State v. JasuilewiczState v. Jasuilewicz
Defendant has appealed from convictions for murder,
The offense need only briefly be described. Defendant killed his mother by stabbing her 21 times. He then threatened his brother with the knife, but the brother was able to escape the family home and summon the authorities who found defendant sitting on the roof of the house with his hands in his lap, his head down and with blood on his arms, face and clothes. He was 31 years old at the time of the killing and obviously a severely disturbed person. His psychiatric problems had been evident since he was 16 or 17, and he had prior convictions for inhaling cleaning fluids, carrying a weapon and violation of probation for continuing to sniff paint thinners. The defense psychiatrist, Dr. Kuvin, testified at the competency and the
After the homicide, and in spite of the overwhelming evidence, defendant denied murdering his mother, blaming the crime upon his brother. He was adamant that he had not committed the act and that he was not insane. At trial he reiterated the denial and further denied preparation of letters in his own handwriting that strongly indicated his mental instability. Only after hearing Dr. Kuvin‘s testimony concerning defendant‘s psychiatric problems and explaining of defendant‘s memory and thought delusions including that his brother Dan had committed the homicide, as well as the “massive denial phenomenon” that caused him to believe that he was not mentally ill, did defendant allow his attorney to proceed with the insanity defense.
Thank you, Mr. Prosecutor. Ladies and gentlemen, I am going to ask you to rise with me. Some of the people‘s eyes are getting closed, and I want to have all of you awake when I talk to you. The reason I am doing this, ordinarily I would take a break but, ladies and gentlemen, there is some law that I have to read to you, and it is my policy to give it to you right away so I am just asking you to stretch for a moment, and the reason for it particularly is, if you know, I avoided talking about it so far in the case that occurred in Washington. Each morning I was confronted with the lawyers saying look what the Ledger has and the Times. Ladies and gentlemen, that is beyond my control, that I hope that that case has no part in your thinking.
Ladies and gentlemen, first of all, before I even start, I just want to let you know that the standards they use in Washington, D.C. are completely different than the standards of law we have here in New Jersey. It is completely different. I know that you have seen and you have heard some repercussions by the Attorney General of the United States, and the other people for and against that case. That has no part, ladies and gentlemen. That is a rather unusual case, and I think all of us who understand the law know that it is completely different from the law here in New Jersey.
Later the court stated,
... Now, ladies and gentlemen, and again I have to be very cautious with you. Again that you and I have been confronted this week, and I mention it now, and I did mention it all week of the trial in Washington. Again, I told you at the very beginning, it has no part in this case, ladies and gentlemen. The standards used there are completely different from ours. I have my own thought on that case, but that is not important, and I hope and I pray that all of you do not consider that case to have any part in this case here at all. All right? That is for — not because I can‘t very well tell you to erase it out of your mind. We discussed this, both the Prosecutor and Mr. Graves. But every morning you have on television, you heard it. You read the paper and in the afternoon you heard it. Anyway, that is a case in Washington. We here in Newark, New Jersey are deciding a different case. All right? Because here in New Jersey, ladies and gentlemen, our standards are a lot different.
At the end of the third day of trial there was another brief (three sentence) reference to the Hinckley trial:
Now ladies and gentlemen, I would like to — I have stayed away purposely to avoid talking about a sensational trial we heard in Washington. I know last night when I looked at the television, I heard it, and you will hear a great deal of it again today. You are not to in any way be prejudiced by this.
I
PRE-VERDICT PUBLICITY
In the face of substantial publicity (whether or not concerning the trial itself,) it is well settled that a criminal defendant is entitled to an impartial jury. Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600, 620 (1966); State v. Williams, 93 N.J. 39, 60 (1983). The rule should be no different where the publicity concerns outside events which might bear upon the trial. The trial judge here acknowledged that the jury had been and was being subjected to the extensive publicity concerning the Hinckley case. We assume, as did he, that he could not have obtained a jury
In approaching the question of shielding a jury from press publicity, our Supreme Court in State v. Allen, 73 N.J. 132, 141-145 (1977), suggested several alternate methods for protecting the jury from outside influences. Although the First Amendment issues were later reconsidered in State v. Williams, supra, 93 N.J. at 48 the Williams redefinition does not affect the alternatives available to insulate a jury from the adverse effects of publicity. If the publicity is expected to occur during the trial a jury may be sequestered (although this procedure is not favored), and clear and definitive instructions to refrain from reading or listening to media reports can be given. The Allen suggestion of limited in camera hearings was even further circumscribed in Williams, 93 N.J. at 63-67. If the offending material is the subject of pretrial publicity,
the trial court has available additional means such as (a) adjournment of the trial to allow public attention to subside, (b) change of venue, (c) foreign jury, (d) searching questioning of prospective jurors to screen out those infected by pretrial publicity and, (e) emphatic and clear instructions to the jury to decide the issues only on evidence presented in open court. See Sheppard v. Maxwell, supra. 384 U.S. at 357-362. 86 S.Ct. at 1519-1522, 16 L.Ed.2d at 617-620; Nebraska [Press Assoc. v. Stuart, 427 U.S. [539,] 563. 96 S.Ct. [2791,] 2808, 49 L.Ed.2d [683,] 700. (73 N.J. at 145).
In Williams, the court, after discussing other alternatives, specifically focused upon consideration of “the efficacy of more exhaustive and searching voir dire examinations,” and being “particularly responsive to the requests of counsel regarding the examination of prospective jurors as to potential bias,” even to the point of “a greater willingness to resolve doubts in favor of the defendant in excusing jurors for cause.” (93 N.J. at 68).
In this case the trial judge chose not to adjourn the matter to let the publicity subside. Although there appeared to have been little likelihood that the issue would have been out of the
In this unusual situation, since the judge could not have been expected to select a jury untainted by the publicity, he should have at least insured that the jury he did obtain was untainted by prejudice caused by that publicity. Unfortunately, he failed to do so. Defendant repeatedly requested a voir dire concerning the effect upon each juror of the Hinckley publicity. These requests were denied. Not only were there no “searching” questions, there were no questions at all. The instructions quoted earlier, although directing the jury to apply the different standards applicable in New Jersey, were insufficient. The court and parties needed to know whether the individual jurors, acknowledged to be tainted by the publicity, had formed any prejudice against the insanity defense in general or a fixed opinion as to this defendant‘s guilt or innocence as a result of the extra-judicial influences and whether they could still be guided by the court‘s instructions. Insofar as the problem existed at the time of the voir dire, this information should have been unearthed so that the defendant could have exercised either cause or peremptory challenges as the situation required.
While the rules is drawn in terms of a post-verdict interrogation of jurors, the technique provided by the rule for determining juror taint is obviously applicable during the course of the trial as well when a circumstance arises suggesting that a juror may in fact be tainted. In that situation the trial court, upon being apprised of such a circumstance, is obliged to interrogate the juror in the presence of counsel and to determine if there is a taint and if so, if any other jurors have been infected thereby. If the court does find a taint, it must then determine, as assuming a sufficient number of jurors remain, whether the trial may proceed upon excusing the tainted juror or jurors or whether a mistrial must be declared. If the trial court fails to so proceed and the circumstance is indeed one which is apparently tainting, the taint must be presumed and a new trial ordered.
If a single statement warrants such action, how much more should the action have been warranted when the entire trial proceeded in the face of a constant stream of infectious publicity? The failure to so proceed was reversible error. See State v. Marchitto, 132 N.J. Super. 511, 514-517, (App.Div.), certif. den. 68 N.J. 163 (1975).
Given this situation, we would add a gloss to the suggestions of the Supreme Court in Allen and Williams. Whenever the public tenor is such that a jury may reasonably be expected to be unable to exercise its judgment untainted by a prejudice, the jury should be pre-qualified to screen from the pool those individuals so infected. There is ample precedent for such a procedure in the “death qualified” jury now selected in capital
In this case the better practice would have been for the matter to have been adjourned if defendant so requested as soon as the Hinckley verdict was returned and the initial wave of publicity against the insanity defense became apparent to the trial judge. After a few weeks or months when the publicity had subsided, if a searching voir dire of potential jurors indicated a pervasive prejudice against the insanity defense, a pre-qualified panel, free of this taint could have been assembled. The polestar in any such process is stated in dictim in In re Kozlov, 79 N.J. 232, 239-40 (1979):
The responsibility of a trial judge, as guardian and exemplar of the pure administration of justice, would require him, while spurning any officious interference with the independence and integrity of the mental processes of a jury ..., to seek out and expose outside factors impinging upon the jury‘s freedom of action and thus its impartiality and essential integrity. Any matter which would contaminate the latter should invite the aggressive attention and concern of the trial judge for he, above all others is the immediate custodian and steward of justice in the circumstances and the exigencies of the particular case.
II
POST-TRIAL EXAMINATION
Defendant had requested a post-trial interview of jurors pursuant to
It must be further emphasized that the `good cause’ intended by the rule is not impropriety or defect in the motives or methods or thought processes by which the jurors reached their verdict but rather that is is some event or occurrence injected into deliberation in which the capacity for prejudice inheres ... Good cause, however, would include information, whether true or false, which is communicated by an outsider to the jurors, or by one juror to others and which is both extraneous to the proofs and sufficiently prejudicial to require a new trial or mistrial if injected into the proofs ...
Good cause does not, however, include the possibility of taint resulting from improper influences where such influence is expressly denied by the juror or voir dire, ... or where the voir dire examination fails to inquire into matters which might tend to make a juror sympathetic to one of the parties, and where the information, had it been elicited, would not have supported a dismissal of a prospective juror for cause ...
The trial judge here determined that such prejudice was not present and we need not inquire further into his decision. This issue is moot since we have determined that the verdict must be set aside for failure to conduct a proper voir dire both initially and at the close of the trial.
III
COMPETENCY TO STAND TRIAL
Defendant next contends that he lacked the competence to stand trial. The standard for a determination of competency has been codified in
(a) That he is in a court of justice charged with a criminal offense;
(b) That there is a judge on the bench;
(c) That there is a prosecutor present who will try to convict him of a criminal charge;
(d) That he has a lawyer who will undertake to defend him against that charge;
(e) That he will be expected to tell to the best of his mental ability the facts surrounding him at the time and place where the alleged violation was committed if he chooses to testify and understands the right not to testify;
(f) That there is or may be a jury present to pass upon evidence adduced as to guilt or innocence of such charge or, that if he should choose to enter into plea negotiations or to plead guilty, that he comprehend the consequences of a guilty plea and that he be able to knowingly, intelligently, and voluntarily waive those rights which are waived upon such entry of a guilty plea; and
(g) That he has the ability to participate in an adequate presentation of his defense.
There is no question concerning the first six of these elements, but defendant has alleged that subsection (g) was not satisfied since his amnesia-like delusion prevented him from participating with counsel in his own defense. This factor, however, “is only one of numerous factors to be considered.” State v. Coruzzi, 189 N.J. Super. 273, 323 (App.Div.), certif. den. 94 N.J. 531 (1983). Defendant here has three infirmities. He has an unclear recollection of the event; he is delusional (and thus creates factual patterns contrary to apparent fact and reality); he at least initially failed to appreciate the nature of his illness and insisted that defense counsel both present a defense for which there was no factual basis and avoid giving the notice of the insanity and defect defenses required by
We have no per se disqualification based upon a claim of incomplete recollection, since even complete amnesia has been held not to bar prosecution. State v. Pugh, 117 N.J. Super. 26, 35-36 (App.Div. 1971). A further analysis is necessary, however, since each case must be analyzed on its own merits. The factors for consideration have been compiled in Wilson v. United States, 391 F.2d 460, 463-464 (D.C. Cir.1968), and have been previously adopted in this state in State v. Pacheco, 106 N.J. Super. 173, 179-80 (App.Div. 1969), cert. den. 400 U.S. 834, 91 S.Ct. 68, 27 L.Ed.2d 65 (1970). These factors are:
(1) The extent to which the amnesia affected the defendant‘s ability to consult with and assist his lawyer.
(2) The extent to which the amnesia affected the defendant‘s ability to testify in his own behalf.
(3) The extent to which the evidence in suit could be extrinsically reconstructed in view of the defendant‘s amnesia. Such evidence would include evidence relating to the crime itself as well as any reasonably possible alibi.
(4) The extent to which the Government assisted the defendant and his counsel in that reconstruction.
(5) The strength of the prosecution‘s case. Most important here will be whether the Government case is such as to negate all reasonable hypotheses of innocence. If there is any substantial possibility that the accused could, but for his amnesia, establish an alibi or other defense, it should be presumed that he would have been able to do so.
(6) Any other facts and circumstances which would indicate whether or not the defendant had a fair trial.
Here the factors weighed heavily in favor of the trial proceeding. There had been the utmost cooperation by the State in reconstructing the events surrounding the crime which clearly demonstrated that defendant had committed the homicide.
The issues remaining on this point concern the defendant‘s alleged general incompetency caused by his mental problems. These problems seem now to have been partially dissipated by medication and defendant‘s present awareness of his own unsoundness of mind; but the trial judge when faced with the situation should have, in consultation with defendant‘s counsel applied standards similar to those utilized for a civil declaration of incompetency. See
Since we are now directing that the proceedings be recommenced, as noted in Point VII, infra, there should be new hearings on these issues.
IV
EVIDENCE OF DEFENDANT‘S MEDICATED STATE
When defendant took the witness stand the jury saw a relatively lucid individual who denied his commission of the crime as well as all incidents of prior violent or bizarre behavior. When a defendant‘s sanity is in issue the jury is entitled to consider his in-court demeanor as well as his words in appraising his sanity. See Pate v. Robinson, 383 U.S. 375, 385-86, 86 S.Ct. 836, 842, 15 L.Ed.2d 815, 822 (1966); Schmidt v. LaVallee, 445 F. Supp. 1156, 1160 (S.D.N.Y. 1977); Commonwealth v. Louraine, 390 Mass. 28, 453 N.E.2d 437, 442 (1983); J. Wigmore, Evidence § 1160 (Chadbourn Rev.Ed. 1972), p. 357. Where a defendant appears before a jury in an artificially placid state induced by tranquilizers, anti-psychotic drugs or other medication, he has a right to have the jury informed that his demeanor has been altered by medication. State v. Hayes, 118 N.H. 458, 389 A.2d 1379, 1382 (1978); State v. Jojola, 89 N.M. 489, 553 P.2d 1296, 1300 (1976); In re Pray, 133 Vt. 253, 336 A.2d 174, 177 (1975), and see State v. Maryott, 6 Wash. App. 96, 492 P.2d 239, 242-43 (Ct.App. 1971) where defendant was forced to take medication which visibly altered his demeanor. Here the jury was informed during Dr. Kuvin‘s testimony of the medication administered to defendant and its effect. These cases are, therefore, inapposite, except that here the subject was apparently overlooked in the court‘s charge. The court, however, did give a general charge as to credibility which mentioned that the jurors “must take into account the demeanor of the witness on the stand.” Where there is no disagreement
V
INSTRUCTIONS CONCERNING DIMINISHED CAPACITY
Although not raised below, defendant asserts as plain error that the trial judge failed to charge concerning the affirmative defense of diminished capacity, i.e., that although defendant may not have been insane, he suffered from a mental disease or defect, admissible to prove that he lacked the requisite state of mind to have committed murder.
As noted earlier, the lack of notice in no way prejudiced the State, and the Khan hearing terminated before the trial judge had to reach the issue of defendant‘s lack of capacity to waive the insanity defense. It should have been apparent that defendant‘s mental condition would be at the core of this case, notwithstanding his delusional assertions that he had not committed the homicide.
VI
ADMISSION OF VICTIM‘S PHOTOGRAPH
The trial judge admitted a color photograph of the nude body of the victim taken the day after the murder. The State had already placed in evidence three photographs of the victim taken at the scene of the crime all of which indicated the multiple stabbing. The balance of the evidence in the case, including the eyewitness testimony of defendant‘s brother clearly showed the brutal nature of the act. It strains the discretion granted by
VII
SENTENCE
Since we have directed a retrial, the issue of excessiveness of sentence is moot. We merely note that the judge entered a statement of reasons in which he stated his “very strong duty to protect society, and protect the defendant from the criminal propensities that would arise if he was here in society.” The mitigating factors raised by defendant have little merit. The “strong provocation” described in
VIII
COMPETENCY HEARING UPON RETRIAL
We have noted earlier that the court held a competency and Khan hearing prior to the commencement of the trial. Three and one-half years have elapsed since that hearing, and we have no way of knowing whether defendant‘s psychiatric condition has improved, worsened or remained stable. Having examined the record of the first hearing and the trial testimony concerning defendant‘s psychiatric problems, we direct that new competency hearings be held prior to any retrial of defendant.
Defendant‘s conviction is reversed and this matter is remanded to the Law Division for further proceedings in accordance with this opinion. We do not retain jurisdiction.