On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 00-05-0500.
Before Judges Skillman, Cuff and Winkelstein.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant appeals, by leave of court, from an order which appointed Anne C. Singer, Esq."amicus counsel on behalf of defendant... for purposes of investigating and presenting any arguments... (1) relative to defendant's ability to make a knowing, intelligent, and voluntary waiver of the insanity defense, including his comprehension of the consequences of failing to assert the defense, and (2) in favor of defendant Marut pursuing an insanity defense" and directed defense counsel to assist amicus counsel in making arrangements to meet with defendant. We reverse because the court's direction to amicus counsel to assess the strength of other defenses available to defendant exceeds the scope of the inquiry required to determine competency to waive an insanity defense, an interview of defendant by amicus counsel could result in a violation of defendant's privilege against self incrimination, and such an interview of defendant also would intrude into the attorney-client relationship between defense counsel and defendant.
On May 12, 2000, a Mercer County grand jury returned an indictment charging defendant with murdering his mother. The grand jury also charged defendant with aggravated arson and hindering apprehension.
On the date of the alleged offenses, August 10, 1999, East Windsor police officers were dispatched to the home of defendant's mother, which was engulfed in flames. After the fire was extinguished, the mother's charred remains were found in the basement. The medical examiner concluded that she was killed by a"blunt force trauma to the head," which had occurred before the fire. The next day, the police located defendant sleeping in a dumpster and arrested him. A forensic analysis of the shirt and pants defendant was wearing showed the presence of the victim's DNA. After the police administered Miranda warnings, defendant invoked his right to remain silent. Defendant also has refused to discuss the crime with the defense and court-appointed psychiatrists.
A substantial period has elapsed since the indictment during which psychiatric evaluations of defendant have been conducted to determine his competency to stand trial and his mental state at the time of the crime.
On March 28, 2001, Dr. John J. Verdon, Jr., the psychiatrist retained by the defense, provided a report which concluded that defendant suffers from"schizophrenia paranoid type" and alcohol, cocaine and cannabis dependence. Verdon also concluded that defendant"was competent to either enter a plea or proceed to trial." Regarding defendant's state of mind at the time of his mother's alleged murder, Dr. Verdon said:
Because of his psychotic condition, still present on February 21, 2001, the defendant could not cooperate fully with this psychiatrist in this evaluation.
Therefore, I am not able to render a definitive opinion regarding his mental state at the time of this crime.
However, I have no doubt that Steven Marut was floridly psychotic when these events transpired.
Further, this psychiatrist is unable to assess the degree of disruption that this psychosis caused to the defendant's rational thought process. Marut's capacity for such rational thinking was impaired but the precise manner of that disorganization could not be determined without the defendant describing his thought patterns to me.
At the time of the crime, the defendant, Steven Marut, was suffering from the delusion that he had been assaulted sexually as a young child; that his mother possessed knowledge of same, and that she failed to do anything to right the wrong. Therefore, it is highly probable that at the time of these tragic events, Steven Marut knew the nature and quality of his actions but, because of a disordered mental state, did not know that what he was doing was wrong.
Verdon's report also indicated that defendant refused to take anti-psychotic medications.
On August 16, 2002, Dr. Verdon provided a supplemental report which reaffirmed his prior conclusions regarding defendant's mental state at the time of the alleged murder, and also stated:
[I]t is likely that the defendant was cocaine intoxicated at the time of these tragic events; but I do not have the defendant's confirmation of same since he refused to discuss these matters with me. Such cocaine intoxication would compound his florid Schizophrenic Psychosis, impairing further the defendant's capacity to know the wrongfulness of his action.
However, Verdon retracted his previous opinion regarding defendant's competency to stand trial:
[U]pon further reflection, it is my current opinion that for the defendant to persistently refuse to cooperate with the expert psychiatrist, retained by his attorney to assist in the crafting of his defense, indicates that Marut's Competence to Proceed is compromised.
At the time of my February 21, 2001 examination..., I clearly informed [defendant] that it was necessary for him to discuss these matters with me so that I could formulate an opinion regarding his culpability in these matters. Marut dismissed my entreaties, indicating that I had not established a therapeutic relationship with him; that there was no foundation for him to trust me in these personal matters. I advised your client that I was not his treating psychiatrist, that time did not permit me to conduct a series of sessions with him so that he could develop a trusting rapport with me.
You have advised me that Steven Marut still refuses to discuss these matters with this psychiatrist. Therefore, the defendant's inability to do so leaves me to conclude, with a reasonable degree of medical certainty, that Marut's Mental Competence to Proceed is significantly impaired.
The court-appointed psychiatrist, Dr. Charles F. Martinson, provided a report dated December 24, 2001, which concluded that defendant was competent to stand trial:
My efforts to conduct a complete mental status evaluation of [defendant] and to develop some impression as to his present competency were thwarted by the fact that his responses to my questions were defensive and guarded and that he refused outright to discuss a number of topics with me. For example, he refused to discuss the nature of the charges against him or the circumstances giving rise to those charges without presence of counsel and, while this was certainly reasonable from a legal perspective, it did deprive me of clinical information which might have assisted in my evaluation of [defendant]. He refused to discuss his current mental or emotional symptoms and refused to discuss any history of psychiatric treatment.....
Mr. Marut's presentation in the medical records which I had an opportunity to review at the Workhouse would suggest that Mr. Marut suffers from a psychotic disorder. In my view, he remains guarded and paranoid.... Although the question is a difficult one, given Mr. Marut's refusal to cooperate, I saw nothing in his paranoid preoccupation which would, in itself, interfere with his ability to work with counsel or render him incompetent to stand trial on the charges against him.
Dr. Martinson did not express any opinion regarding defendant's mental state at the time of the crime. Defense counsel filed a motion to determine whether defendant"may waive or pursue an insanity defense." At a hearing on the motion, defendant told the trial court that he did not want to pursue an insanity defense. When asked the reason for this decision, defendant said: "Because I'm not insane." Defendant also stated that he wanted a trial on the charges"[b]ecause I forsee myself a free man walking from this."
At the conclusion of this hearing, the trial court stated:
Clearly Mr. Marut appeared very lucid today and appeared to understand the information that was presented to him acknowledging he had heard it before and had discussed it with his attorneys. There are some responses, however, that suggest that a further evaluation of his mental ability to make this decision needs further development. Therefore, I'll reserve decision... whether or not Dr. Martinson should be asked for an opinion regarding the limited issue of Mr. Marut's ability under his current diagnosis to make a decision as significant as this despite Dr. Martinson's opinion in his December 2001 report, and we will also ask for more information regarding the... effects of the medication of Mr. Marut has been on since May of 2000.
At a status conference held on August 27, 2002, the court announced its tentative decision to appoint an amicus counsel to assist the court regarding defendant's capacity to waive an insanity defense:
The concern that I have regarding the competency of Mr. Marut to waive the insanity defense is that Dr. Martinson's opinion regarding that issue as well as Mr. Marut's competency to stand trial is limited to information that Mr. Marut was willing to share with him. His history of psychiatric treatment, and the facts and circumstances of the discovery regarding this case were among the issues that Mr. Marut refused to discuss with Dr. Martinson, therefore, this Court is not in the position to conclude, based upon those deficiencies, that Mr. Marut is capable of waiving the insanity defense.
Rather than... create a conflict between [defense counsel] and Mr. Marut on this issue, there obviously being a difference in opinion and the Court not being satisfied of the defendant's competency in reaching that opinion regarding whether or not it is in his best interest to waive the insanity defense or not, it is my intention to appoint an amicus defense counsel for a limited purpose, that would be to investigate these issues, specifically the evaluations done so far, the discovery in the State's file. It would also be within the authority of the amicus defense counsel to request that this Court order any supplementary evaluations of Mr. Marut, ...