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State v. Khan

Decided: July 15, 1980.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH KHAN, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Monmouth County.

Seidman, Michels and Furman. The opinion of the court was delivered by Seidman, P.J.A.D.

Seidman

Defendant was indicted in April 1977 for murder and, in two additional counts, for possession of pistols without having obtained a permit therefor. We granted his motion for leave to appeal from an interlocutory order entered on February 8, 1979, after a competency hearing, which adjudged him competent to stand trial, denied the Public Defender's application for a hearing on the issue of defendant's insanity at the time of the crime, appointed a special attorney for the specific purpose of presenting on behalf of defendant at the trial the defense of self-defense, and directed the Public Defender to assert on behalf of defendant at the trial the defense of insanity.

The Public Defender is unable to determine what position to take with respect to the competency ruling and thrusts upon us the burden of "review[ing] the record below and reach[ing] a just determination." Defendant's special counsel argues that defendant was correctly found to be competent to stand trial. So does the State and Counsel for the Division of Mental Health Advocacy. All express the view that if defendant is competent to stand trial, the insanity defense may not be interposed on his behalf over his objection. The Public Defender claims that the judge erred in ordering conflicting defenses of self-defense and insanity to be tried by separate defense counsel before the same jury, and urges that there should be either two juries or serial trials. Special counsel opts for a bifurcated trial on these issues. The State opposes serial or bifurcated trials, maintaining that there should be a single trial before one jury.

For reasons that follow we reverse and remand for a new hearing on the issue of competency to stand trial. The pertinent factual background of this bizarre case emerges from statements made by defendant to the police and others, including psychiatrists who examined him.

For some time prior to March 16, 1977 defendant had been engaged in the painting and repair of a house owned by his mother's sister. During this period Walter and Rose McCue were tenants occupying one of the three apartments in the house. Defendant believed that McCue resented his being paid for his services while McCue had made repairs to the house for no remuneration. Sensing this resentment and suspecting that McCue was armed, defendant began carrying a weapon. He felt that McCue was a violent person and part of a larger scheme or conspiracy to harm him.

On March 16, 1977 defendant went to his aunt's house to work on one of the apartments, which work had apparently been started by McCue. According to defendant, McCue approached him and angrily stated that he had not finished the job. Nevertheless, defendant prepared to begin the work. He then observed McCue in the semi-darkness of an adjoining room, "psyching himself up," breathing deeply, gesticulating, rising up and down on his toes, and holding an object in his hand, which defendant could not identify. When defendant told McCue he was about to start working, McCue screamed and charged at defendant, brandishing a hammer. Defendant drew his revolver and fatally shot McCue. He informed his aunt, who called the police. McCue's body was found in the hallway of the apartment, a hammer clutched in one hand.

Defendant told the police that he shot McCue in self-defense, a position he has adamantly maintained throughout the proceedings despite overwhelming psychiatric opinion evidence that defendant's belief that he acted in self-defense and the facts he cites in support thereof have no basis in reality and are the product of a paranoid delusion. Defendant is equally determined not to permit counsel to raise the defense of insanity on his behalf.

Following defendant's indictment in April 1977 there have been five proceedings on the issue of defendant's competency to stand trial. At the first, held in July 1977 on the Public Defender's motion, Judge Yaccarino determined that defendant was incompetent to stand trial and also ordered his commitment to a mental institution "until such time it is determined that he

can be brought or restored to reason." A periodic review of the commitment, as well as a further hearing on defendant's competency to stand trial, took place before Judge Shebell on February 3, 1978. He ordered the involuntary commitment to continue, but at the same time found defendant competent to stand trial and directed that the matter be restored to the active trial list. Judge Shebell held another periodic review, coupled with a competency inquiry, in May 1978, and again concluded that defendant could stand trial but that the commitment should continue. One month later defense counsel raised again the issue of defendant's competency to stand trial at a hearing before Judge Davidson on the prosecutor's motion to determine the order of proofs in the event the insanity defense were to be interposed notwithstanding defendant's objection. Judge Davidson heard the matter in July and determined that defendant was not competent to stand trial. The latter's commitment was continued. In January 1979 defense counsel applied for a hearing under N.J.S.A. 2A:163-2 on whether defendant was insane at the time the crime was committed and, if it should be found that he was, for an order dismissing the indictment. Judge Shebell heard the matter. He concluded that there should first be another hearing on the issue of defendant's competency to stand trial before consideration would be given to whether defendant was insane when the crime was committed. That hearing, at which counsel agreed no further medical testimony was needed, occurred in February 1979 and led to the order which is the subject of this appeal.

Most of the psychiatrists who testified at the hearings or submitted reports agreed that defendant suffered from the mental disorder of schizophrenia, paranoid type. All were in accord that a product of defendant's condition, even if he was not actually schizophrenic, as one or two of the psychiatrists seemed to believe, was his delusion that a conspiracy existed to do him harm and that decedent was part of the conspiracy. The split concerned the issue of defendant's competency to stand trial, on which the psychiatrists expressed divergent views.

Our conclusion that the matter should be remanded for a further hearing on defendant's competency ...


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