On appeal from Superior Court of New Jersey, Law Division, Mercer County.
J.h. Coleman, Muir, Jr. and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
Defendant was convicted by a jury of purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1) and N.J.S.A. 2C:11-3a(2), and possession of a weapon with the purpose to use it unlawfully against another, in violation of N.J.S.A. 2C:39-4d. The court merged defendant's conviction for possession of a weapon with the purpose to use it unlawfully with his conviction for murder and sentenced him to life imprisonment with a 50 year period of parole ineligibility.
Defendant met the victim's mother, Clova Corretjier, in 1975 and married her in 1979. Clova had two daughters at that time, the victim, Maria, and Savasti. The parties also had a son who was born in 1980. The relationship between defendant and Clova was stormy, involving constant arguments and several separations. In May 1983 the couple moved to Trenton and rented a house. However, Clova filed a domestic violence complaint against the defendant and obtained a restraining order on July 12, 1983, forbidding him from returning to the house or having any contact with her or the children. Over the next five months, the defendant often called Clova and asked her to take him back but she consistently refused. He became very upset when she did not visit him, having given her a car for that purpose. Thereafter, he threatened her, stating that he felt like going over to her residence and "blowing everybody's heads off, kill everybody."
On the day of the murder, December 2, 1983, Clova left for work at around 6:30 a.m. while her three children were still asleep. According to the State's evidence, provided partly through the testimony of Savasti, who was then seven, and partly through scientific analysis of the crime scene and autopsy of the victim's body, defendant came into the bedroom where his two stepchildren and son were sleeping, forced Maria, who was then thirteen, to leave the room with him, and then viciously assaulted her by hitting her over the head with a scale and stabbing her numerous times with a knife. The blows on
the head crushed her skull and one of the stab wounds penetrated at least four inches into her throat. After committing the crime, defendant returned to the bedroom and told Savasti that he would come back and kill her if she said anything about what had happened.
Defendant was apprehended by the F.B.I. in South Carolina four months after the murder, at which time he gave an inculpatory statement that is quoted extensively in section II of this opinion.
Defendant did not testify at trial. However, he presented expert testimony by a psychiatrist and a neurologist which is discussed extensively in section I of this opinion.
On appeal, defendant makes the following arguments:
I. THE TRIAL COURT'S CHARGE TO THE JURY REGARDING DIMINISHED CAPACITY IMPROPERLY SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT, CONSTITUTING REVERSIBLE ERROR. (Partially Raised Below).
II. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT THAT PORTION OF THE DEFENDANT'S STATEMENT TO THE POLICE EVIDENCING PRIOR CRIMINAL CONDUCT OVER A DECADE EARLIER.
III. THE TRIAL COURT ERRED PERMITTING INTO EVIDENCE THE DEFENDANT'S STATEMENT.
IV. THE SENTENCE IMPOSED, INVOLVING A LIFE IMPRISONMENT TERM WITH A 50 YEAR PAROLE DISQUALIFIER REGARDING THE MURDER CONVICTION, WAS ILLEGAL.
We reject defendant's first three arguments which relate to the conduct of the trial court and affirm the judgment of conviction. However, we agree with defendant that the parole ineligibility component of the sentence imposed upon him was illegal. Therefore, we modify the sentence to reduce the period of parole ineligibility from 50 to 30 years and, as thus modified, we affirm the judgment of conviction.
Defendant argues that the trial court imposed the burden of proof as to diminished capacity upon him and thereby violated
his due process right to have the State prove each and every element of the crime charged beyond a reasonable doubt.
The defense of diminished capacity is established by N.J.S.A. 2C:4-2, which provides:
Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense. Mental disease or defect is an affirmative defense which must be proved by a preponderance of the evidence. [Emphasis added].
In arguing that the burden of proof as to diminished capacity was improperly imposed upon him, defendant relies upon the Third Circuit Court of Appeals' decision in Humanik v. Beyer, 871 F.2d 432 (3rd Cir.1989), cert. den. U.S. , 110 S. Ct. 57, 107 L. Ed. 2d 25 (1989), which held that an instruction to the jury that a defendant has the burden of proving the existence of a mental disease or defect by a preponderance of the evidence denies him due process of law. In essence, the court in Humanik held that placing the burden on the defendant to prove a mental disease or defect by a "preponderance of the evidence" violates the Due Process Clause by acting as a "filter" which may bar the jury's consideration of that evidence when the time comes to decide whether the State has proved the requisite state of mind beyond a reasonable doubt.
The decision in Humanik was made binding upon this court by a memorandum from the Chief Justice, on behalf of the Supreme Court, dated December 8, 1989, which stated:
On October 27, 1989, on behalf of the Supreme Court, I advised you, for the reasons therein expressed, that New Jersey courts should no longer require criminal defendants who raise the defense of mental disease or defect under N.J.S.A. 2C:4-2 to prove the existence of the mental disease or defect by a preponderance of the evidence. Currently, N.J.S.A. 2C:4-2 provides that mental disease or defect is an affirmative defense that the defendant must prove by a preponderance of the evidence. State v. Breakiron, 108 N.J. 591 [532 A.2d 199] (1987). Placing this burden of proof on the defendant was held to be unconstitutional by the Third Circuit Court of Appeals in Humanik v. Beyer, 871 F.2d 432, cert. denied, 493 U.S. 812, 110 S. Ct. 57 [107 L. Ed. 2d 25] (1989).
The further question has arisen whether Humanik should be applied to pending appeals. The Court has concluded for the same reasons that it should. Of course, that fact does not require a reversal of every case presenting a diminished capacity issue. Other appellate principles may dictate a different result. [124 N.J.L.J. Index Page 1133 (1989)].
Therefore, the principles set forth in Humanik must be followed in deciding this appeal.
The trial court instructed the jury regarding the defense of diminished capacity as follows:
I have just instructed you on the elements the State must prove beyond a reasonable doubt for you to find the defendant guilty of murder. Specifically, the elements were purposely and/or knowingly. The defense claims through the testimony of its witnesses that the defendant did not act purposely and knowingly, but that he acted recklessly. The State contends through the testimony of its witnesses that the defendant did act purposely and/or knowingly.
The defense further contends that the inability of the defendant to act purposely and/or knowingly under the facts of this case were brought about by a mental disease or defect.
Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have the state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense.
It is the burden of the defendant to prove the existence of a mental disease or defect by a preponderance of the evidence. Any mental disease or defect must be relevant to the issue of whether the act or acts alleged to have been committed by the defendant were done by him either purposely or knowingly. And if a mental disease or defect is proved to exist by a preponderance of the evidence, that does not automatically mean that the defendant should be acquitted because many mentally disturbed persons are capable of acting purposely or knowingly.
Thus, the jury may find that a person suffering from a mental disease or defect either could act and did act purposely or knowingly or could find that such person could not act or did not act purposely or knowingly.
To resolve such an issue, you must consider all of the evidence, including the facts surrounding the alleged crimes themselves, the opinions of any experts regarding the existence and extent of any mental disease or defects, the foundations of those expert opinions and any other evidence that the jury may find relevant to the question of whether the defendant committed the acts purposely or knowingly.
The term preponderance of the evidence means the greater weight of the credible or believable evidence. It does not necessarily mean the evidence or testimony of the greater number of witnesses, but means that evidence which carries the greater convincing power in your minds. Keep in mind, however,
that although the burden rests upon the defendant to establish mental disease or defect by a preponderance of the credible evidence, the burden of proving the defendant guilty of the offense charged beyond a reasonable doubt is always ...