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State v. Harris

SUPREME COURT OF NEW JERSEY


August 02, 2000

STATE OF NEW JERSEY,
PLAINTIFF-RESPONDENT,
V.
AMBROSE A. HARRIS,
DEFENDANT-APPELLANT.

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

Argued March 14, 2000

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

On February 20, 1996, a Burlington County jury convicted defendant Ambrose A. Harris of the purposeful or knowing murder by his own conduct and the felony murder of Kristin Huggins. The jury also convicted him of the related crimes of kidnaping, robbery, aggravated sexual assault, possession of a handgun for an unlawful purpose and various theft offenses. The jury sentenced defendant to death on the capital murder conviction. We affirmed the capital conviction and its accompanying sentence on direct appeal, reserving defendant's request for proportionality review for this separate proceeding. State v. Harris, 156 N.J. 122, 133 (1998). We now find no disproportionality in defendant's sentence of death.

I. FACTUAL BACKGROUND

The facts of this case are set forth in Harris, supra, 156 N.J. 122. We draw from that opinion specific facts that are material to the proportionality review, expanding on our discussion as necessary.

On the morning of December 17, 1992, twenty-two year old Kristin Huggins drove her red Toyota MR2 sports car from her parents' home in Bucks County, Pennsylvania to the Trenton Club in downtown Trenton, New Jersey. She intended to paint a mural, but was never able to perform that task. When Huggins did not return home on December 17th, her parents immediately reported her missing.

Huggins' car, mud-covered and with its tires slashed, was found by authorities the next day. The news media reported on her disappearance, and a reward of $25,000 was offered for any information to assist in finding her. Huggins' body was eventually recovered in February 1993, approximately two months after she disappeared.

The investigation concerning Huggins' disappearance did not focus on defendant until January 1993. At that time defendant's nephew informed police that defendant had bragged to him about hijacking a red Toyota MR2 and having robbed and "knocked off some white girl." Defendant's nephew, as well as other witnesses, also reported that defendant was seen driving a red MR2 with a Pennsylvania license plate on the night of December 17th. Defendant's nephew even admitted to taking the red Toyota MR2 for a ride that night. In addition, a bank ATM security video showed, and bank records confirmed, that defendant attempted to withdraw $400 from Huggins' account on December 17th.

A major break in the investigation occurred in February 1993 when Gloria Dunn led police to the location of Huggins' body, claiming to have seen the body in a psychic vision. The body was badly decomposed. Dunn made numerous inquiries regarding the reward money in return for her information.

Eventually, however, the police learned that Dunn knew the location of Huggins' body because she was with defendant at the time of the murder. Dunn identified defendant as the murderer and provided numerous statements to the police concerning the circumstances surrounding the murder. Some of those statements were inconsistent. Also, Dunn failed to reveal, until approximately a year-and-a-half into the investigation, that defendant sexually assaulted Huggins. Nevertheless, she consistently implicated defendant as the triggerman who murdered Huggins. At trial, she featured as the State's eyewitness to the murder, providing the only direct evidence linking defendant to the crime.

To rebut Dunn's account, the defense focused on attacking her credibility based on inconsistencies in her testimony compared to earlier statements made during the investigation. The defense highlighted Dunn's professed involvement in the crime, her failure to attempt to escape or to seek help for Huggins when she was presented with ample opportunity to do so, and her delay in reporting the murder to the police. The defense also attacked Dunn's credibility by reminding the jury that she received a reduction in charges in exchange for testimony against defendant. Defendant never testified.

The evidence presented to the jury may be summarized as follows. Dunn testified that in late November 1992, defendant asked her to join him in robbing a Trenton luncheonette. She agreed. They were to meet the morning of December 17, 1992, to carry out the holdup. That day, defendant arrived at 8:00 a.m. on bicycle at the agreed upon location, armed with a .22 caliber revolver. He and Dunn then set out to commit the robbery.

Dunn complained about the fact that it was raining that morning, so defendant said he would "carjack" someone to avoid walking in the rain. Dunn then asked what defendant would do with the person he carjacked and, in response, defendant said he would tie up and abandon a black victim, but would kill a white victim. *fn1

As they approached the area of the Trenton Club, Huggins drove her red MR2 into the Club's parking lot. Defendant then said to Dunn, "I'm going to get that bitch," and on his bicycle he followed Huggins' car to the rear driveway of the Club. Dunn remained in the front area of the premises. Defendant returned, driving the car with Huggins sitting in the front seat. Dunn testified that defendant then ordered her into the front seat to sit with Huggins on her lap.

Defendant drove the red MR2 to a deserted area under the Southard Street Bridge in Trenton. Dunn testified that defendant was concerned about the appearance of two African-Americans driving in a two-passenger sporty vehicle with a white female passenger. He asked Huggins to show him how to operate the front-trunk on the car. After her explanation, defendant told Huggins to get into the trunk of the car. He ignored her offer to sit on the floor of the back of the car, and instead forced her into the tiny trunk, where she was required to lie in a fetal position.

Defendant then drove back to the Trenton Club to retrieve his bicycle. This was corroborated by two workers at the Trenton Club who testified that they saw defendant at 9:15 a.m. walk to the rear of the parking lot and return with a bicycle. Throughout her confinement in the trunk of her car, Huggins pleaded for help. Huggins' pleas for help infuriated defendant. He commented to Dunn that he should have killed Huggins earlier.

Defendant drove the car back to the area under the Southard Street Bridge. He ordered Huggins out of the trunk and over to the passenger side of the car by the open door. While still outside the car, defendant ordered Huggins to take off her clothes. He ignored Huggins' cries for mercy because she was a virgin, and instead made derogatory comments to her during the sexual assault. According to Dunn, defendant anally raped Huggins, despite her pleas to stop because of the pain. Dunn testified that Huggins was crying and shaking very badly.

Defendant ordered Huggins back into the trunk. Dunn testified that defendant then contemplated his next act, eventually deciding that he would kill Huggins. He opened the trunk of the car and ordered her out of the trunk again. As Huggins tried to climb out of the trunk with Dunn's help, defendant shot Huggins in the back of her head using the .22 caliber revolver. Huggins had been a prisoner for approximately two hours by the time defendant shot her for the first time.

Defendant then dragged Huggins' body a short distance from the car to hide it under a discarded mattress located behind some bushes. He and Dunn then drove to defendant's mother's home to retrieve two shovels. When they returned to the crime scene, defendant proceeded to where he had hidden Huggins. He then removed the mattress lying on top of her, shot her point-blank in the face to ensure that she was dead and threw the mattress back onto her body.

Defendant and Dunn then walked to a nearby area where they could dig a hole. They brought Huggins' body to the shallow grave they had dug, placed her in it face down and filled the grave with dirt. Defendant also threw some debris consisting of old clothes, rocks and a crate onto the grave site.

Before leaving, defendant went through Huggins' belongings taking $30 in cash and her ATM card. Testimony at trial revealed that defendant drove around in Huggins' car throughout the remainder of December 17, 1993. He tried to sell the car in New York City, but was unable to consummate the sale. As stated earlier, bank records and an ATM video revealed that defendant attempted to use Huggins' ATM card following her murder.

Huggins' disappearance was covered extensively by the news media. Despite having knowledge of the news coverage, Dunn did not immediately notify police about what she knew because defendant repeatedly threatened her that if she ever told anyone about what had happened, he would "come looking" for her and harm people that were close to her. She claimed that those threats delayed her from reporting the incident to the police. Defendant also told Dunn that he abandoned Huggins' car behind Mercer County Community College, with its tires slashed. He covered the car with mud to conceal any fingerprints.

Experts testified that Huggins died as a result of two gunshot wounds to the head. The prosecution's experts opined that Huggins may have lived as long as one hour after the first shot, or possibly ten to thirty minutes after the second shot. They noted that an autopsy found dirt in the victim's lungs. A defense expert rebutted that, testifying that she died immediately following the last shot. Dunn's testimony, however, supported the contention that Huggins did not die immediately. Defendant was arrested ten days after the murder on an unrelated matter. At the time of the arrest, the .22 caliber pistol used during the murder of Huggins was found on defendant. Defendant was charged with kidnapping and sexual assault incidents involving four other women that had occurred both before and after the murder of Huggins.

A Mercer County Grand Jury returned an indictment on June 8, 1994, that charged defendant with purposely or knowingly causing the death of Kristin Huggins by his own conduct, felony murder, first-degree kidnaping, first-degree robbery, first-degree aggravated sexual assault, second-degree possession of a weapon for an unlawful purpose, third-degree theft, fourth-degree credit card theft and third-degree attempted unlawful use of a credit card. On July 1, 1994, the Mercer County Prosecutor's Office served notice of the following aggravating factors in support of a death penalty prosecution against defendant: (1) the murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by defendant; and (2) the murder was committed while defendant was engaged in the commission of, or attempt to commit, robbery and/or kidnaping and/or aggravated sexual assault.

Defendant requested a change of venue from Mercer County. Ultimately it was determined that the case would be tried to a jury selected from Burlington County. The trial commenced in January 1996. On February 20, 1996, the jury found defendant guilty on all counts.

In the penalty phase, the State relied only on the evidence that it had submitted during the guilt phase to support the two asserted aggravating factors. The defense submitted 180 mitigating factors concerning defendant's early childhood and the abuse he endured during his childhood. Presumably for strategic purposes, the defense decided not to address defendant's adolescent years during which he had compiled an extensive juvenile record. The trial court consolidated all those mitigating factors into one omnibus mitigating factor.

Three defense experts were offered during the penalty phase: a mitigating expert, a child psychologist and a psychiatrist. All concluded that defendant was raised in an extremely dysfunctional family environment. His mother was abused by his father. She had married defendant's father when she became pregnant, but he eventually abandoned the family. Defendant's mother neglected him, and she and her boyfriend physically abused him. The experts also testified that defendant was exposed to sexual activity at home. At a young age, defendant became involved in violent conduct and sexual activity, and experimented with drugs. School officials could not control his antisocial behavior. At one point, defendant was diagnosed as mentally retarded and institutionalized. A mood-elevating medication was prescribed.

One expert concluded that defendant had manifested a "rage against women" because of his experiences as a child. The expert relied on the fact that defendant was often neglected as a child and had experienced a great deal of difficulty in school, which eventually led to his institutionalization in a state mental hospital. The expert concluded that he should have been classified as having a "severe conduct disorder" at age thirteen.

Defendant admitted to drug use in his pre-sentencing reports, stating that he enjoyed smoking marijuana on a regular basis. Those reports also indicate that, from as early as 1970, defendant entered and re-entered the criminal justice system on a regular basis. He accumulated twelve convictions as an adult, spending less than one year out of prison during the entire period from 1974 to 1992.

Defendant has not shown any remorse for his actions. Throughout the trial, defendant acted with contempt toward all involved in this case, including his own attorney. He smirked at the State's witnesses while the jury was present. His lack of remorse was poignantly underscored during his non-capital sentencing hearing when, contrary to the court's repeated instructions, he addressed Mr. and Mrs. Huggins and told them they owed him an apology because of his conviction.

On the capital counts, the jury found beyond a reasonable doubt that the two aggravating factors outweighed the sole omnibus mitigating factor and sentenced defendant to death. On the remaining non-capital charges, defendant was sentenced to a consecutive sentence that totaled two life terms plus sixty-five years, with an eighty-two-and-a-half year parole disqualifier.

This Court affirmed defendant's conviction for capital murder and his death sentence, as well as his convictions and sentences for the non-capital charges. Harris, supra, 156 N.J. at 133. On direct appeal, defendant requested proportionality review pursuant to N.J.S.A. 2C:11-3e, and the issue was reserved for this separate proceeding. Harris, supra, 156 N.J. at 133.

II. INDIVIDUAL PROPORTIONALITY REVIEW

The purpose and development of proportionality review generally, and in this State, was reviewed in State v. Loftin, 157 N.J. 253, 266-77 (Loftin II), cert. denied, ___ U.S. ___, 120 S. Ct. 229, 145 L. Ed.2d 193 (1999). At the conclusion of the individual proportionality review in Loftin II, we determined that the proportionality review methodologies then in use were in need of review and reconsideration. Id. at 453-457. Accordingly, we appointed the Honorable David S. Baime as a Special Master to re-examine and make findings and recommendations relating to the proportionality methodology used by the Court since State v. Marshall, 130 N.J. 109 (1992) (Marshall II), cert. denied 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). Judge Baime's report enabled the Court to reevaluate certain aspects of individual proportionality review. In re Proportionality Review Project, 161 N.J. 71 (1999) (Proportionality Review I).

We reviewed Judge Baime's findings and recommendations and accepted most. We concluded that the universe of cases for proportionality review should include all defendants eligible for the death penalty, irrespective of a capital prosecution, as we had concluded before. Id. at 84-87. We abandoned use of the index-of-outcomes test, id. at 91, but determined to continue frequency analysis through use of a modified salient factors test with fewer subcategories. Id. at 87-89.

This case is among the first of the proportionality reviews conducted by the Court in the wake of Proportionality Review I. As before, there remains a two-part framework for reviewing a death sentence to determine whether it is proportionate:

The first part is frequency analysis, a statistical measure of the numerical frequency with which similar cases have resulted in sentences of death. The second part is precedent-seeking review, a traditional judicial way of comparing the files in similar cases to determine whether a defendant's death sentence is freakish or aberrational or the result of impermissible influences. [Proportionality Review I, supra, 161 N.J. at 77.]

Through proportionality review, we seek to determine "whether a particular death sentence is aberrational, not whether it compares perfectly with other sentences." State v. Bey, 137 N.J. 334, 352 (1994) (Bey IV), cert. denied 513 U.S. 1164, 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995) (citing Marshall II, supra, 130 N.J. at 131). Showing that it is disproportionate is the defendant's burden. State v. DiFrisco, 142 N.J. 148, 162 (1995) (DiFrisco III).

A. Universe of Cases

As a threshold issue, the "universe of cases" for purposes of comparison to defendant's case must be determined. All death-eligible cases are considered, whether or not they were capitally prosecuted, because the decision not to prosecute capitally "is not necessarily a reflection on [the] defendant's lack of deathworthiness." State v. Harvey, 159 N.J. 277, 292 (1999)(emphasis added)(Harvey III). Once the universe of cases is determined, proportionality review may begin.

Thirteen basic categories have been created that differentiate capital murder cases based on statutory aggravating factors. The thirteen categories are:

(A) Victim is a Public Servant;

(B) Prior Murder Conviction without A above;

(C) Contract Killing without A-B above;

(D) Sexual Assault without A-C above (subdivided into (1) aggravated and (2) other);

(E) Multiple Victims without A-D above (subdivided Into (1) aggravated and (2) other);

(F) Robbery without A-E above (subdivided into (1) home, (2) business, and 3 other);

(G) Torture/Depravity without A-F above;

(H) Abduction without A-G above;

(I) Arson without A-H above;

(J) Escape Detection without A-I above;

(K) Burglary without A-J above;

(L) Grave Risk without A-K above;

(M) Victim Under 14 Years Old without A-L above.

Certain groups are subdivided by criteria that attempt to distinguish the murder based on "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 State v. Martini, 139 N.J. 3, 33 (1994) (Martini II), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995)); see Harvey III, supra, 159 N.J. at 301. In Proportionality Review I, we adhered to the principle of unique assignment in the salient factor review. "[T]he principle is that even though a case may contain multiple identifying factors, e.g., killing a public official and robbing or torturing the official, the case is assigned to one category for salient-factor review." Proportionality Review I, supra, 161 N.J. at 89.

Where the principal salient factor in a death-eligible murder is a sexual assault, the Administrative Office of the Courts ("AOC") has classified such cases as "D" category homicides. Defendant's case falls into that category. Judge Baime has recommended subdividing the D category for purposes of analysis into two categories: aggravated killings (D-1 category) and non-aggravated killings (D-2 category). Proportionality Review I, 161 N.J. at 88. The recommendation was to distinguish sexual assault murders committed with "particular violence or terror" because juries and prosecutors tended to view such defendants as more deathworthy. Id. at 88. Generally, cases that fall within the D-1 aggravated category include murders that involve multiple wounds from a gun, knife or physical beating, murders that involve mutilation or wounds intended to cause pain, and murders involving a minor victim. Judge Baime emphasized the need for strict guidelines when distinguishing among those cases so as "to avoid the inherent subjectivity in defining" the subcategories.

In furtherance of that objective, the AOC in December 1999 proposed a typology to distinguish between the D-1 and D-2 categories:

Category D-1 - Includes cases in which the victim suffers multiple wounds, such as multiple stab wounds, multiple gunshot wounds or multiple blows to the head. Also includes cases in which the victim suffers multiple types of wounds, such as those resulting when the victim is beaten, stabbed, and then strangled or suffocated. Beatings in this category typically result in death, unconsciousness, fractured bones, and/or internal injuries. Also includes cases in which the defendant inflicts pain, rather than death. Examples include, but are not limited to, cases which involve stab wounds to the genital area, cigarette (or similar) burns, injuries to the victim's eyes, injuries caused by biting, or wounds which a Medical Examiner can attest were intended to cause pain. Also includes cases in which the [] victim was under the age of 14, regardless of the victim's injuries or cause of death.

Category D-2 - Includes cases in which the victim suffers a single fatal wound, such as a stab wound to the heart, a slit throat, or a gunshot wound to the head. Also includes cases which involve a single cause of death, with no contributing injuries. Beatings in this category typically result only in isolated bruising or minor lacerations, and are generally intended to subdue, rather than harm, the victim.

In this matter, the AOC has assigned defendant to the D-2 category stating the victim was not under the age of fourteen when she was killed, and because she suffered only "a single fatal wound" with no other contributing injuries.

When we reviewed Judge Baime's recommendations in Proportionality Review I, we agreed that the frequency analysis should consist only of the salient-factors test, and that that test should be modified to contain fewer subcategories. 161 N.J. at 87-89. Only a few discrete subcategories were recommended for retention; one of them was the sexual assault classification. Id. at 88. We did not object to the recommendation to subdivide the sexual assault category of cases when we adopted Judge Baime's general recommendations improving on the salient-factors test in Proportionality Review I, 161 N.J. at 87-88. But the instant matter highlights the difficulty with attempting to subcategorize cases within this classification of death-eligible cases.

Trying to create objective criteria that consistently distinguish among sexual assault murders on the basis of the degree of particular violence and terror is problematic. Cases of this nature inherently involve subjective factors, particularly when the determinative linedrawing is supposed to focus on "particular violence or terror" (emphasis added).

We are unconvinced that the AOC's assessment of this matter, assigning it to the "non-aggravated" subcategory of D-2, correctly reflects the degree of "particular violence or terror" defendant inflicted on Huggins. We believe defendant's case is more similar to the cases that fall within the D-1 category than D-2. The evidence militates in favor of a conclusion that Huggins did not die quickly from a single gunshot to the head. She suffered as a terrorized prisoner of the defendant for approximately two hours. She was brutalized in the sexual assault and she did not die from a single gunshot wound to the head. She likely died sometime after the later second gunshot wound to her face.

The facts of this case appear to fit more appropriately in the D-1 subcategory. However, we need not so conclude because both parties here agree that the D category cases should be consolidated for purposes of reviewing defendant's case. That approach is more compelling under the circumstances because of our view of the questionable appropriateness of the D-2 category and because the D-2 category has so few cases with which to compare defendant. To perform a complete analysis of defendant's murder, consolidation of the entire D category offers a more appropriate sampling of cases like defendant's to assess deathworthiness. Accordingly, we will compare the facts of defendant's case to those similar cases within the D category as a whole.

B. Frequency Analysis

Frequency analysis is the first step in the proportionality review process. Proportionality Review I, supra, 161 N.J. at 77. Through its simple statistical methodology, it helps us determine whether the frequency of death sentences in similar cases involving defendants with similar culpability supports a determination that the death penalty sentence in the case before us is not aberrational. State v. Chew, 159 N.J. 183, 201-02 (1999) (Chew II). The salient-factors test allows the Court to compare the case under review with other similar cases, and to distinguish those cases by their most salient factor, i.e., the fact that would most likely influence the decision to sentence a defendant to death.

Turning to the raw data for the frequency with which the death penalty is imposed, we will review both the D category of cases and all death-eligible cases. The following chart summarizes that data when defendant's death sentence is included and excluded:

Principal salient-factors and the number of cases

D. Sexual Assault

59 Death Eligible Cases

Exclude Harris

D-1. Aggravated Sexual Assault

47 Death Eligible Cases

Exclude Harris

D-2. Other Sexual Assault

12 Death Eligible Cases

Exclude Harris

All Death-Eligible Cases

455 Death Eligible Cases

Exclude Harris

Cases that proceeded penalty phase where the death penalty was imposed

44% (26/59)

43% (25/58)

49% (23/47)

48% (22/46)

25% (3/12)

18% (2/11)

39% (176/455)

39% (175/454)

Cases at the rate among all death-eligible cases phase

35% (9/26)

32% (8/25)

35% (8/23)

32% (7/22)

33% (1/3)

0% (0/2)

30% (52/176)

29% (51/175)

Death-sentencing to the penalty

15% (9/59)

14% (8/58)

17% (8/47)

15% (7/46)

8% (1/12)

0% (0/11)

11% (52/455)

11% (51/454)

The salient-factors test demonstrates that category D cases are considered more "deathworthy" than most of the other death-eligible categories. Sexual assault cases (Category D) proceed to penalty phase at a higher percentage (44%) than the overall average for death-eligible cases (39%). Accordingly, proceeding to the death penalty phase is not aberrational. The test also reveals that the death-sentencing rate in Category D, fifteen percent, is slightly greater than the eleven-percent death-sentencing rate of the 455 cases in the full universe of death-eligible cases. Thus, sexual assault cases are more likely to involve prosecutions that seek the death penalty and are more likely to have a death sentence imposed.

When defendant's death sentence is excluded, the numbers do not change significantly, except in the D-2 category. Defendant is the only defendant in the D-2 category to have been sentenced to death. That fact is accentuated by the small number of cases in the D-2 category. However, as previously stated we are unpersuaded that defendant is more similarly situated to D-2 defendants than defendants in the D-1 subcategory, and for purposes of this analysis we are considering the D category as a whole. In neither the D category nor the D-1 subcategory do the numbers change significantly when defendant is excluded. We note also that in the cases that proceeded to the penalty phase in both the D-1 and D-2 subcategories, including defendant's sentence, the death penalty was imposed in roughly a third of the cases.

As applied, the salient-factors test demonstrates that defendant's death sentence is not disproportionate. The imposition of a death sentence in this case is consistent with other cases in which no disproportionality was found. See Morton, supra, ___ N.J. ___ (2000) and cases cited therein. Even though the death-sentencing rates in D category cases are similar to the overall death-sentencing rates, evidencing no disproportionality in this part of our analysis, nevertheless we turn to precedent-seeking review, to which, in prior proportionality reviews, we have accorded greater weight than frequency review. State v. Cooper, 159 N.J. 55, 88 (1999) (Cooper II); see also Harvey III, supra, 159 N.J. at 308 ("We have consistently placed greater reliance on precedent-seeking review than on frequency review."); DiFrisco III, supra, 142 N.J. at 184; (same); Chew II, supra, 159 N.J. at 209 (acknowledging reliance on precedent-seeking review); Loftin II, supra, 157 N.J. at 296 ("We have consistently placed our reliance on [precedent-seeking] review because of the analytic difficulties we have encountered in applying frequency analysis.").

C. Precedent-Seeking Review

In precedent-seeking review, "we examine death-eligible cases similar to defendant's case to determine whether his death sentence is aberrant when compared to the sentences received by defendants in those other cases." Chew II, supra, 159 N.J. at 210; accord Cooper, supra, 159 N.J. at 70.

1. Relevant Factors

The first step of precedent-seeking review requires examination of defendant's criminal culpability. Three major considerations guide our analysis: (a) defendant's moral blameworthiness, (b) the degree of victimization associated with defendant's conduct, and (c) defendant's character. Chew II, supra, 159 N.J. at 210; Marshall II, supra, 130 N.J. at 155.

(a) Defendant's Moral Blameworthiness

In reviewing a defendant's moral blameworthiness, we examine factors that include 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 (citing Marshall II, supra, 130 N.J. at 155).]

Consideration of those factors in the instant matter reveals that defendant is highly blameworthy.

Huggins' murder was coldly pre-meditated. Defendant was determined to find a vehicle to carjack so that he could get out of the rain and drive to the business he wanted to rob. Once he carjacked Huggins, he told Dunn on two separate occasions that he was going to kill her. Huggins was terrorized for two hours as defendant's prisoner. Despite being categorized as a sexual assault murder, this murder did not occur in the tumult of a sexual assault. It was part of a more lengthy terrorization and culminated in a calculated shooting. During this ordeal, defendant confined Huggins to the cramped, small trunk of her own car while he drove around Trenton. She was allowed out only twice -- once to be sodomized and later to be shot. The cold-bloodedness and brutality of defendant are evidenced by the fact that defendant specifically asked Dunn to watch him kill Huggins. Defendant's motivation for killing Huggins add to his highly blameworthy status. The jury specifically found that defendant killed Huggins to escape detection, apprehension, trial, punishment or confinement. Although we do not rely on it to support our finding that defendant is highly blameworthy, we also note defendant's own words to the effect that he would kill the person whose vehicle he carjacked if the victim were white.

There is no evidence of justification or excuse present in this case. Huggins did not provoke defendant to a sudden intemperate act. Nor did he kill her in the midst of violent sexual frenzy. To the contrary, for two hours she was a helpless victim of a cool and deliberate carjacker. The rape was part of the latter end of her abduction. Defendant was aware of how helpless Huggins felt. In fact, defendant took affirmative steps to ensure that she would feel helpless. He carjacked her at gunpoint and then locked her in the small trunk of her car. When she was later released from the trunk, she found herself in an isolated and unfamiliar area. Then, defendant sexually assaulted Huggins despite her pleas for mercy, which only could have contributed to Huggins' existing feelings of despair. Dunn did not offer any assistance because of her own fear of defendant. During Huggins' final hours, she was alone and could not take any steps to alleviate her feeling of helplessness.

Turning to the defendant's mental state, three experts testified during the penalty phase. Their review was limited to defendant's mental condition as a young child presumably because the defense did not want the jury to have specific knowledge of his criminal record. The experts concluded that defendant was mentally disturbed because of his childhood experience. Two experts specifically concluded that as a child he suffered from "severe conduct disorder."

The experts noted that defendant grew up in a severely dysfunctional family environment. He witnessed his mother being abused by his father. His father abandoned the family when defendant was very young. Defendant's mother neglected her son's needs as a child, and allowed him to be exposed to situations that were both physically and mentally abusive. Defendant eventually engaged in violent and sexual activity while still a boy. School records, beginning as early as kindergarten, indicated that defendant exhibited severe behavioral problems. When such issues were brought to his mother's attention, she shifted blame to the school system and failed to take appropriate steps to deal with her son's mental problems. The school had defendant evaluated by a psychiatrist when he was nine years old. It was recommended that defendant attend therapy, but his mother did not see to it that those therapeutic needs were met.

By age twelve, the court stepped in and institutionalized defendant. Doctors at Trenton State Hospital determined that he suffered from mild retardation and adjustment reaction to childhood. He was released to his mother's custody after an initial thirty-day evaluation, but was committed five months later pursuant to another court order. Defendant continued to be disruptive while in the children's psychiatric center, so he was transferred to the adult section of the hospital. His behavior improved once he was placed on a daily regime of Thorazine. Although the hospital recommended otherwise, defendant was released to the custody of his mother a year later.

Despite this poor childhood and resulting debilitating effects on defendant, the evidence was not persuasive that defendant should be relieved of his culpability for his acts involving Huggins. We note specifically that the experts focused only on defendant's early youth, a long time distant from the facts that determine his moral culpability for his December 17, 1993 actions. In fact, we find that there is nothing mitigating about defendant's age or level of maturity at the time of the murder. He was forty-one years old at the time, old enough to know right from wrong. Further, because of his previous experience with the criminal justice system, defendant knew that there would be criminal consequences for his actions. No alcohol or drug induced diminishment of his cognitive functions affected his judgment that morning. Defendant was stone-cold sober when he abducted, viciously raped and murdered a victim who just happened to cross his path, driving a vehicle he decided to carjack. He is highly blameworthy.

(b) Degree of Victimization

To determine the level of victimization endured because of defendant's conduct, we consider the "violence and brutality of the murder," as well as the "injury to nondecedent victims." Chew II, supra, 159 N.J. at 210-11 (citing Marshall II, supra, 130 N.J. at 155). Again, we find defendant's criminal culpability to be high because this review demonstrates that the murder of Huggins was violent and brutal.

Huggins was terrorized for over two hours while being abducted, raped and shot by defendant. She was confined to the small trunk compartment of her car during a good portion of this ordeal. Defendant raped Huggins despite the fact that she pled for mercy. Defendant then forced Huggins back into the trunk of the car after her vicious sexual assault. Deciding it was time to kill Huggins, defendant asked Dunn to watch, opened the trunk and shot Huggins in the back of the head as she attempted to crawl out of the trunk, not knowing what defendant was going to do to her next. All experts agreed that Huggins survived after being shot in the head once. She was dumped in a lot littered with refuse, and a discarded mattress was thrown on top of her. Forensic evidence presented at trial would support a jury finding that she survived from ten to thirty minutes after being shot by defendant again when he returned. The review of the totality of Huggins' last two hours alive lead to the conclusion that her victimization was high. In large part, the heinousness of defendant's crime is heightened by his terrorizing of his victim throughout her abduction until her death.

(c) Character of Defendant

Finally, we must examine the character of the defendant by looking at his "prior record, other unrelated acts of violence, cooperation with authorities, remorse, and capacity for rehabilitation." Chew II, supra, 159 N.J. at 210-11 (citing Marshall II, supra, 130 N.J. at 155). In light of the fact that defendant had spent less than a year out of prison over a span of twenty years, and because he has shown no remorse for his actions, consideration of defendant's character only heightens our overall view of his criminal culpability.

Defendant has an extensive prior criminal record. As a juvenile, he was arrested for malicious mischief, assault and battery, petty larceny, violation of probation, running away from home, and purse snatching. As an adult, he had seven prior indictable convictions and twelve convictions in total. The gravity of defendant's arrests as an adult escalated through the years. He had been arrested for receiving stolen property, trespass, assault, shoplifting, larceny and robbery earlier in his criminal career. More recent offenses have included armed robbery, weapons offenses, assault and battery on a police officer, arson, and aggravated assault.

While in prison, defendant committed more than one hundred infractions that included sexually assaulting inmates, threatening corrections officers and physically attacking inmates. He had been out of prison for only five months before he killed Huggins, and was arrested ten days after the Huggins murder for four separate incidents of aggravated sexual assault and kidnaping that occurred immediately before and after Huggins' murder.

Defendant proclaimed his innocence throughout the proceedings of this case. He blames society and the victim's family for being prosecuted for the murder of Huggins. Rehabilitation is not a realizable goal.

(d) Conclusion

All three categories show that defendant's overall culpability is high. Defendant took affirmative and deliberate steps to carry out the murder of Huggins. Although childhood mental disorder was documented, that history is substantially outweighed by other factors that demonstrate defendant's high level of moral blameworthiness. The amount of victimization associated with this crime is significant and there are no redeeming qualities about defendant's character. Accordingly, we find defendant's criminal culpability to be high.

2. Defendant's Comparison Group

Precedent-seeking review requires the examination of cases factually similar to defendant's case to determine "[w]hether defendant's sentence is disproportionate in comparison with the culpability levels of the comparison group." Loftin II, supra, 157 N.J. at 339. Generally, we "employ[ ] the same comparison group as that used in the salient-factors test" when conducting precedent-seeking review. Chew II, supra, 159 N.J. at 214.

We start with the D category, as a whole, to determine the cases that are most similar to the facts of defendant's case. *fn2 The parties agree on fifteen cases for our review: Bey, Cunningham, Dennis(2), Dickerson, E. Edwards, Johnson, Marrero, Mincey, Prater, Reese, Rivera, Spraggins, Thomas, J. Williams and Zola. *fn3 Defendant proposes an additional twelve for the Court to consider: Bolinger, Brockington, Chippero, Clowney, Dennis(1), R. Edwards, James, Koedatich, Luciana, Muhammad, Norris and G. Williams. In comparison to both groups, defendant asserts that he is less "deathworthy" than the other defendants because there was less victimization associated with the killing of Huggins. "[T]he ultimate decision concerning which cases are to be considered for precedent-seeking review" remains within the province of this Court. Proportionality Review I, 161 N.J. at 91. Except as noted hereinafter, we accept and will examine all agreed-upon cases and the additional twelve cases proposed by defendant.

We find that the cases presented for our review fall into five distinct categories, and we will use these categories for ease of comparison. Category (1) discusses cases in which the death penalty was imposed. Category (2) includes cases in which the State did not seek the death penalty. Category (3) addresses cases in which the defendant pled guilty. Category (4) includes cases in which the defendant was not convicted of murder. Finally, category (5) discusses cases in which the death penalty was not imposed in the penalty phase. From our review of all of the cases in each category identified above, we find that defendant's factual situation is most similar to the cases presented in category (1).

Category (1)

The prosecutions of Marko Bey, James Williams and James Zola comprise category (1). Turning first to J. Williams and Zola, in both the juries imposed the death penalty. This Court then reversed those sentences. State v. Zola, 112 N.J. 384 (1988) (remanding for second penalty trial because court failed to instruct jury that it must find that aggravating factors outweigh mitigating factors beyond reasonable doubt when charging jury during first penalty phase); State v. Williams, 113 N.J. 393 (1988) (finding that combination of inadequate questioning during voir dire and failure of trial judge to dismiss prospective juror for cause required reversal of guilt and penalty proceedings). On remand, J. Williams and Zola both pled guilty and received life sentences.

For purposes of our proportionality review, we start with the fact that the actions of J. Williams and Zola were found to be punishable by death by two separate juries. In comparison to both cases, Harris is equally, if not more, deathworthy.

Harris' case is similar to the cases of J. Williams and Zola because in each the victim was murdered, sexually assaulted and robbed. However, Williams and Zola may be regarded as "less deathworthy" than Harris because evidence was presented at their trials that demonstrated that both Williams and Zola were severely intoxicated when committing their crimes. In contrast, no evidence was presented that suggested Harris was intoxicated or under the influence of drugs when he carjacked, sexually assaulted and murdered Huggins. Harris was sober, thoughtful and deliberate throughout the two hours of Huggins' victimization and murder.

Further, in Zola, there was only circumstantial evidence of a sexual assault. The sexual assault was clearer in Harris' case. Finally, more extensive mitigating evidence was presented on behalf of both J. Williams and Zola than that presented for Harris and the jury found Zola to be under the influence of extreme emotional disturbance. In comparison to J. Williams and Zola, Harris is equally or more deathworthy. His death sentence cannot be regarded as aberrational since they, like he, received jury-imposed death sentences.

Review of Bey's case also supports the conclusion that Harris' sentence is not disproportionate. Like Harris, Bey kidnaped and robbed his victim. Arguably the victimization level in Bey's case is higher because Bey effectively "stomped" his victim to death. However, the two hours of abduction, imprisonment and assault Huggins endured leading up to her shooting should not be overlooked when comparing the two cases. After being carjacked, she was forced into the small trunk of her car, only to be released for purposes of Harris' sexual gratification. She was then forced back into the claustrophobic compartment before he eventually shot her once. Evidence at trial indicated that she may have lived for some time even after the second gunshot in the face. In between these two shootings, she was dragged some distance to be left in an isolated area on the ground with a mattress thrown over her. The level of victimization endured by Huggins is comparable to the victim in Bey's case.

Also, more mitigating evidence was presented in Bey's case than was presented for defendant. Although both Bey and Harris were neglected as children, three doctors testified that Bey suffered from a specific psychiatric condition caused by organic brain damage. Harris had no such specific disabling mental condition at the time he killed Huggins. Unlike Harris, Bey was severely intoxicated when he committed the crime. We also note that Bey was barely old enough to be eligible for the death penalty when he murdered his victim. Nevertheless, the jury imposed the death penalty for Bey as it did for Harris. Thus, Harris' sentence, when compared to Bey's, is not aberrant.

To summarize, when considering similar cases in the D category where the death penalty was imposed, Harris' sentence is not disproportionate. He is equally deathworthy, if not more so, than Bey, Zola and J. Williams, all of whom received the death penalty.

Category (2)

We include in category (2) the two cases in this universe of cases in which the State did not seek the death penalty: Sam Mincey and Sharob Clowney. Both Mincey and Clowney were addressed in Cooper II, supra, 159 N.J. at 99-101.

Defendant Samuel Mincey beat, raped and strangled a seventy-three-year-old woman, and stole her belongings. He was prosecuted six years later for that murder when police identified one of the victim's belongings during the investigation of a separate crime. A jury convicted him of murder and felony murder.

Unlike in Harris, the prosecutor in Mincey did not pursue that matter as a capital case. We noted in Cooper II, supra, 159 N.J. at 98, that our review of the prosecutor's decision to forego a capital case against Mincey was hindered. The AOC's summary surmises that the prosecutor in Mincey may have concluded that the statute of limitations barred reliance on any aggravating factor that could have provided a basis for a capital prosecution. Id. at 101. There has been no further elucidation on this point. Accordingly, we adhere to the AOC's seemingly correct assessment that there were legal impediments to mounting a capital prosecution against Mincey. There was no similar impediment in the instant matter. Indeed, the jury found both aggravating factors offered by the State against Harris to be present. Mincey does not demonstrate that defendant's death sentence is disproportionate.

Sharob Clowney was convicted of murder, felony murder, aggravated sexual assault, two counts of attempted murder, and various possessory offenses. He received an aggregate sentence of life plus twenty years with a forty-year term of parole ineligibility. We have previously cited Clowney's history of emotional instability and evidence suggesting that the victim may have purchased drugs from defendant in our identification of those factors likely to have influenced the prosecutor's decision to forgo a capital prosecution. Id. at 99. Unlike Clowney, the evidence of Harris' mental instability at the time of the murder was not well documented at trial, thus there was no similar impediment to pursuing the death penalty for him. Reliance on Clowney is also undermined by the fact that, unlike Harris, he was not convicted of kidnaping or robbery. The case is dissimilar.

The Mincey and Clowney cases provide little assistance for this proportionality review. In each, there appears to be a readily inferable basis for deciding to forego capital prosecution. In this case, there were no similar reasons to forego pursuit of a capital prosecution. Thus, reliance on the Mincey and Clowney cases does not support a conclusion that Harris' case is disproportionate.

Category (3)

We turn next to those cases in which the defendant pled guilty instead of withstanding a capital prosecution. Category (3) includes the following cases: Jerome Dennis(2), Eugene Edwards, Robert Bolinger, and Otis James. The parties agreed only to Dennis(2) and Edwards for purposes of proportionality review. The Public Defender offered Bolinger and James. We will review all.

We find that the Bolinger and James cases are dissimilar in nature to Harris' case and the decision of the prosecutor to accept a guilty plea in lieu of pursuing a capital prosecution in each is easily reconcilable with the prosecutor's decision to pursue and the jury's decision to impose the death sentence for Harris. Both Bolinger and James were heavily intoxicated on the day that they committed the murder for which each was prosecuted. Both also had a well documented history of mental defect and had diminished capacity at the time of the crime. Bolinger was a Vietnam veteran who was addicted to drugs and alcohol and who became intoxicated daily. He was burglarizing his victim's apartment when she came home. While he tried to get away, the victim saw him. He attacked, sexually assaulted, and killed her. The impulsive nature of the murder, coupled with Bolinger's history of drug and alcohol use, may have influenced the prosecutor's decision to accept his guilty plea.

James also was a daily drug and alcohol abuser. He was heavily intoxicated on the day he entered the home of his victim and sexually assaulted and murdered her. More importantly, there was a documented history of attempted suicide and adult psychiatric hospitalization. Unlike Harris, there was no kidnaping or robbery involved in James' case. Because both Bolinger and James are distinguishable from Harris due to their demonstrated diminished capacity at the time of their murders, they are both less deathworthy than Harris.

Turning to Dennis and Edwards, both appear as deathworthy as Harris. Dennis tied up his victim, raped her and then stabbed her to death. To dispose of her body, he wrapped it up in carpeting and rolled it down a hill. Edwards participated in the rape of his prostitute victim with his co-conspirator, Michael Prater. They had lured her to Edwards' home with a promise of drugs in exchange for sexual relations. When Prater unsuccessfully tried to kill the victim by stabbing her, Edwards suffocated her while Prater stabbed her an additional three or four more times.

Dennis had been charged with committing four other homicides at the time that he entered a plea of guilty. In one of the murders he claimed to have been influenced by a "demon." He may have been reasonably concerned that the other prosecutions would have been considered aggravating factors that would have resulted in a death sentence. Thus, the advantage of pursuing a plea agreement may be reasonably inferred for Dennis. He was sentenced to two consecutive life terms with a thirty-year term of parole ineligibility, and two concurrent life terms that each included a thirty-year term of parole ineligibility. No explanation for the prosecution's decision to forego a capital prosecution may be inferred from the AOC summaries.

Edwards confessed to the police. He had no prior record and no history of drugs or alcohol abuse. He was a co-conspirator in the murder of his victim, but did not initiate the killing. He joined in after Prater first stabbed the victim. His confession and agreement to provide testimony needed for the prosecution of his co-conspirator, as well as the fact that the homicide began with an apparent agreement to exchange drugs for sexual relations, may well have influenced the prosecutor's decision to accept a guilty plea to a non-capital charge.

Notwithstanding our inability to understand the reasons for the prosecutor's decision in Dennis, we do not find that the life sentences imposed in the Category (3) cases render Harris' death sentence aberrational. The one unexplainable prosecutorial decision in Dennis does not cause Harris' capital prosecution to be disproportionate. As for Bolinger, James, and Edwards, the mitigating factors of diminished capacity at the time of the crime, documented evidence of mental defect, and the confession and testimony against a co-conspirator provide ample reason for distinguishing those cases from Harris. We find no disproportionality in Harris' death sentence as a result of those cases.

Category (4)

We next consider category (4), which includes cases where the defendants were not found guilty of murder. Defense counsel proposed the two cases that fall in this category: Founcill Brockington and Walter B. Norris. Both cases are facially dissimilar from Harris' case because, like so many other cases proposed by defendant, defendants Brockington and Norris were not charged with kidnaping or robbery.

Brockington sexually assaulted and strangled his thirty-four-year-old victim in her home. The AOC summary is vague about whether Brockington and the victim knew one another or were strangers. This ambiguity about the origins of the encounter between the victim and Brockington may have affected the prosecutor's decision to proceed non-capitally and accept Brockington's plea to aggravated manslaughter. In addition, Brockington had no prior criminal record and claimed to have been a regular cocaine user for a year or two prior to the homicide.

The origins of the encounter between Norris and his victim are also ambiguous. A security guard witnessed Norris kicking "something" which turned out to be a naked bleeding woman lying on the ground. She died of multiple injuries to her face and head. A condom was found at the scene. Norris was charged with murder and three counts of aggravated sexual assault. He was convicted of aggravated manslaughter and sentenced to thirty years with a fifteen-year parole ineligibility term. All other charges were dismissed.

Like Brockington, Norris did not have a background remotely resembling the terrible character of Harris. Norris had a well-documented history of mental illness, including institutionalization while an adult. The murders of both Norris' and Brockington's victims occurred as part of a violent sexual exchange. With Harris, murder was a calculated act during a two-hour abduction over the course of which he engaged in a brutal sexual act as a terroristic aside to his theft of Huggins' car and his abduction and eventual shooting of her. Those two cases, Brockington and Norris, are distinguishable from Harris' case. They do not support a finding that Harris' sentence is disproportionate.

Category (5)

Category (5) includes those cases within Harris' universe of cases in which the jury did not impose the death penalty. The parties agreed to the following cases that fall within category (5): Bruce Cunningham, Keith Dickerson, Scott Johnson, Adam Marrero, Michael Anthony Prater, John Seymour Reese, Rafael Rivera, Jerry Spraggins and Christopher Thomas. Defendant also offered a number of cases that are found in category (5): Richard Chippero, Ralph Edwards, James Koedatich, Mark Luciana, Rasheed Muhammad and Gerald Williams.

We first note that both R. Edwards and Muhammad murdered children. Defendant has conceded that those two cases should not have been included in the cases presented for proportionality review. We agree, and accordingly do not consider either case further. We also will not consider the Koedatich case. We have already held in Cooper, supra, 159 N.J. at 76-77, that defendant James Koedatich should not have been assigned to the sexual assault-murder category. We specifically found that

[a]lthough in its prosecution of Koedatich for murder and kidnaping 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. [Id. at 76.]

Therefore, during the final stage of precedent-seeking review, we focus only on those cases the parties agreed to, as well as the three remaining cases offered by defendant: Chippero, Luciana and Williams. Within this universe of cases we first note that juries have imposed a life sentence twelve times (category 5), and imposed the death penalty in only three cases (category 1). Close review demonstrates that imposition of the death penalty for Harris is understandable and not an aberration when compared to the defendants in the category (5) group of cases because of the high level of victimization associated with the murder of Huggins, and because Harris did not present the same degree of mitigating evidence as that presented by the defendants in the cases in which the jury imposed a life sentence. The Harris jury could reasonably conclude that he was highly culpable and deserving of a death sentence.

In considering moral blameworthiness, the jury in Harris' case was limited to reviewing defendant's childhood up to thirteen years of age when deciding whether to impose the death penalty. The defense's experts concluded that as a child defendant suffered from a behavioral disorder. But the experts were limited to reviewing records only of Harris' childhood. Unlike many of the cases in category (5), no attempt was made to link defendant's childhood problems to his behavior on December 17, 1992. Additionally, defendant did not allege c(5)(a)(extreme mental or emotional distress) or c(5)(d)(diminished capacity) as mitigating factors, but instead relied on the c(5)(h)(catch-all) factor *fn4 . No evidence was offered to show that any psychological problems Harris endured as a child affected him as an adult at the time of his crime. For that reason, Harris' case is easily distinguishable from those defendants in the D category that received a jury-imposed life sentence. We examine each for purposes of contrast.

Defendant Bruce Cunningham suffered an abusive childhood that may be said to be similar in nature to the abuse suffered by Harris. However, an expert testified during Cunningham's penalty phase that the defendant suffered from a mental disease or defect as a result of a paranoid personality disorder. The jury agreed, finding that c(5)(a) and c(5)(d) applied as mitigating factors in Cunningham's case. No similar finding was made in Harris' case. The jury in defendant Keith Dickerson's case found that c(5)(a) and c(5)(d) applied as mitigating factors. Evidence was admitted that Dickerson suffered from a long history of drug abuse and, as a result, he experienced bouts of paranoia and hallucinations.

Defendant Jerry Spraggins presented mental condition mitigating evidence that may have contributed to the jury's decision to sentence Spraggins to life rather than death. A psychiatrist testified that Spraggins suffered from voyeurism, an uncontrollable need to view woman. The jury found that c(5)(d) (diminished capacity) and c(5)(f) (no prior criminal history) applied in Spraggins' case. Unlike Harris, the defense in Spraggins' case managed to link his mental disease or defect to the crime committed and Spraggins had no criminal record, unlike Harris.

The mitigating evidence presented in the case against Christopher Thomas(2) was also more compelling than the evidence presented in Harris' case. A psychiatrist testified during the penalty phase that Thomas suffered from paranoid schizophrenia and an anti-social personality, which manifests itself in fits of violence and causes auditory and visual hallucinations. A second defense witness corroborated that diagnosis. Thomas was admitted to a psychiatric hospital as a result of a suicide attempt a year before murdering his victim. He also suffered from a history of drug and alcohol abuse. The jury in Thomas' case, by finding that mitigating factor c(5)(a) applied, reasonably may have concluded that Thomas' mental disease or defect contributed to Thomas' criminal behavior and for that reason determined to impose a life sentence.

Defendant relies on the case of defendant Richard Chippero for purposes of proportionality review. Harris and Chippero both were abused during their childhood. However, the abuse endured by Chippero seems to have been more severe. Two of Chippero's step-parents were imprisoned for abusing him. Unlike Harris, Chippero was diagnosed with a specific mental disease. At age seven, he was diagnosed as hyperkinetic, emotionally disturbed and mentally retarded. Later he was determined to suffer from bipolar disorder. A year after he graduated from a school for mentally disturbed students, Chippero was admitted to a psychiatric hospital. He was institutionalized on four separate occasions. The jury in Chippero found that Chippero's mental state mitigated his culpability in committing the crime. They concluded that both c(5)(a) and c(5)(d) applied as mitigating factors. In contrast, in Harris' case the jury found that his aggravating factors outweighed his mitigating evidence. We note that on appeal Chippero's conviction has been set aside and a new trial ordered because of his illegal arrest and interrogation. State v. Chippero, 2000 WL 868515 (June 30, 2000). On retrial, his confession must be suppressed due to the "unbroken causal connection between his arrest and confession." Id. at ___.

Defendant Gerald Williams also suffered from a history of depression that resulted in the jury finding mitigating factor c(5)(d) applied. In addition, Williams also indicated that he had abused cocaine and alcohol daily for fifteen years. In combination, it is readily inferable that those factors influenced the jury's determination to forego a capital sentence.

Several of the defendants in category (5) presented evidence of severe intoxication in support of a finding of diminished capacity at the time of the crime, which may have deterred the juries in those matters from imposing a death sentence. One example is Cunningham. The jury found that mitigating factor c(5)(d) applied because Cunningham was extremely intoxicated when he killed his victim and he had a history of excessive drinking and drug abuse. He started drinking in the early morning hours, went to his ex-wife's home and tried to sexually assault her. She managed to retreat to safety. Then, Cunningham picked up more alcohol, got on a bus and drank the additional alcohol. His victim talked to him on the bus, disembarked with him, and may have agreed to have sexual relations.

The jury found only one aggravating factor, c(4)(g) (contemporaneous felony), but found four mitigating factors: c(5)(a) (extreme mental or emotional disturbance), c(5)(c) (age of defendant), c(5)(d) (diminished capacity) and c(5)(h) (any other factor relevant to the case). Those mitigating factors were found to outweigh the one aggravating factor. Cunningham was sentenced to eighty years, with a thirty-year period of parole ineligibility.

Dickerson also was intoxicated when he decided to kill his victim. Immediately before committing the crime Dickerson was freebasing cocaine. Expert testimony presented to the jury indicated that defendant experienced bouts of paranoia and hallucinations when abusing cocaine and that he had a cocaine delusional disorder. The jury in Dickerson's case found mitigating factor c(5)(d) applied, as well as c(5)(a) (emotional disturbance), c(5)(c) (age) and the catch-all factor, c(5)(h), and that those mitigating factors outweighed the one aggravating factor found, c(4)(g) (contemporaneous felony).

Evidence of intoxication presented in the case against defendant Scott Johnson contributed to the jury finding that mitigating factor c(5)(d) applied. One of the many experts that testified to support defendant's presentation of mitigating factors indicated that Johnson's behavior on the night of the murder was consistent with the actions of a person high on crack, showing specific signs of intoxication as well as signs of early cocaine withdrawal.

Johnson made an extensive presentation on mitigating factors. Several of the factors under the omnibus catch-all mitigating factor of c(5)(h) were found. Johnson presented evidence of horrible abuse he endured while a child. Testimony was put forward that although chronologically twenty-three years of age, his mental age was much less and he had a borderline IQ. Johnson, it will be recalled, released the victim's three-year- old daughter unharmed on the premises of a day care center. The jury also viewed a letter wherein Johnson offered to plead guilty and to take responsibility for the crime, and he testified to his remorse for the offense.

On their review of Johnson's horrific crime balanced against his carefully and thoroughly marshaled presentation of mitigating evidence, the jury could not agree on imposition of the death penalty. In so many respects Johnson's case is very similar to that of Harris. But the fact that the jury could not agree in Johnson, yet could agree in Harris, to impose a death sentence, does not render Harris' sentence disproportionate. We note specifically the contemporaneous diminished capacity of Johnson at the time of his offense -- a fact notably missing for Harris. In view of the three other cases in which a death sentence was imposed (Bey, J. Williams and Zola), the jury's judgment of Harris' culpability and its imposition of the death penalty for him is not rendered disproportionate by Johnson's life sentence.

John Seymour Reese beat his victim while drunk. Evidence presented at Reese's trial indicated that he was known to be an alcoholic who tended to be abusive towards women. His conduct on the night of the murder was consistent with this assessment, and therefore most likely contributed to the jury's finding that mitigating factor c(5)(d) applied, and to its inability to decide on a capital penalty. The court sentenced him to life with a thirty-year parole disqualifier.

Defendant Mark Luciana presented evidence that he was severely intoxicated at the time of his crime. The jury found that c(5)(d) applied as a mitigating factor. The jury also found three other mitigating factors -- his age, lack of a prior criminal record and the catch-all factor. Again, the jury was unable to reach a decision on the death penalty, so a life sentence was imposed.

Finally, defendant Gerald Williams presented evidence that he had been using cocaine and alcohol daily for fifteen years. He also had a history of depression. That evidence of diminished capacity and mental disorder apparently influenced his jury to sentence noncapitally.

Our review of the cases in category (5) illustrates recurring themes. Evidence was presented in those cases that indicated the defendants either were severely intoxicated or had diminished capacity due to drug abuse, or were suffering from a mental disease or defect when murdering their victims. In some, evidence was presented on both points. Evidence of a similar nature was not presented in Harris' case. The jury in Harris' case did not find that c(5)(a) or c(5)(d) applied as a mitigating factor. The jury's finding of those mitigating factors in the category (5) cases, when compared to Harris' coldly sober and deliberate abduction, rape and eventual killing of Huggins, differentiates Harris' case and makes his death sentence non-aberrational when compared to the above-mentioned cases in category (5). Harris is simply more deathworthy than those defendants.

Finally, we conclude our discussion of the category (5) cases by focusing on three cases that the parties agreed to use during proportionality review. Those three cases, Marrero, Prater and Rivera, do not fit as neatly into the previous discussion. However, when comparing Harris to those cases, Harris's sentence is still not demonstratably aberrational.

The jury imposed a life sentence for defendant Adam Marrero. Unlike Harris, Marrero was relatively young when he committed murder, twenty-three years old. Marrero and his victim agreed to have sex. A struggle ensued at some point and Marrero, possibly accidentally, strangled his victim in the midst of this violent sexual episode. The cold and deliberate actions of Harris stand in marked contrast to Marrero's crime, leading us to conclude that Marrero's life sentence does not render Harris' death penalty disproportionate. We also note that Marrero displayed more redeeming characteristics than Harris. Among other things, he had been employed on a more consistent basis.

The prostitute victim in defendant Michael Anthony Prater's case, as noted before, initially agreed to have sexual relations with Prater and his co-conspirator, so a kidnapping or other form of forced abduction did not initiate the defendant's contact with his victim. In stark contrast, Huggins was not a willing participant at any stage of the crime. In Prater's case, the jury rejected two of the three aggravating factors offered, while finding mitigating factor c(5)(h). Thus the jury had to weigh one aggravating factor against one mitigating factor. The jury apparently was reluctant to impose the death penalty where there is need to find beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. In contrast, in the penalty phase of Harris' trial, the jury found that the State's two aggravating factors applied and outweighed defendant's single mitigating factor.

Finally, we note that evidence of intoxication was presented in the case brought against defendant Rafael Rivera. Shortly before robbing an elderly neighbor, Rivera had been seen visibly intoxicated. It was revealed during the penalty phase of his trial that he had a history of abusing cocaine, marijuana and alcohol. The jury apparently believed that evidence of diminished capacity because mitigating factor c(5)(d) was found as was factor c(5)(h). As with several of the other cases within this category, the jury was unable to agree on the death penalty; hence a life sentence was the penalty imposed by the court.

3. Precedent-Seeking Review Conclusion

Our precedent-seeking review does not show that Harris' sentence is disproportionate. As our frequency analysis review demonstrated, sexual assault murders are treated as more deathworthy than most of the other death-eligible categories. They proceed to the penalty phase at a higher rate than the overall average for death-eligible cases and the death penalty is imposed at a higher rate than the full universe of death-eligible cases.

It was not statistically aberrational for Harris' case to be prosecuted capitally or for the death sentence to be imposed. And, when factually examined in precedent-seeking review, both decisions clearly are justifiable. Unlike cases in his universe where the prosecutor determined to forego a capital prosecution, Harris' case posed no impediments to such a prosecution. For similar reasons, Harris' case is more comparable to those three cases in which the death penalty was imposed than to those cases in which a life sentence was imposed.

Harris failed to prove any diminished capacity or extreme mental condition affecting him at the time of his crime. He was thoughtful, deliberate and unhurried in all aspects of his carjacking, terrorization, rape and shooting of Huggins during the two hours of her ordeal with him. That was substantially dissimilar from the many cases in the D (sexual assault) category where the homicide was committed in the course of a violent sexual encounter between the defendant and victim. This was a premeditated homicide, carefully executed. Defendant offered no remorse, never taking responsibility for his offense. Because Harris' case is more comparable to the three cases in his universe in which the death penalty was imposed, and may be distinguished from the others we have examined, Harris' death sentence cannot be viewed as aberrational. He was not singled out unjustly for capital punishment. Harris has not demonstrated that his sentence is disproportionate.

III. OTHER ARGUMENTS

A. Alleged Impermissible Influence of Pretrial Publicity

Defendant claims that trial publicity associated with his prosecution and penalty phase trial caused an impermissible influence on the jury and resulted in a violation of his right to a fair trial. Those arguments were addressed comprehensively and rejected in the appeal of his conviction. Harris, supra, 156 N.J. at 133, 141-57. We see no basis to revisit those issues because they have been disposed of fully and fairly. Moreover, our frequency analysis and precedent-seeking review have reinforced that conclusion by demonstrating the nonaberrational nature of the prosecutor's decision to proceed to the penalty phase of this capital case and the jury's decision to impose the death sentence.

B. Alleged Systemic Disproportionality

Defendant makes an independent argument that race plays a significant role in the capital sentencing system generally, and affected his sentence in particular. Consequently, he contends that his death sentence violates his right to equal protection of the laws and has subjected him to cruel and unusual punishment under the state and federal constitutions. Specifically, defendant asserts that prosecutors are more likely to seek the death penalty and juries are more likely to return a death verdict if the victim is white. He contends that that risk was exacerbated in this case due to the combination of the alleged inadequacy of the trial court's voir dire during jury selection, and the testimony of co-defendant Gloria Dunn, who, for the first time at trial, testified that Harris killed Huggins because she was white.

As to the latter two assertions regarding the voir dire and the Dunn testimony, we note again that this Court already has reviewed and disposed of defendant's contentions regarding those issues in the appeal of Harris' conviction. Harris, supra, 156 N.J. at 161-68, 182-83. Again, we see no basis to revisit those issues because the Court's previous rulings fully and fairly disposed of them. In view of those previous rulings, defendant's revived arguments do not demonstrate that racial discrimination contaminated his case. Accordingly, we turn to defendant's alleged systemic disproportionality in the application of the death penalty.

The Court's sentiment concerning allegations of a systemic racial effect on the administration of the Death Penalty Act was expressed in Marshall II:

A death-penalty statute that systemically discriminates on the basis of race of the victim or race of the defendant menaces the institutions and foundation of a free democratic State. [130 N.J. at 209 (quotations omitted).]

Thus, the Court has examined claims of racial disproportionality for proof of discrimination that would require the overturning of a death sentence. Id. at 213.

Our most recent comprehensive analysis is revealed in the Court's decision in In re Proportionality Review Project (II), ___ N.J. ___ (2000) (Proportionality Review (II)), also decided today. In that decision we reviewed Judge Baime's report that concluded that no reliable statistical evidence of race effect in the application of the death penalty has been produced.

We find no reliable statistical evidence that the race of the defendant influences death sentencing either at the penalty trial stage or in the larger death-eligible sample of cases. Nor does the statistical evidence support the thesis that the race of the defendant affects which cases progress to penalty trial. Further, the statistical evidence suggests that the race of the victim does not affect death sentencing rates - killers of white victims are no more likely to receive the death penalty than killers of non-white victims. Finally application of our monitoring system discloses no consistent statistical evidence indicating that the race of the victim affects which cases progress to a penalty trial. However, some of the evidence in that respect is conflicting, and the issue should be revisited when the database increases. [Baime Report II, supra, at 66.]

We concurred with Judge Baime's conclusion. Proportionality Review (II), supra, __ N.J. at __. No statistical methodology currently in use demonstrates any risk of racial discrimination in the application of the death penalty. Ibid. That determination is controlling here. Thus, we reject defendant's argument that racial bias or discrimination impermissibly affects New Jersey's death sentencing system.

IV.

Based on our determination that defendant Harris' death sentence is not disproportionate, we affirm the sentence of death.

CHIEF JUSTICE PORITZ and JUSTICES O'HERN and STEIN join in JUSTICE LaVECCHIA's opinion. JUSTICE COLEMAN filed a separate dissenting opinion. JUSTICE LONG filed a separate dissenting opinion. JUSTICE VERNIERO did not participate.

COLEMAN, J., dissenting

I voted previously to set aside the capital conviction and sentence of death because of pretrial and mid-trial publicity. State v. Harris, 156 N.J. 122, 211-230 (1998). The AOC has assigned this case to the D-2 sub-category for non-aggravated sexual assault killings because, in its view, this case does not contain extreme brutality, when viewed in the relative context of other sexual assault killings. The victim was over the age of 14 and suffered only a single fatal would with no contributing injuries except the second shot that was fired after obtaining the shovel. There are eleven other cases in the D-2 category. Defendant is the only one to get the death penalty. Even prosecutors deem the D-2 cases less deathworthy. Given those facts, I dissent from the Court's holding and conclude that defendant's sentence of death was influenced by the pretrial and mid-trial publicity and is, therefore, aberrational. Harvey III, supra, 159 N.J. at 319; Cooper II, supra, 159 N.J. at 115. I would vacate the sentence of death and remand for a new penalty trial.

LONG, J., dissenting.

I believe that because Ambrose Harris's death sentence was impermissibly influenced by extensive, adverse publicity prior to and during his trial, meaningful proportionality review is impossible to conduct. Because the majority holds otherwise, I dissent.

I.

Local news coverage of Harris's case was massive and intense. The coverage began during the initial disappearance of the victim, Kristin Huggins, in December 1992, lasted throughout the trial, and continued even during the appeal. The local newspaper is well known for its colorfully unsympathetic treatment of criminals, but it singled out Harris for particularly inflammatory treatment; its coverage of his case was out-of-proportion to its coverage of any other capital defendant. Even the trial court stated that Harris was "the most publicly despised criminal that this Court can recall."

In different articles, the local newspaper referred to Harris as a monster, a beast, a wild animal, and a "useless savage." On February 24, 1993, the newspaper's cover was a large picture of Harris next to the giant headline: "Profile of a MONSTER," and in smaller type, "The Man Who Killed Kristin Huggins Committed His First Rape as a Teenager." The front section story was juxtaposed next to a half-page picture of Harris and the large caption: "From Boy to Beast." Another bold headline ran: "I Don't Think He's a Man," quoting the victim's mother. Another article on February 21, 1993, featured a large mug shot of Harris next to the headline: "Huggins Suspect `Would Kill You in a Heartbeat.'"

Even more disturbing is the newspaper's heated calls for the immediate execution of Harris without a trial. Editorial responses to readers' spoken opinions in a section known as "BackTalk" are particularly striking. Under the headline "Bring Back Hangings," one reader called for a public hanging of Harris on Trenton High School's football field, and suggested that: "[W]e can invite everybody from all around to see what happens to people who don't care about other people. Why not give it a shot? I'll pay for the rope!" The newspaper's response was: "Nice try, but I was the first to offer to pay for the rope. You can buy lumber for the gallows, though." The newspaper also ran the headline "KILL HIM" in one-and-a-half inch bold type next to Harris's picture on the cover of the June 10, 1994, paper. On the first day of jury deliberations in the penalty phase, the headline on the editorial page ran: "Death for Harris." *fn5

During the trial, jurors were not sequestered and were likely to see the local newspaper headlines in stands located around the courtroom and along the juror bus route. The trial court denied Harris's motion for a change of venue and responded to the publicity instead by making limited inquiries during voir dire whether jurors had been exposed to the newspaper coverage. The trial court, however, did not fully explore the effect of the publicity on the jurors who read it. Nor did the trial court inquire about whether any jurors had learned of Harris's criminal history, about which they would not have otherwise known, from the publicity. The trial court refused to reroute the juror bus to avoid exposure to the newspaper stands, to require the jury to remain in the jury room during lunch, to sequester the jury during the penalty phase, and to voir dire the jurors individually about the publicity during the penalty phase while inflammatory publicity about the case continued.

The trial court, Appellate Division, and this Court agreed that, in light of the volume, intensity, and virulence of the publicity, there was a presumption of prejudice. State v. Harris, 156 N.J. 122, 145 (1998) (Harris I); State v. Harris, 282 N.J. Super. 409, 413-15 (App. Div. 1995). However, those courts ultimately concluded that no actual prejudice resulted from the publicity because the trial court took adequate remedial measures to counteract the potential effect of the publicity. Harris I, supra, 156 N.J. at 146, 153-54. It is obvious to me that Harris suffered actual prejudice. The publicity was scathing, calculated to influence the jury, was likely to have reached one or more of the jurors, and was not met by serious efforts to minimize the prejudice. Accordingly, I must concur with Justice Handler's conclusion that, "the pervasive pretrial and midtrial publicity that surrounded this prosecution created a realistic likelihood that defendant would not receive a fair trial," and that, "[t]he precautions taken by the trial court to overcome that publicity were woefully inadequate to assure a fair trial." Harris I, supra, 156 N.J. at 218 (Handler, J., dissenting).

II.

Precedent-seeking review, the most significant method of measuring proportionality, State v. Loftin, 157 N.J. 253, 335 (Loftin II), cert. denied, ___ U.S. ___, 120 S. Ct. 229, 145 L. Ed. 2d 193 (1999), is largely based upon aggravating and mitigating factors found by the penalty phase jury. Because Harris's penalty phase jury was most likely influenced by the local newspaper's scathing publicity, we cannot rely on its findings. Without accurate and reliable findings concerning aggravating and mitigating circumstances, it is simply impossible to compare Harris's case with other cases to determine his relative culpability. All that we can hope to accomplish in Harris's proportionality review is to assess his moral culpability in the abstract, without reference to other cases or our established standards for comparative culpability. That is an unacceptable means to "administer the most extreme penalty in a fair and consistent manner." Loftin II, supra, 157 N.J. at 279.

I, therefore, dissent.

ON PROPORTIONALITY REVIEW OF A DEATH SENTENCE IMPOSED IN THE SUPERIOR COURT, LAW DIVISION, MERCER COUNTY

Chief Justice Poritz PRESIDING

OPINION BY Justice LaVecchia

DISSENTING OPINIONS BY Justice Coleman and Justice Long


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