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State v. Fortin2/3/2004
ma, and (13) broken noses; (14) in both crimes the victims were undressed from the waist down, (15) their undergarments were found inside their pants or shorts, (16) their shirts were left on but their bras removed, and (17) there was the absence of any fresh seminal fluid in or on their bodies. Hazelwood testified that he had never before seen all seventeen of these characteristics present in any crime other than those committed against Padilla and Gardner.
Finally, Hazelwood testified about ritualistic behaviors present in both crimes. He defined a ritual as a "repeated pattern of behavior" "comprised of those acts unnecessary to the commission of the crime" that "complement the underlying motivation of the crime." According to Hazelwood, rituals are "designed for one single purpose, psychosexual gratification." Hazelwood found "five ritualistic behaviors that were similar between the two crimes": (1) bite marks to the chins, (2) bite marks to the left breast, (3) injurious anal penetration, (4) facial battering, and (5) manual, frontal strangulation. Hazelwood concluded that he had not seen the same combination of ritualistic behaviors in his work over the course of his thirty year career. He also stated that he had never seen the particular combination of modus operandi and ritualistic behaviors "in any other crime and I've never heard of it and I've never read of it."
On September 6, 1995, a Middlesex County Grand Jury indicted Fortin for the murder of Melissa Padilla by his own conduct, N.J.S.A. 2C:11-3c(a)(1); felony murder, N.J.S.A. 2C:11- 3a (two counts); first-degree robbery, N.J.S.A. 2C:15-1; and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a. On March 18, 1997, the State announced its intention to seek the death penalty by filing a Notice of Aggravating Factors, alleging three such factors: the murder involved aggravated assault or torture, N.J.S.A. 2C:11-3c(4)(c); the murder was committed to escape apprehension for another offense, N.J.S.A. 2C:11-3c(4)(f); and the murder was committed during the commission of, or attempt to commit, or flight after committing robbery and sexual assault, N.J.S.A. 2C:11-3c(4)(g).
In a pre-trial hearing, the trial court ruled admissible pursuant to N.J.R.E. 404(b) the other-crime evidence of Fortin's sexual assault of Trooper Gardner and Hazelwood's expert testimony. State v. Fortin, 162 N.J. 517, 523-24 (2000) (Fortin I). In view of that ruling, the court granted defendant's motion to empanel separate juries for the guilt and penalty phases. On interlocutory appeal, the Appellate Division affirmed the 404(b) ruling, but concluded that Hazelwood's analysis was not sufficiently reliable to be admitted as expert testimony. Id. at 524-25. This Court granted leave to appeal and affirmed the Appellate Division with one significant modification. We concluded that Hazelwood could testify as "an expert in criminal investigative techniques," but could not "testify on the ultimate issue of whether the person that assaulted Trooper Gardner the same person that murdered Melissa Padilla." Id. at 528-29.
The guilt phase was tried to a jury between November 2 and December 7, 2000. The jury convicted Fortin of capital murder, aggravated sexual assault, first-degree robbery, and both counts of felony murder.
A separate jury was impaneled for the penalty trial, which was conducted between February 14 and February 26, 2001. That jury unanimously found two aggravating factors: aggravated assault and torture, and a murder committed during the commission of, or attempt to commit, or flight after committing robbery and sexual assault. The jury rejected the aggravating factor that the murder was committed for the purpose of
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