On appeal from the Superior Court of New Jersey, Law Division, Ocean County, 526-7- 86-I.
Before Judges King, Wecker and Fuentes.
The opinion of the court was delivered by: King, P.J.A.D
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This case involves defendant's claim for post-conviction relief. R. 3:22. He asserts that under the version of N.J.S.A. 2C:4-2, the "diminished capacity" defense, in force at the time of his trial in 1987, he was denied due process of law when convicted of knowing and purposeful murder, N.J.S.A. 2C:11-3, for a crime committed in 1985. At that time in 1987 N.J.S.A. 2C:4-2 stated:
2C:4-2 Evidence of mental disease or defect admissible when relevant to element of the offense.
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. N.J. Stat. Ann. § 2C:4-2 (emphasis supplied).
Defendant claims the right to a new trial on the murder charge because of this constitutional deprivation.
The State asserts that defendant is not entitled to relief because of the procedural bars of prior adjudication, R. 3:22-5, and the five-year time limit, R. 3:22-12. The State also claims that defendant, in these circumstances, is not entitled to any retroactive benefit of the Third Circuit's ruling in Humanik v. Beyer, 871 F.2d 432 (3d Cir.), cert. denied, 493 U.S. 812, 107 L.Ed.2d 25 (1989), holding the extant (1987) version of N.J.S.A. 2C:4-2 unconstitutional.
We conclude that defendant is entitled to a threshold evidentiary hearing per N.J.R.E. 104(a) on the issue of admissibility of his anticipated proffer of evidence on this point: is the evidence which defendant would present at a new trial sufficient for jury consideration on his criminal state of mind or is the evidence too weak and vague to create a jury issue on diminished capacity under controlling case law?
John M. Cannel, in his annotations to the Criminal Code, succinctly and precisely recites the history of the so-called Humanik dilemma and N.J.S.A. 2C:4-2. Because we cannot improve upon this analysis, we set it forth completely.
The history of this particular section is uniquely interesting. As originally proposed, it was intended only to make clear that certain evidence regarding mental disease or defect was relevant. Courts had been reluctant to admit such evidence when it was not part of an "insanity" defense. See e.g. discussion in State v. Molnar, 81 N.J. 475, 489-490 (1980). The commissioners wanted to make it clear, however, that whether or not the "insanity" defense was to be raised, the defendant's mental state would always be subject to scrutiny; this would be so because mens rea, as an element of nearly every offense, is a fact issue to be decided by the jury. See Commission Commentary 1, below. Consequently 2C:4-2, as proposed, was directed entirely to the admissibility of evidence relating to the impact of mental disease or defect on defendant's state of mind, whether or not that impact was such as to provide a 2C:4-1 defense.
As originally enacted, the section differed only slightly from that proposed. Following the Model Penal Code, it gave defendants a right to admit mental disease or defect evidence when relevant to any state of mind which is an element of this offense. By contrast, the commissioners had recommended only that defendants be given a right to admit such evidence insofar as it bore on that purpose which was an element of the offense, the admissibility of other state of mind evidence being left to the court's discretion. See Commission Commentary paragraph 2 below. The Code provision as enacted also differed from the commission's proposal in eliminating a paragraph which would have permitted the use of such evidence in mitigation of a death sentence. See Commission Commentary paragraph 3 below. It retained a paragraph permitting the prosecution to offer evidence in rebuttal. See Commission Commentary 4 below.
After enactment, the section was amended by L. 1979, c. 178, which added a sentence pointing out that in the absence of evidence of mental disease or defect, defendant would be presumed to have none. This made clear that unless such evidence was introduced by the defendant, the State never had to address the issue in its proof of mens rea. Simultaneously, the paragraph providing that the State could rebut was dropped as unnecessary, since there is no doubt of the State's right to offer rebuttal evidence. After the 1979 amendment, however, there was a perceived problem as to how much proof the defendant had to introduce in order to have the jury consider whether the defendant lacked the capacity to form the required mental state. Thereafter, the legislature, by L. 1981, c. 298, added a final sentence, placing the burden on the defendant to prove mental disease or defect by a preponderance of the evidence. The effect was to transform the section from one intended to deal solely with admissibility of evidence into what appeared to be a second mental impairment defense distinct from insanity. See State v. Breakiron, 210 N.J. Super. 442 (App. Div. 1986), rev'd on other grounds 108 N.J. 591 (1987); State v. Jasuilewicz, 205 N.J. Super. 558, 572, 574 (App. Div. 1985), certif. den. 103 N.J. 467 (1986), and compare State v. Humanik, 199 N.J. Super. 283, 291-295 (App. Div. 1985), certif. den. 101 N.J. 266 (1985), rev'd sub. nom. Humanik v. Beyer, 871 F.2d 432 (3d Cir.), cert. den. 110 S. Ct. 57 (1989).
Following Humanik v. Beyer, supra, which declared the section unconstitutional because of the implications of the last sentence, that sentence was deleted by L. 1990, c. 63, § 1. In reading the Commission Commentary it is necessary to keep in mind the changes made in the section since the commissioners wrote. Note that in deleting the last sentence of the 1981 version of the statute, which had placed on the defendant the burden of proving mental disease or defect by a preponderance of the evidence, the legislature returned to the original commission purpose for the section, authorizing introduction of certain relevant evidence. In the legislative note from the Criminal Justice Committee accompanying the 1990 deletion the section was characterized as one "with regard to the introduction of evidence." See also State v. Reyes, 140 N.J. 344, 354-365 (1995), for the Supreme Court's lengthy discussion of the development of the diminished-capacity defense. And see State v. L.C., 283 N.J. Super. 441 (App. Div. 1995), certif. den., 143 N.J. 325 (1996). [Cannel, Criminal Code Annotated, Comment N.J.S.A. 2C:4-2 at 219-220 (2002).]
This is the procedural background. On November 14, 1985 defendant, then age fifteen, was charged in a delinquency complaint with an offense which, had he been tried as an adult, would be murder under N.J.S.A. 2C:11-3a(1) and (2). The State moved on December 4, 1985 for waiver or referral of jurisdiction from the Family Part of Ocean County, Chancery Division to the Law Division of the Superior Court to try defendant as an adult. R. 5:22. The motion was denied. The State appealed this refusal to waive jurisdiction and we reversed. State in Interest of S.M., 211 N.J. Super. 675 (App. Div. 1986). Defendant filed a motion to re-open the juvenile waiver hearing and a motion for reconsideration to vacate the judgment. These motions were denied.
An Ocean County Grand Jury then charged defendant with committing these crimes against the victim: (1) purposely and knowingly causing the victim's death, N.J.S.A. 2C:11-3a(1)(2); (2) causing the death of the victim during the commission of a sexual assault, N.J.S.A. 2C:11-3a(3), and (3) using physical force or coercion upon the victim during ...