For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None.
[45 NJ Page 153] A Burlington County jury found the defendant guilty of second degree murder. He appealed to this Court as of right. R.R. 1:2-1(c).
The State's proof showed that on November 3, 1955, between 5:00 and 6:00 P.M., the defendant shot and killed Clinton Lester at the latter's home in Mt. Holly. The defendant was apprehended later that evening and at 9:45 P.M. gave a statement to the police admitting that he had killed Lester. The statement, in question and answer form, was recorded by a former court reporter who shortly thereafter transcribed her notes into a typewritten document of 11 pages.
In September 1956 a hearing before a judge and jury was held to determine whether the defendant was then mentally competent to stand trial. The jury, upon consideration of conflicting medical testimony, found that he was. But in January 1957 the same judge who had presided at the prior hearing conducted a second hearing without a jury. The same medical experts who had testified at the prior hearing again testified and were unanimous in concluding that the defendant was then incompetent to stand trial. The judge so found and committed him to the New Jersey State Hospital. Defendant was confined there until late in 1963, when he was certified to be in a state of remission. He was returned to Burlington County and brought to trial on June 16, 1964.
On this appeal defendant does not contend that the jury's verdict was against the weight of the evidence and his allegations of error do not require us to set forth in detail the circumstances of the killing.
The defendant first contends that the trial court's adverse comment on his failure to take the stand constitutes reversible error under the recent ruling of the United States Supreme Court in Griffin v. State of California, 85 S. Ct. 1229, 14 L. Ed. 2 d 106 (1965), and the ruling of this Court in State v. Lanzo, 44 N.J. 560 (1965).
The defendant did not testify at his trial. From the evidence produced by the State and the defense, the jury might have found the defendant guilty of murder in the first degree, guilty of murder in the second degree, guilty of manslaughter, not guilty by reason of self-defense or not guilty by
reason of insanity. The trial judge charged the jury on all these possible verdicts. He also charged the jury as follows:
"[W]here evidence brought against the defendant tends to establish facts which if true would justify or tend to justify a conviction, and the defendant is in court and is in a position to deny such evidence of his own knowledge and he fails to take the stand on his own behalf, then his silence will justify a strong inference that he could not deny such evidence."
It is clear that the above charge is erroneous under Griffin, supra, and Lanzo, supra; and as this is a direct appeal, the conviction must be reversed. State v. Lanzo, supra.
As the case must be retried, it is appropriate for us to consider the defendant's remaining grounds for reversal.
When the prosecutor sought to introduce the defendant's confession into evidence, the trial judge excused the jury and conducted a hearing to determine its admissibility. The evidence offered by the State tended to show, and the defense did not dispute, that the confession was obtained without duress, coercion or promise of reward. The defense, however, did offer to produce evidence to show that the defendant was insane at the time he confessed. The trial judge refused to permit the defendant to come forward with that evidence. He reasoned that because the confession was given within a few hours after the killing, to find the defendant insane at the time the confession was given would necessitate a finding that the defendant was also insane at the time of the killing. Therefore, he would be compelled to direct a verdict of acquittal, thus usurping the fact-finding function of the ...