(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that,
in the interests of brevity, portions of any opinion may not have been summarized).
Argued September 14, 1993 - Decided June 30, 1994
POLLOCK, J., writing for a majority of the Court.
In affirming the death sentence of Marko Bey on July 28, 1992, the Court deferred proportionality
review pending receipt of a more complete record. This decision addresses the issue whether the imposition of
the death sentence on Bey was disproportional.
HELD : Bey's sentence, considering both the crime and the defendant, does not disclose a disproportionate result
when compared with those in similar cases. The sentence of death is affirmed.
1. The first question is the universe of cases to be considered. In 1992, the Legislature amended the Capital
Punishment Act to limit proportionality review to a comparison of similar cases in which the sentence of death
actually was imposed. Bey's appeal has been pending since 1984, more than eight years before the effective date
of the amendment. The Court therefore determines to apply the statute in its pre-amendment form. Because the
Court rejects Bey's proportionality challenge under the prior law, the new law would not have affected the
outcome. The Court therefore does not consider the validity of the amendment. (pp. 8-11)
2. The Court rejects the Public Defender's suggestion and determines to include within the pool of death-sentenced cases those cases where an initial death sentence was reversed on remand. These reversals were
essentially based on procedural fairness and did not affect the substance of the crime. The original death
sentence therefore continues to represent a societal consensus concerning the deathworthiness of a defendant. (pp.
11-17)
3. The next step is to group the cases according to similarities relevant to the determination of deathworthiness.
The Court has selected measures of blameworthiness, or culpability, based on a consideration of both the
statutory aggravating and mitigating factors, and non-statutory, objectively-verified measures of blameworthiness.
These factors are evaluated by considering the frequency of death sentences within a pool of similar cases (the
frequency approach) and by a more traditional, case-by-case comparison of similar death-eligible cases (the
precedent-seeking approach). (pp. 17-18)
4. The frequency analysis consists of three different methods of assessing criminal culpability: the salient-factors test (comparison to factually similar cases), the numerical-preponderance-of-aggravating-and-mitigating-factors test (comparison to cases with the same number and type of aggravating and mitigating factors), and the
index-of-outcomes test (comparison to cases with similar degrees of culpability). After conducting all three tests,
the Court concludes that defendant's sentence is neither random nor aberrational. (pp. 18-39)
5. The precedent-seeking analysis also leads to the conclusion that defendant's death sentence is not
disproportionate. In conducting this analysis, the Court compared Bey's case with that of other cases where there
had been a prior murder conviction. Although many of these cases resulted in life sentences, those cases differ
significantly from Bey's. (pp. 39-71)
6. Statistics do not support Bey's contention that race is an impermissible factor considered by prosecutors and
juries in imposing the death sentence. The case universe is still too small to prove that the race of a defendant
improperly influences death sentencing. Defendant's attempts to expand the number of available cases to
demonstrate statistically-significant disparities based on race or socioeconomic status is flawed because he
includes cases that are dissimilar. (pp. 71-83)
The imposition of the death penalty on defendant is not disproportionate.
HANDLER, J. dissenting, is of the view that it is impossible to evaluate the proportionality of a death sentence
that is imposed under a capital-punishment regime that is itself founded on conflicting and contradictory
principles and administered without any degree of consistency, much less uniformity. The most serious
deficiencies in the majority's proportionality review are evident in (1) the continued use of a universe of cases
that includes cases in which the death sentence has later been reversed; (2) the inherent subjectivity of the
Court's principle methods for determining proportionality, frequency analysis, and precedent-seeking analysis and
their arbitrary application; and (3) the Court's failure to recognize the recurring indications that the imposition of
the death penalty in New Jersey may be infected by racial bias.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, O'HERN, GARIBALDI and STEIN
join in JUSTICE POLLOCK's opinion. JUSTICE HANDLER filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
1 September Term 1993
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARKO BEY,
Defendant-Appellant.
Argued September 14, 1993 -- Decided June 30, 1994
On Proportionality Review of a Sentence of
Death of the Superior Court, Law Division,
Monmouth County.
Claudia Van Wyk, Deputy Public Defender II,
and James K. Smith, Jr., Assistant Deputy
Public Defender, argued the cause for
appellant (Zulima V. Farber, Public Defender,
attorney).
Alton D. Kenney, Assistant Prosecutor, argued
the cause for respondent (John Kaye, Monmouth
County Prosecutor, attorney; Mark P.
Stalford, Assistant Prosecutor, of counsel;
Barry J. Serebnick, Assistant Prosecutor, on
the brief).
Lawrence S. Lustberg argued the cause for
amici curiae Association of Criminal Defense
Lawyers of New Jersey and New Jersey State
Conference of NAACP Branches (Crummy, Del
Deo, Dolan, Griffinger & Vecchione,
attorneys).
Catherine A. Foddai, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (Fred DeVesa, Acting
Attorney General, attorney).
The opinion of the Court was delivered by
POLLOCK, J.
In unrelated incidents, defendant, Marko Bey, sexually
assaulted and murdered two women. Separate juries sentenced
defendant to death for each of the murders. Initially we vacated
both death sentences. In State v. Bey,
112 N.J. 45 (1988) (Bey
I), which involved the murder of Cheryl Alston, we reversed the
murder conviction and held that defendant was not death eligible
because he was under the age of eighteen at the time of the
murder. On remand, a jury found defendant guilty of purposeful
murder and aggravated sexual assault. The trial court sentenced
him to an aggregate sentence of life imprisonment plus twenty
years, with no parole eligibility for forty years. In State v.
Bey,
112 N.J. 123 (1988) (Bey II), decided the same day as Bey I,
we affirmed defendant's conviction for the murder of Carol
Peniston. Because of an incorrect jury charge, however, we
reversed the death sentence and remanded the matter for
re-sentencing. Once again, the jury returned a death sentence
for the Peniston murder, which we affirmed in State v. Bey,
129 N.J. 557 (1992) (Bey III). In Bey III, we deferred
proportionality review of that sentence pending receipt of a more
complete record. We now find no disproportionality in the
imposition of the death sentence for defendant's second murder.
Page
I. Facts ................................................ 4
II. Proportionality Review ............................... 7
A. The Universe of Cases ........................... 8
B. Method of Classifying Cases ..................... 10
III. Comparison of Cases .................................. 17
A. The Frequency Approach .......................... 18
1. The Salient-Factors Test ................... 21
2. The Numerical-Preponderance-of-Aggravating-
and-Mitigating-Factors Test ................ 28
3. The Index-of-Outcomes Test ................. 34
B. The Precedent-Seeking Approach .................. 39
1. Relevant Factors ........................... 39
2. Comparison of Marko Bey's Case to Similar
Cases ...................................... 43
a. The Cases ............................. 44
b. The Comparison ........................ 63
3. Other Cases ................................ 71
IV. Race as an Impermissible Factor ...................... 71
V. Conclusion ........................................... 83
The facts surrounding the murder of Carol Peniston are set forth in Bey II, supra, 112 N.J. at 131-33, and Bey III, supra, 129 N.J. at 568-69. We therefore include only a brief summary.
On April 26, 1983, around 9:20 p.m., Carol Peniston left
Neptune High School, where she had attended a computer course,
and had driven away in her car. Approximately four hours later,
the car was involved in a one-car accident in Newark.
Defendant's fingerprints were on the rearview mirror. Ms.
Peniston, who had been divorced and lived alone, neither returned
to her apartment nor reported to work the next day.
On May 3, Asbury Park police discovered Ms. Peniston's body in a shed near an industrial building. An autopsy performed on May 4 disclosed that she had been dead for several days. The autopsy further disclosed that she had been beaten, sexually assaulted, and strangled. From a sneaker imprint on her chest and from evidence of fractured ribs and hemorrhaging of the right lung, vertebral column, and right atrium of the heart, the Monmouth County medical examiner concluded that Ms. Peniston's assailant had stomped on her chest. The ultimate cause of her death, however, was ligature strangulation. Subsequent police investigation revealed that the characteristics of spermatozoa found on the victim's coat were consistent with those of
defendant's saliva, and that defendant's sneakers bore an imprint
that was similar to the impression on the victim's chest.
On May 6, defendant, who had turned eighteen only three
weeks earlier, was arrested for receiving stolen property, Ms.
Peniston's car. After five hours in police custody, defendant
confessed to the murder.
Defendant then gave a written statement, in which he
admitted that he had accosted Ms. Peniston in front of her
apartment building and demanded money from her. The statement
continued that when defendant heard someone coming, he grabbed
her and led her to the shed. In the ensuing events, he
repeatedly struck Ms. Peniston, sexually assaulted her, and took
eight dollars, as well as the car keys, from her pocketbook.
While on his way to Newark in her car, he had an accident and
abandoned the car.
A jury convicted defendant of capital murder and sentenced him to death. The sentence followed from the jury's finding of two aggravating factors: the murder had "involved torture, depravity of mind, or an aggravated assault to the victim," N.J.S.A. 2C:11-3c(4)(c) (the c(4)(c) factor), and it had been committed in the course of a felony, N.J.S.A. 2C:11-3c(4)(g) (the c(4)(g) factor). The jury found no mitigating factors. We affirmed the conviction, but reversed the death sentence, primarily because the court had incorrectly charged the jury on
the mitigating factors. Bey II, supra, 112 N.J. at 156-64,
166-71.
On the same day that we reversed and remanded Bey's death
sentence for the murder of Carol Peniston, we also vacated his
conviction and death sentence for the prior murder and sexual
assault of Cheryl Alston. Bey I, supra, 112 N.J. at 51. In that
decision, we held that defendant was not death eligible because
he had committed the Alston murder before reaching the age of
eighteen. Ibid. On re-trial for the Alston murder, the jury
found defendant guilty of purposeful murder and aggravated sexual
assault. He received an aggregate sentence of life imprisonment
plus twenty years, with forty years of parole ineligibility. The
Appellate Division affirmed the conviction,
258 N.J. Super. 451,
and we denied certification,
130 N.J. 19 (1992).
At the re-sentencing trial for the Peniston murder, the State proffered two aggravating factors: defendant previously had been convicted of a murder, that of Cheryl Alston, N.J.S.A. 2C:11-3c(4)(a) (the c(4)(a) factor), and the Peniston murder had occurred during a sexual assault and robbery, the c(4)(g) factor. Defendant did not contest these aggravating factors, but argued that four mitigating factors outweighed them: "defendant was under the influence of extreme mental or emotional disturbance," N.J.S.A. 2C:11-3c(5)(a) (the c(5)(a) factor); defendant's age at the time of the murder, N.J.S.A. 2C:22-3c(5)(c) (the c(5)(c) factor); "defendant's capacity to appreciate the wrongfulness of
his conduct or to conform his conduct to the requirements of the
law was significantly impaired as the result of mental disease or
defect or intoxication," N.J.S.A. 2C:11-3c(5)(d) (the c(5)(d)
factor); and the catch-all factor -- "[a]ny other factor which is
relevant to the defendant's character or record or the
circumstances of the offense," N.J.S.A. 2C:11-3c(5)(h) (the
c(5)(h) factor).
The jury unanimously found both aggravating factors. Two
jurors found extreme mental or emotional disturbance, c(5)(a),
and six jurors found the catch-all factor, c(5)(h). None of the
jurors found that either defendant's age, c(5)(c), or the
significant impairment of his moral faculties, c(5)(d), was a
mitigating factor. Furthermore, the jury found beyond a
reasonable doubt that the two aggravating factors outweighed the
two mitigating factors. Consequently, the court sentenced
defendant to death. Bey III, supra, 129 N.J. at 576.
N.J.S.A. 2C:11-3e, a section of the Capital Punishment Act (the Act), requires a proportionality review on a defendant's request to determine whether the death sentence, considering both the crime and the defendant, is disproportionate to the penalty imposed in similar cases. L. 1985, c. 478. In general, the death penalty must be imposed fairly and with reasonable consistency. The test of disproportionality is that "'[A] death
sentence is comparatively excessive if other defendants with
similar characteristics generally receive sentences other than
death for committing factually similar offenses in the same
jurisdiction.'" State v. Marshall,
130 N.J. 109, 131 (1992)
(citing Tichnell v. State,
468 A.2d 1, 17 n.18 (Md. 1983)).
Thus, a death sentence is valid unless the defendant establishes
that similar defendants who commit factually-similar offenses
generally receive sentences other than death.
Before reviewing the proportionality of defendant's
sentence, we first must answer preliminary questions regarding
the universe of cases and the method of classifying those cases.
In Marshall, we defined the relevant universe of cases. 130 N.J. at 137. Preliminarily, we must decide whether to follow the May 12, 1992, amendment to the Act, which limits proportionality review to a comparison of similar cases in which the sentence of death actually has been imposed, L. 1992, c. 5, or whether we should continue to consider all cases that are death eligible, including those cases in which the State did not seek the death penalty.
Although the amendment was designed to take effect immediately, the Legislature did not indicate whether it should apply to pending appeals. If we were to apply the amendment to
pending appeals, we would be obligated to consider whether it is
unconstitutional as an ex post facto law. We decided in Marshall
that because of the long pendency of that appeal, we would review
the sentence under the prior law. 130 N.J. at 119. Because we
rejected Marshall's proportionality challenge under the prior
law, the amendment would not have affected the outcome in that
case. Ibid. We come to the same conclusions here.
Defendant murdered Ms. Peniston on April 26, 1983, sixteen
months before the murder of Robert Marshall's wife. Defendant's
appeal has been pending since his initial death sentence on
September 28, 1984, more than eight years before the effective
date of the amendment. As in Marshall, we reject defendant's
proportionality challenge under the old law. For these reasons,
we decline to address the constitutionality of the amendment. We
shall apply the statute in its pre-amendment form. Thus, as in
Marshall, the relevant universe of cases consists of those that
are death eligible, even if they were not prosecuted as capital
cases.
Marshall summarizes the procedure for identifying the universe of cases. Id. at 137-41. Since the Marshall decision, the Administrative Office of the Courts (AOC) has assumed the responsibility from Special Master David C. Baldus for maintaining the data base of cases. In compiling the statistics, the AOC has followed the Special Master's procedure, as modified by our opinion in Marshall. The universe of cases for Bey
consists of 266 death-eligible homicides committed from 1983 to
1992, 117 of which proceeded to the penalty phase. After oral
argument, we granted defendant's motion to supplement the record
with data that had been compiled since March 25, 1993, the date
of the last revision of the appendices and tables for Bey's
proportionality review (the Bey Report). This information, which
constitutes the universe of cases compiled through June 25, 1993,
for the pending proportionality review of John Martini (the
Martini Report), increases the relevant universe of cases to 298
death-eligible offenses, 125 of which proceeded to the
penalty-trial phase. Our consideration of these data in this
case will not affect any argument proffered by Martini in his
proportionality review.
Having determined the universe of cases, we next convert that universe into the data base for comparison purposes. In Marshall, we analyzed the cases in two ways. The first method followed an a priori, or clinical, approach, in which we analyzed the cases according to features that experience has shown probably influenced the life/death decision. Id. at 141-42, 144. The second approach was an empirical one: we analyzed the cases
according to characteristics that best explained the sentence actually imposed. Id. at 142-43, 144. Following the Special Master's methods, we "[took] advantage of the available data to sort out the cases on the basis of the characteristics that both
prosecutors in the charging process and juries in the
deliberative process deem most relevant." Id. at 143.
The coding of variables in the companion cases continues to
be a source of contention between the Public Defender and the
Attorney General. In Marshall, we recognized their differences
and urged them to cooperate in developing a data base. Id. at
216-18. Since then, the AOC has conducted meetings to resolve
issues concerning the standards for each coded characteristic.
Many issues have been resolved, and the characteristics have been
reduced to statistical codes. We recognize, however, that the
codes inevitably incorporate subjective determinations. Implicit
in the seemingly-objective review of statistics lies an
unavoidably-subjective view of deathworthiness.
Remaining are some issues first raised in Marshall and
raised again here. One issue questions the reliability of the
coding of the thirty-four cases that remain coded as
death-sentenced although reversed for various errors, such as
improper jury instructions. Specifically, defendant identifies
errors in all seven of the cases involving prior murder
convictions (State v. Biegenwald,
106 N.J. 13, 53 (1987)
(Biegenwald IA); State v. Biegenwald,
126 N.J. 1, 8 (1991)
(Biegenwald IB); State v. Coyle,
119 N.J. 194, 218-20, 220-21,
229-32 (1990); State v. Erazo,
126 N.J. 112, 128 (199l); State v.
Pennington,
119 N.J. 547, 565 (1990); State v. Purnell,
126 N.J. 518, 523 (1991); and State v. Ramseur,
106 N.J. 123, 312-13
(1987)). On remand, these cases either were not pursued to the
penalty-trial phase or resulted in life sentences. Defendant
argues that the initial death sentences in these cases,
therefore, are not proper indicators of deathworthiness.
If we exclude these seven prior-murder-conviction cases from the pool of death-sentenced cases, Bey would remain as the only prior murderer whose death sentence we affirmed. That fact alone would not compel a finding that Bey's death sentence is disproportionate. In Marshall, we faced a similar situation. We stated that "simply because Marshall may be the first [contract-killer to receive an affirmed death sentence] does not mean that his death will be disproportionate under our statute." 130 N.J. at 166. After reviewing the frequency data in Marshall, we concluded that "'[a]lthough lesser sentences than death are frequently imposed in domestic murder cases, it does not follow that the death penalty would not be authorized for the murder of one spouse by another under any circumstances.'" Id. at 174 (quoting Tyler v. State, 274 S.E.2d 549, 555 (Ga. 1981)). The circumstances in Marshall were that the defendant hired another to kill his wife so that he could collect life-insurance benefits on her life. "[T]he data show[ed] that among those for whom death is a fitting punishment, contract killers, whether principal or agent, are among the more frequent recipients of the death sentence." Id. at 166-67. Similarly, if Bey were to remain as the only defendant who had been previously convicted of
murder and whose death sentence was affirmed, that sentence need
not be disproportionate.
Furthermore, we decline to follow defendant's suggestion to
re-code as life-sentenced cases those death-sentenced cases in
which the sentence was reversed. The AOC continues to code these
cases as death-sentenced cases. In Marshall, we stated that
"[w]e believe, . . . as does the [Special] Master, that the
original penalty trials, although reversed for various reasons,
most often for the burden-of-proof and Gerald issues, have
reflected juror values of deathworthiness in terms of deterrent
effect." Id. at 194 n.10. The phrase "Gerald issues" derives
from our holding in State v. Gerald "that a defendant who is
convicted of purposely or knowingly causing 'serious bodily
injury resulting in death' . . . as opposed to one who is
convicted of purposely or knowingly causing death . . . may not
be subjected to the death penalty."
113 N.J. 40, 69 (1988).
Marshall recognized that such issues pertaining to procedural
fairness, as distinguished from those that affect the substance
of the crime, do not necessarily bear on the jury's determination
of deathworthiness. 130 N.J. at 169 n.5, 194 n.10.
For example, in defendant's first trial for the sexual assault and murder of Cheryl Alston, the jury returned a sentence of death. We reversed because of a statutory mandate, L. 1985, c. 478 (codified at N.J.S.A. 2C:11-3g), that a defendant younger than eighteen-years old could not receive a capital sentence.
Bey I, supra, 112 N.J. at 95-105, Consequently, Bey, who was
only ten days short of his eighteenth birthday when he sexually
assaulted and murdered Cheryl Alston, received a life sentence.
Our reversal, however, does not detract from the initial jury's
view that defendant deserved the death penalty for the Alston
murder. Defendant does not explain why some errors that have
caused us to reverse a death sentence necessarily reflect on the
jury's ability to assess a defendant's deathworthiness. In the
absence of an acceptable explanation, we continue to believe that
a death sentence, even when reversed, represents a societal
consensus concerning the deathworthiness of a defendant.
Moreover, the reasons for the State's failure to pursue
capital sentencing a second time or for the imposition of a life
sentence at a second penalty-phase trial are varied and
indeterminable. We cannot conclude that in any given case a life
sentence resulted from the view that the defendant was not
initially deathworthy, rather than, for example, from the
strength of the prosecutor's case, including the availability of
witnesses, or the adequacy of the State's resources.
We therefore treat as death-sentenced a case that initially resulted in a death sentence but that was reversed. As we stated in Marshall, "[w]e have been candid to acknowledge that there is no scientific infallibility in the frequency data that we cite." 130 N.J. at 169 n.5. Indeed, as stated above, all coding decisions necessarily rely on subjective determinations of
deathworthiness that may not be completely accurate
representations of death-sentencing decisions of jurors or
prosecutors. Supra at ___ (slip op. at 11). We rely, as we did
in Marshall, on "what we know," 30 N.J. at 169 n.5; of the 117
death-eligible cases proceeding to the penalty phase, thirty-four
cases received the death penalty.
Our dissenting colleague urges, post at __ (slip op. at 10),
as he did in Marshall, 130 N.J. at 249, 253-57 (Handler, J.,
dissenting), that reversed cases are not valid indicators of
deathworthiness. We continue to believe, however, as we did in
Marshall, that cases in which prosecutors seek and juries impose
the death penalty reflect the conscience of the community on the
propriety of the imposition of that penalty. A reversal does not
necessarily erase "the complex nature of the jury's deliberation
in the penalty-phase." Post at ___ (slip op. at 27). We
acknowledge that a reversed death penalty is a less persuasive
indicator of deathworthiness than one that is affirmed, but we
continue to believe that even reversed death sentences are
sufficiently valid indicators to remain for statistical purposes
in the pool of death-sentenced cases.
We disagree also with our colleague's suggestion, based on a recommendation of the Special Master, that we should adopt "a rebuttable presumption that reversed death sentences are invalid determinations of deathworthiness." Post at __ (slip op. at 13). The suggestion is reminiscent of his statement in his Marshall
dissent, "I believe that a death sentence is disproportionate
unless defendants with similar characteristics generally receive
death sentences for committing factually similar offenses." 130
N.J. at 248. Implicit in both statements is the proposition that
the State bears the burden of establishing the proportionality of
a death sentence. We believe, however, that once this Court has
sustained a death sentence on direct appeal, the defendant should
bear the burden of proving disproportionality. Indeed, the
language of the Act indicates that the Legislature intended that
the defendant should bear that burden. N.J.S.A. 2C:11-3e
provides that "the Supreme Court shall determine whether the
sentence is disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant." The use of
the word "disproportionate," rather than "proportionate,"
signifies the legislative intention that we should search not for
proof that a defendant's death sentence is perfectly symmetrical
with other death sentences, but for proof that the sentence is an
outlier.
Consistent with the dissent's underlying premise that no defendant should ever receive the death penalty, the dissent argues that no defendant should be the first to die. Hence, the dissent attacks as "hypothetical" our conclusion that even if we were to exclude reversed death-sentenced cases, leaving Bey as "the only prior murderer finally sentenced to death," his death sentence would not be disproportionate. Post at ___ (slip op. at 14). As we said in Marshall, in which our dissenting colleague
raised the same argument, 130 N.J. at 267-68, simply because a
defendant "may be the first does not mean that his death will be
disproportionate under our statute," id. at 166. The grim fact
is that some defendant must be the first to receive the death
penalty.
After the Court has determined the universe of cases and the criteria for coding those cases, the third step of proportionality review is to group cases according to similarities relevant to the determination of deathworthiness. In Marshall, we selected measures of blameworthiness, or culpability, based on our consideration of both statutory aggravating and mitigating factors and nonstatutory factors based on "objectively-verified measures of blameworthiness." Id. at 145.
We then evaluated these factors in two ways: the frequency analysis and the precedent-seeking analysis. The frequency analysis computes the frequency of death sentences within a pool of similar cases. It depends on a statistical analysis that measures the societal consensus that death is the appropriate penalty in the measured cases. See David C. Baldus, Death Penalty Proportionality Review Project, Final Report to the New Jersey Supreme Court 27 (Sept. 24, 1991) (Final Report). The precedent-seeking analysis is more intuitive, comparing a
defendant's deathworthiness with that of defendants in
factually-similar cases. Id. at 30-31. Combining these two
analyses helps to ensure the reliability of our evaluation of the
proportionality of a defendant's death sentence. The pool of
cases remains small. As that pool expands, we can rely more
heavily on the frequency analysis. For the time being, we are
forced to rely more heavily on the precedent-seeking analysis.
The frequency analysis consists of three different methods of assessing criminal culpability: the salient-factors test, the numerical-preponderance-of-aggravating-and-mitigating-factors test, and the index-of-outcomes test. Marshall, supra, 130 N.J. at 154. These tests are statistical analyses that assess the criminal culpability of a defendant when compared to other defendants. Because the frequency approach is a form of statistical analysis, our discussion is necessarily steeped in the underlying data.
Generally speaking, statistical results become more reliable as the data sample increases and the correlation grows between two variables. In Marshall we stated that "[t]he higher the frequency of a death sentence among the comparison group of 'similar cases,' the more certain the determination that the sentence is proportionate. The lower the frequency, the more strictly the Court must scrutinize the case for the possible
influence of impermissible factors." Id. at 153. As a general
rule, "'[a] death sentence is comparatively excessive if other
defendants with similar characteristics generally receive
sentences other than death for committing factually similar
offenses in the same jurisdiction." Id. at 153-54 (quoting
Tichnell, supra, 468 A.
2d at 17 n.18). "Generally," however,
does not require a threshold rate over fifty percent. Id. at
152-54, 167. Even if the frequency were less than fifty percent,
it could serve as evidence of reliability of the sentence,
particularly if confirmed by the precedent-seeking analysis. Id.
at 154, 167.
As in Marshall, 130 N.J. at 265-67, Justice Handler urges,
post at _____ (slip op. at 17), that we set a more specific
standard in the frequency analysis than that of general
comparability with other death sentences. A general standard,
although admittedly imprecise, is not necessarily arbitrary.
Indeed, a standard that applies generally is the antithesis of
one that applies arbitrarily. Hence, as in Marshall, 130 N.J. at
152-54, we decline to define more specifically the standard for
defining an acceptable frequency for the imposition of the death
penalty.
Proportionality review seeks to determine only whether a particular death sentence is aberrational, not whether it compares perfectly with other sentences. Id. at 131. Not every statistical disparity establishes disproportionality. After
conducting all three tests, we conclude that defendant's death
sentence is neither random nor aberrational.
At first glance, defendant's death sentence might seem
disproportionate. In the Bey Report, forty-four percent
(117/266) of the death-eligible cases in the universe proceeded
to the penalty-trial phase, but only twenty-nine percent (34/117)
of those cases resulted in a death sentence. When the Martini
data are added, the ratios remain approximately the same:
forty-two percent (125/298) of the death-eligible cases proceeded
to the penalty phase and thirty percent (38/125) of those cases
resulted in a death sentence.
The more significant basis of comparison is not all
death-sentenced cases, but only those with similar
characteristics relevant to the sentencing decision between life
and death. Marshall, for example, was the only defendant
sentenced to death whose death sentence was affirmed among all
227 death-eligible cases and 113 penalty-trial cases as of
September 24, 1991. 130 N.J. at 166. Yet, we found his death
sentence not to be disproportionate. Id. at 174. Marshall's
status as one who hired a contract-killer put him in a category
of cases with defendants who more likely than not received a
death sentence. Id. at 166-67. So here, the data show that of
all deathworthy defendants those, like defendant, with a prior
murder conviction, more frequently receive the death penalty.
Preliminarily, defendant urges that we should not include
him in the study because to do so would be to compare his case to
himself. In Marshall, we recognized good reasons for both
including and excluding a defendant's case from review. Thus, we
decided to review the statistics under both alternatives. Id. at
167-68. Here, we use the same approach.
The salient-factors test, which compares sentences in cases that are factually similar, is the most persuasive test. Id. at 168. Its methodology is simple: the test measures the frequency of death sentences in similar cases. Ibid. In Bey's case, the most salient factor is that he had been convicted of a prior murder. We believe that prosecutors and juries would find a previously-convicted murderer to be more blameworthy than a first-time offender.
Among the seventeen cases in the Bey Report in which
defendants had been convicted of a prior murder, seventy-five
percent (9/12) of these defendants reaching the penalty-trial
phase received the death penalty, and fifty-three percent (9/17)
of all death-eligible defendants received the death penalty. The
figures are:
Penalty Trial Death Eligible
Including Bey .75 (9/12) .53 (9/17)
Excluding Bey .73 (8/11) .50 (8/16)
The Martini Report, which compiles data for John Martini's
proportionality review, adds three death-eligible cases, all of
which proceeded to the penalty phase. When these additional
cases are considered, the ratios remain high: including Bey,
sixty percent (9/15) of the defendants with a prior murder
conviction who reached the penalty phase received the death
penalty, and forty-five percent (9/20) of all such defendants who
were death eligible received the death penalty.
The death-sentencing rate for defendants with prior murder
convictions in both the Bey Report and the Martini Report exceeds
the death-sentencing rate for contract-killer principals such as
Marshall. Id. at 168. In Marshall, we found significant a
thirty-three-percent death-sentencing rate among penalty-trial
cases and a twenty-five-percent death-sentencing rate among
death-eligible cases. Id. at 169. By comparison, the
death-sentencing rate for cases most similar to defendant's case
illustrates a higher correlation between a prior murder
conviction and a death sentence.
These figures illustrate an even-higher correlation when the pool is narrowed to include cases more factually comparable to
defendant's case. A significant factor in Bey's case is that in
addition to being a two-time murderer, Bey committed his second
murder during a sexual assault. Prosecutors and juries regard as
highly blameworthy those defendants who have a prior murder
conviction and whose current case involves either one additional
aggravating circumstance or particular violence or terror (the
violence/terror factor). In thirteen cases in the Bey Report
involving defendants who had been convicted of a prior murder,
juries found one additional aggravating circumstance or the
violence/terror factor. Among those cases, one-hundred percent
(8/8) reaching the penalty-trial phase resulted in the death
penalty, and sixty-two percent (8/13) of all death-eligible cases
resulted in the death penalty. The figures are:
Penalty Trial Death Eligible
Including Bey 1.0 (8/8) .62 (8/13)
Excluding Bey 1.0 (7/7) .58 (7/12)
Again, these ratios remain high when we consider the
relevant data from the Martini Report: eighty-nine percent (8/9)
of all cases reaching the penalty phase, and fifty-seven percent
(8/14) of all death-eligible cases in this category resulted in a
death sentence.
Defendant disputes the validity of these results on several grounds. First, he argues that the cases most similar to his are not reliable indicators of deathworthiness because the sentences
in those cases are fraught with procedural and other errors. The
argument proceeds that if these questionable cases were excluded
from the pool of death-sentenced cases and instead were coded as
life-sentenced cases, the death-sentencing rate would be much
lower. For reasons set forth above, however, supra at ___ (slip
op. at 11-16), we shall continue to include them. Consequently,
we shall continue to treat as death-sentenced cases those cases
in which we have reversed the death sentence. Therefore, the
cases that initially resulted in a death sentence should remain
in the pool of factually-comparable cases. Marshall, supra, 130
N.J. at 169 n.5, 194 n.10.
Second, defendant argues that his death sentence suffers
from several procedural errors that affected the verdict.
Generally speaking, the errors concerned jury selection and the
admission of evidence. These "distorting factors," defendant
alleges, "inflated the frequency leading to" his death sentence.
In Bey III, however, this Court held that it was "extremely
unlikely [that the errors] had the capacity materially to affect
the jury's deliberations or produce an unjust result." 129 N.J.
at 616. For this reason, we believe that these "errors" do not
impugn defendant's death sentence.
Third, defendant asserts that other categories of factually-comparable cases do not demonstrate a high rate of death sentences. In particular, defendant points to the results of the sexual-assault and robbery cases. The sexual-assault pool in the
Bey Report consists of thirty-five cases, none of which involved
a prior murder conviction. The death-sentencing rate for the
eighteen cases reaching the penalty-trial phase is twenty-eight
percent (5/18), and fourteen percent (5/35) for all thirty-five
death-eligible cases in the pool. If the analysis were limited,
as defendant contends, to cases with the violence/terror factor,
the death-sentencing rate increases slightly to thirty-six
percent (5/14) of the penalty-trial cases and nineteen percent
(5/26) of the death-eligible cases resulting in the death
penalty. The figures are:
Penalty Trial Death Eligible
Sexual assault including Bey .32 (6/19) .17 (6/36)
Sexual assault excluding Bey .28 (5/18) .14 (5/35)
With violence including Bey .40 (6/15) .22 (6/27)
With violence excluding Bey .36 (5/14) .19 (5/26)
When the Martini data are added, the ratios remain
approximately the same: including Bey, sixteen percent (7/44) of
all death-eligible sexual-assault cases received a death
sentence, and thirty-five percent (7/20) of these cases
proceeding to the penalty phase received the death sentence.
When we narrow our focus to sexual-assault cases exhibiting the
violence/terror factor, twenty-one percent (7/34) of all
death-eligible cases and forty-four percent (7/16) of penalty-trial cases, including Bey, received a death sentence.
The robbery pool includes ninety cases. Like the cases in
the sexual-assault pool, none of these cases involved a prior
murder conviction. Consequently, the robbery pool does not
include Bey. Thirty of the robbery-pool cases proceeded to the
penalty phase. Among those cases, twenty percent (6/30) resulted
in the death penalty; only seven percent (6/90) of all
death-eligible cases in this category received the death penalty.
As with the sexual-assault pool, the sub-group of cases in this
category exhibiting the violence/terror factor does not
significantly increase the death-sentencing rates for robberies.
Of the thirty-four cases in this smaller pool, thirty-one percent
(4/13) of the penalty-trial cases and twelve percent (4/34) of
all death-eligible cases resulted in a death sentence. The
figures are:
Penalty Trial Death Eligible
Robbery including Bey .23 (7/31) .08 (7/91)
Robbery excluding Bey .20 (6/30) .07 (6/90)
With violence including Bey .36 (5/14) .14 (5/35)
With violence excluding Bey .31 (4/13) .12 (4/34)
The Martini data do not significantly change the
death-sentencing rate. Excluding Bey - because of his prior
murder conviction - twenty-one percent (7/33) of all robbery
cases that proceeded to the penalty-trial phase and seven percent
(7/100) of all such cases, including death-eligible defendants,
resulted in the death penalty.
Although we agree with defendant that the death-sentencing
rates in the sexual-assault pool and the robbery pool are lower
than the rate in the prior-murder-conviction pool, the difference
is meaningless. Both these categories as defined in the Bey and
Martini Reports exclude cases with prior murder convictions.
Because Bey was convicted of the prior murder of Cheryl Alston,
his case is not even included in the categories of cases in which
defendants have committed only a sexual assault or robbery. As
demonstrated above, a prior murder conviction is one of the most
significant indicia of blameworthiness. In both Bey and Martini,
sixty-four percent (9/14) of all death-eligible cases having two
aggravating factors, one of which is a prior murder conviction,
resulted in a death sentence. Therefore, to compare defendant's
case to cases involving a sexual assault or robbery, but not
involving a prior murder conviction, is to disregard one of the
most influential elements in death sentencing -- the prior murder
conviction.
As outlined above, moreover, a smaller pool of cases accounts for defendants with prior murder convictions whose crimes exhibit one additional aggravating factor or the violence/terror factor, such as murder during the course of a sexual assault or robbery. Cases with both characteristics are most like Bey's case. Neither the Bey Report nor the Martini Report indicates in which of these cases the additional aggravating factor was a sexual assault or robbery, or both. Prosecutors, however, frequently seek the death penalty when
prosecuting murders involving sexual assaults. Final Report,
supra, at 81. We believe, therefore, that a jury would deem as
highly blameworthy convicted prior murderers who commit a sexual
assault in conjunction with a subsequent murder.
Under the salient-factors measure, the data do not show that
defendants similar to Bey generally receive a sentence other than
death. To the contrary, the data demonstrate that defendants
like Bey, who have killed before and who kill again during a
sexual assault, are highly blameworthy. Indeed, defendants
having a prior murder conviction and an additional aggravating
factor receive the death penalty sixty-two percent of the time.
The imposition of the death penalty in sixty-two percent of all
comparable death-eligible cases is strong evidence of the
reliability of defendant's death sentence.
MITIGATING-FACTORS TEST
The numerical-preponderance test compares the subject case with cases having the same number of aggravating and mitigating factors. In addition to this purely quantitative analysis, the test also attempts to account for the qualitative value that juries place on certain aggravating and mitigating factors.
In defendant's case, the jury found two aggravating and two mitigating factors. Concerning the aggravating factors, the jury found that defendant had been convicted of a prior murder and
that he had murdered Ms. Peniston during a sexual assault and
robbery. For mitigating factors, two jurors found that defendant
suffered from extreme emotional disturbance, and six found that
he was entitled to the catch-all factor. Unlike the application
of the numerical-preponderance test in Marshall, which reflected
an infrequency of death sentences for cases with two mitigating
factors and only one aggravating factor, the application of that
test to cases such as this one, with two mitigating factors and
two aggravating factors, demonstrates a high frequency of death
sentencing. Among the twenty penalty-trial cases in which jurors
identified the relevant aggravating and mitigating circumstances,
weighed them, and then returned a sentence, fifty-five percent
(11/20) resulted in a death sentence. The Martini Report, which
adds three cases, shows a slight increase in the death-penalty
rate to fifty-seven percent (13/23).
Defendant argues that the frequency of death-sentencing
rates for cases having two aggravating and two mitigating factors
is low when all death-eligible cases are considered. Among the
forty-three death-eligible cases in this category, only twenty-six percent (11/43) received the death penalty. These figures
are summarized:
Penalty Trial Death Eligible
Including Bey .55 (11/20) .26 (11/43)
Excluding Bey .53 (10/19) .24 (10/42)
In the Martini Report, which includes five additional death-eligible cases, the rate is twenty-seven percent (13/48).
We agree that the probability of a death sentence, on
considering all death-eligible cases with two aggravating and two
mitigating factors, is comparatively low. The death-sentencing
rate for all such cases, however, is much higher than the rate
for cases similar to Marshall. The death-penalty rate for all
death-eligible cases with one aggravating and two mitigating
factors, as was the case in Marshall, was seven percent (3/44)
including Marshall and five percent (2/43) excluding him.
Notwithstanding those frequencies, we found that Marshall's death
sentence was proportionate because the payment-for-murder
aggravating factor, N.J.S.A. 2C:11-3c(4)(e) (the c(4)(e) factor),
produced an above-average death-sentencing rate. Id. at 172.
Similarly, when one of the aggravating circumstances is the
c(4)(a) factor, a prior murder conviction, the death-sentencing
rate is much higher for death-eligible cases in the category of
cases having two aggravating and two mitigating factors. In both
the Bey and the Martini Reports, seventy-one percent (5/7) of
such cases resulted in the imposition of the death penalty. The
numerical-preponderance analysis, therefore, does not indicate
that defendant's death sentence is disproportionate.
Defendant further argues that his case should be compared to cases with three, not two, mitigating factors. The additional mitigating factor that he claims is his age, because he was
eighteen years old at the time he murdered Carol Peniston. No
member of the jury, however, found age to be a mitigating factor.
According to defendant, the jury's rejection of his age as a
mitigating factor indicates that the verdict is irrational.
Defendant argues that age is the most significant of the
mitigating factors and is the factor most often found by a jury
to be relevant in sentencing decisions. See Final Report, supra,
at 92 (stating "defendant's age (5c) has the greatest mitigating
effect"). His argument is that in only seven percent (6/83) of
all death-eligible cases and fifteen percent (6/41) of all cases
proceeding to the penalty phase in which age was found to be a
mitigating factor did the jury return the death penalty. The
Martini data increased the rate slightly with sixteen percent
(7/43) of all penalty-trial cases and eight percent (7/91) of all
death-eligible cases resulting in the death penalty.
Furthermore, because proportionality review includes non-
statutory factors, defendant invites us to reconsider factors
that the jury rejected or found less persuasive than others. We
decline the invitation.
We held in Bey III that the jury had not erred in failing to
find age as a mitigating factor. 129 N.J. at 613. The trial
court had properly instructed the jury to consider both
chronological age and psychological maturity at the time of the
crime. Although a jury may not ignore a defendant's youth, it
need not find that age is relevant to his or her culpability.
Ibid. We do not believe that all twelve members of the jury were
acting irrationally when each declined to find defendant's age to
be a mitigating factor. Furthermore, although the jury did not
find Bey's youth relevant to the age factor, it may have
considered his youth in conjunction with the catch-all factor.
Other juries confronting young defendants also have rejected
age as a mitigating factor. For example, when first sentencing
Phillip Dixon, who was eighteen at the time he beat, sexually
contacted, and murdered a thirteen-year-old girl, the jury failed
to find age to be a mitigating factor. State v. Dixon,
125 N.J. 223, 231 (1991); Detailed Narrative of Summaries for Death
Eligible Cases 44 (Detailed Narrative Summaries). Dixon's death
sentence was reversed on appeal. In that case, as in Bey III,
however, the jury's failure to find age to be a mitigating factor
was not a reason to reverse the death sentence. See Dixon,
supra, 125 N.J. at 228; Bey III, supra, 129 N.J. at 613.
In sum, we are unpersuaded by defendant's arguments. Like the sentencing jury in Marshall, the sentencing jury in Bey considered a number of aggravating and mitigating factors, but found only some. The mere fact that defendant was eighteen when he murdered Ms. Peniston does not mean that the jury must find his youth to be a mitigating factor as a matter of law. Our system contemplates that juries will reject some factors,
including age. Although juries may find age to be a mitigating
factor in many cases, they need not so find it in every case.
Moreover, our consideration of non-statutory factors does
not entitle us to overrule the jury findings. We may not reject
the jury's findings even if we might disagree with them. Our
role, as previously stated, is to search for aberrations that
might be the result of impermissible factors. In the frequency
analysis, we will consider only those factors that the jury found
relevant to the imposition of the death penalty. By comparison,
in the precedent-seeking analysis, we will expand our review to
include objective factors that are clearly present in the record
even if the jury did not find them to be relevant. We will not
include these additional factors in the frequency analysis
because of the need to maintain the uniformity of the statistics.
Otherwise, we would be obliged to reconsider and recalculate the
ratios for each case in the universe of cases. As with judicial
review generally, we must recognize our limits in proportionality
review.
The dissent argues here, as it did on direct review of Bey's conviction, see 129 N.J. at 632-48, that the trial court's exclusion of the report of one of the State's experts, Dr. Cooke, and its refusal to permit leading questions of Bey's mother, could not have been harmless error. Post at ___ (slip op. at 21-22). Further, the dissent asserts that harmless-error analysis has no place in death-penalty cases. Post at ___ (slip
op. at 25-30). We continue to believe, however, as we did on
direct appeal, that the asserted errors were harmless. 129 N.J.
at 586-94. Our role in proportionality review is not to
second-guess rulings that we made on direct appeal but to
determine if the imposition of the death sentence on the
defendant, when compared to sentences imposed on other
defendants, is irrational or aberrant. At some point, even a
death-penalty case must end.
The index-of-outcomes approach seeks "to identify the characteristics common to the cases in terms of their degree of blameworthiness as perceived by prosecutors and juries." Marshall, supra, 130 N.J. at 172. It organizes cases according to statistically-relevant measures of culpability, such as the infliction of severe physical pain or mental suffering on the victim, a contemporaneous sexual assault or robbery, and the commission of a prior murder. In the data compiled for Robert Marshall's proportionality review (Marshall Report), the Special Master "estimated for each offender the probability of receiving a death sentence . . .. On the basis of those predictions, [h]e created five level culpability scales which cut the cases at each 20-percentage points of increasing probability of a death sentence, i.e., 0-19, 20-39, etc." Technical Appendix 9 at 5.
Bey scores high in blameworthiness. Using indices that include both statutory and non-statutory factors, we find that
the predicted probability of a death sentence in his case is
seventy-six percent among all penalty-trial cases, with a lower
limit of thirteen percent and an upper limit of ninety-nine
percent. Defendant's case falls within culpability level four
(60-80" culpability), which contains six other cases, and has an
overall death-sentencing rate of forty-three percent (3/7). When
we consider the Martini data, Bey's predicted probability of
receiving a death sentence increases to eighty-one percent, with
a lower limit of thirty-five percent and an upper level of
ninety-seven percent. Accordingly, Bey moves to level five
(80-100"), the highest culpability level, which has a
death-sentencing rate of eighty-eight percent (23/26).
Among all death-eligible cases, the predicted probability of
a death sentence in defendant's case is fifty-one percent, with a
lower limit of nine percent and an upper limit of ninety-two
percent. The seven cases most comparable to defendant's in terms
of blameworthiness fall into culpability level three (40-60" culpability), which has an overall death-sentencing rate of
fifty-seven percent (4/7). Defendant's predicted probability of
receiving a death sentence in Martini is forty-seven percent,
with a lower limit of ten percent and an upper limit of
eighty-eight percent. At culpability level three, the
death-sentencing rate is fifty percent (5/10).
When we consider only statutory factors, the predicted probability of a death sentence for Bey among all penalty-trial
cases, within a range extending from fourteen to ninety-six percent, is sixty-seven percent. Eleven cases similar to defendant's case fall within culpability level four (60-80" culpability). The overall death-sentencing rate for these cases is eighty-three percent (10/12). In Martini, Bey's predicted probability of receiving a death sentence is sixty-two percent, with a lower limit of sixteen percent and an upper limit of ninety-four percent. At culpability level four, defendant's level, the