State v. PachecoState v. Pacheco
Defendant appeals from a conviction in July 1968 for first degree murder, with sentence of life imprisonment. The crime occurred in 1959, and a previous trial and conviction in 1960 was followed by a reversal and remand for trial errors. State v. Pacheco, 38 N.J. 120 (1962).
The State‘s case at both trials was based on the theory of a felony-murder. At the first trial, an alleged co-participant in the crime, one Bobo Nelson, who had pleaded non
Subsequent to the first trial both Nelson and defendant became psychotic and were confined in hospitals for the criminally insane. Nelson‘s testimony at the first trial was read to the jury at the second trial because of his incapacity to testify at that time. The State offered additional incriminatory testimony at that trial, as it had at the first. Defendant did not take the stand in his own defense at the second trial.
Defendant was administered electro-shock therapy in 1964, and it was asserted on his behalf at the outset of this trial that he had, as a result thereof, no memory whatever of the events of the day of the crime. However, a state psychiatrist (Dr. Brancale) who examined defendant the day of the commencement of the trial (and previously in 1963 and 1965) testified defendant told him he was in the state hospital the day of the crime. But he told a defense psychiatrist (Dr. Rubin) the same day that he was in Salem County jail the day of the crime and had not met Nelson until they were in jail together in 1960. (They were actually in jail together in 1959, prior to the instant crime.)
The principal ground of appeal is that defendant was incompetent to stand trial because of his present total failure of memory of the events of the critical day and of his consequent inability to prepare a defense with counsel — an asserted denial of due process.
The trial court on its own motion conducted a hearing on the issue at the outset of the trial. We need not discuss the expert testimony in detail. The opposing doctors agreed that, aside from the memory lapse, the defendant was mentally
The trial judge concluded, on the basis of Dr. Rubin‘s greater experience in the field of shock-treatment effect, that defendant “cannot recall the events of that date and is under that disability.” He nevertheless ruled that in view of the defendant‘s competency in all other respects, the complete uncertainty as to when, if ever, he would regain recall of the events, the alternative of releasing the defendant from custody, the fact that many criminal defendants for one reason or another have degrees of incapacity to remember the occurrences surrounding the charges against them, and the State‘s obligation affirmatively to prove the defendant‘s complicity, the interests of “fair play to the State,” balanced against the “equities” of the defendant, required the trial to proceed.
Adding the factor of the availability to defense counsel of the transcript of defendant‘s testimony at the first trial, and defendant‘s right to offer it in his defense in view of his present amnesia, McCormick, Evidence (1954), p. 494;
New Jersey courts have not heretofore been faced with the specific question of loss of memory of the critical events as of the time of trial as affecting legal competency to stand
“Once it is recognized that amnesia is present to some degree in everyone and that its effects on the ability of an individual to assist in his own defense are often hard to distinguish from the disadvantages of many defendants to whom important facts are unavailable for reasons other than amnesia, it should be apparent that it is neither necessary nor appropriate to consider memory failure as a sufficient condition for the interruption of the adjudicatory process to minimize the danger of a miscarrage of justice. The special demands of extraordinary cases should, where possible, be met without losing sight of the fact that a generaly effective system of criminal adjudication has been developed around rules of evidence and procedure calculated to insure a workable balance of the interests of the accused, the prosecution, and the court. Pending a wholesale revision of the criminal process, exceptional procedures should jealously be reserved for exceptional cases, lest more fully tested techniques be prematurely displaced.” (at p. 136)
In Regina v. Podola, [1959] 3 All E.R. 418, [1959] 3 W.L.R. 718, the Court of Criminal Appeal held that hysterical amnesia of the critical events in an otherwise sane defendant did not render him “insane” for purposes of the statutory proscription of trial of such persons. It quoted with approval a prior decision indicating the opinion that a
Perhaps reflective of the underlying philosophy of most of the relatively few American cases on the point is the expression of the Pennsylvania Supreme Court in Commonwealth ex rel. Cummins v. Price, 421 Pa. 396, 218 A.2d 758 (1966), certiorari denied sub nom. Cummins v. Price, 385 U.S. 869, 87 S.Ct. 136, 17 L.Ed.2d 96 (1966), in relation to a defendant under indictment for murder who alleged that he had sustained a complete and permanent memory loss (apparently from a self-inflicted gunshot wound in the head at about the time of the shooting of the victim):
“Nevertheless, we are constrained to hold that defendant is not entitled at this time (1) to a discharge from the indictment for murder, or (2) to a stay of proceedings under the aforesaid common law test or under the Mental Health Act. This defendant (we repeat) is able to comprehend his position as one accused of murder, is fully capable of understanding the gravity of the criminal proceedings against him, and is as able to cooperate with his counsel in making a rational defense as is any defendant who alleges that at the time of the crime he was insane or very intoxicated or completely drugged, or a defendant whose mind allegedly went blank or who blacked out or who panicked and contends or testifies that he does not remember anything.” (218 A.2d, at p. 763; emphasis by the court).
An interesting set of judicial reactions to the same problem is found in the recent case of Wilson v. United States, 129 U.S. App. D.C. 107, 391 F.2d 460 (1968), where it appeared that a defendant tried and convicted for assault with a pistol and robbery suffered from permanent retrograde amnesia resulting from an automobile accident shortly after the alleged crimes. Two of the three appellate judges voted (one rather reluctantly, expressing “personal” satisfaction with the fairness of the procedure resulting in the conviction) for a post-trial hearing and determination of whether “under applicable principles of due process” the conviction should stand, in the light of special findings to be made by the trial judge on the following factors: (1)
It is our considered view that, whatever might be thought as to a case being tried for the first time, where it was in reasonable prospect that the defendant might relatively soon regain his memory, or where the prosecution case was weak and a fair possibility was presented that the defendant, if not deprived of memory, could present a colorable defense, the clearly determinative circumstance here is the availability to defendant and his counsel of the defendant‘s version of the events as of the time of the first trial. Pertinent are both the utility of the transcript for preparation for trial and as substantive evidentiary material offerable on defense. That the defense did not here attempt to use it in the latter regard is of no present avail. Also significant here is the obvious strength of the prosecution case.
Balancing the interests of the State in defendant‘s prosecution and defendant‘s interests in a fair trial, within the limits of reasonable practicality, and under all the attendant circumstances, we find the disposition of the matter by the trial judge to be correct.
The second ground of appeal advanced is the denial of a motion for mistrial during the selection of the jury, after only two jurors had been drawn and sequestered, based upon newspaper stories concerning the impending retrial wherein it was stated that defendant had been previously convicted and sentenced to life imprisonment but had won a new trial on appeal. The remainder of the jury panel had read the news accounts.
Defendant‘s final argument is to the effect that a comment by the prosecutor in summation was an impermissible comment on the accused‘s failure to testify on his own behalf. The prosecutor said:
“This was an area Mr. Pacheco knew well. This was a house only Mr. Pacheco knew, and he said `That‘s the house. The man is alone. That‘s where you are going to get the money,’ and then they went into that house and unquestionably `Bobo’ Nelson is the one that used the knife, that struck the death blow, but this Defendant seated here at the counsel table was nowhere else that day, and there is no evidence to indicate that he was somewhere else. Mr. Nelson and Pacheco were both in the house of Mr. Oliveria that day for the planned purpose of Mr. Pacheco to commit a robbery.” (Emphasis added)
We note at the outset that no objection was offered to the comment until the end of the summation. This is of dubious propriety. State v. Gosser, 50 N.J. 438, 452 (1967). In any event, the contention lacks merit.
The defense had adduced the testimony of a psychiatrist, Dr. Del Castilo, who treated Nelson at the State Hospital in 1968. He testified that Nelson often told him in the course
Judgment affirmed.