State v. Myers

• Decision Date: 28 February 1990
• Citation: 570 A.2d 1260,239 N.J.Super. 158
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Margaret Ann MYERS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 158

239 N.J.Super. 158

570 A.2d 1260

STATE of New Jersey, Plaintiff-Respondent, v. Margaret Ann MYERS, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Dec. 12, 1989.

Decided Feb. 28, 1990.

E. John Wherry, Jr., for defendant-appellant (Voorhees, Bennett & Wherry, Pennington, attorneys, Natalia Rusak, on the brief).

Marijean Raffetto Stevens, Deputy Atty. Gen., for plaintiff-respondent (Peter N. Perretti, Jr., Atty. Gen., attorney, James E. Jones, Jr., Deputy Atty. Gen., of counsel and on the brief).

Before Judges DEIGHAN, R.S. COHEN and BROCHIN.

The opinion of the court was delivered by

R.S. COHEN, J.A.D.

Defendant Margaret Ann Myers was first indicted for the murder of her husband James A. Myers ( N.J.S.A. 2C:11-3), and possession of a shotgun with a purpose to use it unlawfully against the person of another ( N.J.S.A. 2C:39-4a). The indictment was dismissed on defendant's motion and with the State's consent as the result of an off-the-record conversation between the Grand Jury and an assistant prosecutor. Defendant was then re-indicted on the same charges of murder and possession of the shotgun for an unlawful purpose. In addition, the new indictment charged her with aggravated manslaughter ( N.J.S.A. 2C:11-4a); reckless manslaughter ( N.J.S.A. 2C:11-4b(1)), and passion/provocation manslaughter. N.J.S.A. 2C:11-4b(2). Defendant moved to dismiss the indictment for failure of a speedy trial. The Law Division granted the motion. The State appealed, and we reversed the dismissal of the indictment and remanded for trial (A-5898-85T5, decided February 27, 1987).

The matter was tried to a jury, which found defendant not guilty of murder, guilty of aggravated manslaughter, not guilty of reckless manslaughter and passion/provocation manslaughter, and guilty of possessing the shotgun for an unlawful purpose. Defendant was sentenced for aggravated manslaughter to 20 years' imprisonment with a seven and one-half year mandatory minimum term, and for the gun possession to a five-year suspended term. She appealed, and we now affirm, but we remand for resentencing.

Before us, defendant makes the following arguments:

A. DEFENDANT WAS DENIED HER RIGHT TO A SPEEDY TRIAL.

1. THE SUPERIOR COURT, LAW DIVISION, CORRECTLY [sic] APPLIED THE FOUR-PRONGED BARKER V. WINGO TEST TO THE FACTS OF THIS CASE.

2. CONTRARY TO THE APPELLATE DIVISION'S EARLIER HOLDING, A CAREFUL CONSIDERATION OF THE QUESTION OF WHETHER DEFENDANT'S SPEEDY TRIAL RIGHTS WERE VIOLATED WILL NECESSARILY INCLUDE THE TIME WHICH ELAPSED BEFORE THE DISMISSAL OF THE FIRST INDICTMENT AND THE RETURN OF THE SECOND INDICTMENT.

B. THE STATE'S FAILURE TO SUBMIT DEFENSE COMMUNICATIONS TO GRAND JURY FOREPERSON NECESSITATES REVERSAL.

C. THE COURT'S FAILURE TO ASK THE QUESTIONS SUBMITTED BY DEFENSE COUNSEL ON VOIR DIRE CONSTITUTES AN ABUSE OF DISCRETION.

1. THE COURT'S JURY SELECTION PROCEDURE CONSTITUTED AN ABUSE OF DISCRETION.

D. THE COURT'S ORDER REQUIRING THAT THE DEFENDANT SUBMIT TO A PSYCHIATRIC EXAMINATION VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS AS THE EXAMINATION RELATED TO A SELF DEFENSE CLAIM AND WAS NOT WITHIN RULE 3:12A.

E. THE EXCLUSION OF COUNSEL FROM THE PSYCHIATRIC EXAMINATION VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS.

F. THE VIOLATION OF THE COURT'S ORDER TO SOUND RECORD THE PSYCHOLOGICAL EXAMINATION FATALLY TAINTED THE PSYCHIATRIC EXAMINATION AND ITS USE AT TRIAL.

G. THE COURT BELOW ERRED IN ADMITTING THE TESTIMONY OF DR. BLUMBERG AND HIS CHARTS IN LIGHT OF THE TIME AVAILABLE TO DEFENSE TO PREPARE TO MEET THE EXPERT TESTIMONY.

H. THE STATE'S PRESENTATION OF HANDWRITING EXPERT AND PROSECUTION ARGUMENT RELATIVE TO THAT TESTIMONY VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL AND TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

I. RECEIPT OF DISCOVERY JUST PRIOR TO AND DURING TRIAL VIOLATED DEFENDANT'S RIGHT TO FAIR AND EFFECTIVE ASSISTANCE OF COUNSEL. THE TRIAL COURT'S REFUSAL TO EXCLUDE [sic] NOT PROVIDED IN PRE-TRIAL DISCOVERY CONSTITUTE AN ABUSE OF DISCRETION AND THEREFORE REVERSIBLE ERROR.

J. THE CUMULATIVE EFFECT OF STATE'S DISCOVERY FAILURES, TOGETHER WITH ITS FAILURE TO COMPLY WITH COURT'S ORDER REQUIRING THE STATE'S EXPERT EXAMINATION RECORDED, MANDATES REVERSAL.

K. THE TRIAL COURT'S DENIAL OF THE DEFENDANT'S MOTION TO DISMISS COUNT FIVE AT CONCLUSION OF STATE'S CASE WAS ERROR.

L. THE PROSECUTION'S QUESTIONS TO DR. BALDWIN CONCERNING HER PERSONAL LIFE AND RELATIONSHIP WITH HER HUSBAND WARRANT A MISTRIAL OR CONSTITUTES REVERSIBLE ERROR.

M. THE STATE'S COMMENTS REGARDING DEFENDANT CONSTITUTED A COMMENT ON DEFENDANT'S FAILURE TO TESTIFY.

N. THE FAILURE OF THE COURT BELOW TO MAKE THE CHANGE REQUESTED BY THE DEFENSE CONSTITUTED REVERSAL [sic] ERROR.

O. THE VERDICT OF THE JURY WAS SO INTERNALLY INCONSISTENT AS TO WARRANT REVERSAL.

P. THE SENTENCE IMPOSED BELOW WAS EXCESSIVE.

We have thoroughly considered all of the arguments made by defendant, in the light of the record of the proceedings in the Law Division, and we find them to be clearly without merit. R. 2:11-3(e)(2). We remand, however, for resentencing. We add the following comments on defendant's Points A, B, C-1, D, O and P.

I.

Defendant's first argument involves her motion for dismissal for lack of a speedy trial, a motion which the Law Division granted. We reversed the dismissal in 1987. Our decision disposed of this argument on its merits and is the law of the case. State v. Stewart, 196 N.J.Super. 138, 481 A.2d 838 (App.Div.1984). An appellate decision which is interlocutory in the sense that it does not terminate the case nevertheless finally decides the meritorious issue. That the decision was interlocutory does not mean that it was "tentative and subject to more leisurely review at a later date" Id., 196 N.J.Super. at 144, 481 A.2d 838.

II.

Defendant's Point B has the following factual background. Just after the first indictment was dismissed, defendant's attorney wrote to the Grand Jury asking it to consider defendant's position that she killed her husband in self-defense, and that she suffered from the Battered Woman's Syndrome. The letter was addressed:

Foreperson

Burlington County Grand Jury

c/o Grand Jury Clerk

Burlington County Prosecutor's Office

Copies went to the Prosecutor and the Assignment Judge.

The attorney stated in his letter that the Grand Jury would be considering evidence presented by the prosecutor in the case of Margaret Ann Myers, and that the Grand Jury had the right "to require any additional evidence that you deem appropriate." The attorney said that defendant killed her husband, but only in self-defense. He quoted from and supplied a copy of State v. Kelly, 97 N.J. 178, 478 A.2d 364 (1984), which discussed the Battered Woman Syndrome. He cited scientific literature on the subject, and attached copies of reports of examination by Dr. Robert Sadoff, a forensic psychiatrist, and Jean Metz of the Burlington County Battered Woman's Shelter. The attorney stated also that defendant had seen Dr. Nancy Baldwin who rendered an oral report consistent with those of Dr. Sadoff and Ms. Metz. Finally, the attorney enclosed the report of Dr. Lenore Walker whom he described as a renowned author and expert on battered women. He asked the foreperson to communicate with the other Grand Jurors to consider his letter and the documents attached in reaching a determination whether to indict defendant.

The response was from an assistant prosecutor. She stated that affirmative defenses are generally inappropriate for the Grand Jury to hear, but that she would, in her discretion, consider presenting this one if defendant would submit to an examination by an expert chosen by the State, and testify before the Grand Jury. The assistant prosecutor did not say she had discussed the matter with the Grand Jury, or that the letter had reached the foreperson. After some negotiation, the attorney declined the assistant prosecutor's offer. He never heard from the Grand Jury.

There the matter dropped. The case was presented and defendant was indicted. As far as we know, the Grand Jury never received the attorney's letter. We know it received no information or instructions on the Battered Woman's Syndrome. Defendant did not move for an order requiring the State or the Grand Jury to do anything about the matter before or after indictment. She did not move to dismiss the indictment. Cf. State v. Del Fino, 100 N.J. 154, 159-161, 495 A.2d 60 (1985).

The question defendant seeks us to answer is whether the State's apparent interception of her attorney's letter addressed to the Grand Jury foreperson for consideration by the Grand Jury invalidates her conviction. Our answer is that it does not. Ignoring all of the other problems in the matter, it is idle to speculate after conviction whether the Grand Jury would have decided to consider the material, or would have declined to indict as the result of considering a defense which the trial jury fully explored and found insufficient to raise a reasonable doubt of defendant's guilt. The conviction, in those circumstances, cures the alleged defect in the State's conduct relating to the Grand Jury. Furthermore, we do not consider the prosecutor's actions in this uncertain area as misconduct sufficient to justify dismissal of the indictment.

Because defendant never sought any relief in the Law Division we need not say whether any would have been granted. We point out, however, that the dual function of the Grand Jury is not only to determine if there is probable cause to believe a crime has been committed but also to protect citizens against unfounded criminal prosecutions. Branzburg v. Hayes, 408 U.S. 665, 686-687, 92 S.Ct. 2646, 2659-60, 33 L.Ed.2d 626 (1972). The Grand Jury protects the innocent against hasty, malicious and oppressive persecution. State v. Del Fino, 100 N.J. at 164, 495 A.2d 60.

Defendant argues that the Grand Jury's function cannot be fulfilled if prosecutors control what it may or...