Defendant Belton moved for leave to appeal from an order denying his motion for acceptance of a plea of non vult to an indictment for murder. The motion was argued orally upon our direction.
Defendant is charged with slaying a police officer during a hold-up. A murder of that kind is murder in the first degree, N.J.S. 2A:113-2, and carries the death penalty unless the jury recommends life imprisonment. N.J.S. 2A:113-4. Our statute, N.J.S. 2A:113-3 provides:
"In no case shall the plea of guilty be received upon any indictment for murder, and if, upon arraignment, such plea is offered, it shall be disregarded, and the plea of not guilty entered, and a jury, duly impaneled, shall try the case.
Nothing herein contained shall prevent the accused from pleading non vult or nolo contendere to the indictment; the sentence to be imposed, if such plea be accepted, shall be either imprisonment for life or the same as that imposed upon a conviction of murder in the second degree."
Our rule of Court, R.R. 3:5-2(a), permits only a plea of guilty or not guilty except with respect to an indictment for murder, as to which, in harmony with the statute just quoted, a plea of non vult or nolo contendere is recognized but may be refused by the court "in its discretion."
Thus the plea of non vult remains only as to murder, and unlike the ordinary situation in which the acceptance of that plea had no bearing at all upon the severity of the punishment which might be imposed, here, under our statute, the acceptance of the plea prevents the imposition of the death sentence. Defendant's purpose in offering the plea is precisely to avoid a determination by a jury as to what punishment is merited by his alleged offense.
Defendant contends (1) the ruling upon an offer of the plea of non vult involves the exercise of discretion, and (2) a defendant is entitled to be heard with respect to it. There can be no doubt upon either proposition. Rather the question is whether defendant was entitled to the type of hearing he sought, and we agree with the trial court that he was not.
Defendant's notice of motion was for leave to retract his plea of not guilty, for acceptance of a plea of non vult, and "To fix a date for a Hearing at which time the defendant, James Belton, intends to produce medical and lay testimony in connection with the request to this Court to accept his plea of non vult." There was no statement of the facts which defendant intended to prove. Rather defendant conceived that he was entitled to a trial date at which time he could try in plenary fashion the question whether the plea should be accepted. That course would be inappropriate and is not required by due process. A defendant must support such a motion with a detailed factual showing, as upon
any other motion, so that the trial court may see whether the claim is sufficient on its face. If in the court's judgment the facts, if accepted as true, would not warrant the acceptance of the plea, the court can rule at once, while if facts which are or might be pivotal are better dealt with on an oral examination, the court may direct the production of witnesses. But we see no warrant for a right in every case to a trial-type hearing which might run the gamut of the final trial itself.
Here, upon the argument of the motion before the trial court, counsel for defendant described the proof he had in mind this way:
"Now, I intend to submit, if a hearing is granted, your Honor, psychiatric testimony which admittedly falls short of constituting a basis for an acquittal under the 'McNaughton Rule' since the psychiatrist that examined the defendant, said psychiatrist being appointed by the State, has informed me orally and I received a written report from the psychologist in Texas that in no possible way is this defendant McNaughton sick, to use a colloquialism. Certainly he has severe mental problems which have caused or contributed to the happening of this matter which, if offered as testimony in the actual trial itself, could form a basis for a jury recommending life imprisonment, and I ...