On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
O'Brien, Havey and Stern. The opinion of the court was delivered by Stern, J.A.D.
Defendant was indicted for the purposeful or knowing murder of Lisa Zehring, in violation of N.J.S.A. 2C:11-3. Tried by jury, defendant was found not guilty of murder, but guilty of aggravated manslaughter, N.J.S.A. 2C:11-4a. He was sentenced to a term of 20 years, with ten years to be served before parole eligibility. On this appeal, defendant argues:
Point One: THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY CONCERNING THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT (Not Raised Below)
Point Two: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO INSTRUCT THE JURY CONCERNING THE LESSER INCLUDED OFFENSE OF RECKLESS MANSLAUGHTER (Not Raised Below)
Point Three: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, DISPARATE AND BOTH LEGALLY AND MORALLY INAPPROPRIATE. FURTHERMORE, THE COURT BELOW IMPROPERLY
CONSIDERED SENTENCING FACTORS IN VIOLATION OF THE SENTENCING PRINCIPLES OF THE CRIMINAL CODE AND THE PROCEDURAL PROTECTIONS OF NEW JERSEY COURT RULES
We reverse and remand for a new trial.
A brief recitation of the facts is required to understand the contentions. Defendant suffered from learning and neurological difficulties and had a long history of violent behavior. He assaulted his mother and others, and was institutionalized for evaluation and treatment at various times throughout his life. Defendant was 23 years old at the time of trial, which occurred approximately seven months after Ms. Zehring's death.
Defendant's mother testified that defendant was unable to speak in a manner that was intelligible to strangers until after his fourth birthday. Defendant's kindergarten teacher felt that he had some sort of disability, and he was evaluated by the school district's "study team." The study team concluded that defendant had some type of neurological impairment, and because of this, he was placed in a "neurological impaired school."
When defendant was eight years old, he was diagnosed at the Morristown Hospital Evaluation Center as "functioning at a level of borderline retardation with neurological impairment." His mother was told that defendant "had auditory conceptual problems and he was borderline retarded."
For three years defendant attended the Harbor School in Red Bank, a school for neurologically impaired children. He subsequently returned to the classes for the neurologically impaired in the public school system until approximately February 1979, when he was roughly 16 years old. During the time defendant was attending these classes, he had several episodes in which he violently assaulted family members and peers. He also suffered a psycho motor seizure, was classified as retarded and had an IQ in the range of 61-73.
In January 1979, defendant was referred by his school to the Jersey Shore Medical Center for a diagnostic work-up. Dr. Wilson at the Medical Center concluded that defendant had
"incipient childhood schizophrenia." From February 9 to February 26, 1979, defendant was a patient at Payne-Whitney Psychiatric Clinic in New York City for diagnostic purposes. At Payne-Whitney, a diagnosis was made of "childhood schizophrenia and borderline mental retardation," including "[m]ultiple handicapped, mental brain dysfunction."
From April 1980 until August 1982, defendant attended the Devereaux School, a residential school in Pennsylvania. The doctors at Payne-Whitney specifically recommended placement in a residential school setting with a structured environment.
Shortly after defendant left the Devereaux School, he was enrolled in a vocational rehabilitation center in Tinton Falls. At the center, he received job training and also performed some work for which he was paid. Defendant remained at the vocational center for a year and a half, until July 1984, when he left to take a stockroom job in Holmdel. After working for approximately two weeks in the stockroom, he quit that job. Because defendant left his job, and at the suggestion of the professionals at the vocational center, his parents directed defendant to leave their house, where he had been living, on August 6, 1984. He had lived with his parents from the time he left the Devereaux School in August 1982, until August 1984, except for a period between April 1983 and September 1983 when he lived in a boarding house in Red Bank.
From August 6 until August 10, 1984, defendant lived with friends. On the evening of August 10 or the early morning of August 11, 1984, he was at a party with his "girlfriend." At that time, defendant got into a "fight with his girlfriend and bent her finger back and somebody called the police." Defendant apparently threatened to commit suicide, so the police took him to Riverview Hospital. From there he was transferred to Marlboro Psychiatric Hospital. He remained at Marlboro Psychiatric from August 11, 1984 to January 22, 1985.
For three months before leaving Marlboro, defendant lived in one of the cottages on the Marlboro Hospital grounds within
the psycho-socio rehabilitation center operated by Pathways, Inc. Defendant attended vocational training classes and other sessions and activities sponsored by Pathways. When he left Marlboro on January 22, 1985, defendant was placed by Pathways into a semi-independent apartment with another Pathways' patient. He remained under the supervision of his case manager. Other patients of Pathways were located in the same complex. Defendant, in fact, used the Pathways' "hotline" number on the evening before the killing and appeared disturbed by overhearing a conversation relating to the suicide of his friend's girlfriend. However, the placement in the apartment complex was not the type of structured or supervised environment which had been recommended at the time he left Devereaux.
In the early morning of February 3, 1985, defendant caused the death of Ms. Zehring. He did not dispute that fact at trial. He had met Ms. Zehring at Pathways.
Later in the day on February 3, 1985, defendant gave a statement to the police in which he confessed to killing Ms. Zehring. The statement, which was admitted into evidence at trial, describes the ...