SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-7556-97T3
A-7560-97T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEVEN FORTIN,
Defendant-Appellant.
Argued: December 9, 1998 - Decided: March 1, 1999
Before Judges King, Wallace and Fall.
On appeal from the Superior Court of New Jersey,
Law Division, Criminal Part, Middlesex County.
Anderson D. Harkov argued the cause for appellant
(Mr. Harkov, on the brief; Robert A. Obler, of
counsel and on the brief).
Nicholas Ruggiero, Assistant Prosecutor, argued
the cause for respondent (Glenn Berman, Middlesex
County Prosecutor, attorney; Mr. Ruggiero, of
counsel and on the brief).
The opinion of the court was delivered by
FALL, J.S.C. (temporarily assigned)
In these consolidated, accelerated appeals in this capital
murder case, pursuant to R. 2:2-4 we granted defendant's motions
for leave to appeal from two pre-trial evidential rulings. The Law
Division judge held other-crime evidence can be admitted against
defendant during his trial, pursuant to N.J.R.E. 404(b), on the
contested issue of identity. We affirm that ruling. The judge
also ruled that through use of a "linkage analysis," a former
F.B.I. agent, modus operandi and ritualistic crimes expert, can
testify at a trial pursuant to N.J.R.E. 702 that the same person
who committed a subsequent crime also committed the crimes in this
case. We reverse that ruling.
Defendant, Steven Fortin, was indicted on September 6, 1995 and charged with first-degree purposely or knowingly murdering Melissa Padilla on August 11, 1994, contrary to N.J.S.A. 2C:11-3a(1) and (2) (count one); first-degree felony murder, while in the course of committing the crime of robbery, contrary to N.J.S.A. 2C:11-3a(3) (count two); first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count three); first-degree felony murder, while in the course of committing the crime of aggravated sexual assault, contrary to N.J.S.A. 2C:11-3a(3) (count four); and first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a (count five).
The State seeks imposition of the death penalty, upon conviction. On March 18, 1997, pursuant to N.J.S.A. 2C:11-3(c)(2) and R. 3:13-4(a), the State filed and served a list of aggravating factors it intends to prove at the required sentencing hearing if defendant is convicted on count one.
At some time after 11:29 p.m. on August 11, 1994, Melissa Padilla, an age 25 mother of four children, was sexually assaulted, severely beaten, robbed, and strangled to death in Avenel, New Jersey while walking home, after making purchases at a Quick Chek convenience store.
On April 3, 1995 in the State of Maine, Vicki Gardner, a Maine State Trooper, age 34, was sexually assaulted, severely beaten about the face, and strangled by defendant, who pled guilty to this attack and was sentenced to a twenty-year term of imprisonment in Maine.
Based on evidence linking defendant to the scene of the Padilla murder, certain similarities between the New Jersey and Maine incidents, and other circumstantial evidence, the State moved before the trial court to admit evidence on the issue of identity of defendant's attack on Trooper Gardner in Maine during defendant's trial for the New Jersey murder of Melissa Padilla, pursuant to N.J.R.E. 404(b). Defendant opposed that motion and moved to exclude the testimony of Robert R. Hazelwood, offered by the State as an expert on modus operandi and ritualistic behavior, that the person who committed the Maine crimes against Trooper Gardner was the same person who committed the murder of Melissa Padilla.
The judge conducted a pre-trial hearing pursuant to N.J.R.E. 104(a) concerning the admissibility of the other-crime evidence and on the admissibility of Hazelwood's expert testimony. The hearing took place in May 1998. Eight witnesses testified, including investigating police officers from New Jersey and Maine, the medical examiner who performed the autopsy on Marie Padilla, an orthodontist, a medical expert on the diagnosis of sexual assault, a forensic odontologist, and Hazelwood.
The judge issued comprehensive written opinions on each issue, entering separate orders on July 17, 1998 providing, in pertinent part:
ORDERED that the State's motion to admit
N.J.R.E. 404(b) evidence of defendant's prior
crimes committed against Trooper Vicki Gardner
in the State of Maine is granted subject to
the exclusion of defendant's guilty plea in
Maine, during the State's case-in-chief.
ORDERED that defendant's motion to exclude
Robert Hazelwood's testimony regarding modus
operandi and ritualistic behavior of violent
crimes, during the capital murder trial of
defendant, Steven Fortin, is denied.
On appeal, defendant presents the following arguments for
consideration:
POINT I
THE STATE SHOULD NOT BE ALLOWED TO INTRODUCE
INFLAMMATORY AND SEVERELY PREJUDICIAL EVIDENCE
OF AN ALLEGEDLY SIMILAR CRIME UNDER THE
PROVISIONS OF N.J.R.E. 404(b) TO SUBSTITUTE
FOR ITS "PAUCITY" OF EVIDENCE.
POINT II
THE ADMISSION OF EVIDENCE REGARDING THE
INCIDENT IN THE STATE OF MAINE WOULD BE
CONTRARY TO ESTABLISHED CASE LAW BECAUSE THE
STATE FAILED TO MEET ITS BURDEN TO PROVE THE
TWO CRIMES WERE SUFFICIENTLY IDENTICAL AND
BECAUSE THE PREJUDICIAL VALUE GROSSLY
OUTWEIGHS THE LIMITED PROBATIVE VALUE.
POINT III
THE PROFFERED TESTIMONY OF ROBERT HAZELWOOD
DOES NOT MEET THE STANDARD OF ADMISSIBILITY
FOR EXPERT TESTIMONY AS SET FORTH BY THE NEW
JERSEY SUPREME COURT AND THE TRIAL COURT'S
RULING WAS THEREFORE ERRONEOUS.
During the N.J.R.E. 104 hearing various witnesses testified. The trial judge summarized the witnesses' testimony in his written opinion.
Lieutenant Lawrence Nagle, an investigator with the Middlesex County Prosecutor's Office, testified for the State. He was one of the officers called to the Padilla murder scene near Route 1 and Wylie Street in Avenel, Woodbridge Township, New Jersey during the early morning hours of August 12, 1994. Investigation at the scene revealed that Hector Fernandez notified the police he found the body of his girlfriend, Melissa Padilla, inside a large concrete sewer pipe located approximately ten feet from the Route 1 roadway, in a vacant wooded lot. The victim, age 25, was naked from the waist down, wearing only a shirt and no bra. Fernandez, along with Padilla and her four children were residing at the Gem Motel, located along Route 1, approximately five-hundred feet from the location where Padilla's body was discovered.
At approximately 11:00 p.m. on August 11, 1994, Padilla left the Gem Motel and walked in a northerly direction along a foot path parallel to Route 1 to a Quick Chek convenience store, located on Route 1 about two-tenths of a mile from the murder scene, to purchase food and other items, leaving Fernandez to watch the children. A receipt from the store found at the murder scene indicated purchases were made by Padilla at 11:29 p.m. A bag and various food items purchased at the store were found strewn throughout the area of the murder. Padilla's shorts and underwear, still attached to each other, were found near the scene, thrown into a hedge area. The wooded area where Padilla's body was found contained a pathway where people travelled while walking parallel to Route 1.
Nagle described the injuries to Padilla, stating she had trauma to the head, was beat about the face, was manually strangled, her pants were ripped down, there was rectal tearing and there were marks on her left breast area and on the left side of her chin that appeared to be bite marks.
In April 1995, it came to Nagle's attention that defendant had been arrested and charged in Maine with the assault of a female Maine State trooper, involving bite marks, anal penetration, facial beating, and sexual assault. His office was contacted because the Maine officials knew defendant was from Woodbridge Township, New Jersey. Nagle's investigation of defendant's activities in New Jersey established that at approximately 9:00 p.m. on the night of the Padilla murder, defendant and his girlfriend, Dawn Archer, walked through the area of the murder scene.
Archer gave a detailed statement to an investigator on April 20, 1995. She related the following. On August 11, 1994 defendant and Archer were cohabiting at the Douglas Motel, located along Route 1 in Avenel, not far from the Gem Motel. Archer knew Padilla casually, having seen her a few times in the area where they both resided. On the evening of August 11, 1994, defendant and Archer decided to visit their friend, Charlie Bennett, who also resided along Route 1 at the Five Oaks apartments. Sometime around 9:00 p.m., they walked from their residence, south on Route 1, along the north-bound shoulder. They first stopped at the Quick Chek convenience store, made some purchases and then proceeded further south, passing the Gem Motel, then across the parking lot of Bud's Hut to Bennett's apartment. They stayed at Bennett's apartment for about one hour, when defendant wanted to leave. Archer wanted to stay. They were all consuming alcoholic beverages. At defendant's insistence, they left Bennett's apartment, proceeding back across the parking lot of Bud's Hut. At that point, an argument ensued between Archer and defendant. Archer alleges defendant struck her, threw her to the ground and began choking her. He then fled the scene. After the assault, Archer ran into Bud's Hut for help, and the police were called at approximately 10:30 p.m. Archer reported the incident to the police, who arrived in a patrol car at approximately 10:32 p.m. The police report notes Archer was "very intoxicated." Archer had minor injuries and was transported to Perth Amboy Hospital for medical attention but, upon arriving, she left the hospital without receiving treatment. Instead, Archer went to her mother's home in Perth Amboy and stayed there.
A day or two later, defendant came to visit Archer at her mother's home, apologizing for his conduct. Archer observed scratch marks on defendant's face. They left and went back to the Douglas Motel. Later, while showering, Archer observed additional scratch marks on defendant's chest. Archer contends she did not inflict any scratches on defendant as a result of their fight on August 11, 1994. Upon inquiry, defendant explained that after the incident in Bud's Hut parking lot, he fled the area, was afraid the police were looking for him due to the assault, and therefore slept in the wooded area behind their motel, incurring the scratches while running through the woods. Archer accepted that explanation, although noting in her statement the scratches were of the type inflicted by one person scratching another.
Archer described being assaulted by defendant during their four-month relationship on approximately four occasions. She stated defendant would "just snap," without provocation, and would usually throw her to the ground and choke her. She denied any deviant sexual acts or anal sex in their relationship.
Bennett, who was interviewed on May 9, 1995, advised Nagle that after defendant and Archer left his apartment, defendant returned about thirty to forty-five minutes later. No other testimony was elicited regarding Bennett's statement that defendant returned to his residence. Nagle interviewed defendant April 24, 1995 in Maine. He denied assaulting Archer on the night of Padilla's murder, stating Archer may have fallen, and also denied any knowledge of Padilla's murder.
Although it was determined through the investigation that victim Padilla had sold crack cocaine to at least three individuals on the day she was murdered, no crack cocaine was found near the area of the murder. No money was found on Padilla's person and a gold necklace usually worn by her was missing. Nagle testified this particular area along Route 1 is located in close proximity to the Adult Diagnostic and Treatment Center, where convicted sex offenders are evaluated, imprisoned and treated, and where many paroled sex offenders live in the various motels and other housing units in the area. He also testified that the area where Padilla's body was found has a high level of illegal drug activity. Marvin Shuster, M.D., the Medical Examiner for Middlesex County, performed the autopsy on Padilla's body on August 13, 1994, and testified at the admissibility hearing. Padilla was pronounced dead at the scene of her murder on August 12, 1994 at 1:06 a.m. Dr. Schuster identified the cause of death as the result of "asphyxiation; assault and strangulation."
There were several notable findings in the autopsy report. No lacerations, injuries or lesions were found in the vaginal area. A vaginal smear demonstrated "few and scattered spermatozoa, some of which are intact and many of which are represented only by sperm heads." The statement given by Hector Fernandez reveals he and Ms. Padilla had vaginal intercourse on August 11, 1994. He also told the investigator he had anal intercourse with Padilla about a week before her death. However, DNA analysis of the spermatozoa did not match defendant or Fernandez.
An examination of the anus and rectum of Padilla disclosed "linear, vertically-oriented, superficial lacerations of the mucosa. There are several of these, most of which are anteriorly located. A small amount of blood is present within the anus, along with a few fragments of stool material. The rectum contains no blood." Microscopical examination of the anal smears taken was "negative for the presence of spermatozoa," and the sections of anus disclosed "focal, superficial mucosal hemorrhage. Also noted are foci of dense chronic inflammatory cell infiltrates." Dr. Shuster testified the anal tearing injuries were acute and therefore attributable to the attack resulting in Padilla's death. The chronic anal inflammation found has no relevance to the issues posed on this appeal.
On the day the autopsy was performed, Dr. Shuster consulted Jay S. Kartagener, D.M.D., a forensic odontologist, who examined two sets of circular marks found on the lower left chin of Padilla, and one set of circular marks found on her left breast area. Dr. Kartagener concluded the marks on the chin "strongly resemble human bite marks and it is the opinion of this Examiner that they are indeed the result of human dentition." He also observed that "[t]he markings on the breast may be the result of heavy and firm suckling with two teeth marks being observed, but with their shape and size too indistinct to measure."
Numerous samples from evidence collected at the murder scene and from Padilla's body were sent to a laboratory for polymerase chain reaction (PCR) testing, more commonly referred to as "DNA testing." These included vaginal smears, a cigarette butt, fingernail clippings from both hands, a dollar bill with blood stain, along with blood samples taken from the victim, Fernandez, and from defendant. The report from the laboratory concluded defendant was excluded as a source of the DNA obtained from the dollar bill and right hand fingernail clippings. The data obtained was not consistent with defendant being a primary source of the DNA obtained from the left-hand fingernail clippings, but he could not be excluded as a secondary source of the DNA obtained from those fingernail clippings. The laboratory analysis found defendant could not be excluded as the primary source of the DNA obtained from the cigarette butt. The other testing yielded inconclusive results.
Sergeant Gerard P. Madden and Detective Jackie Therriault, from the Maine State Police, testified that on April 3, 1995, Maine State Trooper Vicki Gardner, traveling in a marked police vehicle, noticed a vehicle on the southbound shoulder of Route I-95 facing in a northerly direction. Upon arriving at the scene, Trooper Gardner determined defendant was the driver of the vehicle. Defendant produced a temporary driver's permit, and Gardner determined through a license check that defendant's license in New Jersey was suspended. After smelling alcohol from defendant's breath, and upon administering balance coordination tests and a field alcohol analysis, Gardner determined defendant was under the influence of alcohol, arrested defendant, and began processing him on a charge of operating a vehicle under the influence of alcohol. Gardner also called for another officer to finish processing defendant, as she was off-duty.
At that point, defendant appeared to "just snap" and attacked Gardner. He beat her about the face, sexually assaulted her, and strangled Gardner into unconsciousness. He then placed Gardner in the passenger's seat of the police vehicle, and drove the police vehicle down the highway. Gardner regained consciousness and partially jumped, and was partially pushed by defendant, from the vehicle. Further down the highway, defendant lost control of the vehicle, it turned over, he fled the scene on foot, and was later apprehended at a rest area about a mile from where the police vehicle turned over.
Gardner's face was badly battered, and she suffered a broken nose; bite marks to her chin, to her left breast nipple and on the outer left side of her left breast; and vaginal and anal tearing and lacerations. After defendant's attack, Gardner was naked from the waist down. Her pants were pulled off, with her underwear inside out. When interviewed later, defendant said Gardner pulled her own pants off while attempting to make sexual advances to him.
On April 26, 1995, a search warrant was issued by the Maine District Court for the search of defendant's parents' home in Maine for any belongings owned by defendant and, specifically, for Padilla's gold necklace. The search failed to yield the necklace.
Dr. Lawrence Ricci, who was qualified as an expert in the field of diagnosis of sexual assaults, confirmed Gardner was sexually assaulted. He examined Gardner on April 5, 1995, and found a vaginal tear. He also found extensive bruising outside the anal area and, further inside, large tears of anal tissue. In comparing the autopsy photographs of the injuries to Padilla, Dr. Ricci offered what he referred to as "a broad opinion" that the injuries depicted in the photographs are consistent with the injuries to Gardner in that they were inflicted "with significant force, a blunt-penetrating trauma." However, the injuries to Gardner's anal area were more severe and extensive than those suffered by Padilla.
As a result of the April 3, 1995 attack against Gardner, defendant was charged in a seven-count information (similar to an accusation in New Jersey) with kidnapping, robbery, aggravated assault, assault on an officer, attempted gross sexual assault, unlawful sexual contact, and criminal operation of a motor vehicle under the influence of intoxicants. On November 29, 1995 defendant pled guilty to all charges and was sentenced to an aggregate twenty-year term of imprisonment.
Lowell J. Levine, D.D.S., a forensic odontologist retained by the State, reviewed the autopsy report, photographs of the bite marks and various investigative material concerning the Padilla murder. He also reviewed photographs of the bite marks found on Gardner and various reports of the Maine incident. Dr. Levine was also provided with dental casts and various bite-mark samples of defendant. His findings concerning comparison of the bite marks on Padilla's body with defendant's dental casts and teeth-mark samples are, in relevant part:
There is a bite mark on the outer aspect, left
breast which with reasonable scientific
certainty has been caused by the lower teeth
of Mr. Fortin. I have used the photograph
with arm extended.
There are multiple bite marks on the chin.
These are consistent with having been caused
by the teeth of Mr. Fortin.
There is a patterned injury on the left nipple
which is most likely caused by teeth but I am
unable to interpret enough characteristics to
arrive at an opinion with reasonable
scientific certainty.
In comparing the bite marks found on Padilla with those resulting
from defendant's attack on Gardner, Dr. Levine concluded:
Each woman has bite mark injuries on the chin,
left nipple, and left breast, outer aspect.
The bite marks on both women of the left
breast, outer aspect, chin, and nipple exhibit
segments which have similarities when compared
to each other. The comparisons have been done
in segments. This is because of inherent
problems with the photos of distortion,
angulation, and areas in which the bite marks
were found. As an example, a photo of the
chin and left breast, outer aspect of Padilla
may be compared with a photo of the left
breast, outer aspect of Gardner. Segments of
lower teeth with similarities of alignment,
shape and approximate size may be noted.
Based upon the comparison revealing
similarities among the bite marks, it is my
opinion that the bite marks on both women
could have been caused by Steven Fortin.
Dr. Levine could not conclude within a reasonable degree of
scientific certainty that the bite marks to Padilla's chin were
caused by defendant.
Robert R. Hazelwood, the State's proposed expert on modus
operandi and ritualistic behavior, summarized his extensive
schooling and training. He is a former F.B.I. agent, has over
thirty-two years experience as a law enforcement professional, a
seventeen-year affiliation with the National Center for the
Analysis of Violent Crime, and has consulted on more than 7,000
crimes of violence. He has published approximately thirty articles
on topics of homicide, rape, serial rape, other types of sexual
assault, and various other criminal behavior topics. Hazelwood has
authored or co-authored three books on the subject of criminal or
deviant sexual behavior, and has taught at various academies and at
a few universities.
At oral argument, we requested copies of articles, or book
excerpts, authored by Hazelwood concerning "linkage analysis," the
method he used in this case to determine whether the same
perpetrator committed both crimes. We were provided a copy of
Chapter 7, entitled "The Relevance of Fantasy in Serial Sexual
Crime Investigations" of a book authored by Hazelwood titled
Practical Aspects of Rape Investigation, A Multidisciplinary
Approach (1995). The primary topic of that chapter is the role of
"fantasy" as the link between the underlying motivations for sexual
assaults and the behavior exhibited during the crime. Hazelwood
only briefly discusses the use of "linkage analysis" through
examination of the modus operandi and "signature," or
"ritualistic," aspects of sexual crimes. Hazelwood explains that
crime analysts consider modus operandi, but rely on the signature
or ritual of the crime to link a series of cases together.
Hazelwood testified use of modus operandi and ritualistic
behavior was first published in 1992 in an article by John Douglas,
who was also an agent with the FBI, and contends it "is accepted
within the law enforcement community." Hazelwood has qualified to
testify as an expert on modus operandi and ritualistic behavior in
murder cases in California and South Dakota.
Hazelwood was retained by the State to review and analyze
materials pertaining to the Padilla murder and the attack on
Gardner for the purpose of determining whether the two crimes were
committed by the same offender, based on a "linkage analysis" of
both incidents. In his October 17, 1997 report, reviewed during
testimony, Hazelwood explained the methods used in completing this
analysis:
When examining crimes for linkage, one must
study the offender's behavior for similarities
over the crimes. This behavior is referred as
`M.O.' (modus operandi) and `Ritualistic'
(`Signature') behavior. The M.O. is learned
behavior and is developed by the criminal to
accomplish three things: Ensure success;
Protect identity; and Facilitate escape.
Because it is learned behavior, the M.O. is in
a constant state of evolution which allows it
to meet the demands of the crimes. Therefore
the M.O. is subject to change over time and
the primary causes of such change are:
Experience; Maturity; and Education.
Based on Hazelwood's review of all available reports and
documents, he determined that the modus operandi of the crimes
involving Padilla and Gardner demonstrated some fifteen
similarities:
1. High-risk crimes;
2. Crimes committed impulsively;
3. Victims are female;
4. Age of victims generally the same;
5. Victims crossed the path of the offender;
6. Victims were alone;
7. Assaults occurred at confrontation point;
8. Adjacent to or on well-traveled highway;
9. Occurred during darkness;
10. No weapons involved in assaults;
11. Blunt-force injuries inflicted with
fists, with nose of victims broken;
12. Trauma primarily to upper face, no teeth
damaged;
13. Lower garments totally removed, with
panties found inside the shorts or pants
of the victims;
14. Shirt left on victims and breasts free;
and
15. No seminal fluid found in/on victims.
Hazelwood's report discusses ritualistic, or signature,
behavior of the violent offender, as follows:
The violent offender who repeats his offenses
typically demonstrates a second type of
behavior and that is termed `Ritualistic'
behavior. Such behavior is frequently
referred to as the `Signature' of a criminal.
This behavior goes beyond what is necessary to
commit the crime. Its sole purpose is to
provide the offender with mental and/or
emotional gratification. The `Ritualistic'
aspects of a crime remain constant over time,
although there may be improvements as the
ritual becomes more fully developed.
Hazelwood concludes that the crimes committed against both
Padilla and Gardner were anger-motivated, and that the offender
demonstrated anger through the following identified "ritualistic"
or "signature" behavior in both crimes:
1. Bites to the lower chin;
2. Bites to the lateral left breast;
3. Injurious anal penetration;
4. Brutal facial beating; and
5. Manual frontal strangulation.
In determining that the attacks on Gardner and Padilla were
committed by the same person, Hazelwood concluded:
In my 35 years of experience with a variety of
violent crimes committed in the U.S., Europe,
Canada, and the Caribbean, I have never
observed this combination of behaviors in a
single crime of violence. The likelihood of
different offenders committing two such
extremely unique crimes is highly improbable.
Based upon a comparison of the M.O. and the
Ritualistic behaviors of the two crimes, it is
my opinion that the same person was
responsible for the murder of Ms. Melissa
Padilla and the subsequent attempted murder of
Ms. Vicki Gardner.
In his testimony, Hazelwood explained that "linkage analysis"
is not a science, but rather is based upon training, education,
research, and experience in working on thousands of violent crimes
over an extended period of time. Hazelwood testified he has been
qualified as an expert on the subject of modus operandi and
ritualistic behavior in the courts of California and South Dakota,
and that two of his former F.B.I. colleagues, John Douglas and
Larry Ankron, have been similarly qualified in other states.
Hazelwood has also testified approximately fifteen to twenty times
as an expert witness on violent crime.
Hazelwood testified that a "linkage analysis" is a criminal
investigative analysis where a series of crimes are reviewed and
studied for consistency of modus operandi and ritualistic behavior,
explaining further:
Linkage analysis is one of the services under
the umbrella term of criminal investigative
analysis. It's a study and assessment of two
or more crimes, to arrive at an opinion as to
the consistency of those behaviors, either
being ritual or M.O., over two or more crimes,
and to provide an opinion as to whether or not
both crimes, three crimes or more crimes, can
be attributed to one person.
Hazelwood emphasized the similarities in the modus operandi of
both crimes, particularly in the combination present, coupled with
the similar signature, ritualistic behavior in both, combined to
form the basis for his opinion that both crimes were committed by
the same offender. The judge accepted Hazelwood as an expert under
N.J.R.E. 702, qualified to offer an opinion that the same offender
committed both crimes.
The judge also ruled that subject to the exclusion of
defendant's guilty plea in Maine, evidence of the attack by
defendant against Gardner is admissible as other-crime evidence in
the capital trial of defendant on the issue of identity, pursuant
to N.J.R.E. 404(b).
Defendant contends that the judge erred in finding admissible evidence of his subsequent attack on Trooper Gardner in Maine at defendant's forthcoming New Jersey trial concerning the Padilla murder. N.J.R.E. 404(b) provides:
Other crimes, wrongs, or acts. Evidence
of other crimes, wrongs, or acts is not
admissible to prove the disposition of a
person in order to show that he acted in
conformity therewith. Such evidence may be
admitted for other purposes, such as proof of
motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of
mistake or accident when such matters are
relevant to a material issue in dispute.
The party seeking admission of other-crime evidence must
satisfy the following four-part test:
1. The evidence of the other crime must be
admissible as relevant to a material
issue;
2. It must be similar in kind and reasonably
close in time to the offense charged;
3. The evidence of the other crime must be
clear and convincing; and
4. The probative value of the evidence must
not be outweighed by its apparent
prejudice.
[State v. Cofield,
127 N.J. 328, 338 (1992).]
When reviewing a trial judge's determinations on the
admissibility of other-crime evidence under N.J.R.E. 404(b), the
scope of review is relatively narrow. Harris v. Peridot Chem.
(NJ), Inc.,
313 N.J. Super. 257, 278 (App. Div. 1998). The trial
court "is given great deference in its discretion of determining
the admissibility of other crimes evidence." State v. Marrero,
148 N.J. 469, 483 (1997). The appellate court "must review the record
in light of the contention advanced, but not initially from the
point of view of how [it] would decide the matter if [it] were the
court of first instance." Id. at 278-79. The trial judge is in
the "best position to engage in th[e] balancing process" required
because of his intimate knowledge of the case. Id. at 279 (quoting
State v. Ramseur,
106 N.J. 123 (1987), cert. denied,
508 U.S. 947
(1993)). "Only where there is a `clear error of judgment' should
the `trial court's conclusion with respect to that balancing test'
be disturbed." State v. Marrero, 148 N.J. at 483 (quoting State v.
DiFrisco,
137 N.J. 434, 496-97 (1994), cert. denied,
516 U.S. 1129,
116 S.Ct. 949,
133 L.Ed.2d 873 (1996)).
Thus, the trial judge's decision is accorded deference and
reviewed under the "abuse of discretion standard." State v. Crumb,
307 N.J. Super. 204 (App. Div. 1997), certif. denied,
153 N.J. 215
(1998). In addition, deference must be accorded a trial judge's
determinations "that are substantially influenced by [his]
opportunity to hear and see the witnesses and to have the `feel' of
the case which [reviewing judges] cannot enjoy." Harris v. Peridot
Chem. (NJ), Inc., 313 N.J. Super. at 279.
We find no abuse of discretion by the judge in his analysis on
this issue in his comprehensive written opinion dated June 3, 1998.
Other-crime evidence is only admissible if relevant to prove some
fact that is genuinely in issue. State v. Marrero, 148 N.J. at 484
(1997). Here, the State offers evidence of the Maine incident on
the issue of identity. Evidence is relevant if it has a tendency
in reason to prove or disprove any fact of consequence to the
determination of the action. N.J.R.E. 401. Defendant denies any
knowledge or involvement in the Padilla murder, placing "identity"
squarely in issue. This satisfies the first prong of the test.
However, when the issue is "identity", other-crime evidence
must generally meet a stiffer standard for admissibility. State v.
Reldan,
185 N.J. Super. 494, 502 (App. Div.), certif. denied,
91 N.J. 543 (1982). The prior criminal activity with which defendant
is identified must be "so nearly identical in method as to earmark
the crime as defendant's handiwork." State v. Sempsey,
141 N.J.
Super. 317, 323 (App. Div. 1976), certif. denied,
74 N.J. 272
(1977). The conduct in question "must be so unusual and
distinctive as to be like a signature." State v. Inman,
140 N.J.
Super. 510, 516 (App. Div. 1976). Where there is proof of recent
similar crimes by the accused where "a crime has been committed by
some novel or extraordinary means or in a peculiar or unusual
manner," the evidence is admissible on the issue of identity. Id.
at 517.
Here, there was sufficient evidence presented for the judge to
reasonably conclude that this "standard of similarity" was met, and
that the eight-month lapse of time between the incidents did not
effect the probative value of the other-crime evidence, satisfying
the second prong of the test.
The proof presented of defendant's involvement in the Maine
incident was clear, convincing and unequivocal, satisfying the
third prong of the test.
The judge concluded that the probative value of the evidence
was not outweighed by its apparent prejudice. In balancing the
prejudice against the probative value, we must also consider
whether the other-crime evidence is necessary on the issue of
identity. State v. Marrero, 148 N.J. at 482; State v. Brown,
138 N.J. 481, 533 (1994). The burden of convincing the court that the
other-crime evidence offered should be excluded because its
probative value is substantially outweighed by the risk of undue
prejudice is on the party urging exclusion. State v. Carter,
91 N.J. 86, 106 (1982); State v. Collier,
316 N.J. Super. 181, 193
(App. Div. 1998).
Other-crime evidence is generally simultaneously highly
probative and extremely prejudicial. State v. Stevens,
115 N.J. 289, 300 (1989). This is particularly true where the relevant
issue is identity. Therefore, if identity can be proven through
other evidence, the balance in weighing the probative value of the
other-crime evidence against its resultant prejudice may tip in
favor of exclusion. In State v. Hardaway,
269 N.J. Super. 627
(App. Div. 1994), we reversed admission of defendant's
participation in a prior armed robbery to prove defendant's
presence at the scene of a homicide where the same handgun was used
in commission of both crimes. While possession of the handgun at
the robbery within three weeks of the homicide shooting was
evidence of defendant's presence at the shooting, there was less
prejudicial evidence available to establish defendant's prior
possession of the handgun. Id. at 630. We explained:
Before the court admits such evidence, its
`probative value . . . should be carefully
balanced against the danger that it will
create undue prejudice against the defendant.'
(quoting from State v. Stevens,
115 N.J. 289,
302 (1989)). Evid.R. 4 (now N.J.R.E. 403).
The weighing process required the court on its
own initiative to determine the scope and
content of the proffered evidence to be sure
that the fact it is offered to prove cannot be
proved by less prejudicial evidence.
[State v. Hardaway, 269 N.J. Super. at 630-31.]
The inquiry of whether the fact in issue can be proved by less
prejudicial evidence than introduction of the other-crime evidence
actually focuses on the genuineness of that issue, and whether
admission of the other-crime evidence is really necessary to
establish that element of the crime. See State v. Stevens, 115
N.J. at 301. Pertinent to this case, in view of the available
evidence, can the State prove identity in the Padilla murder
prosecution without introducing evidence of defendant's conduct in
the Maine incident?
Defendant argues the State already has evidence of defendant's
identity in the Padilla murder, tipping the scales in favor of
exclusion. Defendant points to the testimony of Dr. Levine, who
was able to make a comparison of the bite mark found on Padilla's
left breast to defendant's teeth marks, without any reference to
the Maine incident. Defendant also points to DNA and other
circumstantial evidence linking him to the crime scene. The trial
judge carefully considered this argument in his written opinion,
stating, in relevant part:
At the N.J.R.E. 104 hearing, the only
physical evidence adduced to link Fortin to
the scene of Melissa Padilla's murder was the
testimony of Dr. Levine, who testified that
Fortin caused the bite mark to the outer
aspect of the left breast of Melissa Padilla,
and a cigarette butt found near the crime
scene, which a laboratory determined contained
Fortin's DNA. Without the evidence of the
crime against Trooper Gardner, I find that the
State lacks evidence on the issue of identity
for two reasons. First, a jury could
disregard the bite mark evidence as suspect.
Second, the DNA evidence found on the
cigarette butt reasonably could be found by
the trier of fact not to be significant since
Fortin lived in the area.
Given our standard of review, we are satisfied the trial
judge's decision was not "so wide of the mark that a manifest
denial of justice resulted," or that his ruling constitutes an
abuse of discretion. State v. Marrero, 148 N.J. at 484 (quoting
State v. Kelly,
97 N.J. 178, 216 (1984)). The judge carefully
applied the four-prong test outlined in Cofield in determining
whether the proffered other-crime evidence was admissible.
The potential for prejudice by admission of the other-crime
evidence in this case is great. Therefore, while we are in accord
with the judge's ruling permitting its admission, at trial the
judge must "sanitize" the other-crime evidence by confining its
admissibility to those facts reasonably necessary for the probative
purpose of "identity." See State v. Collier, 316 N.J. Super. at
195. To an extent, the judge ruling inadmissible defendant's
guilty plea in Maine, goes to this effort of minimizing the
prejudicial effect. In Collier, we explained:
We conclude that a trial judge, in
admitting other-crimes evidence that is
inherently inflammatory must take appropriate
steps to reduce the inherent prejudice of that
evidence by considering whether it can
reasonably be presented to the jury in a less
prejudicial form, and, when necessary,
requiring the evidence to be presented to the
jury in a sanitized form. That sanitizing
accommodates the right of the proponent to
present relevant evidence and the right of the
objecting party to avoid undue prejudice.
[Id. at 195.]
Here, the State offered the other-crime evidence to establish
the identity of defendant as the perpetrator of the Padilla murder.
The similarity in the two crimes is the linchpin to the admission
of the Maine evidence. Evidence of the similarity of the assault
and the resultant injuries to Trooper Gardner are the signature
warranting admission. The other details of the Maine incident,
such as defendant driving away in the police car, attempting to
push Trooper Gardner from the vehicle, the vehicle flipping over,
his flight from the scene and ultimate apprehension are highly
inflammatory, and do not go directly to the issue of "identity."
We cite these facts by way of example and not in limitation of the
sanitizing effort that must be undertaken by the trial judge prior
to submission of the other-crime evidence to the jury.
Before trial, counsel should confer in an attempt to agree as
to what should be presented to the jury concerning the Maine
incident to reasonably satisfy the State's need to present evidence
on the issue of identity, while still protecting defendant's right
to a fair trial. If the parties cannot agree, the judge must
conduct another hearing pursuant to N.J.R.E. 104(a) and, after
balancing the State's probative needs against the resultant
prejudice, "appropriately sanitize the evidence to assure that the
rights of both the State and defendant are protected." Id. at 196.
Defendant also contends the judge erred in qualifying Roy Hazelwood as an expert on modus operandi and ritualistic behavior, pursuant to N.J.R.E. 702, to express his opinion that the same person who committed the Maine assault against Trooper Gardner is the same person who committed the Padilla murder. We agree.
The trial judge makes the preliminary determination whether an expert's testimony would enhance the juror's understanding. State v. J.Q., 252 N.J. Super. 11, 26 (App. Div. 1991), aff'd., 130 N.J. 554 (1993). Such evidential discretionary rulings should not be disturbed unless the trial judge abused his discretion. State v. Harvey, 151 N.J. 117, 166 (1997). "In determining the general acceptance of novel scientific evidence in one case, the court generally will establish the acceptance of that evidence in other cases." Id. at 167 (citing Jones v. United States, 548 A.2d 35, 40 (D.C. 1988)). However,
Notwithstanding the trial court's better position to shape the record and make factual determinations, appellate courts retain an important residual role for questions concerning the admission of scientific evidence. Like trial courts, appellate courts can digest expert testimony as well as review scientific literature, judicial decisions, and other authorities. To the extent that general acceptance focuses on issues other than a witness's credibility or qualifications, deference to the trial court is less appropriate.
[State v. Harvey, 151 N.J. at 167 (citing
People v. Miller,
173 Ill.2d 167,
219 Ill.Dec. 43, 60-62 (1996) (McMorrow, J., concurring))].
When reviewing a decision on the
admission of scientific evidence, an appellate
court should scrutinize the record and
independently review the relevant authorities,
including judicial opinions and scientific
literature. In the rapidly changing world of
modern science, continuing research may affect
the scientific community's acceptance of a
novel technology. By reviewing post-trial
publications, an appellate court can account
for the rapid pace of new technology. The
continuing review also recognizes that general
acceptance may change between the time of
trial and the time of appellate review.
[State v. Harvey, 151 N.J. at 167-68 (citing
State v. Bible,
175 Ariz. 549 n.33 (1993),
cert. denied,
511 U.S. 1046 (1994)).]
Here, as the judge noted, Hazelwood testified "this analysis
is not based on science, but based on his training and experience
with violent crimes." While not based on science in the technical
sense, his linkage-analysis methodology is certainly founded in the
area of behavioral science, in that it analyzes the conduct of the
crime perpetrator in two or more crimes to determine whether there
is sufficient consistency of behavior to conclude that one person
committed both crimes.
We conclude that the same detailed analysis regarding
admission of scientific evidence is applicable and necessary in
determining whether linkage-analysis expert testimony is
admissible. Theories or methods of explaining human conduct and
behavior have consistently been subject to significant scrutiny and
analysis by our courts when admission is sought. See State v.
J.Q., 130 N.J. at 566-71 (examining relevant authorities and
literature in admitting expert testimony concerning the Child
Sexual Abuse Accommodation Syndrome (CSAAS) to explain to the jury
why victims of sexual abuse recant, but not admissible to prove
sexual abuse occurred); State v. Kelly, 97 N.J. at 190-97
(analyzing and accepting expert testimony on the Battered Women's
Syndrome in a criminal trial as relevant to the honesty and
reasonableness of defendant's belief she was in danger of death or
serious injury as relevant to the claim of self-defense); State v.
Cavallo,
88 N.J. 508, 516-26 (1982) (analyzing and rejecting
proffered psychiatric testimony that defendant did not have the
psychological traits of a rapist, based on failure of defendant to
establish that such evidence is based on reasonably reliable
scientific premises). The admission of linkage-analysis testimony
has serious consequences, as it is essentially ultimate-issue
evidence. Here, defendant has admitted to the Maine assault on
Trooper Gardner. The State proposes for Hazelwood to testify that
the same person who committed the Maine assault also committed the
Padilla murder. The jury could easily interpret that testimony as
an expert conclusion that defendant committed the Padilla murder.
Whether the jury accepts that testimony is a different issue. Our
Supreme Court has viewed such evidence with skepticism:
We have repeatedly and consistently
recognized that a jury's determination of
criminal guilt or innocence is its exclusive
responsibility. State v. Simon,
79 N.J. 191
(1979). A jury's verdict of ultimate criminal
liability can never be equated simply with its
determination of underlying facts; the
determination of guilt or innocence transcends
the facts on which it is based, no matter how
compelling or inexorable those facts may be.
State v. Ragland,
105 N.J. 189 (1986). The
determination of facts that serve to establish
guilt or innocence is a function reserved
exclusively to the jury. State v. Collier,
90 N.J. 117 (1982). Hence, an expert's testimony
that expresses a direct opinion that defendant
is guilty of the crime charged is wholly
improper.
[State v. Odom,
116 N.J. 65, 77 (1989)
(emphasis supplied).]
Here, the judge applied the requirements contained in State v.
Berry,
140 N.J. 280, 289-90 (1995), for admission of expert
testimony:
(1) the intended testimony must concern a
subject matter that is beyond the ken of
the average juror;
(2) the field testified to must be at a state
of the art such that an expert's
testimony could be sufficiently reliable;
and
(3) the witness must have sufficient
expertise to offer the intended
testimony.
[Id. at 290 (1995) (citing State v. Kelly, 97
N.J. at 297 (1984)).]
In his written opinion, the judge provided a comprehensive
discussion of the criteria listed in Berry. We certainly agree
with his conclusion that Hazelwood's testimony would assist the
trier of fact in understanding how crimes can be linked together
through criminal investigative analysis of the modus operandi and
ritualistic behavior associated with the crimes. We also agree
that Hazelwood has extensive expertise in the area of criminal
investigative techniques. Where we differ with the judge is his
conclusion that Hazelwood's linkage analysis is sufficiently
reliable for admission in this capital murder prosecution.
The State argues that expert linkage-analysis testimony has
been admitted in other jurisdictions as sufficiently reliable.
In State v. Pennell,
602 A.2d 48 (Del.Supr. 1991), the defendant
was indicted and tried on three counts of murder. The murders were
committed on three separate dates in the same general area over a
ten-month period. There was substantial physical and
circumstantial evidence linking defendant to two of the murders,
including DNA and fiber matches. There were also marked
similarities in the three crimes. All three victims were known
female prostitutes and all had similar injuries, including ligature
strangulation marks; numerous skull injuries; pattern bruising of
the left breast and nipple; and wrist injuries, suggestive of
bondage. The cause of death for two of the victims was identical,
strangulation and blunt force injury. The cause of death of the
third victim could not be determined because the body, found in the
water, was submerged for too long. However, the injuries to her
body were remarkably similar to those found on the other two
victims.
Defendant was repeatedly observed driving a blue van with no
side windows and rounded headlights in the area of the murders. A
prostitution-decoy operation and surveillance of defendant resulted
in sufficient probable cause for obtaining a search warrant,
yielding fibers matching those found on one of the victims; duct
tape similar to that found in the hair of another victim; a blood
stain in the van; pairs of pliers consistent with pinch-type
bruises on the abdomen of one of the victims; and a bag of unused
flexicuffs.
Additionally, while there was insufficient evidence to link
defendant to the murder of a fourth prostitute, there was evidence
received at trial that just before her disappearance, a prostitute
was seen entering a blue van with no side windows and rounded
headlights. That evidence was received under Delaware Rule of
Evidence 404(b) (virtually identical to N.J.R.E. 404(b)), to
explain why the police conducted the investigation as they did, and
what information they had while conducting the investigation.
The trial court permitted the State to offer agent John
Douglas, Director of the F.B.I.'s Behavioral Science Unit, as an
expert in the area of serial murder, pursuant to Delaware Rule of
Evidence 702 (identical to N.J.R.E. 702). Douglas reviewed the
three murders and opined that they were all committed by the same
person.
Defendant was convicted of two of the murders, but the jury
was unable to reach a verdict on the third murder of the victim
whose body was found in the water. On appeal before the Delaware
Supreme Court, the convictions were affirmed. In ruling on the
testimony of agent Douglas, the court stated, in relevant part:
Pennell argues that the trial court abused
its discretion in allowing F.B.I. Agent
Douglas to testify as an expert on serial
murders. He contends that this was not the
proper subject of expert testimony.
Pennell's attempt to apply the Frye test
and its progeny to Agent Douglas' testimony is
misplaced. Those cases concern the
reliability, accuracy and admissibility of
certain scientific tests. Agent Douglas, on
the other hand, was providing an expert
opinion based upon his knowledge and
experience in the field of crime analysis.
This Court has held that when an expert's
opinion is based solely upon his own knowledge
and experience, the Frye test has no
application.
The admissibility of Agent Douglas'
opinion, therefore, is governed by Delaware
Rule of Evidence 702 ("Rule 702") . . . .
. . . .
Douglas' extensive experience with
signature crimes and crimes analysis was
specialized, and if accepted by the jury,
could be helpful to it in understanding
behavior unknown to the general public. . . .
Whether all three murders were committed by
the same person was clearly a "fact in issue"
for purposes of Rule 702. In addition, Agent
Douglas was unquestionably qualified as an
expert. Accordingly, the trial court properly
found his testimony to be admissible opinion
testimony under Rule 702.
[Pennell v. State, 602 A.
2d at 54-55
(citations omitted).]
In reflecting on his role in the Pennell trial, Douglas wrote
in his book Mindhunter:
At Pennell's trial, I was called to
testify about the signature aspects of the
case. The defense was trying to show that it
was unlikely these crimes were all committed
by the same individual because so many details
of the modus operandi varied. I made it
clear that regardless of the MO, the common
denominator in each of the murders was
physical, sexual, and emotional torture. In
some cases the murderer had used pliers to
squeeze his victims' breasts and cut their
nipples. He had bound others at the wrists
and ankles, cut them on the legs, whipped or
beaten their buttocks, or hit them with a
hammer. So, though the methods of torture
varied - the MO, if you will - the signature
was the pleasure he received out of inflicting
pain and hearing his victims' anguished
screams. This wasn't necessary to accomplish
the murder. It was necessary for him to get
what he wanted out of the crime.
[John Douglas & Mark Olshaker, Mindhunter 253
(1995).]
The development of the linkage-analysis approach to crime
analysis had its origins in the serial crime studies undertaken by
the Behavioral Science Unit of the F.B.I., later known as the
Investigative Support Unit, conducted under the supervision of
Douglas beginning in the late 1970s. Id. at 32. Douglas and
others, including Hazelwood, conducted exhaustive prison interviews
of convicted serial killers to collect and analyze profile and
modus operandi data, developing a behavioral approach to criminal-personality profiling, crime analysis and prosecutorial strategy.
Id. at 31. The F.B.I. then successfully field-tested this method
beginning in 1978, by offering psychological profiling consulting
services to local law enforcement agencies, resulting in the
solving of many serial crimes. Id. at 159. Douglas concluded that
"the more behavior we have, the more complete the profile and
analysis we can give to the local police." Id. at 31.
Douglas explained the development of this investigative
technique, as follows:
There was something inherent, deep within
the criminal's mind and psyche, that compelled
him to do things in a certain way. Later, when
I started research into the minds and
motivations of serial murderers, then, when I
began analyzing crime scenes for behavioral
clues, I would look for the one element or set
of elements that made the crime and the
criminal stand out, that represented what he
was.
Eventually, I would come up with the term
signature to describe this unique element and
personal compulsion, which remained static.
And I would use it as distinguishable from the
traditional concept of modus operandi, which
is fluid and can change. This became the core
of what we do in the Investigative Support
Unit.
[Mindhunter at 69.]
In Pennell, by definition, Douglas was analyzing the signature
behavior of a serial killer, with distinctive behavioral data from
three crime scenes. There was overwhelming evidence of
commonality, linking all three murders. While there were
differences and similarities in the modus operandi of each murder,
the signature was the same. Here, in contrast, there are as many
differences as there are similarities in both the modus operandi
and signature aspects of the Padilla murder and Maine assault, and
there is insufficient evidence to conclude defendant is a serial
offender. The basis for development of the linkage-analysis method
of identification is the study of serial offenders and three or
more crime scenes. See Stephen G. Michaud with Roy Hazelwood, The
Evil That Men Do, 177-87 (1998).
In State v. Code,
627 So.2d 1373 (La. 1993), cert. denied,
511 U.S. 1100,
114 S.Ct. 1870,
128 L.Ed.2d 491 (1994), the defendant
was charged with eight counts of first-degree murder occurring
during three separate incidents over a three-year period in the
same general neighborhood. This case involved the trial of
defendant on four of those murders occurring on a single date.
Defendant was convicted and sentenced to death.
There were overwhelming similarities between the eight
murders. All occurred in the same neighborhood where defendant
lived; there was substantial physical evidence linking defendant to
all three murder scenes, including matching latent fingerprints and
similar electrical cord and duct tape used at each scene seized
from defendant's home during a consensual search; all but one of
the eight victims had their hands tied behind their backs through
use of a unique handcuff ligature, with use of a distinctive knot;
electrical cord from inside each of the three residences was used
to tie most of the victims; most of the victims were gagged, some
secured by duct tape; at two murder sites the victims were stabbed
multiple times and strangled, and at the third site they were shot
and strangled; the murderer was right-handed, as was defendant; the
method of binding used on the victims demonstrated the use of total
control over the victims during the murders; defendant was observed
in the crowd gathering to view the murder scene after each murder;
the throat of three of the victims was cut in a distinctive manner,
nearly severing the head; at each of the murder sites, the clothing
found on one victim was turned inside out; and the coroner's
reports and testimony identified the various signature elements of
the murders.
The trial judge permitted evidence of the murders occurring on
the two other occasions under La.Code of Evid. art. 404(B)(1),
virtually identical to N.J.R.E. 404(b), as "other crimes" evidence
on the issue of modus operandi. On appeal, the Louisiana Supreme
Court recited the requirements for admission of such evidence:
(1) there must be clear and convincing
evidence of the commission of the other crimes
and defendant's connection therewith; (2) the
modus operandi employed by the defendant in
both the charged and uncharged offenses must
be so peculiarly distinctive that one must
logically say they are the work of the same
person; (3) the other crimes evidence must be
substantially relevant for some other purpose
than to show a probability that the defendant
committed the crime on trial because he is a
man of criminal character; (4) the other
crimes evidence must tend to prove a material
fact genuinely at issue; and (5) the probative
value of the extraneous crimes evidence must
outweigh its prejudicial effect.
[State v. Code, 627 So.
2d at 1381.]
At a pretrial hearing concerning admissibility of the "other
crimes" evidence, the state introduced substantial proof showing
the connection between defendant and the three murders, in addition
to the testimony of the coroner that all three crime scenes were
signature crimes of one person. The signature aspects found by the
coroner were the handcuff-type bindings with electrical cord, the
use of a knife to stab or cut and the immobilization of the
victims.
In Code, agent Douglas of the F.B.I. testified at the pretrial
hearing as an expert in the field of criminal investigative
analysis. Douglas testified the murders were the work of one
person. In reaching that conclusion, Douglas relied on several
identical ritual aspects of the murders, the most important being
the distinctive handcuff ligature, one he had never seen in all his
years of experience. Another ritual aspect of the murders he
relied upon in reaching his conclusi