(sic) and it would be against the mandate . . . set forth in . . . those cases in interpreting (Rule 1:16-1) to permit an interview of the jurors in this regard or for this purpose." Id. at 13.
The petitioner's claim is without merit. He did not move in a timely fashion. When he finally moved he had no evidence any juror had seen the article, let alone read it in disregard of the trial judge's admonitions. Moreover, even if jurors had read the article, it is far from clear that petitioner would have been substantially prejudiced. Accordingly, this claim must be dismissed. See United States v. Taylor, 569 F.2d 448, 454 (7th Cir.), cert. denied, 435 U.S. 952, 98 S. Ct. 1581, 55 L. Ed. 2d 803 (1978); United States v. Armocida, 515 F.2d 29, 48-49 (3d Cir.), cert. denied, 423 U.S. 858, 96 S. Ct. 111, 46 L. Ed. 2d 84 (1975); United States v. Vento, 533 F.2d 838, 869-70 (3d Cir. 1976); Frame v. United States, 444 F.2d 71 (9th Cir.), cert. denied, 404 U.S. 942, 92 S. Ct. 291, 30 L. Ed. 2d 256 (1971); United States v. Manning, 440 F.2d 1105, 1112 (5th Cir.), cert. denied, 404 U.S. 837, 92 S. Ct. 125, 30 L. Ed. 2d 69 (1971).
Next, petitioner contends that he is unlawfully incarcerated because the jury was unconstitutionally charged that he bore the burden of proving insanity by a preponderance of the evidence. According to petitioner, the State should have been assigned the burden of proving his sanity.
In Leland v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952), the Supreme Court upheld an Oregon statute which required the defendant to prove insanity beyond a reasonable doubt. Since Leland, however, the Supreme Court has stated on a number of occasions that due process compels the prosecution to prove all elements of a crime beyond a reasonable doubt. See, e.g., Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Relying on these cases, petitioner argues that Leland is no longer good law, because it impermissibly allocates the burden of persuasion to the criminal defendant.
Petitioner's contention is without merit, for Leland has not been overruled. The Supreme Court dismissed, as not raising a substantial federal question, a case presenting a direct challenge to the validity of Leland. Rivera v. Delaware, 429 U.S. 877, 97 S. Ct. 226, 50 L. Ed. 2d 160 (1976). More recently, the Supreme Court announced, "We are unwilling to reconsider Leland and Rivera." Patterson v. New York, supra, 432 U.S. at 207, 97 S. Ct. at 2325. Rivera and Patterson plainly foreclose the argument petitioner advances. As the Court of Appeals for the Third Circuit succinctly stated in affirming a statute placing the burden of proving voluntary intoxication on the defendant, "(T)he (Supreme) Court has held that the defense may be required to establish insanity." United States ex rel. Goddard v. Vaughn, 614 F.2d 929, 935 (3d Cir. 1980) (citations omitted).
The State of New Jersey has chosen to require the defendant seeking an acquittal by reason of insanity to establish, by a preponderance of the evidence, his insanity. State v. Lewis, 67 N.J. 47, 48, 335 A.2d 12 (1975); State v. DiPaglia, 64 N.J. 288, 293, 315 A.2d 385 (1974). See also State v. Molnar, 81 N.J. 475, 492, 410 A.2d 37 (1980). The Due Process Clause does not forbid the states from requiring the defendant to carry the burden of disproving sanity. Rivera v. Delaware, supra; Leland v. Oregon, supra; United States ex rel. Goddard v. Vaughn, supra; Nelson v. Hutto, 597 F.2d 137, 138 (8th Cir. 1979) (per curiam); Duisen v. Wyrick, 566 F.2d 616, 617 (8th Cir. 1977) (per curiam); Grace v. Hopper, 566 F.2d 507, 509-10 (5th Cir.), cert. denied, 439 U.S. 844, 99 S. Ct. 139, 58 L. Ed. 2d 144 (1978). Accordingly, petitioner was not deprived of any constitutional right when he was obliged to persuade the jury by a preponderance of the evidence that he was insane at the time the murder was committed.
Petitioner's final claim concerns the trial court's decision finding him competent to stand trial. Before trial commenced, petitioner's attorney moved to have his client declared incompetent. The trial judge ordered a hearing, at which two witnesses appeared.
The first witness was Dr. Seymour Kuvin, a psychiatrist, who testified as an expert witness. Dr. Kuvin had examined petitioner for an hour approximately three weeks before the hearing. He based his testimony almost entirely on facts learned during that interview.
Dr. Kuvin diagnosed petitioner as suffering from organic brain damage. Tr. at 7, 47. He testified that petitioner's condition resulted from ingesting LSD. According to Dr. Kuvin, petitioner's condition manifested itself in a variety of ways.
(H)e gave the appearance of being spaced out, he was very flat in his affect, he would stare, he didn't seem to be communicative and I would have to repeat questions, I would ask a question and I would get a stare for a reply as if it didn't penetrate and then I would have to repeat questions again.
Tr. at 9. Petitioner did not, according to Kuvin, fully understand the significance of the charges against him. On the competency assessment sheet, which was admitted into evidence at the hearing as a defense exhibit, he rated petitioner as severely incapacitated with respect to the ability to appreciate the nature and range of possible penalties. He reached that conclusion because it "didn't seem to make a dent" on petitioner when he was informed that he might be imprisoned for life. Tr. at 11. It was Dr. Kuvin's opinion that petitioner did not fully understand the meaning of a murder charge. Tr. at 29. Dr. Kuvin also believed that petitioner was not quite sure why he was incarcerated at the time of the hearing-while petitioner gave a partially correct response initially to the question of why he was at the Bordentown Correction Center, he subsequently expressed uncertainty. Tr. at 19-20. See also Tr. 40-41. Dr. Kuvin also said that petitioner's non-verbal conduct revealed confusion as to the reason for his being jailed. Tr. at 20.
Dr. Kuvin's testimony also bore on petitioner's capacity to assist his lawyer at trial. Petitioner, said Dr. Kuvin, knew who his lawyer was and probably trusted him. Tr. at 48. Dr. Kuvin did not believe, however, that petitioner could understand his lawyer's advice or make a decision after accepting advice, even though he was capable of taking advice. Tr. at 50. Nor could he spot contradictions in testimony or erroneous testimony at trial. Id. While Dr. Kuvin believed petitioner would remember having been in court the preceding day, he doubted petitioner could "carry from one hour from the next or one day from the next what has been going on as far as court is concerned." Tr. at 46. Moreover, Dr. Kuvin described petitioner as suffering from a severe incapacity to challenge prosecution witnesses realistically. Tr. at 13.
Probably the most significant aspect of Dr. Kuvin's testimony concerned his analysis of petitioner's ability to remember the events surrounding the death of his girlfriend. On direct examination Dr. Kuvin was asked if the petitioner could disclose to his attorney information about the crime.
Well I felt that this was total, he was unable to give any information concerning the offense in my conversation with . . . his attorney(;) I learned that Mr. Coleman was unable to give his attorney any facts and as a matter of fact, I was able-