On appeal from the Superior Court, Law Division, Burlington County.
Deighan, R. S. Cohen and Brochin. The opinion of the court was delivered by R. S. Cohen, J.A.D.
[239 NJSuper Page 161] Defendant Margaret Ann Myers was first indicted for the murder of her husband James A. Myers (N.J.S.A. 2C:11-3), and possession of a shotgun with a purpose to use it unlawfully against the person of another (N.J.S.A. 2C:39-4a). The indictment
was dismissed on defendant's motion and with the State's consent as the result of an off-the-record conversation between the Grand Jury and an assistant prosecutor. Defendant was then re-indicted on the same charges of murder and possession of the shotgun for an unlawful purpose. In addition, the new indictment charged her with aggravated manslaughter (N.J.S.A. 2C:11-4a); reckless manslaughter (N.J.S.A. 2C:11-4b(1)), and passion/provocation manslaughter. N.J.S.A. 2C:11-4b(2). Defendant moved to dismiss the indictment for failure of a speedy trial. The Law Division granted the motion. The State appealed, and we reversed the dismissal of the indictment and remanded for trial (A-5898-85T5, decided February 27, 1987).
The matter was tried to a jury, which found defendant not guilty of murder, guilty of aggravated manslaughter, not guilty of reckless manslaughter and passion/provocation manslaughter, and guilty of possessing the shotgun for an unlawful purpose. Defendant was sentenced for aggravated manslaughter to 20 years' imprisonment with a seven and one-half year mandatory minimum term, and for the gun possession to a five-year suspended term. She appealed, and we now affirm, but we remand for resentencing.
Before us, defendant makes the following arguments:
A. Defendant was denied her right to a speedy trial.
1. The Superior Court, Law Division, correctly [sic] applied The four-pronged Barker v. Wingo test to the facts of this case.
2. Contrary to the Appellate Division's earlier holding, a careful consideration of the question of whether defendant's speedy trial rights were violated will necessarily include the time which elapsed before the dismissal of the first indictment and the return of the second indictment.
B. The state's failure to submit defense communications to grand jury foreperson necessitates reversal.
C. The court's failure to ask the questions submitted by defense counsel on voir dire constitutes an abuse of discretion.
1. The court's jury selection procedure constituted an abuse of discretion.
D. The court's order requiring that the defendant submit to a psychiatric examination violated the defendant's constitutional rights as the examination relates to a self defense claim and was not within Rule 3:12A.
E. The exclusion of counsel from the psychiatric examination violated the defendant's constitutional rights.
F. The violation of the court's order to sound record the psychological examination fatally tainted the psychiatric examination and its use at trial.
G. The court below erred in admitting the testimony of Dr. Blumberg and his charts in light of the time available to defense to prepare to meet the expert testimony.
H. The state's presentation of handwriting expert and prosecution argument relative to that testimony violated defendant's right to a fair trial and to the effective assistance of counsel.
I. Receipt of discovery just prior to and during trial violated defendant's right to fair and effective assistance of counsel. The trial court's refusal to exclude [sic] not provided in pre-trial discovery constitute an abuse of discretion and therefore reversible error.
J. The cumulative effect of state's discovery failures, together with its failure to comply with court's order requiring the state's expert examination recorded, mandates reversal.
K. The trial court's denial of the defendant's motion to dismiss count five at conclusion of state's case was error.
L. The prosecution's questions to Dr. Baldwin concerning her personal life and relationship with her husband warrant a mistrial or constitutes reversible error.
M. The state's comments regarding defendant constituted a comment on defendant's failure to testify.
N. The failure of the court below to make the change requested by the defense ...