosecutors have not to those that chosen crimes, we comparison with which capital cute as calculus proportionality and the assess a defendant’s deathworthiness II, supra, 130 N.J. at the death sentence.1 Marshall A .2d 1059. provide has that reversed death sentences

This Court decided “sufficiently-reliable concerning the characteristics information juries important to warrant prosecutors consider analysis” death- proportionality inclusion of those cases —as 219-20, use A.2d cases. 1059. Court’s sentenced Id. is, measures of of reversed death sentences as deathworthiness all, procedural analytically, illogical treacherous. After 1 Legislature II, the amended the in Marshall Prior to this Court’s decision Act “similar in which a sentence Punishment to that cases Capital provide cases constitute the universe of of death has been would imposed” comparable 1992) (effective L.1992, c. 5 review. May for purposes proportionality 1-3(e)). (now IV, I the view that codified at NJ.S.A. 2c: 1 Bey expressed reducing re the universe of cases for comparable proportionality amendment 137 N.J. 645 A.2d would not survive a constitutional test. at 402 n. view (Handler, dissenting). J., for their own sentencing do not exist capital govern that rules ways, they at because, significant in They various sake. exist The failure to rationality sentence. of the tempt to ensure the reliability then, rules, fundamentally undercuts the by those abide “acknowledges,” that, Court Recognizing of the sentence. persuasive must, is “a less surely that a reversed death sentence it sentence. an affirmed death than indicator of deathworthiness” fails, IV, A.2d 685. The Court supra, 137 Bey N.J. using death however, justification for such provide any cogent Moreover, the Court review. proportionality at all in sentences unenlightened as to how it discounts totally to leave us continues is a “less reversed death sentence for the fact that a or accounts death than an affirmed of deathworthiness persuasive” indicator sentence. in the death sentences using on reversed

The insistence Court’s produces the validly-affirmed sentences way death same it uses sentence, unreliable to by definition too anomaly a reversed defendant, yet enough for reliable carry out on the sentenced capital propor in sentences purpose comparison with other lies treachery in the Court’s construct tionality The review. sentence, reimposed never which is of a reversed death allowance justify defendant, collaterally principal to be used on the IV, supra, N.J. other defendant. death sentence of some (Handler, J., dissenting). 645 A.2d 685 to use reversed premise of the decision wayward Court’s in the notion consists proportionality review death sentences distinguishable is somehow “deathworthiness” that a defendant’s final, in his or her ease. legitimate verdict reached from the However, “death- only objective indicator that can establish in strict conform- imposition of a death sentence is the worthiness” accuracy to ensure fairness procedures set out ance with Hence, assumption sentencing. the Court’s capital her distinguished from his or can be defendant’s deathworthiness I, submit, sentence, is, unprincipled. there- illogical I lawful death cases fore, my that all reversed strongly reaffirm view

85 to assess of cases used from the universe be excluded should sentencing proportionality. deathworthiness of requiring the reversal errors has held that some This Court and, derogate derivatively, legality negate their sentences death These as markers of deathworthiness.' their usefulness from prin requirements and substantive procedural errors involve both jury deter inform the guide and ciples. Both kinds of standards those standards implicating Errors mination of deathworthiness. aggravating (1) jury that the the failure to instruct include: beyond a mitigating factors outweigh the must factors found (2) imposed; an can be sentence doubt before death reasonable c(4)(c) if that factor charge to the misleading related improper or in its relied factor on which State aggravating was the sole (3) sentence; charge to an erroneous attempt gain a death to See, unanimously. found jury mitigating factor must be that a (1990) 345-46, 221 Clausell, A.2d 121 580 N.J. e.g., State v. acceptability legitimacy and juries be informed (requiring that trial); penalty non-unanimous, non-death-deserving verdict at (1988) (requiring Gerald, 40, 85, 549 A.2d 792 v. N.J. State kill, not to must have intended death-eligible, defendant to be Williams, bodily injury); State v. merely have inflicted serious (1988) (reversing death 453-54, A.2d 1172 113 N.J. evidence); victim-impact on prosecution relied because sentence II) (1988) 162-77, (Bey 548 A.2d 887 Bey, 112 N.J. v. State jury concerning incorrectly instructed if Court (requiring reversal Ramseur, factors); supra, 106 weighing mitigating finding and e(4)(c) aggrava (narrowing grounds 524 A.2d N.J. suffering). of severe ting to infliction factor error, by such an death infected jury a sentence of If a returns accurately, or suggest that the verdict it defies reason then the death- community about values approximately, reflects even differently, a sentence when Put of the defendant. worthiness showing that it was reached adequate an imposed without death standards requirements or substantive procedural by applying the determination, in sound, fair, informed essential to that are exists, reckless to and it is effect, no verdict death-sentence of communi- reliability as a reflection the verdict’s speculate about ty values. at unpersuasive. Ante criticism is response to that

The Court’s observes, Bey example, that in 25-28, for It 651 A.2d at 959-961. that certain rejected Bey’s argument majority defendant the IV Ramseur, eases, Coyle, Biegenwald, and reversed death sentence the errors that eases because treated as life-sentenced should be proof of and the to burden negated death sentences related those issue, procedural fairness of the which affected Gerald “ crime, and, therefore, not trial, ‘d[id] of the not the substance ” jury’s of deathworthiness.’ necessarily on the determination bear Ibid, 685). IV, A.2d It supra, N.J. at 645 (quoting Bey 137 in cases overturned sentences to believe that the death “continues determina acceptably-reliable societal procedural error are Ibid. of deathworthiness.” tions require significance procedural

The Court undervalues under prosecution and fails to capital of a ments in the context that procedural structure relationship between the stand jury’s process and substan deliberative frames and directs its ultimate and inform govern its deliberations tive standards are re “Death sentences of deathworthiness. determination carefully versed,” submit, point the construct I at some “because prosecution has been capital-punishment ed environment of fault, thereby contaminated, by procedural or substantive whether reliability of the impugning the undermining the soundness IV, 137 of deathworthiness.” jury’s ultimate determination (Handler, J., dissenting); see also 645 A.2d 685 N.J. — U.S.-, Louisiana, L.Ed.2d 113 S.Ct. v. Sullivan (1993) gives erroneous instruction (reasoning that when court with the can'be rendered consistent proof, no verdict on burden “right by jury”). to trial Amendment’s Sixth measure the critical and definitive using a death sentence as deathworthiness, dismissively the fact that treats the Court also capital as a not been retried case has a reversed-death-sentenced (“[T]he 25-28, decision A .2dat 959-961 State’s case. Ante necessarily capitally reprosecute is not not to a defendant deathworthiness.”). It ration reflection of that defendant’s lack observing not to alizes that conclusion decision State’s may consider reprosecute capitally itself be based on defendant availability amount of ations such as of witnesses or the retrial, willing resources commit to financial that the State claims, that, Although are this it unrelated to deathworthiness. situations, change may reasoning this not be true certain does subsequently reim the fact that a death sentence not reversed simply legally not exist as a death sentence. posed does valid Master, opinion that Special Report (expressing at 61-62 Final Cf. might salvageable for use in reversed death be some sentences if, re-trial, especially on another death proportionality review point imposed). position vital was The Court’s on that sentence unseemly intransigence. It convinced that bespeaks “remain[s] of sufficiently are valid indicators’ reversed death sentences ‘even community’ of to be used as death-sentenced ‘the conscience the IV, cases,” 27, supra, 137 (quoting Bey ante at 651 A.2d at 960 348-49, 685), judgments its but concedes that N.J. at A.2d 27, at 960 degree subjectivity,” ante 651 A.2d have “some at 1059), II, 120, supra, 130 N.J. at 613 A.2d (citing Marshall infallible,” scientifically 651 A.2d data are not ante that “our 685). IV, (citing Bey 645 A.2d at 960 137 N.J. least, impose pre very rebuttable At the the Court should are determinations sumption that reversed death sentences invalid suggested that the Court Special The Master of deathworthiness. evaluate, by ... a case on the reason for a reversal “examine substantially basis, the error case the likelihood that involved impugned jury’s or influenced the exercise of discretion” otherwise The reliability original Report at 61. sentence. Final that presumption not amounts to a should create what Court validly indicate sentences deathworthiness reversed death require presumption. to overcome that not the defendant should 25-26, 651 A.2d at 959-960. Ante at add, further, use of reversed-death the Court’s I must proportional- in death sentence a defendant’s to validate sentences The dimension. Court constitutional ity is a matter of review “reliability” as only when their accept sentences professes to such due-process unquestioned. Both of deathworthiness indicators pun- unusual against cruel and prohibition considerations and proportionali- ishments, think, in scheme of the use our I interdict a standard that fail to meet sentences ty review of reversed death reliability.” of “sufficient contexts, that factors rightly understood the Court has

In other implicate the reliability a death sentence derogating from the pro process due concerns for fundamental constitutional “reliability” is the punishments. When hibiting unusual cruel and standard, it a constitutional the satisfaction of operative test for Ramseur, 524 A.2d supra, 106 N.J. at must be met. informa use of reliable importance of the stressed Court stating “the death system capital-sentencing tion procedure constitutionally imposed if the penalty can be appropri that ‘death is the reliability in the determination assures ” omitted). (citations It has specific case.’ punishment in a ate c(4)(c) for the is the sole basis factor pointed out that when instruction, no explained an erroneous sentence and is death community fight reliable inference about deathworthiness Court, reversing the death can be drawn. Ibid. values 13, 65-66, 524 A.2d 130 Biegenwald, v. 106 N.J. sentence in State (1987) II), erroneous similarly concluded that the (Biegenwald mitigating aggravating and weighing instruction about the entire fairness of the fundamental circumstances undercuts 887; 161, II, A.2d see supra, 112 at 548 N.J. proceeding. See 1860, 367, 100 L.Ed.2d Maryland, 108 S.Ct. v. 486 U.S. also Mills jurors (1988) if must be reversed (ruling that death sentence 384 individually weigh mitigating they must are not instructed unanimously); they not found Sulli though were factors even cf. — at-, 2082, van, 124 L.Ed.2d at 113 supra, S.Ct. U.S. ren in which verdict was (holding that in criminal cases 189-90 beyond reached showing that it had been adequate dered without

89 “right to required by as Amendment’s reasonable doubt Sixth trial,” apply harmless-error jury no verdict existed on which to 2633, 320,105 analysis). Mississippi, v. 472 U.S. S.Ct. Caldwell (1985), Supreme reversed the United States Court L.Ed.2d prosecutor’s statement a sentence of death because of a inaccurate determining jury responsibility that the ultimate for to the lay jury, but with an appropriateness of death not with Eighth appellate court. Justice Marshall noted that under the placed imposi- on the Amendment “the limits that this Court has capital punishment in a tion of are rooted concern responsible sentencing process should facilitate the and reliable 329,108 2639, sentencing exercise of discretion.” Id. at S.Ct. Carolina, 280, L.Ed.2d at 239. See Woodson v. North 428 U.S. (1976). 96 S.Ct. 49 L.Ed.2d requirement be “suffi- The constitutional that a death sentence review, surely ciently applies proportionality reliable” can validated a court determines whether the sentence be which out, jury original determination carried as when a makes the Thus, in by penalty. its of deathworthiness the death imppsing sentence, review of defendant’s death the Court proportionality signifi- errors that sentences that were reversed for includes death reliability as reflections of cantly of the verdicts undermined errors, aggrava- example, Those related deathworthiness. Biegenwald, of Richard ting mitigating factors the cases Williams, Koedatich, Gerald, Rise, Raymond James Walter James Johnson, Zola, Bryan Coyle, and to a reversed and Walter James c(4)(e) charge in on an erroneous death sentence that was based Oglesby. use of reversed death the case of Walter The Court’s merely deathworthiness is not sentences as reliable measures of exercise; telling impact it has a on theoretical or academic and on its assessment of this defendant’s deathworthiness Court’s proportional. De- that his death sentence is final determination by proportionality review that uses as its is condemned fendant comparison other cases in which verdicts primary feature to seven .rejected and unrelia- been this Court as invalid of death have ble. comparison death sentences in the

The inclusion of reversed pro- is falsely death suggests that defendant’s sentence calculus portional. The The Court’s continued use opposite is truth. proportionality review—and of death dooms its reversed sentences per- this the start. Because Court dooms defendant —from following principles a constitutional course that contradicts sists capital-murder common precepts as basic of doctrine and well sense, strongly register my I must dissent.

II begins “frequency proportionality review with The Court’s By frequency analysis.” analysis, the determines the Court of that of the imposition of death sentences in cases similar to Frequency analysis considering has three methods of defendant. (1) capital light other sentences: defendant’s sentence (2) similarity aggravating general similarity; and miti factual (3) circumstances; similarity culpability. gating general “ analysis underlying ‘[a] The is that death sentence is thesis if comparatively excessive other defendants similar character generally committing than death for istics receive sentences other ” II, supra, factually 130 N.J. 153- similar offenses.’ Marshall State, 468 A.2d (quoting 613A.2d Tichnell v. Md. (1983)). 17 n. 18 analysis frequency in the is the Implicit thesis underlies committing crimes are' assumption that similar defendants similar review, equally blameworthy. proportionality In blameworthiness Hence, the marker of determination of deathworthiness. frequency comparative is the mission review. blameworthiness 651 A.2d at 961. Ante Court, however, frequency undermines the ambition of by declining any

analysis analysis begins, even to set before the distinguish high- low-predicted from which to standard 29-30, Ante at 651 A.2d at 961-962. frequency death. vacuum, predisposi resulting analytical inserts its own Court equalizing or of blameworthi- tion toward different levels kinds consequence, inevitably engages in a form of ness. As a it reasoning that amounts to little more than a selective and conve- proportionality. application nient rationalization for Its of fre- quency analysis betrays palpable proportion- in favor of bias the ality of a death sentence. by

The Court defends its refusal to set numerical standards commenting rigid on the “inherent failure” of numerical such “distinguish standards to between defendants.” Ante at dispute A .2d at 963. I do not that the establishment of a clear can, threshold, regard very pro standard with to cases near its convinced, arbitrary though, duce I am results. that the establish guidance ment of some numerical standard for the sake of would substantially improve proportionality our review. such a With standard, we could confine arbitrariness to the cases at the conducted, boundary. proportionality Under review as now arbi rampant, given runs for the no hint to what trariness Court has as degree infrequency imposition penalty might of of of the death disproportionality. constitute

The central of the first of the three methods of weakness similarity, frequency analysis, general exposed factual is the case, the exposition. Court’s this that method fails because factors defendant’s case are not similar to those of other salient cases, catego any existing ease not fall in of the and so his does “only kidnap ries. Defendant’s is the for ransom case” the proportionality Lacking any category that universe. established case, captures critical the Court chooses to the facts defendant’s “kidnapping/abduction place category defendant in the with particular at 963.2 It violence or terror.” Ante A.2d pecuniary-motive compares also defendant’s case with other cases categorized robbery involving kidnapping, most of were as which H(2) (Kidnapping/abduction frequency category with The death-sentence defendant, violence), including particular is or .17 If the defendant is 1/7 removed, zero, frequency is or .00 Of the three cases out of seven that 0/7 trial, penalty again, Yet if defendant is went to or .33 received death. 1/3 zero, frequency again is or .00. removed 0/3 Still, accepting even this ad particular or terror.3 with violence can the circum- categorization be done under best hoc imposed stances, penalty is frequency with which death very low. robbery/kid- hybrid category premeditated

aWhen —cases motive, deception/entrapment, and a de- napping pecuniary used, frequency to Howev- increases .66. fenseless victim —is er, problematic. the data base is corrected that result is When added, frequency drops .20 with new cases are .and .11, indeed, and, away entirely if drops almost defendant all, In the salient factors test case is removed. defendant’s own that, matter, frequency sen- general a the of death indicates purportedly similar to defendant’s is tences for crimes with facts extremely low. frequency analysis, of similari-

The second of the three methods circumstances, supports ty aggravating mitigating also a of begins If finding disproportionality of in this ease. one the aggravating analysis looking simply at cases in which two found, frequency mitigating the is factors and two factors were (12/47 defendant) the death- or .27 or .25 of broad without 13/48 c(4)(f) (avoiding eligible In in which the factor universe. cases detection) aggravating one circumstances and is found as of two found, frequency also mitigating circumstances were rate two defendant). (4/17 Also, .27 or .23 when the is or without 5/18 felony) (contemporaneous is found as one of two e(4)(g) factor aggravating mitigating and two factors were also circumstances defendant). (7/40 found, the is or .19 or .17 without rate 8/41 universe, Further, penalty-trial only within the restricted E(2) category violence, of of two twenty- In robbery particular death-eligible or in the received the death .10 one cases universe penalty, 2/21 (not defendant). including excluded, see, If Rise's case is supra Raymond or .05. Of those cases that 651 A.2d at then the frequency drops 1/20 or .29 received the death trial, went to penalty. penalty 2/7 frequency involving aggravating mitigating cases two and two (12/22 defendant).4 factors is or .57 or .54 without 13/23 short, analysis the frequency aggravating of the number of mitigating matter, general factors reveals that aas defendant predicted frequency has a low receiving of a death sentence. aggravating Neither of the relevant high frequency factors has a imposition, has, of death mitigating age and the factor of opinion Master, Special pronounced of the mitigating a effect.

The third methodology employed by and final statistical frequency Court to assess the relative "withwhich a death sentence imposed among group is a of similar cases is the so-called “index of purportedly groups outcomes” test. This test according eases degree culpability. Court, to their common relying on the analysis, factors, statutory AOC’s draws on a broad set of some non-statutory, thought and some probative culpability, to be patterns capital sentencing. operates determine The test on assumption culpable common-sense that more defendants have greater Ante probability receiving penalty. the death 651 A.2d at 968.

Using possible eligible broadest test —all death cases with statutory non-statutory assigned variables —defendant margin rank of .05 with having of error a lower limit of .01 and upper places culpability an limit of .30. That defendant level predicted frequency which has a imposition of death-sentence of (10/248). Among twenty .04 cases nearest to defendant’s on index, none resulted in a death sentence. (Lodato Ramseur) changed If two reversed death sentences are to life and two death sentences are eliminated because based on "deliberative errors" 1A), (Biegenwald frequency reported 1A and James Zola the overall in Table 9 (8/45 defendant). drops Applying to or .19 or .17 without the alternative 9/46 assumptions analysis c(4)(g) changing in relation to the of the one death factor — (Lodato) (Zola) deleting frequen- sentence to life one case in a new —results (5/39 defendant). cy Applying of or .15 or .13 without the alternative 6/40 c(4)(f) cases, assumption require any changes to the factor does not in and thus the numbers remain the same. only, using statutory factors death-eligible universe

In the broad having a margin a of assigned a of .08 with error is rank defendant again, of defendant upper limit of .02 and an limit .27. Once lower frequency of death culpability predicted 1 with a falls into level (12/249). only one There is death sentence imposition of .05 among twenty nearest to defendant. eases

Further, penalty-trial restricting of cases the universe cases variables, only statutory contrary expecta- using factors as tion, dramatically rank. In that increase defendant’s one does not universe, a culpability rank of .15 with defendant has a narrower upper limit of margin having lower limit of .03 and an of error a culpability predict- has a in level which .48. Defendant remains (3/58). .05 imposition of frequency ed of death-sentence using frequency by increase in occurs statuto- significant A penal- non-statutory within the narrow universe of ry factors scheme, assigned culpability a that defendant is ty-trial cases. having of a limit of .25 ranking margin .88 error lower of seventy- .99, probability range limit of upper creating and an culpability level which percent. places That defendant four frequency imposition of .88 predicted of death-sentence has (23/26). Thus, analysis, Court can by changing the focus ranking penalty is almost to a the death reassign defendant where uniformly imposed. legerdemain, not flinch in the face of its

The Court does culpability culpability 1 to level level reassigning defendant from analysis. The adjusting parameters of the the device of by stating parameters for explains preference its these Court extremely percentages not yield low do tables several non-statutory do not account for the factors and therefore include (ransom and extreme terroriz factors of defendant’s crime salient and, also, unique ing family), victim’s that defendant our case universe. Ante 651 A. at 970. assertion 2d requires gravamen of crime consideration that the defendant’s non-statutory appropriately fit more aggravating factors would review, espouses precedent-seeking that assertion the Court’s

95 subjective kind of not susceptible the evaluation to the statistical techniques frequency accepting of review. Even the Court’s tactic, however, one finds that the index of outcome are results IV, Bey 362-65, supra, 137 N.J. at higher Bey, for see A.2d 645 II, 685, Marshall, slightly higher and supra, Marshall see 130 172-74, N.J. at A.2d 613 1059. Yet the Court does not feel that disproportionality those results suggest any indicate or aberration in with respect defendant’s case to the index-of-outcomes test. 45, Ante at A.2d 651 at 970. analysis test, reasoning Court’s and using under the cases,

penalty-trial expedient is disparity and result-driven. The 12, yield very between the in high predicted results Table which a frequency sentence, of the death results obtained in Tables 15c, 15b, namely, very predicted frequency low of death sentence, instability demonstrates the basic in the statistical overemphasize represents framework. I cannot 12 Table an universe, analysis penalty-trial that is confined to the the results which, conceded, of already Court has should be used for only” purposes prop “informational not as a for propor basic II, supra, Marshall N.J. at tionality. 613 A.2d 1059. As Bey II, IV and Marshall was situation in in sample small of prevents size cases with similar of levels blameworthiness us IV, weight supra, giving great from to those results. See II, 685; 173-74, N.J. Marshall 130 N.J. at A.2d addition, represents A.2d 1059. Table 12 least-reliable against model that it runs the most variables the fewest number cases, huge margin and therefore has a of error associated with ranking culpability defendant’s on the index. proposes

The Court to overcome the index-of-outcome test’s low culpability finding insisting “unique that defendant’s case is so, universe.” Ante ease If project our 651A.2d at 970. sham, frequency frequency review becomes because review cases, proceeds assumes existence similar to consider whether, light imposed cases, sentences in those similar If, however, disproportionate. defendant’s sentence the similar- case is ignored or discounted and defendant’s ity of other cases automatically unique, are rendered dissimilar other cases deemed frequency review falters. comparison, and become useless basic declaring unique, the Court deserts the By the ease itself pretend not that a death and should frequency thesis of review a be established such review. proportionality can sentence’s Court, analysis, compared through a finds that The convoluted cases, predicted penalty-trial defendant’s case shows to other thirty-three per receiving death sentence of probabilities of test; fifty-seven percent under the cent under the salient-factors test; and, numerical-preponderance under the index-of-outcomes statutory eighty- test, considering only percent factors five considering statutory non-statutory percent fact eight both 970, 45, referring the Martini 651 A.2d at ors.5 Ante at 19). produce concludes that “those results Report tbl. The Court showing or aberration” and that defendant has of randomness no disproportionality,” and hence produced “reliable evidence of not a other “than find that for such as his sentence does not cases generally imposed.” Ibid. death is cases, actuality, compared death-eligible defendant has to all percent; probability of a predicted seventeen a salient-factors-test twenty-seven probability percent; numerical-preponderance-test percent, probabilities of five consider and index-of-outcomes-test considering statutory only, percent, four both ing factors Report non-statutory factors. Martini tbl. 20. statutory and Thus, matter, predicted frequency of general a defendant’s death-eligible trials in cases and concedes, As the Court rate penalty sentencing trial are both rate death for cases that advanced to penalty (38/125) (125/298) and percent forty-two percent thirty respectively. fairly low— 30, Ante at 651 A.2d at 962. That total death- Martini tbls. 3. yields Report (38/298). stating sentencing It masks this rate of thirteen problem by percent looking aberration, not to all other are for a comparison "we potential perfect " observing cases,” further, ‘Not statistical establishes dispropor- every disparity ” (quoting at IV, 137 N.J. 645 A.2d 685. Ante at tionality.’ supra, 962). A.2d at imposition death sentence hovers between .05 and .27. conclusion that must be drawn is that under all three statistical methodologies frequency analysis, that constitute defendant falls extremely-low at the low frequency end of the scale. The Court sidesteps damning by observing sentencing result that death murderers.” Ante is reserved for “the worst 651 A .2d Obviously, 967. sincerely subjectively the Court but believes murderers,” and, embracing that defendant is one of those “worst belief, effectively principled proportionality abandons review. opinion only deepens The Court’s perpetuates the funda proportionality methodology. Although mental flaws in its review matter, lately equivocated it has on at regarded the the Court first frequency approach primary precedent-seeking the as and the II, supplementary. Compare supra, Marshall approach as 159, at N.J. (making precedent- A.2d 1059 the of intensity the seeking depend frequency analysis) review on the outcome of the IV, supra, with N.J. (relying at A.2d 685 “more heavily” long on precedent-seeking pool as as the of cases remains small). opinion, though, this we Court thoroughly see the review, frequency deconstruct its characterizing conclusions throughout 30-31, 33, 35, unreliable. See ante statistically at 962, 963, 964, 965, 651A.2d at 966. explain The Court does not thoroughly body how statistics so analysis discredited the of the can, end, characterized, respect at its particularly be to the measure, persuasive salient-factors as “the most of the statistical Ante supports finding disproportionality.” measures a of no [that] 37, 651 at A. 2d at 965.

Inevitably, frequency analysis a pro- bereft of clear standards duces, in of a put the hands Court determined to the burden of defendant, proof finding proportionality. on the of Bearing a proof, arguing a burden to Court that introduces extrane- ous, precedent-seeking-type frequency considerations its re- into view, disproportionality. Proportion- no defendant could establish ality prescripted. is not review does validate proportionality that

The Court insists sentence, merely is “a vehicle ensure that rather death but insupportable.” jury’s is not Ante penalty-phase decision that there is a distinction between 651 A.2d at 958. To the extent ensuring it supportable ensuring sentence is that the disagree genuine point of insupportable, not Court identifies significant, though, is the fact the Court does ment. More into to ensure that proportionality make review “a vehicle not even Rather, insupportable.” allows a ... not the Court decision is disproportion to compelling indicators of be sentence that bears because, owing inadequacy of the data and of carried out to the review, proportionality neither the techniques conducting disprove dispro any positively prove or nor defendant can State portionality to of the Court. This combination the satisfaction formidable burden defendant a rather an insistence that shoulder inadequate prove disproportionality, with the circumstances bitterly it ironic that the Court should techniques, makes data support “[b]eing category in a does not say that the first murderer disproportionality.” Ante at 651 A.2d 964. conclusion method, Indeed, not; contrary, being it does on the the Court’s guarantees proportionality of the sen apparently first tence.

Ill by aspect proportionality exemplified of review The statistical analysis point departure of frequency is intended to serve as a judicial form the turns to a more traditional of from which Court case-by-case of the deathworthiness assessment relative review —a 153, II, supra, 130 A.2d of N.J. at 613 the defendant. Marshall frequency approach, to the which we look to 1059. In contrast cases, precedent-seeking groups approach of considers each individually. explains: The Court case Through we criminal this method determine whether defendant’s culpability whether it is to or that of similar life-sentenced defendants and equal exceeds greater such that the defendant’s defendants, than that of other death-sentenced justifies or whether a defendant’s sentence; culpability culpability capital that of more lilte similar life-sentenced defendants and less than that of death- defendants, sentenced such that the reduction of defendant’s culpability requires to a life term. sentence at

[Ante 971.] at A.2d An appropriately prece- critical view of of enterprise the whole dent-seeking begins by pointing conceptual review out a certain review, vagueness in the introducing method itself. its Court writes: as we

We did in that note, IV, even cases not Bey supra, closely-similar do require light juries, identical verdicts to be of the different defendants, proportionate, legal facts, and issues involved.

[Ante at at 973.] 651 A.2d exemplifies The Court’s irrationality propor- statement both the (cid:127) tionality review and means which it conceals that irrational- ity.

First, one notices how statement conceals. The that notion closely require similar cases do not at identical verdicts first offends, similar,” hardly although “closely because are the cases hardly course different and so can claim warrant “identical” problem, though, treatment. The is that cases that the Court merely “identical” fill chasm dismisses not between life and Recasting plain terms, death. the Court’s statement one dis- covers that the Court that cases allows from that do not differ are “closely-similar” get much or one can defendant death and life. another literally,

If it that accepting believes the Court comes close to arbitrariness, very insofar as it would seem the mark arbitrari closely-similar produce starkly ness if two eases can two such verdicts. different Because the Court does not want to abide arbitrariness, qualification it quoted light adds the above: “in defendants, juries, facts, legal the different involved.” issues Ibid. explains Court juries each “because must consider individually, expect case we cannot the same result even in similar IV, cases,” ante supra, 137 N.J. 651 A.2d at (citing 685). factually- A.2d if Accordingly, even those culpability, cases dissimilar have similar levels of circum- Court, according conclusion require, to the the stance does not sentencing aberrantly in jury in case acted that the defendant’s at 651 A at him death. Id. .2d 986. case, every uniqueness the rub is that once we admit

The Contending unmanageable. precedent-seeking review becomes to make in this case is forced unmanageable, with the Court analysis. subjective step of its For arbitrary decisions at each good two example, rejects reason defendant’s the Court without that, help identify culpabili- similar suggested generalized features ty. of victims.” Can one The first of these involves “number person are more seriously question that of more than one killers The things being equal, than killers of one? culpable, other obvious, question to that evades the direct answer Court answering question: a different through MUs torture is necessarily

We cannot that a murderer who one person say kills than one less than a murderer who more person quickly. culpable [Ante 973-974] 651 A.2d correct, effect, point. is but misses the Court The Court First, a steps analysis. there is confuses two distinct distinguish factors step, in should those relevance which Court Second, factors that do not. culpability that bear on from those culpability, identifying on there follows after the factors that bear significance significance step, in the Court considers which In this probative weight particular of each factor in the ease. or case, however, steps condenses the two into one. the Court test that no factor can result of this for relevance condensation can, absence, meet, any by its mere render ever because no factor “necessarily culpable” has less than defendant who defendant if one the factor point factor. The becomes clear substitutes multiple Applying the pecuniary gain for the victim factor. test, gain pecuniary we must exclude irrelevant Court’s say [without that “a murderer who kills factor because one cannot through necessarily culpable torture is less pecuniary but] motive quickly.” pecuniary gain] than a murderer who kills [for suggest reject I not do that the Court in fact as irrelevant comparison Rather, pecuniary gain. based on I find the deficient Court’s test of the relevance of factors. order to decide consideration, whether some suggested factor warrants must we first consider whether that culpability. factor as such bears on analysis That temporarily holding things is' undertaken other equal, enabling factors, distinguish the to Court those such pecuniary motive, victims, torture, of number that do bear on culpability, those, victim, from example such as for the race of the Court, culpability. however, that do not bear merges on steps taking these without to identify trouble first multi the the ple-victim culpability, explain factor as relevant to and then to weight significance what or should be accorded that in factor Thus, assessing culpability. recognizes the “[t]he Court obviously blameworthiness,” and, number victims at affects the time, extremely important same it compo concludes that “is an fails, Ante nent of it.” A.2d at 971. The Court however, separately consider weight to or elaborate on the or [ejffect” significance of the “obvious that this factor in has assess culpability, ing glibly, “reject[s] argu ... almost defendant’s purposefully knowingly single ments one who murders a deathworthy victim is less than one who murders one more than 52-53, victim.” Ante Hence, any 651 A.2d at 973. without acknowledgement factor, victims, that a such as number of directly culpability explanation relevant to an and without its significance, the Court’s conclusion as to defendant’s deathworthi subjective imprinted ness remains with its own and intuitive comparative culpability. assessment of possible, hardly edifying productive, It is but engage or the significance particular compari- Court a debate the about of the assessing proportionality son cases of defendant’s sentence. Thus, against emphasis selection Court’s of and on the fea- death, surrounding oppose tures those with sentences of one could the various heinous features of the crimes those defendants comparison group were who not sentenced to death. Because universe, is the ransom defendant first killer in who one easily declare that uniquely terrible can regards that crime as comparison group, and hence deserv- his is the worst of defendant know that defendant’s the Court ing of But how does death. murder, many or those of Mayron’s heinous worse than crime was group? others in cases, many and this features in can find horrible

One it explain how knows that require should the Court fact Objec- by is worse. suffering of inflicted defendant indeed brand gravity measure the of different standards which to tive Perhaps ought to suffering we look of are hard to find. varieties so, the Legislature guidance. for When we do we find that the worst, by turning their Legislature which cases are has decided Legislature the particular aggravating factors. Until features into grave suffering on another besides the infliction of makes the factor, that aggravating ought Court to assume that an the victim circumstance, although obviously culpability, is not relevant present in other eases. So uniquely than circumstances worse response unexplained intuitive moral long as Court allows its the precedent-seeking of its dictate the outcome to the crime to review, up system not live even proportionality of review does our Instead, II, supra. our review comes promise to the of Marshall that entails no species proportionality of review to resemble that a conclusion that the past a of cases and bald more than recital See, e.g., proportionate. v. particular sentence is State death (en banc). (Mo.1994) Harris, 798, 819 870 S.W.2d factors, authority objective special the Court Recognizing the objective only on professes comparison cases based to evaluate the IV, presented jury, citing Bey supra, 137 to the criteria that were at It Ante at 651 A.2d 972. 645 A.2d 685. N.J. objective, non-statutory are attempts to factors that consider sentencing guidelines, clearly submitted to in traditional rooted jury, likely jury’s a Ibid. to influence decision. the Court, determining for the According to relevant factors the are, first, statu- death sentence proportionality of defendant’s felony kidnapping contemporaneous tory factors of the detection, and, second, ransom, escape murder to the demand for which likens defendant’s case to other murders involve pecuniary motive. Ante at 651 A.2d at 972. The Court recognizes that only kidnapping defendant’s involving case demand for ransom. Ante 651 A.2d at 985-986. It chooses to consider in Report those cases Martini which the kidnapping particular defendants committed violence or ter ror, were principals, contract or were contract killers. It then undertakes to decide culpability whether defendant’s is more like that of defendants who received death sentences or of those who received life terms.

The Court further on the relies fact of the extreme victimization family, reprehen- defendant’s victimization made all more eyes having sible of the Court for necessary been completion of the criminal scheme. The Court concludes greater those elements culpability create a different and kind present cases, than is the other non-stranger-kidnapping accordingly, disproportionality it finds no in defendant’s death compared sentence imposed when to the life sentences in the other non-stranger-kidnapping cases. Ibid.

Despite effort objectivity, reasoning its the Court’s expose pervasive subjectivity conclusion the precedent- of its seeking analysis. An equally convincing case can be made with respect many comparison to of group the other defendants in the Consider, uniquely their crimes were for example, terrible. Barone, the case of Jamie the sole defendant in the stranger- kidnapping category. readily One could conclude that defendant culpable Barone, less although protesting is than Barone because innocence, any Further, his failed to show remorse. Barone could blameworthy be considered more greater because of the level present victimization in Although his case. the tried Bar- State capital prosecution, jury one’s ease as a the was unable to reach a penalty unanimous in phase. decision the Similarly just plausible, strong, arguments if not as can be made for the view that other comparison group defendants the exceed example, a murder oc- For in blameworthiness. defendant to central essential and victim’s death itself curs when the readily be viewed completion of a criminal scheme could successful using Indeed, examining comparison group culpable. as most murders, to preplanned referred between such distinction murders, murders,” and one “fatal-precondition other defendant as and such fatal strong between death sentences finds a correlation Thus, among fatal-precondition mur- precondition murders. (killed proceeds are wife for insurance derers Robert O. Marshall (killed sentence), people two death Patrick Lanzel and received trial), penalty receipt and did not face ensure of inheritance (contract sentence), Anthony killer who received death DiFriseo (killed impress organized figures crime and James Clausell reversed, sentence, on remand received which was received death sentence). case, Furthermore, compare if life we defendant’s crime, part was a central of the pecuniary motive which involving robbery kidnap- thirty-four others6 or approximately deliberate, premeditated, execution- pecuniary gain ping two, Hightower, style only Bobby Brown and killing, Lee Jacinto Moreover, of those cases involved sentences. five received death (John Allen, Brown, Bobby people Lee Frank the murder of two Watson), which, Masini, Marsieno, as Ray defendant John murder one argues, greater culpability than the implies out, Additionally, points at least twelve person. defendant remaining group defendants non-death-sentenced victimization sufficient to ren- twenty-nine cases inflicted extreme Allen; Barone; (3) Jackson; (4) (1) (2) Shawn 34 cases are: John Jamie Scales; (7) Reddon; (5) Russo; (6) Robert Howard David Mark Terence Richard Carrozza; (9) (10) Anthony (8) Joseph Armstrong; Dwayne Thompson; Cavi- Marsieno; Masini; (14) ness; (11) (12) (13 Corey Musgrove; John Ira Frank Lazorisak; (17) (16) (15) Ploppert; Washington; George Matthew Rafael Brown; Watson; (20) (18) (19) Hightower; Roy Bobby Slaughter; Lee Jacinto Hart; Balisonomo; Clark; (24) (22) (23) (21) Benjamin Craig Hashona Carl James; (28) (25) (26) (27) King; Darby; Culley; Bruce William Michael Marvin Smith; Nicini; Norman; (32) (30) (31) (29) Quincey McCray; Carl Kevin Daniel Tucker; (34) (33) Stanley Spruell; Cain. Richard

105 culpable deathworthy der them more than he is.7 explanation, rejects Without the Court second defendant’s suggested generalized features: notion that a murder essen tially necessary accomplishment to the of another criminal act culpability more, exceeds in saying other murders. Without it who, simply accept “not proposition does that one with intent kill, to commits a robbery rape always crime such as or is less culpable precondition’ than one who ‘fatal crime.” Ante commits a at again, 651 A.2d at 973. Once the Court evades direct question, whether, only asks things being equal, which other necessary complete murder a criminal scheme worse than may any other objectively justified murders. There not be answer However, question. to that the intuition that find would such a gainsaid, murder than gives worse others cannot be the Court objective rejecting no reason for it out of hand. examples

These illustrate the kind of moral conun “insoluble II, analysis Marshall precedent-seeking presents. drums” that supra, 130 N.J. at (Handler, J., 1059 dissenting). 613 A.2d Indeed, culpable engaging whether one is more when in a crime defendant, a necessary pre-condition, by which death is argued or in highly-probable which death is outcome calls for a endlessly judgment. judgments moral Such moral are debatable. Thus, purposeful killing it is reasonable to that the believe of two persons killing just It is more heinous than the one. is also fair to consider did that defendant’s crime not include kind of many depravity sadistic torture and that surrounds so murders in Indeed, death-eligible universe. the Court’s own moral com cases, pass seeming impressed has shifted these most Marshall II by culpability killing money, attached 166-167, N.J. and in IV 613 A.2d the combination N.J. of sexual assault murder. A.2d 685. Tucker; and Caviness; The twelve are: (6) (12) Musgrove; Cain. (1) Jackson; (7) Ploppert; (2) Scales; (8) Darby; (3) Thompson; (9) Norman; (4) (10) Carrozza; Smith; (11) (5) 106 judgments subjective value are requires II that when

Marshall made, they judgments “explicit can be make those so the Court objective are analyzed against whatever measurements and tested a A.2d The Court must have applicable.” Id. at 1059. deathworthy than theory what makes one case more coherent of say merely simply to that the enough It is not Court another. it reasonability jury’s determination when fact the of assesses jury’s support the only speculates possible reason to about subjective judgment the makes own of moral its determination review, the significance proportionality Court of reason. by the of deathworthiness made professes to review determination Concededly, jury if aberrant. see that determination is second-guessing. level As process of review will involve some of noted, practically judgment built into II a “value Marshall every A.2d 1059. proportionality.” of Id. measurement If, making judgment reality, its own of deathwor the Court is thiness, explicit judgment must be made that value-laden aspect precedent proportionali force of if this of given must be consistent, fair, intelligible. The ty is ever to be review woefully analysis falls in this case short. precedent-seeking Court’s IV Court, urge, firmly emphatically I must recast believe and sentences. I noted with proportionality its review of death As IV, does, falling, this respect to the defendant in as defendant predicted frequencies of sentence range in the death low peculiarly to the hoc charac imposition makes him vulnerable ad frequency analysis. 645 A.2d of this Court’s 137 N.J. ter (Handler, J., analytical dissenting). The failure with Court’s frequency analysis serves further to devalue the respect to frequency already protections by is afforded scant defendant objective originally analysis. Although designed as the more review, up proportionality frequency two methods that make analysis applied does little more than set the Court stage subjective for whatever judgments determinations or moral might precedent-seeking be made approach. under Ibid. escape vagueness

One cannot explication Court’s frequency analysis precedent-seeking interaction of re * * * says simply The compare view. Court that “We the results analyses of the two to ensure that proportionality our review is past cases, reliable.” Ante at 651 A .2d at 960. it has said finding proportionality that a of frequency borderline under the approach will require heightened scrutiny a of the of results the approach. other suggests Marshall II further that the value determinations the precedent-seeking stage made at should be “analyzed “objective” by tested” the criteria that are available. implies degree 130 N.J. 1059. A.2d That that some of commensurability approaches. exist should between the two With Bey, both arguably, commensurability Marshall and least some present analysis was between the precedent- statistical and the analysis. seeking analytical luxury That is not in available this Here, ambiguity relationship case. approaches of the proportionality. confounds Court’s deteimination of opinion a Court’s serves as call for re-examination and proportionality reconstruction of It that review. demonstrates precedent-seeking frequency analysis in review coexist a relationship muddled characterized the worst kind of circular reasoning. If analytical individually these tools it imprecise, are expects unclear how the tools in Court two such combination to produce a reliably prevent mechanism to that serves arbitrariness sentencing. in death proportionality

The errors that infect the Court’s are review symptoms capital the fundamental of our incoherence murder jurisprudence. The Court’s continued uncritical use of reversed death sentences as a measure of deathworthiness is an irrationali- ty analysis first application frequency of the order. The Court’s by no is driven more than intellectual convenience and institutional expedience, given distinguish high with little care to a from low frequency relationship and with lax attention functional to to its Lacking methodology, the a workable precedent-seeking review. analysis that is riddled precedent-seeking relies Court over on judgments. subjectivity moral with failure of further of the Today’s decision serves as confirmation experiment capital early The Court’s belief punishment. our im eonstitutionally-legitimate process for that it could fashion a Ramseur, supra, 106 N.J. at posing penalty, see the death (“How paradox yet A will resolve this remains 524 .2d 188 we pro on fully continue labor unrevealed to us. We shall cess.”), yet proportionality re on another has foundered rock— moralizing inconsistency, subjectivity, and evident view. The today’s products of futile are the inevitable endeavor: decision quest apply due-process to devise and to a standard gravity of sentence. protection commensurate with the a death proportionality review was assist We noted Ramseur “ ensuring procedures are designed [that] ‘we have Court ” and death.’ 106 N.J. at appropriate to the decision between life 67-68, 326, Pulley, 104 (quoting supra, 524 A.2d 188 465 U.S. 52). 888-89, signal propor The failure of 79 L.Ed.2d at S.Ct. applied by now tionality designed and this Court is review as reject either I think it also that the Court must manifest. evident carry capital accommodate to punishment to out or itself its effort juridical due-process pro brutality imposing of death without finality. v. tections commensurate to its awesome See Callins — Collins, 435, U.S.-,-, 1127,1129,127 L.Ed.2 114 S.Ct. d (1994) J., (Blackmun, dissenting). 438 capital unremittant are constrained cases to concentrate We expend public persons who attention and enormous resources on sympathy Sympathy nothing do has deserve no whatsoever. however, judicial duty; humanity, our common has with our imposed If to be everything to do with it. we allow death without endlessly protection full of and defend measure constitutional do, legitimacy disrespect invite for the law. what we we J., IV, (Handler, A.2d supra, 137 N.J. at Jeffries, Powell, Jr., (citing F. dissenting) C. Justice Lewis John (1994)). Jr., Surely the time has come for the Court concede that no death process sentence can be validated under a contradictions, extraordinarily vague, review that is rife with inconsistent, wildly inextricably subjective mired valuations judgments. intuitive moral For Justice WILENTZ and Justices affmnance —Chief CLIFFORD, POLLOCK, O’HERN, GARIBALDI and STEIN —6

For reversal—Justice HANDLER —1

651 A.2d 1001 KAMINSKY, IN THE MATTER OF GARY M.

AN ATTORNEY AT LAW.

January 1995. ORDER Disciplinary having report Review Board filed a with the Court, Supreme recommending by way reciprocal discipline MARLBORO, disbarment of M. GARY KAMINSKY of who was admitted to the bar of this State in 1983 and who was thereafter temporarily suspended practice July from on and who time, suspended remains at this and who was disbarred from the practice of law the State of York New for conversion of client funds, account, improper commingling use of his escrow personal client escrow involving funds with funds and conduct dishonesty adversely affecting practice and deceit his fitness to law, good appearing; cause

It report is ORDERED that the and recommendation of the Disciplinary adopted Review Board are and GARY M. KAMIN- hereby disbarred, SKY is and that his name be stricken from the State, attorneys roll of immediately; of this effective and it is further ed in a life sentence. Defendant notes high in suffered a level of victimization. State those cases only premedita Nelson Jalil’s case involved extended asserts mitigating circum juries in those cases found tion and that other in case. present stances not defendant’s pecuniary The determinative factors Martini’s case are the family. and the motive extreme victimization of victim’s Defen- only kidnapping involving is the dant’s case a demand for ransom. Likewise, family his is the terrorizing ease which necessary completion member was for of the criminal scheme. greater We conclude that those elements create a different and culpability present kind of non-stranger- than is in the other kidnapping Accordingly, disproportionality cases. we find no defendant’s compared death sentence when to the life sentences imposed in non-stranger-kidnapping the other cases. eases, group compari defendant also offers Koedatich, Biegenwald, Bey. son James Richard and Marko We do not include those defendants because each of their cases c(4)(a), murder, aggravating prior involved submission of factor jury. highest degrees That factor creates one of the IV, supra, blameworthiness. See 137 N.J. at 645 A.2d

Case Details

Case Name: State v. Martini

Court Name: Supreme Court of New Jersey

Date Published: Dec 21, 1994

Citation: 651 A.2d 949

Court Abbreviation: N.J.