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State v. Fortin2/3/2004
rtin had bitten Gardner on the breast during the assault. On April 24, 1995, two Woodbridge detectives traveled to Skowhegan, Maine to interview Fortin. Fortin waived his Miranda rights and spoke with the detectives for two and one-half hours. He indicated that he had lived in Woodbridge at the time of the Padilla murder and acknowledged reading about it in the newspaper. When confronted with the evidence of similar bite marks in the two cases, Fortin said, "If the evidence shows that I did it it would probably be the reason and I must have been involved." He continued, "I'm not admitting anything. If the proof shows I did then I must have done it. I don't recall." In response to repeated questions concerning details of the Padilla murder, he stated that he had no recollection.
The physical evidence gathered did not rule in or out Fortin's involvement in the murder. No identifiable fingerprints, other than Padilla's, were found. Fortin was not the source of any hairs recovered, and a pubic hair found on Padilla did not match Fortin, Fernandez, or Padilla. Testing also excluded Fortin as a source of the blood found on the dollar bill and was inconclusive as to saliva found on a cigarette butt. DNA testing of specimens at the scene either excluded Fortin as a source or proved inconclusive. The spermatozoa recovered from Padilla's vagina could not be interpreted reliably because of insufficient DNA for the necessary controls in the testing procedures; the uncertified results, too, were inconclusive.
Dr. Lowell Levine, the State's forensic expert in odontology, compared photographs of the marks on Padilla's chin and breast to molds of Fortin's teeth. Levine concluded to a "high degree of probability" that Fortin made the bite marks found on Padilla's chest. Levine, however, conjectured that Fortin "could have" been responsible for the bite mark on Padilla's chin. Dr. Norman Sperber, the defense's forensic odontologist, stated that bite-mark comparison is an imprecise science, far less reliable than DNA analysis and identification through dental records. Sperber opined that the injuries to Padilla's breast and chin probably were not bite marks and, if they were, they could not be attributed to Fortin.
The State introduced Robert R. Hazelwood, a retired FBI agent and expert in violent sexual crimes, to catalogue the similarities between the crimes committed against Trooper Gardner and Padilla. The purpose of Hazelwood's testimony was to show that the manner in which the two crimes were committed was so unique that only one person committed both crimes. That Fortin had sexually assaulted Trooper Gardner was not disputed.
At trial, Hazelwood focused on motive, modus operandi, and signs of ritual, finding unique similarities between the two crimes on all three grounds. First, Hazelwood concluded that both crimes were motivated by anger. In support of that conclusion, Hazelwood cited the evidence that both Padilla and Gardner were severely beaten, both were bitten and manually strangled, and both suffered serious anal injuries.
Second, Hazelwood found seventeen similarities in the modus operandi of the two crimes. The similarities were: (1) both crimes were "high risk" for detection, (2) committed impulsively, (3) against female victims, (4) of the same age range (25-34); (5) both were crimes of opportunity against victims who crossed the offender's path, (6) adjacent to or on well-traveled roadways, (7) at night, (8) while the victims were alone, and (9) the attacks occurred at the same location as the initial confrontation; (10) both crimes involved the use of blunt force consistent with blows from fists, (11) without weapons, (12) that caused primarily facial trau
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