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State v. Fortin2/3/2004
rpose of mitigating factor 3c(5)(h) is "to present extenuating facts regarding the defendant's life or character or the circumstances surrounding the murder that would justify a sentence less than death." Bey II, supra, 112 N.J. at 170.
Character evidence within the context of N.J.S.A. 2C:11- 3c(5)(h) "embrace those individual qualities that distinguish a particular person." State v. Davis, supra, 96 N.J. at 618. A capital defendant's "background" or "social history" falls squarely within the realm of character evidence to be considered under that mitigating factor. See, e.g., Timmendequas I, supra, 161 N.J. at 628-32 (discussing forensic social worker's presentation of evidence of defendant's "childhood" and "social history" under catch-all factor); State v. Bey, 129 N.J. 557, 615-16 (1992) (Bey III) (noting that "all the evidence presented at trial about defendant's background could be viewed as part of the catch-all mitigating factor"), cert. denied, 513 U.S. 1164, 115 S.Ct. 1131, 130 L.Ed. 2d 1093 (1995). In this case, defendant's "social history" evidence implicated both his "character" and his "record" under N.J.S.A. 2C:11-3c(5)(h).
Defendant claims that the "Hobson's choice" foisted upon him by having to choose between introducing Nardone's social history testimony along with sanitized evidence of his 1983 and 1995 convictions, or presenting none of that testimony, effectively deprived him of all mitigating evidence, and thus a fair sentencing trial. Defendant, however, did not intend to confine the proposed mitigating "social history" evidence to his childhood, as is made clear by Nardone's report. Cf., e.g., State v. Harris, 165 N.J. 303, 323 (2000) (Harris II) (noting that defense experts' review of mitigating evidence was "limited to defendant's mental condition as a young child presumably because the defense did not want the jury to have specific knowledge of his criminal record"); Timmendequas I, supra, 161 N.J. at 545 (noting that defense expert's review was limited to defendant's social history up to age seventeen); State v. Cooper, 151 N.J. 326, 345 (1997) (Cooper I) (same), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145 L.Ed. 2d 681 (2000). Instead, defendant sought to present his "complete" social history and criminal record up to the time of Padilla's murder, which occurred exactly twenty days after his thirtieth birthday, and approximately eight months before his assault of Trooper Gardner. He did so, apparently, in the hope of demonstrating those facets of his life experience that contributed to the man he had become.
The reliability of Nardone's report and proposed testimony was therefore directly at issue, and subject to cross examination and rebuttal as to its accuracy and completeness in light of the glaring omissions of defendant's 1983 and 1995 convictions from Nardone's otherwise comprehensive discussion of defendant's extensive juvenile and adult record. See State v. Josephs, supra, 174 N.J. at 127-28 (holding that State was entitled to expose bias, inaccuracy, and incompleteness of mitigating expert's social history testimony); Timmendequas I, supra, 161 N.J. at 592-96 (same).
The trial court's sensible solution of sanitizing the omitted 1983 and 1995 convictions to first-and second-degree assault convictions was both fair and reasonable. A capital defendant is not entitled to present an incomplete picture of his social history and criminal record by carving out and omitting those offenses he deems unfavorable to his mitigation defense. Although he may limit his social history evidence to a particular subject area or certain aspects of his life, such as childhood, he may not omit sanitized adult convictions from an otherwise "complete" soci
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