The opinion of the court was delivered by: Stein, J.
On proportionality review of a death sentence imposed in the Superior Court, Law Division, Gloucester County.
On March 15, 1996, defendant Richard Feaster was convicted by a Gloucester County jury of the purposeful-or-knowing murder by his own conduct and the felony-murder of Keith Donaghy. The jury also convicted him on related charges of conspiracy to commit murder, first-degree robbery, conspiracy to commit armed robbery, possession of a weapon for an unlawful purpose and possession of a sawed-off shotgun. On the capital murder conviction, defendant was sentenced to death. On the non-capital convictions, defendant's conspiracy convictions merged into the related substantive offenses and the felony-murder conviction was merged into the conviction for purposeful-or-knowing murder. Defendant's conviction for possession of a weapon for an unlawful purpose was merged into the robbery-murder convictions. The court sentenced defendant to a consecutive twenty-year term of imprisonment with ten years of parole ineligibility for the robbery conviction and a five-year term of imprisonment for the conviction of possession of a sawed-off shotgun, to be served concurrently.
This Court affirmed defendant's conviction for capital murder and his death sentence. State v. Feaster, 156 N.J. 1, 93 (1998). We also affirmed his convictions and sentences on the other charges. Ibid.
Defendant requested proportionality review for his death sentence pursuant to N.J.S.A. 2C:11-3e. Feaster, supra, 156 N.J. at 93. We granted that request and now find no disproportionality in defendant's sentence of death.
The facts of this case are detailed in Feaster, supra, 156 N.J. at 18-33, and we draw from that opinion those facts that are material to this proportionality review.
Several weeks before the October 6, 1993 murder of Keith Donaghy, defendant began asking his friend Daniel Kaighn if he could borrow a handgun, purportedly to collect money that his employer owed to him. Two weeks before the murder, Kaighn complied and, in return for a payment of $100 for one day's use, gave him a sawed-off twenty-gauge shotgun and ammunition. That same night, defendant returned the gun to Kaighn along with all the ammunition he had been given earlier in the day. He gave Kaighn $30, saying that his employer had failed to pay the full amount owed to him. Subsequently, the gun was stored in the back of the car of Tina Shiplee, a friend of defendant and of Kaighn.
On the night of the murder, defendant and a friend, Michael Mills, were at the Columbia Café, a bar, playing pool and drinking with some friends, including Tina Shiplee. At that time, the gun was still in the back of Shiplee's car in a blue gym bag. Shiplee approached defendant and requested that he remove the gym bag before leaving that night. Defendant agreed to remove it. Shiplee's unlocked car was in the parking lot of the Columbia Café. When Shiplee left the Columbia Café later that night, she noticed that the blue gym bag had been removed from her car. She was unsure whether it was Mills or defendant who eventually took the bag from the car. At around 8:00 p.m., defendant and Mills borrowed a car and left the bar for about one hour. Feaster, supra, 156 N.J. at 21.
That night, Keith Donaghy was the only attendant working at the Family Texaco in Deptford Township. Sometime between 8:20 and 8:25 p.m., his body was discovered lying on the floor of the station office. Ibid. $191.32 had been taken from one of his pockets. Id. at 24.
When defendant returned to the Columbia Café that evening, at approximately 9:00 p.m., he appeared to have been using drugs, as he had white powder around his nose. Before leaving the bar that evening, Shiplee overheard defendant say to Mills and Michael Sadlowski, another acquaintance, that he could not "believe he killed the guy and didn't get any money." Id. at 22. At trial, Sadlowski denied that defendant had made that statement to him.
Later that same night, defendant was at a friend's house watching the eleven o'clock news. After a segment describing the murder of Keith Donaghy had aired, Sadlowski observed that "defendant had become sweaty and `fidgety,' and that he stated, `I can't believe I did this shit. I can't believe this. Why me? You know.'" After the news broadcast ended, defendant again told Sadlowski, "I can't believe I did this shit." Ibid.
When he was going home, defendant said to Sadlowski that he "blew the dude's head off," and that he "screwed up tonight." Id. at 23. Defendant also said, "I can't believe I did this." Ibid. During their drive home, "defendant tearfully explained that `his brains went all over the place' and repeated that `I can't believe I did this shit.'" Ibid. Sadlowski then dropped defendant off. Ibid.
Initially, the investigation into the murder of Keith Donaghy met with little success. On October 31, 1993, however, another gas station attendant, Ronald Pine, was murdered. Defendant's friend, Tina Shiplee, suspected that defendant had committed the murder and, fearing that he might kill again, contacted a lawyer who contacted the police. Shiplee then gave a statement implicating defendant in both murders. Subsequently, defendant was charged with both murders but the indictments were later severed and no mention of the second murder was permitted at defendant's trial for the murder of Keith Donaghy. Id. at 24. On April 1, 1996, defendant pled guilty to the knowing-and-purposeful murder of Ronald Pine.
Keith Donaghy died from a single shotgun wound to the head. There was no evidence indicating that a struggle had occurred. Id. at 23. Only one of Donaghy's pockets was in plain view as he lay dead on the ground, and money remained in Donaghy's other pockets that were not exposed. Id. at 24. That evidence led the State to believe that defendant did not take the money until after Donaghy was dead and supported the State's argument that defendant intended to kill and to rob the station attendant even before he reached the gas station. Ibid.
At trial, Kevin Wrigley testified that he shared a holding cell with defendant for a brief period while defendant was awaiting trial. Id. at 26. Wrigley stated that among other statements made by defendant, he heard defendant "describe how he shot someone in the head at point-blank range in order to `see what it felt like' to kill someone before he entered the Marines." Ibid. Wrigley also said that he heard defendant say that he stole "a couple hundred dollars" from the scene of the murder and that he, defendant, threw the murder weapon away. Id. at 27.
Other State witnesses included members of the circle of friends with whom defendant previously had socialized. They testified about the various statements concerning the murder that defendant had made. No physical evidence directly linked defendant to Donaghy's murder. Ibid.
Defendant did not testify at trial. The defense strategy was to challenge the credibility of the State's witnesses and to raise the possibility that Michael Mills was the triggerman. Mills had met with police before trial and made a statement, but because he committed suicide in June, 1994, his statement was not admitted at trial. The defense highlighted various witnesses' use of drugs and alcohol, the consideration given by the State for their testimony, and the discrepancies in the statements they made to authorities. Id. at 27-29.
During closing arguments, defense counsel emphasized the lack of physical and direct evidence in the case and attacked the credibility of the State's witnesses. Defense counsel also suggested that Mills, not defendant, had committed the murder. Id. at 29.
The prosecutor stressed the evidence that indicated premeditation and intent on the part of defendant. Id. at 30. He characterized Mills as the "getaway driver" and emphasized that defendant, not Mills, was the triggerman. Ibid.
On March 15, 1996, the jury found defendant guilty of all crimes charged. Ibid.
At the ensuing penalty phase, the sole aggravating factor alleged by the State was that the murder occurred while defendant was engaged in the commission of a robbery. See N.J.S.A. 2C:11-3c(4)(g). Defendant relied on ten mitigating factors:
1. Defendant never had been convicted of a crime and had never been incarcerated previously.
2. Defendant was twenty-two and not fully matured at the time of the crime.
3. Defendant suffered one or more head traumas resulting in an organic brain condition that affected his judgment and impulse control to the [extent] that normal people are not affected.
4. Defendant's ability to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease and/or defects and emotional disturbances and intoxication.
5. Defendant was raised in a household with one alcoholic parent, which predisposed him to substance abuse and delinquent behavior, undermining the controls normally present in others.
6. Defendant was raised in a home with an emotionally and physically abusive father, substantially affecting his maturation and development, with the effect, among others, of predisposing him to delinquent and violent behavior to the extent normal adults are not so predisposed.
7. Defendant had an excellent work record while living in Florida, away from the turmoil of his family, which was interrupted only by a work-related injury.
8. Defendant was a successful athlete during adolescence and high school, responding well to coaching and discipline.
9. Defendant's success under coaching and sports and in working in an environment away from the turmoil of his family demonstrated that he could be rehabilitated in a regimented environment such as prison.
10. Any other factor that the jurors, or any one of them, may deem relevant to defendant's character or record or to the circumstances of the offense. [Id. at 31-32.]
Several experts testified about defendant's mental health. A neurologist described abnormally excessive electrical activity in the left frontal lobe of defendant's brain and testified that people with that abnormality tend to be impulsive and have memory problems. Similarly, a clinical neuropsychologist testified that injuries to the left frontal lobe affect one's ability to control impulses and diagnosed defendant as suffering from encephalopathy, or brain injury, as a likely result of a series of concussions. Id. at 32. Defendant's alleged head injuries were caused by a fall from a pickup truck, an injury sustained when defendant's head hit a tree, and repeated impacts that occurred during his football career. Ibid. A psychiatrist also testified that defendant's ability to control impulses was compromised by encephalopathy, but that he could be helped through psychotherapy and counseling. Ibid. Defendant was described as having borderline intelligence. A psychologist also testified that the alcoholic and abusive household in which defendant was raised was a traumatic environment, but expressed the view that therapy could help defendant. Ibid.
A social worker described the Feaster home, in which Mrs. Feaster and defendant were abused, as one "in denial." Ibid. Defendant's mother also testified that defendant's father was an alcoholic who verbally abused her and defendant and that, as defendant grew older, there were frequent physical altercations between him and his father. Ibid.
The jury found as an aggravating factor that defendant committed the murder while engaged in the commission of a robbery. Two jurors accepted the third mitigating factor, that defendant suffered from an organic brain disorder resulting from head traumas that impaired his judgment. Ibid. Five jurors accepted the mitigating factor that defendant's father was physically and emotionally abusive. Ibid. Three jurors found the ninth factor, that defendant's work record in Florida and his high school athletic experience demonstrated that he could be rehabilitated in prison. Id. at 32-33. The jury unanimously rejected the remaining mitigating factors. Id. at 33. The jury also concluded unanimously that the sole aggravating factor outweighed beyond a reasonable doubt any mitigating factor or factors, thus resulting in defendant's death sentence. Ibid.
As previously noted, this Court affirmed defendant's conviction and sentence. Feaster, supra, 156 N.J. at 93. We now conduct proportionality review of defendant's sentence of death.
II. Proportionality Review
In State v. Loftin, 157 N.J. 253, 266-77 (1999) (Loftin II), this Court summarized the history and purpose of proportionality review in the United States and in New Jersey. Subsequently, in State v. Cooper, 159 N.J. 55, 68-73 (1999) (Cooper II), we reiterated our basic methodology when conducting proportionality review. There, we explained that it 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. [Id. at 70.]
Since we decided Cooper II, supra, we have reevaluated the elements of individual proportionality review. In re Proportionality Review Project, 161 N.J. 71 (1999) (Proportionality Review I). In Proportionality Review I, supra, we reviewed Special Master Judge David Baime's findings and recommendations. We held that the universe of cases for proportionality review should continue to include all defendants who were eligible for the death penalty, whether or not they were prosecuted capitally. Id. at 84-87. We also determined that a modified salient-factors test containing fewer subcategories should be adopted, id. at 87-89, and that the index-of-outcomes test should be abandoned. Id. at 91.
In its current formulation, frequency analysis thus consists solely of the salient-factors test. The salient-factors test measures the relative frequency of a defendant's sentence by determining the frequency at which factually similar cases result in a death sentence. Cooper II, supra, 159 N.J. at 70-71. Through that test we seek to determine "whether there is a societal consensus that the defendant in the case before us is sufficiently culpable such that his sentence may be deemed not aberrational." State v. Chew, 159 N.J. 183, 201 (1999) (Chew II). If the ratio of death sentences to penalty-trial cases or of death sentences to death-eligible cases is high, thereby demonstrating a substantial correlation between a defendant's most salient factor and death sentencing, then we may interpret the relatively high rate of death sentencing as "strong evidence of the reliability of [the] defendant's death sentence." State v. Bey, 137 N.J. 334, 358 (1994) (Bey IV).
Our first task is to establish the universe of cases to which defendant's case will be compared. In Proportionality Review I, supra, we held that the existing clearly death-eligible universe of cases for proportionality review should be retained. 161 N.J. at 84. As in our earlier proportionality review cases, we continue to include in the category of death-sentenced cases those death-sentenced cases that were reversed on appeal because of procedural, burden-of-proof, or Gerald-type errors. See, e.g., Cooper II, supra, 159 N.J. at 74. However, those cases that were not death-eligible but proceeded to a penalty-phase hearing are not included in the universe of cases. Id. at 75.
As we explained in Cooper II, the salient-factors test "uses the AOC's database in which the universe of death-eligible cases is subdivided into categories and subcategories, ranked in descending order of blameworthiness, and derived from the statutory aggravating factors." Id. at 71. Each defendant is assigned to one of the thirteen major categories. Ibid. Each category contains between two and seven subcategories "that aggravate or mitigate the blameworthiness of defendants included in the primary category." Id. at 71-72. "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." Id. at 72. We use two sets of calculations of the rate of death sentencing, one that includes the defendant and another that excludes him or her. Id. at 75.
Pursuant to our order that followed Proportionality Review I, supra, the AOC has divided category F, robbery-murder, into three subcategories because of the large number of cases in that category. 161 N.J. at 88. Here, the AOC has assigned defendant to cell F-2, which comprises murders committed in the course of the robbery of a business. We continue to "defer generally to the AOC's expertise, and particularly to its unique assignment of defendants to only one comparison category." State v. DiFrisco, 142 N.J. 148, 167 (1995) (DiFrisco III). Neither the Attorney General nor the Public Defender objects to that assignment of defendant, nor do they object to the inclusion or exclusion of any defendants in or from the subcategory.
Of the thirty-three death-eligible cases in subcategory F-2, eighteen cases proceeded to the penalty phase, and five defendants, (Long, Hightower (2), Morton, and Feaster) were sentenced to death. One defendant, Jacinto Hightower, received a second sentence of death after his first death sentence was vacated. Defendant Robert Morton, whose death sentence we also affirm today, is included in the statistics below as one of the defendants in the F-2 subcategory who was sentenced to death. Accordingly, including defendant, the death-sentencing rate for all murders committed in the course of the robbery of a business that we include in the F-2 subcategory is 15.2% (5/33), and for those proceeding to a penalty phase the rate is 27.8% (5/18). Excluding defendant from the F-2 subcategory does not substantially or significantly alter the death-sentencing rates. The following table summarizes the results of the salient-factors test as applied to the F-2 subcategory:
SALIENT-FACTORS TEST: F-2 SUBCATEGORY (data from Feaster Report, tbl. 7)
Death-Sentencing Rate At Penalty Trial
All Ds but D 29.1% (51/175)
Death-Sentencing Rate for All Eligible Cases
All Ds but D 11.2% (51/454)
Proportion of Cases Advancing to P-Trial
F-2 Incl. D 54.5% (18/33)
F-2 Excl. D 53.1% (17/32)
All Ds but D 38.5% (175/454)
Applying the salient-factors test to the general "F" category results in a death-sentencing rate for penalty-trial cases (including defendant) of 29.3% (12/41), and the death-sentencing rate for all death-eligible cases is 8.4% (12/143). The following table summarizes the result of the salient-factors test as applied to category "F" death-penalty cases:
SALIENT-FACTORS TEST: F CATEGORY (data from Feaster Report, tbl. 7)
Death-Sentencing Rate At Penalty Trial
Death-Sentencing Rate for All Eligible Cases
Proportion of Cases Advancing to P-Trial
The preceding tables demonstrate that for those defendants who commit murder while in the course of committing a robbery of a business, the percentage of death-eligible cases that proceeded to a penalty phase is higher than the overall average for death-eligible cases. Thus, it is not aberrational for the death penalty to be sought in such a case. Moreover, the tables indicate that five of eighteen defendants (including defendant), or four of seventeen defendants (excluding defendant), where the defendant has committed murder while in the course of committing a robbery of a business, is sentenced to death in those cases that proceed to a penalty trial. The rate of death-sentencing for those defendants exceeds the death-sentencing rate in the full universe of death-eligible cases. We conclude that application of the salient-factors test to defendant Feaster does not demonstrate that his death sentence is disproportionate.
III. Precedent-Seeking Review
We have observed previously that it is "appropriate to place greater reliance on precedent-seeking review than on frequency analysis" and have noted "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." Cooper II, supra, 159 N.J. at 70 (citations omitted). Our task in precedent-seeking review remains unchanged and requires us to "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." Ibid. We seek "to ensure that the defendant has not been singled out unfairly for capital punishment" and we do that by engaging in a "traditional case-by-case review in which we compare similar death-eligible cases, considering the cases individually." Id. at 88 (internal quotation marks and citations omitted).
A. Analysis of Defendant's Culpability
The cases against which we measure a specific defendant's case are chosen from the universe of cases that we use in our frequency review analysis. That ensures that the two analyses are complementary and may confirm each other. We choose the comparison cases based on relevant aggravating and mitigating factors, both statutory and non-statutory, that are "rooted in traditional sentencing guidelines." State v. Marshall, 130 N.J. 109, 159 (1992) (Marshall II). We recognize that a defendant's jury may have rejected an enumerated mitigating factor but nonetheless been influenced by the evidence presented in support of that mitigating factor. Therefore, we consider mitigating evidence "even though the jury found it insufficient to establish a statutory mitigating factor." State v. Martini, 139 N.J. 3, 54 (1994) (Martini II). See also Loftin II, supra, 157 N.J. at 336; DiFrisco III, supra, 142 N.J. at 185; Bey IV, supra, 137 N.J. at 368. We consider "objective criteria derived from both statutory and non-statutory aggravating and mitigating factors." Loftin II, supra, 157 N.J. at 336. The criteria must have been clearly submitted to the jury and likely to have influenced the jury's decision. Bey IV, supra, 137 N.J. at 368. We analyze those factors within a framework of culpability that consists of the defendant's moral blameworthiness, the degree of victimization and the defendant's character. Martini II, supra, 139 N.J. at 48-49. Here, we will consider cases in which the defendants committed deliberate murders in the course of a robbery of a business. Our task is to decide whether defendant's culpability, measured by objective factors clearly present in the record that are relevant to blameworthiness, victimization and character, "is more like that of defendants who received death sentences or of those who received life terms." Id. at 50.
For the purposes of examining defendant's moral blameworthiness, "we examine such characteristics as motive, premeditation, justification or excuse, evidence of mental defect or disturbance, knowledge of helplessness of the victim, defendant's age or maturity level, and defendant's involvement in planning the murder." Loftin II, supra, 157 N.J. at 336 (citation omitted). Consideration of those factors demonstrates that defendant has an average to high level of moral blameworthiness.
Defendant's motive for murdering Keith Donaghy was monetary gain. $191.32 was taken from Mr. Donaghy's pocket, apparently after he was shot. Monetary gain as a motive is common in the death-eligible universe of cases, constituting a motive in more than one third of those cases. Defendant's blameworthiness is heightened, however, by the probability that he could have accomplished the robbery without committing murder.
Evidence of premeditation by defendant is sparse. Although defendant borrowed a weapon several weeks in advance of the killing, he returned that weapon the same day that he borrowed it. That Mills and defendant retrieved the gun from the trunk of the car on the night of the murder suggests that defendant may have decided to commit the murder while at the Columbia Café on the night of the murder. Thus, the premeditation, if any, was minimal.
There was some evidence that the murder may have been attributable in part to defendant's intoxication. He was drinking alcohol on the night in question and apparently also was using drugs. However, the effect of the alcohol and drugs on defendant is unknown and the jury unanimously rejected intoxication as a mitigating factor. Nor was there any evidence of provocation, justification or excuse.
At the penalty phase of defendant's trial, he presented extensive evidence that he suffers from physical brain impairments as well as psychological impairments. Defendant's low intellectual capacity places him at approximately the bottom eight percent of the population, within the borderline mentally retarded or low-normal category. Despite evidence that defendant's childhood was dysfunctional and contributed to his personality disorders, the jury unanimously rejected mental disease or defect, or emotional disturbance, as a mitigating factor. Some jurors, however, found that defendant suffered one or more head traumas resulting in an organic brain condition, and that he was raised in a home with an emotionally and physically abusive father.
It is likely that defendant had knowledge of his victim's helplessness. Keith Donaghy was the only attendant on duty in the gas station on the night he was murdered. Other than defendant's co-defendant who committed suicide, there were no witnesses to the crime, which indicates that the area was deserted and that Mr. Donaghy was especially vulnerable to attack. It appears that defendant relied on the victim's solitude and vulnerability in planning the attack.
That defendant was twenty-two years old at the time of the homicide diminishes his blameworthiness to some extent. Defendant also presented evidence that his maturity level was significantly lower than his actual age because of childhood traumas and his low I.Q. The jury, however, did not find defendant's age or maturity level to be a mitigating factor.
Whether defendant was the sole planner of the murder is uncertain. Mills committed suicide before defendant's trial, and therefore was unable to testify about whether defendant was solely responsible for the crimes. Moreover, there is evidence to support a finding that Mills played a substantial role in the planning and commission of the robbery and murder.
In sum, the level of defendant's moral blameworthiness is average to high. There appears to have been little premeditation and defendant was young at the time of the murder. However, defendant exhibited complete callousness and lack of remorse toward his victim when he told a cellmate that he shot Donaghy "to see what if felt like" to kill someone. Moreover, defendant's knowledge of the victim's helplessness and vulnerability also is a factor that supports a finding of average to high moral blameworthiness.
2. Degree of Victimization
We evaluate the degree of victimization based on the relative violence and brutality of the murder and the injury to nondecedent victims. The extent of victimization in this case is average to low. Because there were no other people present while this murder took place, there were no injuries to nondecedent victims. Defendant killed Mr. Donaghy instantaneously by shooting him in his left cheek. The bullet passed through his brain and exited the back of his skull. Mr. Donaghy did not suffer a lingering death. There is no evidence that he was aware of defendant's presence or that he was in fear for his life. It appears that defendant shot Mr. Donaghy before he had a chance to realize what was happening and that his death was instantaneous. Thus, there is little indication that the victim suffered either emotionally or physically before his death. Moreover, no evidence was adduced concerning the effect of the offense on the victim's family.
3. Character of Defendant
Here, we consider defendant's prior criminal history, unrelated acts of violence, cooperation with authorities, remorse and capacity for rehabilitation. Bey IV, supra, 137 N.J. at 366. Defendant's prior record consists of three arrests and one unindictable conviction. His first arrest was for possession of marijuana and that charge is still outstanding. His second arrest was for simple assault, to which he pled guilty and was assessed a $100 fine. His last arrest was for possession of a controlled dangerous substance and drug paraphernalia. Those charges were dismissed. Prior to this murder, defendant had engaged in no other unrelated acts of violence. There is no evidence of cooperation with authorities. Although defendant did not submit remorse as a mitigating factor, the record indicates that he exhibited disbelief, regret and emotion over what he had done. Nevertheless, defendant's callous comments to his cellmate about why he killed Donaghy at point blank range indicate a callousness that belies any remorsefulness. Concerning his potential for rehabilitation, defendant presented evidence that he could be rehabilitated in a structured environment such as prison, and three jurors found that potential to exist.
Overall, these facts lead us to conclude that defendant's culpability is substantial. Although the degree of victimization is low, his culpability and ...