On appeal from Superior Court, Law Division, Bergen County.
Kole, Joelson and McElroy. The opinion of the court was delivered by Kole, J.A.D.
On March 18, 1981 Eric Hinsinger (hereafter "defendant") was arrested as a material witness in the murder prosecution of James Vidovic. After a hearing at which four psychiatrists testified, Judge DiGisi found that defendant was competent to testify.
On June 12, 1981 defendant was called as a witness in the Vidovic case but refused to swear or affirm, or give testimony, despite the judge's instructions that he was required to testify and despite a consultation with his attorney. The judge cited him for contempt. A summary hearing on the matter was held before the judge on June 18, pursuant to R. 1:10-1 relating to
contempts in the actual presence of the court. He found defendant guilty of contempt and sentenced him to a six-month term in the county jail. Defendant appeals.
Dr. Kuvin, a psychiatrist, was called to testify on defendant's behalf in order to offer an explanation for defendant's refusal to testify. He interviewed Hinsinger for an hour, during which time he did not speak. The doctor indicated that defendant was "selectively mute"; that there was no physical reason for defendant's inability to speak; that defendant was suffering from a "factitious disorder" producing his mutism predicated on a clear underlying mental disorder, and that although the mutism was voluntary, in that he could talk, "he won't talk because his thought patterns are so disturbed." He stated that this is a recognized psychiatric disease, and although, intellectually, defendant's refusal to speak after being ordered to do so was willful, emotionally it was not.
Dr. Crain, another psychiatrist, had also examined defendant. He had reported that defendant had a factitious disorder, but he also indicated that defendant could talk if he so desired; he just did not want to talk.
In holding that defendant was guilty of contempt the judge noted that he had observed defendant in court many times, and he was satisfied that his actions were voluntary. He further noted that several psychiatrists had concluded that he was competent to testify. The judge indicated that defendant had complied with the court's requests, such as to "sit down" and that he had watched defendant listen attentively to his attorney, but nevertheless, "when a lawyer wants to talk to him, he makes out he's not interested and looks away and won't even look at the lawyer." The judge also took into account the fact that defendant had written letters to his attorney, despite his mutism, and had a history of "turning on and off when he so desires." He concluded that defendant had acted in knowing defiance of the requirement that he testify.
Four days later, on June 22, defendant was called as a witness in the Vidovic case for the defense. After being given the oath, he nodded his head affirmatively. Vidovic's attorney asked him whether he had been convicted of various crimes, and he responded, "The only thing I am guilty of is the murder of Wanda Lewis," the victim in the Vidovic prosecution. He also responded briefly to some of the questions asked by the prosecutor on cross-examination. After a number of other questions he took refuge in the Fifth Amendment and refused to answer any more questions. Eventually he did not respond at all to questioning.
Defendant raises the following issues on this appeal: (1) the judge erred in holding a summary contempt proceeding; (2) the judge erred in finding defendant guilty of contempt; (3) defendant is entitled to credit ...