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State v. Fortin2/3/2004
rcement officer had questioned several witnesses about the use of cocaine. Defendant was not inhibited in his presentation of mitigating evidence, even that of questionable relevance.
Moreover, defendant's repeated assertions that he was not allowed to present evidence in rebuttal of the sexual assault aggravating factor is not supported by the record. At the penalty-phase hearing, in cross-examining Dr. Lawrence Ricci, the State's sexual assault expert, defense counsel relied on the statement given by Padilla's boyfriend to the police that he and the victim engaged in consensual anal sex one to two weeks before her death. Defense counsel suggested through his questioning that the injuries to Padilla's anus were caused by consensual sexual activity with the boyfriend. Dr. Ricci dashed that theory by testifying that the anal injuries, whether caused by consensual or non-consensual activity, were "fresh injuries" that occurred within twenty-four to forty-eight hours of death. Accordingly, there was no connection between the victim's sexual activity with her boyfriend and her injuries discovered at the time of her death.
In sum, the trial court properly struck the two mitigating factors in question and gave wide latitude to the admission of mitigating evidence at the penalty hearing.
VI.
Waiver of Ex Post Facto Challenges in Sentencing On August 22, 2000, six months before the penalty-phase proceedings in this case, the Legislature enacted a law that allowed a sentence of life without parole in certain capital cases. N.J.S.A. 2C:11-3b(4) provides that whenever a jury in a capital case finds the presence of one or more aggravating factors, but does not return a death verdict, "the defendant shall be sentenced by the court to a term of life imprisonment during which the defendant shall not be eligible for parole." The statute also provides that: " his act shall take effect immediately." L. 2000, c. 88. As of the time of the Padilla murder, a capital defendant faced a thirty-year to life sentence with a minimum thirty-year parole disqualifier if the jury found at least one aggravating factor but did not return a death verdict. N.J.S.A. 2C:11-3b(1). Before the penalty phase began in this case, defendant announced that he would subject himself to the life-without-parole alternative and asked the court to instruct the jury in accordance with the newly-enacted provision.
Defendant undoubtedly believed that if the jury were instructed on the life-without-parole option, it might be less inclined to return a death verdict. Such reasoning not only has roots in our common intuition, but empirical support from statistical surveys. The United States Supreme Court, in Simmons v. South Carolina, noted a survey conducted by the University of South Carolina's Institute for Public Affairs in which more than seventy-five percent of those questioned "indicated that if they were called upon to make a capital sentencing decision as jurors, the amount of time the convicted murderer actually would have to spend in prison would be an 'extremely important' or a 'very important' factor in choosing between life and death." 512 U.S. 154, 159, 114 S.Ct. 2187, 2191, 129 L.Ed. 2d 133, 140 (1994); see also Taylor v. State, 672 So. 2d 1246, 1273 (Miss.) (reversing death sentence because jury might have opted for life sentence had it been told that defendant faced life without parole), cert. denied, 519 U.S. 994, 117 S.Ct. 486, 136 L.Ed. 2d 379 (1996); William J. Bowers & Benjamin D. Steiner, Death by Default: An Empirical Demons tration of False and Forced Choices in Capital Sentencing, 77 Tex. L. Rev. 605, 650, 671 (1999) (finding most jurors "are more likely to vote for death" because of
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