For affirmance as modified -- Chief Justice Weintraub and Justices Jacobs Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Francis, J.
The defendant Shirley Anne Risden was tried on an indictment which charged her with the May 31, 1967 murder of her husband Darrell Risden. The State did not demand the death penalty. The jury found her guilty of murder in the first degree and recommended life imprisonment. Following imposition of that sentence she obtained a review in the Appellate Division where the conviction was reversed for trial errors, and a new trial was ordered. State v. Risden, 106 N.J. Super. 226 (App. Div. 1969). We granted the State's application for certification. 54 N.J. 521 (1969). For reasons to be set forth we affirm the Appellate Division judgment but with certain modifications.
Defendant and Darrell Risden were married on December 9, 1966. It was the second marriage for both. In April 1964 Mrs. Risden left her first husband and their children in Ohio where they had been living, and came to Trenton, N.J. with Risden, who also left his wife and child in Ohio. Thereafter defendant and decedent lived together in New Jersey, at first on weekends and later full time. Their respective spouses divorced them; in defendant's case it occurred in October 1964. More than two years later, on the date mentioned above defendant and Risden married. One child was born of their relationship.
The Risdens' life together was not harmonious. At her trial Mrs. Risden testified to a number of instances of physical mistreatment and to episodes of her husband's infidelity. In April 1967, Mrs. Risden and her baby visited relatives in Cincinnati, Ohio for a few weeks. On May 25, 1967, she returned to the Bordentown, N.J. home where she and her husband were living. Several days thereafter, on May 31, 1967, at about 3:30 or 4:00 P.M. defendant and her baby visited a friend, Victoria Darnell, who confirmed defendant's suspicions that Risden had been seeing a girl
named Julie while she was in Cincinnati. Mrs. Darnell told defendant also that Risden and Julie had been to a drive-in movie with her and her husband and that she had seen them "making out," "petting real mad." Upon hearing this defendant ran out of the house carrying her baby.
A short time later Mrs. Lorraine Bulanowski, defendant's next-door neighbor, heard three shots at the Risden home. About ten minutes later defendant came into Mrs. Bulanowski's house and asked her to mind the baby for an hour. Upon inquiry defendant said she had fired the shots. Then, seemingly in a hurry, defendant ran out of the house and drove away in a car.
According to Kermit Messer, the operator of the Bordentown Atlantic automobile service station, between 4:30 and 5:00 P.M. defendant drove into his place, got out of her car and pointed a gun at a young couple seated in their car at one of the gasoline pumps. Messer asked what she was doing and she pointed the gun at him and told him to "keep [his] mouth out of her business." He testified that she was waving the gun "all over"; she was "shaking"; she had a "glassy look in her eyes -- a wild look." She said she was looking for her husband (who had worked there part time). She got back in her car and as she started to drive out of the station she said she was looking for her husband and his girl friend, and Messer should tell Risden that she would "get him or shoot him."
About 5:00 P.M. Mrs. Betty W. Haun was walking on Park Street, Bordentown, passing Art's Body Works. She heard yelling, walked back and saw Mrs. Risden standing in Art's parking lot. She continued walking, then heard shots and on turning around again she saw Darrell Risden on the ground. Defendant was shaking a gun at him and telling him not to move. Defendant said also "You won't get away with it, you son-of-a-bitch." A police officer drove up and defendant told him not to get out of the car or she would shoot herself. She began to back away from her husband on the ground and started to cry. Then she put the gun
to the upper left side of her chest, fired it and fell down. When the officer reached her and took the gun, she kept repeating "let me die."
Defendant and her husband were taken to St. Francis Hospital in Trenton. There he died on the operating table. He had seven gunshot wounds. Defendant had a gunshot wound of the left upper chest below the shoulder. The next day she was transferred to the Psychiatric Ward where she remained until discharged in police custody on June 19, 1967.
At the trial the defense was "temporary insanity." It is clear from the record that defendant was not cooperative about notifying the State of that fact until a few days before the trial got under way. See generally State v. Whitlow, 45 N.J. 3 (1965). Some of the difficulties that are urged in support of the present appeal probably would have been avoided had the spirit of R.R. 3:5-9A (now R. 3:12), concerning notice of insanity plea, been observed by defendant. R.R. 3:5-9A became effective on October 5, 1967. It required a defendant who intended to rely upon a plea of insanity to serve notice of that fact on the prosecutor when defendant entered his plea to the indictment or within 30 days thereafter, which period could be enlarged by the trial court for good cause. Since this homicide occurred prior to the effective date of the rule and more than 30 days had expired since the plea of not guilty was entered to the indictment, defendant took the position that she was under no obligation to give notice. A trial which turned out to be abortive began on December 4, 1967. In re Logan, 52 N.J. 475 (1968). No specific notice of the insanity defense had been given. On the second day of the jury selection in that case, despite the lack of notice, the prosecutor requested permission from the court to have a psychiatric examination of the defendant. Permission was given for such an examination by Dr. H. Edward Yaskin. But because there was still
no definite statement that the insanity defense would be presented, the court ordered the report delivered to it alone, and said that it would be sealed until defendant announced that she would claim insanity. As the court indicated at the present trial when it was learned that insanity would be an issue, Dr. Yaskin's report was released to the prosecutor. Presumably through inadvertence no copy was given to defense counsel until the trial had been in progress for some days. This was irregular for fairness dictated that both sides be given copies. See R. 3:13-3(a) (4); State v. Whitlow, supra, 45 N.J. 3.
It should be noted for future guidance that the spirit of the rule, R. 3:13-3(d)(1) is to provide for mutual exchange of such reports. It is no answer for either State or defendant to say that the examining psychiatrist has furnished no written report. If the proof of insanity or sanity is to be based upon an oral report, a full statement of such oral report must be supplied in exchange for the other party's report. Since the insanity issue was exposed fully at this trial, and as will be seen hereinafter, a new trial is to be had, the matter need not be pursued any further. Defense counsel's brief contains a rather cryptic suggestion that he did not receive a copy of Dr. Yaskin's ...