# State v. Cooper

> Supreme Court of New Jersey · June 3, 1999 · 159 N.J. 55

URL: https://www.frixlaw.com/law-library/cases/2299541

## Case

- **Full name:** State of New Jersey, Plaintiff-Respondent, v. David Cooper, Defendant-Appellant
- **Court:** Supreme Court of New Jersey
- **Decided:** June 3, 1999
- **Citations:** 159 N.J. 55; 731 A.2d 1000; 1999 N.J. LEXIS 659
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Stein, Handler
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2299541

## How later opinions describe it (automated extraction)

- holding that fact that defendant promised his victim ice cream to lure her to his place of residence aggravated his offense
- emphasizing that sentence is disproportionate if it is “aberrational” or if defendant has been “singled out *257 unfairly for capital punishment”
- emphasizing that sentence is disproportionate if it is "aberrational" or if defendant has been "singled out unfairly for capital punishment"

## Opinion text

731 A.2d 1000 (1999)
159 N.J. 55
STATE of New Jersey, Plaintiff-Respondent,
v.
David COOPER, Defendant-Appellant.
Supreme Court of New Jersey.
Argued September 15, 1998.
Decided June 3, 1999.
*1004 Mordecai D. Garelick and Linda Mehling Assistant Deputy Public Defenders, for defendant-appellant (Ivelisse Torres, Public Defender, attorney; Mr. Garelick, Ms. Mehling, Claudia Van Wyk and Matthew Astore, Deputy Public Defenders, II and Michael B. Jones, Assistant Deputy Public Defender, of counsel; Mr. Garelick, Ms. Mehling, and Ms. Van Wyk, on the briefs).
Catherine A. Foddai, Deputy Attorney General, for plaintiff-respondent (Peter Verniero, Attorney General of New Jersey, attorney). *1001 *1002
*1003 The opinion of the Court was delivered by STEIN, J.
In May 1995, defendant David Cooper was convicted by a Monmouth County jury of the purposeful or knowing murder, by his own conduct, of L.G., a six-year-old girl. The jury also convicted him of the related charges of kidnapping, two counts of aggravated sexual assault, and felony murder. On the capital murder conviction, the jury sentenced defendant to death. For the non-capital convictions, the trial court sentenced defendant on the kidnapping count to fifty years' imprisonment with twenty-five years of parole ineligibility, and on the aggravated sexual assault convictions to twenty-five years' imprisonment with ten years of parole ineligibility, both sentences to be served consecutively to the sentence imposed for purposeful or knowing murder. The felony-murder conviction was merged with the conviction for purposeful or knowing murder.
This Court affirmed defendant's conviction for capital murder and his death sentence. State v. Cooper, 151 N.J. 326, 406-07 , 700 A. 2d 306 (1997). We also affirmed his conviction and sentence on the kidnapping charge. We vacated defendant's conviction and sentence for aggravated sexual assault and held that that conviction must merge with the kidnapping conviction. Id. at 406 , 700 A. 2d 306 .
Defendant requested proportionality review for his death sentence. See N.J.S.A. 2C:11-3e. We granted that request and now find no disproportionality in defendant's death sentence.
I
The detailed facts are described in Cooper, supra, 151 N.J. at 341-47 , 700 A. 2d 306 , and we repeat here only those facts that are material to our proportionality review.
On July 18, 1993, L.G., the six-year-old victim, her two sisters, and her mother, R.G., were at the Asbury Park home of R.G.'s sister-in-law, M.W. R.G. sat on the front porch of the house with her youngest daughter while M.W. was at the supermarket. The victim, her sister, and M.W.'s daughter played in the front yard and eventually moved to the fenced-in back yard.
While the children were in the backyard, defendant lured L.G. away from the other children, lifted her over the fence, and walked away with her. The other children informed R.G. that defendant had taken L.G. R.G. and M.W., who by now had returned from the supermarket, searched for and called out to L.G. Neighbors joined in the search. Their efforts proved to be fruitless.
*1005 The Asbury Park Police Department was notified of L.G.'s disappearance, and police officers commenced a search for L.G. A few hours after her abduction, police officers found L.G.'s body under the porch of an abandoned home in Asbury Park. Defendant had been living under that porch. L.G. was found on her back lying on a mattress; her shirt was pulled up, her panties were at her ankles, and a pair of boxer shorts covered her face. Her vaginal area was exposed and bloodied.
Next to L.G.'s body the police found clothing and a bloodstained paper towel. Nearby, they recovered defendant's gym bag that contained his wallet, and inside the wallet was defendant's social security card. Other documents identifying defendant were found in the area, as well as a paper bag and beer bottle that contained defendant's latent fingerprints.
Police apprehended defendant the next day and took him to police headquarters for interrogation. Defendant waived his Miranda rights but initially denied any involvement in L.G.'s death. After being confronted with the incriminatory evidence already gathered and informed that a court order would be sought to obtain additional evidence from his person, defendant acknowledged responsibility for L.G.'s death.
Defendant stated, however, that L.G.'s death was accidental and that he was drunk when he strangled her. According to defendant, he saw L.G. playing in the backyard of M.W.'s house, lifted her over the fence, and led her to the area under the porch of the abandoned house. Using a condom, he forcibly engaged in sexual intercourse with L.G., and then strangled her, leaving her body underneath the porch. He discarded the condom in a nearby field. Defendant then signed a written statement acknowledging that while lying on top of L.G., with his hands on her neck, he penetrated her vaginally causing her to bleed and resulting in blood stains on his clothes.
An autopsy demonstrated that L.G. died of asphyxiation. The medical examiner concluded that she had been strangled for between four and six minutes. The autopsy also revealed injuries to L.G.'s vagina, cervix, and anal canal.
Substantially on the basis of those facts, a Monmouth County jury convicted defendant of kidnapping, aggravated sexual assault, felony murder, and capital murder.
At the ensuing penalty phase before the same jury, the State relied on three aggravating factors: (1) that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind, N.J.S.A. 2C:11-3c(4)(c); (2) that the murder occurred during the commission of an aggravated sexual assault or kidnapping, N.J.S.A. 2C:11-3c(4)(g); and (3) that the purpose of the murder was to escape detection or apprehension, N.J.S.A. 2C:11-3c(4)(f).
Defendant presented substantial mitigating evidence focusing on his tragic childhood and resulting emotional disturbance. Pursuant to the "catch-all" mitigating factor, defendant submitted evidence of eighteen mitigating circumstances relating primarily to his flawed upbringing and its effect on his emotional development and behavior.
Defendant's mitigating evidence demonstrated that his sixteen-year-old mother drank heavily during her pregnancy. Defendant was born with heart and respiratory ailments, and he spent the fifty-four days following his birth in the hospital. During that period his parents allegedly visited him only three times. Because of infectious and other congenital conditions, defendant was hospitalized on nine other occasions before his first birthday and required heart surgery when he was two. Defendant's father was addicted to alcohol and drugs and was a diagnosed schizophrenic. He often abused defendant's mother and once broke her arm in defendant's presence. When defendant was two years old, his father was imprisoned for raping two of defendant's older cousins.
*1006 Defendant's mother, also an alcoholic, apparently was incapable of providing defendant with normal maternal affection. She disclaimed her maternity, referring to defendant as the child of his paternal grandmother. She was violent and abusive to defendant, on one occasion dangling him out of an apartment window.
When defendant was eight years old, he told his social worker that he wanted to be removed from his home. When he was nine years old, his mother died in an automobile accident. By age eleven, defendant had lived with at least ten different caregivers, including various relatives and foster parents. In many of those placements defendant was exposed to violence and substance abuse.
Several experts testified on defendant's behalf that his sickly and unstable childhood, his exposure to violence, abuse and neglect, and the lack of any affectionate relationship with his mother had reduced his ability to understand cause and effect, limited his capacity to empathize with others, and rendered him hostile, aggressive, and prone to violence. In addition, expert testimony was presented relating defendant's emotional disturbance as an adult to his flawed and oppressive childhood.
The jury unanimously determined that defendant had committed the murder to escape detection, N.J.S.A. 2C:11-3c(4)(f), and had done so in the course of committing aggravated sexual assault and kidnapping, N.J.S.A. 2C:11-3c(4)(g). The jury rejected the State's contention that the murder had involved torture or an aggravated battery. N.J.S.A. 2C:11-3c(4)(c).
Concerning the mitigating factors proffered by defendant:
Some or all of the jurors found the following mitigating factors: (1) that defendant had been denied nurturing as an infant (6 jurors); (2) that he had been born to drug and alcohol-dependent parents (12 jurors); (3) that drinking by his mother during pregnancy had contributed to defendant's physical and developmental disabilities (2 jurors); (4) that his father had abused members of the family when defendant was an infant, thereby exposing him to violent and abusive behavior (8 jurors); (5) that his mother had abandoned him with relatives throughout his youth (3 jurors); (6) that his mother had neglected and abused him because of her own upbringing and dependence on alcohol (10 jurors); (7) that throughout his childhood, he had been exposed to excessive amounts of domestic violence and substance abuse (10 jurors); (8) that he had suffered through multiple placements and periodically had attended 11 different schools (10 jurors); (9) that he had been denied consistent treatment throughout childhood despite identification of emotional and psychological problems (3 jurors); (10) that his background had increased significantly his risk of engaging in substance abuse and antisocial behavior (8 jurors); (11) that he had been allowed to abuse drugs and alcohol at an early age (6 jurors); (12) that he had begun acting out during his childhood because of unresolved and untreated emotional disturbances (6 jurors); (13) that during his childhood, he had been exposed periodically to an unstable father (6 jurors); (14) that he had been deprived of a stable nurturing home throughout his childhood (5 jurors); (15) that he had not been provided with recommended and necessary therapy (4 jurors); and (16) that the sudden death of his mother had left him with unresolved grief issues that were not addressed through therapy (6 jurors).
[ Cooper, supra, 151 N.J. at 346 , 700 A. 2d 306 .]
The following two mitigating factors were unanimously rejected by the jury: (1) that defendant had been denied exposure to proper role models during his childhood; and (2) the "any other reasons not mentioned" factor.
The jury unanimously found that the two aggravating factors together out-weighed *1007 the mitigating factors beyond a reasonable doubt. Accordingly, defendant was sentenced to death.
As noted above, this Court affirmed defendant's conviction for capital murder and his death sentence, and also affirmed his kidnapping conviction and sentence. We vacated his conviction for aggravated sexual assault, ordering that that conviction must merge with the kidnapping conviction. Cooper, supra, 151 N.J. at 406 , 700 A. 2d 306 . This Court also ordered the Administrative Office of the Courts (AOC) to update its database to facilitate proportionality review in this case, as well as in State v. Harvey , and State v. Chew . On December 3, 1997, the AOC issued its revised statistical report ( CCH Report ) formed from a database that included all death-eligible defendants sentenced through July 31, 1997.
II
Proportionality Review
In our recent opinion in State v. Loftin, 157 N.J. 253, 266-77 , 724 A. 2d 129 (1999) ( Loftin II ), we briefly summarized the history of proportionality review in the United States as well as in New Jersey. As noted in Loftin II, we trace our overview of the fundamental objectives of proportionality review back to this Court's seminal decision in State v. Ramseur, 106 N.J. 123 , 524 A. 2d 188 (1987):
Proportionality review has a function entirely unique among the review proceedings in a capital proceeding. Proportionality review, in the context of a capital sentencing scheme, is not appellate review to ensure that the aggravating factors outweigh beyond a reasonable doubt all the mitigating factors, L. 1985, c. 178, or to determine if the death sentence is disproportionate to the crime in violation of the ban against cruel and unusual punishment. That death is not disproportionate in the sense of being a cruel and unusual punishment is presumed by the nature of the review.
Rather, the purpose of review here is "of a different sort.... It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime."
[ Id. at 326, 524 A. 2d 188 (quoting Pulley v. Harris, 465 U.S. 37, 43 , 104 S.Ct. 871, 875 , 79 L.Ed. 2d at 29, 36 (1984)).]
Accordingly, the purpose of proportionality review is to determine whether a specific defendant's death sentence "is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." N.J.S.A. 2C:11-3(e). In conducting proportionality review our principle inquiry is whether "the punishment fits the criminal," State v. Marshall, 130 N.J. 109, 129 , 613 A. 2d 1059 (1992) ( Marshall II ), cert. denied, 507 U.S. 929 , 113 S.Ct. 1306 , 122 L. Ed. 2d 694 (1993), and our objective is to "ensure that the death penalty is being administered in a rational, non-arbitrary, and evenhanded manner, fairly, and with reasonable consistency." Id. at 131, 613 A. 2d 1059 .
A collateral objective of proportionality review is to ensure that prosecutorial and jury decisions in capital causes are free from discrimination based on race, gender, socio-economic status or other impermissible factors. In Ramseur, supra, we observed:
Proportionality review further acts "as a check against the random and arbitrary imposition of the death penalty" by an aberrant jury. "[G]iven the emotions generated by capital crimes, it may well be that juries, trial judges, and appellate courts considering sentences of death [may be] affected by impermissible considerations." Discrimination on the basis of race, sex, or other suspect characteristic cannot be tolerated.... Proportionality review therefore is a means through which to monitor the imposition of death sentences and thereby to prevent any impermissible discrimination *1008 in imposing the death penalty.
[ 106 N.J. at 327 , 524 A. 2d 188 (citations omitted).]
In conducting proportionality review, we have relied substantially on the Final Report of our first Special Master, David C. Baldus, Death Penalty Proportionality Review Project, Final Report to the New Jersey Supreme Court (Sept. 24, 1991) ( Final Report ). In Marshall II, supra, we explained the analytical process underlying our selection of a pool of cases, out of the entire universe of death-eligible homicides, to be used as a basis of comparison with a specific death-sentenced defendant's case in determining whether that defendant's death sentence is disproportionate. 130 N.J. at 141-45 , 613 A. 2d 1059 . We generally have adhered to the analytical framework set forth in Marshall II and in subsequent proportionality review decisions. See, e.g., State v. Bey, 137 N.J. 334, 343-65 , 645 A. 2d 685 (1994) ( Bey IV ), cert. denied, 513 U.S. 1164 , 115 S.Ct. 1131 , 130 L.Ed. 2d 1093 (1995); State v. Martini, 139 N.J. 3, 20-51 , 651 A. 2d 949 (1994) ( Martini II ), cert. denied, 516 U.S. 875 , 116 S.Ct. 203 , 133 L.Ed. 2d 137 (1995); State v. Di-Frisco, 142 N.J. 148 , 662 A. 2d 442 (1995) ( DiFrisco III ), cert. denied, 516 U.S. 1129 , 116 S.Ct. 949 , 133 L.Ed. 2d 873 (1996).
Our basic methodology for conducting proportionality review encompasses two distinct approaches: first, we use a frequency analysis that includes both mathematical and statistical calculations to compare defendant's case to other cases with similar fact patterns or similar levels of culpability in order to ascertain the rate of death sentencing in those similar cases; second, we engage in precedent-seeking review in which we compare all relevant factors in factually similar cases to determine whether defendant's death sentence appears to be disproportionate in comparison to the sentences imposed on other defendants who committed comparable homicides. In our prior proportionality review decisions we have found it appropriate to place greater reliance on precedent-seeking review than on frequency analysis, noting that the process of precedent-seeking review is one familiar to us as judges and is not vulnerable to the concerns about reliability that burden frequency analysis. Loftin II, supra, 157 N.J. at 277 , 724 A. 2d 129 ; DiFrisco III, supra, 142 N.J. at 184 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 46 , 651 A. 2d 949 .
In its current formulation frequency analysis is a methodology that uses simple mathematical and complex statistical principles to determine the frequency with which defendants who committed offenses similar to that committed by the subject defendant, or who possess a comparable level of blameworthiness to that defendant, are sentenced to death. Frequency analysis combines two different approaches, the salient-factors test and the index-of-outcomes test. Prior to Loftin II, supra, frequency analysis also included the numerical-preponderance-of-aggravating-and-mitigating-factors test, which compared a death-sentenced defendant's case to other death-eligible prosecutions having the same number of aggravating and mitigating factors. In Loftin II , the Court concluded that that test "has not contributed to the Court's proportionality reviews and, in light of its inherent flaws, cannot be expected to do so in the future." 157 N.J. at 295 , 724 A. 2d 129 . Accordingly, the Court abandoned the numerical-preponderance-of-aggravating-and-mitigating-factors test. Ibid.
The salient-factors test uses the AOC's database in which the universe of death-eligible cases is subdivided into various categories and subcategories, ranked in descending order of blameworthiness, and derived from the statutory aggravating factors. [1] Final Report at 81-82. The *1009 AOC assigns each defendant to one of the thirteen major categories. Each of these categories includes two to seven subcategories that aggravate or mitigate the blameworthiness of defendants included in the primary category.
In applying the salient-factors test, we compare defendant's death sentence to the sentences imposed in factually similar cases within the same primary category in order to ascertain the frequency with which death sentences generally are imposed in such cases. A demonstration that the death sentence is regularly or frequently imposed suggests that there may exist a societal consensus that the death penalty is an appropriate punishment for that category of homicides. Although we consider the salient-factors test to be the most persuasive of the frequency tests, DiFrisco III, supra, 142 N.J. at 173 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 33 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 353 , 645 A. 2d 685 , we are aware that the small sample sizes of the comparison groups, a consequence of the Special Master's decision to create a relatively large number of comparison groups, limits the value and significance of the salient-factors test. Loftin II, supra, 157 N.J. at 293 , 724 A. 2d 129 ; DiFrisco III, supra, 142 N.J. at 174 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 37-38 , 651 A. 2d 949 .
The index-of-outcomes test attempts to compare the death-sentenced defendant's case to other cases involving defendants with comparable qualities of blameworthiness, taking into account both statutory and non-statutory factors. The blameworthiness of defendants is compared on the basis of "statistically-relevant measures of culpability found in the circumstances of their cases, such as the infliction of severe pain or suffering, the existence of a contemporaneous sexual assault or robbery, or the prior commission of murder." Martini II, supra, 139 N.J. at 42 , 651 A. 2d 949 . The AOC prepares tables grouping cases in five levels of culpability based on statistically-predicted probabilities of a return of a death sentence. We then derive the actual probabilities of death sentences for cases in each culpability level, and apply that statistical data to assess the proportionality of the subject defendant's death sentence. However, the Court has recognized that "the small sample size of cases with similar levels of blameworthiness and the great ranges in the confidence intervals preclude[ ] us from giving weight to these findings." DiFrisco III, supra, 142 N.J. at 182 , 662 A. 2d 442 . Moreover, the AOC's memorandum to the Court accompanying the CCH Report, cautions us that "the culpability estimate which purports to give a `predicted probability of a death sentence' is often still too soft, and little substantive reliance should be given to this statistic in the Chew, Cooper, and Harvey cases." As noted in Loftin II, supra, "we are uncertain whether we will soon reach a sample size capable of supporting reliable results in these models." 157 N.J. at 296 , 724 A. 2d 129 .
A. The Universe of Cases
In order to conduct proportionality review we must establish the universe of cases to which defendant's case will be compared. In 1992, the Legislature amended N.J.S.A. 2C:11-3e to restrict the comparative group to only those cases in *1010 which a jury had imposed a death sentence. L. 1992, c. 5, § 1. In previous proportionality review cases in which defendants' appeals from death sentences were pending prior to the Legislature's enactment, we declined to apply the amendment. See State v. Harvey III, 159 N.J. 277, 291 , 731 A. 2d 1121 ; DiFrisco III, supra, 142 N.J. at 162-63 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 23 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 343-44 , 645 A. 2d 685 ; Marshall II, supra, 130 N.J. at 119 , 613 A. 2d 1059 . Instead, we applied the pre-1992 proportionality review provision of N.J.S.A. 2C:11-3e, pursuant to which we held that the appropriate universe included all cases in which a death penalty had been sought or imposed and also "clearly death eligible homicides in which the prosecutor elected not to seek the death penalty." Marshall II, supra, 130 N.J. at 137 , 613 A. 2d 1059 .
However, in Loftin II, supra, we were confronted with a defendant who, as in this case, was convicted of capital murder after the effective date of the 1992 amendment. We addressed in Loftin II the potential conflict between the 1992 amendment and this Court's constitutionally prescribed duty to define the appropriate scope of appellate review in capital causes. We explained that although the determination of the appropriate scope of appellate review in death penalty cases is "an unqualified and exclusive function of the judiciary," Loftin II, supra, 157 N.J. at 284 , 724 A. 2d 129 , the exclusivity of the Court's power need not necessarily preclude an accommodation of the views of the Legislature. Id. at 284-87, 724 A. 2d 129 . We observed that the critical issue to be determined was whether the Legislature's limitation on the size of the universe for proportionality review would prevent effective appellate review of death penalty cases. Because we decided in Loftin II to refer various issues concerning proportionality review to Judge David Baime to make fact findings and recommendations to the Court by May 14, 1999, we deferred any decision concerning the application of the 1992 amendment until the Court received Judge Baime's report. In the interim, the Court has decided to continue to use the full universe of death-eligible cases in its conduct of proportionality review. Id. at 287 , 724 A. 2d 129 . [2]
We also continue to adhere to our determinations in earlier proportionality review cases that death-sentenced cases reversed on appeal because of procedural, burden-of-proof, or Gerald -type errors should be included in the category of death-sentenced cases. (A Gerald error is one in which a death sentence followed a conviction of capital murder that, because of an imprecise jury charge, could have been based on a jury finding that the defendant purposely or knowingly caused serious bodily injury that resulted in death, instead of a finding that defendant purposely or knowingly caused death. See State v. Gerald, 113 N.J. 40, 90 , 549 A. 2d 792 (1988)). We explained that such errors "affect the procedural fairness of the trial, not the substance of the crime, [and] `do not necessarily bear on the jury's determination of deathworthiness.'" Martini II, supra, 139 N.J. at 26 , 651 A. 2d 949 (quoting Bey IV, supra, 137 N.J. at 347 , 645 A. 2d 685 ). For the reasons detailed in our earlier cases we continue to include those reversed death-sentenced cases as death-sentenced cases for purposes of proportionality review. See Harvey III, supra, 159 N.J. at 291-92, 731 A. 2d 1121 ; DiFrisco III, supra, 142 N.J. at 164-65 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 25-27 , 651 A. 2d 949 ; Bey IV, supra, 137 *1011 N.J. at 345-47, 645 A. 2d 685 ; Marshall II, supra, 130 N.J. at 194 n. 10, 613 A. 2d 1059 .
For purposes of frequency review, we present two sets of calculations of the rate of death sentencing, one calculation including the defendant, and the other excluding him. "Using two sets of data, one including defendant's case and one excluding it, will give us the broadest picture of societal standards while alerting us to the bias produced by including defendant's case." DiFrisco III, supra, 142 N.J. at 165 , 662 A. 2d 442 (quoting Martini II, supra, 139 N.J. at 28 , 651 A. 2d 949 ).
The universe of cases, however, excludes the twenty-three cases that were not death-eligible but nevertheless proceeded to a penalty-phase hearing. Marshall II, supra, 130 N.J. at 138 , 613 A. 2d 1059 ; CCH Report, tbls. 2,3.
B. Adjustments In Comparison Group
The AOC has grouped the death-eligible defendants that comprise our proportionality-review database into various categories and subcategories, on the basis of the aggravating factors found by the jury in those cases tried to a penalty phase, or on the basis of the aggravating factors alleged or apparently present in cases not tried to a penalty phase. See CCH Report, tbl.7. The basic categories and subcategories are derived from the first Special Master's report adopted by the Court. Final Report at 80-84. We previously have acknowledged that we will "defer generally to the AOC's expertise, and particularly to its unique assignment of defendants to only one comparison category." DiFrisco III, supra, 142 N.J. at 167 , 662 A. 2d 442 .
The AOC has assigned defendant to subcategory C-1, which comprises murders committed in conjunction with sexual assaults characterized by particular violence and terror, but excludes homicides by prior murderers or those involving multiple victims. That subcategory includes forty defendants, a relatively large comparison group. Defendant contends that for purposes of the salient-factors evaluation, as well as for purposes of precedent-seeking review, the defendants in the C-2 subcategory (entitled "other with one or more additional statutory aggravating circumstances") are virtually indistinguishable from those in the C-1 category. We note that nine defendants are included in the C-2 subcategory, and an additional three defendants are included in the C-3 subcategory (entitled "other"), the last of the subclassifications in the composite "C" category of sexual assaults without multiple victims or prior murder convictions. We previously have performed the salient-factors test using both the assigned subcategory as well as the composite category, see DiFrisco III, supra, 142 N.J. at 174 , 662 A. 2d 442 ; Bey IV, supra, 137 N.J. at 353-58 , 645 A. 2d 685 , and we will do so in this appeal. Concerning defendant's contention that the pool of comparison cases for purposes of precedent-seeking review also should be expanded, we address that question in the course of our discussion of precedent-seeking review. Infra at 92-94, 731 A. 2d at 1021-22.
The State objects to the inclusion of four defendants in the subcategory to which defendant is assigned: James Koedatich 2, James Henry Hampton, James Zola 1B, and Kevin Jackson 1B. We agree with the State's contention that Koedatich and Hampton should be excluded. Although in its prosecution of Koedatich for murder and kidnapping the State alleged as aggravating factors that defendant murdered the victim in the course of a sexual assault, as well as to escape detection for sexual assault, the jury found neither of those aggravating factors. Accordingly, that case should not have been assigned to the sexual assault-murder category. Similarly, defendant James Henry Hampton murdered his victim after she apprehended him in an attempt to burglarize a horse barn, but the State did not allege that he sexually assaulted the victim. His case also should be excluded from the sexual-assault murder category.
*1012 Concerning defendant Kevin Jackson, after this Court reversed his murder conviction and death sentence he was retried and convicted of murder, theft, and aggravated sexual assault, although the State alleged only the c(4)(c) (torture and depravity) aggravating factor. We are satisfied that the strong evidence that defendant attempted to sexually assault his victim warrants inclusion of his case in the sexual-assault murder category. Similarly, in the James Zola case there was conflicting evidence on whether defendant sexually assaulted the victim, but this Court affirmed Zola's conviction for capital murder and aggravated sexual assault. We will not disturb the AOC's assignment of Zola to the sexual-assault murder category.
C. Salient-Factors Test
As noted, the salient-factors test attempts to measure the proportionality of a defendant's death sentence by determining the frequency with which factually similar cases culminate in a death sentence. We generally have regarded the salient-factors test as the most persuasive of the frequency-analysis tests because the cases compared are factually analogous to the case of the defendant seeking review. Harvey III, supra, 159 N.J. at 301, 731 A. 2d 1121 ; DiFrisco III, supra, 142 N.J. at 173 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 33 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 353 , 645 A. 2d 685 ; Marshall II, supra, 130 N.J. at 168 , 613 A. 2d 1059 .
Defendant Cooper has been assigned to subcategory C-1, designated "sexual assault with particular violence/terror" (but excluding defendants who murdered multiple victims or who were previously convicted of murder). CCH Report, tbl. 7. Of the thirty-eight death eligible cases in that subcategory, nineteen proceeded to the penalty phase and eight defendants, including Cooper, were sentenced to death. Accordingly, including defendant, the death-sentencing rate for all sexual-assault murders that we include in the C-1 subcategory is twenty-one percent, and for those advancing to a penalty phase the rate is forty-two percent. Those percentages may be compared with the overall death-sentencing rate of twelve percent for all death-eligible cases in the universe, and the death-sentencing rate of thirty-one percent for all death-eligible cases that advance to the penalty phase. Repeating the same comparisons without including defendant's case in the C-1 category does not significantly affect the death sentencing rates. The following table summarizes the result of the salient-factors test as applied to the C-1 category:
SALIENT-FACTORS TEST: C-1 SUBCATEGORY
(data from CCH Report, tbl. 7)
Death-Sentencing Rate Death-Sentencing Rate Proportion of Cases
at Penalty Trial for All Eligible Cases Advancing to
P-Trial
C-1 Incl. D 42% (8/19) 21% (8/38) 50% (19/38)
C-1 Excl. D 39% (7/18) 19% (7/37) 49% (18/37)
All Ds 31% (50/163) 12% (50/401) 41% (163/401)
All Ds but D 30% (49/162) 12% (49/400) 41% (162/400)
Applying the salient-factors test to the composite "C" category results in the addition of twelve cases (nine cases from subcategory C-2 and three cases from subcategory C-3). The resulting death-sentencing rate at penalty-trial cases is thirty-eight percent and the death-sentencing rate for all death-eligible cases is eighteen percent, both percentages being slightly lower than the analogous death-sentencing rates for the C-1 category. The following table depicts the result of the salient-factors test as applied to category "C" death-penalty cases:
*1013
SALIENT-FACTORS TEST: "C" CATEGORY
(data from CCH Report, tbl. 7)
Death-Sentencing Rate Death-Sentencing Rate Proportion of Cases
at Penalty Trial for All Eligible Cases Advancing to
P-Trial
C Incl. D 38% (9/24) 18% (9/50) 48% (24/50)
C Excl. D 34% (8/23) 16% (8/49) 47% (23/49)
All Ds .31% (50/163) 12% (50/401) .41% (163/401)
All Ds but D .30% (49/162) 12% (49/400) .41% (162/400)
The foregoing charts summarizing the application of the salient-factors test to defendants who sexually assault and murder their victims demonstrate that such defendants often are sentenced to death, and that their rate of death-sentencing significantly exceeds the death-sentencing rate for all death-eligible homicides, and also significantly exceeds the death-sentencing rate for all homicides that advance to a penalty trial. Moreover, we note that the result of the salient-factors test as applied to defendant is comparable to the results obtained from that test in other proportionality review cases in which we found no disproportionality. See DiFrisco III, supra, 142 N.J. at 172-74 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 33-38 , 651 A. 2d 949 . We are unable to conclude that application of the salient-factors test to defendant Cooper demonstrates that his death sentence is disproportionate.
D. Index-of-Outcomes Test
The index-of-outcomes approach attempts "to identify those characteristics that establish the degree of a defendant's blameworthiness," considering both statutory and non-statutory factors. Martini II, supra, 139 N.J. at 41 , 651 A. 2d 949 . In applying this test we seek "to identify the characteristics common to the cases in terms of their degree of blameworthiness as perceived by prosecutors and juries." Marshall II, supra, 130 N.J. at 172 , 613 A. 2d 1059 . To facilitate application of this test, the AOC "organizes cases according to statistically-relevant measures of culpability, such as the infliction of severe physical pain or mental suffering on the victim, a contemporaneous sexual assault or robbery, and the commission of a prior murder." Bey IV, supra, 137 N.J. at 362 , 645 A. 2d 685 . In contrast to the salient-factors test, "in the index-of-outcomes test we compare cases that are factually dissimilar but that are nevertheless comparable from the perspective of the defendants' blameworthiness." Martini II, supra, 139 N.J. at 42 , 651 A. 2d 949 . Moreover, unlike the salient-factors test in which the AOC simply calculates and compares death-sentencing ratios, the index-of-outcomes test uses a multiple-regression analysis, a process we explained in Martini II, supra, 139 N.J. at 31-32 , 651 A. 2d 949 :
We pause here for a brief explanation of some technical terms. A regression analysis uses an algebraic model to represent a decision-making process by showing the influence of an independent variable on a dependent variable. Here, the decision-making process represented is the sentencing determination. The independent variable, which, once designated, does not change, represents a factor such as a prior murder or a contemporaneous sexual assault that is believed to influence the result of the decision-making. The dependent variable is influenced by the presence or absence of an independent variable, and here represents the decision whether to sentence capitally. A multiple regression analysis simply includes more than one independent variable in the algebraic model.
Because the results produced by the regression models are of uncertain reliability, we use the predicted probability *1014 of death sentences that those models generate only for purposes of comparison and guidance. We do not accord them final or determinative weight.
On the basis of its multiple-regression analysis, the AOC has prepared tables that group defendants in five levels of culpability based on the predicted probability of the imposition of a death sentence. Each defendant receives a culpability score ranging from a low of .00 to a high of .99, and based on that score the defendants are assigned to one of the five culpability levels. Each level represents one-fifth of the range of culpability scores. Defendants with culpability scores that range between.00000 and .19999 comprise level one, those with scores between .20000 and .39999 form level two, and so forth.
Four multiple regressions encompass the index-of-outcomes test. See DiFrisco III, supra, 142 N.J. at 179-82 , 662 A. 2d 442 . The first regression considers both statutory and non-statutory factors in the penalty-trial universe. Id. at 179-80, 662 A. 2d 442 . The second appraises the same factors but uses the full universe. Id. at 180-81 , 662 A. 2d 442 . Statutory aggravating and mitigating factors are the only variables in the other regressions. Id. at 181-82 , 662 A. 2d 442 . Like the first two regressions, the third and fourth regressions employ the penalty-trial universe and the full universe, respectively. Ibid.
Preliminarily, we take note of several deficiencies in the index-of-outcomes test. Perhaps the most troublesome deficiency is the inconsistency of the results of the four regressions. Defendant Cooper's culpability scores range from a ten percent predicted probability of a death sentence in the death-eligible universe considering both statutory and non-statutory factors to a forty-three percent predicted probability of a death sentence in the penalty-trial universe considering only statutory factors. We previously have taken note of the inconsistent results of the four regressions in other proportionality-review decisions. See DiFrisco III, supra, 142 N.J. at 182 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 45 , 651 A. 2d 949 .
In addition, the large confidence intervals applicable to defendant's culpability scores substantially qualify the accuracy of the predicted probability that defendant would be sentenced to death. Accordingly, those culpability scores may not accurately reflect the likelihood that defendant would receive a death sentence. As we explained in DiFrisco III, supra, 142 N.J. at 179-80 , 662 A. 2d 442 :
The probability range, or more appropriately, the confidence interval, is delineated by upper and lower limits and is established by a ninety-five percent confidence interval. That means we are ninety-five percent certain that all defendants with characteristics similar to [defendant] will have a predicted probability of receiving a death sentence [within the probability range]; the smaller the confidence interval, the more reliable the predicted probability.
Thus, in the first regression that considers statutory and non-statutory factors for the penalty-trial universe, the reliability of defendant's thirty-five percent predicted probability of a death sentence is undermined by the large confidence interval range of nine percent to seventy-five percent. The range of the confidence intervals in the other regressions is significantly smaller.
A more fundamental flaw in the index-of-outcomes test is that the AOC's models do not take into account the fact that the victim of defendant's homicide was a six-year-old girl. None of the statutory aggravating factors focus on the age of a victim, and the non-statutory factors included in the AOC's models do not evaluate a defendant's blameworthiness on the basis of the victim's age. Accordingly, the value of the index-of-outcomes test in assessing the proportionality of defendant's death sentence is limited by the recognition that the test undoubtedly underestimates *1015 defendant's predicted probability of a death sentence.
The results of the index-of-outcomes test are reported on two charts. The first chart reports the results for defendant Cooper, and defendants Harvey, Chew, Loftin, DiFrisco, Martini, Bey, and Marshall under the CCH Report database. The results for all four regressions are reported for each defendant. For each regression, the table shows the culpability score, the confidence interval, the culpability level, and the death-sentencing rate that corresponds to the culpability level.
The second chart differs from the first chart in one respect: it does not use the same database for every defendant. Instead, in the second chart, the data reported for each defendant is the data this Court had used at each defendant's proportionality review. For example, the data used for Martini is derived from the Martini Report.
The index-of-outcome test results are as follows:
INDEX-OF-OUTCOME TEST RESULTS CHART I
(data from CCH Report, tbls. 13-14, 21-25
Statutory & Statutory
Nonstatutory Factors Factors Only
Penalty Trial Death-Eligible Penalty Trial Death-Eligible
Cooper
Predicted Probability .35 .10 .43 .19
of Death Sentence
Range (.09 to .75) (.03 to .30) (.23 to .65) (.08 to .38)
Culpability Level 2 1 3 1
Death-Sentencing Rate .26(6/23) .05(18/334) .45(13/29) .05(15/318)
Harvey
Predicted Probability .35 .13 .43 .19
of Death Sentence
Range (.12 to .69) (.05 to .32) (.23 to .65) (.08 to .38)
Culpability Level 2 1 3 1
Death-Sentencing Rate .26(6/23) .05(18/334) .45(13/29) .05(15/318)
Chew
Predicted Probability .67 .19 .90 .47
of Death Sentence
Range (.22 to .94) (.02 to .72) (.51 to .99) (.09 to .88)
Culpability Level 4 1 5 3
Death-Sentencing Rate .75(9/12) .05(18/334) .76(13/17) .52(9/17)
*1016
Statutory & Statutory
Nonstatutory Factors Factors Only
Penalty Trial Death-Eligible Penalty Trial Death-Eligible
Loftin
Predicted Probability .21 .44 .72 .53
of Death Sentence
Range (.01 to .92) (.12 to .83) (.26 to .95) (.17 to .85)
Culpability Level 2 3 4 3
Death-Sentencing Rate .26(6/23) .55(6/11) .63(12/19) .52(9/17)
DiFrisco
Predicted Probability .68 .19 .46 .19
of Death Sentence
Range (.24 to .93) (.02 to .78) (.08 to .89) (.01 to .84)
Culpability Level 4 1 3 1
Death-Sentencing Rate .75(9/12) .05(18/334) .45(13/29) .05(15/318)
Martini
Predicted Probability .81 .09 .26 .12
of Death Sentence
Range (.36 to .97) (.02 to .32) (.09 to .55) (.04 to .31)
Culpability Level 5 1 2 1
Death-Sentencing Rate .77(23/30) .05(18/334) .31(10/32) .05(15/318)
Bev
Predicted Probability .65 .38 .74 .40
of Death Sentence
Range (.22 to .93) (.12 to .74) (.40 to .92) (.18 to .68)
Culpability Level 4 2 4 3
Death-Sentencing Rate .75(9/12) .33(10/30) .63(12/19) .52(9/17)
Marshall
Predicted Probability .68 .19 .46 .19
of Death Sentence
Range (.15 to .95) (.00 to .87) (.12 to .94) (.03 to .82)
Culpability Level 4 1 3 2
Death-Sentencing Rate .75(9/12) .05(18/334) .45(13/29) .26(12/45)
INDEX-OF-OUTCOME TEST RESULTS CHART II
(data from CCH Report, tbls. 13-14, 21-25
Loftin Report, tbls. 13-14, 21-25, DiFrisco
III, Martini II, Bev IV, and Marshall II Report
Statutory & Statutotry
Nonstatutory Factors Factors Only
Penalty Trial Death-Eligible Penalty Trial Death-Eligible
Cooper (CCH Report)
Predicted Probability .35 .10 .43 .19
of Death Sentence
Range (.09 to .75) (.03 to .30) (.23 to .65) (.08 to .38)
Culpability Level 2 1 3 1
Death-Sentencing Rate .26(6/23) .05(18/334) .45(13/29) .05(15/318)
Harvey (CCH Report)
Predicted Probability .35 .13 .43 .19
of Death Sentence
Range (.12 to .69) (.05 to .32) (.23 to .65) (.08 to .38)
Culpability Level 2 1 3 1
Death-Sentencing Rate .26(6/23) .05(18/334) .45(13/29) .05(15/318)
Chew (CCH Report)
Predicted Probability .67 .19 .90 .47
of Death Sentence
Range (.22 to .94) (.02 to .72) (.51 to .99) (.09 to .88)
Culpability Level 4 1 5 3
Death-Sentencing Rate .75(9/12) .05(18/334) .76(13/17) .52(9/17)
Loftin (Loftin Report)
Predicted Probability .14 .38 .66 .46
of Death Sentence
Range (.00 to .94) (.09 to .81) (.21 to .93) (.13 to .82)
Culpability Level 1 2 4 3
Death-Sentencing Rate .07(5/74) .38(14/37) .70(14/20) .57(8/14)
*1017
Statutory & Statutory
Nonstatutory Factors Factors Only
Penalty Trial Death-Eligible Penalty Trial Death-Eligible
DiFrisco (DiFrisco Report)
Predicted Probability .74 .11 .43 .23
of Death Sentence
Range (.29 to .95) (.00 to .86) (.09 to .87) (.03 to .76)
Culpability Level 4 1 3 2
Death-Sentencing Rate .57(4/7) .04(11/260) .61(11/18) .52(11/21)
Martini (Martini Report)
Predicted Probability .88 .05 .15 .08
of Death Sentence
Range (.25 to .99) (.01 to .30) (.03 to .51) (.02 to .27)
Culpability Level 5 1 1 1
Death-Sentencing Rate .88(23/26) .04(10/248) .05(3/58) .05(12/249)
Bev (Martini Report)
Predicted Probability .81 .47 .62 .33
of Death Sentence
Range (.35 to .97) (.10 to .88) (.16 to .94) (.10 to .68)
Culpability Level 5 3 4 2
Death-Sentencing Rate .75(9/12) .33(10/30) .63(12/19) .52(9/17)
Bev (Bev Report)
Predicted Probability .76 .51 .67 .25
of Death Sentence
Range (.13 to .99) (.09 to .92) (.14 to .96) (.07 to .61)
Culpability Level 4 3 4 2
Death-Sentencing Rate .43(3/7) .57(4/7) .83(10/12) .58(11/19)
Marshall (Marshall Report)
Predicted Probability .50 .17 .52 .27
of Death Sentence
Range (.04 to .96) (.00 to .92) (.10 to .92) (.02 to .86)
Culpability Level 3 1 3 2
Death-Sentencing Rate .67(8/12) .03(5/178) .71(12/17) .52(12/23)
In the regression that considers both statutory and non-statutory factors for cases in the penalty-trial universe, defendant's predicted probability of receiving a death sentence is thirty-five percent. CCH Report, tbl. 22. The confidence interval extends from nine percent to seventy-five percent. Ibid. In other words, we are ninety-five percent certain that a defendant with characteristics identical to defendant's would have an actual, rather than predicted, probability of receiving a death sentence of between nine percent and seventy-five percent. Defendant's culpability score of thirty-five percent places him in culpability level two. Ibid. Defendants in that culpability level have received a death sentence twenty-six percent (6/23) of the time. CCH Report, tbl. 21.
Although most defendants whose cases were not found to be disproportionate have had higher scores on this regression than defendant, see DiFrisco III, supra, 142 N.J. at 180 , 662 A. 2d 442 (reporting seventy-four percent predicted probability of death sentence); Martini II, supra, 139 N.J. at 43 , 651 A. 2d 949 (reporting eighty-eight percent predicted probability); Bey IV, supra, 137 N.J. at 362-63 , 645 A. 2d 685 (reporting eighty-one percent predicted probability in Martini Report and seventy-six percent predicted probability in Bey Report ); Marshall II, supra, 130 N.J. at 173 , 613 A. 2d 1059 (reporting fifty percent predicted probability), defendant's culpability score exceeds Loftin's, see Loftin II, supra, 157 N.J. at 331 , 724 A. 2d 129 (reporting fourteen percent predicted probability in Loftin Report and twenty-one percent predicted probability in CCH Report ), and equals Harvey's score, see *1018 Harvey III, supra, 159 N.J. at 305, 731 A. 2d 1121 (reporting thirty-five percent predicted probability).
When the same variables are considered in the full universe, defendant's culpability score falls to ten percent, and the confidence interval ranges from three percent to thirty percent. CCH Report, tbl. 14. Accordingly, defendant's case occupies culpability level one, at which only five percent (18/334) of the defendants have been sentenced to death. CCH Report, tbl. 13. That result reveals a low probability of death. The five percent rate at which those in defendant's culpability level receive death sentences is less than half the overall death-sentencing rate.
However, this Court has found not disproportionate Martini's death sentence although his culpability score in the same regression was lower than defendant's. See Martini II, supra, 139 N.J. at 43 , 651 A. 2d 949 (reporting five percent predicted probability). Moreover, this Court upheld the death sentences of two other defendants who had culpability scores that were very similar to defendant's. See Harvey III, supra, 159 N.J. at 306, 731 A. 2d 1121 (reporting thirteen percent predicted probability of death sentence); DiFrisco III, supra, 142 N.J. at 180-81 , 662 A. 2d 442 (reporting eleven percent predicted probability). That one component of a frequency-analysis test suggests that there may be disproportionality does not establish that a death sentence is disproportionate. DiFrisco III, supra, 142 N.J. at 182-83 , 662 A. 2d 442 ("Though defendant's predicted probability of death sentence was low under some of the scenarios, they do not evidence disproportionality or any aberration in [his] case."). Hence, the second regression of the index-of-outcomes test does not establish that defendant's death sentence is disproportionate. Nonetheless, the low predicted value requires this Court to scrutinize carefully defendant's sentence in our precedent-seeking review.
The third regression of the index-of-outcomes test uses only statutory aggravating and mitigating factors. Moreover, that regression is run with data from the penalty-trial universe. In that regression, the predicted probability of defendant's death sentence is forty-three percent. CCH Report, tbl. 24. Defendant's confidence interval ranges from twenty-three to sixty-five percent. Ibid. In this regression, defendant falls into culpability level three, at which defendants are given a capital sentence at a forty-five percent (13/29) rate. CCH Report, tbls. 23-24. Defendant's forty-three percent culpability score does not show disproportionality. This Court has already upheld the death sentences of two defendants with the same score. See Harvey III, supra, 159 N.J. at 307, 731 A. 2d 1121 (reporting forty-three percent predicted probability of death sentence); DiFrisco III, supra, 142 N.J. at 181 , 662 A. 2d 442 (same). The Court found Martini's sentence not disproportionate despite his fifteen percent culpability score. Martini II, supra, 139 N.J. at 44 , 651 A. 2d 949 .
When a regression is run with data from the death-eligible universe and the same variables as in the prior regression, defendant's predicted probability of death is nineteen percent. CCH Report, tbl. 25. The confidence interval ranges from eight percent to thirty-eight percent. Ibid. Defendant is in culpability level one. Ibid. Defendants are sentenced to death five percent (15/318) of the time at this culpability level. CCH Report, tbl. 23. Defendant's culpability score for this regression mirrors Harvey's, see Harvey III, supra, 159 N.J. at 306, 731 A. 2d 1121 (reporting nineteen percent predicted probability of death sentence), and exceeds Martini's, see Martini II, supra, 139 N.J. at 44 , 651 A. 2d 949 (reporting eight percent predicted probability). Moreover, defendant, because his culpability score is nineteen percent, narrowly evades culpability level 2, at which twenty-six percent (12/45) of defendants are sentenced to die. CCH Report, tbl. 23. Consequently, despite *1019 defendant's low culpability score, this regression does not support a finding that defendant's death sentence is disproportionate.
As indicated, our discussion of the results of the four regressions reflects our conclusion that the index-of-outcomes test does not demonstrate that defendant's death sentence is disproportionate. Although defendant's relatively low culpability scores in two of the regressions are troublesome, the wide variations in defendant's culpability scores, the large confidence intervals, and the AOC models' inability to take into account the age of Cooper's victim significantly diminish the value of the index-of-outcomes test results as applied to defendant.
We conclude that the two enduring frequency-review tests—the salient-factors test and the index-of-outcomes test—do not demonstrate that defendant's death sentence is disproportionate. However, the defendant's relatively low culpability scores in two regressions of the index-of-outcomes test, and that test's diminished reliability, require that we give enhanced weight to the process of precedent-seeking review. See Loftin II, supra, 157 N.J. at 334 , 724 A. 2d 129 (questioning frequency review and reaffirming primacy of precedent-seeking review).
III
Precedent-Seeking Review
We characterize the second component of proportionality review as the precedent-seeking approach, in which we attempt to determine whether defendant's death sentence is excessive by comparing defendant's case with similar cases of other life-sentenced and death-sentenced defendants. DiFrisco III, supra, 142 N.J. at 184 , 662 A. 2d 442 . The precedent-seeking process engages the Court in a "traditional case-by-case review in which we compare similar death-eligible cases, considering the cases individually." Id. at 183, 662 A. 2d 442 ; Bey IV, supra, 137 N.J. at 366 , 645 A. 2d 685 . Although we would not necessarily expect identical sentences to be imposed even in substantially similar cases, our review seeks to ensure that the defendant has not been "singled out unfairly for capital punishment." Martini II, supra, 139 N.J. at 47 , 651 A. 2d 949 . In prior proportionality-review cases, we consistently have accorded greater significance to precedent-seeking review than to frequency review. Id. at 28-29, 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 350 , 645 A. 2d 685 .
A. Analysis of Defendant's Culpability
In comparing defendant's case to similar cases involving other death-eligible defendants, we begin with an evaluation of defendant's own culpability, focusing on three elements: (1) defendant's moral blameworthiness; (2) the extent of victimization; and 3) defendant's character. Loftin II, supra, 157 N.J. at 336 , 724 A. 2d 129 ; Harvey III, supra, 159 N.J. at 309, 731 A. 2d 1121 ; Marshall II, supra, 130 N.J. at 155 , 613 A. 2d 1059 . In performing that evaluation, we consider objective criteria that were presented to the penalty-phase jury, ibid. at 156, 613 A. 2d 1059 , "as well as all statutory and nonstatutory aggravating and mitigating factors that are `rooted in traditional sentencing guidelines, were clearly presented to the sentencing jury, and are likely to influence a jury's sentencing decision.'" Loftin II, supra, 157 N.J. at 336 , 724 A. 2d 129 (quoting Bey IV, supra, 137 N.J. at 368 , 645 A. 2d 685 ).
1. Blameworthiness
In evaluating defendant's moral blameworthiness, "we examine such characteristics as motive, premeditation, justification or excuse, evidence of mental defect or disturbance, knowledge of helplessness of the victim, defendant's age or maturity level, and defendant's involvement in planning the murder." Loftin II, supra, 157 *1020 N.J. at 336, 724 A. 2d 129 . Those factors demonstrate defendant's substantial moral blameworthiness.
The jury found that defendant murdered the victim to escape detection for sexually assaulting her, a motive relatively common for defendants whose homicides occur in conjunction with the commission of a felony.
Defendant's murder was not significantly premeditated. At the earliest, he may have first decided to commit the homicide when he observed the victim playing in M.W.'s yard. At the latest, he may have decided to murder the victim after the sexual assault. In either event, the premeditation was minimal, involving no more than a matter of several minutes.
The record reflects some evidence of excuse or justification. Although defendant drank an unknown quantity of beer on the day of the homicide, its effect on defendant's behavior is undetermined. Defendant did not allege intoxication as a mitigating factor at the penalty phase, nor did defense counsel contend at either the guilt or penalty phase that the effect of his alcohol consumption excused or mitigated the crimes.
At the penalty phase, defendant presented extensive and compelling evidence of a devastating childhood characterized by sustained abuse and neglect by his parents and other caregivers. Findings of numerous mitigating factors by some jurors in the penalty phase verified that the childhood neglect and deprivation experienced by defendant resulted in emotional and psychological problems during his childhood that were untreated and unresolved. Cooper, supra, 151 N.J. at 345-46 , 700 A. 2d 306 . However, defendant presented no evidence in the penalty phase indicating that he suffered from a mental disease or defect at the time of the homicide, nor did he rely on the c(5)(a) (extreme emotional disturbance) or c(5)(d) (diminished capacity) mitigating factors.
Among the most aggravating aspects of defendant's crimes was his knowledge of the six-year-old victim's helplessness. Obviously well aware of her vulnerability, defendant promised her ice cream to lure her to the place where he lived. He then sexually assaulted and strangled her, knowing that she was incapable of resisting his attacks.
That defendant was only twenty-two years old at the time of the homicide diminishes his blameworthiness to some extent. Because defendant did not rely on his age as a mitigating factor at the penalty phase, the jury made no such finding.
Defendant was solely responsible for planning the crimes. The fact that the crime scene contained substantial evidence of defendant's identity and responsibility for the murder demonstrated that defendant did not engage in substantial planning prior to commission of the sexual assault and homicide.
In sum, defendant's moral blameworthiness is quite substantial. Although there was limited premeditation, the extreme vulnerability of the victim and the absence of proof of a mental disease or defect are primary factors that support a finding of high moral blameworthiness.
2. Degree of Victimization
The extent of victimization in defendant's case is extremely high. Defendant kidnapped, raped, and strangled his six-year-old victim. The record indicates that there was neither torture, aggravated battery nor mutilation of the victim. The incident was relatively brief, but there was evidence that defendant choked the victim for four to six minutes. Although her suffering was not prolonged, the victim undoubtedly was terrified and obviously suffered physically and emotionally before her death.
3. Character of Defendant
In evaluating defendant's character, we consider his prior record, previous *1021 unrelated acts of violence, cooperation with authorities, remorse, and capacity for rehabilitation. Bey IV, supra, 137 N.J. at 366 , 645 A. 2d 685 . Defendant's prior record consists of a drug distribution conviction, for which he was imprisoned, and a disorderly persons offense. He was on parole for the drug distribution offense at the time of the homicide. He engaged in no other unrelated acts of violence. Defendant initially denied responsibility for the crimes but ultimately confessed to raping and killing the victim, although he contended that the homicide was unintentional. He also assisted police officers in locating evidence material to the crimes. Although defendant told police officers that he was sorry for murdering the victim, he did not express remorse over the homicide during his trial. His rehabilitation potential is unknown. As a whole, the available facts concerning defendant's character neither enhance nor diminish his culpability.
We conclude that defendant's culpability is quite substantial. The degree of victimization was extreme, and his moral blameworthiness is very high.
B. Defendant's Comparison Group
The beginning point of the comparative-culpability analysis is the comparison group used in the salient-factor test. Martini II, supra, 139 N.J. at 51 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 369 , 645 A. 2d 685 . As noted, the AOC placed defendant in the C-1 subcategory, consisting of sexual-assault murders accompanied by particular violence or terror. We previously have discussed our determination to exclude two cases from the C-1 subcategory, supra at 74-75, 731 A. 2d at 1010-11. Excluding those two cases and defendant's case, there are thirty-seven cases in the C-1 subcategory to be compared with defendant's case. Of those cases, eighteen involved a penalty trial.
Defendant contends that for purposes of comparative culpability the nine cases in the C-2 subcategory (entitled "other with one or more additional statutory aggravating circumstances") are virtually indistinguishable from those in the C-1 subcategory. Defendant does not advance the same argument concerning the three cases in the C-3 subcategory (entitled "other"). Defendant's specific position concerning the cases to be included in his comparison group is uncertain because defendant's brief to this Court specifically discusses only six cases in the C-1 subcategory, two cases in the C-2 subcategory, no cases in the C-3 subcategory, and four cases from other categories. In performing the salient-factors test for purposes of defendant's appeal we used the cases in the assigned C-1 subcategory and also used the cases in the composite C category that included twelve additional sexual assault homicides. To ensure that our precedent-seeking review is complementary to our salient-factor test results, see DiFrisco III, supra, 142 N.J. at 185 , 662 A. 2d 442 ; Bey IV, supra, 137 N.J. at 366-67 , 645 A. 2d 685 , we will include the cases in the composite C category in performing the comparative-culpability analysis. In the interest of completeness, we also will consider the two cases defendant relies on from other categories.
Preliminarily, we acknowledge that the process of conducting precedent-seeking review is inherently subjective and does not lend itself to any analysis based on prescribed standards or factors. In comparing homicides from the standpoint of a defendant's blameworthiness or the extent of victimization, there obviously will be ample room for disagreement over which defendant was more culpable and which homicide was more violent and horrific. Similarly, disagreement is inevitable concerning our effort to distinguish defendants on the basis of their characters and backgrounds. The virtue of precedent-seeking review is that it impels the Court to examine, evaluate, and compare homicides committed by defendants whose crimes were similar to the homicide committed *1022 by the defendant whose death sentence is under review, analyze the resulting sentences, and determine whether, in that unique context, the defendant's death sentence is aberrational. The fallibility of the process is that it depends almost exclusively on imprecise, subjective reactions by the Court to the comparison cases. Despite its flaws, we remain convinced that the process is an indispensable component of proportionality review and that, properly applied, it can assist the Court in identifying and isolating disproportionate sentences of death.
C. C-1 Cases That Proceeded to Penalty Trial
The comparison cases are described in the Appendix to this opinion. We begin by comparing defendant's case with eighteen cases in the C-1 subcategory that proceeded to a penalty trial. Of those cases, penalty trials culminated in death sentences for six defendants: Kevin Jackson 1A, Jesse Timmendequas, Joseph Harris, James Williams 1A, James Zola 1A, and Marko Bey 2A. Accordingly, no issue of disproportionality is presented by those defendants.
The life sentences imposed on defendants Bruce Cunningham, Keith Dickerson, Kevin Jackson 1B, Christopher Thomas, Richard Chippero, Craig Blackmon, Scott Johnson, Michael Prater, and Benjamin Lodato appear to be reconcilable with defendant's death sentence primarily on the basis of mitigating evidence accepted by the jury tending to show mental or emotional disturbance, diminished capacity or a connection between the homicide and a defendant's history of substance abuse. Moreover, none of those defendants murdered child victims or victims as vulnerable as defendant's victim.
Bruce Cunningham raped and murdered a woman he had met on a bus. He had a history of drug and alcohol abuse and drank heavily on the day of the homicide. He had been diagnosed with a paranoid personality disorder. The jury found the c(5)(a) (extreme emotional disturbance), c(5)(c)(age), c(5)(d) (diminished capacity), and c(5)(h) (catch-all) mitigating factors.
Keith Dickerson, a twenty-year-old drug abuser, was high on cocaine when he sexually assaulted, robbed, and murdered a fifty-six-year-old neighbor. Expert testimony verified that he experienced paranoia and hallucinations when abusing cocaine. The jury found the c(5)(a) (extreme emotional disturbance), c(5)(c)(age), and c(5)(d) (diminished capacity) mitigating factors.
Kevin Jackson 1B pled guilty to capital murder during his first trial and was sentenced to death, but this Court reversed his conviction because his plea did not establish that he purposely or knowingly caused the victim's death. This twenty-five-year-old defendant entered a neighbor's home, attempted unsuccessfully to rape her, and then murdered her, inflicting fifty-three stab wounds in the process. During his second trial, penalty-phase witnesses testified that he had an emotionally impoverished background and a substance abuse problem and that he had been diagnosed with an attention deficit/hyperactivity disorder and a personality disorder that caused him to confuse reality with fantasy. The two daughters of his deceased fiancée offered highly favorable testimony about his compassion for their mother and the positive caretaker role he had assumed for them. The jury, after convicting him of capital murder, found the c(5)(d) (diminished capacity) and c(5)(h) (catch-all) mitigating factors.
Christopher Thomas, a thirty-one-year-old defendant who attempted to sexually assault and then murdered a woman in her tailor shop, had a long history of drug and alcohol abuse. He was admitted to Trenton Psychiatric Hospital after an attempted suicide in 1990 and was diagnosed as a paranoid schizophrenic. Thomas waived a jury trial, and the trial court convicted him of capital murder. After finding the c(5)(a) (extreme emotional disturbance) *1023 and c(5)(d) (diminished capacity) mitigating factors, the court sentenced Thomas to life plus thirty years' imprisonment with forty-five years' parole ineligibility.
Richard Chippero, a twenty-three-year-old defendant, raped and murdered his victim twenty-five days after being paroled from a prison sentence for other serious offenses. After graduating from a school for emotionally disturbed students, Chippero was admitted to psychiatric hospitals on four occasions for bizarre behavior and was diagnosed with a bi-polar affective disorder and manic behavior. The jury found the c(5)(a) (extreme emotional disturbance), c(5)(c)(age), c(5)(d) (diminished capacity), and c(5)(h) (catch-all) mitigating factors.
Craig Blackmon, a twenty-two-year-old defendant, raped, severely beat, stabbed, and murdered his twenty-three-year-old victim after ingesting an unknown quantity of PCP. His post-homicide behavior was bizarre. He was apprehended by a neighbor of the victim when, completely unclothed, defendant tried to break into a parked car; he behaved violently at police headquarters and occasionally spoke with a foreign accent. Experts at trial differed about the extent to which the ingestion of PCP affected defendant's behavior. The jury found the c(5)(a) (extreme emotional disturbance), c(5)(c)(age), c(5)(d) (diminished capacity), c(5)(f) (no significant criminal history), and c(5)(h) (catch-all) mitigating factors.
Michael Prater, a twenty-nine-year-old defendant, and a co-defendant raped and murdered a drug-addicted prostitute. While the co-defendant strangled the victim Prater stabbed her several times, and both men then smothered her with a pillow. Defendant, a drug and alcohol abuser, was diagnosed with an attention deficit disorder and limited intelligence. The jury found the c(5)(h) (catch-all) mitigating factor.
Scott Johnson kidnapped the victim and her three-year-old daughter. After releasing the child unharmed and unattended on the premises of a closed day care center, defendant raped, robbed, and murdered the victim, stabbing her more than thirty times and leaving her body in a drainage ditch. Defendant had a history of drug abuse and had consumed an unknown quantity of heroin and cocaine on the day of the murder. Defendant was diagnosed with a developmental disorder, a borderline I.Q., and organic brain damage. Defendant expressed remorse at trial, and his daughter testified about her love for defendant. The jury found the c(5)(c)(age), c(5)(d) (diminished capacity), and c(5)(h) (catch-all) mitigating factors.
Benjamin Lodato, a thirty-three-year-old defendant with a prior history of institutionalization and violent behavior, raped and murdered his thirty-eight-year-old victim. Defendant had been institutionalized or imprisoned for most of his life since the age of thirteen. He had been diagnosed with organic brain damage and dementia, and was described as functioning on the intellectual level of an eight- or nine-year-old child. The jury found the c(5)(a) (extreme emotional disturbance) and c(5)(d) (diminished capacity) mitigating factors. Although the jury found the aggravating and mitigating factors to be in equipoise, the trial court erroneously imposed a death sentence. This Court reversed and remanded for resentencing to life imprisonment.
The reconciliation with defendant's death sentence of the life sentences of defendants Charles Darrian, John Seymour Reese, and Rafael Rivera, is somewhat more difficult. Neither Darrian, Reese, nor Rivera had significant histories of emotional disturbance or mental disease. Darrian, twenty or twenty-two years old (the AOC's summary uses both ages), raped and murdered his eighteen-year-old girlfriend who wanted to date other men and refused to engage in sexual relations with defendant. Based on evidence of his jealous nature and immaturity, the jury found the c(5)(a) (extreme *1024 emotional disturbance), c(5)(c)(age), c(5)(f) (no significant criminal history), and c(5)(h) (catch-all) mitigating factors. In addition, his victim was less vulnerable than defendant's victim.
John Seymour Reese, a thirty-three-year-old defendant, had a history of alcohol abuse and was known to be violent toward women when he was intoxicated. After an evening's drinking, defendant raped and murdered a neighbor, striking her seventeen times with a claw hammer. At his penalty trial a prison official testified that he was a model inmate who kept other inmates in line. The jury found the c(5)(d) (diminished capacity) and c(5)(h) (catch-all) mitigating factors. Reese's history of violence when drunk and the fact that his victim was less vulnerable than defendant's victim are factors that arguably may account for the difference in their sentences.
Rafael Rivera raped, attempted to rob, and murdered a seventy-eight-year-old widow who was his next-door neighbor and frequently cared for his three children. The victim had neck and facial bruises, two fractured ribs, and vaginal tears and bruises. Defendant, who was seen drunk on the day of the murder, had a long history of alcohol and drug abuse. The jury found the c(5)(d) (diminished capacity) and c(5)(h) (catch-all) mitigating factors. Except for the age of defendant's victim, reconciliation of defendant's death sentence with Rivera's life sentence is difficult.
We find no significant evidence of disproportionality on the basis of the comparison of defendant and the subcategory C-1 defendants whose cases proceeded to a penalty trial.
D. C-1 Cases That Did Not Proceed to Penalty Trial
We next compare defendant's case with nineteen cases in the C-1 subcategory. Of those, sixteen never proceeded to penalty trials. Two cases, James Williams 1B and James Edward Zola 1B, initially were tried to a penalty-phase jury that imposed the death penalty. This Court reversed Williams's convictions and his death sentence and also reversed Zola's death sentence. On remand, life sentences with thirty years' parole ineligibility were imposed on both defendants after they pled guilty to felony murder and murder, respectively. Alphonso Timpson pled guilty to capital murder, aggravated sexual assault, and kidnapping, but his plea was conditioned on the trial court sentencing him to life imprisonment after a non-jury penalty hearing. The court sentenced Timpson to life plus fifty years' imprisonment with fifty-five years' parole ineligibility.
The difficulty inherent in the process of precedent-seeking review is exacerbated when the Court attempts to compare defendant's case to the cases of other defendants whose ultimate sentences were imposed as a result of a guilty plea or a conviction following a non-penalty phase trial. In some cases, the AOC's summary is sufficiently detailed to permit the Court to deduce by inference what considerations may have persuaded the prosecutor to forego a penalty trial. In other cases, the reasons why the prosecutor elected to forego a capital prosecution are less apparent. The lack of a contemporaneous and reliable summary by the prosecutors of the various factors that were considered in arriving at the decision to forego capital prosecution diminishes the effectiveness and reliability of our precedent-seeking review. We anticipate that the Special Master appointed by the Court in Loftin II, supra, 157 N.J. at 287-91 , 724 A. 2d 129 , will address that concern.
In six of the comparison cases the basis for the decision to forego capital prosecution is readily inferable from the AOC's summary. Michael Relford was convicted of the murder and attempted aggravated sexual assault of a forty-four-year-old neighbor and friend of his grandmother. On a prior occasion two years earlier defendant had attempted to sexually assault *1025 the victim but she elected not to press charges because of her relationship with defendant's grandmother. The victim was stabbed twenty-five times. Factors that may have affected the decision to forego capital prosecution include the defendant's history of drug and alcohol abuse, his consumption of alcohol, heroin, and cocaine on the day of the murder, and the ambiguous evidence concerning the nature and extent of defendant's prior relationship with the victim.
Morey Marcus murdered a thirty-two-year-old victim he met at a neighborhood bar. After drinking together, defendant and the victim proceeded to a second bar; when that bar closed, they left together in defendant's van. Early the next morning the victim was found, stabbed eleven times and left unclothed. Defendant, an honorably discharged Vietnam War veteran who had been hospitalized for post-traumatic stress disorder, was convicted by a jury of murder, felony murder, and attempted aggravated sexual assault. He was sentenced to life plus ten years' imprisonment with thirty years' parole ineligibility. Factors that may have contributed to the non-capital prosecution decision include the fact that the origin of defendant's relationship with the victim was consensual, defendant's exemplary military record, and the absence of proof that the sexual assault was consummated.
Defendant Sharob Clowney was convicted of murder, felony murder, aggravated sexual assault, two counts of attempted murder, and various possessory offenses. His aggregate sentence was life plus twenty years with forty years' parole ineligibility. Defendant sexually assaulted and inflicted multiple stab wounds on his twenty-eight-year-old victim and also stabbed her five- and nine-year-old sons, both of whom survived the attack. Clowney claimed that the victim frequently purchased drugs from him. Defendant's history of emotional disturbance was evidenced by three suicide attempts at ages twelve, eighteen, and nineteen, as well as a suicide attempt in prison after his arrest for this homicide. His school records reflected low I.Q. scores and a diagnosis of emotional disturbance. Defendant's history of emotional instability and the evidence suggesting that the victim may have purchased drugs from defendant were factors likely to affect the prosecutor's decision to forego a capital prosecution.
Alphonso Timpson was permitted to plead guilty to capital murder, aggravated sexual assault, and kidnapping; the plea was conditioned on the trial court's imposition of a life sentence after a non-jury penalty-phase hearing. His sentence was life plus fifty years' imprisonment with fifty-five years' parole ineligibility. His victim, a twelve-year-old girl, was severely and viciously beaten, sexually assaulted, and murdered by suffocation in January 1984. Defendant ultimately confessed to the crimes. Timpson was diagnosed as borderline mentally retarded with severe developmental disabilities, and although nineteen years of age when he committed the murder, he was characterized as possessing the mental development of a twelve-year-old. As a juvenile offender, Timpson had been sentenced in November 1982 to an indeterminate term at Jamesburg for a similar attack on a school girl. Both defendant and his mother requested that he remain institutionalized because of his inability to control his assaultive tendencies, but defendant was paroled in August 1983, five months prior to the homicide. Despite the aggravated circumstances of the assault on defendant's victim, defendant's prolonged history of emotional disturbance and retarded development undoubtedly influenced the prosecutor's decision to proceed non-capitally.
Frederick Ritchie pled guilty to aggravated manslaughter, kidnapping, two counts of aggravated sexual assault, and hindering apprehension; he received an aggregate sentence of life plus thirty years with thirty-seven years' parole ineligibility. Defendant's victim, who was a twelve-year-old *1026 boy, was enticed into defendant's trailer, induced to consume a substantial quantity of alcoholic beverages, and sexually assaulted by defendant. Defendant maintained that the victim injured himself when he staggered into a washing machine and later fell backwards after striking his head on a tree. The victim was found facedown and unclothed in a creek, having died from drowning and head injuries. The absence of direct evidence that the homicide was purposeful or knowing was a factor that probably influenced the prosecutor's decision to forego capital prosecution.
Samuel Mincey beat, raped and strangled a seventy-three-year-old woman in November 1982. He also stole two oriental dolls and a television set. In November 1988, six years later, police recovered one of the oriental dolls while investigating a burglary. The victim of the burglary told police that defendant had given her the doll in 1982. An investigation implicated defendant in the 1982 assault and homicide, and a jury convicted him of murder and felony murder. The AOC's summary surmises that the prosecutor may have concluded that the statute of limitations barred reliance on any aggravating factor that could have provided a basis for a capital prosecution.
Factors present in a number of other cases in this group may explain the decisions to prosecute non-capitally, but the decisive factors are less apparent and more speculative than in the preceding cases. As presently compiled, the AOC summaries do not include the specific reasons for the prosecutor's decision to forego capital prosecution, nor do the summaries refer to the factors that may have contributed to that decision. More specific information on why a death-eligible homicide was not prosecuted capitally would enhance the Court's ability to conduct precedent-seeking review. Under the circumstances, we must base our comparison on the information presently available.
Lester Allen Wilson resided in the same hotel as the fourteen-year-old victim and her sister, often spending time with them in their room. The victim's sister apparently had rebuffed Wilson's sexual advances. Wilson strangled and sexually assaulted the victim who was found with a pillow over her face. Defendant, who had no prior convictions and who was mildly retarded, unsuccessfully attempted to escape from police custody by jumping through a bathroom window at police headquarters. A jury convicted defendant of murder and aggravated sexual assault, and defendant was sentenced to life imprisonment with thirty years' parole ineligibility. Other than defendant's mental retardation, no apparent circumstances concerning this homicide and aggravated sexual assault explain the determination to forego capital prosecution of Wilson.
Isaac Fullard was convicted of murder, felony murder, attempted aggravated sexual assault, and possession of a weapon for an unlawful purpose; he was acquitted of burglary. The victim was the best friend of defendant's sister. Defendant, who was sentenced to seventy years' imprisonment with thirty years' parole ineligibility, maintained that he and the victim were attacked by two men who broke into the apartment. Defendant's version of the crime was supported by a witness who came forward after defendant's trial. Defendant had a history of narcotics abuse but displayed no symptoms of mental health problems. The lack of incriminating forensic evidence and defendant's insistence that other persons committed the murder may have contributed to the decision to prosecute Fullard non-capitally.
In retaliation for his girlfriend's involvement with another man, Leroy Taylor, in November 1986, entered her apartment and sexually assaulted and strangled his girlfriend's thirteen-year-old niece. Taylor fled to California and was arrested there in 1987. Because Taylor previously had been convicted as a juvenile of murdering a four-year-old girl, he was charged after his arrest with violating parole and sentenced to an indeterminate term. Taylor *1027 was charged in New Jersey with murder, felony murder, aggravated sexual assault, hindering prosecution, and witness tampering. His guilty plea to felony murder, first-degree aggravated sexual assault, and witness tampering was accepted by the trial court and Taylor was sentenced to life imprisonment with thirty years' parole ineligibility. The prosecutor's decision to accept Taylor's guilty plea could have been influenced by uncertainty over whether Taylor's prior murder conviction as a juvenile could constitute an aggravating factor in a murder prosecution.
Robert Bolinger, a thirty-six-year-old Vietnam War veteran with a history of drug and alcohol abuse, burglarized the apartment of his twenty-three-year-old victim. When the victim returned home, defendant attempted to leave. Once observed, however, he sexually assaulted and stabbed the victim, removed money from her wallet, and escaped through the window. After being apprehended for another sexual assault, defendant confessed to the homicide, stating that he murdered the victim because she resembled his stepmother who sexually abused him. Charged with capital murder, felony murder, aggravated sexual assault, robbery, burglary, and possession of a weapon for an unlawful purpose, defendant was permitted to plead guilty to felony murder and aggravated sexual assault. The decision to accept defendant's guilty plea may have been influenced by the impulsive rather than premeditated nature of the homicide and by defendant's drug and alcohol addiction.
David Collins severely beat, stabbed, sexually assaulted, and tried to drown the mother of his girlfriend in retaliation for her refusal to permit him to see his girlfriend's baby. Defendant, an unemployed twenty-one-year-old high school dropout, confessed to the murder. He required and received some form of mental health treatment while incarcerated. Defendant was charged with purposeful and knowing murder, robbery, burglary, possession of a weapon for an unlawful purpose, and hindering apprehension. He was permitted to plead guilty to those charges and received an aggregate sentence of life plus twenty years' imprisonment with forty years' parole ineligibility. Defendant's mental health problem, combined with the circumstances giving rise to defendant's hostility toward the victim, may have contributed to the prosecutor's decision to proceed non-capitally.
James Zola 1B was fired from his maintenance job at the apartment complex where his victim resided, in part because of her complaint about his poor workmanship. Defendant broke into her apartment and beat, scalded, and strangled her. A jury convicted Zola of capital murder, burglary, aggravated sexual assault, kidnapping, and robbery, and sentenced him to death. This Court reversed the death sentence because of an improper instruction on aggravating and mitigating factors. On remand, the trial court granted Zola a new trial on the basis of newly discovered evidence. That factor, combined with defendant's extreme emotional disturbance, probably contributed to the prosecutor's decision to permit Zola to plead guilty to murder and receive a life sentence with thirty years' parole ineligibility.
Gary Lippen, age nineteen, was indicted for the murder of his seventeen-year-old victim, as well as for aggravated sexual assault, conspiracy, hindering apprehension, and possession of a weapon for an unlawful purpose. Allowed to plead guilty to aggravated manslaughter, hindering apprehension, and conspiracy, Lippen was sentenced to thirty years' imprisonment on the manslaughter charge and a consecutive five-year term with two and one-half years' parole ineligibility on the hindering apprehension conviction. The aggravated manslaughter sentence subsequently was reduced to twenty years with ten years' parole ineligibility.
Lippen and his twenty-seven-year-old co-defendant, James Henderson, beat, raped, stabbed, strangled and tortured the *1028 victim. After the assaults, Henderson hoisted the victim into a tree and, using the branches as leverage, broke the victim's legs. Lippen acknowledged his complicity in the offenses and admitted that he participated in the assaults on the victim, but claimed that he feared Henderson would kill him if he refused to assist and participate in the assault. Lippen had no prior convictions and no history of emotional disturbance but had a history of alcohol and drug abuse. After the victim's body was discovered, Lippen initially denied any involvement in her death, but he quickly retracted his denial and gave police a voluntary and detailed statement concerning his and Henderson's complicity in the murder. Lippen's cooperation with law enforcement authorities, combined with the likelihood that Henderson was the dominant actor, probably accounts for the prosecutor's decision to forego capital prosecution of Lippen.
The explanation for the non-capital prosecution of the remaining cases in the C-1 subcategory is more elusive. For example, James Henderson, Lippen's co-defendant, primarily was responsible for the murder, aggravated sexual assault, and ferocious beating of their victim. The savagery of Henderson's crimes was extreme. Although Henderson was illiterate and had a history of treatment for an undesignated mental illness, emotional disturbance, and drug abuse, the extent of his emotional instability is not set forth in the AOC's summary with sufficient detail to support the conclusion that that condition justified the prosecutorial determination to proceed non-capitally. Henderson was permitted to plead guilty to murder and two counts of hindering apprehension, resulting in a sentence of life imprisonment with thirty years' parole ineligibility on the murder conviction and a consecutive sentence of five years with two and one-half years' parole ineligibility on the hindering apprehension charge.
Frank Masini (1 and 3), within a two-week period in 1991, raped and murdered his eighty-five-year-old aunt and also raped and murdered an eighty-year-old woman related to him by marriage. Both victims were sexually assaulted and received multiple stab wounds in the neck. In addition, approximately one year later Masini murdered an elderly couple for whom he had done carpentry work. Because there was no sign of forced entry at any of the homes of the homicide victims, suspicion focused on Masini who knew or was related to all the victims. Masini lived with his wife and two adult children. He was a self-employed carpenter with no history of drug or alcohol abuse. He claimed that in the months preceding the homicides he experienced "detachments from reality," for which he sought no treatment. In April 1990, he pled guilty to the murder of his aunt and of the elderly couple and pled guilty in another county to the murder of his eighty-year-old relative by marriage. Masini was sentenced to two consecutive life terms, each with thirty years' parole ineligibility, and to two concurrent terms of life with thirty years' parole ineligibility. Other than the reference in the AOC's summary to Masini's experiencing "detachments from reality," no other factors surrounding those four homicides suggest an explanation for the prosecutorial decision to proceed non-capitally against Masini.
Jerome Dennis committed five homicides within a four-month period, two of which (Dennis 1 and 2) are included in the C-1 subcategory. Dennis was permitted to plead guilty to felony murder to those two homicides. Dennis entered guilty pleas to murder, felony murder, and manslaughter for the other homicides and also pled guilty to two counts of aggravated assault. The victim in Dennis 1 was a fourteen-year-old girl whom he abducted at knife point while she was walking along the street. He sexually assaulted her, inflicted multiple stab wounds, and covered the body with leaves and twigs. The thirty-year-old victim in Dennis 2 also was abducted at knife point, forced to undress, *1029 sexually assaulted, and stabbed multiple times. Defendant explained that in committing the Dennis 1 homicide he was influenced by a "demon." Two weeks prior to that offense he was paroled from Yardville State Prison and admitted into the Intensive Supervision of Probation Program. He had several prior adult convictions, including three for sexual assault. Dennis was sentenced to two consecutive life terms with thirty years' parole ineligibility and two concurrent life terms with thirty years' parole ineligibility. No explanation for the prosecutor's decision to forego capital prosecution can be inferred from the AOC summaries.
James Williams 1B raped and murdered a twenty-three-year-old receptionist in a Trenton nursing home. Defendant took the victim's pocketbook after stabbing her more than thirty times. Prosecuted capitally, defendant was convicted by a jury of murder, felony murder, aggravated sexual assault, armed robbery, and burglary. In the penalty phase, the jury found the c(4)(c) (torture or depravity) and c(4)(g) (contemporaneous felony) aggravating factors and the c(5)(h) (catch-all) mitigating factor; the jury rejected the c(5)(a) (extreme emotional disturbance), c(5)(c)(age), and c(5)(d) (diminished capacity) mitigating factors. Defendant was sentenced to death. This Court reversed defendant's convictions and death sentence primarily because of the inadequacy of the jury voir dire and the erroneous refusal to excuse a prospective juror for cause. State v. Williams, 113 N.J. 393, 436, 438 , 550 A. 2d 1172 (1988). On remand, Williams pled guilty to felony murder and was sentenced to life imprisonment with thirty years' parole ineligibility. No factors other than the mitigating evidence offered in the penalty phase, but substantially rejected by the jury, explain the prosecutor's decision to forego a capital prosecution on remand. That mitigating evidence included testimony reflecting an unstable childhood, numerous foster care placements, emotional instability, intoxication and, at age nine, the accidental shooting of his younger brother. There was also testimony that defendant's behavior shortly before the murder began to deteriorate following an incident in which he was struck in the head by a falling cinder block. Nevertheless, that mitigating evidence did not deter the penalty-phase jury from imposing the death sentence.
Summarizing our comparison of defendant's death sentence with the sentences imposed on the nineteen defendants in the C-1 subcategory whose sentences were not determined in a penalty-phase trial, we do not find significant evidence of disproportionality. We discern from the AOC summaries ample bases to conclude that persuasive reasons existed to justify the State's decision to proceed non-capitally against defendants Relford, Marcus, Clowney, Timpson, Ritchie, and Mincey. Similarly, but with somewhat less assurance, we also infer that reasonable grounds existed to support the State's determination to proceed non-capitally against defendants Wilson, Lippen, Fullard, Taylor, Bolinger, Collins, and Zola 1B. We lack adequate information to conclude that there was sufficient justification to forego capital prosecution of defendants Masini (1 and 2), Dennis (1 and 2), Henderson and, on remand, Williams 1B. Although the victims of those defendants were not as young as Cooper's victim, the multiple homicides committed by Masini and Dennis and the viciousness of the homicides committed by Henderson and Williams suggest that the culpability of those defendants is comparable to, if not in excess of, that of defendant Cooper. Perhaps additional information, presently unavailable, would clarify the reasons for the non-capital prosecutions in those cases. But our aim in conducting proportionality review is not to insure symmetry, or even a high degree of correlation, in the sentences imposed on comparable defendants. Our primary objective is the detection and prevention of aberrational sentences. Loftin II, supra, 157 N.J. at 322 , 724 A. 2d 129 . Despite our concerns over the non-capital prosecution *1030 of four of these defendants, we are not left with a sense that defendant Cooper's death sentence is aberrational when compared to the C-1 defendants who were not prosecuted capitally.
E. C-2 Cases
This subcategory consists of nine cases, five of which concern defendants who were prosecuted capitally: Ralph Edwards, Mark Luciana, Ambrose Harris, Jerry Spraggins, and Michael Manfredonia. Of those defendants, only Ambrose Harris was sentenced to death.
Defendant Edwards, then eighteen years old, attempted to sexually assault a nine-year-old girl he saw on the platform of an abandoned railroad station. When she attempted to flee, he restrained and strangled her with a plastic strap. Edwards was charged with purposeful and knowing murder, felony murder, and attempted aggravated sexual assault. The jury acquitted him of purposeful murder, but convicted him on all other charges. The penalty-phase jury found the c(4)(f) (escape detection) and c(4)(g) (contemporaneous felony) aggravating factors and the c(5)(c)(age), c(5)(d) (diminished capacity), c(5)(f) (no prior criminal history), and c(5)(h) (catch-all) mitigating factors. Evidence was presented concerning Edwards's history of psychological and mental problems and that he functioned on the emotional level of a nine-year-old. The penalty jury deliberations resulted in a non-capital sentence. Defendant was sentenced to life imprisonment with thirty years' parole ineligibility on the murder count and a consecutive ten years with five years' parole ineligibility on the aggravated sexual assault conviction.
Mark Luciana, a twenty-year-old defendant, left a party with two male friends, a twelve-year-old girl, and the fifteen-year-old victim and went to a nearby wooded area. Defendant sexually assaulted and strangled the victim, later retrieving her body from the woods and placing it in the trunk of his car. Luciana was apprehended after a friend told police about the body. Defendant was charged with and convicted of murder, felony murder, aggravated sexual assault, hindering apprehension, and endangering the welfare of a child. In the penalty phase, defendant expressed contrition and asked the jury to spare his life. Witnesses testified to his immaturity, anti-social personality disorder, and his drug and alcohol addiction. The jury found the c(5)(c)(age), c(5)(d) (diminished capacity), c(5)(f) (no prior criminal history), and c(5)(h) (catch-all) mitigating factors. After the jury could not decide whether the aggravating factors outweighed the mitigating factors, Luciana was sentenced to life imprisonment with thirty years' parole ineligibility for the murder, and to a consecutive term of nineteen years' imprisonment for aggravated sexual assault and hindering apprehension.
Jerry Spraggins broke into the apartment of his sixty-eight-year-old victim, sexually assaulted and suffocated her, and stole her pocketbook and a gold neck chain. He was arrested two years later and linked to the murders of two other women in the same building, one such homicide occurring prior to the enactment of the capital punishment statute. Defendant was acquitted of both homicides. In his capital prosecution for the murder of the sixty-eight-year-old victim, defendant was convicted of purposeful and knowing murder, felony murder, aggravated sexual assault, and burglary. At the penalty-phase trial, evidence of defendant's good character was offered by his mother, as well as testimony concerning prior mental health counseling and evidence of his compulsive and voyeuristic behavior toward women. The jury found the c(5)(d) (diminished capacity) and c(5)(f) (no prior criminal history) mitigating factors. Defendant's penalty trial resulted in a sentence of life imprisonment with thirty years' parole ineligibility plus a consecutive twenty-year term with ten years' parole ineligibility on the aggravated sexual assault *1031 charge, and a concurrent ten-year term for burglary.
Michael Manfredonia, then age nineteen, sexually assaulted and murdered his fourteen-year-old victim after she allegedly refused to go out with him, criticized his clothing and appearance, and generally ridiculed him. The victim's body had twenty-six stab wounds and was found buried in a ditch and covered with dirt, rocks, and sticks. Police apprehended Manfredonia at home after he attempted suicide by ingesting pills and trying to slit his wrists with a razor blade. In his capital trial defendant waived his right to a jury trial and was found guilty of murder, felony murder, aggravated sexual assault, kidnapping, and possession of a weapon for an unlawful purpose. In the penalty phase, a psychiatrist testified that defendant was mentally retarded with an I.Q. of 78, that his brain appeared to be structurally abnormal, and that he was unable to control his emotions and anger. The trial court found the c(4)(f) (escaping detection) and c(4)(g) (commission of a felony) aggravating factors but treated them as a single factor. The court also found the c(5)(a) (extreme emotional disturbance), c(5)(c)(age), and c(5)(f) (no prior criminal history) mitigating factors, and concluded that the mitigating factors outweighed the aggravating factors. Defendant was sentenced to life imprisonment with thirty years' parole ineligibility for murder, plus consecutive terms of thirty years' imprisonment with fifteen years' parole ineligibility for kidnapping, and twenty years' imprisonment with ten years' parole ineligibility for aggravated sexual assault.
Ambrose Harris raped and murdered his twenty-two-year-old victim, stealing her automobile, money, and credit cards. Capitally prosecuted, he was convicted of murder, felony murder, kidnapping, robbery, aggravated sexual assault, theft, and possession of a weapon for an unlawful purpose. The jury found the c(4)(f) (escape detection) and c(4)(g) (contemporaneous felony) aggravating factors and the c(5)(h) (catch-all) mitigating factor. The jury sentenced Harris to death.
Defendants in the C-2 subcategory who were not capitally prosecuted were Vincent Marino, Vincent Brown, Gerald Williams, and Adam Marrero. Vincent Marino strangled and then sexually assaulted his twenty-three-year-old victim who voluntarily had gone to defendant's home intending to smoke crack cocaine with him. The evidence indicated that defendant had smoked crack cocaine throughout the day and evening with several people, including the victim. Defendant acknowledged that he lured the victim to his basement on the pretext that cocaine was hidden there, that the victim resisted his sexual advances, and that he strangled the victim with her lingerie. Defendant was addicted to cocaine, had a prior alcohol addiction, and had been treated for mental health problems. Defendant was permitted to plead guilty to felony murder and was sentenced to thirty years' imprisonment without parole ineligibility. That the victim had shared cocaine with defendant on the day of the murder may have influenced the prosecutor's decision to forego capital prosecution.
Vincent Brown attempted to sexually assault the ten-year-old niece of Brown's girlfriend. The girl resisted his advances. When she threatened to inform her mother about defendant's attempted assault, Brown strangled her and left her body in a ditch. Brown was indicted for murder, felony murder, aggravated sexual assault, and sexual assault. While in prison he became suicidal and experienced hallucinations, resulting in his confinement in a psychiatric hospital where he was diagnosed with major depression with psychotic features. He also had a severe drug and alcohol addiction, and his competency to stand trial was questioned. Ultimately, Brown pled guilty to murder and sexual assault, and was sentenced to life imprisonment with thirty years' parole ineligibility, and a consecutive ten years with five years' parole ineligibility on the sexual assault *1032 charge. Brown's serious mental health disabilities undoubtedly influenced the State's decision to forego capital prosecution.
Gerald Williams, then thirty-eight years old, was employed in the victim's apartment building for several months until his discharge, after which he lived in vacant apartments and stairwells in the building. He sexually assaulted and strangled the fifty-nine-year-old victim. In addition to a long history of depression, Williams had used alcohol and cocaine regularly for many years. Tried non-capitally, he was convicted by a jury of murder, felony murder, two counts of aggravated sexual assault, burglary, criminal restraint, and possession of a weapon for an unlawful purpose. Williams was sentenced to life imprisonment with thirty years' parole ineligibility for murder plus consecutive terms of twenty years for each sexual assault conviction, ten years for burglary, and five years each for criminal restraint and the weapons offense. The AOC's summary includes no indication of why Williams was prosecuted non-capitally.
Adam Marrero, age twenty-three, met the victim, age thirty-four, at the home of a friend and offered to drive her home. They left together and stopped at a local restaurant for drinks and dancing. The victim was later reported missing. Her body was found unclothed in a nearby wooded area, and her death was caused by strangulation. Defendant was tried non-capitally and was convicted by a jury of murder, felony murder, kidnapping, and aggravated sexual assault. He was sentenced to concurrent life terms, each with thirty years' parole ineligibility, and to a consecutive twenty-year sentence for kidnapping. The fact that the homicide began as a consensual social encounter may have influenced the prosecutor's decision to forego a capital prosecution.
Summarizing our comparison of defendant's death sentence with the sentences of the nine defendants in the C-2 subcategory, we find no evidence of disproportionality. Of the five defendants prosecuted capitally, defendant Harris was sentenced to death. The life sentences of defendants Edwards, Luciana, Spraggins, and Manfredonia appear to be reconcilable with defendant's death sentence. Although Edwards's victim was a young girl, evidence in the penalty phase indicated that he functioned as the emotional equivalent of a nine-year-old and had a long history of psychological and mental problems. Luciana's victim was a fifteen-year-old girl, and his personality disorder apparently persuaded the jury to spare his life. Spraggins's victim was sixty-eight years old. His simultaneous acquittal of two other homicides and the evidence of his history of mental health problems may have influenced the jury's decision not to impose the death penalty. Defendant Manfredonia's mental retardation, emotional disturbance, and abnormal brain development were obviously factors that affected the jury's non-death sentence.
As noted, the non-capital prosecutions of defendants Marino and Marrero probably were influenced by the consensual nature of their relationships with their respective victims. Although his victim was ten years old, Brown's attempted suicide, psychiatric hospitalization, and questionable competency undoubtedly influenced the State's decision to proceed non-capitally. No apparent circumstances explain the State's decision to forego capital prosecution of defendant Gerald Williams.
F. C-3 and Other Cases
The three cases in the C-3 subcategory, and the other two cases relied on by defendant from the B-2 and G-1 subcategories, were all prosecuted non-capitally. Frederick Neuschwanter's victim was an eighteen-year-old acquaintance with whom he had gone to purchase liquor, after which he parked his car near a cemetery and he and the victim drank together. When he made unwelcome sexual advances, the victim grabbed a hunting knife to defend herself. A struggle resulted in the death *1033 of the victim due to a combination of stab wounds and blunt trauma. Neuschwanter had no prior record and no prior history of mental or emotional problems, other than alcohol abuse. He was permitted to plead guilty to aggravated manslaughter and sentenced to a thirty-year term with fifteen years' parole ineligibility.
Founcil Brockington sexually assaulted and strangled his thirty-four-year-old victim in her home. The AOC's summary is ambiguous on whether defendant and the victim were acquaintances or unknown to each other. Defendant was prosecuted non-capitally, and charged with murder, felony murder, aggravated sexual assault, aggravated assault, and possession of a weapon for an unlawful purpose. He was permitted to plead guilty to aggravated manslaughter, and sentenced to a term of twenty-five years with eight years' parole ineligibility.
Eugene Edwards and co-defendant Michael Prater lured a prostitute to Edwards's residence by offering her drugs in exchange for sexual relations. The two men sexually assaulted and murdered the victim, the co-defendant stabbing her numerous times and Edwards attempting to strangle her. Edwards had no prior record nor any history of mental problems. He was prosecuted non-capitally and pled guilty to murder, robbery, and aggravated sexual assault. Edwards was sentenced to life imprisonment with thirty years' parole ineligibility and a consecutive term with ten years' parole ineligibility for aggravated sexual assault.
Carlos Vasquez, who had been convicted of murder in Puerto Rico in 1975, sexually assaulted and asphyxiated his thirteen-year-old victim. Prosecuted non-capitally, defendant pled guilty to felony murder and aggravated sexual assault. He was sentenced to life imprisonment with thirty years' parole ineligibility on the felony murder charge and to a consecutive twenty-year term with ten years' parole ineligibility for aggravated sexual assault.
Kevin Aquino, age nineteen, abducted a six-year-old girl from a neighbor's home intending to sexually assault her. When the child awoke, she protested, and defendant killed her by smashing her head against a tree. As a child, Aquino was diagnosed as emotionally disturbed and neurologically impaired. Defendant had three prior sexual-assault convictions and had been receiving psychiatric counseling because of his underlying impulse control disorder. Defendant's psychiatrist had informed his parents that defendant needed constant supervision and should be placed in a residential treatment program. Aquino was prosecuted non-capitally and was permitted to plead guilty to murder, felony murder, and kidnapping. Defendant was sentenced to life imprisonment with thirty years' parole ineligibility on the murder charge and a consecutive life term with twenty-five years' parole ineligibility on the kidnapping charge.
We find no disproportionality between defendant's death sentence and the sentences of the defendants in the C-3 subcategory and the two additional defendants included in that discussion. That defendant Neuschwanter and his victim began their encounter consensually and that the victim first reached for the knife undoubtedly influenced the prosecutor to proceed non-capitally and to accept defendant's plea to aggravated manslaughter. Similarly, the apparent ambiguity concerning the origins of the encounter between defendant Brockington and his victim may have affected the State's decision to proceed non-capitally and to accept Brockington's plea to aggravated manslaughter. The fact that the homicide committed by defendant Eugene Edwards originated as an exchange of drugs for sexual relations may have influenced the prosecutor's decision to forego capital prosecution of Edwards, despite the viciousness of the murder. The State's decision not to prosecute defendant Vasquez capitally is unexplained by the AOC's summary, in view of his prior murder conviction and the fact that his victim was only thirteen. Although *1034 defendant Aquino's victim was six years old and the killing was particularly brutal, Aquino's emotional instability and psychiatric disorders may have contributed to the State's decision to forego capital prosecution.
G. Precedent-Seeking Review Conclusion
As we have emphasized, "[p]roportionality review seeks to determine only whether a particular death sentence is aberrational, not whether it compares perfectly with other sentences." Bey IV, supra, 137 N.J. at 352 , 645 A. 2d 685 (citing Marshall II, supra, 130 N.J. at 131 , 613 A. 2d 1059 ). Our careful review of defendant's death sentence, compared to the sentences imposed on defendants who committed comparable homicides, convinces us that defendant's death sentence is not aberrational, and with respect to almost all of the non-death-sentenced defendants, is reconcilable with their sentences and/or with the State's decision to forego capital prosecution. The cases concerning which reconciliation of sentences cannot readily be achieved on the basis of the AOC summaries are too few to diminish significantly our confidence in the conclusion that defendant's death sentence is not disproportionate.
IV
Other Arguments
Defendant, together with defendants John Chew and Nathaniel Harvey, have filed a joint brief challenging the constitutionality of the death penalty on the basis of racial discrimination, geographic discrimination, the apparent aggravating effect of the extreme emotional disturbance mitigating factor, and the low overall death-sentencing rate. We recently reviewed thoroughly and rejected the claim of unconstitutionality based on racial bias in Loftin II, supra, 157 N.J. at 316 , 724 A. 2d 129 , and no additional information in the statistical tables underlying this appeal impel us to alter that conclusion. We rejected the other asserted constitutional challenges in State v. Chew II, 159 N.J. 183, 220-27 , 731 A. 2d 1070 (1999), and adhere to those conclusions in rejecting the same contentions in this appeal.
Based on our conclusion that defendant Cooper's death sentence is not disproportionate, we affirm the sentence of death.
APPENDIX
COMPARISON CASE SUMMARIES
A. Penalty Trial Cases
Marko Bey 2A
Marko Bey raped and murdered Carol Peniston. Bey accosted her in front of her apartment and demanded money. When he heard someone approaching, he grabbed her and led her to a shed, where he repeatedly struck her, stomped on her, sexually assaulted her, strangled her, and stole eight dollars and her car keys. He subsequently drove her stolen car to Newark, where he abandoned it after getting into a one-car accident.
In the hours prior to the murder, Bey purportedly drank 120 ounces of malt liquor and smoked marijuana. Three and one-half weeks before this incident, Bey had committed another rape-murder. In the time between the two murders, Bey turned eighteen years old.
Bey was an illegitimate child whose father rejected him and whose mother was an alcoholic who brutally abused him. Bey began abusing alcohol and marijuana when he was fourteen years old. At trial, Bey expressed remorse over the murder and stated "maybe if I never would have taken drugs it would never have happened."
A jury convicted Bey of capital murder, felony murder, kidnapping, aggravated assault, aggravated sexual assault, robbery, and theft. Bey's prior murder was inadmissible at the penalty phase because the conviction was under appeal. The jury *1035 found the c(4)(c) (extreme suffering) and c(4)(g) (contemporaneous felony) aggravating factors and rejected all of Bey's proposed mitigating factors. The rejection of the c(5)(a) (extreme emotional disturbance), c(5)(c)(age), c(5)(d) (diminished capacity), and c(5)(h) (catch-all) mitigating factors may be traced to an erroneous jury charge, which instructed the jury that it must find mitigating factors unanimously. The jury sentenced Bey to death, but this Court reversed the death sentence because of the flawed instructions. On retrial, the jury, despite finding the c(5)(a) and c(5)(h) mitigating factors, again sentenced Bey to death. That case, Marko Bey 2B, is not in defendant's comparison group because the second jury found the c(4)(a) (prior murder) aggravating factor.
Craig Blackmon
In the presence of the victim's two-year-old son, Blackmon abused, sexually assaulted, and stabbed the victim. Over a ninety-minute period, Blackmon stabbed, beat, and kicked her, tied her up, and urinated on her. Blackmon fractured her jaw, broke every bone in her neck, caused hematomas in her brain, and inflicted several stab wounds, including three in the vagina.
Blackmon, who was twenty-two years old, had ingested PCP prior to this incident. He exhibited bizarre behavior on the day of the murder. For example, after committing the murder and while still naked, he tried to enter a parked car. Later at the police station, he acted violently at times and occasionally began speaking with a West Indian accent.
A jury convicted Blackmon of purposeful or knowing murder (two counts), felony murder, aggravated sexual assault (two counts), and a weapons offense. The jury found the c(4)(c) (torture or depravity) and the c(4)(g) (contemporaneous felony) aggravating factors and the c(5)(a) (extreme emotional disturbance), c(5)(c)(age), c(5)(d) (diminished capacity), c(5)(f) (no significant criminal history), and c(5)(h) (catch-all) mitigating factors. The jury found that the aggravating factors did not outweigh the mitigating factors. The court sentenced Blackmon to life imprisonment with a thirty-year parole bar for murdering the victim and to twenty years' imprisonment with a ten-year parole disqualifier for the aggravated sexual assault.
Richard Chippero
Chippero, who was twenty-three years old, entered the victim's home through the front door and asked her to have sex with him. She refused, and Chippero pulled out a pocket knife and chased the victim into the bedroom. He forced her to undress and raped her at knifepoint. After the victim stared at him, Chippero feared that she could identify him and stabbed her ten times. She died from the wounds. Chippero subsequently discarded the knife in a lake and washed his bloody shirt.
Chippero committed these offenses only twenty-five days after being paroled. He previously had been convicted of aggravated assault, aggravated arson, arson, burglary, and theft.
Chippero's two stepfathers were imprisoned for abusing him. His first stepfather physically abused him and his mother. His second stepfather physically and sexually abused him. When he was seven years old, Chippero was diagnosed as being hyperkinetic, emotionally disturbed, and mentally retarded. The year after graduating from a school for emotionally disturbed students, Chippero was admitted to a psychiatric hospital on four occasions. He suffered from bipolar disorder.
The jury convicted Chippero of capital murder, felony murder, aggravated sexual assault, hindering apprehension or prosecution, and a weapons offense. The jury found the c(4)(f) (escape detection) and the c(4)(g) (contemporaneous felony) aggravating factors and the c(5)(a) (extreme emotional disturbance), c(5)(c)(age), c(5)(d) (diminished capacity), and c(5)(h) (catch-all) mitigating factors. The jury *1036 could not agree on defendant's sentence. Accordingly, Chippero was sentenced to life imprisonment with a thirty-year parole disqualifier on the murder conviction. The court sentenced him to a consecutive life sentence with a twenty-five-year parole disqualifier on the aggravated sexual assault conviction.
Bruce Cunningham
After a morning of drinking, Cunningham attempted to rape his former wife. Their son prevented him from sexually assaulting her.
Cunningham, who was thirty-four years old, then boarded a bus where he met the victim. He and the victim walked off the bus and drank rum together. He then kidnapped her and took her to a deserted area, where he hit her over the head with a rock, stabbed her, and sexually assaulted her. Realizing she was dead, Cunningham buried her body and fled.
Cunningham had prior convictions for disorderly persons offenses, aggravated assault, battery, and two burglaries. Cunningham had an abusive childhood. He is a Navy veteran and has a history of drug and alcohol abuse. He was diagnosed with paranoid personality disorder.
A jury convicted him of capital murder, felony murder, kidnapping, aggravated sexual assault, and aggravated assault. The jury found the c(4)(g) (contemporaneous felony) aggravating factor and the c(5)(a) (extreme emotional disturbance), c(5)(c)(age), c(5)(d) (diminished capacity), and c(5)(h) (catch-all) mitigating factors. The jury rejected the c(4)(c) (torture or depravity) and c(4)(f) (escape detection) aggravating factors. The jury concluded that the aggravating factor did not outweigh the mitigating factors. For the murder, the court sentenced him to eighty years' imprisonment, of which thirty were parole ineligible. If the nonmerged counts ran consecutively to each other (the AOC's narrative does not make this clear), the aggregate sentence was 130 years' imprisonment with a fifty-year parole bar.
Charles Darrian
Darrian, who was twenty or twenty-two years old (the AOC's narrative is inconsistent on this point), and the victim, his eighteen-year-old girlfriend, had an ongoing dispute over her desire to date other men. They began to argue at the victim's apartment after she refused to have sex with him. He then beat her and anally raped her. Afterward, Darrian placed a coat hanger around her neck and twisted it six times. The victim died of asphyxiation, and Darrian fled.
Darrian had no prior criminal record. He had no history of mental illness, but his age, jealous nature, and immaturity were deemed to support the c(5)(a) (extreme emotional disturbance) mitigating factor.
A jury convicted Darrian of capital murd

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2299541. Public record. Not legal advice.