State v. Troy N. Tate (069314) , 216 N.J. 300 ( 2013 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Troy N. Tate (A-99-11) (069314)
Argued March 12, 2013 -- Decided November 12, 2013
RODRÍGUEZ, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
The issue in this appeal is whether a conviction for possession of a weapon for an unlawful purpose merges
with a conviction for aggravated manslaughter and, if merger is required, under what circumstances.
Defendant, Troy M. Tate, was convicted by a jury of the first-degree aggravated manslaughter of Sheri
Farren and related offenses. Defendant, Sheri Farren, Farren’s boyfriend Paul Freas, Frank Mulholland, and Kevin
Green were homeless acquaintances. Farren, Freas, and Mulholland would often drink and panhandle for money
together on the Atlantic City boardwalk. Mulholland testified that, on the night of March 24, 2007, he met Farren
and Freas on the boardwalk and they went to a small room under Boardwalk Hall, where they found Green asleep.
Mulholland had been drinking all day and, after arriving at the room, the group drank a substantial quantity of vodka
and beer. At some point that night, Mulholland and Green fell asleep and Freas left the room. Mulholland awoke
and saw defendant standing over Farren, yelling at her, and swinging a club-like object. Farren asked Mulholland to
find Freas. Mulholland recalled that Farren said something before he left to find Freas about some damaged playing
cards. Mulholland spent the rest of the night looking for Freas, and only learned of Farren’s death from a
subsequent conversation with a police officer.
Green testified that he awoke that evening and saw defendant swinging a caulking gun with two hands,
striking Farren on her back, legs, and head, and yelling at her about the torn playing card. After speaking with
Green and Mulholland, the police identified defendant as a suspect. When the police arrested and searched
defendant, they discovered a large deck of novelty playing cards that contained a torn ace of clubs. The weapon
used in the homicide was never recovered. The medical examiner testified that Farren died on the morning of
March 25, 2007, from “massive bleeding into the abdominal cavity due to blunt force injury” to her torso and
lacerations to the spleen.
Following a jury trial, defendant was convicted of first-degree aggravated manslaughter, second-degree
aggravated assault, third-degree aggravated assault, and third-degree possession of a weapon for an unlawful
purpose. The judge did not merge any of the convictions. Defendant appealed. The Appellate Division affirmed
the convictions but merged the convictions for second and third-degree aggravated assault into the first-degree
aggravated manslaughter conviction. However, the panel rejected defendant’s argument that the conviction for
possession of a weapon for an unlawful purpose should be merged with the aggravated manslaughter conviction.
Relying on State v. Bowens, 108 N.J. 622, 639 (1987), the panel explained that “each offense requires proof of a
fact not required by the other.”
The Supreme Court granted defendant’s petition for certification. 210 N.J. 119 (2012) .
HELD: A conviction for possession of a weapon for an unlawful purpose must merge with a conviction for
aggravated manslaughter when the evidence does not support the existence of another unlawful purpose for
possession of the weapon.
1. The doctrine of merger is based on the concept that “a defendant who has committed one offense ‘ “cannot be
punished as if for two.” ’ ” State v. Hill, 182 N.J. 532, 542 (2005) (quoting State v. Brown, 138 N.J. 481, 561
(1994)). N.J.S.A. 2C:1-8a sets forth the parameters for merging offenses. However, “ ‘[t]he standard for merger of
offenses set forth by N.J.S.A. 2C:1-8, providing that offenses are different when each requires proof of facts not
required to establish the other, has been characterized as “mechanical.” ’ ” Id. (quoting State v. Diaz, 144 N.J. 628
(1996)). In Diaz, this Court found that “[w]hen the only unlawful purpose in possessing the gun is to use it to
1
commit the substantive offense, merger is required.” 144 N.J. at 636. Thus, if a “jury is explicitly instructed that the
unlawful purpose was to use the gun against the victim of the substantive offense, unless that unlawful purpose
extended over a substantial period, merger is required notwithstanding that the evidence was sufficient to support a
separate unlawful purpose.” Id. at 641. Importantly, the Court explained that merger is not required when the
weapon possession is for a broader purpose. When a jury’s verdict is ambiguous as to whether defendant had a
broader purpose in possessing the firearm than committing the substantive offense, the Court adopted a four-prong
test to determine if merger is required. Id. at 639. To give proper guidance, a “jury instruction ‘must include an
identification of such unlawful purposes as may be suggested by the evidence.’ ” Id. at 640. In this case, because
“the only unlawful purpose submitted to the jury was possession of the gun to use it in the killing,” merger was
required. Id. at 642. (pp. 7-14)
2. The approach to determine merger of offenses used in Diaz is applicable here. The evidence tends to prove that
defendant possessed the weapon unlawfully only to commit the substantive offense. No broader unlawful purpose
was supported directly or circumstantially by the evidence. Both the possession of the weapon for an unlawful
purpose and the aggravated manslaughter resulted from a single course of conduct. Additionally, both charges
require proof of the same fact: that defendant beat Farren with the caulking gun. The cases not requiring merger
have had clear statutory differences illustrating legislative intent to fractionalize a course of conduct. The Court has
determined, however, that the better course is to follow Diaz in deciding this and future merger disputes. This case
contains no evidence to support a separate unlawful purpose, and, significantly, the jury was specifically instructed
that defendant’s unlawful purpose was “to assault Sheri Farren.” Thus, under the Diaz rationale, merger is required
because the evidence against defendant was that he possessed a weapon for the purpose of beating Farren with it –
the substantive offense. (pp. 14-18)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Law
Division for correction of the judgment of conviction to reflect that the conviction for possession of a weapon for an
unlawful purpose merges into the aggravated manslaughter conviction.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-99 September Term 2011
069314
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TROY N. TATE,
Defendant-Appellant.
Argued March 12, 2013 – Decided November 12, 2013
On certification to the Superior Court,
Appellate Division.
Rochelle M.A. Watson, Assistant Deputy
Public Defender, argued the cause for
appellant (Joseph E. Krakora, Public
Defender, attorney; Ms. Watson and William
P. Welaj, Designated Counsel, on the
briefs).
Courtney M. Cittadini, Assistant County
Prosecutor, argued the cause for respondent
(James P. McClain, Acting Atlantic County
Prosecutor, attorney).
JUDGE RODRÍGUEZ, temporarily assigned, delivered the
opinion of the court.
The doctrine of merger is based on the concept that “an
accused [who] committed only one offense . . . cannot be
punished as if for two.” State v. Davis, 68 N.J. 69, 77 (1975).
As such, “[m]erger implicates a defendant’s substantive
constitutional rights.” State v. Miller, 108 N.J. 112, 116
1
(1987); accord State v. Truglia, 97 N.J. 513, 522 (1984); Davis,
supra, 68 N.J. at 77. “Not only does merger have sentencing
ramifications, it also has a measurable impact on the criminal
stigma that attaches to a convicted defendant.” State v.
Rodriguez, 97 N.J. 263, 271 (1984).
In this appeal, considering the application of merger
principles, we hold, consistent with the approach utilized in
State v. Diaz, 144 N.J. 628 (1996), that a conviction for third-
degree possession of a weapon for an unlawful purpose must merge
with a conviction for first-degree aggravated manslaughter when
the evidence does not support the existence of another unlawful
purpose for possession of the weapon.
I.
Defendant, Troy N. Tate, was convicted by a jury of the
first-degree aggravated manslaughter of Sheri Farren and related
offenses. The evidence revealed that defendant, Farren,
Farren’s boyfriend Paul Freas, Frank Mulholland, and Kevin Green
were homeless acquaintances. Farren, Freas, and Mulholland
would often drink and panhandle for money together on the
Atlantic City boardwalk.
Mulholland testified that, on the night of March 24, 2007,
he met Farren and Freas on the boardwalk. They went to a small
room under Boardwalk Hall where they found Green asleep.
Mulholland had been drinking all day. After arriving at the
2
room, the group drank a substantial quantity of vodka and beer.
At some point that night, Mulholland and Green fell asleep and
Freas left the room.
Mulholland awoke and saw defendant standing over Farren,
yelling at her, and swinging a club-like object. Mulholland,
however, was not sure if defendant was hitting Farren, and asked
defendant what was going on. Defendant did not respond and left
the room. Mulholland asked Farren if she needed help. She
asked him to find Freas. Mulholland recalled that Farren said
something before he left to find Freas about some damaged
playing cards. Mulholland noted that defendant had shown him a
large novelty deck of playing cards a few days earlier.
Mulholland left the room and did not return. He spent the
rest of the night looking for Freas, and only learned of
Farren’s death from a subsequent conversation with a police
officer.
Green testified that he awoke that evening and saw
defendant swinging a caulking gun with two hands, striking
Farren on her back, legs, and head. Green heard defendant
yelling about a torn playing card. Green left the room to
purchase cigarettes. When he returned ten minutes later,
defendant was still striking Farren and yelling about the torn
playing card.
3
Defendant struck Farren approximately five more times. The
attack ended when Mulholland intervened. Farren declined
Green’s offer to call an ambulance. Green went back to sleep
and awoke around 8:00 a.m. He asked Farren if she was okay and
when Farren did not respond, Green left the room. He later
learned of Farren’s death from a police officer.
The medical examiner testified that Farren died on the
morning of March 25, 2007, from “massive bleeding into the
abdominal cavity due to blunt force injury” to her torso and
lacerations to the spleen. Additionally, Farren suffered
several injuries to her head and torso, which were consistent
with blunt force trauma.
The police arrived at the scene as a result of a call from
a circus worker and security guard, who discovered Farren’s
body. After speaking with Green and Mulholland, the police
identified defendant as a suspect. When the police arrested and
searched defendant, they discovered a large deck of novelty
playing cards that contained a torn ace of clubs. The weapon
used in the homicide was never recovered.
II.
Following a jury trial, defendant was convicted of first-
degree aggravated manslaughter, N.J.S.A. 2C:11-4a; second-degree
aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree
aggravated assault, N.J.S.A. 2C:12-1b(2); and third-degree
4
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4d. The judge did not merge any of the convictions and imposed
a sixty-year term, subject to a period of parole ineligibility
in accordance with the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2, on the aggravated manslaughter conviction; a
concurrent ten-year term, with a NERA ineligibility period, on
the second-degree aggravated assault conviction; a concurrent
five-year term on the third-degree aggravated assault
conviction; and a concurrent five-year term on the possession of
a weapon for an unlawful purpose conviction.
Defendant appealed. The Appellate Division affirmed the
convictions but merged the convictions for second and third-
degree aggravated assault into the first-degree aggravated
manslaughter conviction. Citing State v. Bowens, 108 N.J. 622,
638 (1987), the panel reasoned that, although the elements of
the offenses were technically different, the same evidence was
submitted to establish the assault and manslaughter charges.
However, the panel rejected defendant’s argument that the
conviction for possession of a weapon for an unlawful purpose
should be merged with the aggravated manslaughter conviction.
Again relying on Bowens, supra, 108 N.J. at 639, the panel
explained that “each offense requires proof of a fact not
required by the other.” We granted defendant’s petition for
5
certification limited to the issue of merger. State v. Tate,
210 N.J. 119 (2012).
III.
In this appeal, defendant contends, relying on Diaz, that
the possession of a weapon for an unlawful purpose conviction
should merge with the aggravated manslaughter conviction because
the State did not present a broader purpose for possessing the
weapon other than to commit the substantive offense of
aggravated manslaughter against Farren. Defendant emphasized
that the jury was specifically instructed that his unlawful
purpose was “to assault Sheri Farren.”
Defendant argues that the Appellate Division and the
State’s reliance on Bowens is misplaced because that case
utilized a rigid analysis that has been eschewed by the Court in
subsequent decisions -- namely, that merger is not required when
each offense “may be established by proof of a different fact
which the other does not require.” Bowens, supra, 108 N.J. at
639. Pursuant to the Bowens approach, defendant argues that
possession of a weapon for an unlawful purpose would never merge
with a substantive offense, regardless of the facts of each
case. Defendant argues that in Diaz, supra, 144 N.J. at 637-38,
the Court abandoned such rigid approach.
The State responds that, pursuant to the holding in Bowens,
the possession count should not merge because “the facts
6
necessary to establish aggravated manslaughter are different
from the facts required for possession of a weapon for an
unlawful purpose.” It explains that the two crimes are distinct
because they require discrete elements. Specifically, the State
argues that possession of a weapon for an unlawful purpose
requires purposeful or knowing conduct, a more culpable state of
mind than that needed to convict for aggravated manslaughter,
which only requires reckless conduct.
IV.
Generally, in determining whether to merge a defendant’s
convictions,
“[the Court] follow[s] a ‘flexible approach’
. . . that ‘requires us to focus on the
“elements of the crimes and the
Legislature's intent in creating them,” and
on “the specific facts of each case.”’ The
overall principle guiding merger analysis is
that a defendant who has committed one
offense ‘“cannot be punished as if for
two.”’ Convictions for lesser-included
offenses, offenses that are a necessary
component of the commission of another
offense, or offenses that merely offer an
alternative basis for punishing the same
criminal conduct will merge.”
[State v. Hill, 182 N.J. 532, 542 (2005)
(quoting State v. Brown, 138 N.J. 481, 561
(1994), overruled on other grounds by State
v. Cooper, 151 N.J. 326 (1997) (citations
omitted)).]
N.J.S.A. 2C:1-8a sets forth the parameters for merging
offenses. It provides:
7
a. Prosecution for multiple offenses;
limitation on convictions. When the same
conduct of a defendant may establish the
commission of more than one offense, the
defendant may be prosecuted for each such
offense. He may not, however, be convicted
of more than one offense if:
(1) One offense is included in the other, as
defined in subsection d. of this section;
. . . .
d. Conviction of included offense permitted.
A defendant may be convicted of an offense
included in an offense charged whether or
not the included offense is an indictable
offense. An offense is so included when:
(1) It is established by proof of the same
or less than all the facts required to
establish the commission of the offense
charged . . . .
[(emphasis added).]
However, “‘[t]he standard for merger of offenses set forth
by N.J.S.A. 2C:1-8, providing that offenses are different when
each requires proof of facts not required to establish the
other, has been characterized as “mechanical.”’” Hill, supra,
182 N.J. at 542 (quoting Diaz, supra, 144 N.J. at 637-38).
Consequently, the standard articulated in Davis, which preceded
the enactment of the New Jersey Criminal Code, is a “‘preferred
and more flexible standard.’” Ibid. (quoting Diaz, supra, 144
N.J. at 637). In Davis, supra, the Court noted that
[s]uch an approach would entail analysis of
the evidence in terms of, among other
things, the time and place of each purported
8
violation; whether the proof submitted as to
one count of the indictment would be a
necessary ingredient to a conviction under
another count; whether one act was an
integral part of a larger scheme or episode;
the intent of the accused; and the
consequences of the criminal standards
transgressed.
[68 N.J. at 81.]
In Diaz, supra, the Court addressed the issue of “whether a
conviction for possession of a firearm for an unlawful purpose
should merge with a conviction for passion/provocation
manslaughter when the trial court did not instruct the jury with
respect to an unlawful purpose that was broader than, and
separate from, using the firearm to commit the homicide.” 144
N.J. at 632. The charges arose out of an altercation that began
in a playground when the victim bumped the injured hand of the
defendant, Diaz. Id. at 632-33. Diaz left the playground and
returned less than a half hour later with two of his friends.
Id. at 633. Diaz was aware that one of his friends was carrying
a gun, and he approached the victim and threatened that he had a
gun. Ibid. The victim replied that he too was armed. Ibid.
Diaz and the victim began to fight, and the defendant’s friend
“fired one shot into the air.” Ibid. Just after that shot,
Diaz’s friend gave him the gun, and Diaz fatally shot the victim
five times. Ibid. Diaz fled, and the victim’s cousin gave
9
chase. Ibid. Turning towards the cousin, Diaz said, “[d]on’t
come near me, he made me do it,” and left. Ibid.
Diaz was convicted of second-degree passion/provocation
manslaughter and second-degree possession of a firearm for an
unlawful purpose and sentenced separately for each conviction.
Id. at 633-34. The Appellate Division reversed and ordered
merger. Id. at 634. On certification to this Court, the State
argued that the charges should not merge because Diaz
constructively possessed the gun when threatening the victim,
and Diaz also used the gun to shoot the victim and to threaten
the victim’s cousin. Id. at 634-35.
This Court noted that “[w]hen the only unlawful purpose in
possessing the gun is to use it to commit the substantive
offense, merger is required.” Id. at 636; see also State v.
Loftin, 287 N.J. Super. 76, 111-12 (App. Div.), certif. denied,
144 N.J. 175 (1996). Thus, if a “jury is explicitly instructed
that the unlawful purpose was to use the gun against the victim
of the substantive offense, unless that unlawful purpose
extended over a substantial period, merger is required
notwithstanding that the evidence was sufficient to support a
separate unlawful purpose.” Diaz, supra, 144 N.J. at 641
(citing State v. Williams, 213 N.J. Super. 30, 36 (App. Div.
1986), certif. denied, 107 N.J. 104 (1987)).
10
Importantly, the Court further explained that merger is not
required, however, when the weapon possession is for a broader
purpose. For example, using a gun to commit a substantive
offense, like robbery, and also using the gun “to frighten and
prevent eyewitnesses from informing the police” does not require
merger. Id. at 636-37.
Thus, the Diaz Court held that
when a trial court declines to use a
special verdict but there is sufficient
evidence before the jury to support a
finding of a broader purpose to use the
weapon unlawfully, and the trial court gives
a proper jury instruction that does not
include an instruction that the unlawful
purpose is the same as using the weapon to
commit the substantive offense, merger is
not required.
[Id. at 638-39 (citations omitted).]
When a jury’s verdict is ambiguous as to whether defendant had a
broader purpose in possessing the firearm than committing the
substantive offense, the Court adopted a four-prong test to
determine if merger is required, described as follows:
(1) the defendant must have been charged in
the indictment with possession of the weapon
with a broader unlawful purpose, either
generally or specifically, than using the
weapon to kill or assault the victim of the
greater offense, (2) the evidence must
support a finding that the defendant had a
broader unlawful purpose, (3) the judge must
have instructed the jury of the
difference between possession with the
specific unlawful purpose of using the
weapon against the victim of the greater
11
offense and a broader unlawful purpose and
(4) the verdict must express the jury's
conclusion that the defendant had a broader
unlawful purpose.
[Id. at 639 (quoting Williams, supra, 213
N.J. Super. at 36).]
Applying that test, the Diaz Court concluded that, although
the first two factors were satisfied, the third and fourth
factors were not because “the trial court did not instruct the
jury what the alleged unlawful purposes were based on the
evidence presented.” Id. at 640. The Court noted that it is
essential for a trial judge to “relate the specific unlawful
purpose charged to the facts of the case” because the jury is
unqualified to determine which purposes are unlawful, pursuant
to N.J.S.A. 2C:39-4a, without guidance from the court. Ibid.
(internal quotation marks and citations omitted). Thus, to give
proper guidance, a “jury instruction ‘must include an
identification of such unlawful purposes as may be suggested by
the evidence.’” Ibid. (quoting State v. Petties, 139 N.J. 310,
319 (1995)).
The Court held that because the jury instructions at hand
did not define the other unlawful purposes, which were suggested
by the evidence, “[the Court] do[es] not know, and may not
assume, that the verdict on possession of the gun for an
unlawful purpose was for a broader unlawful purpose than the
manslaughter.” Ibid. Accordingly, because “the only unlawful
12
purpose submitted to the jury was possession of the gun to use
it in the killing,” merger was required. Id. at 642.
In Bowens, supra, the case on which the State relies, the
Court merely determined whether a defendant’s conviction for
possession of a weapon for an unlawful purpose should merge with
his conviction for aggravated manslaughter. 108 N.J. at 639.
In that decision, which consolidated two appeals, the Court
devoted most of its consideration to the issue of whether two
defendants were incorrectly denied jury charges on imperfect
self-defense. Id. at 626-37. However, one defendant, Tyrone
Rivers, also argued “that his conviction for possession of a
weapon for an unlawful purpose should have been merged with his
conviction of aggravated manslaughter.” Id. at 638.
Rivers and the victim met in a bar and drank together
before leaving for a restaurant where Rivers worked. Id. at
635. At the restaurant, they engaged in sexual relations in a
back room and, after re-entering the restaurant area, they
became involved “in an argument over [Rivers’s] attention to
others.” Ibid. Allegedly, the victim picked up a knife and
threatened Rivers. Ibid. “When the victim moved away, [Rivers]
reached behind a counter and picked up a kitchen knife.” Ibid.
Rivers claimed that the victim “came back at him,” and,
believing that he was going to be attacked, Rivers fatally
stabbed the victim. Ibid.
13
The Court determined that merger of Rivers’s two
convictions was not required because “each may be established by
proof of a different fact which the other does not require.”
Id. at 639. Accordingly, the Court held that there was “no
mistake of judgment resulting in double punishment.” Ibid.
V.
The approach to determine merger of offenses used in Diaz
is applicable here. The evidence tends to prove that
defendant possessed the weapon unlawfully only to commit the
substantive offense. No broader unlawful purpose was
supported directly or circumstantially by the evidence.
The Diaz approach to analyzing merger is the governing
standard. The Court may consider factors such as
“the time and place of each . . .
violation; whether the proof submitted as
to one count . . . would be . . . necessary
. . . to a conviction under [the other]
count; whether one act was . . . part of a
larger scheme . . .; the intent of the
accused; and the consequences of the
criminal standards transgressed.”
[Diaz, supra, 144 N.J. at 638 (quoting
Davis, supra, 68 N.J. at 81).]
On application of these factors in this case, merger is
appropriate.
Here, each charge arose at the same time and from the same
conduct. Both the possession of the weapon for an unlawful
purpose and the aggravated manslaughter resulted from a single
14
course of conduct. No other conduct led to the charges.
Additionally, both charges require proof of the same fact: that
defendant beat Farren with the caulking gun. Despite the
differing levels of culpability between the charges --
recklessly causing a death and purposeful unlawful possession of
a weapon -- defendant’s intent on both counts arguably included
purposeful conduct. See State v. Jenkins, 178 N.J. 347, 362-64
(2004). In Jenkins, the Court reasoned that reckless behavior
leading to death can stem from a conscious disregard of “a known
risk that created the possibility or probability that death
would follow from [the] conduct.” Id. at 364. Thus, the
purposeful use of a blunt object to strike Farren, without the
intention of causing death, is conduct culpable of both
aggravated manslaughter and possession of a weapon for an
unlawful purpose.
The consequences of the criminal transaction, even if the
charges are merged, are severe. Defendant was sentenced to a
sixty-year term of imprisonment with eighty-five percent
parole ineligibility on the aggravated manslaughter charge.
On the other hand, the conviction of possession of a weapon
for an unlawful purpose resulted in a concurrent five-year
term. In terms of the consequences of the criminal act, “the
predominant legislative purpose, judged by the severity of the
15
sentence,” has been served even if the charges are merged.
State v. Mirault, 92 N.J. 492, 504 (1983).
There is a tension between the Diaz and Bowens holdings.
As illustrated by Hill and Diaz, Bowens appears to be an
outlier in post-Code merger cases. The cases not requiring
merger have had clear statutory differences illustrating
legislative intent to fractionalize a course of conduct. See,
e.g., Miller, supra, 108 N.J. at 120-21 (finding legislative
intent to punish both sexual assault and endangering welfare
of child based not only on specific conduct but also on
violation of parental duty); contra Mirault, supra, 92 N.J.
at 503-05 (finding overlapping legislative intent between
first-degree robbery and second-degree aggravated assault
requiring merger). Courts have also declined to merge charges
when a separate unlawful purpose for possession of a weapon is
present. See, e.g., Truglia, supra, 97 N.J. at 521-22
(holding that defendant had separate unlawful purpose when he
chased his victim with gun in his hand before later wounding
him with gun).
We have determined, however, that the better course is to
follow Diaz in deciding this and future merger disputes. See
State v. Ciuffini, 164 N.J. Super. 145, 152 (App. Div. 1978)
(“Where more recent decisions of the Supreme Court plainly
undermine the authority of a prior decision although not
16
squarely and explicitly overruling it, we are entitled to
follow the current doctrine and need not be confined by the
prior ruling.”). We need not be confined by Bowens. Indeed,
the facts of this case fall squarely within the framework of
Diaz.
Diaz, supra, plainly states that “[w]hen the only
unlawful purpose in possessing the [weapon] is to use it to
commit the substantive offense, merger is required.” 144 N.J.
at 636. Unlike the defendant in Diaz, who threatened the
victim before shooting him and threatened an eyewitness when
fleeing from the scene, defendant here had no broader unlawful
purpose for possessing the weapon. See id. at 632-33, 636-37.
Furthermore, the Court’s opinion in Diaz is clear: “When
the jury is explicitly instructed that the unlawful purpose
was to use the gun against the victim of the substantive
offense . . . merger is required notwithstanding that the
evidence was sufficient to support a separate unlawful
purpose.” Id. at 641. This case contains no evidence to
support a separate unlawful purpose, and, significantly, the
jury was specifically instructed that defendant’s unlawful
purpose was “to assault Sheri Farren.” Thus, under the Diaz
rationale, merger is required because the evidence against
defendant was that he possessed a weapon for the purpose of
17
beating Farren with it -- the substantive offense. See id. at
639 (quoting Williams, supra, 213 N.J. Super. at 36).
VI.
The judgment of the Appellate Division is reversed, and
the matter is remanded to the Law Division for correction of
the judgment of conviction to reflect that the conviction for
possession of a weapon for an unlawful purpose merges into the
aggravated manslaughter conviction.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON;
and JUDGE CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ’s
opinion.
18
SUPREME COURT OF NEW JERSEY
NO. A-99 SEPTEMBER TERM 2011
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TROY N. TATE,
Defendant-Appellant.
DECIDED November 12, 2013
Chief Justice Rabner PRESIDING
OPINION BY Judge Rodríguez (temporarily assigned)
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6
1