The opinion of the court was delivered by: Per Curiam
CONCURRING OPINION BY Justice Stein DISSENTING OPINION BY Justice Coleman
On proportionality review of a death sentence imposed in the Superior Court, Law Division, Middlesex County.
Last term, we affirmed Peter Papasavvas's conviction and death sentence for the murder of Mildred Place. State v. Papasavvas, 163 N.J. 565 (2000) (Papasavvas I). We preserved his right to challenge the proportionality of his death sentence. Id. at 626. We now conclude that Papasavvas was unfairly singled out for the ultimate sanction of death.
In reaching that conclusion, we remain keenly aware that Papasavvas committed a terrible crime that, standing alone, might legitimately be viewed as deathworthy. Such is not the inquiry on proportionality review, however. Proportionality review is a unique endeavor in our law:
Unlike direct review, proportionality review does not question whether an individual death sentence is justified by the facts and circumstances of the case or whether, in the abstract, the sentence imposed on a defendant is deserved on a moral level. On the contrary, its role is to place the sentence imposed for one terrible murder on a continuum of sentences imposed for other terrible murders to ensure that the defendant "has not been singled out unfairly for capital punishment." [State v. Timmendequas, __ N.J. __, __ (2001) (internal citations omitted) (Long, J., dissenting) (slip op. at 1-2).]
When that singular process is carried out, Peter Papasavvas cannot be condemned to death.
The facts are set forth in detail in Papasavvas I, supra, 163 N.J. at 578-83, as modified in State v. Papasavvas, 164 N.J. 553, 553-54 (2000) (Papasavvas II). We will, however, briefly restate those facts relevant to our proportionality review.
Shortly before nine o'clock in the evening on April 25, 1996, police officers arrived at Papasavvas's home in Iselin, New Jersey to serve an arrest warrant on an unrelated matter. Earlier that day, Papasavvas had been told that his brother had attempted suicide. When Papasavvas saw the officers he fled from his house on foot, dressed only in his underwear.
Four blocks away, he broke into the basement of a house owned by Mildred Place, a sixty-four year-old woman who lived alone. There is no suggestion in the record that Papasavvas knew Mrs. Place personally or even knew about her. Mrs. Place returned home from a church function at approximately ten o'clock that evening. Unaware that Papasavvas was hiding in her basement, she spoke with a friend on the phone until 10:30 p.m. Shortly after that conversation ended, Mrs. Place encountered Papasavvas.
Although what happened next is contested by the parties, we do know that Mrs. Place's body was discovered lying at the bottom of the basement stairs. One of her earrings and two of her sweater buttons were found at the top of the basement stairs, together with her slip and girdle, which had been cut, apparently by a pair of pinking shears. An autopsy revealed that Mrs. Place had sustained multiple physical injuries, including fractured vertebrae and ribs, hemorrhages and abrasions to her back and right side, contusions and abrasions to the bridge of her nose and right cheek, buttocks, and thighs, and extensive bruising. Those injuries, according to the State's experts, were consistent with a fall down the cellar steps. The medical examiner also discovered spermal fluid on Mrs. Place's body. He did not find any evidence of penetration. Based on the foregoing evidence, the Attorney General and the Public Defender propose different accounts of Mrs. Place's murder.
According to the Attorney General, Papasavvas broke into Mrs. Place's house to obtain clothing. He stole money, credit cards, and a telephone calling card and then heard Mrs. Place return home. Papasavvas emerged from the basement and ambushed her. After knocking her to the floor, he dragged her across the room and asphyxiated her by tying a belt around her head and mouth, thereby impeding her breathing. He then proceeded to cut off her clothes piece by piece. The cuts were straight, indicating that Mrs. Place was motionless at the time. When he finished removing her clothes, Papasavvas sexually assaulted and sodomized Mrs. Place. According to the State, after the sexual assault, Papasavvas strangled Mrs. Place and threw her down to the bottom of the basement stairs where she was found the following day. The State's medical examiner concluded that Mrs. Place died from asphyxiation as a result of the belt pushing her tongue to the side.
The Public Defender offers the following contrary account. Papasavvas broke into Mrs. Place's house to steal clothing and money. When he heard Mrs. Place return home, he decided to remain hidden in the basement until she went to sleep, at which time he planned to slip out of the house unnoticed. That plan went awry, however, when Mrs. Place opened the basement door and surprised Papasavvas, who was still dressed only in his underwear. To prevent her from screaming, Papasavvas placed her in a "sleeper hold." When she lost consciousness, he let her go and she accidentally fell down the basement stairs and broke her neck — an injury so severe that it may have caused her death. Mistakenly believing that Mrs. Place was feigning her death, Papasavvas threatened to sexually assault her so that she would stop pretending. When she did not respond, he proceeded to have sexual contact with her as evidenced by the semen found on Mrs. Place's body during the autopsy. After Mrs. Place's death, Papasavvas rummaged through her pocketbook and closets, stealing some clothing, two credit cards, and a telephone calling card.
There is little dispute over the remaining evidence. At 11:15 p.m., Papasavvas used Mrs. Place's telephone to call his own house. Before dialing his phone number, Papasavvas dialed "*67" so that Mrs. Place's phone number would not appear on his call recognition (caller ID) box. The telephone call did, however, appear on Mrs. Place's bill. Papasavvas stole Mrs. Place's automobile and drove to New York City, where he spent the night with Rosa Talbert, a female acquaintance. The next day, Papasavvas and Talbert drove to a liquor store and purchased wine and champagne using Mrs. Place's credit card. Talbert signed the receipt at Papasavvas's request after he told her that the card belonged to his mother. That same day, Papasavvas had his hair cut at a barber shop located in the vicinity of Talbert's apartment. Papasavvas left Talbert's apartment two days later, leaving behind Mrs. Place's clothing. Nineteen days after the murder, Papasavvas turned himself in to the police.
During the guilt phase of the trial, Papasavvas introduced evidence of his life history. Born in Livingston, New Jersey in 1972, Papasavvas was one of four siblings. His childhood is most remarkable for the verbal and physical abuse he endured. Whenever Papasavvas's father, Chris Papasavvas, suspected that any of his sons was misbehaving, he would take all three children downstairs to the basement, strip them, tie them to a column, and beat them with a belt or stick. His father forced Papasavvas and his brothers to shower together, occasionally scalding them with hot water, and was known to squeeze his sons' toes with pliers. Papasavvas's mother and the family pets were also on the receiving end of his father's wrath.
While in junior high school, Papasavvas developed behavioral problems that led to truancy and erratic scholastic performance. Relocating the family to Iselin when defendant was thirteen years old did not improve defendant's adjustment. Seeking social acceptance, Papasavvas was naturally drawn to other adolescents with similar behavioral problems. Around this time, Papasavvas began abusing alcohol and various drugs, including marijuana, cocaine, LSD, and mescaline.
To support his drug habit, Papasavvas stole car radios and radar detectors from unlocked vehicles. At age fifteen, he was arrested for the first time. Charged with burglary and theft, he received a probationary sentence that he violated. Over the next several years, Papasavvas was repeatedly convicted for shoplifting, theft, and burglary. As the misbehavior increased, so did the abuse at home.
In 1989, Papasavvas dropped out of high school. That same year, he received court-ordered in-patient counseling at the Carrier Clinic for a twenty-day period. Because he suffered from insomnia, flashbacks, hallucinations, and suicidal thoughts, doctors diagnosed him with adolescent adjustment reaction.
In 1993, Papasavvas suffered a serious head injury in a motorcycle accident. He was comatose for nearly three weeks, followed by at least three additional weeks of post-traumatic amnesia. A CT scan revealed that Papasavvas had bilateral frontal traumatic subdural hygromas, a diagnosis that indicates a fluid buildup in both frontal lobes, the area of the brain where high-level reasoning, judgment, and decision making take place. Tests performed in 1997 on Papasavvas's cognitive functioning revealed that his I.Q. had returned to its pre-accident level but that his abstract thinking and judgment had not similarly recovered.
After the motorcycle accident, Papasavvas's personality changed. Although he had shown aggressive characteristics prior to the accident, he began acting violently after he injured himself. In July 1994, for example, he threatened his girlfriend with a knife. Papasavvas's alcohol abuse and criminal activity also escalated.
Not surprisingly, the Public Defender and the Attorney General reached conflicting conclusions regarding Papasavvas's psychiatric condition. Dr. Wilfred Van Gorp testified for the defense that Papasavvas had suffered a severe brain injury, which included permanent damage to the frontal lobes, temporal lobes, and subcortical structures. He said that the frontal lobe injury further impaired Papasavvas's pre-accident deficiencies in judgment and inhibiting responses. Since his motorcycle accident, the doctor said, Papasavvas acts rather than thinks. Stressful conditions magnify his cognitive deficits. Dr. Arnold Apolito, another defense expert, concluded that Papasavvas's motorcycle accident caused him to suffer a severe organic brain disorder, commonly known simply as brain damage. As a result, according to Dr. Apolito, Papasavvas has cognitive defects, including impaired judgment and an inability to handle unexpected events and stressful situations.
Experts testifying on behalf of the State acknowledged that Papasavvas suffered a moderate to severe head injury in the motorcycle accident, but they concluded that his cognitive functioning had returned to its pre-accident level. Dr. Michael Miller stated that Papasavvas's motorcycle accident did not affect his behavior on the night of the offense. Another expert testifying for the State, Dr. Stanley L. Portnow, diagnosed Papasavvas with antisocial personality disorder and a substance dependence problem, but opined that Papasavvas had recovered from any head injury by the time of the murder. In short, the State's experts testified that the head injury played no role in the murder and that Papasavvas's actions comprised part of a continuum of misbehavior that had begun in his childhood.
The jury convicted Papasavvas of knowing or purposeful murder by his own conduct, felony murder, burglary, robbery, auto theft, and credit-card theft. The jury acquitted Papasavvas of aggravated sexual assault but convicted him of aggravated sexual contact, a lesser-included offense involving touching.
In the penalty phase, the State sought to establish the c(4)(g) (felony murder) and the c(4)(f) (escape detection) aggravating factors. The State relied entirely on the evidence presented at the guilt phase to prove that Papasavvas killed Mrs. Place during the commission of a burglary or robbery in order to escape detection or apprehension.
Papasavvas relied on the psychiatric testimony offered at trial and introduced additional evidence of the abuse he had endured as a child. Papasavvas's aunt testified that she occasionally visited Papasavvas's home and saw his father abusing him. Papasavvas's brother recounted the beatings that he and his siblings received as children. His brother and mother pleaded with the jury not to sentence Papasavvas to death. In his allocution statement, Papasavvas apologized for killing Mrs. Place, and he too pleaded for his life.
The jury unanimously concluded that the State had established the c(4)(g) (felony murder) aggravating factor. Only five of the twelve jurors found that the State had established the c(4)(f) (escape detection) aggravating factor. Three jurors found the c(5)(a) (extreme emotional disturbance) mitigating factor. The jury unanimously rejected the c(5)(c) (age) and c(5)(d) (diminished capacity) mitigating factors.
With respect to the c(5)(h) (catch-all) mitigating factor, ten jurors found that Papasavvas was subjected to cruelty as a young child; all twelve jurors found that Papasavvas's school system classified him as emotionally disturbed; seven found that his emotional disturbance was at least partly due to cruelty he had experienced as a child; all twelve jurors found that he suffered from a mental defect, disorder, or other mental disturbance; two jurors found an undesignated factor that warranted mercy; and all twelve rejected the remaining catch-all factors.
The jury unanimously determined that the felony-murder aggravating factor outweighed the mitigating factors beyond a reasonable doubt. Accordingly, the court sentenced Papasavvas to death. The trial court also imposed sentences on the non-capital offenses of second-degree burglary and second-degree robbery.
The Court affirmed Papasavvas's conviction and death sentence on direct appeal. Papasavvas I, supra, 163 N.J. at 630. In addition, the Court vacated Papasavvas's non-capital sentences and remanded for sentencing. Id. at 627. Subsequently, the Court denied Papasavvas's motion for reconsideration.
II. INDIVIDUAL PROPORTIONALITY REVIEW
The Court conducts proportionality review to ensure that a specific defendant's death sentence is not disproportionate when compared to similarly situated defendants. State v. DiFrisco, 142 N.J. 148, 160 (1995) (DiFrisco III); N.J.S.A. 2C:11-3e. "A capital sentence is excessive and thus disproportionate if other defendants with characteristics similar to those of the defendant under review generally receive sentences other than death for committing factually-similar crimes in the same jurisdiction." State v. Martini, 139 N.J. 3, 20 (1994) (Martini II); accord State v. Morton, 165 N.J. 235, 243-44 (2000) (Morton II).
The first step in proportionality review is to determine the universe of cases against which the defendant's case will be compared. Morton II, supra, 165 N.J. at 245; DiFrisco III, supra, 142 N.J. at 162. "We will . . . 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 death worthiness." Morton II, supra, 165 N.J. at 245. In this case, the Court relies on a universe of cases assembled by the Administrative Office of the Courts (AOC) in the Papasavvas Report. The proportionality universe currently includes a total of 455 death-eligible cases, 176 of which proceeded to a penalty trial. Papasavvas Report, tbl. 7. Of the 176 cases that reached the penalty phase, fifty-two, or 29.5%, resulted in a death sentence. Ibid. The overall death-sentencing rate is 11.4% (52/455). Ibid.
Proportionality review consists of two steps: frequency analysis and precedent-seeking review. Each must be addressed separately.
In frequency analysis, the Court "seeks[s] to determine... whether there is a societal consensus that the defendant in the case before us is sufficiently culpable such that his sentence may be deemed not aberrational." State v. Chew, 159 N.J. 183, 201 (1999), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999) (Chew II). The Court conducts frequency analysis by relying on the salient-factors test, a measurement of the relative frequency of death sentences in factually similar cases. Morton II, supra, 165 N.J. at 245. Under the salient-factors test, every death-eligible case is assigned to one of thirteen categories based on the statutory aggravating factors.*fn1 Id. at 246. We then subdivide that group "according to circumstances that serve either to aggravate or to mitigate the blameworthiness of the defendants in those cases." State v. Loftin, 157 N.J. 253, 328 (1999) (Loftin II) (quoting Martini II, supra, 139 N.J. at 33) (internal quotations omitted). In the present case, the State and Papasavvas cannot agree on the appropriate category for salient-factors review. The State contends that this case should be assigned to the F-1 cell —— murder committed during a residential robbery. Papasavvas, on the other hand, argues that this case belongs in the K cell —— murder committed during a burglary. For the reasons that follow, we conclude that this case should be assigned to the F-1 cell.
As noted previously, the State submitted two aggravating factors to the jury: (1) Papasavvas murdered Mrs. Place to escape detection for burglary or robbery, and (2) Papasavvas murdered Mrs. Place during the commission of a burglary or a robbery. Only five of the twelve jurors found the "escape detection" aggravating factor, but the jury unanimously agreed that Papasavvas murdered Mrs. Place during a burglary and a robbery. Papasavvas nevertheless contends that this case should be assigned to the burglary cell because the robbery was a mere afterthought, and it was actually the burglary that led to Mrs. Place's death.
Clearly, a robbery occurred under N.J.S.A. 2C:15-1 regardless of whether Papasavvas stole Mrs. Place's belongings before or after he murdered her and, based on the jury's verdict, Papasavvas murdered Mrs. Place during both a robbery and a burglary. As a result, this case could be assigned either to the F-1 cell or the K cell. The Court's consistent practice has been to abide by 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." In re Proportionality Review Project, 161 N.J. 71, 89 (1999). Specifically, the case is assigned to the most aggravated category. State v. Harris, 165 N.J. 303, 316 (2000) (Harris II). The main rationale in support of the principle of unique assignment is that juries generally are swayed by the most aggravating characteristic in a case. Statistics show that juries impose the death penalty in robbery cases but not in burglary cases.*fn2 Consequently, we assign Papasavvas's case to the F-1 subcategory —— murder committed during a robbery in a home.*fn3
In the F-1 subcategory, there are currently fourteen cases. The following chart represents a breakdown of the death sentencing rates for defendants in the F-1 subcategory.
SALIENT-FACTORS TEST: F-1 SUBCATEGORY
Proportion of Death-Sentencing Death-Sentencing Cases Advancing Rate at Rate for All
To Penalty Trial Penalty Trial Eligible Cases
F-1 Incl D. 28.0% (14/50) 35.7% (5/14) 10.0% (5/50)
F-1 Excl. D. 26.5% (13/49) 30.8% (4/13) 8.2% (4/49)
All Ds 38.7% (176/455) 29.5% (52/176) 11.4% (52/455)
All Ds Excl. D. 38.5% (175/454) 29.1% (51/175) 11.2% (51/454)
The statistics do not demonstrate a societal consensus for or against the use of the death penalty in cases falling within the F-1 category. Prosecutors seem to view F-1 cases as somewhat less deathworthy than the norm. Including Papasavvas, 28% of F-1 cases proceeded to penalty trial, whereas 38.7% of all death- eligible cases proceeded to penalty trial. Excluding Papasavvas, 26.5% of F-1 cases proceeded to penalty trial, whereas 38.5% of all death-eligible cases proceeded to penalty trial.
On the other hand, the death-sentencing rate at penalty trials in F-1 cases is on a par with the overall rate, suggesting that juries view F-1 cases as average in terms of death worthiness. Including Papasavvas, 35.7% of F-1 penalty trial cases resulted in a death sentence, as compared with 29.5% of all death-eligible penalty trial cases. Excluding Papasavvas, the difference is reduced: 30.8% of F-1 penalty trial defendants received the death penalty, compared with 29.1% of all death- eligible penalty trial cases.
Finally, the percentage of F-1 defendants who received the death penalty is slightly lower than the overall percentage. Including Papasavvas, 10% of F-1 defendants were sentenced to death, compared with 11.4% of all death-eligible defendants. Excluding Papasavvas, 8.2% of F-1 defendants were sentenced to death, compared to 11.2% of all death-eligible defendants.
Because the statistics do not demonstrate a societal consensus for or against the use of the death penalty in F-1 cases, we must "give enhanced weight to the process of precedent- seeking review." State v. Cooper, 159 N.J. 55, 88 (1999) (Cooper II).
B. PRECEDENT-SEEKING REVIEW
The second step in conducting proportionality review consists of precedent-seeking review, wherein the Court "examine[s] 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 209-10. The goal of precedent-seeking review is "to ensure that the defendant has not been ?singled out unfairly for capital punishment.'" Cooper II, supra, 159 N.J. at 88 (quoting Martini II, supra, 139 N.J. at 47). Although precedent-seeking review is intended to complement frequency analysis, DiFrisco III, supra, 142 N.J. at 184, we traditionally have placed greater reliance on precedent-seeking review. Cooper II, supra, 159 N.J. at 70.
Both precedent-seeking review and frequency analysis, especially the salient-factors component, are fact-driven. Reliance upon the facts of the case presents a unique challenge here, because the Attorney General and the Public Defender continue to dispute certain facts: whether Papasavvas was surprised by Mrs. Place or ambushed her; whether he raped Mrs. Place or had some other form of non-invasive sexual contact with her; whether he threw her down the stairs deliberately; and whether he stole her property before or after the murder.
Because the events in this case must be compared to the events that took place in other cases in order to carry out precedent-seeking review, the Court must determine the appropriate version of events to evaluate. In so doing, we do not attempt to replicate the jury's deliberative process, an activity that is plainly beyond our purview. Rather, we accept as given all uncontroverted facts and, where facts are disputed, we extract from the jury's findings of guilt and innocence the version of events essential to the verdict. The reason we do that is because we can be sure that the State proved those facts beyond a reasonable doubt. Under that standard, the jury's verdicts resolve all but one factual dispute.
The conviction for aggravated sexual contact and acquittal of aggravated sexual assault indicate that the jury found only some form of non-invasive sexual touching. It is also apparent from the jury's verdict that Papasavvas deliberately threw Mrs. Place down the stairs. In order for Papasavvas to have been found death-eligible, the jury must have found that, by his own conduct, he purposely or knowingly caused the death of Mrs. Place or intended serious bodily injury, knowing that it was highly probable that death would result from the injury. State v. Cruz, 163 N.J. 403, 417-18 (2000).
Because the jury found only the felony-murder aggravating factor and rejected the escape-detection aggravating factor, it can be inferred that the jury found that the murder happened in the course of a robbery or burglary but not that the robbery or burglary occurred before the murder. If Papasavvas had stolen the property first, the escape detection aggravating factor would have followed logically from that conclusion. Thus, it is reasonable to infer that the jury believed Papasavvas to have taken Mrs. Place's property after the murder.
The only fact still disputed by the parties but not resolved by the jury's verdict is whether Papasavvas ambushed Mrs. Place or was surprised by her. If the reason we accept all of the facts that are essential to the jury's verdict is because we can be sure the State bore its burden of proving those facts beyond a reasonable doubt, it follows that where, as here, the verdict does not provide such assurance, the State's version should not prevail.
Our dissenting colleague relies upon the acquittal motion and the motion for judgment notwithstanding the verdict (j.n.o.v.) paradigms to establish the factual record in this case, essentially giving the benefit of the doubt to the State. Post at __ (slip. op. at ____). Adoption of those standards is improper for several reasons. When an appellate court reviews j.n.o.v. and acquittal motions, the inquiry is whether the evidence at trial supported the jury's verdict. The appellate court's function is to determine whether a reasonable jury "could have" made the findings at issue in light of the evidence presented. In that context, it makes sense to cast the burden on the movant and confer the benefit of the doubt on the non-moving party. The inquiry on proportionality review is much different. The Court does not assess the jury's verdict to determine its reasonableness. Rather, we compare a defendant's circumstances to similar cases to determine whether the sentence is proportional. The standards of review applied to j.n.o.v. and acquittal motions have no resonance in a proportionality review inquiry. In this respect, we agree with the concurring opinion of Justice Stein that explicates that a proportionality review does not implicate the reasonableness of a death sentence but rather investigates its comparative proportionality to similarly situated defendants. Post at __ (slip. op. at ____).
Our dissenting colleague's use of the j.n.o.v. and acquittal motions standards presumably flows from the fact that the burden shifts to a defendant in proportionality review to prove that he has been unfairly singled out for capital punishment. Morton II, supra, 165 N.J. at 235. Indeed, the burden is cast upon the defendant in proportionality review. However, the unique situation confronting us is to determine the factual predicate for the proportionality review. The burden shifts to Papasavvas only after the facts have been established, at which point the proportionality review inquiry begins. Thus, a presumption in favor of the defendant is the vantage point from which the issue must be resolved.
As we have indicated, only one fact that is disputed cannot be resolved by the application of logic to the verdict: whether Mrs. Place was ambushed by Papasavvas or he was surprised by her. Because the issue is contested and neither version of the facts is essential to the verdict, we must assume that Papasavvas was surprised by Mrs. Place while he hid in her basement. That is the factual backdrop from which our analysis will flow.
We divide criminal culpability into three categories: the defendant's moral blameworthiness, the degree of victimization, and the defendant's character. See, e.g., Chew II, supra, 159 N.J. at 210. The components by which we measure a defendant's culpability are not disputed. In fact, they are catalogued in minute detail in our cases:
1. Defendant's moral blameworthiness
c. Justification or excuse
d. Evidence of mental disease, defect or disturbance
e. No Knowledge of victim's helplessness
f. No Knowledge of effects on nondecedent victims
h. Defendant's involvement in planning the murder
2. Degree of victimization
a. Violence and brutality of the murder
b. Injury to nondecedent victim
3. Character of defendant
b. Other unrelated acts of violence
c. Cooperation with authorities
e. Capacity for rehabilitation. [State v. Harvey, 159 N.J. 277, 309 (1999) (Harvey III) (citing State v. Marshall, 130 N.J. 109, 155 (1992) (Marshall II)).]
It would be fair to say that the foregoing list is a manifesto of the matters that are at the heart of a judgment regarding culpability - the assessment of good versus evil.
a. DEFENDANT'S MORAL BLAMEWORTHINESS
With respect to moral blameworthiness, we examine "motive, premeditation, 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." Chew II, supra 159 N.J. at 210-11.
Papasavvas has been placed in the F-1 category - murder during the commission of a robbery. Among robbery cases, Papasavvas's motive for pecuniary gain is on the low end of the spectrum: his crime was not a contract killing, State v. Marshall, 123 N.J. 1, 28 (1991) (Marshall I), DiFrisco III, supra, 142 N.J. at 210; it was not a murder resulting from a kidnaping for ransom, Martini II, supra, 139 N.J. at 74, nor was it an insurance killing, Chew II, supra, 159 N.J. at 226. Murders like Papasavvas's, that occur in the course of a felony, are strikingly common. Indeed, according to statistics provided by the AOC, since 1983 74% of cases in the death-eligible universe have the c(4)(g) aggravating factor. In 2000, 100% of the cases included that factor either alone or in conjunction with other factors. At the very least then, because it is so widespread, cases that have only the 4(g) factor require particular scrutiny. In addition, we note that the murder was not premeditated, at least not in advance of Papasavvas's entry into the Place home. The record does not suggest any justification or excuse for Papasavvas's crime.
Papasavvas offered extensive evidence of brain damage and psychological impairments including a serious head injury sustained during a motorcycle accident. Although the jury unanimously rejected Papasavvas's claim of diminished capacity (c(5)(d)), within the catch-all factor all twelve jurors found that Papasavvas suffered from a mental defect or other mental disorder.
Papasavvas also presented considerable evidence of child abuse, and ten jurors found that Papasavvas was subject to cruelty as a child. All twelve jurors found that the school district in which Papasavvas was enrolled classified him as emotionally disturbed. Seven jurors found that his emotional disturbance was attributable in part to the abuse he suffered as a child.
Mrs. Place was vulnerable due to her advanced age and the fact that she lived alone. There is no evidence, however, that suggests Papasavvas was aware of those vulnerabilities when he broke into the basement. There was no evidence of provocation.
Although Papasavvas was twenty-three years old at the time of the murder, the jury unanimously rejected the c(5)(c) (age) mitigating factor. Nevertheless, we assign some mitigating weight to his age due to the effect it might have had on the jury's evaluation of the c(5)(h) (catch-all) mitigating factors. See State v. Bey, 137 N.J. 334, 360 (1994). Assessing all of those facts, we find Papasavvas's moral blameworthiness to be moderate.
b. DEGREE OF VICTIMIZATION
We evaluate victimization by examining the "violence and brutality of the murder, and injury to nondecedent victims." Chew II, supra, 159 N.J. at 211.
Papasavvas assaulted Mrs. Place. To prevent her from screaming, he tied a belt around her mouth, which made it difficult for her to breathe. After choking her, he threw her body down the stairs. Finally, he cut off her clothes piece by piece and had some sort of sexual contact with her. Because it is unknown at what point Mrs. Place died in the attack, we are unable to assess her level of suffering. However, the Court has held that even short periods of suffering are sufficient to increase the degree of victimization. See Cooper II, supra, 159 N.J. at 91; Harvey III, supra, 159 N.J. at 314; Loftin II, supra, 157 N.J. at 338. We note that, though terrible, Mrs. Place's injuries, when viewed against the backdrop of the horrific acts of gratuitous violence that inhabit the death penalty universe, are not among the most egregious. Nevertheless, the degree of victimization overall was high.
Finally, we consider Papasavvas's character, which includes his "prior record, other unrelated acts of violence, cooperation with authorities, remorse, and capacity for rehabilitation." Chew II, supra, 159 N.J. at 211. Papasavvas has both a juvenile record and an adult record. As an adult, he has nine convictions for such offenses as burglary, larceny, receiving stolen property, and unlawful possession of a weapon. As a juvenile, Papasavvas had two adjudications for delinquency, beginning at age fifteen, for burglary and thefts. His criminal history increases his culpability. However, that is offset by the absence of violent offenses prior to this offense.
Papasavvas did not immediately cooperate with the authorities. After three weeks had passed, he finally turned himself into the police. He confessed to his psychiatrists that he killed Mrs. Place, but he claimed that she accidentally fell down the basement stairs. That diminishes the weight to be accorded to his confession. Cooper II, supra, 159 N.J. at 91. He expressed remorse for the crime, albeit belatedly. Waiting until allocution to express remorse when facing the prospects of a death sentence diminishes the value of that remorse. Ibid.
Although Papasavvas's capacity for reform is questionable, his criminal history, the lack of violence in his criminal record, his remorse, and his age indicate that he may well have the potential for rehabilitation.
Of the fifteen considerations that underlie this analysis, eleven clearly support Papasavvas. The crime was not premeditated; Papasavvas is brain damaged and suffered horrific child abuse; there is no evidence that Papasavvas had reason to know of Mrs. Place's vulnerability or even that she would be at home; Papasavvas was not aware of the non-decedent victims who would be affected by his actions; he was only twenty-three years old at the time of the crime; he did not plan it; he did not injure a non-decedent victim; his prior record is a non-violent one; he ultimately gave himself up; he expressed remorse for his crime and there is nothing to suggest that he is beyond redemption. Accordingly, we find Papasavvas's overall culpability to be moderate based on the three-part model of criminal culpability.
2. PAPASAVVAS'S COMPARISON GROUP
"In precedent-seeking review we use the same comparison group that was used in the salient-factors test." State v. Feaster, 165 N.J. 388, 407 (2000); accord Chew II, supra, 159 N.J. at 214. The Court examines cases that are factually similar to the 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.
Before engaging in our comparisons, we note the following trenchant observation that is the State's point of departure for its analysis of the comparisons of Papasavvas's case to those in the F-1 category:
Initially, the State notes that the aforementioned death and life-sentenced cases cannot accurately be described as genuinely comparable since none of the defendants discussed above sexually attacked their victims in addition to robbing and killing them. In marked contrast, defendant, as found by the jury, perpetrated what this Court accurately described as "bizarre and repulsive" conduct against Mildred of a distinctly sexual nature, including making "very straight [scissor] cuts of clothing to leave exposed her private parts, and by ejaculating near her anus. Even prior to this Court's decision, the AOC specifically ...