On appeal from Superior Court of New Jersey, Law Division, Cumberland County.
Morton I. Greenberg, J. H. Coleman and Havey. The opinion of the court was delivered by Coleman, J.h., J.A.D.
The crucial question raised by this appeal is whether the State should have been permitted to argue to the jury that defendant could have buttressed the credibility of her insanity defense by submitting to sodium amytal. Defendant was tried for murder, contrary to N.J.S.A. 2C:11-3, and unlawful possession of a shotgun, contrary to N.J.S.A. 2C:39-4a, 2C:39-5c and 2C:58-3. Defendant entered a plea of not guilty by reason of insanity, N.J.S.A. 2C:4-1, which was rejected by the jury and she was found guilty as charged. The trial judge sentenced her on the murder to the custody of the Commissioner of the Department of Corrections for a term of 30 years with the requirement that she serve 15 years before becoming eligible for parole. Concurrent sentences were imposed on the remaining convictions. Defendant has appealed contending, among other things, that the prosecutor's reference to the jury about "defendant's failure to submit to sodium amytal" constitutes reversible error. We agree and reverse the conviction.
Defendant was indicted for the murder of Chester Davis, the father of defendant's son who was four years old at the time of the murder on June 6, 1981. Some events which preceded and followed the murder are pertinent. On May 21, 1981 defendant left her four year old son in the custody of the decedent for a visitation at Davis' home in Bridgeton. On June 1, 1981 defendant went to Davis' home to pick up her son and remained for the night. The next morning the child was taken to a Head Start School Program he attended and early in the day two of his teachers observed that he had been the victim of physical abuse. The Division of Youth and Family Services was notified and the child was admitted to Newcomb Hospital located in
Vineland. Upon examination, bruises were found throughout his body and a cut near the rectum or the anal opening was also found.
The Vineland Police Department was notified of the possible child abuse. Det. Cocchi responded to Newcomb Hospital on June 3, 1981 to investigate the possible child abuse case. It became apparent during the investigation that the child had been physically abused and sodomized. Defendant spoke to Det. Cocchi on June 3, 1981 and informed him that she believed the child's father had abused him and that she wanted to file a complaint to that effect. Det. Cocchi informed defendant that the case would be turned over to the State Police in Bridgeton where the child's father lived. Det. Mick of the State Police located in Bridgeton took over the investigation on June 4, 1981. He received conflicting stories from defendant and Davis. On June 5, 1981 defendant and her mother, Valerie Scavelli, spoke with Det. Mick and asked to sign a complaint against Davis. But this request was denied because Det. Mick had received conflicting stories from Davis and defendant. Defendant became extremely upset and stated that she thought Davis was going to get away with abusing her child.
During the evening of June 5, defendant appeared upset at a family barbecue at her mother's house. Scavelli described defendant as acting strangely weird, pacing, crying and smoking excessively. Defendant went to Davis' trailer home after the barbecue. Between 1:30 a.m. and 1:45 a.m. on June 6 Rick Krevson, a neighbor of Davis who lived two trailers away, heard a loud noise which sounded like a car backfiring. The jury was asked to infer that the loud noise came from a shotgun blast which killed Davis.
Between approximately 2:30 a.m. to 3:00 a.m. on June 6, 1981 defendant went to the home of George Robbins. Defendant asked if she could wash up, get a drink and call her mother. Defendant called her mother and made arrangements for her mother to pick her up at the Landis Tavern and Robbins agreed
to drive her there. In the car defendant told Robbins and another companion that she remembered coming through some woods and going across a school yard on her way to Robbins' house. She said that she did not know where her car was. Later she said that she thought she killed someone and when asked how, she replied that she thought she had given the person some pills but was not sure. They looked in vain for her car for 5 to 10 minutes before Robbins drove her to the Landis Tavern.
Scavelli testified that defendant called her at approximately 3:00 a.m. on June 6 and asked in a flat voice without emotion to be picked up at the Landis Tavern. She picked up defendant but defendant did not respond to any questions. She took defendant to the parking lot of the Presidential Diner in Vineland to look at her. Defendant did not know where her car and pocketbook were. After trying for an hour to get defendant to respond, Scavelli took her inside the diner. Defendant had no strength and appeared as if in a trance or drugged. Her eyes were fixed. A man whom she knew greeted her but she did not respond. They stayed for half an hour. Before leaving, Scavelli attempted to reach Det. Mick because previously he had offered assistance. She talked to a policeman at the station and told him she would bring defendant there. She drove to the Vineland police station where she was instructed to take defendant to Newcomb Hospital.
Scavelli drove to Newcomb Hospital where defendant was seen in the emergency room. Robert Glenn Jones, a clinical psychologist on duty at the hospital, testified that he observed defendant and found her unresponsive and in a stupor. He recommended hospitalization at a psychiatric hospital upon finding evidence of mental illness. He testified that she was psychotic. Eventually defendant was admitted to Newcomb Hospital where she remained for 12 days for psychosis.
In the evening on June 6, Chester Davis' parents became concerned about him and contacted his landlord to gain access
to Davis' trailer. The landlord, Roger Clark, went with the Davises to their son's trailer. They were unable to unlock the door because a screwdriver had been jammed into the lock. They broke a window to gain entrance. From the window Clark saw Chester Davis lying in a pool of blood. Davis was apparently dead from gunshot wounds to the neck and chest. The police were contacted and State Trooper Perry Ashman arrived at approximately 9:45 p.m. He discovered the body on the floor, an AR-15 rifle laying across the arms of a lounge chair and the television playing. Further investigation disclosed that Davis had been shot through a window.
On June 7, Det. Ashman located defendant's car in a parking lot in Upper Deerfield Township. In the car, the detective could see 12 gauge Winchester shotgun shells on the floor of the front seat passenger side. In the trunk of the car, Det. Ashman discovered defendant's purse containing personal identification. On June 11, Det. Ashman obtained a search warrant to determine if the car was in operable condition. The vehicle was in good operating condition.
It was the theory of the prosecution that defendant, motivated by the belief that decedent had not only physically abused her child but had also subjected him to an act of sodomy, took the decedent's life with a shotgun on June 6, 1981. Although defendant did not testify, she asserted the defense of insanity. She maintained that the alleged disclosure of child abuse, sodomy and other events provided such severe stress factors to her already precarious emotional balance that they precipitated a psychotic episode which prevented her from knowing the nature and quality of her act and from being able to differentiate right from wrong. She also contended that she had amnesia between June 5, 1981 and about June 18, 1981, after which she was no longer in a stuporous condition.
In an attempt to establish the defense of insanity, defendant presented the testimony of Dr. Hareesh Phansalker, an internist, who testified he saw defendant on June 6 at 9:30 a.m. at
the hospital. Before examining defendant, he was told by Dr. Trias, the first physician who saw defendant at the hospital, that defendant probably had no memory, that she was suffering some kind of psychotic episode and that she probably needed admission into the hospital for observation. Dr. Phansalker's initial observations of defendant were described as follows:
Valerie was lying on her back and turning from side to side. She was gazing in space and she had kind of a sad expression. And apart from that, there was nothing spoken, or she wasn't responding to any questions or any stimuli given; and another thing was that her eyes were peculiarly glassy, as I recall, where they were lackluster type of eyes and she had no muscle tone and she was one minute on her left side, one minute on her back, but she appeared to look at you, but she was still looking through you, that kind ...