(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 15, 1998 -- Decided June 3, 1999
STEIN, J., writing for a majority of the Court.
This appeal addresses Cooper's request for proportionality review of his death sentence.
On July 18, 1993, Cooper lured L.G., his six-year-old victim, away from other children while she was
playing in a fenced-in backyard. Cooper lifted L.G. over the fence and walked away with her. The victim's
mother, relatives, and neighbors searched for and called out to L.G., but their efforts proved to be fruitless.
A few hours later, police officers found L.G.'s body under the porch of a nearby abandoned home. The
cause of death was asphyxiation. L.G.'s clothes were partially removed and she had been sexually assaulted.
Cooper had been living under the porch, and many of his personal belongings were found there. He
was apprehended the next day. Cooper admitted kidnapping L.G. and sexually assaulting her, but he claimed
her death was accidental.
A jury convicted Cooper of kidnapping, aggravated sexual assault, and capital murder. At the
penalty phase, Cooper presented substantial mitigating evidence focusing on his tragic childhood and
resulting emotional disturbance. The jury found two aggravating factors: that Cooper had committed the
murder to escape detection, and in the course of committing aggravated sexual assault and kidnapping. The
jury unanimously found that the two aggravating factors outweighed the mitigating factors, and sentenced
Cooper to death.
The Supreme Court affirmed Cooper's conviction for capital murder and his death sentence, as well
as his kidnapping conviction. It vacated the conviction for aggravated sexual assault, ordering that that
conviction merge with the kidnapping conviction.
HELD: Cooper's death sentence is not disproportionate.
1. The purpose of proportionality review is to determine whether a specific defendant's death sentence is
disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
Another objective is to ensure that prosecutorial and jury decisions in capital causes are free from
discrimination based on race and other impermissible factors. (pp. 10-17)
2. To conduct proportionality review the Court must establish the universe of cases to which a defendant's
case will be compared. In 1992, the Legislature restricted the comparative group to only those cases in
which a jury had imposed a death sentence. In State v. Loftin,
167 N.J. 257 (1999) (Loftin II), the Court
addressed the potential conflict between this amendment and this Court's duty to define the appropriate
scope of appellate review. The Court appointed a Special Master to consider this and other issues in respect
of its proportionality review. The Court has determined to continue to use all cases where the defendant was
death-eligible for comparison purposes, and to defer any decision concerning the 1992 amendment until the
Court has completed its review of the Special Master's Report. (pp. 17-20)
3. The AOC has assigned Cooper to subcategory C-1, which comprises murders committed in conjunction
with sexual assaults characterized by violence and terror. The subcategory contains forty defendants, a
relatively large group. The Court agrees with the State's argument that cases in which the jury did not find
the aggravating factor of murder committed in conjunction with sexual assaults should not be assigned to this
category. (20-23)
4. Under the frequency analysis approach, the Court uses statistical tests called the salient-factors and index-of-outcomes tests to compare a defendant's case to other cases with similar fact patterns or culpability levels.
The Court is unable to conclude that application of the salient-factors test to Cooper demonstrates that his
death sentence is disproportionate. Although Cooper's relatively low culpability scores in two of the
regressions in the index-of-outcomes test are troublesome, they do not demonstrate that his death sentence is
disproportionate. The AOC's models used in the index-of-outcomes test do not take into account the fact
that the victim of Cooper's homicide was a six-year-old girl. As a result, the test undoubtedly underestimates
Cooper's predicted probability of a death sentence. (pp. 23-41)
5. Under precedent-seeking review, the Court engages in a traditional case-by-case analysis in which it
compares similar death-eligible cases, considering the cases individually. The Court has consistently accorded
greater significance to precedent-seeking review than to frequency review. In precedent-seeking, the Court
evaluates a defendant's culpability, focusing on his moral blameworthiness, the extent of victimization, and
defendant's character. In Cooper's case, the extreme vulnerability of the victim and the absence of proof of
a mental disease or defect are factors that support a finding of high moral blameworthiness. Also, the extent
of victimization in Cooper's case is extremely high. Comparing Cooper's culpability with other defendants
who committed comparable homicides, the Court does not find Cooper's sentence aberrational. With respect
to almost all of the non-death-sentenced defendants, Cooper's sentence is reconcilable with their sentences
and/or with the Sate's decision to forego capital prosecution. The cases concerning which reconciliation of
sentences cannot readily be achieved are too few to diminish significantly the Court's confidence that
Cooper's death sentence is not disproportionate. (pp. 41-84)
6. For the reasons expressed in State v. Chew, ___ N.J. ___ (1999) (Chew II), which is being filed
simultaneously with this opinion, the Court rejects Cooper's other claims. These include claims that the
death penalty is being imposed in a racially discriminatory manner and that those defendants possessing the
extreme emotional disturbance mitigating factor are more likely to be sentenced to death.
Cooper's death sentence is AFFIRMED.
JUSTICE HANDLER, dissenting, is of the view that the Court should not apply existing
methodology to Cooper, given its acknowledgment that that methodology contains flaws. In addition, he
believes that the death penalty statute must be invalidated because of the unconstitutional risk that race
discrimination plays a role in the prosecuting and sentencing of death-eligible defendants in New Jersey.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, and COLEMAN
join in JUSTICE STEIN's opinion. JUSTICE HANDLER has filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
147 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID COOPER,
Defendant-Appellant.
Argued September 15, 1998 -- Decided June 3, 1999
On proportionality review of a death sentence
imposed in the Superior Court, Law Division,
Monmouth County.
Mordecai D. Garelick and Linda Mehling
Assistant Deputy Public Defenders, argued the
cause for appellant (Ivelisse Torres, Public
Defender, attorney; Mr. Garelick, Ms.
Mehling, Claudia Van Wyk and Matthew Astore,
Deputy Public Defenders, II and Michael B.
Jones, Assistant Deputy Public Defender, of
counsel; Mr. Garelick, Ms. Mehling, and Ms.
Van Wyk, on the briefs).
Catherine A. Foddai, Deputy Attorney General,
argued the cause for respondent (Peter
Verniero, Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
STEIN, J.
In May 1995, defendant David Cooper was convicted by a
Monmouth County jury of the purposeful or knowing murder, by his
own conduct, of L.G., a six-year-old girl. The jury also
convicted him of the related charges of kidnapping, two counts of
aggravated sexual assault, and felony murder. On the capital
murder conviction, the jury sentenced defendant to death. For
the non-capital convictions, the trial court sentenced defendant
on the kidnapping count to fifty years' imprisonment with twenty-five years of parole ineligibility, and on the aggravated sexual
assault convictions to twenty-five years' imprisonment with ten
years of parole ineligibility, both sentences to be served
consecutively to the sentence imposed for purposeful or knowing
murder. The felony-murder conviction was merged with the
conviction for purposeful or knowing murder.
This Court affirmed defendant's conviction for capital
murder and his death sentence. State v. Cooper,
151 N.J. 325,
406-07 (1997). We also affirmed his conviction and sentence on
the kidnapping charge. We vacated defendant's conviction and
sentence for aggravated sexual assault and held that that
conviction must merge with the kidnapping conviction. Id. at
406.
Defendant requested proportionality review for his death
sentence. See N.J.S.A. 2C:11-3e. We granted that request and
now find no disproportionality in defendant's death sentence.
The detailed facts are described in Cooper, supra, 151 N.J. at 341-47, and we repeat here only those facts that are material to our proportionality review.
On July 18, 1993, L.G., the six-year-old victim, her two sisters, and her mother, R.G., were at the Asbury Park home of R.G.'s sister-in-law, M.W. R.G. sat on the front porch of the house with her youngest daughter while M.W. was at the supermarket. The victim, her sister, and M.W.'s daughter played in the front yard and eventually moved to the fenced-in back yard.
While the children were in the backyard, defendant lured L.G. away from the other children, lifted her over the fence, and walked away with her. The other children informed R.G. that defendant had taken L.G. R.G. and M.W., who by now had returned from the supermarket, searched for and called out to L.G. Neighbors joined in the search. Their efforts proved to be fruitless.
The Asbury Park Police Department was notified of L.G.'s disappearance, and police officers commenced a search for L.G. A few hours after her abduction, police officers found L.G.'s body under the porch of an abandoned home in Asbury Park. Defendant had been living under that porch. L.G. was found on her back lying on a mattress; her shirt was pulled up, her panties were at her ankles, and a pair of boxer shorts covered her face. Her vaginal area was exposed and bloodied.
Next to L.G.'s body the police found clothing and a bloodstained paper towel. Nearby, they recovered defendant's gym bag that contained his wallet, and inside the wallet was defendant's social security card. Other documents identifying defendant were found in the area, as well as a paper bag and beer bottle that contained defendant's latent fingerprints.
Police apprehended defendant the next day and took him to police headquarters for interrogation. Defendant waived his Miranda rights but initially denied any involvement in L.G.'s death. After being confronted with the incriminatory evidence already gathered and informed that a court order would be sought to obtain additional evidence from his person, defendant acknowledged responsibility for L.G.'s death.
Defendant stated, however, that L.G.'s death was accidental and that he was drunk when he strangled her. According to defendant, he saw L.G. playing in the backyard of M.W.'s house, lifted her over the fence, and led her to the area under the porch of the abandoned house. Using a condom, he forcibly engaged in sexual intercourse with L.G., and then strangled her, leaving her body underneath the porch. He discarded the condom in a nearby field. Defendant then signed a written statement acknowledging that while lying on top of L.G., with his hands on her neck, he penetrated her vaginally causing her to bleed and resulting in blood stains on his clothes.
An autopsy demonstrated that L.G. died of asphyxiation. The medical examiner concluded that she had been strangled for between four and six minutes. The autopsy also revealed injuries to L.G.'s vagina, cervix, and anal canal.
Substantially on the basis of those facts, a Monmouth County jury convicted defendant of kidnapping, aggravated sexual assault, felony murder, and capital murder.
At the ensuing penalty phase before the same jury, the State relied on three aggravating factors: (1) that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind, N.J.S.A. 2C:11-3c(4)(c); (2) that the murder occurred during the commission of an aggravated sexual assault or kidnapping, N.J.S.A. 2C:11-3c(4)(g); and (3) that the purpose of the murder was to escape detection or apprehension, N.J.S.A. 2C:11-3c(4)(f).
Defendant presented substantial mitigating evidence focusing on his tragic childhood and resulting emotional disturbance. Pursuant to the "catch-all" mitigating factor, defendant submitted evidence of eighteen mitigating circumstances relating primarily to his flawed upbringing and its effect on his emotional development and behavior.
Defendant's mitigating evidence demonstrated that his sixteen-year-old mother drank heavily during her pregnancy. Defendant was born with heart and respiratory ailments, and he spent the fifty-four days following his birth in the hospital. During that period his parents allegedly visited him only three times. Because of infectious and other congenital conditions, defendant was hospitalized on nine other occasions before his first birthday and required heart surgery when he was two. Defendant's father was addicted to alcohol and drugs and was a diagnosed schizophrenic. He often abused defendant's mother and once broke her arm in defendant's presence. When defendant was two years old, his father was imprisoned for raping two of defendant's older cousins.
Defendant's mother, also an alcoholic, apparently was incapable of providing defendant with normal maternal affection. She disclaimed her maternity, referring to defendant as the child of his paternal grandmother. She was violent and abusive to defendant, on one occasion dangling him out of an apartment window.
When defendant was eight years old, he told his social worker that he wanted to be removed from his home. When he was nine years old, his mother died in an automobile accident. By age eleven, defendant had lived with at least ten different caregivers, including various relatives and foster parents. In many of those placements defendant was exposed to violence and substance abuse.
Several experts testified on defendant's behalf that his sickly and unstable childhood, his exposure to violence, abuse and neglect, and the lack of any affectionate relationship with his mother had reduced his ability to understand cause and effect, limited his capacity to empathize with others, and rendered him hostile, aggressive, and prone to violence. In addition, expert testimony was presented relating defendant's emotional disturbance as an adult to his flawed and oppressive childhood.
The jury unanimously determined that defendant had committed the murder to escape detection, N.J.S.A. 2C:11-3c(4)(f), and had done so in the course of committing aggravated sexual assault and kidnapping, N.J.S.A. 2C:11-3c(4)(g). The jury rejected the
State's contention that the murder had involved torture or an aggravated battery. N.J.S.A. 2C:11-3c(4)(c).
Concerning the mitigating factors proffered by defendant:
Some or all of the jurors found the following mitigating factors: (1) that defendant had been denied nurturing as an infant (6 jurors); (2) that he had been born to drug and alcohol-dependent parents (12 jurors); (3) that drinking by his mother during pregnancy had contributed to defendant's physical and developmental disabilities (2 jurors); (4) that his father had abused members of the family when defendant was an infant, thereby exposing him to violent and abusive behavior (8 jurors); (5) that his mother had abandoned him with relatives throughout his youth (3 jurors); (6) that his mother had neglected and abused him because of her own upbringing and dependence on alcohol (10 jurors); (7) that throughout his childhood, he had been exposed to excessive amounts of domestic violence and substance abuse (10 jurors); (8) that he had suffered through multiple placements and periodically had attended 11 different schools (10 jurors); (9) that he had been denied consistent treatment throughout childhood despite identification of emotional and psychological problems (3 jurors); (10) that his background had increased significantly his risk of engaging in substance abuse and antisocial behavior (8 jurors); (11) that he had been allowed to abuse drugs and alcohol at an early age (6 jurors); (12) that he had begun acting out during his childhood because of unresolved and untreated emotional disturbances (6 jurors); (13) that during his childhood, he had been exposed periodically to an unstable father (6 jurors); (14) that he had been deprived of a stable nurturing home throughout his childhood (5 jurors); (15) that he had not been provided with recommended and necessary therapy (4 jurors); and (16) that the sudden death of his mother had left him with unresolved grief issues that were not addressed through therapy (6 jurors).
[Cooper, supra, 151 N.J. at 346.]
The following two mitigating factors were unanimously
rejected by the jury: (1) that defendant had been denied
exposure to proper role models during his childhood; and (2) the
"any other reasons not mentioned" factor.
The jury unanimously found that the two aggravating factors
together outweighed the mitigating factors beyond a reasonable
doubt. Accordingly, defendant was sentenced to death.
As noted above, this Court affirmed defendant's conviction
for capital murder and his death sentence, and also affirmed his
kidnapping conviction and sentence. We vacated his conviction
for aggravated sexual assault, ordering that that conviction must
merge with the kidnapping conviction. Cooper, supra, 151 N.J. at
406. This Court also ordered the Administrative Office of the
Courts (AOC) to update its database to facilitate proportionality
review in this case, as well as in State v. Harvey, and State v.
Chew. On December 3, 1997, the AOC issued its revised
statistical report (CCH Report) formed from a database that
included all death-eligible defendants sentenced through July 31,
1997.
In our recent opinion in State v. Loftin, 157 N.J. 253, 266-77 (1998) (Loftin II), we briefly summarized the history of proportionality review in the United States as well as in New Jersey. As noted in Loftin II, we trace our overview of the fundamental objectives of proportionality review back to this Court's seminal decision in State v. Ramseur, 106 N.J. 123 (1987):
Proportionality review has a function entirely unique among the review proceedings in a capital proceeding. Proportionality review, in the context of a capital sentencing scheme, is not appellate review to ensure that the aggravating factors outweigh beyond a reasonable doubt all the mitigating factors, L. 1985, c. 178, or to determine if the death sentence is disproportionate to the crime in violation of the ban against cruel and unusual punishment. That death is not disproportionate in the sense of being a cruel and unusual punishment is presumed by the nature of the review. Rather, the purpose of review here is "of a different sort. . . . It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime."
[Id. at 326 (quoting Pulley v. Harris, 465 U.S. 37, 43, 104 S. Ct. 871, 875, 79 L. Ed. 2d at 29, 36 (1984)).]
Accordingly, the purpose of proportionality review is to
determine whether a specific defendant's death sentence "is
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant." N.J.S.A. 2C:11-3(e). In conducting proportionality review our principle inquiry
is whether "the punishment fits the criminal," State v. Marshall,
130 N.J. 109, 129 (1992) (Marshall II), cert. denied,
507 U.S. 929,
113 S. Ct. 1306,
122 L. Ed.2d 694 (1993), and our objective
is to "ensure that the death penalty is being administered in a
rational, non-arbitrary, and evenhanded manner, fairly, and with
reasonable consistency." Id. at 131.
A collateral objective of proportionality review is to
ensure that prosecutorial and jury decisions in capital causes
are free from discrimination based on race, gender, socio-economic status or other impermissible factors. In Ramseur,
supra, we observed:
Proportionality review further acts "as
a check against the random and arbitrary
imposition of the death penalty" by an
aberrant jury. "[G]iven the emotions
generated by capital crimes, it may well be
that juries, trial judges, and appellate
courts considering sentences of death [may
be] affected by impermissible
considerations." Discrimination on the basis
of race, sex, or other suspect characteristic
cannot be tolerated. . . . Proportionality
review therefore is a means through which to
monitor the imposition of death sentences and
thereby to prevent any impermissible
discrimination in imposing the death penalty.
[106 N.J. Super. at 327 (citations omitted).]
In conducting proportionality review, we have relied
substantially on the Final Report of our first Special Master,
David C. Baldus, Death Penalty Proportionality Review Project,
Final Report to the New Jersey Supreme Court (Sept. 24, 1991)
(Final Report). In Marshall II, supra, we explained the
analytical process underlying our selection of a pool of cases,
out of the entire universe of death-eligible homicides, to be
used as a basis of comparison with a specific death-sentenced
defendant's case in determining whether that defendant's death
sentence is disproportionate. 130 N.J. at 141-45. We generally
have adhered to the analytical framework set forth in Marshall II
and in subsequent proportionality review decisions. See, e.g.,
State v. Bey,
137 N.J. 334, 343-65 (1994) (Bey IV), cert. denied,
513 U.S. 1164,
115 S. Ct. 1131,
130 L. Ed.2d 1093 (1995); State
v. Martini,
139 N.J. 3, 20-51 (1994) (Martini II), cert. denied,
516 U.S. 875,
116 S. Ct. 203,
133 L. Ed.2d 137 (1995); State v.
DiFrisco,
142 N.J. 148 (1995) (DiFrisco III), cert. denied,
516 U.S. 1129,
116 S. Ct. 949,
133 L. Ed.2d 873 (1996).
Our basic methodology for conducting proportionality review
encompasses two distinct approaches: first, we use a frequency
analysis that includes both mathematical and statistical
calculations to compare defendant's case to other cases with
similar fact patterns or similar levels of culpability in order
to ascertain the rate of death sentencing in those similar cases;
second, we engage in precedent-seeking review in which we compare
all relevant factors in factually similar cases to determine
whether defendant's death sentence appears to be disproportionate
in comparison to the sentences imposed on other defendants who
committed comparable homicides. In our prior proportionality
review decisions we have found it appropriate to place greater
reliance on precedent-seeking review than on frequency analysis,
noting that the process of precedent-seeking review is one
familiar to us as judges and is not vulnerable to the concerns
about reliability that burden frequency analysis. Loftin II,
supra, 157 N.J. at 277; DiFrisco III, supra, 142 N.J. at 184;
Martini II, supra, 139 N.J. at 46.
In its current formulation frequency analysis is a
methodology that uses simple mathematical and complex statistical
principles to determine the frequency with which defendants who
committed offenses similar to that committed by the subject
defendant, or who possess a comparable level of blameworthiness
to that defendant, are sentenced to death. Frequency analysis
combines two different approaches, the salient-factors test and
the index-of-outcomes test. Prior to Loftin II, supra, frequency
analysis also included the numerical-preponderance-of-aggravating-and-mitigating-factors test, which compared a death-sentenced defendant's case to other death-eligible prosecutions
having the same number of aggravating and mitigating factors. In
Loftin II, the Court concluded that that test "has not
contributed to the Court's proportionality reviews and, in light
of its inherent flaws, cannot be expected to do so in the
future." 157 N.J. at 295. Accordingly, the Court abandoned the
numerical-preponderance-of-aggravating-and-mitigating-factors
test. Ibid.
The salient-factors test uses the AOC's database in which
the universe of death-eligible cases is subdivided into various
categories and subcategories, ranked in descending order of
blameworthiness, and derived from the statutory aggravating
factors.See footnote 1 Final Report at 81-82. The AOC assigns each
defendant to one of the thirteen major categories. Each of these
categories includes two to seven subcategories that aggravate or
mitigate the blameworthiness of defendants included in the
primary category.
In applying the salient-factors test, we compare defendant's
death sentence to the sentences imposed in factually similar
cases within the same primary category in order to ascertain the
frequency with which death sentences generally are imposed in
such cases. A demonstration that the death sentence is regularly
or frequently imposed suggests that there may exist a societal
consensus that the death penalty is an appropriate punishment for
that category of homicides. Although we consider the salient-factors test to be the most persuasive of the frequency tests,
DiFrisco III, supra, 142 N.J. at 173; Martini II, supra, 139 N.J.
at 33; Bey IV, supra, 137 N.J. at 353, we are aware that the
small sample sizes of the comparison groups, a consequence of the
Special Master's decision to create a relatively large number of
comparison groups, limits the value and significance of the
salient-factors test. Loftin II, supra, 157 N.J. at 293;
DiFrisco III, supra, 142 N.J. at 174; Martini II, supra, 139 N.J.
at 37-38.
The index-of-outcomes test attempts to compare the death-sentenced defendant's case to other cases involving defendants
with comparable qualities of blameworthiness, taking into account
both statutory and non-statutory factors. The blameworthiness of
defendants is compared on the basis of "statistically-relevant
measures of culpability found in the circumstances of their
cases, such as the infliction of severe pain or suffering, the
existence of a contemporaneous sexual assault or robbery, or the
prior commission of murder." Martini II, supra, 139 N.J. at 42.
The AOC prepares tables grouping cases in five levels of
culpability based on statistically-predicted probabilities of a
return of a death sentence. We then derive the actual
probabilities of death sentences for cases in each culpability
level, and apply that statistical data to assess the
proportionality of the subject defendant's death sentence.
However, the Court has recognized that "the small sample size of
cases with similar levels of blameworthiness and the great ranges
in the confidence intervals preclude[] us from giving weight to
these findings." DiFrisco III, supra, 142 N.J. at 182.
Moreover, the AOC's memorandum to the Court accompanying the CCH
Report cautions us that "the culpability estimate which purports
to give a 'predicted probability of a death sentence' is often
still too soft, and little substantive reliance should be given
to this statistic in the Chew, Cooper, and Harvey cases." As
noted in Loftin II, supra, "we are uncertain whether we will soon
reach a sample size capable of supporting reliable results in
these models." 157 N.J. at 296.
A. The Universe of Cases
In order to conduct proportionality review we must establish
the universe of cases to which defendant's case will be compared.
In 1992, the Legislature amended N.J.S.A. 2C:11-3e to restrict
the comparative group to only those cases in which a jury had
imposed a death sentence. L. 1992, c. 5, § 1. In previous
proportionality review cases in which defendants' appeals from
death sentences were pending prior to the Legislature's
enactment, we declined to apply the amendment. See Harvey III,
supra, ___ N.J. at ___ (slip op. at 12); DiFrisco III, supra, 142
N.J. at 162-63; Martini II, supra, 139 N.J. at 23; Bey IV, supra,
137 N.J. at 343-44; Marshall II, supra, 130 N.J. at 119.
Instead, we applied the pre-1992 proportionality review provision
of N.J.S.A. 2C:11-3e, pursuant to which we held that the
appropriate universe included all cases in which a death penalty
had been sought or imposed and also "clearly death eligible
homicides in which the prosecutor elected not to seek the death
penalty." Marshall II, supra, 130 N.J. at 137.
However, in Loftin II, supra, we were confronted with a
defendant who, as in this case, was convicted of capital murder
after the effective date of the 1992 amendment. We addressed in
Loftin II the potential conflict between the 1992 amendment and
this Court's constitutionally prescribed duty to define the
appropriate scope of appellate review in capital causes. We
explained that although the determination of the appropriate
scope of appellate review in death penalty cases is "an
unqualified and exclusive function of the judiciary," Loftin II,
supra, 157 N.J. at 284, the exclusivity of the Court's power need
not necessarily preclude an accommodation of the views of the
Legislature. Id. at 284-87. We observed that the critical issue
to be determined was whether the Legislature's limitation on the
size of the universe for proportionality review would prevent
effective appellate review of death penalty cases. Because we
decided in Loftin II to refer various issues concerning
proportionality review to Judge David Baime to make fact findings
and recommendations to the Court by May 14, 1999, we deferred any
decision concerning the application of the 1992 amendment until
the Court received Judge Baime's report. In the interim, the
Court has decided to continue to use the full universe of death-eligible cases in its conduct of proportionality review. Id. at
287.See footnote 2
We also continue to adhere to our determinations in earlier
proportionality review cases that death-sentenced cases reversed
on appeal because of procedural, burden-of-proof, or Gerald-type
errors should be included in the category of death-sentenced
cases. (A Gerald error is one in which a death sentence followed
a conviction of capital murder that, because of an imprecise jury
charge, could have been based on a jury finding that the
defendant purposely or knowingly caused serious bodily injury
that resulted in death, instead of a finding that defendant
purposely or knowingly caused death. See State v. Gerald,
113 N.J. 40, 90 (1988)). We explained that such errors "affect the
procedural fairness of the trial, not the substance of the crime,
[and] 'do not necessarily bear on the jury's determination of
deathworthiness.'" Martini II, supra, 139 N.J. at 26 (quoting
Bey IV, supra, 137 N.J. at 347). For the reasons detailed in our
earlier cases we continue to include those reversed death-sentenced cases as death-sentenced cases for purposes of
proportionality review. See Harvey III, supra, ___ N.J. at ___-___ (slip op. at 13-14); DiFrisco III, supra, 142 N.J. at 164-65;
Martini II, supra, 139 N.J. at 25-27; Bey IV, supra, 137 N.J. at
345-47; Marshall II, supra, 130 N.J. at 194 n.10.
For purposes of frequency review, we present two sets of
calculations of the rate of death sentencing, one calculation
including the defendant, and the other excluding him. "Using two
sets of data, one including defendant's case and one excluding
it, will give us the broadest picture of societal standards while
alerting us to the bias produced by including defendant's case."
DiFrisco III, supra, 142 N.J. at 165 (quoting Martini II, supra,
139 N.J. at 28).
The universe of cases, however, excludes the twenty-three
cases that were not death-eligible but nevertheless proceeded to
a penalty-phase hearing. Marshall II, supra, 130 N.J. at 138;
CCH Report, tbls. 2,3.
B. Adjustments In Comparison Group
The AOC has grouped the death-eligible defendants that
comprise our proportionality-review database into various
categories and subcategories, on the basis of the aggravating
factors found by the jury in those cases tried to a penalty
phase, or on the basis of the aggravating factors alleged or
apparently present in cases not tried to a penalty phase. See
CCH Report, tbl.7. The basic categories and subcategories are
derived from the first Special Master's report adopted by the
Court. Final Report at 80-84. We previously have acknowledged
that we will "defer generally to the AOC's expertise, and
particularly to its unique assignment of defendants to only one
comparison category." DiFrisco III, supra, 142 N.J. at 167.
The AOC has assigned defendant to subcategory C-1, which
comprises murders committed in conjunction with sexual assaults
characterized by particular violence and terror, but excludes
homicides by prior murderers or those involving multiple victims.
That subcategory includes forty defendants, a relatively large
comparison group. Defendant contends that for purposes of the
salient-factors evaluation, as well as for purposes of precedent-seeking review, the defendants in the C-2 subcategory (entitled
"other with one or more additional statutory aggravating
circumstances") are virtually indistinguishable from those in the
C-1 category. We note that nine defendants are included in the
C-2 subcategory, and an additional three defendants are included
in the C-3 subcategory (entitled "other"), the last of the
subclassifications in the composite "C" category of sexual
assaults without multiple victims or prior murder convictions.
We previously have performed the salient-factors test using both
the assigned subcategory as well as the composite category, see
DiFrisco III, supra, 142 N.J. at 174; Bey IV, supra, 137 N.J. at
353-58, and we will do so in this appeal. Concerning defendant's
contention that the pool of comparison cases for purposes of
precedent-seeking review also should be expanded, we address that
question in the course of our discussion of precedent-seeking
review. Infra at ___-___(slip op. at 47-49).
The State objects to the inclusion of four defendants in the
subcategory to which defendant is assigned: James Koedatich 2,
James Henry Hampton, James Zola 1B, and Kevin Jackson 1B. We
agree with the State's contention that Koedatich and Hampton
should be excluded. Although in its prosecution of Koedatich for
murder and kidnapping the State alleged as aggravating factors
that defendant murdered the victim in the course of a sexual
assault, as well as to escape detection for sexual assault, the
jury found neither of those aggravating factors. Accordingly,
that case should not have been assigned to the sexual assault-murder category. Similarly, defendant James Henry Hampton
murdered his victim after she apprehended him in an attempt to
burglarize a horse barn, but the State did not allege that he
sexually assaulted the victim. His case also should be excluded
from the sexual-assault murder category.
Concerning defendant Kevin Jackson, after this Court
reversed his murder conviction and death sentence he was retried
and convicted of murder, theft, and aggravated sexual assault,
although the State alleged only the c(4)(c) (torture and
depravity) aggravating factor. We are satisfied that the strong
evidence that defendant attempted to sexually assault his victim
warrants inclusion of his case in the sexual-assault murder
category. Similarly, in the James Zola case there was
conflicting evidence on whether defendant sexually assaulted the
victim, but this Court affirmed Zola's conviction for capital
murder and aggravated sexual assault. We will not disturb the
AOC's assignment of Zola to the sexual-assault murder category.
C. Salient-Factors Test
As noted, the salient-factors test attempts to measure the
proportionality of a defendant's death sentence by determining
the frequency with which factually similar cases culminate in a
death sentence. We generally have regarded the salient-factors
test as the most persuasive of the frequency-analysis tests
because the cases compared are factually analogous to the case of
the defendant seeking review. Harvey III, supra, ___ N.J. at
___-___ (slip op. at 27); DiFrisco III, supra, 142 N.J. at 173;
Martini II, supra, 139 N.J. at 33; Bey IV, supra, 137 N.J. at
353; Marshall II, supra, 130 N.J. at 168.
Defendant Cooper has been assigned to subcategory C-1,
designated "sexual assault with particular violence/terror" (but
excluding defendants who murdered multiple victims or who were
previously convicted of murder). CCH Report, tbl. 7. Of the
thirty-eight death eligible cases in that subcategory, nineteen
proceeded to the penalty phase and eight defendants, including
Cooper, were sentenced to death. Accordingly, including
defendant, the death-sentencing rate for all sexual-assault
murders that we include in the C-1 subcategory is twenty-one
percent, and for those advancing to a penalty phase the rate is
forty-two percent. Those percentages may be compared with the
overall death-sentencing rate of twelve percent for all death-eligible cases in the universe, and the death-sentencing rate of
thirty-one percent for all death-eligible cases that advance to
the penalty phase. Repeating the same comparisons without
including defendant's case in the C-1 category does not
significantly affect the death sentencing rates. The following
table summarizes the result of the salient-factors test as
applied to the C-1 category:
SALIENT-FACTORS TEST: C-1 SUBCATEGORY
(data from CCH Report, tbl. 7)
Death-Sentencing Rate Death-Sentencing Rate Proportion of Cases
at Penalty Trial for All Eligible Cases Advancing to P-Trial
C-1 Incl. D 42" (8/19) 21" (8/38) 50" (19/38)
C-1 Excl. D 39" (7/18) 19" (7/37) 49" (18/37)
All Ds 31" (50/163) 12" (50/401) 41" (163/401)
All Ds but D 30" (49/162) 12" (49/400) 41" (162/400)
Applying the salient-factors test to the composite "C"
category results in the addition of twelve cases (nine cases from
subcategory C-2 and three cases from subcategory C-3). The
resulting death-sentencing rate at penalty-trial cases is thirty-eight percent and the death-sentencing rate for all death-eligible cases is eighteen percent, both percentages being
slightly lower than the analogous death-sentencing rates for the
C-1 category. The following table depicts the result of the
salient-factors test as applied to category "C" death-penalty
cases:
Death-Sentencing Rate Death-Sentencing Rate Proportion of Cases
at Penalty Trial for All Eligible Cases Advancing to P-Trial
C Incl. D 38" (9/24) 18" (9/50) 48" (24/50)
C Excl. D 34" (8/23) 16" (8/49) 47" (23/49)
All Ds 31" (50/163) 12" (50/401) 41" (163/401)
All Ds but D 30" (49/162) 12" (49/400) 41" (162/400)
The foregoing charts summarizing the application of the
salient-factors test to defendants who sexually assault and
murder their victims demonstrate that such defendants often are
sentenced to death, and that their rate of death-sentencing
significantly exceeds the death-sentencing rate for all death-eligible homicides, and also significantly exceeds the death-sentencing rate for all homicides that advance to a penalty
trial. Moreover, we note that the result of the salient-factors
test as applied to defendant is comparable to the results
obtained from that test in other proportionality review cases in
which we found no disproportionality. See DiFrisco III, supra,
142 N.J. at 172-74; Martini II, supra, 139 N.J. at 33-38. We are
unable to conclude that application of the salient-factors test
to defendant Cooper demonstrates that his death sentence is
disproportionate.
D. Index-of-Outcomes Test
The index-of-outcomes approach attempts "to identify those
characteristics that establish the degree of a defendant's
blameworthiness," considering both statutory and non-statutory
factors. Martini II, supra, 139 N.J. at 41. In applying this
test we seek "to identify the characteristics common to the cases
in terms of their degree of blameworthiness as perceived by
prosecutors and juries." Marshall II, supra, 130 N.J. at 172.
To facilitate application of this test, the AOC "organizes cases
according to statistically-relevant measures of culpability, such
as the infliction of severe physical pain or mental suffering on
the victim, a contemporaneous sexual assault or robbery, and the
commission of a prior murder." Bey IV, supra, 137 N.J. at 362.
In contrast to the salient-factors test, "in the index-of-outcomes test we compare cases that are factually dissimilar but
that are nevertheless comparable from the perspective of the
defendants' blameworthiness." Martini II, supra, 139 N.J. at 42.
Moreover, unlike the salient-factors test in which the AOC simply
calculates and compares death-sentencing ratios, the index-of-outcomes test uses a multiple-regression analysis, a process we
explained in Martini II, supra, 139 N.J. at 31-32:
We pause here for a brief explanation of
some technical terms. A regression analysis
uses an algebraic model to represent a
decision-making process by showing the
influence of an independent variable on a
dependent variable. Here, the decision-making
process represented is the sentencing
determination. The independent variable,
which, once designated, does not change,
represents a factor such as a prior murder or
a contemporaneous sexual assault that is
believed to influence the result of the
decision-making. The dependent variable is
influenced by the presence or absence of an
independent variable, and here represents the
decision whether to sentence capitally. A
multiple regression analysis simply includes
more than one independent variable in the
algebraic model.
Because the results produced by the
regression models are of uncertain
reliability, we use the predicted probability
of death sentences that those models generate
only for purposes of comparison and guidance.
We do not accord them final or determinative
weight.
On the basis of its multiple-regression analysis, the AOC
has prepared tables that group defendants in five levels of
culpability based on the predicted probability of the imposition
of a death sentence. Each defendant receives a culpability score
ranging from a low of .00 to a high of .99, and based on that
score the defendants are assigned to one of the five culpability
levels. Each level represents one-fifth of the range of
culpability scores. Defendants with culpability scores that
range between .00000 and .19999 comprise level one, those with
scores between .20000 and .39999 form level two, and so forth.
Four multiple regressions encompass the index-of-outcomes
test. See DiFrisco III, supra, 142 N.J. at 179-82. The first
regression considers both statutory and non-statutory factors in
the penalty-trial universe. Id. at 179-80. The second appraises
the same factors but uses the full universe. Id. at 180-81.
Statutory aggravating and mitigating factors are the only
variables in the other regressions. Id. at 181-82. Like the
first two regressions, the third and fourth regressions employ
the penalty-trial universe and the full universe, respectively.
Ibid.
Preliminarily, we take note of several deficiencies in the
index-of-outcomes test. Perhaps the most troublesome deficiency
is the inconsistency of the results of the four regressions.
Defendant Cooper's culpability scores range from a ten percent
predicted probability of a death sentence in the death-eligible
universe considering both statutory and non-statutory factors to
a forty-three percent predicted probability of a death sentence
in the penalty-trial universe considering only statutory factors.
We previously have taken note of the inconsistent results of the
four regressions in other proportionality-review decisions. See
DiFrisco III, supra, 142 N.J. at 182; Martini II, supra, 139 N.J.
at 45.
In addition, the large confidence intervals applicable to
defendant's culpability scores substantially qualify the accuracy
of the predicted probability that defendant would be sentenced to
death. Accordingly, those culpability scores may not accurately
reflect the likelihood that defendant would receive a death
sentence. As we explained in DiFrisco III, supra, 142 N.J. at
179-80:
The probability range, or more appropriately,
the confidence interval, is delineated by
upper and lower limits and is established by
a ninety-five percent confidence interval.
That means we are ninety-five percent certain
that all defendants with characteristics
similar to [defendant] will have a predicted
probability of receiving a death sentence
[within the probability range]; the smaller
the confidence interval, the more reliable
the predicted probability.
Thus, in the first regression that considers statutory and non-statutory factors for the penalty-trial universe, the reliability
of defendant's thirty-five percent predicted probability of a
death sentence is undermined by the large confidence interval
range of nine percent to seventy-five percent. The range of the
confidence intervals in the other regressions is significantly
smaller.
A more fundamental flaw in the index-of-outcomes test is
that the AOC's models do not take into account the fact that the
victim of defendant's homicide was a six-year-old girl. None of
the statutory aggravating factors focus on the age of a victim,
and the non-statutory factors included in the AOC's models do not
evaluate a defendant's blameworthiness on the basis of the
victim's age. Accordingly, the value of the index-of-outcomes
test in assessing the proportionality of defendant's death
sentence is limited by the recognition that the test undoubtedly
underestimates defendant's predicted probability of a death
sentence.
The results of the index-of-outcomes test are reported on
two charts. The first chart reports the results for defendant
Cooper, and defendants Harvey, Chew, Loftin, DiFrisco, Martini,
Bey, and Marshall under the CCH Report database. The results for
all four regressions are reported for each defendant. For each
regression, the table shows the culpability score, the confidence
interval, the culpability level, and the death-sentencing rate
that corresponds to the culpability level.
The second chart differs from the first chart in one
respect: it does not use the same database for every defendant.
Instead, in the second chart, the data reported for each
defendant is the data this Court had used at each defendant's
proportionality review. For example, the data used for Martini
is derived from the Martini Report.
The index-of-outcome test results are as follows:
(data from CCH Report, tbls. 13-14, 21-25)
Statutory & Non-Statutory Factors Statutory Factors Only
Penalty Trial Death-Eligible Penalty Trial Death-Eligible
Cooper
Predicted Probability .35 .10 .43 .19
of Death Sentence
Range (.09 to .75) (.03 to .30) (.23 to .65) (.08 to .38)
Culpability Level 2 1 3 1
Death-Sentencing .26 (6/23) .05 (18/334) .45 (13/29) .05 (15/318)
Rate
Harvey
Predicted Probability .35 .13 .43 .19
of Death Sentence
Range (.12 to .69) (.05 to .32) (.23 to .65) (.08 to .38)
Culpability Level 2 1 3 1
Death-Sentencing .26 (6/23) .05 (18/334) .45 (13/29) .05 (15/318)
Rate
Chew
Predicted Probability .67 .19 .90 .47
of Death Sentence
Range (.22 to .94) (.02 to .72) (.51 to .99) (.09 to .88)
Culpability Level 4 1 5 3
Death-Sentencing .75 (9/12) .05 (18/334) .76 (13/17) .52 (9/17)
Rate
Loftin
Predicted Probability .21 .44 .72 .53
of Death Sentence
Range (.01 to .92) (.12 to .83) (.26 to .95) (.17 to .85)
Culpability Level 2 3 4 3
Death-Sentencing .26 (6/23) .55 (6/11) .63 (12/19) .52 (9/17)
Rate
DiFrisco
Predicted Probability .68 .19 .46 .19
of Death Sentence
Range (.24 to .93) (.02 to .78) (.08 to .89) (.01 to .84)
Culpability Level 4 1 3 1
Death-Sentencing .75 (9/12) .05 (18/334) .45 (13/29) .05 (15/318)
Rate
Martini
Predicted Probability .81 .09 .26 .12
of Death Sentence
Range (.36 to .97) (.02 to .32) (.09 to .55) (.04 to .31)
Culpability Level 5 1 2 1
Death-Sentencing .77 (23/30) .05 (18/334) .31 (10/32) .05 (15/318)
Rate
Bey
Predicted Probability .65 .38 .74 .40
of Death Sentence
Range (.22 to .93) (.12 to .74) (.40 to .92) (.18 to .68)
Culpability Level 4 2 4 3
Death-Sentencing .75 (9/12) .33 (10/30) .63 (12/19) .52 (9/17)
Rate
Marshall
Predicted Probability .64 .13 .59 .27
of Death Sentence
Range (.15 to .95) (.00 to .87) (.12 to .94) (.03 to .82)
Culpability Level 4 1 3 2
Death-Sentencing .75 (9/12) .05 (18/334) .45 (13/29) .26 (12/45)
Rate
Loftin Report, tbls. 13-14, 21-25, DiFrisco III, Martini II, Bey IV, and Marshall II Report)
Statutory & Non-Statutory Factors Statutory Factors Only
Penalty Trial Death-Eligible Penalty Trial Death-Eligible
Cooper (CCH Report)
Predicted Probability .35 .10 .43 .19
of Death Sentence
Range (.09 to .75) (.03 to .30) (.23 to .65) (.08 to .38)
Culpability Level 2 1 3 1
Death-Sentencing .26 (6/23) .05 (18/334) .45 (13/29) .05 (15/318)
Rate
Harvey (CCH Report)
Predicted Probability .35 .13 .43 .19
of Death Sentence
Range