The opinion of the court was delivered by: Zazzali, J.
ON APPEAL FROM ON CERTIFICATION TO ON PROPORTIONALITY REVIEW OF A DEATH SENTENCE IMPOSED IN THE SUPERIOR COURT, LAW DIVISION, MERCER COUNTY
Argued September 12, 2000
On proportionality review of a death sentence imposed in the Superior Court, Law Division, Mercer County.
This appeal concerns the capital sentencing of Jesse K. Timmendequas, who was convicted of the 1994 murder of seven-year- old Megan Kanka. We affirmed defendant's conviction and death sentence on direct appeal. State v. Timmendequas, 161 N.J. 515, 640 (1999) (Timmendequas I). We also acknowledged his request for proportionality review. Ibid. We now conclude, upon review, that defendant's death sentence is not disproportionate when compared to the sentences imposed in similar cases.
The notoriety of this case renders our effort to evaluate defendant's claim that his death sentence is disproportionate all the more critical. "One can say with certainty that the crime committed by Jesse Timmendequas was horrific, so uniformly condemned that it changed the legal landscape for sex offenses nationwide." Timmendequas I, supra, 161 N.J. at 650 (Handler, J., dissenting). The murder of Megan Kanka sparked outrage after the public learned that defendant had been twice convicted of sex offenses against children, and that Megan's community had not been made aware of those convictions. E.B. v. Verniero, 119 F.3d 1077, 1081 (3d Cir. 1997), cert. denied, 522 U.S. 1110, 118 S. Ct. 1039, 140 L. Ed. 2d 105 (1995); Timmendequas I, supra, 161 N.J. at 641 (Handler, J., dissenting). Megan's parents, Maureen and Richard Kanka, successfully pressed for a law requiring notification when sexual predators become neighbors. Timmendequas I, supra, 161 N.J. at 569; See L. 1994, c. 133 (enacting "Megan's Law" registration requirements, later codified at N.J.S.A. 2C:7-1 to -5); L. 1994, c. 128 (enacting community notification requirements, later codified at N.J.S.A. 2C:7-6 to - 11). Megan's murder also inspired a similar effort across the country. E.B., supra, 119 F.3d at 1081; Timmendequas I, supra, 161 N.J. at 569. That movement culminated in a 1996 federal "Megan's Law." E.B., supra, 119 F.3d at 1082 n.1 (discussing Pub. L. No. 104-145, 110 Stat. 1345 (1996), which was codified at 42 U.S.C.A. § 14071).
We set forth that background because it underscores the importance of a careful and comprehensive proportionality review, as an improper death sentence would result in "the ultimate injustice." State v. Ramseur, 106 N.J. 123, 374 (1987) (Handler, J., dissenting). Sensitive to that concern, our single task in this appeal is to determine if defendant's death sentence is disproportionate when compared to the sentences of other similar offenders.
This Court's opinion in the direct appeal contains the facts in detail. Timmendequas I, supra, 161 N.J. at 534-50. We set forth here only those facts, both from the direct appeal and the record, that are necessary for proportionality review.
On July 29, 1994, seven-year-old Megan Kanka lived with her parents in Hamilton Township, diagonally across the street from defendant. At about 5:30 p.m., defendant lured Megan into his house, ostensibly to play with his puppy. He drew her into his bedroom where he attempted to sexually assault her. She screamed and tried to escape but defendant, fearing detection, would not let her leave. Megan fought for her life as defendant strangled her with a belt until she lost consciousness. During the struggle, Megan hit her face on a dresser and her head on a door, causing bleeding. To avoid blood stains on the carpet, defendant placed a plastic bag over her head. Defendant then sexually assaulted Megan. Those facts are recounted fully in Timmendequas I, supra, 161 N.J. at 541-43.
Believing Megan to be dead, defendant placed her body in a toy box and carried it downstairs. When he put the box in his truck, he thought he heard Megan cough. He drove to Mercer County Park, took Megan's body out of the box, and placed her in tall weeds. Before he left, he sexually assaulted her again.
Megan's family called police when she did not return home. Officers arrived and joined neighbors in the search for Megan. Defendant participated in the search, handing out fliers with Megan's picture. Defendant told the police that he had seen Megan riding a bicycle at 2:30 in the afternoon. That statement conflicted with his prior statement to Maureen Kanka that he last saw Megan before dinner. Police asked defendant if he had seen Megan at any other time. He said he saw Megan riding her bicycle in front of his home between 5:30 and 6:00 p.m.
The police obtained the consent of the homeowner, defendant's roommate, to search defendant's living quarters. Police questioned defendant again in the house. Shaking and perspiring, defendant said that he saw Megan and a friend between 5:00 and 5:30 p.m. while he was washing his boat. The police then interviewed defendant at the police station where he gave conflicting statements concerning his whereabouts during the time of Megan's disappearance. Soon thereafter, he was released.
The following day, at police headquarters, defendant told the police that Megan was dead and that he had left her body in Mercer County Park. He did so at the prompting of his roommate, after repeatedly denying involvement. Defendant led the police to the body and, on the drive back to the police station, he recounted what had happened. At the station, in a formal statement, he confessed to the murder and some but not all aspects of the sexual assault. After the police presented him with the results of the autopsy, he provided further details of the sexual assault, the head injuries, and other conduct described above.
Defendant did not testify or present witnesses on his behalf at the guilt phase of the trial, which was held from May 5 to May 30, 1997. The jury found him guilty of purposeful-or-knowing murder, two counts of felony murder, first-degree kidnapping, and four counts of first-degree aggravated sexual assault.
The penalty phase of the trial commenced on June 9 and continued to June 20, 1997. The jury concluded that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. The court sentenced defendant to death.
In our proportionality review, we consider testimony adduced at the penalty phase together with the evidence elicited at the guilt phase. Defendant offered two witnesses who presented evidence of mitigating circumstances in his background.
Carol Krych, a forensic social worker, testified that defendant's mother was a promiscuous alcoholic who had ten children by seven different men. Defendant's father was a violent drinker with a criminal history. Krych testified, based on information provided by defendant's mother, that defendant was raised in poverty, the family lived for a time in a shack, and defendant was often cold, dirty, hungry and without adequate medical care. Other sources told Krych that defendant's father had sexually abused defendant and his brother Paul frequently, that the two brothers once saw their father rape a seven-year-old girl, that the father tortured and killed their pets, and that he once forced the brothers to eat their pet rabbit. Krych therefore concluded that defendant had a severely dysfunctional family life.
Krych added that defendant had been diagnosed with emotional problems as a youth and was classified as "educable mentally retarded," but conceded that a conflict existed with respect to that classification. She also acknowledged that she had not testified on direct regarding academic reports that indicated defendant had made good progress in school. Krych further admitted that although Paul originally said defendant should not be sentenced to death, she had since heard that he had changed his mind.
Defendant's second expert, Dr. John Podboy, a psychologist, relied upon the Krych report but never evaluated defendant personally. Podboy found that defendant suffers from pedophilia, borderline mental retardation, fetal alcohol effect, and a schizoid personality disorder. He testified that defendant likely had "generalized anxiety, . . . perhaps . . . includ[ing] post-traumatic stress disorder." Podboy expressed the opinion that, at the time of the crime, defendant was under "extreme emotional disturbance" and that his "capacity to appreciate the wrongfulness of his conduct was very much impaired," as was his ability "to conform his conduct . . . to the requirements of the law." He also concluded that defendant may have had a serious brain abnormality, which could reflect a post-traumatic insult, a vascular insult, or a congenital abnormality. Megan's death, said the psychologist, was caused by a reflexive response to the panic defendant felt when the victim attempted to flee.
The State presented rebuttal witnesses. Two detectives testified that people to whom they spoke about defendant's childhood said that defendant's mother was not constantly intoxicated, that defendant's house was not substandard, and that his clothing was not disheveled. One detective testified that Paul Timmendequas told him that their father physically abused Paul and defendant, and that their mother broke defendant's arm when defendant was seventeen years old. According to the detective, Paul gave several inconsistent statements regarding sexual abuse, at one point even denying that he knew whether defendant had been abused at all. Paul also claimed that he was drunk when he spoke with Krych.
Dr. Robert L. Sadoff, a psychiatrist, said that there was no evidence to support defendant's claims of extreme emotional disturbance and diminished capacity. Sadoff said that defendant's description of his own conduct demonstrated that defendant was in control of the situation and had simply acted logically to avoid apprehension. Sadoff also said that defendant's I.Q., seventy-four, showed that he had borderline intelligence that did not prevent him from functioning or appreciating the nature of his conduct.
In his allocution statement, defendant said:
Okay. I am sorry for what I've done to Megan. I pray for her and her family every day. I have to live with this and what I've done for the rest of my life. I ask you to let me live so I, some day, I can understand and have an understanding why something like this could happen. Thanks.
The jury unanimously found the N.J.S.A. 2C:11-3c(4)(f) (escape detection) and c(4)(g) (contemporaneous felony) aggravating factors. Timmendequas I, supra, 161 N.J. at 534, 548. Four jurors found the c(5)(a) (extreme emotional disturbance) mitigating factor to be present. Two jurors found the c(5)(d) (diminished capacity) factor. Jurors in varying numbers found the following c(5)(h) (catchall) mitigating factors, which defendant had submitted to the jury:
[D]efendant (1) did not plan in advance to kill or seriously injure the victim (twelve jurors); (2) felt remorse (six jurors); (3) was subjected to years of sexual and physical abuse by his father, including but not limited to fondling, forced oral sex, anal penetration, and beatings by his father's hand or a strap (three jurors); (4) was exposed to domestic violence between his mother and several of her paramours (twelve jurors); (5) was born to a father who had a history of incarceration, drank excessively and totally disregarded the needs of his family and even their lives (eleven jurors); (6) was born to a promiscuous mother who had ten children by seven different men and gave up or had to relinquish seven of these children to the State (twelve jurors); (7) was raised in an atmosphere that did not provide him with stability, having moved twenty-one times by the time he was seventeen years old (twelve jurors); (8) was born to a mother who was emotionally unfit and unable to meet his physical and emotional needs and caused him to suffer from fetal alcohol effect due to her drinking throughout her pregnancy (four jurors); (9) suffered traumatic loss when his stepfather, the only father figure who did not abuse him, died (seven jurors). [Id. at 549-50.]
The jury unanimously concluded that defendant's "childhood and adolescence were characterized by exposure to domestic violence, criminal activity, substance abuse, instability of the home, emotional and physical neglect and possible physical and sexual abuse. His parents did not serve as role models of normal behavior and treated him poorly. Also, the family was poor and received public assistance." The jury rejected several other proposed catchall mitigating factors.
The jury, nonetheless, unanimously found that each aggravating factor outweighed the mitigating factors beyond a reasonable doubt. Accordingly, the court sentenced defendant to death, as required by N.J.S.A. 2C:11-3c(3)(a). On the kidnapping count, the court imposed a life sentence with a twenty-five-year parole disqualifier. As noted, this Court affirmed defendant's convictions and sentence on direct appeal.
II. INDIVIDUAL PROPORTIONALITY REVIEW
At a capitally-sentenced defendant's request, N.J.S.A. 2C:11-3e, we engage in proportionality review "to ensure that the death penalty is being administered in a rational, non-arbitrary, and evenhanded manner, fairly and with reasonable consistency." 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). To that end, proportionality review focuses on whether a specific defendant's death sentence is inconsistent with the penalty imposed in comparable cases. State v. DiFrisco, 142 N.J. 148, 160 (1995) (DiFrisco II), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); State v. Martini, 139 N.J. 3, 20 (1994) (Martini II). The defendant must demonstrate that his or her death sentence is aberrant, arbitrary, or otherwise anomalous. In Re Proportionality Review, 161 N.J. 71, 76-77 (1999) (Proportionality Review I); State v. Harvey, 159 N.J. 277, 289-90 (1999) (Harvey III).
In order to compare this case with similar death-eligible cases, we must first determine the "universe" of cases from which we draw the comparison cases. An amendment to N.J.S.A. 2C:11-3e sought to limit "this comparison group to only those cases in which a death sentence had actually been imposed." State v. Chew, 159 N.J. 183, 196 (1999) (Chew II), cert. denied, ___ U.S. ___, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999). This Court has concluded, however:
[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)).]
We thus consider all death-eligible cases, rather than only death-sentenced cases. We also consider death-eligible cases "whether or not they were capitally prosecuted," State v. Harris, 165 N.J. 303, 315 (2000) (Harris II), because the decision not to seek the death penalty "is not necessarily a reflection of [the] defendant's lack of deathworthiness." Martini II, supra, 139 N.J. at 27. Thus, all cases in which the defendant was eligible for the death penalty comprise the universe under consideration.
In order to aid our proportionality review process, the Administrative Office of the Courts (AOC) maintains a database of all death-eligible cases. The AOC has subdivided the cases into thirteen distinct categories of comparison cases. State v. Cooper, 159 N.J. 55, 71 (1999) (Cooper II), cert. denied, __ U.S. __, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000). The AOC assigns cases for comparison to the following categories:
(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. [Harris II, supra, 165 N.J. at 316.]
Category D includes defendants who commit murders involving a sexual assault. The Attorney General and Public Defender concur that defendant should be assigned to D-1, a subcategory of D. Subcategory D-1 comprises defendants who have committed sexual-assault murders with "particular violence or terror." Proportionality Review I, supra, 161 N.J. at 88. "Generally, [those] cases . . . 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." Harris II, supra, 165 N.J. at 317. The D-2 subcategory consists of "non-aggravated" sexual-assault murders. Id. at 316-17. A threshold question concerns whether we should in this case consolidate the D-1 and D-2 subcategories.
In Harris II, this Court consolidated the D-1 and D-2 subcategories for proportionality analysis. Id. at 317-19. The original rationale for the distinction was that "juries and prosecutors tended to view [D-1] defendants as more deathworthy" than a "simple" sexual-assault-murder defendant. Harris II, supra, 165 N.J. at 317 (citing Proportionality Review I, supra, 161 N.J. at 88). Nevertheless, Harris II states:
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." [Harris II, supra, 165 N.J. at 318.]
Harris II concluded that "consolidation of the entire D category offers a more appropriate sampling of cases like defendant's to assess deathworthiness." Id. at 319.
We agree that we should consolidate the categories in this case as well. D-2 cases simply may not be substantially less deathworthy than D-1 cases. As Harris II noted, "the D-2 category has so few cases with which to compare [a] defendant." Id. at 318-19. At present, fifty-nine cases fall within the composite D category; forty-seven cases comprise subcategory D-1; and twelve cases comprise subcategory D-2.
We now compare defendant's case to similar cases within the entire D category. We first conduct frequency analysis, and then we apply precedent-seeking review. State v. Feaster, 165 N.J. 388, 398 (2000) (Feaster II); State v. Morton, 165 N.J. 235, 244 (2000) (Morton II); Cooper II, supra, 159 N.J. at 70; Proportionality Review I, supra, 161 N.J. at 77. As we explained in Cooper II:
[F]irst, we use a frequency analysis that includes both mathematical and statistical calculations to compare defendant's case to other cases with similar fact patterns or similar levels of culpability in order to ascertain the rate of death sentencing in those similar cases; second, we engage in precedent-seeking review in which we compare all relevant factors in factually similar cases to determine whether defendant's death sentence appears to be disproportionate in comparison to the sentences imposed on other defendants who committed comparable homicides. [Id. at 70.]
We begin with frequency analysis.
At one point, frequency analysis required application of three tests, the salient-factors test, the numerical preponderance test, and the index-of-outcomes test. Within the past two years, we abandoned some of that arcana by eliminating both the index-of-outcomes test and the numerical preponderance test due to inherent flaws in each approach. Proportionality Review I, supra, 161 N.J. at 87, 91-92 (adopting Judge Baime's recommendation and abandoning index-of-outcomes test); State v. Loftin, 157 N.J. 253, 295 (1999) (Loftin II) (abandoning numerical preponderance test), cert. denied, __ U.S. __, 120 S. Ct. 229, 145 L. Ed. 2d 193 (1999). Frequency analysis thus consists exclusively of the salient-factors test. As we described in Martini II:
The salient-factors test allows us to measure the relative frequency of a defendant's sentence by comparing it to sentences in factually-similar cases. Its purpose is to help us determine whether the death sentence is imposed in a category of comparable cases often enough to create confidence in the existence of a societal consensus that death is the appropriate remedy. [Martini II, supra, 139 N.J. at 33.]
Thus, the objective is to determine whether the frequency of death sentences in similar cases involving defendants with similar culpability supports a determination that the death penalty in the case before us is or is not aberrational. Chew II, supra, 159 N.J. at 201-02. The process compares a defendant's culpability with that of other death-eligible defendants. We measure the relative frequency of a defendant's sentence by determining the rate at which factually-similar cases culminate in a death sentence. Id. at 202. The salient-factors test, demystified, is largely deductive, involving a simple "if-then" method of reasoning. If, in similar cases, the ratio of death sentences to penalty-trial cases or the ratio of death sentences to death-eligible cases is high, then the Court may interpret the relatively high rate of death sentencing as "strong evidence of the reliability of [the] defendant's death sentence." State v. Bey, 137 N.J. 334, 358 (1994) (Bey IV), cert. denied, 513 U.S. 1164, 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995). As noted, we have assigned defendant to the consolidated D category. We now examine the death-sentencing rates among the penalty-trial and death-eligible cases within that category.
Notwithstanding the consolidation of the D-1 and D-2 categories, the following chart demonstrates that, whether we use the D category or the D-1 subcategory, defendant's death sentence is not aberrational. We examine the relevant data under both alternatives.
Cases that Advanced to Penalty Trial
Penalty-Trial Resulted In Death Sentence
Death Sentencing Rate In All Death-Eligible Cases
D-1. Aggravated Sexual Assault
A greater percentage of D category defendants advanced to penalty trial, received the death sentence after a penalty trial, and received the death sentence overall, than did all death- eligible defendants. Excluding defendant leads to the same result. Thus, those statistics do not support defendant's contention that his death sentence is an aberration, as they did not support Ambrose Harris's recent disproportionality claim based on the same statistics. Harris II, supra, 165 N.J. at 319- 20. Neither do the D-1 statistics, had we not combined the D subcategories, demonstrate disproportionality. D-1 defendants advanced to penalty trial and received the death sentence at a greater rate than all death-eligible defendants. When defendant is excluded, the D-1 rates still exceed the rates for all death- eligible defendants. Thus, neither the composite D category nor the D-1 subcategory statistics support defendant's claim of disproportionality.
The results of the salient-factors test demonstrate that prosecutors and juries consider sexual-assault murders more deathworthy than other death-eligible homicides. However, because there is not a dramatic difference between death- sentencing rates in D and D-1 homicides and other death-eligible homicides, we must "give enhanced weight to the process of precedent-seeking review." Cooper II, supra, 159 N.J. at 88.
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. This is "the traditional, case-by-case form of review in which we compare similar death-eligible cases." Martini II, supra, 139 N.J. at 46.
Through this method we determine whether a defendant's criminal culpability exceeds that of similar life-sentenced defendants and whether it is equal to or greater than that of other death sentenced defendants, such that the defendant's culpability justifies the capital sentence; or whether a defendant's culpability is more like that of similar life-sentenced defendants and less than that of death-sentenced defendants, such that the defendant's culpability requires a reduction of sentence to a life term. We note that statutory proportionality does not require identical verdicts even in closely- similar cases. It merely requires that the defendant was not singled out unfairly for capital punishment. [Id. at 47 (citations omitted).]
"[T]he process of precedent-seeking review is one familiar to us as judges and is not vulnerable to the concerns about reliability that burden frequency analysis." Cooper II, supra, 159 N.J. at 70. "We have consistently placed our reliance on this form of review because of the analytic difficulties we have encountered in applying frequency analysis." Loftin II, supra, 157 N.J. at 296. Precedent-seeking review is less empirical and more analytical than frequency analysis. The exercise is more inductive, less formulaic.
In precedent-seeking review, we first examine the criminal culpability of the defendant. Criminal culpability, in turn, has three components: the moral blameworthiness of the defendant, the degree of victimization, and the character of the defendant. Chew II, supra, 159 N.J. at 210; Martini II, supra, 139 N.J. at 48-49; Marshall II, supra, 130 N.J. at 155.
a. Defendant's Moral Blameworthiness
Blameworthiness requires consideration of "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. We conclude, upon an application of the above factors, that the moral blameworthiness of defendant is high.
Although we have not described the graphic details of this sexual-assault murder, defendant's conduct can, as noted, fairly be described as "horrific." Timmendequas I, supra, 161 N.J. at 650 (Handler, J., dissenting). That he knew seven-year-old Megan was helpless aggravates his moral blameworthiness substantially. See Cooper II, supra, 159 N.J. at 90 (finding defendant's knowledge of the rape-murder victim's youth aggravating). Defendant also lured Megan into his house by letting her play with his puppy. Defendant's motive, that he strangled Megan because of his fear that she would reveal the sexual assault, is highly blameworthy. Harris II, supra, 165 N.J. at 322 (finding motive to escape detection increased moral blameworthiness); Harvey III, supra, 159 N.J. at 312-13 (same). Defendant's participation in the search and lying to police also aggravate his blameworthiness.
Although the effect of the murder on the victim's family has not received extended discussion, Chew II, Morton II, and Harvey III consider that element during precedent-seeking review. Morton II, supra, 165 N.J. at 251 (considering, during analysis of moral blameworthiness, defendant's knowledge of effect of murder on victim's surviving family); Chew II, supra, 159 N.J. at 212-13 (same); Harvey III, supra, 159 N.J. at 313 (same). See also Feaster II, supra, 165 N.J. at 406 (considering, during analysis of victimization, whether evidence was adduced regarding impact of murder on victim's family). Those cases make clear that the effect of the murder on the victim's family is a proper consideration during moral blameworthiness analysis. We note, as the dissent suggests, that the effect of the murder on the victim's family is likely present in the vast majority of the comparison cases, which reduces the factor's significance substantially. That ...