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State v. Fortin

February 03, 2004

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STEVEN R. FORTIN, DEFENDANT-APPELLANT.



On appeal from the Superior Court, Law Division, Middlesex County.

SYLLABUS BY THE COURT

(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).

Defendant Steven Fortin was convicted by a jury of capital murder and sentenced to death. He claims that he was denied a fair trial as a result of various rulings of the trial court in the guilt and penalty phases of the trial.

On August 11, 1994, twenty-five-year-old Melissa Padilla resided in the Gem Motel on Route 1 in Woodbridge with her four young children and her boyfriend. That day, at approximately 11:00 p.m., she left the motel to buy some food for her family and walked to a nearby Quick Chek convenience store.

When Padilla did not return, her boyfriend became concerned and went to look for her, accompanied by the young sons of the motel clerk and a friend. Padilla's body was found 500 feet from the motel inside one of four concrete thirty-inch pipes, which lay on the path Padilla had taken to and from the store. Padilla was pronounced dead at 1:06 a.m.

As the result of an autopsy, the medical examiner determined that Padilla had suffered a broken nose and bruises to her face and chest; lacerations to her chin and left breast that were possibly bite marks; and lacerations to the anus that were consistent with forceful penetration. A fracture in Padilla's hyoid bone and other injuries revealed that she had been manually strangled. The medical examiner concluded that Padilla died from asphyxiation and that her anal injuries were the result of a sexual assault at or near the time of her death.

On the day of the murder, Fortin lived with Dawn Archer, his former girlfriend, in the Douglas Motel located on Route 1 north of the Quick Chek. That evening, Archer and Fortin visited a friend, Charles Bennett, who lived in apartments located to the south of the Gem Motel. They walked to the apartments, where they drank alcohol. Archer remembers arguing with Fortin, and Bennett asked them to leave. Archer and Fortin left, and the argument continued. At one point, Fortin turned violent and began to choke and kick Archer. Archer ran to a nearby restaurant for help.

A Woodbridge police officer responded and found Archer intoxicated, red-faced and nose-bloodied. She told police that her boyfriend had attacked her, but she declined to sign a complaint. At approximately 11:15 p.m., Fortin returned to Bennett's apartment looking for Archer. He left the apartment a few minutes later. Fortin's walk back to the Douglas Motel would have set him in the direction of the brutal assault of Padilla.

At the time of the investigation of the Padilla murder, police had not gathered these facts about Fortin. Fortin was not on their radar screen. Without leads or suspects, the investigation stalled. In April 1995, the Maine State Police communicated with the Woodbridge police department about Fortin, who had been arrested for sexually assaulting Maine State Trooper Vicki Gardner. Fortin's savage assault on Trooper Gardner became the centerpiece of the State's case.

On the evening of April 3, 1995, Trooper Gardner was driving in a marked patrol car on Interstate Highway 95 in Maine, returning home from a visit to her parents. She was off-duty and not in uniform. Around 8:30 p.m., Gardner encountered Fortin in a car parked on the shoulder facing in the opposite direction of traffic. Gardner stopped to investigate. Fortin claimed he was lost, and could produce only a New Jersey driver's permit. After detecting the smell of alcohol, Trooper Gardner asked Fortin to take a seat in the front passenger side of her patrol car. After administering field sobriety tests, the trooper concluded that Fortin was legally intoxicated and decided to issue him several summonses, including one for driving under the influence.

Trooper Gardner radioed headquarters for back-up assistance. With Fortin seated beside her, and sensing no danger, the trooper completed the paperwork on the charges as she waited. After forty-five minutes to an hour, Fortin proposed that she pretend nothing had happened and let him get in his car and drive away. Trooper Gardner explained that the charges were serious and that Fortin would be placed under arrest.

Fortin suddenly grabbed Gardner around the neck and slammed her head against the doorpost, knocking her unconscious. When Gardner awoke, Fortin was strangling her. She struggled to fight him off, but again lost consciousness. When she regained consciousness, Gardner found herself lying across the front seat of the car naked from the waist down with her shirt pulled up and her breasts exposed. Her face was so bloody and bruised that one eye was swollen shut and she could barely see out of the other. Fortin also had bitten her on the chin, her left breast nipple, and the lateral side of her left breast. Despite her injuries, Trooper Gardner managed to escape. A doctor who examined Gardner found significant vaginal and anal injuries, including a large laceration from the anal opening to the rectum with extensive bruising. The doctor concluded that the anal injuries were consistent with penetrating trauma from fingers or a fist. Fortin later was arrested, pled guilty to assault and was sentenced to twenty-years imprisonment.

One detail of Fortin's assault on the trooper caught the attention of the Woodbridge police: Fortin had bitten Gardner on the breast during the assault. Two Woodbridge detectives traveled to Maine to interview Fortin. Fortin indicated that he lived in Woodbridge at the time of the Padilla murder and acknowledged reading about it in the newspaper. When confronted with evidence of similar bite marks in the two cases, Fortin said that if the evidence showed he did it, then he must have done it. However, he claimed he had no recollection of the Padilla murder.

The physical evidence gathered at the scene of Padilla's murder did not rule in or out Fortin's involvement in the murder. No identifiable fingerprints were found, and Fortin was not the source of any hairs recovered. Testing excluded Fortin as a source of blood and was inconclusive as to saliva and other specimens. The State's forensic expert in odontology concluded "to a high degree of probability" that Fortin made the bite marks found on Padilla's chest. The defense's expert stated that bite-mark comparison is an imprecise science, and that the injuries to Padilla's breast and chin probably were not bite marks.

The State introduced Robert R. Hazelwood, a retired FBI agent and expert in violent sexual crimes, to catalogue the similarities between the crimes committed against Trooper Gardner and Padilla. The purpose of Hazelwood's testimony was to show that the manner in which the two crimes were committed was so unique that only one person committed both crimes.

In a pre-trial hearing, the trial court ruled admissible pursuant to N.J.R.E. 404(b) the other-crime evidence of Fortin's sexual assault of Trooper Gardner and Hazelwood's expert testimony. In view of that ruling, the court granted Fortin's motion to empanel separate juries for the guilt and penalty phases. On interlocutory appeal, the Appellate Division affirmed the 404(b) ruling, but concluded that Hazelwood's analysis was not sufficiently reliable to be admitted as expert testimony. This Court granted leave to appeal and affirmed with one significant modification. The Supreme Court concluded that Hazelwood could testify as an expert in criminal investigative techniques, but could not testify on the ultimate issue of whether the person that assaulted Trooper Gardner was the same person that murdered Padilla. (State v. Fortin, 162 N.J. 517 (2000) (Fortin I).

The jury in the guilt-phase convicted Fortin of capital murder, aggravated sexual assault, first-degree robbery, and felony murder. A separate, penalty-phase jury found two aggravating factors: aggravated assault and torture, and murder committed during the commission of or after committing robbery and sexual assault. The jury unanimously found the mitigating factors that Fortin was an abuser of drugs and alcohol, and other factors relevant to his record, his character, or the offense. The jury concluded that the two aggravating factors outweighed the mitigating factors beyond a reasonable doubt, and Fortin was sentenced to the penalty of death.

Fortin appeals to the Supreme Court as of right under Rule 2:2-1(a).

HELD

Several errors, including the trial court's failure to inquire of prospective jurors whether evidence of Fortin's assault on a female police officer would affect their ability to be fair and impartial, and the State's failure to produce a reliable database to ensure the validity of expert testimony, denied Fortin a fair trial.

1. The first issue is whether the trial court denied Fortin's right to a fair and impartial jury during the guilt phase when it refused to question prospective jurors regarding the affect of hearing evidence of Fortin's sexual assault on a Maine state trooper. The introduction of such evidence was not a possibility, but a certainty. It was central to the State's case because it linked Fortin to the Padilla murder. It was also the evidence most likely to inflame a jury and render it incapable of reasoned analysis. There was a need to know whether jurors, particularly the jurors who had ties to law enforcement personnel, could remain open-minded in a case in which evidence of Fortin's sexual assault on a female state trooper was certain to be introduced. (pp. 16-36)

2. In Fortin I, this Court concluded that Hazelwood, the State's expert, could testify from "a reliable database of cases" about an "unusual pattern" in the evidence of the Padilla murder and the assault of Trooper Gardner. The Court clearly set the production of a reliable database as an essential qualifier to Hazelwood's testimony. After that decision, the defense requested a comprehensive listing of the 4,000 cases referred to in Hazelwood's testimony and any database he had relied on in forming his opinion. The State responded that Hazelwood did not have such a list and that no database or scientific studies were reviewed in forming his opinion. The Court cannot accept the State's claim that Hazelwood provided a "reliable database" by reference to his expert report, his resume, his publications, and his pretrial testimony. The trial court committed reversible error in permitting Hazelwood to testify absent production of a reliable database. (pp. 37-49)

3. Fortin sought to introduce evidence that he claimed supported an argument that someone else - a third party - killed Melissa Padilla. The trial court found there was no rational basis to support a theory of third-party guilt and barred such evidence. The Supreme Court agrees and affirms. (pp. 49-62)

4. In the penalty phase, the trial court properly rejected two of Fortin's mitigating factors as being unrelated to the circumstances of the offense. Fortin was not denied the opportunity to present mitigating evidence. On the other hand, Fortin should have been permitted to waive application of the Ex Post Facto Clause so that the jury could be informed that he could be sentenced to life without parole in accordance with the recently enacted statute, N.J.S.A.

2C:11-3b(4). (pp. 62-83)

5. Fortin urges the Court to reconsider its prior decision holding that aggravating factors need not be submitted to a grand jury in a capital case. Federal constitutional law now defines elements of capital murder to include aggravating factors. The Court is left with no alternative but to overrule its prior holding and require that in all future cases, the State is required to submit the aggravating factors to the grand jury. This ruling shall apply prospectively to those cases that have yet to reach the penalty-phase. (pp. 112-138)

The judgment is REVERSED and the matter is REMANDED for proceedings consistent with this opinion.

JUSTICE VERNIERO, joined by JUSTICE LaVECCHIA, has filed a separate opinion concurring in part and dissenting in part. He agrees with the Court's disposition with the exception of the holdings that the State must submit aggravating factors to the grand jury and that Fortin was entitled to waive ex post facto protections.

CHIEF JUSTICE PORITZ and JUSTICES LONG, and ZAZZALI join in JUSTICE ALBIN's opinion. JUSTICE VERNIERO filed a separate opinion concurring in part and dissenting in part in which JUSTICE LaVECCHIA joins.

The opinion of the court was delivered by: Justice Albin

Argued October 22, 2002

Defendant Steven Fortin was convicted by a jury of capital murder and sentenced to death. He claims that he was denied a fair trial as a result of various rulings of the trial court in the guilt and penalty phases of the trial. We conclude that the trial errors were sufficiently egregious so as to deny defendant a fair trial and, therefore, we are constrained to reverse.

I. Facts and Procedural History

On August 11, 1994, twenty-five-year-old Melissa Padilla resided at the Gem Motel in Woodbridge with her four young children, ages two through five, and her boyfriend, Hector Fernandez.*fn1 Padilla and her children were receiving public assistance and had been placed at the motel by a social service agency. That day, at approximately 11 00 p.m., she left the motel to buy some food for her family and walked to a nearby Quick Chek convenience store located at the intersection of U.S. Highway Route 1 North and Avenel Street. Padilla's walk took her along a 1000-foot dirt path that ran parallel to Route 1 North. At 11:29 p.m., she purchased iced tea, pizza, bread, three sandwiches, a candy bar, and coffee with a $20 bill, receiving $0.66 in change. She left the Quick Chek and began on her way back to the motel.

When Padilla did not return, Fernandez became concerned and went to look for her, accompanied by the sons of the motel desk clerk, eleven-year-old Christopher and five-year-old Antoine, and a friend, Trent Eubanks, who was staying at the Gem Motel that evening. Five-year-old Antoine discovered Padilla's body 500 feet from the motel inside one of four concrete thirty-inch pipes, which lay on the path Padilla had taken to and from the store.

By the time the first police officer arrived on the scene at approximately 1:00 a.m., Fernandez had pulled Padilla's body out of the pipe. The officer found Fernandez and Eubanks standing near Padilla's badly battered body, which was naked from the waist down. Dr. Marvin Schuster, the county medical examiner, was called to the scene and pronounced Padilla dead at 1:06 a.m.

County investigators also arrived and canvassed the area for evidence. They observed Padilla's bloodied face, her blood soaked shirt, and blood on her arms and hands. A pool of blood had collected in the concrete pipe and a bloody trail marked the distance Padilla's body had been dragged from the pipe. Blood spattering evidence indicated that the assault had taken place inside the construction pipe.

The police found no money or jewelry on or near Padilla's body. They did discover, however, a bloody dollar bill and receipt from the convenience store in the vicinity. Padilla's groceries were strewn about the area, including three sandwich containers, one of which was empty. The sandwich was later discovered, partially eaten, on a nearby street. The police found Padilla's shorts, with her underpants inside, in a tree a short distance from the sandwich. The investigation uncovered no identifiable fingerprints other than those of the victim.

An autopsy was conducted the next day. Dr. Schuster determined that Padilla had suffered numerous injuries, including a broken nose and bruises to her face and chest; lacerations to her chin and left breast that were possibly bite marks; and lacerations to the anus inflicted shortly before death that were consistent with forceful penetration by an object, possibly a finger or penis. Padilla suffered no observable injuries to her vagina. The evidence and absence of evidence 23af the presence of "few and scattered spermatozoa" in the vagina and no semen found on the body 23af suggested that Padilla was not vaginally assaulted. The bruises to Padilla's face and forehead were caused by a combination of blunt force trauma and the scraping of her skin against the concrete surface of the pipe. A fracture in Padilla's hyoid bone, hemorrhaging of her epiglottis (the upper portion of the windpipe), and abrasions to her neck revealed that she had been manually strangled. The medical examiner concluded that Padilla died from asphyxiation and that her anal injuries were the result of a sexual assault at or near the time of her death.

On August 11, 1994, the day of the murder, Steven Fortin lived with Dawn Archer, his former girlfriend, in the Douglas Motel located on Route 1, north of the Quick Chek, in Woodbridge. That evening, Archer and Fortin left their motel to visit a friend, Charles Bennett, who lived in the Five Oaks Apartments on the northbound side of Route 1, less than a mile south of the Douglas Motel. The Five Oaks Apartments were located to the south of the Gem Motel. Fortin and Archer walked south along the northbound side of Route 1 and stopped at the Quick Chek to buy some cigarettes.*fn2 After their arrival at Bennett's apartment around 9:00 p.m., the three drank alcohol. Archer remembered arguing with Fortin and Bennett asking them to leave. Bennett denied witnessing an argument between Fortin and Archer.

At approximately 10:30 p.m., Fortin and Archer left Bennett's apartment and continued to argue. After walking a short distance, Fortin turned violent and began to choke and kick Archer. He threw her to the ground, and Archer ran into a nearby restaurant, Bud's Hut, screaming for help.

At 10:32 p.m., a Woodbridge police officer responded to the Bud's Hut parking lot, where he found Archer intoxicated, red faced and nose-bloodied. Archer told the police officer that her boyfriend, Steven Fortin, had attacked her. She, however, declined to sign a complaint against him. The police took Archer to the hospital, but she refused treatment.

At approximately 11:15 p.m., Fortin returned to Bennett's apartment looking for Archer. Bennett observed a few scratches on Fortin's leg but none on his face. Fortin explained that he had gotten the scratches while in a fight with Archer. He left Bennett's apartment a few minutes later. Fortin's walk back to the Douglas Motel would have set him in the direction of the brutal assault of Padilla. Archer's and Bennett's accounts placed Fortin near the Gem Motel and the Quick Chek around 11:30 p.m. on the evening of August 11, 1994.

On August 12, Fortin called a friend, Ron Celis, and met him at a diner. Fortin appeared upset and told Celis he was having "woman problems." Celis observed scratches on Fortin's face. Fortin explained that he got the scratches while traversing through a wooded area. Archer next saw Fortin on August 13, when the two reconciled. She noticed he had scratches, several inches long, on his face, chest, and arms.

Fortin and Archer moved out of the Douglas Motel and became itinerant travelers, mostly staying with friends. Eventually, they went to Maine to stay with Fortin's parents. During a trip to visit Archer's father in Massachusetts, Fortin struck Archer and the two parted for good.

At the time of the investigation of the Padilla murder, the police had not gathered those facts and they had few leads to go on. There were no witnesses to the crime. Although the police took fingerprint exemplars from several local men who had been convicted of sexual assaults, there were no matches to fingerprints lifted from the scene. Fortin was not on their radar screen. Without leads or suspects, the investigation was stalled. In April 1995, the Maine State Police communicated with the Woodbridge police department about Fortin, who had been arrested for sexually assaulting Maine State Trooper Vicki Gardner. Fortin's savage assault on Trooper Gardner became the centerpiece of the State's case. The State would argue that the unique similarities between the sexual assaults against Gardner and Padilla led to only one conclusion 23af that the same man committed both crimes.

On the evening of April 3, 1995, Trooper Gardner was driving in a marked patrol car on Interstate Highway 95 in Maine, returning home from a visit to her parents. She was off duty and not in uniform. Around 8:30 p.m., Gardner encountered Fortin in a car parked on the shoulder of Interstate 95, facing in the opposite direction of traffic. She stopped to investigate. Fortin explained to Trooper Gardner that he was lost. In response to a request for his credentials, Fortin could produce only a New Jersey driver's permit; he had no registration or insurance card. After detecting the smell of alcohol, Trooper Gardner asked Fortin to step from his car and to take a seat in the front passenger side of her patrol car.

Walking slightly off-balance, Fortin entered the patrol car, where the trooper administered field sobriety tests. As a result of the tests, the trooper concluded that Fortin was legally intoxicated and decided to issue him several summonses, including one for driving under the influence.

Trooper Gardner radioed headquarters for back-up assistance from an on-duty officer. With Fortin seated beside her, and sensing no danger, the trooper completed the paperwork on the charges as she waited for a back-up officer. After forty-five minutes to an hour had passed without the arrival of assistance, Fortin told the trooper he had a proposition for her. Before he spoke any further, Trooper Gardner explained to him that she would listen, but that she was issuing him summonses and that he would have to post bail because he was an out-of-state resident. Fortin then proposed that she let him "get in the car and drive away and [she] could pretend that nothing had ever happened." The trooper repeated to him that the charges were serious and that he would have to be placed under arrest.

While she proceeded with her paperwork, Fortin suddenly grabbed her around the neck and slammed her head against the doorpost, knocking her unconscious. When Gardner awoke, Fortin was strangling her. She struggled to fight him off, but again lost consciousness.

When she regained consciousness, Gardner found herself lying across the front seat of the car with her head against the passenger door, naked from the waist down with her shirt pulled up and her breasts exposed. Her face was so bloody and bruised that one eye was swollen shut and she could barely see out of the other. Her nose was so badly broken that it had to be surgically "stitch[ed]" back to her face. Fortin also had bitten her on the chin, her left breast nipple, and on the lateral side of her left breast. Despite her injuries, Trooper Gardner managed to escape. Fortin later was arrested.*fn3

Dr. Lawrence Ricci, who examined Trooper Gardner, found significant vaginal and anal injuries. Those injuries included bruising of the vaginal area and a complete tear of the hymen, and a large laceration from the anal opening to the rectum with extensive bruising of the anus. Dr. Ricci concluded that the anal injuries were consistent with penetrating trauma from fingers or a fist. When Trooper Gardner later spoke with investigators from her department, she recalled that Fortin had forced his finger into her vagina, causing her pain. She had no recollection of Fortin penetrating her anally.

One detail of Fortin's assault on the trooper caught the attention of the Woodbridge police: Fortin had bitten Gardner on the breast during the assault. On April 24, 1995, two Woodbridge detectives traveled to Skowhegan, Maine to interview Fortin. Fortin waived his Miranda rights and spoke with the detectives for two and one-half hours. He indicated that he had lived in Woodbridge at the time of the Padilla murder and acknowledged reading about it in the newspaper. When confronted with the evidence of similar bite marks in the two cases, Fortin said, "If the evidence shows that I did it it would probably be the reason and I must have been involved." He continued, "I'm not admitting anything. If the proof shows I did then I must have done it. I don't recall." In response to repeated questions concerning details of the Padilla murder, he stated that he had no recollection.

The physical evidence gathered did not rule in or out Fortin's involvement in the murder. No identifiable fingerprints, other than Padilla's, were found. Fortin was not the source of any hairs recovered, and a pubic hair found on Padilla did not match Fortin, Fernandez, or Padilla. Testing also excluded Fortin as a source of the blood found on the dollar bill and was inconclusive as to saliva found on a cigarette butt. DNA testing of specimens at the scene either excluded Fortin as a source or proved inconclusive. The spermatozoa recovered from Padilla's vagina could not be interpreted reliably because of insufficient DNA for the necessary controls in the testing procedures; the uncertified results, too, were inconclusive.

Dr. Lowell Levine, the State's forensic expert in odontology, compared photographs of the marks on Padilla's chin and breast to molds of Fortin's teeth. Levine concluded to a "high degree of probability" that Fortin made the bite marks found on Padilla's chest. Levine, however, conjectured that Fortin "could have" been responsible for the bite mark on Padilla's chin. Dr. Norman Sperber, the defense's forensic odontologist, stated that bite-mark comparison is an imprecise science, far less reliable than DNA analysis and identification through dental records. Sperber opined that the injuries to Padilla's breast and chin probably were not bite marks and, if they were, they could not be attributed to Fortin.

The State introduced Robert R. Hazelwood, a retired FBI agent and expert in violent sexual crimes, to catalogue the similarities between the crimes committed against Trooper Gardner and Padilla. The purpose of Hazelwood's testimony was to show that the manner in which the two crimes were committed was so unique that only one person committed both crimes. That Fortin had sexually assaulted Trooper Gardner was not disputed.

At trial, Hazelwood focused on motive, modus operandi, and signs of ritual, finding unique similarities between the two crimes on all three grounds. First, Hazelwood concluded that both crimes were motivated by anger. In support of that conclusion, Hazelwood cited the evidence that both Padilla and Gardner were severely beaten, both were bitten and manually strangled, and both suffered serious anal injuries.

Second, Hazelwood found seventeen similarities in the modus operandi of the two crimes. The similarities were: (1) both crimes were "high risk" for detection, (2) committed impulsively, (3) against female victims, (4) of the same age range (25-34); (5) both were crimes of opportunity against victims who crossed the offender's path, (6) adjacent to or on well-traveled roadways, (7) at night, (8) while the victims were alone, and (9) the attacks occurred at the same location as the initial confrontation; (10) both crimes involved the use of blunt force consistent with blows from fists, (11) without weapons, (12) that caused primarily facial trauma, and (13) broken noses; (14) in both crimes the victims were undressed from the waist down, (15) their undergarments were found inside their pants or shorts, (16) their shirts were left on but their bras removed, and (17) there was the absence of any fresh seminal fluid in or on their bodies. Hazelwood testified that he had never before seen all seventeen of these characteristics present in any crime other than those committed against Padilla and Gardner.

Finally, Hazelwood testified about ritualistic behaviors present in both crimes. He defined a ritual as a "repeated pattern of behavior" "comprised of those acts unnecessary to the commission of the crime" that "complement[] the underlying motivation of the crime." According to Hazelwood, rituals are "designed for one single purpose, psychosexual gratification." Hazelwood found "five ritualistic behaviors that were similar between the two crimes": (1) bite marks to the chins, (2) bite marks to the left breast, (3) injurious anal penetration, (4) facial battering, and (5) manual, frontal strangulation. Hazelwood concluded that he had not seen the same combination of ritualistic behaviors in his work over the course of his thirty year career. He also stated that he had never seen the particular combination of modus operandi and ritualistic behaviors "in any other crime and I've never heard of it and I've never read of it."

On September 6, 1995, a Middlesex County Grand Jury indicted Fortin for the murder of Melissa Padilla by his own conduct, N.J.S.A. 2C:11-3c(a)(1); felony murder, N.J.S.A. 2C:11- 3a (two counts); first-degree robbery, N.J.S.A. 2C:15-1; and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a. On March 18, 1997, the State announced its intention to seek the death penalty by filing a Notice of Aggravating Factors, alleging three such factors: the murder involved aggravated assault or torture, N.J.S.A. 2C:11-3c(4)(c); the murder was committed to escape apprehension for another offense, N.J.S.A. 2C:11-3c(4)(f); and the murder was committed during the commission of, or attempt to commit, or flight after committing robbery and sexual assault, N.J.S.A. 2C:11-3c(4)(g).

In a pre-trial hearing, the trial court ruled admissible pursuant to N.J.R.E. 404(b) the other-crime evidence of Fortin's sexual assault of Trooper Gardner and Hazelwood's expert testimony. State v. Fortin, 162 N.J. 517, 523-24 (2000) (Fortin I). In view of that ruling, the court granted defendant's motion to empanel separate juries for the guilt and penalty phases. On interlocutory appeal, the Appellate Division affirmed the 404(b) ruling, but concluded that Hazelwood's analysis was not sufficiently reliable to be admitted as expert testimony. Id. at 524-25. This Court granted leave to appeal and affirmed the Appellate Division with one significant modification. We concluded that Hazelwood could testify as "an expert in criminal investigative techniques," but could not "testify on the ultimate issue of whether the person that assaulted Trooper Gardner [was] the same person that murdered Melissa Padilla." Id. at 528-29.

The guilt phase was tried to a jury between November 2 and December 7, 2000. The jury convicted Fortin of capital murder, aggravated sexual assault, first-degree robbery, and both counts of felony murder.

A separate jury was impaneled for the penalty trial, which was conducted between February 14 and February 26, 2001. That jury unanimously found two aggravating factors: aggravated assault and torture, and a murder committed during the commission of, or attempt to commit, or flight after committing robbery and sexual assault. The jury rejected the aggravating factor that the murder was committed for the purpose of escaping detection. The jury unanimously found the mitigating factors that Fortin was an abuser of drugs, including cocaine, marijuana, and heroin, and an abuser of alcohol for a substantial period of time, and other factors relevant to his record, his character, or the offense. The jury concluded that the two aggravating factors outweighed the mitigating factors beyond a reasonable doubt. Consequently, the trial court filed a judgment of capital conviction on the date of the jury's verdict and sentenced Fortin to the penalty of death.

On April 24, 2001, the trial court sentenced defendant on the non-capital convictions. The court merged the two felony murder counts into the capital murder conviction. Fortin was sentenced to twenty years imprisonment with ten years of parole ineligibility on the aggravated sexual assault conviction and to a consecutive twenty years imprisonment on the first-degree robbery conviction. Both of those sentences were made to run consecutive to the twenty-year sentence Fortin received in Maine for the crimes he committed against Trooper Gardner.

Defendant appeals to this Court as of right under Rule 2:2-1(a).

GUILT PHASE

II. Voir Dire

Defendant did not contest that he had committed the savage sexual assault on Trooper Gardner in Maine. With defendant clearly identified as the perpetrator of that brutal crime, the State's central theory was that whoever attacked Trooper Gardner also attacked Melissa Padilla because the distinctive characteristics of the sexual assaults against Gardner and Padilla were so "bizarre" and "unique" as to constitute the signature of a single individual.

In Fortin I, supra, this Court recognized that the N.J.R.E. 404(b) "other-crime" evidence 23af the depraved attack on Trooper Gardner 23af had the clear capacity to inflame the passions of the jury and cause irreparable prejudice if not used for the limited purpose of establishing identity. 162 N.J. at 534. In that regard, we proposed a limiting instruction to be given to the guilt-phase jury to ensure the proper use of that evidence. Id. at 534-35. The purpose of the instruction was to make certain that the jury did not convict defendant of the Padilla murder solely because he "committed another crime elsewhere" and, was, therefore, "a bad man with a propensity for crime." Id. at 535.

The assault on Trooper Gardner was not relevant to any aggravating factor in the penalty phase. The trial court considered evidence of the assault on Gardner so potentially prejudicial that it bifurcated the penalty phase 23af at which that evidence was not admissible 23af from the guilt phase. Even a limiting instruction was not considered an adequate safeguard to protect penalty-phase jurors from the taint of such powerful and irrelevant evidence.

Against that background, the selection of the jury in the guilt phase of this capital murder trial proceeded. The trial court turned aside defendant's repeated requests that the court advise the juror panelists that they would hear evidence of a sexual assault committed by defendant against a Maine State Trooper, and that it instruct them on the consideration to be given to that evidence. Defendant contends that the trial court's failure to ask prospective jurors whether that evidence would impair their ability to remain fair and impartial and abide by the court's instruction on the limited use to be given to that evidence denied him the opportunity to "intelligently exercise" his for-cause and peremptory challenges. He claims the court's dereliction violated his right to a fair and impartial trial under the Federal and State Constitutions. U.S. Const. amends. VI, XIV; N.J. Const. art. I, ¶ 10.

A.

In reviewing that claim, we first look to the three-day jury selection process. The trial court used a struck jury system in which peremptory challenges were made only when sixteen potential jurors had been qualified to sit in the jury box. In all, three panels of prospective jurors were required to select sixteen jurors. When one panel of jurors was exhausted by removals either for cause or by peremptory challenges, another was brought to the courtroom, until the process was concluded.

At the outset, the court read to each panel of prospective jurors the indictment, which alleged that defendant had robbed, sexually assaulted, and murdered Melissa Padilla. The court then gave an opening statement, explaining the voir dire process, and encouraged the juror panelists to speak their minds freely. The court asked a number of general questions, including whether the jurors had prior knowledge of the case, whether any of them had a law enforcement background or a close relationship with law enforcement agents, and whether the nature of the charges would prevent them from making a fair and impartial determination based solely on the evidence. The court also explained that the jurors might "hear evidence of some other offense being committed," but that the evidence would not be introduced to "inflame" them or to demonstrate that the "person is a bad person." That abstract, hypothetical reference to other-crime evidence did not refer in any way to defendant. At no time did the court tell the jurors that they would hear evidence of defendant's brutal attack on a female state trooper in Maine.

Three times before voir dire began, defendant requested that the trial court question potential jurors about their ability to remain impartial and follow limiting instructions in light of the evidence of defendant's crime in Maine. Defense counsel proposed a seven-paragraph question for that purpose, which we repeat in pertinent part:

This case will involve allegations by the State that [defendant] murdered Melissa Padilla... in Woodbridge, New Jersey on August the 11th, 1994.

A fundamental issue in this case will be did [defendant] commit this crime and will the State prove he committed the crime beyond a reasonable doubt.

As part of its proofs, the State will produce evidence of a crime the defendant committed in the State of Maine. You will be instructed that the evidence you will hear about the incident in Maine can be considered by you for a limited purpose....

I will ask you to think about the Maine evidence in conjunction with the limiting instruction. I will then ask if you can follow this limiting instruction given the nature of the Maine evidence. And just as importantly, whether you can be a fair and impartial juror in this case and decide whether the State has proven [defendant] is guilty beyond a reasonable doubt of killing Melissa Padilla, not based on the fact he might be a bad person who committed a serious crime in Maine.

The evidence you will hear is that on April the 3rd, 1995, about eight months after Padilla was killed, Trooper Vicki[] Gardner, while acting as a State Trooper was assaulted by [defendant]. He hit Gardner a number of times in the face, fracturing her nose. He bit and sexually assaulted Trooper Gardner by digitally penetrating her both vaginally and anally. Trooper Gardner was also strangled. She survived the incident with a fractured nose, numerous bumps, bruises, and scrapes to basically her entire body.....

I'm going to ask all of you individually what your reaction was to the evidence and the instructions, whether you feel you can follow the instructions given the nature of the Maine evidence, and whether you can give [defendant] a fair trial despite all you will hear about the Maine incident.

The two prosecutors representing the State, one of whom was a seasoned capital litigator, raised no objection to the proposed instruction, except to insist on the expansion of paragraph five to include language that defendant had bitten Trooper Gardner on the chin and breast, and that the trooper had suffered those bite marks, as well as injuries to her anus and vagina.

The trial court clearly was vexed that the attorneys had agreed to inquire about a subject that would consume additional time in selecting a jury, asking: "Gentlemen, do we really want to get a jury in this case?" The court stated that generally it would abide by an agreement of the parties on the need for a particular juror inquiry, but that its interpretation of State v. Manley, 54 N.J. 259 (1969), led it to foreclose any disclosure of defendant's sexual assault on Trooper Gardner. The court focused on Manley's call for "'an expedient selection of a fair and impartial jury,'" and its disapproval of the improper use of voir dire to give a favorable spin to a party's preferred view of legal principles and the facts. (Quoting id. at 280). The trial court expressed its concern that potential jurors might not be able to "keep an open mind" after hearing about "one isolated incident," the assault on Trooper Gardner, and feared that some jurors might say to themselves, "oh, my goodness." Evidently, the court believed that asking jurors, after disclosure of such a prior crime, "now can you be absolutely fair in this case?," was a pointless exercise. The trial court considered defendant's voir dire instruction to be "loading the deck," and refused to "put a layperson through having to in seconds make that determination, to assimilate all of that information in a vacuum and then say, well, that's not going to have any effect on me."

Throughout the jury selection process, defendant continued to press the court to give the proposed instruction, fearing that the nature of his crime against a female trooper in Maine would render some jurors incapable of returning a fair verdict, particularly those with law enforcement ties. After the trial court excused for cause four prospective jurors who could not remain fair and impartial given the nature of the charges in the Padilla case, the court denied another request by defense counsel for voir dire on the Maine crime. One potential juror, L.D., informed the court at sidebar that she had learned "all about the case," including the "female State Trooper in Maine," from newspaper reports. The court excused L.D. for cause sua sponte, because L.D. had formulated a "pretty good" opinion about the case. Afterwards, the court excused two prospective jurors who could not maintain their impartiality in light of the murder charges, and seven jurors whose law enforcement ties affected their ability to be fair.

Defendant renewed his voir dire request and expressed concern about shielding prospective jurors from evidence of the sexual assault against a "female State Trooper." Defendant inferred that if a number of jurors could not keep an open mind after hearing the nature of the charges regarding the Padilla murder, then others might similarly be affected if they knew of defendant's crime in Maine. Moreover, defendant was uncertain whether "anybody with a close connection to law enforcement" could sit impartially as a juror. Defense counsel urged the court to reconsider its position:

Once, again, I'm asking the court to please inform the jurors what they're going to hear from the State of Maine. So[] we have the ability to judge the impact that this evidence is going to have on any potential juror.... So, at least, the exercise of our peremptory challenges are done with a knowledge of... whether anybody is going to be biased by... hearing [about] the Maine case.

The State did not resist defendant's request. The trial court, however, was not persuaded:

I hope that this is the last time I have to address this business of whether or not I should set forth, with particularity, the details of the 404[(b) evidence].... There is no way that I could present that in a vacuum. It would be presented without this jury having heard the first word of evidence.

To hit them with what the defendant's alleged conduct was in Maine, would be totally unfair. It would truly affect the ability of any juror to be fair and impartial. When this evidence is presented in the proper context, with the proper instructions, when they already have heard evidence concerning the charge against the defendant,... they will know how to put it in that prospective [sic].

The court excused another juror, C.F., for cause sua sponte because he too remembered from reading the newspapers "something about" defendant's Maine crime against a state trooper, and admitted that he would "probably have some prejudice." Undeterred, defendant renewed his voir dire request, only to have it denied again.

The court also denied defendant's request that it question J.B., a panelist with "numerous friends" in local law enforcement, as to whether the Maine-crime evidence would undermine his ability to remain impartial. The court reasoned that J.B., like the other panelists with close ties to law enforcement, had not indicated that he had "close female friends... [in] law enforcement," and that it did not "follow" that a juror with such ties would be "more aggrieved at any law enforcement person being assaulted." (Emphasis added). The court also denied defendant's request to excuse for cause R.S., an East Jersey State Prison plumber who had twice been assaulted by inmates and whose daughter had been dating a Carteret police officer for ten years, and C.M., a New Jersey State Prison corrections officer in Trenton with an uncle on the Sayreville police force.

Defendant exercised the last of his twenty peremptory challenges to remove R.S. from the panel. Although defendant requested three additional peremptory challenges, the court granted only one to allow the removal of C.M. Defendant was not permitted the additional two challenges requested to "make up for the one... used for [R.S.]," and to remove M.C., who was related by marriage to a state trooper, and was "nervous" about the case because she frequented the area where Padilla had been killed.

In all, the trial court questioned 154 potential jurors. The court removed many jurors for cause, including twenty-seven who had ties to law enforcement, and twenty-two who admitted that they could not be impartial after hearing the nature of the charges in the Padilla case. Of the eighteen jurors with law enforcement connections not disqualified by the court for cause, the defense removed ten, and the State two, by peremptory challenges. Thus, six individuals with law enforcement ties became sworn jurors, and five of those six became deliberating jurors.*fn4

After the jury was sworn and impaneled, the prosecutor gave his opening remarks, in which he predictably and properly discoursed on the Maine crime and its relationship to the State's other proofs. The prosecutor described both Padilla's murder and defendant's attack on Trooper Gardner in Maine:

He attacked that female State Trooper. He beat her. He sexually assaulted her. He strangled her into unconsciousness. And, in a bizarre and unique kind of attack, he bit her on the left breast. And he bit her on the chin. And... he forced something into her anus that caused the flesh to lacerate.

After the State's opening, the court gave a limiting instruction to the effect that the Maine evidence could only be considered in determining the identity of Padilla's killer, and that it could not be considered as evidence that defendant was "a bad person, with a propensity for committing bad acts." The late timing of the disclosure and the limiting instruction, however, already had denied the court and the parties the opportunity to learn whether the sixteen sworn jurors would have answered any of the voir dire questions differently had they known that they were to receive evidence of defendant's sexual assault on Trooper Gardner.

B.

Our State and Federal Constitutions guarantee the right to trial by an impartial jury. U.S. Const. amends. VI, XIV; N.J. Const. art. I, ¶ 10. "[A]n impartial jury is a necessary condition to a fair trial" in our constitutional framework.

State v. Williams, 113 N.J. 393, 409 (1988) (Williams II) (citing Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507, 1522-23, 16 L.Ed. 2d 600, 620 (1966)). Jurors, therefore, must be "as nearly impartial as the lot of humanity will admit." State v. Williams, 93 N.J. 39, 60 (1983) (Williams I) (internal quotation marks omitted). The "requirement of fairness 23af and particularly jury impartiality 23af is heightened in cases in which the defendant faces death." Id. at 61. A trial is poisoned at its inception if the jurors deciding the case cannot review the evidence dispassionately, through the light of reason.

The trial court's duty "to take all appropriate measures to ensure the fair and proper administration of a criminal trial" must begin with voir dire. Id. at 62. A "vital aspect" of that responsibility is to ensure the impaneling of only impartial jurors by ferreting out potential and latent juror biases. Id. at 62-63, 68. To carry out that task, a thorough voir dire "should probe the minds of the prospective jurors to ascertain whether they hold biases that would interfere with their ability to decide the case fairly and impartially." State v. Erazo, 126 N.J. 112, 129 (1991). Although a trial court's exercise of its broad discretionary powers in conducting voir dire "will ordinarily not be disturbed on appeal," Williams II, supra, 113 N.J. at 410 (internal quotation marks omitted), we have not hesitated to correct mistakes that undermine the very foundation of a fair trial 23af the selection of an impartial jury.

In this case, the other-crime evidence was not only the most critical component of the State's case, but the evidence most likely to inflame a jury and render it incapable of reasoned analysis. It may very well be that some jurors, given the shocking nature of the attack on Trooper Gardner, would have been incapable of honoring the court's limiting instruction and would have presumed guilt based on that crime alone. That concern was more than a theoretical possibility. Two prospective jurors who read accounts of defendant's crime in Maine confided to the trial court that they would be incapable of rendering a fair verdict.

The trial court claimed that it was carrying out the mandate of Manley, supra, by rejecting defendant's proposed voir dire questions. 54 N.J. 259. We, therefore, first look to Manley to determine whether the court, in exercising its discretion, was true to the holding of that case. In Manley, the defendant, who was on trial for non-capital murder, sought to query prospective jurors about their reactions to his prior conviction for atrocious assault and battery. Id. at 263-64.

The court precluded that questioning because the prior criminal conviction would become evidential for impeachment purposes only if the defendant took the stand to testify, and the defendant refused to commit to testifying at so early a stage in the proceedings. Id. at 264-65. Accordingly, at the time of jury selection, the admissibility of the prior conviction was contingent on an uncertain event 23af whether the defendant would elect to testify. The trial court, "by refusing to allow defendant to admit the previous conviction while questioning prospective jurors," was protecting the defendant from irremediable prejudice in the event that he did not testify. Id. at 270-71. Under those circumstances, this Court held that the trial court did not abuse its discretion by refusing to permit voir dire regarding the defendant's prior conviction, because the defendant had not indicated a present intention to take the stand at trial. Ibid.

Manley emphasized that trial courts are vested with wide discretion to determine the line of inquiry at voir dire. Id. at 269. For example, had the defendant indicated an intention to testify, it would have been within the discretion of the trial court to allow the lawyers to question potential jurors about the defendant's prior conviction. Ibid. Preserving the trial court's discretion was critical because even had the defendant indicated an intention to testify during jury selection, he could not be bound by that decision.

In addition to deciding the precise issue in Manley, this Court took the opportunity to address endemic abuses in the manner in which lawyers conducted voir dire at that time. Id. at 271-83. The Court's objective was "to draw some restrictive guidelines for future control of the jury-drawing process." Id. at 263. Given the prevalence of "voir dire examination of jurors at inordinate length and on improper subjects," ibid., this Court intended to eliminate counsels' efforts at partisan persuasion and indoctrination of prospective jurors, and their use of "the hypothetical question intended and so framed as to commit or to pledge jurors to a point of view." Id. at 281.

In recent years, we have taken occasion to correct the misapplication of Manley by trial courts in capital cases. See, e.g., State v. Biegenwald, 126 N.J. 1, 33 (1991) (Biegenwald IV) ("Regrettably, we perceive from the records in many of the cases coming before us that trial courts have read Manley... to limit voir dire to the bare minimum necessary to qualify a juror."); State v. Moore, 122 N.J. 420, 455 (1991) ("Although Manley may be read as discouraging [the questioning of prospective jurors concerning their understanding of the burden of proof and presumption of innocence]... capital cases require a thorough and searching inquiry in regard to voir dire.") (internal quotation marks omitted). Once again, we do so here. In capital cases, "[c]counsel must be afforded the opportunity for a thorough voir dire to evaluate and assess jurors' attitudes in order to effectively participate in jury selection. If counsel is unable to screen out prejudice and bias, that inevitably leads to unfair juries." Williams II, supra, 113 N.J. at 409. We are unwilling to undermine the integrity of the trial process, even where the evidence of guilt is compelling. Ibid. The right to a fair trial does not depend on the nature of the crime charged or the quantum of evidence produced against a defendant. Ibid.

In Biegenwald IV, supra, we held that, in the penalty phase of a capital case, the trial court's refusal to permit voir dire of the defendant's other murder convictions denied the defendant his right to a fair and impartial jury. 126 N.J. at 34-35. By prohibiting inquiry about the defendant's prior murder convictions that were certain to be introduced in support of the N.J.S.A. 2C:11-3c(4)(a) aggravating factor, the court denied both itself and counsel the opportunity to search for impartial jurors who were willing and able to follow the law and the court's instructions. 126 N.J. at 32. Absent that inquiry, neither court nor counsel could exercise for-cause and peremptory strikes "intelligently and effectively." Ibid.

In Moore, supra, another capital case, the defendant was convicted of murdering his pregnant wife and her eighteen-month old son with a hammer. 122 N.J. at 427, 430. At times during jury selection, the trial court resisted the questioning of prospective jurors concerning the victims' status. Id. at 447-48. For example, the court, on occasion, would not permit a response to the question, "Would the fact that one of the victims here was a child influence you so that it would be more likely that you would impose the death penalty?" Id. at 448.

We found nothing improper in asking such a question, and also found that a response indicating a juror was more likely to convict on the basis of a victim's status, if not providing grounds to excuse for cause, might provide a reason for counsel to exercise a peremptory challenge. Ibid. Although we reversed the defendant's convictions on other grounds, we noted that the trial court had "overread" Manley as prohibiting such inquiries, and offered guidance for future capital trial voir dires concerning the impact a victim's status might have on prospective guilt-or penalty-phase jurors. Id. at 446-51. A prospective juror's bias in favor of conviction or the death penalty based on a victim's status, as noted, is a legitimate ground for the exercise of a peremptory challenge. Id. at 448.

We instructed that "open-ended questioning" should be permitted on the issue of victim status "as it relates to any prejudice or predisposition affecting the juror's ability to adjudge fairly in the guilt phase or the ability to consider mitigating evidence in any penalty phase." Id. at 451. Those inquiries need not lead to removal of a ...


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