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State v. DiFrisco

July 26, 1995

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY DIFRISCO DEFENDANT-APPELLANT.



On proportionality review of a death sentence imposed in the Superior Court, Law Division, Essex County.

Chief Justice Wilentz and Justices Pollock, Stein and Coleman join in Justice Garibaldi's opinion. Justice Handler has filed a separate Dissenting opinion. Justice O'hern has filed a separate Dissenting opinion in which Justice Handler joins.

The opinion of the court was delivered by: Garibaldi

(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).

STATE V. ANTHONY DIFRISCO (A-72-94)

Argued March 28, 1995 -- Decided July 26, 1995

GARIBALDI, J., writing for a majority of the Court.

A jury convicted Anthony DiFrisco of the murder of Edward Potcher, owner of Jack's Pizzeria in Maplewood. Potcher was shot at close range four times in the back of his head and once in the body. DiFrisco confessed to the murder, stating that a man named Anthony Franciotti had paid him $2,500 and had canceled his $500 drug debt for the killing.

In DiFrisco I, the Supreme Court affirmed DiFrisco's conviction but vacated the death sentence. At the second penalty-phase proceeding, the jury returned a death penalty verdict, finding the aggravating factor of committing murder for pecuniary gain to outweigh the mitigating factors of rendering assistance to the State and the "catchall" factor. The Supreme Court affirmed DiFrisco's death sentence on July 27, 1994 (DiFrisco II), deferring proportionality review. This decision addresses the issue whether the imposition of the death sentence on DiFrisco was disproportional.

HELD: DiFrisco has not demonstrated any aberration in the result of his penalty trial. His death sentence is not disproportionate, and accordingly is affirmed.

1. A capital sentence is disproportionate if other defendants with characteristics similar to those of the defendant under review generally receive sentences other than death for committing factually-similar crimes. Proportionality review seeks to ensure that a substantial distinction exists between capitally-sentenced and life-sentenced defendants; to limit capital sentencing to those cases that are most aggravated and in which death sentencing is the expected result; and to promote a rational, consistent, and fair application of the death sentence. The defendant bears the burden of showing disproportionality because the statute speaks in terms of proving that the sentence is disproportionate, not that it is proportionate. (pp. 7-11)

2. The first step in proportionality review is to identify the universe of cases to which the Court compares DiFrisco's case. In 1992, the Legislature amended the statute to limit the proportionality universe to those cases in which a death sentence has actually been imposed. DiFrisco's first conviction, which occurred long before the statute was amended, serves as the genesis of this proceeding. The Court therefore declines to apply the statute as amended to defendant's proportionality review. The Court continues to include within the death-sentenced pool those cases where the defendant's death sentence was reversed on appeal and where the prosecutor chose not to proceed capitally on remand. It also considers the data both including and excluding DiFrisco. (pp. 11-14)

3. The next step is to group the cases according to their comparative levels of blameworthiness. The Court uses two methods to evaluate a defendant's blameworthiness: frequency analysis, in which the Court performs three different statistical tests to gauge a defendant's relative criminal culpability; and the precedent-seeking approach, where the Court engages in traditional case-by-case review comparing similar death-eligible cases. The Court declines the requests of the parties to make various adjustments to the categorization of cases performed by the Administrative Office of the Courts (AOC), and defers generally to the AOC's expertise. (pp. 14-21)

4. Because frequency analysis is statistically based, and because the small sample sizes may undermine statistical reliability. the Court continues to place greater emphasis on the results of the precedent-seeking review. Nevertheless, the results under the frequency analysis show no randomness or aberration in DiFrisco's sentence. (pp. 21-38)

5. The primary inquiry in precedent-seeking review is whether the death sentence is justified in comparison to other similar life-sentenced and death-sentenced defendants. The Court reviews criminal culpability based on defendant's moral blameworthiness, the degree of victimization, and the character of the defendant. In comparing DiFrisco's case to those of other pecuniary motive killers, defendant's culpability is high, and his death sentence is not disproportionate. (pp. 38-71)

DiFrisco's death sentence is not disproportionate, and accordingly is affirmed.

Justice O'HERN, Dissenting, in which JUSTICE HANDLER joins, is of the view that precedent-seeking review discloses that in contract killings, the hirer is usually considered more death-worthy than the hired killer. He does not believe that anything sets DiFrisco's case apart from those where hired killers either were not prosecuted capitally or did not receive a sentence of death.

JUSTICE HANDLER, Dissenting, is of the view that the reasoning by which the Court reaches its result is strained by the fundamental infinities of capital murder jurisprudence generally and proportionality jurisprudence specifically. The defects of the Court's proportionality methodology include: the coding of reversed death sentences as death sentences for purposes of proportionality review; the refusal of the Court to hint at what level of statistical infrequency of imposition of a death sentence might justify a finding of disproportionality under frequency review; and the pervasive ambiguity of precedent-seeking review. He identifies what he considers to be other serious problems with proporionality review as conducted by the court and brought to light by the circumstances of this case.

CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, STEIN and COLEMAN join in JUSTICE GARIBALDI'S opinion. JUSTICE HANDLER has flied a separate Dissenting opinion. JUSTICE O'HERN has flied a separate Dissenting opinion in which JUSTICE HANDLER joins.

The opinion of the Court was delivered by GARIBALDI, J.

I

FACTS

The facts are set forth in detail in DiFrisco I, supra, 118 N.J. at 255-60, and DiFrisco II, supra, 137 N.J. at 448-51. We repeat here only those facts relevant to our proportionality review.

On August 12, 1986, Edward Potcher, owner of Jack's Pizzeria in Maplewood, was shot at close range four times in the back of his head and once in the body. His unknown assailant escaped undetected, leaving police with no leads in this cold-blooded, execution-style killing.

Several months later, on April 1, 1987, New York City police arrested defendant for various traffic violations, car theft, and reckless endangerment. Detective Harry Kukk testified that defendant fled the scene, so that Kukk was unable to overtake him. Later on the same day, acting on a tip, Detective Kukk went to defendant's apartment. He did not arrest DiFrisco that day, but told DiFrisco to turn himself in the next day. DiFrisco did not do so. In the following week, however, DiFrisco kept a scheduled appointment with his probation officer, and it was there that Detective Kukk arrested him. Defendant did not want to go back to jail. Accordingly, he asked Detective Kukk whether he could "do or say anything that . . . could get [him] out of this situation." The detective suggested that it might help his case if he could give some information about a serious crime. Some time later, as recounted by Detective Kukk, DiFrisco asked him:

"Harry, who is more guilty, the guy who shoots a guy or the guy who pays him to shoot the guy?

I said, "I have no problem. A guy who pays a guy to shoot the guy.

He said, "Are you serious?"

I said, "Sure."

"The guy who killed the guy is only an intermediate, only a pawn."

He said, "Harry, I don't know whether to trust you or not. If I tell you something, you are not going to ram it down me."

[DiFrisco I, supra, 118 N.J. at 257.]

The defendant's confession of murder followed. As part of his confession, defendant told police that a man named Anthony Franciotti had paid him $2,500 and had canceled his $500 drug debt to kill a pizzeria owner in New Jersey.

At first incredulous of the defendant's story, the New York police officer asked defendant for details. Defendant did not know where the crime had taken place, nor even the name of the victim. He did know that it involved a pizzeria in New Jersey. He said that Franciotti had paid him to do the killing because the pizza-shop owner was about to inform on Franciotti. He said that Franciotti drove him there on the day of the murder. DiFrisco stated that he entered the pizzeria alone and Franciotti waited in the car while the crime took place.

Bit by bit, the New York police closed in on the case. They called New Jersey authorities. They found an unsolved murder in Maplewood, Essex County, fitting the description of the murder in respect of time and place. The last links were the details furnished by the defendant that there were five shots from a .32 caliber automatic gun, that a silencer was used, and that the store sold only whole pizza pies, not slices.

Within hours, the Maplewood Police and Essex County homicide officers arrived at the precinct house in the Bronx. Defendant repeated the story to them and signed a confession to the murder implicating Franciotti. Several days later, while in police custody in New Jersey, defendant was to call Franciotti to link him to the murder. The police intended to tape that conversation. Defendant had consulted with a public defender, who advised him to make the call. At the last moment, defendant refused to call Franciotti. He said that his father counseled against further cooperation with the police without the advice of paid counsel.

[DiFrisco I, supra, 118 N.J. at 258-59.]

Defendant was indicted in Essex County and charged with the capital murder of Edward Potcher. The State served notice of three statutory aggravating factors: "outrageously or wantonly vile" murder, N.J.S.A. 2C:11-3c(4)(c); murder for hire, N.J.S.A. 2C:11-3c(4) (d); and murder to escape the detection of another crime, N.J.S.A. 2C:11-3c(4) (f). Defendant pled guilty to capital murder on January 11, 1988, and essentially repeated his confession. Defendant was fully informed by the court of the consequences of such a plea. When asked by the court, "Was it your intention to kill him [Potcher] at that time?", defendant replied, "Yes."

Defendant waived his right to a jury trial for the penalty phase, pursuant to N.J.S.A. 2C:11-3c(1). The trial court found two aggravating factors: that defendant had killed for hire, N.J.S.A. 2C:11-3c(4) (d); and that the victim was killed to avoid the detection of another, N.J.S.A. 2C:11-3c(4) (f). The court also found one mitigating factor, that "defendant rendered substantial assistance to the state in the prosecution of another person for the crime of murder, N.J.S.A. 2C:11-3c(5) (g) Finding that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt, the trial court sentenced defendant to death. On direct appeal, we affirmed defendant's guilt-phase conviction, but reversed his death sentence for lack of any independent corroboration of his testimony, and remanded for a new penalty-phase proceeding. DiFrisco I, supra, 118 N.J. 283.

On remand, defendant chose to be tried before a jury. After denying his motion for a directed life verdict, the court commenced the penalty-phase trial. The State alleged the same aggravating factors which the prior court had found, that defendant had committed murder for hire and to escape detection for another crime. Defendant alleged several factors in mitigation.

The jury unanimously found as an aggravating factor that defendant had committed the murder for payment, but only eleven jurors found the second aggravating factor, that defendant had committed the murder to avoid detection for another crime. Hence, the jury rejected that factor. At least one juror found thirteen of the mitigating factors presented. The jury concluded that the unanimously-found aggravating factor outweighed all the mitigating factors beyond a reasonable doubt. In conformance with the jury verdict, the trial court sentenced defendant to death. Two weeks later, the trial court denied defendant's motion to set aside the death sentence in favor of a life sentence.

[DiFrisco II, supra, 137 N.J. at 451.]

We affirmed defendant's death sentence and acknowledged his request for proportionality review. Id. at 508. We now review his death sentence, and find it not disproportionate.

II

PROPORTIONALITY REVIEW

In State v. Martini, 139 N.J. 3, 651 A.2d 949 (1994) (Martini II), we reviewed the fundamental principles of proportionality review. In that case, we found that Martini's sentence was not disproportionate. Little has changed in our proportionality review jurisprudence since we decided Martini in December 1994. We therefore simply recapitulate our Discussion regarding the purpose of proportionality review.

Proportionality review's principal goal is to determine whether a particular defendant's death sentence is disproportionate. See N.J.S.A. 2C:11-3e. "A capital sentence is excessive and thus disproportionate if other defendants with characteristics similar to those of the defendant under review generally receive sentences other than death for committing factually-similar crimes in the same jurisdiction. Martini II, supra, 139 N.J. at 20 (citing State v. Bey, 137 N.J. 334, 343, 645 A.2d 685 (1994) (Bey IV) and State v. Marshall, 130 N.J. 109, 131, 613 A.2d 1059 (1992) (Marshall II)); see also Tichnell v. State, 297 Md. 432 n.18, 468 A.2d 1 (1983) (" death sentence is comparatively excessive if other defendants with similar characteristics generally receive sentences other than death for committing factually similar offenses in the same jurisdiction."). We have declined to set a numerical standard to determine at what point defendants "generally" receive the death penalty, because such a determination would introduce undesirable arbitrariness into proportionality review. Martini II, supra, 139 N.J. at 20.

There are two aspects to proportionality review: "substantive," or "offense-oriented," review; and "procedural," or "offender-oriented," review. Marshall II, supra, 130 N.J. at 126. Substantive or offense-oriented review engages traditional Eighth Amendment considerations and looks at the offense to determine whether the punishment imposed is excessive in relation to the crime itself. Martini II, supra, 139 N.J. at 20 (citing Coker v. Georgia, 433 U.S. 584, 592, 97 S. Ct. 2861, 2866, 53 L. Ed. 2d 982, 989 (1977)). To pass constitutional muster on substantive review, "the magnitude of the punishment imposed must be related to the degree of harm inflicted on the victim." Marshall II, supra, 130 N.J. at 129. As we have previously noted, the sentence

may not be "grossly out of proportion" to the degree of harm imposed. Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2925, 49 L. Ed. 2d 859, 875 (1976) (finding that death sentence does not per se violate Eighth Amendment); accord Coker, supra, 433 U.S. at 592, 97 S. Ct. at 2866, 53 L. Ed. 2d at 989 (concluding that death sentence is grossly disproportional and excessive for crime of rape); Marshall II, supra, 130 N.J. at 129 (tracing U.S. Supreme Court's development of substantive review); see Enmund v. Florida, 458 U.S. 782, 787, 801, 102 S. Ct. 3368, 3376, 3378-79, 73 L. Ed. 2d 1140, 1151, 1154 (1982) (finding that Eighth Amendment prohibits capital sentence for defendant who aids and abets felony in course of which murder is committed by others but who does not himself kill, attempt to kill, or intend that killing or use of lethal force take place).

[Martini II, supra, 139 N.J. at 21.]

Conversely, procedural or offender-oriented review focuses on the defendant, and not on the crime committed; it presumes that the death penalty is proportional to the offense. Martini II, (supra) , 139 N.J. at 20 (citing Marshall II, supra, 130 N.J. at 126-27; Pulley v. Harris, 465 U.S. 37, 43, 104 S. Ct. 871, 876, 79 L. Ed. 2d 29, 36 (1994)). In such review, the question is "whether the 'punishment fits the criminal.'" Marshall II, supra, 130 N.J. at 129. "This sort of proportionality review. purports to inquire instead whether the [death] penalty is nonetheless unacceptable in a particular case because [it is] disproportionate to the punishment imposed on others convicted of the same crime." Pulley, supra, 465 U.S. at 43, 104 S. Ct. at , 79 L. Ed. 2d at 36.

Proportionality review is a response to the United States Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), which reversed three death sentences, one for murder and two for rape. As Justice Stewart noted, the decision whether to sentence a defendant capitally, if left to the unfettered discretion of a jury, violates the Eighth Amendment because the sentence can be "wantonly and . . . freakishly imposed." Id. at 408 U.S. at 310, 92 S. Ct. at 2762-63, 33 L. Ed. 2d at 390 (Stewart, J. Concurring). Proportionality review, though neither required by the United States Constitution nor the only means capable of rendering capital-punishment schemes constitutional, nevertheless allows this Court to monitor the results of jury discretion and prevent the arbitrary and inconsistent application of the death penalty. Martini II, supra, 139 N.J. at 21 (citing Pulley, supra, 465 U.S. at 43-46, 104 S. Ct. at 876-77, 70 L. Ed. 2d at 36-37).

Procedural proportionality review seeks to "ensure that a substantial distinction exists between capitally-sentenced and life-sentenced defendants; to limit capital sentencing to those cases that are most aggravated and in which death sentencing is the expected result; and to promote a rational, consistent, and fair application of the death sentence." Martini II, supra, 139 N.J. at 22 (citing Marshall II, supra, 130 N.J. at 131). The defendant bears the burden to show disproportionality by establishing that similar defendants who commit factually similar offenses generally receive sentences other than death. Bey IV, supra, 137 N.J. at 343. That burden is imposed on the defendant, rather than the State, because the Act, N.J.S.A. 2C:11-3e, speaks in terms of proving that the sentence is disproportionate, not proportionate. Id. at 349.

We emphasize, as we did in Martini II, that proportionality review

is not a "system of death-sentence validation," post at 81, but is instead a vehicle to ensure that the penalty-phase jury's decision is not insupportable. That purpose stems from the mandate of the statutory language itself: "the Supreme Court * * * shall determine whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." N.J.S.A. 2C:11-3e. Thus, our search is not for proportionality, but rather one in which our goal is to determine whether the jury's decision to sentence a defendant to death is comparable to decisions reached in the appropriate capital cases in our universe of cases. The question is whether other defendants with similar characteristics generally receive sentences other than death.

[Martini II, supra, 139 N.J. at 22 (citing Marshall II, supra, 130 N.J. at 153).]

A. The Universe of Cases

The first step in proportionality review is to identify the universe of cases to which we compare defendant's case. In 1992, the Legislature amended N.J.S.A. 2C:11-3e to limit the proportionality universe to only those cases in which a death sentence has actually been imposed. L. 1992 c 5, § 1. The Legislature did not state whether the amendment was intended to apply to pending appeals. In Martini II, Bey IV, and Marshall II, we declined to apply that amendment to those appeals, primarily, though not exclusively, because those defendants' appeals were pending before the Legislature enacted the amendment. Likewise, we decline to apply that amendment to this case. DiFrisco's death sentence was first imposed in 1988, two years prior to Martini's sentence; following his direct appeal and this Court's remand for retrial of the penalty-phase, DiFrisco was again sentenced to death in February 1993. Thus, the genesis of this proceeding was defendant's first conviction, which occurred long before the statute was amended. We therefore decline to apply N.J.S.A. 2C:11-3e as amended to defendant's proportionality review.

The Administrative Office of the Courts (AOC) maintains the data base of homicide cases that this Court uses for proportionality review. The AOC developed its statistics based on the procedure created by Professor David Baldus, the Special Master this Court appointed to develop a model for proportionality review, and on modifications this Court has made through previous proportionality reviews. See, Marshall II, supra, 130 N.J. at 216-18. The universe of cases that we use in this review is compiled in the DiFrisco Report, prepared by the AOC. The report includes cases collected from the effective date of the death-penalty statute in 1983 through August 1994. It contains 309 death-eligible cases, 128 of which went to penalty trial, a rate of forty-one percent. DiFrisco Report, tbl. 3. Of the 128 penalty-trial cases, thirty-eight, or thirty percent, resulted in a death sentence. DiFrisco Report, tbl. 2. The overall death-sentencing rate is twelve percent (38/309). DiFrisco Report, tbl. 1.

B. Method of Classifying Cases

Once the universe of comparison cases is established, we must sort them in a data base. As we have done in Martini II, Bey IV, and Marshall II, we use two approaches: an a priori approach and an empirical method. In the a priori procedure, we analyze cases based on those factors that experience has shown influenced the decision whether to sentence capitally. Martini II, (supra) , 139 N.J. at 24; Bey IV, supra, 137 N.J. at 345; Marshall II, supra, 130 N.J. at 141-42. In the empirical method we review life-sentenced and death-sentenced cases to identify those characteristics that determine the patterns of life sentencing versus death sentencing. Martini II, supra, 139 N.J. at 24; Marshall II, supra, 130 N.J. at 142-44. The empirical method reveals those factors that prosecutors and juries find determinative. Martini II, supra, 139 N.J. at 24; Bey IV, Supra, 137 N.J. at 345.

We have previously noted the difficulty and danger inherent in "any attempt to define in advance all characteristics of a murder case [to] capture the critical facts of a defendant's case" because that "would fail to distinguish between individual defendants." Martini II, supra, 139 N.J. at 24 (citation omitted). Every murder case is unique. It is that very uniqueness that requires us to engage in this endeavor, in order to afford capital defendants the full review to which they are entitled. See id. at 25.

In our earlier proportionality reviews, we determined that the death-sentenced pool will include those cases where the defendant's death sentence was reversed on appeal--due mostly to burden-of-proof errors or Gerald *fn1 issues--and those cases where the prosecutor chose not to proceed capitally on remand. See Martini II, supra, 139 N.J. at 25-26; Bey IV, supra, 137 N.J. at 345-47; Marshall II, supra, 130 N.J. at 194 n.10. Burden-of-proof and Gerald errors "affect the procedural fairness of the trial, not the substance of the crime, [and] 'do not necessarily bear on the jury's determination of deathworthiness.'" Martini II, supra, 139 N.J. at 26 (quoting Bey IV, supra, 137 N.J. at 347); accord Marshall II, supra, 130 N.J. at 169 n.5, 194 n.10. Furthermore, the "State's decision not to reprosecute a defendant capitally is not necessarily a reflection of that defendant's lack of deathworthiness." Id. at 27. For those reasons and the reasons detailed in our earlier opinions, we continue to include such cases in the category of death sentence cases.

Additionally, we continue to present the data both including and excluding defendant. "Using two sets of data, one including defendant's case and one excluding it, will give us the broadest picture of societal standards while alerting us to the bias produced by including defendant's case." Martini II, supra, 139 N.J. at 28.

III

COMPARISON OF CASES

Thus far, we have established that the universe of cases on which we will rely are those contained in the DiFrisco Report, and that we will adhere to our prior criteria for coding those cases as either death sentenced or life sentenced. Now we must group those cases according to their comparative levels of blameworthiness. Martini II, supra, 139 N.J. at 28; Bey IV, supra, 137 N.J. at 350. We have previously measured blameworthiness by relying on statutory mitigating and aggravating factors "as well as nonstatutory factors based on 'objectively verified measures of blameworthiness.'" Bey IV, supra, 137 N.J. at 350 (quoting Marshall II, supra, 130 N.J. at 152); accord Martini II, supra 139 N.J. at 38.

We use two methods to evaluate a defendant's blameworthiness: frequency analysis and precedentseeking review. Through both, we determine whether defendant's death sentence is disproportionate compared to similar cases. Marshall II, (supra) , 130 N.J. at 148; Martini II, supra, 139 N.J. at 28. "Proportionality review seeks to determine only whether a particular death sentence is aberrational, not whether it compares perfectly with other sentences." Bey IV, supra, 137 N.J. at 352 (citing Marshall II, supra, 130 N.J. at 131).

In frequency analysis, we determine the rate of death sentencing in similar cases. This helps to reveal how jurors and prosecutors treat similar cases. Precedent-seeking review engages familiar judicial case-by-case analysis, wherein we compare defendant's case to factually similar cases in order to discern whether defendant is deathworthy vis-a-vis other similarly situated defendants. We then compare the results of the two analyses to determine whether imposition of the death sentence in this instance is disproportionate.

A. Adjustments in Comparison Group

The AOC, which maintains the data base on which we build our proportionality-review universe, breaks the list of death-eligible defendants into various categories and sub-categories. See DiFrisco Report, tbl. 7. These categories are based on the Special Master's report, which we adopted. See David C. Baldus, Death Penalty Proportionality Review Project, Final Report to the New Jersey Supreme Court (Sept. 24, 1991) (Final Report). There are thirteen basic categories, each of which contains two to seven sub-categories *fn2

The parties to this action have proposed various adjustments to the AOC's categorization, suggesting additions or deletions from defendant's comparison group. We defer generally to the AOC's expertise, and particularly to its unique assignment of defendants to only one comparison category: each case in the universe is assigned to only one comparison category, and within that category, to only one sub-category. Final Report at 81. The AOC has placed DiFrisco in the pecuniary-motive category, contract-killer sub-category. The pecuniary-motive category consists of three sub-categories: contract killers, contract principals, and other pecuniary-motive killers. The pecuniary motive category currently contains fourteen cases for comparison with DiFrisco. *fn3

Defendant presented a list of persons whom he would like added to his comparison group. Five of them--Anthony Accetturo, Louis Auricchio, Thomas Ricciardi, Michael Perna, and Michael Taccetta--were convicted of crimes that entailed procuring or carrying out murders on behalf of organized crime families. Some of the organized-crime defendants were convicted of lesser offenses such as conspiracy. We did not include that group for several reasons. First, to be death eligible, a defendant must have committed the murder by his or her own conduct, or, as an accomplice, procured the murder by payment of anything of pecuniary value. N.J.S.A. 2C:11-3c. Three of the five--Michael Taccetta, Anthony Accetturo and Michael Perna--do not satisfy that criteria.

Second, there appears to be no basis for an allegation that any of those defendants were either paid to commit murder or that they paid another to do so, despite the Dissent's assertions to the contrary. Post at (Handler slip op. at 10-14). The Dissent notes that Ricciardi has been tentatively included in the proportionality universe. Post at (Handler slip op. at 12). We emphasize the word tentatively and note that the AOC has not included Ricciardi in DiFrisco's comparison group. We again defer to the AOC's expertise in this area. Moreover, aggravating factor c(4) (d) is on its face designed to reach only those murders intended to produce a direct financial gain. Murders committed to advance the goals of organized crime families, though to some degree motivated by pecuniary gain, are not the equivalent of murder-for-hire contemplated by the Special Master.

Our final reason for excluding the organized-crime defendants is that, in screening the cases, Special Master Baldus initially excluded all defendants who pled to an offense less serious than aggravated manslaughter, such as conspiracy. Final Report at 3. Also for that reason, we do not include Lazaro Trimino, whose case was excluded from the death-eligible universe, because he pled to a crime less than aggravated manslaughter. Those killers were allowed to plead to lesser offenses because the State lacked sufficient evidence to go forward with murder prosecutions. Cases presenting problems of proof do not, by their life sentences, necessarily establish a determination of lack of deathworthiness. Accordingly, the AOC properly excluded those cases from the proportionality universe.

Defendant sought the exclusion from his comparison group of James Clausell's reversed death sentence. As we observed earlier, (supra) at (slip op. at 13-14), we continue to include such cases because they evidence the jury's determination of deathworthiness. Defendant also sought the inclusion in his comparison group of life-sentenced killers Daniel Nicini and Patrick Lanzel. Because we adhere to the AOC's "unique assignment" of each case to a specific category, (supra) at (slip op. at 15-16), we reject that request. The AOC places Nicini in category (E) (2), robbery with particular violence/terror, and Lanzel in category (A) (1), multiple victims. Their motive for killing was not pecuniary; therefore, their comparison with defendant is inappropriate.

Defendant has again raised the issue of intra-case disproportionality, based on the fact that the man he asserts hired him, Anthony Franciotti, has not himself been prosecuted. Justice O'Hern, in his Dissent, likewise voices this objection. Post at (O'Hern slip op. at 9-10). We discussed and dealt with this issue in defendant's two direct appeals. See DiFrisco I, (supra) , 118 N.J. at 260-69 and DiFrisco II, supra, 137 N.J. at 504-05.

Essentially, defendant argues, and Justice O'Hern opines, that it is unfair to prosecute and convict him capitally if his alleged hirer has not even been indicted, let alone tried or convicted. We observed then and reiterate now that the decision not to prosecute Franciotti was an evidentiary one, and does not constitute a determination of Franciotti's deathworthiness. DiFrisco I, supra, 118 N.J. at 269. The only "evidence" of Franciotti's involvement in the crime was defendant's confession; the only fact corroborative of defendant's association with Franciotti was that they met while confined to the New York Downstate Correctional Facility in 1984; the record did not "disclose any further contact between the two after they had been released." Id. at 268. The prosecutor probably could have obtained an indictment against Franciotti on the basis of defendant's confession, id. at 262, but that confession could not be used against Franciotti at trial, as it amounted to hearsay. Id. at 264-65. Given that defendant had earlier reneged on his agreement to call Franciotti to obtain incriminating evidence, it appears that the prosecutor was justifiably loath to bargain away DiFrisco's capital sentence in exchange for defendant's "promise" to testify against Franciotti. Id. at 269. As we concluded in DiFrisco I:

We cannot say that it would be arbitrary for a prosecutor to refuse such a bargain in a case like this. In many cases there is much more evidence that links the higher-up to the crime, such as a motive to kill or a known relationship gone bad. None of that was present here.

[Ibid.]

Simply because the co-defendant hirer might have gotten away does not mean that the defendant hit-man in custody should not be prosecuted and punished.

The State, through the Essex County prosecutor and the Attorney General, opposed five members of defendant's AOC-determined comparison group; opposed defendant's suggested additions; and proposed one addition of its own. We agree with the State on one change: Walter Williams should be deleted from defendant's comparison group. Williams's exclusion is justified on the grounds that the jury rejected the pecuniary-motive aggravating factor at his penalty trial. The State argues that John Martini, whose case is more fully reported in Martini II, supra, 139 N.J. 3, should be included in defendant's comparison group because we included DiFrisco in Martini's comparison group. The AOC has coded Martini's case as (H) (2), kidnapping/abduction with particular violence or terror. DiFrisco Report, tbl. 7. We included DiFrisco in Martini's comparison group because of the exceedingly small number of cases in the (H) (2) category and because of our concern that Martini's crime did not fit squarely within the parameters of the kidnapping/abduction category as a whole. Martini II, supra, 139 N.J. at 34. Because the same dilemma does not confront us here, and because we adhere to the AOC's unique assignment of each case, (supra) at (slip op. at 15-16), we reject the State's request to include Martini in DiFrisco's comparison group. As we have previously commented, a "capital defendant is not entitled to a perfect universe of identical cases, but instead only the best that we can achieve." Martini II, supra, 139 N.J. at 31 (citing Bey IV, supra, 137 N.J. at 352, 362). Defendant's comparison group consists of thirteen cases. *fn4

B. The Frequency Approach

Frequency analysis is divided into three different statistical tests to gauge a defendant's relative criminal culpability: the salient-factors test, the numerical-preponderance-of-aggravating-and-mitigating-factors test, and the index-of-outcomes test. Martini II, supra, 139 N.J. at 29-30; Bey IV, supra, 137 N.J. at 350-51; Marshall II, supra, 130 N.J. at 154. The principal inquiry here is whether the degree of blameworthiness in the present case "reasonably supports an expectation that such a case will generally result in a death sentence." Martini II, supra, 139 N.J. at 30. Frequency analysis helps us to determine whether defendant is in a category that renders him or her more likely than other killers to receive the death penalty. Ibid.

The sample size of the pools used in frequency analysis remains small. Consequently, because frequency analysis is statistically based, and because the small sample sizes may undermine statistical reliability, we continue to place greater emphasis on the results of the precedent-seeking review. See Martini II, supra, 139 N.J. at 29; Bey IV, supra, 137 N.J. at 351. Nevertheless, that limitation does not diminish the utility of this exercise: frequency analysis is but one tool in our review process. Until such time as the pools available for use in frequency review increase, we will continue to rely more heavily on precedent-seeking review.

A further caveat emerges from our prior proportionality cases. Defendant's predicted frequencies of receiving a death sentence are likely to be low. As we noted above, (supra) at (slip op. at 7-8), we decline to set a level at which defendants "generally" receive the death penalty. Frequency analysis values are predictors: they are not answers, but guidelines. Martini II, supra, 139 N.J. at 29. A low predicted value does not mean, ipso facto, that the imposition of the death penalty is disproportionate; it simply means that we must more carefully scrutinize the other aspects of proportionality review. See Marshall II, supra, 130 N.J. at 153-54, 159.

A more complete explanation of the statistical techniques used in the frequency analysis portion of our review appears in Martini II, supra, 139 N.J. at 31-32. We continue to abide by the earlier Conclusion that because the results of our regression analyses are of uncertain reliability, we will use them for comparison and guidance, but "do not accord them final or determinative weight." Ibid. As we stated in Martini II, supra:

Even with the foregoing problems, however, the statistical approach receives our attention because it permits us to distinguish cases by culpability; because it allows us to determine a community consensus, in contrast to the individual assessment of the case-by-case approach; and because it creates a basis for evaluating the fairness of the entire sentencing system. Unlike the precedent-seeking approach, the statistical method provides a means for deciding whether the cases used for comparison are themselves disproportional. Therefore, we use both approaches as complementary techniques.

[139 N.J. at 32.]

1. The Salient-Factors Test

In the salient-factors test, we compare defendant's sentence to sentences in factually-similar cases in order to measure the relative frequency of defendant's sentence. If the death sentence is imposed often enough in a category of comparable cases, then we feel confident that there exists a societal consensus that death is the appropriate punishment. We base comparability first on the statutory aggravating factors, and then further subdivide the group "according to circumstances that serve either to aggravate or to mitigate the blameworthiness of the defendants in those cases." Martini II, supra, 139 N.J. at 33. Because the salient-factors test compares sentences in cases which are factually similar, we find it the most persuasive of the frequency tests. Bey IV, supra, 137 N.J. at 353; accord Martini II, supra, 139 N.J. at 33; Marshall II, supra, 130 N.J. at 168.

DiFrisco is categorized as a pecuniary gain killer, contract killer sub-category. DiFrisco Report, tbl. 7, group 1(1). Of the nine death-eligible cases in that group, six went to penalty trial, and of those penalty-trial cases, three resulted in death sentences, including defendant's cases. Thus, the death-sentencing rate for all death-eligible contract killers is thirty-three percent, but for those advancing to penalty trial, it is fifty percent. Those figures are significantly higher than the overall death-sentencing rates of twelve percent for all death-eligible killers and thirty percent for all penalty-phase cases, lending further support to our earlier observation that the sub-category of contract-killers is viewed by society as "significantly blameworthy." Marshall II, supra, 130 N.J. at 185.

Placing this information in tabular form assists in its understanding:

Death Sentencing Rates for I(1) Contract Killers

[SEE TABLE IN ORIGINAL]

[DiFrisco Report, tbl. 7, group I(1)]

Removing defendant's case from the group lowers the rates somewhat, but still places the figures within the general overall range of twelve percent for all death-eligible cases and thirty percent for penalty-trial cases.

Looking at the entire pecuniary gain category, as we adjusted it above, (supra) at (slip op. at 15-21), reveals the following rates:

Death Sentencing Rates for All Pecuniary-Motive Killers

[SEE TABLE IN ORIGINAL]

[DiFrisco Report, tbl. 7, groups I(1), (2), (3), (as adjusted)]

Once again, those rates equal or exceed the overall rates for all death-eligible and all penalty-phase cases.

Based on the foregoing, we find that the death penalty is imposed on a more frequent basis in the pecuniary-motive killings group, and similarly in the contract-killer subgroup, than in the general death-eligible and penalty-phase universes. Although we decline to set a numerical standard at which defendants generally receive the death penalty, a review of the data in this salient-factors analysis reveals that a significant proportion of defendants in the pecuniary-motive category, and particularly those in the contract-killers sub-category, have received the death penalty.

Accordingly, we conclude that the salient-factors test, the most persuasive of the statistical measures, supports a finding of no disproportionality. As we previously observed, "contract killers show an extremely high frequency of receiving a death sentence." Martini II, supra, 139 N.J. at 35. Nonetheless, the small sample sizes of the groups in this salient-factors test preclude us from investing great weight in those results. They do, however, serve as a check against our findings under the other statistical tests and under the precedent-seeking approach. Ibid. at 38.

2. The Numerical-Preponderance-of-Aggravating-and-Mitigating-Factors Test

In this test, we compare DiFrisco's case to other cases having the same number of aggravating and mitigating factors. The purpose of this test is to overcome the shortcomings of the salient-factors test, particularly the small sample pools. Yet this test, too, is fraught with uncertainty, a fact that we have recognized in labelling this test "more problematic" than the other two statistical methods. See Martini II, supra, 139 N.J. at 38; Marshall II, supra, 130 N.J. at 171. The difficulty with this test is that it assumes that juries weigh each of the aggravating and mitigating factors equally, an assumption that fails to account for the qualitative nature of jury deliberations. In an effort to alleviate that problem, the numerical-preponderance test attempts to weight the statutory factors to account for qualitative determinations.

Defendant's jury found one aggravating factor, c(4) (d), pecuniary gain, and two mitigating factors, c(5) (g), defendant rendered substantial assistance to the State in the prosecution of another person for murder, and c(5) (h), the catchall" factor. The jury rejected mitigating factors c(5) (a), extreme mental or emotional disturbance, and c(5) (d), impaired as a result of mental disease or defect or intoxication. In frequency analysis we consider only those objective mitigating factors that the jury found. Martini II, supra, 139 N.J. at 38; Bey IV, supra, 137 N.J. at 361. To do otherwise would require that we rework and reweigh all the cases in the universe. Of twenty penalty-trial cases in which the defendant had one aggravating factor and two mitigating factors, four have resulted in death sentences, a rate of twenty percent. DiFrisco Report, tbl. 8. The AOC reports sixty-nine cases in the overall death-eligible universe where one aggravating and two mitigating factors were found, and of those, four resulted in death sentences, a rate of six percent. The figures are as follows:

Cases with One Aggravating Factor

and Two Mitigating Factors

[SEE TABLE IN ORIGINAL]

[DiFrisco Report, tbls. 8, 9]

Looking at all cases which had just one aggravating factor, regardless of the mitigating factors, presents the following:

All Cases with One Aggravating Factor

(regardless of mitigating factors)

[SEE TABLE IN ORIGINAL]

[DiFrisco Report, tbls. 8, 9]

Those figures reveal that the death penalty is imposed less frequently than the overall average when there are one mitigating and two aggravating factors, as well as when there is only one aggravating factor, regardless of the number of mitigating factors. The figures without defendant are slightly lower.

Of those cases in which aggravating factor c(4) (d) (pecuniary motive) was present and which contain one aggravating and two mitigating factors, the death-sentencing rate in all death-eligible cases is twenty percent (1/5) with defendant, but zero percent (0/4) without him. Of those cases going to penalty trial, the capital sentencing rate is thirty-three percent (1/3) with defendant, but zero percent (0/2) without him. Defendant argues that this leads inexorably to the Conclusion that his death sentence is disproportional.

To this argument, we have two responses. First, the sample size here is extremely small, which, once again, strongly cautions against giving those results much weight. Second, and more important, to defendant's argument that he is the first, or only, defendant with solely the c(4) (d) aggravating factor and two mitigating factors sentenced to death, we state again that "being the first murderer in a category [to receive a death sentence] does not support a Conclusion of disproportionality." Martini II, supra, 139 N.J. at 34; accord Bey IV, supra, 137 N.J. at 349-50; Marshall II, supra, 130 N.J. at 166. Furthermore, defendant's sentencing rate is comparable to the death sentencing rates for other contract killers and other pecuniary gain killers, as demonstrated above in § III (B) (1), (supra) at (slip op. at 23-26).

Finally, we present a factor-by-factor analysis of defendant's aggravating and mitigating factors, which confirms the determination that, though some of defendant's figures may be ...


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