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State v. Fortin2/3/2004
al and criminal history by excising a conviction that falls within the relevant time period or by terminating his adult social history at a date immediately preceding the offense he wishes to exclude from the jury's consideration. See Harris II, supra, 165 N.J. at 323 (allowing defendant to limit social history evidence to mental condition as young child).
We also note that the sanitized convictions were no more prejudicial than the criminal history or other unflattering details described in Nardone's report. For example, Nardone would have testified that defendant had shot an eighteen-year old with a BB-gun with the intent of scarring the victim and had committed theft offenses, which were the subject of juvenile adjudications. She would have testified that defendant was convicted as an adult of possession of a machete for an unlawful purpose, that he was arrested for drug offenses, and that he had beaten Dawn Archer on the night of Melissa Padilla's murder. She also would have testified that defendant did not respond well to probation or counseling. In other words, the two sanitized convictions would not have impugned the spotless reputation of a pillar of the community, but would have been additional pieces of a picture of a dysfunctional person who did not conform his conduct to the law.
Nardone's report presented itself as "a complete psycho social history" of defendant from birth to age thirty, yet the omitted 1983 assault conviction occurred when defendant was nineteen years old. The 1995 "first-degree assault" occurred just eight months after the Padilla murder, the point at which Nardone abruptly concluded her social history. In light of the temporal proximity of the "first-degree assault" conviction to defendant's thirty-year social history, the conviction was clearly relevant to show that the social history was less than "complete."
Defendant misconstrues Rose, supra, 112 N.J. 454, and State v. Long, 119 N.J. 439 (1990), as standing for the proposition that a capital defendant's prior and subsequent convictions are not fair game for cross-examination or rebuttal to refute the existence of a mitigating factor unless the defendant adduces "good-character" evidence through his mitigation witnesses. In Rose, supra, we held that the use of specific instances of prior misconduct to impeach a capital defendant's character evidence was permitted under Evid. R. 46, the predecessor rule to N.J.R.E. 404(c) and N.J.R.E. 405. 112 N.J. at 503. In that case, the defendant's mitigation witnesses had testified about his good character, including his kindness to children and his thoughtful, caring nature. Id. at 498, 503. This Court found no fault with the prosecution introducing evidence of "specific instances of the person's conduct" to rebut that characterization. Id. at 502-03 (quoting Evid. R. 46). N.J.R.E. 405(b) provides that " hen character or a trait of character of a person is an essential element of a charge, claim, or defense, evidence of specific instances of conduct may also be admitted." (Emphasis added). As in Rose, defendant placed at issue a trait of his character through the introduction of mitigation evidence. Unlike Rose, this defendant was not introducing evidence to prove that he was of good character, but rather evidence to show the experiences, forces, and circumstances that shaped his personality. The State, nevertheless, was not obliged to sit back silently while defendant picked only those pieces of evidence that suited his purposes and that painted an incomplete picture. As the commentary to N.J.R.E. 405 observes: "In the penalty phase of a capital case, N.J.S. 2C:11-3c(2)(b) permits the State to ignore the prohibition against using prior specific instances of cond
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