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