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State v. Burris

March 20, 1997


On appeal from Superior Court of New Jersey, Law Division, Gloucester County.

Approved for Publication March 20, 1997.

Before Judges Shebell and Baime. The opinion of the court was delivered by Baime, J.A.D.

The opinion of the court was delivered by: Baime

The opinion of the court was delivered by


This case comes before us for the second time. Following a jury trial, defendant was convicted of murder (N.J.S.A. 2C:11-3a(1) and (2)) and was sentenced to thirty years without parole eligibility. She appealed, contending: (1) the prosecutor was improperly permitted to impeach her testimony by confronting her with her custodial statements made after invoking her Fifth Amendment right to counsel, (2) the trial court violated her privilege against self-incrimination by compelling her to testify or forfeit the right to present psychiatric testimony, and (3) evidence of her "bad character" was erroneously admitted. We reversed defendant's conviction in an unreported opinion, holding that the failure to honor her previously invoked right to an attorney barred the State from using her statement to impeach her credibility. The Supreme Court granted certification, reversed our judgment, and remanded the matter for consideration of defendant's remaining contentions. State v. Burris, 145 N.J. 509, 679 A.2d 121 (1996). We now hold that the trial court committed reversible error by conditioning defendant's right to present psychiatric evidence upon her taking the stand and testifying. In the unique circumstances of this case, the trial court's erroneous evidentiary decision compelled defendant to testify and violated her right to remain silent.


We need not recount the facts at length, because they are fully recited in the Supreme Court's opinion. Defendant broke into the home of her mother and shot and killed her. Defendant then took her mother's car and credit card and went on a shopping spree. Later that day, defendant paid for an evening at a hotel with her boyfriend. Several days after the killing, the police entered the home of the victim and found her prone body with a plastic bag over her head. Defendant was arrested shortly thereafter. In a brief period, defendant gave the police three wildly inconsistent statements, ranging from a complete denial of any knowledge of the circumstances surrounding her mother's death to a qualified admission that she was present when a companion fired the fatal shot.

The defense at trial was that of accident. Specifically, the defense attempted to show that defendant accidentally fired the gun while engaged in a heated argument with her mother. It is fair to suggest that, in the absence of defendant's testimony, the proofs supporting this theory were extremely weak, consisting mainly of scattered bits of evidence found at the scene of the homicide.

Perhaps the most difficult problem confronting the defense's theory of accident was how to explain the cool and calculated manner in which defendant stole her mother's car and used her credit card after the killing. From the very outset of the trial, the State contended that such conduct was inconsistent with the hypothesis of innocence. In order to rebut the State's contention, the defense retained two expert witnesses, Dr. Frank Dyer, a clinical psychologist, and Dr. Robert Latimer, a psychiatrist. Prior to trial, a hearing was conducted to determine the admissibility of their testimony. The gist of their testimony was that defendant suffered from histrionic personality disorder. The witnesses agreed that defendant's condition would have no impact upon her ability to form an intent to kill or upon her legal responsibility for her conduct. It would, however, explain her calm demeanor following the shooting. They explained defendant's post-shooting conduct in terms of "hypomanic flight," essentially a behavior defense mechanism that denies the reality of traumatic events. Although both experts engaged in clinical interviews with the defendant, their opinions were based primarily on test results and personality features. While Dr. Dyer and Dr. Latimer made reference to what was told to them by defendant, they were unanimous in their view that they did not rely upon the truthfulness of her statements in forming their diagnosis. Based upon this testimony, the trial court determined that both witnesses could testify respecting defendant's histrionic personality disorder and how this condition affected her behavior following the shooting.

The trial proceeded accordingly. After the State had rested and the defense had presented several witnesses, defense counsel represented that he was about to call Dr. Dyer and Dr. Latimer. The prosecutor interposed an objection on the ground that the proffered psychiatric evidence "had no relevance unless [defendant] testified." In the ensuing colloquy, the prosecutor argued that the defense experts' diagnosis of histrionic personality disorder would be admissible only to "corroborate" defendant's account of her post-shooting behavior were she to testify. Alternatively, the prosecutor contended that if the defense experts were permitted to testify, the trial court must instruct the jury that any statements made by the defendant in the course of their clinical interview could not be considered as substantive evidence, i.e., as proof of the truth of the contents of such declarations.

The trial court ruled that the defense experts' testimony would be permitted "only . . . after the defendant testified." Because the court's decision appeared to be inconsistent with the evidentiary determination made before trial, defense counsel inquired whether the Judge was "ruling that [the defense] could not call" the witnesses if defendant elected not to testify. The court responded in the affirmative. Although the trial court's reasoning is somewhat unclear, it is apparent that the Judge was concerned by the fact that the defense experts' reports contained references to statements made by defendant in the course of their clinical interviews and, in the absence of her testimony, the record contained no independent evidence supporting her version of the shooting and its aftermath. The trial court fortified its decision by refusing to allow Dr. Dyer and Dr. Latimer to testify before the defendant took the stand. The court noted that it would be difficult for the jury to comply with an instruction to disregard the defense experts' testimony in the event the defendant elected to remain silent.

Based upon the trial court's decision, defendant took the stand and testified that the shooting was accidental. Predictably, defendant was confronted with her prior inconsistent statements and with the largely uncontradicted evidence pertaining to her calm demeanor and callous use of her mother's car and credit card following the shooting. Consistent with the trial court's ruling, both Dr. Dyer and Dr. Latimer were permitted to testify and explain defendant's post-shooting conduct in the context of their diagnosis of histrionic personality disorder.

It is against this factual backdrop that we address defendant's claim that the trial court's evidentiary decision was erroneous and ...

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