For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
On January 6, 1963, sometime around midnight, Catherine (Mrs. Dario) Vigliano was shot fatally in her home in Paterson, New Jersey. Her son, defendant Henry A. Vigliano, aged 23 years, was charged with shooting her and was indicted for first degree murder. After trial ending in May 1963, in which the State sought the death penalty, he was convicted by a jury of first degree murder with a recommendation of life imprisonment. On direct appeal to this Court under R.R. 1:2-1(c), we reversed upon a determination that the trial court had committed plain error in its instructions to the jury concerning the defense of insanity. State v. Vigliano, 43 N.J. 44 (1964).
Vigliano was retried between March 15 and April 16, 1965. Over defendant's objection the State renewed the demand for the death penalty. The jury again found him guilty of first degree murder and recommended life imprisonment. Another appeal followed.
On the second appeal a number of trial errors were alleged as a basis for reversal of the conviction. After argument of the entire matter we dealt with one alleged error on an intermediate basis because we felt the record was inadequate to permit a proper disposition of it, 47 N.J. 504.
Dario Vigliano, husband of the victim and father of the defendant, testified against him at both trials. The State conceded that his testimony provided important inculpatory proof supportive of its case, and corroboratory of significant parts of the son's confession.
Defendant lived with his mother and father in Paterson. He was engaged to be married at the time of the shooting. His father, Dario, operated a tavern in Paterson. On Sunday, January 6, 1963, Henry left the house around 4:00 P.M. to visit his fiancee, who also resided in Paterson. He remained with her until about 11:00 P.M. and then drove to his father's tavern. After his arrival there he and his father had a disagreement about the father's intoxication. A scuffle ensued and (according to defendant's statement to the police
after the shooting of Mrs. Vigliano) defendant left the tavern and went home, arriving there about 11:30 or 11:45 P.M.
In his written statement to the police, Henry said that his mother began to upbraid him, cursing him and calling him vile names. He went upstairs to his bedroom, removed a revolver from his desk and put it in a shoulder holster in his closet. His mother came into the room and continued to "rave and rant" at him. Not being able to "take it" any longer he "reached in for the service revolver only to scare her." He said he thought it was unloaded. (He did not mention this in his oral statement which was given first.) He "pointed it at her and fired twice." She slumped down and he picked her up and put her in a chair. Then, still according to his statement, he returned to his father's tavern, remained there until closing time (about 1:00 or 1:15 A.M.). He and his father drove home together and he went up to his room where his mother was unconscious in the chair. He called the police and asked for a squad car because there had been an accident. He telephoned his fiancee also and talked to her mother, saying his mother had been shot twice and that apparently she had attempted suicide.
Defendant did not testify at either trial in his defense. His testimony on each occasion was introduced during the hearing to determine the voluntariness of his oral and written inculpatory statements to the police. During this appearance on the witness stand, however, in answer to his attorney's question he denied shooting his mother and said he knew nothing about the crime.
It is apparent from the short factual recital above that Dario Vigliano's testimony was important because it showed (thereby supporting defendant's inculpatory statement) that defendant had left the tavern sometime between 11:00 and 11:30 P.M., returned later and then remained until the closing hour, 1:00 or 1:15 A.M. Further, as the record shows, his testimony also indicated circumstantially that when Dario and defendant arrived home, defendant seemed intent on diverting his father from saying good-night to his mother.
The second trial began with the selection of the jury on March 15, 1965. On March 27, while the trial was in progress, Dario Vigliano was committed by the Municipal Court of Paterson to Hope Dell Hospital's psychiatric ward for observation and possible treatment. Defense counsel knew of the commitment on the day it occurred but did not make further inquiry as to his condition before April 5 and 6, when he was produced by the State as a witness. After Dario had testified about his son's activities at the tavern on the night of the shooting, as well as his departure, later return and his driving Dario home after the closing of the tavern, defense counsel sought to cross-examine about Dario's commitment for psychiatric study. The State's objection was sustained in spite of the defense argument made out of the presence of the jury that the subject of the witness' mental condition was a proper one to pursue on the issue of Dario's credibility. The inquiry having been thus abruptly terminated in that fashion, defendant made the propriety of the ruling a ground of appeal. When the appeal was argued in this Court we considered the record inadequate and remanded in the light of State v. Butler, 27 N.J. 560, 605 (1958), so that an exploration could be made as to what a full cross-examination on the matter of Dario's mental capacity would have revealed, what the State knew of his condition when he was produced as a witness, and what available medical and hospital evidence would reveal as to that mental condition. We directed also that, after the additional evidence had been compiled, the trial court should entertain an application for a new trial based thereon. The per curiam opinion of remandment noted that if a new trial was denied, we desired the additional record to be returned to us, and we would consider it along with the pending appeal. State v. Vigliano, 47 N.J. 504 (1966).
The hearing on the remand produced some startling facts. When Dario Vigliano was admitted to Hope Dell on March
27 he was confused, uncooperative and unmanageable. On March 29, on examination by two physicians, he was found to be confused and disoriented and suffering from senility, chronic brain syndrome associated with cerebral arteriosclerosis. Both doctors recommended commitment to the State Hospital for the Insane at Greystone Park, N.J. The Hope Dell record, which clearly notes the above facts, shows also that at 1:10 P.M. on March 29 county prosecutor's detective Edmond requested that Dario be kept at Hope Dell until further notice from him.
In the late afternoon of March 29, Edmond and the assistant prosecutor who was trying the State's case against defendant visited the hospital and talked with Dario. The next day the trial continued but neither the assistant prosecutor nor Edmond informed the court or defense counsel of the notes appearing on the hospital records as to Dario's mental state, or that the two doctors had recommended commitment to Greystone Park and had signed affidavits on the same day certifying that Dario was insane and required confinement.
As has been noted, on April 5 and 6 prosecutor's detectives brought Dario to court to testify and returned him to Hope Dell after each appearance. This was done with the knowledge and consent of the assistant prosecutor. This was the state of affairs when the assistant prosecutor objected to defense counsel's cross-examining Dario about his commitment to Hope Dell for psychiatric examination on March 27.
On April 6, after Dario was returned to the hospital by the detectives, he was transferred to Greystone Park and admitted there. Both the assistant prosecutor and Edmond knew on April 7 of the admission to Greystone Park. The trial continued for eight court days thereafter, but neither the assistant prosecutor nor Edmond notified the court or the defense about the commitment.
Relying on the additional evidence adduced on the remand, defendant sought a new trial. The trial judge agreed on the motion that under State v. Butler, supra, it
was erroneous not to have permitted the cross-examination at the trial as to the Hope Dell commitment. He felt, however, that Dario's value as a State's witness had been wholly destroyed by defendant's other cross-examination, and by the police officers' testimony that he was intoxicated on the night of the shooting when they arrived on the scene. Consequently, in his judgment, the error was not prejudicial and even if the proof of Dario's insanity had been introduced the result "probably would be the same." We cannot accept that view. Our reading of Dario's testimony in light of the entire record satisfies us that its overall substance was amply sufficient to require leaving evaluation of its weight and credibility to the jury. In this connection, it should be noted also that defendant not only denied the killing but claimed that if he did shoot his mother, he was insane within the M'Naghten rule when he did so. See State v. Lucas, 30 N.J. 37 (1959). In view of the evidence in the case as to the previous psychiatric history of the mother and of the defendant, we agree with the defense contention that the evidence as to the father's mental condition was an additional factor open for consideration by the jury on the insanity issue.
The State and the trial court have expressed the view that the evidence submitted on the post-trial hearing was available to the defense attorney when Dario was first on the witness stand, and could have been produced if due diligence had been exercised. There is no doubt that most of the material was open to examination and subpoena by defendant; nor is there any doubt that counsel knew Dario had been sent to Hope Dell for observation. Counsel explained why he did not pursue the matter. The complaint in the municipal court against Dario was made following a visit to the Vigliano home by him in company with prosecutor's detective Edmond. The visit was made during the trial pursuant to a ...