*1 JERSEY, PLAINTIFF-APPELLANT, STATE OF NEW v. STEVEN FORTIN, R. DEFENDANT-RESPONDENT. Argued September 2006 Decided March 2007. *4 Hulett, Prosecutor, Nancy argued A Assistant the cause for (Bruce Prosecutor, appellant Kaplan, County J. Middlesex attor- ney). Priarone, Counsel, Designated argued A
Michael the cause for (Yvonne Defender, respondent Segars, attorney; Smith Public Waldor, Cathy Designated Counsel, Mr. Priarone and L. brief). counsel and on the *5 opinion ALBIN the of the Court.
Justice delivered capital Fortin for the murder In retrial of defendant Steven the Padilla, guilt prove intends to defendant’s of Melissa State way that the crime such a distinctive showing that he committed “signature.” to may his The State seeks it be said bear 404(b) pursuant to N.J.R.E. “other crimes” evidence introduce as Gardner, Trooper assault of Maine State Vicki defendant’s sexual strangled, on vaginally anally penetrated, and bit whom he and argues peculiar that and chin. The State both the left breast the left and chin found on Padilla’s battered bite marks to breast body, injuries penetration inflicted anal and with from combined a strangulation, signature akin to identified manual were jurors, Padilla’s killer. The State submits that defendant as relying experience general knowledge, need their common and on testimony injuries expert trademark no conclude bite singular Padilla author— both the Gardner and cases had conclusion, offers results To bolster that the State defendant. Apprehension computer search of FBI’s Violent Criminal (ViCAP), Program reported database violent crimes a national yielded strikingly with similar features —the three crimes assaults, Padilla and a sexual crime committed Gardner and sexual Washington State. motions, judge ruling pretrial In the motion held that determining whether and Padilla sexual assaults are the Gardner signature beyond general knowledge experience crimes is ordinary juror requires expert testimony to of an and therefore explain uniquely together. two crimes those features that tie the present judge The the State could determined that odontologist a medical and forensic examiner uniqueness of the bite marks suffered both establish the victims, experts produce provided those a reliable database support opinions. regard Trooper attack on their to the With Gardner, signature-crime judge motion to the limited State finding that details of the assault evidence—the bite other marks — Last, unnecessarily inflammatory. irrelevant would be judge concluded that because law inserted enforcement authorities *6 solely the details the Maine crime into the ViCAP database for purpose making an inexorable link between the Gardner crimes, and Padilla the ViCAP search results would not admis- be judge database, motion sible. The did allow the of the use ViCAP crime, supporting attacking absent the Maine as a means for reliability expert testimony. granted appeal We the State’s motion for leave to and now judge’s ruling affirm following the motion with the modifications. permitted present The State must be to the bite-mark evidence context and therefore material details sexual Gardner assault, Testimony describing assault cannot be censored. however, subject jury specific explaining instructions 404(b). limited use “other crimes” evidence under N.J.R.E. Finally, experts because the State’s have not relied on the ViCAP opinions, form database to their ViCAP database should be opinions. admissible bolster those
I.
A. only necessary facts for a We recount those resolution of the 3, 1995, evening issues before us.1 On of April Trooper Vicki stopped patrol Gardner her car to assist driver of a vehicle parked driver, on the shoulder of Interstate 95 Maine. The Fortin, Trooper defendant Steven smelled of alcohol. Gardner sobriety administered tests Fortin and concluded he was placed patrol intoxicated. With defendant in the front car’s her, passenger seat headquarters beside Gardner radioed back-up began completing paperwork and related to the motor vehicle summonses she intended issue to defendant. forty-five passage trooper
After the and back-up minutes no in sight, suggested just defendant that Gardner release him and are The facts based on the record at defendant’s 2000 trial. developed declined, grabbed Gardner way. defendant
go
After she
on her
causing
doorpost,
against the
her head
throat and slammed
During the course of the
temporarily to lose consciousness.
her
ensued,
and
strangled
bat-
defendant
Gardner
attack that
vicious
nose,
vaginally
penetrated her
breaking her
and
her face
tered
chin,
left
anally
Defendant also bit Gardner’s
with his hand.
aWhen
of her left breast.2
nipple, and the lateral side
left
free,
arrived,
managed to break
finally
trooper
appre-
was
patrol vehicle.3 Defendant
sped-off with her
defendant
robbery, aggravated
kidnapping,
pled guilty to
and later
hended
assault,
officer,
gross
assault,
attempted
sexual
on an
assault
contact,
operation of a motor vehicle
and criminal
unlawful sexual
Fortin,
N.J.Super.
v.
of intoxicants. State
under the influence
aff'd, 162 N.J.
745 A.2d
(App.Div.1999),
(2000) (Fortin I)-4
*7
Gardner,
Maine State Police contacted
assault on
the
After the
Jersey,
Woodbridge Township,
where defendant
police in
New
the
time,
police
had
formerly
local
officers
resided. At the
had
investigation
the murder of Melissa
reached a dead end
their
body
naked from the waist
ravaged
was discovered
Padilla whose
Woodbridge
Town-
pipe alongside Route 1
in a concrete
down
11, 1994,
August
had been
evening of
Padilla
ship.
the
On
head, anally penetrated, and
brutally
the face and
beaten about
strangled
marks were found
her
apparently
to death. Bite
chin,
police
nipple,
The
determined
left
and left breast.
shortly
leaving a
sexually
after
assaulted and killed
Padilla was
2 During
the details of the
Gardner described
her trial
testimony, Trooper
Gardner,
the
Ricci,
Lawrence
who examined
explained
assault. Dr.
Trooper
injuries.
nature of her
narrative.
It was
from the
add
last statement
kept
We
this
complete
outweighed
prejudicial
jury
effect.
value was
its
because its minimal
probative
(App.Div.1999),
The learned that defendant had been at a different Quick purchase motel near the Chek and had made a there the murder, day of evening the murder. The Padilla’s defendant Archer, fought girlfriend, during had with his Dawn which he her, violently ground, choked threw her to the and kicked her. days later, When saw two had Archer next defendant he scratches eye multiple under his left and on his neck and scratches arms. crimes, light parallels In between the Gardner and Padilla Woodbridge police detectives traveled to Maine to interview de- During questioning, fendant. defendant admitted that he had newspaper. read about Padilla murder Confronted with similarities between Gardner sexual assault the Padil- murder, responded la “[i]f defendant shows that evidence I probably did it it reason I would be the and must have been admitting anything. proof involved.” “I’m If He added: shows I I did then must have done it. I don’t recall.” In murder, response concerning questioning to further Padilla police defendant stated he had no recollection. did not The any uncover forensic evidence that linked defendant to the Padilla murder. County grand September jury
On Middlesex murder, 2C:11-3a(l),(2); N.J.S.A. capital indicted defendant murder, 2C:11-3a(3); N.J.S.A. felony first-degree robbery, 2C:15-1; assault, N.J.S.A. aggravated first-degree sexual trial, through N.J.S.A. 2C:14-2a. At retired FBI Hazelwood, agent analysis expert in Robert H. modus *8 operandi5 crimes,6 sought and ritualistic the State to introduce the 5 operandi may change Modus refers to the criminal's learned behavior that as I, adapts particular a criminal or to a modifies his behavior situation. Fortin 522, supra, 745 162 N.J. at A.2d 509. 6 ways perpetrator aspects Ritualistic of a crime refer in to the which the seeks gratification. change. operandi, aspects sexual Unlike modus these do not Ibid. signature-crime pursuant sexual assault as evidence
Gardner
404(b).
I, supra, we
that Hazel-
In Fortin
determined
N.J.R.E.
wood,
investigative techniques,
in
could
criminal
crimes, provided he did
testify to
similarities between
guilt
or innocence of the defen
conclusions about
“draw[]
528,
162 N.J.
B. retrial, again On the State seeks to introduce the Gardner evidence, signature-crime but sexual assault this time through testimony investigative profiler expert of an crime pretrial argued hearing, such as Hazelwood. At a that it State expert testimony was entitled to admit the Maine crime without or, alternatively, testimony through bite-comparison of medical expert odontologist through examiner and an as well as search hearing results of the FBFs database. At a to determine ViCAP 404(b) State, admissibility by evidence offered judge testimony expert motion took from various witnesses. Dr. Ricci, emergency pediatrics, an Lawrence medicine and testified that both Padilla and suffered traumatic anal injuries, injuries any say but could not more those were injuries distinctive than similar inflicted on other sexual assault examiner, County victims. The Middlesex medical Dr. Geetha Natarajan, reported autopsy, of the results Padilla’s noted twenty-five years autopsies conducting that in more than her for the State she could not remember another ease which the victim marks on the chin. suffered bite pretrial Fortin I and trial
The State also offered the Levine, odontologist. that in of Dr. Lowell Dr. Levine stated thirty years experience, his he had never seen the combi- over chin, nipple, marks on the the left and the left breast nation of bite appeared on both Gardner’s and Padilla’s bodies. He also opinion high degree probability” that offered his to “a the bite mark on Padilla’s left breast was caused defendant’s teeth. testimony, Supervisory Special Agent Mark Safarik In his FBI Apprehension Program, more com- described the Criminal Violent national monly known as Created ViCAP is a ViCAP. (homi- 167,000 reported approximately violent crimes database cides, homicides, attempted kidnappings) maintained Quantico, Virginia. represents FBI in The database about three the violent crimes committed since percent to seven ViCAP’s voluntary. inception. Participation in nationwide is Law ViCAP agencies complete enforcement form ViCAP answer questions numerous about the crime for inclusion in the national database. *10 general purpose identify
The “is to ViCAP similarities in through computer isolating crimes” a particular search character- istics in Through the commission of the offense. computer such a criteria, focusing specific search on crime one law enforcement agency cooperate can contact agency working with another on a “similar According Agent case with similar characteristics.” Safarik, system looking the ‘ViCAP for ... solved or unsolved homicides, homicides, attempted cases, missing persons kidnap- pings, strong where there is a possibility play, of foul or unidenti- bodies, fied dead suspected where the manner of death is to be period, homicide.”8 In appear the relevant time it does not that sexual kidnappings assaults unrelated to or homicides and at- tempted targeted homicides group input were a for into the system. ViCAP
Law completed enforcement authorities form for ViCAP timely Padilla murder in a manner for inclusion in the national Police, however, database. The Maine complete State did not form ViCAP for the 1995 Gardner sexual assault. In preparation trial, for requested defendant’s the State Agent Safarik submit a ViCAP form for the Gardner case. He did so with analyst the assistance of a ViCAP and the Maine State Police. Agent Safarik then ran a system series of searches the ViCAP hearing At the below the State admitted into evidence a ViCAP form. sample The cover materials attached to the form instruct that the ViCAP Crime sample Form collects information on Analysis Report homicides, homicides/attempted missing persons/kidnappings, and unidentified dead bodies. Under "Case following categories form lists the Type," that can be sample checked off: missing murder, murder, unidentified dead attempted and other. body, person, The ViCAP form submitted the Middlesex Prosecutor at the County time of Padilla’s murder likewise did not contain a check-mark box for sexual assaults. hearing, In a Agent however, report prepared Safarik wrote that in prior designed addition to the crimes to, he testified the ViCAP database is to collect stranger, sexual assault cases those committed "especially or are known or to be of a series.” suspected part specific criteria common to both the Padilla and Gardner crimes, assault, strangulation, such as manual sexual and bite yielded only marks on the face and The chest. searches three murder, assault, cases—the Padilla the Gardner and a 1988 sexual Washington argued case from State. The State that the searches the similarities Padilla and showed between the signature. Significantly, crimes were so unusual as constitute a Agent could Safarik indicated both the ViCAP database privacy released to counsel concerns and be defense because exempt that it was from the Freedom of Information Act. presented of Dr. Donald Defendant the trial Norman Diego Sperber,9 the Chief Forensic Dentist in the San Medical Sperber, expert odontologist, Dr. had Examiner’s Office. expressed “doubts” whether the marks on Padilla’s breast and chin in fact He had indicated that even were bite marks. also marks, injuries they assuming the to the breast and chin were bite *11 were not caused defendant’s teeth. Godwin, investiga-
Dr. Grover who holds a doctorate criminal psychology, expert tive testified for the defense as an the questioned of statistical evaluation crime scenes. Dr. Godwin the reliability comparison of the results of ViCAP based on what he perceived entering into to be “a bias the variables” the database in this ease. judge any comparative analysis of
The motion ruled that the two purpose identifying signature sexual assaults for the of them as beyond ordinary juror crimes the ken of an and that the was “provide[] independent support of a ViCAP database did theory uniqueness” of the two crimes. She therefore between admissibility expert of conditioned the the Maine crime testi- mony making link two crimes. the between the 404(b) light presentation hearing,
In of the State’s at the the only testimony judge of Dr. motion found that the bite-mark testimony during original By Sperber's Dr. was taken defendant's trial. hearings. agreement parties, testimony adopted part was the 2005 his of
Levine,
Natarajan,
odontologist,
and Dr.
the medical examin-
er, “suggest[ed]
unique
any group
injuries
coexistence
factors between the Maine offense and instant homicide.” Based
testimony,
judge
on their
the motion
indicated that a reasonable
injuries
jury
unique,
could conclude “the bite
be similar and
they
signature.” Conversely,
judge
such that
amount to a
injuries
reasoned that the other
inflicted on Gardner and Padilla
were common to sexual assault offenses and did “little to add to
showing
signature”
presen-
[a]
crime. She determined
gruesome injuries
prejudice
tation of
would create undue
likely
improper purpose
establishing
for
be used
“Mr.
propensity
Fortin’s
to brutal attacks.”
Relying
decision,
judge required
on our Fortin II
motion
production
qualifier”
“the
of a reliable database as an essential
Natarajan.
of Dr. Levine and Dr.
See
II,
supra,
Fortin
N.J.
The motion also maintained that the ViCAP database might applicability instance, have at trial. For “[a]bsent the crime, insertion of the Maine [she found] that the ViCAP database upon may rely would be a reliable database which the [S]tate expert opinions.” test regard to the With Gardner ViCAP *12 form, prepared litigation purposes she observed that it was for provide and generation therefore an “failfed] unbiased of data.” Alternatively, suggested she that “if the ViCAP database could be report uniqueness crafted to on the of [the human bite mark] alone,” helpful criteria the proving database would then be “a useful, signature example, like crime.” To be for the ViCAP any, many, if cases involve how “to determine analysis would have noted, however, that the judge The chin.” marks on the bite to the chin. for marks a box bite do not contain forms ViCAP for motion Thereafter, denied the State’s Appellate Division the filed then judge’s rulings. The State motion appeal the leave oppose did not Defendant interlocutory appeal to this Court. his own with either cross-motion of or file a motion State’s appeal and granted leave to or this Court. We Appellate Division moving papers. in its the State issues raised now decide the II. three errors. judge committed argues that the motion
The State signature-crime of the First, introduction judge conditioned uniqueness of the bite testimony explaining expert on evidence Second, would not she cases. Padilla and Gardner marks other than injuries Gardner suffered admit evidence necessary jury context marks, denying thereby bite signature indeed crimes are the two to determine whether which to be used database Last, not allow the ViCAP she would crimes. with the only three cases revealed computer search to show that and chin—the Padilla marks to the breast pattern of bite address each cases, Washington case. We State in turn. argument
III.
A. I, of defendant’s that evidence we resolved In Fortin through the admissible Trooper Gardner was assault sexual Hazelwood investigative profiler Robert expert killer. identity Padilla’s of Melissa proving purpose of 974; N.J.R.E. II, A.2d see 583 n. supra, 178 N.J. at Fortin whether, 404(b). I absent in Fortin did not consider We admissible evidence would be testimony, the Gardner-other-crime handiwork was the distinctive Padilla murder that the to establish *13 594 comparative analysis defendant. We now hold that the neces-
sary to determine whether the Padilla murder and Gardner sexual signature assault ordinary experience are crimes is outside jurors knowledge requires and and the assistance of testimony.
Signature-crime category evidence falls within the of other- evidence, 404(b). governed by crime which is N.J.R.E. That provides: evidence rule wrongs, Evidence of other crimes, or acts is not admissible prove disposition of a in order to show that such acted in person therewith. Such person conformity evidence be admitted for other such as may purposes, proof motive, opportunity, knowledge, intent, or absence of mistake or preparation, plan, identity accident
when such matters are relevant to a material issue in dispute. 404(b).] [N.J.R.E. may Other-crime evidence purpose be admitted for the showing propensity a defendant’s predisposition to commit acts; criminal may only such evidence prove be offered to “a dispute.” material issue Ibid. 404(b),
Consistent with
may
N.J.R.E.
other-crime evidence
be
presented
identity
to establish the
of Padilla’s killer. The
State
permitted
prove
that the crimes were committed in so distinc
they may
tive and unusual a manner that
be said to be the
I,
person.
handiwork of the same
supra,
See Fortin
Courts have
prove identity
admitted
evidence to
quality
See,
when the bizarre
of the crime was
e.g.,
self-evident.
Porambo,
416, 421-23,
N.J.Super.
State v.
(App.Div.1988)(noting
gained entry
wearing
defendant
beard
firefighter in one
disguise, posing
mustache
assault
other);
N.J.Super.
323-
Sempsey,
officer
State v.
police
taped
(App.Div.1976) (explaining
A.2d 212
that assailant
erection,
eyes,
headgear,
was unable
obtain
victims’
wore
*14
leaving,
grease,
on
instructed victims
count or he
smelled
and
shoot),
denied,
(1977);
272,
A.2d 677
see
74
377
would
N.J.
certif.
(1984)
1312,
Roscoe,
212,
v.
145
700 P.2d
1317-18
also State
Ariz.
following
un-
(finding unique
operandi in
circumstances:
modus
side,
areas,
placed
clothed bodies found
remote
shoes
side
socks,
front,
gagged
hands tied
open
torn
victims
blouses
clothing,
vaginal
and
back
articles
indications
behind
with
denied,
1094,
2169,
sex),
471
105 S.Ct.
85
and oral
cert.
U.S.
(1985). Conversely,
it is not obvious that the
L.Ed.2d 525
when
unique,
are
a court will not admit the
characteristics of a crime
See,
Reldan, supra,
N.J.Super.
185
e.g.,
other-crime evidence.
(commenting that use of force to victims’
Although jurors may draw rational
inferences from the
evidence, they
permitted
are not
speculate
or connect the dots
on mere
average juror
surmise. The
expected
cannot be
to have
knowledge
experience
to discern whether bite marks
are
highly
common or
distinctive feature of violent sexual assaults.
primary justification
“The
permitting expert
testimony is that
average juror
relatively helpless
dealing
subject
with a
that is not a matter of
knowledge.”
common
Kelly,
State v.
(1984);
N.J.
see also
(permit
N.J.R.E. 702
ting expert testimony
“scientific, technical,
when
special
or other
knowledge”
jury
ized
will assist
in understanding evidence or
determination).
making factual
Jersey
New
required
courts have
explain complex
matters that would fall
beyond the
ordinary juror.
ken of the
Grossbard,
See Buckelew v.
512, 526-27,
(1981)
87 N.J.
435 A.2d
(requiring
in medical
*15
malpractice
expert testimony
case
éxplain
injury
to
that
plain
to
during
tiffs bladder
procedure
medical
physi
raised inference of
negligence);
Review,
cian
Mullamey v.
401,
Bd.
N.J.Super.
343
408,
(App.Div.2001)
Thus, signature-like aspect when the of a crime would not be apparent fact, to expert the trier of testimony may necessary be to explain significance See, of the e.g., evidence. United v. States Crowder, 1405, (D.C.Cir.1996) 87 A.3d 1413 (rejecting defendants’ method of packaging drugs signature stating crime and that presented evidence, “the Government otherwise, no or that packaging mode of was distinctive to [defendant] even trade”), unusual in drug o.b. grounds, vacated on other 519
597
(1997).
1087,
760,
Similarly,
We injuries during sexual assault. edge typical of the inflicted a violent Here, clearly injuries that are so distinctive or we do not have signature-quality of the crimes would be self- unusual See, juror. eye average e.g., untrained evident Porambo, 421-23, 870; Semp- supra, N.J.Super. at 544 A.2d 323-24, A.2d 212. For that sey, supra, N.J.Super. reason, testimony, required provide expert such as is State Natarajan, explain testimony offered Dr. Levine and Dr. unique aspects of and Padilla sexual assaults the Gardner jury are the handi- permit would to conclude that both crimes person. work of the same admissibility of evi
A trial court’s determination particular is general and other-crime evidence entitled dence ordinarily it great should not be disturbed unless deference Marrero, 148 N.J. of the mark.” See State v. “wide omitted). (1997) (internal quotation marks We judge abused her discretion cannot find that the motion presentation of conditioning signature-crime evidence on the *16 testimony. B. her discre judge properly find that the exercised
We also
by requiring
provide
defendant with a database
tion
the State
supporting
expert testimony
cases
of Dr. Levine and Dr.
Natarajan.
required
Just as we
supply
the State in Fortin I to
support
expert investigative profiler’s
database
its
assertion
that he
congruence
had never seen before the
of characteristics
appeared
crimes,
both the Gardner and Padilla
the motion
judge
production
mandated the
of a
support
database to
Dr.
Natarajan’s and
Dr. Levine’s
that neither had ever seen
injuries.
Quoting
case with such bite
opinion
from our
in Fortin
II, swpra,
judge
production
observed that the
of a “reliable
database” would allow
opportunity
“the defense a fair
to test [the
experts’]
credibility
methods and
in the crucible of cross-examina-
tion.”
Thus, to ensure process, the fairness of the trial the motion judge appropriately Natarajan ordered Dr. Levine and Dr. “present the compilation defense with a of the sexual assault and homicide cases with human bite marks on victims aor reasonable sampling of experience.” [such from cases] their We fail to see the merit in position the dissent’s that a trial court not does have authority capital in a case to production order the experts’ of the data accordance with N.J.R.E. Significantly, 705. the State’s experts suggested have they not rely did past eases in coming to their individual conclusions that the bite marks inflicted on Gardner and Padilla were unusual. Additionally, we are not any aware of production claim that underlying data before Indeed, trial is compliance unfeasible. with the trial court’s direction, represented the State has reply in its brief that Dr. Natarajan Levine and Dr. provided have data to the State on they cases involving have worked on bite marks and that this discovery has been turned over to the defense. In affirming the decision, merely trial court’s we defer to a sound and unremarka-
599 of the trial evidentiary intended to ensure the fairness decision ble proceedings.10
IV.
A.
judge
aspects
that other
The motion
also determined
assault,
penetration, strangulation,
including the anal
Gardner
beatings
“common” to violent sexual assaults and thus
facial
were
showing
signature” crime.
thus
[a]
added little “to the
She
injuries,” fearing that undue
testimony about those “other
forbade
by
prejudice
permitting
caused
evidence that had no
would be
“propensity to
purpose other than to establish defendant’s
brutal
only
judge’s
that
relevant evi
attacks.”
share the
concern
We
jury.
that must be decided
dence should bear
the issues
however,
disagree,
that details of the Gardner assault can be
We
finely parsed. Although
injuries
other
suffered
so
evidence,
category
signature
the bite marks
do not fall into the
reality
during
That
cannot
were inflicted
a vicious sexual assault.
jury
seriously distorting
ignored
from the
without
be
or withheld
dissenting colleague
argument
that is not even before
Our
has dismantled
enabling
experts
database as
the Court. The dissent characterizes the
bite-mark,
is,
pattern
"compare a 'known'
one for which the bite
or
methodology
specific person,
'questioned'
bite-
is known to come from a
with
yet
at
ture-crime potential prejudice. evidence carries the Neverthe less, signature-crime may highly probative, evidence be and in this case, probative we conclude that its outweighed by value is not its prejudicial Cofield, effect. See State v. 127 N.J. 605A.2d *18 (1992). Therefore, 230 we will present allow the State to the bite- mark general evidence within the narrative of the sexual assault Trooper Gardner.
Placing the bite-mark in permit jury evidence context will the to better fulfill truth-seeking its approach function. That benefits defendant as much Sanitizing as the State. the Gardner assault keep jury would from many the the differences between the two crimes might reject it signature-crime lead to evidence. Appellate The Division in Fortin I dispa- enumerated the various rate characteristics that marked both crimes: Here, there is an to link behavior in two attempt under crimes, circumstances starting where there are as many differences there are similarities, with the fact charged defendant was not with the murder of attempted Gardner. There Trooper age, weight height are differences race, and victims. There is a significant difference the status of each victim. a Trooper profession- dangerous target al officer and a police for potentially someone to perpetrate against, crime when particularly defendant knew, prior assault, his was made known to the identity state police dispatcher by Gardner. Trooper There are also differences in the of assault. type Gardner was Trooper anally
vaginally vaginally. assaulted, while Padilla was assaulted but not anally, [Fortin, supra, N.J.Super, 608-09, 818.] A.2d Ultimately, it jury is better that the only know not the similari- ties, but also the differences between the Gardner and Padilla Moreover, entirety crimes. to limit the of the sexual assault on Trooper Gardner to likely the bite jury marks will lead the speculate, perhaps detriment, to defendant’s about the true nature of the crime. We thus screening jury conclude that from the material details of the Gardner assault that will make sense signature-crime relevant evidence will disserve the interests of a fair trial.
B. Next, over-emphasize importance cannot we of care fully limiting explain crafted instructions that and for what how purpose jury is to consider the other-crime evidence this probative may case. “However other-crimes evidence be to an dispute, strong potential issue in such evidence creates the prejudice ‘tendency because of its natural a crimi demonstrate ” 88, 93, predisposition.’ Blakney, nal State v. 189 N.J. 912 A.2d (2006) G.S., (quoting State v. 145 N.J. (1996)). Testimony concerning savage sexual of a assault Trooper power State have the natural to evoke a visceral will response jury. danger from the It is the that such “may indelibly person brand the defendant as a and blind bad jury from a charged careful consideration of the elements of the requires limiting offense that the trial court to deliver the instruc way jury readily tions in that the can understand.” Ibid. The carefully explain court’s instruction “should be formulated precisely evidence, permitted prohibited purposes *19 with sufficient reference to the factual context of the case to jury comprehend appreciate to enable the the fine distinction Stevens, required 289, to which it is to adhere.” State v. 115 N.J. (1989). 304, Additionally, limiting the instructions given should be both at the time the is other-crime evidence presented jury charge. Blakney, supra, and in final the 189 N.J. 93, at 912A.2d 140. Natarajan,
Based on the
of Dr.
and Dr.
the
Levine
jury will
whether
consider
the bite marks are so unusual and
signature
jury
distinctive as to constitute a
crime. The
must be
experts
posit
injuries—
told that the
not
State’s
do
that the other
penetration,
beating,
strangulation
the anal
facial
and manual
of
assault,
Gardner —are uncommon in a sexual
and therefore the
jury
injuries
signature-crime
should not consider those
evi-
repeat,
identify
signature-crime
dence. To
the court should
the
specificity
evidence offered
the State and indicate with
the
Stevens,
may
purpose for
that evidence
be considered. See
which
supra,
V.
Last,
admissibility
crime-compari
of
we address the
database,
through
son searches run
the ViCAP
which the State
claims identified the Gardner and Padilla sexual assaults as a
signature-crime match and therefore defendant as Padilla’s killer.
judge rejected
position
The motion
the State’s
the ViCAP
theory
support
matches could be used to
that the
unique.
Padilla crimes
were
She reasoned
the ViCAP data
base,
sufficiently
present,
unique
at
was not
crafted
isolate
example,
criteria. For
she noted that the
data form had
ViCAP
reason,
no
boxes
cheek for bite marks to the chin. For that
she
overly
concluded
broad factors listed in the ViCAP
permit
uniqueness analysis.
database did not
a reliable
She also
found that because the Gardner ViCAP form “was created for
litigation purposes
regular
police
and was not within the
course of
work,”
match
between the two crimes was not from “an
that,
agree
generally
greater
speaking,
We
with the dissent
"the
the number
available,
points
comparison
the more reliable the identification made
said,
being
comparisons
therefrom." Post at
A.2d at
765-66. That
only
by experts
particularized
training.
in this case can
be made
with
skill and
necessary
identify
We have concluded that an
the characteristics
common to the Padilla and Gardner crimes that are unusual
universe of
comparison
violent sexual assaults. We reached that conclusion because the
purposes requires "specialized
between
two
crimes for identification
knowl-
Indeed,
edge”
possessed by
average juror.
fingerprint analysis,
dissent,
612-14,
766-67,
example
post
used
see
917 A.2d at
involves an
expert identifying points
comparison
print.
between a known and unknown
Cerciello,
309, 313-14,
(E. A.1914).
generally
See
State v.
86 N.J.L.
As mentioned ViCAP is a national database 167,000 homicide, homicide, approximately attempted eases and Mdnapping. Completion of a a ViCAP form law enforcement agency voluntary Nagle, is on a basis. supervising Lawrence investigator on the Padilla case in that at testified the time investigation, practice of the Padilla it was of the Middlesex County only Prosecutor’s to fill out Office forms ViCAP Agent agencies crimes. Safarik testified that various unsolved practices in determining complete follow different when 167,000 represent form. The cases in the ViCAP database about percent homicides, attempted homicides, three seven kidnappings committed since 1984. The record does reveal many percent how three to those seven cases were sexual Moreover, according assaults. least ViCAP form’s instructions, general did ViCAP not invite entries for violent homicide, falling categories sexual assaults outside at- tempted homicide, Accordingly, kidnapping. or violent sexual homicide, attempted homicide, assaults that did not in a end kidnapping may not be reflected in the database. ViCAP Viewed through prism, only may very ViCAP contain database small fraction of the number of violent assaults sexual since 1984.
Significantly, although presented Agent the State Safarik to ViCAP, any explain expert the functions of neither nor other he match, witness vouched that a crime such as the one in this ViCAP case, signature-crime Only constituted reliable evidence.13 one signature-crime has our brought case been attention in which a admissible, match from database the ViCAP was found to be 13Agent investigative analysis, Safarik is an criminal and has over 5,000 twenty-two-year the course of his career at the been involved in over FBI cases. homicide *21 support expert’s
there the
an
ViCAP searches were offered
posing
conclusion that the criminal
bodies of murder
behavior —
Russell,
supra,
staged
highly
positions
victims in
unusual.
—was
case,
addressing
We Gardner ViCAP does not records, 803(c)(6), N.J.R.E. qualify under either the business records, 803(e)(8), N.J.R.E. public exceptions hearsay to the rule. 803(c)(6)provides N.J.R.E. that a writing statement contained in a writing or record is admissible “if the or other record was made in regular regular practice course of and it was the business that business to make it.” The form Gardner ViCAP was not is, regular filled out in the course business —that a Maine law enforcement official at the time the crime occurred further- completed by Agent investigation instead was anee of —but Safarik, purpose years assault for the nine after the sexual assisting prosecution of defendant. hearsay
Additionally, public exception to the records 803(c)(8)(A)permits N.J.R.E. introduc apply. rule does tion of *22 writing official of an act done contained in a made aby by statement public if it was within the condition, official or an or event observed the official act, act, either to the act or to observe the the official’s scope duty perform reported statement. or event and to make the written condition, reported expected fill any agency
If
would have been
law enforcement
assault,
form on the Gardner
it would have been
out the ViCAP
Here,
at or
the time of the crime.
the Maine State Police
about
Agent
completed
request
form at the
of the Middlesex
Safarik
trial mind. See
County
Prosecutor’s Office with defendant’s
(1996)
Garthe,
9,
1,
(noting
State v.
145 N.J.
A .2d 153
“the
678
theory
exception
upon
is
official or business records
founded
kept as
properly
‘that
are
shown to have been
records which
normally
probability
required
possess a circumstantial
of trustwor
”)
thiness,
(quoting
ought to be received in evidence’
and therefore
(1963)).
208, 218,
Mahoney Minsky,
v.
39 N.J.
VI. judge’s holding expressed, For we affirm the motion the reasons testimony explaining unique that without similarities 14The ViCAP form states that its mission "is to facilitate commu- cooperation, agencies nication, law enforcement and and coordination between provide investigate, track, and in their efforts to identify, apprehend, prosecute support violent serial offenders." assaults, and Padilla sexual between Gardner signature-crime assault is not admissible as evidence. The ex- perts in this marks to chin case have testified bite and during breast inflicted the Gardner and Padilla sexual assaults are highly experts provide unusual. Those must the database on they opinions. permitted which relied form their The State is in show the bite marks were inflicted the course of a potential prejudice To violent sexual assault. minimize the evidence, give of that other-crime the court must presentation instructions, precise limiting explaining permissible pro- and hibited uses of the bite-mark and Gardner evidence sexual assault. admissible, indepen- ViCAP offered the State is either dently support expert testimony, in prove as a database signature crime. proceedings court
We remand to the trial consistent with opinion. this RIVERA-SOTO, concurring part dissenting in
Justice and part. measure, case, large majority
In I concur with the in this most are, however, notably respect of the result reached. There analysis scope prevent fully differences both and me from majority. joining points similarity I our address divergence separately.
I. here; A heinous crime has been committed the condition of battered, forcibly raped strangled body Melissa Padilla’s leaves no room to doubt that her death was the result of means only identity: most foul. The issue in this case is one of was brutally sexually defendant the actor who assaulted and murdered separate question. Padilla? Two sources of evidence answer that that, body through proofs, The first of these is Padilla’s forensic *24 only identity bears witness not to the crimes committed but to the eloquently if of her murderer as she testified from the witness Trooper is Maine State core source of evidence stand. The second that, Gardner, unspeakable crimes but the victim of who was Vicki survived, on identical to the crimes visited fact that she are however, Trooper can identi- importantly, Gardner Padilla. More fy person who committed those crimes on her. as the defendant guilt his unassailable: defendant admitted That identification is Trooper guilty pleas to those crimes. attack on his appearance in third before this Stripped to its essence its now Court, question whether and to what extent presents this case in the permitted to confront her accused murderer this victim is can, that must inform our only way now a consideration she speak in this analysis we of “context” case. whenever
II.
entirely
in
III.A of
I
the conclusion set forth
Section
endorse
is,
unique
majority’s opinion. That
circumstances
case,
admissibility
signature-
bite-mark evidence as
this
presentation
evidence should be conditioned
crime
testimony connecting
bite-
prosecution
expert
the “known”
Trooper
admittedly inflicted on
Gard-
marks —those defendant
Padilla,
“questioned”
inflicted on
ner —with the
bite-marks
Ante,
597,
609 III. however,
I
agree,
do not
with the conclusion set forth in Section
majority
that,
III.B of
opinion
precedent
as a condition
to that
required expert testimony,
“provide
the State must
defendant with
a database of
supporting
expert
Ante,
cases
testimony[.]”
[that]
597-98,
917 A.2d at
reject
757. I
the now almost talismanic
effect the term
acquired
“database” has
in the two earlier itera
case,
tions
brooding presence
of this
a
permeates
majori-
ty’s present analysis.
(I),
517,
See State v. Fortin
162 N.J.
745
(2000);
(II),
A .2d 509
540,
State v. Fortin
178 N.J.
Our Rules
clearly
Evidence
announce the
prece-
conditions
qualification
dent
expert:
to the
of an
qualified,
expert
to be
possess
skill,
must
“knowledge,
experience, training, or education”
expertise.
the area of
Moore,
N.J.R.E. 702. See also State v.
(1991)
458-59,
122 N.J.
However, if qualified even under N.J.R.E. expert an is not permitted opinion an firmly tender that is not tethered either to the facts in evidence or to data outside the record. N.J.R.E. 703. That, nutshell, in a opinion rule, is “the net which forbids the admission expert’s into evidence of an conclusions that are not supported by Townsend, factual evidence or other data.” v. State 473, 494, (2006). 186 N.J. differently, Stated “the why ‘requires give and wherefore opinion rule net ” Ibid. her rather than a mere conclusion.’ opinion, of his or Tavorath, N.J.Super. A.2d (quoting Rosenberg v. may required “why (App.Div.2002)). The be wherefore” Indeed, production of a “database.” satisfied without odontologist— experts examiner and forensic here —a medical that, certainly testify by virtue “knowl- able to of their should be *26 education,” identify skill, training, they edge, experience, or can compare of a bite-mark and a “known” bite- the characteristics mark, is, pattern methodology is for which bite one the specific person, “questioned” to a with a bite- known come from yet setting, In that mark from someone not identified. by speaks weight to to be expert reliance an on a “database” Thus, testimony, admissibility. expert’s not its afforded again, require any I or II additional to the extent Fortin Fortin I admissibility by qualified expert, a opinion of an burden reject them.1 concerns, speaks exclusively
Responding
majority
to these
Levine,
compar-
testimony
odontologist,
of the
of Dr.
the forensic
impressions.
ing the
on Padilla with
dental
bite-marks
defendant’s
Yet,
deafeningly
in respect
it is
silent
tendered
examiner,
Natarajan,
medical
who
on the
Dr.
remarked
twenty-
uniqueness
on her
of these bite-marks based
more than
years
performing
experience
autopsies.
five
as a coroner
required to
presented
The issue
boils down to this: what is
experts
opine
those
ease are
allow
to
that the bite-marks
this
sufficiently
permit
unique to
the identification of defendant
1According
majority,
argument
even
to the
I have "dismantled an
that is not
758 n.
Ante,
before the Court.”
at 599 n.
In appears require “database” prove 'probability of the match between on Trooper the assault Yet, Gardner and “[historically, Padilla’s murder. statistical evi- *27 prerequisite dence has not been a to matching the admission of Noel, (1999). samples.” v. 157 State N.J. 723 602 A.2d Analogously, “expert testimony matching about soil and hair sam- ples admissible, has weight been deemed with the of the evidence jury.” Moreover, left to the Ibid. this emphasized Court has that production large quantity comparable samples “the aof of affects weight, admissibility, 147, the the not the at evidence.” Id. 723 of Thus, 602 (emphasis supplied). A.2d this case’s historical obses- sion with a any “database” as a condition to be satisfied before matching precedent. can occur is unwarranted without
IV. I concur in the result achieved in majority’s Section IV of the opinion, but for reasons than different those announced. Accord- ing majority, aspects the to the other of the brutal assault on admitted majority the should be
Trooper described Gardner permit in context mil the evidence “[placing bite-mark because 600, Ante, at jury truth-seeking fulfill function.” the its better Yet, into the majority admits A.2d at 758. while the evidence Trooper providing as “context” of assault on Gardner details assault, all of facts of I am the view that for that of for Trooper Gardner should be admissible defendant’s assault comparison points of between purposes, as additional identification Trooper “questioned” and the the “known” assault on Gardner assault on Padilla. simi larger more constellation of
That universe or numerous aids in separate greatly two events determin lar factors between ing performed by the actor is so the events were same whether authority. It intuitive need for is self-evident that it eschews the available, greater points comparison that the the number of of made It is for that more the identification therefrom. reliable of of other specific that we allow for admission evidence reason actor, 404(b), identity prove N.J.R.E. crimes order when, here, in so particularly “the crimes were committed they may that be said to be the and unusual a manner distinctive ante, person!,]” In same at 755. handiwork of the A.2d allowing aspects of setting, non-bite-mark the “known” only Trooper to be for context but assault on used person substantively determining whether the same also as only reliability murdered Padilla enhances the saulted and ultimately made, something inures identification to the better produces a result ment both defendant and State harmony truth-seeking trial. function of this with analytical use of principled
There no difference between the and, signature-crime identity example, the use prove factors to prove identity. fingerprint analysis, up In fingerprints points comparison print a “known” and a one hundred between Mitchell, “questioned” print can v. be established. United States (3d Cir.1998). number, identity Despite can 145F.3d *28 reliably by points comparison. of be determined as few seven
613
Ibid.2 It
certainly goes
saying
any points
compari-
without
that
of
applicable
only
son
addition to the
minimum
can enhance the
reliability
reason,
of the identification. For that
once a fundamen-
tally
ease,
bite-mark,
reliable match is made —in this
bite-mark to
as in fingerprints,
points
or
once
minimum
of comparison
are
remaining identifying
determined —-all
factors should be admissi-
reliability
proof
identity,
just
ble
enhance the
of
of
and not
Clemons,
of context.3 See
v.
by way
1504,
United States
32 F. 3d
(11th Cir.1994),
denied,
1086, 115
cert.
1801,
514 U.S.
S.Ct.
1508-09
(1995) (rejecting
131
728
prior
L.Ed.2d
defendant’s claim
his
that
identity
similar crimes
not
prove
they
were
admissible to
because
sufficiently peculiar
idiosyncratic
were not
or
to signa-
to amount
crimes,
all
ture
and considering
points
similarity
of
between the
Miller,
(11th
crimes);
United States v.
1535,
959 F.2d
two
1539
denied,
Cir.),
cert.
942,
382,
506 U.S.
113 S.Ct.
121 L.Ed.2d (1992) (holding
totality
prior
that
of
similar crime was admissi-
2Although
Investigation
points
requires
the Federal Bureau of
twelve
identification,
243,
DiPaolo,
comparison
positive
a
Hall v.
72 F.3d
245 n. 1
(1st Cir.),
denied,
1010,
2535,
(1996),
cert.
U.S.
S.Ct.
ble identity). prove independently sufficiently peculiar to V. admissibility comparisons through the run
I address last (ViCAP). Apprehension Program The FBI’s Criminal Violent comparisons, ruling that ViCAP trial court refused admit those it that did properly as an identification device and was crafted exception to requirements for as an not meet the admission proofs, hearsay majority The concludes that ViCAP rule. alone, standing excep- qualify do not under business records rule, 803(e)(6), hearsay public N.J.R.E. or under the tion to the 803(c)(8). rule, Ante, 604, exception records N.J.R.E. A.2d at 761. more, prosecution, separately If the without offers either the system single generated form in as a whole or the ViCAP ViCAP Gardner, respect Trooper agree assault I with the on evidence, alone, standing majority such is inadmissible hear- However, system any say. compo- if or of its either ViCAP properly qualified is in nents used a identification opinion, hearsay inapplicable provided generating an rale is asserted, is the information not offered for the truth of matter 801(c), type reasonably “of and the information is relied N.J.R.E. upon experts particular forming opinions field in subject[,]” Ryan v. KDI upon the N.J.R.E. 703. See inferences (1990) Inc., Pools, Sylvan N.J. 579 A.2d (holding inquiry finding “a court into [must] make given rely If experts whether field on certain information. reasonable”). found, presumed it To such reliance be then to be majority’s holding as sweeping the extent the is so to disallow all evidence, including any non-hearsay proper uses the ViCAP use, I must dissent. LONG, For affirmance modified/remandment —Justices
LaVECCHIA, ZAZZALI, ALBIN WALLACE —5. part part/dissent Concur in RIVERA-SOTO —1. —Justice