State v. Pugh

• Decision Date: 29 October 1971
• Citation: 283 A.2d 537,117 N.J.Super. 26
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Eartha PUGH, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 26

117 N.J.Super. 26

283 A.2d 537

STATE of New Jersey, Plaintiff-Respondent, v. Eartha PUGH, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Oct. 20, 1971.

Decided Oct. 29, 1971.

Stanley C. Van Ness, Public Defender, attorney for appellant (Gerald T. Foley, Jr., Deputy Public Defender, of counsel and on the brief).

Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (David S. Baime, Asst. Prosecutor, of counsel).

Before Judges KILKENNY, LABRECQUE and LANE.

The opinion of the court was delivered by

LANE, J.A.D.

Defendant appeals from a judgment of conviction of murder of Leon Fort entered upon his plea of Non vult. On May 10, 1967 he was sentenced to the New Jersey State Prison for life. For sufficient reasons, on May 10, 1971 we granted leave to file a notice of appeal as within time.

The Public Defender argues on behalf of defendant that his sentence was manifestly excessive. In a Pro se brief defendant argues that he was deprived of due process because the trial court failed to hold a hearing to determine that he was competent to stand trial and failed to hold a hearing to determine that he was competent to enter a plea of Non vult. Defendant also argues that in fact he was not competent to stand trial because he had no memory of the events leading to and at the time of the killing. Additionally, he contends that the plea of Non vult was not voluntary.

In three separate indictments defendant was indicted for the murder of Leon Fort, the murder of Julius Ravin and an atrocious assault and battery upon George Ivory, all committed at or about the same time on November 12, 1965. The indictments were filed January 15, 1966. On January 31, 1966 defendant, represented by competent counsel, pleaded not guilty. The indictments were assigned for trial on May 16, 1966. On May 23, 1966 during the course of the trial the court declared a mistrial based upon reports from defendant's and the State's psychiatrists that he was suffering from chronic brain syndrome with psychotic reaction. He was transferred to the New Jersey State Hospital where he remained until discharged December 9, 1966.

The indictments were again set down for trial on April 3, 1967 before the same judge. Before the jury was selected defendant retracted the plea of not guilty and pleaded Non vult to the indictment charging the murder of Leon Fort. Subsequently, the other two indictments were dismissed. Criminal Procedure Form 13A had been completed by defendant. When the trial judge addressed defendant as to whether he was asking the court to accept the plea of Non vult and whether he understood what the court was saying to him, defendant replied, 'Not exactly good, sir.' The question was put to defendant in a simpler form. He said that he did understand it. When asked whether he understood that the effect of the plea of Non vult was the same as the effect of the plea of guilty, defendant replied, 'All I understand is what my lawyer told me.' When asked whether his plea was being voluntarily made, he said, 'Yes, just like what my lawyer tells me.' Later in the hearing the following occurred:

THE COURT: You are doing it only because you want to do it?

DEFENDANT PUGH: Only because what my lawyer told me.

THE COURT: You want to do it after consultation with your lawyer?

DEFENDANT PUGH: After I talked with my lawyer.

Defendant did say that he understood what he was doing after his lawyer had explained it to him.

At the sentencing his attorney advised the court that after defendant was released from the State Hospital, he was examined by the state psychiatrist and by a neurologist and a psychiatrist on his own behalf and judged to be competent to stand trial. When the court asked defendant whether he understood that the effect of the plea of Non vult was to admit the charge, the defendant did not know what 'admit' meant. He further said as to the incident, 'I don't know what happened.' Defendant said that he was doing 'what my lawyer said.'

Defendant's attorney advised the court that he had seen signed statements obtained by the State from persons who witnessed the event. Although the attorney represented to the court that he was unable to get any information about the incident from defendant because of his alleged lack of memory, the trial judge did not believe that there was in fact a lack of memory. He stated on the record that he thought defendant was 'trying to play fast and loose with me.'

The presentence report showed that defendant was 44 years old, married, with six children ranging in age from 8 through 20. The report contains a statement of defendant in which he outlined in detail the circumstances of the incident. The arrest record shows a number of minor violations plus a conviction in 1959 for the unlawful use of a dangerous weapon and a conviction in 1965 for assault and battery on a special police officer.

I

Defendant argues that the trial court's failure to hold a hearing on his competency to stand trial or enter a Non vult plea was a denial of due process.

A defendant cannot be put to trial if he has a condition of mental illness or retardation which prevents him from rationally comprehending his position and from consulting with counsel in the preparation of his defense. Pate v. Robinson, 383 U.S. 375, 377, 86 S.Ct. 836, 838, 15 L.Ed.2d 815, 817 (1966); Dusky v. United States, 362 U.S. 402 80 S.Ct. 788, 789, 4 L.Ed.2d 824, 825 (1960); State v. Caralluzzo, 49 N.J. 152, 153, 228 A.2d 693 (1967); State v. Lucas, 30 N.J. 37, 72, 152 A.2d 50 (1959). If the court either before or during the trial has facts brought to its attention which raise a bona fide doubt of the condition of defendant's mind affecting his ability to comprehend his position or to assist in his defense, the question should be settled before proceeding further. State v. Lucas, Supra, 30 N.J. at 73, 152 A.2d 50; State v. Auld, 2 N.J. 426, 435, 67 A.2d 175 (1949); State v. Peacock, 50 N.J.L. 34, 36, 11 A. 270 (Sup.Ct.1887), rev'd on other grounds 50 N.J.L. 653, 14 A. 893 (E. & A.1888). Before Pate v. Robinson, Supra, 383 U.S. 375, 86 S.Ct. 836, our Supreme Court had said that while a court had the power to order an inquiry into the defendant's mental qualifications to stand trial, failure to exercise the power will not be reviewed on appeal unless it clearly and convincingly appears that the defendant was incapable of standing trial. State v. Lucas, Supra, 30 N.J. at 73, 152 A.2d 50. It is now a constitutional mandate that a state court hold a hearing on a defendant's competency to stand trial where the evidence raises a bona fide doubt as to such competency. Pate v. Robinson, Supra,383 U.S. at 385, 86 S.Ct. 836.

The facts in this case do not indicate a bona fide doubt as to whether defendant had sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding. They do not indicate a bona fide doubt as to whether he had a rational as well as factual understanding of the proceedings against him.

At the entering of the plea of Non vult counsel for defendant stated to the court:

Your Honor, I have discussed with the defendant, explained to him, the prospects of pleading to one indictment, Indictment No. 818. I have explained to him the sentence possibilities and probabilities. I believe he understands them. He has filled out the Form 13--A. I have explained each question and answer to him and he has signed it.

Defendant is mildly retarded, with an I.Q. of 71. Apparently while in the military service he received a head injury. At the sentencing proceeding defendant told the court that he did not know what happended on the day of the killing because he had been hit in the head. When defendant entered his plea of Non vult, the court repeatedly asked defendant if he understood the charges against him and knew what he was doing. Defendant's response was that he understood what he was doing after his lawyer had explained the plea to him. At the sentencing the court again asked defendant if he understood the charges. The defendant at first responded that he did not know what happened at the time the crime occurred. He then was asked whether he knew a plea of Non vult had the effect of admitting the truth of the charges. His response was that his lawyer explained the plea to him and he understood it as his lawyer had explained it and he followed his lawyer's advice.

It is clear from the record that although defendant found it difficult to understand certain phraseology, he did understand when simpler words and sentence structure were used. There is nothing to indicate that defendant could not reasonably comprehend his position and consult with his lawyer.

Federal courts have held that a judicial determination of mental competency to stand trial is required when there has been an earlier judicial determination of incompetency and no subsequent judicial determination of competency. Kelley v. United States, 95 U.S.App.D.C. 267, 221 F.2d 822, 824 (1954); Gunther v. United States, 94 U.S.App.D.C. 243, 215 F.2d 493, 496 (1954); Contee v. United States, 94 U.S.App.D.C. 297, 215 F.2d 324, 328 (1954). Before the second trial, at defense counsel's request defendant was examined by a psychiatrist and a neurologist and judged to be competent to stand trial. In addition the staff of the State Hospital and the state psychiatrist found defendant competent to stand trial. Defense counsel had informed the court at the sentencing that a neurologist and a psychiatrist had found defendant competent to stand trial. In addition at the time of sentencing, the court said that it had had the benefit of defendant's presentence report. That report contained the opinion of the State's psychiatrist given after defendant had been released from the State Hospital and returned to the Essex County Jail finding defendant competent to stand trial.

We have carefully reviewed pertinent records of...