STATE V. JOHN MARTINI, SR.
Case Date: 12/21/1994
Docket No: SYLLABUS
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(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 19, 1994 -- Decided December 21, 1994
CLIFFORD, J., writing for a majority of the Court.
A jury convicted John Martini of murder and other crimes for the kidnapping and murder of Irving
Flax. At the penalty phase, the jury found the aggravating factors (escaping detection and murder during a
kidnapping) to outweigh the mitigating factors (defendant's age and the "catch-all" factor). The Supreme
Court affirmed Martini's conviction and the sentence of death on February 9, 1993, deferring proportionality
review. This decision addresses the issue whether the imposition of the death sentence on Martini was
disproportional.
HELD: Martini's sentence, considering both the defendant and the crime, does not disclose any
disproportionality when compared to the sentences in factually-similar cases. The Court therefore
affirms Martini's death sentence.
1. The goals of proportionality review are to ensure the existence of a substantial distinction between
capitally-sentenced and life-sentenced defendants; to limit death sentences to cases involving the most
aggravated of murders; and to promote consistent and rational application of the death sentence. The
burden is on defendant to show the presence of disproportionality or aberration in his sentence. (pp. 9-14)
2. The Court's first step is to determine the universe of cases to which it will compare defendant's case.
It does not apply the current version of N.J.S.A. 2C:11-3e, which limits the universe of comparable cases to
only those in which a death sentence has been imposed, because Martini murdered Flax before the effective
date of the amendment. The Court therefore does not rule on constitutional challenges to the amendment.
The universe of cases thus consists of 298 death-eligible cases identified by the Administrative Office of the
Courts. (pp. 14-15)
3. Martini's suggestion to exclude reversed death sentences from the universe of death-sentenced cases
is rejected, just as this suggestion was rejected in Bey IV. Death sentences reversed for procedural error, as
opposed to errors affecting the substance of the crimes, remain reliable indicators of deathworthiness.
Defendant's case is also included in the pool because doing so aids the search for community values used to
determine the presence of disproportionality in death sentencing. (pp. 15-20)
4. The universe of cases must then be grouped according to their comparative levels of
blameworthiness by considering statutory aggravating and mitigating factors, as well as non-statutory factors,
that are based on objectively-verified measures of blameworthiness. The Court uses two approaches to
evaluate these factors: frequency analysis, in which the sentences in death-eligible cases are compared on a
statistical basis to determine whether a case such as Martini's will generally result in a death sentence, and a
precedent-seeking review, in which the Court engages in a traditional, case-by-case comparison of death-eligible cases. Because the size of the sample pool used in the frequency approach remains small, the results
of frequency analysis are not entirely reliable, and the Court therefore relies more heavily on the results of
the precedent-seeking review. (pp. 20-23) 5. Frequency analysis is separated into three parts: the salient-factors test, in which the Court compares defendant's case to factually-similar cases; the numerical-preponderance-of-aggravating-and-mitigating-factors test, which measures defendant's case against others involving the same number of
aggravating and mitigating factors; and the index-of-outcomes test, which compares defendant's case to cases
involving the same level of blameworthiness, considering both statutory and non-statutory factors. The
results of these tests indicate no disproportionality in Martini's sentence. (pp. 23-46)
6. In the precedent-seeking approach, the Court considers the objective statutory and nonstatutory
factors that were presented to the juries in the cases used in the frequency analysis. It is a search for
impermissible factors in the decision to sentence a given defendant to death to ensure that the defendant has
not been singled out for capital punishment unfairly. Precedent-seeking review reveals no disproportionality
in Martini's sentence. (pp. 47-97)
7. Finally, Martini argues that the death penalty violates the Federal and New Jersey Constitution, is
racially biased, and is applied inconsistently on a geographical basis. The Court rejected those arguments in
prior opinions, and rejects them here for the reasons expressed in those opinions. (pp. 97-99).
The imposition of the death penalty on defendant is not disproportionate.
JUSTICE HANDLER, dissenting, is of the view that the looseness of proportionality review
demands the continued exposure of the fundamental flaws that beset our current system of death-sentence
validation. One of the most prominent defects in the Court's proportionality review is the continued use of
reversed-death sentences in the universe of comparable cases. Another major deficiency is the inconsistency
and inherent subjectivity of the Court's techniques for determining proportionality -- frequency analysis and
precedent-seeking analysis. The Court persists in applying those methods without any clear standards or
intelligible guidelines. Beyond the problems peculiar to proportionality review, there remains the great
systemic flaw of our capital punishment regime, a regime founded on conflicting and contradictory principles
and administered without any degree of consistency.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, O'HERN, GARIBALDI and STEIN join
in JUSTICE CLIFFORD's opinion. JUSTICE HANDLER has filed a separate dissenting opinion.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN MARTINI, SR.,
Defendant-Appellant.
Argued January 19, 1994 -- Decided December 21, 1994
On proportionality review of a death sentence
imposed in the Superior Court, Law Division,
Bergen County.
Mark H. Friedman and William B. Smith,
Assistant Deputy Public Defenders, argued the
cause for appellant (Zulima V. Farber, Public
Defender, attorney).
Craig V. Zwillman, Deputy Attorney General,
argued the cause for respondent (Deborah T.
Poritz, Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
Defendant, John Martini, kidnapped Irving Flax, a Fair Lawn
businessman, and held him for $25,000 ransom. After receiving
the ransom money, defendant killed Flax by shooting him three
times in the back of the head at extremely close range. A jury
convicted defendant of purposeful or knowing murder by his own
conduct, felony murder, kidnapping, and two weapons offenses.
After the penalty-phase proceedings the trial court sentenced
defendant to death for the purposeful or knowing murder and to a
life term with a thirty-year parole bar for the felony murder,
and merged those sentences. Defendant also received a
consecutive life term with a twenty-five-year period of parole
ineligibility for the kidnapping, and two concurrent four-year
terms for the weapons offenses. This Court affirmed defendant's
convictions, except for possession of a handgun without a permit,
and his sentences, except for that imposed for kidnapping. State
v. Martini,
131 N.J. 176 (1993). We granted defendant's request
for proportionality review of his death sentence, see N.J.S.A.
2C:11-3e, and now find no disproportionality.
I Facts3
II Proportionality Review9
A. The Universe of Cases14
III Comparison of Cases20
A. The Frequency Approach23
B. The Precedent-Seeking Approach47
1. Relevant Factors50
a. Parties' Arguments55
b. Summaries of Similar Cases58
i Non-Stranger Kidnapping59
c. Analysis of Defendant's Culpability89
3. Other Cases96
IV Other Arguments97
V Conclusion99
FACTS
The facts are set forth in detail in Martini, supra, 131
N.J. at 191-207. We repeat here only those facts that are
relevant to our proportionality review. In November 1988, Martini returned to New Jersey from Arizona. His girlfriend, Therese Afdahl, for whom defendant had left his wife of thirty-nine years, accompanied him. Using a credit card borrowed from a friend, defendant rented an apartment in Fairview under the friend's name. Lacking money, defendant sought from another friend, John Doorhy, advice on a quick method of replenishing his dwindling supply of funds. Doorhy, having recently worked at Flax's home and having noticed large amounts of cash and several bankbooks in the house, suggested that
Martini kidnap Flax, and acquainted defendant with the Flax
family's morning schedule. In exchange for driving Martini to
Flax's house and giving him written directions that defendant
would later use to return there, Doorhy accepted defendant's
promise of a percentage of the money that defendant anticipated
receiving from the kidnapping.
In preparation for the kidnapping, defendant retrieved from
Doorhy's house a revolver that Doorhy had been holding for him,
and purchased another revolver in Jersey City. On January 23,
1989, Martini and Afdahl drove to Flax's house. When Flax came
out of the house, defendant alighted from his car and called Flax
by a nickname that he knew Flax had formerly used, having been
acquainted with him some thirty years previously. Flax asked
whether defendant had been in the Army. Defendant lied, saying
"yes," and suggested that they go in Flax's car to a diner for a
cup of coffee.
Flax agreed. After the two men entered the car, Martini
pulled out his recently-purchased revolver, told Flax that he was
being kidnapped, and directed him to drive to a Garden State
Plaza parking lot in Paramus. Afdahl followed them. After both
cars had reached the lot, defendant ordered Flax into defendant's
car and drove to the Fairview apartment.
Martini made Flax place a call to his wife, then bound Flax
and told Mrs. Flax that if she wanted to see her husband alive,
she would have to give defendant $100,000. Defendant also
threatened to kill both her husband and her if she notified the
police. Defendant called again at 1 p.m. to see if Mrs. Flax had
raised the ransom money. When she said that she could not obtain
that much cash, Martini he said that he would call back at 6 p.m.
to see if she could raise $25,000. Throughout the call defendant
repeatedly threatened to kill both the Flaxes.
During the afternoon, the police placed taps on Mrs. Flax's
telephone. After Mrs. Flax withdrew the $25,000, F.B.I. agents
recorded the serial numbers of the bills. At 5:30 p.m.,
defendant called again, arranged the delivery of the ransom
money, and again threatened that someone would come to kill the
Flaxes if defendant were arrested. The F.B.I. recorded the
conversation. Shortly thereafter, Mrs. Flax received a call from
her hysterical husband, begging her to give defendant the money. As arranged, Mrs. Flax dropped off the money and Martini picked it up. F.B.I. agents followed him, but defendant, fearful of being followed, drove into the Bronx, managing to lose the agents during the course of an hour's drive in traffic. He returned to the Fairview apartment and retrieved Afdahl and the victim, whom defendant ordered to drive to the Garden State Plaza parking lot, where defendant's car was parked. When they
arrived, defendant shot Flax three times in the back of the head,
because, defendant claimed, Flax had opened the driver's door and
placed his foot on the ground, and defendant feared that Flax
would escape.
Leaving Flax's body in the car, Martini drove his own car
onto the Staten Island Ferry, from which he threw both his gun
and his victim's car keys into the New York Harbor. He then
drove to the Bronx with Afdahl, disposed of the car, and arranged
for a ride back to Fairview from the friend whose credit card he
had been using.
The next day, January 24, 1989, a security guard discovered
Flax's body in his car at the Garden State Plaza parking lot.
That afternoon, an acquaintance of Martini identified the male
voice on the taped telephone conversation as Martini's. Alerted by a flyer that defendant and Afdahl were wanted in connection with a double homicide in Arizona, police in Fort Lee saw the two leave a motel and, carrying a black bag, walk to a telephone booth at a gas station, where defendant placed a call. When a taxi arrived, defendant and Afdahl entered it, whereupon police arrested them. A search of the bag revealed $23,760 bearing serial numbers that the F.B.I. had recorded, the borrowed credit card that defendant had been using, the second revolver,
and a key for the motel that they had just left. Police did not
observe in defendant any signs of drug-related intoxication.
After being arrested, receiving Miranda warnings, and being
allowed to consult with Afdahl, whom he advised to cooperate with
the authorities as he intended to do, defendant gave the police
written and oral statements and his consent to search his motel
rooms and his rented apartment.
At trial, the State's forensic expert testified that the
pattern of blood spattering and other physical evidence indicated
that Flax had been shot at a range so close that the victim could
not have opened the door and placed his foot on the ground as
defendant had claimed. A physician with whom Martini had
consulted on December 12, 1988, testified that he had observed no
evidence of cocaine use. Mrs. Flax testified without objection
to the telephone conversations with both her husband and
defendant. Finally, a police officer who had taken statements
from defendant read them into the record. Defendant presented evidence of his cocaine habit, which, in addition to his ten-year affair with Afdahl, a former prostitute, had broken up his marriage, and, defendant claimed, had diminished his capacity to commit his crimes purposefully or knowingly. His defense expert testified that Martini was "unquestionably" under the influence of cocaine, but the witness
could not give an opinion within a reasonable degree of medical
probability whether defendant had acted purposefully or knowingly
during the shooting. The State's rebuttal expert testified that
defendant had, within a reasonable degree of medical probability,
acted purposefully or knowingly during the shooting.
The jury found defendant guilty on all counts. At the
penalty trial for the purposeful or knowing murder, the State
sought to prove two aggravating factors: c(4)(f) (murder to
escape detection), and c(4)(g) (murder during the course of a
kidnapping). Defendant offered five mitigating factors: c(5)(a)
(extreme mental or emotional disturbance insufficient to
constitute a defense to prosecution), c(5)(c) (age of defendant),
c(5)(d) (diminished capacity due to mental disease or defect, or
intoxication), c(5)(g) (furnishing substantial assistance to the
State in prosecuting another person for murder), and c(5)(h) (the
catchall factor). The trial court granted the State's motion to
strike mitigating factor c(5)(g). Martini offered evidence of
his drug abuse and its effects on his personality, and the State
offered rebuttal evidence concerning defendant's character. The jury found both aggravating factors beyond a reasonable doubt. No juror found mitigating factors c(5)(a) (extreme mental or emotional disturbance) or c(5)(d) (diminished capacity). Six jurors found mitigating factor c(5)(c) (defendant's age), and six found c(5)(h) (the catchall factor). The jury unanimously found
that the aggravating factors, whether considered together or
individually, outweighed the mitigating factors.
From the judgments of conviction and sentences of death for
the murder and prison terms for the other offenses, defendant
appealed directly to this Court, R. 2:2-1(a)(3). We affirmed
defendant's conviction for murder and the sentence of death, but
reversed the conviction for possession of a handgun without a
permit for failure to prove an essential element of the offense.
131 N.J. at 191, 320. We further vacated defendant's kidnapping
sentence because it violated the statutory term, and remanded for
resentencing on that count. Id. at 321.
The purpose of proportionality review is to determine
whether a specific defendant's death sentence is
disproportionate. See 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. Bey,
137 N.J. 334, 343 (1994) (Bey IV); State v. Marshall,
130 N.J. 109, 131 (1992) (Marshall II). We have declined to set a
numerical standard to determine at what point defendants
"generally" receive sentences of death, Marshall II, supra, 130
N.J. at 152-53, because such a standard would introduce
unacceptable arbitrariness into proportionality review. Proportionality review is a procedural, or "offender-oriented," safeguard -- that is, it focuses on the defendant, not on the crime committed. Marshall II, supra, 130 N.J. at 126-27. In focusing on the offender and not the offense, that form of review presumes that death is proportional to the crime, Pulley v. Harris, 465 U.S. 37, 43, 104 S. Ct. 871, 876, 79 L. Ed.2d 29, 36 (1984), and is therefore different from the traditional Eighth Amendment substantive review. In contrast, substantive review considers the offense, not the offender, to determine whether the punishment is excessive for the crime itself. Coker v. Georgia, 433 U.S. 584, 592, 97 S. Ct. 2861, 2866, 53 L. Ed.2d 982, 989 (1977). For a sentence to be facially constitutional, the magnitude of the punishment must measurably serve the acceptable goals of punishment and may not be "grossly out of proportion" to the degree of harm. Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2925, 49 L. Ed.2d 859, 875 (1976) (finding that death sentence does not per se violate Eighth Amendment); accord Coker, supra, 433 U.S. at 592, 97 S. Ct. at 2866, 53 L. Ed. 2d at 989 (concluding that death sentence is grossly disproportional and excessive for crime of rape); Marshall II, supra, 130 N.J. at 129 (tracing U.S. Supreme Court's development of substantive review); see Enmund v. Florida, 458 U.S. 782, 797, 801, 102 S. Ct. 3368, 3376, 3378-79, 73 L. Ed.2d 1140, 1151, 1154 (1982) (finding that
Eighth Amendment prohibits capital sentence for defendant who
aids and abets felony in course of which murder is committed by
others but who does not himself kill, attempt to kill, or intend
that killing or use of lethal force take place).
Proportionality review is a response to Furman v. Georgia,
408 U.S. 238,
92 S. Ct. 2726,
33 L. Ed.2d 346 (1972), which
reversed three death sentences, one for murder and two for rape.
In Marshall II, supra, this Court cited Justice Stewart's
concurring opinion to state that the decision whether to sentence
a defendant capitally, if left to the unfettered discretion of a
jury, violates the Eighth Amendment because the sentence can be
"'wantonly and * * * freakishly imposed.'" 130 N.J. at 125
(quoting Furman, supra, 408 U.S. at 310, 92 S. Ct. at 2762-63, 33
L. Ed.
2d at 390 (Stewart, J. concurring)). Proportionality
review, which allows this Court to monitor the results of jury
discretion, is neither required by the Eighth Amendment nor the
only way through which to make a capital-sentencing scheme
constitutional. See Pulley, supra, 465 U.S. at 44-46, 104 S. Ct.
at 876-77, 79 L. Ed.
2d at 36-37. However, it permits New
Jersey's capital-sentencing scheme to comply with the dictates of
Furman and with the Eighth Amendment, which prohibit arbitrary
and inconsistent application of the death penalty. See id. at
44, 104 S. Ct. at 876, 70 L. Ed.
2d at 36.
The goals of that kind of review are to ensure that a
substantial distinction exists between capitally-sentenced and
life-sentenced defendants; to limit capital sentencing to those
cases that are most aggravated and in which death sentencing is
the expected result; and to promote a rational, consistent, and
fair application of the death sentence. Marshall II, supra, 130
N.J. at 131; David C. Baldus, Death Penalty Proportionality
Review Project Final Report to the New Jersey Supreme Court 24-25
(Sept. 24, 1991) (hereinafter Final Report). The burden is on
the defendant to show disproportionality by establishing that
similar defendants who commit factually-similar crimes generally
receive sentences other than death. Bey IV, supra, 137 N.J. at
343, 349. We impose that burden on the defendant, not on the
State, because the statute, N.J.S.A. 2C:11-3(e), speaks in terms
of proving disproportionality, not proportionality. Id. at 349. We believe that the dissent reveals a fundamental misperception of the role of proportionality review. That review is not a "system of death-sentence validation," post at __ (slip op. at 1), but is instead a vehicle to ensure that the penalty-phase jury's decision is not insupportable. That purpose stems from the mandate of the statutory language itself: "the Supreme Court * * * shall determine whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." N.J.S.A. 2C:11-3e. Thus, our search is not for proportionality, but rather one
in which our goal is to determine whether the jury's decision to
sentence a defendant to death is comparable to decisions reached
in the appropriate capital cases in our universe of cases. The
question is whether other defendants with similar characteristics
generally receive sentences other than death. Marshall II,
supra, 130 N.J. at 153.
The dissent finds "a palpable bias in favor of the
proportionality of a death sentence." Ibid. That bias, if
present, does not stem from what our colleague describes as a
"selective and convenient rationalization." Rather, our imposing
on the defendant the burden of showing disproportionality stems
from the statutory language itself, discussed above. It is
settled law. We held as much in Bey IV, supra,
137 N.J. at 343,
349. The dissent unearths nothing new or "treacherous," post at
__ (slip op. at 5), here. On the contrary, it simply attempts to
rewrite established proportionality jurisprudence. Therefore,
the statement that the "Court is determined to put the burden of
proof on the defendant," post at __ (slip op. at 24), although
accurate, is hardly a damning accusation. Likewise, the dissent's claims concerning first-impression murders are incorrect statements of the law. Being the first murderer in a given category of intentional homicide does not "apparently guarantee[] the proportionality of the sentence." Post at __ (slip op. at 25). Instead, that status requires only
that we weigh our comparison of such a defendant with other
capital murderers in light of the differences in the respective
categories. That approach guarantees sensitivity of process, not
certainty of result.
A. The Universe of Cases
The first step in proportionality review is to determine the
universe of cases to which we compare a defendant's case. In
1992, the Legislature amended N.J.S.A. 2C:11-3e to limit the
comparison group to only those cases in which a death sentence
has actually been imposed. L. 1992, c. 5, § 1. However, the
Legislature did not state whether it intended the amendment to
apply to pending appeals. Bey IV, supra, 137 N.J. at 343-44. In
Marshall II and Bey IV, we declined to apply the amendment to
those appeals for the reason, among others, that those
defendants' appeals were pending before the Legislature enacted
the amendment. The same situation pertains here: Martini was
sentenced to death on December 12, 1990, and his appeal was
pending before the effective date of the amendment. We therefore
will not apply N.J.S.A. 2C:11-3e as amended to defendant's
proportionality review. The Administrative Office of the Courts (AOC) is responsible for maintaining the data base of homicide cases used by this Court for proportionality review. It has developed its
statistics based on the procedure created by Professor David
Baldus, the Special Master appointed by this Court to create a
model for proportionality review, and on the modifications
thereto that this Court outlined in Marshall II. The universe of
cases that we employ in this case is compiled in the Martini
Report prepared by the AOC. That report includes cases collected
from 1983 to June 25, 1993. It contains 298 death-eligible
cases, 125 of which went to penalty trial, a rate of forty-two
percent. Martini Report tbl. 3. Of the 125 penalty-trial cases,
thirty-eight resulted in a death sentence, a rate of thirty
percent. Martini Report tbl. 2. The overall death-sentencing
rate is thirteen percent (38/298). Martini Report tbl. 1.
B. Method of Classifying Cases After establishing the universe of comparison cases, we must sort those cases in a data base. As in Marshall II and Bey IV, we use two approaches: an a priori determination and an empirical method. The a priori procedure requires us to analyze cases according to features that experience has shown influenced the decision whether to sentence capitally. Bey IV, supra, 137 N.J. at 345; Marshall II, supra, 130 N.J. at 141-42. In the empirical process we assemble life-sentenced and death-sentenced cases to identify the characteristics that determine the patterns of life sentencing versus capital sentencing. Marshall II,
supra, 130 N.J. at 142-44. That approach reveals which factors
prosecutors and juries consider determinative. Bey IV, supra,
137 N.J. at 345.
Any attempt to define in advance all characteristics of a
murder that "capture the critical facts of [a] defendant's case,"
as the dissent urges us to do, post at __ (slip op. at 16), would
fail to distinguish between individual defendants. Because each
capital case is unique, defining all the important facts that a
murder might include is impossible. However, that circumstance
hardly amounts to a fatal flaw. Instead of turning
disproportionality review into "a selective and convenient
rationalization for proportionality," post at __ (slip op. at
15), dealing with each case on its own merits in a manner
sensitive to its unique set of facts is the only way to give
capital defendants the full review to which they are entitled,
given the finality of the death sentence. Defendant makes a number of "alternative assumptions" that he seeks to persuade this Court to adopt in our review of his sentence. First, he argues that three cases, State v. Ramseur, 106 N.J. 123 (1987), State v. Lodato, 107 N.J. 141 (1987), and State v. Hunt, 115 N.J. 330 (1989), should be coded as life-sentenced cases because of errors at trial. Second, defendant would have us exclude nine other cases from the death-sentenced pool for "deliberative errors." Those cases are State v.
Biegenwald,
106 N.J. 13 (1987); State v. Kise (unreported); State
v. Koedatich,
112 N.J. 225 (1988); State v. Zola,
112 N.J. 384
(1988); State v. Gerald,
113 N.J. 40 (1988); State v. Williams,
113 N.J. 393 (1988); State v. Coyle,
119 N.J. 194 (1990); State
v. Johnson,
120 N.J. 263 (1990); and State v. Oglesby,
122 N.J. 522 (1991). Third, he excludes his own case from the pool of
comparable cases. In Bey IV we rejected defendant Bey's argument that Ramseur, Biegenwald, and Coyle should be treated as life-sentenced cases. Those cases, involving death sentences that were reversed, either were not pursued after reversal as penalty-trial cases or resulted in life sentences. Bey argued that those cases therefore could not be considered reliable indicators of deathworthiness. Bey IV, supra, 137 N.J. at 345-46. The AOC coded those as death-sentenced cases, and we concluded that they reflected juror evaluations of deathworthiness. Id. at 347. We observed in Marshall, supra, 130 N.J. at 194 n.10, that penalty trials that result in death are most often reversed for burden-of-proof and Gerald issues. (A Gerald error is one in which a capital sentence followed a conviction for purposely or knowingly causing serious bodily injury that results in death, instead of for purposely or knowingly causing death. See Gerald, supra, 113 N.J. at 69.) Burden-of-proof and Gerald errors, which affect the procedural fairness of the trial, not the substance of the crime, "do not necessarily bear on the jury's determination of
deathworthiness." Bey IV, supra, 137 N.J. at 347; accord
Marshall II, 130 N.J. at 169 n.5, 194 n.10. In our
proportionality review of Bey's sentence we therefore continued
to include Ramseur, Biegenwald, and Coyle in the category of
death-sentenced cases. We do so here as well.
The dissent repeats its criticism of the Court for not
accepting the dissent's proposition that reversed death sentences
may not be used in proportionality review as death-sentenced
cases. That criticism is based on the notion that "the only
objective indicator that can establish 'deathworthiness' is the
imposition of a death sentence." Post at __ (slip op. at 6).
For support, the dissent cites examples of cases involving
improper jury instructions that required reversal of the death
sentence. Post at __ (slip op. at 7-8). That leads our
dissenting colleague to insist again that the Court adopt a
"rebuttable presumption that reversed death sentences are invalid
determinations of deathworthiness." Post at __ (slip op. at 10).
As we stated in Marshall II, supra, 130 N.J. at 169 n.5, Bey IV,
supra, 137 N.J. at 347, and again today, errors that do not
affect the substance of the crime, as opposed to procedural
fairness, do not necessarily affect a jury's determination of
deathworthiness. We similarly reject defendant's "deliberative error" argument. Martini claims that errors such as (1) the failure to
instruct a jury that it must find beyond a reasonable doubt that
the aggravating factors outweigh the mitigating factors before it
can impose a death sentence, (2) an improper charge on
aggravating factor c(4)(c) (torture), or (3) a charge that a jury
must unanimously find a mitigating factor before it can weigh
that factor so undermine the reliability of the capital sentence
that when a life sentence is given on retrial, those cases may
not be coded as death sentenced. Defendant argues that we have
never squarely considered cases involving the "fundamental
fairness" of such overturned death sentences. We continue to
believe that the death sentences in cases overturned for
procedural error are acceptably-reliable societal determinations
of deathworthiness. We also note, as we did in Bey IV, supra, that the State's decision not to reprosecute a defendant capitally is not necessarily a reflection of that defendant's lack of deathworthiness. The State's decision may be based on unrelated issues such as the availability of witnesses or the amount of financial resources that the State is willing to commit to retrial. Accordingly, we reject defendant's "fundamental fairness" argument and continue to code Kise, Koedatich, Zola, Gerald, Williams, Johnson, and Oglesby, as death-sentenced cases. As in Bey IV, supra, we acknowledge that our data are not scientifically infallible, 137 N.J. at 348, because all coding decisions contain some degree of subjectivity. Marshall II,
supra, 130 N.J. at 120 ("[W]e recognize that a value judgment is
built into every practical measurement."). However, we remain
convinced that "even reversed death sentences are sufficiently
valid indicators" of "the conscience of the community" to be used
as death-sentenced cases. Bey IV, supra, 137 N.J. at 348.
Finally, we reject defendant's assumption that he will not
be included in the universe of cases comparable to his own. As
we did in Bey IV, we will evaluate the data both including and
excluding Martini. We acknowledge that including a defendant in
his or her own proportionality review will increase the rate of
death sentencing to an extent that is inversely proportional to
the number of cases that are used in the analysis. However,
proportionality review is a search for community values, and the
case under review is a partial reflection of the those values
that we seek to discover. Using two sets of data, one including
defendant's case and one excluding it, will give us the broadest
picture of societal standards while alerting us to the bias
produced by including defendant's case.
COMPARISON OF CASES
Having established, first, the universe of cases on which we shall rely, specifically, those contained in the Martini Report, and, second, the criteria for coding those cases as either death
sentenced or life sentenced, we must next group those cases
according to their comparative levels of blameworthiness. Bey
IV, supra, 137 N.J. at 350. In Marshall II and in Bey IV we
determined blameworthiness by considering statutory aggravating
and mitigating factors as well as "nonstatutory factors based on
'objectively verified measures of blameworthiness.'" Ibid.
(quoting Marshall II, supra, 130 N.J. at 145).
We evaluate those factors through two approaches: frequency
analysis and precedent-seeking review. Our purpose in that
evaluation, stated above, is to determine whether defendant's
sentence is disproportionate in comparison to similar cases.
Marshall II, supra, 130 N.J. at 148. As we declared in Bey IV,
supra, "Proportionality review seeks to determine only whether a
particular death sentence is aberrational, not whether it
compares perfectly with other sentences." 137 N.J. at 352. The frequency analysis allows us to determine the rate of imposition of death sentences in similar cases. It is designed to reveal how jurors and prosecutors treat similar cases. In precedent-seeking review we compare the defendant's case to factually-similar cases to determine whether the defendant is deathworthy in light of similarly-situated defendants. We then compare the results of the two analyses to ensure that our proportionality review is reliable. However, the size of the sample pools used in the frequency approach remains small.
Therefore, because frequency-analysis results are not entirely
reliable statistically, we rely more heavily on the results of
the precedent-seeking review. See Bey IV, supra, 137 N.J. at
351.
The dissent objects to the Court's use of a relatively-small
number of cases in our search for disproportionality. In our
dissenting colleague's view, the uniqueness of a case under
review makes "the project of frequency review * * * a sham."
Post at __ (slip op. at 22). We recognize the small sample size
and the fact that defendant's case is unique in our universe of
capital cases. As we have noted, those considerations preclude
us from giving great weight to frequency analyses derived under
those conditions. In contrast to the dissent, however, we do not
see that frequency review, the model agreed on by the offices of
both the Attorney General and the Public Defender, and approved
of by both the Administrative Office of the Courts and this
Court, "falters." Post at __ (slip op. at 22). Instead, we use
the cases most similar or analogous as guides, discounting the
guidance they provide by their degree of dissimilarity. Our
reliance on frequency analysis will increase as our universe of
cases grows. In the meantime, we will use frequency analysis as
a tool in our review. The absence of more complete data
necessarily forces us to place greater emphasis on precedent-seeking review.
The dissent's discussion of defendant's low predicted
frequencies, post at __ (slip op. at 16-19), overlooks their
function and purpose. They are predictors only. They provide
not answers but only guidance. A low predicted value, therefore,
does not mean that we must automatically overturn a death
sentence as disproportionate. Instead, it shows a danger of the
presence of disproportionality, requiring us to scrutinize more
carefully the other elements of review. See Marshall II, supra,
130 N.J. at 159.
A. The Frequency Approach
In Marshall II and Bey IV, we separated the frequency
analysis into three parts: the salient-factors test, the
numerical-preponderance-of-aggravating-and-mitigating-factors
test, and the index-of-outcomes test. Bey IV, supra, 137 N.J. at
350-51, Marshall II, supra, 130 N.J. at 154. Each is a different
statistical method of gauging a defendant's relative criminal
culpability. Bey IV, supra, 137 N.J. at 351. The basic question
in the frequency approach is whether the degree of
blameworthiness in the instant case reasonably supports an
expectation that such a case will generally result in a death
sentence. We use that method to determine whether a defendant is
in a category that makes him or her more likely than other types
of killers to receive the death penalty.
As indicated supra at ___ (slip op. at 9-10), we employ no
set level to determine at what point death sentences may be
considered as "generally" imposed for a given type of murder.
However, the lower the frequency of death sentences in a class of
murderers, the greater scrutiny we must bring to bear to
determine whether any impermissible factor has had a role in
determining the sentence. Likewise, the greater the frequency of
death sentences in a class of cases, the more certain we are that
a given death sentence is proportionate for any member of that
class. Bey IV, supra, 137 N.J. at 351; Marshall II, supra, 130
N.J. at 153. Accordingly, we use the frequency approach not as a
strict rule but as a measure of consistency in our capital-sentencing regime. Marshall II, supra, 130 N.J. at 153.
As pointed out above, the rate of penalty trials in death-eligible cases and the rate of death sentencing for cases that
advanced to a penalty trial are both fairly low -- forty-two
percent (125/298) and thirty percent (38/125) respectively.
Martini Report tbls. 2, 3. That yields a total death-sentencing
rate of thirteen percent (38/298). However, we are looking for a
potential aberration, not a perfect comparison to all other
cases. As we stated in Bey IV, supra, "Not every statistical
disparity establishes disproportionality." 137 N.J. at 352.
Moreover, we must compare defendant's case to "similar cases,
considering both the crime and the defendant," N.J.S.A. 2C:11-3e,
before we can make any determinations about relative frequency.
Whatever concerns we recognize with frequency analysis,
nonetheless, do not mean that sentences for unique murders must
automatically be struck down and that only those of run-of-the-mill defendants may be upheld. A capital defendant is not
entitled to a perfect universe of identical cases, but instead
only the best that we can achieve. See generally Bey IV, supra,
137 N.J. at 352 (stating that proportionality review searches for
aberration, not for perfect comparison), 362 (limiting search to
identifying irrationality and arbitrariness). We pause here for a brief explanation of some technical terms. A regression analysis uses an algebraic model to represent a decision-making process by showing the influence of an independent variable on a dependent variable. Here, the decision-making process represented is the sentencing determination. The independent variable, which, once designated, does not change, represents a factor such as a prior murder or a contemporaneous sexual assault that is believed to influence the result of the decision-making. The dependent variable is
influenced by the presence or absence of an independent variable,
and here represents the decision whether to sentence capitally.
A multiple regression analysis simply includes more than one
independent variable in the algebraic model.
Because the results produced by the regression models are of
uncertain reliability, we use the predicted probability of death
sentences that those models generate only for purposes of
comparison and guidance. We do not accord them final or
determinative weight. See Memorandum from John P. McCarthy, Jr.,
Assistant Director, AOC, to Stephen W. Townsend, Clerk of the
Supreme Court, State v. John Martini: Proportionality Review 3
(July 28, 1993) (on file with AOC).
Nonetheless, a main area of disagreement between the Court
and the dissent involves the presence of standards. Our
dissenting colleague laments our refusal "to set any standard by
which to distinguish a high from a low predicted frequency of
death," post at __ (slip op. at 15), as well as the lack of "any
established category that captures the critical facts of
defendant's case." Post at __ (slip op. at 16). We avoid setting numerical standards to determine disproportionality because such an absolute, numerical system suffers from an inherent failure to distinguish between defendants. For example, if we set at thirty percent the
acceptability of a certain frequency criterion as indicating no
disproportionality, we would then be bound to hold that the
sentence of one defendant who, at thirty percent, met that
characteristic was not disproportionate. Likewise, we would be
bound to find disproportionality in the case of another defendant
who achieved only twenty-nine percent in that category. Yet
overall, the latter defendant might be more deathworthy under our
statutory scheme, and of the two, might actually be the one
properly sentenced.
Even with the foregoing problems, however, the statistical
approach receives our attention because it permits us to
distinguish cases by culpability; because it allows us to
determine a community consensus, in contrast to the individual
assessment of the case-by-case approach; and because it creates a
basis for evaluating the fairness of the entire sentencing
system. Unlike the precedent-seeking approach, the statistical
method provides a means for deciding whether the cases used for
comparison are themselves disproportional. Therefore, we use
both approaches as complementary techniques.
1. The Salient-Factors Test 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. We
group cases initially around specific statutory aggravating
factors and then subdivide that group according to circumstances
that serve either to aggravate or to mitigate the blameworthiness
of the defendants in those cases. We view that method as the
most persuasive of the frequency tests, Bey IV, supra, 137 N.J.
at 353; Marshall II, supra, 130 N.J. at 168, because of its close
link to statutory factors and its sensitivity to nuance. Final
Report 82-83.
For Martini, similar cases are those involving kidnapping
with particular violence and terror. Martini Report tbl. 6,
group H(2). Of the six death-eligible cases in that group, three
went to penalty trial, and defendant's was the only case
resulting in a death sentence. That creates death-sentencing
rates of thirty-three percent for penalty-trial cases and
seventeen percent for all death-eligible cases. Martini Report
tbl. 7, group H(2). Those ratios are somewhat higher than the
overall sentencing rates of thirty percent for penalty-trial
cases and thirteen percent for all death-eligible cases. See
supra at ___ (slip op. at 15). The figures for the similar cases
are as follows:
Death-Sentencing
Rate at
Penalty Trial
Death-Sentencing
Rate for All
Death-Eligible
Cases
Proportion of
Cases
Advancing to
Penalty Trial
Including
Martini
.33 (1/3)
.17 (1/6)
.50 (3/6)
Excluding
Martini
.00 (0/2)
.00 (0/5)
.40 (2/5)
(Table does not exclude defendant).]
Defendant argues that his sentence is excessive because he
is the only defendant in category H(2) to receive the death
sentence. The State contends that defendant does not fit well in
category H(2) because he is the only murderer to have kidnapped
for ransom. Moreover, the State adds, a sample size of six cases
is too small to create statistical reliability. The AOC concurs
with the State's view. It notes that its sample size is too
small to generate reliable figures. Additionally, according to
the AOC, the five other cases are factually dissimilar, because,
as pointed out, no other case in that group involved a ransom or
terrorizing non-decedent victims. The AOC suggests that
Martini's case may be compared to other murders involving a
pecuniary motive. We agree with the State and the AOC that the H(2) comparison is not instructive. Unlike Martini's case, none of the other
five cases involves ransom or an extended period of terrorizing
and threatening the lives of the victim's family. The rates of
death-sentencing, nevertheless, are high enough to show that to
the extent that Martini may be compared to others who murder in
the course of kidnapping, his sentence is not disproportionate.
Although defendant is the only one to be sentenced to death in
category H(2), his rates, thirty-three percent for penalty-trial
cases and seventeen percent for all death-eligible cases, are
comparable to Marshall's. For Marshall, placed in group I(2),
contract-murder principals, the percentage of death sentencing
was thirty-three for penalty-trial cases and twenty-five for all
death-eligible cases. Marshall II, supra, 130 N.J. at 168;
Martini Report tbl. 7, group H(2), I(2); Marshall Report, tbl. 7,
group I(2). Like Martini, Marshall was the only person in his
category to receive the death sentence, yet we found no
disproportionality. Similarly, Marko Bey was the first multiple
murderer whose death sentence we upheld on proportionality
review. Being the first murderer in a category does not support
a conclusion of disproportionality. See Bey IV, supra, 137 N.J.
at 349-50; Marshall II, supra, 130 N.J. at 166. Aside from the feature of kidnapping of a non-stranger with particular violence or terror, defendant's case may be profitably compared to kidnapping of a stranger with particular violence or terror, to contract killers, to principals in contract killings, and to other pecuniary-advantage killers. We may compare Martini
to kidnappers of strangers, because although Martini had singled
out Flax in advance, the two were, practically speaking,
strangers. Thirty years before the kidnapping, defendant and
Flax had had an acquaintanceship, but apparently they had not
seen each other since. From the victim's perspective, defendant
was a virtual stranger. The numbers in the stranger kidnapping
are somewhat higher, but with a sample size (including Martini)
of two, the stranger-kidnapping rates' statistical reliability is
very low. The figures are:
Death-Sentencing
Rate at
Penalty Trial
Death
Sentencing
Rate for All
Death-Eligible
Cases
Proportion of
Cases
Advancing to
Penalty Trial
Including
Martini
.50 (1/2)
.50 (1/2)
1.0 (2/2)
Excluding
Martini
.00 (0/1)
.00 (0/1)
1.0 (1/1)
To the extent that we give weight to those rates, they support a
finding of no disproportionality. We may compare Martini to contract killers because he killed his victim as the result of his plan to endanger Flax for money. Moreover, the successful completion of his crime depended in part on the death of Flax. Defendant needed to kill Flax to prevent
the victim from identifying him and from later being a witness
against him, and he stated that he shot Flax because he thought
that Flax would escape. See Martini, supra, 131 N.J. at 279-85.
Contract killers show an extremely high frequency of
receiving a death sentence. Forty-three percent of such death-eligible defendants received a capital sentence, as did sixty
percent of those who advanced to a penalty trial. The figures,
with and without Martini, are as follows:
Death-Sentencing
Rate at
Penalty Trial
Death-Sentencing
Rate for All
Death-Eligible
Cases
Proportion of
Cases
Advancing to
Penalty Trial
Including
Martini
.66 (4/6)
.50 (4/8)
.75 (6/8)
Excluding
Martini
.60 (3/5)
.43 (3/7)
.71 (5/7)
Those rates, strikingly high, show no disproportionality. When placed into group I(1), defendant shows a sixty-six-percent probability of receiving the death sentence at his penalty trial. We note that the sample size, eight including defendant, is small and that defendant is obviously not perfectly comparable to a contract killer. A contract killer generally is not involved in the selection of the victim but kills simply for the money and
reputation. Here, defendant was actively involved in the
selection of the victim and killed to ensure the successful
completion of his plan. Although defendant is related closely
enough to the contract-killer group to allow an analogy, the
problems with the comparison merit consideration in the weight we
give to its results.
Defendant may be compared to principals in contract killings
because of the similarity of their roles in planning the crime.
Without Martini, twenty-five percent of such death-eligible cases
resulted in a capital sentence, as did thirty-three percent of
those cases that advanced to a penalty trial. The figures, with
and without defendant, are:
Death-Sentencing at
Penalty Trail
Death-Sentencing
Rate for All
Death-Eligible
Cases
Proportion of
Cases
Advancing to
Penalty Trial
Including
Martini
.50 (2/4)
.40 (2/5)
.80 (4/5)
Excluding
Martini
.33 (1/3)
.25 (1/4)
.75 (3/4)
(Table does not include defendant).] Those figures, like the contract-killer results, clearly support a finding of no disproportionality. Placed in group I(2), defendant shows a fifty-percent chance of receiving a death
sentence at the penalty trial. However, the sample size, five
with defendant and four without him, is too small to allow us to
rely heavily on the percentages generated by the I(2) table.
The last category is group I(3), other pecuniary-advantage
killers. We compare Martini to defendants in that group because
he committed his crime for money. With defendant in group I(3),
his percentages are high: fifty percent of death-eligible cases
receive the death penalty, as do fifty percent of penalty-trial
cases.
Death-Sentencing
Rate at
Penalty Trial
Death-Sentencing
Rate for All
Death-Eligible
Cases
Proportion of
Cases
Advancing to
Penalty Trial
Including
Martini
.50 (1/2)
.50 (1/2)
1.0 (2/2)
Excluding
Martini
.00 (0/1)
.00 (0/1)
1.0 (1/1)
(Table does not include defendant).]
Although a capital-sentencing rate of fifty percent supports a
finding of no disproportionality, the sample size of two,
including defendant, precludes reliance on those results. Accordingly, we conclude that the salient-factors measure, the most persuasive of the statistical measures, supports a
finding of no disproportionality. It shows that defendant's
class generally receives the death penalty. Although the small
sample sizes of the groups in the salient-factors test preclude
us from investing those results with great weight, we will use
them as a check against our findings under both the other two
statistical tests and under the precedent-seeking approach.
2. The Numerical-Preponderance-of-Aggravating-and-Mitigating-Factors Test
This test compares Martini's case to other cases having the
same number of aggravating and mitigating factors. It uses those
raw numbers to measure blameworthiness, on the assumption that
the presence of more aggravating factors and fewer mitigating
factors renders a case more blameworthy. The purpose of using
the numerical-preponderance test is to provide a means to control
for the fundamental problem of the salient-factors test, i.e.,
that our universe contains too few cases in any one factual
category to permit reliable inferences. The obvious problem with
the numerical-preponderance approach is that it assumes that
juries weigh each factor equally. Its inability to account for
the qualitative character of jury deliberations makes this test
more problematic than either the salient-factors test or the
index-of-outcomes test. Marshall II, supra, 130 N.J. at 171. To
alleviate that problem, the numerical-preponderance test attempts
to weight the statutory factors to account for qualitative
determinations.
The Martini Report identifies twenty-three penalty-trial
cases that contain two aggravating and two mitigating factors.
Thirteen of those cases resulted in death penalties, producing a
death-sentencing rate of fifty-seven percent. Martini Report
tbl. 8. For the forty-eight death-eligible cases in that class,
the percentage is twenty-seven percent (13/48). Id. at tbl. 9.
The figures without defendant are slightly lower:
Death-Sentencing Rate at Penalty Trial Death-Sentencing Rate for All Death-Eligible Cases Inc |