For reversal and remandment -- Chief Justice Hughes, and Justices Jacobs, Hall, Mountain, Sullivan and Pashman. For affirmance -- None. The opinion of the Court was delivered by Pashman, J.
Defendant appeals from his conviction of rape and robbery in violation of N.J.S.A. 2A:138-1 and 2A:141-1. He alleges that the trial court erred in failing to conduct a second competency hearing before or during his second trial. It is further contended that after defendant's first trial ended in a mistrial, the trial court erred in relying upon a jury verdict as to his competency to stand trial; that defendant was denied his right to be present at the competency hearing; that defendant was deprived of a fair trial in being tried while incompetent to stand trial; and that the prosecutor, in his summation, misinformed the jury on the issue of punishment. The same trial judge presided over the first trial, competency-sanity hearing and second trial.
On appeal to the Appellate Division, 122 N.J. Super. 249, the majority of the Court rejected sixteen allegations of error by defense counsel as well as five contentions of defendant's pro se application. In responding to defense counsel's allegation of error based on the trial judge's failure to grant a second competency hearing, the court noted that such a request was within the sound discretion of the trial court. Review would not be available in the absence of an indication that defendant "clearly and convincingly" appeared incapable of standing trial. State v. Lucas, 30 N.J. 37, 73-74 (1959). The dissent emphasized the factual history of the defendant as revealed to the trial court. Specifically, the dissenter was convinced that there existed a bona fide and reasonable doubt as to defendant's competency to stand trial. Pate v. Robinson, 383 U.S. 375, 385, 86 S. Ct. 836, 842, 15 L. Ed. 2d 815, 822 (1966). Appeal to this Court followed as of right pursuant to R. 2:2-1(a)(2).
We reverse and remand to the trial court for a new trial if, after an inquiry into defendant's competency, he is found able to stand trial.
Defendant, Frank Spivey, was charged with rape and robbery occurring on the evening of November 26, 1969. Complainant
was returning from a shopping trip when, while walking from the bus stop to a cab station, a man called to her from behind the wheel of a nearby truck. Unable to understand what was said, she walked closer to the truck which was occupied by two men. Complainant went to the passenger side where she was either pulled in or entered voluntarily. She then accepted an offer of a ride home. It soon became apparent, however, that the occupants had no intention of driving her home. After parking in a fairly isolated spot, the defendant, who was driving the vehicle, thrust complainant down and hit her over the head several times. He then is alleged to have taken money from her pocketbook. Testimony indicated that defendant ripped off complainant's bracelet, as well as various articles of clothing, and proceeded to force himself sexually upon her. Complainant was then pushed from the truck and threatened not to call the police. The defendant and passenger were apprehended later the same evening.
Defendant's first trial began on September 21, 1970 and ended two days later in a mistrial. Spivey's first contact with the trial judge involved an objection to his counsel and a request to be left in jail while the trial proceeded. The judge immediately questioned whether Spivey was "all right" and noted that he was "inclined . . . to have him examined by a psychiatrist." The following day, defendant interrupted the court during voir dire but was quiet for the remainder of the proceedings.
The next morning, Spivey attempted suicide. He was brought into court without his shirt on. He refused to have a bruise treated and shouted at everyone to leave him alone and let him die. The judge noted he was prepared to bind and gag him if absolutely necessary, but continued efforts to calm him and speak to him quietly and rationally. Based on defendant's outbursts in court and counsel's professed inability to communicate with his client, defense counsel made a motion for a mistrial. The motion was denied.
Spivey continued to interrupt the judge, who finally ordered him gagged and handcuffed.
THE COURT: Mr. Grieco, as I indicated to you out of the presence of the jury, this man knows what he is doing.
DEFENDANT SPIVEY: How do you know? You are not a doctor. You are not a psychiatrist. You are a judge. That's what you are.
THE COURT: Gag him. Put your hand on him. Unfortunately these defendants know what went on in Chicago. These defendants know what other defendants have done in other states. As far as this Court is concerned, your motion is denied. That's all there is to it.
Defendant then continued making loud noises and was removed from the courtroom over defense counsel's objection.
Upon entering the courtroom after opening statements of counsel, defendant, in response to questioning by the court, stated his refusal to behave in front of the jury. The judge, noting his own obligation to act even in the absence of defense counsel's suggestions, indicated his belief that "plain fair play" and decency required this man to be examined: "[W]ho am I to say whether this man is a faker or whether his attempted suicide is part of a mental illness?" In responding to the prosecutor's pointing out that defendant seemed capable of following the proceedings and was aware of what each party was doing, the judge took note of another suicide attempt by the defendant, just subsequent to his arrest, and then ordered an examination.
THE COURT: I can't shut my eyes to this. I won't sleep. I can't. I won't do it. I have to have professional help here. I won't do it. I don't know whether it's part of a pattern. There are two more prisoners upstairs who said they are not coming down. I don't know whether it's part of what is going on in New York or Chicago or California -- that's all secondary. This man is a human being. I am going to treat him as such.
The court arranged to have defendant examined by the Essex County Psychiatrist, Dr. Martin.
His temporary diagnosis was that Spivey was suffering from an "acute psychotic episode" rendering him unable to communicate. Dr. Martin noted Spivey's prior history of hospitalization and a prior diagnosis of schizophrenic reaction, chronic, undifferentiated type. It also appeared that Spivey had been given approximately ten electric shock therapy treatments while hospitalized at either Greystone Park or Overbrook Hospitals between 1966 and 1968. It was his opinion that at this stage, Spivey was unable to confer with counsel. The judge thereupon directed that defendant be examined by two additional psychiatrists and noted his intention of proceeding under statutory authority to determine defendant's competency to stand trial as well as his sanity at the time the offense was committed. Defendant's motion for mistrial was granted.
Defendant remained in the Essex County Jail until October 8, 1970, at which time he was committed pursuant to N.J.S.A. 30:4-82 by order of the trial judge. Notice of a hearing to be held on October 27, 1970 as to defendant's commitment to the New Jersey State Hospital was personally served on defendant on October 9, 1970 at the hospital. This hearing was not held until January 1971. No explanation could be found for its being postponed. Immediately after receiving notice of the October hearing date, defendant, being of the opinion that he was in a hospital with convicted people, drew a pro se petition for his release. The petition was denied after a hearing before Assignment Judge Kingfield on November 5, 1970. Petitioner was well behaved, answered all questions addressed to him, and co-operated with the court. The order denying Spivey's petition was not entered until January 6, 1971. Spivey wrote another petition challenging his confinement on November 6, 1970. Apparently no action was taken on it.
In the interim, the trial judge had proceeded with scheduling a hearing pursuant to N.J.S.A. 2A:163-2. He met with counsel on November 30, 1970 and noted his intention to empanel a jury. This is contrary to an assertion at trial
that he intended to hear the matters of competency to stand trial and sanity without a jury. No explanation for this change could be found in the record, nor could it be explained by subsequent communications with counsel.
The hearing was held on January 4 to 6, 1971. The defendant was not present.*fn1 Spivey received no formal notice, as he had for the originally scheduled hearing date, but was apparently told of the hearing by his wife, who had received notification and communicated this to her husband about twelve days prior to the hearing. At the outset, the defense noted that the inquiry was a three-fold inquiry relating to competency to stand trial, present sanity, and sanity at the time of the crime.*fn2 Defense counsel's statement indicated that the trial judge had already related this to the jury. Three doctors testified. Drs. Sol S. Winsten and Henry A. Davidson were called by the defense.
Dr. Winsten had occasion to examine the defendant on September 30, 1970 in the Essex County Jail. His diagnosis was that defendant was suffering from schizophrenia, paranoid type, chronic and could not confer with counsel. The doctor opined that Spivey was insane when the crime was committed. He also noted that while the defendant knew the full significance of the charges and that society felt that
rape was wrong, the defendant did not feel that way himself. On cross examination, Dr. Winsten indicated that his examination lasted one hour and that he was satisfied from his twenty-eight years of experience that Spivey was not a faker. He also reiterated his belief that defendant "could not properly confer with his attorney, because of his disordered thinking."
Dr. Davidson saw the defendant both in December 1969 and November 1970. His diagnosis was in accord with Dr. Winsten -- paranoid schizophrenia. Defendant knew the nature of his act, and that it was wrong in society, but that it was not wrong for him to do it. Dr. Davidson felt that defendant was insane and could not confer with counsel, although the doctor stated that this is not necessarily so with all insane persons.*fn3 He also opined that defendant was probably insane at the time of the crime and that the defendant was not faking.
It was brought out in cross examination that defendant's hospital records revealed numerous commitments to mental hospitals, some of which resulted in a diagnosis of psychosis, anti-social reaction, or, not insane. Dr. Davidson did not
alter his diagnosis, although his credibility was attacked as a result of his having been given the records of another Frank Spivey who was also institutionalized and diagnosed as a schizophrenic paranoid type. Dr. Davidson again stated that Spivey's ability to communicate with his lawyer was "rather seriously impaired," and expressed his disagreement with the diagnosis of anti-social reaction.*fn4
Dr. Joachim G. Elizondo, affiliated with Trenton State Hospital, was called by the State. After noting that this was defendant's seventh time at Trenton State Hospital, he disagreed with the other two psychiatrists and stated that Spivey was not and never had been insane. It was his opinion that defendant knew right from wrong, that he wanted to be sent to the hospital, that he knew how to get there and that he admitted being a faker. The court repeatedly questioned Dr. Elizondo as to why he felt that Spivey was not ...