(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 October 24, 2000 -- Decided February 14, 2002
PER CURIAM
The Court previously affirmed Peter Papasavvas's conviction and death sentence. This appeal addresses
his challenge to the proportionality of that sentence.
On the evening of April 25, 1996, police arrived at Papasavvas's home in Iselin to serve an arrest warrant
on an unrelated matter. Earlier that day, Papasavvas had been told that his brother had attempted suicide. When
Papasavvas saw the officers, he fled from his house on foot, dressed only in his underwear.
Four blocks away, Papasavvas broke into the basement of a house owned by Mildred Place, a sixty-four
year-old woman who lived alone. Mrs. Place returned home from a church function at approximately ten o'clock
that evening. Unaware that Papasavvas was hiding in her basement, she spoke with a friend on the phone until
10:30 p.m.
What happened next is contested by the parties. Mrs. Place's body, however, was discovered lying at the
bottom of the basement stairs. One of her earrings and two of her sweater buttons were found at the top of the
stairs, together with her slip and girdle, which had been cut, apparently by a pair of pinking shears. An autopsy
revealed that Mrs. Place had sustained multiple physical injuries, including fractured vertebrae and ribs,
hemorrhages, abrasions and extensive bruising. Those injuries, according to the State's experts, were consistent
with a fall down the steps. The medical examiner also discovered spermal fluid on Mrs. Place's body, although
there was no evidence of penetration.
According to the Attorney General, Papasavvas broke into Mrs. Place's house to obtain clothing, stole
money and credit cards, and then heard Mrs. Place return home. He emerged from the basement and ambushed her.
After knocking her to the floor, he dragged her across the room and asphyxiated her by tying a belt around her head
and mouth, impeding her breathing. He then proceeded to cut off her clothes piece by piece. The cuts were
straight, indicating that Mrs. Place was motionless at the time. When he finished removing her clothes, Papasavvas
sexually assaulted and sodomized Mrs. Place. According to the State, after the sexual assault, Papasavvas strangled
Mrs. Place and threw her down the basement stairs where she was found the following day. The State's medical
examiner concluded that Mrs. Place died of asphyxiation as a result of the belt around her mouth.
The Public Defender offers a contrary account. Papasavvas broke into Mrs. Place's house to steal clothing
and money. He heard Mrs. Place return home, but tried to remain hidden in the basement until she went to sleep.
The plan went awry, however, when Mrs. Place opened the basement door and surprised Papasavvas, who was still
dressed only in his underwear. To prevent her from screaming, Papasavvas placed her in a “sleeper hold.” When
she lost consciousness, he let her go and she accidentally fell down the basement stairs and broke her neck- an
injury so severe that it may have caused her death. Mistakenly believing that Mrs. Place was feigning death,
Papasavvas threatened to sexually assault her so that she would stop pretending. When she did not respond, he
proceeded to have sexual contact with her as evidenced by the semen found on Mrs. Place's body. After Mrs.
Place's death, Papasavvas rummaged through her pocketbook and closets, stealing some clothing, two credit cards,
and a telephone calling card.
At 11:15 p.m., Papasavvas used Mrs. Place's telephone to call his own house. He stole Mrs. Place's
automobile and drove to New York City, where he spent the night with Rosa Talbert, a female acquaintance. The
next day, he and Talbert made a purchase at a liquor store with Mrs. Place's credit card. Papasavvas left Talbert's
apartment two days later, leaving behind Mrs. Place's clothing. Nineteen days after the murder, Papasavvas turned
himself in to the police.
During the guilt phase, Papasavvas introduced evidence of his life history. Born in 1972, he was one of
four siblings. His childhood is most remarkable for the verbal and physical abuse he endured. Whenever
Papasavvas's father suspected his sons were misbehaving, he would take all three children down to the basement,
strip them, tie them to a column, and beat them with a belt or stick. His father was also known to squeeze his sons'
toes with pliers. While in junior high school, Papasavvas developed behavioral problems that led to truancy and
erratic scholastic performance. He began abusing drugs and alcohol. At age fifteen, he was arrested for the first
time and charged with burglary and theft, receiving a probationary sentence that he violated. Over the next several
years, Papasavvas was repeatedly convicted for shoplifting, theft, and burglary. As the misbehavior increased, so
did the abuse at home.
In 1989, Papasavvas dropped out of high school. That same year, he received court-ordered in-patient
counseling for a twenty-day period. Doctors diagnosed him with adolescent adjustment reaction. In 1993,
Papasavvas suffered a serious head injury in a motorcycle accident and was comatose for nearly three weeks. A CT
scan revealed a fluid buildup in both frontal lobes, the area of the brain where high-level reasoning, judgment, and
decision making take place. After the accident, Papasavvas's personality changed, and he became more violent.
Papasavvas's alcohol abuse and criminal activity also escalated.
Not surprisingly, the Public Defender and the Attorney General reached conflicting conclusions regarding
Papasavvas's psychiatric condition. The Public Defender's experts testified that Papasavvas suffered a severe brain
injury that further impaired his pre-accident deficiencies in judgment and inhibiting responses. They stated that
stressful conditions magnified his cognitive deficits.
Experts testifying on behalf of the State acknowledged that Papasavvas suffered a moderate to severe head
injury in the motorcycle accident, but concluded that his cognitive functioning has returned to its pre-accident level.
They testified that the head injury played no role in the murder and that Papasavvas's actions comprised part of a
continuum of misbehavior that had begun in his childhood.
The jury convicted Papasavvas of knowing or purposeful murder by his own conduct, felony murder,
burglary, robbery, auto theft and credit-card theft. It acquitted Papasavvas of aggravated sexual assault, but
convicted him of aggravated sexual contact. In the penalty phase, the State sought to establish the c(f)(g) (felony
murder) and c(4)(f) (escape detection) aggravating factors. The State relied on the evidence presented in the guilt
phase. Papasavvas relied on the psychiatric testimony offered at the guilt phase and introduced additional evidence
from family members of the abuse he had endured as a child.
The jury unanimously concluded that the State had established the felony-murder aggravating factor. Five
of the twelve jurors found the State also had established the escape-detection aggravating factor. Three jurors found
the c(5)(a) (extreme emotional disturbance) mitigating factor, but the jury unanimously rejected the c(5)(d)
(diminished capacity) mitigating factor. With respect to the c(5)(h) (catch-all) mitigating factor, all twelve jurors
found that Papasavvas suffered from a mental defect, disorder, or other mental disturbance. The jury unanimously
determined that the felony-murder aggravating factor outweighed the mitigating factors beyond a reasonable doubt.
HELD: Papasavvas has met his burden of establishing that his death sentence is disproportionate, and that sentence
is vacated.
1. The Court conducts proportionality review to ensure that a specific defendant's death sentence is not
disproportionate when compared to similarly situated defendants. Proportionality review consists of two steps -
frequency analysis and precedent-seeking review. In frequency analysis, the Court relies on the salient-factors test,
a measurement of the relative frequency of death sentences in factually similar cases. Death-eligible cases are
assigned to thirteen categories based on the statutory aggravating factors, and then subdivided according to
circumstances that serve either to aggravate or to mitigate the blameworthiness of the defendants in the cases. The
Court determines that this case should be assigned to the F-1 cell - murder committed during a residential robbery.
The statistics do not demonstrate a societal consensus for or against the use of the death penalty in cases falling
within the F-1 category. (Pp. 12-18)
2. Precedent-seeking review entails the examination of the facts of similar death-eligible cases to determine
whether the death sentence is aberrant when compared to the sentences in those other cases. Reliance on the facts of
the case presents a unique challenge here, because the Attorney General and the Public Defender continue to dispute
certain facts. In determining the appropriate version of events, the Court accepts uncontroverted facts and, where
facts are disputed, it extracts from the jury's findings of guilt and innocence the version of events essential to the
verdict. The only fact still disputed by the parties and not resolved by the jury's verdict is whether Papasavvas
ambushed Mrs. Place or was surprised by her. The reason the Court accepts all of the facts that are essential to the
jury's verdict is because it can be sure the State bore its burden of proving those facts beyond a reasonable doubt.
Where, as here, the verdict does not provide assurance of the State's version, it should not prevail. The dissent
urges the use of the standards applicable to an acquittal motion and a motion for judgment notwithstanding the
verdict to establish the factual record, essentially giving the benefit of the doubt to the State. Adoption of those
standards here is improper. Although the burden is on defendant in proportionality review, that burden applies only
after the facts have been established. A presumption in favor of the defendant is the vantage point from which the
factual predicate must be established. The State's version of the disputed facts - that Papasavvas ambushed Mrs.
Place - is not essential to the verdict. The Court therefore assumes that Papasavvas was surprised by Mrs. Place
while he hid in the basement. (Pp. 18-22)
3. The components by which a defendant's culpability is measured are not disputed. They are divided into three
categories: the defendant's moral blameworthiness, the degree of victimization, and the defendant's character. With
respect to moral blameworthiness, the Court examines motive, premeditation, justification or excuse, evidence of
mental disease, defect or disturbance, and other factors. Assessing the facts of this case, the Court finds
Papasavvas's moral blameworthiness to be moderate. Victimization is evaluated by examining the violence and
brutality of the murder and injury to nondecedent victims. Though terrible, Mrs. Place's injuries, when viewed
against the backdrop of the horrific acts of gratuitous violence that inhabit the death penalty universe, are not among
the most egregious. Nonetheless, the degree of victimization overall was high. Finally, the Court considers
Papasavvas's character, which includes prior record, other unrelated acts of violence, cooperation, remorse, and
capacity for rehabilitation. Papasavvas has both a juvenile and adult record. Although his criminal history is
significant, it is offset by the absence of violent offenses prior to this offense. The Court finds Papasavvas's overall
culpability to be moderate based on the three-part model of criminal culpability. (Pp. 22-28)
4. In precedent-seeking review, the Court uses the same comparison group that was used in the salient-factors test.
The State suggests that the cases in the F-1 category are not genuinely comparable because none involved
defendants who sexually attacked their victims in addition to robbing and killing them. Comparing Papasavvas to
five other defendants who murdered and committed a sexual crime against an elderly victim, only one of those
defendants was capitally prosecuted, and none received the death penalty. And, comparing him to the twelve cases
in the D-2 category, consisting of non-aggravated sexual-assault murders, only one, Ambrose Harris, received a
death sentence. Harris's culpability far exceed that of Papasavvas. If these are the comparison cases, Papasavvas's
death sentence is clearly disproportionate. Returning to the F-1 category, the parties agree on ten cases. The Court
agrees to add four of the five additional cases requested by the Public Defender and five of the eight requested by
the State. Out of all of these defendants, only one, Nathaniel Harvey, received a death sentence. Harvey had an
extensive criminal history of serious, violent crimes, and in his case, a jury found the torture/depravity aggravating
factor. Harvey is far more culpable than Papasavvas. Of the remaining life-sentenced members, the Court deems
all but three to be at least as culpable or more culpable than Papasavvas. The Court concludes that Papasavvas has
demonstrated that he has been singled out unfairly for the death penalty. (Pp. 28-47)
The death sentence imposed on Papasavvas is VACATED, and the matter is remanded for sentencing
consistent with this opinion.
JUSTICE STEIN, has filed a separate, concurring opinion, to address the dissent's assertion that the
State's version of disputed factual issues should prevail in proportionality review. He expresses the view that this
conclusion is erroneous because it is based on a mistaken assumption that proportionality review essentially
constitutes a defendant's challenge to the reasonableness of a jury's verdict, rather than a determination whether a
death sentence is disproportionate in comparison to sentences imposed in comparable cases.
JUSTICE COLEMAN, has filed a separate dissenting opinion, in which JUSTICES VERNIERO and
LaVECCHIA join, expressing the view that the majority's proposed standard for resolving disputed facts permits it
to ignore facts that were not critical to Papasavvas's guilt but were nonetheless highly persuasive in the jury's
determination that the aggravating factor outweighed any mitigating factors. He concludes that where disputed facts
have not been resolved by the jury's verdicts, a reasonable inference arises that the jury relied on those facts that are
most consistent with its imposition of the death sentence - which generally means accepting the State's version. He
finds that Papasavvas's death sentence is not disproportionate based on either the undisputed facts or a combination
of the undisputed and disputed facts.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, LONG, and ZAZZALI join in this opinion.
JUSTICE STEIN also has filed a concurring opinion. JUSTICE COLEMAN has filed a dissenting opinion, in
which JUSTICES VERNIERO and LaVECCHIA join.
SUPREME COURT OF NEW JERSEY
A-
2 September Term 2000
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PETER PAPASAVVAS,
Defendant-Appellant.
Argued October 24, 2000 -- Decided February 14, 2002
On proportionality review of a death
sentence imposed in the Superior Court, Law
Division, Middlesex County.
James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for appellant
(Ivelisse Torres, Public Defender, attorney;
Mr. Smith and Claudia Van Wyk, Deputy Public
Defender II, on the briefs).
Bennett A. Barlyn, Deputy Attorney General,
argued the cause for respondent (John J.
Farmer, Jr., Attorney General of New Jersey,
attorney).
PER CURIAM
Last term, we affirmed Peter Papasavvas's conviction and
death sentence for the murder of Mildred Place. State v.
Papasavvas,
163 N.J. 565 (2000) (Papasavvas I). We preserved his
right to challenge the proportionality of his death sentence.
Id. at 626. We now conclude that Papasavvas was unfairly singled
out for the ultimate sanction of death.
In reaching that conclusion, we remain keenly aware that
Papasavvas committed a terrible crime that, standing alone,
might legitimately be viewed as deathworthy. Such is not the
inquiry on proportionality review, however. Proportionality
review is a unique endeavor in our law:
Unlike direct review, proportionality review
does not question whether an individual death
sentence is justified by the facts and
circumstances of the case or whether, in the
abstract, the sentence imposed on a defendant
is deserved on a moral level. On the
contrary, its role is to place the sentence
imposed for one terrible murder on a
continuum of sentences imposed for other
terrible murders to ensure that the defendant
“has not been singled out unfairly for
capital punishment.”
[State v. Timmendequas, __ N.J. __, __ (2001)
(internal citations omitted) (Long, J.,
dissenting) (slip op. at 1-2).]
When that singular process is carried out, Peter Papasavvas cannot be condemned to death.
Shortly before nine o'clock in the evening on April 25, 1996, police officers arrived at Papasavvas's home in Iselin, New Jersey to serve an arrest warrant on an unrelated matter. Earlier that day, Papasavvas had been told that his brother had attempted suicide. When Papasavvas saw the officers he fled from his house on foot, dressed only in his underwear.
Four blocks away, he broke into the basement of a house owned by Mildred Place, a sixty-four year-old woman who lived alone. There is no suggestion in the record that Papasavvas knew Mrs. Place personally or even knew about her. Mrs. Place returned home from a church function at approximately ten o'clock that evening. Unaware that Papasavvas was hiding in her basement, she spoke with a friend on the phone until 10:30 p.m. Shortly after that conversation ended, Mrs. Place encountered Papasavvas.
Although what happened next is contested by the parties, we do know that Mrs. Place's body was discovered lying at the bottom of the basement stairs. One of her earrings and two of her sweater buttons were found at the top of the basement stairs, together with her slip and girdle, which had been cut, apparently by a pair of pinking shears. An autopsy revealed that Mrs. Place had sustained multiple physical injuries, including fractured vertebrae and ribs, hemorrhages and abrasions to her back and right side, contusions and abrasions to the bridge of her nose and right cheek, buttocks, and thighs, and extensive bruising. Those injuries, according to the State's experts, were consistent with a fall down the cellar steps. The medical examiner also discovered spermal fluid on Mrs. Place's body. He did not find any evidence of penetration. Based on the foregoing evidence, the Attorney General and the Public Defender propose different accounts of Mrs. Place's murder.
According to the Attorney General, Papasavvas broke into Mrs. Place's house to obtain clothing. He stole money, credit cards, and a telephone calling card and then heard Mrs. Place return home. Papasavvas emerged from the basement and ambushed her. After knocking her to the floor, he dragged her across the room and asphyxiated her by tying a belt around her head and mouth, thereby impeding her breathing. He then proceeded to cut off her clothes piece by piece. The cuts were straight, indicating that Mrs. Place was motionless at the time. When he finished removing her clothes, Papasavvas sexually assaulted and sodomized Mrs. Place. According to the State, after the sexual assault, Papasavvas strangled Mrs. Place and threw her down to the bottom of the basement stairs where she was found the following day. The State's medical examiner concluded that Mrs. Place died from asphyxiation as a result of the belt pushing her tongue to the side.
The Public Defender offers the following contrary account. Papasavvas broke into Mrs. Place's house to steal clothing and money. When he heard Mrs. Place return home, he decided to remain hidden in the basement until she went to sleep, at which time he planned to slip out of the house unnoticed. That plan went awry, however, when Mrs. Place opened the basement door and surprised Papasavvas, who was still dressed only in his underwear. To prevent her from screaming, Papasavvas placed her in a “sleeper hold.” When she lost consciousness, he let her go and she accidentally fell down the basement stairs and broke her neck _ an injury so severe that it may have caused her death. Mistakenly believing that Mrs. Place was feigning her death, Papasavvas threatened to sexually assault her so that she would stop pretending. When she did not respond, he proceeded to have sexual contact with her as evidenced by the semen found on Mrs. Place's body during the autopsy. After Mrs. Place's death, Papasavvas rummaged through her pocketbook and closets, stealing some clothing, two credit cards, and a telephone calling card.
There is little dispute over the remaining evidence. At 11:15 p.m., Papasavvas used Mrs. Place's telephone to call his own house. Before dialing his phone number, Papasavvas dialed “*67" so that Mrs. Place's phone number would not appear on his call recognition (caller ID) box. The telephone call did, however, appear on Mrs. Place's bill. Papasavvas stole Mrs. Place's automobile and drove to New York City, where he spent the night with Rosa Talbert, a female acquaintance. The next day, Papasavvas and Talbert drove to a liquor store and purchased wine and champagne using Mrs. Place's credit card. Talbert signed the receipt at Papasavvas's request after he told her that the card belonged to his mother. That same day, Papasavvas had his hair cut at a barber shop located in the vicinity of Talbert's apartment. Papasavvas left Talbert's apartment two days later, leaving behind Mrs. Place's clothing. Nineteen days after the murder, Papasavvas turned himself in to the police.
During the guilt phase of the trial, Papasavvas introduced evidence of his life history. Born in Livingston, New Jersey in 1972, Papasavvas was one of four siblings. His childhood is most remarkable for the verbal and physical abuse he endured. Whenever Papasavvas's father, Chris Papasavvas, suspected that any of his sons was misbehaving, he would take all three children downstairs to the basement, strip them, tie them to a column, and beat them with a belt or stick. His father forced Papasavvas and his brothers to shower together, occasionally scalding them with hot water, and was known to squeeze his sons' toes with pliers. Papasavvas's mother and the family pets were also on the receiving end of his father's wrath.
While in junior high school, Papasavvas developed behavioral problems that led to truancy and erratic scholastic performance. Relocating the family to Iselin when defendant was thirteen years old did not improve defendant's adjustment. Seeking social acceptance, Papasavvas was naturally drawn to other adolescents with similar behavioral problems. Around this time, Papasavvas began abusing alcohol and various drugs, including marijuana, cocaine, LSD, and mescaline.
To support his drug habit, Papasavvas stole car radios and radar detectors from unlocked vehicles. At age fifteen, he was arrested for the first time. Charged with burglary and theft, he received a probationary sentence that he violated. Over the next several years, Papasavvas was repeatedly convicted for shoplifting, theft, and burglary. As the misbehavior increased, so did the abuse at home.
In 1989, Papasavvas dropped out of high school. That same year, he received court-ordered in-patient counseling at the Carrier Clinic for a twenty-day period. Because he suffered from insomnia, flashbacks, hallucinations, and suicidal thoughts, doctors diagnosed him with adolescent adjustment reaction.
In 1993, Papasavvas suffered a serious head injury in a motorcycle accident. He was comatose for nearly three weeks, followed by at least three additional weeks of post-traumatic amnesia. A CT scan revealed that Papasavvas had bilateral frontal traumatic subdural hygromas, a diagnosis that indicates a fluid buildup in both frontal lobes, the area of the brain where high-level reasoning, judgment, and decision making take place. Tests performed in 1997 on Papasavvas's cognitive functioning revealed that his I.Q. had returned to its pre-accident level but that his abstract thinking and judgment had not similarly recovered.
After the motorcycle accident, Papasavvas's personality changed. Although he had shown aggressive characteristics prior to the accident, he began acting violently after he injured himself. In July 1994, for example, he threatened his girlfriend with a knife. Papasavvas's alcohol abuse and criminal activity also escalated.
Not surprisingly, the Public Defender and the Attorney General reached conflicting conclusions regarding Papasavvas's psychiatric condition. Dr. Wilfred Van Gorp testified for the defense that Papasavvas had suffered a severe brain injury, which included permanent damage to the frontal lobes, temporal lobes, and subcortical structures. He said that the frontal lobe injury further impaired Papasavvas's pre-accident deficiencies in judgment and inhibiting responses. Since his motorcycle accident, the doctor said, Papasavvas acts rather than thinks. Stressful conditions magnify his cognitive deficits. Dr. Arnold Apolito, another defense expert, concluded that Papasavvas's motorcycle accident caused him to suffer a severe organic brain disorder, commonly known simply as brain damage. As a result, according to Dr. Apolito, Papasavvas has cognitive defects, including impaired judgment and an inability to handle unexpected events and stressful situations.
Experts testifying on behalf of the State acknowledged that Papasavvas suffered a moderate to severe head injury in the motorcycle accident, but they concluded that his cognitive functioning had returned to its pre-accident level. Dr. Michael Miller stated that Papasavvas's motorcycle accident did not affect his behavior on the night of the offense. Another expert testifying for the State, Dr. Stanley L. Portnow, diagnosed Papasavvas with antisocial personality disorder and a substance dependence problem, but opined that Papasavvas had recovered from any head injury by the time of the murder. In short, the State's experts testified that the head injury played no role in the murder and that Papasavvas's actions comprised part of a continuum of misbehavior that had begun in his childhood.
The jury convicted Papasavvas of knowing or purposeful murder by his own conduct, felony murder, burglary, robbery, auto theft, and credit-card theft. The jury acquitted Papasavvas of aggravated sexual assault but convicted him of aggravated sexual contact, a lesser-included offense involving touching.
In the penalty phase, the State sought to establish the c(4)(g) (felony murder) and the c(4)(f) (escape detection) aggravating factors. The State relied entirely on the evidence presented at the guilt phase to prove that Papasavvas killed Mrs. Place during the commission of a burglary or robbery in order to escape detection or apprehension.
Papasavvas relied on the psychiatric testimony offered at trial and introduced additional evidence of the abuse he had endured as a child. Papasavvas's aunt testified that she occasionally visited Papasavvas's home and saw his father abusing him. Papasavvas's brother recounted the beatings that he and his siblings received as children. His brother and mother pleaded with the jury not to sentence Papasavvas to death. In his allocution statement, Papasavvas apologized for killing Mrs. Place, and he too pleaded for his life. The jury unanimously concluded that the State had established the c(4)(g) (felony murder) aggravating factor. Only five of the twelve jurors found that the State had established the c(4)(f) (escape detection) aggravating factor. Three jurors found the c(5)(a) (extreme emotional disturbance) mitigating factor. The jury unanimously rejected the c(5)(c) (age) and c(5)(d) (diminished capacity) mitigating factors.
With respect to the c(5)(h) (catch-all) mitigating factor, ten jurors found that Papasavvas was subjected to cruelty as a young child; all twelve jurors found that Papasavvas's school system classified him as emotionally disturbed; seven found that his emotional disturbance was at least partly due to cruelty he had experienced as a child; all twelve jurors found that he suffered from a mental defect, disorder, or other mental disturbance; two jurors found an undesignated factor that warranted mercy; and all twelve rejected the remaining catch-all factors.
The jury unanimously determined that the felony-murder aggravating factor outweighed the mitigating factors beyond a reasonable doubt. Accordingly, the court sentenced Papasavvas to death. The trial court also imposed sentences on the noncapital offenses of second-degree burglary and second-degree robbery.
The Court affirmed Papasavvas's conviction and death sentence on direct appeal. Papasavvas I, supra, 163 N.J. at 630. In addition, the Court vacated Papasavvas's non-capital sentences and remanded for sentencing. Id. at 627. Subsequently, the Court denied Papasavvas's motion for reconsideration.
II. INDIVIDUAL PROPORTIONALITY REVIEW
The Court conducts proportionality review to ensure that a specific defendant's death sentence is not disproportionate when compared to similarly situated defendants. State v. DiFrisco, 142 N.J. 148, 160 (1995) (DiFrisco III); N.J.S.A. 2C:11-3e. “A capital sentence is excessive and thus disproportionate if other defendants with characteristics similar to those of the defendant under review generally receive sentences other than death for committing factually-similar crimes in the same jurisdiction.” State v. Martini, 139 N.J. 3, 20 (1994) (Martini II); accord State v. Morton, 165 N.J. 235, 243-44 (2000) (Morton II).
The first step in proportionality review is to determine the universe of cases against which the defendant's case will be compared. Morton II, supra, 165 N.J. at 245; DiFrisco III, supra, 142 N.J. at 162. “We will . . . consider all death- eligible cases, whether or not they were capitally prosecuted, because the State's decision not to prosecute the defendant capitally does not necessarily reflect on [the] defendant's lack of death worthiness.” Morton II, supra, 165 N.J. at 245. In this case, the Court relies on a universe of cases assembled by the Administrative Office of the Courts (AOC) in the Papasavvas Report. The proportionality universe currently includes a total of 455 death-eligible cases, 176 of which proceeded to a penalty trial. Papasavvas Report, tbl. 7. Of the 176 cases that reached the penalty phase, fifty-two, or 29.5%, resulted in a death sentence. Ibid. The overall death-sentencing rate is 11.4% (52/455). Ibid.
Proportionality review consists of two steps: frequency analysis and precedent-seeking review. Each must be addressed separately.
Clearly, a robbery occurred under N.J.S.A. 2C:15-1 regardless of whether Papasavvas stole Mrs. Place's belongings before or after he murdered her and, based on the jury's verdict, Papasavvas murdered Mrs. Place during both a robbery and a burglary. As a result, this case could be assigned either to the F-1 cell or the K cell. The Court's consistent practice has been to abide by the principle of unique assignment. “Briefly stated, the principle is that even though a case may contain multiple identifying factors,(e.g., killing a public official and robbing or torturing the official,) the case is assigned to one category for salient-factor review.” In re Proportionality Review Project, 161 N.J. 71, 89 (1999). Specifically, the case is assigned to the most aggravated category. State v. Harris, 165 N.J. 303, 316 (2000) (Harris II). The main rationale in support of the principle of unique assignment is that juries generally are swayed by the most aggravating characteristic in a case. Statistics show that juries impose the death penalty in robbery cases but not in burglary cases.See footnote 22 Consequently, we assign Papasavvas's case to the F-1 subcategory __ murder committed during a robbery in a home.See footnote 33
In the F-1 subcategory, there are currently fourteen cases. The following chart represents a breakdown of the death sentencing rates for defendants in the F-1 subcategory.
To Penalty Trial Penalty Trial Eligible Cases
F-1 Incl D. 28.0% (14/50) 35.7% (5/14) 10.0% (5/50)
F-1 Excl. D. 26.5% (13/49) 30.8% (4/13) 8.2% (4/49)
All Ds 38.7% (176/455) 29.5% (52/176) 11.4% (52/455)
All Ds Excl. D. 38.5% (175/454) 29.1% (51/175) 11.2% (51/454)
The statistics do not demonstrate a societal consensus for or against the use of the death penalty in cases falling within the F-1 category. Prosecutors seem to view F-1 cases as somewhat less deathworthy than the norm. Including Papasavvas, 28% of F-1 cases proceeded to penalty trial, whereas 38.7% of all death- eligible cases proceeded to penalty trial. Excluding Papasavvas, 26.5% of F-1 cases proceeded to penalty trial, whereas 38.5% of all death-eligible cases proceeded to penalty trial.
On the other hand, the death-sentencing rate at penalty trials in F-1 cases is on a par with the overall rate, suggesting that juries view F-1 cases as average in terms of death worthiness. Including Papasavvas, 35.7% of F-1 penalty trial cases resulted in a death sentence, as compared with 29.5% of all death-eligible penalty trial cases. Excluding Papasavvas, the difference is reduced: 30.8% of F-1 penalty trial defendants received the death penalty, compared with 29.1% of all death- eligible penalty trial cases.
Finally, the percentage of F-1 defendants who received the death penalty is slightly lower than the overall percentage. Including Papasavvas, 10% of F-1 defendants were sentenced to death, compared with 11.4% of all death-eligible defendants. Excluding Papasavvas, 8.2% of F-1 defendants were sentenced to death, compared to 11.2% of all death-eligible defendants.
Because the statistics do not demonstrate a societal consensus for or against the use of the death penalty in F-1 cases, we must "give enhanced weight to the process of precedent- seeking review." State v. Cooper, 159 N.J. 55, 88 (1999) (Cooper II).
Both precedent-seeking review and frequency analysis, especially the salient-factors component, are fact-driven. Reliance upon the facts of the case presents a unique challenge here, because the Attorney General and the Public Defender continue to dispute certain facts: whether Papasavvas was surprised by Mrs. Place or ambushed her; whether he raped Mrs. Place or had some other form of non-invasive sexual contact with her; whether he threw her down the stairs deliberately; and whether he stole her property before or after the murder.
Because the events in this case must be compared to the events that took place in other cases in order to carry out precedent-seeking review, the Court must determine the appropriate version of events to evaluate. In so doing, we do not attempt to replicate the jury's deliberative process, an activity that is plainly beyond our purview. Rather, we accept as given all uncontroverted facts and, where facts are disputed, we extract from the jury's findings of guilt and innocence the version of events essential to the verdict. The reason we do that is because we can be sure that the State proved those facts beyond a reasonable doubt. Under that standard, the jury's verdicts resolve all but one factual dispute.
The conviction for aggravated sexual contact and acquittal of aggravated sexual assault indicate that the jury found only some form of non-invasive sexual touching. It is also apparent from the jury's verdict that Papasavvas deliberately threw Mrs. Place down the stairs. In order for Papasavvas to have been found death-eligible, the jury must have found that, by his own conduct, he purposely or knowingly caused the death of Mrs. Place or intended serious bodily injury, knowing that it was highly probable that death would result from the injury. State v. Cruz, 163 N.J. 403, 417-18 (2000).
Because the jury found only the felony-murder aggravating factor and rejected the escape-detection aggravating factor, it can be inferred that the jury found that the murder happened in the course of a robbery or burglary but not that the robbery or burglary occurred before the murder. If Papasavvas had stolen the property first, the escape detection aggravating factor would have followed logically from that conclusion. Thus, it is reasonable to infer that the jury believed Papasavvas to have taken Mrs. Place's property after the murder.
The only fact still disputed by the parties but not resolved by the jury's verdict is whether Papasavvas ambushed Mrs. Place or was surprised by her. If the reason we accept all of the facts that are essential to the jury's verdict is because we can be sure the State bore its burden of proving those facts beyond a reasonable doubt, it follows that where, as here, the verdict does not provide such assurance, the State's version should not prevail.
Our dissenting colleague relies upon the acquittal motion and the motion for judgment notwithstanding the verdict (j.n.o.v.) paradigms to establish the factual record in this case, essentially giving the benefit of the doubt to the State. Post at __ (slip. op. at ____). Adoption of those standards is improper for several reasons. When an appellate court reviews j.n.o.v. and acquittal motions, the inquiry is whether the evidence at trial supported the jury's verdict. The appellate court's function is to determine whether a reasonable jury “could have” made the findings at issue in light of the evidence presented. In that context, it makes sense to cast the burden on the movant and confer the benefit of the doubt on the non-moving party. The inquiry on proportionality review is much different. The Court does not assess the jury's verdict to determine its reasonableness. Rather, we compare a defendant's circumstances to similar cases to determine whether the sentence is proportional. The standards of review applied to j.n.o.v. and acquittal motions have no resonance in a proportionality review inquiry. In this respect, we agree with the concurring opinion of Justice Stein that explicates that a proportionality review does not implicate the reasonableness of a death sentence but rather investigates its comparative proportionality to similarly situated defendants. Post at __ (slip. op. at ____).
Our dissenting colleague's use of the j.n.o.v. and acquittal motions standards presumably flows from the fact that the burden shifts to a defendant in proportionality review to prove that he has been unfairly singled out for capital punishment. Morton II, supra, 165 N.J. at 235. Indeed, the burden is cast upon the defendant in proportionality review. However, the unique situation confronting us is to determine the factual predicate for the proportionality review. The burden shifts to Papasavvas only after the facts have been established, at which point the proportionality review inquiry begins. Thus, a presumption in favor of the defendant is the vantage point from which the issue must be resolved.
As we have indicated, only one fact that is disputed cannot be resolved by the application of logic to the verdict: whether Mrs. Place was ambushed by Papasavvas or he was surprised by her. Because the issue is contested and neither version of the facts is essential to the verdict, we must assume that Papasavvas was surprised by Mrs. Place while he hid in her basement. That is the factual backdrop from which our analysis will flow.
1. Defendant's moral blameworthiness
a. Motive
b. Premeditation
c. Justification or excuse
d. Evidence of mental disease, defect or disturbance
e. No Knowledge of victim's helplessness
f. No Knowledge of effects on nondecedent victims
g. Defendant's age
h. Defendant's involvement in planning the murder
2. Degree of victimization
a. Violence and brutality of the murder
b. Injury to nondecedent victim
3. Character of defendant
a. Prior record
b. Other unrelated acts of violence
c. Cooperation with authorities
d. Remorse
e. Capacity for rehabilitation.
[State v. Harvey, 159 N.J. 277, 309 (1999) (Harvey III) (citing State v. Marshall, 130 N.J. 109, 155 (1992) (Marshall II)).]
It would be fair to say that the foregoing list is a manifesto of the matters that are at the heart of a judgment regarding culpability - the assessment of good versus evil.
With respect to moral blameworthiness, we examine “motive, premeditation, justification or excuse, evidence of mental disease, defect or disturbance, knowledge of helplessness of the victim, knowledge of effects on nondecedent victims, defendant's age, maturity, etc., and defendant's involvement in planning the murder.” Chew II, supra 159 N.J. at 210-11.
Papasavvas has been placed in the F-1 category - murder during the commission of a robbery. Among robbery cases, Papasavvas's motive for pecuniary gain is on the low end of the spectrum: his crime was not a contract killing, State v. Marshall, 123 N.J. 1, 28 (1991) (Marshall I), DiFrisco III, supra, 142 N.J. at 210; it was not a murder resulting from a kidnaping for ransom, Martini II, supra, 139 N.J. at 74, nor was it an insurance killing, Chew II, supra, 159 N.J. at 226. Murders like Papasavvas's, that occur in the course of a felony, are strikingly common. Indeed, according to statistics provided by the AOC, since 1983 74% of cases in the death-eligible universe have the c(4)(g) aggravating factor. In 2000, 100% of the cases included that factor either alone or in conjunction with other factors. At the very least then, because it is so widespread, cases that have only the 4(g) factor require particular scrutiny. In addition, we note that the murder was not premeditated, at least not in advance of Papasavvas's entry into the Place home. The record does not suggest any justification or excuse for Papasavvas's crime. Papasavvas offered extensive evidence of brain damage and psychological impairments including a serious head injury sustained during a motorcycle accident. Although the jury unanimously rejected Papasavvas's claim of diminished capacity (c(5)(d)), within the catch-all factor all twelve jurors found that Papasavvas suffered from a mental defect or other mental disorder.
Papasavvas also presented considerable evidence of child abuse, and ten jurors found that Papasavvas was subject to cruelty as a child. All twelve jurors found that the school district in which Papasavvas was enrolled classified him as emotionally disturbed. Seven jurors found that his emotional disturbance was attributable in part to the abuse he suffered as a child.
Mrs. Place was vulnerable due to her advanced age and the fact that she lived alone. There is no evidence, however, that suggests Papasavvas was aware of those vulnerabilities when he broke into the basement. There was no evidence of provocation.
Although Papasavvas was twenty-three years old at the time of the murder, the jury unanimously rejected the c(5)(c) (age) mitigating factor. Nevertheless, we assign some mitigating weight to his age due to the effect it might have had on the jury's evaluation of the c(5)(h) (catch-all) mitigating factors. See State v. Bey, 137 N.J. 334, 360 (1994). Assessing all of those facts, we find Papasavvas's moral blameworthiness to be moderate.
b. DEGREE OF VICTIMIZATION
We evaluate victimization by examining the “violence and brutality of the murder, and injury to nondecedent victims.” Chew II, supra, 159 N.J. at 211.
Papasavvas assaulted Mrs. Place. To prevent her from screaming, he tied a belt around her mouth, which made it difficult for her to breathe. After choking her, he threw her body down the stairs. Finally, he cut off her clothes piece by piece and had some sort of sexual contact with her. Because it is unknown at what point Mrs. Place died in the attack, we are unable to assess her level of suffering. However, the Court has held that even short periods of suffering are sufficient to increase the degree of victimization. See Cooper II, supra, 159 N.J. at 91; Harvey III, supra, 159 N.J. at 314; Loftin II, supra, 157 N.J. at 338. We note that, though terrible, Mrs. Place's injuries, when viewed against the backdrop of the horrific acts of gratuitous violence that inhabit the death penalty universe, are not among the most egregious. Nevertheless, the degree of victimization overall was high.
c. DEFENDANT'S CHARACTER Finally, we consider Papasavvas's character, which includes his “prior record, other unrelated acts of violence, cooperation with authorities, remorse, and capacity for rehabilitation.” Chew II, supra, 159 N.J. at 211. Papasavvas has both a juvenile record and an adult record. As an adult, he has nine convictions for such offenses as burglary, larceny, receiving stolen property, and unlawful possession of a weapon. As a juvenile, Papasavvas had two adjudications for delinquency, beginning at age fifteen, for burglary and thefts. His criminal history increases his culpability. However, that is offset by the absence of violent offenses prior to this offense.
Papasavvas did not immediately cooperate with the authorities. After three weeks had passed, he finally turned himself into the police. He confessed to his psychiatrists that he killed Mrs. Place, but he claimed that she accidentally fell down the basement stairs. That diminishes the weight to be accorded to his confession. Cooper II, supra, 159 N.J. at 91. He expressed remorse for the crime, albeit belatedly. Waiting until allocution to express remorse when facing the prospects of a death sentence diminishes the value of that remorse. Ibid.
Although Papasavvas's capacity for reform is questionable, his criminal history, the lack of violence in his criminal record, his remorse, and his age indicate that he may well have the potential for rehabilitation.
a.
Before engaging in our comparisons, we note the following trenchant observation that is the State's point of departure for its analysis of the comparisons of Papasavvas's case to those in the F-1 category:
Initially, the State notes that the aforementioned death and life-sentenced cases cannot accurately be described as genuinely comparable since none of the defendants discussed above sexually attacked their victims in addition to robbing and killing them. In marked contrast, defendant, as found by the jury, perpetrated what this Court accurately described as “bizarre and repulsive” conduct against Mildred of a distinctly sexual nature, including making “very straight [scissor] cuts of clothing to leave exposed her private parts, and by ejaculating near her anus. Even prior to this Court's decision, the AOC specifically denoted as a special aggravating feature of the offense that defendant had subjected his victim to “sexual perversion or abuse other than rape.
If, as the State suggests, sexual contact is the critical path to declaring Papasavvas's sentence proportional, then under the principle of unique assignment, and our practice of assigning cases on the basis of the most aggravating characteristic, Papasavvas should have been compared to other cases in which a murder was committed involving a sexual crime against a vulnerable victim. Harris II, supra, 165 N.J. at 316. At the very least, those cases should be considered to verify the outcome of the F-1 comparisons.
The recent case of State v. Timmendequas, supra, 168 N.J. 20 (2001) is instructive. There, the Court compared defendant to, among other cases, those in which the victims were vulnerable because they were elderly. Those cases, that are factually more similar to this case than the F-1 cases, include: (1) Kevin Conley, who broke into the home of his eighty-seven year-old victim and beat, raped, stabbed, and fatally strangled her; (2) Frank Masini, who first went to his eighty-five year-old aunt's home, stabbed her in the neck, and vaginally and anally raped her, and two weeks later did the same thing to another eighty year-old relative from whom he then stole a ring; (3) Samuel Mincey, who broke into the home of his seventy-three year-old victim, beat her severely, raped her, and strangled her, and then stole two oriental dolls and a television; (4) Rafael Rivera, who beat and strangled his seventy-eight year-old next door neighbor when she unexpectedly returned to her apartment and found him looking around for money; and (5) Otis James, who, after assaulting one woman, proceeded to rape and smother her eighty- two year-old upstairs neighbor. Not a single one of those plainly more culpable defendants had mitigating evidence nearly as compelling as that of Papasavvas. Yet not one of them received the death penalty. In fact, only one, Rivera, was even capitally prosecuted. We find Papasavvas's sentence aberrant when compared to the sentences of those individuals.
Among the other cases to which defendant should be compared, if only because of the State's focus on the sexual contact evidence, are similar cases in the D-2 category, which consists of "non-aggravated" sexual-assault murders. Harris II, supra, 165 N.J. at 317. Of the twelve cases in that category, only one received a death sentence. That was Ambrose Harris, who deliberately carjacked his victim, took her to a secluded area and sodomized her, shot her in the back of the head as she tried to get out of the car trunk where he had imprisoned her, and later shot her again in the face. That Harris's culpability far exceeds that of Papasavvas is obvious.
The remaining similar D-2 cases received sentences of either a term of years or life. They include Robert Bolinger who stalked his victim, entered her apartment through the window, hid in the closet until he was observed and then stabbed the victim, bound her and sexually assaulted her. Thereafter, he took her wallet and fled. Bolinger claimed as mitigation an alcohol and drug abuse problem. He was charged with murder, felony murder, aggravated sexual assault, robbery, burglary and possession of a weapon for an unlawful purpose. He pled guilty to felony murder and aggravated sexual assault and received a life term.
Founcill Brockington entered the home of his victim, sexually assaulted and strangled her, and struck her on the head with a pointed object. His mitigation was cocaine use and no prior record. He pled guilty to aggravated manslaughter and was sentenced to twenty-five years with eight years of parole ineligibility.
Jerry Spraggins broke into his sixty-eight year-old victim's home and sexually assaulted her. To silence her, he put a pillow over her face and smothered her. He then took his victim's purse and a gold chain and left through the window. He had a long criminal record and little mitigating evidence. He was convicted of burglary, aggravated sexual assault, and felony murder, and received a life term with a thirty year parole disqualifier for murder, with consecutive terms on the other offenses.
If those are the comparison cases, Papasavvas's death sentence is clearly disproportionate.
b.
Returning to the F-1 category, the parties agree on ten cases for purposes of precedent-seeking review.See footnote 44 We agree that these cases should be included in defendant's comparison group and adopt all ten cases. The defendants are Alvin Adams, Jerry Britton, Alphonso Brunson, Jesus DeJesus, Nathaniel Harvey 1A, Nathaniel Harvey 2A,See footnote 55 Franklin Flowers Hudson, Timothy Paul Lee, Gerald E. Williams, and Thomas Wolfe.
The Public Defender has submitted a list of five additional cases to which the Attorney General objects. The defendants are Larry Durden, Albert Fains, Michael Jones, Harold Perry, and Charles Ploppert. All five belong in the F-1 category, and could be included because they share a substantial characteristic with Papasavvas's case (in addition to the common salient factor). Morton II, supra, 165 N.J.<