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State v. Harvey

June 03, 1999

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NATHANIEL HARVEY, DEFENDANT-APPELLANT



The opinion of the court was delivered by: Garibaldi, J.

Argued April 28, 1998

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

A jury originally convicted defendant Nathaniel Harvey of Irene Schnaps's murder and sentenced him to death in October 1986. This Court reversed that conviction because of errors in the admission of defendant's confession and in the failure of the trial court to give a "Gerald charge."*fn1 State v. Harvey, 121 N.J. 407 (1990) (Harvey I), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991). At defendant's retrial, a jury again convicted defendant of the purposeful or knowing murder of Irene Schnaps, and imposed the death penalty. We affirmed defendant's conviction and death sentence. State v. Harvey, 151 N.J. 117, 233 (1997) (Harvey II). We granted defendant's request for proportionality review of his death sentence, see N.J.S.A. 2C:11-3e, and now find no disproportionality.

I.

FACTS

The facts are set forth in detail in Harvey II, supra, 151 N.J. at 137-44. We repeat here only those facts relevant to our proportionality review.

A. Discovery of the Body and the Crime Scene

Sometime in the evening of June 16, 1985, or during the early morning hours of June 17, 1985, defendant broke into the apartment of Irene Schnaps and "brutally murdered" her. Harvey II, supra, 151 N.J. at 150. Schnaps, age thirty-seven, lived alone in a ground-floor apartment in an apartment complex. Although the investigating police detected no signs of forced entry, the bedroom showed signs of a struggle. Bloodstains were on the carpet and throughout the room. Schnaps's naked body lay face-up on the floor. Despite the severe head and facial wounds, no bloodstains were present on Schnaps's chest and stomach, leading to the Conclusion that before leaving her apartment, defendant had undertaken measures to cover his tracks.

A white pillowcase bore a bloody sneaker-print with a chevron pattern and the letters "PON." Although the bedding appeared clean, blood stained the mattress, the underlying box spring, a cardboard box protruding from under the bed, and a towel. An empty Seiko-LaSalle watch box, an empty Olympus camera box, and an empty jewelry box were also found in the bedroom. In the bathroom, investigators found Schnaps's open pocketbook, containing no money.

B. The Autopsy

Dr. Marvin Shuster, the Middlesex County Medical Examiner, determined that Schnaps had sustained approximately fifteen blows to the head. The largest wound, six-inches long and one-inch wide, extended from the front of her forehead to the top of her head. Some of the blows fractured Schnaps's skull and caused direct injury to the brain. Blows had been delivered from both the right and left sides, some from the front, but most from behind.

Triangular pressure marks appeared on both sides of the neck. Some of Schnaps's teeth were knocked out, and her jaw was broken. The right side of her neck, jaw, cheek, and forehead were bruised, and she was cut behind one ear.

Unable to attribute death to any particular wound, Dr. Shuster concluded that a combination of blows had killed Schnaps, that Schnaps's wounds had been caused by "quite a bit of force with a heavy object," and that Schnaps had bled profusely and died within a matter of minutes.

C. The Arrest of Harvey and His First Conviction

On October 28, 1985, police investigating a series of unsolved burglaries and sexual assaults arrested defendant. One of the burglary victims identified defendant at a subsequent "show-up." During questioning, defendant confessed to committing a number of burglaries in West Windsor, as well as a sexual assault. Defendant accompanied the police to point out the locations of his crimes.

Defendant was charged with the purposeful or knowing murder of Schnaps, second-degree robbery, and second-degree burglary. The Middlesex County Prosecutor filed a Notice of Aggravating Factors. A jury convicted him and sentenced him to death. As previously mentioned, on direct appeal this Court reversed defendant's conviction and remanded for a new trial. Harvey I, supra, 121 N.J. at 414.

D. The Retrial

1. Guilt Phase

At the guilt phase of the retrial, investigating officers testified regarding the discovery of the bloody sneaker print, the empty Seiko-LaSalle watch box, the empty jewelry box, and the empty Olympus camera box -- all of which were admitted into evidence.

Philip Beesley, a forensic scientist employed by the New Jersey State Police, testified that, based on blood work done on control samples from both defendant and Schnaps, the stains found on the box spring and on the piece of cardboard were consistent with Harvey's blood, and not Schnaps's.

Dr. Marvin Shuster testified about the nature of the wounds suffered by Schnaps and the cause of her death. Theodore Mozer, a forensic scientist employed by the New Jersey State Police, testified that one of the hairs recovered from Schnaps's back did not belong to her. Mozer testified that the hair was consistent with a control hair taken from Harvey. Mozer also testified that he had examined two pairs of sneakers seized from Harvey's ex-wife's West Windsor apartment and the size 6 ½ "Pony" sneakers Harvey was wearing when he was arrested, and explained that Harvey's "Pony" sneakers were consistent with the sneaker impression at the scene. Although Harvey's sneakers "could" have left the bloody mark, Mozer could not definitively conclude that they had done so.

In support of the admission of the DNA evidence, the State presented two witnesses from Cellmark: Julie Cooper, a senior molecular biologist, and Dr. Charlotte Word, a microbiologist and supervisor of forensic casework. They testified that DNA tests conducted on the blood samples recovered at the crime scene were generally comparable to defendant's DNA.

Defendant did not testify. His guilt-phase case consisted of only two witnesses. First, a witness from Seiko testified that Seiko had made thousands of watches like the one seized from the trunk of defendant's car. Dr. Robert Shaler, Director of Forensic Biology for the Office of the Chief Medical Examiner for the City of New York, testified that he believed that the DNA tests were "scientifically indefensible."

After deliberating for three and one-half hours, the jury returned its verdict finding defendant guilty of purposeful-or-knowing murder, felony murder, first-degree robbery, and second-degree burglary.

2. Penalty Phase

The State relied exclusively on the evidence adduced at the guilt phase to support proof of three aggravating factors: the murder involved aggravated assault of the victim, N.J.S.A. 2C:11-3c(4)(c); the murder was committed to escape detection, N.J.S.A. 2C:11-3c(4)(f); and the murder was committed during the course of a robbery and burglary, N.J.S.A. 2C:11-3c(4)(g).

As a mitigating factor, defendant alleged the catch-all mitigating factor, "any other factor which is relevant to the defendant's character or record or to the circumstances of the defense," N.J.S.A. 2C:11-3c(5)(h) and submitted ten non-statutory factors to the jury. The ten factors are listed infra at ___ (slip op. at 40-41).

Professor Richard Moran, a criminologist specializing in the correlation between age and crime, testified that because of defendant's age, if sentenced to prison rather than death, defendant would be so old when he was eligible for parole that his chances of committing another violent crime would be minute. A forensic social worker testified about defendant's social history. Various family members testified that defendant was a caring father, who also comforted his developmentally-disabled brother. Defendant's family asked the jury not to sentence defendant to death. Defendant also exercised his right of allocution and asked that he be given thirty years so he could teach and communicate with his family.*fn2

Some jurors found some of the non-statutory mitigating factors. See infra at ___ (slip op. at 44). The jury returned a unanimous verdict that defendant had committed the murder for the purpose of avoiding apprehension, N.J.S.A. 2C:11-3c(4)(f), and in the course of a robbery and burglary, N.J.S.A. 2C:11-3c(4)(g). It did not find as an aggravating factor that the murder involved aggravated assault to the victim, N.J.S.A. 2C:11-3c(4)(c). The jury further found that the aggravating factors outweighed all of the mitigating factors and that each aggravating factor alone outweighed all of the mitigating factors. The trial court sentenced defendant to death.

Subsequently, the trial court sentenced defendant as a persistent offender on the non-capital counts of first-degree robbery and second-degree burglary. For those convictions, defendant received an aggregate sentence of life plus sixty-five years with a fifty-seven and one-half year parole disqualifier. Harvey II, supra, 151 N.J. at 146.

We affirmed defendant's convictions and death sentence. Id. at 233. The Court reserved decision with regard to defendant's disproportionality claim. Ibid.

On July 31, 1997, pursuant to Court orders, the Administrative Office of the Courts ("AOC") issued its revised statistical Chew/Cooper/Harvey Report (CCH Report). That report includes all death-eligible cases known to the AOC as of July 31, 1997. (Memorandum from Joseph J. Barraco, Esq., Acting Assistant Director, AOC Criminal Practice Division and Nina Rossi, Esq., Assistant Chief, Criminal Court Services, Criminal Practice Division, to Stephen W. Townsend, Clerk of the Supreme Court 1 (Dec. 3, 1997) (Barraco Memorandum) (on file with the AOC). As of that date, there were 401 death-eligible cases, of which 163 or forty-one percent, proceeded to a penalty trial. CCH Report tbl. 3. Of the 163 penalty-trial cases, fifty, or thirty-one percent, resulted in a death sentence. Id. at tbl. 2. The overall death-sentencing rate was, therefore, twelve percent (50/401). Id. at tbl. 1.

II.

PROPORTIONALITY REVIEW

In State v. Loftin, 157 N.J. 257, 265-277 (1999) (Loftin II), we reviewed the fundamental principles of proportionality review. The principal goal of proportionality review "is to determine whether a particular defendant's death sentence is disproportionate" when compared to the sentences of other defendants who are similarly situated. State v. DiFrisco, 142 N.J. 148, 160 (1995) (DiFrisco III); 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." State v. Martini, 139 N.J. 3, 20 (1995) (Martini II) (citing State v. Bey, 137 N.J. 334, 343 (1994) (Bey IV)); State v. Marshall, 130 N.J. 109, 131 (1992) (Marshall II), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 695 (1993). In conducting proportionality review, we seek "'to ensure that the death penalty is being administered in a rational, non-arbitrary and even handed manner, fairly and with reasonable consistency.'" Loftin II, 157 N.J. at 26 (quoting Marshall II, supra, 130 N.J. at 131).

"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." DiFrisco III, supra, 142 N.J. at 160 (citing Martini II, supra, 139 N.J. at 20). See Loftin II, supra, 157 N.J. at 322-23. Instead we often make comparisons to the overall death sentencing rates, see id. at 173, 181; Martini II, supra, 139 N.J. at 33; Bey IV, supra, 137 N.J. at 354; Marshall II, supra, 130 N.J. at 168; and to previous proportionality review cases, see DiFrisco III, supra, 142 N.J. at 181, 183; Martini II, supra, 139 N.J. at 34, 40-41, 45; Bey IV, supra, 137 N.J. at 353-54, 359.

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 126-27. Offense-oriented review focuses on 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)).

Conversely, procedural or offender-oriented review presumes that the death penalty is proportionate to the offense and focuses on the defendant, not the crime committed. 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 (additional internal quotations omitted).

Defendant bears the burden of proving that his death sentence is disproportionate. DiFrisco III, supra, 142 N.J. at 162; Bey IV, supra, 137 N.J. at 343. That burden is imposed on the defendant, rather than the State, because N.J.S.A. 2C:11-3e speaks in terms of proving that the sentence is disproportionate. DiFrisco III, supra, 142 N.J. at 162 (citing Bey IV, supra, 137 N.J. at 349).

A. The Universe of Cases

We first define the universe of cases to which defendant's case shall be compared. In 1992, the Legislature amended N.J.S.A. 2C:11-3e to limit the universe to those cases in which a death sentence has actually been imposed. P.L. 1992, c. 5, § 1. The Legislature did not state whether the amendment was intended to apply to pending appeals. In DiFrisco III, Bey IV, and Marshall II, we declined to apply that amendment to those appeals, because those defendants' appeals were pending before the Legislature enacted the amendment. Likewise, we decline to apply that amendment to this case. Defendant's death sentence was first imposed in 1986, six years before the amendment took effect. Following this Court's reversal of his first conviction and after his retrial, defendant was again sentenced to death in July 1997. The genesis of this proceeding was defendant's first conviction, which occurred long before the statute was amended. See DiFrisco III, supra, 142 N.J. at 163. Additionally, given our rejection of the disproportionality challenge, the amendment would not affect the outcome of this case.

The universe of cases comprises all death-eligible homicides committed since the enactment of the death penalty statute regardless of whether a death sentence was imposed. 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 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. We explained that 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). Similarly, 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. Loftin II, supra, 157 N.J. at 324.

Additionally, we continue to present the data both including and excluding defendant. Ibid. "'Using two sets of data, one including defendant's case and one excluding it, will give us the broadest picture of societal standards while alerting us to the bias produced by including defendant's case.'" DiFrisco III, supra, 142 N.J. at 165 (quoting Martini II, supra, 139 N.J. at 28). The universe does not, however, include the twenty-three cases that proceeded to the penalty phase despite not being death-eligible. Marshall II, supra, 130 N.J. at 138; CCH Report, tbls. 2, 3. The AOC coded all 401 cases in the universe in the CCH Report. We refer to that universe as the "full universe" or "death-eligible universe." For some statistics, the AOC used a smaller universe of 163 death-eligible cases that proceeded to the penalty phase of a capital trial. We refer to that truncated universe as the "penalty-trial universe."

B. Method of Classifying Cases

Once the universe of comparison cases is established, we must sort them in a database. As we have done in Loftin II, supra, 157 N.J. at 323; DiFrisco III, supra, 142 N.J. at 163-64; Bey IV, supra, 137 N.J. at 345; and Marshall II, supra, 130 N.J. at 141-42, 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. Loftin II, supra, 157 N.J. at 323; DiFrisco III, supra, 142 N.J. at 164; 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." Loftin II, supra, 157 N.J. at 323 (quoting DiFrisco III, supra, 132 N.J. at 164); see also 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." DiFrisco III, supra, 142 N.J. at 164; Martini II, supra, 139 N.J. at 24; Bey IV, supra, 137 N.J. at 345.

III.

COMPARISON OF CASES

The universe of cases that we rely on are those contained in the CCH Report. We adhere to our prior criteria for coding those cases as either death-sentenced or life-sentenced. Also, we group those cases according to their comparative levels of blameworthiness. Loftin II, supra, 157 N.J. 324 (quoting Martini II, supra, 139 N.J. at 28). Further, we measure blameworthiness by relying on statutory mitigating and aggravating factors "as well as non-statutory factors based on 'objectively verified measures of blameworthiness.'" Bey IV, supra, 137 N.J. at 350 (quoting Marshall II, supra, 130 N.J. at 352); DiFrisco III, supra, 142 N.J. at 164.

We use two methods to evaluate a defendant's blameworthiness:

"frequency analysis and precedent-seeking review. Through both, we determine whether, compared to similar cases, a defendant's death sentence is disproportionate. DiFrisco III, supra, 142 N.J. at 166; Martini II, supra, 139 N.J. at 28; Marshall II, supra, 130 N.J. at 148."

As we explained in DiFrisco III, supra, 142 N.J. at 166:

"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. We compare defendant's case to factually similar cases to discern whether defendant is deathworthy vis-a-vis other similarly situated defendants. We then compare the results of the two analysis to determine whether imposition of the death sentence in this instance is disproportionate."

We continue to emphasize, however, that "[p]roportionality review seeks to determine only whether a particular death sentence is aberrational, not whether it compares perfectly with other sentences." DiFrisco III, supra, 142 N.J. at 166 (quoting Bey IV, supra, 137 N.J. at 352) (citing Marshall II, supra, 120 N.J. at 131)).

A. Adjustments in Comparison Group

The AOC maintains the database on which we base our proportionality review universe. It breaks the list of death-eligible defendants into various categories and subcategories. See CCH Report, tbl. 7. There are thirteen basic categories, each of which contains two to seven subcategories.*fn3

As we have done previously, "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 subcategory." Loftin II, supra, 157 N.J. at 327 (quoting DiFrisco III, supra, 142 N.J. at 167 (citations omitted)). The AOC has placed defendant in category E -- designated "Robbery without A-D." That means defendant's case had only one victim who was not a public servant and who was not sexually assaulted and that defendant had no prior murder conviction. The AOC assigned defendant's case to subcategory 1 in category E, designated "residential forced entry with particular violence/terror." The AOC has identified 126 death-eligible cases in the E category, and 22 cases in the E-1 subcategory.*fn4 Two of the cases in the E-1 category represent defendant's initial death sentence and subsequent death sentence after reversal of the first.

The State has proposed no adjustment to the AOC's classification of defendant's case. Defendant, however, has proposed various adjustments to the AOC's categorization, suggesting that numerous cases should be added to defendant's comparison group. In addition to the E-1 cases, defendant seeks to compare his cases to twenty-four other cases he describes as factually similar. Specifically, defendant seeks to adjust the universe of comparable cases by including in it defendants in three category A cases (multiple victims), two category B cases (prior murders), eleven C-1 cases (sexual assault with particular violence/terror), and two C-2 cases (involving a sexual assault with one or more additional statutory aggravating circumstances). In DiFrisco III, supra, 142 N.J. at 169, the Court refused to compare the defendant's case to cases in higher blameworthiness categories. We likewise refuse to compare defendant's case to cases in higher blameworthiness categories. Moreover, consistent with this Court's principle of comparing only similar cases, the cases in defendant's suggested comparison group involving sexual assault murders should not be included. Cases of that kind are so dissimilar, both factually and in their levels of blameworthiness, "that they do not offer any insight into the proportionality of defendant's sentencing." Martini II, supra, 139 N.J. at 79.

Defendant also seeks to include six cases in the E-3 category (robbery, with forced entry, but with no particular violence/terror). One case in category E-2 (robbery, with no forced residential entry but with particular violence/terror); and one case in category G-3 (burglary, with no residential forced entry and no particular violence/terror).*fn5 Of those eight cases, four proceeded to the penalty phase, but none resulted in a death sentence. A comparison of those eight cases supports the Conclusion that the E-1 category is the proper comparison group for defendant and that his death sentence is not disproportionate.

The Dissent asserts that our decision to limit defendant's comparison group to subcategory E-1 cases rather than to the entire E category is far too restrictive and represents a serious departure from past practices. Post at ___ (slip op. at ___). In prior cases, in applying the salient-factors test and precedent-seeking approach we have used as the comparison group an entire composite category. However, in those cases the subcategory was too small to be statistically productive and the total cases in the chosen category consisted of a much smaller number of cases than the 126 cases in the E category. In Chew II, supra, ___ N.J. at ___ (slip op. at 22), for example, we categorized Chew as a pecuniary-motive killer, other pecuniary advantage subcategory I-3. Because only one other defendant remained in that subcategory, we determined that any statistical analysis that consisted only of I-3 subcategory cases would be unproductive. Id. at 23. Accordingly, we compared Chew with the entire group of pecuniary-motive killers that consisted only of sixteen eligible cases. In DiFrisco III, supra, 142 N.J. at 174, where the defendant had also been placed in the pecuniary-motive, contract-killer subcategory, we compared him to the entire category of pecuniary-motive murderers to be able to have a productive statistical analysis. At the time of the DiFrisco proportionality review, the entire pecuniary motive category consisted of only fourteen eligible I category cases. Id. at 167.

In Loftin II, supra, 157 N.J. at 321, we found that the defendant's "essential attribute" was his prior murder conviction. However, because of the "exceedingly small number of cases" in the B-1 subcategory, we compared Loftin's case to all death-eligible cases in the B or prior murder category. Id. at 327. There were only sixteen eligible cases in category B.

Here, the twenty-two cases in the E-1 subcategory provide a sufficient basis for both the salient-factors analysis and precedent-seeking review. Moreover, a comparison of all 126 cases in the E category is impractical and would make proportionality review unmanageable. Such a review is also unnecessary. The cases that defendant proposes in the E-2, E-3 and G-3 subcategories are not factually similar to defendant's case.

Defendant was forty-four at the time of Schnaps' murder, with an extensive prior record. At the time of the murder, he was not under the influence of any emotional disturbance nor was his capacity to appreciate the wrongfulness of his conduct impaired as a result of a mental disease or defect. Defendant is not distinguished from the E-2, E-3 and G-3 defendants because of differences in the brutality of their crimes, all of which were horrendous, but by the evidence those defendants presented of mitigating factors. Several presented evidence of either mental disease, defect or emotional disturbance. Many also were much younger than defendant and had no significant prior criminal records.

Of the eight cases, only Bushy and Huff, like Harvey, were charged with two aggravating factors. Busby, like Harvey, was charged with aggravating factors, c(4)(g), contemporaneous felony and c(4)(f), seeking to escape detention. However, the jury found that Busby, who attempted suicide after the murder, was under the influence of extreme mental or emotional disturbance and that his capacity to appreciate the wrongfulness of his act was significantly impaired because of a mental disease or defect, or intoxication. Huff, who was twenty-three at the time of the murder, was charged with both c(4)(c), causing murder by extreme suffering and c(4)(g), contemporaneous felony. However, Huff's jury after hearing psychiatric testimony that Huff had an antisocial disorder, an antisocial personality and mentally was still an adolescent, found that his capacity to appreciate the wrongfulness of his conduct was significantly impaired as a result of a mental disease or defect, or intoxication.

In Busby and Huff, the prosecutor sought the death penalty, but the jury could not agree on a death sentence. Unlike Harvey where the jury found only catch-all mitigating factor, c(5)(h), in Busby and Huff, the jury found in addition to that factor, other mitigating factors. Accordingly, their cases are not factually similar to Harvey's and it is understandable why Harvey was the only one of the three sentenced to death.

There also were mitigating factors that distinguished defendant's case from cases of other defendants. Age was a mitigating factor for Dollard, Wolfe and Hart who were all twenty-two years or younger when they committed the murders for which they were charged. Wolfe, who also showed remorse, and Dollard had no significant prior records and Suarez had no prior record. The jury also found that Wolfe and Hart suffered from a mental disease, defect or intoxication that impaired their capacity to appreciate the wrongfulness of their conduct.

In sum, unlike many of the life-sentenced E-2, E-3, and G-3 defendants, Harvey was not mentally or emotionally disturbed when he murdered his victims, nor was he a young man, without a significant prior criminal record. Because of those differences, such cases provide little insight into the propriety of the jury's decision in this case, and are inapplicable to our proportionality review. We therefore refuse defendant's request to expand his comparison cases. 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." DiFrisco III, supra, 142 N.J. at 170-71 (quoting Martini II, supra, 139 N.J. at 31 (citing Bey IV, supra, 137 N.J. at 352, 362)). We find that defendant's comparison group consists of the twenty-two cases in subcategory E-1. .

B. The Frequency Approach

"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.'" DiFrisco III, supra, 142 N.J. at 171 (quoting 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. It is divided into two statistical tests to gauge a defendant's relative criminal culpability: the salient-factors test, and the index-of-outcomes test.

In Loftin II, supra, 157 N.J. at 266, we appointed Appellate Division Judge David S. Baime, as a Special Master, to conduct an extensive review and evaluation of the proportionate methodology that we have used for the last six years. We directed the Special Master to consider the following: (1) scope of the proportionality review universe of cases; (2) accuracy of the AOC's data-coding techniques; (3) statistical reliability of frequency review results given the small size of the data base; (4) strengths and weaknesses of the index-of-outcomes test; (5) systemic proportionality review (specifically, the development of parsimonious models to measure the possible role of race discrimination in prosecuting and sentencing decisions); (6) possibility of reduction in the number of case classifications in salient-factors test; (7) possible appointment of a panel of Judges to perform periodic assessments of penalty-trial outcomes; and (8) maintenance of proportionality review as a separate proceeding. Loftin II, supra, 157 N.J. at 454-56.

On April 28, 1999, the Special Master released his report, The Honorable David S. Baime, Report to the New Jersey Supreme Court:

"Proportionality Review Project at 1-4 (Apr. 28, 1999) (Special Master Report). In that report, the Special Master determined that several aspects of our methodology are faulty and require revision. Special Master Report at 6-7. the Court scheduled oral argument on the Special Master's Report on June 7, 1999. Pending the Court's decision in that proceeding, we have determined that we will continue to analyze defendant's case according to the methodologies and procedures previously utilized, except that we no longer conduct the numerical-preponderance test previously used as part of our frequency approach."

Although the AOC has added thirty-two cases to the database since the Loftin Report, and the addition of cases "has had a positive impact on the stability of the models, [the AOC's] view is that the culpability estimate which purports to give a 'predicted probability of death sentence' is often still too soft, and little substantive reliance should be given to this statistic in the Chew, Cooper and Harvey cases." Barraco Memorandum at 4. Consequently, because frequency analysis is statistically based, and because the small sample sizes may undermine statistical reliability, we remain concerned about the statistical reliability of frequency analysis, and continue to place greater emphasis on the results of the precedent-seeking review. Loftin II, supra, at 157, 291-97; DiFrisco III, supra, 142 N.J. at 171; Martini II, supra, 139 N.J. at 29; Bey IV, supra, 137 N.J. at 351.

1. The Salient-Factors Test

The salient-factors test enables us to compare defendant's sentence to sentences in factually similar cases to measure the relative frequency of defendant's sentence. DiFrisco III, supra, 142 N.J. 172; Martini II, supra, 138 N.J. at 33. We first base comparability on the statutory aggravating factors, and then subdivide the group "'according to circumstances that serve either to aggravate or to mitigate the blameworthiness of the defendants in those cases.'" Loftin II, supra, 157 N.J. at 328 (quoting Martini II, supra, 139 N.J. at 33). Because the salient-factors test compares sentences in cases that are factually similar, we find it the most persuasive of the frequency tests. Ibid.; see also DiFrisco III, supra, 142 N.J. at 173; Martini II, supra, 139 N.J. at 33; Bey IV, supra, 137 N.J. at 353; Marshall II, supra, 130 N.J. at 168. Harvey has been assigned to category E, designated "robbery killer." Harvey has been further classified in subcategory 1 in category E, designated "residential forced entry with particular violence or terror." CCH Report, tbl. 7. Of the twenty-two death-eligible cases in that group, eight proceeded to the penalty phase. Including defendant's cases, four of those penalty trial cases resulted in death sentences. Thus, the death-sentencing rate for robbery killers is eighteen percent and for those advancing to the penalty trial, it is fifty percent. The overall death-sentencing rate for the death eligible universe is twelve percent and the rate for those in the penalty-trial universe is forty-one percent. Therefore, the figures for E-1 defendants are higher than the overall death-sentencing rates, leading to the Conclusion that society views those who commit particular violence or terror in a residential forced entry as significantly blameworthy. See DiFrisco III, supra, 142 N.J. at 173 (stating that higher sentencing rates for one category indicates society views those within that category as "significantly blameworthy").

Removing defendant's cases from the group lowers the rates somewhat, but still does not indicate that defendant's sentence is disproportionate. Without defendant's cases, the death sentencing rate for E-1 defendants is ten percent, and for those advancing to the penalty phase it is thirty-three percent. That ten percent figure is slightly lower than the general twelve percent rate for all death-eligible cases, but the thirty-three percent rate is slightly higher than the overall thirty-one percent rate for penalty trial cases. Those figures do not support defendant's claim that his sentence is disproportionate.

The following table summarizes the outcome of the salient-factors test with respect to the E-1 category:

Salient-Factors Test: "E-1" Subcategory

Death- Death- Proportion of

Sentencing Sentencing Cases

Rate at Rate for All Advancing to

Penalty Death- Penalty Trial

Trial Eligible

Cases

Inc. D. .50 (4/8) .18 (4/22) .36 (8/22)

Exc. D. .33 (2/6) .10 (2/20) .30 (6/20)

[CCH Report, tbl. 7.]

The entire E robbery category can be broken down as follows:

Salient-Factors Test: "E" Category

Death- Death- Proportion of

Sentencing Sentencing Cases

Rate at Rate for All Advancing to

Penalty Death- Penalty Trial

Trial Eligible

Cases

Inc. D. .29 (10/35) .8 (10/126) .28 (35/126)

Exc. D. .24 (8/33) .6 (8/124) .27 (33/124)

[CCH Report, tbl. 7.]

Those numbers are somewhat below the overall rates for the death-eligible universe and the penalty trial universe. We do not, however, believe that such a deviation shows that robbery killings are viewed by society as less blameworthy. The mere fact that a statistical disparity exists does not establish disproportionality. Bey IV, supra, 137 N.J. at 352. "A low predicted value does not mean, ipso facto, that the imposition of the death penalty is disproportionate; it simply means we must more carefuly scrutinize the other aspects of proportionality review." DiFrisco III, supra, 142 N.J. at 172. The death-sentencing rate for E-1 killers is higher than the rates for all robbery killers and is higher than the overall death sentencing rate. That signifies that society views those robbers who commit a residential forced entry with significant violence as particularly blameworthy. Also, notably, defendant does not argue that the salient-factors test reveals that his sentence is disproportionate.

2. The Index-of-Outcomes Test

The index-of-outcome test is the most statistically complex of the two frequency-analysis tests. Rather than merely calculating ratios, this test utilizes a multiple-regression analysis. The test seeks "to identify those characteristics that establish a degree of a defendant's blameworthiness." DiFrisco III, supra, 142 N.J. at 178. Further, the test "organize[s] the cases 'according to statistically-relevant measures of culpability, such as the infliction of severe pain or mental suffering on the victim, a contemporaneous sexual assault or robbery, and the commission of a prior murder.'" Ibid. (quoting Bey IV, supra, 137 N.J. at 362).

For each multiple regression the AOC has performed, each defendant receives a culpability score, which is based on the predicted probability of receiving a death sentence. Id. at 179. The culpability score ranges from .00 to .99. The scores are evenly divided into five culpability levels. Cases with culpability level one are the least likely to receive a death sentence, and cases with a culpability level of five are most likely to receive the death penalty.

Four multiple regressions encompass the index-of-outcomes test. Id. at 179-82. The first regression considers both statutory and non-statutory factors in the penalty-trial universe. Id. at 179-80. The second appraises the same factors but utilizes the full universe. Id. at 180-81. Statutory aggravating and mitigating factors are the only variables in the other regressions. Id. at 181-82. Like the first two regressions, the third and fourth regressions employ the penalty-trial universe and the full universe, respectively. Ibid.

The results of the four regressions diverge considerably. This drawback of the index-of-outcomes test has revealed itself in each of this Court's proportionality review precedents. See DiFrisco III, supra, 142 N.J. at 211 (reporting culpability scores ranging from eleven percent to seventy-four percent); Martini II, supra, 139 N.J. at 43 (reporting culpability scores ranging from five percent to eighty-eight percent); Bey IV, supra, 137 N.J. at 362-64 (reporting culpability scores from the Bey data ranging from twenty-five percent to seventy-six percent and culpability scores from the Martini data ranging from thirty-three percent to eighty-one percent); Marshall II, supra, 130 N.J. at 173 (reporting culpability scores ranging from seventeen percent to fifty-two percent). In this case, defendant's culpability scores range from thirteen percent, which places him in culpability level one, to forty-three percent, which places him in culpability level three.

The following chart shows all the relevant figures for the four index-of-outcomes tests:

Statutory & Non Statutory Statutory Factors

Factors Only

Penalty Death Penalty Death

Trial Eligible Trial Eligible

Predicted .35 .13 .43 .19

Probability

of Death

Sentence

Range .11 to .68 .05 to .32 .23 to .65 .08 to .38

Culpability 2 1 3 1

Level

Death .26 .05 .45 .05

Sentencing

Rate

[CCH Report.]

In the first regression, which considers both statutory and non-statutory factors for cases in the penalty-trial universe, defendant's predicted probability of receiving a death sentence is thirty-five percent. The probability range is eleven percent to sixty-eight percent. In other words, we are ninety-five percent certain that a defendant with characteristics similar to Harvey would have a predicted probability of receiving a death sentence of between eleven percent to sixty-eight percent. Defendant's culpability score places him in culpability level 2. Defendants in that culpability level have received a death sentence twenty-six percent of the time.

Defendant's results in that regression are significantly lower than those in Martini II, supra, 139 N.J. at 43 (eighty-eight percent predicted probability), DiFrisco III, supra, 142 N.J. at 180 (seventy-four percent predicted probability), Bey IV, supra, 137 N.J. at 362-63 (eighty-one percent predicted probability in Martini Report and seventy-six percent probability in Bey Report), and Marshall II, supra, 130 N.J. at 173 (fifty percent predicted probability). On the other hand, we have upheld a death sentence with a culpability score significantly lower than defendant's. See Loftin II, supra, 157 N.J. at 331 (fourteen percent predicted probability).

When the same variables are considered in the full universe, defendant's culpability score falls to thirteen percent and the confidence internal ranges from five percent to thirty-two percent. Accordingly, defendant's case occupies culpability level one, at which five percent of the defendants have been sentenced to death. Although those results are also low, they are within a range that the Court has previously held not disproportionate. See DiFrisco III, supra, 142 N.J. at 180-81 (eleven percent predicted probability of death); Martini II, supra, 139 N.J. at 43 (five percent predicted probability); Marshall II, supra, 130 N.J. at 173 (seventeen percent predicted probability).

The third regression of the index-of-outcomes test utilizes only statutory aggravating and mitigating factors and is run with data from the penalty-trial universe. In that regression, the predicted probability of receiving a death sentence is forty-three percent, and the confidence interval ranges from twenty-three percent to sixty-five percent. That places defendant in culpability level three. At that culpability level, defendants are sentenced to death forty-five percent of the time. When a regression is run with data from the full universe and with the same variables as in the prior regression, defendant's predicted probability of death is nineteen percent. The confidence interval spans from eight percent to thirty-eight percent. Defendant is in culpability level one, in which, as noted above, defendants are sentenced to death five percent of the time.

Defendant argues that the index-of-outcomes frequencies are so low that they prove that defendant's sentence is disproportionate. We disagree. Although defendant's numbers are low in some of the scenarios, in the other scenarios they are within the range that the Court has previously held to be not disproportionate. Moreover, even in the scenarios where defendant's score is lowest, defendant's numbers are not the lowest score of a defendant whose claim of disproportionality we have denied. Accordingly, we are satisfied that the index-of-outcomes test indicates no disproportionality.

3. Frequency Approach Conclusion

We are satisfied that defendant's "results produce no showing of randomness or aberration. Defendant has failed to offer reliable evidence of disproportionality, and we do not find that for cases such as his a sentence other than death is generally imposed." DiFrisco III, supra, 142 N.J. at 183 (quoting Martini II, supra, 139 N.J. at 46) (citing Bey IV, supra, 137 N.J. at 365; Marshall II, supra, 130 N.J. at 174)).

Although in some of the scenarios defendant's predicted probability of death is low, we do not believe that evidences that his sentence is an aberration. We remain wary of the frequency approach because of its noted defects, and therefore continue to place greater emphasis on the precedent-seeking approach. See Loftin II, supra, 157 N.J. at 334-35; DiFrisco, supra, 142 N.J. at 182-83.

C. The Precedent-Seeking Approach

The precedent-seeking approach is the second component of proportionality review. Loftin II, supra, 157 N.J. at 335; DiFrisco III, supra, 142 N.J. at 183; Martini II, supra, 139 N.J. at 46. "Here we engage in traditional case-by-case review in which we compare similar death-eligible cases, considering the cases individually." DiFrisco III, supra, 142 N.J. at 183; Bey IV, supra, 137 N.J. at 366. This approach seeks to determine whether defendant's death sentence is excessive in comparison to other similar life-sentenced and death-sentenced defendants. Id. at 184.

Precedent-seeking reviews "complement frequency analysis." Ibid. As we have noted, "[T]he lower the overall rates and the reliability of our frequency analysis, the greater the need for precedent-seeking review." Id. at 183-84. In each of our prior proportionality review cases, we have consistently placed greater reliance on precedent-seeking review than on frequency review. Id. at 184; Martini II, supra, 139 N.J. at 28-29; Bey IV, supra, 137 N.J. at 350; Marshall II, supra, 130 N.J. at 159. We continue to do so. The Special Master has recommended methods by which to select a representative number of cases within the group of similar cases for consideration and comparison to defendant's case. Special Master Report at 68-70. Although some of the Special Master's comments are valid, until the Court has a hearing and issues its opinion regarding the Special Master's Report, we will continue to analyze defendant's case according to the methodologies and procedures previously utilized." Supra at ___ (slip op. at 26).

Precedent-seeking review considers statutory and non-statutory aggravating and mitigating factors that are "'rooted in traditional sentencing guidelines.'" DiFrisco III, supra, 142 N.J. at 184-85 (quoting Marshall II, supra, 130 N.J. at 159 (citing N.J.S.A. 2C:44-1)). That approach divides criminal culpability into three categories:

"defendant's moral blameworthiness, the degree of victimization, and defendant's character." Id. at 185.

We begin application of the precedent-seeking approach by identifying the cases that we will use. They consist of those cases categorized by the AOC as E-1. CHC Report tbl. 7. Including Harvey's two death sentences, the total number of cases is twenty-two. Ibid. By comparing Harvey to those other nineteen defendants in the traditional manner of review, we seek to determine the existence of any aberration in defendant's sentencing. Bey IV, supra, 137 N.J. at 369. The goal is to ensure that defendant has not been unfairly singled out for capital punishment. However, because each case involves different facts, defendants, juries, and legal issues, to be proportionate even closely-similar cases do not require identical verdicts. DiFrisco III, supra, 142 N.J. at 186; Bey IV, supra, 137 N.J. at 369.

The components by which we measure defendant's culpability are as follows:

"1. Defendant's moral blameworthiness "a. Motive "b. Premeditation "c. Justification or excuse "d. Evidence of mental disease, defect or disturbance "e. Knowledge of victim's helplessness "f. 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." Marshall II, supra, 130 N.J. at 155; accord DiFrisco III, supra, 142 N.J. at 203.

1. Defendant's Case

Late in the evening of June 16, 1985, or in the early morning hours of June 17, 1985, defendant broke into the apartment of Irene Schnaps, a woman whom he did not know, and brutally murdered her. The scene of the attack, Schnaps' bedroom, was left in disarray. Blood was throughout the room. Defendant struck Irene Schnaps fifteen times on the head with such force that her skull was fractured open. Some of the blows lacerated her brain. She suffered numerous lacerations to her head, as well as bruises and contusions to her face, a broken jaw, several broken teeth and pressure marks on her neck. Some of the blows were delivered from the front, but most were from behind. The murder weapon was a blunt instrument: a hammer, which left curving wounds; and an item, such as a tire iron, two-by-four, or a dull axe, which left linear wounds. After he murdered Irene Schnaps, defendant washed the blood off the front of her body and changed the sheets on the bed in an apparent attempt to avoid detection. He then left her lying naked on the floor.

At the penalty phase in 1994, the State relied on the relevant guilt phase evidence to prove the c(4)(c), c(4)(g), and c(4)(f) aggravating factors. Defendant alleged one mitigating factor, the catch-all factor under c(5)(h). Within that factor, he itemized the following ten, non-statutory factors:

"l. defendant's age at the time of the offense; "2. defendant had been traumatized at an early age when he witnessed the tragic death of his older sister; "3. defendant was uprooted from his home and sent to live with grandparents who physically and verbally abused him and resented his presence; "4. defendant suffered feelings of abandonment when his parents did not take him with them as promised, yet continued to have other children; "5. defendant was exposed to domestic violence in the home of his grandparents; "6. defendant was exposed to domestic violence in the home of his parents; "7. defendant is a caring and loving father; "8. defendant's continuing relationship with his children and the financial contribution that he still makes to them; "9. defendant's relationship with his mentally disabled daughter; "10. any other factor that relates to defendant's childhood or family background."

At the penalty phase, defendant focused on his childhood, his family background, and his role as a parent. Professor Moran, a criminologist specializing in the correlation between age and crime, testified that if defendant were sentenced to prison rather than death he would not be eligible for parole prior to age sixty-four, and by that time defendant would be of an age group less likely to commit violent crime.

Carmetta Alabarus, a forensic social worker, testified about defendant's social history. Albarus had interviewed defendant, as well as some family members. Her testimony focused on the years from defendant's early childhood to adolescence, and on his marriage up to the separation from his wife. Defendant was one of twelve children; defendant and his wife Joyce had four children together. Defendant and Joyce separated, and she later bore a child with another man.

Albarus recounted for the jury how, at age four, defendant lit a match to generate heat on kerosene-laden coal in order to keep himself and his five-year-old sister, Mary, warm. Unfortunately, Mary got severely burned when some kerosene splashed on her and ignited. She died a few days later from her burns. Albarus also recounted how defendant was left to live with his grandparents in Georgia in 1956 when his parents left the south to look for work in the north. Albarus said defendant's grandparents were resentful about having to take care of so many children. Albarus further testified that defendant's grandfather was abusive to his wife and to defendant. Defendant eventually ran away and lived with an uncle before reuniting with his parents in New Jersey. Also, Albarus said it was hurtful to defendant that his parents said there was no room for him.

Once defendant was reunited with his parents, Albarus stated that defendant acted as a "big brother" to his younger siblings. However, his father was abusive toward defendant's mother and fathered children outside the marriage. Defendant was devoted to his mother, and it pained him to see her suffer at the hands of his father.

Albarus also characterized defendant as sharing a "special relationship" with his brother James, who had developed signs of being developmentally disabled. She added that defendant showed sensibility toward his daughter Tanya, who is developmentally disabled.

Albarus spoke with defendant's wife, who told her that defendant was "very responsible" as a father and husband at the beginning of their marriage. Even while incarcerated, Albarus said defendant maintained a "close relationship" with his children, sending them money, writing to them and sending them cards. Defendant treats Taliah, Joyce's child with another man, as his own.

In addition to the professor and the social historian, members of defendant's family, his father, his brother James, his sister-in-law, his wife, and Taliah testified.

Defendant also exercised his right of allocution and made the following, terse statement to the jury: "I'm going to ask you to give me thirty years so I can stay around about [sic] do the best I can, teaching my family and communicate with them. Thank you."

On rebuttal, the State produced evidence that in 1994 defendant had no visitors at the jail. On surrebuttal, defendant's wife testified that she did not bring the children to the jail pursuant to defendant's wishes.

Each juror deliberated on the non-statutory mitigating factors submitted by defendant. No juror found defendant's age, exposure to domestic violence in his grandparent's home, exposure to domestic violence in his parent's home, defendant's relationship with his brother James and his daughter Taliah, or any other factor relating to defendant's childhood or background to be in mitigation. However, in mitigation, jurors found the following facts: six jurors -- that defendant was traumatized when he witnessed the death of his older sister; one juror -- that defendant was sent to live with grandparents who physically and verbally abused him; four jurors -- that defendant suffered feelings of abandonment and that defendant was a loving father; and two jurors -- defendant's relationship with his children. The jurors, however, unanimously found aggravating factors c(4)(f), escape detection, and c(4)(g), contemporaneous felony, to be present and that they outweighed the mitigating factors beyond a reasonable doubt. They sentenced defendant to death as a result.

2. Analysis of Defendant's Moral Blameworthiness.

An analysis of defendant's moral blameworthiness reveals that he is indeed quite blameworthy. He broke into someone's home at night to rob. Clearly, defendant could not have been surprised to find the occupant at home. He then brutally murdered the occupant so he could escape apprehension. Irene Schnaps, a helpless victim, was sleeping in her bedroom. As the medical examiner opined, she was hit mostly from behind. She was attacked with blunt instruments and struck so hard that her skull was fractured, her brain lacerated, and her jaw broken. She was beaten about the face and sustained many bruises in a brutal murder.

There is no justification or excuse for the murder. Unlike many of the other E-1 defendants, there is no evidence that defendant suffered from a mental disease, defect or disturbance.With respect to age and maturity, defendant's age was presented as a non-statutory mitigating factor, and all twelve jurors rejected it. Unlike most of the defendants in E-1, defendant was over forty years old at the time of the murder, and he can be categorized only as a mature, full-grown man.

Although defendant may not have known specifically that Irene had family and friends, we have previously recognized that "[w]hile a defendant might be unaware of the specific characteristics of his victims or of the particular survivors that the victim will leave behind, it is completely foreseeable that the killing will eliminate a unique person and destroy a web of familial relationships." State v. Muhammad, 145 N.J. 23, 46 (1996). Moreover, defendant must have realized that Irene had family and friends because there were personal photographs in her apartment and he stole a man's Seiko LaSalle watch. Unquestionably, defendant entered the privacy of Irene Schnaps's bedroom to rob her. He then killed her to avoid detection, and had the cold, calculating presence of mind to wash her body and change the sheets to further avoid detection.

3. Victimization

Victimization consists of "the extent of mutilation of the victim and injury to surviving victims." Bey IV, supra, 137 N.J. at 366. In this case, Irene Schnaps was struck repeatedly in the head. Although the medical examiner opined that Schnaps was rendered unconscious, she was conscious when defendant began his brutal assault upon her. Even when the victim is not aware of impending death, as was the case in DiFrisco III, this Court has observed that "at the end of the day there is ...


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