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State v. Fortin2/3/2004
uct, if such evidence serves to rebut evidence offered by the defendant." Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 405 (2003).
In Long, supra, we held that the defendant's 1985 simple assault conviction was properly introduced to rebut his assertion under mitigating factor N.J.S.A. 2C:11-3c(5)(f) that he lacked a significant history of prior criminal activity. 119 N.J. at 459, 502. We rejected the defendant's claim that the State's rebuttal evidence was limited to the timeframe of mitigating character evidence that he had introduced up to the subject 1982 murder, which he committed at the age of twenty four. Id. at 451, 459, 502. Instead, we implicitly held that " either case law nor Court Rules requires such limitation" on the rebuttal of mitigating evidence that a defendant has artificially confined to a period of time closely preceding a relevant conviction he wishes to exclude. Id. at 502.
Defendant's 1983 and 1995 convictions were relevant and admissible at his penalty phase because he intended to give a distorted view of his troubled youth and adulthood by including all of his convictions, but two. Had defendant chosen to limit his social history to his childhood, Nardone could have testified to defendant's alleged troubled home- and school-life, his repeated sexual abuse by an adult male from ages thirteen to sixteen, his many contacts with the juvenile justice system, and his struggles with drug and alcohol abuse. Instead, defendant gambled on an all-or-nothing strategy of either presenting a social history up to the night of Padilla's murder without the 1983 and 1995 sanitized convictions or presenting no social history at all. In light of the powerful and damaging rebuttal testimony expected from Dr. Welner, defendant was in the best position to know whether the presentation of a mitigation defense would have made more likely the return of a death sentence. Defendant made a calculated decision to deny the State the opportunity to call Dr. Welner in rebuttal. That strategy did not achieve its desired result. The failure of that strategy, however, does not give rise to a valid claim that the trial court abused its discretion by giving the State permission to rely on relevant rebuttal evidence.
VIII.
Jurors' Consideration of Rejected Aggravating Factor In the penalty phase, the trial court charged the jury on basic capital sentencing concepts. The jury was instructed to determine whether the State had proven the existence of each aggravating factor beyond a reasonable doubt. The jury was told that unless it unanimously found an aggravating factor defendant would be sentenced to life imprisonment. The jury also was told that if it found one or more aggravating factors, then it would have to decide whether there was support for any of the claimed mitigating factors. The court further instructed the jury that if even a single juror found evidential support for a mitigating factor, all jurors would have to consider that factor in the final weighing process. Last, the jury was charged that if all twelve jurors concluded that one or more aggravating factors outweighed the mitigating factors beyond a reasonable doubt, defendant would be sentenced to death, and if not, he would be sentenced to a term of life imprisonment.
The instructions omitted one critical point: if the jury did not unanimously find the existence of an aggravating factor, that factor was to be given no further consideration by any juror in the sentencing process. The poorly crafted special verdict sheet did nothing to ameliorate the absence of that instruction. The verdict sheet returned by the jury indicated that at least one juror balanced a rejected aggravating fac
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