State v. Farmer

• Decision Date: 21 November 1966
• Docket Number: No. A--1,A--1
• Citation: 224 A.2d 481,48 N.J. 145
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Charles FARMER, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 145

48 N.J. 145

224 A.2d 481

STATE of New Jersey, Plaintiff-Respondent, v. Charles FARMER, Defendant-Appellant.

No. A--1.

Supreme Court of New Jersey.

Argued Sept. 12, 1966.

Decided Nov. 21, 1966.

Raymond A. Brown, Jersey City, for appellant.

John P. Kozak, Asst. Prosecutor, for respondent (Edward J. Dolan, Middlesex County Prosecutor, attorney; John P. Kozak, Asst. Prosecutor, on the brief).

The opinion of the court was delivered by

FRANCIS, J.

The issue to be determined here is whether the defense of double jeopardy is available as a bar to the proposed retrial of the defendant for murder. A previous trial came to an early abortive end when the trial court declared a mistrial Sua sponte and over the objection of both State and defendant. Thereafter defendant's motion to dismiss the indictment on the ground that he could not be placed in jeopardy again was denied. We granted leave to appeal from the denial.

On November 15, 1963 the Grand Jury of Middlesex County indicted defendant Charles Farmer for first degree murder after he fatally shot his wife Barbara Farmer on September 18, 1963. There is no doubt Farmer killed the deceased, or that immediately thereafter and as part of the incident he shot himself. The principal defense to the indictment appears to be that he was insane at the time of the shooting.

After wounding himself Farmer was taken to St. Peter's General Hospital in New Brunswick, N.J. where he remained under treatment for some time. On February 3, 1964, following a hearing which began on January 22, 1964, the Superior Court, Law Division, found him mentally incompetent to stand trial, and committed him to the State hospital for the criminally insane. See, Farmer v. State, 42 N.J. 579, 202 A.2d 173 (1964). Subsequently, on May 25, 1965, again after a hearing, the Law Division declared him mentally fit for trial, and the State prepared to proceed.

On July 14, 1965, Farmer moved in the trial court for an order to permit pretrial discovery of the State's case. Specifically he asked leave '(a) To inspect, copy and photograph all statements, papers and confessions concerned with the within indictment. (b) To inspect and copy all those grand jury minutes concerned with the within indictment. (c) To inspect and copy all medical, psychiatric and neurological reports pertaining to the defendant. (d) To inspect and copy all ballistic reports and paraffin reports made in connection with any firearms allegedly used in connection with the death of Barbara Farmer. (e) To examine any and all firearms and instruments concerned with the within indictment. (f) To inspect, copy and photograph all photographs concerned with the within indictment. (g) To inspect and examine any clothing worn by Barbara Farmer or Charles Farmer on September 18, 1963.' Defendant's affidavit supporting the motion alleges that at least four psychiatrists have stated he was insane at the time of commission of the alleged crime. It then proceeds: 'For the above reasons, I respectfully represent to the Court that I have need to examine all Grand Jury testimony given before the Grand Jury of Middlesex County concerning my case in order that I may prepare for my trial along with my attorney, who represents me upon this motion for examining the Grand Jury testimony. * * *' The focus of the affidavit was on the grand jury minutes. It concluded as follows 'I have retained counsel who has vigorously investigated this case and the difficulty of acquiring facts at this posture convinces me that examination of all the Grand Jury testimony is essential to my defense.'

No specific reference was made to a need for examination of statements of witnesses obtained by the State, or a request for copies of any such statements.

At the argument of the motion defense counsel not only sought leave to examine the grand jury minutes; he pursued also permission 'to inspect, copy and photograph all statements * * *' as indicated in paragraph (a) of the notice described above. The argument of the parties although not included in the appendix has been examined by us. In substance defendant asserted by his attorney that he needed the State's statements of witnesses because he could not recall the circumstances of the shooting. ¹ See Farmer v. State, supra 42 N.J., at p. 582, 202 A.2d 173. Apparently because of the insanity defense and the allegation of lack of memory of the shooting, the trial court granted the motion and signed a discovery order in the precise language set forth above as paragraphs (a) through (g) of the notice. In doing so Judge Convery commented that the decision 'went further than any court has.' The ruling required a liberal view of Revised Criminal Practice rule R.R. 3:3--7, and relaxation of R.R. 3:5--11, infra.

The State sought leave to appeal from paragraphs (a) and (b) of the order which gave leave

'(a) To inspect, copy and photograph all statements, papers and confessions concerned with the within indictment;

(b) To inspect and copy all those grand jury minutes concerned with the within indictment.'

Because of the unusual nature of the case, we heard oral argument on the application. Thereafter and before our decision was announced, defendant filed an affidavit stating: 'I cannot to this day recall any of the events of September 18, 1963 which surround the alleged shooting at my home involving my wife and me.' Thereupon we affirmed the trial court's order. State v. Farmer, 45 N.J. 520, 213 A.2d 249 (1965).

When the trial judge observed that his decision went beyond the holding of any of our cases, he was correct. In recent years, however, discovery in criminal cases has been undergoing an evolutionary process, undoubtedly stimulated in large measure by the opinion of the United States Supreme Court in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957).

At the time of Jencks New Jersey had and still has two practice rules relating to the matters involved here. R.R. 3:3--7 provides:

'The requirements as to secrecy of proceedings of the grand jury shall remain as heretofore.'

This rule represented the traditional veil with which grand jury proceedings have been surrounded. But within the past few years we have lifted that veil on being satisfied under the circumstances of a particular case that the policy of secrecy should be subordinate to the search for the whole truth. See, for example, State v. Mucci, 25 N.J. 423, 136 A.2d 761 (1957); State v. Moffa, 36 N.J. 219, 176 A.2d 1 (1961); State v. Clement, 40 N.J. 139, 190 A.2d 867 (1963); State v. Farmer, supra.

Moreover, following Jencks, supra, the Court held in State v. Hunt, 25 N.J. 514, 138 A.2d 1 (1958), that when a witness for the State in a criminal proceeding testifies that prior to taking the witness stand he had refreshed his recollection from notes made earlier by him or some other person, defendant was entitled to have such notes produced for his examination and use on cross-examination, if desired. The opinion plainly indicated also that if the witness had made notes or a statement prior to trial covering the topics of his testimony, the notes or statement were likewise subject to defendant's demand, even though the witness had not used them to refresh his recollection before trial. See State v. Johnson, 28 N.J. 133, 143, 145 A.2d 313 (1958).

R.R. 3:5--11 says:

'Upon motion of a defendant made at any time after the filing of the indictment or accusation, the court shall order the prosecutor to permit the defendant to inspect and copy or photograph designated books, tangible objects, papers or documents other than written statements or confessions made by the defendant obtained from or belonging to the defendant and may, if the interests of justice so require, order the prosecutor to Permit the defendant to inspect and copy or photograph written statements of confessions made by the defendant and Designated books, tangible objects, papers or documents obtained from others except written statements or confessions.' (Emphasis added)

We interpreted this rule to require the State to permit a defendant to inspect and copy a confession allegedly made by him. It was said that such disclosure, although not required constitutionally, clearly promoted the quest for truth. State v. Johnson, 28 N.J. 133, 145 A.2d 313 (1958). Since that time it has become routine practice for county prosecutors to supply a defendant with a copy of his confession whenever such a request is made.

The defense motion in Johnson, however, had another aspect. It sought leave to inspect statements made by prospective witnesses for the prosecution. On its face such request was squarely within the express proscription of R.R. 3:5--11, supra. As noted above, we had already held in State v. Hunt, supra, that during the trial and when a witness is on the stand, the prosecution must yield to defendant's demand for production of any pertinent notes or statements made or used by the witness prior to the giving of his testimony. See also, State v. Reynolds, 41 N.J. 163, 182, 195 A.2d 449, 1 A.L.R.3d 1438 (1963). But although we were aware of the ongoing agitation for broader discovery in criminal cases, and the arguments for and against such discovery, we felt it unwise to abandon or revise our rule 'without fuller experience with the practical operation of Hunt and more information with respect to experience in other jurisdictions in which pretrial disclosure exceeds' what had been authorized in New Jersey. State v. Johnson, 28 N.J., at p. 143, 145 A.2d, at p. 319. It was pointed out further that Johnson had made no showing which would invite relaxation of R.R. 3:5--11 under the provisions of R.R. 1:27A. Finally the opinion suggested that the problem should be explored at a judicial conference at such appropriate time in the future when all considerations relevant to the just and proper administration of the criminal law could be presented.

Study of the...