Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Cooper

June 03, 1999

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID COOPER, DEFENDANT-APPELLANT.



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

Argued September 15, 1998

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

In May 1995, defendant David Cooper was convicted by a Monmouth County jury of the purposeful or knowing murder, by his own conduct, of L.G., a six-year-old girl. The jury also convicted him of the related charges of kidnapping, two counts of aggravated sexual assault, and felony murder. On the capital murder conviction, the jury sentenced defendant to death. For the non-capital convictions, the trial court sentenced defendant on the kidnapping count to fifty years' imprisonment with twenty-five years of parole ineligibility, and on the aggravated sexual assault convictions to twenty-five years' imprisonment with ten years of parole ineligibility, both sentences to be served consecutively to the sentence imposed for purposeful or knowing murder. The felony-murder conviction was merged with the conviction for purposeful or knowing murder.

This Court affirmed defendant's conviction for capital murder and his death sentence. State v. Cooper, 151 N.J. 325, 406-07 (1997). We also affirmed his conviction and sentence on the kidnapping charge. We vacated defendant's conviction and sentence for aggravated sexual assault and held that that conviction must merge with the kidnapping conviction. Id. at 406.

Defendant requested proportionality review for his death sentence. See N.J.S.A. 2C:11-3e. We granted that request and now find no disproportionality in defendant's death sentence.

I.

The detailed facts are described in Cooper, supra, 151 N.J. at 341-47, and we repeat here only those facts that are material to our proportionality review.

On July 18, 1993, L.G., the six-year-old victim, her two sisters, and her mother, R.G., were at the Asbury Park home of R.G.'s sister-in-law, M.W. R.G. sat on the front porch of the house with her youngest daughter while M.W. was at the supermarket. The victim, her sister, and M.W.'s daughter played in the front yard and eventually moved to the fenced-in back yard.

While the children were in the backyard, defendant lured L.G. away from the other children, lifted her over the fence, and walked away with her. The other children informed R.G. that defendant had taken L.G. R.G. and M.W., who by now had returned from the supermarket, searched for and called out to L.G. Neighbors joined in the search. Their efforts proved to be fruitless.

The Asbury Park Police Department was notified of L.G.'s disappearance, and police officers commenced a search for L.G. A few hours after her abduction, police officers found L.G.'s body under the porch of an abandoned home in Asbury Park. Defendant had been living under that porch. L.G. was found on her back lying on a mattress; her shirt was pulled up, her panties were at her ankles, and a pair of boxer shorts covered her face. Her vaginal area was exposed and bloodied.

Next to L.G.'s body the police found clothing and a bloodstained paper towel. Nearby, they recovered defendant's gym bag that contained his wallet, and inside the wallet was defendant's social security card. Other documents identifying defendant were found in the area, as well as a paper bag and beer bottle that contained defendant's latent fingerprints.

Police apprehended defendant the next day and took him to police headquarters for interrogation. Defendant waived his Miranda rights but initially denied any involvement in L.G.'s death. After being confronted with the incriminatory evidence already gathered and informed that a court order would be sought to obtain additional evidence from his person, defendant acknowledged responsibility for L.G.'s death.

Defendant stated, however, that L.G.'s death was accidental and that he was drunk when he strangled her. According to defendant, he saw L.G. playing in the backyard of M.W.'s house, lifted her over the fence, and led her to the area under the porch of the abandoned house. Using a condom, he forcibly engaged in sexual intercourse with L.G., and then strangled her, leaving her body underneath the porch. He discarded the condom in a nearby field. Defendant then signed a written statement acknowledging that while lying on top of L.G., with his hands on her neck, he penetrated her vaginally causing her to bleed and resulting in blood stains on his clothes.

An autopsy demonstrated that L.G. died of asphyxiation. The medical examiner concluded that she had been strangled for between four and six minutes. The autopsy also revealed injuries to L.G.'s vagina, cervix, and anal canal.

Substantially on the basis of those facts, a Monmouth County jury convicted defendant of kidnapping, aggravated sexual assault, felony murder, and capital murder.

At the ensuing penalty phase before the same jury, the State relied on three aggravating factors: (1) that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind, N.J.S.A. 2C:11-3c(4)(c); (2) that the murder occurred during the commission of an aggravated sexual assault or kidnapping, N.J.S.A. 2C:11-3c(4)(g); and (3) that the purpose of the murder was to escape detection or apprehension, N.J.S.A. 2C:11-3c(4)(f).

Defendant presented substantial mitigating evidence focusing on his tragic childhood and resulting emotional disturbance. Pursuant to the "catch-all" mitigating factor, defendant submitted evidence of eighteen mitigating circumstances relating primarily to his flawed upbringing and its effect on his emotional development and behavior.

Defendant's mitigating evidence demonstrated that his sixteen-year-old mother drank heavily during her pregnancy. Defendant was born with heart and respiratory ailments, and he spent the fifty-four days following his birth in the hospital. During that period his parents allegedly visited him only three times. Because of infectious and other congenital conditions, defendant was hospitalized on nine other occasions before his first birthday and required heart surgery when he was two. Defendant's father was addicted to alcohol and drugs and was a diagnosed schizophrenic. He often abused defendant's mother and once broke her arm in defendant's presence. When defendant was two years old, his father was imprisoned for raping two of defendant's older cousins.

Defendant's mother, also an alcoholic, apparently was incapable of providing defendant with normal maternal affection. She disclaimed her maternity, referring to defendant as the child of his paternal grandmother. She was violent and abusive to defendant, on one occasion dangling him out of an apartment window.

When defendant was eight years old, he told his social worker that he wanted to be removed from his home. When he was nine years old, his mother died in an automobile accident. By age eleven, defendant had lived with at least ten different caregivers, including various relatives and foster parents. In many of those placements defendant was exposed to violence and substance abuse.

Several experts testified on defendant's behalf that his sickly and unstable childhood, his exposure to violence, abuse and neglect, and the lack of any affectionate relationship with his mother had reduced his ability to understand cause and effect, limited his capacity to empathize with others, and rendered him hostile, aggressive, and prone to violence. In addition, expert testimony was presented relating defendant's emotional disturbance as an adult to his flawed and oppressive childhood.

The jury unanimously determined that defendant had committed the murder to escape detection, N.J.S.A. 2C:11-3c(4)(f), and had done so in the course of committing aggravated sexual assault and kidnapping, N.J.S.A. 2C:11-3c(4)(g). The jury rejected the State's contention that the murder had involved torture or an aggravated battery. N.J.S.A. 2C:11-3c(4)(c).

Concerning the mitigating factors proffered by defendant:

"Some or all of the jurors found the following mitigating factors: (1) that defendant had been denied nurturing as an infant (6 jurors); (2) that he had been born to drug and alcohol-dependent parents (12 jurors); (3) that drinking by his mother during pregnancy had contributed to defendant's physical and developmental disabilities (2 jurors); (4) that his father had abused members of the family when defendant was an infant, thereby exposing him to violent and abusive behavior (8 jurors); (5) that his mother had abandoned him with relatives throughout his youth (3 jurors); (6) that his mother had neglected and abused him because of her own upbringing and dependence on alcohol (10 jurors); (7) that throughout his childhood, he had been exposed to excessive amounts of domestic violence and substance abuse (10 jurors); (8) that he had suffered through multiple placements and periodically had attended 11 different schools (10 jurors); (9) that he had been denied consistent treatment throughout childhood despite identification of emotional and psychological problems (3 jurors); (10) that his background had increased significantly his risk of engaging in substance abuse and antisocial behavior (8 jurors); (11) that he had been allowed to abuse drugs and alcohol at an early age (6 jurors); (12) that he had begun acting out during his childhood because of unresolved and untreated emotional disturbances (6 jurors); (13) that during his childhood, he had been exposed periodically to an unstable father (6 jurors); (14) that he had been deprived of a stable nurturing home throughout his childhood (5 jurors); (15) that he had not been provided with recommended and necessary therapy (4 jurors); and (16) that the sudden death of his mother had left him with unresolved grief issues that were not addressed through therapy (6 jurors)." [Cooper, supra, 151 N.J. at 346.]

The following two mitigating factors were unanimously rejected by the jury: (1) that defendant had been denied exposure to proper role models during his childhood; and (2) the "any other reasons not mentioned" factor.

The jury unanimously found that the two aggravating factors together outweighed the mitigating factors beyond a reasonable doubt. Accordingly, defendant was sentenced to death.

As noted above, this Court affirmed defendant's conviction for capital murder and his death sentence, and also affirmed his kidnapping conviction and sentence. We vacated his conviction for aggravated sexual assault, ordering that that conviction must merge with the kidnapping conviction. Cooper, supra, 151 N.J. at 406. This Court also ordered the Administrative Office of the Courts (AOC) to update its database to facilitate proportionality review in this case, as well as in State v. Harvey, and State v. Chew. On December 3, 1997, the AOC issued its revised statistical report (CCH Report) formed from a database that included all death-eligible defendants sentenced through July 31, 1997.

II.

Proportionality Review

In our recent opinion in State v. Loftin, 157 N.J. 253, 266-77 (1998) (Loftin II), we briefly summarized the history of proportionality review in the United States as well as in New Jersey. As noted in Loftin II, we trace our overview of the fundamental objectives of proportionality review back to this Court's seminal decision in State v. Ramseur, 106 N.J. 123 (1987):

"Proportionality review has a function entirely unique among the review proceedings in a capital proceeding. Proportionality review, in the context of a capital sentencing scheme, is not appellate review to ensure that the aggravating factors outweigh beyond a reasonable doubt all the mitigating factors, L. 1985, c. 178, or to determine if the death sentence is disproportionate to the crime in violation of the ban against cruel and unusual punishment. That death is not disproportionate in the sense of being a cruel and unusual punishment is presumed by the nature of the review. Rather, the purpose of review here is "of a different sort. . . . It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime." [Id. at 326 (quoting Pulley v. Harris, 465 U.S. 37, 43, 104 S. Ct. 871, 875, 79 L. Ed. 2d at 29, 36 (1984)).]

Accordingly, the purpose of proportionality review is to determine whether a specific defendant's death sentence "is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." N.J.S.A. 2C:11-3(e). In conducting proportionality review our principle inquiry is whether "the punishment fits the criminal," State v. Marshall, 130 N.J. 109, 129 (1992) (Marshall II), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993), and our objective is to "ensure that the death penalty is being administered in a rational, non-arbitrary, and evenhanded manner, fairly, and with reasonable consistency." Id. at 131.

A collateral objective of proportionality review is to ensure that prosecutorial and jury decisions in capital causes are free from discrimination based on race, gender, socio-economic status or other impermissible factors. In Ramseur, supra, we observed:

"Proportionality review further acts `as a check against the random and arbitrary imposition of the death penalty' by an aberrant jury. `[G]iven the emotions generated by capital crimes, it may well be that juries, trial Judges, and appellate courts considering sentences of death [may be] affected by impermissible considerations.' Discrimination on the basis of race, sex, or other suspect characteristic cannot be tolerated. . . . Proportionality review therefore is a means through which to monitor the imposition of death sentences and thereby to prevent any impermissible discrimination in imposing the death penalty." [106 N.J. Super. at 327 (citations omitted).]

In conducting proportionality review, we have relied substantially on the Final Report of our first Special Master, David C. Baldus, Death Penalty Proportionality Review Project, Final Report to the New Jersey Supreme Court (Sept. 24, 1991) (Final Report). In Marshall II, supra, we explained the analytical process underlying our selection of a pool of cases, out of the entire universe of death-eligible homicides, to be used as a basis of comparison with a specific death-sentenced defendant's case in determining whether that defendant's death sentence is disproportionate. 130 N.J. at 141-45. We generally have adhered to the analytical framework set forth in Marshall II and in subsequent proportionality review decisions. See, e.g., State v. Bey, 137 N.J. 334, 343-65 (1994) (Bey IV), cert. denied, 513 U.S. 1164, 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995); State v. Martini, 139 N.J. 3, 20-51 (1994) (Martini II), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995); State v. DiFrisco, 142 N.J. 148 (1995) (DiFrisco III), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

Our basic methodology for conducting proportionality review encompasses two distinct approaches: first, we use a frequency analysis that includes both mathematical and statistical calculations to compare defendant's case to other cases with similar fact patterns or similar levels of culpability in order to ascertain the rate of death sentencing in those similar cases; second, we engage in precedent-seeking review in which we compare all relevant factors in factually similar cases to determine whether defendant's death sentence appears to be disproportionate in comparison to the sentences imposed on other defendants who committed comparable homicides. In our prior proportionality review decisions we have found it appropriate to place greater reliance on precedent-seeking review than on frequency analysis, noting that the process of precedent-seeking review is one familiar to us as Judges and is not vulnerable to the concerns about reliability that burden frequency analysis. Loftin II, supra, 157 N.J. at 277; DiFrisco III, supra, 142 N.J. at 184; Martini II, supra, 139 N.J. at 46.

In its current formulation frequency analysis is a methodology that uses simple mathematical and complex statistical principles to determine the frequency with which defendants who committed offenses similar to that committed by the subject defendant, or who possess a comparable level of blameworthiness to that defendant, are sentenced to death. Frequency analysis combines two different approaches, the salient-factors test and the index-of-outcomes test. Prior to Loftin II, supra, frequency analysis also included the numerical-preponderance-of-aggravating-and-mitigating-factors test, which compared a death-sentenced defendant's case to other death-eligible prosecutions having the same number of aggravating and mitigating factors. In Loftin II, the Court concluded that that test "has not contributed to the Court's proportionality reviews and, in light of its inherent flaws, cannot be expected to do so in the future." 157 N.J. at 295. Accordingly, the Court abandoned the numerical-preponderance-of-aggravating-and-mitigating-factors test. Ibid.

The salient-factors test uses the AOC's database in which the universe of death-eligible cases is subdivided into various categories and subcategories, ranked in descending order of blameworthiness, and derived from the statutory aggravating factors. *fn1 Final Report at 81-82. The AOC assigns each defendant to one of the thirteen major categories. Each of these categories includes two to seven subcategories that aggravate or mitigate the blameworthiness of defendants included in the primary category.

In applying the salient-factors test, we compare defendant's death sentence to the sentences imposed in factually similar cases within the same primary category in order to ascertain the frequency with which death sentences generally are imposed in such cases. A demonstration that the death sentence is regularly or frequently imposed suggests that there may exist a societal consensus that the death penalty is an appropriate punishment for that category of homicides. Although we consider the salient-factors test to be the most persuasive of the frequency tests, DiFrisco III, supra, 142 N.J. at 173; Martini II, supra, 139 N.J. at 33; Bey IV, supra, 137 N.J. at 353, we are aware that the small sample sizes of the comparison groups, a consequence of the Special Master's decision to create a relatively large number of comparison groups, limits the value and significance of the salient-factors test. Loftin II, supra, 157 N.J. at 293; DiFrisco III, supra, 142 N.J. at 174; Martini II, supra, 139 N.J. at 37-38.

The index-of-outcomes test attempts to compare the death-sentenced defendant's case to other cases involving defendants with comparable qualities of blameworthiness, taking into account both statutory and non-statutory factors. The blameworthiness of defendants is compared on the basis of "statistically-relevant measures of culpability found in the circumstances of their cases, such as the infliction of severe pain or suffering, the existence of a contemporaneous sexual assault or robbery, or the prior commission of murder." Martini II, supra, 139 N.J. at 42. The AOC prepares tables grouping cases in five levels of culpability based on statistically-predicted probabilities of a return of a death sentence. We then derive the actual probabilities of death sentences for cases in each culpability level, and apply that statistical data to assess the proportionality of the subject defendant's death sentence. However, the Court has recognized that "the small sample size of cases with similar levels of blameworthiness and the great ranges in the confidence intervals preclude[] us from giving weight to these findings." DiFrisco III, supra, 142 N.J. at 182. Moreover, the AOC's memorandum to the Court accompanying the CCH Report cautions us that "the culpability estimate which purports to give a 'predicted probability of a death sentence' is often still too soft, and little substantive reliance should be given to this statistic in the Chew, Cooper, and Harvey cases." As noted in Loftin II, supra, "we are uncertain whether we will soon reach a sample size capable of supporting reliable results in these models." 157 N.J. at 296.

A. The Universe of Cases

In order to conduct proportionality review we must establish the universe of cases to which defendant's case will be compared. In 1992, the Legislature amended N.J.S.A. 2C:11-3e to restrict the comparative group to only those cases in which a jury had imposed a death sentence. L. 1992, c. 5, § 1. In previous proportionality review cases in which defendants' appeals from death sentences were pending prior to the Legislature's enactment, we declined to apply the amendment. See Harvey III, supra, ___ N.J. at ___ (slip op. at 12); DiFrisco III, supra, 142 N.J. at 162-63; Martini II, supra, 139 N.J. at 23; Bey IV, supra, 137 N.J. at 343-44; Marshall II, supra, 130 N.J. at 119. Instead, we applied the pre-1992 proportionality review provision of N.J.S.A. 2C:11-3e, pursuant to which we held that the appropriate universe included all cases in which a death penalty had been sought or imposed and also "clearly death eligible homicides in which the prosecutor elected not to seek the death penalty." Marshall II, supra, 130 N.J. at 137.

However, in Loftin II, supra, we were confronted with a defendant who, as in this case, was convicted of capital murder after the effective date of the 1992 amendment. We addressed in Loftin II the potential conflict between the 1992 amendment and this Court's constitutionally prescribed duty to define the appropriate scope of appellate review in capital causes. We explained that although the determination of the appropriate scope of appellate review in death penalty cases is "an unqualified and exclusive function of the judiciary," Loftin II, supra, 157 N.J. at 284, the exclusivity of the Court's power need not necessarily preclude an accommodation of the views of the Legislature. Id. at 284-87. We observed that the critical issue to be determined was whether the Legislature's limitation on the size of the universe for proportionality review would prevent effective appellate review of death penalty cases. Because we decided in Loftin II to refer various issues concerning proportionality review to Judge David Baime to make fact findings and recommendations to the Court by May 14, 1999, we deferred any decision concerning the application of the 1992 amendment until the Court received Judge Baime's report. In the interim, the Court has decided to continue to use the full universe of death-eligible cases in its conduct of proportionality review. Id. at 287. *fn2

We also continue to adhere to our determinations in earlier proportionality review cases that death-sentenced cases reversed on appeal because of procedural, burden-of-proof, or Gerald-type errors should be included in the category of death-sentenced cases. (A Gerald error is one in which a death sentence followed a conviction of capital murder that, because of an imprecise jury charge, could have been based on a jury finding that the defendant purposely or knowingly caused serious bodily injury that resulted in death, instead of a finding that defendant purposely or knowingly caused death. See State v. Gerald, 113 N.J. 40, 90 (1988)). We explained that such errors "affect the procedural fairness of the trial, not the substance of the crime, [and] 'do not necessarily bear on the jury's determination of deathworthiness.'" Martini II, supra, 139 N.J. at 26 (quoting Bey IV, supra, 137 N.J. at 347). For the reasons detailed in our earlier cases we continue to include those reversed death-sentenced cases as death-sentenced cases for purposes of proportionality review. See Harvey III, supra, ___ N.J. at ___-___ (slip op. at 13-14); DiFrisco III, supra, 142 N.J. at 164-65; Martini II, supra, 139 N.J. at 25-27; Bey IV, supra, 137 N.J. at 345-47; Marshall II, supra, 130 N.J. at 194 n.10.

For purposes of frequency review, we present two sets of calculations of the rate of death sentencing, one calculation including the defendant, and the other excluding him. "Using two sets of data, one including defendant's case and one excluding it, will give us the broadest picture of societal standards while alerting us to the bias produced by including defendant's case." DiFrisco III, supra, 142 N.J. at 165 (quoting Martini II, supra, 139 N.J. at 28).

The universe of cases, however, excludes the twenty-three cases that were not death-eligible but nevertheless proceeded to a penalty-phase hearing. Marshall II, supra, 130 N.J. at 138; CCH Report, tbls. 2,3.

B. Adjustments In Comparison Group

The AOC has grouped the death-eligible defendants that comprise our proportionality-review database into various categories and subcategories, on the basis of the aggravating factors found by the jury in those cases tried to a penalty phase, or on the basis of the aggravating factors alleged or apparently present in cases not tried to a penalty phase. See CCH Report, tbl.7. The basic categories and subcategories are derived from the first Special Master's report adopted by the Court. Final Report at 80-84. We previously have acknowledged that we will "defer generally to the AOC's expertise, and particularly to its unique assignment of defendants to only one comparison category." DiFrisco III, supra, 142 N.J. at 167.

The AOC has assigned defendant to subcategory C-1, which comprises murders committed in conjunction with sexual assaults characterized by particular violence and terror, but excludes homicides by prior murderers or those involving multiple victims. That subcategory includes forty defendants, a relatively large comparison group. Defendant contends that for purposes of the salient-factors evaluation, as well as for purposes of precedent-seeking review, the defendants in the C-2 subcategory (entitled "other with one or more additional statutory aggravating circumstances") are virtually indistinguishable from those in the C-1 category. We note that nine defendants are included in the C-2 subcategory, and an additional three defendants are included in the C-3 subcategory (entitled "other"), the last of the subclassifications in the composite "C" category of sexual assaults without multiple victims or prior murder convictions. We previously have performed the salient-factors test using both the assigned subcategory as well as the composite category, see DiFrisco III, supra, 142 N.J. at 174; Bey IV, supra, 137 N.J. at 353-58, and we will do so in this appeal. Concerning defendant's contention that the pool of comparison cases for purposes of precedent-seeking review also should be expanded, we address that question in the course of our Discussion of precedent-seeking review. Infra at ___-___(slip op. at 47-49).

The State objects to the inclusion of four defendants in the subcategory to which defendant is assigned: James Koedatich 2, James Henry Hampton, James Zola 1B, and Kevin Jackson 1B. We agree with the State's contention that Koedatich and Hampton should be excluded. Although in its prosecution of Koedatich for murder and kidnapping the State alleged as aggravating factors that defendant murdered the victim in the course of a sexual assault, as well as to escape detection for sexual assault, the jury found neither of those aggravating factors. Accordingly, that case should not have been assigned to the sexual assault-murder category. Similarly, defendant James Henry Hampton murdered his victim after she apprehended him in an attempt to burglarize a horse barn, but the State did not allege that he sexually assaulted the victim. His case also should be excluded from the sexual-assault murder category.

Concerning defendant Kevin Jackson, after this Court reversed his murder conviction and death sentence he was retried and convicted of murder, theft, and aggravated sexual assault, although the State alleged only the c(4)(c) (torture and depravity) aggravating factor. We are satisfied that the strong evidence that defendant attempted to sexually assault his victim warrants inclusion of his case in the sexual-assault murder category. Similarly, in the James Zola case there was conflicting evidence on whether defendant sexually assaulted the victim, but this Court affirmed Zola's conviction for capital murder and aggravated sexual assault. We will not disturb the AOC's assignment of Zola to the sexual-assault murder category.

C. Salient-Factors Test

As noted, the salient-factors test attempts to measure the proportionality of a defendant's death sentence by determining the frequency with which factually similar cases culminate in a death sentence. We generally have regarded the salient-factors test as the most persuasive of the frequency-analysis tests because the cases compared are factually analogous to the case of the defendant seeking review. Harvey III, supra, ___ N.J. at ___-___ (slip op. at 27); DiFrisco III, supra, 142 N.J. at 173; Martini II, supra, 139 N.J. at 33; Bey IV, supra, 137 N.J. at 353; Marshall II, supra, 130 N.J. at 168.

Defendant Cooper has been assigned to subcategory C-1, designated "sexual assault with particular violence/terror" (but excluding defendants who murdered multiple victims or who were previously convicted of murder). CCH Report, tbl. 7. Of the thirty-eight death eligible cases in that subcategory, nineteen proceeded to the penalty phase and eight defendants, including Cooper, were sentenced to death. Accordingly, including defendant, the death-sentencing rate for all sexual-assault murders that we include in the C-1 subcategory is twenty-one percent, and for those advancing to a penalty phase the rate is forty-two percent. Those percentages may be compared with the overall death-sentencing rate of twelve percent for all death-eligible cases in the universe, and the death-sentencing rate of thirty-one percent for all death-eligible cases that advance to the penalty phase. Repeating the same comparisons without including defendant's case in the C-1 category does not significantly affect the death sentencing rates. The following table summarizes the result of the salient-factors test as applied to the C-1 category:

SALIENT-FACTORS TEST: C-1 SUBCATEGORY

(data from CCH Report, tbl. 7)

Death-Sentencing RateDeath-Sentencing RateProportion of Cases

at Penalty Trial for All Eligible CasesAdvancing to P-Trial

C-1 Incl. D42% (8/19) 21% (8/38) 50% (19/38)

C-1 Excl. D39% (7/18) 19% (7/37) 49% (18/37)

All Ds 31% (50/163) 12% (50/401) 41% (163/401)

All Ds but D30% (49/162) 12% (49/400) 41% (162/400)

Applying the salient-factors test to the composite "C" category results in the addition of twelve cases (nine cases from subcategory C-2 and three cases from subcategory C-3). The resulting death-sentencing rate at penalty-trial cases is thirty-eight percent and the death-sentencing rate for all death-eligible cases is eighteen percent, both percentages being slightly lower than the analogous death-sentencing rates for the C-1 category. The following table depicts the result of the salient-factors test as applied to category "C" death-penalty cases:

SALIENT-FACTORS TEST: "C" CATEGORY (data from CCH Report, tbl. 7)

Death-Sentencing RateDeath-Sentencing RateProportion of Cases

at Penalty Trial for All Eligible CasesAdvancing to P-Trial

C Incl. D 38% (9/24) 18% (9/50) 48% (24/50)

C Excl. D 34% (8/23) 16% (8/49) 47% (23/49)

All Ds 31% (50/163) 12% (50/401) 41% (163/401)

All Ds but D30% (49/162) 12% (49/400) 41% (162/400)

The foregoing charts summarizing the application of the salient-factors test to defendants who sexually assault and murder their victims demonstrate that such defendants often are sentenced to death, and that their rate of death-sentencing significantly exceeds the death-sentencing rate for all death-eligible homicides, and also significantly exceeds the death-sentencing rate for all homicides that advance to a penalty trial. Moreover, we note that the result of the salient-factors test as applied to defendant is comparable to the results obtained from that test in other proportionality review cases in which we found no disproportionality. See DiFrisco III, supra, 142 N.J. at 172-74; Martini II, supra, 139 N.J. at 33-38. We are unable to conclude that application of the salient-factors test to defendant Cooper demonstrates that his death sentence is disproportionate.

D. Index-of-Outcomes Test

The index-of-outcomes approach attempts "to identify those characteristics that establish the degree of a defendant's blameworthiness," considering both statutory and non-statutory factors. Martini II, supra, 139 N.J. at 41. In applying this test we seek "to identify the characteristics common to the cases in terms of their degree of blameworthiness as perceived by prosecutors and juries." Marshall II, supra, 130 N.J. at 172.

To facilitate application of this test, the AOC "organizes cases according to statistically-relevant measures of culpability, such as the infliction of severe physical pain or mental suffering on the victim, a contemporaneous sexual assault or robbery, and the commission of a prior murder." Bey IV, supra, 137 N.J. at 362. In contrast to the salient-factors test, "in the index-of-outcomes test we compare cases that are factually dissimilar but that are nevertheless comparable from the perspective of the defendants' blameworthiness." Martini II, supra, 139 N.J. at 42.

Moreover, unlike the salient-factors test in which the AOC simply calculates and compares death-sentencing ratios, the index-of-outcomes test uses a multiple-regression analysis, a process we explained in Martini II, supra, 139 N.J. at 31-32:

"We pause here for a brief explanation of some technical terms. A regression analysis uses an algebraic model to represent a decision-making process by showing the influence of an independent variable on a dependent variable. Here, the decision-making process represented is the sentencing determination. The independent variable, which, once designated, does not change, represents a factor such as a prior murder or a contemporaneous sexual assault that is believed to influence the result of the decision-making. The dependent variable is influenced by the presence or absence of an independent variable, and here represents the decision whether to sentence capitally. A multiple regression analysis simply includes more than one independent variable in the algebraic model."

Because the results produced by the regression models are of uncertain reliability, we use the predicted probability of death sentences that those models generate only for purposes of comparison and guidance. We do not accord them final or determinative weight.

On the basis of its multiple-regression analysis, the AOC has prepared tables that group defendants in five levels of culpability based on the predicted probability of the imposition of a death sentence. Each defendant receives a culpability score ranging from a low of .00 to a high of .99, and based on that score the defendants are assigned to one of the five culpability levels. Each level represents one-fifth of the range of culpability scores. Defendants with culpability scores that range between .00000 and .19999 comprise level one, those with scores between .20000 and .39999 form level two, and so forth.

Four multiple regressions encompass the index-of-outcomes test. See DiFrisco III, supra, 142 N.J. at 179-82. The first regression considers both statutory and non-statutory factors in the penalty-trial universe. Id. at 179-80. The second appraises the same factors but uses the full universe. Id. at 180-81. Statutory aggravating and mitigating factors are the only variables in the other regressions. Id. at 181-82. Like the first two regressions, the third and fourth regressions employ the penalty-trial universe and the full universe, respectively. Ibid.

Preliminarily, we take note of several deficiencies in the index-of-outcomes test. Perhaps the most troublesome deficiency is the inconsistency of the results of the four regressions. Defendant Cooper's culpability scores range from a ten percent predicted probability of a death sentence in the death-eligible universe considering both statutory and non-statutory factors to a forty-three percent predicted probability of a death sentence in the penalty-trial universe considering only statutory factors. We previously have taken note of the inconsistent results of the four regressions in other proportionality-review decisions. See DiFrisco III, supra, 142 N.J. at 182; Martini II, supra, 139 N.J. at 45.

In addition, the large confidence intervals applicable to defendant's culpability scores substantially qualify the accuracy of the predicted probability that defendant would be sentenced to death. Accordingly, those culpability scores may not accurately reflect the likelihood that defendant would receive a death sentence. As we explained in DiFrisco III, supra, 142 N.J. at 179-80:

"The probability range, or more appropriately, the confidence interval, is delineated by upper and lower limits and is established by a ninety-five percent confidence interval. That means we are ninety-five percent certain that all defendants with characteristics similar to [defendant] will have a predicted probability of receiving a death sentence [within the probability range]; the smaller the confidence interval, the more reliable the predicted probability."

Thus, in the first regression that considers statutory and non-statutory factors for the penalty-trial universe, the reliability of defendant's thirty-five percent predicted probability of a death sentence is undermined by the large confidence interval range of nine percent to seventy-five percent. The range of the confidence intervals in the other regressions is significantly smaller.

A more fundamental flaw in the index-of-outcomes test is that the AOC's models do not take into account the fact that the victim of defendant's homicide was a six-year-old girl. None of the statutory aggravating factors focus on the age of a victim, and the non-statutory factors included in the AOC's models do not evaluate a defendant's blameworthiness on the basis of the victim's age. Accordingly, the value of the index-of-outcomes test in assessing the proportionality of defendant's death sentence is limited by the recognition that the test undoubtedly underestimates defendant's predicted probability of a death sentence.

The results of the index-of-outcomes test are reported on two charts. The first chart reports the results for defendant Cooper, and defendants Harvey, Chew, Loftin, DiFrisco, Martini, Bey, and Marshall under the CCH Report database. The results for all four regressions are reported for each defendant. For each regression, the table shows the culpability score, the confidence interval, the culpability level, and the death-sentencing rate that corresponds to the culpability level.

The second chart differs from the first chart in one respect: it does not use the same database for every defendant. Instead, in the second chart, the data reported for each defendant is the data this Court had used at each defendant's proportionality review. For example, the data used for Martini is derived from the Martini Report.

The index-of-outcome test results are as follows:

INDEX-OF-OUTCOME TEST RESULTS CHART I (data from CCH Report, tbls. 13-14, 21-25)

Statutory & Non-Statutory Factors Statutory Factors

Only

Penalty TrialDeath-EligiblePenalty TrialDeath-Eligible

Cooper

Predicted Probability.35 .10 .43 .19

of Death Sentence

Range (.09 to .75)(.03 to .30) (.23 to .65)(.08 to .38)

Culpability Level2 1 3 1

Death-Sentencing.26 (6/23).05 (18/334) .45 (13/29).05 (15/318)

Rate

Harvey

Predicted Probability.35 .13 .43 .19

of Death Sentence

Range (.12 to .69)(.05 to .32) (.23 to .65)(.08 to .38)

Culpability Level2 1 3 1

Death-Sentencing.26 (6/23).05 (18/334) .45 (13/29).05 (15/318)

Rate

Chew

Predicted Probability.67 .19 .90 .47

of Death Sentence

Range (.22 to .94)(.02 to .72) (.51 to .99)(.09 to .88)

Culpability Level4 1 5 3

Death-Sentencing.75 (9/12).05 (18/334) .76 (13/17).52 (9/17)

Rate

Loftin

Predicted Probability.21 .44 .72 .53

of Death Sentence

Range (.01 to .92)(.12 to .83) (.26 to .95)(.17 to .85)

Culpability Level2 3 4 3

Death-Sentencing.26 (6/23).55 (6/11) .63 (12/19).52 (9/17)

Rate

DiFrisco

Predicted Probability.68 .19 .46 .19

of Death Sentence

Range (.24 to .93)(.02 to .78) (.08 to .89)(.01 to .84)

Culpability Level4 1 3 1

Death-Sentencing.75 (9/12).05 (18/334) .45 (13/29).05 (15/318)

Rate

Martini

Predicted Probability.81 .09 .26 .12

of Death Sentence

Range (.36 to .97)(.02 to .32) (.09 to .55)(.04 to .31)

Culpability Level5 1 2 1

Death-Sentencing.77 (23/30).05 (18/334) .31 (10/32).05 (15/318)

Rate

Bey

Predicted Probability.65 .38 .74 .40

of Death Sentence

Range (.22 to .93)(.12 to .74) (.40 to .92)(.18 to .68)

Culpability Level4 2 4 3

Death-Sentencing.75 (9/12).33 (10/30) .63 (12/19).52 (9/17)

Rate

Marshall

Predicted Probability.64 .13 .59 .27

of Death Sentence

Range (.15 to .95)(.00 to .87) (.12 to .94)(.03 to .82)

Culpability Level4 1 3 2

Death-Sentencing.75 (9/12).05 (18/334) .45 (13/29).26 (12/45)

Rate

INDEX-OF-OUTCOME TEST RESULTS CHART II (data from CCH Report, tbls. 13-14, 21-25, Loftin Report, tbls. 13-14, 21-25, DiFrisco III, Martini II, Bey IV, and Marshall II Report)

Statutory & Non-Statutory Factors Statutory Factors

Only

Penalty TrialDeath-EligiblePenalty TrialDeath-Eligible

Cooper (CCH Report)

Predicted Probability.35 .10 .43 .19

of Death Sentence

Range (.09 to .75)(.03 to .30) (.23 to .65)(.08 to .38)

Culpability Level2 1 3 1

Death-Sentencing.26 (6/23).05 (18/334) .45 (13/29).05 (15/318)

Rate

Harvey (CCH Report)

Predicted Probability.35 .13 .43 .19

of Death Sentence

Range (.12 to .69)(.05 to .32) (.23 to .65)(.08 to .38)

Culpability Level2 1 3 1

Death-Sentencing.26 (6/23).05 (18/334) .45 (13/29).05 (15/318)

Rate

Chew (CCH Report)

Predicted Probability.67 .19 .90 .47

of Death Sentence

Range (.22 to .94)(.02 to .72) (.51 to .99)(.09 to .88)

Culpability Level4 1 5 3

Death-Sentencing.75 (9/12).05 (18/334) .76 (13/17).52 (9/17)

Rate

Loftin (Loftin Report)

Predicted Probability.14 .38 .66 .46

of Death Sentence

Range (.00 to .94)(.09 to .81) (.21 to .93)(.13 to .82)

Culpability Level1 2 4 3

Death-Sentencing.07 (5/74).38 (14/37) .70 (14/20).57 (8/14)

Rate

DiFrisco (DiFrisco Report)

Predicted Probability.74 .11 .43 .23

of Death Sentence

Range (.29 to .95)(.00 to .86) (.09 to .87)(.03 to .76)

Culpability Level4 1 3 2

Death-Sentencing.57 (4/7).04 (11/260) .61 (11/18).52 (11/21) Rate

Martini (Martini Report)

Predicted Probability.88 .05 .15 .08

of Death Sentence

Range (.25 to .99)(.01 to .30) (.03 to .51)(.02 to .27)

Culpability Level5 1 1 1

Death-Sentencing.88 (23/26).04 (10/248) .05 (3/58).05 (12/249)

Rate

Bey (Martini ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.