State of New Jersey v. June Gorthy

98 A.3d 607, 437 N.J. Super. 339

• Court: New Jersey Superior Court Appellate Division
• Decided: September 9, 2014
• Docket: A-2678-09
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2678-09T2

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, September 9, 2014 v. APPELLATE DIVISION JUNE GORTHY a/k/a JUNE GOVERNALE,

Defendant-Appellant.

Submitted December 5, 2011 – Decided October 9, 2012 Remanded by Supreme Court September 20, 2013 Submitted March 18, 2014 - Decided September 9, 2014

Before Judges Alvarez, Ostrer and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-11-2612.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele Adubato, Designated Counsel, on the briefs).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Special Deputy Attorney General/Acting Assistant Prosecutor, and Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs).

The opinion of the court was delivered by

ALVAREZ, J.A.D. A jury found defendant June Gorthy, also known as June

Governale, not guilty by reason of insanity, N.J.S.A. 2C:4-1, on

a charge of fourth-degree stalking, N.J.S.A. 2C:12-10(b).1

Before the trial commenced, the trial judge found her competent

to stand trial while unable to "voluntarily, intelligently, and

knowingly waive" the insanity defense as to the stalking count.

Defendant was sentenced to commitment in a mental health

facility for a term not to exceed eighteen months.

After defendant's trial, but prior to our decision on her

appeal, we decided State v. Handy, 421 N.J. Super. 559 (App.

Div. 2011). In Handy, we concluded that a defendant found

competent to stand trial, but not able to knowingly,

intelligently, and voluntarily waive the insanity defense to a

crime, should not be compelled to accept an acquittal by reason

of insanity unless his or her substantive defenses are addressed

first. See id. at 565. Only if the jury rejected a defendant's

substantive defenses would defendant then present the insanity

defense. Handy, supra, 421 N.J. Super. at 612-13. Consistent

1 The jury convicted defendant of fourth-degree possession of prohibited weapons or devices, hollow-point bullets, N.J.S.A. 2C:39-3(f)(1), and third-degree unlawful possession of a handgun, a .22 Ruger, N.J.S.A. 2C:39-5(b). The insanity defense was not raised as to those crimes. Defendant was sentenced to concurrent five years of probation on those offenses. Because of several related arrests, incarceration pending evaluations, and the trial itself, defendant accumulated 1215 days of jail credit by September 30, 2009, the sentence date.

2 A-2678-09T2 with our decision in Handy, we remanded to the trial court, to

afford defendant the opportunity for a new trial on the stalking

charge — if she were again found competent to stand trial and if

she opted to waive double jeopardy. That new trial would follow

the bifurcated order described in our decision in Handy — an

initial trial at which defendant would present substantive

defense theories, and if convicted, a second trial at which she

would present only the insanity defense.

When the State's appeal of our decision reached the Supreme

Court, Handy and its predecessor, State v. Khan, 175 N.J. Super.

72 (App. Div. 1980), were overruled in part, and the bifurcated

procedure was disapproved. State v. Handy, 215 N.J. 334 (2013).

Henceforth, "trials involving a substantive defense and the

insanity defense [would] be tried in a unitary proceeding." Id.

at 364.

The Court also supplied the analytical solution to the

quandary posed by a defendant found competent to stand trial,

who wishes to waive the insanity defense altogether when that

option appears unwise. As the Court said,

part of the legacy of the Khan decision has been confusion about whether one can be competent to stand trial but incompetent to waive the insanity defense . . . . Part of the confusion arises from the assumption that the question involves not so much the defendant's competence to waive the insanity

3 A-2678-09T2 defense but the wisdom of making that choice.

[Id. at 361.]

The Court went on to observe the decision can be made by

applying:

a procedure akin to that which we utilize in evaluating a competent defendant's effort to waive other significant rights. That is, a thorough and searching inquiry of an otherwise competent defendant concerning his or her understanding of the nature of the right being waived and the implications that flow from that choice . . . the trial court [must] determine whether the decision to waive the insanity defense, particularly in the context of a unified trial proceeding, is indeed knowing, voluntary and intelligent.

[Id. at 362 (citation omitted).]

After certification was granted on defendant's appeal, the

matter was summarily remanded for reconsideration in light of

the Handy decision.

Given the Court's instruction that the waiver of an

insanity defense by a competent defendant was to be scrutinized

on appellate review as would be any other waiver made by a

competent defendant, we now affirm. The Law Division judge's

decision that defendant lacked the capacity to make a knowing,

intelligent, and voluntary waiver was adequately supported by

the record and thus warrants affirmance.

4 A-2678-09T2 The stalking charge was the culmination of defendant's

relocation to New Jersey in 2002 from her home in Colorado,

during which she moved her personal belongings, including a

number of weapons, in a truck and horse trailer. Defendant came

to New Jersey with the hope of encountering a seminar presenter,

the victim of the stalking, whom she had met several years

earlier. Defendant was eventually charged with the offenses at

issue when she left a voicemail on the victim's phone despite a

no-contact order.

Defendant's pretrial competency hearings extended over

approximately a year. Multiple psychiatric and psychological

evaluations were completed, as well as a fitness to proceed

assessment under N.J.S.A. 2C:4-5 by the Department of Human

Services. On April 25, 2008, the trial judge determined that

defendant met the statutory test pursuant to N.J.S.A. 2C:4-4 and

N.J.S.A. 2C:4-6 for competence to stand trial.2

On September 18, 2008, a final hearing was conducted after

counsel provided the court with an evaluation by defendant's

expert, Dr. Kenneth J. Weiss. It was on that date that the

2 The trial judge summarized his conclusions thus: "[Defendant] comprehends that she is in a court of justice charged with a criminal offense, that there is a judge on the bench, that there is a prosecutor present who will try to convict her . . . . that she has a lawyer . . . . and [] she understands her right not to testify." Defendant does not appeal from the finding of competence to stand trial.

5 A-2678-09T2 judge determined that, while defendant was competent to stand

trial, she could not waive the insanity defense. The

determination relied heavily on Weiss's report.

On remand, defendant again contends that the trial judge

"should have accepted [defendant's] waiver of the insanity

defense and proceeded solely on the substantive defenses." The

argument is premised on the court's earlier finding that she was

competent to stand trial. Defendant argues from that finding

that she should therefore "also have been competent to waive the

insanity defense." But, a knowing, intelligent, and voluntary

waiver requires more than competence as defined by statute.

In the competency hearing, the trial judge heard testimony

and reviewed reports regarding defendant's extensive mental

health history and diagnoses. It became clear that defendant,

despite medication and treatment efforts, persisted in her

delusion that the victim wanted to continue a relationship with

her. In fact, when the judge addressed defendant directly, she

complained to the judge that her attorney was not representing

her in the fashion that she wished because counsel would not

present the defense that the victim had solicited contact.

Defendant also insisted that she and the victim had enjoyed a

relationship for years, the victim had asked her to relocate,

and that after she did so, on multiple occasions, the victim

6 A-2678-09T2 would attempt to see her in public, "at the post office, at the

store," and would jog and ride her bicycle past defendant's

house.

Along those lines, Weiss's report quoted defendant denying

that her relationship with the victim was a delusion, stating

that she was not actually insane during the times that she

contacted the victim and that "she did not want to raise issues

of her mental state at trial because the prosecutor is anti-

mental illness." Defendant, who was initially in the Pretrial

Intervention Program (PTI),3 said to Weiss that the PTI probation

officer had told her that the only way she would be granted the

opportunity to explain her relationship with the victim to a

judge would be to violate PTI, which she did, resulting in the

trial.

Defendant also believed that, unless the victim stopped

lying about her, she had to have a trial, as the victim was

"'trying to save herself.'" Defendant agreed with Weiss that

"she was mentally disturbed during the time in question[] but

rather than making that an issue at trial, she want[ed] 'the

truth' to come out." Defendant perceived the State to be

overreacting to the situation and believed the prosecutor wanted

"to do a great deal of harm to her."

3 N.J.S.A. 2C:43-12 to -22.

7 A-2678-09T2 In Weiss's opinion, defendant, despite being a person of

above-average intelligence, was completely unable to

realistically assess her situation vis-à-vis the victim. She

repeated to Weiss the statement that she had made to others —

that the victim loved her. That, Weiss said, was "most clearly

against all evidence and would have to be considered delusional.

Because of this, [defendant] does not see that what she did was

wrong. . . . [S]he would not have a rational understanding of

the basis for the charges."

Weiss opined that, on the stalking charge, defendant:

was psychotic and delusional during the dates in question, to the point that she was unable to observe the nature and quality of her conduct. . . . [S]he did not have the residual ability to know that she would be placing the victim in fear of bodily injury or to know that she was doing wrong.

As a result of mental disease, she had a "defect of reason such

that she did not know what she was doing was wrong[] . . .

consistent with the requirements of N.J.S.A. 2C:4-1."

Weiss further opined that, even if defendant was found to

be competent to stand trial:

she would be making the choice to forego an insanity defense knowingly, but neither intelligently nor voluntarily. She is aware of her rights and alternatives, but fails to comprehend the consequences of failing to assert the defense, which bears on the question of an intelligent refusal. Her delusional condition has narrowed her

8 A-2678-09T2 ability to form judgments about her case, and in that sense she is not acting of her own free will, which bears on the question of a voluntary refusal.

Ultimately, he concluded that defendant met "the test for

'insanity' with respect to the stalking charge" and "f[ell]

short of the requirements in Khan[4] for a refusal to utilize the

available insanity defense."

Substantially relying on Weiss's report, along with all the

other evidence, the judge found that, despite defendant's

superficially rational expressed rejection of the insanity

defense because of the potential for "hospital time" that she

considered the equivalent of incarceration, the real impetus

behind her waiver was her imagined relationship with the victim.

The judge was convinced by the State's proofs that no

relationship had ever existed with the victim. He therefore

decided, pursuant to Khan, to "assert the insanity defense" on

defendant's behalf as to the stalking charge because she could

not "voluntarily, intelligently and knowingly waive that

defense."

The Court in Handy reaffirmed the notion that a trial judge

could find a defendant competent to stand trial, while

simultaneously finding he or she cannot voluntarily, knowingly,

4 Weiss' report predated the decision in Handy.

9 A-2678-09T2 and intelligently waive the insanity defense. Handy, supra, 215

N.J. at 361-62. In that scenario, the trial judge must, after a

"searching inquiry," determine whether a defendant truly

understands that which he or she is waiving and the potential

consequences of the choice. Handy, supra, 215 N.J. at 362. In

other words, whether the waiver is indeed knowing, voluntary,

and intelligent. Ibid.

When considering whether a criminal defendant's waiver is

sustainable, trial courts must "apply a procedure akin to that

which we utilize in evaluating a competent defendant's effort to

waive other significant rights." See Handy, supra, 215 N.J. at

362.

For instance, in State v. DuBois, 189 N.J. 454, 464-66

(2007), the Court entrusted the issue of a defendant's waiver of

the right to counsel to the "sound discretion" of our trial

judges, explaining that they are "in the best position to

evaluate [a] defendant's understanding of what it mean[s] to

[self-]represent [] and whether [a] defendant's decision to

proceed pro se [i]s knowing and intelligent." See id. at 475.

Examining the record, as mandated by Handy, created by the

judge's "thorough and searching inquiry," it is clear that the

trial judge, over the multiple days of pretrial testimony

regarding defendant's competence to stand trial, delved

10 A-2678-09T2 thoroughly into defendant's psychiatric history, diagnosis, and

treatment. When addressing her attempted waiver of the insanity

defense, he engaged in a colloquy with her about her reasons.

Defendant's responses were not related to any legal issue or

consequence. The responses related on the whole to her false

beliefs about the victim and her desire to affirm her imagined

relationship in court. She also claimed that she could not

raise the insanity defense because the prosecutor was "anti-

mental illness," a statement irrelevant to the question posed.

Clearly, defendant lacked the ability to make a rational

choice on the question of defenses to the stalking count. She

wanted validation of the "truth" of her imagined relationship

with the victim, a motive irrelevant to the legal decision of

waiver, unrelated to trial strategy, or even to any legal

question. On the subject of the stalking charge, defendant's

reasons for waiving the insanity defense were neither

intelligent, nor voluntary, arising as they did from a

compulsion.

Accordingly, we find that the trial judge did not err. His

conclusion was, indeed, based on "sufficient supporting

evidence." See State v. Purnell, 394 N.J. Super. 28, 50 (App.

Div. 2007). Defendant's decision to waive the insanity defense

was not knowing, voluntary, and intelligent. See Handy, supra,

11 A-2678-09T2 215 N.J. at 362. The judge's decision to interpose the defense

over defendant's objection was correct.

Affirmed.

12 A-2678-09T2