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State v. Maik

Decided: February 22, 1972.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
GARY S. MAIK, DEFENDANT-RESPONDENT



For modification and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. Opposed -- None. The opinion of the Court was delivered by Weintraub, C.J.

Weintraub

[60 NJ Page 206] Defendant was convicted of murder in the second degree. The Appellate Division reversed, holding the trial court should have directed an acquittal on the ground of insanity at the time of the killing. The matter was remanded to determine whether insanity continues, defendant to be discharged if sane and to be committed if his insanity persists. 114 N.J. Super. 470 (1971). We granted the State's petition for certification. 58 N.J. 596 (1971). Although we find error in the trial court's charge requiring a new trial as to the defense of insanity, we agree with the trial court that that issue was for the jury.

I

Defendant and his victim, John Tomlinson, were students at Trenton State College. They were friends. The details of their relationship were not developed at the trial. We know that on October 18, 1969, a few hours before the homicide, they purchased hunting knives. One was used in the murder.

Defendant stabbed Tomlinson 66 times. Defendant apparently hurried from the scene when some young men happened along. He later appeared at a hospital where he asked the night supervisor whether a policeman was there, saying he wanted to talk to the police about a "murder." When the police arrived, defendant said he wanted to report a murder, that it was a stabbing, and that he did it. Defendant asked to see a psychiatrist. The witnesses as to defendant's behavior at the hospital described him as calm but tense, a police officer adding that "I didn't figure he was crazy, but I didn't think he was all there." Defendant wrote upon two sheets of paper while waiting for the police. Upon one he said he wanted to see a psychiatrist; the writing upon the other was meaningless. Defendant later gave a statement to the State Police, which the defense offered on its case as a predicate for a psychiatric opinion.

There was no dispute that defendant killed Tomlinson. The only real issue, as phrased by the defense, was "temporary insanity." It was claimed that defendant killed in a psychotic episode during which he was legally insane. The psychiatrists agreed that this was so but their opinions depended upon defendant's extra-judicial statements as to why he killed the deceased and as to delusions he said attended the event.

Defendant, however, did not testify. If he had, the jury would not have had to believe his account, and especially in the light of the facts recited above from which it could be inferred that defendant knew he had committed "murder" and wanted to report that fact to the police. That

the psychiatrists relied upon defendant's extra-judicial statements of course did not establish their truth. On the contrary, if the psychiatrists depended upon those statements, their opinions were vulnerable on that account. See State v. DiPaolo, 34 N.J. 279, 293 (1961); State v. Trantino, 44 N.J. 358, 370-371 (1965), cert. denied, 382 U.S. 993, 86 S. Ct. 573, 15 L. Ed. 2d 479 (1965). Defendant alone was in a position to supply the proof and he did not.*fn1

In State v. Lucas, 30 N.J. 37 (1959), we held a psychiatrist may testify as to what the defendant told him if the psychiatric opinion depended upon the fact that the defendant said what he said or the manner in which it was said. But we stressed that if the psychiatric opinion rested upon the factual content of the defendant's statement, the value of the expert opinion would depend upon independent proof of the truth of that content. In the words of Lucas, 30 N.J. at 79-80:

See 2 Wigmore, Evidence (3d ed. 1940), § 288, p. 14; McCormick, Evidence (1954), § 228, pp. 467-68. See also State v. Whitlow, 45 N.J. 3, 19 (1965).

We recently suggested that "a more definitive exploration of the insanity defense by both defendant and the State would be helpful in resolving the claim." State v. Risden, 56 N.J. 27, 39 (1970). It is the jury that must ultimately decide the case. The role of the psychiatric witness is to aid the jury in the search for the truth to the extent that he, as an expert, is able to help. He should be asked

to identify the facts he takes as true so that the jury may know whether to accept or to reject his opinion in accordance with the jury's findings as to the truth of those facts. And so, here, the experts should have been queried as to the role played by defendant's statement to them or to others of the reason for the killing and of the delusional ideas interlaced in that account.

We should not be thought to bar whatever expert help the psychiatrist may be able to give as to whether a defendant's narration of the event and his related thoughts is medically credible. If there is an expert basis for thus assisting the jury to decide whether to accept a defendant's assertions, the psychiatrist's testimony along that line would also be welcome. But the ultimate fact finder remains the jury.

For the reasons we have given, the trial court could not have directed a verdict of not guilty because of insanity. The jury was not obliged to accept the expert opinions. This is so because there was no evidence in the record to support critical facts upon which the psychiatric opinions apparently rested, and because, if there were, the credibility of the opinions would nonetheless remain an issue for the trier of the facts. Indeed, it would be a rare case in which the insanity issue could be determined by a court on motion to direct a verdict. A trial court, of course, has a different role if a jury's finding is later assailed as against the weight of the evidence, but it is something else to take the issue from the jury.

II

As we have already said, we think the charge to the jury was erroneous. To show that this is so, the evidence must be sketched.

Defendant's relevant history is poor. His mother had been institutionalized six times, upon a diagnosis, we are told, of schizophrenia of the paranoid type. A brother, too, had had a psychiatric problem. The family life may be summed up as unusually unfortunate.

Defendant was described as shy and withdrawn. At some point he became interested in psychology and pursued studies in that area. In August 1969, about two months before the homicide, his personality began to change. The testimony showed he took LSD on two occasions in August, with no apparent effect according to statements attributed to him. He began to smoke hashish once a week and did so up to the time of the killing. Defendant became outgoing and talkative. When his father learned of the use of drugs, he took defendant to a psychiatrist. Defendant was also referred to the clinical psychologist at the college, and this because a female member of the faculty was disturbed by defendant's undue attention to her. That psychologist thought defendant was psychotic when he last saw him, two days before the homicide.

In jail, a day or two after the killing, defendant became violent. He was committed to the New Jersey State Hospital for observation. The history in the hospital record attributed to him a purpose to kill himself because of what he had done. He seemingly tried to gouge his eyes out "because of his guilt and sin of murder," although apparently no serious injury resulted. He remained at the hospital until April 11, 1970 when, ...


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