On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Deighan, R. S. Cohen and Villanueva. The opinion of the court was delivered by Villanueva, J.s.c. (temporarily assigned).
The defendant, an inmate at Avenel, was indicted for attempted escape, possession of implements of escape and criminal restraint. At the end of the trial, the court granted the State's application to strike the defense of diminished capacity to the criminal restraint charge, but permitted the jury to consider the applicability of that defense with respect to the first two counts.
On appeal of his conviction on all three counts defendant argues that the court erred by (1) denying his motion to prohibit the State from revealing to the jury where defendant was incarcerated at the time of his purported suicide attempt, as well as his motion to prohibit the State from cross-examining anyone but defendant about defendant's prior convictions; (2) holding that evidence of defendant's prior convictions was admissible for impeachment purposes; (3) refusing to ask the jury certain questions during voir dire concerning psychology, psychiatry and psychologically-related defenses; (4) failing to strike the testimony of a treatment center employee regarding the weapons defendant used in his purported suicide attempt; (5) admitting into evidence photographs of the interior of the treatment center, a photograph of a broom similar to the one defendant used to fashion his weapons, as well as a note used by defendant in his purported suicide attempt; (6) denying defendant's motion for a mistrial based on prosecutorial misconduct because the prosecutor asked the defendant's mental health expert if he was aware that the defense of diminished capacity was subject to being stricken; (7) instructing the jury that defendant had the burden of proving by a preponderance of the evidence that he suffered from a mental disease or defect, N.J.S.A. 2C:4-2, a statute that was held unconstitutional in Humanik v. Beyer, 871 F.2d 432 (3 Cir.1989), cert. den. 493 U.S. 812, 110 S. Ct. 57, 107 L. Ed. 2d 25 (1989); and (8) imposing a sentence that was excessive.
The primary issue is whether this court must follow the Humanik decision regarding the State's burden of proof of the defendant's mental disease or defect (N.J.S.A. 2C:4-2) in light of the Memorandum from Chief Justice Robert N. Wilentz stating that said decision should be applied to pending appeals. We hold that this court is bound to follow the law decided in Humanik. However, since the defendant did not offer any competent evidence that he had a mental disease or defect which would negate a state of mind (knowingly) that was an element of the offenses, the court's instruction relating thereto was harmless error.
On September 10, 1985, a Middlesex County Grand Jury returned an indictment charging defendant Thomas Murray with second degree attempted escape, in violation of N.J.S.A. 2C:29-5 and N.J.S.A. 2C:5-1 (count one); second degree possession of implements of escape, in violation of N.J.S.A. 2C:29-6 (count two); and criminal restraint of Corrections Officer Stephen Coraggio, in violation of N.J.S.A. 2C:13-2 (count three). Defendant entered a plea of not guilty to the indictment. After a four-day jury trial the defendant was found guilty on all counts.
At sentencing, after denying the State's motion for the imposition of an extended term, the judge sentenced the defendant to a ten-year term of imprisonment with a five-year period of parole ineligibility on count one, a consecutive seven-year term of imprisonment with a three-year period of parole ineligibility on count two, and a concurrent four-year term of imprisonment on count three. The sentence was imposed consecutive to the sentence defendant was then serving, and an aggregate $90 Violent Crimes Compensation Board penalty was imposed.
The defendant was sentenced to a term of imprisonment of 20 years with a period of 10 years parole ineligibility for burglary and aggravated sexual assault. He was committed in June
1984 to the Adult Diagnostic and Treatment Center (ADTC) at Avenel, an institution housing repetitive and compulsive sex offenders, where these offenses occurred.
At approximately 6:45 p.m. on May 2, 1985, Officer Stephen Coraggio was seated at his desk at ADTC when he was approached by inmate Nero, who told him that defendant wanted to see him in A Dorm.
Coraggio, who had talked to defendant on previous occasions and had experienced no problems with him, got up from his desk and walked through the gate into A Dorm. It was dark in the dormitory and a night light was on. Coraggio saw defendant standing in the dormitory when defendant demanded that the officer look down onto the bed. Officer Coraggio did so and saw some articles, but defendant then pushed him onto the bed. Defendant then pulled Coraggio up and, when Coraggio asked what was wrong, defendant said that someone in his family had been hurt and that he had to get out. Defendant, who appeared agitated, asked Coraggio if he was to be relieved by Officer Trainor or Officer Flaherty. Coraggio told defendant that he would have to call the control center of the institution for relief, but defendant knew that Coraggio was stalling for time and demanded that the officer lie on the floor so defendant could tie the officer's hands behind his back.
When Coraggio, who was five feet seven inches tall, refused this order, defendant, who was six feet four inches tall, wrenched him up by his left shoulder and moved a sharp pointed object from the officer's back to the right side of his neck. Defendant was in control and understood all the officer had said. Coraggio testified that defendant had two homemade knives which were called "shanks" or "shivs." They were made from supports from a broom handle. Defendant then told Coraggio to look at a piece of paper that he had, which Coraggio did. This note read:
You have exactly three minutes to comply with my demands or I will spill blood. I am neither afraid to kill or be killed. A) One armed escort in a lead car to get me to the hospital that I designate. B) The keys to this particular hostage's
car. C) Absolutely no police and no other escort vehicles. If any are encountered I will not be held responsible for the safety of the hostages. You will be informed by the escort car of our destination and our time of arrival. This is not an escape. I merely wish to see my dying cousin before she dies after which I will freely give up all control and hostages. I am not afraid to die. I do not value my life nor that of my hostages. I have set my demands. Now it is up to you to comply. If any attempts are made to use a sniper or any other means to deter me from what I feel I have to do I'd like to please see that I have fastened myself to the officer and that any sudden moves he'll be the first to go. I am serious so do not play any games with me. Don't force me to show just how serious.
Coraggio was able to glance only briefly at the note while defendant verbally demanded an armed escort out of the institution. Defendant became mad and said, "I have ten years to do, I don't care, I have to get out, I like you, Coraggio." Coraggio told defendant that they would walk out of the dormitory together, and the two men proceeded past the officers' area to the wing entrance, with defendant holding Coraggio in front of him with defendant's left arm around the officer's neck and his right arm holding the sharp object to the officer's back.
At the wing gate, Coraggio called out to Officers Trainor and Flaherty, but they did not realize what was happening. After an inmate walked by and went to the hospital area where Flaherty was stationed, Flaherty walked toward the gate. When he got close, Coraggio told Flaherty that he was in trouble and threw the keys that control the wing gate through an open part of the gate.
Once defendant saw the keys he let Coraggio go and went to the east tier of the prison. Flaherty opened the gate and came in. Coraggio then relocked the wing gate and went to the east tier to secure its gate to contain defendant there. Coraggio observed that defendant was behind the gate on the east tier with the receiver to a collect telephone in his hand.
At that point, Captain Michael Morris and other corrections officers arrived on the scene and were advised by Coraggio what had occurred. Coraggio was relieved from duty and sent to the prison hospital but he did not receive any treatment.
Later he went to Rahway Hospital complaining of a pain in his back. Morris tried to talk to defendant, who was still locked behind the east tier gate, to find out his problems. Morris noticed that defendant was angry and upset and that he possessed weapons, two sharpened pieces of metal made from pieces of brooms, attached to both his wrists with strings. Defendant said that he had been having problems getting his girlfriend to talk to him. After reviewing defendant's file and consulting with Dr. Samson, a staff psychologist, Morris decided to attempt to isolate defendant to prevent the taking of more hostages. As part of that plan, Morris told defendant that he could use a telephone in the hospital area to call his girlfriend. Defendant, with his homemade knives pointed at himself, cautiously walked to the hospital waiting area with Morris. Morris, who was in the room alone with defendant, unsuccessfully continued to try to get defendant to turn over his weapons. After Morris dialed the telephone and ordered the center keeper to put the call through, defendant agreed to trade one of the knives in order to make the call. Defendant then spoke briefly to a family member in an intelligent and calm manner.
After defendant spoke to the family member, he backed up against the wall in the room. Then Morris had defendant's girlfriend called and, despite her initial reluctance, he ultimately persuaded her to talk to defendant. During the brief conversation between defendant and his girlfriend it appeared to Morris that defendant was receiving the "final word." When the conversation was over, Morris asked defendant to give him the remaining weapon since everything was complete. Defendant then suddenly stabbed at his stomach two or three times, causing some superficial scratches.
After Morris subdued defendant with mace, corrections officers outside the room rushed in to restrain defendant. The second knife was seized from defendant, who was then searched for further weapons. Defendant gave the officers no further trouble, and was later calm and rational, even apologizing
to Coraggio before he was transferred to Trenton State Prison.
Defendant did not testify at the trial. Donald Martin, a friend of defendant and a fellow inmate at the ADTC, testified on his behalf that he spoke to defendant during the incident and believed defendant did not really want to escape but instead wanted to "end everything." Dr. Jack Baharlias, an expert in psychology, testified that defendant suffered from a mental disease or defect, a borderline personality disorder with antisocial features and an adjustment reaction with a depressed mood. Dr. Baharlias concluded that defendant was not purposely or knowingly trying to escape, instead defendant was intending to commit suicide by his actions, in that defendant hoped that corrections officers would kill him. Dr. Baharlias admitted that defendant had the capacity and ability to act knowingly but he believed the defendant was not acting purposely or knowingly to effect an escape.
In rebuttal, the State presented Dr. Irwin Perr, an expert in psychiatry, who testified that adjustment disorders and depression were very common among prisoners. Dr. Perr concluded that defendant suffered from no mental disease or defect that would interfere with his ability to act with purpose or knowledge.
At the conclusion of defendant's case, the court granted the State's motion to strike the defense of diminished capacity as to the count three of the indictment (criminal restraint). The court thereafter instructed the jury to consider defendant's diminished capacity defense only in evaluating defendant's culpability under counts one and two of the indictment. The jury returned a verdict of guilty on all counts.
Defendant contends that the trial court erroneously denied his motion to prevent witnesses from mentioning that he
was incarcerated at the Adult Diagnostic and Treatment Center (ADTC).
Defendant argues that the mere mention of the name " Adult Diagnostic and Treatment Center" somehow prejudiced him. The trial court denied his motion to prevent the State's witnesses from mentioning the name of the institution in which defendant was incarcerated concluding that it would be an unreasonable burden for the prosecution to try to show official detention in an attempted escape case without mentioning the name of the institution and the restrictions that this institution had imposed upon defendant.
Defendant argues that he was prejudiced because the jury knew he was incarcerated at the ADTC and thus knew he had committed sexual crimes. However, whatever prejudice this knowledge might entail did not substantially outweigh its probative value, which was to establish an essential element of N.J.S.A. 2C:29-5a.
Under Evid.R. 4, whether the probative value of evidence is substantially outweighed by potential prejudice is a decision left the trial judge. State v. Carter, 91 N.J. 86, 106, 449 A.2d 1280 (1982). "On appellate review, the decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest ...