State v. MyersState v. Myers
Defendant Margaret Ann Myers was first indicted for the murder of her husband James A. Myers (
The matter was tried to a jury, which found defendant not guilty of murder, guilty of aggravated manslaughter, not guilty of reckless manslaughter and passion/provocation manslaughter, and guilty of possessing the shotgun for an unlawful рurpose. Defendant was sentenced for aggravated manslaughter to 20 years’ imprisonment with a seven and one-half year mandatory minimum term, and for the gun possession to a five-year suspended term. She appealed, and we now affirm, but we remand for resentencing.
Before us, defendant makes the following arguments:
A. DEFENDANT WAS DENIED HER RIGHT TO A SPEEDY TRIAL.
1. THE SUPERIOR COURT, LAW DIVISION, CORRECTLY [sic] APPLIED THE FOUR-PRONGED BARKER V. WINGO TEST TO THE FACTS OF THIS CASE.
2. CONTRARY TO THE APPELLATE DIVISION‘S EARLIER HOLDING, A CAREFUL CONSIDERATION OF THE QUESTION OF WHETHER DEFENDANT‘S SPEEDY TRIAL RIGHTS WERE VIOLATED WILL NECESSARILY INCLUDE THE TIME WHICH ELAPSED BEFORE THE DISMISSAL OF THE FIRST INDICTMENT AND THE RETURN OF THE SECOND INDICTMENT.
B. THE STATE‘S FAILURE TO SUBMIT DEFENSE COMMUNICATIONS TO GRAND JURY FOREPERSON NECESSITATES REVERSAL.
C. THE COURT‘S FAILURE TO ASK THE QUESTIONS SUBMITTED BY DEFENSE COUNSEL ON VOIR DIRE CONSTITUTES AN ABUSE OF DISCRETION.
1. THE COURT‘S JURY SELECTION PROCEDURE CONSTITUTED AN ABUSE OF DISCRETION.
D. THE COURT‘S ORDER REQUIRING THAT THE DEFENDANT SUBMIT TO A PSYCHIATRIC EXAMINATION VIOLATED THE DEFENDANT‘S CONSTITUTIONAL RIGHTS AS THE EXAMINATION RELATED TO A SELF DEFENSE CLAIM AND WAS NOT WITHIN RULE 3:12A. E. THE EXCLUSION OF COUNSEL FROM THE PSYCHIATRIC EXAMINATION VIOLATED THE DEFENDANT‘S CONSTITUTIONAL RIGHTS.
F. THE VIOLATION OF THE COURT‘S ORDER TO SOUND RECORD THE PSYCHOLOGICAL EXAMINATION FATALLY TAINTED THE PSYCHIATRIC EXAMINATION AND ITS USE AT TRIAL.
G. THE COURT BELOW ERRED IN ADMITTING THE TESTIMONY OF DR. BLUMBERG AND HIS CHARTS IN LIGHT OF THE TIME AVAILABLE TO DEFENSE TO PREPARE TO MEET THE EXPERT TESTIMONY.
H. THE STATE‘S PRESENTATION OF HANDWRITING EXPERT AND PROSECUTION ARGUMENT RELATIVE TO THAT TESTIMONY VIOLATED DEFENDANT‘S RIGHT TO A FAIR TRIAL AND TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
I. RECEIPT OF DISCOVERY JUST PRIOR TO AND DURING TRIAL VIOLATED DEFENDANT‘S RIGHT TO FAIR AND EFFECTIVE ASSISTANCE OF COUNSEL. THE TRIAL COURT‘S REFUSAL TO EXCLUDE [sic] NOT PROVIDED IN PRE-TRIAL DISCOVERY CONSTITUTE AN ABUSE OF DISCRETION AND THEREFORE REVERSIBLE ERROR.
J. THE CUMULATIVE EFFECT OF STATE‘S DISCOVERY FAILURES, TOGETHER WITH ITS FAILURE TO COMPLY WITH COURT‘S ORDER REQUIRING THE STATE‘S EXPERT EXAMINATION RECORDED, MANDATES REVERSAL.
K. THE TRIAL COURT‘S DENIAL OF THE DEFENDANT‘S MOTION TO DISMISS COUNT FIVE AT CONCLUSION OF STATE‘S CASE WAS ERROR.
L. THE PROSECUTION‘S QUESTIONS TO DR. BALDWIN CONCERNING HER PERSONAL LIFE AND RELATIONSHIP WITH HER HUSBAND WARRANT A MISTRIAL OR CONSTITUTES REVERSIBLE ERROR.
M. THE STATE‘S COMMENTS REGARDING DEFENDANT CONSTITUTED A COMMENT ON DEFENDANT‘S FAILURE TO TESTIFY.
N. THE FAILURE OF THE COURT BELOW TO MAKE THE CHANGE REQUESTED BY THE DEFENSE CONSTITUTED REVERSAL [sic] ERROR.
O. THE VERDICT OF THE JURY WAS SO INTERNALLY INCONSISTENT AS TO WARRANT REVERSAL.
P. THE SENTENCE IMPOSED BELOW WAS EXCESSIVE.
We have thoroughly considered all оf the arguments made by defendant, in the light of the record of the proceedings in the Law Division, and we find them to be clearly without merit.
I.
Defendant‘s first argument involves her motion for dismissal for lack of a speedy trial, a motion which the Law Division granted. We reversed the dismissal in 1987. Our decision disposed of this argument on its merits and is the law of the case. State v. Stewart, 196 N.J. Super. 138, 481 A.2d 838 (App.Div. 1984). An appellate decision which is interlocutory in the sense that it does not terminate the case nevertheless finally decides the meritorious issue. That the decision was interlocutory does not mean that it was “tentative and subject to more leisurely review at a later date” Id. 196 N.J. Super. at 144, 481 A.2d 838.
II.
Defendant‘s Point B has the following factual background. Just after the first indictment was dismissed, defendant‘s attorney wrote to the Grand Jury asking it to consider defendant‘s position that she killed her husband in self-defense, and that she suffered from the Battered Woman‘s Syndrome. The letter was addressed:
Foreperson
Burlington County Grand Jury
c/o Grand Jury Clerk
Burlington County Prosecutor‘s Office
Copies went to the Prosecutor and the Assignment Judge.
The attorney stated in his letter that thе Grand Jury would be considering evidence presented by the prosecutor in the case of Margaret Ann Myers, and that the Grand Jury had the right “to require any additional evidence that you deem appropriate.” The attorney said that defendant killed her husband, but only in self-defense. He quoted from and supplied a copy of State v. Kelly, 97 N.J. 178, 478 A.2d 364 (1984), which discussed the Battered Woman Syndrome. He cited scientific literature on
The response was from an assistant prosecutor. She stated that affirmative defenses are generally inappropriate for the Grand Jury to hear, but that she would, in her discretion, consider presenting this one if defendant would submit to аn examination by an expert chosen by the State, and testify before the Grand Jury. The assistant prosecutor did not say she had discussed the matter with the Grand Jury, or that the letter had reached the foreperson. After some negotiation, the attorney declined the assistant prosecutor‘s offer. He never heard from thе Grand Jury.
There the matter dropped. The case was presented and defendant was indicted. As far as we know, the Grand Jury never received the attorney‘s letter. We know it received no information or instructions on the Battered Woman‘s Syndrome. Defendant did not move for an order requiring the State or the Grand Jury to do anything about the matter before or after indictment. She did not move to dismiss the indictment. Cf. State v. Del Fino, 100 N.J. 154, 159-161, 495 A.2d 60 (1985).
The question defendant seeks us to answer is whether the State‘s apparent interception of her attorney‘s letter addressed to the Grand Jury foreperson for consideration by the Grand Jury invalidates her conviction. Our answer is that it does not. Ignoring all of the other problems in the matter, it is idle to
Because defendant never sought any relief in the Law Division we need not say whether any would have been granted. We point out, however, that the dual function of the Grand Jury is not only to determine if there is probable cause to believe a crime has been committed but also to protect citizens against unfounded criminal prosecutions. Branzburg v. Hayes, 408 U.S. 665, 686-687, 92 S.Ct. 2646, 2659-60, 33 L.Ed.2d 626 (1972). The Grand Jury protects the innocent against hasty, malicious and oppressive persecution. State v. Del Fino, 100 N.J. at 164, 495 A.2d 60.
Defendant argues that the Grand Jury‘s function cannot be fulfilled if prosecutors control what it may or may not consider. The State responds that it is far from clear that a subject of Grand Jury attention has the right to communicate with it. Perhaps, if the prosecutor may not rеstrict the scope of a Grand Jury investigation, a target should not be entitled to expand it. The Assignment Judge of each vicinage orders and organizes the Grand Juries,
III.
In her Point C-1, defendant argues that the procedure employed in the selection of her jury was in error and gave the State an unfair advantage.
After both the State and defendant had exercised some but not all of their peremptory challenges, it was the State‘s turn. The Assistant Prosecutor said, “Your honor, I pass at this time.” Defense counsel then announced, “[t]he jury as presently constituted is satisfactory to Margaret Myers and to myself.” In most criminal courtrooms in New Jersey, we believe, that would have been the end of the selectiоn process. We believe that to be so, but our information is entirely anecdotal.
Instead, the assistant prosecutor was then permitted to exercise another peremptory challenge. Defense counsel objected and suggested that the jury be impanelled. The prosecutor gave his position:
I dоn‘t know where Mr. Wherry is practicing. In Burlington County it‘s acceptable to pass and the jury is not acceptable until the individual parties indicate that it‘s their intention. It‘s not unheard of to pass. I‘m sorry Mr. Wherry has that misinterpretation, but I‘ve been trying cases here for ten years and passed many times.
The judge stated correctly that therе was no court rule or controlling case law. He said it was a matter of local practice which “varies from judge to judge. But my practice is the party may pass and then challenge.” After further argument, the judge explained that he follows
the practice that either side can pass and then, if the other side passes, that side can in turn come back. You pass twice and then the jury is accepted.
We are nevertheless impressed by the desirability of a standardized procedure for the implementation of the exercise of peremрtory challenges in criminal cases. Accordingly, we will solicit the recommendation of our Criminal Practice Committee as to the establishment by Court Rule of a procedure governing the exercise of peremptory challenges. In the interim, to maintain uniformity trial courts should refrain from using peremptory challenge procedures that differ from the customary, one-for-one, alternating method.
No such Rule has been adopted. The passage of time has not, however, lessened the “desirability of a standardized procedure for the implementation of the exercise of peremptory challenges in criminal cases.” We have insufficient information on the general practice around the State on our problem to warn judges away from differing methods. Until some greater progress is made toward adoption of a uniform court rule, however, trial judges should at least determine, before starting jury selection, if counsel is unfamiliar with loсal practice. If so, the local practice should be fully explained. We are not now prepared to bar any fair and reasonable approach that has been adopted locally. We only caution that serious harm could arise if all counsel do not know the rules.
Here, there is no reason to believe that the jury selection process was distorted or rendered unfair. Counsel‘s surprise was understandable, but it was dissipated before any harm was done, and there were no untoward consequences to defendant.
Defendant‘s Point D attacks the Law Division‘s order requiring that defendant submit to a psychiatric examination in connection with her announced intention to invoke the Battered Woman‘s Syndrome. She argues that the order violated her constitutional right not to testify.
State v. Whitlow, 45 N.J. 3, 25, 210 A.2d 763 (1965) held constitutional an order requiring a defendant intending to offer evidence of his insanity to submit to examination by a psychiatrist chosen by the State, including, if necessary, a discussion of the criminal event. There was no preexisting court rule or statute permitting such an examination. State v. Obstein, 52 N.J. 516, 529-530, 247 A.2d 5 (1968), extended Whitlow to cases in which a defendant intends to offer psychiatric evidence of mental disability short of insanity.
The Battered Woman‘s Syndrome does not involve insanity, mental disability or diminished capacity. Rather, it bears on the self-defense issue of the honesty and reasonability of defendant‘s belief that she was in imminent danger of serious injury. The existence and impact of the Battered Woman‘s Syndrome is an appropriate subject for expert testimony. State v. Kelly, 97 N.J. 178, 197-206, 478 A.2d 364 (1984).
The reason that the State may have an expert examine defendant in cases of claimed insanity or diminished capacity is to give the State the opportunity to respond to the anticipated testimony of defendant‘s experts on the same subject. No reason appears to us why the Battered Woman‘s Syndrome in its relation to self-defense should be treated any differently. Also involved here is the matter of insight into the operations of defendant‘s mind, which defendant seeks to illuminate and explain through the testimony of experts who have had the opportunity to examine her. As in cases of insanity and diminished capacity, the State must be afforded a similar opportunity
We hold, therefore, that a defendant who invokes the Battered Woman‘s Syndrome and intends to introduce expert testimony with regard to it must submit to examination by appropriate experts selected by the State the results of which will be admissible to rebut the defense. We note that New Hampshire has reached the same result. State v. Briand, 130 N.H. 650, 547 A.2d 235 (1988). Minnesota disagrees, but on the basis of a conclusion, contrary to New Jersey‘s, that expert testimony whether defendant suffers from the Battered Woman‘s Syndrome may not be adduced by either side. State v. Hennum, 441 N.W.2d 793 (Minn. 1989).
V.
In Point O, defendant argues that the guilty verdict for aggravated manslaughter is inconsistent with the not-guilty verdicts for reckless manslaughter and passion/provocation manslaughter. For that reason, defendant says the guilty verdict must be reversed. We disagree.
What happened is apparent. The jury was presented with four homicide verdicts: guilty or not guilty of murder and three manslaughters. Some of the jurors were unsatisfied that the homicide was purposeful or knowing, and therefore murder. Passion/provocation manslaughter was set aside as requiring factual elements of which there was no evidence. As to reckless manslaughter, the jury was not told whether or not to continue voting if it found dеfendant guilty of aggravated manslaughter. It was also not told what was the result if it found defendant guilty of more than one charge. An alert but uninformed jury could well have thought that it was to convict, if at all, of only one of the charges so that defendant would not
VI.
Defendant‘s final attack is on her sentence. We are satisfied that defendant‘s sentence for aggravаted manslaughter met the tripartite test of State v. Roth, 95 N.J. 334, 363-365, 471 A.2d 370 (1984). See also State v. Pillot, 115 N.J. 558, 564, 560 A.2d 634 (1989). There is, however, a problem with defendant‘s suspended sentence for gun possession which the State has pointed out.
At the time of the sentence, the Graves Act required a custodial sentence, with a mandatory minimum term for a violation of
We have concluded that the gun possession conviction is viable because one of the versions the jury could believe from the evidence was that defendant procured the shotgun from another part of the house and cаrried it to the room where it was used to shoot her husband, with a purpose to do just that. See State v. Mieles, 199 N.J. Super. 29, 40-41, 488 A.2d 235 (App.Div. 1985); State v. Bill, 194 N.J. Super. 192, 195, 476 A.2d 813 (App.Div. 1984). We also recognize, however, that even in those circumstances, the possession was very brief, and the sentencing court apparently believed after hearing the trial of the matter that the possession did not justify additional incarceration.
The judgment is affirmed, except that we remand for resentencing.