On appeal from Superior Court, Law Division, Union County.
Antell, Dreier and Skillman. The opinion of the court was delivered by Antell, P.J.A.D.
Defendant was convicted by a jury of terroristic threats, N.J.S.A. 2C:12-3a and 3b, causing widespread risk of injury, N.J.S.A. 2C:17-2c, false public alarms, N.J.S.A. 2C:33-3a and 3b, and aggravated assault, N.J.S.A. 2C:12-1b(5). The trial court merged all of the convictions, except for aggravated assault, into the conviction for terroristic threats, N.J.S.A. 2C:12-3a, and sentenced defendant thereon to a custodial term of five years with a two and a half year period of parole ineligibility. On the conviction for aggravated assault, defendant was sentenced to a concurrent eighteen-month term. He was also ordered to pay a $60 fine to the Violent Crimes Compensation Board.
Against the advice of his attorney, defendant maintained at trial that he was coerced into committing the terroristic crimes by two men who threatened harm to his children if he did not comply with their wishes. On this appeal he contends that his defense at trial was the product of a hallucinatory or delusional psychotic episode and that the trial court erred in not conducting
a competency hearing sua sponte and in allowing him to forego the defense of insanity and diminished capacity.
On April 13, 1989, defendant arrived at the Union County Court House carrying a cane and a briefcase. The purpose of his visit was to attend a pretrial conference in connection with a criminal matter wherein he was a defendant. During his appearance before the court, he announced he was carrying in his briefcase a bomb which he had "just clicked on." Accompanying that announcement was a demand by defendant that President Bush be brought from Union High School, where he was speaking, to the Court House. Court officers surrounded defendant, wrestled his briefcase away, and took him into custody. During the struggle defendant swung his cane, striking one of the court officers. A bomb disposal unit responded to the scene, removed a device from defendant's briefcase and determined that it was not an explosive.
Defendant testified on his own behalf that earlier that morning two men with guns came to his home in Rahway. According to defendant, they placed what they said was a bomb in his briefcase and ordered defendant to take it to the Court House and instruct the Judge that President Bush was to be "'brought to the courtroom to deliver a message.'" He described the men, one of whom was named "Skull" and the other named "Indian," as being respectively six foot four and six foot five, and both dressed in military combat fatigues. They knew the whereabouts of his two daughters, who were living with their mother, and clearly implied that harm would come to them if defendant did not follow their instructions.
Defendant stated that when he arrived at the Court House, the two men followed him and walked through the metal detector while the officer on duty was questioning defendant about the contents of the briefcase.*fn1 Defendant said they were
dressed the same as before except for the fact that they were not wearing masks. He explained that he was "literally shaking inside" and the thought occurred to him that if he could get himself arrested he might be able to avoid having to go through with the plan. Therefore, he created a few disturbances in the building, but did not accomplish his purpose.
The officer on duty at the metal detector testified that no one wearing army fatigues passed by while she was talking to defendant. She was quite clear about this because she had been given specific orders to check for people entering the building dressed in army fatigues since someone wearing such garb had troubled the court house in the past.
Because of the obvious doubts concerning defendant's account of the events leading up to the crime, and defendant's history of bizarre behavior, defense counsel urged defendant to interpose a defense of insanity based upon what appeared to be a delusional or hallucinatory episode. This was categorically refused by defendant. During a pretrial hearing before Judge Wecker, the Judge questioned defendant as to why he had determined not to pursue the insanity defense, despite counsel's advice to the contrary. In reply, defendant firmly and categorically stated that he would "not pursue an insanity defense when I'm not insane." Just prior to trial, Judge Span also addressed defendant and advised him that although doctors had made a finding that he was competent to stand trial, there was a finding by at least one doctor that defendant was insane at the time of the criminal events. Defense counsel informed the court that defendant was aware of his right to assert that defense but that he chose to waive it. Defendant himself joined in the colloquy to state "that's exactly what I told Judge Wecker." Finally, the court also informed defendant of his
right to interpose the defense of diminished capacity. It was explained to him as follows:
In other words, each of these crimes of which you are charged requires a certain mental state, either purposeful behavior, knowing behavior or reckless behavior. And what diminished capacity can do is lead to a finding of not guilty by reason of mental diseases or defect that causes a person to be unstable at the time.
Defendant answered that he understood this, but did not wish to raise that defense either. He stated the following:
I've gone over this with my attorney several times. I know what happened that day and it's not true to use that type of defense. I chose to go through with the way it happened, not with something else. It's going to go through with the way it happened. The truth.
Defense counsel never raised the question of defendant's competence to stand trial. Indeed, he stated that defendant was "definitely" competent, and, although the trial Judge questioned defendant after reviewing three psychiatric reports, no formal competency hearing was held. Defendant now argues that there was a bona fide doubt as to his competence to stand trial because one psychiatrist found defendant incompetent, and because of defendant's behavior and mental history.
A defendant tried or convicted while incompetent to stand trial is deprived of his due process right to a fair trial. Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966). Consequently, a court must hold a competency hearing, even when not requested, where the evidence raises a bona fide doubt as to a defendant's competence. Id. at 385, 86 S. Ct. at 842, 15 L. Ed. 2d at 822; State v. Spivey, 65 N.J. 21, 37, 319 A.2d 461 (1974); State v. Pugh, 117 N.J. Super. 26, 31, 283 A.2d 537 (App.Div.1971), certif. denied, 60 N.J. 22, 285 A.2d 563 (1972).
Whether the evidence raises a bona fide doubt as to a defendant's competence is often a difficult question as there are "no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed." Drope v. Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 908, 43 L. Ed. 2d 103, 118 (1975). The Supreme Court, however, explained in Drope that:
The import of our decision in Pate v. Robinson is that evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances, be sufficient.
Ibid. A lawyer's representations concerning the competence of his client is also a factor to be considered, although the court need not accept that representation without question. Id. at 177, n. 13, 95 S. Ct. at 906, 43 L. Ed. 2d at 116.
1. Defendant's Prior Irrational Behavior
It appears that after defendant was arrested and was awaiting trial in jail, he allegedly set fire to his jail cell twice, which prompted a stay at the Trenton Forensic Psychiatric Hospital from May 14, 1989 to June 5, 1989. During his stay, defendant apparently refused to take his medication and became belligerent, hostile, disorganized and manic. In our view, although this event, which occurred well over a year before defendant's trial, may be evidence of ...