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State v. Fortin2/3/2004
tal health status.
Defendant argued that both the 1983 manslaughter conviction and the 1995 sexual assault conviction were outside the scope of cross-examination because neither defense expert "mentioned" those incidents in their reports. The State maintained that it was entitled to cross-examine defendant's experts on their failure to consider those convictions in rendering their "social history" and "mental health" reports.
The court granted the State permission to examine the defense experts on the incomplete presentation of defendant's prior criminal record in their reports. At defense counsel's request, the court agreed that counsel could "restore" Nardone's original report, so that her credibility would not be tarnished on the stand by counsel's redaction of the 1983 manslaughter conviction that had made her report "incomplete." The court also ruled that the State could adduce on cross-examination that Nardone had "stopped her social history at the killing of Ms. Padilla... and was specifically requested not to go further." As noted, the court required the State to refer to defendant's 1983 conviction of manslaughter as a "second-degree assault" on defendant's brother and to his 1995 sexual assault conviction as a "first-degree assault." The trial court followed the model in State v. Brunson, in which this Court held that when a defendant testifies and the State seeks to impeach his credibility with a prior criminal conviction that is similar in kind to the charged offense, the prior criminal conviction should be sanitized to minimize the potential improper use of the evidence to show propensity to commit the charged offense. 132 N.J. 377, 391-92 (1993). For example, a testifying defendant on trial for third degree distribution of drugs, who has a prior conviction of third-degree distribution of drugs, could be impeached only by reference to a conviction of a third-degree crime. The trial court recognized that the Brunson analogy was not a perfect fit to the circumstances of this case because defendant's credibility was not subject to attack as a testifying witness, but the court was moved by similar concerns about the undue prejudicial impact of unredacted convictions.
In an apparent effort to limit the damaging rebuttal testimony that would have come from Dr. Welner, defendant abandoned the presentation of psychological testimony from Dr. Santina and withdrew mitigating factors N.J.S.A. 2C:11-3c(5)(a) and (d). As a result, the defense removed the threat of Dr. Welner offering a psychiatric opinion that defendant was a psychopath as well as other testimony regarding his mental state. Dr. Welner, however, was available to rebut Nardone's narrative of defendant's social history.
Defendant ultimately elected not to call Nardone at the penalty trial. Defendant's only mitigating evidence was presented under the "catch-all" factor, N.J.S.A. 2C:11-3c(5)(h), through cross-examination of the State's witnesses. The jury thus learned nothing of defendant's social history or about the alleged physical, emotional, and sexual abuse that he suffered as a child.
B.
In the penalty phase of a capital case, the jury must be allowed to consider under the catch-all mitigating factor, N.J.S.A. 2C:11-3c(5)(h), any evidence that is "relevant to the defendant's character or record or to the circumstances of the offense." N.J.S.A. 2C:11-3c(5)(h) closely tracks the language of Lockett v. Ohio, which required individualized consideration of the defendant in a capital case as a constitutional imperative under the Eighth Amendment. 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed. 2d 973, 990 (1978); see also Timmendequas I, supra, 161 N.J. at 625-26. The general pu
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