(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 March 28, 1995 -- Decided July 26, 1995
GARIBALDI, J., writing for a majority of the Court.
A jury convicted Anthony DiFrisco of the murder of Edward Potcher, owner of Jack's Pizzeria in
Maplewood. Potcher was shot at close range four times in the back of his head and once in the body.
DiFrisco confessed to the murder, stating that a man named Anthony Franciotti had paid him $2,500 and
had canceled his $500 drug debt for the killing.
In DiFrisco I, the Supreme Court affirmed DiFrisco's conviction but vacated the death sentence. At
the second penalty-phase proceeding, the jury returned a death penalty verdict, finding the aggravating factor
of committing murder for pecuniary gain to outweigh the mitigating factors of rendering assistance to the
State and the "catchall" factor. The Supreme Court affirmed DiFrisco's death sentence on July 27, 1994
(DiFrisco II), deferring proportionality review. This decision addresses the issue whether the imposition of
the death sentence on DiFrisco was disproportional.
HELD: DiFrisco has not demonstrated any aberration in the result of his penalty trial. His death sentence
is not disproportionate, and accordingly is affirmed.
1. A capital sentence is 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.
Proportionality review seeks to ensure that a substantial distinction exists between capitally-sentenced and
life-sentenced defendants; to limit capital sentencing to those cases that are most aggravated and in which
death sentencing is the expected result; and to promote a rational, consistent, and fair application of the
death sentence. The defendant bears the burden of showing disproportionality because the statute speaks in
terms of proving that the sentence is disproportionate, not that it is proportionate. (pp. 7-11)
2. The first step in proportionality review is to identify the universe of cases to which the Court
compares DiFrisco's case. In 1992, the Legislature amended the statute to limit the proportionality universe
to those cases in which a death sentence has actually been imposed. DiFrisco's first conviction, which
occurred long before the statute was amended, serves as the genesis of this proceeding. The Court therefore
declines to apply the statute as amended to defendant's proportionality review. The Court continues to
include within the death-sentenced pool those cases where the defendant's death sentence was reversed on
appeal and where the prosecutor chose not to proceed capitally on remand. It also considers the data both
including and excluding DiFrisco. (pp. 11-14)
3. The next step is to group the cases according to their comparative levels of blameworthiness. The
Court uses two methods to evaluate a defendant's blameworthiness: frequency analysis, in which the Court
performs three different statistical tests to gauge a defendant's relative criminal culpability; and the
precedent-seeking approach, where the Court engages in traditional case-by-case review comparing similar
death-eligible cases. The Court declines the requests of the parties to make various adjustments to the
categorization of cases performed by the Administrative Office of the Courts (AOC), and defers generally to
the AOC's expertise. (pp. 14-21)
4. Because frequency analysis is statistically based, and because the small sample sizes may undermine statistical reliability, the Court continues to place greater emphasis on the results of the precedent-seeking
review. Nevertheless, the results under the frequency analysis show no randomness or aberration in
DiFrisco's sentence. (pp. 21-38)
5. The primary inquiry in precedent-seeking review is whether the death sentence is justified in
comparison to other similar life-sentenced and death-sentenced defendants. The Court reviews criminal
culpability based on defendant's moral blameworthiness, the degree of victimization, and the character of the
defendant. In comparing DiFrisco's case to those of other pecuniary motive killers, defendant's culpability is
high, and his death sentence is not disproportionate. (pp. 38-71)
DiFrisco's death sentence is not disproportionate, and accordingly is affirmed.
JUSTICE O'HERN, dissenting, in which JUSTICE HANDLER joins, is of the view that precedent-seeking review discloses that in contract killings, the hirer is usually considered more death-worthy than the
hired killer. He does not believe that anything sets DiFrisco's case apart from those where hired killers
either were not prosecuted capitally or did not receive a sentence of death.
JUSTICE HANDLER, dissenting, is of the view that the reasoning by which the Court reaches its
result is strained by the fundamental infirmities of capital murder jurisprudence generally and proportionality
jurisprudence specifically. The defects of the Court's proportionality methodology include: the coding of
reversed death sentences as death sentences for purposes of proportionality review; the refusal of the Court
to hint at what level of statistical infrequency of imposition of a death sentence might justify a finding of
disproportionality under frequency review; and the pervasive ambiguity of precedent-seeking review. He
identifies what he considers to be other serious problems with proportionality review as conducted by the
court and brought to light by the circumstances of this case.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, STEIN and COLEMAN join in JUSTICE
GARIBALDI'S opinion. JUSTICE HANDLER has filed a separate dissenting opinion. JUSTICE O'HERN
has filed a separate dissenting opinion in which JUSTICE HANDLER joins.
Supreme Court of New Jersey
A-
72 September Term 1994
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY DIFRISCO
Defendant-Appellant.
Argued March 28, 1995 -- Decided July 26, 1995
On proportionality review of a death sentence
imposed in the Superior Court, Law Division,
Essex County.
M. Virginia Barta, Assistant Deputy Public
Defender, and Paul M. Klein, Deputy Public
Defender II, argued the cause for appellant
(Susan L. Reisner, Public Defender, attorney;
Ms. Barta, Mr. Klein, and Claudia Van Wyk,
Deputy Public Defender, on the briefs).
Hilary Brunell, Assistant Prosecutor, argued
the cause for respondent (Clifford J. Minor,
Essex County Prosecutor, attorney).
Lawrence S. Lustberg argued the cause for
amicus curiae Association of Criminal Defense
Lawyers of New Jersey (Crummy, Del Deo,
Dolan, Griffinger & Vecchione, attorneys; Mr.
Lustberg and Lenora M. Lapidus, on the
brief).
Catherine A. Foddai, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (Deborah T. Poritz, Attorney
General, attorney).
The opinion of the Court was delivered by
GARIBALDI, J.
In State v. DiFrisco,
118 N.J. 253 (1990), (DiFrisco I), we
affirmed Anthony DiFrisco's conviction for the murder of Edward
Potcher, but vacated his death sentence and remanded the case for
a new penalty-phase hearing. At the second penalty-phase
proceeding, the jury returned a death penalty verdict, and the
trial court sentenced defendant to death. In State v. DiFrisco,
137 N.J. 434 (1994) (DiFrisco II), we affirmed defendant's death
sentence. 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................................................3
II Proportionality Review...............................7
A. The Universe of Cases..........................11
B. The Method of Classifying Cases................12
III Comparison of Cases.................................14
A. Adjustments in Comparison Group................15
B. The Frequency Approach.........................21
1. The Salient-Factors Test..................23
2. The Numerical-Preponderance-
of-Aggravating-and-Mitigating-
Factors Test..............................26
3. The Index-of-Outcomes Test................31
4. Frequency-Approach Conclusion.............37
C. The Precedent-Seeking Approach.................38
1. Relevant Factors..........................39
2. Application of Precedent-Seeking
Approach..................................41
a. Summaries of Similar Cases...........42
i. Contract Killers................42
ii. Contract Principals.............57
b. Analysis of Defendant's
Culpability..........................63
c. Comparison of Similar Cases
to Defendant's Case..................68
3. Other Cases...............................72
IV Other Arguments.....................................72
V Conclusion..........................................73
The facts are set forth in detail in DiFrisco I, supra, 118 N.J. at 255-60, and DiFrisco II, supra, 137 N.J. at 448-51. We repeat here only those facts relevant to our proportionality review.
On August 12, 1986, Edward Potcher, owner of Jack's Pizzeria in Maplewood, was shot at close range four times in the back of his head and once in the body. His unknown assailant escaped undetected, leaving police with no leads in this cold-blooded, execution-style killing.
Several months later, on April 1, 1987, New York City police arrested defendant for various traffic violations, car theft, and reckless endangerment. Detective Harry Kukk testified that defendant fled the scene, so that Kukk was unable to overtake him. Later on the same day, acting on a tip, Detective Kukk went to defendant's apartment. He did not arrest DiFrisco that day, but told DiFrisco to turn himself in the next day. DiFrisco did not do so. In the following week, however, DiFrisco kept a scheduled appointment with his probation officer, and it was there that Detective Kukk arrested him. Defendant did not want to go back to jail. Accordingly, he asked Detective Kukk whether he could "do or say anything that . . . could get [him] out of this situation." The detective suggested that it might help his case if he could give some information about a serious crime. Some time later, as recounted by Detective Kukk, DiFrisco asked
him:
"Harry, who is more guilty, the guy who
shoots a guy or the guy who pays him to shoot
the guy?"
I said, "I have no problem. A guy who
pays a guy to shoot the guy."
He said, "Are you serious?"
I said, "Sure."
"The guy who killed the guy is only an
intermediate, only a pawn."
He said, "Harry, I don't know whether to
trust you or not. If I tell you something,
you are not going to ram it down me."
The defendant's confession of murder followed. As part of his confession, defendant told police that a man named Anthony Franciotti had paid him $2,500 and had canceled his $500 drug debt to kill a pizzeria owner in New Jersey.
At first incredulous of the defendant's story, the New York police officer asked defendant for details. Defendant did not know where the crime had taken place, nor even the name of the victim. He did know that it involved a pizzeria in New Jersey. He said that Franciotti had paid him to do the killing because the pizza-shop owner was about to inform on Franciotti. He said that Franciotti drove him there on the day of the murder. DiFrisco stated that he entered the pizzeria alone and Franciotti waited in the car while the crime took place.
Bit by bit, the New York police closed in on the case. They called New Jersey authorities. They found an unsolved murder in Maplewood, Essex County, fitting the description of the murder in respect of time and place. The last links were the details furnished by the defendant that there were five shots from a .32 caliber automatic gun, that a silencer was used, and that the store sold only whole pizza pies, not slices.
Within hours, the Maplewood Police and Essex County homicide officers arrived at the
precinct house in the Bronx. Defendant
repeated the story to them and signed a
confession to the murder implicating
Franciotti. Several days later, while in
police custody in New Jersey, defendant was
to call Franciotti to link him to the murder.
The police intended to tape that
conversation. Defendant had consulted with a
public defender, who advised him to make the
call. At the last moment, defendant refused
to call Franciotti. He said that his father
counseled against further cooperation with
the police without the advice of paid
counsel.
Defendant was indicted in Essex County and charged with the capital murder of Edward Potcher. The State served notice of three statutory aggravating factors: "outrageously or wantonly vile" murder, N.J.S.A. 2C:11-3c(4)(c); murder for hire, N.J.S.A. 2C:11-3c(4)(d); and murder to escape the detection of another crime, N.J.S.A. 2C:11-3c(4)(f). Defendant pled guilty to capital murder on January 11, 1988, and essentially repeated his confession. Defendant was fully informed by the court of the consequences of such a plea. When asked by the court, "Was it your intention to kill him [Potcher] at that time?", defendant replied, "Yes."
Defendant waived his right to a jury trial for the penalty phase, pursuant to N.J.S.A. 2C:11-3c(1). The trial court found two aggravating factors: that defendant had killed for hire, N.J.S.A. 2C:11-3c(4)(d); and that the victim was killed to avoid the detection of another, N.J.S.A. 2C:11-3c(4)(f). The court also found one mitigating factor, that "defendant rendered substantial assistance to the state in the prosecution of another
person for the crime of murder," N.J.S.A. 2C:11-3c(5)(g).
Finding that the aggravating factors outweighed the mitigating
factors beyond a reasonable doubt, the trial court sentenced
defendant to death. On direct appeal, we affirmed defendant's
guilt-phase conviction, but reversed his death sentence for lack
of any independent corroboration of his testimony, and remanded
for a new penalty-phase proceeding. DiFrisco I, supra,
118 N.J. 283.
On remand, defendant chose to be tried before a jury. After
denying his motion for a directed life verdict, the court
commenced the penalty-phase trial. The State alleged the same
aggravating factors which the prior court had found, that
defendant had committed murder for hire and to escape detection
for another crime. Defendant alleged several factors in
mitigation.
The jury unanimously found as an
aggravating factor that defendant had
committed the murder for payment, but only
eleven jurors found the second aggravating
factor, that defendant had committed the
murder to avoid detection for another crime.
Hence, the jury rejected that factor. At
least one juror found thirteen of the
mitigating factors presented. The jury
concluded that the unanimously-found
aggravating factor outweighed all the
mitigating factors beyond a reasonable doubt.
In conformance with the jury verdict, the
trial court sentenced defendant to death.
Two weeks later, the trial court denied
defendant's motion to set aside the death
sentence in favor of a life sentence.
We affirmed defendant's death sentence and acknowledged his
request for proportionality review. Id. at 508. We now review
his death sentence, and find it not disproportionate.
In State v. Martini, 139 N.J. 3 (1994) (Martini II), we reviewed the fundamental principles of proportionality review. In that case, we found that Martini's sentence was not disproportionate. Little has changed in our proportionality-review jurisprudence since we decided Martini in December 1994. We therefore simply recapitulate our discussion regarding the purpose of proportionality review.
Proportionality review's principal goal is to determine whether a particular defendant's death sentence is disproportionate. 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." Martini II, supra, 139 N.J. at 20 (citing State v. Bey, 137 N.J. 334, 343 (1994) (Bey IV) and State v. Marshall, 130 N.J. 109, 131 (1992) (Marshall II)); see also Tichnell v. State, 297 Md. 432 n.18 (1983) ("[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."). 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. Martini II, supra, 139 N.J. at 20.
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. Substantive or offense-oriented review engages traditional
Eighth Amendment considerations and looks at the offense to
determine whether the punishment imposed is excessive in relation
to the crime itself. Martini II, supra, 139 N.J. at 20 (citing
Coker v. Georgia,
433 U.S. 584, 592,
97 S. Ct. 2861, 2866,
53 L.
Ed.2d 982, 989 (1977)). To pass constitutional muster on
substantive review, "the magnitude of the punishment imposed must
be related to the degree of harm inflicted on the victim."
Marshall II, supra, 130 N.J. at 129. As we have previously
noted, the sentence
may not be "grossly out of proportion" to the
degree of harm imposed. Gregg v. Georgia,
428 U.S. 153, 173,
96 S. Ct. 2909, 2925,
49 L. Ed.2d 859, 875 (1976) (finding that death sentence does
not per se violate Eighth Amendment); accord
Coker, supra, 433 U.S. at 592, 97 S. Ct. at 2866,
53 L. Ed.
2d at 989 (concluding that death
sentence is grossly disproportional and excessive
for crime of rape); Marshall II, supra, 130 N.J.
at 129 (tracing U.S. Supreme Court's development
of substantive review); see Enmund v. Florida,
458 U.S. 782, 787, 801,
102 S. Ct. 3368, 3376, 3378-79,
73 L. Ed.2d 1140, 1151, 1154 (1982) (finding
that Eighth Amendment prohibits capital sentence
for defendant who aids and abets felony in course
of which murder is committed by others but who
does not himself kill, attempt to kill, or intend
that killing or use of lethal force take place).
Conversely, procedural or offender-oriented review focuses
on the defendant, and not on the crime committed; it presumes
that the death penalty is proportional to the offense. Martini
II, supra, 139 N.J. at 20 (citing Marshall II, supra, 130 N.J. at
126-27; Pulley v. Harris,
465 U.S. 37, 43,
104 S. Ct. 871, 876,
79 L. Ed.2d 29, 36 (1994)). In such review, the question is
"whether the 'punishment fits the criminal.'" Marshall II, supra,
130 N.J. at 129. "This sort of proportionality review . . .
purports to inquire instead whether the [death] penalty is
nonetheless unacceptable in a particular case because [it is]
disproportionate to the punishment imposed on others convicted of
the same crime." Pulley, supra, 465 U.S. at 43, 104 S. Ct. at
__, 79 L. Ed.
2d at 36.
Proportionality review is a response to the United States
Supreme Court's decision in Furman v. Georgia,
408 U.S. 238,
92 S. Ct. 2726,
33 L. Ed.2d 346 (1972), which reversed three death
sentences, one for murder and two for rape. As Justice Stewart
noted, the decision whether to sentence a defendant capitally, if
left to the unfettered discretion of a jury, violates the Eighth
Amendment because the sentence can be "wantonly and . . .
freakishly imposed." Id. at 408 U.S. at 310, 92 S. Ct. at 2762-63, 33 L.Ed.
2d at 390 (Stewart, J. concurring). Proportionality
review, though neither required by the United States Constitution
nor the only means capable of rendering capital-punishment
schemes constitutional, nevertheless allows this Court to monitor
the results of jury discretion and prevent the arbitrary and
inconsistent application of the death penalty. Martini II,
supra, 139 N.J. at 21 (citing Pulley, supra, 465 U.S. at 43-46,
104 S. Ct. at 876-77, 70 L. Ed.
2d at 36-37).
Procedural proportionality review seeks to "ensure that a
substantial distinction exists between capitally-sentenced and
life-sentenced defendants; to limit capital sentencing to those
cases that are most aggravated and in which death sentencing is
the expected result; and to promote a rational, consistent, and
fair application of the death sentence." Martini II, supra, 139
N.J. at 22 (citing Marshall II, supra, 130 N.J. at 131). The
defendant bears the burden to show disproportionality by
establishing that similar defendants who commit factually similar
offenses generally receive sentences other than death. Bey IV,
supra, 137 N.J. at 343. That burden is imposed on the defendant,
rather than the State, because the Act, N.J.S.A. 2C:11-3e, speaks
in terms of proving that the sentence is disproportionate, not
proportionate. Id. at 349.
We emphasize, as we did in Martini II, that proportionality
review
is not a "system of death-sentence
validation," post at 81, but is instead a
vehicle to ensure that the penalty-phase
jury's decision is not insupportable. That
purpose stems from the mandate of the
statutory language itself: "the Supreme
Court * * * shall 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. Thus, our search is not for
proportionality, but rather one in which our
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. The question is whether other
defendants with similar characteristics
generally receive sentences other than death.
[Martini II, supra, 139 N.J. at 22 (citing
Marshall II, supra, 130 N.J. at 153).]
A. The Universe of Cases
The first step in proportionality review is to identify the
universe of cases to which we compare defendant's case. In 1992,
the Legislature amended N.J.S.A. 2C:11-3e to limit the
proportionality universe to only those cases in which a death
sentence has actually been imposed. L. 1992, c. 5, § 1. The
Legislature did not state whether the amendment was intended to
apply to pending appeals. In Martini II, Bey IV, and Marshall
II, we declined to apply that amendment to those appeals,
primarily, though not exclusively, because those defendants'
appeals were pending before the Legislature enacted the
amendment. Likewise, we decline to apply that amendment to this
case. DiFrisco's death sentence was first imposed in 1988, two
years prior to Martini's sentence; following his direct appeal
and this Court's remand for retrial of the penalty-phase,
DiFrisco was again sentenced to death in February 1993. Thus,
the genesis of this proceeding was defendant's first conviction,
which occurred long before the statute was amended. We therefore
decline to apply N.J.S.A. 2C:11-3e as amended to defendant's
proportionality review.
The Administrative Office of the Courts (AOC) maintains the
data base of homicide cases that this Court uses for
proportionality review. The AOC developed its statistics based
on the procedure created by Professor David Baldus, the Special
Master this Court appointed to develop a model for
proportionality review, and on modifications this Court has made
through previous proportionality reviews. See, Marshall II,
supra, 130 N.J. at 216-18. The universe of cases that we use in
this review is compiled in the DiFrisco Report, prepared by the
AOC. The report includes cases collected from the effective date
of the death-penalty statute in 1983 through August 1994. It
contains 309 death-eligible cases, 128 of which went to penalty
trial, a rate of forty-one percent. DiFrisco Report, tbl. 3. Of
the 128 penalty-trial cases, thirty-eight, or thirty percent,
resulted in a death sentence. DiFrisco Report, tbl. 2. The
overall death-sentencing rate is twelve percent (38/309).
DiFrisco Report, tbl. 1.
B. Method of Classifying Cases
Once the universe of comparison cases is established, we
must sort them in a data base. As we have done in Martini II,
Bey IV, and Marshall II, 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. Martini
II, supra, 139 N.J. at 24; Bey IV, supra, 137 N.J. at 345;
Marshall II, supra, 130 N.J. at 141-42. 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. Martini II, supra, 139 N.J.
at 24; Marshall II, supra, 130 N.J. at 142-44. The empirical
method reveals those factors that prosecutors and juries find
determinative. Martini II, supra, 139 N.J. at 24; Bey IV, supra,
137 N.J. at 345.
We have previously noted the difficulty and danger inherent
in "any attempt to define in advance all characteristics of a
murder case [to] capture the critical facts of a defendant's
case" because that "would fail to distinguish between individual
defendants." Martini II, supra, 139 N.J. at 24 (citation
omitted). Every murder case is unique. It is that very
uniqueness that requires us to engage in this endeavor, in order
to afford capital defendants the full review to which they are
entitled. See id. at 25.
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 GeraldSee footnote 1 issues--and those cases where
the prosecutor chose not to proceed capitally on remand. See
Martini II, supra, 139 N.J. at 25-26; Bey IV, supra, 137 N.J. at
345-47; Marshall II, supra, 130 N.J. at 194 n.10. 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 (quoting Bey IV, supra, 137 N.J. at
347); accord Marshall II, supra, 130 N.J. at 169 n.5, 194 n.10.
Furthermore, 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. For those reasons and the
reasons detailed in our earlier opinions, we continue to include
such cases in the category of death sentence cases.
Additionally, we continue to present the data both including
and excluding defendant. "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." Martini II, supra, 139
N.J. at 28.
Thus far, we have established that the universe of cases on which we will rely are those contained in the DiFrisco Report, and that we will adhere to our prior criteria for coding those cases as either death sentenced or life sentenced. Now we must group those cases according to their comparative levels of blameworthiness. Martini II, supra, 139 N.J. at 28; Bey IV, supra, 137 N.J. at 350. We have previously measured 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 (quoting Marshall II, supra, 130 N.J. at
352); accord Martini II, supra 139 N.J. at 38.
We use two methods to evaluate a defendant's
blameworthiness: frequency analysis and precedent-seeking
review. Through both, we determine whether defendant's death
sentence is disproportionate compared to similar cases. Marshall
II, supra, 130 N.J. at 148; Martini II, supra, 139 N.J. at 28.
"Proportionality review seeks to determine only whether a
particular death sentence is aberrational, not whether it
compares perfectly with other sentences." Bey IV, supra, 137
N.J. at 352 (citing Marshall II, supra, 120 N.J. at 131).
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, wherein we
compare defendant's case to factually similar cases in order to
discern whether defendant is deathworthy vis-a-vis other
similarly situated defendants. We then compare the results of
the two analyses to determine whether imposition of the death
sentence in this instance is disproportionate.
A. Adjustments in Comparison Group
The AOC, which maintains the data base on which we build our
proportionality-review universe, breaks the list of death-eligible defendants into various categories and sub-categories.
See DiFrisco Report, tbl. 7. These categories are based on the
Special Master's report, which we adopted. See David C. Baldus,
Death Penalty Proportionality Review Project, Final Report to the
New Jersey Supreme Court (Sept. 24, 1991) (Final Report). There
are thirteen basic categories, each of which contains two to
seven sub-categories.See footnote 2
The parties to this action have proposed various adjustments
to the AOC's categorization, suggesting additions or deletions
from defendant's comparison group. 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 sub-category. Final Report at 81.
The AOC has placed DiFrisco in the pecuniary-motive category,
contract-killer sub-category. The pecuniary-motive category
consists of three sub-categories: contract killers, contract
principals, and other pecuniary-motive killers. The pecuniary-motive category currently contains fourteen cases for comparison
with DiFrisco.See footnote 3
Defendant presented a list of persons whom he would like
added to his comparison group. Five of them--Anthony Accetturo,
Louis Auricchio, Thomas Ricciardi, Michael Perna, and Michael
Taccetta--were convicted of crimes that entailed procuring or
carrying out murders on behalf of organized crime families. Some
of the organized-crime defendants were convicted of lesser
offenses such as conspiracy. We did not include that group for
several reasons. First, to be death eligible, a defendant must
have committed the murder by his or her own conduct, or, as an
accomplice, procured the murder by payment of anything of
pecuniary value. N.J.S.A. 2C:11-3c. Three of the five--Michael
Taccetta, Anthony Accetturo and Michael Perna--do not satisfy
that criteria.
Second, there appears to be no basis for an allegation that
any of those defendants were either paid to commit murder or that
they paid another to do so, despite the dissent's assertions to
the contrary. Post at __ (Handler slip op. at 10-14). The
dissent notes that Ricciardi has been tentatively included in the
proportionality universe. Post at __ (Handler slip op. at 12).
We emphasize the word tentatively and note that the AOC has not
included Ricciardi in DiFrisco's comparison group. We again
defer to the AOC's expertise in this area. Moreover, aggravating
factor c(4)(d) is on its face designed to reach only those
murders intended to produce a direct financial gain. Murders
committed to advance the goals of organized crime families,
though to some degree motivated by pecuniary gain, are not the
equivalent of murder-for-hire contemplated by the Special Master.
Our final reaon for excluding the organized-crime defendants
is that, in screening the cases, Special Master Baldus initially
excluded all defendants who pled to an offense less serious than
aggravated manslaughter, such as conspiracy. Final Report at 3.
Also for that reason, we do not include Lazaro Trimino, whose
case was excluded from the death-eligible universe, because he
pled to a crime less than aggravated manslaughter. Those killers
were allowed to plead to lesser offenses because the State lacked
sufficient evidence to go forward with murder prosecutions.
Cases presenting problems of proof do not, by their life
sentences, necessarily establish a determination of lack of
deathworthiness. Accordingly, the AOC properly excluded those
cases from the proportionality universe.
Defendant sought the exclusion from his comparison group of
James Clausell's reversed death sentence. As we observed
earlier, supra at __ (slip op. at 13-14), we continue to include
such cases because they evidence the jury's determination of
deathworthiness. Defendant also sought the inclusion in his
comparison group of life-sentenced killers Daniel Nicini and
Patrick Lanzel. Because we adhere to the AOC's "unique
assignment" of each case to a specific category, supra at __(slip
op. at 15-16), we reject that request. The AOC places Nicini in
category (E)(2), robbery with particular violence/terror, and
Lanzel in category (A)(1), multiple victims. Their motive for
killing was not pecuniary; therefore, their comparison with
defendant is inappropriate.
Defendant has again raised the issue of intra-case
disproportionality, based on the fact that the man he asserts
hired him, Anthony Franciotti, has not himself been prosecuted.
Justice O'Hern, in his dissent, likewise voices this objection.
Post at ___ (O'Hern slip op. at 9-10). We discussed and dealt
with this issue in defendant's two direct appeals. See DiFrisco
I, supra, 118 N.J. at 260-69 and DiFrisco II, supra, 137 N.J. at
504-05.
Essentially, defendant argues, and Justice O'Hern opines,
that it is unfair to prosecute and convict him capitally if his
alleged hirer has not even been indicted, let alone tried or
convicted. We observed then and reiterate now that the decision
not to prosecute Franciotti was an evidentiary one, and does not
constitute a determination of Franciotti's deathworthiness.
DiFrisco I, supra, 118 N.J. at 269. The only "evidence" of
Franciotti's involvement in the crime was defendant's confession;
the only fact corroborative of defendant's association with
Franciotti was that they met while confined to the New York
Downstate Correctional Facility in 1984; the record did not
"disclose any further contact between the two after they had been
released." Id. at 268. The prosecutor probably could have
obtained an indictment against Franciotti on the basis of
defendant's confession, id. at 262, but that confession could not
be used against Franciotti at trial, as it amounted to hearsay.
Id. at 264-65. Given that defendant had earlier reneged on his
agreement to call Franciotti to obtain incriminating evidence, it
appears that the prosecutor was justifiably loath to bargain away
DiFrisco's capital sentence in exchange for defendant's "promise"
to testify against Franciotti. Id. at 269. As we concluded in
DiFrisco I:
We cannot say that it would be arbitrary for
a prosecutor to refuse such a bargain in a
case like this. In many cases there is much
more evidence that links the higher-up to the
crime, such as a motive to kill or a known
relationship gone bad. None of that was
present here.
Simply because the co-defendant hirer might have gotten away does
not mean that the defendant hit-man in custody should not be
prosecuted and punished.
The State, through the Essex County prosecutor and the
Attorney General, opposed five members of defendant's AOC-determined comparison group; opposed defendant's suggested
additions; and proposed one addition of its own. We agree with
the State on one change: Walter Williams should be deleted from
defendant's comparison group. Williams's exclusion is justified
on the grounds that the jury rejected the pecuniary-motive
aggravating factor at his penalty trial. The State argues that
John Martini, whose case is more fully reported in Martini II,
supra, 139 N.J. at 3, should be included in defendant's
comparison group because we included DiFrisco in Martini's
comparison group. The AOC has coded Martini's case as (H)(2),
kidnapping/abduction with particular violence or terror.
DiFrisco Report, tbl. 7. We included DiFrisco in Martini's
comparison group because of the exceedingly small number of cases
in the (H)(2) category and because of our concern that Martini's
crime did not fit squarely within the parameters of the
kidnapping/abduction category as a whole. Martini II, supra, 139
N.J. at 34. Because the same dilemma does not confront us here,
and because we adhere to the AOC's unique assignment of each
case, supra at __ (slip op. at 15-16), we reject the State's
request to include Martini in DiFrisco's comparison group. 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." Martini II, supra, 139 N.J. at 31
(citing Bey IV, supra, 137 N.J. at 352, 362). Defendant's
comparison group consists of thirteen cases.See footnote 4
B. The Frequency Approach
Frequency analysis is divided into three different
statistical tests to gauge a defendant's relative criminal
culpability: the salient-factors test, the numerical-preponderance-of-aggravating-and-mitigating-factors test, and the
index-of-outcomes test. Martini II, supra, 139 N.J. at 29-30;
Bey IV, supra, 137 N.J. at 350-51; Marshall II, supra, 130 N.J.
at 154. 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." Martini II, supra, 139 N.J. at 30. 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.
The sample size of the pools used in frequency analysis
remains small. Consequently, because frequency analysis is
statistically based, and because the small sample sizes may
undermine statistical reliability, we continue to place greater
emphasis on the results of the precedent-seeking review. See
Martini II, supra, 139 N.J. at 29; Bey IV, supra, 137 N.J. at
351. Nevertheless, that limitation does not diminish the utility
of this exercise: frequency analysis is but one tool in our
review process. Until such time as the pools available for use
in frequency review increase, we will continue to rely more
heavily on precedent-seeking review.
A further caveat emerges from our prior proportionality
cases. Defendant's predicted frequencies of receiving a death
sentence are likely to be low. As we noted above, supra at __
(slip op. at 7-8), we decline to set a level at which defendants
"generally" receive the death penalty. Frequency analysis values
are predictors: they are not answers, but guidelines. Martini
II, supra, 139 N.J. at 29. A low predicted value does not mean,
ipso facto, that the imposition of the death penalty is
disproportionate; it simply means that we must more carefully
scrutinize the other aspects of proportionality review. See
Marshall II, supra, 130 N.J. at 153-54, 159.
A more complete explanation of the statistical techniques
used in the frequency analysis portion of our review appears in
Martini II, supra, 139 N.J. at 31-32. We continue to abide by
the earlier conclusion that because the results of our regression
analyses are of uncertain reliability, we will use them for
comparison and guidance, but "do not accord them final or
determinative weight." Ibid. As we stated in Martini II, supra:
Even with the foregoing problems, however,
the statistical approach receives our
attention because it permits us to
distinguish cases by culpability; because it
allows us to determine a community consensus,
in contrast to the individual assessment of
the case-by-case approach; and because it
creates a basis for evaluating the fairness
of the entire sentencing system. Unlike the
precedent-seeking approach, the statistical
method provides a means for deciding whether
the cases used for comparison are themselves
disproportional. Therefore, we use both
approaches as complementary techniques.
1. The Salient-Factors Test
In the salient-factors test, we compare defendant's sentence to sentences in factually-similar cases in order to measure the relative frequency of defendant's sentence. 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. We base
comparability first on the statutory aggravating factors, and
then further subdivide the group "according to circumstances that
serve either to aggravate or to mitigate the blameworthiness of
the defendants in those cases." Martini II, supra, 139 N.J. at
33. Because the salient-factors test compares sentences in cases
which are factually similar, we find it the most persuasive of
the frequency tests. Bey IV, supra, 137 N.J. at 353; accord
Martini II, supra, 139 N.J. at 33; Marshall II, supra, 130 N.J.
at 168.
DiFrisco is categorized as a pecuniary gain killer, contract
killer sub-category. DiFrisco Report, tbl. 7, group I(1). Of
the nine death-eligible cases in that group, six went to penalty
trial, and of those penalty-trial cases, three resulted in death
sentences, including defendant's cases. Thus, the death-sentencing rate for all death-eligible contract killers is
thirty-three percent, but for those advancing to penalty trial,
it is fifty percent. Those figures are significantly higher than
the overall death-sentencing rates of twelve percent for all
death-eligible killers and thirty percent for all penalty-phase
cases, lending further support to our earlier observation that
the sub-category of contract-killers is viewed by society as
"significantly blameworthy." Marshall II, supra, 130 N.J. at
185.
Placing this information in tabular form assists in its
understanding:
Death-Sentencing Death Sentencing Proportion of
Rate at Penalty Rate for All Cases Advancing
Trial Death-Eligible to Penalty
Cases Trial
----------------------------------------------------------------
Incl. D .50 (3/6) .33 (3/9) .66 (6/9)
Excl. D .25 (1/4) .14 (1/7) .57 (4/7)
----------------------------------------------------------------
Removing defendant's case from the group lowers the rates
somewhat, but still places the figures within the general overall
range of twelve percent for all death-eligible cases and thirty
percent for penalty-trial cases.
Looking at the entire pecuniary gain category, as we
adjusted it above, supra at __(slip op. at 15-21), reveals the
following rates:
Death-Sentencing Death Sentencing Proportion of
Rate at Penalty Rate for All Cases Advancing
Trial Death-Eligible to Penalty
Cases Trial
-----------------------------------------------------------------
Incl. D .44 (4/9) .31 (4/13) .69 (9/13)
Excl. D .29 (2/7) .18 (2/11) .64 (7/11)
-----------------------------------------------------------------
Once again, those rates equal or exceed the overall rates for all
death-eligible and all penalty-phase cases.
Based on the foregoing, we find that the death penalty is
imposed on a more frequent basis in the pecuniary-motive killings
group, and similarly in the contract-killer subgroup, than in the
general death-eligible and penalty-phase universes. Although we
decline to set a numerical standard at which defendants
"generally" receive the death penalty, a review of the data in
this salient-factors analysis reveals that a significant
proportion of defendants in the pecuniary-motive category, and
particularly those in the contract-killers sub-category, have
received the death penalty.
Accordingly, we conclude that the salient-factors test, the
most persuasive of the statistical measures, supports a finding
of no disproportionality. As we previously observed, "[c]ontract
killers show an extremely high frequency of receiving a death
sentence." Martini II, supra, 139 N.J. at 35. Nonetheless, the
small sample sizes of the groups in this salient-factors test
preclude us from investing great weight in those results. They
do, however, serve as a check against our findings under the
other statistical tests and under the precedent-seeking approach.
Ibid. at 38.
2. The Numerical-Preponderance-of-Aggravating-and-Mitigating-Factors Test
In this test, we compare DiFrisco's case to other cases having the same number of aggravating and mitigating factors. The purpose of this test is to overcome the shortcomings of the salient-factors test, particularly the small sample pools. Yet this test, too, is fraught with uncertainty, a fact that we have recognized in labelling this test "more problematic" than the other two statistical methods. See Martini II, supra, 139 N.J. at 38; Marshall II, supra, 130 N.J. at 171. The difficulty with this test is that it assumes that juries weigh each of the
aggravating and mitigating factors equally, an assumption that
fails to account for the qualitative nature of jury
deliberations. In an effort to alleviate that problem, the
numerical-preponderance test attempts to weight the statutory
factors to account for qualitative determinations.
Defendant's jury found one aggravating factor, c(4)(d),
pecuniary gain, and two mitigating factors, c(5)(g), defendant
rendered substantial assistance to the State in the prosecution
of another person for murder, and c(5)(h), the "catchall" factor.
The jury rejected mitigating factors c(5)(a), extreme mental or
emotional disturbance, and c(5)(d), impaired as a result of
mental disease or defect or intoxication. In frequency analysis
we consider only those objective mitigating factors that the jury
found. Martini II, supra, 139 N.J. at 38; Bey IV, supra, 137
N.J. at 361. To do otherwise would require that we rework and
reweigh all the cases in the universe. Of twenty penalty-trial
cases in which the defendant had one aggravating factor and two
mitigating factors, four have resulted in death sentences, a rate
of twenty percent. DiFrisco Report, tbl. 8. The AOC reports
sixty-nine cases in the overall death-eligible universe where one
aggravating and two mitigating factors were found, and of those,
four resulted in death sentences, a rate of six percent. The
figures are as follows:
Penalty-Trial Death Eligible
Universe Universe
-----------------------------------------------------------------
Including DiFrisco .20 (4/20) .06 (4/69)
Excluding DiFrisco .16 (3/19) .04 (3/68)
-----------------------------------------------------------------
Looking at all cases which had just one aggravating factor,
regardless of the mitigating factors, presents the following:
Penalty-Trial Death Eligible
Universe Universe
-----------------------------------------------------------------
Including DiFrisco .11 (7/62) .04 (7/183)
Excluding DiFrisco .10 (6/61) .03 (6/182)
-----------------------------------------------------------------
Those figures reveal that the death penalty is imposed less
frequently than the overall average when there are one mitigating
and two aggravating factors, as well as when there is only one
aggravating factor, regardless of the number of mitigating
factors. The figures without defendant are slightly lower.
Of those cases in which aggravating factor c(4)(d)
(pecuniary motive) was present and which contain one aggravating
and two mitigating factors, the death-sentencing rate in all
death-eligible cases is twenty percent (1/5) with defendant, but
zero percent (0/4) without him. Of those cases going to penalty
trial, the capital sentencing rate is thirty-three percent (1/3)
with defendant, but zero percent (0/2) without him. Defendant
argues that this leads inexorably to the conclusion that his
death sentence is disproportional.
To this argument, we have two responses. First, the sample
size here is extremely small, which, once again, strongly
cautions against giving those results much weight. Second, and
more important, to defendant's argument that he is the first, or
only, defendant with solely the c(4)(d) aggravating factor and
two mitigating factors sentenced to death, we state again that
"[b]eing the first murderer in a category [to receive a death
sentence] does not support a conclusion of disproportionality."
Martini II, supra, 139 N.J. at 34; accord Bey IV, supra, 137 N.J.
at 349-50; Marshall II, supra, 130 N.J. at 166. Furthermore,
defendant's sentencing rate is comparable to the death sentencing
rates for other contract killers and other pecuniary gain
killers, as demonstrated above in § III(B)(1), supra at __ (slip
op. at 23-26).
Finally, we present a factor-by-factor analysis of
defendant's aggravating and mitigating factors, which confirms
the determination that, though some of defendant's figures may be
low, his death sentence is not disproportionate.
Death Sentencing Rate Death Sentencing Rate for
at Penalty Trial All Death-Eligible Cases
Including Excluding Including Excluding
DiFrisco DiFrisco DiFrisco DiFrisco
----------------------------------------------------------------
Aggravating .60 (3/5) .50 (2/4) .33 (3/9) .25 (2/8)
Factor c(4)(d)
(pecuniary
motive)
-----------------------------------------------------------------
Mitigating .33 (2/6) .20 (1/5) .20 (2/10) .11 (1/9)
Factor c(5)(g)
(substantial
assistance to
State)
-----------------------------------------------------------------
Mitigating .26 (30/117) .25 (29/116).10 (30/298) .10 (29/297)
Factor c(5)(g)
(catchall)
-----------------------------------------------------------------
Those low figures make us very cautious in determining the disproportionality of defendant's death sentence. The relatively small sample sizes, and the inability of this test, more so than the other statistical tests,