# State v. Fortin

> Supreme Court of New Jersey · February 6, 2004 · 178 N.J. 540

URL: https://www.frixlaw.com/law-library/cases/9629638

## Case

- **Full name:** State of New Jersey, Plaintiff-Respondent, v. Steven R. Fortin, Defendant-Appellant
- **Court:** Supreme Court of New Jersey
- **Decided:** February 6, 2004
- **Citations:** 178 N.J. 540; 843 A.2d 974
- **Precedential status:** Published
- **Opinion:** Concurring in part by Verniero
- **Judges:** Albin, Verniero
- **Cited by:** 137 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Declined to follow by Evans v. State, 389 Md. 456 (2005).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9629638

## How later opinions describe it (automated extraction)

- holding that defendant could validly waive protection of Ex Post Factocltmse in order to obtain jury instruction based on statute which required sentence of life imprisonment without parole for capital murder, and further observing that “[o]ther jurisdictions also have allowed…
- concluding that the court's holding, which required that aggravating facts in capital cases be alleged in the indictment, was limited to purely prospective application, in light of the prosecution's reliance on the court's previous ruling that such facts did not have to be all…
- applying retroactivity analysis, determining that Fortin's holding constitutes a "new rule" and defining that "[i]n all future cases, the State is required to submit the aggravating factors to the grand jury and specify in the indictment those factors it intends to prove at a …
- finding reversible error where a retired FBI profiler was permitted to testify on violent sexual crimes without producing a reliable database of violent sexual assault cases he had investigated, studied and analyzed

## Opinion text

*651 Justice VERNIERO,
concurring and dissenting.
I join the Court in setting aside defendant’s conviction and death sentence and concur in all but two narrow aspects of its opinion. The first issue concerns whether the State is required to submit aggravating factors to a grand jury to be included in a capital indictment. I start with a fundamental premise that this Court should direct the co-equal branches of government to alter existing statutory practices only when federal or a superior State law requires that direction. There is no such mandate to compel that result today. Accordingly, I would affirm the long-standing practice of having prosecutors serve notice of aggravating factors on a defendant in a capital case, a straightforward statutory procedure that provides fair notice to an accused in this setting.
This Court in State v. Martini squarely rejected the argument that, as a matter of State law, aggravating factors are elements of capital murder subject to the indictment requirement. 131 N.J. 176, 222-28 , 619 A.2d 1208, 1230-34 (1993). In reaching our holding, we specifically acknowledged but were not persuaded by the notion that, in every ease, aggravators should be considered the “functional equivalent” of elements. Id. at 225-26 , 619 A.2d at 1232 . Although two members dissented on other aspects of the Court’s decision, the dissenters registered no disagreement on the indictment question. Id. at 324-68 , 619 A.2d at 1286-1308 (Handler, J., dissenting) (disagreeing with majority on certain issues but not on indictment question). The Court, therefore, resolved that issue unanimously and reaffirmed its holding as recently as a few years ago. State v. Timmendequas, 161 N.J. 515, 638 , 737 A.2d 55, 122 (1999).
Its rationale need not be repeated here, except to say that the Martini Court concluded that New Jersey’s legislatively-established system “adequately ensures that capital-cause defendants are afforded both of the protections contemplated by the Constitution: adequate notice and well-founded prosecutions.” Martini, supra, 131 N.J. at 227 , 619 A.2d at 1233 . The Court also *652 expressed concerns about the negative consequences of a contrary conclusion, observing
in some instances, inclusion of alleged aggravating factors in the indictment would create the unwanted situation of having the factors read to the jury at the start of trial. For example, if the State were seeking to establish aggravating factor c(4)(a), that defendant had previously been convicted of murder, a reading of the indictment to the jury during the guilt phase could substantially prejudice the trial's outcome.
[Id. at 226-27, 619 A.2d at 1233 .]
Martini is still good law notwithstanding the United States Supreme Court decision in Ring v. Arizona, 536 U.S. 584, 588-89 , 122 S.Ct. 2428, 2432 , 153 L.Ed.2d 556, 564 (2002). In that case, the Supreme Court held that Arizona’s capital system impermissibly assigned to a judge rather than a petit jury the task of determining whether the aggravating factors available under Arizona law had been established in a given case. That is not a question here because New Jersey’s system already provides that a petit jury, not a judge, must determine whether the State has established such factors beyond a reasonable doubt. See State v. Koskovich, 168 N.J. 448, 518-27 , 776 A.2d 144, 188-94 (2001) (outlining function of petit jury in respect of aggravating and mitigating factors in capital trial). Viewed narrowly, Ring is distinguishable on that basis alone.
Moreover, the United States Supreme Court grounded its decision on the fact that, as a matter of state law, the Arizona Supreme Court essentially had concluded that aggravating factors under Arizona’s system constituted elements of capital murder. Ring, supra, 536 U.S. at 595 , 122 S.Ct. at 2436 , 153 L.Ed.2d at 568 . As just noted, we considered and rejected that construction of New Jersey’s statute in Martini. In other words, there is nothing explicitly stated in Ring that requires us suddenly to change direction in respect of capital indictments. That federal prosecutors or lower federal courts, out of an abundance of caution, have assumed that aggravating factors are to be included in federal indictments in the face of Ring does not mean that Ring requires that practice in New Jersey.
*653 Nor does Apprendi v. New Jersey warrant our reversing course. 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). Like the issue presented in Ring , the narrow question in Apprendi was whether New Jersey’s hate-crime statute impermissibly permitted a judge rather than a petit jury to make certain findings. In invalidating that aspect of the statute, the Supreme Court noted that it was not addressing any issue concerning the indictment requirement. Id. at 477 n. 3, 120 S.Ct. at 2355 n. 3, 147 L.Ed.2d at 447 n. 3. I am particularly hesitant to expand the rationale of Apprendi in the present circumstance in view of our recent recognition that the Supreme Court itself appears to be narrowing, not broadening, Apprendi’& scope. See State v. Stanton, 176 N.J. 75, 94-96 , 820 A.2d 637, 648-50 (2003) (discussing Apprendi in aftermath of subsequent decision in Harris v. United States, 536 U.S. 545 , 122 S.Ct. 2406 , 153 L.Ed.2d 524 (2002)).
In short, federal law as reflected in Ring and Apprendi does not require New Jersey to submit aggravating factors to grand jurors. Other jurisdictions have reached a like conclusion in respect of their own capital systems. See, e.g., State v. Hunt, 357 N.C. 257 , 582 S.E.2d 593, 602-04 (2003) (concluding that Ring does not require statutory aggravators to be included in capital indictment and observing that “[o]ur independent review of decisions from our sister states reveals that to this date every state court addressing the above-noted issue has held that Ring does not require that aggravating factors be alleged in the indictment”). For me, then, the question is whether defendant has presented any new arguments that would compel us to alter our conclusion first articulated in Martini in 1993 and reaffirmed in Timmendequas in 1999. In my view, he has not.
I acknowledge that requiring the submission of aggravators before the grand jury might not overly burden the State. That said, consistent with my view of the judiciary as a coordinate branch of government, I am disinclined to impose that requirement absent a constitutional imperative. The Martini Court was satisfied that no such imperative existed under New Jersey law *654 and that the current system adequately protects a defendant. For the reasons already stated, federal law does not require us to alter that determination. Moreover, without our directing them to act, the executive and legislative branches still would be free to expand capital indictments to include statutory aggravators. In view of the foregoing, I would leave Martini undisturbed.
As for the second issue, I respectfully dissent from the Court’s conclusion that, in contravention of the ex post facto clause, the Legislature intended to apply the amended language found under N.J.S.A. 2C:11-3b(4) to defendant’s trial. As I see it, lawmakers intended to avoid rather than create a constitutional issue consistent with the principle that a challenged statute should be construed “to avoid a statutory interpretation that might give rise to serious constitutional questions.” Silverman v. Berkson, 141 N.J. 412, 417 , 661 A.2d 1266, 1268 (1995). The question whether the trial court erred in denying defendant the option of waiving his ex post facto protections is, therefore, moot.
There is nothing on the face of the revised statute that evinces an intention by the Legislature to apply it to crimes committed prior to the amendment’s August 22, 2000, effective date. Hence, there was no ex post facto protection that defendant needed to waive. Indeed, as the Attorney General points out in his brief, “the Judges Bench Manual for Capital Causes, at page 291, instructs trial judges to apply the 2C:ll-3b(4) amendment to cases where the offense occurred after August 22, 2000.”
Moreover, I find support in the legislative history for the proposition that lawmakers were sensitive to ex post facto concerns and studiously avoided them. A draft version of the statute was pre-filed for introduction by its sponsors pending review by legislative counsel. That version required imposition of a life sentence with no eligibility for parole “if a sentence of death is not upheld on appeal and the death penalty is not reimposed in a subsequent proceeding!.]” Assembly, No. 1482 (Pre-Filed for Introduction in the 2000 Session) (emphasis added). That lan *655 guage was deleted, and the Legislature subsequently adopted the statute’s current text. L. 2000, c. 88.
Had the earlier language regarding appeals remained, defendant could have invoked it at this juncture as proof that lawmakers intended to apply the statute to him. Its timely removal by the Legislature suggests a sensitivity to constitutional issues incongruent with today’s interpretation. Equally important, our canons of statutory construction presume that the Legislature intends only constitutional enactments. Right to Choose v. Byrne, 91 N.J. 287, 311 , 450 A.2d 925, 937 (1982). Based on that presumption, the revised statute presents defendant with no ex post facto issue, rendering moot his desire to consent to the amendment’s application. For that reason, the trial court did not err by instructing the jury on the basis of the law as it stood in 1994.
Justice LaVECCHIA joins in this opinion.
For reversing and remanding — Chief Justice PORITZ and Justices LONG, ZAZZALI, and ALBIN — 4.
Concurring in part!dissenting in part — Justices VERNIERO and LaVECCHIA — 2.
ORDER
This matter having come before the Court on the State’s motion for clarification of certain aspects of the opinion and judgment filed February 3, 2004,
And the Court having duly considered the submissions of counsel and having determined that the application should be resolved on an expedited basis,
And good cause appearing;
IT IS ORDERED that the motion is granted, and the judgment of the Court is clarified as follows:
*656 1. In any case in which the penalty phase of a capital case had begun before the issuance of the Fortin opinion, including any case in which the trial court had begun empanelling a jury, there is no requirement that the State present the aggravating factors to a Grand Jury.
2. In any case in which the guilt phase of the capital case had begun before the issuance of the Fortin opinion, including any case in which the trial court had begun empanelling a jury, the State may present aggravating factors that were listed in the Notice of Aggravating Factors before a Grand Jury for the purpose of obtaining a supplemental indictment alleging any such factors that would warrant a capital penalty phase. The State has the option of waiting until the verdict in the guilt phase to make that decision. And
3. In any case in which there are separate juries empanelled in the guilt phase and penalty phase of a capital case, the trial court must not read that portion of the indictment concerning the aggravating factors to the guilt-phase jury. In any case in which the same jury is empanelled in the guilt and penalty phases of a capital case, the trial court — without reference to the indictment— must advise the prospective jurors of the alleged aggravating factors during jury selection to permit voir dire on those factors. And it is further
ORDERED that the Clerk of the Court is directed to incorporate the foregoing clarifications in the opinion of the Court.
Chief Justice PORITZ and Justices, LONG, ZAZZALI, and ALBIN join in the Court’s Order.
Justices VERNIERO and LaVECCHIA would deny the application, maintaining the position articulated in Justice Verniero’s concurring and dissenting opinion in this matter. Justice WALLACE did not participate.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9629638. Public record. Not legal advice.