State v. Martini

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139 N.J. 3

651 A.2d 949

STATE of New Jersey, Plaintiff-Respondent, v. John MARTINI, Sr., Defendant-Appellant.

Supreme Court of New Jersey.

Argued Jan. 19, 1994.

Decided Dec. 21, 1994.

Mark H. Friedman and William B. Smith, Asst. Deputy Public Defenders, for appellant (Zulima V. Farber, Public Defender, attorney).

Craig V. Zwillman, Deputy Atty. Gen., for respondent (Deborah T. Poritz, Atty. Gen., of New Jersey, attorney).

The opinion of the Court was delivered by

CLIFFORD, J.

Defendant, John Martini, kidnapped Irving Flax, a Fair Lawn businessman, and held him for $25,000 ransom. After receiving

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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, 619 A.2d 1208 (1993). We granted def

endant's request for proportionality review of his death sentence, see N.J.S.A. 2C:11-3e, and now find no disproportionality.

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                                  TABLE OF CONTENTS
   I Facts ................................................................ 955
  II Proportionality Review ............................................... 957
       A. The Universe of Cases ........................................... 958
       B. Method of Classifying Cases ..................................... 959
 III Comparison of Cases .................................................. 961
       A. The Frequency Approach .......................................... 961
          1. The Salient"Factors Test ..................................... 963
          2. The Numerical"Preponderance"of"Aggravating"and"Mitigating"Fac-
               tors Test .................................................. 966
          3. The Index"of"Outcomes Test ................................... 968
          4. Frequency"Approach Conclusion ................................ 970
          B
          The Precedent"Seeking Approach .................................. 970
          1. Relevant Factors ............................................. 971
          2. Application of Precedent"Seeking Approach .................... 973
                       a. Parties' Arguments .............................. 973
                       b. Summaries of Similar Cases ...................... 974
                                     i Non"Stranger Kidnapping ............ 974
                                    ii Stranger Kidnapping ................ 976
                                   iii Contract"Murder Principals ......... 977
                                    iv Contract Killers ................... 979
                                     v Other Non"Robbery
                                         Pecuniary"Advantage Killers ...... 983
                       c. Analysis of Defendant's Culpability ............. 984
                       d. Comparison of Similar Cases to Defendant's Case . 985
          3. Other Cases .................................................. 986
  IV Other Arguments ...................................................... 987
   V Conclusion ........................................................... 987

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I FACTS

The facts are set forth in detail in Martini, supra, 131 N.J. at 191-207, 619 A.2d 1208. 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.

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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

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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.

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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...