This matter comes before the court on a motion by defendant for an order precluding the State's psychiatric expert, during the course of the State's psychiatric examination of defendant, from "questioning the defendant whether he killed the decedent," as set forth in the indictment. Defendant further moves to have said examination witnessed by its own expert or to have it videotaped. The parties agreed to have the matter decided on the papers.
Defendant was indicted in 1971 for the murder of his three children, wife and mother in Westfield, New Jersey. He is awaiting trial before this court after waiving extradition from Virginia last year.
Both the State and the defense concur that this application is governed by the holdings in State v. Whitlow, 45 N.J. 3, 210 A.2d 763 (1965), and State v. Obstein, 52 N.J. 516, 247 A.2d 5 (1968), overruled on other grounds in State v. Engel, 99 N.J. 453, 473, 493 A.2d 1217 (1985), although the State questions the reason why the motion is being made at all. Of course, the State has no right to a psychiatric or psychological examination unless the defendant places his mental state in issue. Id., 52 N.J. at 531, 247 A.2d 5.
That appears to be the situation in this case, as defendant's attorney has supplied the State with the reports of one forensic
psychologist, Alan M. Goldstein, Ph.D., dated January 24, 1990, and one psychiatrist, Shelton I. Miller, M.D., dated October 25, 1989. Goldstein's report is fourteen pages long; Miller's is five. Neither report concludes that defendant is not criminally responsible for his conduct by virtue of legal insanity. Rather, both seem to be couched more in the vein of the "diminished capacity defense" codified by N.J.S.A. 2C:4-2, i.e., that "defendant did not have a state of mind which is an element of the offense" required for the crime of murder.
This case refers to events that allegedly occurred in November 1971. Thus, the applicable statutes are N.J.S.A. 2A:113-1 and -2. Therefore, there are several states of mind that are relevant. "Malice" is the state of mind that differentiates murder from manslaughter under Title 2A. State in Interest of S.H., 61 N.J. 108, 293 A.2d 181 (1972). Without a finding of malice a defendant could not be convicted of either first or second degree murder. If malice is found, the murder is presumed to be in the second degree, unless the State proves beyond a reasonable doubt that the killing was "willful, deliberate and premeditated." State v. Christener, 71 N.J. 55, 64, 362 A.2d 1153 (1976). These are the elements that distinguish first degree murder from second degree.
It is Goldstein's "forensic opinion" that "(w)hile (defendant) recognized the nature, quality and wrongfulness of his actions . . . such actions were not the result of malice." Thus, if he is believed, defendant could not be convicted of either first or second degree murder. While he does not expressly say so, one could also infer from Goldstein's report that defendant did not act willfully either but was driven by a host of family problems, perceptions and religious precepts to perform the acts in question.
In light of the potential of such positions, the State wishes to have its own expert examine defendant. The Supreme Court's opinion in State v. Whitlow, supra, 45 N.J. at 26, 210 A.2d 763 (emphasis added), sets forth parameters for such an examination:
"(2) The State has the right to a psychiatric examination; defense experts may be present;
(3) If its experts can form an adequate opinion of the defendant's sanity by observation and physical examination alone, ...