*1 PER CURIAM. affirmed, ex substantially for the reasons judgment Division, report Judge opinion of the
pressed in
Stern’s
N.J.Super.
STATE NEW FORTIN, CROSS-APPELLANT, R. DEFEN v. STEVEN AND CROSS-RESPONDENT. DANT-APPELLANT February Argued September 2000. 1999—Decided *2 II, Astore, argued the cause Deputy Public Defender Matthew (Ivelisse Torres, Public De- cross-respondent appellant Astore, Harkov, Assistant fender, attorney; D. Mr. Anderson Counsel, Obler, Designated Robert A. Deputy Public Defender and briefs). of counsel on the Kapsak, Assistant Prosecu- Ruggiero and Thomas J.
Nicholas (Glenn tors, respondent cross-appellant argued cause for Prosecutor, attorney). Berman, County Middlesex opinion delivered of the Court was *3 O’HERN, J. charged has the capital a case. The State
This is murder assault. There killing savage a in a sexual defendant with woman The first issue is interlocutory appeal. in issues this two ruling prosecution that the the Law Division erred whether on the issue of a similar crime Maine could introduce evidence 404(b). identity The offered of under N.J.R.E. State an in which defendant sexu- similarities between incident to show strangled trooper in Maine and the ally a assaulted and state Jersey. charged he New and murder for which sexual assault proposed expert whether the State’s The second issue concerns Hazelwood, witness, as an on qualified R. can be Robert signature aspects of crime under N.J.R.E. the ritualistic and “linkage analysis” of testify through the use he can and whether crime committed who the Maine person that the same committed Jersey. the murder in New
I. 11,1994, in the Avenel Padilla was murdered August On Melissa body boyfriend found her Township. Her Woodbridge of section drainage pipe sewer or large-diameter a concrete lying half inside along roadway. body Padilla’s was naked from the waist shirt, food, wearing down. She a Bags was but no bra. of a sandwich, partially earring, eaten a receipt, store debris includ- butts, ing cigarette bloody a and one-dollar bill were found scat- body. shorts, tered near the Padilla’s with her underwear still them, nearby inside on were found a shrub. pipe large
Inside concrete was a blood stain. The assailant brutally had beaten Padilla about her face and head. Her face bruised, was swollen and and her nose was broken. She had been by strangulation. killed manual autopsy revealed rectal tearing, breast, and bite marks on nipple, Padilla’s left left and the left side her chin. 3,1995, April
On Maine Trooper State Vicki upon Gardner came stopped vehicle on the shoulder of a road. She stopped to question Fortin, and assist the driver. Defendant Steven occupant vehicle, having told her that he was mechanical alcohol, noticing trouble. After smell Gardner administered sobriety series trooper tests. She summoned another complete testing radio to paperwork associated with the stop. sealing As tests, she was sobriety results of one of the grabbed defendant her the throat strangled her until she almost lost consciousness. Gardner later said that she realized at point one pants underpants that her had been removed and that Fortin sexually assaulting was her. As the back-up drew near, sped away defendant with drove, Gardner in the car. As he Fortin punched cursed and her in the jump face. Gardner tried to However, moving out of the car. she not did roll free of the car *4 dragged and along pavement was for a short time before she was freed from the vehicle. highway, Farther down the defendant car, lost control of the turned over it and fled from the scene on foot. He was apprehended later at a rest area about a mile from the accident. severely
Gardner’s face had been beaten and her nose was broken. She manually addition, had been strangled. In she had chin, been bitten on nipple, breast, the left left and left and she injuries vaginal penetration. and Gardner’s suffered from anal nylon underpants, and removed. her pants, bra had been When car, underpants running patrol her were pants were found her still inside them. Jersey in New to inform
Maine State Police contacted officers During charges pending against the New them the Fortin. had lived in Jersey investigation, police learned that Fortin Moreover, they of the Padilla murder. learned Avenel at the time girlfriend fought, his argued, separated had and from that Fortin evening by his of the murder. When later seen earlier on head, neck, chest. Police girlfriend, he had scratches on and wax bites of employed a dentist examine dental models and He concluded that the and the bite marks on Padilla. defendant defendant, by but on Padilla’s had been caused bite marks breast caused remaining bite marks “could” have been defendant. hearing Rule the State pre-trial
At a under Evidence report to introduce at trial sought to establish foundation Hazelwood, analysis of as an in the of Robert R. (a customary operation operandi criminal’s manner modus “M.O.”) crimes. Hazelwood had to as an and ritualistic referred becoming military years an police for eleven before served in the service, FBI he had agent. During years his last sixteen F.B.I. Unit, conducting research into its worked in Behavioral Science violent perpetrators and characteristics of the the motivations crimes, training of officers in the unit’s supervising the other agencies methodology, consulting with law enforcement all, country on crimes. Hazelwood had around the unsolved years in his in law personally investigated over 7000 crimes trial, employed he was At the time of the enforcement. FBI secret service Academy of retired Group, association formerly Behavioral Science Unit. worked for the agents who objected any to defendant’s evidence related Defense counsel testimony. proposed plea bargain in or Hazelwood’s Maine *5 Based on Jersey Hazelwood’s review of the Maine and New crimes, opemndi he first determined that the modus the crimes aspects demonstrated fifteen that were consistent in the Padilla (1) (2) “high and Gardner attacks: both crimes were risk” commit- (3) (4) impulsively against fully ted female victims who were both (5) age; mature in both crimes were against committed victims (6) path; who crossed the offender’s both victims were when alone (7) attacked; both took place adjacent assaults or on to well- (8) roadways; (9) during darkness; traveled both occurred no assault; (10) weapons during were used the both victim’s sus- (11) only injuries; tained blunt force place both assaults took at (12) confrontation; point both victims sustained trauma (13) primarily upper teeth; damage face with no both removed; (14) garments victims had their lower completely both shirts, (15) wearing victims free; were but their breasts were neither victim had seminal fluid or in body. on her In Hazel- report, explained wood’s as further at hearing, the Rule 104 he opercmdi noted modus change learned behavior which can learns, as adapts a criminal modifies and his behavior to fit a particular example situation. An rapist is a serial always who cuts glass windows with A changes cutter. criminal his modus (1) opemndi (2) goals: crime; to achieve three succeed (3) protect identity; his escape.1 facilitate his He concluded experience, he had never seen the cluster of M.O. characteristics exhibited the Padilla any and Gardner attacks in addition, other crime. both victims’ noses were broken and their underpants intertangled were found pants. with their outer crimes, Hazelwood then described the aspects “ritualistic” of the ie., way perpetrator which the gratification. seeks sexual opemndi, Unlike modus “ritual” aspects of a change crime do not and are linked to things. the criminal’s need to do certain These actions unnecessary crime, are often to commission but complement serve to underlying fantasy motivation or 1 Defense counsel observed that learner, Fortin must have been slow wryly having followed same M.O. after his victim had called for already back-up. *6 to common identified five behaviors in sexual crimes. He offender (2) chin; (1) the bites to to the lower these two crimes: bites (4) (3) breast; injurious penetration; brutal facial anal left lateral (frontal) (5) strangulation. Again, he testi- beating; and manual precise combination of seen that that he had never before fied analysis,” “linkage Hazelwood determined Using ritual behaviors. committing such two the of different offenders that likelihood highly improbable. explained He extremely unique crimes was investiga- procedure linkage analysis the used criminal is characteristics of M.O. and ritualistic when the concentration tors can that the high, investigator that the conclude in crimes is such person. perpetrator is the same the 3,1998, rulings: two one on the Law Division made
On June
the
evidence and
admissibility of the
other-crimes
N.J.R.E.
testimony under
admissibility
on the
of Hazelwood’s
other
702,
expert opin
generally governing the admission of
N.J.R.E.
instance,
rulings in
In
court set forth its
ions.
each
the
issue, applying the
opinion. On the first
comprehensive, written
(1992),
328,
Cofield,
On
Division affirmed the
404(b) ruling,
but reversed the admission
testimo
Hazelwood’s
Fortin,
ny.
N.J.Super.
State v.
It
held that
judgment”
there had been neither “clear error of
nor a
*7
justice”
Marrero,
“manifest denial of
as
required
State v.
148
469,
(1997),
N.J.
ruling by
reversal
the
appellate
594-95,
N.J.Super.
court. 318
at
On the
testimony,
of Hazelwood’s
Appellate
the
Divi-
analysis
sion found that
sufficiently
was not
reliable to be
609,
as expert
admitted
evidence. Id.
panel
at
525
”
sufficiently
expert’s testimony
reliable[.]’
could be
such that an
208,
Kelly, supra, 97 N.J. at
(quoting
at
A.2d 818
Id.
364).
that Hazelwood’s
Division observed
A.2d
essentially
If
testimony
“ultimate issue” evidence.
defendant
was
person
crime
the same
committed
committed the Maine
crimes,
testimony was
Jersey
then Hazelwood’s
and New
Maine
committed
nothing
“expert” opinion that Fortin had
more than an
600-01,
Although
A.2d 818.
Jersey crime.
Id. at
the New
training and
analysis
his
was based on
Hazelwood claimed that
(as
suspect ap
police officer
that a
experience
when a
testifies
drugs
demonstrated
particular package
drunk or a
peared
them),
Appellate Division rea
suspect’s intent
distribute
analysis
application of
actually involved an
behav
soned that his
(recall
called the
that Hazelwood’s F.B.I. unit was
ioral science
Unit).
such,
Id.
Defendant’s motion holding of Fortin’s involvement Appellate Division’s that evidence sought review was admissible. The State in the Maine assault expert report was holding that Hazelwood’s A.2d granted motions. 160 N.J. inadmissible. We both *8 (1999). 492
II. agree with the opinion, in its we For the reasons stated expert proposed that the judgment of the Division concerning linkage analysis lacks suffi testimony of Hazelwood perpetrator the same reliability to that scientific establish cient only Jersey add these crimes. We the Maine and New committed observations. linkage analysis rapist is to profile similar the Cavallo,
evidence that we considered
v.
inadmissible
State
508,
case,
N.J.
that
two defendants were
abduction,
rape,
private
trial,
convicted of
and
lewdness. At
sought
psychiatrist’s
testimony
defendants
to introduce
one
that
did not
psychological
rapist.
defendant
have the
traits of a
We
proponent
how a
considered
of scientific evidence that an accused
profile
personality
rapist
“general
lacks the
can
of
establish
acceptance”
theory
thereby
reliability.
of such a
and
its
at
Id.
Using
proof generally
Hazelwood’s fails to meet the standards for the testimony admission of that knowledge. relates to scientific Al though possesses expertise Hazelwood sufficient in his field and testimony beyond average juror, his intended the ken of the linkage field of analysis is not at a “state the art” such testimony sufficiently could Kelly, supra, reliable. See 97 N.J. (holding A.2d 364 requirements three for the admission (1) expert testimony: testimony the intended must concern a subject (2) beyond average juror; that is ken the field testified to must be at a state the art such an expert’s (3) reliable; sufficiently could be the witness must have expertise case, sufficient offer testimony). the intended In this test, we are concerned prong with second the scientific reliability Harvey, of the evidence. See State v. 151 N.J. (1997)(diseussing A.2d 596 proper testimony, use of scienti literature, fic judicial opinions general accep to determine tance of analysis polymarker dioxyribonucleic results of from DNA testing dot-intensity analysis). acid In a work that eo- he
527 authored, predator’s that quoted saying as a sexual Hazelwood is DNA, or aas unique fingerprints, his his is as as behavior Hazelwood, The R. Stephen Michaud and Robert snowflake. G. Do, Appellate Division noted 177-78 As the Evil that Men however, by Hazelwood and literature authored the authorities linkage analysis has attained that and others do not demonstrate reliability of have DNA of the art as to the scientific such state testing. “linkage analysis” is distinct explained,
Although, as Hazelwood killers is profiling, history profiling in serial from success Atlanta example, profiling in the Child psychological uneven. For Williams, Wayne even Murders case matched the defendant killing a child. The deaths though was never convicted he in ultimately those of two victims which he was convicted were hand, psychiatrists and twenties. Id. at 95. On the other their off-target suspects of the in the psychologists profile were their Strangler” “Boston case 1960s2.
Moreover, only linkage analysis is a which Hazelwood field Concerning consen- of his close associates are involved. and few “linkage in the communi- acceptance analysis” on scientific sus by in his ty, experts mentioned Hazelwood other respect, In there current or former this were either co-workers. way in duplicate peers no to test his theories and no which are Windmere, Co., Ins. 105 International results3. See Inc. v. Strangler was two the Boston actually "The predicted psychiatrists fact, One was a homosexual. of whom lived alone. of them each people, killings, was that two to the it determined people when Albert DeSalvo confessed wife See Alan W. lived with his and kids." were not involved and that DeSalvo Detection and the Scheflin, V. Canter and Laurence J. Alison’s Criminal David (1998) (book Psychology Clara 1297 n. 15 Crime, 38 L.Rev. Santa review). Division, believe that we also For the reasons noted jurisdictions which evidence has been admitted cases in other similar (Del.Supr.1991), distinguishable. State, 602 In Pennell v. A.2d Supreme which the three murders of Court of Delaware to review permitted charged all were committed they defendant was and express opinion *10 (1987) (holding
N.J.
testimony
may knowledge, when such or absence of mistake or accident identity preparation, plan, to a material issue in matters are relevant dispute. added].
[emphasis
general
Cofield, supra,
v.
“a rule of
State
we formulated
of
extrinsic evidence
in
to avoid the over-use of
application
order
338,
A.2d 230. For
N.J.
wrongs.”
605
other crimes or
admissible,
it must
we stated
other-crimes evidence
be
following
possess the
characteristics:
as relevant to a material
of the other crime must be admissible
1. The evidence
issue;
charged;
close in time to the offense
2.
It must be similar
kind and reasonably
convincing;
must be clear and
The evidence of the other crime
3.
outweighed
not
its
value of the evidence must
apparent
4. The probative
prejudice.
omitted.)]
(citations
[Id. at
605A.2d 230
338,
merely to a
relevant not
prior
of
bad acts must be
Evidence
disputed.
issue,
genuinely
to a material
issue that is
material
but
Ibid,
(1989)).
Stevens,
289,
In cases
] is most
understood
[the
to N.J.R.E.
easily
Evidence Rule 55
predecessor
signature
crimes
feature about the two
of
in which some distinct
crimes,
situations
jury
commit crime.
other than
allows the
to make
inference
propensity
clearly
would
used in a
crime
features of a silver pistol
prior
For
the distinctive
example,
in an unrelated minder trial to establish
Evidence Rule 55
be admissible under
or the
used.
weapon
either the identity
perpetrator
(citing
Long,
435,
575 A.2d
439,
v.
119 N.J.
[Id. at
use of force to the throat of a is rare of crime. person any that, Because of type signature, it is concluded such method is and tantamount to a so that it unique under the in Rule 55 as qualified of the issue of exception probative identity only. [Id at 500-01, 1317.] Appellate The disagreed, holding Division greater degree that a similarity charged between the crime uncharged and the crime is needed when the evidence of the other crime is introduced to mind, prove identity than when it is prove introduced to state of (citing Cleary, (rev. § E. p. McCormick on Evidence ed.1972)). agreed Division that had the other accomplished by crimes been “garrote the use of a ligature,” or might the other crimes signature. have borne a like The court held: *12 (for In order for evidence aof crime to be prior admissible on the issue of identity here)
which it was offered the criminal with which prior defendant activity identified must be so identical in method nearly as to earmark the crime as defendant’s handiwork. The conduct in must be unusual question and distinctive signature, so toas be like a and there must be of sufficient facts in both proof crimes to establish an unusual pattern. (citing [Id at 449 502-03, A.2d 1317. State v. 141 Sempsey, 317, 323, N.J.Super. (1976)) ]. Thus, in order to be on identity, admissible the issue the other peculiar, crimes must unique, bear or bizarre similarities. Reldan, panel the concluded:
531 the court that or factor relied on was an by rape The common assumption of force to the throat.’ ease was the ‘use by each accomplished attempted rape Assuming that factor immediately analysis. of this vanishes commonality upon being that such was involved we have no evidence purpose both cases tried rape, of these unfortunate women. We only use of force to the throats accomplished by were caused a method. by They know that their deaths were commonly unique stocking garroted use of the use of a female or pantyhose accompanied by both by fracturing was bone. Whether rape assailant’s hand the neck hyoid upon of a revolver, knife, force at the throat or threatened use attained use of is a matter of or threats of assault to their other simple physical person, weapon, speculation. [Id. 1317.] 449A.2d introducing evi suggest a stricter standard for Some sources operation a method of that prior of an unrelated act to show dence State, identity. Frensley v. 291 Ark. to establish See can be used (1987) Imwinkelreid, 268, 274, (citing 165 Edward J. S.W.2d (1984))4. Evidence, § to Other courts have Uncharged 3.10 3.12 important ways, comparable are several held when acts not go weight challenged evidence and discrepancies to the § admissibility. Evidence One to its Am.Jur.2d notes that in these courts source giving weighed against due measure to similarities, evenhandedly [disparities of the attributes. when Generally,
the number of each and to the distinctiveness conjunction of acts is involves the admitted, evidence of other comparison highly identifying of some distinctive several characteristics with presence fewer of them need be identifiers, The more distinctive the present quality. signature. demonstrate requisite and commentators have used Imwinkelried states: "The courts Professor methodology attrib- that the be various to describe the requirement expressions 'highly methodology ‘bizarre,’ charac- one criminal: The must utable only 'dramatic(ally)' 'distinguishing,' similar, 'earmark,' 'ex- teristic,’ 'distinctive,' 'identifying,' 'fingerprint,' ‘novel,’ 'handiwork,' a 'idiosyncratic,' ceptional,' 'singu- 'signature similar,’ 'set 'remarkably apart,' quality,' 'peculiar,' ‘parallel,’ 'strikingly 'un- trademark,’ ‘uncommon,’ or lar,' similar,’ 'a veritable 'unique,' ” among includes, Imwinkelried also many examples usual.' Professor given, illustrate in his view the some required hypothetical examples crossbow,” "criminals who "the bandit with a silver standard of uniqueness: headdress of limerick or who wear the ceremonial humorous particular repeat wearing knight’s [Im- the medieval helmet." chief,” an Indian and a “robber (footnotes omitted) (1984) § ]. at 26-31 winkelried, 3.12 supra
532
(1
(citing
Cir.1987))
st
Ingraham,
(holding
[Ibid,
United States v.
ble in prosecution call in interstate com telephone merce).] We are satisfied that the standard for similarities in other- crimes evidence Sempsey enunciated in in later Reldan con appropriate. tinues to be In order for prior evidence of a crime to identity, admissible on the issue of criminal with prior which defendant is identified activity must be so nearly identical method as to earmark the crime as defendant’s handiwork. The signature, conduct in must be unusual and question distinctive so as to be Micea and there must be of sufficient facts both crimes proof to establish an unusual pattern. (citing [Reldan, 185 at 502, A.2d 1317 N.J.Super. Sempsey, N.J.Super. 212) ].
Y.
law, however,
To state the
is easier than
apply
the law.
meaning
of such words is not self-revealing. We are not so
certain that
by Hazelwood,
the M.O. factors cited
such as that
both victims were mature females and were attacked while alone
time,
night
(Defendant
and at
pattern.”
demonstrate an “unusual
argues
crimes.)
that there are sixteen differences between the
It
is on
question
this
pattern”
an “unusual
testimony
Hazelwood
helpful.
would be
example,
For
if the witness can
from a reliable data base offer evidence that a combination of bite
breast,
marks
chin,
on the
bite marks on the
tearing
and rectal
during
inflicted
unique
sexual attack is
experience
investigating
crimes,
sexual assault
that evidence
help
could
establish an
pattern.”
Zola,
“unusual
See State v.
112 N.J.
(1988)
(describing
compilation
witness’s
of database
review);
also,
available for defendant to
see
James Alan Fox and
Levin, Multiple
Jack
Homicide: Patterns
Serial and Mass
Murder,
(1998)
23 Crime & Just.
(displaying incident
use,
weapon
victim-offender relationship, and cir
characteristics —
cases).
type
homicide
in thousands of
Such
cumstance —
help
would
a court make an initial determination of
*14
would, presented
and
if
whether to admit the other-crime evidence
trial,
jury
whether the crimes
at
better enable a
to understand
signature”
so as to be like a
such
were “unusual and distinctive
the crimes as the
that an inference could be drawn to “earmark
court,
initially
person.”
of
It is
for the
handiwork
the same
however,
ultimately
jury,
whether that infer
for the
to determine
guilt may
v.
concerning the ultimate issue of
be drawn. State
ence
(1993).
fact,
J.Q.,
554, 556,
point
familiarity pattern injuries rape with the inflicted eases.
VI.
Finally,
repeat
importance
carefully
limiting
we
of a
crafted
jury
explain
purpose
instruction that will
to the
the limited
being
which the other-crimes evidence is
offered.
In State v.
Stevens,
explained
inherently prejudicial
we
that because “the
jury’s ability
nature of
on
such evidence easts doubt
to follow
instruction,”
precise limiting
even the most
115 N.J. at
carefully
A .2d
the court’s instruction “should be formulated
explain precisely
permitted
prohibited purposes
*15
evidence, with sufficient reference to the factual
context
jury
comprehend
appreciate
case to enable the
the fine
required
distinction to which it is
to adhere.” Id. at
emphasized
833.
thus
generally
We
that a court should not state
55],
the content of
[then
N.J.R.E.
Evidence Rule
but should
specifically
purposes
may
“state
for which the evidence
be
and,
necessary
jury’s
considered
to the extent
for the
understand
ing, the issues on which such evidence is not to be considered.”
Hence,
required
Id. at
Members of the Jury: concerning You are about to hear evidence State criminal act presented by alleged in Maine the State to have been committed the defendant. I caution being that this evidence is not offered to show that he is a bad but you person, rather for a limited very purpose. offering The this evidence is to purpose convince attempt you crime committed in Maine and the crime committed here are so similar and so In the two crimes. infer that the same committed that you may person unique being of the who offered to the identity person the evidence is short, prove in on which will deliberate. the crime New Jersey you committed an inference that the so similar as to warrant If the two crimes not to be find you disregard must them, entirely. committed then same you person have been shown to the defendant may are not to infer that because all, Above you is a man with a crime that he bad elsewhere, propensity committed another have logic inference to be made. nor law for crime. Neither permit jury. charge in to the included instructions should be Similar (These are, course, request only suggested instructions. We any Charges to recommend on Model Criminal the Committee conditions, these we changes charge.)- in such a With needed Hazelwood, with broad analyst such as that a crime-scene believe crimes, assist a court and a investigating similar can experience unique such a understanding the crimes bear jury in whether perpetrator of may drawn that the signature that an inference person. two crimes was the same matter is affirmed. The judgment Division proceedings in for further to the Law Division is remanded opinion. with this accordance J.,
LONG, dissenting part. concurring part and
I 3,1995, Trooper Vicki Gardner was April while Maine State On summons, R. Fortin attacked and Steven writing him a defendant her, strangling into unconsciousness. sexually her assaulted nose, face, her bit her neck and process, her broke he battered *16 facts that the injuries. Those are the and inflicted anal breast 404(b) to Fortin’s seeks to elicit under N.J.R.E. establish State majority in 1994. The murderer of Melissa Padilla identity as the instruction, that, limiting such evidence proper today holds with try in this jury that will Fortin fairly paraded before the can respectfully disagree. I capital case. evidence, signature to unique no which bears
After it hears use, me it is inconceivable to jury propensity from its deflect a as to whether jury render an honest verdict that a will be able to jurors Fortin killed Melissa Padilla. That is not because the conscientious, and, they not sober and but because are human realistically, limiting will be unable to abide instruction. Brunson, state of affairs State v. recognized
We
in
132 N.J.
377, 391,
(1993),
To be there are differences between N.J.R.E. uses instance, impeachment probative uses. For value of the judged greater latter, former is impeachment than that of the may 404(b) occur with sanitization while most N.J.R.E. uses place cannot take without prior some of the details of the crime being Nevertheless, potential juror revealed. misuse is the regardless context, same and all the expressed concerns we (which inadequacy jury about the instructions in Brunson we Cofield, decided after State v. (1992)) 127 N.J. 404(b) a N.J.R.E. exist and remain unresolved proceeding. simply There is jurors no warrant to conclude that who are so incapable following impeachment the court’s instructions very context that the name of prior whispered crime cannot be presence, particularly their can use grotesque details of this solely N.J.R.E. crime for a limited purpose.
1Former Rule 55. *17 suggest every prior that evidence of crime would That is not to prejudice example, For if ad- so defendant. were duced to show that a defendant’s motive for murder was to cover embezzlement, effectively up jury the court could instruct the not to as an indication that use embezzlement defendant was predisposed that such an to homicide. The reason instruction would be effective is that it would not be counterintuitive. (the contrary, particular it this
On the is crime details of which necessary any identity analysis satisfactorily and cannot be sanitized) impossible that makes it for an effective instruction to Indeed, import any be crafted. instruction would necessari- beat, ly jury should not use the fact that Fortin strangled, Trooper bit and sodomized Gardner to conclude either person likely again. that he is bad or that he is to do so reason that instruction would be ineffective is obvious: it flies in experience. the face of human Gardner, jury Fortin to Trooper
When the hears what did there declaring guilt exists a risk that it will be lured into substantial grounds proof on other than the State’s of each element of the doubt; Jersey beyond punish New offense a reasonable that it will “body opposed Fortin for his of crime” as to the murder of Melissa Padilla; him prophylactic or that it will convict on a basis—unsure guilt, danger upon of his convinced that he is a to others but based ease, capital the Maine crime. In this murder I would not take that risk.
II It is well-established that N.J.R.E. evidence should not inflammatory testimony less on the be admitted where available Oliver, (1993) 141, 151, issue. State v. 133 N.J. 627 A.2d Stevens, 833). supra, 115 N.J. (citing Under that analysis, the details of Fortin’s crime Maine should have been other, link prejudicial excluded because there was less evidence to Jersey Fortin to the New crime. That evidence included testimo murder, night ny by girlfriend Fortin’s that on the he *18 head, chest; returned home with scratches on his neck and testi- mony that cigarette Fortin’s DNA was found on a butt near and, body; importantly, Melissa Padilla’s expert testimony most of Levine, Dr. odontologist, concluding Lowell a forensic that the bite mark on by Melissa Padilla’s breast was made Fortin and that the body other bite marks on her were consistent with Fortin’s bring dentition. Prosecutors quantum cases based on that every single day. If jury, justify believed it would person the conclusion that Fortin was the who killed Melissa Padilla.
Here, essentially the trial court held that jury because the disregard “could” the State’s and circumstantial evidence of identity, highly inflammatory evidence of the Maine crime was admissible on Despite that issue. judge deference that the accorded, jury might persuaded fact that a not be cannot possibly appropriate were, be the standard. If it open it would piling the door to prejudicial on of inflammatory and other evidence, contrary Stevens, crimes to Oliver and in practically where, every Certainly, here, case. as there was non-inflammato- ry evidence sufficient to judgment withstand a motion for on the issue, identity legitimate there could be no subject reason to 404(b) prejudice Fortin to the irremediable of the N.J.R.E. evi- clearly outweighed dence that probative its value.
Ill Separate apart my objection from overall to the admission nullify this evidence because it will possibility trial, of a fair disagree I also majority with the to the extent it has. concluded, Division, as did the that the Maine crime evidence is admissible in expert. the absence of an
There is a natural tendency jurors part inevitable on the proof to view of other justifying crimes as irrespec condemnation tive of the guilt present defendant’s charge. Wigmore 1 nd(2 ed.1940). § Evid. 194 at 646 recognizes N.J.R.E. tendency by codifying Jersey’s New long-standing exclusion of Kociolek, predisposition, v. prior crimes evidence show State 400, 418-20, (1957), allowing prove it to N.J. 129 A.2d but another fact issue. simultaneously prior may highly
Because crimes evidence Stevens, probative extremely prejudicial, supra, v. State four-pronged developed test has N.J. been Cofield, as a screen for the admission of such evidence. State v. 328, 338, admitted, 127 N.J. 605 A .2d230 To be the other issue; temporally crime must be relevant to a fact similar and defendant; proximate; probative committed and more than similarity prejudicial. Although generally Ibid. declares a Cofield requirement, similarity except identity is not essential where is at issue.2
Although
prior
the admission of all
crimes evidence is somewhat
problematic,
prior
similar
crimes
that
is offered for
identity
greatest
poses the
threat
to a fair trial because of the
Reldan,
494,
N.J.Super.
enhanced hazard of misuse. State v.
185
501,
denied,
543,
(App.Div.),
91 N.J.
453 A.2d
certif.
(1982).
higher
for its
862
There is thus a
standard
admission.
(5th
1036,
Cir.1977),
Myers,
v.
550 F.2d
1045-46
United States
(1978).
denied,
847,
147,
149
cert.
439 U.S.
99 S.Ct.
58 L.Ed.2d
similar,
only
have been
prior
Such
crimes must not
be
but must
Reldan, supra,
extraordinary
a novel or
means.
committed
words,
502-03,
N.J.Super.
In other
two
185
R. v. Morris. delivered the of the case, that 1970 L.J. this the Court of In his stated to invoke theory, Appeal. opinion, Lordship charged uncharged must show that the and crimes were committed by prosecutor two “one and the same man.” That connotes the propositions expression (1) must both crimes were committed with the “same” or establish: prosecutor (2) strikingly methodology; methodology is so that both similar and unique methodologies to “one” criminal. The must resemble each crimes can be attributed other so there is a reasonable deduction that the same person closely 2 State v. common scheme and cases will also involve similarity. Many plan (App.Div.1997). Carswell, 303 462, 470-71, 171 N.J.Super.
540 methodology methodology crimes. The must be peculiar; committed the two must The inference identity
must “set perpetrator. apart” than criminal’s imitation of another of the two crimes rather one perpetrator criminal must the defendant’s criminal. The modus betray personal operandi identity. (1999).] Uncharged 3:10, Misconduct Evidence 3:12 [ 1 Imwinkelried, Edward J. prongs identity of an Similarity uniqueness are distinct identity if one of analysis. Evidence should not be admitted does not lacking. The brute number of similarities prongs is 1045; People uniqueness. Myers, supra, 550 F.2d at v. establish (1985); Rivera, Cal.Rptr. P.2d 364 221 710 Cal.3d Procedure, Graham, Wright K. Federal Practice & Evid. C. & (1978). Uniqueness depends § on whether the characteris sufficiently idiosyncratic permit an infer tics of the crime are proof. 2 B. pattern purposes for the Jack Weinstein & ence ¶ Margaret Berger, A. Evidence at 404-129- 414[16] Weinstein’s signature requirement for the is obvious: mere The reason similarity only points predisposition. to an interdicted use— upgrades provides unique signature is what the evidence beyond fairly jury predisposition with a basis to look attribute criminal, establishing the valid both crimes to one thus N.J.R.E. identity. Although rendering lip service to the use of identity analysis, majority essentially duality of an here has prongs ruling that an collapsed the two into one mandatory. not permissible and juror Even if a reasonable could conclude that the Maine and *20 laundry Jersey prosecutor’s New crimes are similar based on the gross question uniqueness list of fifteen similarities 3—the is prong Even the is as the Division noted: similarity problematic Appellate is an to link behavior in two under circumstances Here there crimes attempt starting similarities, where there are as differences as there are with many charged the murder of the fact defendant was not with Trooper attempted age, weight height race, Gardner. There are differences in the of the significant a difference in the status of each victim. victims. There is dangerous a Gardner is a officer and Trooper professional police potentially crimes is not a case where two complicated. This much more or masks of wearing knights’ helmets medieval were committed circumstances, juror a could reasonable presidents. such dead Here, according the uniqueness factor. easily parse out the (and Hazelwood), is the signature behavior theory prosecutor’s bites; injuries; manual anal and facial of the distribution expert’s opinion, there is proper a strangulation. Without frontal factors; to make of these jury to know what simply way no for the Fortin they handprint that sets are particularly, more whether crimes, they or whether perpetrator both apart as of most violent sex offenses. merely meaningless permutations Appellate trial court and the similarity, as both the Unlike ordinary held, a matter within the ken this is not Division proffer prosecutor’s is underscored juror. That that is so surely not have proffer That would place. first of an vic if, had dressed the example, perpetrators both occurred Those amaryllis at the scene. clothing or left an tims in bizarre nothing about signatures. There is obvious obvious examples are jury simply cannot know expert, a In the absence of an this case. proof, the unique handprint present. Without whether necessary for an probative lacks the enhanced value 502-03, Reldan, N.J.Super. at 449 A.2d supra, 185 identity use. 317, 323, 1317; N.J.Super. 358 A.2d Sempsey, 141 State v. denied, A.2d 677 74 N.J. (App.Div.1976), certif. basis, Divi reject portion I would On that in the crime evidence disposition admitting the Maine sion’s expert. of an absence that, accord- said, reliability defects my that the
That it is view majority, Hazel- preclude Appellate Division and ing to the against,particularly when defen- target a crime for someone perpetrate known to the assault, that his was made knew, to the identity dant prior are also differences Gardner. There state dispatcher by Trooper police vaginally assaulted, Gardner was anally of assault. Trooper type vaginally. not assaulted but while Padilla was anally, 818.] [Fortin, 318 N.J.Super. supra, *21 testifying wood from as a expert linkage, scientific on equally applicable proffer uniqueness to his testimony. Linkage analy- procedure sis is the used criminal investigators when the operandi concentration of modus and ritualistic characteristics in high, crimes is such that investigator can conclude that the perpetrator person. is the same Uniqueness testimony linkage is analysis under another name. It is no more reliable when Hazel- wood investigator testifies as a crime than when he does so as an “expert” sum, in ritualistic behavior. I while would not allow the evidence of the Maine crime to be admitted an expert, without agree I Appellate with the Division that Hazelwood does not qualify.
IV I would reverse the determination of Appellate Division that the details of the Maine crime are admissible under N.J.R.E. 404(b). majority Because the has determined that that evidence admitted, can be I would hold that an necessary uniqueness. establish I would affirm Division’s conclusion that Hazelwood qualify does not as such an expert.
For and remandment —Chief Justice PORITZ and affirmance O’HERN, GARIBALDI, Justices STEIN, COLEMAN and VERNIERO —6.
Concurring part, dissenting part LONG —1. —Justice