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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 September 14, 1993 - Decided June 30, 1994

POLLOCK, J., writing for a majority of the Court.

    In affirming the death sentence of Marko Bey on July 28, 1992, the Court deferred proportionality review pending receipt of a more complete record. This decision addresses the issue whether the imposition of the death sentence on Bey was disproportional.

HELD : Bey's sentence, considering both the crime and the defendant, does not disclose a disproportionate result when compared with those in similar cases. The sentence of death is affirmed.

1. The first question is the universe of cases to be considered. In 1992, the Legislature amended the Capital Punishment Act to limit proportionality review to a comparison of similar cases in which the sentence of death actually was imposed. Bey's appeal has been pending since 1984, more than eight years before the effective date of the amendment. The Court therefore determines to apply the statute in its pre-amendment form. Because the Court rejects Bey's proportionality challenge under the prior law, the new law would not have affected the outcome. The Court therefore does not consider the validity of the amendment. (pp. 8-11)

2. The Court rejects the Public Defender's suggestion and determines to include within the pool of death-sentenced cases those cases where an initial death sentence was reversed on remand. These reversals were essentially based on procedural fairness and did not affect the substance of the crime. The original death sentence therefore continues to represent a societal consensus concerning the deathworthiness of a defendant. (pp. 11-17)

3. The next step is to group the cases according to similarities relevant to the determination of deathworthiness. The Court has selected measures of blameworthiness, or culpability, based on a consideration of both the statutory aggravating and mitigating factors, and non-statutory, objectively-verified measures of blameworthiness. These factors are evaluated by considering the frequency of death sentences within a pool of similar cases (the frequency approach) and by a more traditional, case-by-case comparison of similar death-eligible cases (the precedent-seeking approach). (pp. 17-18)

4. The frequency analysis consists of three different methods of assessing criminal culpability: the salient-factors test (comparison to factually similar cases), the numerical-preponderance-of-aggravating-and-mitigating-factors test (comparison to cases with the same number and type of aggravating and mitigating factors), and the index-of-outcomes test (comparison to cases with similar degrees of culpability). After conducting all three tests, the Court concludes that defendant's sentence is neither random nor aberrational. (pp. 18-39)

5. The precedent-seeking analysis also leads to the conclusion that defendant's death sentence is not disproportionate. In conducting this analysis, the Court compared Bey's case with that of other cases where there had been a prior murder conviction. Although many of these cases resulted in life sentences, those cases differ significantly from Bey's. (pp. 39-71)

6. Statistics do not support Bey's contention that race is an impermissible factor considered by prosecutors and juries in imposing the death sentence. The case universe is still too small to prove that the race of a defendant improperly influences death sentencing. Defendant's attempts to expand the number of available cases to demonstrate statistically-significant disparities based on race or socioeconomic status is flawed because he includes cases that are dissimilar. (pp. 71-83)

     The imposition of the death penalty on defendant is not disproportionate.

HANDLER, J. dissenting, is of the view that it is impossible to evaluate the proportionality of a death sentence that is imposed under a capital-punishment regime that is itself founded on conflicting and contradictory principles and administered without any degree of consistency, much less uniformity. The most serious deficiencies in the majority's proportionality review are evident in (1) the continued use of a universe of cases that includes cases in which the death sentence has later been reversed; (2) the inherent subjectivity of the Court's principle methods for determining proportionality, frequency analysis, and precedent-seeking analysis and their arbitrary application; and (3) the Court's failure to recognize the recurring indications that the imposition of the death penalty in New Jersey may be infected by racial bias.

     CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, O'HERN, GARIBALDI and STEIN join in JUSTICE POLLOCK's opinion. JUSTICE HANDLER filed a separate dissenting opinion.

                            SUPREME COURT OF NEW JERSEY
                            A- 1 September Term 1993

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

v.

MARKO BEY,

    Defendant-Appellant.

        Argued September 14, 1993 -- Decided June 30, 1994

On Proportionality Review of a Sentence of Death of the Superior Court, Law Division, Monmouth County.

Claudia Van Wyk, Deputy Public Defender II, and James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Zulima V. Farber, Public Defender, attorney).

Alton D. Kenney, Assistant Prosecutor, argued the cause for respondent (John Kaye, Monmouth County Prosecutor, attorney; Mark P. Stalford, Assistant Prosecutor, of counsel; Barry J. Serebnick, Assistant Prosecutor, on the brief).

Lawrence S. Lustberg argued the cause for amici curiae Association of Criminal Defense Lawyers of New Jersey and New Jersey State Conference of NAACP Branches (Crummy, Del Deo, Dolan, Griffinger & Vecchione, attorneys).

Catherine A. Foddai, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Fred DeVesa, Acting Attorney General, attorney).

    The opinion of the Court was delivered by
POLLOCK, J.
    In unrelated incidents, defendant, Marko Bey, sexually assaulted and murdered two women. Separate juries sentenced defendant to death for each of the murders. Initially we vacated both death sentences. In State v. Bey, 112 N.J. 45 (1988) (Bey I), which involved the murder of Cheryl Alston, we reversed the murder conviction and held that defendant was not death eligible because he was under the age of eighteen at the time of the murder. On remand, a jury found defendant guilty of purposeful murder and aggravated sexual assault. The trial court sentenced him to an aggregate sentence of life imprisonment plus twenty years, with no parole eligibility for forty years. In State v. Bey, 112 N.J. 123 (1988) (Bey II), decided the same day as Bey I, we affirmed defendant's conviction for the murder of Carol Peniston. Because of an incorrect jury charge, however, we reversed the death sentence and remanded the matter for re-sentencing. Once again, the jury returned a death sentence for the Peniston murder, which we affirmed in State v. Bey, 129 N.J. 557 (1992) (Bey III). In Bey III, we deferred proportionality review of that sentence pending receipt of a more complete record. We now find no disproportionality in the imposition of the death sentence for defendant's second murder.

I.    Facts ................................................ 4

II.    Proportionality Review ............................... 7

    A.    The Universe of Cases ........................... 8

    B.    Method of Classifying Cases ..................... 10

III.    Comparison of Cases .................................. 17
    
    A.    The Frequency Approach .......................... 18

        1.    The Salient-Factors Test ................... 21

        2.    The Numerical-Preponderance-of-Aggravating-
            and-Mitigating-Factors Test ................ 28

        3. The Index-of-Outcomes Test ................. 34

    B.    The Precedent-Seeking Approach .................. 39

        1.    Relevant Factors ........................... 39

        2.    Comparison of Marko Bey's Case to Similar
            Cases ...................................... 43

            a.    The Cases ............................. 44

            b.    The Comparison ........................ 63

        3.    Other Cases ................................ 71

IV.    Race as an Impermissible Factor ...................... 71

V.    Conclusion ........................................... 83

    On April 26, 1983, around 9:20 p.m., Carol Peniston left Neptune High School, where she had attended a computer course, and had driven away in her car. Approximately four hours later, the car was involved in a one-car accident in Newark. Defendant's fingerprints were on the rearview mirror. Ms. Peniston, who had been divorced and lived alone, neither returned to her apartment nor reported to work the next day.

    On May 3, Asbury Park police discovered Ms. Peniston's body in a shed near an industrial building. An autopsy performed on May 4 disclosed that she had been dead for several days. The autopsy further disclosed that she had been beaten, sexually assaulted, and strangled. From a sneaker imprint on her chest and from evidence of fractured ribs and hemorrhaging of the right lung, vertebral column, and right atrium of the heart, the Monmouth County medical examiner concluded that Ms. Peniston's assailant had stomped on her chest. The ultimate cause of her death, however, was ligature strangulation. Subsequent police investigation revealed that the characteristics of spermatozoa found on the victim's coat were consistent with those of

defendant's saliva, and that defendant's sneakers bore an imprint that was similar to the impression on the victim's chest.

    On May 6, defendant, who had turned eighteen only three weeks earlier, was arrested for receiving stolen property, Ms. Peniston's car. After five hours in police custody, defendant confessed to the murder.

    Defendant then gave a written statement, in which he admitted that he had accosted Ms. Peniston in front of her apartment building and demanded money from her. The statement continued that when defendant heard someone coming, he grabbed her and led her to the shed. In the ensuing events, he repeatedly struck Ms. Peniston, sexually assaulted her, and took eight dollars, as well as the car keys, from her pocketbook. While on his way to Newark in her car, he had an accident and abandoned the car.

    A jury convicted defendant of capital murder and sentenced him to death. The sentence followed from the jury's finding of two aggravating factors: the murder had "involved torture, depravity of mind, or an aggravated assault to the victim," N.J.S.A. 2C:11-3c(4)(c) (the c(4)(c) factor), and it had been committed in the course of a felony, N.J.S.A. 2C:11-3c(4)(g) (the c(4)(g) factor). The jury found no mitigating factors. We affirmed the conviction, but reversed the death sentence, primarily because the court had incorrectly charged the jury on

the mitigating factors. Bey II, supra, 112 N.J. at 156-64, 166-71.

    On the same day that we reversed and remanded Bey's death sentence for the murder of Carol Peniston, we also vacated his conviction and death sentence for the prior murder and sexual assault of Cheryl Alston. Bey I, supra, 112 N.J. at 51. In that decision, we held that defendant was not death eligible because he had committed the Alston murder before reaching the age of eighteen. Ibid. On re-trial for the Alston murder, the jury found defendant guilty of purposeful murder and aggravated sexual assault. He received an aggregate sentence of life imprisonment plus twenty years, with forty years of parole ineligibility. The Appellate Division affirmed the conviction, 258 N.J. Super. 451, and we denied certification, 130 N.J. 19 (1992).

    At the re-sentencing trial for the Peniston murder, the State proffered two aggravating factors: defendant previously had been convicted of a murder, that of Cheryl Alston, N.J.S.A. 2C:11-3c(4)(a) (the c(4)(a) factor), and the Peniston murder had occurred during a sexual assault and robbery, the c(4)(g) factor. Defendant did not contest these aggravating factors, but argued that four mitigating factors outweighed them: "defendant was under the influence of extreme mental or emotional disturbance," N.J.S.A. 2C:11-3c(5)(a) (the c(5)(a) factor); defendant's age at the time of the murder, N.J.S.A. 2C:22-3c(5)(c) (the c(5)(c) factor); "defendant's capacity to appreciate the wrongfulness of

his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication," N.J.S.A. 2C:11-3c(5)(d) (the c(5)(d) factor); and the catch-all factor -- "[a]ny other factor which is relevant to the defendant's character or record or the circumstances of the offense," N.J.S.A. 2C:11-3c(5)(h) (the c(5)(h) factor).

    The jury unanimously found both aggravating factors. Two jurors found extreme mental or emotional disturbance, c(5)(a), and six jurors found the catch-all factor, c(5)(h). None of the jurors found that either defendant's age, c(5)(c), or the significant impairment of his moral faculties, c(5)(d), was a mitigating factor. Furthermore, the jury found beyond a reasonable doubt that the two aggravating factors outweighed the two mitigating factors. Consequently, the court sentenced defendant to death. Bey III, supra, 129 N.J. at 576.

sentence is comparatively excessive if other defendants with similar characteristics generally receive sentences other than death for committing factually similar offenses in the same jurisdiction.'" State v. Marshall, 130 N.J. 109, 131 (1992) (citing Tichnell v. State, 468 A.2d 1, 17 n.18 (Md. 1983)). Thus, a death sentence is valid unless the defendant establishes that similar defendants who commit factually-similar offenses generally receive sentences other than death.

    Before reviewing the proportionality of defendant's sentence, we first must answer preliminary questions regarding the universe of cases and the method of classifying those cases.

    Although the amendment was designed to take effect immediately, the Legislature did not indicate whether it should apply to pending appeals. If we were to apply the amendment to

pending appeals, we would be obligated to consider whether it is unconstitutional as an ex post facto law. We decided in Marshall that because of the long pendency of that appeal, we would review the sentence under the prior law. 130 N.J. at 119. Because we rejected Marshall's proportionality challenge under the prior law, the amendment would not have affected the outcome in that case. Ibid. We come to the same conclusions here.

    Defendant murdered Ms. Peniston on April 26, 1983, sixteen months before the murder of Robert Marshall's wife. Defendant's appeal has been pending since his initial death sentence on September 28, 1984, more than eight years before the effective date of the amendment. As in Marshall, we reject defendant's proportionality challenge under the old law. For these reasons, we decline to address the constitutionality of the amendment. We shall apply the statute in its pre-amendment form. Thus, as in Marshall, the relevant universe of cases consists of those that are death eligible, even if they were not prosecuted as capital cases.

    Marshall summarizes the procedure for identifying the universe of cases. Id. at 137-41. Since the Marshall decision, the Administrative Office of the Courts (AOC) has assumed the responsibility from Special Master David C. Baldus for maintaining the data base of cases. In compiling the statistics, the AOC has followed the Special Master's procedure, as modified by our opinion in Marshall. The universe of cases for Bey

consists of 266 death-eligible homicides committed from 1983 to 1992, 117 of which proceeded to the penalty phase. After oral argument, we granted defendant's motion to supplement the record with data that had been compiled since March 25, 1993, the date of the last revision of the appendices and tables for Bey's proportionality review (the Bey Report). This information, which constitutes the universe of cases compiled through June 25, 1993, for the pending proportionality review of John Martini (the Martini Report), increases the relevant universe of cases to 298 death-eligible offenses, 125 of which proceeded to the penalty-trial phase. Our consideration of these data in this case will not affect any argument proffered by Martini in his proportionality review.

prosecutors in the charging process and juries in the deliberative process deem most relevant." Id. at 143.

    The coding of variables in the companion cases continues to be a source of contention between the Public Defender and the Attorney General. In Marshall, we recognized their differences and urged them to cooperate in developing a data base. Id. at 216-18. Since then, the AOC has conducted meetings to resolve issues concerning the standards for each coded characteristic. Many issues have been resolved, and the characteristics have been reduced to statistical codes. We recognize, however, that the codes inevitably incorporate subjective determinations. Implicit in the seemingly-objective review of statistics lies an unavoidably-subjective view of deathworthiness.

    Remaining are some issues first raised in Marshall and raised again here. One issue questions the reliability of the coding of the thirty-four cases that remain coded as death-sentenced although reversed for various errors, such as improper jury instructions. Specifically, defendant identifies errors in all seven of the cases involving prior murder convictions (State v. Biegenwald, 106 N.J. 13, 53 (1987) (Biegenwald IA); State v. Biegenwald, 126 N.J. 1, 8 (1991) (Biegenwald IB); State v. Coyle, 119 N.J. 194, 218-20, 220-21, 229-32 (1990); State v. Erazo, 126 N.J. 112, 128 (199l); State v. Pennington, 119 N.J. 547, 565 (1990); State v. Purnell, 126 N.J. 518, 523 (1991); and State v. Ramseur, 106 N.J. 123, 312-13 (1987)). On remand, these cases either were not pursued to the penalty-trial phase or resulted in life sentences. Defendant argues that the initial death sentences in these cases, therefore, are not proper indicators of deathworthiness.

    If we exclude these seven prior-murder-conviction cases from the pool of death-sentenced cases, Bey would remain as the only prior murderer whose death sentence we affirmed. That fact alone would not compel a finding that Bey's death sentence is disproportionate. In Marshall, we faced a similar situation. We stated that "simply because Marshall may be the first [contract-killer to receive an affirmed death sentence] does not mean that his death will be disproportionate under our statute." 130 N.J. at 166. After reviewing the frequency data in Marshall, we concluded that "'[a]lthough lesser sentences than death are frequently imposed in domestic murder cases, it does not follow that the death penalty would not be authorized for the murder of one spouse by another under any circumstances.'" Id. at 174 (quoting Tyler v. State, 274 S.E.2d 549, 555 (Ga. 1981)). The circumstances in Marshall were that the defendant hired another to kill his wife so that he could collect life-insurance benefits on her life. "[T]he data show[ed] that among those for whom death is a fitting punishment, contract killers, whether principal or agent, are among the more frequent recipients of the death sentence." Id. at 166-67. Similarly, if Bey were to remain as the only defendant who had been previously convicted of

murder and whose death sentence was affirmed, that sentence need not be disproportionate.

    Furthermore, we decline to follow defendant's suggestion to re-code as life-sentenced cases those death-sentenced cases in which the sentence was reversed. The AOC continues to code these cases as death-sentenced cases. In Marshall, we stated that "[w]e believe, . . . as does the [Special] Master, that the original penalty trials, although reversed for various reasons, most often for the burden-of-proof and Gerald issues, have reflected juror values of deathworthiness in terms of deterrent effect." Id. at 194 n.10. The phrase "Gerald issues" derives from our holding in State v. Gerald "that a defendant who is convicted of purposely or knowingly causing 'serious bodily injury resulting in death' . . . as opposed to one who is convicted of purposely or knowingly causing death . . . may not be subjected to the death penalty." 113 N.J. 40, 69 (1988). Marshall recognized that such issues pertaining to procedural fairness, as distinguished from those that affect the substance of the crime, do not necessarily bear on the jury's determination of deathworthiness. 130 N.J. at 169 n.5, 194 n.10.

    For example, in defendant's first trial for the sexual assault and murder of Cheryl Alston, the jury returned a sentence of death. We reversed because of a statutory mandate, L. 1985, c. 478 (codified at N.J.S.A. 2C:11-3g), that a defendant younger than eighteen-years old could not receive a capital sentence.

Bey I, supra, 112 N.J. at 95-105, Consequently, Bey, who was only ten days short of his eighteenth birthday when he sexually assaulted and murdered Cheryl Alston, received a life sentence. Our reversal, however, does not detract from the initial jury's view that defendant deserved the death penalty for the Alston murder. Defendant does not explain why some errors that have caused us to reverse a death sentence necessarily reflect on the jury's ability to assess a defendant's deathworthiness. In the absence of an acceptable explanation, we continue to believe that a death sentence, even when reversed, represents a societal consensus concerning the deathworthiness of a defendant.

    Moreover, the reasons for the State's failure to pursue capital sentencing a second time or for the imposition of a life sentence at a second penalty-phase trial are varied and indeterminable. We cannot conclude that in any given case a life sentence resulted from the view that the defendant was not initially deathworthy, rather than, for example, from the strength of the prosecutor's case, including the availability of witnesses, or the adequacy of the State's resources.

    We therefore treat as death-sentenced a case that initially resulted in a death sentence but that was reversed. As we stated in Marshall, "[w]e have been candid to acknowledge that there is no scientific infallibility in the frequency data that we cite." 130 N.J. at 169 n.5. Indeed, as stated above, all coding decisions necessarily rely on subjective determinations of

deathworthiness that may not be completely accurate representations of death-sentencing decisions of jurors or prosecutors. Supra at ___ (slip op. at 11). We rely, as we did in Marshall, on "what we know," 30 N.J. at 169 n.5; of the 117 death-eligible cases proceeding to the penalty phase, thirty-four cases received the death penalty.

    Our dissenting colleague urges, post at __ (slip op. at 10), as he did in Marshall, 130 N.J. at 249, 253-57 (Handler, J., dissenting), that reversed cases are not valid indicators of deathworthiness. We continue to believe, however, as we did in Marshall, that cases in which prosecutors seek and juries impose the death penalty reflect the conscience of the community on the propriety of the imposition of that penalty. A reversal does not necessarily erase "the complex nature of the jury's deliberation in the penalty-phase." Post at ___ (slip op. at 27). We acknowledge that a reversed death penalty is a less persuasive indicator of deathworthiness than one that is affirmed, but we continue to believe that even reversed death sentences are sufficiently valid indicators to remain for statistical purposes in the pool of death-sentenced cases.

    We disagree also with our colleague's suggestion, based on a recommendation of the Special Master, that we should adopt "a rebuttable presumption that reversed death sentences are invalid determinations of deathworthiness." Post at __ (slip op. at 13). The suggestion is reminiscent of his statement in his Marshall

dissent, "I believe that a death sentence is disproportionate unless defendants with similar characteristics generally receive death sentences for committing factually similar offenses." 130 N.J. at 248. Implicit in both statements is the proposition that the State bears the burden of establishing the proportionality of a death sentence. We believe, however, that once this Court has sustained a death sentence on direct appeal, the defendant should bear the burden of proving disproportionality. Indeed, the language of the Act indicates that the Legislature intended that the defendant should bear that burden. N.J.S.A. 2C:11-3e provides that "the Supreme Court shall determine whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." The use of the word "disproportionate," rather than "proportionate," signifies the legislative intention that we should search not for proof that a defendant's death sentence is perfectly symmetrical with other death sentences, but for proof that the sentence is an outlier.

    Consistent with the dissent's underlying premise that no defendant should ever receive the death penalty, the dissent argues that no defendant should be the first to die. Hence, the dissent attacks as "hypothetical" our conclusion that even if we were to exclude reversed death-sentenced cases, leaving Bey as "the only prior murderer finally sentenced to death," his death sentence would not be disproportionate. Post at ___ (slip op. at 14). As we said in Marshall, in which our dissenting colleague

raised the same argument, 130 N.J. at 267-68, simply because a defendant "may be the first does not mean that his death will be disproportionate under our statute," id. at 166. The grim fact is that some defendant must be the first to receive the death penalty.

    We then evaluated these factors in two ways: the frequency analysis and the precedent-seeking analysis. The frequency analysis computes the frequency of death sentences within a pool of similar cases. It depends on a statistical analysis that measures the societal consensus that death is the appropriate penalty in the measured cases. See David C. Baldus, Death Penalty Proportionality Review Project, Final Report to the New Jersey Supreme Court 27 (Sept. 24, 1991) (Final Report). The precedent-seeking analysis is more intuitive, comparing a

defendant's deathworthiness with that of defendants in factually-similar cases. Id. at 30-31. Combining these two analyses helps to ensure the reliability of our evaluation of the proportionality of a defendant's death sentence. The pool of cases remains small. As that pool expands, we can rely more heavily on the frequency analysis. For the time being, we are forced to rely more heavily on the precedent-seeking analysis.

    Generally speaking, statistical results become more reliable as the data sample increases and the correlation grows between two variables. In Marshall we stated that "[t]he higher the frequency of a death sentence among the comparison group of 'similar cases,' the more certain the determination that the sentence is proportionate. The lower the frequency, the more strictly the Court must scrutinize the case for the possible

influence of impermissible factors." Id. at 153. As a general rule, "'[a] death sentence is comparatively excessive if other defendants with similar characteristics generally receive sentences other than death for committing factually similar offenses in the same jurisdiction." Id. at 153-54 (quoting Tichnell, supra, 468 A. 2d at 17 n.18). "Generally," however, does not require a threshold rate over fifty percent. Id. at 152-54, 167. Even if the frequency were less than fifty percent, it could serve as evidence of reliability of the sentence, particularly if confirmed by the precedent-seeking analysis. Id. at 154, 167.

    As in Marshall, 130 N.J. at 265-67, Justice Handler urges, post at _____ (slip op. at 17), that we set a more specific standard in the frequency analysis than that of general comparability with other death sentences. A general standard, although admittedly imprecise, is not necessarily arbitrary. Indeed, a standard that applies generally is the antithesis of one that applies arbitrarily. Hence, as in Marshall, 130 N.J. at 152-54, we decline to define more specifically the standard for defining an acceptable frequency for the imposition of the death penalty.

    Proportionality review seeks to determine only whether a particular death sentence is aberrational, not whether it compares perfectly with other sentences. Id. at 131. Not every statistical disparity establishes disproportionality. After

conducting all three tests, we conclude that defendant's death sentence is neither random nor aberrational.

    At first glance, defendant's death sentence might seem disproportionate. In the Bey Report, forty-four percent (117/266) of the death-eligible cases in the universe proceeded to the penalty-trial phase, but only twenty-nine percent (34/117) of those cases resulted in a death sentence. When the Martini data are added, the ratios remain approximately the same: forty-two percent (125/298) of the death-eligible cases proceeded to the penalty phase and thirty percent (38/125) of those cases resulted in a death sentence.

    The more significant basis of comparison is not all death-sentenced cases, but only those with similar characteristics relevant to the sentencing decision between life and death. Marshall, for example, was the only defendant sentenced to death whose death sentence was affirmed among all 227 death-eligible cases and 113 penalty-trial cases as of September 24, 1991. 130 N.J. at 166. Yet, we found his death sentence not to be disproportionate. Id. at 174. Marshall's status as one who hired a contract-killer put him in a category of cases with defendants who more likely than not received a death sentence. Id. at 166-67. So here, the data show that of all deathworthy defendants those, like defendant, with a prior murder conviction, more frequently receive the death penalty.

    Preliminarily, defendant urges that we should not include him in the study because to do so would be to compare his case to himself. In Marshall, we recognized good reasons for both including and excluding a defendant's case from review. Thus, we decided to review the statistics under both alternatives. Id. at 167-68. Here, we use the same approach.

    Among the seventeen cases in the Bey Report in which defendants had been convicted of a prior murder, seventy-five percent (9/12) of these defendants reaching the penalty-trial phase received the death penalty, and fifty-three percent (9/17) of all death-eligible defendants received the death penalty. The figures are:

                        Penalty Trial        Death Eligible

Including Bey                .75 (9/12)        .53 (9/17)
Excluding Bey                .73 (8/11)        .50 (8/16)

    The Martini Report, which compiles data for John Martini's proportionality review, adds three death-eligible cases, all of which proceeded to the penalty phase. When these additional cases are considered, the ratios remain high: including Bey, sixty percent (9/15) of the defendants with a prior murder conviction who reached the penalty phase received the death penalty, and forty-five percent (9/20) of all such defendants who were death eligible received the death penalty.

    The death-sentencing rate for defendants with prior murder convictions in both the Bey Report and the Martini Report exceeds the death-sentencing rate for contract-killer principals such as Marshall. Id. at 168. In Marshall, we found significant a thirty-three-percent death-sentencing rate among penalty-trial cases and a twenty-five-percent death-sentencing rate among death-eligible cases. Id. at 169. By comparison, the death-sentencing rate for cases most similar to defendant's case illustrates a higher correlation between a prior murder conviction and a death sentence.

    These figures illustrate an even-higher correlation when the pool is narrowed to include cases more factually comparable to

defendant's case. A significant factor in Bey's case is that in addition to being a two-time murderer, Bey committed his second murder during a sexual assault. Prosecutors and juries regard as highly blameworthy those defendants who have a prior murder conviction and whose current case involves either one additional aggravating circumstance or particular violence or terror (the violence/terror factor). In thirteen cases in the Bey Report involving defendants who had been convicted of a prior murder, juries found one additional aggravating circumstance or the violence/terror factor. Among those cases, one-hundred percent (8/8) reaching the penalty-trial phase resulted in the death penalty, and sixty-two percent (8/13) of all death-eligible cases resulted in the death penalty. The figures are:

                        Penalty Trial        Death Eligible
Including Bey                1.0 (8/8)            .62 (8/13)
Excluding Bey                1.0 (7/7)            .58 (7/12)

    Again, these ratios remain high when we consider the relevant data from the Martini Report: eighty-nine percent (8/9) of all cases reaching the penalty phase, and fifty-seven percent (8/14) of all death-eligible cases in this category resulted in a death sentence.

    Defendant disputes the validity of these results on several grounds. First, he argues that the cases most similar to his are not reliable indicators of deathworthiness because the sentences

in those cases are fraught with procedural and other errors. The argument proceeds that if these questionable cases were excluded from the pool of death-sentenced cases and instead were coded as life-sentenced cases, the death-sentencing rate would be much lower. For reasons set forth above, however, supra at ___ (slip op. at 11-16), we shall continue to include them. Consequently, we shall continue to treat as death-sentenced cases those cases in which we have reversed the death sentence. Therefore, the cases that initially resulted in a death sentence should remain in the pool of factually-comparable cases. Marshall, supra, 130 N.J. at 169 n.5, 194 n.10.

    Second, defendant argues that his death sentence suffers from several procedural errors that affected the verdict. Generally speaking, the errors concerned jury selection and the
admission of evidence. These "distorting factors," defendant alleges, "inflated the frequency leading to" his death sentence. In Bey III, however, this Court held that it was "extremely unlikely [that the errors] had the capacity materially to affect the jury's deliberations or produce an unjust result." 129 N.J.
at 616. For this reason, we believe that these "errors" do not impugn defendant's death sentence.

    Third, defendant asserts that other categories of factually-comparable cases do not demonstrate a high rate of death sentences. In particular, defendant points to the results of the sexual-assault and robbery cases. The sexual-assault pool in the

Bey Report consists of thirty-five cases, none of which involved a prior murder conviction. The death-sentencing rate for the eighteen cases reaching the penalty-trial phase is twenty-eight percent (5/18), and fourteen percent (5/35) for all thirty-five death-eligible cases in the pool. If the analysis were limited, as defendant contends, to cases with the violence/terror factor, the death-sentencing rate increases slightly to thirty-six percent (5/14) of the penalty-trial cases and nineteen percent (5/26) of the death-eligible cases resulting in the death penalty. The figures are:

                        Penalty Trial        Death Eligible
Sexual assault including Bey    .32 (6/19)        .17 (6/36)
Sexual assault excluding Bey    .28 (5/18)        .14 (5/35)
With violence including Bey    .40 (6/15)        .22 (6/27)
With violence excluding Bey    .36 (5/14)        .19 (5/26)

    When the Martini data are added, the ratios remain approximately the same: including Bey, sixteen percent (7/44) of all death-eligible sexual-assault cases received a death sentence, and thirty-five percent (7/20) of these cases proceeding to the penalty phase received the death sentence. When we narrow our focus to sexual-assault cases exhibiting the violence/terror factor, twenty-one percent (7/34) of all death-eligible cases and forty-four percent (7/16) of penalty-trial cases, including Bey, received a death sentence.

    The robbery pool includes ninety cases. Like the cases in the sexual-assault pool, none of these cases involved a prior murder conviction. Consequently, the robbery pool does not include Bey. Thirty of the robbery-pool cases proceeded to the penalty phase. Among those cases, twenty percent (6/30) resulted in the death penalty; only seven percent (6/90) of all death-eligible cases in this category received the death penalty. As with the sexual-assault pool, the sub-group of cases in this category exhibiting the violence/terror factor does not significantly increase the death-sentencing rates for robberies. Of the thirty-four cases in this smaller pool, thirty-one percent (4/13) of the penalty-trial cases and twelve percent (4/34) of all death-eligible cases resulted in a death sentence. The figures are:

                        Penalty Trial        Death Eligible
Robbery including Bey        .23 (7/31)        .08 (7/91)
Robbery excluding Bey        .20 (6/30)        .07 (6/90)
With violence including Bey    .36 (5/14)        .14 (5/35)
With violence excluding Bey    .31 (4/13)        .12 (4/34)

    The Martini data do not significantly change the death-sentencing rate. Excluding Bey - because of his prior murder conviction - twenty-one percent (7/33) of all robbery cases that proceeded to the penalty-trial phase and seven percent (7/100) of all such cases, including death-eligible defendants, resulted in the death penalty.

    Although we agree with defendant that the death-sentencing rates in the sexual-assault pool and the robbery pool are lower than the rate in the prior-murder-conviction pool, the difference is meaningless. Both these categories as defined in the Bey and Martini Reports exclude cases with prior murder convictions. Because Bey was convicted of the prior murder of Cheryl Alston, his case is not even included in the categories of cases in which defendants have committed only a sexual assault or robbery. As demonstrated above, a prior murder conviction is one of the most significant indicia of blameworthiness. In both Bey and Martini, sixty-four percent (9/14) of all death-eligible cases having two aggravating factors, one of which is a prior murder conviction, resulted in a death sentence. Therefore, to compare defendant's case to cases involving a sexual assault or robbery, but not involving a prior murder conviction, is to disregard one of the most influential elements in death sentencing -- the prior murder conviction.

    As outlined above, moreover, a smaller pool of cases accounts for defendants with prior murder convictions whose crimes exhibit one additional aggravating factor or the violence/terror factor, such as murder during the course of a sexual assault or robbery. Cases with both characteristics are most like Bey's case. Neither the Bey Report nor the Martini Report indicates in which of these cases the additional aggravating factor was a sexual assault or robbery, or both. Prosecutors, however, frequently seek the death penalty when

prosecuting murders involving sexual assaults. Final Report, supra, at 81. We believe, therefore, that a jury would deem as highly blameworthy convicted prior murderers who commit a sexual assault in conjunction with a subsequent murder.

    Under the salient-factors measure, the data do not show that defendants similar to Bey generally receive a sentence other than death. To the contrary, the data demonstrate that defendants like Bey, who have killed before and who kill again during a sexual assault, are highly blameworthy. Indeed, defendants having a prior murder conviction and an additional aggravating factor receive the death penalty sixty-two percent of the time. The imposition of the death penalty in sixty-two percent of all comparable death-eligible cases is strong evidence of the reliability of defendant's death sentence.

    In defendant's case, the jury found two aggravating and two mitigating factors. Concerning the aggravating factors, the jury found that defendant had been convicted of a prior murder and

that he had murdered Ms. Peniston during a sexual assault and robbery. For mitigating factors, two jurors found that defendant suffered from extreme emotional disturbance, and six found that he was entitled to the catch-all factor. Unlike the application of the numerical-preponderance test in Marshall, which reflected an infrequency of death sentences for cases with two mitigating factors and only one aggravating factor, the application of that test to cases such as this one, with two mitigating factors and two aggravating factors, demonstrates a high frequency of death sentencing. Among the twenty penalty-trial cases in which jurors identified the relevant aggravating and mitigating circumstances, weighed them, and then returned a sentence, fifty-five percent (11/20) resulted in a death sentence. The Martini Report, which adds three cases, shows a slight increase in the death-penalty rate to fifty-seven percent (13/23).

    Defendant argues that the frequency of death-sentencing rates for cases having two aggravating and two mitigating factors is low when all death-eligible cases are considered. Among the forty-three death-eligible cases in this category, only twenty-six percent (11/43) received the death penalty. These figures are summarized:

                        Penalty Trial        Death Eligible
Including Bey                .55 (11/20)        .26 (11/43)
Excluding Bey                .53 (10/19)        .24 (10/42)

    In the Martini Report, which includes five additional death-eligible cases, the rate is twenty-seven percent (13/48).

    We agree that the probability of a death sentence, on considering all death-eligible cases with two aggravating and two mitigating factors, is comparatively low. The death-sentencing rate for all such cases, however, is much higher than the rate for cases similar to Marshall. The death-penalty rate for all death-eligible cases with one aggravating and two mitigating factors, as was the case in Marshall, was seven percent (3/44) including Marshall and five percent (2/43) excluding him. Notwithstanding those frequencies, we found that Marshall's death sentence was proportionate because the payment-for-murder aggravating factor, N.J.S.A. 2C:11-3c(4)(e) (the c(4)(e) factor), produced an above-average death-sentencing rate. Id. at 172. Similarly, when one of the aggravating circumstances is the c(4)(a) factor, a prior murder conviction, the death-sentencing rate is much higher for death-eligible cases in the category of cases having two aggravating and two mitigating factors. In both the Bey and the Martini Reports, seventy-one percent (5/7) of such cases resulted in the imposition of the death penalty. The numerical-preponderance analysis, therefore, does not indicate that defendant's death sentence is disproportionate.

    Defendant further argues that his case should be compared to cases with three, not two, mitigating factors. The additional mitigating factor that he claims is his age, because he was

eighteen years old at the time he murdered Carol Peniston. No member of the jury, however, found age to be a mitigating factor.
    According to defendant, the jury's rejection of his age as a mitigating factor indicates that the verdict is irrational. Defendant argues that age is the most significant of the mitigating factors and is the factor most often found by a jury to be relevant in sentencing decisions. See Final Report, supra, at 92 (stating "defendant's age (5c) has the greatest mitigating effect"). His argument is that in only seven percent (6/83) of all death-eligible cases and fifteen percent (6/41) of all cases proceeding to the penalty phase in which age was found to be a mitigating factor did the jury return the death penalty. The Martini data increased the rate slightly with sixteen percent (7/43) of all penalty-trial cases and eight percent (7/91) of all death-eligible cases resulting in the death penalty. Furthermore, because proportionality review includes non- statutory factors, defendant invites us to reconsider factors that the jury rejected or found less persuasive than others. We decline the invitation.

    We held in Bey III that the jury had not erred in failing to find age as a mitigating factor. 129 N.J. at 613. The trial court had properly instructed the jury to consider both chronological age and psychological maturity at the time of the crime. Although a jury may not ignore a defendant's youth, it need not find that age is relevant to his or her culpability. Ibid. We do not believe that all twelve members of the jury were acting irrationally when each declined to find defendant's age to be a mitigating factor. Furthermore, although the jury did not find Bey's youth relevant to the age factor, it may have considered his youth in conjunction with the catch-all factor.

    Other juries confronting young defendants also have rejected age as a mitigating factor. For example, when first sentencing Phillip Dixon, who was eighteen at the time he beat, sexually contacted, and murdered a thirteen-year-old girl, the jury failed to find age to be a mitigating factor. State v. Dixon, 125 N.J. 223, 231 (1991); Detailed Narrative of Summaries for Death Eligible Cases 44 (Detailed Narrative Summaries). Dixon's death sentence was reversed on appeal. In that case, as in Bey III, however, the jury's failure to find age to be a mitigating factor was not a reason to reverse the death sentence. See Dixon, supra, 125 N.J. at 228; Bey III, supra, 129 N.J. at 613.

    In sum, we are unpersuaded by defendant's arguments. Like the sentencing jury in Marshall, the sentencing jury in Bey considered a number of aggravating and mitigating factors, but found only some. The mere fact that defendant was eighteen when he murdered Ms. Peniston does not mean that the jury must find his youth to be a mitigating factor as a matter of law. Our system contemplates that juries will reject some factors,

including age. Although juries may find age to be a mitigating factor in many cases, they need not so find it in every case.

    Moreover, our consideration of non-statutory factors does not entitle us to overrule the jury findings. We may not reject the jury's findings even if we might disagree with them. Our role, as previously stated, is to search for aberrations that might be the result of impermissible factors. In the frequency analysis, we will consider only those factors that the jury found relevant to the imposition of the death penalty. By comparison, in the precedent-seeking analysis, we will expand our review to include objective factors that are clearly present in the record even if the jury did not find them to be relevant. We will not include these additional factors in the frequency analysis because of the need to maintain the uniformity of the statistics. Otherwise, we would be obliged to reconsider and recalculate the ratios for each case in the universe of cases. As with judicial review generally, we must recognize our limits in proportionality review.

    The dissent argues here, as it did on direct review of Bey's conviction, see 129 N.J. at 632-48, that the trial court's exclusion of the report of one of the State's experts, Dr. Cooke, and its refusal to permit leading questions of Bey's mother, could not have been harmless error. Post at ___ (slip op. at 21-22). Further, the dissent asserts that harmless-error analysis has no place in death-penalty cases. Post at ___ (slip

op. at 25-30). We continue to believe, however, as we did on direct appeal, that the asserted errors were harmless. 129 N.J. at 586-94. Our role in proportionality review is not to second-guess rulings that we made on direct appeal but to determine if the imposition of the death sentence on the defendant, when compared to sentences imposed on other defendants, is irrational or aberrant. At some point, even a death-penalty case must end.

    Bey scores high in blameworthiness. Using indices that include both statutory and non-statutory factors, we find that

the predicted probability of a death sentence in his case is seventy-six percent among all penalty-trial cases, with a lower limit of thirteen percent and an upper limit of ninety-nine percent. Defendant's case falls within culpability level four (60-80" culpability), which contains six other cases, and has an overall death-sentencing rate of forty-three percent (3/7). When we consider the Martini data, Bey's predicted probability of receiving a death sentence increases to eighty-one percent, with a lower limit of thirty-five percent and an upper level of ninety-seven percent. Accordingly, Bey moves to level five (80-100"), the highest culpability level, which has a death-sentencing rate of eighty-eight percent (23/26).

    Among all death-eligible cases, the predicted probability of a death sentence in defendant's case is fifty-one percent, with a lower limit of nine percent and an upper limit of ninety-two percent. The seven cases most comparable to defendant's in terms of blameworthiness fall into culpability level three (40-60" culpability), which has an overall death-sentencing rate of fifty-seven percent (4/7). Defendant's predicted probability of receiving a death sentence in Martini is forty-seven percent, with a lower limit of ten percent and an upper limit of eighty-eight percent. At culpability level three, the death-sentencing rate is fifty percent (5/10).

    When we consider only statutory factors, the predicted probability of a death sentence for Bey among all penalty-trial

cases, within a range extending from fourteen to ninety-six percent, is sixty-seven percent. Eleven cases similar to defendant's case fall within culpability level four (60-80" culpability). The overall death-sentencing rate for these cases is eighty-three percent (10/12). In Martini, Bey's predicted probability of receiving a death sentence is sixty-two percent, with a lower limit of sixteen percent and an upper limit of ninety-four percent. At culpability level four, defendant's level, the