State v. Harvey

731 A.2d 1121 (1999)

159 N.J. 277

STATE of New Jersey, Plaintiff-Respondent,

v.

Nathaniel HARVEY, Defendant-Appellant.

Supreme Court of New Jersey.

Argued April 28, 1998.

Decided June 3, 1999.

*1124 Mordecai D. Garelick and Michael B. Jones, Assistant Deputy Public Defenders, for defendant-appellant (Ivelisse Torres, Public Defender, attorney).

Nancy A. Hulett, Deputy Attorney General, for plaintiff-respondent (Peter Verniero, Attorney General of New Jersey, attorney). *1122

*1123 The opinion of the Court was delivered by GARIBALDI, J.

A jury originally convicted defendant Nathaniel Harvey of Irene Schnaps's murder and sentenced him to death in October 1986. This Court reversed that conviction because of errors in the admission of defendant's confession and in the failure of the trial court to give a "Gerald charge." [1] State v. Harvey, 121 N.J. 407 , 581 A. 2d 483 (1990) ( Harvey I ), cert. denied, 499 U.S. 931 , 111 S.Ct. 1336 , 113 L.Ed. 2d 268 (1991). At defendant's retrial, a jury again convicted defendant of the purposeful or knowing murder of Irene Schnaps, and imposed the death penalty. We affirmed defendant's conviction and death sentence. State v. Harvey, 151 N.J. 117, 233 , 699 A. 2d 596 (1997) ( Harvey II ). We granted defendant's request for proportionality review of his death sentence, see N.J.S.A. 2C:11-3e, and now find no disproportionality.

I

FACTS

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

A. Discovery of the Body and the Crime Scene

Sometime in the evening of June 16, 1985, or during the early morning hours of June 17, 1985, defendant broke into the apartment of Irene Schnaps and "brutally murdered" her. Harvey II, supra, 151 N.J. at 150 , 699 A. 2d 596 . Schnaps, age thirty-seven, lived alone in a ground-floor apartment in an apartment complex. Although the investigating police detected no signs of forced entry, the bedroom showed signs of a struggle. Bloodstains were on the carpet and throughout the room. Schnaps's naked body lay face-up on the floor. Despite the severe head and facial wounds, no bloodstains were present on Schnaps's chest and stomach, leading to the conclusion that before leaving her apartment, defendant had undertaken measures to cover his tracks.

A white pillowcase bore a bloody sneaker-print with a chevron pattern and the letters "PON." Although the bedding appeared clean, blood stained the mattress, the underlying box spring, a cardboard box protruding from under the bed, and a *1125 towel. An empty Seiko-LaSalle watch box, an empty Olympus camera box, and an empty jewelry box were also found in the bedroom. In the bathroom, investigators found Schnaps's open pocketbook, containing no money.

B. The Autopsy

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

Triangular pressure marks appeared on both sides of the neck. Some of Schnaps's teeth were knocked out, and her jaw was broken. The right side of her neck, jaw, cheek, and forehead were bruised, and she was cut behind one ear.

Unable to attribute death to any particular wound, Dr. Shuster concluded that a combination of blows had killed Schnaps, that Schnaps's wounds had been caused by "quite a bit of force with a heavy object," and that Schnaps had bled profusely and died within a matter of minutes.

C. The Arrest of Harvey and His First Conviction

On October 28, 1985, police investigating a series of unsolved burglaries and sexual assaults arrested defendant. One of the burglary victims identified defendant at a subsequent "show-up." During questioning, defendant confessed to committing a number of burglaries in West Windsor, as well as a sexual assault. Defendant accompanied the police to point out the locations of his crimes.

Defendant was charged with the purposeful or knowing murder of Schnaps, second-degree robbery, and second-degree burglary. The Middlesex County Prosecutor filed a Notice of Aggravating Factors. A jury convicted him and sentenced him to death. As previously mentioned, on direct appeal this Court reversed defendant's conviction and remanded for a new trial. Harvey I, supra, 121 N.J. at 414 , 581 A. 2d 483 .

D. The Retrial

1. Guilt Phase

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

Philip Beesley, a forensic scientist employed by the New Jersey State Police, testified that, based on blood work done on control samples from both defendant and Schnaps, the stains found on the box spring and on the piece of cardboard were consistent with Harvey's blood, and not Schnaps's.

Dr. Marvin Shuster testified about the nature of the wounds suffered by Schnaps and the cause of her death. Theodore Mozer, a forensic scientist employed by the New Jersey State Police, testified that one of the hairs recovered from Schnaps's back did not belong to her. Mozer testified that the hair was consistent with a control hair taken from Harvey. Mozer also testified that he had examined two pairs of sneakers seized from Harvey's ex-wife's West Windsor apartment and the size 6½ "Pony" sneakers Harvey was wearing when he was arrested, and explained that Harvey's "Pony" sneakers were consistent with the sneaker impression at the scene. Although Harvey's sneakers "could" have left the bloody mark, Mozer could not definitively conclude that they had done so.

In support of the admission of the DNA evidence, the State presented two witnesses from Cellmark: Julie Cooper, a *1126 senior molecular biologist, and Dr. Charlotte Word, a microbiologist and supervisor of forensic casework. They testified that DNA tests conducted on the blood samples recovered at the crime scene were generally comparable to defendant's DNA.

Defendant did not testify. His guilt-phase case consisted of only two witnesses. First, a witness from Seiko testified that Seiko had made thousands of watches like the one seized from the trunk of defendant's car. Dr. Robert Shaler, Director of Forensic Biology for the Office of the Chief Medical Examiner for the City of New York, testified that he believed that the DNA tests were "scientifically indefensible."

After deliberating for three and one-half hours, the jury returned its verdict finding defendant guilty of purposeful-or-knowing murder, felony murder, first-degree robbery, and second-degree burglary.

2. Penalty Phase

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

As a mitigating factor, defendant alleged the catch-all mitigating factor, "any other factor which is relevant to the defendant's character or record or to the circumstances of the defense," N.J.S.A. 2C:11-3c(5)(h) and submitted ten non-statutory factors to the jury. The ten factors are listed infra at 310, 731 A. 2d at 1138 .

Professor Richard Moran, a criminologist specializing in the correlation between age and crime, testified that because of defendant's age, if sentenced to prison rather than death, defendant would be so old when he was eligible for parole that his chances of committing another violent crime would be minute. A forensic social worker testified about defendant's social history. Various family members testified that defendant was a caring father, who also comforted his developmentally-disabled brother. Defendant's family asked the jury not to sentence defendant to death. Defendant also exercised his right of allocution and asked that he be given thirty years so he could teach and communicate with his family. [2]

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

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

We affirmed defendant's convictions and death sentence. Id. at 233, 699 A. 2d 596 . The Court reserved decision with regard to defendant's disproportionality claim. Ibid.

On July 31, 1997, pursuant to Court orders, the Administrative Office of the *1127 Courts ("AOC") issued its revised statistical Chew/Cooper/Harvey Report (CCH Report). That report includes all death-eligible cases known to the AOC as of July 31, 1997. (Memorandum from Joseph J. Barraco, Esq., Acting Assistant Director, AOC Criminal Practice Division and Nina Rossi, Esq., Assistant Chief, Criminal Court Services, Criminal Practice Division, to Stephen W. Townsend, Clerk of the Supreme Court 1 (Dec. 3, 1997)) ( Barraco Memorandum ) (on file with the AOC). As of that date, there were 401 death-eligible cases, of which 163 or forty-one percent, proceeded to a penalty trial. CCH Report tbl. 3. Of the 163 penalty-trial cases, fifty, or thirty-one percent, resulted in a death sentence. Id. at tbl. 2. The overall death-sentencing rate was, therefore, twelve percent (50/401). Id. at tbl. 1.

II

PROPORTIONALITY REVIEW

In State v. Loftin, 157 N.J. 253, 265-277 , 724 A. 2d 129 (1999) ( Loftin II ), we reviewed the fundamental principles of proportionality review. The principal goal of proportionality review "is to determine whether a particular defendant's death sentence is disproportionate" when compared to the sentences of other defendants who are similarly situated. State v. DiFrisco, 142 N.J. 148, 160 , 662 A. 2d 442 (1995) ( DiFrisco III ); see N.J.S.A. 2C:11-3e. "A capital sentence is excessive and thus disproportionate if other defendants with characteristics similar to those of the defendant under review generally receive sentences other than death for committing factually-similar crimes in the same jurisdiction." State v. Martini, 139 N.J. 3, 20 , 651 A. 2d 949 (1994) ( Martini II ) (citing State v. Bey, 137 N.J. 334, 343 , 645 A. 2d 685 (1994) ( Bey IV )); State v. Marshall, 130 N.J. 109, 131 , 613 A. 2d 1059 (1992) ( Marshall II ), cert. denied, 507 U.S. 929 , 113 S.Ct. 1306 , 122 L.Ed. 2d 694 (1993). In conducting proportionality review, we seek "`to ensure that the death penalty is being administered in a rational, nonarbitrary and even handed manner, fairly and with reasonable consistency.'" Loftin II, 157 N.J. at 265 , 724 A. 2d 129 (quoting Marshall II, supra, 130 N.J. at 131 , 613 A. 2d 1059 ).

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

There are two aspects to proportionality review: "substantive," or "offense-oriented," review; and "procedural," or "offender-oriented," review. Marshall II, supra, 130 N.J. at 126-27 , 613 A. 2d 1059 . Offense-oriented review focuses on the offense to determine whether the punishment imposed is excessive in relation to the crime itself. Martini II, supra, 139 N.J. at 20 , 651 A. 2d 949 (citing Coker v. Georgia, 433 U.S. 584, 592 , 97 S.Ct. 2861, 2866 , 53 L.Ed. 2d 982, 989 (1977)).

Conversely, procedural or offender-oriented review presumes that the death penalty is proportionate to the offense and focuses on the defendant, not the crime committed. Pulley v. Harris, 465 U.S. 37, 43 , 104 S.Ct. 871 , 876 79 L.Ed. 2d 29, 36 (1984). In such review, the question is "whether the `punishment fits the criminal.'" Marshall II, supra, 130 N.J. at *1128 129, 613 A. 2d 1059 (additional internal quotations omitted).

Defendant bears the burden of proving that his death sentence is disproportionate. DiFrisco III, supra, 142 N.J. at 162 , 662 A. 2d 442 ; Bey IV, supra, 137 N.J. at 343 , 645 A. 2d 685 . That burden is imposed on the defendant, rather than the State, because N.J.S.A. 2C:11-3e speaks in terms of proving that the sentence is disproportionate. DiFrisco III, supra, 142 N.J. at 162 , 662 A. 2d 442 (citing Bey IV, supra, 137 N.J. at 349 , 645 A. 2d 685 ).

A. The Universe of Cases

We first define the universe of cases to which defendant's case shall be compared. In 1992, the Legislature amended N.J.S.A. 2C:11-3e to limit the universe to those cases in which a death sentence has actually been imposed. P.L. 1992, c. 5, § 1. The Legislature did not state whether the amendment was intended to apply to pending appeals. In DiFrisco III, Bey IV, and Marshall II , we declined to apply that amendment to those appeals, because those defendants' appeals were pending before the Legislature enacted the amendment. Likewise, we decline to apply that amendment to this case. Defendant's death sentence was first imposed in 1986, six years before the amendment took effect. Following this Court's reversal of his first conviction and after his retrial, defendant was again sentenced to death in July 1997. The genesis of this proceeding was defendant's first conviction, which occurred long before the statute was amended. See DiFrisco III, supra, 142 N.J. at 163 , 662 A. 2d 442 . Additionally, given our rejection of the disproportionality challenge, the amendment would not affect the outcome of this case.

The universe of cases comprises all death-eligible homicides committed since the enactment of the death penalty statute regardless of whether a death sentence was imposed. In our earlier proportionality reviews, we determined that the death-sentenced pool will include those cases where the defendant's death sentence was reversed on appeal—due mostly to burden-of-proof errors or Gerald issues—and those cases where the prosecutor chose not to proceed capitally on remand. See Martini II, supra, 139 N.J. at 25-26 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 345-47 , 645 A. 2d 685 ; Marshall II, supra, 130 N.J. at 194 n. 10, 613 A. 2d 1059 . We explained that burden-of-proof and Gerald 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 ). Similarly, the "State's decision not to reprosecute a defendant capitally is not necessarily a reflection of that defendant's lack of deathworthiness." Id. at 27, 651 A. 2d 949 . For those reasons, and the reasons detailed in our earlier opinions, we continue to include such cases in the category of death sentence cases. Loftin II, supra, 157 N.J. at 324 , 724 A. 2d 129 .

Additionally, we continue to present the data both including and excluding defendant. Ibid. "`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 does not, however, include the twenty-three cases that proceeded to the penalty phase despite not being death-eligible. Marshall II, supra, 130 N.J. at 138 , 613 A. 2d 1059 ; CCH Report, tbls. 2, 3. The AOC coded all 401 cases in the universe in the CCH Report. We refer to that universe as the "full universe" or "death-eligible universe." For some statistics, the AOC used a smaller universe of 163 death-eligible cases that proceeded to the penalty phase of a capital trial. We *1129 refer to that truncated universe as the "penalty-trial universe."

B. Method of Classifying Cases

Once the universe of comparison cases is established, we must sort them in a database. As we have done in Loftin II, supra, 157 N.J. at 323 , 724 A. 2d 129 ; DiFrisco III, supra, 142 N.J. at 163-64 , 662 A. 2d 442 ; Bey IV, supra, 137 N.J. at 345 , 645 A. 2d 685 ; and Marshall II, supra, 130 N.J. at 141-42 , 613 A. 2d 1059 , we use two approaches—an a priori approach and an empirical method. In the a priori procedure, we analyze cases based on those factors that experience has shown influenced the decision whether to sentence capitally. Loftin II, supra, 157 N.J. at 323 , 724 A. 2d 129 ; DiFrisco III, supra, 142 N.J. at 164 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 24 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 345 , 645 A. 2d 685 ; Marshall II, supra, 130 N.J. at 141-42 , 613 A. 2d 1059 . "In the empirical method, we review life-sentenced and death-sentenced cases to identify those characteristics that determine the patterns of life sentencing versus death sentencing." Loftin II, supra, 157 N.J. at 323 , 724 A. 2d 129 (quoting DiFrisco III, supra, 142 N.J. at 164 , 662 A. 2d 442 ); see also Martini II, supra, 139 N.J. at 24 , 651 A. 2d 949 ; Marshall II, supra, 130 N.J. at 142-44 , 613 A. 2d 1059 . "The empirical method reveals those factors that prosecutors and juries find determinative." DiFrisco III, supra, 142 N.J. at 164 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 24 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 345 , 645 A. 2d 685 .

III

COMPARISON OF CASES

The universe of cases that we rely on are those contained in the CCH Report. We adhere to our prior criteria for coding those cases as either death-sentenced or life-sentenced. Also, we group those cases according to their comparative levels of blameworthiness. Loftin II, supra, 157 N.J. at 324 , 724 A. 2d 129 (quoting Martini II, supra, 139 N.J. at 28 , 651 A. 2d 949 ). Further, we measure blameworthiness by relying on statutory mitigating and aggravating factors "as well as nonstatutory factors based on `objectively verified measures of blameworthiness.'" Bey IV, supra, 137 N.J. at 350 , 645 A. 2d 685 (quoting Marshall II, supra, 130 N.J. at 145 , 613 A. 2d 1059 ); DiFrisco III, supra, 142 N.J. at 164 , 662 A. 2d 442 .

We use two methods to evaluate a defendant's blameworthiness: frequency analysis and precedent-seeking review. Through both, we determine whether, compared to similar cases, a defendant's death sentence is disproportionate. DiFrisco III, supra, 142 N.J. at 166 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 28 , 651 A. 2d 949 ; Marshall II, supra, 130 N.J. at 148 , 613 A. 2d 1059 .

As we explained in DiFrisco III, supra, 142 N.J. at 166 , 662 A. 2d 442 :

In frequency analysis, we determine the rate of death sentencing in similar cases. This helps to reveal how jurors and prosecutors treat similar cases. Precedent-seeking review engages familiar judicial case-by-case analysis. We compare defendant's case to factually similar cases to discern whether defendant is deathworthy vis-a-vis other similarly situated defendants. We then compare the results of the two analysis to determine whether imposition of the death sentence in this instance is disproportionate.

We continue to emphasize, however, that "[p]roportionality review seeks to determine only whether a particular death sentence is aberrational, not whether it compares perfectly with other sentences." DiFrisco III, supra, 142 N.J. at 166 , 662 A. 2d 442 (quoting 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 )).

*1130 A. Adjustments in Comparison Group

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

As we have done previously, "we defer generally to the AOC's expertise, and particularly to its unique assignment of defendants to only one comparison category: each case in the universe is assigned to only one comparison category, and within that category, to only one subcategory." Loftin II, supra, 157 N.J. at 327 , 724 A. 2d 129 (quoting DiFrisco III, supra, 142 N.J. at 167 , 662 A. 2d 442 (citations omitted)). The AOC has placed defendant in category E—designated "Robbery without A-D." That means defendant's case had only one victim who was not a public servant and who was not sexually assaulted and that defendant had no prior murder conviction. The AOC assigned defendant's case to subcategory 1 in category E, designated "residential forced entry with particular violence/terror." The AOC has identified 126 death-eligible cases in the E category, and 22 cases in the E-1 subcategory. [4] Two of the cases in the E-1 category represent defendant's initial death sentence and subsequent death sentence after reversal of the first.

The State has proposed no adjustment to the AOC's classification of defendant's case. Defendant, however, has proposed various adjustments to the AOC's categorization, suggesting that numerous cases should be added to defendant's comparison group. In addition to the E-1 cases, defendant seeks to compare his cases to twenty-four other cases he describes as factually similar. Specifically, defendant seeks to adjust the universe of comparable cases by including in it defendants in three category A cases (multiple victims), two category B cases (prior murders), eleven C-1 cases (sexual assault with particular violence/terror), and two C-2 cases (involving a sexual assault with one or more additional statutory aggravating circumstances). In DiFrisco III, supra, 142 N.J. at 169 , 662 A. 2d 442 , the Court refused to compare the defendant's case to cases in higher blameworthiness categories. We likewise refuse to compare defendant's case to cases in higher blameworthiness categories. Moreover, consistent with this Court's principle of comparing only similar cases, the cases in defendant's suggested comparison group involving sexual assault murders should not be included. Cases of that kind are so dissimilar, both factually and in their levels of blameworthiness, "that they do not offer any insight into the proportionality of defendant's sentencing." Martini II, supra, 139 N.J. at 79 , 651 A. 2d 949 .

Defendant also seeks to include six cases in the E-3 category (robbery, with forced entry, but with no particular violence/terror). One case in category E-2 (robbery, with no forced residential entry but with particular violence/terror); and one case in *1131 category G-3 (burglary, with no residential forced entry and no particular violence/terror). [5] Of those eight cases, four proceeded to the penalty phase, but none resulted in a death sentence. A comparison of those eight cases supports the conclusion that the E-1 category is the proper comparison group for defendant and that his death sentence is not disproportionate.

The dissent asserts that our decision to limit defendant's comparison group to subcategory E-1 cases rather than to the entire E category is far too restrictive and represents a serious departure from past practices. Post at 394, 731 A. 2d at 1184 . In prior cases, in applying the salient-factors test and precedent-seeking approach we have used as the comparison group an entire composite category. However, in those cases the subcategory was too small to be statistically productive and the total cases in the chosen category consisted of a much smaller number of cases than the 126 cases in the E category.

In Chew II, supra, 159 N.J. at 203, 731 A. 2d 1070 , for example, we categorized Chew as a pecuniary-motive killer, other pecuniary advantage subcategory I-3. Because only one other defendant remained in that subcategory, we determined that any statistical analysis that consisted only of I-3 subcategory cases would be unproductive. Id. at 203, 731 A. 2d 1070 . Accordingly, we compared Chew with the entire group of pecuniary-motive killers that consisted only of sixteen eligible cases. In DiFrisco III, supra, 142 N.J. at 174 , 662 A. 2d 442 , where the defendant had also been placed in the pecuniary-motive, contract-killer subcategory, we compared him to the entire category of pecuniary-motive murderers to be able to have a productive statistical analysis. At the time of the DiFrisco proportionality review, the entire pecuniary motive category consisted of only fourteen eligible I category cases. Id. at 167 , 662 A. 2d 442 .

In Loftin II, supra, 157 N.J. at 321 , 724 A. 2d 129 , we found that the defendant's "essential attribute" was his prior murder conviction. However, because of the "exceedingly small number of cases" in the B-1 subcategory, we compared Loftin's case to all death-eligible cases in the B or prior murder category. Id. at 327 , 724 A. 2d 129 . There were only sixteen eligible cases in category B.

Here, the twenty-two cases in the E-1 subcategory provide a sufficient basis for both the salient-factors analysis and precedent-seeking review. Moreover, a comparison of all 126 cases in the E category is impractical and would make proportionality review unmanageable. Such a review is also unnecessary. The cases that defendant proposes in the E-2, E-3 and G-3 subcategories are not factually similar to defendant's case.

Defendant was forty-four at the time of Schnaps' murder, with an extensive prior record. At the time of the murder, he was not under the influence of any emotional disturbance nor was his capacity to appreciate the wrongfulness of his conduct impaired as a result of a mental disease or defect. Defendant is not distinguished from the E-2, E-3 and G-3 defendants because of differences in the brutality of their crimes, all of which were horrendous, but by the evidence those defendants presented of mitigating factors. Several presented evidence of either mental disease, defect or emotional disturbance. Many also were much younger than defendant and had no significant prior criminal records.

Of the eight cases, only Bushy and Huff, like Harvey, were charged with two aggravating factors. Busby, like Harvey, was charged with aggravating factors, c(4)(g), contemporaneous felony and *1132 c(4)(f), seeking to escape detention. However, the jury found that Busby, who attempted suicide after the murder, was under the influence of extreme mental or emotional disturbance and that his capacity to appreciate the wrongfulness of his act was significantly impaired because of a mental disease or defect, or intoxication. Huff, who was twenty-three at the time of the murder, was charged with both c(4)(c), causing murder by extreme suffering and c(4)(g), contemporaneous felony. However, Huff's jury after hearing psychiatric testimony that Huff had an antisocial disorder, an antisocial personality and mentally was still an adolescent, found that his capacity to appreciate the wrongfulness of his conduct was significantly impaired as a result of a mental disease or defect, or intoxication.

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

There also were mitigating factors that distinguished defendant's case from cases of other defendants. Age was a mitigating factor for Dollard, Wolfe and Hart who were all twenty-two years or younger when they committed the murders for which they were charged. Wolfe, who also showed remorse, and Dollard had no significant prior records and Suarez had no prior record. The jury also found that Wolfe and Hart suffered from a mental disease, defect or intoxication that impaired their capacity to appreciate the wrongfulness of their conduct.

In sum, unlike many of the life-sentenced E-2, E-3, and G-3 defendants, Harvey was not mentally or emotionally disturbed when he murdered his victims, nor was he a young man, without a significant prior criminal record. Because of those differences, such cases provide little insight into the propriety of the jury's decision in this case, and are inapplicable to our proportionality review. We therefore refuse defendant's request to expand his comparison cases. As we have previously commented, a "capital defendant is not entitled to a perfect universe of identical cases, but instead only the best that we can achieve." DiFrisco III, supra, 142 N.J. at 170-71 , 662 A. 2d 442 (quoting Martini II, supra, 139 N.J. at 31 , 651 A. 2d 949 (citing Bey IV, supra, 137 N.J. at 352, 362 , 645 A. 2d 685 )). We find that defendant's comparison group consists of the twenty-two cases in subcategory E-1.

B. The Frequency Approach

"The principal inquiry here is whether the degree of blameworthiness in the present case `reasonably supports an expectation that such a case will generally result in a death sentence.'" DiFrisco III, supra, 142 N.J. at 171 , 662 A. 2d 442 (quoting Martini II, supra, 139 N.J. at 30 , 651 A. 2d 949 ). "Frequency analysis helps us to determine whether defendant is in a category that renders him or her more likely than other killers to receive the death penalty." Ibid. It is divided into two statistical tests to gauge a defendant's relative criminal culpability: the salient-factors test, and the index-of-outcomes test.

In Loftin II, supra, 157 N.J. at 266 , 724 A. 2d 129 , we appointed Appellate Division Judge David S. Baime, as a Special Master, to conduct an extensive review and evaluation of the proportionate methodology that we have used for the last six years. We directed the Special Master to consider the following: (1) scope of the proportionality review universe of cases; (2) accuracy of the AOC's data-coding techniques; (3) statistical reliability of frequency review results given the small size of the data base; (4) strengths and weaknesses of the index-of-outcomes test; (5) systemic proportionality review (specifically, the development of parsimonious *1133 models to measure the possible role of race discrimination in prosecuting and sentencing decisions); (6) possibility of reduction in the number of case classifications in salient-factors test; (7) possible appointment of a panel of judges to perform periodic assessments of penalty-trial outcomes; and (8) maintenance of proportionality review as a separate proceeding. Loftin II, supra, 157 N.J. at 454-56 , 724 A. 2d 129 .

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

Although the AOC has added thirty-two cases to the database since the Loftin Report, and the addition of cases "has had a positive impact on the stability of the models, [the AOC's] view is that the culpability estimate which purports to give a `predicted probability of death sentence' is often still too soft, and little substantive reliance should be given to this statistic in the Chew, Cooper and Harvey cases." Barraco Memorandum at 4. Consequently, because frequency analysis is statistically based, and because the small sample sizes may undermine statistical reliability, we remain concerned about the statistical reliability of frequency analysis, and continue to place greater emphasis on the results of the precedent-seeking review. Loftin II, supra, at 157, 291-97, 724 A. 2d 129 ; DiFrisco III, supra, 142 N.J. at 171 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 29 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 351 , 645 A. 2d 685 .

1. The Salient-Factors Test

The salient-factors test enables us to compare defendant's sentence to sentences in factually similar cases to measure the relative frequency of defendant's sentence. DiFrisco III, supra, 142 N.J. at 172 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 33 , 651 A. 2d 949 . We first base comparability on the statutory aggravating factors, and then subdivide the group "`according to circumstances that serve either to aggravate or to mitigate the blameworthiness of the defendants in those cases.'" Loftin II, supra, 157 N.J. at 328 , 724 A. 2d 129 (quoting Martini II, supra, 139 N.J. at 33 , 651 A. 2d 949 ). Because the salient-factors test compares sentences in cases that are factually similar, we find it the most persuasive of the frequency tests. Ibid.; see also 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 . Harvey has been assigned to category E, designated "robbery killer." Harvey has been further classified in subcategory 1 in category E, designated "residential forced entry with particular violence or terror." CCH Report, tbl. 7. Of the twenty-two death-eligible cases in that group, eight proceeded to the penalty phase. Including defendant's cases, four of those penalty trial cases resulted in death sentences. Thus, the death-sentencing rate for robbery killers is eighteen percent and for those advancing to the penalty trial, it is fifty percent. The overall death-sentencing rate for the death eligible universe is twelve percent and the rate for those in the penalty-trial universe is forty-one percent. Therefore, the figures for E-1 defendants are higher than the overall death-sentencing rates, leading to the conclusion that society views those who commit particular violence or terror in *1134 a residential forced entry as significantly blameworthy. See DiFrisco III, supra, 142 N.J. at 173 , 662 A. 2d 442 (stating that higher sentencing rates for one category indicates society views those within that category as "significantly blameworthy").

Removing defendant's cases from the group lowers the rates somewhat, but still does not indicate that defendant's sentence is disproportionate. Without defendant's cases, the death sentencing rate for E-1 defendants is ten percent, and for those advancing to the penalty phase it is thirty-three percent. That ten percent figure is slightly lower than the general twelve percent rate for all death-eligible cases, but the thirty-three percent rate is slightly higher than the overall thirty-one percent rate for penalty trial cases. Those figures do not support defendant's claim that his sentence is disproportionate.

The following table summarizes the outcome of the salient-factors test with respect to the E-1 category:

Salient-Factors Test: "E-l" Subcategory

Death- Death- Proportion of

Sentencing Sentencing Cases

Rate at Rate for All Advancing to

Penalty Death- Penalty Trial

Trial Eligible

Cases

Inc. D. .50(4/8) .18(4/22) .36(8/22)

Exc. D. .33(2/6) .10(2/22) .30 (6/20

[ CCH Report, tbl. 7.]

The entire E robbery category can be

broken down as follows:

Salient-Factors Test: "E" Category

Death- Death- Proportion of

Sentencing Sentencing Cases

Rate at Rate for All Advancing to

Penalty Death- Penalty Trial

Trial Eligible

Cases

Inc. D .29(10/35) .8(10/126) .28(35/126)

Exc. D. .24(8/33) .6(8/124) .27(33/124)

[ CCH Report, tbl. 7.]

Those numbers are somewhat below the overall rates for the death-eligible universe and the penalty trial universe. We do not, however, believe that such a deviation shows that robbery killings are viewed by society as less blameworthy. The mere fact that a statistical disparity exists does not establish disproportionality. Bey IV, supra, 137 N.J. at 352 , 645 A. 2d 685 . "A low predicted value does not mean, ipso facto, that the imposition of the death penalty is disproportionate; it simply means we must more carefully scrutinize the other aspects of proportionality review." DiFrisco III, supra, 142 N.J. at 172 , 662 A. 2d 442 . The death-sentencing rate for E-1 killers is higher than the rates for all robbery killers and is higher than the overall death sentencing rate. That signifies that society views those robbers who commit a residential forced entry with significant violence as particularly blameworthy. Also, notably, defendant *1135 does not argue that the salient-factors test reveals that his sentence is disproportionate.

2. The Index-of-Outcomes Test

The index-of-outcome test is the most statistically complex of the two frequency-analysis tests. Rather than merely calculating ratios, this test utilizes a multiple-regression analysis. The test seeks "to identify those characteristics that establish a degree of a defendant's blameworthiness." DiFrisco III, supra, 142 N.J. at 178 , 662 A. 2d 442 . Further, the test "organize[s] the cases `according to statistically-relevant measures of culpability, such as the infliction of severe pain or mental suffering on the victim, a contemporaneous sexual assault or robbery, and the commission of a prior murder.'" Ibid. (quoting Bey IV, supra, 137 N.J. at 362 , 645 A. 2d 685 ).

For each multiple regression the AOC has performed, each defendant receives a culpability score, which is based on the predicted probability of receiving a death sentence. Id. at 179, 662 A. 2d 442 . The culpability score ranges from .00 to .99. The scores are evenly divided into five culpability levels. Cases with culpability level one are the least likely to receive a death sentence, and cases with a culpability level of five are most likely to receive the death penalty.

Four multiple regressions encompass the index-of-outcomes test. Id. 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 utilizes 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.

The results of the four regressions diverge considerably. This drawback of the index-of-outcomes test has revealed itself in each of this Court's proportionality review precedents. See DiFrisco III, supra, 142 N.J. at 211 , 662 A. 2d 442 (reporting culpability scores ranging from eleven percent to seventy-four percent); Martini II, supra, 139 N.J. at 43 , 651 A. 2d 949 (reporting culpability scores ranging from five percent to eighty-eight percent); Bey IV, supra, 137 N.J. at 362-64 , 645 A. 2d 685 (reporting culpability scores from the Bey data ranging from twenty-five percent to seventy-six percent and culpability scores from the Martini data ranging from thirty-three percent to eighty-one percent); Marshall II, supra, 130 N.J. at 173 , 613 A. 2d 1059 (reporting culpability scores ranging from seventeen percent to fifty-two percent). In this case, defendant's culpability scores range from thirteen percent, which places him in culpability level one, to forty-three percent, which places him in culpability level three.

The following chart shows all the relevant figures for the four index-of-outcomes tests:

Statutory & Non Statutory Factors Only

Statutory Factors

Penalty Death Penalty Death

Trial Eligible Trial Eligible

Predicted .35 .13 .43 .19

Probability of

Death Sentence

Range .11 to .68 .05 to .32 .23 to .65 .08 to .38

*1136

Culpability 2 1 3 1

level

Death Sentencing .26 .05 .45 .05

[ CCH Report.]

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

Defendant's results in that regression are significantly lower than those in Martini II, supra, 139 N.J. at 43 , 651 A. 2d 949 (eighty-eight percent predicted probability), DiFrisco III, supra, 142 N.J. at 180 , 662 A. 2d 442 (seventy-four percent predicted probability), Bey IV, supra, 137 N.J. at 362-63 , 645 A. 2d 685 (eighty-one percent predicted probability in Martini Report and seventy-six percent probability in Bey Report ), and Marshall II, supra, 130 N.J. at 173 , 613 A. 2d 1059 (fifty percent predicted probability). On the other hand, we have upheld a death sentence with a culpability score significantly lower than defendant's. See Loftin II, supra, 157 N.J. at 331 , 724 A. 2d 129 (fourteen percent predicted probability).

When the same variables are considered in the full universe, defendant's culpability score falls to thirteen percent and the confidence internal ranges from five percent to thirty-two percent. Accordingly, defendant's case occupies culpability level one, at which five percent of the defendants have been sentenced to death. Although those results are also low, they are within a range that the Court has previously held not disproportionate. See DiFrisco III, supra, 142 N.J. at 180-81 , 662 A. 2d 442 (eleven percent predicted probability of death); Martini II, supra, 139 N.J. at 43 , 651 A. 2d 949 (five percent predicted probability); Marshall II, supra, 130 N.J. at 173 , 613 A. 2d 1059 (seventeen percent predicted probability).

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

Defendant argues that the index-of-outcomes frequencies are so low that they prove that defendant's sentence is disproportionate. We disagree. Although defendant's numbers are low in some of the scenarios, in the other scenarios they are within the range that the Court has previously held to be not disproportionate. Moreover, even in the scenarios where defendant's score is lowest, defendant's numbers are not the lowest score of a defendant whose claim of disproportionality we have denied. Accordingly, we are satisfied that the index-of-outcomes test indicates no disproportionality.

*1137 3. Frequency Approach Conclusion

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

Although in some of the scenarios defendant's predicted probability of death is low, we do not believe that evidences that his sentence is an aberration. We remain wary of the frequency approach because of its noted defects, and therefore continue to place greater emphasis on the precedent-seeking approach. See Loftin II, supra, 157 N.J. at 334-35 , 724 A. 2d 129 ; DiFrisco, supra, 142 N.J. at 182-83 , 662 A. 2d 442 .

C. The Precedent-Seeking Approach

The precedent-seeking approach is the second component of proportionality review. Loftin II, supra, 157 N.J. at 335 , 724 A. 2d 129 ; DiFrisco III, supra, 142 N.J. at 183 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 46 , 651 A. 2d 949 . "Here we engage in traditional case-by-case review in which we compare similar death-eligible cases, considering the cases individually." DiFrisco III, supra, 142 N.J. at 183 , 662 A. 2d 442 ; Bey IV, supra, 137 N.J. at 366 , 645 A. 2d 685 . This approach seeks to determine whether defendant's death sentence is excessive in comparison to other similar life-sentenced and death-sentenced defendants. Id. at 184, 662 A. 2d 442 .

Precedent-seeking reviews "complement frequency analysis." Ibid. As we have noted, "[T]he lower the overall rates and the reliability of our frequency analysis, the greater the need for precedent-seeking review." Id. at 183-84 , 662 A. 2d 442 . In each of our prior proportionality review cases, we have consistently placed greater reliance on precedent-seeking review than on frequency review. Id. at 184 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 28-29 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 350 , 645 A. 2d 685 ; Marshall II, supra, 130 N.J. at 159 , 613 A. 2d 1059 . We continue to do so. The Special Master has recommended methods by which to select a representative number of cases within the group of similar cases for consideration and comparison to defendant's case. Special Master Report at 68-70. Although some of the Special Master's comments are valid, until the Court has a hearing and issues its opinion regarding the Special Master's Report, "we will continue to analyze defendant's case according to the methodologies and procedures previously utilized." Supra at 300, 731 A. 2d at 1133.

Precedent-seeking review considers statutory and nonstatutory aggravating and mitigating factors that are "`rooted in traditional sentencing guidelines.'" DiFrisco III, supra, 142 N.J. at 184-85 , 662 A. 2d 442 (quoting Marshall II, supra, 130 N.J. at 159 , 613 A. 2d 1059 (citing N.J.S.A. 2C:44-1)). That approach divides criminal culpability into three categories: defendant's moral blameworthiness, the degree of victimization, and defendant's character. Id. at 185, 662 A. 2d 442 .

We begin application of the precedent-seeking approach by identifying the cases that we will use. They consist of those cases categorized by the AOC as E-1. CHC Report tbl. 7. Including Harvey's two death sentences, the total number of cases is twenty-two. Ibid. By comparing Harvey to those other nineteen defendants in the traditional manner of review, we seek to determine the existence of any aberration in defendant's sentencing. Bey IV, supra, 137 N.J. at 369 , 645 A. 2d 685 . The goal is to ensure that defendant has not been unfairly singled out for capital punishment. However, because each case involves different facts, defendants, juries, *1138 and legal issues, to be proportionate even closely-similar cases do not require identical verdicts. DiFrisco III, supra, 142 N.J. at 186 , 662 A. 2d 442 ; Bey IV, supra, 137 N.J. at 369 , 645 A. 2d 685 .

The components by which we measure defendant's culpability are as follows:

1. Defendant's moral blameworthiness

a. Motive

b. Premeditation

c. Justification or excuse

d. Evidence of mental disease, defect or disturbance

e. Knowledge of victim's helplessness

f. Knowledge of effects on nondecedent victims

g. Defendant's age

h. Defendant's involvement in planning the murder

2. Degree of victimization

a. Violence and brutality of the murder

b. Injury to nondecedent victim

3. Character of defendant

a. Prior record

b. Other unrelated acts of violence

c. Cooperation with authorities

d. Remorse

e. Capacity for rehabilitation.

Marshall II, supra, 130 N.J. at 155 , 613 A. 2d 1059 ; accord DiFrisco III, supra, 142 N.J. at 203 , 662 A. 2d 442 .

1. Defendant's Case

Late in the evening of June 16, 1985, or in the early morning hours of June 17, 1985, defendant broke into the apartment of Irene Schnaps, a woman whom he did not know, and brutally murdered her. The scene of the attack, Schnaps' bedroom, was left in disarray. Blood was throughout the room. Defendant struck Irene Schnaps fifteen times on the head with such force that her skull was fractured open. Some of the blows lacerated her brain. She suffered numerous lacerations to her head, as well as bruises and contusions to her face, a broken jaw, several broken teeth and pressure marks on her neck. Some of the blows were delivered from the front, but most were from behind. The murder weapon was a blunt instrument: a hammer, which left curving wounds; and an item, such as a tire iron, two-by-four, or a dull axe, which left linear wounds. After he murdered Irene Schnaps, defendant washed the blood off the front of her body and changed the sheets on the bed in an apparent attempt to avoid detection. He then left her lying naked on the floor.

At the penalty phase in 1994, the State relied on the relevant guilt phase evidence to prove the c(4)(c), c(4)(g), and c(4)(f) aggravating factors. Defendant alleged one mitigating factor, the catch-all factor under c(5)(h). Within that factor, he itemized the following ten, non-statutory factors:

1. defendant's age at the time of the offense;

2. defendant had been traumatized at an early age when he witnessed the tragic death of his older sister;

3. defendant was uprooted from his home and sent to live with grandparents who physically and verbally abused him and resented his presence;

4. defendant suffered feelings of abandonment when his parents did not take him with them as promised, yet continued to have other children;

5. defendant was exposed to domestic violence in the home of his grandparents;

6. defendant was exposed to domestic violence in the home of his parents;

7. defendant is a caring and loving father;

8. defendant's continuing relationship with his children and the financial contribution that he still makes to them;

9. defendant's relationship with his mentally disabled daughter;

10. any other factor that relates to defendant's childhood or family background.

*1139 At the penalty phase, defendant focused on his childhood, his family background, and his role as a parent. Professor Moran, a criminologist specializing in the correlation between age and crime, testified that if defendant were sentenced to prison rather than death he would not be eligible for parole prior to age sixty-four, and by that time defendant would be of an age group less likely to commit violent crime.

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

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

Once defendant was reunited with his parents, Albarus stated that defendant acted as a "big brother" to his younger siblings. However, his father was abusive toward defendant's mother and fathered children outside the marriage. Defendant was devoted to his mother, and it pained him to see her suffer at the hands of his father.

Albarus also characterized defendant as sharing a "special relationship" with his brother James, who had developed signs of being developmentally disabled. She added that defendant showed sensibility toward his daughter Tanya, who is developmentally disabled.

Albarus spoke with defendant's wife, who told her that defendant was "very responsible" as a father and husband at the beginning of their marriage. Even while incarcerated, Albarus said defendant maintained a "close relationship" with his children, sending them money, writing to them and sending them cards. Defendant treats Taliah, Joyce's child with another man, as his own.

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

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

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

Each juror deliberated on the non-statutory mitigating factors submitted by defendant. No juror found defendant's age, exposure to domestic violence in his grandparent's home, exposure to domestic violence in his parent's home, defendant's relationship with his brother James and his daughter Taliah, or any other factor relating to defendant's childhood or background to be in mitigation. However, in mitigation, jurors found the following facts: six *1140 jurors—that defendant was traumatized when he witnessed the death of his older sister; one juror—that defendant was sent to live with grandparents who physically and verbally abused him; four jurors— that defendant suffered feelings of abandonment and that defendant was a loving father; and two jurors—defendant's relationship with his children. The jurors, however, unanimously found aggravating factors c(4)(f), escape detection, and c(4)(g), contemporaneous felony, to be present and that they outweighed the mitigating factors beyond a reasonable doubt. They sentenced defendant to death as a result.

2. Analysis of Defendant's Moral Blameworthiness.

An analysis of defendant's moral blameworthiness reveals that he is indeed quite blameworthy. He broke into someone's home at night to rob. Clearly, defendant could not have been surprised to find the occupant at home. He then brutally murdered the occupant so he could escape apprehension. Irene Schnaps, a helpless victim, was sleeping in her bedroom. As the medical examiner opined, she was hit mostly from behind. She was attacked with blunt instruments and struck so hard that her skull was fractured, her brain lacerated, and her jaw broken. She was beaten about the face and sustained many bruises in a brutal murder.

There is no justification or excuse for the murder. Unlike many of the other E-1 defendants, there is no evidence that defendant suffered from a mental disease, defect or disturbance.

With respect to age and maturity, defendant's age was presented as a non-statutory mitigating factor, and all twelve jurors rejected it. Unlike most of the defendants in E-1, defendant was over forty years old at the time of the murder, and he can be categorized only as a mature, full-grown man.

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

3. Victimization

Victimization consists of "the extent of mutilation of the victim and injury to surviving victims." Bey IV, supra, 137 N.J. at 366 , 645 A. 2d 685 . In this case, Irene Schnaps was struck repeatedly in the head. Although the medical examiner opined that Schnaps was rendered unconscious, she was conscious when defendant began his brutal assault upon her. Even when the victim is not aware of impending death, as was the case in DiFrisco III , this Court has observed that "at the end of the day there is still a victim, a [woman] who was [brutally] murdered...." DiFrisco III, supra, 142 N.J. at 205 , 662 A. 2d 442 . There were no other victims.

4. Defendant's Character

Defendant's character contributes greatly to his moral blameworthiness. Defendant's prior record is extensive and involves convictions for serious, violent crimes. On May 31, 1979, defendant pleaded guilty to rape, atrocious assault and battery. In October 1988, he pleaded guilty to first degree kidnapping and aggravating sexual assault. He also pleaded *1141 guilty to second degree attempted kidnaping, second degree burglary, and third degree burglary. He also was convicted of receiving stolen property. Defendant has broken into homes other than Schnaps's: on the day of his arrest he broke into two homes. In one house, he attacked a couple with an ax; in another, he attempted to abduct a teenaged girl. Also, he later confessed to committing a number of burglaries in West Windsor. Harvey II, supra, 151 N.J. at 117 , 699 A. 2d 596 . Suffice it to say, Nathaniel Harvey is a very dangerous man who has kidnaped, raped, robbed and killed.

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

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

With respect to defendant's moral blameworthiness and character, defendant is highly culpable. In contrast, with respect to defendant's degree of victimization, defendant is moderately culpable.

5. Summaries of Similar Cases

The starting point of the comparative-culpability analysis is the comparison group used in the salient-factors test. Bey IV, supra, 137 N.J. at 367 , 645 A. 2d 685 ("Initially, from the universe of all death-eligible cases, we select a class of cases according to their salient factors."); see also DiFrisco III, supra, 142 N.J. at 186 , 662 A. 2d 442 (using pecuniary-motive murderers to form defendant's comparison group); Martini II, supra, 139 N.J. at 51 , 651 A. 2d 949 (using same salient-factors comparison group). By using the salient-factors test's comparison group for precedent-seeking review, the Court ensures that the two analyses are complementary, can confirm each other, and can be compared to each other. Chew II, supra, 159 N.J. at 214, 731 A. 2d 1070 ; 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 .

As noted earlier, the AOC placed defendant in the E-1 subcategory. When defendant's case is compared to the others in the E-1 category, summaries of which are set forth in Appendix A, we find that defendant's criminal culpability is high and his death sentence is not disproportionate. Defendant asserts that his level of culpability is more like the life-sentenced cases in his comparison group than the death-sentenced cases. We reject that assertion and observe that "[d]isparity alone does not demonstrate disproportionality." Chew II, supra, 159 N.J. at 214, 731 A. 2d 1070 (quoting Bey IV, supra, 137 N.J. at 386 , 645 A. 2d 685 ). Rather, we search for some impermissible factor or pattern that has been broken. Id. at 214, 731 A. 2d 1070 .

Aside from Harvey, two defendants in the E-1 category received death sentences: Gerald and Mejia. Defendant argues that Gerald and Mejia are more culpable than he. We disagree. Both Gerald, State v. Gerald, 113 N.J. 40 , 549 A. 2d 792 (1988), and Mejia, State v. Mejia, 141 N.J. 475 , 662 A. 2d 308 (1995), were sentenced to death. In Gerald , we reversed the capital murder conviction. The Court concluded that the state constitution precluded the imposition of the death penalty on a defendant who purposely or knowingly caused serious bodily injury (SBI) that resulted in death. 113 N.J. at 89 , 549 A. 2d 792 . After reviewing the evidence produced at Gerald's trial, *1142 this Court was unable to discern whether Gerald purposely or knowingly caused death by his own conduct or whether he caused SBI that resulted in death. Id. at 91-92, 100-101 , 549 A. 2d 792 . According to defendant's confession, he hit and "stepped on" the victim, but one of the codefendants "went off" on the victim and threw the TV on him. Id. at 100 , 549 A. 2d 792 .

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

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

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

Other cases in the E-1 group contain similar problems of proof. Caviness and his cohorts entered the victim's apartment, tied the victim up, and ransacked the apartment. A codefendant said Caviness killed the victim by hitting him numerous times with a baseball bat. But, Caviness said that this codefendant had the bat, and that he left the codefendant with the victim.

Gerald Williams's conviction for felony murder was reversed because the Appellate Division held that the trial court's charge on causation was deficient under State v. Martin, 119 N.J. 2 , 573 A. 2d 1359 (1990). The Appellate Division concluded that a jury could have found that the burglary and robbery were not the direct cause of the victim's death. Williams had testified that the victim awoke during the burglary and was at the window with his legs dangling outside and that he, Williams, had tried to help the victim, but was unsuccessful. Here, defendant caused Schnaps's death by repeatedly striking her on the head with a blunt instrument. There is no issue that he did not commit the murder by his own conduct or that the killing was accidental.

In comparing the relative blameworthiness of defendant and the other E-1 defendants, the dissent focuses on the brutality of the crimes. Undoubtedly, all the murders in the E-1 category are brutal and savage. But, many of those cases involved mitigating factors that are not present in defendant's case. In Reigle, the jury found the defendant's capacity to appreciate the wrongfulness of his conduct was significantly impaired as the result of mental disease, or defect, or intoxication. There were facts in Felder, Brown, Mann, Lee, and Britton that also would allow a jury to conclude that the defendant's capacity to appreciate the wrongfulness of his conduct was impaired by mental disease or defect or intoxication. No such evidence is presented here. Defendant's act of breaking into Irene's apartment was not an impulsive act. He previously had committed numerous burglaries.

Brunson also elicited substantial mitigating evidence about his abusive early life *1143 and his extreme emotional disturbance. As a child he had been treated by psychiatrists and psychologists, often including treatment by psychoactive medications. He had twice attempted suicide. He had been diagnosed as being paranoid and schizophrenic, and as having a conduct disorder. Not surprisingly, the jury found as mitigating factors, that at the time of the crime he was mentally disturbed. Szadorski also had severe mental illness, including substance abuse. Mendez was mentally retarded with learning disabilities and a mental age of six. He does not read, write or speak English. He also had no prior criminal record. Herman Williams viciously shot his victims to death. However, Williams was characterized as "culturally retarded." Harvey suffered from no such infirmities. He was not emotionally disturbed or mentally ill when he killed Schnaps. Moreover, when Harvey committed the murder he was significantly older than several of the other defendants were when they committed their murders. Brunson, Caviness, Felder, Phillips, Ploppert, and Szadorski were all much younger than defendant. Because Harvey was more mature than the other E-1 killers, he is more blameworthy.

Finally, Gerald, Brown, Caviness, Felder, Mendez, and Reigle also had no significant history of prior criminal activity. Indeed, aside from Gerald Williams, Harvey's criminal record is more extensive than the other E-1 killers' records. As noted above, see infra at 380-81, 731 A. 2d at 1176-77, Harvey has been convicted of kidnapping and rape. The danger that Harvey poses to society, as evidenced by his violent criminal record, makes him more blameworthy than the other E-1 killers.

Defendant is a cold and calculating murderer. He invaded the privacy of Irene Schnaps's home at night and brutally murdered her to escape detection. To conclude, the facts surrounding each of the above cases in the E-1 category demonstrate that they are distinguishable from defendant's case. Moreover, to the extent they are comparable to defendant's case, this Court has not required identical verdicts in all similar cases. State v. Martini (II), supra, 139 N.J. at 47 , 651 A. 2d 949 . Defendant was not singled out unfairly for capital punishment. His death sentence cannot be seen as an aberration. Defendant has failed to show that his death sentence is in any way disproportionate.

B. Precedent-Seeking Review Conclusion

Proportionality review seeks only to assure that defendant's sentence is not an aberration. See DiFrisco III, supra, 142 N.J. at 166 , 662 A. 2d 442 . It is not intended to ensure that one killer's sentence is identical to all other similarly categorized killers. Ibid. Additionally, the mere fact that one or two comparison cases may be more deathworthy than Harvey does not establish that Harvey's sentence is disproportionate. See DiFrisco III, supra, 142 N.J. at 209 , 662 A. 2d 442 . A comparison between defendant's case and other similar cases reveals no disproportionality in defendant's sentence.

IV

Other Arguments

Defendant asserts that the death penalty is unconstitutional because black defendants are more likely to receive the death penalty than white defendants. In Loftin II, supra, 157 N.J. at 154-55 , 724 A. 2d 129 , we rejected that claim. There is no major statistical change since Loftin II, supra . Therefore, we continue to reject that claim.

Defendant also claims that the geographic distribution of capital charging and sentencing renders the death penalty unconstitutional, and that the overall death sentencing rate is so low that any death sentence is arbitrary, excessive, and unprincipled. This Court has previously rejected those claims, see DiFrisco III, 142 N.J. at 210 , 662 A. 2d 442 ; Martini II, *1144 supra, 139 N.J. at 80 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 396 , 645 A. 2d 685 ; Marshall II, supra, 130 N.J. at 195-200 , 613 A. 2d 1059 , and we do so again today.

V

CONCLUSION

Defendant has not demonstrated that his death sentence is disproportionate. Accordingly, defendant's death sentence is affirmed.

APPENDIX A

Comparison of E-1 Case Summaries

A) Walter Gerald

This case is reported at State v. Gerald, 113 N.J. 40 , 549 A. 2d 792 (1988).

John Matusz, eighty-nine years old, lived with his fifty-five year-old son, Paul Matusz. John was disabled as the result of a stroke. Neither John nor Paul were self-sufficient, so two of John's daughters took turns staying at the house to care for them.

On August 13, 1982, John's daughter, Lottie, was staying at the house. John retired for the evening at 6:30 p.m. Paul went to his room to watch television, and later retired. Lottie watched television until she went to bed at 9:30.

The defendant and his two co-defendants broke into the home. Lottie heard noise from the other first-floor bedroom, and as she opened the door to that room, Lottie was struck in the eye by someone standing behind the door. Lottie was then attacked by two males. One of the intruders had a knife or blade. The intruders threw Lottie to the floor, punched and kicked her and threw her into the bathroom. One of the intruders continued to stomp on her and she was told "shut up or I'll kill you." She suffered a broken nose and contusions of the face, neck, and chest. When asked where her money was kept, she told him the location of her purse. Paul heard the commotion and came down the stairs to investigate. Two of the intruders attacked Paul, and one struck Paul in the face with a television set.

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

The police received a tip that Gerald had committed the murders. They arrested him on outstanding warrants. After failing a polygraph, Gerald confessed. He stated that he, Eddie Walker, and John Bland had entered the Matusz house, intending to steal a television set that they previously had seen from outside the house. Gerald "had" the woman, and admitted striking her a couple of times. Walker "had" the younger man (Paul), while Bland roused the old man (John) from bed. The young man was giving Walker a lot of trouble, so Gerald and Bland went to assist Walker. They beat the younger man with their hands, then left him alone. Gerald went back to the woman, and Bland returned to the older man. Bland beat the older man with a lamp and a cane, or both. Gerald said that Walker "just went off" on the younger man, hitting him with a trophy, punching him, and throwing a television set on his face. Gerald also admitted that, on the *1145 way out of the house, he stepped on Paul's face.

Walter Gerald was twenty-four years old. He graduated from high school and entered college on an athletic scholarship. He lost the scholarship because of a leg injury. He then completed three semesters at a community college. Gerald suffered from drug addiction. His record reveals one conviction for theft, for which he was sentenced to sixty days in jail and one year probation.

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

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

B) Rijoberto Mejia

This case is reported at State v. Mejia, 141 N.J. 475 , 662 A. 2d 308 (1995).

In the summer of 1991, Mejia and Balbino Garcia were co-workers at a hotel. Before Mejia was fired, he asked Garcia to safeguard his savings of $750. After moving to Brooklyn, Mejia called Garcia to recover his money, but Garcia refused to return the money. Mejia then learned that Garcia intended to return to Mexico on December 8, 1991. Three hours before the flight, Mejia, armed with a .357 Magnum, and an accomplice armed, with a knife, confronted Garcia in the hotel basement.

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

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

Mejia was convicted of capital murder, felony murder, armed robbery, aggravated assault, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. At the penalty trial, the jury found aggravating factor c(4)(g), that the murder was convicted during the course of *1146 a robbery, and mitigating factor c(5)(h), the catch-all factor. Under c(5)(h), the jury found that Mejia had suffered psychological and physical abuse at the hands of his father, and that he was the victim of emotional deprivation from his parents. The jury sentenced Mejia to death. The court imposed a custodial term on the other convictions.

We reversed Mejia's death sentence finding plain error with the trial court's failure to instruct the jury that it could return a non-unanimous verdict that defendant intended only to cause SBI that resulted in death. Relying on Mejia's confession in which he claimed that his gun fired accidentally and that he never intended to kill, we found that there was a rational basis for a jury to find that Mejia did not purposely and knowingly intend to kill Garcia but only intended to cause him serious bodily injury that resulted in death. Mejia, supra, 141 N.J. at 506 , 662 A. 2d 308 . Mejia's convictions were affirmed.

C) Will Alexander

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

The AOC narrative classifies this case as having aggravating factor, c(4)(g), contemporaneous felony, and mitigating factor c(5)(h), the catch-all factor. Alexander was not capitally prosecuted. He was convicted of conspiracy, one count of burglary, two counts of robbery, felony murder, murder, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, and criminal trespassing. For felony murder, Alexander was sentenced to life imprisonment with a thirty-year parole disqualifier. For murder, he was sentenced to life imprisonment with a thirty-year parole bar, concurrent to the felony murder. For burglary and robbery he was sentenced to ten years each, concurrent with the sentence for felony murder. Alexander was also sentenced to eighteen months for criminal trespassing and five years for unlawful possession, both concurrent to the felony murder sentence.

Alexander was a high school graduate and had received training in air conditioning and heating. [1] He was unemployed at the time of the arrest, but had worked in the past as a factory worker. He denied alcohol or drug abuse. Alexander had previous convictions for simple assault and burglary.

D) Jerry Britton

On March 13, 1995, the victim, a twenty-four-year-old woman, was in her apartment. Jerry Britton climbed through the window into the victim's apartment. The victim confronted Britton and said that she had known that he was the one breaking into apartments. She then telephoned the police. Britton took two knives from the kitchen and stabbed the victim sixteen times in the area of the head, neck, back, and shoulders, killing her. It also appears that the victim was beaten. Britton later told a friend that he had hoped he killed her so that she could not be a witness. Britton stole a video and Sega game machine, *1147 which he immediately sold for money to buy drugs.

Britton was arrested after a witness stated that Britton had admitted to killing the victim. After his arrest, Britton gave a sworn statement to the police about the murder. Britton also admitted to having previously burglarized the victim's apartment.

Britton lived in a second-floor apartment in the same complex as the victim. He was widely suspected among the residents as being responsible for multiple thefts. He was a high school graduate and had worked assembling air conditioners. However, at the time of the murder, he had been unemployed for about a year. Britton was a heroin addict. He had been previously convicted of robbery, which had been downgraded to simple assault.

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

E) David Brown

On November 16, 1995, David Brown and two co-defendants were at a co-defendant's apartment drinking alcohol and using drugs. When they ran out of beer, drugs, and money, one of the co-defendants suggested that they rob a fifty-eight-year-old drug dealer known to have both drugs and money. Brown and one co-defendant went to the drug dealer's apartment. When the dealer partially opened the door, one of the co-defendants kicked in the door. Once inside, a struggle ensued. The dealer attempted to throw them out of the apartment. The AOC narrative states that the "victim pulled a knife and defendant stabbed him several times." According to Brown's co-defendant, the defendant "pulled out a ginzu and stabbed the victim several times." The victim died from multiple stab wounds all over his body.

Brown was twenty-seven years old at the time of the killing. He was a high school graduate and had attended technical school. At the time of the killing, he worked as a freelance car painter and was employed as a security guard. He had no prior record. He had received outpatient drug and alcohol treatment and claims to have stopped using drugs three years prior to the killing. However, he continued to drink alcohol and it appears that he was intoxicated at the time of the offense.

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

F) Alphonso Brunson

Between November 28, 1987, and December 3, 1987, Alphonso Brunson broke into an eighty-two-year-old woman's home three times. The third time, the woman surprised him. The woman was found two days later, having died from several severe blows to the head. Brunson later admitted *1148 to burglarizing the woman's home three times, but claimed that on the third occasion he was accompanied by a companion who panicked and hit the woman with a table leg. The companion, however, had an alibi.

At the time of the murder, Brunson was twenty-one years old. He was a high-school dropout and had a sparse employment history. He had a history of mental disorders. From the age of seven to eighteen he was in over thirty institutions, hospitals, schools, and foster homes. He had tried to kill himself twice and was diagnosed as being extremely paranoid and schizophrenic. Psychiatrists testified that he lacked impulse control and had the maturity level of a juvenile. He was abused as a child. At the time of his arrest, Brunson was homeless and indigent. Brunson had three prior arrests, two for burglary and one for attempted escape.

Brunson was convicted of several charges, including purposeful murder, felony murder, robbery and burglary. At the penalty phase, the jury found that the aggravating factors did not outweigh the mitigating factors. The jury found two aggravating factors, c(4)(f), escape detection, and c(4)(g), that the murder was committed during the course of a burglary. The mitigating factors found by the jury were c(5)(a), emotional disturbance; c(5)(d), mental disease, defect or intoxication; c(5)(c), defendant's age; and c(5)(h), the catch-all. Brunson was sentenced to an aggregate prison term of life imprisonment plus fifty years with a mandatory minimum of fifty-one years before becoming eligible for parole.

H) Duane Vance Caviness

On or about June 8, 1984, Duane Caviness and two co-defendants entered the apartment building where Caviness's stepfather lived. Caviness later acknowledged that they had intended to rob and kill his stepfather until they discovered that the alarm system was operating in the stepfather's apartment. Instead, they broke into an apartment belonging to a fifty-five-year-old man. The assailants tied up the man and Caviness hit him with a baseball bat. They ransacked the apartment looking for items with resale value and they took some items. They then ransacked another apartment in which no one was home. The fifty-five-year-old man was later found dead with his hands and feet bound. The autopsy revealed ten wounds and identified the cause of death as physical assault with multiple head, neck, and chest injuries caused by blunt force.

Caviness was nineteen years old at the time of the murder. He was educated through the tenth grade. He had a sporadic work history and was unemployed at the time of the offense. He had a history of cocaine, marijuana, and "pill" abuse. His adult police record consists of two arrests for burglary, but no convictions.

Caviness and the co-defendants blamed each other. The prosecutor initially sought the death penalty against Caviness, and charged him with purposeful-or-knowing murder. Ultimately, Caviness pleaded guilty to felony murder and two counts of burglary. He was sentenced to life imprisonment with thirty-years parole ineligibility on the murder, and four years in prison for each burglary.

The AOC classifies this case as having two aggravating factors, c(4)(f), murder to escape detection, and c(4)(g), contemporaneous felony, and three mitigating factors, c(5)(c), defendant's age, c(5)(f), no significant prior record, and c(5)(h), the catch-all factor.

I) Albert Carrow Fains

Arthur Williams was confined to a wheelchair, so he lived with a home health aide, Ella Johnson. Williams was known to keep large amounts of cash in the apartment and gave people money to run errands for him. On March 14, 1984, Johnson left Williams alone so that she could care for another patient. Early that evening, *1149 Lisa Daniels visited Williams. Albert Fains, who lived next door to Williams, went to Williams' apartment about fifteen minutes later. Williams gave Fains money to buy cigarettes, sandwiches, and marijuana. Fains, Williams, and Daniels spent the evening in Williams' apartment. Fains was the first to leave the apartment, but was later seen returning to the apartment in the middle of the night.

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

Fains was twenty-six at the time of the murder. He is a high school graduate. He had been unemployed for four to five years preceding the crime. Fains used marijuana, but had never been treated for drug abuse. He was diagnosed as having an adjustment disorder with depressed mood and avoidance personality.

Fains was convicted of knowing murder, robbery, felony murder, and possession of a weapon for an unlawful purpose. On the murder count, Fains was sentenced to life imprisonment with a thirty-year parole bar. He was sentenced to fifteen years for the robbery count, concurrent to the murder conviction. The remaining convictions were merged.

The AOC classifies this case as having aggravating factor, c(4)(g), contemporaneous felony, and mitigating factor, c(5)(h), the catch-all factor.

J) Carlton Felder

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

Felder was initially charged with purposeful-or-knowing murder, felony murder, robbery, burglary, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. Felder pleaded guilty to aggravated manslaughter, robbery and burglary. He was sentenced to thirty years with a fifteen year minimum for the aggravated manslaughter, a twenty-year consecutive sentence with a ten-year parole bar for robbery, and a five-year concurrent sentence for the burglary.

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

K) Franklin Flowers Hudson

On September 1, 1986, Franklin Flowers Hudson broke into a home through the basement window. When the homeowner walked down to the basement to do laundry, *1150 Hudson forced her at knife-point to the master bedroom, where he tied her up and gagged her. Hudson took a small amount of cash and jewelry. Hudson told her he wanted her boarder's money and car keys. The boarder, a sixty-year-old man, returned home shortly thereafter. Hudson told the woman to stay put, and he went downstairs to confront the boarder. The boarder offered his keys and money, but a struggle ensued. Hudson stabbed the boarder multiple times. The boarder ran up the stairs with Hudson following him. Hudson then kicked the boarder, causing him to fall. Hudson then hit the boarder over the head with a baseball bat. On November 16, 1986, four days before Hudson was sentenced, the boarder died from his injuries. Hudson took approximately $200 and the car keys.

A witness spotted Hudson fleeing from the scene. After his arrest, Hudson admitted to everything except stealing the woman's jewelry. He also stated that he was under the influence of cocaine and beer at the time of the crime.

Hudson pleaded guilty to felony murder. Charges of aggravated assault and burglary were dismissed. Hudson was sentenced to life imprisonment with a thirty-year parole bar.

The AOC classifies this case as having aggravating factor c(4)(g), contemporaneous felony, and mitigating factor c(5)(d), mental disease, defect or intoxication, and c(5)(h), the catch-all factor. Hudson was twenty-one years of age at the time of the killing. He was living with his mother, sisters and brother at the time of the offense. As noted above, Hudson was under the influence of cocaine and alcohol at the time of the crime. He had no history of mental illness. Prior to the crime, Hudson had worked as a groom at two race tracks and as a sanitation worker for a disposal company. Hudson had two prior convictions for aggravated assault.

L) Timothy Paul Lee

On the morning of March 18, 1988, Timothy Paul Lee woke up feeling the need for heroin. He took a knife and drove his mother's car to the home of a sixty-five-year-old man. Lee kicked in the back door of the home. The man woke from the noise, so Lee approached him and stabbed him in the chest, killing him. Lee then took the man's wallet and a bottle of Valium and left. Lee used the money to purchase heroin and was stopped by the police while in possession of the heroin, Valium and the victim's wallet. He gave a full confession to the police.

Lee was initially charged with two counts of murder, robbery, burglary, possession of CDS, possession of a weapon for an unlawful purpose, and felony murder. Lee pleaded guilty to felony murder and was sentenced to life imprisonment with a thirty-year parole bar.

At the time of the killing, Lee was thirty-five years old. He was a plumber by trade and had also worked as a carpenter and computer repair man. He is a high school graduate and had completed a computer repair course. He had no mental health problems. Lee was addicted to heroin, and had four prior convictions for possession of marijuana, importing cocaine, shoplifting, and theft by deception.

The AOC classifies this case as having aggravating factor c(4)(g), contemporaneous felony, and mitigating factors c(5)(d), mental disease, defect or intoxication and mitigating factor c(5)(h), the catch-all factor.

M) Dwayne Mann

On October 3, 1988, Dwayne Mann and two co-defendants were high on crack cocaine after a three-or-four-day binge. The three broke into the apartment of a thirty-one-year-old man to steal his car keys and take his car. The man was asleep on the couch while the three were searching for the keys. One of the co-defendants gave Mann a loaded gun to hold. When the man woke up, Mann panicked and shot *1151 him in the head, killing him. The three then took the man's car. The victim's brother later saw Mann driving the victim's car. After Mann was subsequently arrested, he gave a full statement to the police.

Mann was convicted of murder, murder in the commission of a robbery, murder in the commission of a burglary, and possession of a weapon for an unlawful purpose. For murder, Mann was sentenced to life imprisonment with a thirty-year parole bar and for unlawful possession, Mann was sentenced to five years with a two and one-half year parole bar. The other counts merged.

At the time of the murder, Mann was twenty-one years old. Mann had been educated through the tenth grade, at which point he dropped out because of his drug problem. Mann was addicted to crack cocaine, and he used PCP heavily. Mann claimed he "worked off the books" renovating apartments. He has an extensive prior record, including nine prior arrests and six convictions for possession of narcotics. For one prior arrest, he was charged with attempted murder with a firearm.

The AOC classifies this case as having aggravating factor c(4)(g), contemporaneous felony, and mitigating factors c(5)(d), mental disease, defect, or intoxication, and c(5)(h), the catch-all factor.

N) Incenzio Mendez

On September 25, 1983, Incenzio Mendez was planning to rob the home of the owner of the farm on which he was working. The owner of the farm was Ms. Lum, a ninety-five-year-old woman. Mendez checked to see if Ms. Lum was home. He then saw Ms. Lum approaching, so he came up behind her with a stick he found near the house. Using the stick, Mendez knocked her down with three blows to the head. When Ms. Lum attempted to get up, Mendez kneed her in her side and struck her in the neck. She died from her injuries. After killing Ms. Lum, Mendez went into her house looking for money and jewelry.

Mendez later gave two statements to the police. In the second statement, he admitted that he struck Ms. Lum to kill her so that she could not identify him later.

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

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

O) Lance Philips

On July 21, 1991, the victim, a twenty-year-old male, and a seventeen-year-old female were at the home of an eleven-year old girl preparing cocaine for distribution. That afternoon, Lance Philips paid them a visit. The seventeen-year-old continued preparing the cocaine as Philips spoke. The twenty-year-old male showed Philips a blue bag containing approximately one-half *1152 kilogram of cocaine. Philips then left. The seventeen year old female went to sleep in the living room, while her sister and the twenty-year-old went out on the front porch.

Later that day, Philips and two co-defendants went to the house dressed in black, with black hoods, ski masks, or other material covering their faces. The twenty-year-old ran into the house and attempted to close the door. Two of the men ran after the twenty-year-old, while Philips grabbed the sister, pointed a gun at her head, and fired. The shot missed, and she fled and hid.

Philips struggled with the twenty-year-old, and then shot him five times. Philips and one of his co-defendants each shot the seventeen-year-old. Another of the men shot the eleven-year-old in the chest. They then shot the twenty-year-old again. Only the twenty-year-old died from his injuries. The assailants left with the bag of cocaine.

Philips eventually gave a statement to the police in which he admitted his involvement in the shooting. He also named the two men that accompanied him. One of the co-defendants also gave a statement, and he led the police to a storage bin containing more than three hundred vials of cocaine, drug paraphernalia, handguns, rifles, and a variety of ammunition.

Philips was convicted of murder, felony murder, armed robbery, two counts of attempted murder, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. Philips had been indicted on three counts of attempted murder; however, for one of the counts of attempted murder, the jury found Philips guilty of the lesser included offense of aggravated assault. For murder, Philips was sentenced to a term of life imprisonment with a thirty-year parole bar. The remainder of his sentence is as follows: for armed robbery, twenty years with a ten-year parole bar, consecutive to the sentence for murder; for the first count of attempted murder, twenty years, with a ten-year parole bar, consecutive to the other sentences; for the second count of attempted murder, a concurrent twenty-year term with a ten-year parole bar; for aggravated assault, a concurrent eighteen-month term; and for unlawful possession of a weapon, a concurrent five-year term. The remaining convictions merged.

The AOC classifies this case as having aggravating factor c(4)(g), contemporaneous felony, and mitigating factors c(5)(c), defendant's age, and c(5)(h), the catch-all factor. At the time of the offense, Philips was nineteen-years-old and living with his mother. He is the father of one child. He is a high school dropout. It is not certain whether Philips was employed at the time of the crime, though he had previously worked as a cleanup person at a restaurant. Philips denied ever having used drugs or alcohol, though he has tested positive for cocaine and marijuana in the past. Additionally, police reports from a prior arrest note that Philips was under the influence of alcohol. As a juvenile, Philips was adjudicated delinquent on seven occasions. As an adult he had prior convictions for possession of a controlled dangerous substance and for possession of a weapon for an unlawful purpose.

P) Charles Ploppert

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

After entering the house, Ploppert and the co-defendant sat at the table talking with the man. Then Ploppert approached the man from behind and struck him on the head with his fist. After the man fell to the ground, Ploppert beat and kicked *1153 the man in the head, rendering him unconscious. Ploppert and the co-defendant searched the house for money, finding approximately $1500, which they later split between them. Ploppert then piled wood on the man and poured lighter fluid on the wood and around the house. Ploppert then ignited the wood. The man died.

The co-defendant gave a statement to the police detailing Ploppert's role in the killing. Also, Ploppert's live-in girlfriend stated that Ploppert and his co-defendant had told her that they were both involved in the assault and the fire.

Ploppert was twenty-four-years old when he committed the crime. Ploppert was a high school graduate, but had a learning disability. At the time of the murder, Ploppert was living with his girlfriend and five-year-old daughter. Ploppert had a serious drug abuse problem, and though he had been through three drug rehabilitation programs, he continued to use drugs. A clinical psychologist diagnosed Ploppert as perceptually impaired with a low range of intelligence and an addiction to methamphetamine and cocaine. Ploppert had no previous convictions.

Ploppert was charged with two counts of knowing-or-purposeful murder, one count of felony murder, two counts of robbery, and two counts of aggravated arson. He pleaded guilty to purposeful-or-knowing murder, robbery, and aggravated arson. At the penalty trial, the jury found aggravating factors c(4)(c), extreme suffering; c(4)(f), escape detection; and c(4)(g), contemporaneous felony. The jury found the following mitigating factors: c(5)(a), emotional disturbance; c(5)(c), the defendant's age; c(5)(d), mental disease or defect; and c(5)(h), the catch-all factor. The jury found that the mitigating factors outweighed the aggravating factors. Ploppert was sentenced to a life term with a thirty-year parole bar for murder, a concurrent twenty-year term for robbery, and a concurrent ten-year term for aggravated arson.

Q) Thomas Reigle

On September 1, 1984, Thomas Reigle and his girlfriend returned to Reigle's home after purchasing drugs. Reigle was high on speed and needed money to purchase additional drugs. Reigle resided in a house with his mother, a seventy-three-year-old aunt, and a sixty-two-year-old uncle. The house was a two story home, and the aunt and uncle shared an upstairs apartment.

Reigle asked the aunt to allow him to enter the apartment so that he could borrow money. After she refused, Reigle broke into the apartment. Reigle entered the aunt's room and broke her glasses. He took her purse into the bathroom, but before he could get any money, he heard her stirring. Reigle returned to the aunt's room and hit her several times with the bat. He then went to his uncle's room and struck him several times with the pipe, killing him. Reigle's mother and girlfriend saw Reigle with the pipe. He fled to another state, but was apprehended shortly thereafter. Reigle eventually gave a full confession.

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

Reigle was convicted of purposeful-or-knowing murder, two counts of felony murder, aggravated assault, robbery, and burglary. At the penalty trial, the jury found aggravating factor c(4)(g), contemporaneous felony. The jury found mitigating factors c(5)(d), mental disease, defect or intoxication; c(5)(f) no significant prior *1154 record; and c(5)(h), the catch-all factor. The jury did not find that the aggravating factors outweighed the mitigating factors. Reigle was sentenced to life imprisonment.

R) Anthony Szadorski

Anthony Szadorski met a seventy-six-year-old woman at an Alcoholics Anonymous meeting. They became friends and Szadorski did yard work for the woman. On May 25, 1993, Szadorski and a co-defendant broke into the woman's apartment. When the woman jumped up and asked Szadorski what he was doing, Szadorski pulled a knife from his pocket and stabbed her multiple times. As the woman tried to crawl away, Szadorski continued stabbing her. The co-defendant then entered the room and Szadorski asked for the BB gun the co-defendant was carrying. Szadorski then beat the woman in the head with the gun until she stopped moving. The woman died from her injuries. Szadorski and the co-defendant took items from the woman's house and car. Szadorski later told an acquaintance that he had killed the woman by slashing her throat, and that once he started stabbing her he could not stop.

Szadorski was charged with four counts of purposeful-or-knowing murder, felony murder, robbery, burglary, possession of a weapon for an unlawful purpose, possession of a knife for an unlawful purpose, unlawful possession of a weapon, possession of a weapon without a permit, auto theft, and hindering apprehension. Szadorski pled guilty to felony murder, robbery, possession of a knife for an unlawful purpose, theft of auto, and hindering apprehension. For felony murder, Szadorski was sentenced to life imprisonment with a thirty-year parole bar. For auto theft, he was sentenced to five years concurrent, and for hindering apprehension, he was sentenced to five years consecutive. The robbery and weapons offenses merged.

The AOC has classified this case as having aggravating factor c(4)(g), contemporaneous felony, and mitigating factors c(5)(c), defendant's age; c(5)(d), mental disease, defect, or intoxication; c(5)(g), gave substantial evidence to the police; and c(5)(h), the catch-all factor.

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

S) Gerald I. Williams

On the evening of November 23, 1984, Gerald Williams was walking home with his eight year old daughter after buying her ice cream. They came upon Williams' friend J.C. Boyd. Williams and Boyd had some drinks and decided to purchase some drugs. They went to Boyd's wife's home to borrow money; however, she was not home. They then went to an apartment belonging to a friend of Boyd.

On the way, they noticed that a door to one of the other apartments was ajar. Hearing a television, they knocked on the door. When there was no answer, they entered the apartment. Williams' daughter remained at the door. Upon entering the apartment, Williams and Boyd found a fifty-one-year-old male asleep on the couch. There were two television sets in the apartment. As Williams turned off the television in the bedroom to steal it, the man awoke. Boyd punched the man and *1155 pushed him toward Williams, who threw a cover over the man and banged the man's head against a windowsill. The man broke free, went to the window, and called for help. Williams hit the man over the head. He put down the television and threw the man out of the window. The man fell three floors. The medical examiner concluded that the man died from being struck on the head by a blunt instrument, and would have died even had he not been thrown from the window. Williams searched through a pair of pants draped over a chair, took some money, and left the apartment with the newer of the television sets.

After a police investigation revealed that Williams and Boyd may have been responsible for the crime, the police took a statement from Williams' daughter. She admitted seeing Williams throw the man out the window.

The AOC narrative classifies this case as having aggravating factor c(4)(g), contemporaneous felony, and mitigating factors c(5)(d), mental disease, defect or intoxication, and c(5)(h), the catch-all factor. Williams was thirty-four years old at the time of the murder. Williams was the father of six, by five different women. Although previously being addicted to drugs, Williams underwent a treatment program from 1978 to 1980, and denied any addiction at the time of the murder. However, prior to the murder, Williams had been drinking. Williams dropped out of school in the tenth grade because he was arrested and subsequently incarcerated. Over the years, Williams was arrested thirty times and served twelve different terms of incarceration as an adult and juvenile.

Williams and Boyd were indicted for felony murder, burglary, and robbery. After being granted immunity, Boyd testified against Williams. Williams testified in his own defense, and claimed that the victim accidentally fell out the window as the victim attempted to call for help. Williams was convicted on all three counts. For felony murder, he was sentenced to life imprisonment with a parole ineligibility of thirty years. The two other convictions merged. Defendant's conviction for felony murder was reversed because the trial court's charge on causation was deficient under State v. Martin, 119 N.J. 2 , 573 A. 2d 1359 (1990). The Appellate Division concluded that a jury could have found that the burglary and robbery were not the direct cause of the victim's death. Williams had testified that the victim awoke during the burglary and was at the window with his legs dangling outside and that he, Williams, had tried to help the victim, but was unsuccessful.

T) Herman Williams

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

Benjamin's daughter selected a photo of Williams and said that he had killed their father. Later, the accomplice gave a statement claiming that Williams forced him to participate in the robbery and murder. At trial, in response to the State's promise not to move for waiver of juvenile jurisdiction and not to seek the maximum sentence, the accomplice testified against Williams.

Williams was convicted of murder, felony murder, burglary, robbery, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose. For murder, Williams was sentenced to life *1156 with a thirty-year parole bar. For robbery, Williams was sentenced to a consecutive fifteen-year term with a seven-and-one-half-year parole bar. For unlawful possession, he was given a concurrent four-year term, and he was sentenced to a seven-year concurrent term for the other weapons offense.

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

APPENDIX B

Comparison of Other E and G Cases that Defendant Asserts Should Be in the E-1 Category

A) Jesus DeJesus

On March 31, 1995, Jesus DeJesus entered the apartment of a forty-nine-year-old woman who lived in the apartment below his. DeJesus stabbed the woman to death and set the woman on fire. DeJesus took some jewelry from the apartment. The woman's remains were identified by her dental records.

DeJesus's brother informed the police that DeJesus was selling jewelry. The jewelry was subsequently identified as belonging to the victim. When confronted by the police with the jewelry that he had stolen, DeJesus stated that he had not cut the woman. When the police informed him that the cause of death had not been determined, DeJesus put his head down and requested an attorney.

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

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

B) Wayne Busby

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

*1157 Busby was charged with knowing-or-purposeful murder and felony murder. Defendant was convicted of both counts. The prosecutor served a notice of aggravating factors for c(4)(g), contemporaneous felony, and c(4)(f), seeking to escape detection. At the penalty trial, the jury found both aggravating factors, and also found mitigating factors c(5)(a), emotional disturbance; c(5)(d), mental disease, defect or intoxication; and c(5)(h), the catch-all. Additionally, the jury found that the aggravating factors did not outweigh the mitigating factors. Busby was sentenced to life imprisonment with a thirty-year parole bar.

Busby was thirty-one-years old at the time of the murder. As a child, he was "an embarrassment to his family" and was subjected to physical and psychological abuse. At age fifteen, Busby began using marijuana, and he eventually started abusing crack, PCP, and alcohol. Relatives thought that he was emotionally unstable. After the murder, Busby attempted suicide. Busby had a prior robbery conviction and two disorderly person convictions.

C) Thomas Dollard

On July 14, 1990, Thomas Dollard and two co-defendants, Dwayne Knight and Leon Durhan, entered an apartment building in search of someone to rob of money or drugs. Dollard was armed with a handgun and Knight with a shotgun. The trio encountered a couple in the stairwell of the building, and asked the couple if they had drugs. The couple stated that they did not, and the three made the couple take down their pants and the three searched the couple for drugs. The three forced the couple to knock on an apartment door and to try to use the resident's familiarity with the couple to get them to open the door. When that did not work, Knight kicked in the door. Dollard ran into the apartment while Knight and Durham brought the couple into the apartment. One of the residents of the apartment, a forty-seven year old man, began to get out of bed. Dollard told the man to lie down. When the man asked why Dollard was doing it, Dollard shot the man in the chest. The man asked why he did it, and then collapsed. He died from his wounds.

Durhan later gave a statement to the police in which he implicated Knight and Dollard. Knight gave a statement implicating Durhan and Dollard.

Dollard was charged with burglary, two counts of aggravated assault, three counts of robbery, felony murder, murder, possession of a weapon, two counts of unlawful possession of a weapon, and two counts of possession of a weapon for an unlawful purpose. He was convicted of all counts and was sentenced to an aggregate sentence of life plus ten years with a thirty-five-year parole bar.

At the time of the murder, Dollard was twenty-one years old. He lived with his grandmother and worked as a "material handler." Dollard dropped out of high school in the eleventh grade. He is in good mental health, but suffers from bleeding ulcers, sickle cell anemia, and an old shotgun wound to the leg. Dollard admits to using cocaine, hits, and "p-dope." Dollard had one prior conviction for unlawful possession of a weapon. The AOC narrative classifies this case as having aggravating factor c(4)(g), contemporaneous felony, and mitigating factors c(5)(c), the defendant's age, and c(5)(h), the catch-all.

D) Larry Durden

Larry Durden worked as a part-time security guard in an apartment building. Durden changed the locks on the door of a seventy-two-year-old tenant's apartment, and the woman invited Durden for dinner. Durden went to dinner at her apartment and sometime during the evening, Durden stabbed the woman. The woman died from the stab wounds to her forehead and abdomen. A small ax-type object found in the victim's apartment was believed to be the murder weapon. Durden took the *1158 woman's groceries, television set, and radio.

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

Durden was charged with purposeful-or-knowing murder, felony murder, and burglary, and was convicted on all counts. The prosecutor submitted aggravating factor c(4)(g), contemporaneous felony, to the jury. The jury found that factor and the catch-all mitigating factor, c(5)(h). The jury determined that the aggravating factor did not outweigh the mitigating factor. Durden was sentenced to life imprisonment with a thirty-year parole bar for murder and a seven-year consecutive sentence for burglary.

Durden was thirty-one years old at the time of the crime. He had received a general equivalent diploma and had been honorably discharged from the United States Navy. He was employed at the time of his arrest and had no mental problems or drug addiction. He had prior convictions for armed robbery, felony breaking and entering, and a parole violation.

E) Aaron Huff

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

Huff was charged with purposeful-or-knowing murder, felony murder, and burglary, and he was convicted of all charges. The prosecutor filed a notice of aggravating factors for c(4)(c), extreme suffering, and c(4)(g), contemporaneous felony. The jury found both aggravating factors and found mitigating factors c(5)(d), mental disease, defect, or intoxication; and c(5)(h), the catch-all factor. The jury also found that the aggravating factors did not outweigh the mitigating factors. Huff was sentenced to life imprisonment with a thirty-year parole disqualifier.

Huff had been drinking heavily on the day of the murder. A psychiatrist testified that Huff "goes wild" when drunk. Huff was raised in poverty. After living in a shack, Huff and his family eventually began living in a car. His mother was an alcoholic and his father was incarcerated. Huff started drinking at age fourteen and started using drugs shortly thereafter. At some point during his adolescence, Huff attempted suicide. There was psychiatric testimony that Huff had an antisocial disorder, an antisocial personality and mentally was still an adolescent. Between 1978 and 1984, Huff was convicted of eight disorderly persons offenses, conspiracy, larceny, and two counts of burglary.

F) Michael Suarez

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

*1159 In a taped statement, Suarez gave a full confession to the police. Suarez was charged with murder, felony murder, robbery, two counts of burglary, and unlawful possession of a weapon, and was convicted of all charges. For robbery he was sentenced to twenty-years' imprisonment with a ten-year parole bar; for burglary, he was sentenced to a concurrent ten-year term with a five-year parole bar; and for murder, he received a consecutive term of life with a thirty-year parole bar. The remaining convictions merged.

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

G) Thomas Wolfe

On September 23, 1990, Thomas Wolfe had been drinking and using drugs throughout the day. He went to the home of a seventy-two-year-old female and broke in through a rear window. Wolfe was surprised by the woman, and a struggle ensued. Wolfe slashed the woman's throat three times. The woman also suffered numerous puncture wounds to her back. A neighbor found the woman's body lying in a pool of blood and covered by a blanket. An autopsy determined that the woman bled to death.

Wolfe's mother, stepfather, and brother gave statements to the county prosecutor in which they stated that Wolfe had come home with blood on his clothes and confessed that he broke into the woman's home and killed her. Subsequently, Wolfe surrendered to the police.

Wolfe was charged with purposeful-or-knowing murder, murder in the commission of a crime, burglary, robbery, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. He was convicted on all counts. In the penalty phase, the jury found aggravating factor c(4)(g), contemporaneous felony, and mitigating factors, c(5)(c), the defendant's age; c(5)(d) mental disease, defect, or intoxication; c(5)(f), no significant prior record; and c(5)(h), the catch-all. The jury could not unanimously agree on a sentence and, thus, defendant was sentenced to life imprisonment with a thirty-year parole bar for murder, a consecutive ten-year term for burglary, and twenty years with a seven-year parole bar for robbery to run consecutive to the life sentence and concurrent to the sentence for burglary.

At the time of the murder, Wolfe was twenty-two years old, living with his parents, and unemployed. As a school age child, Wolfe was classified as emotionally disturbed and was placed in special education classes. Wolfe dropped out of school in the eleventh grade and had training in heating/air conditioning repair.

Wolfe had an extensive history of drug abuse, for which he repeatedly received treatment. At the penalty trial, several people testified that Wolfe was a good person and that drugs and alcohol had ruined him. Wolfe also testified that he hated himself for letting his life get out of control and for not having the power to stop taking drugs. He also expressed remorse for killing the woman.

H) Daniel Hart

On January 22, 1990, Daniel Hart and William Hoffman were at Hoffman's home drinking alcohol and getting high on PCP and marijuana. Hoffman came up with the idea to kill a twenty-three-year-old woman whom they believed to be a "snitch." Hoffman had taken a key to the woman's apartment building from the *1160 woman's ex-boyfriend. To get the woman out of her apartment, Hoffman rang the buzzer at the main entrance. When the woman went to the main entrance, Hart tried to sneak into her apartment. The woman saw Hart enter her apartment when she and Hoffman were returning to the apartment. Hoffman and the woman went into the bedroom to talk while Hart waited in the living room. Hoffman told her that he and Hart had been in a fight and needed a place to hide. Sensing that he was lying, the woman asked Hoffman to leave. Hoffman then tried to smother her with a pillow. The woman tried to fend off the attack, and Hart entered the room and slashed the woman's throat thirty times, killing her. An autopsy revealed that the woman had numerous stab wounds to the neck, head and back. Hoffman took $25 from the woman. He also put a VCR in a bag, but decided not to take it because they were going to have to walk home.

Hoffman gave a statement to the police detailing the crime. Hart was charged with two counts of murder, felony murder, robbery, burglary, possession of a weapon for an unlawful purpose, and possession of a weapon other than a firearm. Pursuant to a plea agreement, Hart pled guilty to aggravated manslaughter, robbery and burglary. He was sentenced to thirty-years' imprisonment with a fifteen-year parole bar for manslaughter, a consecutive twenty-year term with a ten-year parole bar for robbery, and a ten-year term for burglary, to run concurrent the manslaughter and robbery charge.

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

HANDLER, J., dissenting.

In October 1986, on a retrial, Nathaniel Harvey was convicted by a jury for the murder of Irene Schnaps. Schnaps was found alone in her apartment, having been struck on the head several times with a blunt instrument—killed in an apparent burglary. There were no signs of forced entry and no signs of a struggle in the bedroom where she was discovered. The jury found defendant guilty of purposeful-or-knowing murder, felony murder, first-degree robbery, and second-degree burglary.

At the penalty phase, the jurors determined that the State had proven beyond a reasonable doubt two statutory aggravating factors: N.J.S.A. 2C:11-3c(4)(f) (murder committed to escape apprehension for another offense) and N.J.S.A. 2C:11-3c(4)(g) (murder committed during the course of a robbery and burglary). The jury did not find as an aggravating factor the State's submission that the murder involved aggravated assault of the victim, N.J.S.A. 2C:11-3c(4)(c). Several of the jury members found some of the ten non-statutory mitigating factors presented by defendant pursuant to N.J.S.A. 2C:11-3c(5)(h), the "catch-all" mitigating factor. See ante at 312, 731 A. 2d at 1139. Finding that the aggravating factors outweighed the mitigating factors, the jury sentenced defendant to death for the capital charges. The trial court sentenced defendant to an aggregate sentence of life plus sixty-five years with a fifty-seven and one-half-year parole disqualifier for the non-capital counts of first-degree robbery and second-degree burglary. The Court affirmed defendant's convictions and death sentence. State v. Harvey, 151 N.J. 117, 233 , 699 A. 2d 596 (1997) ( Harvey II ).

*1161 This appeal is based on defendant's request for a proportionality review. In State v. Loftin, 157 N.J. 253 , 724 A. 2d 129 (1999) ( Loftin II ), the Court appointed a Special Master to evaluate its proportionality review methodology and make recommendations for improvements. [1] The Court then proceeded to apply the existing methodology to Loftin's case, stating, "Until we have had the benefit of [the Special Master's] report, ... we will continue ... to carry out proportionality review as before." Id. at 266 , 724 A. 2d 129 .

The Special Master released his report on April 28, 1999. The Honorable David S. Baime, Report to the New Jersey Supreme Court: Proportionality Review Project (Apr. 28, 1999) ( Special Master Report ). In that report, the Special Master determined that several aspects of our methodology are faulty and require revision. Id. at 6-7. Despite the Special Master's recommendations, the Court goes ahead with defendant Harvey's case, applying existing methodology. This course of action, in addition to its needless inefficiency and unfairness, can only further confuse and undermine the accuracy and integrity of our proportionality review.

The Court, in proceeding with this review, makes it pointless to delve into the Special Master Report in detail here. Suffice it to say that the proposed revisions would—I predict, will—have a significant impact on defendant's proportionality review. The Court's decision to proceed with defendant's review when oral arguments on a new methodology are scheduled to occur the week of this decision's filing, see ante at 300, 731 A. 2d at 1133, does a grave disservice to both defendant and this Court's commitment to justice.

The Court holds that defendant's sentence is not disproportionate. See ante at 283, 731 A. 2d at 1124. First, the Court has previously decided not to apply the Legislature's 1992 capital murder statute amendment, which severely limits the universe of cases constituting a basis for comparison among defendants, until the appointed Special Master reviewed the validity of such a limitation. See Loftin II, supra, 157 N.J. at 265-66 , 724 A. 2d 129 . In this case, even though the Special Master has spoken on the issue, the majority again defers judgment on the constitutionality of the statutory amendment. See ante at 288-89, 731 A. 2d at 1126-27. Further, the Court holds that defendant has not relentlessly documented with adequate evidence that racial discrimination influences this State's imposition of the death penalty. See ante at 319-20, 731 A. 2d at 1143-44. Finally, the Court affirms the proportionality of defendant's death sentence, holding that when defendant is compared to other similarly situated death-eligible defendants, defendant's sentence is not disproportionate. See ante at 319, 731 A. 2d at 1143.

I disagree with the Court's holdings regarding systemic issues in the application of the New Jersey capital murder statute. First, I reiterate that consideration of the constitutionality of the 1992 amendment should not be postponed. Accord Loftin II, supra, 157 N.J. at 373 , 724 A. 2d 129 (Handler, J., dissenting). This Court has expressed a strong commitment to meaningful proportionality review and has firmly rejected the possibility that a universe limited to cases in which the death penalty has been imposed could form the basis for such review. See State v. Marshall, 130 N.J. 109, 137 , 613 A. 2d 1059 (1992) ( Marshall II ). In light of the Special Master's strong statement that "a universe limited to cases in which the death sentence was imposed cannot support a coherent proportionality review system," Special Master Report, supra, at 10, the *1162 Court should act at this time by declaring the 1992 amendment unconstitutional.

Second, I believe the statistical evidence before the Court, already presented in Loftin II, supra, demonstrates a constitutionally impermissible risk that race discrimination infects our State's imposition of the death penalty. This risk is especially great in transracial cases like this one, involving black defendants and white victims. Given the startling evidence of race discrimination before us, the Court should declare the death penalty statute unconstitutional or, at the very least, place a moratorium on the imposition of the death penalty until such time as the evidence demonstrates that race is not playing a role in capital prosecuting and sentencing. Accord Loftin II, supra, 157 N.J. at 446 , 724 A. 2d 129 (Handler, J., dissenting).

With regard to defendant's individual proportionality review, I object to the majority's novel decision to limit the class of cases to which defendant is compared in precedent-seeking review to his salient-factors subcategory (E-1), a step that renders the Court's proportionality review incomplete. Further, I find the Court's statistical analyses and its precedent-seeking review extremely subjective, arbitrary, and ultimately unreliable. I strongly disagree with the Court's conclusion and find defendant's sentence to be disproportionate.

I, therefore, dissent.

I

Proportionality review has always been an integral and indispensable part of this Court's review of capital sentences. It is meant "to ensure that the death penalty is being administered in a rational, non-arbitrary, and evenhanded manner, fairly and with reasonable consistency." Loftin II, supra, 157 N.J. at 275 , 724 A. 2d 129 (quoting Marshall II, supra, 130 N.J. at 131 , 613 A. 2d 1059 ); see State v. Ramseur, 106 N.J. 123, 327 , 524 A. 2d 188 (1987); Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed. 2d 859 (1976). Our emphasis on the dual tasks of ensuring uniformity and accounting for the individual circumstances of each defendant's crime, see Ramseur, supra, 106 N.J. at 330-31 , 524 A. 2d 188 , has been, in my view, irreparably hampered by our inability to reconcile these two aims.

Proportionality review consists of a two-pronged approach: statistical frequency analysis and precedent-seeking review. Both of these methods, however, suffer from deficiencies. See Loftin II, supra, 157 N.J. at 413-15 , 724 A. 2d 129 (Handler, J., dissenting) (citing State v. DiFrisco, 142 N.J. 148, 212, 245 , 662 A. 2d 442 (1995) ( DiFrisco III ) (Handler, J., dissenting)); State v. Martini, 139 N.J. 3, 81-82 , 651 A. 2d 949 (1994) ( Martini II ) (Handler, J., dissenting) (discussing flaws in universe of cases used for comparison, failure to use workable standard by which to judge general imposition of death penalty, and inherently subjective nature of precedent-seeking review).

I now reiterate the most problematic of these deficiencies, namely, (1) the lack of an objective, numerical standard for frequency analysis determinations of when a death sentence is "generally" imposed; (2) deficiencies in the data base of comparison cases; and (3) the subjective nature of precedent-seeking review.

A.

The Court persists in refusing to attempt to quantify its standard for determining what constitutes a "generally" imposed sentence when examining frequency analysis measurements of disproportionality. See Martini II, supra, 139 N.J. at 20 , 651 A. 2d 949 ("A capital sentence is excessive and thus disproportionate if other defendants with characteristics similar to those of the defendant under review generally receive sentences other than death for committing factually-similar crimes in the same jurisdiction."). This failure to bring some objectivity and consistency to its determinations renders *1163 meaningful proportionality review an illusory goal. See Loftin II, supra, 157 N.J. at 415 , 724 A. 2d 129 (Handler, J., dissenting) (stating that Court's standard of review is inherently subjective, as evidenced by the majority's shifting principles for proportionality determinations).

Not only is the purely subjective standard of "general imposition" difficult to pinpoint for any particular case, it is only one of a number of substantively different, yet equally imprecise standards this Court has attempted to apply, often within the same case. The Court thus attempts the impossible: to ascertain "proportionality" without a stable benchmark or measure. The Court has, in fact, since its first proportionality review, invoked fourteen different amorphous standards and substandards when discussing the test for determining proportionality: (1) "`The principal inquiry [in frequency analysis] is whether the degree of blameworthiness in the present case reasonably supports an expectation that such a case will generally result in a death sentence.'" Ante at 299, 731 A. 2d at 1132 (quoting DiFrisco III, supra, 142 N.J. at 171 , 662 A. 2d 442 ) (internal quotes and citation omitted); (2) "`A capital sentence is excessive and thus disproportionate if other defendants with characteristics similar to those of the defendant under review generally receive sentences other than death for committing factually similar offenses in the same jurisdiction.'" Ante at 289, 731 A. 2d at 1127 (quoting Martini II, supra, 139 N.J. at 20 , 651 A. 2d 949 (citing State v. Bey, 137 N.J. 334, 351 , 645 A. 2d 685 (1994) ( Bey IV ) (other citation omitted)); (3) "[W]e seek to determine the existence of any aberration in defendant's sentencing." Ante at 308, 731 A. 2d at 1137 (citing Bey IV, supra, 137 N.J. at 369 , 645 A. 2d 685 ); see also ante at 307, 731 A. 2d at 1137 ("[W]e do not believe that evidences that [defendant's] sentence is an aberration."); (4) "`Frequency analysis helps us to determine whether defendant is in a category that renders him or her more likely than other killers to receive the death penalty.'" Ante at 299, 731 A. 2d at 1132 (quoting DiFrisco III, supra, 142 N.J. at 171 , 662 A. 2d 442 ); (5) "If the death sentence is imposed often enough in a category of comparable cases, then we feel confident that there exists a societal consensus that death is the appropriate punishment." DiFrisco III, supra, 142 N.J. at 172 , 662 A. 2d 442 ; (6) "[T]he figures for E-1 defendants are higher than the overall death-sentencing rates...." Ante at 301, 731 A. 2d at 1133; (7) "[D]efendant's numbers are not the lowest score of a defendant whose claim of disproportionality we have denied." Ante at 306, 731 A. 2d at 1136; (8) "[D]efendant's `results produce no showing of randomness....'" Ante at 307, 731 A. 2d at 1137 (quoting DiFrisco III, supra, 142 N.J. at 183 , 662 A. 2d 442 ) (citations omitted); (9) "[Proportionality] review ... is [ ] a vehicle to ensure that the penalty-phase jury's decision is not insupportable." Martini II, supra, 139 N.J. at 22 , 651 A. 2d 949 , (10) "[O]ur goal is to determine whether the jury's decision to sentence a defendant to death is comparable to decisions reached in the appropriate capital cases in our universe of cases." Ibid.; (11) "[T]his salient-factors analysis reveals that a significant portion of defendants in the pecuniary-motive category ... have received the death penalty." DiFrisco III, supra, 142 N.J. at 174 , 662 A. 2d 442 , (12) "The index-of-outcomes results in defendant's case are not consistently higher or lower than results generated for prior cases...." Loftin II, supra, 157 N.J. at 334 , 724 A. 2d 129 , (13) disproportionality is measured by looking at whether defendant's culpability is "more like that of defendants who received death sentences or of those who received life terms." Martini II, supra, 139 N.J. at 50 , 651 A. 2d 949 ; see DiFrisco III, supra, 142 N.J. at 186 , 662 A. 2d 442 ; and (14) "As in Marshall II and Bey IV , `we do not [here] find a pattern of life sentencing or the taint of an invidious factor that would require us *1164 to reverse [defendant's] death sentence.'" Loftin II, supra, 157 N.J. at 345 , 724 A. 2d 129 (quoting Bey IV, supra, 137 N.J. at 386 , 645 A. 2d 685 ).

The Court must acknowledge that its "generally imposed" standard, already inherently subjective and unquantifiable, has evolved into a range of equally vague and immeasurable, but substantively different, standards, rendering proportionality review unworkable. The two standards employed by the Court in this case could not be more different: when one declares that a death sentence is disproportionate if similarly situated defendants "generally" receive a sentence other than death, one imposes a very different standard than when one seeks to determine if such a sentence is "random" or "aberrational." The Court's errant application of these inconsistent standards only highlights their susceptibility to manipulation.

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

B.

Second, there are deficiencies in the database used as a basis for comparison to defendant's case that undermine the Court's proportionality review. This case involves data presented previously by defendant Loftin and incorporated into the database of the Administrative Office of the Courts (AOC). See Chew, Cooper, Harvey Report (Dec.1997) ( CCH Report ). Previously indicated problems with the database still exist: "[it] remains too small to provide a reliable review," Loftin II, supra, 157 N.J. at 414 , 724 A. 2d 129 (Handler, J., dissenting); the universe of cases still erroneously includes death sentences that were reversed, id. at 416 n. 16, 724 A. 2d 129 (Handler, J., dissenting) (citations omitted); and the Court continues to erroneously include in its analysis data including defendant's case, see id. at 420 n. 19, 724 A. 2d 129 (Handler, J., dissenting) ("[P]lacing defendant's case on both sides of the comparison, gauging the proportionality of a defendant's sentence by comparing it to a group of which he is a member, skews the analysis.").

C.

The standards circumscribed by the Court for frequency review are not particularly suited to its precedent-seeking review. The Court's precedent-seeking analysis suffers from a different deficiency: by putting the defendant under a microscope the Court employs a review so individualized that it becomes impossible to gather a class of cases that can be compared with the defendant's and against which defendant's sentence can be measured. Id. at 419, 724 A. 2d 129 (Handler, J., dissenting).

Defendant's case starkly demonstrates this problem: Harvey is the only defendant in his subcategory who currently faces the death penalty. Yet, the Court finds his sentence is proportionate, in spite of the fact that his crime is not among the most egregious in the group. The Court fails to recognize the necessity of drawing a connection between its quantitative frequency analysis and the more quality-driven precedent-seeking review in order to reduce the subjectivity in our application of the latter. If the salient-factors test results indicate that cases like defendant's yield death sentences only ten percent of *1165 the time, [2] the precedent-seeking review should then be used to determine if defendant is among the one or two most blameworthy in his category of 20 defendants. Without linking the two analyses, the salient-factors test fails to inform the Court at all: the test tells us that the death penalty is not generally imposed for defendant's category; if we fail to conclude from this that defendant's sentence is disproportionate, the test loses all value unless the results are then used to serve as a backdrop for our precedent-seeking review.

In addition, the AOC-designated comparison subcategories, used by the Court to assess defendant's disproportionality claim, do not always include all relevant cases. The Court defers to the AOC's judgment in defining the comparison groups, ante at 294, 731 A. 2d at 1130, failing to recognize that these groupings can be overly limiting; it is crucial that we look beyond them in precedent-seeking review in order to gain as much insight as possible into a defendant's sentence.

D.

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

II

Because the Court has applied our system of proportionality review to defendant's case, I have attempted to determine the proportionality of his sentence. See infra at 375-415, 731 A. 2d at 1173-96. There is, however, an issue that should be addressed first that is even graver and more importunate than defendant's individual proportionality review. That compelling issue is posed by recurring evidence of a persistent risk of systemic race discrimination in the administration of the death penalty, particularly in the prosecution of cases such as this one and Loftin II , transracial murders in which the defendant is black and the victim is white.

The majority finds that defendant has failed to prove that New Jersey's death penalty statute is implemented in a racially discriminatory manner. See ante at 319-20, 731 A. 2d at 1143-44. We are faced here with the same data compiled in the AOC's CCH Report, supra, presented by defendant Donald Loftin. Given certain methodological concerns with the statistical models employed to assess whether or *1166 not racism plays a role in this State's prosecution and sentencing of capital cases, the Court in Loftin II asked the appointed Special Master to evaluate and, if necessary, redevelop the statistical methodologies or models to more accurately accomplish this important intended purpose of proportionality review. Loftin II, supra, 157 N.J. at 456 , 724 A. 2d 129 . At the same time, however, the Court applied the existing models to defendant Loftin's case in spite of their identified flaws. In doing so, the majority discounted as unreliable the overwhelmingly consistent and persistent results derived from numerous models that have indicated a race effect in our implementation of capital punishment.

Here, again, in spite of the addition of the Special Master's findings that the development of more parsimonious models must be pursued if we are to be resolved in our long-held commitment to eliminating racism in our justice system, Special Master Report, supra, at 108, the Court applies our existing system of proportionality review to the case at hand, finding, as in Loftin II , that the statistics do not indicate an unconstitutional risk of race discrimination. Ante at 319-20, 731 A. 2d at 1143-44.

I deeply disagree. I oppose the application of our existing system of proportionality review to Harvey's sentence given that the methodology is currently under review. Second, I find that the evidence of racism demonstrated by the data, when supplemented by what we know through human experience and common knowledge, to be so compelling that it demonstrates an unconstitutional risk that New Jersey's sentencing scheme singles out minority defendants (particularly those guilty of killing white victims) for the death penalty. The presence of this risk requires us to invalidate the death penalty statute.

A.

Defendant presents statistics highlighting a race effect in New Jersey's prosecution and sentencing of death-eligible defendants. The raw data alone reveal worrisome, indeed ominous, trends: of the death-eligible black defendants who killed nonblack victims, over forty-eight percent (33/68) were charged capitally, while none of the six nonblack defendants who killed black victims proceeded to a penalty trial. Loftin II, supra, 157 N.J. at 383 , 724 A. 2d 129 (Handler, J., dissenting). Over forty-eight percent (107/221) of cases involving nonblack victims were capitally tried, while only twenty-eight percent (40/141) of black-victim cases were. Discrepancies in jury sentencing are startling as well: eighteen percent of all death-eligible black-defendant, nonblack victim cases (12/68) resulted in death sentences, while none of the six nonblack-defendant, black-victim cases did. Ibid.

The logistic regressions demonstrate the same very real potential that race discrimination is at work in our capital sentencing scheme, revealing for the first time a statistically significant race effect. In the three AOC models used to measure prosecutorial and jury sentencing decisions from the CCH Report, supra, a statistically significant black-defendant effect is reflected in the first and second models (Schedules 2 and 5), and a statistically significant white-victim effect is reflected in the first and third (Schedules 2 and 8). Id. at 379-80, 724 A. 2d 129 (Handler, J., dissenting). These statistics are more alarming in light of the fact that the AOC's culpability ratings indicate that white defendants are, on average, more culpable than black defendants (compare 1.43 and 1.32, respectively). Id. at 383 , 724 A. 2d 129 (Handler, J., dissenting).

The AOC multiregression analyses once again confirm the indications that racism pervades the capital system. "Differences in percentages of black and nonblack defendants sentenced to death are as high as thirty-three percent when the culpability levels are divided into five categories with equal ranges ... and thirty-six percent when the culpability levels are divided into *1167 levels with equal numbers of cases." Id. at 386 , 724 A. 2d 129 (Handler, J., dissenting) (citations omitted).

The statistical models created by Dr. John Tukey, the acknowledged expert retained as a consultant by Special Master Richard S. Cohen, attempted to correct for what the Special Master found to be methodological flaws in the AOC models. [3] These new models also revealed a race effect: the third model demonstrates a statistically significant black-defendant effect on the likelihood that a defendant will be sentenced to death. The second model, when reconfigured by the Public Defender's statistician to include the white victim variable, also reveals a statistically significant black-defendant effect. Id. at 389 , 724 A. 2d 129 (Handler, J., dissenting).

The results in model two after the Public Defender's modification highlight the effect that the race of the victim seems to have on sentencing outcomes, in particular in cases involving minority defendants, or transracial, white-victim cases. The disparity in capital prosecutions between transracial cases involving black defendants and those involving white defendants is forty-nine percent, and the disparity in capital sentencing (as a percentage of all death-eligible cases) is eighteen percent. Id. at 383 , 724 A. 2d 129 (Handler, J., dissenting).

While the number of cases in defendant's AOC-assigned offense subcategory, E-1, is an inadequate sample from which to draw conclusions (nor should this category alone be used to do so in a systemic race discrimination claim), the prosecutorial and sentencing results in this group of cases underscore what the numbers on a system-wide scale seem to indicate about the intensified attention paid to cases involving white victims and, more specifically, those with minority defendants. The E-1 category consists of twenty-two cases (including both of defendant's), eighteen of which involve minority defendants (black or Hispanic) and four which involve white defendants. Twelve of the cases involve minority victims and ten involve white victims. Over seventy-eight percent of the cases (11/14) that were either not capitally prosecuted or that resulted in plea agreements involve minority victims, in spite of the fact that minority-victim cases comprise only about fifty-four percent of the total number of cases. At the same time, almost eighty

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