On appeal from the Superior Court, Law Division, Monmouth County.
Morton I. Greenberg and Furman. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
[188 NJSuper Page 171] A Monmouth County grand jury returned two indictments against defendant. Indictment 1174-80 charged defendant with two counts of attempted armed robbery (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1). Indictment 1194-80 charged defendant with attempted robbery (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1). All three incidents involved attempts to rob banks. Defendant pleaded not guilty to the indictments. On June 5, 1981 defendant advised the prosecutor that she would rely on a defense of insanity and that she would call Harry H. Brunt, M.D., and Alan V. Bornstein, M.D., as witnesses. The State served a motion returnable on the trial date, December 14, 1981, "to strike defendant's defense of insanity." It was the desire of the State
that the motion "be heard prior to the swearing of the jury." After hearing the argument of counsel and considering the psychiatric reports submitted, the judge gave an oral opinion granting the motion and striking "the psychiatric testimony as to insanity." On the same day, December 14, 1981, he signed a formal order "that the defense of insanity be stricken from presentation [at the trial]."
Defendant then entered into a plea agreement with the State. Under the agreement she pleaded guilty to count two of Indictment 1174-80 (attempted armed robbery). She reserved the right to appeal from the order striking the defense of insanity. See R. 3:9-3(f). The judge accepted her guilty plea and sentenced her to probation for four years. He also made provision for psychiatric care as a condition of probation. In addition, defendant was assessed a penalty of $50 for the use of the Violent Crimes Compensation Board. The judge dismissed Indictment 1194-80 and the remaining count of Indictment 1174-80. On January 4, 1982 defendant filed a notice of appeal from the order of the trial court striking the insanity defense and from the judgment of conviction subsequently entered following her guilty plea. On February 10, 1982 the motion judge filed an amplification of his prior oral opinion. See R. 2:5-1(b). In this amplification the judge made an analysis of the reports of Drs. Brunt and Bornstein. He concluded that defendant "intended to go to the three banks with a half-formed and bizarre purpose of obtaining money in the manner suggested on a television program which she had recently seen. Quite clearly, she understood the nature and quality of her acts. She also knew it was wrong to rob a bank. That is precisely why she turned and ran each time the commission of the criminal act appeared close."
After a careful review of this matter we have concluded that the order of December 14, 1981 striking defendant's defense of insanity must be reversed. There is no procedure in a criminal case for the court to pass on a pretrial motion by the State to strike an insanity defense. R. 3:10-1 provides that in a criminal case "Any defense or objection capable of determination without
trial of the general issue may be raised before trial by motion to dismiss or for other appropriate relief." R. 3:10-2 requires that certain defenses must be raised before trial and that failure to do so constitutes a waiver of the defense unless the court for good cause grants relief from the waiver. It seems clear that in dealing with defenses or objections R. 3:10-1 contemplates an application by a defendant. Any doubt on this construction is dispelled by R. 3:10-2. Only a defendant can waive a defense in a criminal case. Thus R. 3:10-2 cannot apply to the State.
Criminal practice should be contrasted with motions allowed in the rules governing civil cases. A civil plaintiff may move to strike defenses or may move for summary judgment. R. 4:6-5 and R. 4:46-1 et seq. The Supreme Court has not given a trial court authority to entertain like applications by the State in a criminal case. Further, R. 3:12, dealing with a defendant intending to claim insanity as a defense or asserting that he lacked the requisite state of mind for an element of an offense, should be contrasted with R. 3:5-7(a) governing motions to suppress. Under R. 3:12 the Supreme Court requires that defendant give written notice to make the defense when entering the plea or, unless the time is extended for good cause shown, within 30 days thereafter. The rule does not authorize the court in a pretrial ruling to pass upon the defense of insanity or determine if defendant lacked the requisite state of mind for an element of the offense. Under R. 3:5-7(a) a motion to suppress is to be made and determined before trial unless the court determines that defendant could not reasonably have made it prior to trial. The reason for the distinction seems clear: R. 3:12 defenses are for the jury, see State v. Trantino, 44 N.J. 358, 369 (1965), cert. den. 382 U.S. 993, 86 S. Ct. 573, 15 L. Ed. 2d 479 (1966), and motions to suppress are for the judge. A trial judge must be careful not to impinge on a jury's function, particularly in a criminal case. See State v. Ingenito, 87 N.J. 204 (1981). Thus, he should not pass upon pretrial applications to strike R. 3:12 defenses.
In reaching our result we recognize that R. 3:13-1(b) provides that
Hearings to resolve issues relating to the admissibility of statements by defendant, pretrial identifications of defendant and sound recordings may be held at any time prior to trial and, upon a showing of good cause, hearings as to admissibility of other evidence may also be so held.
It is apparent that this rule deals principally with questions which if reserved for the trial would be answered by the judge. See State v. McCloskey, 90 N.J. 18, 22 (1982) (validity of statement under Miranda rule*fn1); State v. Lutz, 165 N.J. Super. 278, 281 (App.Div.1979) (Miranda statement and Wade*fn2 identification questions); State v. Driver, 38 N.J. 255, 287-288 (1962) (sound ...