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State v. Fortin2/3/2004
nacted subsequent to commission of underlying offense and after he waived ex post facto challenges); State v. McDonnell, 987 P.2d 486, 494-96 (Or. 1999) (holding that life-without-parole provision was effective as of date of enactment in capital case and defendants convicted of murder could waive ex post facto challenge).
We understand that the issues confronting the trial court were difficult and somewhat novel and did not lend themselves to easy resolution. On remand, in any new penalty-phase trial, the court must give defendant the option of a life-without-parole jury instruction consistent with N.J.S.A. 2C:11-3b(4), provided defendant is willing to give a knowing, intelligent, and voluntary waiver of the application of the Ex Post Facto Clause.
VII. Social History Evidence
In the penalty phase, defendant was prepared to present, through the testimony of two expert witnesses, a complete thirty-year social history of his life, from birth to the August 11, 1994 murder of Melissa Padilla, with two significant exceptions. Defendant intended to carve out of the presentation of his extensive criminal history any reference to his 1983 manslaughter conviction for the killing of his brother and his 1995 conviction for the sexual assault of Trooper Gardner. The trial court determined that the State was entitled to rebut that incomplete portrait of defendant's life with the introduction of those two prior convictions in a sanitized form. The court recognized that the State could not introduce prior bad conduct, other than a murder conviction, in support of a statutory aggravating factor and that such specific past conduct was admissible only to rebut defendant's mitigation evidence. See N.J.S.A. 2C:11-3c(4)(a); State v. Rose, 112 N.J. 454, 503 (1988). To minimize potential prejudice to defendant, the court stated that it would allow the use of the convictions in rebuttal provided that graphic and inflammatory details were removed. The court ruled that the 1983 manslaughter conviction would be admissible, but only as a second-degree assault conviction against a brother, and the 1995 sexual assault conviction would be admissible, but only as a first-degree assault conviction. Defendant claims that to avoid the introduction of the 1983 and 1995 sanitized convictions, he was forced to forgo the presentation of any social history. We find that defendant made a tactical decision to abandon the presentation of his mitigation evidence to forestall the State from introducing relevant and damaging rebuttal evidence. We perceive no error in the court's ruling.
A.
In the penalty phase of a capital trial, if the jury unanimously determines that the State has proven the existence of one or more statutory aggravating factors beyond a reasonable doubt and that the aggravating factor or factors outweigh beyond a reasonable doubt all of the mitigating factors presented by the defendant, the court must impose the punishment of death. N.J.S.A. 2C:11-3c(3)(a). If the State falls short of persuading even a single juror, the punishment is a term of imprisonment, ranging from a minimum period of thirty years without parole eligibility to life. N.J.S.A. 2C:11-3c(3)(c). Defendant proffered three mitigating factors: he was under the influence of an extreme mental or emotional disturbance, N.J.S.A. 2C:11- 3c(5)(a); he suffered from a mental disease or defect, or intoxication that sufficiently impaired his capacity to appreciate the wrongfulness of his conduct, N.J.S.A. 2C:11- 3c(5)(d); and his character and record, N.J.S.A. 2C:11-3c(5)(h).
In support of those mitigating factors, defendant submitted the report of Lois Nardone, M.S.W. That report gave a detailed thirty-year portr
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