State v. Wakefield

Justice ALBIN,

concurring.

Defendant received a fair, not a flawless, penalty hearing. Unlike the majority, however, I would not downplay or excuse the errors made by the prosecutor, particularly those made in his opening remarks. Prosecutors must be reminded of the high standards expected of them in capital cases. Nevertheless, even by the exacting standards that we apply to capital proceedings, we do not reverse unless a prosecutorial error had the capacity to *539 alter the outcome. Because I do not believe that the errors committed here would have affected the jury’s judgment, I cannot join the dissent.

Next, this is my first opportunity to speak to this Court’s proportionality jurisprudence. I believe that our proportionality review has become a macabre and overly complex social science exercise that artificially classifies into distinct categories savage murders, many of which are hardly distinguishable from one another in their unspeakable cruelty and gruesomeness. Public confidence cannot be sustained in a system that people of ordinary intelligence cannot comprehend. The purpose of proportionality review is not to ensure uniformity in capital sentencing — an impossible goal given the myriad variables that lead to the imposition of life sentences in most death-eligible cases — but rather to ensure that the few death sentences meted out are not aberrational. Under this Court’s proportionality jurisprudence, I cannot find that defendant’s death sentence is aberrational when comparing his ease to similar cases of defendants sitting on death row. For those reasons, I am compelled to affirm defendant’s sentence.

I.

I do not believe that we should mince words when a prosecutor’s remarks exceed the bounds of propriety, even if those remarks do not warrant the reversal of a conviction or sentence. Here, perhaps innocently, the prosecutor in his opening statement placed an irrelevant factor not in the record before the jury — the claimed good faith of the State in pursuing a capital prosecution. The prosecutor stated that “[t]he State does not seek the death penalty on a routine basis. It is not something that we do lightly. The State seeks the death penalty when the State believes the facts call for it.”

Whether the State seeks the death penalty routinely or not, lightly or not, or only so when “the facts call for it,” were not relevant considerations for the jury. The jury had only one purpose — to determine whether the State proved beyond a reason *540 able doubt an aggravating factor or factors and, if so, whether any such factor or factors outweighed beyond a reasonable doubt any mitigating factors found by any juror. Not only was there nothing in the record to support his statements, but the prosecutor in essence improperly vouched for the credibility of the State’s case. The prosecutor suggested that his case was more worthy of belief because the State only sought the death penalty when a defendant really deserved it. By insinuating that the State reserved death penalty prosecutions only for special cases, the prosecutor, in effect, stated that he and “the State” believed that defendant’s case was deserving of the death penalty. It makes no difference that the jury may have been able to deduce as much on the basis that the State was pursuing a death verdict.

Although the prosecutor’s brief comments were clearly improper and offensive, I cannot conclude that the trial court abused its discretion in denying defendant’s motion for a mistrial. Significantly, the court immediately gave a curative instruction, advising the jury to disregard any “personal opinion or personal belief’ expressed by counsel. In light of the court’s prompt corrective action, I do not believe that the prosecutor’s limited comments had the capacity to lead to an unjust sentence. Moreover, I do not find the other issues raised by defendant “have substantially prejudiced defendant’s fundamental right to have a” fair penalty hearing. See State v. Timmendequas, 161 N.J. 515, 575, 589 , 737 A.2d 55 (1999) (Timmendequas I), cert. denied, 534 U.S. 858 , 122 S.Ct. 136 , 151 L.Ed.2d 89 (2001).

II.

I also do not find that Wakefield’s death sentence violates principles of proportionality set forth in our capital jurisprudence. Our current system of proportionality review has become an overly complex and inscrutable social science project that defies easy understanding and allows honorable jurists reading the same statistics and cases to reach diametrically opposite results. Our proportionality review must return to first principles.

*541 The “primary objective” of proportionality review is to “ ‘detect ] and prevent[ ] ... aberrational sentences’ ” — not to “ ‘insure symmetry, or even a high degree of correlation, in the sentences imposed on comparable defendants.’ ” 1 State v. Feaster, 165 N.J. 388, 418 , 757 A.2d 266 (2000) (Feaster II) (quoting State v. Cooper, 159 N.J. 55, 107 , 731 A.2d 1000 (1999) (Cooper II), cert. denied, 532 U.S. 932 , 121 S.Ct. 1380 , 149 L.Ed.2d 306 (2001)). Thus, if a particular death sentence falls so far out of the heartland of comparable cases that it stands as an isolated quirk among the sentences of similar death-eligible defendants, it cannot survive proportionality review. Uniformity, therefore, is not the aim of proportionality review and, indeed, is not even possible in our current capital punishment system.

When this Court compares a death-sentenced defendant to a non-death sentenced defendant, we attempt to compare their levels of culpability: moral blameworthiness, degree of victimization, and defendant’s character. State v. Timmendequas, 168 N.J. 20, 40 , 773 A.2d 18 (2001) (Timmendequas II). However, whether a capital murder defendant is tried, convicted, and sentenced to death depends on a number of vagaries in the process. See Feaster II, supra, 165 N.J. at 455 , 757 A.2d 266 (Long, J., dissenting) (noting that “it is much more likely that a host of factors other than culpability, moral blameworthiness and character are determinative of who is sentenced to life and who is sentenced to death”). One such variable is whether a particular county prosecutor will proceed with or forgo a capital prosecution. That decision may be conditioned on such factors as the prosecutor’s philosophical leanings, the relative strength of the case, or *542 the likelihood of obtaining a conviction in a county where the jurors may or may not be disposed to return a death verdict.

Inter-county disparity may be “one of the most significant variables in terms of death sentencing.” David S. Baime, Report to the New Jersey Supreme Court: Systemic Proportionality Review Project 2004-2005 Term 54 (Dec. 15, 2005). For example, in October 2005 in Cumberland County (population 150,000) the Public Defender’s Office had seventeen defendants charged with murder and six defendants facing the death penalty, whereas in Essex County (population 800,000) it had eighty defendants charged with murder and none facing a capital prosecution. As of December 2005, only sixteen percent of death-eligible cases in Essex and Union Counties advanced to penalty trials, whereas fifty-seven percent of death eligible eases in Monmouth County and fifty-four percent in Middlesex County progressed to the penalty stage. Id. at 41-42. 2

Imposition of the death penalty also depends on whether the grand jury returns a capital indictment, State v. Fortin, 178 N.J. 540, 646 , 843 A.2d 974 (2004) (Fortin II), and whether the prosecutor offers and the defendant accepts a plea bargain that will spare him the potential of a death sentence. Of course, we also recognize that consistency between different juries, even if they heard the same case, cannot be expected.

We must be mindful as well that jurors bring to the courtroom their own moral codes through which the evidence will be filtered as they proceed to decide, subjectively, the strength of the State’s case. In the penalty phase, if a single juror determines that the State has failed to prove the existence of an aggravating factor, the defendant cannot be sentenced to death. See N.J.S.A. 2C:11-3e(3). Even when the jury unanimously agrees that the proofs establish the presence of one or more aggravating factors, if a *543 single juror does not find that the aggravating factors outweigh the mitigating factors beyond a reasonable doubt, a sentence of life rather than death must be imposed. Ibid. Thus, because a single juror has the power to nullify the imposition of a death sentence, it is difficult to conclude that the jury’s failure to return such a sentence necessarily reflects a community consensus of the appropriate punishment.

Next, capital convictions are subjected to an exacting scrutiny by this Court to ensure the fairness of the guilt and penalty-phase proceedings and the correctness of the sentence. Because of the high stakes in a capital prosecution, we have accorded capital defendants heightened procedural protections to minimize the potential for the wrongful imposition of a death sentence. See State v. Feaster, 184 N.J. 235, 250 , 877 A.2d 229 (2005) (Feaster III). The result has been the reversal of most death penalty convictions and sentences. Thereafter, the State’s decision to decline a capital re-prosecution may reflect less the so-called “death-worthiness” of the defendant than the availability of witnesses or desire to conserve financial resources. State v. Martini, 139 N.J. 3, 27 , 651 A.2d 949 (1994) (Martini II), cert. denied, 516 U.S. 875 , 116 S.Ct. 203 , 133 L.Ed.2d 137 (1995).

Due to the host of variables that allow the channeling of discretion toward a life sentence, it should be no wonder that there are few inmates on death row today. Since 1982, when our current death penalty statute was enacted, there have been 455 death-eligible defendants. N.J. Death Penalty Study Comm’n, New Jersey Death Penalty Study Commission Report 24 (Jan. 2007). Of those, 228 were tried capitally and, although sixty death sentences have been returned, through the reversal of convictions and sentences only nine persons are presently on death row. Ibid.

By surveying the multiple variables that determine whether death is imposed, I do not suggest that more death sentences would make the system a better one. The structure of our capital laws apparently represents a societal judgment that it is better to *544 err on the side of life, better to let a hundred death-worthy persons receive life sentences than wrongly impose a death sentence on even one person. That being said, such a system will never allow for uniformity in sentencing.

Our task here, therefore, is not vainly to look for consistency, but to determine whether Wakefield’s death sentence is aberrational. This Court’s proportionality analysis involves two approaches, frequency review and precedent-seeking review, see Cooper II, supra, 159 N.J. at 70 , 731 A.2d 1000 , which are discussed at length in both Justice Rivera-Soto’s and Justice Long’s opinions. Central to proportionality review is setting the relevant universe of cases to which defendant’s sentence is compared. Since this Court’s first proportionality review, we have compared a defendant’s case to that of all death-eligible homicides, even if a death sentence was not imposed or the prosecutor decided not to seek the death penalty. See State v. Marshall, 130 N.J. 109, 137 , 613 A.2d 1059 (1992) (Marshall II), cert. denied, 507 U.S. 929 , 113 S.Ct. 1306 , 122 L.Ed.2d 694 (1993).

The Administrative Office of the Courts (AOC) has divided the universe of death-eligible eases into thirteen major categories and assigns each defendant to one of those categories. Timmendequas II, supra, 168 N.J. at 35 , 773 A.2d 18 ; Cooper II, supra, 159 N.J. at 71 , 731 A.2d 1000 . 3 In conducting proportionality review, we generally limit our analysis to other cases that are in the same category as defendant. See State v. Harris, 165 N.J. 303, 326 , 757 *545 A.2d 221 (2000) (Harris III), cert. denied, 532 U.S. 1057 , 121 S.Ct. 2204 , 149 L.Ed. 2d 1034 (2001). The thirteen categories, however, are not air-tight compartments, and cross-over comparisons are permitted. The characteristics of a defendant’s crime may fit into more than one category, and even if not, the crime nevertheless may be similar to crimes assigned to other categories.

In the past, we have “maintain[ed] a certain tolerance and openness to cross-category comparisons.” State v. Morton, 165 N.J. 235, 256 , 757 A.2d 184 (2000) (Morton II), cert. denied, 532 U.S. 931 , 121 S.Ct. 1380 , 149 L.Ed.2d 306 (2001). In Morton II, we commented that we would compare a defendant’s case to one that falls outside of his classification if the eases shared “several defining characteristics.” Ibid. For example, we have expressed a willingness to compare two gas-station-robbery-murders even though one has been placed into cell B (prior murder conviction) and the other placed into cell F-2 (business-robbery). Id. at 256-57, 757 A.2d 184 ; see also Feaster II, supra, 165 N.J. at 408, 757 A.2d 266 (comparing defendant who committed murder in course of robbery of business to defendants in prior murder conviction and other-robbery categories); Martini II, supra, 139 N.J. at 51 , 651A 2d 949 (comparing defendant whose murders spanned several different categories to defendants assigned to several different cells).

With those proportionality principles in mind, I now evaluate whether Wakefield’s death sentence is aberrational. Defendant was assigned to the E-l cell, a category of cases that involve the murder of multiple victims in the course of an additional felony. In preparation for defendant’s proportionality review, the AOC identified twenty-eight other cases in the E-l cell, comprised of nineteen individual defendants. 4 Six of those defendants pled guilty to non-capital murder or a lesser charge; two went to trial *546 after the prosecutor declined to capitally charge them; two entered into plea agreements after the State served a notice of aggravating factors; and seven proceeded to trial but the jury declined to impose the death penalty. Of the nineteen, four defendants were convicted of capital murder and received death sentences. In all four cases, this Court reversed either the conviction or the sentence. In the aftermath, Walter Johnson pled guilty to non-capital murder. Thomas Koskovieh and Anthony McDougald received new penalty trials, but in both cases their juries were deadlocked and therefore life sentences were imposed. Last, Bobby Lee Brown received a life sentence because the State elected not to seek the death penalty again. 5

Given the many variables favoring a life sentence and the small number of defendants in the E-l cell, it is not completely surprising that Wakefield is the only remaining death-sentenced individual in his category. For the majority and the dissent the battleground is the E-l cell, with the majority arguing that Wakefield’s crime and moral culpability are not truly comparable to his cohort class and the dissent claiming just the opposite.

Ultimately, the majority’s considerable efforts to distinguish Wakefield from his cohorts are not convincing. For example, the majority contends that Wakefield is more deserving of death than thirty-six year old Louis Crumpton who savagely beat to death two women, aged eighty-six and eighty-one, during a home invasion that began as a garden-variety burglary. Crumpton pled guilty to non-capital murder. Unlike Wakefield, Crumpton suffered from AIDS and apparently was surprised by the presence of his victims, and, based on those factors, the majority concludes Wakefield’s “moral blameworthiness” was sufficiently different to justify his death sentence and Crumpton’s life sentence. See ante at 524-25, 921 A2d at 1034-35.

*547 The majority also strains to find that Wakefield is more deserving of death than Ronald Mazique. At the time that he broke into the home of a forty-one-year old woman to steal her income tax return, Mazique was twenty-one years old. Mazique killed the woman and her six-year old grandson, striking each victim at least thirty times with a hammer. To conceal the crime, Mazique attempted to blow-up the apartment by turning on the gas jets in an oven. A penalty-phase jury could not return a unanimous death verdict and therefore Mazique was sentenced to consecutive life terms. Although both Mazique and Wakefield had troubled childhoods, the majority hypothesizes that Wakefield’s jury did not “credit [his] evidence to any appreciable extent.” Ante at 529, 921 A.2d at 1037. The majority concedes that both “cases are quite similar,” but it nevertheless speculates that the differing ways that separate juries viewed the traumatic upbringings of the two defendants “likely and rationally explains the difference between defendant’s death sentence and Mazique’s life sentence.” Ibid.

Without engaging in hairsplitting distinctions, it is difficult to conclude that Wakefield is more death-worthy than Crumpton or Mazique or many of the other defendants in the E-l category. The divergent outcomes cannot rationally be explained by distinguishing the heinousness of the murders they committed, their psychological impairments, or their dysfunctional childhoods. The system’s vagaries, more than the relative moral blameworthiness of the defendants in the relatively small E-l class, go much further toward explaining why Wakefield stands apart from the other defendants. Therefore, I cannot affirm Wakefield’s death sentence based on the proportionality review conducted by the majority.

Nor do I agree with the approach taken by Justice Long in her dissent. Justice Long quite reasonably finds Wakefield’s crime and moral blameworthiness characteristics indistinguishable from those of other members of the E-l class, who are serving prison terms. Post at 565-67, 921 A.2d at 1058-59. From that premise, *548 she finds that Wakefield’s death sentence cannot be upheld because, viewing the relevant factors, he is “no better or worse than the members of his band,” and therefore he too should receive a life sentence. See post at 568, 921 A.2d at 1060. Justice Long’s logic might be irrefutable if there were a statistically larger number of defendants in the E-l group and if no cross-group comparisons were permitted.

If this Court were to hold that the death sentence in this case— where defendant assaulted and killed an elderly couple in their own home, set fire to their bodies, and went on a shopping spree with the money he stole — is disproportionate, it is unlikely that any multiple homicide death sentence would ever survive proportionality review. Indeed, the Wakefield case would become the impossible standard to meet in all future multiple-homicide proportionality review cases and the E-l group would be shut forever. In short, the paradigm suggested by the dissent would render our proportionality review scheme a farce.

We must remember that the AOC categories are artificial constructs — not statutory mandates — and that the overall object of proportionality review is comparison to similar cases, in whatever categories those cases may be designated. See N.J.S.A. 2C:11-3e. The AOC categories were created to facilitate, not to thwart review. As an alternative to the analysis employed by the majority and the dissent, I would compare defendant’s culpability to factually similar cases outside the E-l group. Rigid comparison within a specific category is not required by N.J.S.A 2C:ll-3e or our ease law. See Morton II, supra, 165 N.J. at 256-57, 757 A.2d 184 . There is no point to strictly confining a defendant to one category when the facts and circumstances of a defendant’s crime transcend multiple categories. Wakefield’s crime is not only a “multiple victim” homicide (category E), but also a homicide in the course of committing a robbery (category F).

Accordingly, I will compare Wakefield’s case to single-murder robbery (category F) cases in which this Court has upheld death sentences on proportionality review. Surely, Wakefield should not *549 be better situated because he murdered more than one person. The ease of Nathaniel Harvey, who now sits on death row for a robbery-murder, provides a useful point of comparison.

Late at night or early in the morning, Harvey broke into the apartment of a woman he did not know and, while armed with a hammer and another blunt-force object, struck his victim fifteen times in the head, fracturing her skull. State v. Harvey, 159 N.J. 277, 309-10 , 731 A.2d 1121 (1999) (Harvey III). After the brutal murder, Harvey, then age forty-four, washed the blood off the victim’s body, changed the sheets, and then left her naked on the floor. Id. at 297, 310 , 731 A.2d 1121 .

As in the Wakefield case, the jury found that Harvey committed the murder while engaged in the commission of a burglary and a robbery, and that he did so to escape detection and apprehension. Id. at 288 , 731 A.2d 1121 . As in the Wakefield case, various jurors found as mitigating factors that Harvey endured a traumatic and abusive childhood. See id. at 312 , 731 A.2d 1121 . Neither Wake-field nor Harvey posited any justification for the murder. See id. at 313 , 731 A.2d 1121 .

This Court found that Harvey was moderately culpable with respect to the degree of victimization. Id. at 315 , 731 A.2d 1121 . In comparison, Wakefield’s murder is notable not only because of the brutality inflicted on his elderly victims, but also because of the mental anguish suffered both by Mr. Hazard, who probably knew his wife would find him dead or be killed herself, and by Mrs. Hazard, who probably saw the body of her murdered husband. See ante at 515, 921 A.2d at 1029. Last, Harvey’s character is distinguished by his extensive prior record, which included convictions for violent crimes, and by the lack of any remorse expressed in his allocution statement. Harvey III, supra, 159 N.J. at 314, 731 A.2d 1121 . Defendant also has an extensive, though nonviolent, criminal record, and while he did apologize during his sentencing allocution, his post-crime shopping and partying spree evidenced a callous indifference to the horrors he had perpetrated. In short, I cannot conclude that Wakefield who *550 killed two elderly people in their home is less morally culpable than Harvey, who killed only one. Because this Court determined that Harvey’s death sentence was not disproportionate, id. at 320, 731 A.2d 1121 , then, it follows, as a matter of inexorable logic, that defendant’s sentence should stand too.

That conclusion is bolstered by looking at the universe of comparable murder-robberies cases and, in particular, the case of Richard Feaster. In that case, Feaster was convicted of the robbery-murder of a gas station attendant from whom he stole $191.32, and sentenced to death. Feaster II, supra, 165 N.J. at 393-98, 757 A.2d 266 . This Court upheld his death sentence after conducting proportionality review. Id. at 420, 757 A.2d 266 . The victimization caused by Feaster’s crime — a single gunshot wound — was significantly lower than Wakefield’s. See id. at 406 , 757 A.2d 266 . Moreover, Feaster was raised by an emotionally and physically abusive father and his intellectual capacity placed him in the borderline mentally retarded category. Id. at 405 , 757 A.2d 266 . Feaster had a fairly minor criminal history, compared to Wakefield’s lengthier one. See id. at 406-07 , 757 A.2d 266 . It seems impossible to find that Wakefield’s culpability is not at least equal to that of Feaster.

Therefore, when comparing Wakefield’s death sentence to other “similar cases” in which the death sentences passed this Court’s proportionality review, I necessarily conclude that Wakefield’s sentence is neither aberrational nor disproportionate. 6

III.

Last, I want to respond to Justice Long’s suggestion that this Court should revisit State v. Ramseur, in which this Court upheld *551 the constitutionality of the death penalty. 106 N.J. 123, 170-73 , 524 A.2d 188 (1987). In Ramseur , the Court specifically determined that the death penalty did not violate Article I, Paragraph 12, of our Constitution, which prohibits cruel and unusual punishment. Ibid. In doing so, the Court applied the “contemporary standards of decency” standard found in federal jurisprudence, Trop v. Dulles, 356 U.S. 86, 101 , 78 S.Ct. 590, 598 , 2 L.Ed.2d 630, 642 (1958). The Court determined in Ramsewr, supra, decided in 1987, that the death penalty conformed to those standards under our State Constitution. 106 N.J. at 174 , 524 A.2d 188 .

Justice Long notes that attitudes have changed in twenty years and that “evolving standards of decency,” as reflected in opinion polls and studies, indicate that the citizens of New Jersey are no longer enamored with the death penalty and would be happy to be rid of it. Post at 568, 921 A.2d at 1060. On that basis, Justice Long would consider declaring our death penalty unconstitutional. Ibid. I cannot subscribe to that approach because I do not believe that this Court has the constitutional authority to strike down the death penalty in its entirety under the “evolving standards of decency” test. 7 That is so because in 1992, the voters of New Jersey approved a constitutional amendment providing that the death penalty was not cruel and unusual punishment when imposed on a person who purposely and knowingly caused death or serious bodily injury resulting in death, if he committed the act himself or paid another to do it. See N.J. Const. Art. 1, ¶ 12. Applying “contemporary standards of decency” may have been *552 appropriate in 1987 when Ramseur was decided because then Article I, Paragraph 12 made no reference to the death penalty. Now, however, our State Constitution proclaims that the death penalty is not cruel and unusual punishment.

There is no firmer expression of public opinion than a constitutional amendment. Although opinion polls may suggest that an increasing number of New Jersey residents are opposed to the death penalty, see post at 568, 921 A.2d at 1060, the only poll that will truly count in our representative democracy is if the popularly elected members of our Legislature vote to repeal the death penalty. In short, our Court cannot declare the death penalty to be cruel and unusual punishment when our Constitution states otherwise.

Last, I have a few observations about the current state of our capital punishment system. Although the few defendants ,currently on death row may fairly be described as the “worst-of-the-worst,” sadly they are no worse than many of those who have been spared death sentences. Since the recent advent of modern capital punishment in 1982, hundreds of death-eligible defendants have entered the system, but only nine currently await execution. We must come to grips with the fact that the fates of the few death-slated inmates, however morally culpable they are for their crimes, are the product of what may appear to be a random selection. How else to explain that that so many depraved defendants who have committed heinous murders are serving ordinary prison sentences while only nine bide their time on death row. I am not suggesting that the machinery of our capital system is churning out too few death sentences, but given the perfect vision of a quarter-century of hindsight, the few death sentences meted out might appear arbitrary when compared to the life sentences imposed on so many other seemingly death-worthy defendants. The strange irony of our capital jurisprudence is that it runs counter to one of the primary purposes of the Code of Criminal Justice — uniformity in sentencing. See State v. Natale, 184 N.J. 458, 485 , 878 A.2d 724 (2005) (identifying unifor *553 mity in sentencing as “ ‘[t]he dominant, if not paramount, goal of the Code’ ” (quoting State v. Kromphold, 162 N.J. 345, 352-53 , 744 A.2d 640 (2000)). But that is so not because of some evil design, but because of the multitude of procedural .safeguards that favor the imposition of sentences other than death.

The people have the right to choose laws that reserve the ultimate punishment for the worst offenders. However, the people ultimately will have to decide whether a capital system that yields such widely disparate outcomes serves a legitimate penological purpose, whether it is any longer worth the financial expense and cost in lost expectations, and whether it is more harmful than healing to the innocent families who have lost loved ones.

Although not required by the Federal Constitution, our capital system provides that a death-sentenced defendant is entitled to a "proportionality review" to "determine whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” N.J.S.A. 2C:11-3e; see also Pulley v. Harris, 465 U.S. 31, 50-51, 104 S.Ct. 871, 879 , 79 L.Ed.2d 29, 40-41 (1984) (holding that proportionality review not constitutionally required in state capital-sentencing scheme).

This Court has heard oral arguments on the issue of inter-county disparity in capital sentencing and eventually will have to decide to what degree it is present and whether any significant disparity is constitutionally tolerable.

The AOC assigns cases for comparison to the following categories, which track, although not sequentially, most of the statutory aggravating factors. See N.J.S.A. 2C:ll-3c(4). Those categories are: (A) Victim is a Public Servant; (B) Prior Murder Conviction without A above; (C) Contract Killing without A-B above; (D) Sexual Assault without A-C above (subdivided into (1) aggravated and (2) other); (E) Multiple Victims without A-D above (subdivided into (1) aggravated and (2) other); (F) Robbery without A-E above (subdivided into (1) home, (2) business, and (3) other); (G) Torture/Depravity without A-F above; (H) Abduction without A-G above; (I) Arson without A-H above; (J) Escape Detection without A-I above; (K) Burglary without A-J above; (L) Grave Risk without A-K above; (M) Victim Under 14 Years Old without A-L above. State v. Timmendequas, 168 NJ. 20, 35-36, 773 A.2d 18 (2001) (Timmendequas IT).

A defendant may count as more than one case if he or she underwent a penally trial for more than one victim, or if his or her death sentence was reversed and then tried again.

Johnson and Brown received life sentences for the murder of one of their victims and death sentences for the other. Therefore, the number of life and death decisions is twen1y-one, rather than nineteen.

In comparing defendant’s case to similar cases where death has been imposed, we are simply following what is required by the statute. See N.J.S.A. 2C:ll-3e ("Proportionality review under this section shall be limited to a comparison of similar cases in which a sentence of death has been imposed____”).

We may, however, as the United States Supreme Court has done, apply the "evolving standards of decency” standard in determining the constitutionality of the death penalty when applied to certain classes of defendants, such as juvenile offenders or the mentally retarded, and certain classes of crimes. See, e.g., Roper v. Simmons, 543 U.S. 551, 560-61, 578 , 125 S.Ct. 1183, 1190, 1200 , 161 L.Ed.2d 1, 16, 28 (2005); Atkins v. Virginia, 536 U.S. 304, 321 , 122 S.Ct. 2242, 2252 , 153 L.Ed.2d 335, 350 (2002). This Court also may insist that the death penalty comply with other constitutional provisions, such as the guarantees of due process and equal protection under Article I, Paragraph 1 of our State Constitution, and the fundamental fairness doctrine rooted in our common law. See Doe v. Poritz, 142 N.J. 1, 94, 99, 108-09 , 662 A.2d 367 (1995).