Opinion
DOCKET NO. A-1163-10T1
10-20-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEVEN R. FORTIN, a/k/a STEVEN FIRTIN, Defendant-Appellant.
Jacqueline E. Turner, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Turner, of counsel and on the brief). Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 95-09-1197. Jacqueline E. Turner, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Turner, of counsel and on the brief). Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief). The opinion of the court was delivered by SIMONELLI, J.A.D.
Following a guilt-phase retrial, defendant Steven Fortin was convicted of first-degree purposeful and knowing murder of M.P. (Mary), N.J.S.A. 2C:11-3(a)(1) and (2); first-degree felony murder while in the course of committing the crime of aggravated sexual assault, N.J.S.A. 2C:11-3(a)(3); and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a). Following a penalty-phase trial before a separate jury, the jury found two aggravating factors, no mitigating factors, and that the aggravating factors outweighed the mitigating factors. On June 25, 2010, the trial court sentenced defendant to life imprisonment without the possibility of parole on the murder conviction and to a consecutive twenty-year term with ten years of parole ineligibility on the aggravated sexual assault conviction.
We use fictitious names to identify the victim and fact witnesses in order to protect their identities.
On appeal, defendant raises the following contentions:
POINT I
THE TRIAL JUDGE ERRED IN ADMITTING THE TESTIMONY OF THE DEFENDANT'S EX-GIRLFRIEND CONCERNING AN ALLEGED ASSAULT BY THE DEFENDANT AS THIS TESTIMONY WAS IRRELEVANT TO BOTH ISSUES OF GUILT AND PUNISHMENT AND
WAS HIGHLY INFLAMMATORY. U.S. [CONST.], AMENDS. VI, XIV; N.J. CONST., ART. I, ¶ 10.
POINT II
THE TRIAL JUDGE ERRED IN PERMITTING THE TESTIMONY OF ROBERT HAZELWOOD SINCE, AFTER THE NEW JERSEY SUPREME COURT LIMITED THE SCOPE OF HIS TESTIMONY, HIS EXPERT OPINION WAS NO LONGER RELEVANT AND DID NOT CONFORM TO THE DICTATES OF N.J.R.E. 702.
POINT III
THE TRIAL JUDGE ERRED, IN VIOLATION OF THE SUPREME COURT'S OPINION, IN PERMITTING THE MEDICAL EXAMINER TO TESTIFY ABOUT THE ALLEGED BITE[]MARKS AS SHE DID NOT PRODUCE A COMPLETE DATABASE PRIOR TO TRIAL, AS REQUIRED BY THE NEW JERSEY SUPREME COURT BEFORE SHE COULD GIVE HER EXPERT OPINION ABOUT THE SUPPOSED "SIGNATURE" NATURE OF THE CRIME.
POINT IV
THE TRIAL JUDGE ERRED IN NOT EXCLUDING THE EVIDENCE OF [ADAM FREEMAN, D.D.S.] AS HIS OPINION WAS [] BASED ON AN ALLEGED DATABASE WHICH LACKED SCIENTIFIC RELIABILITY.
POINT V
THE TRIAL JUDGE ERRED IN REFUSING TO TAKE ACTION ON SEVERAL OCCASIONS WHERE JURORS WERE SLEEPING OR CLAIMING THAT DEFENDANT WAS MAKING INAPPROPRIATE EYE CONTACT WITH THEM.
POINT VI
THE CUMULATIVE IMPACT OF THE ERRORS COMMITTED DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below).POINT VII
We reject these contentions and affirm.THE DEFENDANT'S SENTENCE OF LIFE WITHOUT PAROLE IS UNCONSTITUTIONAL BECAUSE IT VIOLATES THE EX POST FACTO CLAUSE OF THE FEDERAL CONSTITUTION.
I.
We derive the following facts from the record. On August 11, 1994, defendant and his then-girlfriend, D.A. (Debra), resided at the Douglas Motel on Route 1 North in the Avenel section of Woodbridge. Located to the south of the Douglas Motel was a QuickChek convenience store, Bud's Hut Restaurant (Bud's Hut) and the Gem Motel.
On the evening of August 11, 1994, Debra and defendant went to visit C.B. (Calvin), who lived in an apartment building located south of the Douglas and Gem Motels. Debra and defendant walked south along Route 1 North and stopped at the QuickChek, where each purchased a pack of cigarettes. They arrived at Calvin's apartment at approximately 9:00 p.m. and drank alcohol. According to Debra, she and defendant stayed until approximately 10:30 p.m., when Calvin asked them to leave because they were arguing.
Defendant and Debra continued arguing as they left Calvin's apartment and walked toward the Gem Motel. When they reached the Bud Hut's parking lot, Debra told defendant she was ending their relationship and moving back into her mother's home. Defendant became violent, threw Debra to the ground, choked and kicked her and began beating her. Debra broke free and ran into Bud's Hut yelling, "Somebody call 911. He's beating me up." Debra then exited the restaurant to see if defendant was still in the parking lot and to wait for the police. She looked around the corner of the restaurant and saw defendant "running away" toward the Gem Motel.
A police officer from the Woodbridge Police Department responded to the Bud's Hut parking lot, where he saw that Debra was intoxicated and red-faced, and her nose was bloodied and she had other minor injuries. Debra told the officer that defendant assaulted her and hit her in the face. She refused medical treatment at the hospital to which she was transported and declined to sign a complaint against defendant.
Mary was residing at the Gem Motel with her children and boyfriend, H.F. (Harry) on August 11, 1994. She left the motel at approximately 11:15 p.m. and walked to the QuickChek to purchase food for her family. At approximately the same time, defendant returned to Calvin's apartment, looking for Debra. He told Calvin that he and Debra had a fight in the Bud's Hut parking lot. He entered Calvin's apartment, saw that Debra was not there, and left after Calvin asked him about scratches Calvin saw on his legs.
When Mary failed to return to the Gem Motel in a timely fashion, Harry became concerned and went looking for her, accompanied by the sons of the Gem Motel's desk clerk. One of the sons found Mary's body inside a large concrete pipe that lay alongside the highway one block from the QuickChek. When Harry arrived at the scene, he saw groceries and Mary's sandals on the ground by the concrete pipe and then saw her laying on her back inside the pipe, not moving. He pulled her from the pipe, tried to revive her, saw that her hair was full of blood and she was naked from the waist down, and yelled for someone to call 9-1-1. He used a shirt to cover her lower body.
The police responded to the crime scene and collected evidence, including the items Mary had purchased at the QuickChek, a QuickChek receipt showing she purchased the items at 11:29 p.m., blood samples from the pipe, loose hair samples found in the pipe near Mary's body, and a Marlboro cigarette butt found inside the pipe. The police recovered no identifiable fingerprints other than Mary's fingerprints.
The county medical examiner arrived at the scene at 2:10 a.m. on August 12, 1994, pronounced Mary dead, and determined the time of death had occurred two hours earlier. A subsequent autopsy revealed Mary had been severely beaten and sustained numerous injuries, including injuries to her left eye; bruises to her face, the inside of her lips and her chest; a fractured nasal bone; two bite marks on the left side of her chin; a bite mark on her left breast; and multiple anal lacerations later determined to be consistent with forceful penetration by a finger or penis. She also sustained a fractured hyoid bone, hemorrhaging of her epiglottis and abrasions to her neck, which indicated she had been manually strangled.
The "hyoid bone" is defined as "a bone or complex of bones situated at the base of the tongue and supporting the tongue and its muscles." Merriam-Webster Collegiate Dictionary (10th ed. 1997).
Debra next saw defendant on August 13, 1994, when he came to her mother's house. She noticed that defendant had "very deep" and "noticeable" scratches on his face, neck and arm, which defendant told her he sustained when running through and sleeping in the woods. Debra saw no scratches on defendant the day he assaulted her, and she did not inflict any scratches on him during the assault. She and defendant reconciled and went together to Maine.
The investigation of Mary's murder went cold until April 1995, when the Maine State Police contacted the Woodbridge Police Department about defendant, who had been arrested for sexually assaulting Maine State Trooper, V.G. (Valerie) on April 3, 1995. Valerie was off-duty driving in her patrol car when she encountered defendant in a car parked on the shoulder of Interstate 95 facing the wrong direction. Defendant seemed somewhat disoriented and confused and smelled of alcohol. Valerie placed him in the front passenger side of her patrol car while she sat in the driver's seat and administered a sobriety test. After concluding that defendant was intoxicated, she radioed headquarters for back-up assistance.
After approximately forty-five minutes passed without the arrival of back-up assistance, defendant asked Valerie to "forget about the whole thing" and let him drive away. Valerie advised him she was issuing him summonses, the charges were serious, and he would be placed under arrest. Defendant then "exploded," hitting Valerie's head against the doorpost of her car and grabbing her by the throat with both hands, rendering her unconscious. When she regained consciousness, defendant was driving her patrol car and she was sprawled across the front seat with her head against the passenger door. She was naked from the waist down with her shirt pulled up exposing her breasts, and she had been beaten in the face so badly that her eyes were nearly swollen shut, her face and lips were swollen, and her nose was fractured. She also had a bruised esophagus, pain in her vagina and anus, and bite marks on her chin and left breast. Despite her injuries, she managed to escape. A doctor who later examined Valerie found she had a considerable amount of abrasion and bruising in her vaginal area and anus and opined her injuries were consistent with a finger being inserted into her vagina and anus.
Defendant fled the scene but was later apprehended. He was charged in Maine with 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. On November 29, 1995 he pled guilty to all charges and was sentenced to an aggregate twenty-year term of imprisonment. Evidence of defendant's assault of Valerie was admitted at defendant's first guilt-phase trial under N.J.R.E. 404(b), and at the penalty-phase trial.
On April 24, 1995, two detectives from New Jersey traveled to Maine to interview defendant in prison. Prior thereto, they retained a forensic dentist to compare the bite marks found on Mary and Valerie. Defendant admitted to the detectives that he lived with Debra at the Douglas Motel in the summer of 1994. He denied he assaulted Debra on August 11, 1994; however, when shown the police report of the incident, he said that Debra may have fallen after he pushed her.
The detectives advised defendant that they were investigating Mary's murder. Defendant denied any involvement in the murder or that he knew Mary. When asked about scratches on his face that Debra said she saw shortly after the murder, defendant explained the scratches did not come from a person or from sleeping in the woods, and Debra must have mistaken scars on his face for scratches. Defendant admitted he smoked cigarettes.
The detectives also advised defendant that the bite marks found on Mary matched his dental records. Defendant replied, "If the evidence shows that I did it, it would probably be the reason, and I must have been involved, I don't remember." Defendant asked if he could be charged with manslaughter instead of murder, and if not, whether the detectives could guarantee he would not receive the death penalty. A Middlesex County grand jury subsequently indicted defendant for capital murder, aggravated sexual assault, first-degree robbery and two counts of felony murder.
Prior to defendant's first trial, our Supreme Court considered an interlocutory appeal regarding the admission of the testimony of Robert Hazelwood, the State's expert on violent sexual crimes, who proposed to testify about the similarities between the crimes committed against Mary and Valerie. State v. Fortin, 162 N.J. 517, 519 (2000) (Fortin I). The Court held that Hazelwood could testify as an expert in criminal investigative techniques and could discuss the similarities between the crimes; however, he could not testify on the ultimate issue of whether the person that assaulted Valerie was the same person that murdered Mary. Id. at 52 8-29. The Court reasoned that Hazelwood's testimony could be helpful to a jury in showing that the evidence established an "unusual pattern," provided Hazelwood "can from a reliable database 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[.]" Id. at 532.
At the first guilt-phase trial, Hazelwood compared the modus operandi and ritualistic characteristics of the crimes against Mary and Valerie and concluded the crimes had unique similarities. See State v. Fortin, 178 N.J. 540, 582 (2004) (Fortin II). However, he did not produce a database from which he drew his conclusions, as required by Fortin I. Ibid.
Defendant was convicted on all charges. Id. at 567. Following a penalty-phase trial before a separate jury, he was sentenced to the penalty of death. Id. at 568. Defendant appealed his conviction and sentence. The Court reversed the conviction based, in part, on Hazelwood's failure to produce a database to support his testimony. Id. at 586.
The Court also reversed defendant's sentence, holding that aggravating factors in death penalty cases must be presented to a grand jury and returned in a supplemental indictment. Id. at 649-50. A grand jury subsequently returned a supplemental indictment, finding aggravating factors N.J.S.A. 2C:11-3(c)(4)(c) (2006), "[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim[,]" and N.J.S.A. 2C:11-3(c)(4)(g) (2006), "[t]he murder was committed while defendant was engaged in the commission of, or an attempt to commit . . . murder . . . [or] sexual assault[.]"
N.J.S.A. 2C:11-3(c) was deleted by amendment L. 2007, c. 204 § 1. N.J.S.A. 2C:11-3(c)(4)(c) and (g) are now codified as N.J.S.A. 2C:11-3(b)(4)(c) and (g).
Prior to the guilt-phase retrial, the Court considered the State's interlocutory appeal of the trial court's evidentiary rulings, including the ruling relating to the admission of the testimony of medical examiner Geetha Natarajan, M.D., the State's expert forensic pathology, who proposed to testify that bite marks found on Mary and Valerie were so unique that they constituted signature crimes. State v. Fortin, 189 N.J. 579, 593 (2007) (Fortin III). The Court affirmed the trial court's ruling that the State must produce "a compilation of the sexual assault and homicide cases with human bite marks on victims or a reasonable sampling of such cases" on which the doctor would rely. Id. at 598 (internal quotation marks omitted).
On November 29, 2007, the jury found defendant guilty of purposeful and knowing murder, felony murder, and two counts of aggravated sexual assault. N.J.S.A. 2C:11-3(b) (2006), amended by L. 2007, c. 204 § 1. The law in effect at the time provided for a sentence of either death or a term of thirty years to life with a thirty-year parole disqualifier. Ibid.
Prior to the penalty-phase trial, on December 7, 2007, the death penalty was abolished in New Jersey. See N.J.S.A. 2C:11-3(b)(2)-(4). The amended statute provides for a mandatory life-without-parole sentence in murder cases under certain circumstances. N.J.S.A. 2C:11-3(b)(1)-(3).
The State then sought to sentence defendant under the amended statute to life-without-parole. State v. Fortin, 198 N.J. 619, 624 (2009) (Fortin IV). The Court held that application of the amended statute's life-without-parole sentence to defendant would not violate ex post facto if the jury concluded the State proved beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors, which would have rendered defendant subject to the death sentence under the prior statute. Id. at 631, 633. The Court also held that if the jury rejected the State's position, defendant must be sentenced under the prior statute to a term of thirty years to life sentence, with a thirty-year parole disqualifier. Id. at 633.
Following a penalty-phase trial before a separate jury, the jury found aggravating factors N.J.S.A. 2C:11-3(b)(4)(c) and (g), no mitigating factors, and determined that the aggravating factors outweighed the mitigating factors. As a result, the court sentenced defendant to life-without-parole on the murder conviction and to a consecutive twenty-year term of imprisonment with ten years of parole ineligibility on the aggravated sexual assault conviction. This appeal followed.
II.
Defendant contends in Point I that because Debra's testimony about his assault on her the night of Mary's murder was irrelevant and highly inflammatory, the court erred in admitting the testimony in the guilt-phase trial. Defendant argues that the juxtaposition of the assault on Debra and the sexual assault and murder of Mary was insufficient to show either his state of mind or motive, and even if there was such a linkage, any relevance was outweighed by the prejudice inherent in the proffered evidence.
Defendant also contends the court erred in admitting evidence of the assault on Debra at the penalty-phase trial. Defendant argues that because he was already convicted of knowing and purposeful murder, the evidence was not relevant to the aggravating factors.
Admission of the Evidence at The Guilt-Phase Retrial
The State's theory at the guilt-phase retrial was that defendant's anger motivated him to brutally attack and murder Mary. The State posited that when Debra argued with defendant and said she was ending their relationship, he got angry and assaulted her in the Bud's Hut parking lot; his anger continued when he did not find Debra at Calvin's apartment; he was still angry when he encountered Mary; and he took out his anger on Mary. The State intended to prove motive through Debra's testimony about defendant's assault on her, as the State did at the first guilt- and penalty-phase trials without objection. See Fortin III, supra, 189 N.J. at 587; Fortin II, supra, 178 N.J. at 560-61.
Two weeks prior to the start of the guilt-phase retrial, for the first time, defendant objected to Debra testifying about the assault, arguing this evidence was inadmissible under N.J.R.E. 404(b), had no relevance to the crimes involving Mary, and was prejudicial. The State countered that the evidence was relevant to the charges at issue because it was part of the res gestae of the crime and showed defendant's continuous angry state of mind and that anger motivated the attack on Mary. The State also argued the evidence was admissible under N.J.R.E. 404(b), as it was relevant to explain defendant's motive and angry state of mind at the time he attacked Mary.
The court reviewed Debra's testimony from the first trial, found it was clear and convincing, and concluded there was no need for a hearing. Applying the four-part Cofield test, the court first found there was a "very close proximity" between the assault of Debra and the attack of Mary and a logical connection between the proffered evidence and a fact in issue, which was defendant's motive or intent in attacking Mary because he was angry at Debra. Next, the court found there were similarities between the two crimes, they were reasonably close in time, and there was sufficient evidence that defendant was the person who assaulted Debra. The court next found the probative value of the proffered evidence was not outweighed by the risk of prejudice, and the probative value was significant in terms of motive, intent, or state of mind, and "in terms of what happened immediately before the attack upon [Mary]." The court held the evidence was admissible under N.J.R.E. 404(b).
State v. Cofield, 127 N.J. 328 (1992).
The court also held the evidence was admissible under N.J.R.E. 803(c)(3) as res gestae, since it established a time line, defendant's continuous state of mind, was part of the "mosaic of events" that led to Mary's murder, and "explain[ed] the entire events, what happened." The court later instructed the jury on the limited use of this evidence at the time it was offered and in the final instructions.
We review a trial court's ruling on the admissibility of other crimes, wrongs, or bad acts evidence for abuse of discretion. State v. Barden, 195 N.J. 375, 390-91 (2008). We afford great deference to the court's ruling and will reverse only where there was a clear error or judgment. Ibid. We discern no abuse of discretion in the admission of Debra's testimony at the guilt-phase trial.
N.J.R.E. 404(b) governs other crimes, wrongs, or acts evidence and provides as follows:
Except as otherwise provided by [N.J.R.E.] 608(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute."'Because N.J.R.E. 404(b) is a rule of exclusion rather than a rule of inclusion,' the proponent of evidence of other crimes, wrongs or acts must satisfy a four-prong test." State v. Carlucci, 217 N.J. 129, 140 (2014) (quoting State v. P.S., 202 N.J. 232, 255 (2010)). Under the four-prong test, in order for other crime or wrongs evidence to be admissible under N.J.R.E. 404(b), the evidence of the other crime, wrong or act: (1) must be admissible as relevant to a material issue; (2) must be similar in kind and reasonably close in time to the offense charged; (3) must be clear and convincing; and (4) its probative value must not be outweighed by its apparent prejudice. Cofield, supra, 127 N.J. at 338.
Proof of the second prong is not required in all cases, but only in those that replicate facts in Cofield, namely, illegal drug possession. Id. at 131. This prong is not at issue here.
To satisfy the first prong, the evidence must have "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." See N.J.R.E. 401 (defining "relevant evidence"). "Consequently, to be relevant, the other-crimes evidence must bear on a subject that is at issue at the trial, for example, an element of the offense or some other factor such as motive, opportunity, intent, or plan." P.S., supra, 202 N.J. at 255 (citations omitted). "In relevance determinations, the analysis focuses on 'the logical connection between the proffered evidence and a fact in issue.'" State v. Williams, 190 N.J. 114, 123 (2007) (quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004)). Where the fact to be proven is an element of the offense, such as motive and intent, the relevance prong is satisfied. See State v. Brown, 180 N.J. 572, 584-85 (2004) (holding that other crimes evidence is admissible where the State must prove an element of the offense).
Other crimes evidence may be admissible under N.J.R.E. 404(b) on the issue of motive. State v. Yormark, 117 N.J. Super. 315, 336 (App. Div. 1971), certif. denied, 60 N.J. 138 (1972). "Generally, in 'motive' cases under N.J.R.E. 404(b) . . . the evidence in question is designed to show why a defendant engaged in a particular, specific criminal act." State v. Mazowski, 337 N.J. Super. 275, 283 (App. Div. 2001). Thus, in contrast to pattern evidence, establishing motive does not require similarity between the other bad acts and the crime charged. Id. at 286 n. 3. Other crimes evidence may be admissible under N.J.R.E. 404(b) if it discloses the defendant's mental intention or purpose when he committed the offense or to negate the existence of innocent intent. State v. J.M., Jr., 438 N.J. Super. 215, 223 (App. Div. 2014).
The third prong requires clear and convincing proof that the person against whom the evidence is being used actually committed the other crime or wrong. Carlucci, supra, 217 N.J. 143; Cofield, supra, 127 N.J. at 338. The fourth prong is typically the most difficult to overcome. Barden, supra, 195 N.J. at 389. "Because of the damaging nature of such evidence, the trial court must engage in a careful and pragmatic evaluation of the evidence to determine whether the probative worth of the evidence is outweighed by its potential for undue prejudice." Ibid. (citation and internal quotation marks omitted). The analysis incorporates balancing prejudice versus probative value required by N.J.R.E. 403, but does not require, as does N.J.R.E. 403, that the prejudice substantially outweigh the probative value of the evidence. State v. Reddish, 181 N.J. 553, 608 (2004). The risk of undue prejudice must merely outweigh the probative value. A "very strong" showing of prejudice is required to exclude motive evidence under this prong. State v. Castagna, 400 N.J. Super. 164, 180 (App. Div. 2008).
Under the fourth prong, the trial court must also consider if other less prejudicial evidence may be presented to establish the same issue on which the other crimes or wrongs evidence was offered. P.S., supra, 202 N.J. at 256. Additionally, in order to minimize "the inherent prejudice in the admission of other-crimes evidence, our courts require the trial court to sanitize the evidence when appropriate." Barden, supra, 195 N.J. at 390 (citation omitted). Finally, the trial court must provide limiting instructions to inform the jury of the purposes for which it may and may not consider the evidence of defendant's uncharged misconduct, both when the evidence is presented and in the final instructions. Ibid.
At the time of the guilt-phase retrial, res gestae was an independent basis for admitting other crimes or wrongs evidence. Other crimes or wrongs introduced as res gestae were not subject to an N.J.R.E. 404(b) analysis, as they were considered to be part of the subject matter of the action being tried. "In contrast to other-crimes evidence . . . res gestae evidence relates directly to the crime for which a defendant is being tried, rather than involving a separate crime." State v. L.P., 338 N.J. Super. 227, 235 (App. Div.), certif. denied, 170 N.J. 434 (2001). Res gestae evidence
serves to paint a complete picture of the relevant criminal transaction. Thus, evidence of conduct occurring during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury."Instructing the jury on the limited uses of other-crimes evidence is unnecessary when evidence of uncharged conduct is admitted as part of the res gestae of the crime." Ibid.
[Ibid. (quoting State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995)) (internal quotation marks omitted).]
Subsequent to the court's ruling in this case, our Supreme Court proscribed the use of res gestae as an independent doctrine for admitting any evidence. State v. Rose, 206 N.J. 157, 182 (2011). The Rose Court held that whenever other wrongs or acts are sought to be admitted, the court must make a threshold determination as to whether the acts or other crimes are subject to N.J.R.E. 404(b) analysis or evidence that is intrinsic to the charged crime and admitted as an exception to the Rule. Rose, supra, 206 N.J. at 179. The Court held that "evidence that is intrinsic to the charged crime is exempt from the strictures of [N.J.R.E.] 404(b) even if it constitutes evidence of uncharged misconduct that would normally fall under [N.J.R.E.] 404(b) because it is not evidence of other crimes, wrongs, or acts." Id. at 177. To determine what is intrinsic, the Court adopted the test in United State v. Green, 617 F.3d 233, 248-49 (3d Cir.), cert. denied, 562 U.S. 942, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010), and held that evidence is considered intrinsic if it "directly proves" the crime charged or if the acts in question are performed contemporaneously with, and facilitate, the commission of the crime charged. Id. at 180 (quoting Green, supra, 617 F.3d at 248-49). Courts have utilized a case-by-case approach in making this determination. Id. at 179.
In addition, the Court appeared to have broadened the intrinsic evidence exception by noting "'that other crimes evidence may be admissible if offered for any non-propensity purpose, [including] the need 'to provide necessary background information' about the relationships among the players as a proper purpose.'" Id. at 180-81 (quoting Green, supra, 617 F.3d at 249). The Court held that such background evidence is admissible "outside the framework of Rule 404(b)," and when admissible for this purpose, the evidence is subject to the probative value/prejudice balancing test under N.J.R.E. 403, not prong four of Rule 404(b). Id. at 177-78, 181. The Court added:
There is no need to regard [N.J.R.E.] 404(b) as containing an exhaustive list of the non-propensity purposes permitted of other crime evidence. . . . [T]here is no reason that our courts cannot allow, under [N.J.R.E.] 404(b), evidence to be admitted for a . . . necessary background or, as otherwise stated, the need to avoid confusing the jury, non-propensity purpose.
[Id. at 181 (quoting Green, supra, 617 F.3d at 249).]
Here, the court properly admitted evidence of defendant's assault on Debra under N.J.R.E. 404(b). The evidence was clear and convincing and relevant to the material issue of defendant's motive and intent with respect to the crimes against Mary. The evidence provided a plausible explanation why defendant committed the crimes against Mary—he was so angry at his girlfriend Debra for ending their relationship that he violently attacked her and then violently attacked Mary shortly thereafter. The evidence reasonably supported the inference that defendant was still angry when he encountered Mary and took out his anger on her by brutally assaulting and murdering her. The probative value of the evidence was not outweighed by the risk of undue prejudice, the probative value was significant in terms of defendant's motive and intent, and there was no other less prejudicial evidence to show defendant's motive and intent. Moreover, the court gave the jury an appropriate limiting instruction under N.J.R.E. 404(b).
The evidence was also admissible as intrinsic under Rose. Evidence of defendant's assault of Debra provided the necessary background of events on the evening of August 11, 1994 that led to Mary's murder. The evidence placed defendant near the crime scene about an hour prior to the murder, explained the events that took place during the same time frame as the crimes charged, established the context of the criminal event, and gave the jury a full picture of the crimes. Defendant's assault of Debra was part of the narrative of events the evening of Mary's murder and can be viewed as having facilitated the assault on and murder of Mary, as it showed defendant's violent reaction to Debra's decision to terminate their relationship.
The assault on Debra was intrinsic to the charged crimes, as it was performed contemporaneously with, and facilitated, the assault and murder of Mary and explained why defendant attacked Mary and why the attack was so brutal. The evidence was highly relevant evidence that did not implicate the requirements of N.J.R.E. 404(b) because it was part and parcel of the crimes charged. Accordingly, there was no error in admission of the evidence at the guilt-phase trial.
Admission of the Evidence at The Penalty-Phase Trial
The State's theory at the penalty-phase trial was that defendant's purpose was to do more than just kill Mary -- his purpose was to make her suffer because he was so angry at Debra for ending their relationship. The State intended to establish its theory through Debra's testimony about the assault.
The penalty-phase trial occurred before a different jury more than two-and-one-half years after defendant's conviction following the guilt-phase retrial.
Defendant objected to Debra's testimony, arguing identity was no longer an issue because defendant was already convicted of murder, and the proffered evidence was irrelevant to the aggravating factors. The State countered that Debra's testimony was relevant to the aggravating factors to show that defendant's express purpose was to inflict physical and psychological pain on Mary in addition to that needed to kill her.
The court held the evidence was relevant to show defendant's purpose to cause Mary pain and make her suffer because he was angry at Debra. The court instructed the jury on the limited use of this evidence at the time it was offered and in the final instructions. Debra's testimony at the penalty-phase trial mirrored her testimony at the guilt-phase trial.
We review a trial court's ruling on the admissibility of evidence during a penalty-phase trial for abuse of discretion. State v. Nelson, 173 N.J. 417, 470 (2002). We will reverse the court's ruling as to the probative value of evidence and risk of undue prejudice under N.J.R.E. 403 only if the ruling was so wide of the mark that it constituted a manifest denial of justice. Ibid.
Aggravating factor N.J.S.A. 2C:11-3(b)(4)(c) requires proof that "the murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim." Under this aggravating factor, the State must show that the defendant intended to cause and, in fact, did cause severe physical or psychological pain or suffering to the victim's prior to the victim's death. State v. Ramseur, 106 N.J. 123, 208, 211 (1987). If the victim was badly beaten before being murdered, the State must show that the defendant meant to cause pain or suffering, not that the victim suffered it. State v. Bey (II), 112 N.J. 123, 174 (1988). Aggravating factor N.J.S.A. 2C:11-3(b)(4)(g) requires proof that "the murder was committed while defendant was engaged in the commission of, or an attempt to commit . . . sexual assault."
We are satisfied that evidence of defendant's assault of Debra was properly admitted at the penalty-phase trial. The evidence was relevant to prove defendant's motive and intent to not only kill Mary, but to make her suffer by viciously beating and biting her, and sexually assaulting her by brutally tearing tissue in her anus before he strangled her to death. There was no error in the admission of the evidence during the penalty-phase trial.
III.
The State presented numerous expert witnesses at the guilt-phase retrial, only three of whom defendant challenges in this appeal. The first is Hazelwood, who testified at the guilt- phase retrial as an expert in the field of violent crime behavior. Defendant does not challenge Hazelwood's expert qualifications. Rather, defendant contends in Point II that the court erred in permitting Hazelwood to testify because his general testimony about violent crime behavior lacked any connection to this case and was irrelevant. We disagree.
For example, defendant does not challenge the testimony of the following experts: (1) Charlotte Word, a DNA expert, who opined that defendant could not be ruled out as one of two sources of DNA found on Mary's right fingernail clipping and the cigarette butt, and that there was a one in 3500 chance the DNA on the cigarette butt was not from defendant; (2) Catherine Leisy, an expert in forensic science, who opined that defendant's DNA found on the cigarette butt matched the DNA of two individuals; (3) Lowell Levine, an expert in forensic odontology, who opined that Mary and Valerie had the same type of bite marks on their chins; the bite mark on Valerie's left breast was consistent with the bite mark on Mary's left breast; he could not exclude defendant as having made the bite marks on the two women; the bite mark on Mary's chin was consistent with having been caused by defendant; and there was a high probability that the bite mark on Mary's breast was caused by defendant. --------
In Fortin I, supra, 162 N.J. at 528-29, the Court held that Hazelwood could testify as an expert in criminal investigative techniques and could discuss the similarities between the crimes against Mary and Valerie, but could not testify that the same perpetrator committed both crimes. The Court reasoned that Hazelwood's testimony could be helpful to a jury in showing that the evidence established an unusual pattern. Id. at 532. The Court also held that Hazelwood had to prove a database to support his conclusions. Id. at 532-33.
In Fortin III, supra, 189 N.J. at 594, the Court held that expert testimony was required for the comparative analysis necessary to determine whether the two crimes were signature crimes. The Court also held that in presenting evidence of the bite marks on Valerie, the State could also introduce other aspects of her assault, such as anal penetration and strangulation; however, the court must provide a limiting instruction on the jury's consideration of these other aspects. Id. at 599-02.
At the guilt-phase retrial, Hazelwood did not testify about a comparison between the modus operandi and ritualistic characteristics of the crimes against Mary and Valerie or their unique similarities, as he did in the first guilt-phase trial. He testified generally about and explained the meaning of modus operandi, ritualistic behavior and signature behavior. He opined that the motive for any type of sexual crime was power, anger, or a combination of the two, and explained there was a modus operandi in every violent sexual crime and in a few, a "signature," or a "unique combination of behaviors" across a series of two or more crimes. As an example, he mentioned a case in which he was involved where the offender committed crimes six years apart that each involved unnecessary biting, manual strangulation from the front, the taking of two teeth, and postmortem anal assault. Hazelwood was not cross-examined.
Prior to Hazelwood testifying, the court ruled that his expert testimony would assist the jury in understanding the bite mark evidence to be presented by other experts and educate the jury on modus operandi and ritualistic behavior. Without objection, the court instructed the jury that the testimony had nothing to do with the alleged facts in the case or the alleged charges against defendant.
A trial court's evidentiary rulings, including the admission of expert testimony, are "entitled to deference absent a showing of an abuse of discretion." State v. Brown, 170 N.J. 138, 147 (2001), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2003). Generally, the admission of expert testimony is governed by N.J.R.E. 702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.Admissibility turns on three basic requirements:
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must haveThese requirements are to be construed liberally in favor of admitting the expert testimony. State v. Granskie, 433 N.J. Super. 44, 48 (App. Div. 2013).
sufficient expertise to offer the intended testimony.
[State v. Kelly, 97 N.J. 178, 208 (1984).]
In Fortin III, supra, 189 N.J. at 596, the Court stated, "[t]he average juror cannot be expected to have the knowledge or experience to discern whether bite marks are a common or highly distinctive feature of violent sexual assaults." Hazelwood's testimony was relevant, as it aided the jury in understanding certain behaviors in sexual assaults, in comprehending the opinions other experts would give about the uniqueness of the bite marks evidence, and in determining the issues in the case. Moreover, the court gave a limiting instruction prior to Hazelwood's testimony as to the limited purpose of the testimony, to which defendant did not object.
State v. Hackett, 166 N.J. 66 (2002), on which defendant relies, does not change the outcome. There, the defendant was charged with endangering the welfare of a child by repeatedly standing nude in his house across from a school bus stop. Id. at 81. The Court held that expert testimony was not required to establish the defendant's conduct had the tendency to impair the morals of the children who had observed the nudity because that was a determination that a jury was well-equipped to make. Ibid. The Court held that the determination of whether specific conduct has the tendency to impair or debauch the morals of the average child was not beyond the ken of the average juror, and not so esoteric that jurors of common judgment and experience could not form a valid judgment. Id. at 83.
In this case, unlike whether exposing children to nudity would debauch their morals, the modus operandi of a violent sexual offender was not so plain to an average juror that the juror could evaluate the charges against defendant without some guidance. Hazelwood's expert testimony was necessary to assist the jury to understand the evidence or to determine the facts of this case. The court, therefore, properly permitted him to testify.
IV.
Defendant also challenges the testimony of Dr. Natarajan, the State's expert in forensic pathology. Dr. Natarajan testified at the guilt-phase retrial that Mary had two bite marks on the left side of her chin and a bite mark on her left breast. The doctor opined that bite marks are not common in sexual homicides and that in her thirty years' experience in forensic science, in which she had performed between 6000 and 7000 autopsies and had supervised four to five times that number, she had never seen this combination of bite marks. In Point III, defendant contends that because the doctor did not provide a full and complete list of all autopsies she had performed that constituted her database, as required by Fortin II and Fortin III, the court erred in declining to strike her testimony. This contention lacks merit.
In Fortin II, supra, 178 N.J. at 589, the Court described the contours of the requisite database for Hazelwood as consisting of violent sexual assault cases investigated, studied or analyzed by Hazelwood, and the peculiar modus operandi and ritual characteristics of the crimes. The Court noted that such a database provided some basis for verifying the frequency of sexual assaults in which the perpetrators bite the faces or breasts of their victims. Ibid. However, the Court specifically noted that the database need not be comprised of all the cases investigated, studied or analyzed by Hazelwood, or even a majority of them. Ibid. The Court declined to say how many cases would constitute a sufficient database, leaving that determination to the trial court's discretion. Id. at 589-90.
Subsequent to Fortin II, the trial court ordered Dr. Natarajan to produce "a compilation of the sexual assault and homicide cases with human bite marks on victims or a reasonable sampling of [such cases] from [the doctor's] experience." See Fortin III, supra, 189 N.J. at 598. The State provided: a database of 1188 autopsies the doctor had performed since 1989 onward and indicated which ones were homicides; copies of over 200 of the autopsies listed in the database; reports where the death was listed as "undetermined;" and the doctor's autopsy reports from 2005 until her retirement in 2007. The trial court found this database complied with Fortin II and provided enough information for a thorough cross-examination.
In Fortin III, supra, 189 N.J. at 597-98, the Court agreed with the trial court's ruling. The Court did not require Dr. Natarajan to provide a complete list of every autopsy she had performed relevant to the case that constituted her database. Instead, the Court required her to produce a "compilation of the sexual assault and homicide cases with human bite marks on victims or a reasonable sampling." Id. at 598. We are satisfied that what the doctor provided prior to the guilt-phase retrial amply met this requirement. Accordingly, there was no violation of Fortin II and Fortin III, and the court properly declined to strike Dr. Natarajan's testimony.
V.
The third expert defendant challenges is Adam Freeman, D.D.S., the State's expert in forensic dentistry and forensic odontology who testified about the uniqueness of the bite marks on Mary and Valerie. Defendant contends in Point IV that because Dr. Freemen relied on a study that was based on a survey with an unreliable database, the court erred in permitting his testimony. Defendant is wrong.
At a N.J.R.E. 104 hearing, Dr. Freeman testified about his training and experience and provided details about how he conducted the study. He explained that he wrote a one-page survey and sent it to board certified dentists in this country and around the world, as well as to members of the American Society of Forensic Odontology. The survey requested information on the victim, the number of bite marks, the type of crime, whether the case went to trial and where the bite marks were located. The survey also requested information on a suspect, including age and gender. Dr. Freeman also asked for the primary investigator in a criminal case to fill out the survey.
Dr. Freeman testified that he received responses regarding 259 cases involving 778 bite marks, and retained all but twenty-one of the surveys. He also testified that the study was not done in anticipation of litigation, but was part of his fellowship at the Center for Education and Research in forensic dentistry. He noted it was the largest study of its kind to date and was published in 2005 in the Journal of Forensic Sciences, a peer-reviewed journal. Based on this testimony, the trial court concluded Dr. Freeman's survey was an acceptable database under Fortin III, supra, 189 N.J. 579, and permitted him to testify.
There was no abuse of discretion in permitting Dr. Freeman to testify. As we have previously noted, to be admissible, expert testimony must be sufficiently reliable, Kelly, supra, 97 N.J. at 208. The technique or mode of analysis used by the expert must have a sufficient scientific basis to produce uniform and reasonably reliable results. Fortin II, supra, 178 N.J. at 587.
In Fortin II, the Court stated that what was needed was "some manner of database on which [the expert] had based his [or her] conclusions" and experience, training and education was not a substitute for such a database. Id. at 586. The Court explained that in order to be reliable, the database must provide "some basis for verifying the frequency of sexual assaults in which perpetrators bite the faces or breasts of their victims," and at minimum, the database must permit an acceptable basis for comparison. Id. at 589. In Fortin III, supra, 189 N.J. at 597-98, the Court required that the State specifically provide a database with a compilation of the sexual assault and homicide cases with human bite marks on victims.
Here, in compliance with Fortin II and Fortin III, Dr. Freeman produced a database of human bite marks that were a part of violent crimes. Moreover, the study that comprised the database had been peer-reviewed and published. Therefore, the court did not abuse its discretion in concluding that Dr. Freeman's study complied with the Court's database requirement.
VI.
Defendant contends in Point V that the court erred in not replacing jurors who were alleged to have been sleeping during testimony and jurors at whom defendant allegedly smiled and winked. This contention lacks merit.
The trial court must investigate when it learns of outside influence on the jury or some issue of irregularity. State v. Bisaccia, 319 N.J. Super. 1, 16 (App. Div. 1999). The trial court must voir dire the juror or jurors who were subject to the alleged outside influence and, in appropriate circumstances, the remaining jurors. Id. at 13. The inquiry must be adequate, although the trial court has discretion in the manner in which to investigate the allegations. State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div.), certif. denied, 151 N.J. 466 (1997). We review the court's determination of alleged juror misconduct for abuse of discretion. State v. R.D., 169 N.J. 551, 558 (2001).
In this case, the court individually questioned the two jurors at whom defendant allegedly smiled and winked. Each juror said they had not revealed this to their fellow jurors and that despite defendant's conduct, they could render a fair and impartial verdict. The court found the jurors could be fair and impartial and declined to remove them. We are satisfied that the court's inquiry was adequate and there was no abuse of discretion in not removing these jurors.
Regarding the sleeping jurors, some were allegedly sleeping during the testimony of two police officers, Harry and a detective who interviewed defendant in Maine. The judge did not query the jurors, but instead, admonished the entire panel regarding the importance of the testimony and suggested ways they could avoid feeling overly tired during the trial. While the court did not comply with the dictates regarding sleeping jurors in State v. Reevey, 159 N.J. Super. 130, 133 (App. Div.), certif. denied, 79 N.J. 471 (1978) and State v. Burks, 208 N.J. Super. 595, 611-12 (App. Div. 1986), we conclude the error was harmless. Because none of these prosecution witnesses was critical to defendant's defense, defendant suffered no prejudice. See State v. Glover, 230 N.J. Super. 333, 343 (App. Div.), certif. denied, 121 N.J. 621 (1990) (holding that any error in failing to question a sleeping juror was harmless beyond a reasonable doubt because the testimony at the time "was not in any way critical to [the] defendant's defense").
VII.
Defendant challenges his sentence in Point VII, contending that the life-without-parole sentence violates the constitutional prohibition against ex post facto laws. He acknowledges that the Court found no ex post facto violation in Fortin IV, but argues that Peugh v. United States, ___ U.S. ___, 133 S. Ct. 2072, 186 L. Ed. 2d 84 (2013), decided after Fortin IV, prohibits imposition of a higher sentence than that permitted at the time of the crime under the ex post facto clause of the United States Constitution.
Based on the jury's penalty-phase determination, defendant would have received a death sentence if that sentence were still available in New Jersey at the time of the penalty-phase trial. Therefore, based on the Court's holding in Fortin IV, defendant is collaterally estopped from once again raising the ex post facto issue. State v. Gonzalez, 75 N.J. 181, 186 (1977).
Addressing the merits, we conclude that defendant's reliance on Peugh is misplaced. In Peugh, the Supreme Court of the United States considered whether new federal sentencing guidelines promulgated after the defendant had committed the bank fraud for which he had been convicted violated ex post facto because the sentencing range under the new guidelines was higher than under the old. The crimes were committed in 1999 and 2000, and the new sentencing guidelines were promulgated in 2009. Peugh, supra, ___ U.S. at ___, 133 S. Ct. at 2078, 186 L. Ed. 2d at 93. The defendant was sentenced in 2010. Ibid. While the old sentencing guidelines were mandatory, the new ones were discretionary. Id. at ___, 133 S. Ct. at 2079-80, 186 L. Ed. 2d at 94-95.
The Court held that the mere fact that the new sentencing guidelines were discretionary did not defeat the ex post facto claim. Id. at ___, 133 S. Ct. at 2088, 186 L. Ed. 2d at 97-98. The Court also rejected the argument that the new guidelines lacked sufficient legal effect to constitute a "law" within the meaning of the ex post facto clause. Id. at ___, 133 S. Ct. at 2085, 186 L. Ed. 2d at 101. Rather, the Court held that the defendant was subject to a significant risk of a higher sentence than he would have received under the old guidelines and, therefore, ex post facto was violated. Id. at ___, 133 S. Ct. at 2088, 186 L. Ed. 2d at 104.
In this case, under the guidelines set forth in Fortin IV, defendant was not subject to a higher sentence than he would have received under the law as it existed at the time of the crime. Therefore, Peugh does not apply. Because there was no ex post facto violation, defendant's life-without-parole sentence was proper.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION