Conford, Kilkenny and Leonard. The opinion of the court was delivered by Conford, S.j.a.d.
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
vult and was sentenced to life imprisonment, implicated defendant as having joined him in a plan to rob the victim, a farmer. That plan culminated in Nelson killing the victim when he resisted the robbery. Defendant testified at that trial, admitted going to the farm with Nelson, but only for the purpose of helping Nelson find work, and claimed an effort to disassociate himself from Nelson action's in attacking and robbing the victim.
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
able to stand trial in the sense of orientation, awareness of the nature of the charge and capacity to cooperate with counsel. Dr. Rubin, for the defense, testified that as a result of the shock treatments, defendant was presently "incapable of relating the facts" which occurred the day of the murder. He was further of the opinion that the amnesia would not disappear in the near future. Questioned as to these matters, Dr. Brancale, for the State, testified that "extensive shock therapy does result in an amnesia sometimes prolonged and sometimes less so," but that it was his opinion that defendant had "the capacity to recall the events of that period in 1959." He opined that only events close in time to the therapy are apt to be affected and that it "would not blot out an important area of his life's experience completely."
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; Evidence Rule 63(3)(a)(ii), we conclude ...