Goldmann, Kolovsky and Carton. The opinion of the court was delivered by Goldmann, S.j.a.d.
[106 NJSuper Page 227] Defendant was indicted for the murder of her husband Darrell. There were two trials, the first abruptly terminated by the declaration of a mistrial (see
In re Logan, 52 N.J. 475 (1968)) and the second resulting in a verdict of guilty of murder in the first degree with recommendation of life imprisonment. The prosecution had not sought the death penalty. Defendant unsuccessfully moved for a new trial. This appeal followed.
On May 31, 1967 defendant returned to her Bordentown, N.J. home from a visit to relatives in Cincinnati. At about 3:30 or 4 P.M. of that day she and her baby visited a friend, Victoria Darnell, who confirmed defendant's suspicions that Darrell had been seeing a girl named Julie during her absence. Mrs. Darnell testified she told defendant that Darrell and Julie had been to a drive-in movie with her and her husband, and that the two had been "making out" -- "petting real mad" -- while there. Upon hearing this, defendant ran out of the house with the baby.
Lorraine Bulanowski, defendant's next-door neighbor, testified that she heard three shots from the Risden home at about 4 P.M. Some ten minutes later defendant came into her house with the baby and asked if she would watch the child for an hour or so. Mrs. Bulanowski inquired of defendant whether she fired the shots, and she said she had. Defendant then ran out of the place and drove off in an automobile the Risdens had borrowed while their car was being repaired at Art's Body Shop in Bordentown.
According to prosecution witness Kermit Messer, defendant drove into his gas station shortly after 4:30 P.M. and parked in front of a car in which were seated Gary Harold, a friend of her husband's, and Julia Ann Bagley. She got out of her car, pointed the gun at them, asked where her husband was, threatened to shoot if they interfered with her, and repeated the threat to Messer, who was told to keep his mouth out of her business. Upon driving away she told the trio that she was looking for her husband and his girlfriend, and if they saw Darrell to tell him she was going to kill him. Messer's testimony was confirmed by Harold and Miss Bagley.
The testimony of Betty W. Hann completes the basic story as to the circumstances of the murder. She was passing Art's Body Shop on her way home at about 5 P.M. when she heard yelling. She stopped, turned and saw defendant, who was "hollering." After a moment or so Mrs. Hann started up the street, heard shots, turned around again, and saw Darrell Risden on the ground. Defendant was shaking a gun at him, telling him not to move. Mrs. Hann heard her say "You won't get away with it," calling him a "two-timing son-of-a-bitch."
Meantime, police officer Allen had driven upon the scene. Defendant told him not to get out of his car or she would shoot herself. She backed away from the body, began to cry, and then put the gun to her shoulder, fired and fell.
Both defendant and her husband were taken to St. Francis Hospital in Trenton. He died on the operating table. Defendant remained in the psychiatric ward until her subsequent release on June 19, 1967.
Defendant disclaimed any recollection as to what had occurred between the time she ran down the steps of the Darnell home until she awoke at the hospital, except that she vaguely remembered stopping at the Bulanowski home and leaving the baby there.
The defense was temporary insanity. The only expert medical witness called by defendant in support of her claim that she was insane when she shot her husband was Dr. Harrison F. English, an associate in psychiatry at St. Francis Hospital. He had been called in to see her on June 1, 1967 and arranged for her transfer to the psychiatric ward as a precaution against possible attempts at suicide. He saw her on seven occasions during her 19 days at the hospital. He testified that she was suffering from a mental illness, a "depressive reaction," at the time of the shooting, and that she did not then know "what she was doing and not knowing what she was doing, she couldn't have known whether it was right or wrong." At the time of her discharge on June 19 it was
felt that she had recovered from the mental illness found present on May 31.
In her brief defendant advances ten points in support of her argument for a new trial. We need consider only those basic to our reversal.
We agree with defendant that prejudicial error was committed in permitting Dr. Julio C. DelCastillo, a psychiatrist on the staff of the Trenton State Hospital, to testify as he did.
Defendant was at the State Hospital from February 29 to March 22, 1968. She had been sent there by the trial judge with the consent of defense counsel when the sheriff reported that she was acting strangely at the county jail. In doing so the trial judge told the prosecutor and defense counsel, in defendant's presence, that
"* * * there may be some beneficial purpose served by having the defendant removed for a thorough physical and emotional or neurotic mental examination to determine whether in fact her current state is such to render it unlikely that she is in a position to cooperate with her counsel in the prosecution of her case by way of defense, and the preparation of the same in the orderly and proper fashion that is to be expected when the same is reached in accordance with the trial schedule * * *."
Defense counsel concurred that it might be desirable to take whatever steps were necessary by way of physical or mental examination "to see if she is suffering from any mental disease or physical ...