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State v. Fortin

March 28, 2007

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



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).

This appeal addresses pre-trial rulings on the State's use of other crimes evidence to prove the guilt of defendant, Steve Fortin, on the charge of capital murder.

In April 1995, Maine State Trooper Vicki Gardner stopped her patrol car to assist the driver of a vehicle parked on the shoulder of Interstate 95 in Maine. The driver, Steven Fortin, smelled of alcohol. Trooper Gardner placed Fortin in the patrol car's front passenger seat beside her, radioed for back-up, and began completing the paperwork related to the issuance of a motor vehicle summons.

When back-up did not arrive on the scene, Fortin grabbed Gardner by the throat and slammed her head against the doorpost, causing her temporarily to lose consciousness. Fortin strangled Gardner and battered her face breaking her nose, and penetrated her vaginally and anally with his hand. Fortin also bit Gardner's left chin, left nipple, and the lateral side of her left breast. Gardner managed to break free, and Fortin sped off with her patrol vehicle. Fortin was apprehended and pled guilty to kidnapping, robbery, aggravated assault, assault on an officer, and other crimes.

The Maine State Police contacted police in Woodbridge Township, New Jersey, where Fortin had formerly resided in connection with their investigation on the assault on Gardner. At that time, local police had reached a dead end in their investigation of the murder of Melissa Padilla whose ravaged body was discovered naked from the waste down in a concrete pipe alongside Route 1 in Woodbridge Township. In August 1994, Padilla had been brutally beaten about the face and head, anally penetrated, and apparently strangled to death. Bite marks were found on her chin, left nipple, and left breast. Police determined that the crime occurred shortly after Padilla had left a Quick Chek store located approximately two blocks from the motel where she lived.

Police learned that Fortin had been living at a motel near the Quick Chek and had made a purchase there the day of Padilla's murder. In light of the parallels between the Gardner and Padilla crimes, Woodbridge police detectives traveled to Maine to interview Fortin. During questioning, Fortin admitted reading about the Padilla murder in the newspaper. Confronted with the similarities between the Gardner sexual assault and the Padilla murder, Fortin responded if the evidence shows that he did it (the Padilla murder), then he must have done it. He refused to admit it, however, saying he didn't recall. Police did not uncover any forensic evidence linking Fortin to the Padilla murder.

A grand jury indicted Fortin for capital murder, first-degree robbery, first-degree sexual assault, and other crimes. The State sought to introduce the Gardner sexual assault as signature-crime evidence through the testimony of retired FBI agent Robert H. Hazelwood, an expert in the analysis of modus operandi and ritualistic crimes. In State v. Fortin, The opinion of the court was delivered by: Justice Albin

Argued September 26, 2006

In the retrial of defendant Steven Fortin for the capital murder of Melissa Padilla, the State intends to prove defendant's guilt by showing that he committed the crime in such a distinctive way that it may be said to bear his "signature." The State seeks to introduce as "other crimes" evidence pursuant to N.J.R.E. 404(b) defendant's sexual assault of Maine State Trooper Vicki Gardner, whom he vaginally and anally penetrated, strangled, and bit on both the left breast and chin. The State argues that the peculiar bite marks to the left breast and chin found on Padilla's battered body, combined with injuries inflicted from anal penetration and manual strangulation, were akin to a signature that identified defendant as Padilla's killer. The State submits that jurors, relying on their common experience and general knowledge, need no expert testimony to conclude that the trademark bite injuries in both the Gardner and Padilla cases had a singular author -- defendant. To bolster that conclusion, the State offers the results of a computer search of the FBI's Violent Criminal Apprehension Program (ViCAP), a national database of reported violent crimes that yielded three crimes with strikingly similar features --the Gardner and Padilla sexual assaults, and a sexual crime committed in Washington State.

In ruling on pretrial motions, the motion judge held that determining whether the Gardner and Padilla sexual assaults are signature crimes is beyond the general experience and knowledge of an ordinary juror and therefore requires expert testimony to explain those features that uniquely tie the two crimes together. The judge determined that the State could present the expert testimony of a medical examiner and forensic odontologist to establish the uniqueness of the bite marks suffered by both victims, provided those experts produce a reliable database to support their opinions. With regard to the attack on Trooper Gardner, the motion judge limited the State to the signature-crime evidence -- the bite marks -- finding that other details of the assault would be irrelevant and unnecessarily inflammatory. Last, the judge concluded that because law enforcement authorities inserted the details of the Maine crime into the ViCAP database solely for the purpose of making an inexorable link between the Gardner and Padilla crimes, the ViCAP search results would not be admissible. The motion judge did allow the use of the ViCAP database, absent the Maine crime, as a means for supporting or attacking the reliability of the expert testimony.

We granted the State's motion for leave to appeal and now affirm the motion judge's ruling with the following modifications. The State must be permitted to present the bite-mark evidence in context and therefore material details of the Gardner sexual assault cannot be censored. Testimony describing that assault, however, is subject to specific jury instructions explaining the limited use of "other crimes" evidence under N.J.R.E. 404(b). Finally, because the State's experts have not relied on the ViCAP database to form their opinions, the ViCAP database should not be admissible to bolster those opinions.

I.

A.

We recount only those facts necessary for a resolution of the issues before us.*fn1 On the evening of April 3, 1995, Trooper Vicki Gardner stopped her patrol car to assist the driver of a vehicle parked on the shoulder of Interstate 95 in Maine. The driver, defendant Steven Fortin, smelled of alcohol. Trooper Gardner administered sobriety tests to Fortin and concluded that he was intoxicated. With defendant placed in the patrol car's front passenger seat beside her, Gardner radioed headquarters for back-up and began completing the paperwork related to the motor vehicle summonses she intended to issue to defendant.

After the passage of forty-five minutes and no back-up trooper in sight, defendant suggested that Gardner release him and just go on her way. After she declined, defendant grabbed Gardner by the throat and slammed her head against the doorpost, causing her temporarily to lose consciousness. During the course of the vicious attack that ensued, defendant strangled Gardner and battered her face breaking her nose, and penetrated her vaginally and anally with his hand. Defendant also bit Gardner's left chin, left nipple, and the lateral side of her left breast.*fn2 When a trooper finally arrived, Gardner managed to break free, and defendant sped-off with her patrol vehicle.*fn3

Defendant was apprehended and later pled guilty to kidnapping, robbery, aggravated assault, assault on an officer, attempted gross sexual assault, unlawful sexual contact, and criminal operation of a motor vehicle under the influence of intoxicants. State v. Fortin, 318 N.J. Super. 577, 589 (App. Div. 1999), aff'd, 162 N.J. 517 (2000) (Fortin I).*fn4

After the assault on Gardner, the Maine State Police contacted the police in Woodbridge Township, New Jersey, where defendant had formerly resided. At the time, local police officers had reached a dead end in their investigation of the murder of Melissa Padilla whose ravaged body was discovered naked from the waist down in a concrete pipe alongside Route 1 in Woodbridge Township. On the evening of August 11, 1994, Padilla had been brutally beaten about the face and head, anally penetrated, and apparently strangled to death. Bite marks were found on her chin, left nipple, and left breast. The police determined that Padilla was sexually assaulted and killed shortly after leaving a Quick Chek store located approximately two blocks from the motel where she lived.

The police learned that defendant had been living at a different motel near the Quick Chek and had made a purchase there the day of the murder. The evening of Padilla's murder, defendant had fought with his girlfriend, Dawn Archer, during which he violently choked her, threw her to the ground, and kicked her. When Archer next saw defendant two days later, he had scratches under his left eye and multiple scratches on his neck and arms. In light of parallels between the Gardner and Padilla crimes, Woodbridge police detectives traveled to Maine to interview defendant. During questioning, defendant admitted that he had read about the Padilla murder in the newspaper. Confronted with the similarities between the Gardner sexual assault and the Padilla murder, defendant responded that "[i]f the evidence shows that I did it it would probably be the reason and I must have been involved." He added: "I'm not admitting anything. If the proof shows I did then I must have done it. I don't recall." In response to further questioning concerning the Padilla murder, defendant stated that he had no recollection. The police did not uncover any forensic evidence that linked defendant to the Padilla murder.

On September 6, 1995, a Middlesex County grand jury indicted defendant for capital murder, N.J.S.A. 2C:11-3a(1),(2); felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1; and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a. At trial, through the testimony of retired FBI agent Robert H. Hazelwood, an expert in the analysis of modus operandi*fn5 and ritualistic crimes,*fn6 the State sought to introduce the Gardner sexual assault as signature-crime evidence pursuant to N.J.R.E. 404(b). In Fortin I, supra, we determined that Hazelwood, as an expert in criminal investigative techniques, could testify to similarities between the crimes, provided he did not "draw[] conclusions about the guilt or innocence of the defendant." 162 N.J. at 528.

We specifically prohibited Hazelwood from "testify[ing] on the ultimate issue of whether the person that assaulted Trooper Gardner [was] the same person that murdered Melissa Padilla."

Id. at 528-29. We expressed concern that Hazelwood's cutting-edge testimony, couched in the aura of behavioral science, might receive reflexive, uncritical acceptance by a jury. To enable verification of the crime-scene comparisons, we required that Hazelwood produce a "reliable data base" against which his premises could be fairly tested. Id. at 532. Writing for the majority, Justice O'Hern noted that "if [Hazelwood] can from a reliable data base offer evidence that a combination of bite marks on the breast, bite marks on the chin, and rectal tearing inflicted during a sexual attack is unique in his experience of investigating sexual assault crimes, that evidence could help to establish an 'unusual pattern.'" Ibid. (emphasis added).

Before the jury, Hazelwood compared the modus operandi and ritualistic characteristics of the Gardner and Padilla crimes and stated that "he had never seen, heard, or read of 'this combination of behaviors in any other crime.'" State v. Fortin, 178 N.J. 540, 582 (2004) (Fortin II). The State, however, did not comply with this Court's mandate to present a database of cases from which Hazelwood drew his conclusions. Ibid. Although defendant was found guilty of capital murder, we reversed his conviction because of the trial court's failure to adhere to our holding in Fortin I conditioning Hazelwood's testimony on the production of a reliable database. Id. at 584, 590.*fn7

B.

On retrial, the State seeks again to introduce the Gardner sexual assault as signature-crime evidence, but this time not through the testimony of an expert investigative crime profiler such as Hazelwood. At a pretrial hearing, the State argued that it was entitled to admit the Maine crime without expert testimony or, alternatively, through bite-comparison testimony of the medical examiner and an expert odontologist as well as through search results of the FBI's ViCAP database. At a hearing to determine the admissibility of the 404(b) evidence offered by the State, the motion judge took testimony from various expert witnesses. Dr. Lawrence Ricci, an expert in emergency medicine and pediatrics, testified that both Padilla and Gardner suffered traumatic anal injuries, but could not say that those injuries were any more distinctive than similar injuries inflicted on other sexual assault victims. The Middlesex County medical examiner, Dr. Geetha Natarajan, reported on the results of Padilla's autopsy, and noted that in her more than twenty-five years of conducting autopsies for the State she could not remember another case in which the victim suffered bite marks on the chin.

The State also offered the Fortin I pretrial and trial testimony of Dr. Lowell Levine, an odontologist. Dr. Levine stated that in his over thirty years of experience, he had never seen the combination of bite marks on the chin, the left nipple, and the left breast that appeared on both Gardner's and Padilla's bodies. He also offered his opinion to "a high degree of probability" that the bite mark on Padilla's left breast was caused by defendant's teeth.

In his testimony, FBI Supervisory Special Agent Mark Safarik described the Violent Criminal Apprehension Program, more commonly known as ViCAP. Created in 1984, ViCAP is a national database of approximately 167,000 reported violent crimes (homicides, attempted homicides, and kidnappings) maintained by the FBI in Quantico, Virginia. The database represents about three to seven percent of the violent crimes committed since ViCAP's inception. Participation in ViCAP nationwide is voluntary. Law enforcement agencies that complete the ViCAP form answer numerous questions about the crime for inclusion in the national database.

The general purpose of ViCAP "is to identify similarities in crimes" through a computer search isolating particular characteristics in the commission of the offense. Through such a computer search focusing on specific crime criteria, one law enforcement agency can contact and cooperate with another agency working on a "similar case with similar characteristics." According to Agent Safarik, the "ViCAP system is looking for . . . solved or unsolved homicides, or attempted homicides, missing persons cases, kidnappings, where there is a strong possibility of foul play, or unidentified dead bodies, where the manner of death is suspected to be homicide."*fn8 In the relevant time period, it does not appear that sexual assaults unrelated to kidnappings or homicides and attempted homicides were a targeted group for input into the ViCAP system.

Law enforcement authorities completed the ViCAP form for the Padilla murder in a timely manner for inclusion in the national database. The Maine State Police, however, did not complete a ViCAP form for the 1995 Gardner sexual assault. In 2004, in preparation for defendant's trial, the State requested that Agent Safarik submit a ViCAP form for the Gardner case. He did so with the assistance of a ViCAP analyst and the Maine State Police. Agent Safarik then ran a series of searches on the ViCAP system for specific criteria common to both the Padilla and Gardner crimes, such as manual strangulation, sexual assault, and bite marks on the face and chest. The searches yielded only three cases -- the Padilla murder, the Gardner sexual assault, and a 1988 case from Washington State. The State argued that the searches showed that the similarities between the Padilla and Gardner crimes were so unusual as to constitute a signature. Significantly, Agent Safarik indicated both that the ViCAP database could not be released to defense counsel because of privacy concerns and that it was exempt from the Freedom of Information Act.

Defendant presented the trial testimony of Dr. Norman Donald Sperber,*fn9 the Chief Forensic Dentist in the San Diego Medical Examiner's Office. Dr. Sperber, an expert odontologist, had expressed "doubts" whether the marks on Padilla's breast and chin were in fact bite marks. He also had indicated that even assuming the injuries to the breast and chin were bite marks, they were not caused by defendant's teeth.

Dr. Grover Godwin, who holds a doctorate in criminal investigative psychology, testified for the defense as an expert in the statistical evaluation of crime scenes. Dr. Godwin questioned the reliability of the comparison results of ViCAP based on what he perceived to be "a bias in entering the variables" into the database in this case.

The motion judge ruled that any comparative analysis of the two sexual assaults for the purpose of identifying them as signature crimes was beyond the ken of an ordinary juror and that the ViCAP database did not "provide[] independent support of a theory of uniqueness" between the two crimes. She therefore conditioned the ...


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