On appeal from Superior Court of New Jersey, Law Division, Essex County.
Pressler, Dreier and Bilder. The opinion of the court was delivered by Dreier, J.A.D.
Defendant has appealed from convictions for murder, N.J.S.A. 2C:11-3, third degree aggravated assault, N.J.S.A. 2C:12-1b(2), and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. He was sentenced to a term of 30 years with a 15 year parole ineligibility on the murder charge,*fn1 and to concurrent four year terms on the aggravated assault and possession counts and was also assessed a $25 Violent Crimes Compensation Board penalty on each count.
The offense need only briefly be described. Defendant killed his mother by stabbing her 21 times. He then threatened his brother with the knife, but the brother was able to escape the family home and summon the authorities who found defendant sitting on the roof of the house with his hands in his lap, his head down and with blood on his arms, face and clothes. He was 31 years old at the time of the killing and obviously a severely disturbed person. His psychiatric problems had been evident since he was 16 or 17, and he had prior convictions for inhaling cleaning fluids, carrying a weapon and violation of probation for continuing to sniff paint thinners. The defense psychiatrist, Dr. Kuvin, testified at the competency and the
Khan hearings*fn2 and at trial. He found that defendant suffered from organic brain tissue damage and was "so mentally impaired that he cannot appreciate the fact that he is mentally impaired." He diagnosed defendant as suffering from a psychotic disorder akin to schizophrenia. Defendant heard voices in his head and believed that voices caused by "voo-doo" were speaking to him from the television, radio and records. Part of this delusion was the thought that his mother was involved in a conspiracy against him to ruin his life and was in the pay of the governor and mayor in a plot to invade his privacy, and that the conspiracy caused him to be spied on electronically. He constructed an electronic device to locate microphones he believed his mother was planting in his room and wrote letters concerning this delusion with copies to the United States Supreme Court, the United States Secret Service, the F.B.I. and other government agencies and officials. He previously had threatened to kill both his mother and his brother and there had been at least one violent incident two years before the homicide in which defendant had smashed furniture within the house.
After the homicide, and in spite of the overwhelming evidence, defendant denied murdering his mother, blaming the crime upon his brother. He was adamant that he had not committed the act and that he was not insane. At trial he reiterated the denial and further denied preparation of letters in his own handwriting that strongly indicated his mental instability. Only after hearing Dr. Kuvin's testimony concerning defendant's psychiatric problems and explaining of defendant's memory and thought delusions including that his brother Dan had committed the homicide, as well as the "massive denial phenomenon" that caused him to believe that he was not mentally ill, did defendant allow his attorney to proceed with the insanity defense.
Jury selection in this trial began June 21, 1982. On the same date the jury in the trial of John Hinckley, Jr. for the attempted assassination of President Reagan, was in its fourth day of deliberation and that evening reached its verdict of not guilty by reason of insanity. Jury selection in the case before us was concluded on the morning of June 22, 1982 and the trial took three days, with the verdict announced on the morning of June 25, 1982. During this entire period the newspapers, radio and television resounded with accounts of the Hinckley verdict and denouncements of the acquittal of a defendant who attempted to assassinate and succeeded in grievously wounding the President of the United States. The trial judge was well aware of the Hinckley publicity, since statements by him out of the jury's presence concerning that case appear frequently throughout the transcript. He stated, however, that he was "going to stay away from" the Hinckley case to avoid "earmarking" the case in the minds of the jury during the voir dire. Although questions during the voir dire touched on the issue of insanity, the name "John Hinckley" was never mentioned. Rather, the questions asked were whether the jurors were asked whether they had mental problems, whether members of their families had been treated for mental problems, whether they had taken a course in psychology or psychiatry and whether they or members of their families had worked in a psychiatric or mental hospital. As will be noted hereafter, this questioning was grossly inadequate, given the tenor of the times. The judge's final charge to the jury contained three references to the Hinckley case. He stated:
Thank you, Mr. Prosecutor. Ladies and gentlemen, I am going to ask you to rise with me. Some of the people's eyes are getting closed, and I want to have all of you awake when I talk to you. The reason I am doing this, ordinarily I would take a break but, ladies and gentlemen, there is some law that I have to read to you, and it is my policy to give it to you right away so I am just asking you to stretch for a moment, and the reason for it particularly is, if you know, I avoided talking about it so far in the case that occurred in Washington. Each morning I was confronted with the lawyers saying look what the Ledger has and the Times. Ladies and gentlemen, that is beyond my control, that I hope that that case has no part in your thinking.
Ladies and gentlemen, first of all, before I even start, I just want to let you know that the standards they use in Washington, D.C. are completely different than the standards of law we have here in New Jersey. It is completely different. I know that you have seen and you have heard some repercussions by the Attorney General of the United States, and the other people for and against that case. That has no part, ladies and gentlemen. That is a rather unusual case, and I think all of us who understand the law know that it is completely different from the law here in New Jersey.
At the end of the third day of trial there was another brief (three sentence) reference to the Hinckley trial:
Now ladies and gentlemen, I would like to -- I have stayed away purposely to avoid talking about a sensational trial we heard in Washington. I know last night when I looked at the television, I heard it, and you will hear a great deal of it again today. You are not to in any way be prejudiced by this.
In the face of substantial publicity (whether or not concerning the trial itself,) it is well settled that a criminal defendant is entitled to an impartial jury. Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S. Ct. 1507, 1522, 16 L. Ed. 2d 600, 620 (1966); State v. Williams, 93 N.J. 39, 60 (1983). The rule should be no different where the publicity concerns outside events which might bear upon the trial. The trial judge here acknowledged that the jury had been and was being subjected to the extensive publicity concerning the Hinckley case. We assume, as did he, that he could not have obtained a jury
untainted by the pervasive publicity accompanying the Washington proceedings. The principal question before the court should have been whether the proceedings still could have been conducted in a fundamentally fair manner before an impartial jury.
In approaching the question of shielding a jury from press publicity, our Supreme Court in State v. Allen, 73 N.J. 132, 141-145 (1977), suggested several alternate methods for protecting the jury from outside influences. Although the First Amendment issues were later reconsidered in State v. Williams, supra, 93 N.J. at 48 the Williams redefinition does not affect the alternatives available to insulate a jury from the adverse effects of publicity. If the publicity is expected to occur during the trial a jury may be sequestered (although this procedure is not favored), and clear and definitive instructions to refrain from reading or listening to media reports can be given. The Allen suggestion of limited in camera hearings was even further circumscribed in Williams, 93 N.J. at 63-67. If the offending material is the subject of pretrial publicity,
the trial court has available additional means such as (a) adjournment of the trial to allow public attention to subside, (b) change of venue, (c) foreign jury, (d) searching questioning of prospective jurors to screen out those infected by pretrial publicity and, (e) emphatic and clear instructions to the jury to decide the issues only on evidence presented in open court. See Sheppard v. Maxwell, supra. 384 U.S. at 357-362. 86 S. Ct. at 1519-1522, 16 L. Ed. 2d at 617-620; Nebraska [Press Assoc. v. Stuart, 427 U.S. [539,] 563. 96 S. Ct. [2791,] 2808, 49 L. Ed. 2d [683,] 700. (73 N.J. at 145).
In Williams, the court, after discussing other alternatives, specifically focused upon consideration of "the efficacy of more exhaustive and searching voir dire examinations," and being "particularly responsive to the requests of counsel regarding the examination of prospective jurors as to potential bias," even to the point of "a greater willingness to resolve doubts in favor of the defendant in excusing jurors for cause." (93 N.J. at 68).
In this case the trial judge chose not to adjourn the matter to let the publicity subside. Although there appeared to have been little likelihood that the issue would have been out of the
public view within a reasonable period or that any jury would be free of a sustained taint caused by the intensity of the publicity, this relief could have been combined with other remedies. For obvious reasons, a change of venue would have been unavailing. A sequestered jury would not have solved the problem of the initial publicity, and would have presented all of the problems noted in Allen. We are left, therefore, with the sole practical means of conducting the trial to be as stated in Allen, the "searching, questioning of prospective jurors to screen out those infected by pretrial publicity" (and even the continuing publicity during the trial), and "emphatic and clear instructions to the jury to decide the issues only on evidence presented in open court." As reiterated in Williams, "the court should also be mindful of the need to fashion effective cautionary jury instructions and to increase the frequency of their application."
In this unusual situation, since the judge could not have been expected to select a jury untainted by the publicity, he should have at least insured that the jury he did obtain was untainted by prejudice caused by that publicity. Unfortunately, he failed to do so. Defendant repeatedly requested a voir dire concerning the effect upon each juror of the Hinckley publicity. These requests were denied. Not only were there no "searching" questions, there were no questions at all. The instructions quoted earlier, although directing the jury to apply the different standards applicable in New Jersey, were insufficient. The court and parties needed to know whether the individual jurors, acknowledged to be tainted by the publicity, had formed any prejudice against the insanity defense in general or a fixed opinion as to this defendant's guilt or innocence as a result of the extra-judicial influences and whether they could still be guided by the ...