State v. Timmendequas

m judgment We reverse the of the Appellate Division remand and Education, this matter to the State Board of and order that Mountainside and Garwood be awarded that sum of the District’s liquid noted, report. assets allotted to them in Dr. Fitts’ As the liquid already assets of the District have been distributed each municipalities the six in Superintendent accordance with Lob- report. Board, remand, man’s We instruct the on State to formu- appropriate payment late schedules so that Mountainside and liquid Garwood receive their share District’s from assets municipalities other timely efficient manner.

For reversal and remandment —Chief Justice PORITZ STEIN, COLEMAN, Justices LONG ZAZZALI —5. Opposed—None.

773 A.2d 18 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW v. JESSE TIMMENDEQUAS, DEFENDANT-APPELLANT. Argued September February 2000' Decided 2001. agreement reach a different later in the if so chose. no process they But later agreement reached, so we are left clear municipalities' very (with unanimous endorsement rejected of Garwood, which exception in its but petition would have entirety certainly endorsed Dr. Fitts' formula over Review) paragraph ordered the Board of by of Dr. Fitts’ formula in 31 of the dissolution petition. Defender, argued the Deputy Public Wilensky, L. Assistant Jay Defender, attorney; (Ivelisse Torres, Public appellant cause for Defender, of Wyk, Deputy Public Wilensky Van and Claudia Mr. briefs). and on the counsel General, Foddai, Attorney argued the Deputy A.

Catherine Jr., (John Farmer, Attorney General J. respondent for cause Jersey, attorney). New by delivered opinion of the Court was

The ZAZZALI, J. K. Tim sentencing capital of Jesse concerns the appeal

This seven-year- 1994 murder of mendequas, convicted of the who was conviction and death affirmed defendant’s Megan Kanka. We old 515, N.J. Timmendequas, 161 State v. appeal. on direct sentence I). (1999) 640, (Timmendequas also acknowl We 55 737 A.2d Ibid. We now proportionality review. edged request his review, is not conclude, death sentence upon that defendant’s 28

disproportionate compared when imposed sentences similar cases. notoriety our this case renders effort to evaluate defen

dant’s claim disproportionate that death sentence is all the say certainty more critical. can “One that the crime commit by horrific, Timmendequas ted uniformly Jesse so condemned changed legal that it landscape for sex offenses nationwide.” I, 650, Timmendequas (Handler, J., supra, at 161 N.J. 737 A.2d 55 dissenting). Megan sparked outrage The murder of Kanka after public learned defendant had been twice convicted of sex against children, offenses Megan’s community and that had not Verniero, been made aware of those convictions. E.B. v. 119 F.3d 1077, (3d Cir.1997), denied, 1110, 1081 cert. 522 U.S. 118 S.Ct. 1039, (1998); I, 140 Timmendequas supra, L.Ed.2d 105 161 N.J. 641, (Handler, J., at A.2d dissenting). Megan’s 55 parents, Kanka, Maureen and successfully pressed Richard for a law requiring predators notification when sexual neighbors. become Timmendequas I, 569, supra, 55; N.J. 737 A.2d L. See 1994, (enacting registration c. 133 “Megan’s requirements, Law” -5); later codified at N.J.S.A. L. (enacting 2C:7-1 c. 128 community requirements, notification later codified at N.J.S.A. to-11). Megan’s 2C:7-6 inspired murder also a similar effort E.B., country. 1081; across the supra, F.3d at Timmende I, quas supra, 161 N.J. at 737 A .2d 55. That movement E.B., culminated in “Megan’s supra, a 1996 federal Law.” 119 F.3d 104-145, (discussing at 1082 n. 1 (1996), Pub.L. No. 110 Stat. 1345 14071). § which was codified at 42 U.S.C.A. background

setWe forth that because it impor- underscores the comprehensive review, tance of careful and proportionality anas improper death injustice.” sentence would result in “the ultimate Ramseur, (1987) State v. (Handler, 106 N.J. 524 A.2d 188 J., dissenting). concern, single Sensitive to that our task in this appeal is to determine if defendant’s death dispropor- sentence is compared tionate when to the of other sentences similar offenders.

TABLE OF CONTENTS THE FACTS.......................................29 I. REVIEW........34 PROPORTIONALITY II. INDIVIDUAL UNIVERSE OF CASES.........................34 A. FREQUENCY ANALYSIS......................37 B. REVIEW .............40 PRECEDENT-SEEKING C. 1. FACTORS.....................40 RELEVANT a. Moral Blameworthiness........41 Defendant’s Degree of Victimization...................42 b. c. Character of Defendant...................43 2. CASE COMPARISONS'......................44 Agreed Upon a. Cases......................45 1) Death Sentences......................45

2) Life Sentences........................47 b. Contested Cases.........................51 III. OTHER ARGUMENTS.............................56 IV. CONCLUSION.....................................56 I. THE FACTS contains the facts appeal in the direct opinion

This Court’s I, 534-50, supra A.2d 55. Timmendequas N.J. detail. facts, appeal direct both from the only those set forth here We record, proportionality review. necessary are for with her 29, 1994, Kanka lived seven-year-old Megan July On from Township, diagonally across the street parents in Hamilton into his Megan lured p.m., defendant At about 5:30 defendant. house, ostensibly He drew her into his play puppy. with his sexually She attempted assault her. where bedroom detection, defendant, fearing escape tried to but screamed and Megan fought her life as defendant her leave. would not let During the lost consciousness. strangled a belt until she her with door, her head on a on a dresser and struggle, Megan hit her face carpet, defendant on the bleeding. avoid blood stains causing To Defendant then plastic bag over her head. placed a 30 Megan.

assaulted fully Those facts are in recounted Timmende I, 541-43, quas supra, N.J. at A.2d 55. dead,

Believing Megan placed body to be defendant toy her in a truck, put box and carried it he the downstairs. When box in his Megan thought cough. he he County heard He drove to Mercer Park, body box, Megan’s placed took out of the her in tall left, he again. weeds. Before he assaulted her Megan’s family police called when she did not return home. joined neighbors Officers arrived and in the search for Megan. search, participated handing Defendant in the out fliers with Megan’s picture. police told Defendant the that he had seen Megan bicycle riding a at in 2:30 the afternoon. That statement conflicted with his statement to Maureen Kanka that he last Megan saw before dinner. Police if asked defendant he had seen any Megan at other time. He he Megan riding said saw her bicycle in front of his home between p.m. 5:30 and 6:00 police homeowner,

The obtained the consent of defendant’s roommate, living quarters. to search defendant’s ques- Police again Shaking tioned defendant in perspiring, the house. defendant said that he Megan saw and a friend between 5:00 and p.m. while he washing police 5:30 his boat. The then inter- police viewed defendant at the station he gave conflicting where concerning statements during whereabouts time of Me- gan’s disappearance. thereafter, Soon he was released. following day, police headquarters, defendant told the police Megan was dead and that body he had left her County Mercer Park. He did so at prompting of his room- mate, repeatedly denying after involvement. Defendant led the and, police body to the police station, on the drive back to the he happened. station, recounted what had At the in a formal state- ment, he confessed to the murder and all aspects some but not of police the sexual assault. After presented him with the autopsy, provided results further details the sexual assault, injuries, the head and other conduct described above. on his behalf at testify present witnesses

Defendant did trial, May May held from phase the which was guilt the of mur- guilty purposeful-or-knowing of jury found him 1997. The murder, first-degree kidnapping, and der, felony of two counts assault. first-degree aggravated sexual four counts of on June 9 and of trial commenced penalty phase The the 20,1997. aggrava- the jury concluded that June continued to a outweighed mitigating beyond reasonable the factors ting factors court sentenced defendant death. doubt. The review, testimony ad we consider proportionality In our phase together evidence elicited at penalty with the duced at the presented who guilt phase. two witnesses Defendant offered his background. in mitigating circumstances evidence worker, that defendant’s Krych, social testified a forensic Carol by ten seven promiscuous who had children a alcoholic mother was a was a violent drinker with different men. Defendant’s father testified, provided history. Krych on information criminal based mother, poverty, that was raised by defendant’s defendant cold, shack, often family time in a and defendant was lived a care. Other sources dirty, adequate medical hungry and without sexually abused defendant Krych father had told that defendant’s once saw frequently, that the two brothers and his brother Paul tortured seven-year-old girl, that the father rape their father to eat pets, and that he once forced the brothers and killed their had a Krych therefore concluded that defendant pet their rabbit. family severely life. dysfunctional diagnosed with emotional Krych had been added that defendant mentally “edueable youth was classified as problems as respect to that retarded,” that a conflict existed but conceded on acknowledged that had not testified she classification. She also had reports that indicated defendant regarding academic direct Krych that progress in school. further admitted good made originally not be sentenced to although said defendant should Paul changed his death, mind. she had since heard he had expert, Podboy, Defendant’s second Dr. John psychologist, upon Rrych report relied but never evaluated defendant Podboy personally. pedophilia, found that defendant suffers from retardation, effect, borderline mental fetal alcohol and a schizoid personality likely He “gen- disorder. testified that defendant had anxiety, perhaps eralized ... ... including] post-traumatic stress Podboy expressed opinion that, disorder.” at the time of the crime, defendant was under “extreme emotional disturbance” and that his “capacity appreciate wrongfulness conduct very impaired,” much ability was his “to conform his ... requirements conduct to the of the law.” He also concluded may that defendant have had a serious abnormality, brain which post-traumatic insult, insult, could a reflect a vascular or conge- a death, Megan’s nital abnormality. psychologist, said the was by response caused panic reflexive to the defendant felt when attempted the victim to flee. presented

The State rebuttal witnesses. Two detectives testi- fied people spoke that they to whom about defendant’s childhood intoxicated, said constantly that defendant’s mother was not that substandard, defendant’s house clothing was and that his was not disheveled. One detective Timmendequas testified that Paul told him physically defendant, that their father abused Paul and and that their mother broke defendant’s arm when defendant was years detective, According seventeen gave old. to the Paul sever- al inconsistent regarding abuse, statements point sexual at one denying even that he knew whether defendant had been abused at all. Paul also claimed that he spoke was drunk when he with Krych. Sadoff,

Dr. Robert psychiatrist, L. said that there was no support evidence to defendant’s claims of extreme emotional dis- turbance capacity. and diminished Sadoff said that defendant’s description of his own conduct demonstrated that defendant inwas of control the situation simply logically and had acted to avoid apprehension. Sadoff I.Q., also said that seventy-four, defendant’s intelligence prevent did not he had borderline showed that of his conduct. the nature functioning appreciating or him from statement, said: In his defendant allocution Megan. I for her and her family I for what I’ve done to pray am sorry Okay. of life. I I’ve done for rest my I to live with this and what have day. every understanding have an understand and to me live so some I can I, day, ask let you something could Thanks. like this happen. why 2C:11-3c(4)(f) (escape jury unanimously the N.J.S.A. found detection) felony) fac c(4)(g) (contemporaneous aggravating and I, A.2d 55. N.J. Timmendequas supra, 161 tors. disturbance) c(5)(a) (extreme jurors emotional found the Four e(5)(d) jurors present. mitigating to Two found factor be (diminished varying in numbers found capacity) factor. Jurors c(5)(h) (catchall) factors, mitigating had which defendant following jury: to the submitted (twelve [Djefendant (1) injure victim to kill or seriously did not advance plan (six (3) (2) subjected jurors); jurors); of was to sexual years felt remorse fondling, including sex, to forced oral not limited father, his but by abuse physical (three (4) jurors); beatings hand or a strap father’s by anal penetration, her mother and several of violence between his paramours domestic exposed (twelve (5) jurors); drank incarceration, had a was born to a father who history disregarded and even their lives the needs his family excessively totally (eleven (6) jurors); who ten children by was born mother had promiscuous gave to the seven of these children to relinquish different men had up seven (twelve (7) him jurors); that did not provide was raised in an atmosphere State having years time he was seventeen times twenty-one by moved stability, (twelve (8) unfit and unable jurors); to a who was emotionally was born mother old from fetal caused him suffer and emotional needs and to meet his physical (9) (four jurors); drinking throughout pregnancy her to her alcohol effect due figure father who did loss when his the only traumatic stepfather-, suffered (seven jurors). died him, abuse [Id. 55.] A 549-50, 737 .2d “childhood unanimously that defendant’s jury concluded The by exposure domestic vio- characterized and adolescence were abuse, home, instability of the lence, activity, criminal substance neglect physical and sexual possible physical emotional and of normal as role models parents His did not serve abuse. Also, family poor poorly. him and treated behavior rejected pro- jury several other assistance.” The public received mitigating posed factors. catchall 34 nonetheless, jury, unanimously aggravating found that each outweighed

factor mitigating beyond factors reasonable death, Accordingly, doubt. the court sentenced defendant to 2C:11-3c(3)(a). required by count, kidnapping N.J.S.A. On the imposed the court twenty-five-year parole life sentence with a noted, disqualifier. As this Court affirmed defendant’s convictions appeal. and sentence on direct

II. INDIVIDUAL PROPORTIONALITY REVIEW capitally-sentenced

At a request, defendant’s N.J.S.A. 2C:11-3e, engage in proportionality we review “to ensure that the rational, death penalty being is administered in a non-arbitrary, manner, and evenhanded fairly and with consistency.” reasonable Marshall, (1992) 109, 131, (Mar State v. 130 N.J. 613 A.2d 1059 denied, II), 929, 1306, shall cert. 507 U.S. 113 122 S.Ct. L.Ed.2d (1993). end, To that proportionality review focuses on wheth er specific defendant’s death sentence is inconsistent with the penalty DiFrisco, imposed comparable cases. State v. 142 N.J. 148, 160, (1995) (DiFrisco II), denied, 662 A.2d 442 cert. 516 U.S. 1129, 949, (1996); Martini, 116 S.Ct. 133 L.Ed.2d873 State v. 3, 20, II). (1994) (Martini N.J. 651 A.2d 949 The defendant must aberrant, demonstrate that his or her death sentence arbitrary, Review, otherwise Proportionality anomalous. In Re 161 N.J. 71, (1999) 76-77, I); 735A.2d 528 (Proportionality Review State v. 277, 289-90, Harvey, (1999) N.J. III). (Harvey 731 A.2d 1121 A. OF UNIVERSE CASES

In compare order to this death-eligible case similar cases, we must first determine the “universe” of cases from which we draw comparison cases. An amendment N.J.S.A. sought comparison 2C:11-3e to limit “this group only those cases in which actually a death imposed.” sentence had been Chew, 183, 196, (1999) (Chew State v. 159 N.J. II), 731 A.2d 1070 denied, (1999). cert. 528 U.S. 120 S.Ct. 145 L.Ed.2d 493 concluded, This Court has however:

35 has been in sentence [A] death-penalty imposed limited cases which universe “[w]ithout This so because system. a coherent proportionality cannot support knowledge [a determine court] would be unable to cases, of the life-sentenced ‘meaningful distinguishing it the death sentences basis’ for whether there is are in which sentences imposed.” from the cases’ lesser ‘many reviews (quoting David 84, 161 at A.2d 528 S. I, N.J. 735 Review supra, [Proportionality Review to the New Court: Baime, Jersey Proportionality Supreme Report (Baime 28,1999) (Apr. Report)).] Project at 10 eases, only death-eligible rather than death- We consider all thus death-eligible “whether cases also consider cases. We sentenced Harris, v. 165 N.J. they prosecuted,” capitally were State or not (2000) (Harris II), 303, 315, the decision not because A.2d 221 757 necessarily a of [the] reflection penalty “is to seek death II, supra, 139 N.J. Martini defendant’s lack deathworthiness.” Thus, 27, all which the defendant A.2d 949. cases 651 consid universe under eligible penalty comprise the for the death eration. Adminis process, review proportionality aid our

In order to (AOC) database of all maintains a of the Courts trative Office the cases into has subdivided death-eligible cases. The AOC Cooper, v. comparison cases. State categories of distinct thirteen cert. denied, (1999) II), 71, (Cooper 528 55, A.2d 159 N.J. (2000). The AOC 145 L.Ed.2d 681 120 S.Ct. U.S. following categories: comparison to assigns cases (A) Servant; Public Victim is a (B) A above; without Prior Murder Conviction (C) Killing above; without A-B Contract (2) (subdivided (1) aggravated (D) into above Assault without A-C Sexual other); (2) (subdivided (1) aggravated (E) into A-D Victims without above Multiple other); (3) (2) (subdivided (I) (F) business, into home, without A-E above Robbery other); (G) above; without A-F Torture/Depravity (H) A-G above; Abduction without (I) above; Arson without A-H (J) above; without A-I Detection Escape (K) Burglary above; without A-J (L) above; Risk without A-K Grave

(M) Victim 14 Old A-L Under Years without above.

[Harris II, 316, 221.] 165N.J. at 757A2d supra, Category D involving includes defendants who commit murders Attorney a sexual The assault. General Public Defender D-l, that assigned subcategory concur defendant should be of Subcategory comprises D. D-l defendants who have committed sexual-assault with “particular violence or terror.” Pro- murders I, portionality supra, Review 88, 161 N.J. at 735 A.2d 528. “Generally, ... multiple [those] cases include murders that involve gun, physical from a beating, wounds knife or murders that involve mutilation or wounds pain, intended to cause and murders II, supra, involving Harris 317, victim.” 165 N.J. at minor 757 A.2d 221. The D-2 subcategory “non-aggravated” consists of 316-17, Id. at sexual-assault murders. A 757 A.2d 221. threshold question concerns whether we should in this case consolidate the D-l D-2 subcategories. II,

In Harris this Court D-2 consolidated the D-l and subcate gories 317-19, for proportionality analysis. Id. at 757 A.2d 221. original “juries rationale the distinction prosecutors tended to view [D-l] defendants as more deathwor thy” II, “simple” than a sexual-assault-murder defendant. Harris supra, 165 N.J. at 317, 757 Proportionality (citing A.2d 221 I, 88, 528). supra, Review 161 N.J. at Nevertheless, A.2d 735 II Harris states: Trying objective distinguish among to create criteria that sexual consistently degree on assault murders of basis violence and terror particular is subjective problematic. Cases this nature involve inherently factors, particularly linedrawing

when determinative to focus on supposed violence or “particular terror.”

[Harris II, 165 757 221.] N.J. at A.2d supra, II Harris concluded that “consolidation of category the entire D appropriate offers more sampling of cases like defendant’s to Id. assess deathworthiness.” 757A.2d 221. agree

We that we should categories consolidate the in this case simply may well. D-2 cases substantially not be less deathwor- thy II noted, than D-l cases. As Harris “the D-2 category has so

37 318-19, Id. at compare [a] defendant.” few eases which compos fifty-nine fall within the present, 221. At cases 757 A .2d D-l; subcategory forty-seven comprise category; D cases ite subcategory D-2. comprise twelve cases within compare case similar cases now defendant’s We analysis, and frequency category. D first conduct entire We Feaster, v. review. State apply precedent-seeking then we (Feaster (2000) Morton, II); v. 388, 398, A State .2d 266 N.J. (2000) (Morton II); II, 235, 244, Cooper .2d 757 A 165 N.J. I, 1000; Proportionality Review 70, supra, at 731 A.2d 159 N.J. explained Cooper in 77, As we at 735 A.2d 528. supra, 161 N.J. II: and statistical that both mathematical we use a includes [F]irst, frequency analysis or to with similar fact patterns to case other cases calculations defendant’s compare sentencing in to the rate of death of in order ascertain similar levels culpability precedent-seeking engage which in in we we review eases; second, similar

those whether in similar cases to determine factors factually all relevant compare in to the be death sentence to appears disproportionate comparison defendant’s homicides. who committed comparable on other defendants imposed sentences [Id. 1000.] at 731A.2d 70, analysis. frequency begin We FREQUENCY B. ANALYSIS of frequency analysis required application point,

At one test, tests, preponderance the numerical the salient-factors three past years, two test, test. Within and the index-of-outcomes by eliminating both the index- arcana some of that we abandoned preponderance test due to and the numerical of-outcomes test I, su Proportionality Review approach. in inherent flaws each 87, 91-92, Judge Baime’s (adopting A .2d N.J. at 735 528 pra, 161 test); v. State abandoning recommendation index-of-outcomes II) 295, (Loftin (abandoning 253, Loftin, 724 A.2d 129 157 N.J. denied, 897, test), 120 cert. 528 U.S. preponderance numerical (1999). analysis 229, Frequency thus con 193 145 L.Ed.2d S.Ct. we in test. As described exclusively of the salient-factors sists II: Martini

38 The salient-factors test allows us to measure the relative of a frequency comparing defendant’s sentence it to by sentences cases. Its factually-similar is us determine whether the death is

purpose help sentence in a imposed category enough of cases often comparable create confidence in the of existence societal consensus death is the appropriate remedy.

[Martini II, 139 N.J. at 33, 949.] 651 A.2d supra, Thus, objective is to frequency determine whether the of death in similar involving sentences cases defendants with similar culpa bility supports penalty a determination that the death in the case II, before supra, us is or is not aberrational. Chew at N.J. 201-02, process 731 A.2d 1070. compares a defendant’s culpability with death-eligible that of other defendants. We mea frequency by sure the relative aof defendant’s sentence determin ing factually-similar at rate which cases in a culminate death 202, sentence. Id. test, 731 A.2d 1070. The salient-factors deductive, demystified, largely involving simple “if-then” If, reasoning. cases, method in similar the ratio of death penalty-trial sentences eases the ratio of death sentences to death-eligible high, cases is then may the Court interpret relatively high rate sentencing of death “strong evidence reliability of [the] defendant’s death Bey, sentence.” State v. 334, 358, (1994) IV), denied, N.J. (Bey 645 A.2d 685 cert. 513 U.S. (1995). noted, S.Ct. 130 L.Ed.2d 1093 As we have assigned defendant to the D category. consolidated We now death-sentencing examine the among penalty-trial rates the death-eligible category. cases within that

Notwithstanding the consolidation of the D-l D-2 catego- ries, following that, the chart demonstrates whether we use the D category subcategory, or the D-l defendant’s death sentence is not aberrational. We examine the relevant data under both alternatives. category D defendants advanced greater percentage of

A trial, trial, penalty after a penalty received the death sentence overall, death-eligible than all sentence did received death Thus, result. Excluding to the same defendant leads defendants. that support not contention statistics do defendant’s those aberration, support Ambrose they did not is an death sentence statis disproportionaiity claim based on same recent Harris’s 319-20, II, Neither 757 A.2d 221. supra, Harris 165 N.J. at tics. statistics, subcategories, the D D-l had we combined do the pen disproportionaiity. D-l defendants advanced demonstrate all greater rate than alty trial and received the death sentence excluded, D-l death-eligible When defendant is defendants. Thus, death-eligible all defendants. still exceed rates rates subcategory category the D-l statis composite D nor neither support disproportionaiity. claim of tics defendant’s demonstrate of the salient-factors test

The results more juries sexual-assault murders prosecutors and consider However, be homicides. deathworthy death-eligible other than death-sentencing difference between there not a dramatic cause homicides, death-eiigible in D and D-l homicides and other rates weight process precedent- “give to the must enhanced we II, 1000. Cooper supra, N.J. at 731 A.2d seeking review.” 40 PRECEDENT-SEEKING REVIEW

C. precedent-seeking

In death-eligible review “we examine cases similar to defendant’s case to determine whether his death compared sentence is aberrant when by the sentences received II, supra, 210, in Chew N.J. defendants those other cases.” 159 at traditional, case-by-case 731 1070. A.2d This is “the form of cases.” Marti compare death-eligible review in which we similar II, supra, ni 139 N.J. at 46, 651A.2d 949. Through this method we determine whether a defendant’s criminal culpability of exceeds that similar life-sentenced defendants and whether it is to or equal greater that of than other death such defendants, sentenced that the defendant’s justifies sentence; whether defendant’s culpability capital is culpability more of like that similar life-sentenced than of defendants less that death- sentenced such defendants, that defendant’s a reduction of culpability requires sentence to a life term. We that note does not statutory proportionality require

identical verdicts even in closely-similar cases. It that merely requires singled defendant was not out unfairly capital punishment.

lid. (citations omitted).] at A.2d 47, 651 949 process of precedent-seeking “[T]he is review one familiar us as judges and is not reliability vulnerable to the concerns about II, Cooper analysis.” 70, supra, 159 N.J. at frequency burden consistently placed A.2d 1000. ‘We have our reliance on form this analytic of review because of the difficulties we have encountered II, in applying frequency analysis.” supra, at N.J. Loftin 724 A.2d 129. Precedent-seeking empirical review is less analytical frequency analysis. more than exercise more inductive, less formulaic.

1. RELEVANT FACTORS review,

In precedent-seeking we first examine crimi culpability nal turn, culpability, the defendant. Criminal has components: defendant, three the moral blameworthiness of the degree victimization, and the character of the defendant. II, supra, II, Chew 159 N.J. at 1070; supra, Martini 731 A.2d II, 139 N.J. at 48-49, 949; supra, Marshall 130 N.J. A.2d 155, 613A.2d 1059.

41 Moral Blameworthiness a. Defendant’s “motive, pre requires consideration of Blameworthiness excuse, defect meditation, justification of mental or evidence victim, disturbance, helplessness of the defendant’s knowledge of level, planning in maturity involvement age or and defendant’s 336, II, 129. supra, 157 at 724 A.2d We N.J. murder.” Loftin factors, conclude, that the upon an of the above moral application high. of is blameworthiness defendant graphic of details this Although we have not described can, noted, murder, fairly be defendant’s conduct sexual-assault I, 650, supra, at Timmendequas 161 N.J. described as “horrific.” (Handler, J., seven-year- That he knew dissenting). 737 A.2d 55 aggravates his moral blameworthiness Megan helpless old was II, 90, supra, at A.2d substantially. Cooper 159 N.J. 731 1000 See youth knowledge rape-murder victim’s (finding defendant’s of the Megan by also into his house aggravating). Defendant lured motive, that puppy. Defendant’s letting play her with his that she reveal the strangled Megan because of fear would II, assault, supra, 165 highly blameworthy. is Harris N.J. sexual 322, (finding escape increased at A .2d221 motive to detection 757 blameworthiness); III, 312-13, Harvey at supra, 159 N.J. moral (same). in the search and participation 1121 731A.2d Defendant’s lying police aggravate also his blameworthiness. family murder on victim’s

Although the effect of the II, II, discussion, has received extended Chew Morton during precedent-seeking re Harvey III that element consider (consider II, 251, 165 N.J. at 757 A.2d 184 supra, view. Morton blameworthiness, analysis knowl ing, during moral defendant’s of II, surviving family); Chew edge effect of murder on victim’s of III, (same); Harvey 212-13, 731 A.2d 1070 supra, 159 N.J. at (same). II, Feaster supra, A.2d 1121 See also 159 N.J. 731 during analysis (considering, A.2d supra, N.J. at 266 victimization, regarding impact evidence was adduced whether that the family). cases make clear of murder on victim’s Those family proper is consider- the victim’s effect of the murder on during note, ation analysis. moral blameworthiness We as the suggests, dissent that the effect of the murder on the victim’s family likely present majority the vast comparison cases, significance which reduces the factor’s substantially. That factor nonetheless Megan’s parents exists here. siblings must day live each with the ache of her absence and their awareness of life, terror she endured in the final moments of her which also aggravates defendant’s moral blameworthiness. thirty-three

Defendant years old at the time of the murder. II, inAs Harris nothing “there is mitigating about defendant’s age maturity or level of at the time of the murder. He ... enough old right II, wrong.” know from supra, Harris 165 324, N.J. at 757 A .2d221. proof

Defendant did offer that he had suffered from emotional highly childhood, deficits and a abusive which reduce his moral Yet, II, blameworthiness. as we found in “[djespite Harris this poor childhood and resulting debilitating defendant, effects on persuasive evidence was not that defendant should be relieved of culpability.” his Ibid.

Timmendequas seven-year-old child, murdered a Kanka, Megan escape and did so to detection for his sexual assault. The fact that pedophile he was a does not excuse his conduct. His moral blameworthiness is high. therefore Degree

b. Victimization of Victimization concerns the relative violence brutality and III, of the murder. Harvey supra, 313-14, 159 N.J. at 731 A.2d 1121. We also “injury examine to non-decedent victims.” Chew II, supra, 211, 159 N.J. at 731 A.2d 1070. The level of victimiza exceptional case, tion was given in this the violence brutality and of the murder. The victimization is similar to that described in Cooper II: The extent of victimization in high. defendant’s case is extremely Defendant strangled kidnapped, raped, his victim. The six-year-old record indicates that there was neither torture ... nor mutilation of the victim. The incident was but

relatively brief, there was evidence that defendant choked the victim for four to

43 Although suffering prolonged, the victim undoubtedly her was not six minutes. her death. emotionally suffered before obviously physically was terrified 1000.] at A.2d II, 91, 159 N. J. 731 supra, [Cooper high, is he asserts that victimization Although defendant concedes Megan’s pain as been because high it not it could have that as however, Megan, moments of those prolonged.” “was For likely eternity. Coupled with sexual suffering seemed an well as the terror preceded strangulation, fatal that assault extremely endured, Megan the victimization is fright high.

c. Character Defendant culpability, determining overall The final consideration in character, category that warrants consid is a catchall defendant’s history, criminal unrelated acts of “defendant’s eration authorities, violence, capacity for cooperation remorse and 266; 406, II, supra, at 757 A.2d Feaster 165 N.J. rehabilitation.” 1070; IV, II, Bey A.2d supra, N.J. at 731 see Chew 159 also substantially A.2d Those factors supra, N.J. at 685. augment blameworthiness. defendant’s for both a 1980 conviction criminal record reflects

Defendant’s aggravated contact and a conviction attempted sexual criminal That record aggravated assault and assault. sexual 314-15, III, supra, 159 culpability. Harvey N.J. increases pedophilic urges acknowledges that his A.2d 1121. Defendant Finally, deceit in connection with the prevent rehabilitation. his photos Megan of investigation, particularly his distribution of whereabouts, felony, in compounds the search for her during the figurative both a literal and sense. Timmendequas’s mitigate. first

It certain factors true that is remorse, by his statement as evidenced exhibited some confession neigh- Megan’s parents and guilty when he observed that he felt allocution, further searching expressed her. In his for bors cooperation. Defen- some evidence of There was also remorse. lies, however, cooperation minimize the value of dant’s evasion significant from his He omitted details mitigating factor. results, appears autopsy first statement. It that the rather than any eonscienee, pang prompted complete of a more confession. confession, During the Megan biting defendant also blamed causing pain. hand Notably, jury unanimously reject- him proposed mitigating ed a “cooperation” factor that his demonstrat- acceptance responsibility. ed the blameworthiness, After a careful consideration of his moral degree of Megan family, victimization of and her and defendant’s character, highly deathworthy. we conclude that defendant is

2. CASE COMPARISONS comparison

We review the cases if determine those similarly culpable culpable to or more generally than defendant II, life receive sentences rather than death sentences. See Chew supra, 159 N.J. finding at 731 A.2d 1070. Such a would support a disproportionality, claim of provide because it would evidence of a societal penalty consensus that the death is not imposed in cases similar to compari this one. We consider each motive, justification excuse, son defendant’s premeditation, or disease, defect, disturbance, evidence of mental knowledge helplessness, knowledge the victim’s of the effects on nondecedent victims, age, murder, in planning involvement violence and brutality murder, victims, of the injury to nondecedent record, violence, other cooperation unrelated acts of with authori ties, remorse, II, capacity for rehabilitation. supra, Marshall regard 130 N.J. A.2d 1059. With to the actual mechanics, analyze we each case to if determine defendant more deathworthy comparison or less than the If defendant. defendant defendant, deathworthy is less than a life-sentenced that conclu supports If, however, sion defendant’s claim of disproportionality. deathworthy defendant, defendant is more than a life-sentenced that detracts from compare defendant’s claim. After we defen cases, all comparison dant to of the we if determine the results deathworthy demonstrate cases more gener- than defendant’s sentences, dispro- strongly would indicate ally life which receive portionality. comparison cases. We agreed upon fourteen parties have comparison cases on the AOC records of the

base our discussion eases, Appendix in A. In our discus- are summarized those which cases, irrelevant factors. we omit reference to sion of Agreed Upon Cases

a. comparison in defendants have first cases which the address We death, if determine defendant is to in order to been sentenced defendants. culpable or less than those more 1) Death Sentences culpable Cooper, David whose death more than Defendant is II, Cooper supra, 159 disproportionate. N.J. was not sentence sexually Cooper assault A. Defendant and both 731 2d 1000. police girl, until young and denied involvement strangled ed and against them. Both had with the evidence confronted them pregnancy, both had heavily during mothers who drank There were some contrasts and unstable childhoods. abusive who Cooper. Cooper was an alcoholic defendant and between murder; however, he during drunk claimed have been Al alleged intoxication at trial. of his presented no evidence murder, he had no parole at the time of the though Cooper was on presented Defendant evidence prior violent or sexual offenses. sexually diag was abused as a child demonstrating that he addition, an In defendant was pedophile as a adult. nosed balance, prior renders defendant’s record sex offender. On Therefore, Cooper’s deathworthy Cooper. than slightly him more disproportionality claim. death sentence weakens defendant’s case, the victim Turning the other death-sentenced killing significant. Not revenge Joseph Harris’s ization young two Ron Ellison’s wife and assault only did Harris them, he did so causing victimization to daughters, incredible powerless stop attacks. Further up, Ellison was tied while him. more, Harris shot Harris feared for his life before Ellison diagnosed heard inadequate voices and was as a schizoid and with disorder, c(5)(a) personality jury rejected proposed but his (extreme disturbance) e(5)(d) (diminished emotional capacity) mitigating victimization, factors. Based on the additional Harris deathworthy is more agrees, than defendant. The dissent supports concludes that Harris’s death sentence defendant’s claim disproportionality. of Post at 773 A.2d at 56. also reach We conclusion, degree that but to lesser than the The dissent. penalty dissent’s thesis is that we reserve because the death for cases, the most heinous deathworthy and Harris is more than (and heinous), defendant therefore his case more Harris’s case is appropriate for penalty the death and defendant’s is not. That approach misapplies concepts proportionality of review. Two defendants, death, may degrees both sentenced to have different culpability. Proportionality review is not undertaken to ensure similarly that those deathworthy. two defendants are purpose Its is instead to ensure that one defendant’s death sentence compared aberrational when to other similar defendants. See III, Harvey supra, 159 N.J. (“Proportionali A.2d 1121 only ty review seeks to assure that defendant’s sentence is not an aberration. It is not intended ensure that one killer’s sentence killers.”) (citation similarly categorized is identical to all other omitted). Timmendequas Even if deathworthy is the least of defendants, death-sentenced provided we must affirm his death penalty is not aberrational.

Moreover, can little be inferred from Harris’s death sentence. Harris’s sentence jury indicates that sufficiently found his case imposition penalty. serious warrant the of the death Harris’s not, however, sentence any necessary does create inference about sufficiently whether defendant’s case is serious to warrant penalty as light well. The most that can be said is that in deathworthiness, defendant’s lesser imposition of the death sen- tence may on defendant likely have been somewhat less than it extent, agree was for Harris. To that we with the dissent. That vague notion, however, provide does not support substantial disproportionality. defendant’s claim of

2) Sentences Life in comparison cases resulted life sentences. of the The bulk Thus, culpable most of if is less than defendants defendant cases, his sentence arguably demonstrated that death those he has culpable If he than most of those an is more aberration. cases, disproportionality claim is diminished. similar defendant. Brown of Vincent Brown is case strangled her He young girl to death. assaulted unsuccessfully at- assault and murder after

confessed sexual police. criminal included Brown’s record tempting to deceive sexually During youth, physically he was and offenses. violent culpable more than defendant: respect, In one Brown is abused. help. as screamed for victim to die a ditch she Brown left his Nevertheless, Un- deathworthy than defendant is more Brown. addition, defendant, penetrate his In did not victim. like Brown major psychotic features and depression from Brown suffered incompetent to stand trial. was declared hand, supports Dennis’s life sentence the other Jerome On disproportionality claim. Dennis stabbed fourteen- defendant’s raped Although his year-old twenty-four and her. girl times kill Megan he did not to avoid vulnerable than and victim was less than murder entailed more victimization apprehension, Dennis’s Dennis, offender, prior sex committed murder. defendant’s parole. four on He killed weeks after he was released murder two Moreover, is no following four months. there people in the more any or suffered from that Dennis was abused indication victimization, prior Dennis’s The substantial mental illnesses. record, him mitigating evidence make more the lack of deathworthy than defendant. Megan. nearly as vulnerable

Ralph Edwards’s victim illness, defendant, history psychological had a Edwards Like (diminished e(5)(d) capacity) mitigating jury found the and his c(5)(a) However, juror found the in Edwards’s case factor. no disturbance) (extreme mitigating factor. In contrast to emotional prior defendant, years had no only eighteen old and Edwards was criminal record. Those factors render defendant deathwor- more thy than Edwards. Gary Lippen extraordinary

James Henderson and caused vic- raped Lippen timization. Henderson the victim while her held down, may Lippen raped They have also her. her crushed stick, throat with and Henderson stabbed her several times and legs. history broke her had a Henderson mental illness. There is no indication that Henderson an had abusive childhood expressed remorse for what he had done. Henderson’s case mitigating present included evidence in defendant’s case: illiterate, apparently only Henderson was had drug one conviction in his record. Henderson also did not kill to escape Moreover, rape. detection for seventeen-year-old nearly victim in that case Megan; was not as vulnerable as however,. Lippen Henderson ability neutralized the victim’s rape resist Lippen when held her down while Henderson Overall, raped her. similarly Henderson and defendant are death- worthy. contrast, Lippen

In culpable is less than Lippen defendant. claimed that his participation in the murder was due to his fear of II, Henderson. That situation is distinct from Morton in which we held culpability that a defendant’s not be “should diminished” primarily because a planned co-defendant the crime when the II, “willingly participated.” defendant supra, Morton 165 N.J. at 252, Lippen’s 757 A.2d 184. allegation participated was that he the crime because he feared “willingly” Henderson. He did not participate, contrary to the suggestion. dissent’s Post at addition, A may .2d at In Lippen intoxicated, 57. have been did detection, not escape convictions, kill to prior had no only and was years Although nineteen old. he did history not have a of mental illness, Lippen is deathworthy less than defendant. gratuitous

Michael Manfredonia pain inflicted on his fourteen- year-old twenty-six victim whom he sexually stabbed times and assaulted. The victimization in Manfredonia’s case was substan- e(5)(d) (dimin- tial, Megan. more than his suffered victim present in Manfredonia’s capacity) mitigating factor was not ished defendant, extremely emotionally Like Manfredonia was ease. addition, In he was intelligence. and had borderline disturbed suicidal, except for prior no record years and had nineteen old offense, by allegedly provoked felt disorderly theft persons Also, years seven older the victim was the victim’s verbal insults. culpability com- are Megan. Manfredonia’s and defendant’s than parable. Muhammad rape-murders Rasheed between the

The similarities kidnapped, striking. They both and defendant committed are assaulted, strangled young girls. chil- lethally As sexually dren, physically were Muhammad and defendant both abused, replete in homes with violence. neglected, and raised c(5)(a) (extreme attempt to establish the Muhammad did disturbance) (diminished c(5)(d) mitigating capacity) emotional (catchall) c(5)(h) factor, however, jury factors; pursuant to the emotionally unstable and had twice that Muhammad found c(4)(f) (escape jury rejected the Muhammad’s attempted suicide. detection) included Muhammad’s record aggravating factor. convictions, offenses. but no or other violent sexual property-crime at- Furthermore, confessed without appears it that Muhammad by family giving a police and the victim’s tempting outwit searching police feigning assistance with false statement to Therefore, deathworthy slightly more defendant for the victim. than Muhammad. Evi Ritchie. culpable than Frederick is also more

Defendant twelve-year-old victim was intent kill of Ritchie’s dence Ritchie’s that the contradicted claim disputed; no direct evidence accidentally washing machine and fell into a victim drunken colliding with the tree impact and that walked into tree may strength the evidence into creek. The him to fall caused aggravated plea bargain for an prosecutor have induced II, Cooper supra, 159 N.J. manslaughter conviction. addition, great as as victimization was not 2d In Ritchie’s A. 1000. Furthermore, in this case. Ritchie was a veteran who suffered from and Crohn’s disease alcoholism. Ritchie drank com- while mitting crimes, demonstrated, extent, to some diminished capacity. prior Ritchie’s burglary record included a as well as sex factors, crimes. on those Based Ritchie deathworthy is less than defendant.

Apparently to revenge girlfriend exact from his having who was man, Taylor an affair Leroy with another assaulted and strangled thirteen-year-old Taylor to death her Although niece. apprehension did not kill to assault, avoid for the sexual his revenge morally blameworthy motive is as escape- as defendant’s Taylor previously detection four-year-old girl motive. murdered however, California; juvenile in he was a when he committed the prior Taylor parole murder. was on when he committed the New Jersey Taylor cooperate murder. refused to police, fleeing Jersey sought California when New authorities blood and hair samples. Taylor There is no indication that was abused or emo- tionally Taylor deathworthy defendant, disturbed. is more than on based mitigating Thus, murder and lesser evidence. Taylor’s life sentence buttresses claim defendant’s that his death disproportionate. sentence is (extreme case, c(5)(a)

inAs defendant’s emotional distur- bance) c(5)(d) (diminished capacity) mitigating factors were present Alphonso Timpson’s defendant, case. Like Timpson had intelligence. Although Timpson borderline diagnosed was not pedophile, as a he had similar Timp- as characteristics defendant: son diagnosed was highly impulsive and unable to exhibit Moreover, Timpson emotional control. excessively drank marijuana daily smoked on a only basis. He years nineteen defendant, old. Timpson Like killing denied the victim before eventually confessing assault, kidnapping, sexual mur- However, der. Timpson pretend did not help search for the killing defendant, victim after her. In Timpson contrast to inflict- gratuitous ed on Primarily violence his victim. due to Timpson’s age, deathworthy he is less than defendant. culpable Mark Luciana. significantly more than is

Defendant victimization, fifteen-year-old and his involved less Luciana’s case accompa- Megan, willingly victim, than who was less vulnerable defendant, Luciana was ne- Like into the woods. nied Luciana c(5)(d) cases, juries found In both glected as a child. However, (diminished Luciana was mitigating factor. capacity) criminal convic- violent only twenty years old and had no support not life does Consequently, Luciana’s sentence tions. claim. disproportionality defendant’s suggest dispro- Likewise, life sentence does Lester Wilson’s age, Megan’s and Wilson twice portionality. His victim was Moreover, Megan. victimized her less than defendant victimized no record. mentally criminal mildly retarded had was Wilson deathworthy than that he is less demonstrates That evidence defendant. cases, life- and death-sen comparison both agreed-upon

The dispropor defendants, claims of support defendant’s do not tenced Cooper, culpable than David whose is more tionality. Defendant II, Cooper supra, disproportionate. held not death sentence his claim of 1000. That undercuts at 731 A.2d 159 N.J. is a consen that there supports it the notion disproportionality, as Cooper deserve culpable as defendant and murderers as sus that culpable than Vincent is also more penalty. Defendant the death Ritchie, Muhammad, Edwards, Brown, Frederick Rasheed Ralph Luciana, Gary Lippen, and Lester Wil Timpson, Mark Alphonso Thus, not bolster defen life sentences do defendants’ son. those equally as Although defendant is claim. disproportionality dant’s Henderson, Taylor, Dennis, culpable than culpable less a societal to demonstrate are not sufficient three cases those generally a life receive like defendant that murderers consensus sentence. Cases

b. Contested comparison cases. additional proposes ten Defendant also deter objects inclusion. We must Attorney to their General sufficiently case similar defendant’s each case mine whether II, supra, Morton comparison them within the group. include 165 N.J. presume A.2d 184. We in cases not D category comparison defendant’s combined are outside of his Ibid. group. Conversely, presume we that cases defendant’s category Ibid. comparison group. salient-factor fall within his factor, Conley’s Other than rape- the common salient Kevin murder shares one substantial characteristic with defendant’s Thus, crime: both victims were age. vulnerable because of their Conley’s comparison case falls within group. defendant’s Because Conley victim, only not beat and stabbed but assault- well, strangled ed and Conley her to death as inflicted more addition, than In Conley’s victimization defendant. presented case hand, no evidence of or child abuse mental illness. On the other Conley Reservist, college degree, Army a had was an and had no Furthermore, prior Conley criminal record. did not kill to avoid apprehension feign or assistance with a Conley rescue effort. and similarly are culpable. defendant Conley,

Like rape-murders Frank elderly Masini’s of women fall comparison within defendant’s group. Masini’s deathworthiness exceeds defendant’s. elderly death, Masini stabbed four people to them, raped two of both of whom were his Despite relatives. prior Masini’s lack of a escape-detection motive, record or and the reality detachments experienced from that he at the time of the murders, the number of victims Masini murdered him renders culpable more Accordingly, than defendant. Masini’s life sen- augment tences disproportionality defendant’s claim.

Samuel Mincey’s robbery-rape-murder fall should within defen- comparison dant’s group seventy-three-year-old because of his age-related However, victim’s vulnerability. she was less vulnera- Megan and, thus, Mincey ble than morally blameworthy is less regard. contrast, Mincey’s In crime involved more victimiza- tion, and there were elements of torture in ease. Min- Minee/s eey’s prior offenses, extensive record includes violent but not sex There crimes. is also no Mincey indication that was abused or emotionally Mincey disturbed. roughly culpable as as defen- Nevertheless, sentence prosecutor did not seek death

dant. that the statute an belief against Mincey because of erroneous passed. That consti- seeking had for a death sentence limitations life discrepancy for between tutes a valid basis Minee/s II, supra, 159 Cooper and defendant’s death sentence. sentence Thus, Mineey’s 100-01, 107, life sentence 1000. 731 A.2d N.J. disproportionality claim. not defendant’s does buttress seventy-eight-year- murder of Rafael Rivera’s sexual-assault comparison group because belongs in defendant’s old woman Nonetheless, vulnerability. Rivera’s vic- age-related the victim’s assault, Megan. sexual vulnerable as Rivera’s tim was assault, surprised the premeditated; he were not murder there apartment while when returned to her victim she However, the victim when looking money. Rivera attacked indeed, victimization; jury him caused extreme she found (torture c(4)(c) Riv- aggravating factor. depravity) or found the weapons-posses- includes theft offenses and prior record era’s crimes. conviction, violent no sexual other but sion cocaine, alcohol, marijuana, and was seen Rivera abused e(5)(d) jury found shortly before the murder. drunk factor, (diminished of presumably because capacity) mitigating of presented no evidence apparently Rivera Rivera’s intoxication. victimization The enhanced or mental illness. child abuse vulnerability, greater but Megan’s Rivera’s case counterbalances Rivera’s prior criminal record offsets more extensive defendant’s However, intoxicated Rivera was or mental illness. lack of abuse Thus, committing is more deathwor- his crimes. defendant when thy than Rivera. disproportionality, suggest not life sentence does

Otis James’s James deathworthy Although than defendant. as is less James attempted subsequently in his record several convictions had murder, defendant’s. evidence exceeds mitigating his another hospitalized after history depression and once was of James had Thus, is mitigating evidence attempting James’s mental suicide. defendant’s, having history no strong despite nearly as Further, offenses, abuse. prior James also had sex no victim Megan, not as vulnerable as and he was intoxicated when Thus, committed the deathworthy crime. James is less than defendant, support and his life sentence does not defendant’s claim. Vasquez’s sufficiently

Carlos ease similar to defendant’s case. rape strangulation Both involve of a child under fourteen years Vasquez, old. pled guilty who felony murder and re- sentence, ceived a life culpable is more than defendant. Although Vasquez’s thirteen-year-old victim was less vulnerable than Me- gan, Vasquez was a Vasquez murderer. having denied problems, mental health and there nois indication that he endured Therefore, an abusive Vasquez’s childhood. supports life sentence disproportionality. defendant’s claim of remaining cases that defendant compari seeks to add to his group discussed, son are dissimilar. we presume As that cases category outside defendant’s are excluded comparison from his II, group. supra, Morton 165 N.J. 757 A.2d 184. Daniel Nicini’s, Aquino’s, Querns’s Kevin and Kenneth cases are not sufficiently presumption. similar to overcome that Nicini did not any commit sex contemporaneous crimes with the De murder. spite intending six-year-old assault the victim when he burglarized home, her Aquino did attempt any sex crimes during the incident. The suggesting evidence that Kenneth Querns sexually nine-year-old assaulted the victim was weak. The Querns allege raped victim; instead, State did not that contended, State on based the fact that the victim was found underwear, without Querns Querns fondled her. did not plead guilty any Thus, sex crimes. there is insufficient evi Querns dence that committed contemporaneous sexual assault to sufficiently render his case similar to justify defendant’s and inclusion.

[*] ^[*] *k question The critical here is whether defendant’s death- worthiness is more akin to life-sentenced defendants or death-

55 substantially Joseph is' more death- Harris sentenced defendants. Thus, sup provides case little worthy defendant. Harris’s than Further, defendant disproportionality for claim. port defendant’s Cooper. previously conclud culpable David We have is more than Cooper disproportionate, sentence was not Cooper’s ed that death II, 116, 1000, especially weakens supra, 731 which 159 N.J. at A.2d disproportionality. defendant’s claim of defendants, is defendant more compared to When life-sentenced Brown, Edwards, Gary Lippen, Rash- Ralph culpable than Vincent Muhammad, Ritchie, Timpson, Mark Lu- Alphonso Frederick eed Rivera, ciana, Wilson, Although and Otis James. Rafael Lester Mincey, culpable than other no more Samuel defendant seems sentencing disparity. explain the factors hand, deathworthy is no more On the other defendant Manfredonia, Henderson, Dennis, Michael James than Jerome Masini, Vasquez. Conley, and Carlos Leroy Taylor, Kevin Frank sentences, sentence, life is compared to those death Defendant’s However, does not demon disparate. “[disparity alone arguably IV, 386, at Bey supra, 137 N.J. disproportionality.” strate only to assure that review seeks “Proportionality A.2d 685. not intended to an aberration. It is sentence is not defendant’s similarly is to all other one killer’s sentence identical ensure that III, 319, Harvey supra, at 731 A.2d categorized 159 N.J. killers.” II, (citation omitted); Cooper supra, 159 N.J. accord IV, 1000; A.2d 685. The Bey supra, 137 N.J. at 731 A.2d defen culpable the bulk of the is more than fact that defendant his death sen group demonstrates that comparison in his dants Moreover, Cooper’s our affirmance tence aberration. an claim. significantly undermines defendant’s sentence death of this the circumstances Application of the relevant tests to Tim- penalty imposed on Jesse that the death ease demonstrates Megan murder Kanka was mendequas the sexual-assault not aberrational.

56

III. OTHER ARGUMENTS systemic claims,

Defendant raises the same disproportionality basis, evidentiary with the same rejected that we last term in II, 344-45, supra, 221, II, Hams 165 N.J. at 757 A.2d Feaster supra, 419-20, 266, II, 165 N.J. at A.2d supra, 757 and Morton 267-70, 165 N.J. at 757 A.2d 184. provid Because defendant has evidence, ed no new rulings. we do not revisit those We also reject request defendant’s that we holding reconsider our II, 343, supra, Harris 165 N.J. at 757 A.2d regarding the implications pretrial publicity during proportionality review. presented Defendant compelling grounds has no to do so.

IV. CONCLUSION

The of proportionality may results review not obtain with syllogistic precision. recently The Court observed that “[t]he improvements approve today additions we will need further (II), review down the Proportionality Project road.” In re 165 206, 213, (2000). Nevertheless, N.J. 757A.2d 168 we are confident frequency both the precedent analyses remain workable guides determine, basis, ease-by-case we on whether a death sentence disproportional. continuing “process of litigating elucidation,” Gonzales, International Ass’n v. Machinists 356 617, 619, 923, 924, U.S. (1958) S.Ct. 2 L.Ed.2d (Frankfurter, J.), jurisprudence, basic to all will serve to further define and refine those evolving process and, standards. It is an evolution, any as with those tests most fit will survive. present,

For the principles of proportionality review reflect and preserve capital jurisprudence just parties. that is fair and to all That review satisfies us that the death imposed upon sentence Timmendequas Jesse K. for the Megan sexual-assault murder of disproportionate. Kanka was not

Affirmed. A

APPENDIX Agreed-Upon I. Cases Vincent Brown

A. of the argued, she moved out girlfriend Brown and his drinking using they began vodka and shared. Brown motel room niece, victim, ten-year-old went to girlfriend’s The cocaine. room, Brown knowing her aunt had moved out. not the motel her get pull to bed and down her in. He forced her on the invited vagina, and the placed penis against his her panties. He pants and began stopped and to mastur- resisted him. He victim cried and room, left the They subsequently him. while she sat next to bate ran, yelled that she was away. As she ran she and the victim chased assault. Brown to her mother about sexual going tell foaming began at the strangled her until she caught her. He and ditch, her in a later. He left two or three minutes mouth in- initially denying help, died. After screaming where she for volvement, to the crime. he later confessed assault, robbery, aggravated for prior convictions

Brown had assault, and resisting arrest. He had been abused and simple child, and had by stepfather when he was assaulted his jail, and was eventu- he became suicidal narcotics. While used by psychotic major depression accompanied ally diagnosed with trial, pled incompetent to stand and he He was declared features. imposed a life The court guilty to murder and sexual assault. disqualifier thirty-year parole on the murder convic- with a term five-year parole ten-year term with a tion, a consecutive and conviction. disqualifier on the sexual-assault Cooper B. David girl backyard and took her

Cooper six-year-old out of lured a porch of house where underneath the an abandoned to an area for her and called family members looked the victim’s lived. While strangled name, fatally her. Cooper sexually and her assaulted out under the body hours later. She was Police her several found porch, pulled with her up panties shirt and her her anides. The bleed, sexual assault caused her and to suffer inter- numerous injuries cervix, nal vaginal her canal and as well as to her anal canal. The medical examiner concluded that she had been stran- gled for four to six minutes.

Cooper attack, claimed that during he was drunk and that her death was accidental. trespass- He had convictions offense, ing drug juvenile and disorderly- convictions for conduct and criminal parole mischief. He was on at the time of the murder. daily He claimed that he drank marijuana and used often, present but did alleged evidence of his alcoholism or penalty phase. During childhood, intoxication at his Cooper abused, neglected, exposed drugs, alcohol, had been placed violence. homes, He was in numerous foster and did not mother, relationship have a with his heavily who drank when pregnant Cooper. c(4)(f) jury (escape found the detec- tion) c(4)(g) (contemporaneous felony) factors, aggravating varying c(5)(h) (catchall) and jurors of numbers found several jury factors. The concluded that aggravating factors out- factors; weighed mitigating therefore, the defendant was sentenced to death. He aggregate also received an noncapital seventy years sentence of with a thirty-five-year disqualifi- parole er.

C. Jerome Dennis twenty-five-year-old The fourteen-year- Dennis encountered a girl old on the street. He at knifepoint forced her into the bushes on the of times, side the road. twenty-four He her stabbed her, up, assaulted tied her and covered her with leaves twigs. body and Her was found four months later. prior convictions,

Dennis had three prior sexual-assault two convictions, criminal restraint prior robbery and one conviction. He paroled just had been two weeks before this murder. In a period, four-month he committed this homicide and four others. murder, felony a sentence with and received life pled guilty He to disqualifies thirty-year parole a Ralph Edwards D. nine-year-old girl a on the saw

Eighteen-year-old Edwards girl The was about of an abandoned railroad station. platform watch, and asked inside to in the Edwards went defecate station. He that was in the station. her him on mattress to sit with stomach, attempted put on her her exposed himself to her and anally. fought back and ran penetrate her She he could so that strap chase, managed wrap plastic and away. gave He strap, strangling her. She fell yanked the her neck. He around placed body her between two head. He ground and hit her to the subsequently scene. Edwards was railings and left the track boy the railroad sexually assaulting young near arrested tracks, to the murder. and confessed mental history had a no He

Edwards had convictions. on the emotional level problems and functioned psychological and murder, felony jury capital him of year A convicted of a nine old. jury The murder, aggravated assault. attempted sexual c(4)(f) (escape c(4)(g) (contemporane- apprehension) found the c(5)(d) (dimin- e(5)(c)(age), felony) aggravating factors and the ous c(5)(h) c(5)(f) (no history), significant capacity), criminal ished (torture e(4)(c) (catchall) jury rejected mitigating factors. that the jury determined depravity) aggravating factor. The factors, outweigh mitigating did not aggravating factors thirty- imprisonment life with a Edwards to the court sentenced conviction, a consec- parole the murder and to year disqualifier on parole ineligibility for the ten-year years with five utive term attempted aggravated assault conviction. sexual Joseph

E. Harris $10,000 Harris, a investment angry he had lost because He home. broke into Ellison’s company, failed Ron Ellison’s wife, seven-year- Ellison, his and his handcuffed and blindfolded nine-year-old daughters. old and money. Harris demanded After $700, gave Ellison’s wife him sexually Harris assaulted Ellison’s daughters. wife and Harris then shot and killed Ellison. Harris that he believed was cursed because he had been born in prison parents rejected and his had him. He fantasized about ten, during By violence age childhood. he heard voices of an Chief, Indian ultimately which replaced by subsided and were the Ninja joined of spirit. Navy voices Harris the at the behest of spirit, the hewho believed him directed to travel to Asia. He later Service, worked at the United States Postal where he would occasionally Ninja wear either garb military camouflage outfits. Navy, diagnosed While Harris was as a “schizoid” and with “inadequate personality” disorder. jury murder,

A capital murder, convicted him of felony three aggravated assault, counts sexual kidnapping, four counts burglary, weapons c(4)(f) and a offense. jury The found the detection) (escape c(4)(g) (contemporaneous felony) aggrava- c(5)(f) (no ting significant factors criminal history) and c(5)(h) (catchall) mitigating factors. jury rejected pro- The e(5)(a) (extreme posed disturbance) e(5)(d) emotional and the (diminished capacity) mitigating jury factors. found that the factors, aggravating outweighed factors mitigating and the court sentenced Harris to death.

F. James Henderson Henderson, twenty-seven old, years nineteen-year- who was Gary Lippen driving old Lippen’s were pickup they truck when victim, seventeen-year-old saw their acquaintance. accepted She ride, their offer for a they her drove to remote wooded area. Henderson asked to her see breasts. She refused and him told stop. He began then threw her down and to tear her shirt. Lippen fondled her sexually and held her down while Henderson assaulted Lippen may her. have also assaulted her. assault, Both beat her throughout including striking her awith stick, and began choking Henderson her Lippen with his hands. Henderson, her throat. placed he on which stick to handed a stick, crushed the and the two men put Lippen his hand on many times in the her then stabbed throat. Henderson victim’s a hill neck, They dragged up her chest, area, genital and back. legs her Henderson twisted legs into a tree. and hoisted her filled the victim’s legs. Henderson and broke her around the tree purse in They discarded the and his knife. poeketbook with sand three months later. body was found lake. The victim’s dead drug prior posses- for apparently had one conviction Henderson illness, which he had history for had a of mental sion. Henderson disturbed, illiterate, emotionally He was received treatment. had a high in school. He also special classes took education significant drug problem. hindering guilty murder and two counts of pled

Henderson murder, Henderson to the court sentenced apprehension. For the disqualifier. court thirty-year parole imprisonment with a life two-and-one-half-year five-year terms with imposed consecutive hindering apprehension convictions. disqualifiers parole Gary Lippen H. G. co-defendant, participated he Lippen, claimed that

Henderson’s Lippen had no Henderson. because feared the murder alcohol, history illness. He abused no of mental convictions and body was methamphetamines. After the victim’s marijuana, and found, he was remorseful. hindering ap- manslaughter, guilty aggravated

Lippen pled thirty- him to a conspiracy. The court sentenced prehension, and fifteen-year awith manslaughter conviction year term on the five-year term with two- disqualifier, a consecutive parole hindering apprehen- disqualifier on the and-one-half-year parole subsequently re- manslaughter charge. The sentence sion ten-year parole disqualifier. twenty years with duced to H. Michael J. Manfredonia Nineteen-year-old fourteen-year-old Manfredonia saw the victim walking Manfredonia, According home from school. to he asked out, rejected him, making her and she him. She then ridiculed way fun of got the he looked and dressed. He knife from his car, of, her being told that he did not like fun made and threat- childish, ened to kill stop acting himself. She told him to and expressed to his pushed indifference suicide threat. He her to the ground, her, sexually twenty-six assaulted and her stabbed times in the chest and dragged body back. He her through the woods covering dirt, rocks, and left it in body a ditch after the and body days sticks. Police discovered her two later. The medical examiner concluded that fifteen of the stab pene- wounds did not deeply body, trate into the suggesting victim’s that Manfredonia intended that the victim suffer. He also concluded that the victim slow, twenty painful died a ninety death minutes after the stabbing. learning found,

After body that the victim’s had been Manfredo- parents nia’s police. called the escaped through Defendant the police bathroom window before the officers arrived. Defendant day, parents returned home the next police again. called attempted by Manfredonia ingesting suicide pills several slitting his wrists. Police attempt thwarted the him. arrested having While pumped, his stomach Manfredonia claimed he merely found the body victim’s and hid it because he was afraid. following day, The he confessed to the crimes and said he did not why know he killed the victim. explosive

Manfredonia had intermittent disorder and intelli- low gence. I.Q. graduated school, His high from and had no criminal record disorderly persons other than a theft trial, offense. After bench the court purpose- convicted him of ful-or-knowing murder, murder, felony aggravated assault, sexual kidnapping, weapons and a present offense. The court found c(4)(e) (torture c(4)(f) depravity), (escape apprehension), and factors. court c(4)(g) (contemporaneous felony) aggravating (emotional disturbance), c(5)(a) c(5)(c)(age), and found the also record) (no c(5)(f) mitigating factors. The court significant prior outweighed aggravating mitigating factors concluded that aggregate term of life to an sentenced defendant factors and fifty-five-year disqualifier. fifty years parole plus with a I. Rasheed Muhammad assaulted, mur- kidnapped, Muhammad

Rasheed went to her Jakiyah The victim eight-year-old McClain. dered Her friend saw her enter apartment building play. friend’s Muhammad, kicking, banging, and and then heard building with building day, spoke with the screaming upstairs. police The next permission given had Muhammad superintendent who said that he building. apartment Police stay in the in an abandoned door, in. Police and he invited them on Muhammad’s knocked pile An body of clothes a closet. the victim’s under a found sexually and assaulted autopsy the victim had been revealed that asphyxiation. died of mur- purposeful-or-knowing jury convicted Muhammad of

The der, murder, kidnapping, and two counts of felony aggravated offered During penalty phase, Muhammad assault. sexual alcohol, drugs that both parents abused and that his evidence him, that he saw his mother neglected and parents abandoned three, physically his mother’s lover age that his father stab ten, age him, began running away from home at he that abused school, he was through that advanced improperly he that was child, age began abusing drugs at that he a abused heroin, cocaine, daily a twelve, and alcohol on he had abused and twenty years, that he suffered several concussions for basis from emotional injuries, that he suffered untreated head other he suffered instability resulting attempts, and that in two suicide custody fought for and lost trauma when severe emotional years at the twenty-nine old was his two children. Muhammad breaking offense, larceny, prior of the and had convictions time machine, entering, a breaking coin-operated into and was probation on jury at the time of the found c(4)(g) offense. (victim c(4)(k) (contemporaneous felony) and less than fourteen old) years aggravating mitigating factors and all of the catchall factors, hung penalty. but on the death Muhammad was parole charge, sentenced to life on without the murder fifty-year twenty-five-year parole disqualifi- consecutive term and er kidnapping. for the

J. Frederick Ritchie victim, boy, Ritchie twelve-year-old enticed the to sneak out of parents’ trailer, They his house. went to Ritchie’s where Ritchie got reading pornographic the victim drunk. magazines, While Ritchie masturbated and inserted a dildo into his anus and another Afterward, into the severely injured victim’s anus. victim victim, head twice. Ritchie claimed that the due to the intoxi- cation, Later, washing fell into the wrapped machine. Ritchie victim in a blanket nearby and took him to a creek in woods. tree, Ritchie claimed head, that the victim walked into a struck his fled, and fell backward. Ritchie victim was later found naked and face-down in a drowning creek. He died from and the injuries. head Ritchie cleaned any his trailer and discarded presence. evidence of the victim’s He confessed after he was sexually assaulting seven-year-old arrested for boy.

Ritchie had for burglary, convictions lewd and lascivi- children, against exposure, indecent pro- and indecent ous/crimes posal to Army veteran, a child. He was an and had been diagnosed with Crohn’s disease. He also was an alcoholicwho had past. received treatment the pled guilty

Ritchie aggravated manslaughter, two counts of assault, aggravated attempted sexual aggravated assault, sexual kidnapping, hindering apprehension. and aggravated On the man- count, slaughter the thirty-year court sentenced him ato term of imprisonment, eleven-year parole disqualifier. an with Leroy Taylor

K. him that she girlfriend his told Taylor angered when became girlfriend’s his man. He went to with another was involved strangled girlfriend’s sexually and apartment assaulted and victim, Taylor’s girlfriend found thirteen-year-old niece. panties torn and blood- pants were were removed whose stained, Taylor’s lying of the master bedroom. on the floor her, Taylor confessed to but initially police that had girlfriend told Taylor provided police with the clothes later retracted claim. crime, requested they during but when wearing he had been samples, hair fled to California. blood and he killing four-year- convicted of juvenile, Taylor had been As if he had also not determine girl. old Authorities could decomposed. Taylor body her so girl was assaulted because dropped He this crime. had parole on when he committed was school, G.E.D., airport his worked as an high earned out of history drug or alcohol He maintenance serviceman. denied abuse. murder, aggravated felony first-degree

Taylor pled guilty to life assault, was tampering. He sentenced sexual and witness felony on the thirty-year parole disqualifier imprisonment with a murder conviction. Timpson Alphonso

L. twelve-year-old girl Nineteen-year-old into Timpson forced a fought with school. She walking home from woods as she her He him, severely knocked unconscious. but he beat her penis. also fingers and his He vagina penetrated her regained she nearly off breast. The victim screamed when bit her mouth, panties in her and she He stuffed her consciousness. dying, gasping and died. As she was breath suffocated sexually assault continued to her. involvement, ultimately

Timpson initially but confessed. denied parents, arguments with his killing on a series of blamed the He friends, ex-girlfriend, his ex-girlfriend’s and his brother. Timpson developmental had severe disabilities and was borderline mentally nineteen, age retarded. At when he committed this crime, development he had the twelve-year-old mental of a child. student, As a violently he acted when he became frustrated or angry. diagnosed He was being highly impulsive and unable to Moreover, exhibit emotional control. he had a low frustration responded quick tolerance and to stress with and uncontrollable joints behavior. He smoked two drank and two cases each of.beer day. juvenile, As a girl attacked a under similar circumstances to this offense. murder,

Timpson pled guilty capital aggravated sexual as- sault, kidnapping. plea and The was conditioned on trial the court sentencing him imprisonment to life a penalty hearing. after (torture c(4)(c) (contem- depravity) court found the c(4)(g) and poraneous factors, (extreme felony) e(5)(a) aggravating and the disturbance), e(5)(d) (diminished emotional c(5)(c)(age), capacity), e(5)(h) (catchall) mitigating factors. The court found that the mitigating factors outweighed aggravating the factors and im- posed aggregate an imprisonment sentence of plus fifty years life fifty-five-year parole with a disqualifies M. Mark Luciana

Twenty-year-old Mark party Luciana attended a awith fifteen- year-old female and several midnight, other friends. After group go left swimming nearby at a they wooded area. When arrived, fifteen-year-old Luciana and woods, walked into the where strangled Luciana her to death with her After- brassiere. wards, rejoined Luciana his friends and told them that the victim go had left to to the dropped off, bathroom. He two of the friends one, out, passed had who remained in the car. Luciana drove back put to the crime scene body the victim’s trunk the car. He drove to a motel. When his friend awoke the next morning, body. Luciana showed him the They left the car at the days, motel. Within a few reported body friend police in. also heard from Luciana’s himself Police turned Luciana drinking being and violent after ex-girlfriend that he became cellmate, sex, related Luciana’s and from Luciana’s who refused gratification from the murder and getting sexual statements about pain encounters. inflicting during sexual from murder, felo- charged purposeful-or-knowing with Luciana was assault, murder, hindering apprehension, ny aggravated sexual jury guilty A found him welfare of a child. endangering and the presented penalty phase, the defense on counts. At the all dropped after ninth high out of school evidence that Luciana his and classes a later received GED attended grade, but murder, employed was community college. At the time of the he was evidence that paving business. There step-father’s in his subject drug and was problem alcohol and Luciana had both an psychologist a child. A defense physical and emotional abuse as age and had an very immature for suggested that Luciana was disorder, stemming neglect as a child. from personality anti-social testified, psychologist, that he was intoxicated as did the Luciana eighteen marijuana, beers and killing of the from at the time testimony. with other witnesses’ although that not consistent was empathy for those around that he feels little Luciana also stated remorse, tearfully testified that could As Luciana him. for did, kill the thing he that he did not mean to the undo terrible jury spare victim, truly sorry, the was and asked and that he drug possession prior has one conviction his life. Luciana receiving property. stolen (con- detection) c(4)(f) c(4)(g) (escape the jury

The found c(5)(c)(age), felony) the aggravating factors and temporaneous (diminished c(5)(f) (no c(5)(d) significant capacity), prior criminal (catchall) reject- c(5)(h) jury mitigating factors. history), and (extreme (torture c(5)(a) c(4)(c) emotional depravity) ed disturbance) to reach decision jury was unable factors. The factors. The court sentenced regarding weighing parole thirty-year period imprisonment life Luciana to ineligibility for aggregate the murder and to an consecutive sen- years tence of nineteen charges. for the other N. Lester A. Wilson victim,

Wilson resided in the same hotel as the who was years evening, strangled fourteen old. One Wilson victim, pillow covering assaulted who found with her waiting face. While for an ambulance that he needed after unsuccessfully attempting escape police from the by station jumping through window, the bathroom killing Wilson confessed to victim. mildly

Wilson was He retarded. had no convictions. prosecute The State did not capitally. juryA Wilson convicted him of aggravated murder and sexual assault. The court sen- tenced him to life imprisonment thirty years parole with ineligibility for the to fifteen-year murder and a concurrent prison aggravated term for the sexual assault. Proposed

II. by Cases Public to which Attorney the Defender Objects General Conley A. Kevin night, Conley eighty-seven-year-old

One entered the victim’s beat, stabbed, raped, home fatally and strangled her. The victim face, suffered blunt force trauma and stab wounds her neck, and extremities and a fracture of her nasal bones and her right zygomatic arch. The victim following was found the morn- torn, wearing ing pink a nightgown, telephone line, awith which cut, been draped body. had across her Her stomach oily was shiny, toppled baby and a night bottle of oil on rested the stand. Conley apprehended nearly sixteen months later because his fingerprints matched those on baby found oil Appar- bottle. ently, there was no connecting Conley other evidence to the crime.

Conley was twenty-nine-year-old college graduate who had completed thirteen degree. spent credits toward a master’s He prior no criminal Army He had eight in the Reserves. years company and used alcohol He for a rental car record. worked occasionally. juryA him of Conley noncapitally. convicted tried State murder, felony murder, aggravated sexual

purposeful-or-knowing The court sentenced assault, weapons offense. burglary, and plus twenty-six imprisonment of life aggregate him an term disqualifier. thirty-eight-year parole years with B. Frank Masini 1 purport- eighty-five-year-old at aunt’s home stopped

Masini washing glass a soda in the edly telephone. out use her While sink, his aunt in knife. He stabbed repeatedly he saw a kitchen raped her. neck, vaginally anally killing her. He also of four history, but this was one had criminal Masini no elderly people. In the against stabbings he committed fatal murder, from experienced detachments this Masini months before a life to murder and received sentence reality. pled guilty Masini parole ineligibility. thirty-year period of with a Frank Masini 8 C. aunt, home of his killing his Masini was

Two weeks after kitchen, he her in the talking After eighty-year-old relative. counter, grabbed victim from kitchen grabbed a knife from the her, neck, sexually assaulted behind, repeatedly in her stabbed pled Masini ring. stab wounds. her died from the and stole She thirty- sentence received another life guilty to the murder and re- bar, concurrently to sentence he which ran year parole life sentences to the consecutive killing his aunt and ceived for elderly couple. murdering for an received Mincey D. Samuel seventy- victim, who was

Mineey into home of the broke her, strangled severely, raped and He years old. beat her three Mincey her. He two stole oriental dolls and a television. years Mincey convictions, prior arrested six later. had sixteen including assault, aggravated convictions for battery, assault and theft, burglary, receiving property, escape. auto stolen and prosecute Mincey capitally, The State did not perhaps because prosecutor believed the statute of limitations barred a capital prosecution. juryA Mincey convicted of murder and felony imprisonment murder. The court sentenced him life thirty-year parole disqualifier. with a E. Rivera Rafael

Rivera lived next relationship door and had a close with the victim, a seventy-eight-year-old who was baby- widow. She often children, sat for grandmother. Rivera’s who called the victim their visiting While the victim was girlfriend, Rivera and his Rivera apartment went into money. her and looked The victim apartment returned to her surprised and A struggle Rivera. between Rivera and the victim ensued. Rivera many struck her face, forearms, ribs, times in the and vagina back. He tore her with either his hand or her cane. The cause death was strangulation. ear,

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

juryA murder, capital robbery, convicted Rivera of aggravated assault, (torture c(4)(c) sexual burglary. jury The found the depravity) c(4)(g) (contemporaneous felony) aggravating c(5)(d) (diminished c(5)(h) (catchall) factors and capacity) c(4)(f) detection) mitigating rejected It factors. (escape aggra- vating factor e(5)(c)(age) and the mitigating factor. jury agree could not on aggravating outweighed whether the factors imprison- him to life mitigating factors. The court sentenced the murder. thirty-year disqualifier for the parole with a ment F. Otis James 11, 1994, lying find the May to on woman awoke James

On mouth, placed He his hand over her next to her bed. floor began The quiet, to fondle her. for her be motioned flee, daughter, prompting James to screamed for her woman daughter as she entered the room. knocking the woman’s over through the window. James left bathroom in burglary, that a window investigating police noticed While eighty-two- an open. police found upstairs apartment an was year-old apartment lying on her bed stom- upstairs female in the ach-down, legs spread apart and below the waist. Her were nude vaginal and area. A chair gel spread had her anal been over exposed pulled up the bed next to the woman’s had been sexually been genitalia. that the woman had It was determined smothering and by asphyxia due to and was killed assaulted compression of the neck. he committed the high he when was drunk

James elaimg, offense, money support property to steal or only intended assaulting drug He claims not to remember his habit. noticing dead. that she was eighty-two-year-old woman pro- treatment Despite participating several substance-abuse daily. apparently grams, James alcohol and cocaine abused drinking age at five. started died in a car met father his mother never his

James death, his James he was eleven. After mother’s accident when by James siblings two raised different relatives. and his were truck grade. He obtained a dropped high out school after tenth unemployed time of the offense. driving certificate but was suicide, hospitalized and subsequently attempted and was He once offense, At time of diagnosed depression. with James He living had twenty-eight years old and sister. theft, robbery, burglary, attempted burglary, convictions for re- conduct, arrest, sisting disorderly shoplifting. and was on He parole when he committed the murder. 29, 1995, September attempted

James was arrested on for the murder of another woman. was as the culprit He identified the May burglary through fingerprints and murder and similarities May September charged between the and crimes. James was murder, murder, burglary, felony two with counts of two counts of assault, aggravated attempted aggravat- sexual sexual assault and pled guilty felony ed criminal sexual contact. He to murder and imprisonment thirty years was sentenced to life parole ineli- gibility. B-l) Vasquez (Subcategory

G. Carlos Purportedly by talking religion, Vasquez to her about lured the victim, thirteen-year-old girl, a into apartment. his inWhile his apartment, down, raped her, fatally he held her strangled her awith towel. living Rico, Vasquez

While in Puerto was convicted of murder. paroled years was He six before this having murder. denied He problems abusing mental health drugs or alcohol.

Vasquez pled guilty felony aggravated to murder and sexual assault. The him imprisonment court sentenced to life with a thirty-year parole disqualifier for murder and to a consecutive twenty-year ten-year parole term with a aggravated bar for the sexual assault. (H-l) Aquino

H. Kevin sex, Desperately seeking Aquino home, neighbor’s went into a six-year-old where victim and her were sleeping. sister parents attending party victim’s were Aquino’s parents’ at home. Aquino rang doorbell, nobody but answered. He broke a window, home, went into the and removed the victim. He carried backyard, his her to where he intended to have sex with She her. noise, quiet her attempts his were awoke and made dragged to a wooded area behind his home. He her unsuccessful. caught kidnap- Intending getting kill he feared her because victim, against head tree. ping he smashed victim’s Afterward, nearby her her. She dragged he to a brook left hemorrhage. a fractured skull and cerebral died from college. nineteen-year-old community was a student at a Aquino years he was three old after he placed He in foster care when was time, At that he was prescription on medication. overdosed deprived, speak, trained. emotionally did not and was toilet years old. Due Aquino adopted when was four-and-a-half was behavior, Aquino study evaluated aggressive a child team emotionally neurologi- that he disturbed and determined Aquino eally impaired. years, three attended school For Thereafter, special he enrolled psychiatric center. children’s public graduated high from classes at school. He education school, repeat first-semester courses at commu- but needed to his attending community college, Aquino nity college. Besides part-time for a restaurant. worked fast-food old, of year’s Aquino was convicted he was seventeen When assault, in which he victimized aggravated counts of sexual three brother, girl, four-year-old boy. a younger five-year-old his a and murder, year was twice for criminal Aquino A before the arrested incident, Aquino found in trespass. trespassing In the second was bathroom; girls’ explained was the sound of a he there because murder, Aqui- the girls urinating him. Two weeks before excited thirteen-year-old into home and attempted no lure a child his to disorderly diagnosed with charged Aquino was conduct. his increas- impulse control His doctor concluded that disorder. thoughts dangerous made toward children him ingly violent sexual supervision. and in need constant murder, felony pled to Aquino guilty purposeful-or-knowing murder, him two eonsecu- kidnapping. and A court sentenced to imprisonment plus aggregate fifty-five-year

tive terms of life an disqualifier. parole (F-8)

I. Nicini Daniel Felmey plan sixty- Co-defendant III devised a rob a Thomas to Felmey seven-year-old pretend man. homosexual told Nicini to to pick up. Felmey be homosexual and the man him allow to said go nearby game preserve, that Nicini and the man should to the him, him, where Nicini should blindfold rob and him in leave the trunk car. later, Felmey

A weeks few drove Nicini the location where him, approached the victim sat in his Nicini ear. and the two men game preserve. grabbed went to the The victim Nicini’s testicles him, pointed toy gun and buttocks. Nicini struggle and punched wallet, money, ensued. Nicini the victim and stole his keys. Felmey by in putting and drove his car as Nicini was victim recognized Felmey into victim’s car trunk. The victim Felmey and said he knew that robbery. was involved with the Felmey Felmey’s Felmey Nicini each drove to home. told Nicini take the victim to the and kill woods him because the Nicini, Felmey, victim had identified him. and two women drove Felmey to an dirt victim isolated road. told Nicini abandon the car on a trail in the woods. trunk, opened

Nicini drove further into the woods which open he propped Upon observing with a stick. that the victim was knife, holding a crowbar Nicini stick removed the pulled caused the trunk to hit victim on the head. Nicini then trunk, back, the victim out of the tied the victim’s hands behind his rope and looped tied a around his neck. Nicini rope the around a broke, attempted hang rope tree branch and the victim. The rope bumper and the victim fell. Nicini tied the to the front and. made victim help the walk with the car. Nicini would the victim Next, up Nicini, victim, whenever he fell. dragging the drove the car in high speed. reverse at a rate of Nicini rope cut the and left woods, the in victim the where body hunters discovered his dead autopsy revealed that the subsequent later. A over one week ligature strangulation and suffocation. victim died of murder, aat ear the Nicini washed the victim’s automobile After of victim’s home. The and the vehicle front wash left Pelmey map home that following day, drew the victim’s guns, money, drugs. and the location of victim’s illustrated rifle, $320, other items. a .22 and miscellaneous On Nicini stole body, police apprehended day hunters found the victim’s Nicini, Pelmey and both of whom confessed. dropout unemployed high-school nineteen-year-old

Nicini was a He no restaurant. had had once worked at a fast-food who alcohol, marijuana, and record. He had used adult criminal of beer about one hour before and he drank a ease cocaine said commencing the crimes. Nicini, guilty prosecute pled and he capitally not

The State did him to life felony burglary. and The court sentenced murder thirty-three-year parole dis- plus years with a imprisonment five qualifier. Querns1 Kenneth

J. strangled nine-year-old girl. He saw Querns kidnapped and home, home, her ear his her and took in his her outside of eventually took her kept her for four to five hours. He where subsequently body Her was strangled in his and her. out car neck, had to the in a field. She two stab wounds found vacant one-piece her outfit. There wearing beneath underpants was sexually Querns denied penetration, of sexual was no evidence assaulting her. alcoholic, that he was intoxicated

Querns an and he claimed childhood, physically he was During time the crime. his mother, by by his abused emotionally abused death-eligible draw the universe, we case is in the Because this not yet recitation from briefs appendices. factual parties’ teacher, Sunday exposed drug School and was often to and alcohol abuse, activity. as well as sexual He had a conviction for assault, making sexual as well as two for harassment convictions telephone young girls. obscene calls to Querns pled guilty aggravated manslaughter kidnapping. forty-five year him an aggregate prison court sentenced term.

LONG, J., dissenting. Megan Nicole Kanka our is frozen in collective consciousness beauty, because of her way her innocence and the in horrific which she died. She is remembered as well because of the stalwart parents efforts of spearheaded Megan’s her who the enactment of in an daughter’s Law effort to save other children from their fate. trivialize, obliquely, against To even Megan the crime Kanka unspeakable. any would be responds Indeed normal heart with a cry vengeance for when faced with an offense like this. But it is precisely in matters such the one before us that we must set deepest our plumb depths aside emotions and the of our core of rationality in order stewardship. to account for our stewardship

That of proportionality entails task review —a unique review, exercise in our law. Unlike direct proportionality question review does not whether an individual death sentence is justified by whether, facts circumstances of the case or abstract, imposed sentence on a defendant is on a deserved contrary, moral level. On place its role is to the sentence imposed for one terrible murder on continuum of sentences imposed for other terrible murders ensure that the defendant ‘singled “has not unfairly capital been out punishment.’” 88, (1999) 55, II) v. Cooper, State 159 N.J. (Cooper 731 A .2d 1000 Martini, (citing 3, 47, (1994) to State v. 139 N.J. 651 A.2d 949 (Martini II)), denied, cert. 516 U.S. 116 S.Ct. (1995) very particularized L.Ed.2d 137 When that assignment is bright reason, light undertaken in the it is evident that Jesse Timmendequas should not been have condemned to death.

I. unparalleled. So coverage this was almost of case The media’s that, Megan at the murder of Kanka widespread the shock notes, “‘changed legal the majority the case reaction to ” 28, A.2d at 22 at 773 landscape for nationwide.’ Ante sex offenses 515, 650, A.2d Timmendequas, N.J. 737 55 161 (citing to State v. (1999) (Handler, dissenting)). Despite trial court’s efforts J. of eyes and ears any reportage of the from the keep to case slipped through: jurors, inevitably prejudicial information some knew jurors that all but two on case result was “[t]he ten, prior record. those [Timmendequas] had Of suspected that included a sex offense suspected that his record at least nine N.J. conviction, Timmendequas, 161 at as much.” and one knew 669, 737A.2d 55. jury] instructed backdrop, [the the trial court “never

On permissi prior convictions was not significance of those that the penalty-phase in deliberations.” consideration ble factor for (Stein, dissenting 650, concurring part in A .2d55 J. Id. at 737 jurors that the took unacceptable of the risk part). in Because sentencing in their Timmendequas’ prior into account record findings decision, and reliable we left accurate “[w]ithout are State v. concerning mitigating circumstances.” aggravating (2000) (Harris II) Harris, 303, 387, (Long, 221 757 A.2d 165 N.J. compare J., impossible for That makes it us dissenting). his relative Timmendequas’ other eases determine case with of ability perform this most basic Lacking the even culpability. penalty in a fair tasks, most extreme “administer the we cannot 279, 253, Loftin, 724 157 N.J. manner.” State v. and consistent 897, denied, II), 120 (1999)(Loftin cert. U.S. S.Ct. 129 528 A.2d (1999). 229, 145L.Ed. 2d 193

II. proportionality in review Many individual of the deficiencies Proportion extensively In re elsewhere. See have been discussed (1999) 71, 100-06, A.2d 528 N.J. 735 Project 161 ality Review 78 I)

(Proportionality (Handler, J., concurring Review in part and dissenting part) (criticizing assessing Court’s standard disproportionality); DiFrisco, 148, 224-31, v. 142 State N.J. 662 (DiFrisco (1995) III) (Handler, J., (criticiz A .2d 442 dissenting) denied, ing principle unique assignment), 1129, of cert. 516 U.S. 949, 133 (1996); II, 116 S.Ct. supra, L.Ed.2d 873 Martini 139 N.J. 90-91, (Handler, J., 651 A.2d dissenting) (discussing 949 lack of statistical standard to disproportionality frequency measure under review); Marshall, 109, 263-65, 249-50, State v. 130 N.J. 613A.2d (1992) (Marshall II) (Handler, J., dissenting) (criticizing coding sentences; of reversed death sentences as death inconsis tency tests; subjectivity proportionality inherent inclusion own frequency analysis; of defendant’s ease in and abandonment generally-imposed denied, standard for proportionality), cert. (1993). 507 U.S. S.Ct. L.Ed.2d 694 In two cases, my expressed objections recent I way own to the we have Morton, conducted proportionality review. See State v. 165 N.J. 235, 288-289, (2000) (Morton II) J., 757 (Long, A.2d 184 dissent Feaster, 444, ing); (2000) State v. 165 N.J. 757 A.2d 266 (Feaster J., (Long, dissenting). I take opportunity this to ID underscore previously expressed. the concerns I nutshell, a despite expressed

In Jersey our belief that the New provides Constitution a expansive protections “more source of against arbitrary the imposition and nonindividualized of the death penalty” Constitution, than does the United States v. State Rams eur, 123, 190, (1987), 106 N.J. 524 A.2d 188 our proportionality review has fallen short of that guaranteeing the penalty death is fairly administered. particularly, permeable More the boundaries process; flaccidity; of the its the change constant standards case; utterly from ease to subjective way in which even legitimate standards applied; practice are and the consistent of Court only to focus aggravating on the aspects of the case underscoring under review while mitigating factors of the comparison cases allows the Court virtually to conclude any proportional. death is sentence This case is emblematic of those deficiencies. accept that there is of this Court

It time for the members is grotesque distinguish between one meaningful way no simply why determining one purpose of another for the murder and awaiting life and another is granted been sentence defendant has review proportionality of individual very exercise execution. The pediment. It should thus be fundamentally unstable on stands penalty until a on the death moratorium declared scrapped and a developed. meaningful process is

III. the D-l I am with consolidation of majority, satisfied Like frequency In of categories for this exercise. terms and D-2 that, there not a dramatic agree I because analysis, also sentencing D1-D2 homicides and rates between difference in death homicides, review is the death-eligible precedent-seeking other any It is path purported proportionality determination. critical my colleagues. part company I from here that majority in analysis performed by the precedent-seeking The prior proportionality review format all this case follows the “subjective begins moral evaluation” Jesse opinions. It with a compar presumably as a for the other Timmendequas, benchmark II, supra, A.2d 266. To be Feaster N.J. isons. sure, have seen in the is more measured than we that evaluation still past, yet its result is foreordained. Blameworthiness

A. Moral undergirding majority catalogues following factors high of moral possesses a level blameworthi- its view that this case crime; Timmendequas knew nature of the that ness: the horrific puppy; that he lured her with a Megan’s helplessness; that he of detection; in the search participated escape her that killed Megan’s the crime on police; the effect of and lied to the litany, majority concludes that neither family. Against the that age mitigat- nor his is background, pedophilia, his Timmendequas’ ing.

Timmendequas’ background requires recounting Born here. retarded, with fetal effect alcohol and classified as educable nothing home life of nightmarish. short He was in raised food, abject poverty housing, care, adequate without or medical ridden, filthy, hungry living often and lice and sometimes out of mother, by His who professional cars. was assessed one as children, “hating” constantly brought her was an alcoholic who men home for sexual encounters. His father assaulted him and years; his brother several times a week over a course of hearing still his brother recalls him scream. His father also him, nine, age eight or raped seven-year forced to watch as he girl. Finally, family’s pets, old his father tortured the cut off the family of presence, head eat in the children’s and even forced pet his children to eat their rabbit. sure, capital be regularly

To cases detail by the abuse suffered defendants. But even when viewed on that backdrop, miserable out, majority this case stands and the short shrift the accords Timmendequas’ past trajectory its analysis. reveals the of

Further, majority Timmendequas notes that Jesse is a gives pedophile that no mitigational import. but fact When used course, preference, to denote sexual of pedophilia not in itself And, fact, mitigating. yet consensus has to be reached in the community precise scientific on etiology pedophilia. of See generally Winslade, Stone, William T. Howard Michelle Smith Bell Webb, Castrating Pedophiles & Denise M. Convicted Sex of Punishment, Against Children: New Treatment Old Offenses (1998). Nevertheless, 51 SMU L.Rev. 364-65 public our by policy, Legislature, as manifested of acts makes clear that we, society, many offenders, believe particularly that sex illness; pedophiles, they distinguished have an can be from other they of classes offenders in that likely are not to be rehabilitated and are bound to See (explaining reoffend. N.J.S.A. 2C:7-1 “danger posed by recidivism sex offenders and offenders who predatory against commit other require[s] acts children ... system registration permit that will law enforcement officials to

81 public neeessary for the safe- public the when identify alert ty”). then, way it pedophilia, is in which mitigating about the

isWhat Timmendequas’ prior commit- itself in one’s behavior. expresses based Diagnostic and Treatment Center was to Adult ment the compul- repetitive of conduct as characterization upon the 2C:47-3(b) that (stating that if a “court finds See N.J.S.A. sive. by pattern repetitive, a of was characterized an offender’s conduct shall, of the recommendation the upon ... compulsive [it] behavior Corrections, term the offender to a Department of sentence custody the in the commissioner to be served incarceration sex offender and Treatment Center for Diagnostic Adult the treatment”). not compulsive, how could that be If his conduct was Thus, pedophilia majority is correct that mitigating? while the crime, it the of defect such as excuse his not rise to level does affecting his level of moral blameworthiness. must be viewed as addition, Timmendequas thirty-three- In the fact that Jesse by majority as years at the time of crime viewed old “ right from enough to know non-mitigating in that he was ‘old ” II, 42, supra, (citing Harris A .2d at wrong.’ Ante at 773 31 221). However, age is 324, say that his 757 A.2d N.J. at 165 very age notion of as mitigating does violence to a factor Age mitigates to at all. moral blameworthiness relevant to immaturity part on of a defendant —a it reflects an extent that yet that has not reached reasoning and self-control of moral level Indeed, foreign to New principle is not level. that basic an “adult” Bey, 129 N.J. jurisprudence. See State v. Jersey penalty death (1992) III) 557, (Bey (holding deter 612, “[i]n 610 A. 2d beyond youth, jury look mining a must a defendant’s ‘relative’ maturi age to of defendant’s overall chronological considerations jurisdictions the same citing from that take ty” and to cases other denied, 130 L.Ed.2d 115 S.Ct. position), cert. 513 U.S. (1995). Here, mentally Timmendequas as educable was identified Jesse child, subaverage designation that reflects both retarded IQ multiple adaptive as well as Keyes, limitations. See Dennis W. William & Timothy Derning, Mitigating J. Edwards J. Mental Capital Finding Retardation in Defendant, Cases: the “Invisible” Physical 529, (1998) (com- 22 & Disability L.Rep. Mental 530-31 paring given by definitions of mental retardation the American on Psychiatric Association Mental Retardation and the American “ Association). Moreover, there is little doubt that his ‘mental and ” development’ early age emotional were at stunted an due to the Bey III, extreme abuse he suffered at parents. the hands of his supra, 612, 129 at N.J. 610 A.2d 814 (citing Eddings to v. Oklahoma, 104, 116, 869, 877, 455 1, U.S. 102 S.Ct. 71 L.Ed.2d 12 (1982)). all of What does that mean if chronological not that his age capacity? overstates his

Indeed, proportionality in a eases, number review the Court has found intelligence II, borderline to mitigating. be See Harris supra, 339, 221; Chew, 165 N.J. at 757 v. 183, A.2d State N.J. 159 217, (Chew II), denied, 1052, 120 A.2d 731 1070 cert. 528 U.S. S.Ct. 593, 145 (1999); II, 493 Cooper supra, 96, 100, L.Ed.2d 159 at N.J. 1000; II, supra, 340, 731 A .2d 157 N.J. at 724 A.2d 129. Loftin The even Court found defendant’s “cultural retardation” to be mitigating, although that defendant was not mentally retarded. 277, Harvey, 318, (1999) See State v. 159 N.J. 731 A.2d 1121 III); (Harvey 25, (Handler, J., id. at 408 n. 731 A.2d 1121 dissenting). deficiencies, Timmendequas’ Given fact that growth perhaps emotional was stunted as far as back when he to father-undoubtedly forced watch as his own his first and child, most model-raped influential a young anyone how could legitimately conclude Timmendequas’ mental and emotional age not mitigating? is majority

The also on Timmendequas focuses the fact that killed escape to detection. I do not escape view the detection factor as a legitimate aggravator, except party eyewitness where a third is II, killed to silence him or her. Morton supra, 165 N.J. at 290- 291, J., 757 A.2d (Long, 184 dissenting). my opinion, In defendant who escape kills to culpable detection is no more than Further, one kills who a victim who resists. escape because the

83 believe, Handler, pervasive, I as did Justice is so detection factor “destroys efficacy appropri application its an that its universal III, supra, Harvey 159 N.J. factor.” aggravating ate (Handler, J., dissenting). A.2d 1121 majority in by the Likewise, oppose the inclusion I continue victimization, family not other cases of the notion this and real, it is universal and thus terribly it but because because Mor distinguish defendants. as a basis to between cannot serve J., II, (Long, dissenting) supra, N.J. at 757 A.2d ton victim factor” (criticizing application of the “non-decedent Court’s ‘unique person’ with a “every which the victim was case in words, every single murder other of familial relations’ —in ‘web (citation omitted). case”) have accorded majority should not especially true weight That is any to that factor this case. by majority family alluded to victimization is not once because cases, although it that comparison is clear describing any in of the in also had families. the victims those cases majority opines that final note on blameworthiness: One Megan puppy, with a Timmendequas lured because Jesse example just another of the is enhanced. That is blameworthiness methodology a defen willingness denominate whatever Court’s him rendering as a factor more to commit his crime dant uses 90, II, at A.2d 1000 blameworthy. Cooper supra, 159 N.J. 731 Cf. ice cream to promised his victim (holding that fact that defendant offense); Chew aggravated his place lure her to his of residence 212, II, (holding fact that at the 731 A.2d 1070 that 159 N.J. sitting car in driver’s seat of mu *der the victim was time of the n aggravating); through was not fit driver’s side door and could III, 203, (holding that 662 A.2d supra, 142 N.J. at DiFrisco tape fingertips” to avoid to his “affix[ed] fact that defer iant blameworthiness). That is a leaving fingerprints increased his process. problem with the fundamental B. Victimization against Megan majority Kanka agree I with the that crime terrible, in was degree of this case and that the victimization high.

C. Character of Defendant majority Timmendequas’ has denominated “participation in lying police” increasing the search and as his moral blamewor reflecting badly thiness and on his character. Ante at A.2d at 30. Those fail conclusions to account for his retarded emotional and functioning. intellectual This is not a case of a weaving clever felon a web deceit police, to mislead the in fact, Here, leading astray. them Timmendequas’ pathetic Jesse pretense of searching Megan for intellectually was the act of an emotionally person seeking punishment, retarded to avoid an indicator of enhanced blameworthiness.

I majority’s also take issue with the use Timmendequas’ prior criminal record as an aggravating character trait. The fact that he has committed acts of sexual only assault serves compulsive illustrate the pedophilia. nature of inconsistently, Somewhat majority accepts, then without hesitation, Timmendequas’ concession his “pedophilic urges” unlikely. make rehabilitation Ante at 773 A .2d at 32. His being are, fact, chances of rehabilitated non-existent. Nonethe less, majority accept pedophilia compulsive cannot purposes of determining likelihood of rehabilitation but not when it analyzing comes to his moral blameworthiness.

IV. Comparison Cases duty portion Our in this proportionality of review is to ensure “ Timmendequas unfairly has not ‘singled been out capital for ” punishment.’ II, Cooper 88, supra, 159 N.J. at A.2d 731 1000 II, (quoting 47, Martini supra, 949); 139 N.J. at 651 A .2d accord II, supra, 210, Chew 159 at N.J. A.2d Considering 731 1070. both a character, defendant’s crime and his it responsibility is our determine imposed whether the sentences comparison in the cases render his death disproportionate. sentence purposes For of that analysis, agree I logic majority with the of expanding the the

85 agreed-upon to include cases comparisons beyond eases of the list extremely vulnerable victims. involving against crimes other A. Agreed-upon Cases Joseph Cooper, are David agreed-upon The fourteen cases Dennis, Henderson, Taylor, Michael Harris, Leroy Jerome James Muhammad, Brown, Ralph Ed- Manfredonia, Rasheed Vincent Richie, Alphonso Timpson, Mark wards, Gary Lippen, Frederick fourteen, only two received and Lester Wilson. Of the Luciana penalty. the death one of of majority concedes that the death —worthiness Joseph that of Harris —exceeds

two death-sentenced defendants — that fact as ineffectual Timmendequas inexplicably dismisses but claim. reviewing Timmendequas’ disproportionality purposes of for of the exercise maintained that past, this Court has In the to determine whether review is undertaken precedent-seeking similarly-situated culpability greater that of is than defendant’s equals or exceeds as as “whether it defendants well life-sentenced II, supra, 157 defendants.” that of other death-sentenced Loftin III, supra, 142 N.J. at 335, DiFrisco (quoting N.J. at A.2d 442). course, dispro prove cannot Of defendant 662 A.2d culpability is by that his or her merely pointing out portionality defendants. What is of other death-sentenced less than that showing that defendant’s plus a required is that demonstration defendants.” like similar life-sentenced “more that of culpability is case, II, In that supra, 139 N.J. A.2d 949. Martini aberrational, viewed of death must be sentence defendant’s Ibid. term.” to a life “requir[ing] a reduction of sentence defendant, disagree that the other death-sentenced I further Timmendequas. Coo- Cooper, culpable than Jesse David less strangu- six-year by of old child and murder per’s sexual assault Cooper also image Timmendequas’ crime. mirror lation was a murder, parole at the time on prior record had a acts, sexual behavior. compulsive wilful criminal but for (c)(4)(f) (escape Cooper was accorded the Timmendequas, Like detection) felony) aggravators. (contemporaneous (c)(4)(g) (c)(5)(h) (catchall) He also received mitigator. the benefit of the (e)(5)(a) Timmendequas, though, Unlike he was not accorded the (extreme disturbance) (c)(5)(d) (diminished capacity) emotional Further, mitigators. although both defendants had child- abusive hoods, there Cooper’s horrifying was no in evidence case of the Timmendequas (who, sex perhaps abuse and his brother offender) coincidentally, has also turned out to be a sex endured clear, throughout then, their childhood. It Timmendequas is that culpable less Cooper presented is than he because much more Thus, mitigation. both support death sentenced cases Timmende- quas’ disproportionality claim. sentences,

As for the cases in which the defendants received life majority has Timmendequas culpable concluded that is less than Leroy Taylor equally Jerome Dennis and culpable Manfredonia, James Henderson Michael none whom was sentenced to death and support that those four cases his claim of disproportionality. agree I I agree that conclusion. also majority Timmendequas with the culpable that is more than Mark part Luciana. It I company my is here that colleagues. from majority inexplicably although concludes Vincent Brown,2 offender, repeat violent “culpable” is more than Tim mendequas ten-year because he left old victim he strangled assaulted “to die in a ditch as she screamed for help,” Timmendequas is more “death-worthy” “pene because he his victim.” at Ante 773 A .2d at 33. The notion of trate® penetration death-worthy as more suffering than extended subjective totally and the fact majority agrees that the on that Moreover, does not render it so. majority’s less assessment of Brown flies in the face of the cases in which we have held the suffering See, extent of a victim’s aggravator. e.g., to be an II, 324-25, Harris supra, 165 N.J. 757 A.2d 221. From an objective standpoint, plainly Vincent culpable Brown is no less jail Because was suicidal and after the depressed Brown was crime. declared to stand trial. incompetent agreement, Timmendequas, plea a of a he yet, as result

than Jesse imprisonment thirty- a only term of life was sentenced to a year years. parole disqualifier plus ten Timmendequas from majority’s attempt distinguish Edwards, nine-year girl; exposed him- Ralph who a old accosted self; plastic strap penetrate anally; wrapped her sought to her; neck; body strangled left her on the railroad around her unjustifiable. subsequently arrested tracks is also Edwards old, boy. eighteen-years sexually assaulting young He was history problems and functioned at a much had a of mental but Timmendequas, he did not receive the benefit lower level. Unlike e(5)(a) (extreme disturbance) from the mitigator the emotional Yet, omitting majority, the notion intellectu- jury. again the talismanically cling analysis, to Edwards’ age from its al/emotional distinguishing characteristic. That is chronological age a valid justify the that Timmen- hardly a on which to fact sufficient basis only sentenced dequas while Edwards was was sentenced to death parole disqualifier. thirty-year with a imprisonment to life seventeen-year Gary Lippen picked up James Henderson advances, Henderson acquaintance. After she refused their old Lippen shirt. fondled her began her to tear her threw down her; sexually Lip- while assaulted and held her down Henderson through her may assaulted her. Both beat pen have also stick, assault, including striking with a and Henderson the her out Henderson, Lippen handed a stick her with his hands. choked the Lippen put his hand on stick placed on her throat. which then victim’s throat. Henderson two men crushed the and the area, chest, many genital neck and back. in the her times stabbed up legs into a tree. They dragged her a hill and hoisted her legs them. The her around the tree and broke Henderson twisted Lippen had no body three months later. was found victim’s dead illness, although Despite the Henderson did. history of mental crime, majority only views this staggering violence of Timmendequas. Ante at “similarly deathworthy” to Henderson as fact, deathworthy, manifestly more In he is 773 A.2d at 34. although supports Timmendequas’ disproportionality his case accepting majority’s claim even equal. view that the two are Moreover, majority Lippen characterizes as less deathwor thy, nineteen-years because he was essentially old and in Again, gives Henderson’s thrall. recognition it no to the notion chronological that age is not the inquiry. Also, end of the suggestion that Henderson’s influence Lippen renders less death- worthy Timmendequas impossible than square with the Morton, majority in State v. 165 N.J. opinion recent (holding A .2d 184 although “primarily planned co-defendant robbery murder, willingly participated defendant in the crimes” and “culpability so defendant’s planning own the mur diminished”). der should not be

Interestingly, although Lippen’s Henderson and victim months, found for majority three the .does not consider her family’s suffering assessing in culpability in as it does this case. It impossible is thus to majority’s avoid the conclusion that the solely assessment is based aggravating on the factors of Timmen- dequas meager mitigating and the factors of Henderson and Lippen. analysis That kind of place no in proportionality has review, compare scheme meant to aspects all of the cases under review. Under the approach, dearly correct Henderson is more culpable Lippen equally and is at culpable least as Timmende- quas. Yet, only row, Timmendequas sits on death Henderson having pled guilty murder, to which for he received a sentence of imprisonment life thirty-year with a parole disqualifier, Lip- pen having pled guilty aggravated manslaughter, to for which he thirty-year received a fifteen-years parole ineligibili- sentence with ty-

Rasheed kidnaped, sexually Muhammad assaulted and strangled eight-year an girl. old Muhammad argue did not even at trial— jurors c(5)(a)(extreme so no found —that mitigating factors disturbance) c(5)(d)(diminished emotional capacity) applied to Although c(5)(h) case. he too received the benefit of the plainly (catchall) mitigators other mitigator, absence of the the Moreover, Timmendequas. because equal him at least to renders without Muhammad “confessed majority to the “appears” it family,” it police con and the victim’s attempting to outwit the attempts to evade law en Timmendequas’ pathetic cludes that deathworthy of the Ante at two. make him the more forcement fact, voluntarily turn In did not 35. Muhammad 773 A.2d rather, police to his were led police; the himself in to the they victim underneath body of his apartment where found in pile of clothes his closet. culpable Timmendequas as majority more also views Jesse Ritchie, contem- committed murders both whom

than Frederick escape intent poraneously with other felonies victim, boy, twelve-year old Ritchie enticed the detection. trailer, got the victim where Ritchie and come to his sneak out magazines, Ritchie mastur- reading pornographic drank. While claimed that with a dildo. Ritchie penetrated the victim bated and intoxication, washing machine victim, into the fell due to Later, tree, injuring Ritchie himself. severely into a ran and then him, alive, in to a creek and took wrapped the victim a blanket injuries. woods, drowning and head from nearby where he died any of the evidence his trailer and discarded then cleaned Ritchie caught. He confessed being presence in an effort avoid victim’s assaulting seven-year another he was arrested after child. old Timmendequas, Ritchie had a worse comparison to

In record, burglary; and laseivi including prior lewd convictions children; and indecent exposure; against indecent ous/crimes However, he was an majority notes that proposal a child. disease, as diagnosed with Crohn’s Army and had been veteran majority given both he and age is different. But that Only identical. his disabled, developmentally Timmendequas are retarded and justify the on which to fact chronological age cannot be the basis Timmendequas prison while will be will live out his life that he executed. entirely superficial and impossible to tell from the

It is almost summary whether Lester was more less limited case Wilson However, is Timmendequas. this much clear: culpable than Jesse girl fourteen-year old strangled Wilson assaulted and, mitigation present in this any of the kind of without evidence case, prosecuted capitally. was not even cases,

Thus, Timmendequas agreed-upon of the fourteen Jesse defendants; equal to or culpable than both death sentenced is less defendants; culpable more culpable than ten life sentenced less compared with one life sentenced defendant and unable be than sum, that In twelve of the thirteen cases one life sentenced case. stage propor- of use at this contain sufficient information be claim. support Timmendequas’ disproportionality tionality review Comparisons Case B. Additional cases as majority accepted seven of the ten additional has vulnerability (Conley, of the victim. comparable, because of the Rivera, Masini(two), Vasquez). accept I Mineey, them James comparable as as well. majority my colleagues in the that both Masini agree

I (two cases), elderly Vasquez are persons, and who murdered four Conley agree is culpable Timmendequas. I than also more four of the automatically rendering out culpable, thus equally claim. supportive Timmendequas’ disproportionality seven cases Timmendequas’ Mincey’s life also bolsters sentence Samuel disproportionality Mineey, claim. who had an extensive evidence, seventy- raped murdered a mitigating no record and crime, he tortured three-year old woman. In the course of that, Mineey although “roughly majority her. The concludes did not seek Timmendequas, prosecutor culpable” as because against Mincey death sentence as a an result of erroneous belief run, the statute of limitations had a valid basis for the discrepancy Mincey’s Timmendequas’ between life sentence and thereby is death sentence Ante at established. 773 A .2dat 37. prosecutor The fact that the misunderstood law is irrelevant in assessing proportionality sentence; of Timmendequas’ death indeed, provides it way clear of arbitrary illustration capital punishment which is simple administered. The fact is that Timmendequas Jesse identically awaits death while an culpable person granted has been a life sentence. majority

How the can Timmendequas view Jesse as more culpable than Rafael Rivera is hard to fathom. Rivera lived next close, familial, door to and had a almost relationship with the victim, a seventy-eight-year old widow. While the victim was visiting girlfriend, Rivera and his apartment Rivera went into her However, to steal from her. she apartment returned to her surprised struggle him. A ensued in which he many struck her face, forearms, times in the vagina ribs back. He tore her with either hand his or her cane. The cause of death was strangulation.

Rivera had a vast record. history He also had a of cocaine, abusing marijuana alcohol, and he was seen drunk shortly before the jury murder. The convicted him capital murder, robbery, aggravated sexual burglary assault and (torture c(4)(c) found the depravity) aggravator, a factor not present case; in Timmendequas’ it did not find the extreme emotional mitigator. record, disturbance From his his lack of mitigating evidence crime, and the sheer violence Rivera plainly is culpable more than Jesse Timmendequas. Yet Rivera Timmendequas received life and Jesse death. James,

I further disagree that Otis asphyxi- who committed the ation eighty-three-year murder of an old woman whom he had assaulted, culpable is Timmendequas. less than He had long record and mitigating had no quality present- evidence of the then, worst, equally culpable as by Timmendequas. At ed Timmendequas. cases in this

Thus, comparable life sentenced seven of the twice) (Masini than Jesse culpable more are category, three equally culpable; and none is Timmendequas; other four are culpable. less (fourteen agreed on and twenty-one of the cases

Eecapitulating, additional), enough information to be useful twenty possess seven those, Timmendequas is less Of Jesse comparison in our exercise. defendants; equal or less sentenced culpable than both death defendants; more life sentenced culpable than the sixteen Moreover, of three defendant. culpable one life sentenced than majority characteriz- cases, including that the comparison one (Wilson, capitally prosecuted equally culpable, not even were es as comparison twenty-one Mineey). Thirteen of the Conley and our by Although under in the State. plea resulted offers cases disparity scheme, sentencing occasional review an proportionality here between gross disparity demonstrated permissible, is similarly shows situated defendants Timmendequas all other aberration, is an that his sentence

V. claims with proportionality systemic Timmendequas advances rejected underpinnings the Court evidentiary as those identical Morton, I in In Re As indicated Harris and Feaster. last term in Project: Review Proportionality of machinery death,’ ‘tinker with the to continue to The Court comfortable 438 435, 127 L.Ed.2d 1141, 1145, 510 U.S. S.Ct. Collins, Callins v. (1994) (Blackmun, of dissenting) understand the role do not yet fully when we J., should not I am not. Executions our in the of death penalty. racial bias operation to the of relentless- to be compiled point while wait for statistics be we approved ness. (2000) dissenting concurring (Long, in J., part N.J. 757 A.2d 168 206, 234, part). VI. Timmendequas

Jesse committed an indescribably horrible crime against totally family innocent child left her to suffer a lifetime loss. He should prison. never be released from But he review, should not be executed. Proportionality to which we have ourselves, committed requires that a singled defendant not be out unfairly for the punishment. most extreme twenty-one Of the cases, comparison involving all against terrible sex murders ex- tremely many vulnerable committed with torture and victims— depravity only two received death sentences. Both of those — presented

defendants aggravating more mitigating and less fac- tors than Timmendequas. majority Of the vast who received life (a sentences number of whom were even prosecuted capitally) one, only Luciana, Mark should culpable be considered less than Timmendequas. analysis, Based on that Timmendequas Jesse has singled been out for death in promise violation of our propor- Thus, sentencing. tional spared. his life should be STEIN, COLEMAN, For LaVECCHIA affirmance —Justices and ZAZZALI —4.

For reversal —Justice LONG —1.

773 A.2d 61 JERSEY, STATE PLAINTIFF-RESPONDENT, OF NEW v. WHALEY, LAWRENCE DEFENDANT-APPELLANT. Argued January 2001 Decided June 2001. notes mitigating. The also though were somehow those past, in treatment had received was an alcoholic who Ritchie capacity.” Ante at evidencing “diminished it as fact that views no standpoint, capacity was objective From an 773 A.2d 35. Ritchie, who, unlike Timmendequas, than that of more diminished actually mitigator received the benefit of that jury. from the Thus, absolutely there is no rational basis for Jesse Timmende- quas to be on death while row Ritchie continues to serve a life sentence. majority’s Alphonso Timpson, conclusion that on whom imposed, death-worthy life sentence was is less than Timmende- quas by is also belied Timpson, record. who was nineteen- years old, twelve-year forced a girl old into the woods she as was him, walking home from fought school. She but he her beat severely and penetrated knocked her vagina unconscious. He her fingers penis. with his nearly and his He also bit off her breast. regained The victim screamed when she consciousness. He then mouth, panties stuffed her in her and she suffocated and died. As gasping she was dying, for breath and he continued to assault her. Timpson initially involvement, denied ultimately but confessed. Timpson developmental had severe disabilities and was borderline mentally diagnosed retarded. He being was highly impulsive and unable to exhibit drugs emotional control. He abused juvenile, alcohol. As a girl attacked under similar circum- stances to this Timpson pled capital murder, offense. guilty aggravated sexual kidnaping. assault and The court found the e(4)(c) (torture depravity) c(4)(g) (contemporaneous felony) c(5)(a) (extreme aggravating factors and the emotional distur- bance), e(5)(d) (diminished c(5)(c)(age), c(5)(h) capacity), and (catchall) mitigating Timpson factors. differs Timmendequas from only c(4)(f) detection) Timmendequas given (escape e(4)(c) aggravator (torture Timpson depravity) aggra- vator. Who would not depravity conclude that torture and are worse? Yet the imposed court aggregate an sentence of life imprisonment plus fifty years a fifty-five-year parole disquali- Timpson fier on while Timmendequas was condemned to death. simply principled There is way Timpson no to declare is less death-worthy than Timmendequas. His crime was more brutal and involved imprisonment. mitigators torture and His were

Case Details

Case Name: State v. Timmendequas

Court Name: Supreme Court of New Jersey

Date Published: Feb 1, 2001

Citation: 773 A.2d 18

Court Abbreviation: N.J.