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State v. Fortin2/3/2004
nd admitted engaging in consensual anal seX with the victim thus refuting the State's allegation that Steve Fortin sexually assaulted the victim.
The State argued that those two mitigating factors did not relate to defendant's "character" or "record," or to the "circumstances of the offense." Defendant contended that the proposed mitigating factors rebutted the 4(g) felony murder aggravating factor 23af that Fortin killed Padilla in the course of a robbery and sexual assault. The trial court rejected the proposed mitigating factors because they were not relevant to the statutory language of N.J.S.A. 2C:11-3c(5)(h). We agree.
We also find no support for defendant's contention that he was barred from introducing relevant mitigation evidence to undermine the existence of the State's aggravating factors.
First, we address the basis for the trial court's rejection of the two mitigating factors. Our capital sentencing jurisprudence requires that courts grant defendants "wide leeway in presenting evidence in mitigation of the death penalty." State v. Bey, 112 N.J. 123, 157 (1988) (Bey II), cert. denied, 513 U.S. 1164, 115 S.Ct. 1131, 130 L.Ed. 2d 1093 (1995).
Although the scope of N.J.S.A. 2C:11-3c(5)(h) is broad, it is not unlimited. State v. Gerald, 113 N.J. 40, 103 (1988).
Defendant does not claim that the proposed mitigating factors were relevant to his character or record. He does claim, however, that they were relevant to the "circumstances of the offense." In Gerald, we construed the phrase "circumstances of the offense" to encompass only those "circumstances surrounding the commission of the crime itself." Id. at 104. For example, the relative role of the "defendant's participation in the crime" meets that standard. Ibid. The jury may weigh whether the defendant was a "ringleader" or a lesser player in comparison to co-defendants. Ibid. In contrast, the sentences received by co-defendants are not a relevant mitigating factor. Ibid. In State v. Timmendequas, we rejected as a factor bearing on "circumstances of the offense" and "character" the defendant's offer to plead guilty in exchange for a life sentence. 161 N.J. 515, 626-27 (1999) (Timmendequas I), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). For similar reasons, the period of parole ineligibility a defendant would serve if he received a non-capital sentence is not a mitigating factor. State v. Morton, 155 N.J. 383, 466 (1998) (Morton I), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001). On the other hand, a defendant's claim-of-right defense in the penalty phase 23af his honest belief that he was entitled to recover money from the person he murdered 23af is a permissible mitigating factor that could have a countervailing effect on the 4(g) aggravating factor, "murder committed during a felony." State v. Mejia, 141 N.J. 475, 500 (1995).
Applying those principles to this case, the trial court properly rejected the two proposed catch-all mitigating factors. That Padilla sold drugs earlier in the evening bore no relationship to any of the circumstances of the offense. The proposed drug-dealing mitigating factor was a thinly disguised effort to demean the character of the victim while in no way lessening defendant's personal involvement or moral culpability in the murder. Contrary to defendant's assertion, Padilla's involvement in drugs did not "refute" the State's allegation that he committed a felony-robbery-murder or suggest that someone else robbed her. Her drug dealing was not germane to any legitimate defense or mitigating factor.
In addition, the victim's prior sexual conduct was not relevant as a mitigating factor. That Padilla'
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