State v. Morton

PLAINTIFF-RESPONDENT, JERSEY, v. STATE OF NEW MORTON, W. DEFENDANT-APPELLANT. ROBERT August Argued 2000 Decided 2000. March DeCastro, N. Bernadette Deputy Assistant Public Defender and Wyk, Deputy II, Claudia Van Public argued Defender the cause (Ivelisse appellant Torres, Defender, attorney). Public Gochman, Samojf Lisa Deputy Attorney argued General (John respondent Farmer, Jr., cause for Attorney J. General of Jersey, attorney). New opinion

The of the Court was delivered COLEMAN, J.

Two ago, terms we affirmed defendant’s conviction and death sentence for the Morton, murder of Michael Eck. State v. 383, (1998) (Morton I). N.J. 715 A.2d 228 preserved We defen right dant’s to seek “proportionality sentence, review of 2C:11-3e, separate N.J.S.A. in a proceeding.” Id. at 715A.2d 228. On that review we find disproportionality no in defendant’s death sentence.

I. FACTS I, facts are set forth in detail Morton 155 N.J. at 398-410, will, however, 228. briefly We restate those facts relevant to our proportionality review. night

On the of February 1993, defendant, twenty- who was years time, five old at the and co-defendant Bryant, agreed Alonzo go “get out paid,” colloquialism for committing robberies. leaving After Playhouse, go-go bar in Burlington Township at approximately p.m., 10:20 Bryant defendant and encountered Toby Chrostowski in parking lot. The driver of defendant’s path; passenger to block Ford Escort tried Chrostowski’s from approached ear and Chrostowski behind. walked around the driver, sharp pain a past tried to walk the and felt Chrostowski by. entering Playhouse, After the Chros- his chest as he walked stabbed, but did not know discovered that had been towski him. of men had Chrostowski survived. which the two stabbed Francine’s, evening, Bryant to a Later defendant and drove that wealthy They Cherry with clientele. decided not nightclub Hill a anyone parking system have rob there because the valet would to risky. robbery amade robbery,

Approximately two hours after the Chrostowski defen- They gas Delran station. Bryant and drove into the Amoco dant departed by pump a limousine from the waited the air until Thereafter, they up pumps and gas drove to attacked station. Eck, twenty- gas-station attendant. Eck was stabbed Michael chest, shoulder, forearm, groin. A times and stab four in the fatal, and the wounds to Eck’s liver to Eck’s heart was two wound Eck, severely bleeding gasping also lethal. could have been breath, hospital night that at the from called 9-1-1. He died bleeding. massive evening, hospital to to

Later went treat defendant finger stabbing while Eck. knife to his left index sustained wound wound earlier that The nurse had treated Chrostowski’s stab who evening injury, which looked like suspected that defendant’s wound, stabbing. police. called the knife was related to that She investigation by police to the identification ensuing led Bryant perpetrators as the of both and arrest of defendant and stabbings. defendant,

During interrogation he denied initial custodial of However, he gas-station robbery-murder. any in the involvement taped In first statement changed story a number of times. his being at the Amoco police, present to to defendant admitted station, being In a Bryant of the one stab Eck. but he accused statement, He taped defendant confessed to crimes. second Bryant agreed commit a divulged had series that he night Bryant robberies that and that both he and stabbed Eck. Eck, Defendant admitted that he had kill intended to not to robbery, facilitate the but to eliminate him as a Through- witness. very out his confession defendant signs showed few of emotion or remorse. Burlington County jury

A purposeful-or- convicted defendant of knowing conduct, murder, murder felony first-degree his own (four robbery counts), second-degree assault, aggravated third-degree aggravated assault.

Defendant ensuing penalty phase absented himself from the witnesses, the trial. In presenting lieu of defense counsel submit- book,” 200-page “mitigation ted a which included defendant’s school, medical, records, psychiatric Study his Child Team report, misbehavior, a documentation of defendant’s childhood Bryant’s prison record, Bryant’s criminal and brother’s statement police inculpating to the Bryant primary perpetrator, as the and prediction defense counsel’s prison that defendant would die if he were not sentenced to death. Defense opening counsel’s and closing argument childhood, stressed defendant’s during troubled ulcer, which he suffered a stress his mother’s deficient parenting, development and his slow mental and borderline intellectual func- tioning. Defendant, however, refused psychiatrist to meet with a psychologist. or jury unanimously

The found the aggravating existence of two c(4)(f) detection) (escape murder). factors: c(4)(g) (felony and Only jurors ten of the twelve proven concluded that the State had c(4)(c) (torture depravity) or aggravating factor. At least one juror c(5)(h) (catch-all) sixty found four of the mitigating factors by submitted juror the defense. One found mitigating as likelihood that defendant prison prior would die in becoming eligible parole, mitigating seven found as defendant’s lack of a record, criminal and ten concluded that defendant would not have committed the Bryant.” offenses “were it not for Alonzo Three jurors sponte found sua under the catch-all factor that defendant only is his mother’s child.

243 aggravating jurors unanimously factors concluded that Accordingly, of outweighed mitigating factors. the sentence Additionally, imposed. imposed an the trial court death was noncapital forty years imprisonment of with a aggregate sentence twenty-year parole disqualifier. This Court affirmed defendant’s I, 466, 715 Morton 155 N.J. at convictions sentences. A .2d228.

II. REVIEW INDIVIDUAL PROPORTIONALITY 453-57, 253, (Loftin Loftin, v. N.J. 724 A.2d 129 In State 157 denied, 897, 229, II), 145 L.Ed.2d 193 cert. 528 U.S. 120 S.Ct. (1999), Judge Special appointed this Court David S. Baime as findings make him to examine and Master ordered review,” regarding proportionality recommendations “individual specific death sentence is concerns whether a defendant’s which similarly-situated compared defen proportion when with out review,” “systemic which alle proportionality addresses dants gations permeates that invidious discrimination administration Judge Baime’s recommenda penalty death in this State. adopted, were for the proportionality individual review tions for Project, In re part, Proportionality this Review most Court I). (1999) Review (Proportionality 161 N.J. A.2d review, systemic proportionality see Judge report Baime’s on Baime, Jersey CouH: Report Supreme to the Neiv David S. (Dec. 1, 1999) (Baime Project Proportionality Revietv Systemic II), Review Proportionality has in In re Report been examined (2000) II, Project (Proportionality 757 A.2d 168 N.J. II). proportionality is the first present The case one of Review articulated this decided based on the standards reviews Court has I, supra, Proportionality Review Proportionality Review II, supra. goal proportionality of review “is to deter principal dispro is particular defendant’s death sentence

mine whether of other defendants compared when the sentences portionate” DiFrisco, 160, 148, 142 similarly State v. N.J. who are situated. 244 (1995) (DiFrisco III), denied, cert. 1129, 516 U.S.

662 A .2d 442 949, (1996); S.Ct. L.Ed.2d 873 see N.J.S.A. 116 133 A 2C:11-3e. disproportionate defendant’s death sentence is considered if other jurisdiction defendants in the who have similar characteristics State v. commit similar offenses and receive life sentences. (1994) (Martini Martini, II), 3, 20, 139 N.J. cert. 651 A.2d 949 denied, 875, 203, 516 U.S. 116 S.Ct. 133 L.Ed.2d 137 (1995); State (1994) Bey, IV), 334, 343, v. 137 N.J. (Bey cert. 645 A.2d 685 denied, 1164, 1131, 513 U.S. (1995); 115 S.Ct. 130 L.Ed.2d 1093 Marshall, (Mar (1992) v. 109, 131, State 130 N.J. 613 A.2d 1059 II), denied, shall cert. 929, 1306, U.S. S.Ct. L.Ed.2d 507 113 122 (1993). 694 The defendant must show that his “death sentence is IV, Bey supra, 352, 137 N.J. at 685; aberrational.” see 645 A.2d Chew, (Chew II), 183, 195, State v. 159 N.J. cert. 731 A.2d 1070 — denied, U.S. —, 593, 120 S.Ct. (1999); 145 L.Ed.2d 493 State Harvey, v. 277, 289, (1999) III), 159 N.J. (Harvey 731 A.2d 1121 — denied, U.S. —, cert. (2000). 811, 120 S.Ct. 145 L.Ed.2d 683 “ penalty We seek ‘to ensure that the being death is administered rational, manner, non-arbitrary, fairly and evenhanded ” II, with supra, 157 N.J. at consistency.’ 265, reasonable Loftin II, Marshall 130 N.J. at (quoting 131, A.2d 129 1059). (1)

There are two proportionality facets of individual review frequency analysis, which frequency measures the relative (2) cases, factually death sentences precedent- similar review, seeking judicial which way is “a traditional comparing the files in similar cases to determine whether a defendant’s death sentence is freakish or impermissible aberrational or the result of I, Proportionality supra, Review influences.” 161 N.J. at A .2d 528.

We note that proving defendant bears the burden of III, that his death DiFrisco disproportionate. sentence is N.J. 662 A.2d 442.

245 OF CASES A. UNIVERSE II, step any supra, in the “first in As we stated Chew of is universe cases that proportionality review to determine compare the defendant’s case. The 1992 we will with use comparison group to limits this amendment to N.J.S.A. 2C:111-3e actually sentence has been only those in which a death cases Court, however, 196, A.2d 1070. This imposed.” 159 N.J. at 731 recently stated been sentence has

a universe limited to cases which death-penalty imposed “[w]ithout This is so because cannot a coherent system. proportionality support knowledge court] unable to [a would be determine cases, of the life-sentenced ‘meaningful distinguishing it the death sentences whether is a basis’ there cases’ in which lesser sentences are imposed.” reviews from the ‘many (quoting I, Review 161 N.J. at 528 David S. 84, 735 A.2d [Proportionality supra, New Court: Review to the Supreme Proportionality Jersey Baime, Report (Baime omitted)) I) (citation Project 28, 1999) (Apr. ]. Report at 10 cases, death-eligible whether or not will consider all We therefore they prosecuted, decision not to capitally were because the State’s necessarily reflect on prosecute capitally does not the defendant III, supra, Harvey 159 lack of deathworthiness. the defendant’s 291-92, A.2d 1121. N.J. at 731 FREQUENCY ANALYSIS

B. frequency is step proportionality review The first helps us analysis. “Frequency analysis to determine whether likely him her more category in a that renders or defendant is III, penalty.” death DiFrisco other killers to receive the than 171, begins Frequency 442. review 142 A.2d supra, N.J. at test, the relative which measures and ends with the salient-factors factually Propor cases. sentencing in similar frequency death 528; I, 77-78, tionality supra, 161 N.J. Review II, 202-03, 731 1070. The index-of- 159 N.J. at A.2d Chew proportionality test, by this previously used Court outcomes review, instability regres “the because of was discontinued I, supra, 161 N.J. at Proportionality Review sion models.” result, analysis here frequency will be A.2d As a our 528. test. limited the salient-factors compare

“The salient-factors test enables us to defen factually dant’s sentence to sentences similar cases measure III, frequency the relative Harvey of defendant’s sentence.” 301, supra, 159 N.J. at 731 A.2d 1121. We must first determine to category belongs which upon statutory aggra defendant based the vating group factors.1 We then ‘“according subdivide that aggravate circumstances that mitigate serve either to or to II, blameworthiness of the defendants those cases.’” Loftin 328, II, supra, 157 at 724 (quoting N.J. A.2d 129 Martini 139 N.J. 33, 949); III, Harvey supra, see 159 N.J. at A .2d1121. I,

In Proportionality Review principle we retained the unique assignment. “Briefly stated, principle is that even though may factors, multiple identifying case contain e.g., killing public robbing official, official torturing or the case is assigned category to one Proportional salient-factor review.” I, ity Review 161 N.J. at 735 A.2d 528. Both the Public Attorney agree Defender and the General that Morton should be placed category, F-2 encompasses which murders commit during robbery ted agree course of a of a business. We with designation. categories The thirteen basic are: (A) Servant; Victim is a Public (B) above; Prior Murder Conviction without A (C) above; Killing Contract without A-B (D) (subdivided (1) aggravated Sexual Assault without A-C above into (2) other); (E) Multiple (subdivided (1) aggravated Victims without A-D above into (2) other); (F) (subdivided (1) home, Robbery (2) business, without A-E above into (3) other); (G) above; Torture/Depravity without A-F (H) above; Abduction without A-G (I) above; Arson without A-H

(J) above; Escape Detection without A-I (K) above; Burglary without A-J (L) above; Grave Risk without A-K (M) Victim Under 14Years Old without A-L above. thirty-three currently cases. subcategory, there are F-2 In the of the death-sentenc- following represents a chart breakdown subeategory. in the F-2 ing for defendants rates TEST: F-2 SUBCATEGORY SALIENT-FACTORS Y) (data tbl. from Morton Report, Death-Sentencing Death-Sentencing Proportion Advancing All Rate for Eligible Cases Rate At Penalty to P-Trial Trial Cases (>&) (fc) &s) 55% 15% Inch D 28% F-2 Cfa) (fe) (fc) 13% 53% D F-2 Excl. 24% (17fe) efc) (5fc) 11% 39% All Ds 30% (17fe) (5fe) (5fc) 39% 11% Ds D 29% All Excl death-sentencing rates reveals that test The salient-factors from the appreciably differ subcategory do not in defendant’s death-eligible uni- In the F-2 death-sentencing rates. overall business-robbery-murders is verse, death-sentencing rate for death- eleven-percent greater than the percent, which is fifteen universe, of full inclusive in the sentencing of the 455 cases rate F-2 from the is excluded defendant’s case When defendant. death-sentencing universe, rate thirteen-percent eligible death death-eligible eases result all the rate at which slightly exceeds penalty proceeded to Among the cases that a death sentence. subcategory to death trial, people in defendant’s juries sentenced rate, lower than which is bit twenty-eight percent at a death-sentencing penalty-trial in the rate thirty percent overall excluding defendant’s when disparity increases The universe. business-robbery-murders versus twenty-four percent for case: that ad- excluding defendants all cases twenty-nine percent for hand, business-robbery- the other penalty phase. On vanced to a other penalty phase than likely proceed to a more murders are penalty-trial-ad- fifty-five percent death-eligible murders. thirty-nine percent rate. the overall rate exceeds vancement excluded, fifty-three percent case is defendant’s Even when phase. proceed penalty to a business-robbery-murders propor- in other to those obtained comparable are Those results disproportion- cases, found no this Court tionality which review 302, 1121 III, 159 N.J. at Harvey supra, ality. See 248 death-sentencing

(reporting penalty rate at E-1 trial for defen dants, 33%, excluding Harvey, death-sentencing as rate for all defendants, 24%); excluding Harvey, E Cooper, as State v. — (1999) 55, 78, II), denied, (Cooper N.J. 731 A.2d 1000 cert. —, 809, (2000) (noting U.S. 120 S.Ct. 145 L.Ed.2d 681 death- defendants, sentencing penalty rate at excluding trial for C-1 39%, Cooper, defendants, death-sentencing as rate for all 30%); III, excluding Cooper, supra, as DiFrisco at 173- N.J. (reporting death-sentencing 662 A .2d 442 rate for I-1 defen dants, DiFrisco, 25%, excluding as death-sentencing rate for defendants, DiFrisco, 29%); II, excluding all I as supra, Marshall 168-69, (reporting death-sentencing 130 N.J. at 613 A.2d 1059 penalty principals, excluding rate trial of contract-murder Mar shall, 0%, death-sentencing as rate for entire contract-murder Marshall, 33%). pool, excluding as Thus, the salient-factors test does not indicate that defen disproportionate. dant’s suggest death sentence is The statistics prosecutors capital that subcategory consider murders in the F-2 deathworthy death-eligible to be more than other homicides but juries business-robbery-murders do not consider to more be deathworthy capital than other murders.

C. PRECEDENT-SEEKING REVIEW “The precedent-seeking approach, also referred to as com review, parative-culpability is component proportion the second II, ality review.” 157 N.J. at In A.2d 129. Loftin review, precedent-seeking death-eligible “we examine cases simi lar to defendant’s case to determine whether his death sentence is compared aberrant when to the sentences received defendants II, 210, in those other supra, cases.” Chew 159 N.J. at 731 A.2d 1070; III, Harvey supra, 307, accord 159 N.J. at 731 A.2d 1121. “give weight We enhanced process to the of precedent-seeking II, 88, Cooper supra, 1000; review.” 159 N.J. at 731A.2d see also III, 308, (“[W]e Harvey supra, 159 N.J. at 731 A.2d 1121 have consistently placed greater precedent-seeking reliance on review

249 III, 184, supra, 142 N.J. at review.”); DiFrisco frequency than on (“[W]e heavily 442; precedent-seeking on rely here more A .2d II, supra, 159 N.J. at Chew analysis.”); frequency review than on 209, (acknowledging precedent-seeking reliance on 731 A.2d 1070 (“In II, 88, prior Cooper supra, 159 N.J. review); at 731 A.2d 1000 cases, great consistently we have accorded proportionality-review frequency review than significance precedent-seeking er (“We II, 296, supra, 157 N.J. review.”); at 724 A.2d 129 Loftin [precedent- of reliance on this form consistently placed our have analytic we have en difficulties seeking] review because of analysis.”). applying frequency countered RELEVANT FACTORS 1. defendants, to other similar comparing defendant

“In II, culpability.” Chew three-part model of criminal use a we II, supra, 1070; 210, accord supra, 159 N.J. at 731 A.2d Loftin III, supra, N.J. 129; at DiFrisco 336, N.J. at 724 A.2d culpability, consid 203, we 442. To evaluate defendant’s 662 A.2d (2) victimization, blameworthiness, (1) degree of moral er his II, 210, supra, 159 N.J. (3) at 731 A.2d character. Chew his II, 1059. supra, 130 N.J. 1070; 613A.2d Marshall examining motive, pre- moral blame-worthiness by review defendant’s We first justification or distur- disease, defect, of mental excuse, or evidence meditation, knowledge knowledge of effects on nondeee- victim, of the bance, helplessness age, involvement and defendant’s etc., victims, maturity, defendant’s dent including degree planning victimization, We then consider the murder. injury to nondecedent victims. Finally, murder, of the brutality violence including or her other record, defendant, character of the we examine the for authorities, remorse, capacity with violence, acts of cooperation unrelated rehabilitation. (citing II, Marshall 731 A.2d 1070 210-11, 159 N.J. at [Chew II, supra, omitted) 1059) (citations ]. 130 N.J. at BLAMEWORTHINESS a. DEFENDANT’S MORAL Ap indicates that analysis moral blameworthiness of defendant’s murdering Eck for blameworthy. Defendant’s motive highly he is Killing to robbing gas station. escape detection was to Harvey contemptible. See robbery is for a apprehension avoid 250

III, 312-13, (finding supra, 159 N.J. at 731 A.2d 1121 defendant’s high part of to moral blameworthiness because his motive However, robbery). escape apprehension for this motive is “rela tively conjunc common for defendants whose homicides occur II, felony.” Cooper supra, tion with the commission of a 159 N.J. Nonetheless, A at 731 .2d 1000. defendant’s admission that he prevent identifying telling killed Eck him from defendant is reprehensible Bryant his motive. Defendant and did not need to robbery; kill begging Eck to effectuate the while Eck was for his life, Bryant they he told and defendant that could take whatever they ignored pleas mercy, wanted. Defendant for victim’s brutally continued to stab him. likely premeditation

Defendant’s lasted for several hours. He Bryant gloves surgical both carried knives and for their robbery planned spree. There are also indications that defendant stabbing prelude viewed the Chrostowski as the further as confession, In divulged, saults. defendant “I what I knew getting night being into.... One indication of the a murderous ” I, night [Bryant] guy.’ was when ‘Lonzo cut a Morton N.J. 715A.2d 228. any justification murdering

Defendant lacked or excuse for Eck. only provocation, Bryant’s evidence of claim that Eck called nigger, him implausible. is Defendant never contended that he any had heard Eck utter racial slurs or that he Eck stabbed any reason other than to eliminate him as a witness.

The record is devoid of evidence that defendant suffered from a disease, mental defect or disturbance at the time of the murder.2 presented The defense documentation of defendant’s borderline yet, functioning; mentally intellectual defendant is not retarded. injury Defendant suffered a severe head and a stress-related ulcer years the time he was three old. Later in his childhood he cooperate preparation mitigating Defendant refused to in the evidence. presume mitigating presented We cannot the existence of evidence that was not at trial. school, primari- where he was problems at experienced behavioral That is the extent of ly special-education in classes. enrolled him deficiency, provide not with which does defendant’s mental any justification or excuse for the murder. victim, al knowledge helplessness of the

In of the terms Bryant inherently helpless, and though not defendant Eck was attacking gas before Eck was alone at the station made sure that depart before They limousine driver to waited for the him. area late robbery, occurred in an isolated commencing the which II, 129 supra, N.J. at night. Compare at Loftin helpless part in because (concluding knew victim was defendant very night”). at In place “in area late crime took an isolated knives, they and addition, Bryant armed with defendant and were (concluding armed. Ibid. to believe that Eck was had no reason defendant, helpless part in because but victim was defendant knew armed). victim, Further, outnum perpetrators the two not working graveyard Eck, gas-station the lone attendant bered shift. robbery-murder and defendant living victims witnessed the

No However, knowledge two children. specific that Eck had had no necessary. family knowledge of members is specific Although victim] [the known that had family not have specifically defendant may might recognized “[w]hile that a defendant be we have friends, previously survivors of his victims or of the particular of the characteristics unaware specific killing will foreseeable that the will it is behind, that the victim leave completely familial a web of relationships.” destroy eliminate unique person (quoting Muhammad, v. State III, 159 N.J. 731 A.2d 1121 [Harvey (1996)) ]. 145 N.J. A.2d 164 23, 46, knowl- Therefore, was imbued with conclude that defendant we Eck’s stabbing have on that this brutal would edge of the effect survivors. Eck. he murdered twenty-five years old when

Defendant was c(5)(c)(age) mitigating factor unanimously rejected the jury thus, and, age diminish his blameworthiness. does not robbery murder miti- Bryant’s planning involvement Bryant to an extent. moral blameworthiness gates defendant’s multiple apparent plan was the mastermind behind the to commit jurors robberies and murder. Ten found that defendant would participated robbery-murder not have committed or of Eck Bryant. proportionality had it not been for Defendant’s counsel criminal, Bryant, goes a career “took further contends advantage instigate Mr. mental of Morton’s deficiencies defen- However, participation” dant’s in the crimes. defense counsel penalty phase, jury rejected overstates the case. At the c(5)(h) (catch-all) following proposed mitigating factor: “Due to his abilities, intellectual Robert Morton was drawn into the criminal Bryant previously acts Alonzo who had been convicted of aggravated eight years prison, only assault and served a federal having sixty days prior been released to the offense.” The that, appears persuaded despite to have been defendant’s border- functioning, independent line intellectual he was able to make Although Bryant primarily planned robbery decisions. the murder, willingly participated defendant in the crimes. There- fore, culpability planning in his the murder should not be diminish- presence ed because of the of a co-defendant.

Overall, very high. defendant’s moral blameworthiness is He for, commit, escape apprehension merely murdered Eck to not robbery Bryant the of the Delran Amoco. Defendant and re- peatedly despite stabbed Eck defenselessness. Defendant his presented no evidence that he suffered from a mental disease or Although Bryant principally planned emotional disturbance. the robbery-murder, readily committing in defendant collaborated the crimes.

b. DEGREE OF VICTIMIZATION We evaluate victimization based on the relative violence and III, Harvey 313-14, 159 N.J. brutality of the murder. A. degree 2d 1121. The of in victimization this case was exceptional, given living even the absence of Eck victims. must wounds, pain twenty-four have suffered tremendous from the stab including groin Bryant in three area. Defendant and contin brutally though ued to stab Eck even he offered no resistance and long begged for his life. Eck remained conscious after the nearly stabbing pronounced dead until two hours and was happening fully that Eck aware of what was later. The fact argues degree him to the of victimization. Defendant adds twenty-one palliates superficiality of of the stab wounds argument degree disagree. We That is based on of victimization. premise that non-fatal wounds are insubstantial. At the mistaken trial, superficial if it the medical examiner testified that a wound is Although superficial cannot itself cause death. wounds Bryant would not have killed Eck if defendant and had not liver, superficial him in the heart and the infliction of stab stabbed experience pain and loss of blood wounds caused Eck to enormous degree greatly enhanced the of victimization. c. DEFENDANTS CHARACTER Eck, murdering defendant had never been arrested as Prior to adult, arrest, assault, juvenile in only his resulted an request. a criminal dismissal at the victim’s The absence of favorably record reflects on defendant’s character. record,

Although criminal defendant not included participated stabbing engaged in other violent acts. He Toby night that he murdered Michael Chrostowski on the same original attorneys him defense confronted with Eck. When evidence, inculpatory ferocious reaction induced them defendant’s counsel, from case. His trial aware of defendant’s to withdraw tendencies, during the violent feared that he would become violent presentation mitigating marginal of his intellect and evidence Additionally, portion shortcomings. the redacted his mother’s confession, defendant stated that he would commit another of his prison if homicide while in confronted.3 stabbing argues to his involvement in a The State that defendant confessed prior the murder. The State's source for that that occurred two months I, 228, opinion supra allegation, this in Morton 155 N.J. at Court's questions only response to indicates that the trial court redacted defendant's regarding stabbing. an earlier authorities, initially cooperate with which

Defendant did not favorably in his character assessment. After would have reflected Eck, surgical gloves out the window of his killing he discarded his During Bryant disposed knife. car. later of defendant’s interrogation, originally denied involvement the stab- defendant police After inves- bings of both and Eck. extensive Chrostowski crimes, ultimately tigation him to the defendant that connected however, Defendant, to his involvement the crimes. confessed police subsequently insisted that fabricated his confession. police qualify with as the His inconsistent interactions do may type cooperation mitigating be deemed a factor. very little remorse in his confession. He Defendant showed sorry “I’m killer. I did it. I’m ... that don’t said: a fuckin’ but bring man back.... Who am the fuck am I to take a [sic] I, man out that ain’t did nuttin’.” Morton 155 N.J. at confession, recanted, Except 715 A. 2d 228. for his which he later Upon reaching defendant exhibited no remorse. the comfort of crimes, Bryant’s night girlfriend’s home on the of the defendant joked Bryant laughed than about the murder. Rather actions, they expressing regret committing their discussed robbery. another capacity might

Defendant have a for rehabilitation. He has no employed criminal record and was until his arrest. Further- more, However, plan he did not the crimes. his refusal to take responsibility night fatally for his actions the stabbed Eck suggests may his utter lack of remorse that rehabilitation be Indeed, unlikely. strongly suggest his own statements that he may prone be to violence. aggravating mitigating

Defendant’s character has both as- character, pects. law-abiding past His reflects well on his but his innocence, insistence on his the face of his confession and the him, overwhelming against disturbing. evidence is

d. CONCLUSION Moreover, culpability high. high Defendant’s overall is degree substantially culpa- of victimization contributes to raise his

255 bility. significant. moral blameworthiness is Al- Defendant’s attributes, positive though his character evinces some those are highly aggravated aspects of his character. Based dwarfed that, culpability, three-part on the model of criminal we conclude overall, high culpability. defendant exhibits a level of

2. DEFENDANT’S COMPARISON GROUP Precedent-seeking “employs comparison review the same II, the salient-factors test.” Chew group in as that used reiterate, N.J. parties agree 159 731 A.2d 1070. To both capital belongs subcategory crime in the F-2 for defendant’s business-robbery-murders qualify that do for salient factors A through Attorney proposes comparison E. The General fifteen cases,4 catalogued in F-2 fourteen of which are and one of which is object designated F-3. The Public Defender does not to the any comparison group. inclusion of of those cases defendant’s addition, In the Public Defender seeks to include an additional subcategory, (eight eleven eases5 from the F-2 and three murderers) Attorney subeategory B-l for to which the objects. cases be included General We now determine which will group. comparison in defendant’s

Initially, agreement parties that we note our with the compari- following fifteen should included in defendant’s cases be Harris, Hart, Feaster, group: Culley, Craig Tim son Carl Richard Inman, Hoyte, Anthony Hightower, Roger David Mark Jacinto Simmons, Russo, Saleh, Slaughter, Abdel Jaber Frederick Rafael Wheeler, Williams, Corey Washington, Ronald Leon Charles belong in F-2 Donald Loftin. All of those defendants subcate- Loftin, gory except subeategory. F-3 who falls under the We precedent-seeking review. include all of those cases defendant’s Roger Hightower's case, We count Jacinto two trials as one penalty single trial for three murders as one case. Hoyte's separate Long's single We count Ronald for two murders as one case. trial disagreement, we hold that

For cases over which there is classification6 that fall within defendant’s salient-factors-test cases comparison presumptively included within defendant’s should be Conversely, that do not come within his salient- group. cases presumptively be excluded from factors-test classification should presumptions comparison group. believe those defendant’s We prior practice using the faithful to this Court’s of salient-factor are goal having prece categories comparison groups and our dent-seeking complement the test while review salient-factors cross-category maintaining openness a certain tolerance and I, 91, supra, comparisons. Proportionality Review 161 N.J. at 735A.2d 528. case, ultimately or not to include a over which

Whether disagreement, comparison in review is decided based on a there is Essentially, showing similarity. proposed if the com of sufficient parison case has the same salient-factors-test classification as case, comparison in if defendant’s we will include the case review characteristic, a in addition to the the two cases share substantial instance, proposed comparison if common salient factor. For escape-detection have the case and the defendant’s case both common, aggravating factor in the cases’ similarities would be hand, comparison. only if sufficient for On the other addition gender, al factor shared is the victim’s the cases eases sufficiently comparison purposes. would not be similar for proposed For a case that does not fall the defen within classification, in dant’s salient-factors-test it will be included defen only comparison group if the two dant’s cases share several defining gas-station-robbery- example, characteristics. For two despite murders which the victim was shot once the head offering compared although no should to each other resistance be conviction) (prior B one case is classified salient factor murder catego- Defendant's salient-factors-test classification is his salient-factors-test category subcategoiy. or, D, E, F, if defendant's case falls within or In ry case, this is F-2. Morton's salient-factors-test classification (business-robbery-murder). contrast, and the other F-2 as In a murderer, residential-rape-murder by a which would be B, classified in compared carjack- salient-factor should not be to a (sexual assault) ing-rape-murder in D salient factor because of the cases’ dissimilarities.

We those defining believe standards for a defendant’s comparison group goals best comparing harmonize the defen cases, dant’s keeping ease to similar comparison the number of manageable, enabling frequency analysis cases precedent- seeking complement By review to placing high, each other. but unattainable, using comparison bar to case outside defen classification, dant’s effectuating willing salient-factor we are our I, ness in Proportionality Review 161 N.J. compare some cases that cross salient-factor classifications acknowledging primacy

while the of the classifications and the importance having frequency analysis precedent-seeking and review correlate.

a. COMPARISON OF SIMILAR CASES

TO DEFENDANT’S CASE First, we discuss the F-2 subcategory. other defendants in the defendant, Culley prior Unlike Carl had a conviction for theft Also, Culley planned robbery. and criminal mischief. the Other- wise, culpability greater Culley’s culpability. defendant’s is than Although defendant, Culley, ultimately like gas-station killed the escape apprehension, Culley attendant order to claimed that the accidentally first grabbed shot was fired when the attendant the gun. Accordingly, barrel of the great- defendant’s murder evinces addition, premeditation. Culley’s er In murder victim suffered far Further, defendant, than Culley, less Michael Eck. unlike who was murder, years nineteen old at the time of the claimed to have been Therefore, Culley’s abused as a child. life sentence does not support disproportionality. defendant’s claim of prior

Richard Feaster also had a limited criminal record. His robbery-murder gas commission of a second at a station demon- Feaster, strates a less favorable character than defendant’s. defendant, Fur- planned robbery-murder. the primarily unlike thermore, alleged that the is to have said he committed Feaster hand, killing. experience the thrill of On the other murder to execution-style killing substantially victim- involved less Feaster’s slaying In addi- painful ization than brutal of Eck. defendant’s tion, experienced an damage Feaster brain abusive suffered younger years was three than defendant at childhood. He also robbery-murders. respective gas-station Feast- time of their alleged persuasive er’s death sentence is not evidence of sentence. disproportionality of defendant’s death exception juvenile Tim With the Harris’s enormous record unemployability, features of Harris’s murder show defendant culpable Audrey more than he.' killed Williamson to to be Harris complete robbery, escape apprehension not to for it. William- Eck, only son suffered much less than and Harris was nineteen years why explain old. These factors Harris received life sentence, any compari- penalty the death and undermine not implicating disproportionality in son defendant’s sentence. himself, Although robbery-murder planned by Craig defendant, deathworthy Hart was as as defendant. Like Hart robbery in had no record but committed a second which the execution-style killing victim did not die. Hart’s instilled tremen- victim; however, similarly dous fear in Eck was fearful greater physical pain suffered much than the driver taxi Hart Hart killed. was not motivated a desire to eliminate a witness. Also, intoxicated time of concluded Hart was at the murder. deathworthy Hightower,

Defendant is more than Jacinto who juries robbery- Hightower planned two to die. sentenced Barlieb, Cynthia murder alone. He shot a convenience store clerk, times, including execution-style three once the head. However, defendant, High- less Eck. Like Barlieb suffered than gainfully employed was murder tower and committed the defendant, escape Hightow- apprehension robbery. for the Unlike up grew er in an abusive environment suffered several personality Finally, Hightower only twenty-one disorders.7 was years old when he murdered Barlieb.

Roger Hoyte imprisonment was sentenced to life for the execu tion-style Although murder of three cab drivers. his murders heinous, Hoyte were had a clean years record and was three Further, younger Hoyte than defendant. substantially coop was police inculpated erative with his co-defendants and another inman an expressed unsolved murder of a cab driver. He also sincere remorse Hoyte drug for his crimes. was a addict who robbery, killed to escape effectuate the rather than to detection Therefore, Hoyte’s for the robberies. life sentences do not strongly support disproportionality defendant’s claim. Further more, comparable “[t]he fact that other defendants cases have Chew, spared dispositive.” been is not 159 N.J. at A .2d1070.

Anthony defendant, deathworthy Inman although was not as as Inman unemployed. had appar- convictions Inman ently did not form an kill pointed gun intent to until the victim crime, him. When he twenty-one years committed the Inman was proseeutorial old and intoxicated. The decision not to seek a against death sentence Inman does not sustain defendant’s claim disproportionality. David Russo shot three victims. He killed one of them and damage inflicted severe brain on another victim. theOn other hand, jailhouse exemplary Russo may exhibited behavior that alcohol, offset his considerable criminal record. Russo abused heroin, and cocaine and was intoxicated when he committed the Indeed, depression. crimes. He also suffered from c(5)(a) (extreme disturbance) c(5)(d) found the emotional (diminished capacity) mitigating Although factors. Russo’s crimes highly alone, him deathworthy standing made he had more miti- trial, At defense counsel for Morton no evidence of childhood presented abuse or adult mental illness. Therefore, life Russo’s sentence

gating factors than defendant. disproportionality claim. support lend to defendant’s does not murder, degree in Abdel Jaber Saleh’s The of victimization alone, strangled Michael planned was formidable. Saleh which he prior over head a crowbar to him with Rehani smashed alive, Although merciful- setting Rehani on fire. Rehani was still Thus, despite ly, began burning. lost consciousness before he murder, brutality probably agoniz- less of this Rehani suffered defendant, ing steadily employed Like Saleh pain than Eck. was any psychiatric or or substance abuse and had no criminal record years younger The problems. Saleh was three than defendant. family, mitigating jury found as factor that Saleh’s which year-old daughter, suffer his wife and would emotional included finding helps if That psychological harm Saleh was executed. whole, why explain spared. to life was On Saleh’s life Saleh’s support claim that his death sen- sentence does not defendant’s disproportionate. tence is were between Frederick Simmons and

There several similarities functioning, had defendant. Both men borderline intellectual records, serious criminal were assisted co-defendants lacked robberies, victims, planned the their who stabbed homicide seri- innocence, ously injured person, initially proclaimed their another ultimately committing to their murders to eliminate confessed However, a witness. there were substantial differences between as used the two men well. Simmons imbibed beer and cocaine committing the from crimes. Simmons also suffered personality depression and numerous found disorders. extremely emotionally disturbed when he com- Simmons was Consequently, Simmons not as deathwor- mitted murder. thy as defendant. Slaughter’s support

Rafael life sentence also lends little disproportionate. Like defendant’s claim that his sentence is Morton, Slaughter emotionally was not but received disturbed during inadequate parenting Slaughter’s childhood. Because only being victim remained conscious for twelve minutes after shot back, appears it twice that the victim did not as much suffer Eck, lingered pronounced nearly as who and was not dead until stabbing. Although Slaughter two the hours after caused two also, employees other restaurant to fear that he would kill he them injure Slaughter years did to attempt not them. three younger importantly, Slaughter than defendant. Most committed complete robbery, escape the murder to the not to apprehension. 22, jury Slaughter’s age, The mitigating found was a factor. factor, jury mitigating The also found the catchall that the two and mitigating outweighed single aggravating factors were not the felony explains why factor of murder. That Slaughter’s life was spared, support not disproportionality. and does Morton’s claim of defendant, Corey Washington

Like person killed one who and, check-cashing along worked at a business with his co-defen dant, deadly kill, against, person. used force did not but a second Washington clearly killed his victim to him a eliminate as witness Eck, However, Washington’s begged and like victim for his life. only extreme, protracted physical pain. Washington Eck suffered conviction, had, had one which more is one than defendant only years robbery- and was nineteen old when he committed murder, guilty thirty pled murder. He and was to sentenced years parole eligibility. mitigating with no The factors found were age Although appear Washington may and the catchall factor. as deathworthy, compared defendant’s death sentence when Wash ington’s impermissible life sentence does not demonstrate “some II, pattern or or invidious factor that has been broken.” Marshall 1059, II, quoted supra, 130 at N.J. in Chew N.J. at A.2d 1070. degree of victimization in Ronald Wheeler’s rivaled the case manag- victimization in defendant’s He murder. stabbed his office times, causing pain. er thirteen her to suffer tremendous Howev- er, deathworthy Wheeler is not as as defendant. Wheeler’s robbery sought premeditated. murder and were not Wheeler entitled, Christmas to which bonus he believed was killed Additionally, the victim she him after denied the bonus. Wheeler underlying apprehension escape for did kill the victim to not crimes. aggravated more crimes that were Williams committed

Charles escape mitigated Trying to than defendant’s offenses. more McDonald’s, people robbing shot two Williams detection manager employee in execution-style. He and an shot the head, permanently disabling employ- killing manager employee, escaped. another who ee. He shot but missed lengthy criminal record further tarnished character. Williams’s less amenable to rehabilitation. On Williams could be hand, that Williams’s father other there was substantial evidence him, neglected him. mother physically sexually abused and his Furthermore, disturbing. particularly His of abuse was evidence repeated slaying than stab- Williams’s was less brutal defendant’s bing felony-murder escape- the Eck. found and of mitigating 28 catchall aggravating factors and of the 50 detection by likely That is the reason he factors submitted defendant. support spared penalty. His life does not the death sentence disproportionality claim. defendant’s shooting Sophia of Fetter at Harrah’s Donald Loftin’s fatal deathworthy Like not as as defendant’s murder. Casino was illness, defendant, drug mental Loftin had no record and no defendant, addictions, Unlike had or abusive childhood. Loftin functioning subsequent mur- normal intellectual committed However, higher der. murder of Eck involved far defendant’s Further, degree Loftin’s of Fetter. of victimization than murder prosecution may noncapital for Fetter murder have Loftin’s the prosecutorial Perhaps product strategy. been of the Atlantic the County County and Mercer Prosecutor’s Offices collaborated trying Loftin Fetter Loftin aimed to convict of the murder before point prior-murder capitally, prove which the State could subsequent aggravating capital factor trial the murder strategy Gary Irrespective possible of of that Marsh. whether explained murdering noncapital prosecution of Loftin for Fetter, lend the circumstances of Loftin’s life sentence do not support disproportionality. claim of to defendant’s

263 previously All category discussed the F-2 cases killings. involved brutal and vicious When defendant’s case is compared robbery-murder to those other death- life-sentenced defendants, we are that satisfied defendant’s sentence of death is disproportionate. we appeal, As observed in the direct twenty-four wounds, including infliction of stab several to the area, genital “supports the inference that defendant intended to I, pain” inflict severe addition to the fatal wounds. Morton supra, high degree brutality 155 N.J. at A. 2d 228. The by twenty-four by exhibited stab wounds and the fact Eck surpasses die gun was left to the one or shot two wounds inflicted Harris, Inman, Russo, Culley, Hoyte, Slaughter, Washington, Williams, II, and Loftin. See N.J. at Loftin A. 2d 129.

b. PUBLIC DEFENDER’S PROPOSED

COMPARISON CASES additionally The Public Defender seeks have this Court compare defendant’s circumstances cases F-2 to five within the subcategory subcategory and two within cases the B-l that the Attorney sufficiently General are not contends similar to defen- subcategory, dant’s case. In the F-2 those cases are Emanuel Charles, Downie, James, Jones, Larry John Khalif and Harold Rodriguez. subeategory, In the B-l those cases are John Fauten- berry Pennington. Frank Larry

The Court declines to include Emanuel Charles and comparison group Jones in defendant’s because the cases bear except little resemblance defendant’s case for the common salient that the during factor murders were committed the course business-robbery. Fautenberry of a alsoWe do not include John Pennington comparison group and Frank in defendant’s because are in subcategory these cases B-l and not share do the “several characteristics,” defining supra at 757 A.2d at with comparison. defendant’s case that warrant a would Fautenberry stop. killed a truck driver met at a he truck However, during the murder was committed the course of a only

robbery similari- truck business. The relevant of the driver’s Fautenberry his Fautenberry and is that killed ty Morton between important An like to leave witnesses. because he did not victim Fautenberry al- is that the two defendants difference between convictions, in Ohio for which ready prior murder one had two enough to penalty. are not similarities the death There received comparison a to defendant’s case. warrant robbery a during bar. Pennington’s occurred the murder similarities, or escape-detection such as is evidence of There no fact, victimization, testimony case. In reveals high to Morton’s victim, may provoked by the the owner Pennington have been that bar, Pennington. this is glass at Because case of the who threw subcategory not share critical simi- prior-murder and does in the case, precedent- do not include it in larities with Morton’s we seeking review. Downie, James, cases, remaining Khalif

The three John comparison group.8 Rodriguez, include in defendant’s Harold we defendant, a gas- and then killed Like Downie John robbed early morning fired two the hours. Downie station attendant attendant, victim, eighteen-year gas old but an station shots That bullet struck the only the bullet struck the victim. second chest, Presumably, he killing him. did not suffer as victim the defendant, victim, jury much as Eck. In contrast defendant’s escape that Downie did not commit murder concluded robbery. jury also found that Downie was detection for the suicidal, family dysfunction- emotionally disturbed and Thus, jury had concluded that Downie established the al. disturbance) c(5)(d) (diminished c(5)(a) (extreme emotional mitigating Although aspects of capacity) factors. some Downie’s offense, aggravated more than defendant’s such as crime were and, himself, planned robbery-murder while fact Downie officer, scene, police fleeing from the fired four shots at a are A. Extended summaries of these cases provided Appendix mitigating outweighed found that single aggrava- factors factor, murder, felony ting precluding penalty. thus the death strong The evidence of emotional disturbance and diminished capacity impact Therefore, had in a substantial Downie’s favor. impose we conclude that the to penalty decision not the death on suggest Downie not dispropor- does that defendant’s sentence is tionate. attendant,

Khalif also gas-station James robbed and murdered a he prison. comparison but was sentenced to life in The of James’s crimes to defendant’s support offenses also does not defendant’s disproportionality. respects, may claim of In some James have blameworthy been more than may played defendant. James have gas-station robbery a more critical role in planning than defendant and James showed no remorse all. at The cases are similar in both prior men had no criminal record both However, employed. pertinent were in all respects, other defen- culpable dant was more than did James. James not shoot the attendant until after the attendant attacked one of co- James’s e(4)(f) defendants. That fact not influenced the AOC to code the detection) (escape Also, factor James’s case. was James nine- years robbery-murder. teen and drunk when old he committed the Therefore, support James’s life sentence does not defendant’s disproportionality claim. Rodriguez’s gas-station murder-robbery belongs

Harold also comparison group. Rodriguez defendant’s killed a shot and cus- tomer, apparently prolonged physical pain who did suffer may However, Rodriguez not have feared life. also shot survived, gas-station Although owner six times. he was required spend hospital. to two and one-half weeks in a Rodri- guez leg and a co-defendant shot another woman in an robbery. marijuana posses- unrelated than Other a conviction for sion, Rodriguez had no record. He had AIDS may to high addicted cocaine and heroin and have been time c(5)(d) (diminished capacity) the crime. coded the AOC mitigating present. permitted plead guilty factor He was non-capital Although Rodriguez murder. defendant could be similarly Rodriguez’s terminal illness and culpable,

considered explain why he was not diminished-capacity mitigating factors Therefore, Rodriguez’s life sentence does capitally prosecuted. argument sentence is support that death not defendant’s disproportionate.

c. CONCLUSION that does not show Morton’s precedent-seeking review Our that disproportionate. We conclude defendant death sentence is deathworthy agreed-upon fifteen life-sentenced was more than the Russo, Hoyte, comparison group. Although cases in defendant’s Saleh, appear highly death- Slaughter, Washington and Williams factors, worthy, presented mitigating absent in their various cases hand, case, support the other that life sentences. On defendant’s culpable significantly than murder of Eck is not less defendant’s Donaghy, which Feaster received a death murder of for Peaster’s addition, culpable Hightow- In is more than sentence. defendant er, juries. by two was sentenced to death who explain if in deathworthiness cannot

Even differences Williams, defendant, why Roger Hoyte not or received but Charles sentence, disparity in complete we not demand a lack of a death do “Disparity proportionality review. alone does not demonstrate IV, 685, quoted 386, disproportionality.” Bey 137 N.J. at 645A.2d II, 214, “Proportionali supra, in Chew N.J. 159 at 731 A.2d 1070. ty only to is not an review seeks assure that defendant’s sentence It is not intended to ensure that one killer’s sentence aberration. III, Harvey similarly categorized other killers.” is identical all (citation 319, omitted); supra, 159 accord 1121 N.J. at 731 A.2d II, IV, Bey supra, 115, 1000; Cooper supra, N.J. at 731 A.2d Consequently, 137 N.J. at 685. we do not find that defendant’s death sentence is aberrational.

III. OTHER ARGUMENTS DISPROPORTIONALITY ALLEGED INTRACASE A. part argues disproportionate in that his sentence is Defendant co-defendant, Bryant, culpable alleged more because Alonzo received a life sentence for the murder of Eck. Michael Ten of jurors who deliberated defendant’s case that concluded Bryant. defendant would not have committed the offense but may may suggest That or jury that defendant’s concluded that Bryant culpable jury was more than if defendant. Even thought Bryant defendant, culpable however, was more than Bryant’s probative disproportionali- life sentence is not of evidence ty. Bryant’s Bryant agree case could not on whether conduct, despite committed murder his own the trial court’s Bryant jury’s belief that inflicted some of Eek’s stab wounds. The finding Bryant ineligible penalty. made for the Irrespective death Bryant’s primary planner robbery-murder, role as the Bryant’s death-ineligibility bearing has on little defendant’s death- III, DiFrisco N.J. worthiness. 662 A.2d 442 Cf. (“Simply might gotten away because the co-defendant hirer have custody not mean does that defendant hit-man in should not be prosecuted punished.”).

B. ALLEGED SYSTEMIC DISPROPORTIONALITY appli

Defendant contends that racial in discrimination Penalty subjected cation of the Death Act him to cruel and punishment right equal protection unusual and violated his to of not, however, the laws. Defendant has required demonstrated the “relentless” documentation of the risk of discrimination. See II, Marshall 130 N.J. at (stating 613 A.2d 1059 that the Court defendant, through will overturn a if death sentence “statisti evidence, ‘relentlessly’ cal documents the risk that [the death] considerations”). sentence was influenced racial defendant, According Burlington in County, the location of trial, prosecutors sought his crime and against death sentences (71%) death-eligible only of five seven black defendants but two (33%) death-eligible six white The lone Latino defendants. defen- capital prosecuted dant capitally. who committed murder was not (80%) capitally-prosecut- Jurors sentenced to death four of the five African-Americans, (0%) ed capitally- but neither of the two (57%) Thus, four of seven death-

prosecuted white defendants. (0%) defendants, white death-eligible eligible black but none six defendants, death sentences. received disparities, sample size of fourteen death-

Despite those meaningful permit far inferences eligible defendants is too small not that the Defendant does contend to be drawn from the data. significant. “A disparities statistically find- county-wide racial are chance, alone, acting statistically significant if ing to be is said II, at supra, it.” 157 N.J. probably not have caused would Loftin omitted). (internal quotations Further- A.2d 129 301 n. more, sentencing Burlington in analysis9 the bivariate of death and, thus, County than race does fails to account for factors other culpability. in for differences control statewide, prosecutors prosecute points also out that Defendant capitally nearly fifty percent with white victims but less of cases thirty of the percent of nonwhite-victim eases. Because than troubling analysis, limitations of a bivariate even those inherent systemic cannot racial discrimination statistics demonstrate capital punishment. flaws, analyses’

Cognizant defendant contends of the bivariate regression analyses10 a race-of-victim effect when reveal reflecting on In- controlling for other factors deathworthiness. deed, statistically regression results from some models show significant race-of-victim effect the likelihood that death- capitally. eligible prosecuted will For the reasons this case be II, 310-15, explained 157 N.J. Court Loftin 129, methodological preclude the results of the flaws reliance on multiple regressions brings to this attention. defendant Court’s 9 a In a bivariate there is one variable. In test only independent analysis, is discrimination, racial the lone variable race. the of presence independent 10“Multiple-regression the is a statistical tool used to describe rela analysis murder) (e.g., and a between one or more variables independent tionship penalty).'' (e.g., II, 157 N.J. at n. variable death supra, dependent Loftin 8, 724 A.2d 129. Therefore, relentlessly systemic defendant cannot document racial penalty. discrimination the death “prosecutor

Defendant maintains capitalized that at his trial the on racially inflammatory of this features black-on-white mur- der.” The trial record refutes Carolyn defendant’s contention. Bennett, Bryant’s girlfriend’s prosecution roommate and a wit- ness, night testified that on the of the murder told defendant her that there “one worry [for less cracker him] about.” That statement defendant was admissible it because corroborated confession, his which making, probative defendant denied and was identity perpetrator as the and his intent to kill Eek. Although prosecutor argued at summation the that defendant Bennett, prosecutor boasted about the murder to never re- epithet. Therefore, ferred defendant’s utterance of the racial defendant cannot demonstrate that racial discrimination contami- nated his ease. II,

In Proportionality today, Review also issued this Court proportionality compiled reviewed data and conclusions reached in Report accepted agreed Baime II. Judge We with Baime’s final determination that discrimination and racial bias have not shown application been to influence of our penalty death sentenc- ing II, system. 225-26, Proportionality Review supra, 165 N.J. at 757 A.2d 168.

Judge presently Baime concluded that there is “no reliable statistical evidence” that the race of either the or defendant victim penalty influences whether the imposed. death is Baime II, Report supra, methodologies at 66. The current statistical do plays significant demonstrate that defendant’s a race role in sentencing penalty death stage larger “either trial inor ibid., cases,” death-eligible sample or that a defendant’s race progress affects which cases penalty phase. to the Ibid. Nor do the models demonstrate that the victim’s race affects the likeli- receiving hood of defendant death sentence. We concurred conclusions, II, Judge Proportionality Baime’s Review reject 225-26, defen- accordingly, we N.J. argument. dant’s

IV. CONCLUSION establishing that his his not meet burden Defendant does has he his burden disproportionate. Nor met sentence is death impermissible as factor operates an proving that racial bias system. sentencing Jersey’s death New sentence. Accordingly, affirm defendant’s death we A APPENDIX (AGREED F-2 UPON MURDERS: I. BUSINESS-ROBBERY CASES)

(1) CARL CULLEY wearing mask and shotgun and a ski

Armed with an automatic hours of the Culley gas the wee gloves, drove into a station station, changed he his mind morning. He to rob the but intended Culley tank. told the attendant after the lone attendant filled his gasoline, money pay and the have did not Culley responded police that he would call the unless attendant attempted to Culley scare the gas left his car at the station. Culley by pointing gun at him. claimed the attend- attendant gun gun of the and was shot when grabbed ant the barrel Culley shot the accidentally got then out of his car and fired. gunshots. In attendant died from the attendant in the back. The confession, Culley kill that he intended to the attend- admitted identifying prevent from ant second shot the attendant with the him. offense, Culley years old. He was nineteen

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

Culley prosecuted noncapitally. juryA convicted him of murder, murder, felony weapons and judge offenses. The sen- thirty years imprisonment tenced him to during which he would eligible parole. be According coding, to the AOC’s c(4)(f) detection) murder) (escape e(4)(g) (felony aggravating and c(5)(h) (catch-all) factors and the c(5)(c)(age) and mitigating fac- present tors in were this case.

(2) RICHARD FEASTER 1 shotgun

Armed with a purchased sawed-off he had weeks two earlier, Feaster and evening Michael Mills one drove to the Family Deptford. placed Texaco in Feaster shotgun the sawed-off against Donaghy, only the face of Keith working attendant shot, the time. Feaster then literally fired the fatal which blew Donaghy’s destroyed out teeth subsequently and his brain. He pocket. stole from Donaghy’s pants physical $191.32 No evidence crime; however, linked Feaster to the inculpatory he made state- people. jailhouse ments to several Feaster told a informant that shot in point-blank range a man the head at in see order to enlisting what it felt kill like to before in the Marines. twenty-two years

Feaster was high-school old and had a diplo- ma. He was unemployed jobs. but he had worked construction injuries He had impulse suffered brain his hindered control. He also had intelligence. borderline His alcoholic father abused him marijuana and his mother. Feaster had convictions for possession simple assault. The same month he killed Dona- ghy, robbery-murder gas Feaster committed another at a different Deptford. station

Despite vigorous the defense’s attacks on the State’s witnesses’ credibility, jury purposeful-or-knowing convicted Feaster of conduct, murder, felony robbery, murder own weapons penalty phase, jury c(4)(g) (felony offenses. At the found the murder) c(5)(h) (catch-all) present rejected factors c(5)(e)(age) mitigating factor. The sentenced Feaster death. The court sentenced him to a twenty-year consecutive robbery ten-year disqualifier for

prison parole a sentence with conviction.

(3) HARRIS TIM Robert Lee Laquam Lassiter followed

Harris and co-defendant Pointing a Newark. Audrey into store Rose and Williamson head, money. handed Rose Harris demanded revolver at Rose’s relinquish bill, him to Harris ordered but Harris ten-dollar Harris then gave Harris another $140. cash. Rose additional up, bitch.” She “Give it gun at Williamson and said: pointed his money. forty his demands for more gave him dollars but resisted the store counter. Frightened, began to run behind Williamson from in the head. Lassiter took lethally $230 shot her Harris he Williamson because Lassiter that shot Harris told Williamson. money. give him all of her she did not Harris, William- nineteen the month murdered who turned son, juvenile prior an extensive record. had no adult record but history to have no psychiatric problems and claimed He had no high grade dropped out of after tenth He school substance abuse. murder, to the but afterward. Harris confessed and did not work repudiated at trial. the confession non-capitally. jury convicted prosecutor tried Harris The

The assault, conspiracy murder, robbery, to commit aggravated him of court him to an robbery, weapons offenses. The sentenced and twenty years plus with aggregate prison imprisonment life term of present parole disqualifier. The coded as the forty-year AOC murder) c(5)(c)(age), (felony aggravating factor and the c(4)(g) c(5)(h) (catch-all) c(5)(f) (no record), mitigating factors. prior (4) HART CRAIG Hart, old, years twenty-five got into a taxicab

Craig who was going morning. the driver that he was to rob 5:30 in the He told driver face-down the front seat of the him and the to lie ordered in the of the head. After taxi. Hart shot the driver twice back cash, card, gunshots, the credit firing the fatal Hart stole driver’s later, wallet, the Hart confessed to and watch. Four weeks robbery-murder after committing he was arrested for another robbery. unemployed

Hart high-school graduate was an who had worked as a mailroom clerk and cabinet maker. prior He had no criminal history. marijuana He appeared abused cocaine and but to have psychological problems. no

Although pled guilty Hart to purposeful-or-knowing murder and robbery, prosecuted armed him capitally. jury, State believing that Hart intoxicated when he committed the rob- bery-murder, murder) c(4)(g) (felony found the aggravating factor c(5)(a) (extreme disturbance), c(5)(c)(age), emotional (diminished c(5)(d) c(5)(f) (no record), c(5)(h) capacity), (catch-all) mitigating factors. The court sentenced Hart life imprisonment for twenty-year pris- the murder and a consecutive on robbery. term for the aggregate parole Hart’s ineligibility equaled years. forty

(5) JACINTO HIGHTOWER 1A & IB early afternoon, Hightower

In the into walked the Cumberland Willingboro. Hightower put Farms convenience store in Pampers Cynthia Barlieb, on clerk, the store counter and asked store cigarettes. a carton of retrieving cigarettes, While she was Hightower changed sign “open” on the store’s front door from counter, to “closed.” He pulled gun, returned out open declined, register. ordered Barlieb to the cash She and he shot her in the chest. She open continued to refuse to register, Hightower and he her in the open shot neck. tried register inability himself and became frustrated his to do so. grab leg, When he felt Barlieb he shot her in the head. Hightower freezer, dragged body her lifeless into the turned off lights, left and the store. murder, Hightower twenty-one

When committed the was years on Army. Disciplinary old and leave from the United States problems drop high induced him to grade, out of school in tenth psychiatric but he later a experts earned GED. Various had neurosis), (depressive dysthymic disorder diagnosed him with disorder, abuse, personality drug borderline episodic’ and alcohol disorder, personality and antisocial disor- personality narcissistic personality antisocial disorder. A brain defect caused the der. disorder, swings, experienced mood had mild affective His mother Hightower was difficulty impulse with control. When and had him; nonetheless, boys his mother did young, sodomized other Hightower’s him. mother was often for seek medical attention time, long frequently extramari- periods for of immersed absent they affairs, because her children that she hated them tal told and and He in an abusive deprived her of freedom. was raised dysfunctional environment. murder, murder, felony jury Hightower armed

A convicted of He sentenced to robbery, weapons offenses. asked be and (torture c(4)(c) death, jury or jury obliged. The found the and the murder) c(4)(f) detection), c(4)(g) (felony (escape depravity), and (no record) c(5)(h) c(5)(f) prior aggravating factors and the (catch-all) mitigating the convictions factors. This Court affirmed trial erroneous- the death sentence because the court but reversed unanimity required mitigating ly jury that instructed the (1990). 378, Hightower, 120 577 A.2d 99 factors. v. N.J. State Hightower, jury the second also sentenced The retried State c(4)(f) detection) (escape him to death. The found the murder) c(5)(c)(age), (felony aggravating and the c(4)(g) factors (catch-all) c(5)(f) (no c(5)(h) record), mitigating factors. juror during improperly court delib- Because the trial removed erations, again Hightower’s death sentence. this Court reversed (1996). A.2d Hightower, v. 146 N.J. State State yet has not retried him.

(6) HOYTE 2 ROGER &8 weeks, Hoyte period two and one-half murdered three

In a killings, he in the Newark area. For the first two taxicab drivers Larry Mayo called for and co-defendants Andres Torres and arrived, Hoyte got into the back seat When the taxi taxicab. mortally They the cab and shot the in driver the head. drove the cab, (and watch), money took each driver’s the second victim’s shoes, removed his body. and discarded his killings These oc- days apart. Only Hoyte curred three participated and in Torres murder, they the third which nearly committed two weeks after the second homicide. The gunshot driver survived the wound Hoyte head, in Hoyte had inflicted the back of his but him shot taxi, twice more and in stabbed him neck. Torres drove the they money took the dumping victim’s and shoes before his body in garbage They dead a can. each removed victim’s shoes so police they could not the fingerprints trace had left on the shoes to them.

Hoyte handgun used the in same .22-caliber all three homicides. They during gun burglary stole the a of Premier Aluminum Company, Hoyte’s employer, former month one before mur- days killing, ders. Two Hoyte gun fifty after the last sold the for dollars.

Mayo’s girlfriend Hoyte implicated in and Torres well- publicized arrested, being Hoyte taxicab-driver murders. After police confessed and told officers of his and his co-defendants’ Hoyte inculpated Mayo involvement the crimes. also two other men an unsolved taxicab-driver murder had occurred years two earlier.

Hoyte twenty-two-year-old, was a unemployed high-school grad- heroin, cocaine, uate used marijuana every day who for the years preceding three had the murders. He for arrest possession weapon unlawful pursuant that was to dismissed participation pre-trial intervention. Hoyte pleaded guilty murder, capital to three counts each murder, felony robbery, carjacking, possession weap- unlawful of a on, possession weapon of a purpose, conspira- an unlawful cy robbery. pleaded guilty commit He also count one each of burglary penalty phase, and theft. At the for each victim the murder) proven (felony found that the State had e(4)(g) but detection) c(4)(f) The (escape aggravating factor. rejected the (no c(5)(f) prior rec- c(5)(c)(age), presence the of the jury found c(5)(h) (catch-all) (assistance State), miti- ord), to and e(5)(g) the murder, the respect each gating victim. With to factors for each unanimously The agree proper the sentence. on could a sentences and Hoyte to consecutive life court sentenced three period. ninety-year aggregate parole-ineligibility (7) INMAN ANTHONY old,

Inman, twenty-two years his co-defendant and who was they drug when Wayne Harvey looking to rob dealers were They a apparently dangerous target. saw an less discovered They went inside after grocery open and decided to rob it. store handgun pulled a .45-caliber the store. Inman out customer left store, victim, give money to the that the a co-owner of and ordered the aiming handgun at Harvey, who was his nine-millimeter him twice gun, and Inman shot The victim reached for his victim. “They’re yelled to the other co-owner: in the chest. The victim killing take victim’s advice. Run!” The co-owner did not the me! Inman Inman store and shot twice. He ran into the front the Harvey fled. he drugs when Inman was under the influence of and alcohol Except being a robbery and for heroin homicide. committed addict, He was physical psychological problems. no or Inman had drug as unemployed. for theft well as He had convictions weapons offenses. guilty aggravated manslaughter, conspiracy, pleaded Inman to thirty robbery, weapons The court sentenced him to offenses. aggra- years fifteen-year parole bar for imprisonment with ten-year prison manslaughter and a consecutive vated conviction disqualifier robbery five-year parole for the conviction. and a term twenty years forty imprisonment, aggregate His sentence was ineligible years parole. would be of which he c(5)(d) murder), (felony present c(4)(g) as AOC coded (diminished c(5)(h) (catch-all) capacity), and factors.

(8) DAVID RUSSO Jersey

After his car broke down on the New Turnpike, Russo gas went to a station He Swedesboro. returned a week or two station, later. Both gas friendly times went he was engaged gas-station attendants and auto mechanics conver- Thus, they surprised sation. suddenly were when Russo brand- handgun ished a nine-millimeter stick-up and announced a evening second visit the station. He Joseph ordered Iovanisci, Rossi, Kiley Dino and Ann to walk from the office to the room, parts Then, where he made them lie on the floor. Russo point-blank range. shot all of them from Iovanisci died from a head, gunshot Kiley seriously wound to the and was brain dam- aged. seriously injure Russo despite shooting did Rossi him twice. police apprehended

Russo confessed after officers him. He was history intoxicated when he committed the crime and had a heroin and cocaine and addiction alcoholism. He also has suffered depression. from He enlisted in the Air Force while in eleventh grade and remained in the Air Force apprehension. until his Russo, old, twenty-nine years who was had a prior GED. His of a weapons getting record consisted offense and court martialed drug arrest, for a offense. his exemplarily After Russo behaved jail. jury murder, murder,

A capital felony convicted Russo of two murder, assault, of attempted aggravated counts four counts of robbery, possession armed weapon and aof for an unlawful purpose. ensuing penalty jury At phase, present the the found c(4)(b) others) (grave c(4)(g) risk death (felony murder) c(4)(f) aggravating rejected (escape factors but detec- tion) c(5)(a) (extreme aggravating factor. The found the disturbance), e(5)(d) (diminished c(5)(e)(age), emotional capacity), (no c(5)(f) c(5)(h) (catch-all) record), mitigating factor. jury unanimously The aggravating concluded that factors outweigh mitigating failed to factors. The court sentenced 278 forty plus years imprisonment aggregate of life to an term

Russo disqualifier. fifty-year parole with a (9) SALEH ABDEL JABER buy from Michael agreed videocassettes $7500

Saleh place of U-Haul to Rehani’s drove a rented Rehani. Saleh hit him over strangled Rehani and Saleh business Hackensack. Rehani, was uncon- dragged a who the head with crowbar. Saleh him, scious, office, him gagged doused with bound into own fluid, was still alive when set him afire. Rehani charcoal burned, the fire Saleh loaded began burning him. While Saleh supposed he to have was U-Haul with the videocassettes placed Bridge, he the 5000 purchased. to Old where Saleh drove in his wife’s name. Rehani’s storage area he had rented tapes a They fire, burning. put but Rehani out the friends found Rehani firefighters at the scene. The by time arrived had died blows, strangulation, head concluded that the medical examiner causing capable of death themselves. and burns were each Ohio, flight to caught where he Youngstown, Saleh drove to murder, committing the Saleh Angeles. Los week after One Angeles. police in Los Saleh said that walked into a station men men commit the murder and the had witnessed Latino away. subsequent investi- gunpoint to drive forced Saleh perpetrator. gation was the revealed that Saleh twenty-two years He married and had old. Saleh was operator for his two-year-old daughter. He worked as machine company. He had no mental health or substance father-in-law’s problems. prior He had no criminal record. abuse murder, murder, felony aggra- jury capital A convicted Saleh of arson, agree whether to robbery. The could not on vated and c(4)(f) (escape jury found the sentence Saleh to death. The (no murder), c(5)(f) record), detection), (felony prior and c(4)(g) (torture c(4)(e) c(5)(h) (catch-all) rejected the or de- factors and life pravity) c(5)(c)(age) Saleh to and factors. court sentenced forty-five year parole plus thirty years bar. imprisonment with a (10) FREDERICK SIMMONS a.m., approximately

At 2:10 Simmons and co-defendant John Tavern, Wildwood, Poteat walked into the Firehouse a bar in and beer, to intended rob it. When ordered Poteat a case bartender, James, thought something strange Michael tried flee. struck to Poteat James over the head with a club. implored alone, money James to him Poteat take and leave but him, kill Poteat threatened to Poteat beating James. continued attempted to and James defend himself. Conners, bar, only attempted

Robert customer to intervene the altercation. Simmons interceded before Conners help grabbed could James. Simmons threw him Conners and into bathroom, a wall and then into where Simmons slammed Conners’s head into the sink. sink in The blow broke the half and mooring. knocked it of its Simmons then threw into the Conners neck, ground, times, stomped on his him stomped stabbed five wounds, on dying his head. As Conners was from the stab rinsed paper Simmons off his knife with hot water towel. running left Simmons the hot water left bathroom. Simmons, fingerprints, careful not leave went outside where fighting. Poteat and James were Simmons James in kicked him. subsequently head while Poteat beat Simmons and Poteat away fled. Simmons discarded the knife as he ran from the Firehouse Tavern. James survived but had a fractured skull and injuries. other arrest, initially proclaimed

After his Simmons his innocence but ultimately confessed. Simmons admitted that killed Conners identify Conners because could him. thirty-five-year-old unemployed

Simmons was a homeless and previously widower. He had worked as a cook. He short-order prior shoplifting had a conviction. He was an alcoholic and ingestéd large quantities cocaine addict and had of beer and committing cocaine the crimes. Simmons functioned at an slightly intellectual level above mental retardation. He suffered personality Poteat had disorders. depression from and several they suggestion him that commit robberies. approached with murder, murder, felony capital juryA convicted Simmons murder, aggra- robbery, robbery, attempted conspiracy to commit assault, hindering weapons offenses. The apprehension, vated jury jury appropriate sentence. The found agree could not on the murder) c(4)(f) detection) (felony aggrava- (escape c(4)(g) c(5)(a) (extreme disturbance), emotional ting and the factors c(5)(h) (catch-all) mitigating factors. c(5)(c)(age), and c(5)(d) (diminished mitigating factor. The rejected capacity) forty-four imprisonment plus to life court sentenced Simmons disqualifier. thirty-eight year parole years with a (11) RAFAEL SLAUGHTER old, twenty-two years night p.m., Slaughter, who

One was counter, up He walked to the went into a fast-food restaurant. he went to each side the restaurant but before he ordered food employee An found this behavior and looked out the window. ordering his suspicious. Slaughter the restaurant after food. left later, employees the restaurant He returned three hours when Slaughter preparing evening. approached an were to close for taking eighteen-year-old employee, out the trash male who was Slaughter put gun to his back and the restaurant. behind Slaughter him him to asked ordered walk inside restaurant. safe, Slaughter employee to the but the told for combination Slaughter he not then shot him did know the combination. point-blank range. pro- from The victim bled twice the back fusely, shooting, minutes after the lost consciousness twelve shortly Slaughter had ordered two female died thereafter. also employees ground, he not them. After the to the but did shoot any money. Slaughter shooting, left the restaurant without parents ready marriage Slaughter’s young and not were him, They enough not when was born. did have time for they gave preferential He treatment. did have brother helpful He any problems. or substance abuse emotional they chores, his relatives when babysitting, needed a hand with or other matters. murder,

In jury connection with the Slaughter a convicted murder, capital murder, felony weapons offenses. In the penalty phase, murder), c(4)(g) (felony found the c(5)(h) (catch-all) e(5)(c)(age), and present factors and decided not Slaughter to sentence conviction, to death. On the murder thirty years imprisonment court sentenced him to during which he ineligible parole. would be The court also sentenced him to ten-year prison two consecutive terms for two Slaugh- auto thefts day ter committed the of the murder.

(12) COREY WASHINGTON Bultran,

Washington, planned John and Jerome White to rob a cheek-cashing Washington establishment. previously had sold drugs working to the clerk at the store. Bultran also knew the clerk, old, twenty-five years who was and surmised that perpetrators problem getting would have no behind the counter. they store, approached they When observed that the front door was locked. knocking Instead of on the ringing door or doorbell, Bultran gunshots and White fired into the floor. Their worked, tactic opened and the clerk perpe- the door. The three open trators made the clerk They the safe. him ordered and his sixty-eight-year-old co-worker to lie on they the floor while re- left, they moved Washington the cash. Before younger shot the head, clerk in the and Bultran shot the older clerk in the head. died, younger clerk but the older clerk survived. Washington years dropped was nineteen old. He high out of experience school and had working some aas laborer. He had no history of substance abuse or mental illness. He had a weapons conviction for assault and offenses.

Washington pleading guilty averted death sentence purposeful-or-knowing thirty murder. The court him sentenced years imprisonment parole eligibility. with no The AOC coded as murder), c(4)(f) detection), (felony c(4)(g) (escape

present e(5)(h) (catch-all) factors. c(5)(c)(age), and (13) WHEALER RONALD 16, 1983, seeking work his December Wheeler went to

On daughter, office employer’s who Christmas bonus from refused, grabbed pocketbook. An manager. her When she ensued, manager bruis- and the office suffered several altercation got a her thirteen times. es. then knife and stabbed Wheeler neck, abdomen, back, chest, inflicted wounds to her Wheeler stab on hands. legs. and The victim also defensive wounds her had petty pay, company’s the pocketbook, Wheeler stole her her and physical dying. pain victim before cash. The suffered twenty-three year dropout who high-school was.a old Wheeler plumber’s helper. injury him to as a A childhood caused worked had permanent large bump have on his head. He no mental a prior drug had no convictions and one illness or addiction. He marijuana subsequently possession that was dismissed. arrest for murder, felony the pleaded guilty to and court sen- Wheeler thirty-year forty years imprisonment parole him to with a tenced c(4)(e) (torture present depravity) or bar. The AOC as the coded murder) c(5)(f) (no c(4)(g) aggravating and the (felony and factors record) (catch-all) c(5)(h) prior mitigating and factors. (14) CHARLES WILLIAMS McDonald’s, eating up a the

After meal at Williams walked to handgun. pulled and a .38 demanded counter out caliber Williams money manager two em- from restaurant ordered other ployees top accompanied to lie down on of each other. Williams manager emptied registers as the cash the front out drive-through area. then ordered the three counter Williams employees into He the back the restaurant. ordered money employees manager to remove from the safe and the other manager to lie face down. He then made the lie down next manager employee and one them. Williams shot other employee escaped although from store head. The third away. manager Williams fired him he ran shots at as died. employee The other whom Williams shot survived but sustained damage permanently severe brain disabled him. twenty-eight years Williams was old when he committed the robbery, burglary, offenses. With several convictions for theft, assault, arrest, resisting spent has all Williams but ninety-three days imprisoned. of his adult life School authorities placed him in Special Service School because he was classified as cocaine, emotionally alcohol, marijuana, disturbed. He abused but he never received substance abuse treatment. When he was a child, parents, drug Williams’s who were both addicts and alcohol- ics, neglected abused and him. From the time turned Williams years old, ten neighborhood his father would order him drinks at father, bars. His pimp, who was described as a womanizer and a paramour engage forced Williams and his father’s in various sex sexually acts. Williams’s father abused Williams’s sister and once sexually violently abused Williams. His father also was abusive mother, toward eyes, Williams’s who had numerous black once had ribs, fractured hospital. and once needed treatment Williams’s father broke Williams’s ribs when Williams was nine accidentally spilled because he had father’s cocaine. prostitute Williams’s mother awas and often left her children cavorting During home alone while with periods other men. these abandonment, provide Williams would food for himself and his siblings stealing supermarket. a from local mother Williams’s breakdowns, suffered several emotional and she often called her children “little fuckers.” murder, murder, jury capital felony

A convicted Williams of two murder, attempted robbery, counts of three counts of two counts assault, aggravated weapons and four counts of offenses. The jury agree appropriate penalty. jury could not on the The found c(4)(f) detection) murder) (escape c(4)(g) (felony aggrava- c(4)(b) others) ting rejected (grave factors but risk of death to e(5)(h) (catch-all) aggravating jury factor. The also found the mitigating imposed aggregate factor. The court an sentence seventy-eight-and- ninety-five years with a plus imprisonment

life disqualifier. year parole one-half MURDER: II. OTHER-ROBBERY CASE) (AGREED UPON F-3 (1) LOFTIN DONALD robbery-mur- he committed

Approximately five weeks before Lawrenceville, Loftin 1 in Business Route at the Exxon on der chambermaid, Fetter, in sixty-nine-year-old Sophia fatally shot Harrah’s Casino cleaning Room 1134 of while she was the head that missed City. fired another shot He had Hotel Atlantic opened guest bed- keys that Fetter’s Fetter. Loftin stole and maintenance closets. rooms old, prior record. Loftin, twenty-seven years had no who was driver, and armored car and as an worked a warehouse He had the offenses. college when he committed full-time student he was a use, abuse marijuana Loftin had no substance teenage Aside from robbery-murder expert gas-station A problems. defense disorder, personality that Loftin had borderline case concluded When disagreed with that conclusion. prosecution expert but a later, five, family. year One his father abandoned Loftin was family home to burn afire and caused his Loftin set his mattress counseling traumatic for these Loftin never received down. events. noncapitally. A County proceeded Atlantic Prosecutor murder, murder, felony purposeful-or-knowing

convicted Loftin of sentenced weapons offenses. The court robbery, burglary, and plus years imprisonment fifteen aggregate term of life him to an coded as thirty-five-year parole disqualifier. The AOC awith murder) detection) c(4)(f) c(4)(g) (felony (escape present the c(5)(a) (extreme distur- emotional aggravating factors and the c(5)(f) (no bance), c(5)(h) (catch-all) record), c(5)(e)(age), mitigating factors.11

III. BUSINESS-ROBBERY MURDERS: (SELECTED CASES)

F-2 (1) JOHN DOWNIE morning,

At gas 8:35 a.m. on Christmas Downie robbed a gas-station station. He fired two shots at the attendant. The missed, first shot but the second shot hit the attendant in the station, gas police chest and killed him. As ran Downie from the times, officer him. observed Downie shot at the officer four but .Possessing station, gas none landed. cash he stole from Downie hid the woods. avidly religious,

The AOC narrative describes Downie as “an emotionally family dysfunctional disturbed male whose is depression. chaotic.” Downie’s mother suffered from His father rarely fathered a child an extramarital affair and was home. A psychologist family schizophrenic. described Downie’s as When schoolchild, peers “Fatty.” Downie’s ridiculed him him and called school, disruptive Because was school authorities referred Study him to a team. Child When Downie was seventeen or old, Florida, eighteen years parents they his moved to refused result, despite to let him move with them his desire to do so. As a abused, in a Downie lived household where he was beaten and drugs parties. where and alcohol were consumed at Downie had may organic personality a head trauma that suffered have caused syndrome. twenty-four years He was old when he committed the robbery-murder, people but he was much less mature than most age. steady girlfriend. He was unmarried and never had a high-school graduate jobs. He was a who worked odd He has no present mitigating The AOC coded the three factors that the found in factor, c(5)(f) plus clearly present the Marsh murder which Fetter murder but not Marsh murder. crime, night the the he had intended

prior criminal record. On of family. changed get even his He his to commit suicide to with robbery though to a instead. Downie mind and decided commit trial probation his a officer between the and confessed crime to noncapital sentencing. brother, attorney

Although that Downie’s who died claimed murder, drug the a three months after committed from overdose crimes, murder, capital felony jury of the a convicted Downie murder, murder, weapon robbery, possession a attempted and ensuing jury penalty phase, At purpose. for an unlawful the c(4)(f) murder) (felony rejected (escape c(4)(g) the but the found detection) c(5)(a) (extreme jury aggravating factor. The found the (diminished c(5)(d) disturbance), capacity), c(5)(c)(age), emotional c(5)(f) (no (catch-all) record), c(5)(h) prior mitigating and factors. jury The determined that should be sentenced to Downie imprison- imposed aggregate The an life death. court sentence of plus eighteen years thirty-six-year disqualifier. parole ment with a (2) KHALIF JAMES

James and co-defendants Lawrence McGriff and Jason Means driving were intoxicated and around when James and McGriff car, gas getting to out decided rob a station. After of the James go through robbery. asked McGriff if he wanted to with the they affirmatively and to the McGriff answered walked station. pistol gas-station dog whipped guard attendant. A bit James McGriff, dog. gun purportedly and drew his to shoot the James Then, McGriff, attacked attendant James and McGriff attendant, wounds, gunshot including who died shot from four to his one head. nineteen-year-old high-school graduate

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

The did not A convicted State James murder, murder, purposeful-or-knowing felony robbery, him of weapons aggregate offenses. The court sentenced him to an imprisonment thirty years ineligibility. parole term of life with murder), present c(4)(g) (felony coded as AOC e(5)(d) (diminished (no c(5)(f) record), c(5)(c)(age), capacity), c(5)(h) (catch-all) factors. (3) HAROLD RODRIGUEZ

Rodriguez attempted and co-defendant Marceliano Guetierrez gas Rodriguez rob a station. shot and killed a customer. He also gas-station owner six times. The owner survived but was shot hospitalized Rodriguez for two and one-half weeks. and Guetier- robbery, they rez’s involvement in another which shot a woman leg, apprehension in the led to their for the murder.

Rodriguez thirty-seven-year-old a of three children. father illegitimate by He was an child who had been raised his father. old, Rodriguez years away was fourteen he ran from home. When murder, unemployed he had He was when he committed the but previously operator. a machine He used heroin and worked as daily twenty years prior cocaine for and had a conviction for marijuana possession. that he had There is no indication emotion- However, problems al in addition to substance abuse. he had AIDS. murder,

Rodriguez pleaded guilty conspiracy to to commit (two murder, murder, counts), attempted robbery weapons aggregate him an of life offenses. court sentenced term The imprisonment thirty-year parole disqualifier. with a The AOC c(4)(b) others), present (grave c(4)(g) of death to coded as risk (catch- c(5)(d) (diminished c(5)(h) murder), (felony capacity), and all) factors.

LONG, J., dissenting. record, Morton, year prior a 25 man with no criminal

Robert old problems extremely capacity, an limited intellectual emotional Alonzo sophisticated was befriended career criminal named gas thrall, agreed participate Bryant. Bryant’s In Morton to death. The Eck was stabbed robbery in which Michael station Bryant, Morton unanimously, concluded that but jury, nearly that, Despite in the crime. involved would never have been my of Bryant to life. Because to death and was sentenced Morton only imposed on Morton was abiding that the sentence belief crime, Bryant, the mastermind of to that of disproportionate with similar imposed on other defendants the sentences but also to murders, factually I dissent. similar who committed characteristics I. Feaster, my general today, expressed I decided

In v. State system proportionality review. 165 N.J. about our reservations (2000) J., dissenting). than 388, 443, (Long, Rather 757 A.2d 266 incorporate them here and add an additional repeat points, I those handling problem intra-case of the about the Court’s concern disproportionality. disproportional- presents no such holds that this case

The Court robbery- who ity although Bryant, the career criminal devised Morton, murder, a follower with no to life and was sentenced involvement, jurors in Ten Mor- was sentenced to die. criminal committed, or that he would not have ton’s case determined in, Bryant’s murder but for lead. participated Bryant culpable Morton. was more than apparently concluded that However, regarding whether he Bryant’s was deadlocked conduct; accordingly, he was the murder his own committed presid Despite ineligibility, the court that death-eligible. Bryant specifically concluded that had indeed over both trials ed view, Bryant’s renders my In life sentence stabbed the victim. culpa a more disproportionate. “Where Morton’s death sentence sentence, a life a sentence of death co-defendant receives ble culpable Ray v. imposed on the less defendant.” should not be (Fla.2000) State, 604, (reversing death sentence 2d 611 755 So. sentence); ac culpable co-defendant received life because more (Fla.1997) 1207, (same); State, 1214 see Hazen v. 700 So.2d cord

289 (1985) Windsor, 410, 1182, 110 Idaho 716 P.2d 1198 also State v. disproportion (holding culpable less co-defendant’s death sentence culpable received death though more co-defendant also ate even DiFrisco, 148, 250-52, sentence); 662 A.2d 442 142 N.J. State v. III) (1995) (DiFrisco (O’Hern, J., dissenting) (arguing death prosecute co- disproportionate because State did not sentence defendant). Bryant’s in life

Upholding Morton’s death sentence the face of alike.” principle our that we “treat like cases sentence violates (1992) (Mar 220, Marshall, 109, 613 A.2d 1059 v. 130 N.J. State (1961)). II) Hart, Concept Law 155 (citing H.L.A. shall Indeed, Bryant, sentencing sentencing Morton to death while co-defendant, prison in is arbi substantially culpable more to life 153, Georgia, trary upheld. Gregg See v. 428 U.S. and cannot be (1976) 189, 2909, 2932, 859, (noting death 49 L.Ed.2d 883 96 S.Ct. Ramseur, arbitrarily); v. penalty imposed cannot be State (1987) 123, 190, Jersey (holding New 524 A.2d 188 Constitu N.J. heightened protection from arbitrariness and incon provides tion justified by sistency sentencing). in substantial capital Unless here, evidence, not the case if a mitigating in which is differences a life instigated planned a murder receives co-defendant who sentence, co-defendant’s lead the defendant who followed the propor death consonant with the notion of cannot be sentenced to very basic tionality. The has omitted consideration those Court disproportionality claim. principles rejecting Morton’s intra-case II.

A. Factors Salient factor is included the salient

Robert Morton’s own case Feaster, supra, 165 N.J. For the reasons discussed statistics. J., (Long, dissenting), Morton’s death sen A.2d 266 II, supra, propriety. own Marshall tence should not confirm its (Handler, J., dissenting). Equally 130 N.J. at F-2 cases troubling that one of the death sentenced is the fact category Richard Feaster whose in Morton’s is that of included 290 today. incomprehensible It is to me that

case the Court decided justify Feaster’s sentence to Morton’s and the Court can use justify Morton’s to Feaster’s. test,

Excluding case under the salient-factors Morton’s own death-eligible category in percent of cases the F-2 result- thirteen compared percent penalty, to eleven overall. ed the death Morton, should, I Excluding Feaster and as believe we both sentencing among death-eligible F-2 rate all cases death sentencing subcategory only percent, ten and the death is about only proceeding penalty phase to the is nineteen rate those percent. fully that no death sentence other than Morton’s has been

Given upholds today), upheld (except Feaster’s which the we Court cannot conclude from the salient-factors test there is a penalty appropriate “societal consensus” that the death is an 55, 72, penalty Cooper, for F-2 defendants. See State v. 159 N.J. (1999) II). (Cooper 731 A.2d1000

III. Comparative Culpability Culpability A. Defendant’s

1. Feaster, 447-48, I indicated in As N.J. at (Long, dissenting), engage in J. we should not an abstract subjective of a defendant’s discussion “deathworthiness” based on said, reasoning comparative analysis. moral rather than That I aspects believe certain of the Court’s discussion of Morton’s culpability misleading Throughout inappropriate. are its dis cussion, emphasizes the Court that Morton committed murder to escape robbery. emphasis misplaced. detection for the That is I aggravating “escape understand the nature of the fac detection” eyewitness tor in a ease which an to a crime is killed to silence him, returns, separate or in a case where the defendant on a occasion, against to eliminate the victim as a him. witness Howev- er, she resists is no less kills a victim because a defendant who escape to kills the same victim culpable than a defendant who detection.

Furthermore, aggravating factor is so escape detection the capital placing that sub- robbery-murder in cases commonplace high as indicative of weight presence of the factor on the stantial justified. culpability cannot be (e(4)(f))

Although aggravating to increase defendant’s factor is considered this regardless of its almost universal blameworthiness, application, moral widespread, it in various its cases, destroys efficacy lack of to establish the evidence presented aggravating is factor. Its amoebic unbounded, as an application appropriate death-eligible making narrow class of it to inherently impossible expansive, regarding meaningful defendants’ to allow for distinctions defendants adequately blameworthiness. (1999) III) (Handler, (Harvey V. 159 N.J. 1121 [State 731 A.2d Harvey, 277, 386, dissenting).] J., (1999) 427-28, 253, 724 A.2d 129 Loftin, 157 N.J. Accord State v. 897, denied, II) (Handler, J., dissenting), cert. 528 U.S. (Loftin (1999). Indeed, 229, 145 the Court acknowl L.Ed.2d 193 120 S.Ct. typical felony- in motive is edges “escape detection” 249-50, its at 192. In view of murder cases. Ante cases, emphasis on robbery-murder the Court’s prevalence distracting troubling. is defendant’s motive

2. engineer the did not acknowledges that Morton Although it by crime, culpability diminished not consider his does Court 252, disagree with A.2d at 193. I Ante at peripheral role. that, “Robert jurors mitigating Ten found as that conclusion. which he has the offenses for not have committed Morton would Similarly, Bryant.” ten Alonzo were it not for been convicted that, not have Morton would jurors mitigating “Robert found as Bryant.” for Alonzo were it not participated in these offenses Bryant was the believed findings demonstrate that Those committed. catalyst the crimes defendant planning compo of the A defendant’s role the murder is one See, e.g., his deathworthiness. Har nents which we measure III, 309, Indeed, in vey supra, 159 N.J. at 731 A.2d 1121. both II, 90, 1000, A.2d v. Cooper 159 N.J. at State (1994) (Martini Martini, II), 139 N.J. 651 A.2d 949 culpability be enhanced be Court considered the defendant’s responsibility planning crimes he commit cause of his sole necessary corollary legal proposition ted. A to that is that peripheral planning role in the crimes is has defendant whose Thus, culpability. diminished the Court’s refusal discount contrary culpability logically insupportable Morton’s is to this precedent. Court’s

Moreover, fundamentally pri- it is unfair to use a defendant’s mary planning aggravate culpability, in role the crimes to his but secondary mitigate culpability. not allow a defendant’s role to his one-way place capital jurisprudence, That ratchet in sort of has no enhanced, in are entitled which defendants to rather than dimin- ished, Collins, procedural protections. See Herrera v. 506 U.S. (1993) (“In 390, 399, 853, 860, 203, 122 113 S.Ct. L.Ed.2d 216 cases, capital required protections we have additional because of stake.”). penalty the nature of the at willingness participate The Court’s reliance on Morton’s in support finding high the crimes to its moral blameworthiness is 252, very unfounded. See ante at 757 A.2d at 193. Morton’s death-eligibility premised participation robbery- in is on his voluntary Eck. participation murder of Because a crime is a universally applicable descriptor, comparative it is useless as factor.

Finally, “culpability plan- the Court concludes that Morton’s ning presence the murder should not be diminished because of the 252, of a co-defendant.” Ante at 757 A.2d at 193. That statement disregards Bryant’s one fact: crucial role cannot be defined as found, “presence.” mere As the the crimes would have never Bryant’s participation. Bryant occurred absent alone contrived robbery Bryant’s planning Eck. and murder of role

293 curtails Morton’s unique among F-2 co-defendants and is murder culpability.

3. mitigating value of improperly discounts the The Court also propor In functioning. several borderline intellectual defendant’s reviews, comparison case defendants’ tionality has found Court Harris, 165 N.J. intelligence mitigating. See State v. borderline (2000) (Harris Chew, II); 303, 339, v. 159 N.J. 221 State 757 A.2d — (Chew denied, U.S. —, II), 217, 183, cert. 731 A.2d 1070 (1999); II, 593, supra, 159 N.J. at Cooper 145 L.Ed.2d 493 S.Ct. 340, 1000; II, 100, 112, at 95-96, supra, 157 N.J. 731 A.2d Loftin retarda someone’s “cultural 129. The Court even found 724 A.2d mentally re although was not mitigate, that defendant tion” to 1121; III, A.2d supra, 159 Harvey See N.J. tarded. (Handler, J., (discussing dissenting) at 408 n. id. Williams). Williams, mental Morton is not Like Herman Herman and emotional deficiencies ly from intellectual retarded but suffers limited intel Morton’s mitigate moral blameworthiness. corresponding of his particularly relevant here because lect is leadership. Bryant’s susceptibility

4. proportionality review recurring problems we face in One of re to case. In coding of factors from case inconsistent is that of 206, 219, 757 A.2d 168 Project, 165 N.J. Proportionality Review II). by (2000) it is caused Review Sometimes (Proportionality by our own policy, sometimes statutory changes or AOC III, Harvey where we misstep in missteps. occurred Such to applicable made it victim factor and expanded the non-decedent with “a web unique person” “a every in the victim was ease which words, single case. every murder to relations” —in other of familial (cited 252, at 757 A.2d at 313, at ante at 731 A.2d 159 N.J. 193). who was “a a victim case does not involve What murder of not have “a web many decedents do unique person”? How every con- that covers comparison A factor relations”? familial distinguishing culpability comparison case without ceivable any utility integrity precedent- defendant has no and mars III, seeking Harvey supra, 159 N.J. at 731 A.2d review. 1121. The has cited that factor in this case. Given our Court endeavor, significant responsibility wrong. that was The this universal non-decedent factor should be eliminated from future cases.

5. labeling The Court’s abstract of Morton’s victimization and scrutiny. up character fails to hold under The charac- also Court “exceptional.” terizes the victimization this case as Ante at sure, unimaginable pain To at 193. be Eck suffered Bryant. Morton and not know who the hands of We do inflicted blows, they startling any of the but are to observer. worst Eck, however, pain among The kind of suffered is not unusual review, thirty-one comparison murder victims. Of cases under many excrutiatingly painful gunshot victims suffered from wounds subject victim, beatings. and some were to horrific Wheeler’s like Eck, times, example, Hightower’s for over ten while was stabbed repeatedly drag body victim was shot her as she tried to wounded ground. off the Simmons’s victim was also stabbed and scalded victimized, steaming terribly high- with hot water. Eck was but lighting great pain helpful if his and blood loss is not it is not done comparative in a manner. character, respect

With to Morton’s his failure show remorse responsibility typical among similarly or take actions are his apart particularly situated defendants and do not set Morton as culpable. atypical What is about Morton is his lack of a criminal defendants, many F-2 record. Unlike Morton’s crime was an suggests aberration and the evidence that he would not have normally law-abiding Bryant. deviated from it life were not for attempts downplay mitigating Court effect of Morton’s history, lack of criminal but its effort is flawed two First, respects. inequitable it is to conclude that a defendant is see, highly culpable significant history, e.g., based on a criminal

295 221, 334-35, yet fail to II, A.2d at 757 supra, 165 N.J. Harris history. no criminal culpability of a defendant with downgrade the by Morton’s Second, perceived threat felt points to the the Court demonstrating of violence attorneys of unrelated acts as evidence 192, 250, 254, 194. That 757 A.2d at Ante at bad character. jury properly not considered and is was not before information II, 76, (refusing A.2d 949 supra, 139 N.J. at 651 by us. Martini consider, culpability, evidence did analysis defendant’s to of hear). beyond Moreover, dispute are grounds for that relationship attorney-client knowledge anyone outside that can attorneys’ perception of a threat conjecturing Morton’s about unreliability proportionality review. only into insert more sum, for an place proportionality review In there is no prece- culpability separate apart from analysis of Morton’s only prejudice precedent-seek- dent-seeking It serves to review. subjective many process too of our own ing open the review and begin our serve the Court It would better moral valuations. comparisons. culpability review with actual comparative Comparison B. Cases review is to ensure portion proportionality duty in this

Our punish- unfairly capital “singled out not been that Morton has 88, (quoting II, at 731 A.2d Cooper supra, 159 N.J. ment.” II, 949); II, accord Chew supra, 139 N.J. Martini Considering both Morton’s A.2d 1070. supra, 159 N.J. at character, responsibility to determine it is our crime and im- a life sentence comparison cases which whether It is not our disproportionate. death sentence posed render his wheth- power, to determine and not even within our responsibility, on a moral level. Our was deserved er Morton’s death sentence costs, it is all too question at all because inquiry should avoid ugly of a on the facts proportionality based tempting to determine particular crime. group comparison cases in that resulted

Neither of the Morton’s good against in a death sentence is a bench mark which his Hightower, disproportion. can be measured for who sentence death, put asked to be has had his death sentences reversed clearly of constitutional flaws. Feaster’s sentence is because Feaster, justify disproportionate and cannot be used to Morton’s. 467, J., supra, (Long, dissenting). at 757 165 N.J. A.2d 266 Of the trial, comparison proceeded penalty majority cases that to a sentences; nothing in resulted life there is obvious about Morton’s explains why Roger Hoyte’s case that he was sentenced to death. culpability extraordinary. separate In three incidents over a weeks, Hoyte period of and one half murdered two three taxicab drivers, each whom he and his co-defendants robbed. One of gunshot the victims who survived the initial inflicted on him died Hoyte him after shot two more times and then stabbed him. The heinous, Court concedes that those crimes were but strains to Hoyte’s support conclude that life sentences do not Morton’s 259, disproportionality claim. See ante at 757 A.2d at 197. I disagree.

Surely, jury a that could find a defendant who murdered three highly culpable, victims is indeed more than a so defendant who III, 408, Harvey supra, murders one victim. See 159 at N.J. 731 (Handler, J., II, dissenting); supra, A.2d 1121 Chew 159 N.J. at 272, (Handler, J., II, dissenting); 731 A.2d 1070 supra, Martini 100, (Handler, J., at dissenting). 139 N.J. 651 A.2d 949 mitigating Hoyte’s in presump evidence case cannot overcome the he, murderer, multiple culpable tion that as a is more than noted, Hoyte’s completing Morton. As motive of the robberies is culpable escaping not less than Morton’s motive of detection. Hoyte’s clean criminal record lack mirrors Morton’s of a heroin, history. Although Hoyte cocaine, criminal abused or marijuana, alleged he never that he was intoxicated while he drug substantially committed the crimes. Mere addiction does not III, supra, diminish deathworthiness. See DiFnsco N.J. at (finding highly blameworthy despite 662 A. 2d 442 defendant abuse). Indeed, drug drug abuse a does reduce defendant’s addiction culpability at all unless a connection between II, Cooper can shown. 159 N.J. crime be See drug and homicide (noting between addiction A.2d 1000 connection cases). police, his comparison Hoyte’s cooperation with the remorse, mitigat age may culpability, but those and his reduce his people. fact three ing do not offset the killed factors extremely culpable comparison with David also Russo is station, “stick-up,” gas he announced a ordered Morton. In heads, floor, put gun to their and shot three to lie on the victims brain killed one victim and caused another severe them. He (4)(b) (grave damage. surprisingly, the risk of Not found others) aggravating factor. The victimization Russo’s death greatly in case. Russo’s case exceeds the victimization Morton’s intoxication, jailhouse good do not render depression, behavior Morton, yet a life sentence. culpable him less than Russo received Williams, victims, multiple who shot another defendant Charles substantially culpable more Morton. He forced three than is gunpoint while he employees to lie down at stole McDonald’s in at the third money. two them the head shot He shot escaped of the died from employee, who unharmed. One victims damage head while another sustained severe brain wound in that permanently disabled him. The tremendous victimization extraordinarily by culpable character. is matched Williams’s case plethora prior prison and was in for all He committed a offenses days proportionality adult In other ninety-three of his life. but reviews, weight a defendant’s placed Court tremendous on has highly deathworthy. prior deeming him extensive record when III, II, 326, 221; Harvey A.2d supra, N.J. at 757 See Harris 165 1121; II, 318, 314, supra, 159 at Chew supra, 159 N.J. Likewise, 213, has a at 731 1070. Court found N.J. A.2d meaningful a distinction lack of a record to be defendant’s III, See, supra, 159 disparate e.g., Harvey justifying sentences. record, 318, long A.2d criminal when N.J. 731 1121. Williams’s law-abiding history, magnifies against contrasted Morton’s Undoubtedly, Williams culpability. the abuse Williams’s relative However, suffered in his childhood is previous horrendous. proportionality reviews, the Court has sympathy shown little See, II, defendants who suffered e.g., Cooper similar abuse. by side, N.J. at 731 A.2d 1000. Viewed side there objective way is no to rationalize the life sentence Williams’s case and the death sentence in Morton’s.

Abdel Jaber plainly culpable Saleh was more than Morton and provides his life powerful sentence evidence of the disproportional ity of Morton’s death strangled victim, sentence. Saleh hit crowbar, him over the head with a gagged bound and him with a chain, metal and set him on fire while he was still alive. Saleh subsequently stole 5000 agreed purchase videocassettes had from the fleeing victim. After Angeles, to Los police Saleh told that he had seen two Latino men somebody burn to death. The Court acknowledges degree that the of victimization in Saleh’s case was “formidable.” Ante at Although A.2d at 197. years Saleh was younger three than Morton at the time of their respective murders, family Saleh’s found that his would suffer emotional psychological executed, harm if he were victimization any Saleh’s case exceeds that in other case large degree. Slaughter’s

Rafael life suggests sentence disproportionality of Morton’s death sentence because of the similarity remarkable between the Slaughter cases. confronted a fast-food restaurant employee restaurant, behind the put gun head, to his forced him go safe, to inside the restaurant to the and shot him in twice the back after he give Slaughter was unable to the combination to the safe. The victim remained conscious for twelve minutes before bleeding to death. toting gun, While Slaughter his also ordered two other employees restaurant to ground. lie on the The Court concludes that Slaughter because years was younger three than Morton, was not motivated a apprehension, desire to avoid because quickly Eck, his victim died more than his life sentence is justifiable. 261, Ante at 757 A.2d at disagree. Slaughter’s 198. I victim and Eck both tremendously suffered dying; before the fact rationally support hour cannot that Eck survived for an additional above, Slaughter’s disparate As motive sentences. discussed culpable robbery) is than motive (completing the not less Morton’s youth Last, although Slaughter’s relative escaping of detection. culpability, the victimiza- mitigates his it does not offset increased Slaughter’s suggests Accordingly, life sentence tion in his case. disproportionate. that death sentence is Morton’s it the never even made to a also illustrate Three cases that pled disproportionality of Morton’s sentence. Ronald Wheeler assaulting manager where he guilty felony the office to murder she, worked, give to him his stabbing her to death after refused bonus, pocketbook petty stealing her and some then Christmas stabbing, the of AOC narrative cash. Because the nature of victim in to torture the addition concludes that Wheeler intended killing agree Court’s her. I with the conclusion the victimization in is similar to victimization Wheeler’s case However, 259, I 757 A.2d at 197. case. ante at Morton’s See benign barged when into disagree motive was he that Wheeler’s a knife and his violent possession of the victim’s office. Wheeler’s suggests that give him the bonus reaction to victim’s refusal if robbery Even crime was more premeditated. Morton’s Wheeler’s, planning his crime premeditated than Wheeler’s role case, either Wheeler’s culpable him as as Morton. In renders forty parole years prison, possibility with a after sentence of disproportionality of Morton’s thirty years, is indicative of the death sentence. station, Rodriguez robbing gas Harold shot owner

When injuries after two The owner recovered from and a customer. While hospitalization, but the customer died. and half weeks of Rodriguez a woman in investigation, under shot that murder was robbery. Although Rodriguez he used heroin and said another basis, at the daily not claim to be intoxicated cocaine on a did on Accordingly, the reliance time the crime. Court’s (5)(d) factor, at is ante presence of the see flawed. I concur with the finding Court’s Rodriguez’s that bout mitigating. However, with AIDS is Ibid. aggravation Rodriguez’s ease nevertheless culpable renders him more than Rodriguez Morton. was plea able to enter into bargain for a imprisonment, term of life possibility with the parole after thirty years, exchange pleading guilty murder, for conspiracy murder, murder, to commit attempted robbery, two counts of possession unlawful weapon, of a possession weapon of a purpose. an unlawful acknowledges

The Court Corey that Washington, another simi- larly situated defendant permitted who was plea to enter a avoid the death penalty,'appears culpable as as Morton. Ante at 261, 757 A.2d at Although 198. Washington years younger was six than offense, Morton at the time of his he had at least as significant a role in planning the crime as his co-defendants. Washington and his co-defendants made the sixty- victim and his eight-year-old co-worker lie on the floor perpetrators while the money removed from Presumably, a safe. the victim and his co- worker feared for during their lives period. that Their fears were Washington realized when fatally shot the victim and a co-defen- Thus, dant shot the co-worker. agree I with the Court that culpable Morton is not more Washington. than Ante at A.2d at 199. sentence, Morton’s death as contrasted with Wash- ington’s thirty years sentence of imprisonment, suggests dispro- portionality. sum,

In I find Roger Hoyte, Russo, that David Abdel Jaber Saleh, Slaughter, Rafael Wheeler, Williams, Ronald Charles Ha- Rodriguez, rold Corey Washington are all culpable at least as culpable or more Yet, than Morton. eight comparison those perpetrators have received imprisonment less, sentences of life or while Morton singled out for the penalty. death

I recognize “[disparity alone does not dispro- demonstrate portionality,” Bey, 334, 386, State v. (1994) 137 N.J. 645 A.2d 685 IV), (Bey and that proportionality review “is not intended to ensure that one killer’s sentence is identical similarly to all other III, 319, killers,” at 731 A.2d categorized Harvey N.J. Rather, “[proportionality to determine wheth 1121. review seeks Proportion In re particular er death sentence is aberrational.” a (1999) Review, 71, 76, (Proportionality 161 N.J. 735 A.2d 528 ality 685). I) IV, Bey 645 A.2d (quoting supra, 137 N.J. at Review Handler, disagree meaning I the the Although, with like Justice (i.e., extreme to the notion of “aberration” Court has ascribed J., 104-05, (Handler, concurring at 735 A.2d 528 disproportion), id. dissenting accepting its of that part), in and in even vision part case, culpable culpable in or in this which Morton is as less term comparison group, his I eight defendants in than life-sentenced dispropor is death sentence believe he has demonstrated his tionate. sup- comparison group in neither other cases defendant’s disproportionality. showing

port nor detract from Morton’s present Morton’s but involve defen- Some less victimization than co- participant or with other who alone as the dominant dant acted is, course, compare mitigating difficult to defendants. It of how comparison with Morton because evidence cases He background and character. was we know about Morton’s little turn, who, to lawyers present failed uncooperative with the persuade spare Morton’s life. None- single to witness theless, culpability mitigates his do know about Morton what we sophisticated and with more intellects relative to other defendants Culley, around them. Carl opportunity to direct actions more Morton; suffering younger less than example, was and caused However, Culley alleged abuse. he an victim of sexual was robbery two offenses planned a alone and had committed disproportionality Morton’s therefore does not detract from and claim. in the youth the lower victimization

Despite Tim Harris’s and committed, record, to finish lengthy juvenile failure murder school, job, an inability steady role as at least to hold a and high culpable robbery-murder make him as as planner of a equal Loftin, may Donald whose same be said about Morton. The murder of a chambermaid involved less victimization than Mor- ton’s, planned but who his entire offense alone. involving

Frederick Simmons committed an offense a level of robbery, victimization similar Morton. In the midst of a beat, stabbed, stomped bar, Simmons and a man to death at a kicked thirty-five years another man the head. Simmons unemployed crimes, old and when he apparent- committed the ly equal had an to that planning role of his co-defendant in crime. depression Aside from Simmons’s personality disor- ders, Simmons, there are several similarities Morton between as the Court notes. Ante at Although 198. emphasizes Court justify Simmons’s intoxication to disparity Morton, 260, between Simmons and ante at 757 A.2d at that (5)(d) (diminished jury’s rejection distinction is belied capacity) mitigating intoxication, factor. Due to their John Dow- nie, Hart, Craig Anthony Inman, appear and Khalif James less culpable Nevertheless, presence than Morton. of four less culpable comparison life-sentenced cases in group Morton’s does preclude finding a of disproportionality. A defendant should culpable not have to person comparison be the least group in his order for his death sentence to be considered an aberration.

IV. In pool of fifteen cases that both the State and Morton consider ripe comparison, to be for presence of seven life- perpetrator sentenced cases in culpable which at least is as as the death-sentenced defendant suffice to show that Morton’s death sentence is emphasized aberrational.1 We have propor- often that tionality guarantees review that a “singled defendant has not been unfairly II, out capital punishment.” for Chew 159 N.J. at (internal omitted). quotations A.2d 1070 When a defen- 1There are disagreed seven because the State with the only inclusion of Rodriguez in the comparison. sentence, similarly defen- situated but most dant receives death sentences, unfairly singled for life he has been out dants receive death. standard, sen- an occasional proportionality

Under the Court’s However, comparisons the case tencing disparity permissible. is Morton example example disparity of the between here after offer escaped death. similarly who situated defendants other Therefore, his death sentence is has Morton demonstrated and, thus, disproportionate. aberrant I Accordingly, dissent. O’HERN, PORITZ and Justices

For Justice affirmance —Chief STEIN, and LaVECCHIA —5. COLEMAN LONG —1.

To remandment —Justice vacate A.2d 221 PLAINTIFF-RESPONDENT, JERSEY, v. OF NEW STATE HARRIS, A. DEFENDANT-APPELLANT. AMBROSE August Argued 2000. March 2000 Decided

Case Details

Case Name: State v. Morton

Court Name: Supreme Court of New Jersey

Date Published: Aug 2, 2000

Citation: 757 A.2d 184

Court Abbreviation: N.J.