For affirmance -- Chief Justice Weintraub, Justices Jacobs and Hall and Judges Conford, Sullivan and Lewis. For reversal -- None. The opinion of the Court was delivered by Conford, P.J.A.D., Temporarily Assigned.
In February 1969 defendant was convicted of murder in the second degree and sentenced to a term of imprisonment of 18 to 25 years. The victim was his wife. The Appellate Division affirmed the conviction in an unreported opinion on October 27, 1970. Proceedings for review in this court were delayed, apparently through failure of communication between the Office of the Public Defender and defendant. In any event, we granted certification, 62 N.J. 87 (1972), primarily to consider defendant's contention, not raised at trial or before the Appellate Division, that he had been unconstitutionally prejudiced by the adduction at his trial of the facts of prior convictions in the 1940's and 1950's in Texas and New Mexico for forgery and by the trial court charging the jury that such convictions could be considered by them in appraising defendant's credibility as a witness.
Defendant's point is that he was uncounselled at the time he pleaded non vult in the out-of-state prosecutions aforementioned, and had not waived absence of counsel, rendering the consequent convictions constitutionally incompetent to impair his credibility at the instant trial. If true in fact, the assertion advanced, so far as just stated, is substantively sound and applicable retroactively. Burgett v. Texas, 389 U.S. 109, 115, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967); United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30
L. Ed. 2d 592 (1972); Loper v. Beto, 405 U.S. 473, 92 S. Ct. 1014, 31 L. Ed. 2d 374 (1972); State v. Koch, 118 N.J. Super. 421 (App. Div. 1972), reaffirmed 119 N.J. Super. 184 (App. Div. 1972). Whether a reversal is therefore warranted under the particular circumstances of this case, however, is another matter. Defendant (represented by appellate counsel who did not try the case) explains his failure to make the contention on the appeal to the Appellate Division on the basis that he did not know of the availability of the point until the Appellate Division decision in Koch, supra, decided March 9, 1972.
We pass the point that there is inadequate proof in this record concerning absence of counsel and lack of waiver thereof in the Texas and New Mexico prosecutions as we deem it in the interest of all concerned to decide the merits of the issue tendered on an assumption, made only for the purpose of this opinion, of the truth of the allegations.*fn1
Appraisal of the merits of defendant's position calls for some background.
The body of defendant's wife, Charlotte Miscavage, was found by friends on the floor of the bathroom of their home on September 11, 1967. The evidence was that she had been dead some time; there was blood all over the floor and on the body. A broken bottle top was nearby and several nylon stockings were around her neck. The expert opinion was that death was due to strangulation. There was a history of apparent habitual consumption by defendant of beer and
drugs, taken together. There was also evidence of use of drugs by the victim, who was a hospital nurse. It is unnecessary for present purposes to detail all the proofs connecting defendant with the homicide. They are overwhelming, and include several confessions. The substantial defense at trial was insanity, supported by the opinions of two medical witnesses who said defendant was a chronic schizophrenic. In their opinion, if he committed the crime, he did not realize the nature and quality of his act or that it was wrong to do what he did, because of mental disease. The State submitted contrary medical opinions.
Defendant's own testimony was, in substance, to the effect that on September 3, 1967, after consumption by him of beer and a barbiturate, an argument developed between himself and his wife over her refusal to go with him to a picnic; that she induced him to permit her to inject him with a drug; and that when he awoke he saw blood all over the bathroom, panicked, and fled the apartment with all the money he could find there, remembering nothing thereafter until he found himself in jail a week later.
In the course of his opening to the jury defense counsel (who tried the case ably) said:
On defendant's direct examination as a witness he confirmed the fact that he had been "in penitentiaries" on three occasions. Dr. Sooy, a defense medical expert, related on direct examination defendant's history ...