The opinion of the court was delivered by: Coleman, J.
On proportionality review of a death sentence imposed in the Superior Court, Law Division, Burlington County.
Two terms ago, we affirmed defendant's conviction and death sentence for the murder of Michael Eck. State v. Morton, 155 N.J. 383 (1998) (Morton I). We preserved defendant's right to seek "proportionality review of his sentence, N.J.S.A. 2C:11-3e, in a separate proceeding." Id. at 464. On that review we find no disproportionality in defendant's death sentence.
The facts are set forth in detail in Morton I, supra, 155 N.J. at 398-410. We will, however, briefly restate those facts relevant to our proportionality review.
On the night of February 23, 1993, defendant, who was twenty-five years old at the time, and co-defendant Alonzo Bryant, agreed to go out and "get paid," a colloquialism for committing robberies. After leaving the Playhouse, a go-go bar in Burlington Township at approximately 10:20 p.m., defendant and Bryant encountered Toby Chrostowski in the parking lot. The driver of defendant's Ford Escort tried to block Chrostowski's path; the passenger walked around the car and approached Chrostowski from behind. Chrostowski tried to walk past the driver, and felt a sharp pain in his chest as he walked by. After entering the Playhouse, Chrostowski discovered that he had been stabbed, but did not know which of the two men had stabbed him. Chrostowski survived.
Later that evening, defendant and Bryant drove to Francine's, a Cherry Hill nightclub with a wealthy clientele. They decided not to rob anyone there because the valet parking system would have made a robbery risky.
Approximately two hours after the Chrostowski robbery, defendant and Bryant drove into the Delran Amoco gas station. They waited by the air pump until a limousine departed from the station. Thereafter, they drove up to the gas pumps and attacked Michael Eck, the gas-station attendant. Eck was stabbed twenty-four times in the chest, shoulder, forearm, and groin. A stab wound to Eck's heart was fatal, and the two wounds to Eck's liver could also have been lethal. Eck, bleeding severely and gasping for breath, called 9-1-1. He died that night at the hospital from massive bleeding.
Later that evening, defendant went to the hospital to treat a knife wound to his left index finger sustained while stabbing Eck. The nurse who had treated Chrostowski's stab wound earlier that evening suspected that defendant's injury, which looked like a knife wound, was related to that stabbing. She called the police. The ensuing investigation by the police led to the identification and arrest of defendant and Bryant as the perpetrators of both stabbings.
During the initial custodial interrogation of defendant, he denied any involvement in the gas-station robbery-murder. However, he changed his story a number of times. In his first taped statement to police, defendant admitted to being present at the Amoco station, but he accused Bryant of being the one to stab Eck. In a second taped statement, defendant confessed to the crimes. He divulged that he and Bryant had agreed to commit a series of robberies that night and that both he and Bryant stabbed Eck. Defendant admitted that he had intended to kill Eck, not to facilitate the robbery, but to eliminate him as a witness. Throughout his confession defendant showed very few signs of emotion or remorse.
A Burlington County jury convicted defendant of purposeful-or-knowing murder by his own conduct, felony murder, first-degree robbery (four counts), second-degree aggravated assault, and third-degree aggravated assault.
Defendant absented himself from the ensuing penalty phase of the trial. In lieu of presenting witnesses, defense counsel submitted a 200-page "mitigation book," which included defendant's school, medical, and psychiatric records, his Child Study Team report, a documentation of defendant's childhood misbehavior, Bryant's criminal and prison record, Bryant's brother's statement to the police inculpating Bryant as the primary perpetrator, and defense counsel's prediction that defendant would die in prison if he were not sentenced to death. Defense counsel's opening and closing argument stressed defendant's troubled childhood, during which he suffered a stress ulcer, his mother's deficient parenting, and his slow mental development and borderline intellectual functioning. Defendant, however, refused to meet with a psychiatrist or psychologist.
The jury unanimously found the existence of two aggravating factors: c(4)(f) (escape detection) and c(4)(g) (felony murder). Only ten of the twelve jurors concluded that the State had proven the c(4)(c) (torture or depravity) aggravating factor. At least one juror found four of the sixty c(5)(h) (catch-all) mitigating factors submitted by the defense. One juror found as mitigating the likelihood that defendant would die in prison prior to becoming eligible for parole, seven found as mitigating defendant's lack of a criminal record, and ten concluded that defendant would not have committed the offenses "were it not for Alonzo Bryant." Three jurors found sua sponte under the catch-all factor that defendant is his mother's only child.
The jurors unanimously concluded that the aggravating factors outweighed the mitigating factors. Accordingly, the sentence of death was imposed. Additionally, the trial court imposed an aggregate non-capital sentence of forty years imprisonment with a twenty-year parole disqualifier. This Court affirmed defendant's convictions and sentences. Morton I, supra, 155 N.J. at 466.
II. INDIVIDUAL PROPORTIONALITY REVIEW
In State v. Loftin, 157 N.J. 253, 453-57 (Loftin II), cert. denied, U.S., 120 S. Ct. 229, 145 L. Ed. 2d 193 (1999), this Court appointed Judge David S. Baime as a Special Master and ordered him to examine and make findings and recommendations regarding "individual proportionality review," which concerns whether a specific defendant's death sentence is out of proportion when compared with similarly-situated defendants and "systemic proportionality review," which addresses allegations that invidious discrimination permeates the administration of the death penalty in this State. Judge Baime's recommendations for individual proportionality review were adopted, for the most part, by this Court in In re Proportionality Review Project, 161 N.J. 71 (1999) (Proportionality Review I). Judge Baime's report on systemic proportionality review, see David S. Baime, Report to the New Jersey Supreme Court: Systemic Proportionality Review Project (Dec. 1, 1999) Baime Report II), has been examined in In re Proportionality Review Project, N.J. (2000) (Proportionality Review II). The present case is one of the first proportionality reviews this Court has decided based on the standards articulated in Proportionality Review I, supra, and Proportionality Review II, supra.
The principal goal of proportionality review "is to determine whether a particular defendant's death sentence is disproportionate" when compared to the sentences of other defendants who are similarly situated. State v. DiFrisco, 142 N.J. 148, 160 (1995) (DiFrisco III), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); see N.J.S.A. 2C:11-3e. A defendant's death sentence is considered disproportionate if other defendants in the jurisdiction who have similar characteristics commit similar offenses and receive life sentences. State v. Martini, 139 N.J. 3, 20 (1994) (Martini II), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995); State v. Bey, 137 N.J. 334, 343 (1994) (Bey IV), cert. denied, 513 U.S. 1164, 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995); State v. Marshall, 130 N.J. 109, 131 (1992) (Marshall II), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). The defendant must show that his "death sentence is aberrational." Bey IV, supra, 137 N.J. at 352; see State v. Chew, 159 N.J. 183, 195 (Chew II), cert. denied, -- U.S. --, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999); State v. Harvey, 159 N.J. 277, 289 (1999) (Harvey III), cert. denied, S. Ct. (2000). We seek "`to ensure that the death penalty is being administered in a rational, non-arbitrary, and evenhanded manner, fairly and with reasonable consistency.'" Loftin II, supra, 157 N.J. at 265 (quoting Marshall II, 130 N.J. at 131
There are two facets of individual proportionality review (1) frequency analysis, which measures the relative frequency of death sentences in factually similar cases, and (2) precedent-seeking review, which is "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.
We note that the defendant bears the burden of proving that his death sentence is disproportionate. DiFrisco III, supra, 142 N.J. at 162.
As we stated in Chew II, supra, the "first step in any proportionality review is to determine the universe of cases that we will use to compare with the defendant's case. The 1992 amendment to N.J.S.A. 2C:11-3e limits this comparison group to only those cases in which a death sentence has actually been imposed." 159 N.J. at 196. This Court, however, recently stated that a universe limited to cases in which the death-penalty sentence has been imposed cannot support a coherent proportionality system. This is so because "[w]ithout knowledge of the life-sentenced cases, [a court] would be unable to determine whether there is a `meaningful basis' for distinguishing the death sentences it reviews from the `many cases' in which lesser sentences are imposed." [Proportionality Review I, supra, 161 N.J. at 84 (quoting David S. Baime, Report to the New Jersey Supreme Court: Proportionality Review Project at 10 (Apr. 28, 1999) (Baime Report I) (citation omitted))].
We will therefore consider all death-eligible cases, whether or not they were capitally prosecuted, because the State's decision not to prosecute the defendant capitally does not necessarily reflect on the defendant's lack of deathworthiness. Harvey III, supra, 159 N.J. at 291-92.
The first step in proportionality review is frequency analysis. "Frequency analysis helps us to determine whether defendant is in a category that renders him or her more likely than other killers to receive the death penalty." DiFrisco III, supra, 142 N.J. at 171. Frequency review begins and ends with the salient-factors test, which measures the relative frequency of death sentencing in factually similar cases. Proportionality Review I, supra, 161 N.J. at 77-78, 94; Chew II, supra, 159 N.J. at 202-03. The index-of-outcomes test, previously used by this Court in proportionality review, was discontinued because of "the instability of the regression models." Proportionality Review I, supra, 161 N.J. at 91. As a result, our frequency analysis here will be limited to the salient-factors test.
"The salient-factors test enables us to compare defendant's sentence to sentences in factually similar cases to measure the relative frequency of defendant's sentence." Harvey III, supra, 159 N.J. at 301. We must first determine to which category defendant belongs based upon the statutory aggravating factors. *fn1 We then subdivide that group "`according to circumstances that serve either to aggravate or to mitigate the blameworthiness of the defendants in those cases.'" Loftin II, supra, 157 N.J. at 328 (quoting Martini II, 139 N.J. at 33; see Harvey III, supra, 159 N.J. at 301.
In Proportionality Review I, we retained the principle of unique assignment. "Briefly stated, the 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. Both the Public Defender and the Attorney General agree that Morton should be placed in the F-2 category, which encompasses murders committed during the course of a robbery of a business. We agree with that designation.
In the F-2 subcategory, there are currently thirty-three cases. The following chart represents a breakdown of the death-sentencing rates for defendants in the F-2 subcategory.
SALIENT-FACTORS TEST: F-2 SUBCATEGORY (data from Morton Report, tbl. 7)
Death-Sentencing Rate At Penalty Trial
Death-Sentencing Rate for All Eligible Cases
Proportion of Cases Advancing to P-Trial
The salient-factors test reveals that the death-sentencing rates in defendant's subcategory do not appreciably differ from the overall death-sentencing rates. In the F-2 death-eligible universe, the death-sentencing rate for business-robbery-murders is fifteen percent, which is greater than the eleven-percent death-sentencing rate of the 455 cases in the full universe, inclusive of defendant. When defendant's case is excluded from the F-2 death eligible universe, the thirteen-percent death-sentencing rate slightly exceeds the rate at which all death-eligible cases result in a death sentence. Among the cases that proceeded to a penalty trial, juries sentenced people in defendant's subcategory to death at a twenty-eight percent rate, which is a bit lower than the overall thirty percent death-sentencing rate in the penalty-trial universe. The disparity increases when excluding defendant's case: twenty-four percent for business-robbery-murders versus twenty-nine percent for all cases excluding defendants that advanced to a penalty phase. On the other hand, business-robbery-murders are more likely to proceed to a penalty phase than other death-eligible murders. The fifty-five percent penalty-trial-advancement rate exceeds the overall thirty-nine percent rate. Even when defendant's case is excluded, fifty-three percent of business-robbery-murders proceed to a penalty phase.
Those results are comparable to those obtained in other proportionality review cases, in which this Court found no disproportionality. See Harvey III, supra, 159 N.J. at 302 (reporting death-sentencing rate at penalty trial for E-1 defendants, excluding Harvey, as 33%, and death-sentencing rate for all E defendants, excluding Harvey, as 24%); State v. Cooper, 159 N.J. 55, 78 (1999) (Cooper II), cert. denied, S Ct. (2000) (noting death-sentencing rate at penalty trial for C-1 defendants, excluding Cooper, as 39%, and death-sentencing rate for all defendants, excluding Cooper, as 30%); DiFrisco III, supra, 142 N.J. at 173-74 (reporting death-sentencing rate for I-1 defendants, excluding DiFrisco, as 25%, and death-sentencing rate for all I defendants, excluding DiFrisco, as 29%); Marshall II, supra, 130 N.J. at 168-69 (reporting the death-sentencing rate at penalty trial of contract-murder principals, excluding Marshall, as 0%, and death-sentencing rate for entire contract-murder pool, excluding Marshall, as 33%).
Thus, the salient-factors test does not indicate that defendant's death sentence is disproportionate. The statistics suggest that prosecutors consider capital murders in the F-2 subcategory to be more deathworthy than other death-eligible homicides but that juries do not consider business-robbery-murders to be more deathworthy than other capital murders.
C. PRECEDENT-SEEKING REVIEW
"The precedent-seeking approach, also referred to as comparative-culpability review, is the second component of proportionality review." Loftin II, supra, 157 N.J. at 335. 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 Harvey III, supra, 159 N.J. at 307. We "give enhanced weight to the process of precedent-seeking review." Cooper II, supra, 159 N.J. at 88; see also Harvey III, supra, 159 N.J. at 308 ("[W]e have consistently placed greater reliance on precedent-seeking review than on frequency review."); DiFrisco III, supra, 142 N.J. at 184; ("[W]e rely here more heavily on precedent-seeking review than on frequency analysis."); Chew II, supra, 159 N.J. at 209 (acknowledging reliance on precedent-seeking review); Cooper II, supra, 159 N.J. at 88 ("In prior proportionality-review cases, we consistently have accorded greater significance to precedent-seeking review than to frequency review."); Loftin II, supra, 157 N.J. at 296 ("We have consistently placed our reliance on this form of [precedent-seeking] review because of the analytic difficulties we have encountered in applying frequency analysis.").
"In comparing defendant to other similar defendants, we use a three-part model of criminal culpability." Chew II, supra, 159 N.J. at 210; accord Loftin II, supra, 157 N.J. at 336; DiFrisco III, supra, 142 N.J. at 203. To evaluate defendant's culpability, we consider (1) his moral blameworthiness, (2) the degree of victimization, and (3) his character. Chew II, supra, 159 N.J. at 210; Marshall II, supra, 130 N.J. at 155.
We first review defendant's moral blame-worthiness by examining motive, pre- meditation, justification or excuse, evidence of mental disease, defect, or disturbance, knowledge of helplessness of the victim, knowledge of effects on nondecedent victims, defendant's age, maturity, etc., and defendant's involvement in planning the murder. We then consider the degree of victimization, including the violence and brutality of the murder, and injury to nondecedent victims. Finally, we examine the character of the defendant, including his or her 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) (citations omitted)].
a. DEFENDANT'S MORAL BLAMEWORTHINESS
An analysis of defendant's moral blameworthiness indicates that he is highly blameworthy. Defendant's motive for murdering Eck was to escape detection for robbing the gas station. Killing to avoid apprehension for a robbery is contemptible. See Harvey III, supra, 159 N.J. at 312-13 (finding defendant's moral blameworthiness high in part because of his motive to escape apprehension for robbery). However, this motive is "relatively common for defendants whose homicides occur in conjunction with the commission of a felony." Cooper II, supra, 159 N.J. at 89. Nonetheless, defendant's admission that he killed Eck to prevent him from identifying defendant is telling of his reprehensible motive. Defendant and Bryant did not need to kill Eck to effectuate the robbery; while Eck was begging for his life, he told Bryant and defendant that they could take whatever they wanted. Defendant ignored the victim's pleas for mercy, and continued brutally to stab him.
Defendant's premeditation likely lasted for several hours. He and Bryant both carried knives and surgical gloves for their planned robbery spree. There are also indications that defendant viewed the Chrostowski stabbing as the prelude to further assaults. In his confession, defendant divulged, "I knew what I was getting into. . . . One indication of the night being a murderous night was when 'Lonzo [Bryant] cut a guy." Morton I, supra, 155 N.J. at 406.
Defendant lacked any justification or excuse for murdering Eck. The only evidence of provocation, Bryant's claim that Eck called him a nigger, is implausible. Defendant never contended that he had heard Eck utter any racial slurs or that he stabbed Eck for any reason other than to eliminate him as a witness.
The record is devoid of evidence that defendant suffered from a mental disease, defect or disturbance at the time of the murder. *fn2 The defense presented documentation of defendant's borderline intellectual functioning; yet, defendant is not mentally retarded. Defendant suffered a severe head injury and a stress-related ulcer by the time he was three years old. Later in his childhood he experienced behavioral problems at school, where he was primarily enrolled in special-education classes. That is the extent of defendant's mental deficiency, which does not provide him with any justification or excuse for the murder.
In terms of knowledge of the helplessness of the victim, although Eck was not inherently helpless, defendant and Bryant made sure that Eck was alone at the gas station before attacking him. They waited for the limousine driver to depart before commencing the robbery, which occurred in an isolated area late at night. Compare Loftin II, supra, 157 N.J. at 337 (concluding defendant knew victim was helpless in part because crime took place "in an isolated area very late at night"). In addition, defendant and Bryant were armed with knives, and they had no reason to believe that Eck was armed. Ibid. (concluding defendant knew victim was helpless in part because defendant, but not victim, was armed). Further, the two perpetrators outnumbered Eck, the lone gas-station attendant working the graveyard shift.
No living victims witnessed the robbery-murder and defendant had no specific knowledge that Eck had two children. However, specific knowledge of family members is not necessary. Although defendant may not have known specifically that [the victim] had family and friends, we have previously recognized that "[w]hile a defendant might be unaware of the specific characteristics of his victims or of the particular survivors that the victim will leave behind, it is completely foreseeable that the killing will eliminate a unique person and destroy a web of familial relationships." [Harvey III, supra, 159 N.J. at 313 (quoting State v. Muhammad, 145 N.J. 23, 46 (1996))].
Therefore, we conclude that defendant was imbued with knowledge of the effect that this brutal stabbing would have on Eck's survivors.
Defendant was twenty-five years old when he murdered Eck. The jury unanimously rejected the c(5)(c) (age) mitigating factor and, thus, his age does not diminish his blameworthiness.
Bryant's involvement in planning the robbery and murder mitigates defendant's moral blameworthiness to an extent. Bryant was the apparent mastermind behind the plan to commit multiple robberies and murder. Ten jurors found that defendant would not have committed or participated in the robbery-murder of Eck had it not been for Bryant. Defendant's proportionality counsel goes further and contends that Bryant, a career criminal, "took advantage of Mr. Morton's mental deficiencies to instigate defendant's participation" in the crimes. However, defense counsel overstates the case. At the penalty phase, the jury rejected the following proposed c(5)(h) (catch-all) mitigating factor: "Due to his intellectual abilities, Robert Morton was drawn into the criminal acts by Alonzo Bryant who had previously been convicted of aggravated assault and served eight years in a federal prison, only having been released sixty days prior to the offense." The jury appears to have been persuaded that, despite defendant's borderline intellectual functioning, he was able to make independent decisions. Although Bryant primarily planned the robbery and murder, defendant willingly participated in the crimes. Therefore, his culpability in planning the murder should not be diminished because of the presence of a co-defendant.
Overall, defendant's moral blameworthiness is very high. He murdered Eck to escape apprehension for, not merely to commit, the robbery of the Delran Amoco. Defendant and Bryant repeatedly stabbed Eck despite his defenselessness. Defendant presented no evidence that he suffered from a mental disease or emotional disturbance. Although Bryant principally planned the robbery-murder, defendant readily collaborated in committing the crimes.
b. DEGREE OF VICTIMIZATION
We evaluate victimization based on the relative violence and brutality of the murder. Harvey III, supra, 159 N.J. at 313-14. The degree of victimization in this case was exceptional, even given the absence of living victims. Eck must have suffered tremendous pain from the twenty-four stab wounds, including three in the groin area. Defendant and Bryant continued brutally to stab Eck even though he offered no resistence and begged for his life. Eck remained conscious long after the stabbing and was not pronounced dead until nearly two hours later. The fact that Eck was fully aware of what was happening to him adds to the degree of victimization. Defendant argues that the superficiality of twenty-one of the stab wounds palliates the degree of victimization. We disagree. That argument is based on the mistaken premise that non-fatal wounds are insubstantial. At trial, the medical examiner testified that a wound is superficial if it cannot by itself cause death. Although the superficial wounds would not have killed Eck if defendant and Bryant had not stabbed him in the heart and liver, the infliction of superficial stab wounds caused Eck to experience enormous pain and loss of blood and greatly enhanced the degree of victimization.
Prior to murdering Eck, defendant had never been arrested as an adult, and his only juvenile arrest, for assault, resulted in a dismissal at the victim's request. The absence of a criminal record reflects favorably on defendant's character.
Although not included in a prior criminal record, defendant engaged in other violent acts. He participated in the stabbing of Toby Chrostowski on the same night that he murdered Michael Eck. When his original defense attorneys confronted him with inculpatory evidence, defendant's ferocious reaction induced them to withdraw from the case. His trial counsel, aware of defendant's violent tendencies, feared that he would become violent during the presentation of mitigating evidence of his marginal intellect and his mother's shortcomings. Additionally, in the redacted portion of his confession, defendant stated that he would commit another homicide while in prison if confronted. *fn3
Defendant did not initially cooperate with authorities, which would have reflected favorably in his character assessment. After killing Eck, he discarded his surgical gloves out the window of his car. Bryant later disposed of defendant's knife. During his interrogation, defendant originally denied involvement in the stabbings of both Chrostowski and Eck. After extensive police investigation that connected him to the crimes, defendant ultimately confessed to his involvement in the crimes. Defendant, however, subsequently insisted that the police fabricated his confession. His inconsistent interactions with the police do not qualify as the type of cooperation that may be deemed a mitigating factor.
Defendant showed very little remorse in his confession. He said:
"I'm a fuckin' killer. I did it. I'm sorry but . . . that don't bring the man back . . . . Who am [sic] the fuck am I to take a man out that ain't did nuttin'." Morton I, supra, 155 N.J. at 407. Except for his confession, which he later recanted, defendant exhibited no remorse. Upon reaching the comfort of Bryant's girlfriend's home on the night of the crimes, defendant and Bryant laughed and joked about the murder. Rather than expressing regret for their actions, they discussed committing another robbery.
Defendant might have a capacity for rehabilitation. He has no prior criminal record and was employed until his arrest. Furthermore, he did not plan the crimes. However, his refusal to take responsibility for his actions the night he fatally stabbed Eck and his utter lack of remorse suggests that rehabilitation may be unlikely. Indeed, his own statements strongly suggest that he may be prone to violence.
Defendant's character has both aggravating and mitigating aspects. His law-abiding past reflects well on his character, but his insistence on his innocence, in the face of his confession and the overwhelming evidence against him, is disturbing.
Defendant's overall culpability is high. Moreover, the high degree of victimization contributes substantially to raise his culpability. Defendant's moral blameworthiness is significant. Although his character evinces some positive attributes, those are dwarfed by the highly aggravated aspects of his character. Based on the three-part model of criminal culpability, we conclude that, overall, defendant exhibits a high level of culpability.
2. DEFENDANT'S COMPARISON GROUP
Precedent-seeking review "employs the same comparison group as that used in the salient-factors test." Chew II, supra, 159 N.J. at 214. To reiterate, both parties agree that defendant's capital crime belongs in the F-2 subcategory for business-robbery-murders that do not qualify for salient factors A through E. The Attorney General proposes fifteen comparison cases, *fn4 fourteen of which are catalogued in F-2 and one of which is designated F-3. The Public Defender does not object to the inclusion of any of those cases in defendant's comparison group. In addition, the Public Defender seeks to include an additional eleven cases *fn5 (eight from the F-2 subcategory, and three in the B-1 subcategory for prior murderers) to which the Attorney General objects. We now determine which cases will be included in defendant's comparison group.
Initially, we note our agreement with the parties that the following fifteen cases should be included in defendant's comparison group: Carl Culley, Richard Feaster, Tim Harris, Craig Hart, Jacinto Hightower, Roger Hoyte, Anthony Inman, David Mark Russo, Abdel Jaber Saleh, Frederick Simmons, Rafael Slaughter, Corey Washington, Ronald Leon Wheeler, Charles Williams, and Donald Loftin. All of those defendants belong in the F-2 subcategory except for ...