State v. Williams , 168 N.J. 323 ( 2001 )

COLEMAN, J.,

dissenting.

This is a “road-rage case” by a police officer in which the Court concludes that it is likely “that the jury improperly imported the reasonableness requirement from the justification defense to the determination of whether Williams had the requisite state of mind to be convicted under N.J.S.A. 2C:39-4a.” Ante at 338, 774 A.2d at 466. The majority reaches that conclusion by asserting that, “on this record, it is impossible to know whether the jury convicted Williams because it concluded that he was not acting in defense of his wife at all, or because it concluded that he was unreasonable in believing that there was a need to use force on her behalf.” Id. at 338, 774 A.2d at 466. The Court also concludes that the jury should have been instructed that “even if it found [defendant’s] explanation — that he fired his gun to stop Erickson from killing his wife — to be unreasonable, [the jury] nevertheless had to consider whether that belief was an honestly held one.” Id. at 338, 774 A.2d at 466. The Court finds that under the plain error rule, a reversal of defendant’s conviction for possession of the weapon for an unlawful purpose is required because “[b]y failing to explain that a reasonable belief in the need to defend another is required for justification, but that only an honest, though unreasonable, belief is sufficient to negate a purposeful mental state, the judge left the jury to speculate about the applicable law.” Id. at 338-340, 774 A.2d at 466-467. I disagree with the majority’s conclusion that, applying the plain error standard, the jury instructions given in this case require reversal of defendant’s conviction. I therefore dissent.

I.

This appeal arises out of a shooting that occurred on June 22, 1995. Defendant, an off-duty Bayonne police officer, his wife, and their son were driving in their family’s van in the Borough of Matawan, Monmouth County, New Jersey, and were involved in an altercation with another motorist, Tammy Erickson. Defendant claimed that Erickson rear-ended his van, and then drove off without stopping to exchange insurance information. Defendant and his wife then pursued Erickson’s vehicle for several miles, flashing their lights and honking their horn to get Erickson to pull over. Even after losing Erickson’s car, defendant and his wife continued to search for her. When they saw her car again, they pulled their van in front of her ear, in the middle of the road, and defendant got out. Erickson continued to drive past the van and defendant fired one shot with his service weapon through Erickson’s rear windshield. Fortunately, the bullet exited through the front windshield without striking Erickson.

At trial defendant admitted firing his gun at Erickson’s car, but claimed that he fired in defense of his wife and child. Defendant testified that he believed that Erickson’s ear was heading toward his wife, who was standing in the road, and that he shot his gun at Erickson’s car to protect his wife from being struck. Defendant’s wife testified that when she pulled the van in front of Erickson’s car, she stepped out into the middle of the road and saw Erickson’s car coming toward her, so she yelled to her husband.

Erickson, on the other hand, testified that while she was driving down the road about to make a right-hand turn, a van stopped in the road and a man with a gun jumped out of the van. Erickson stated that as she made her turn, she “heard a shot and my window in the back was shattered, and a bullet came past me and out my front window.” Erickson testified that no one was standing in front of her car while she was driving. Four other eyewitnesses testified that they saw no person in the road at the time of the shooting, other than defendant.

II.

A.

This appeal must be considered in the context of the plain error standai’d because defense counsel did not object to the jury instructions or the trial court’s response to the jury’s questions. Thus, even if the jury charge was somehow flawed, defendant must show that “the error possessed a clear capacity for producing an unjust result.” State v. Melvin, 65 N.J. 1, 18, 319 A.2d 450 (1974); accord R. 2:10-2. The possibility of an unjust result must be “sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.” State v. Macon, 57 N.J. 325, 336, 273 A.2d 1 (1971).

The majority’s position is that the jury instruction in this case was fatally flawed because it failed to explicitly draw a distinction between the state of mind that was necessary to convict defendant of possession of a weapon for an unlawful purpose and the state of mind that was necessary to exculpate him entirely under a self-defense theory. It is undisputed that if defendant had no unlawful purpose for possessing the weapon, then he cannot be guilty of violating N.J.S.A. 2C:39-4a.

“Generally, self-defense as a justification ... is an ‘affirmative defense that excuses conduct that is otherwise unlawful.’ ” State v. Moore, 158 N.J. 292, 301, 729 A.2d 1021 (1999) (quoting State v. Harmon, 104 N.J. 189, 209, 516 A.2d 1047 (1986)). Because defendant’s possession of his service revolver was lawful until the moment he allegedly used it unlawfully to fire a round at Erickson’s vehicle, I must examine his self-defense justification defense to the charge of possessing the weapon for an unlawful purpose within the context of the aggravated assault charge for which he was convicted. The use of deadly force for self-protection or defense of another “may be a justifiable defense, provided that certain statutory preconditions are satisfied.” Id. at 301, 729 A.2d 1021; see N.J.S.A. 2C:3-4 to -5. “[L]egal self-defense contemplates volitional conduct.” Ibid

The jury convicted defendant of aggravated assault upon Erickson in violation of N.J.S.A. 2C:12-1b(4). The statute provides that “[a] person is guilty of aggravated assault if he ... [kjnowingly under circumstances manifesting extreme indifference to the value of human life points a firearm ... at or in the direction of another, whether or not the actor believes it to be loaded.” N.J.S.A. 2C:12-1b(4). Measured in terms of degrees, knowingly pointing a firearm at or in the direction of another person “under circumstances manifesting extreme indifference to the value of human life means a probability as opposed to a mere possibility of causing ... injury.” Moore, supra, 158 N.J. at 302, 729 A.2d 1021. The jury rejected defendant’s justification defense as to the fourth-degree aggravated assault charge. The Appellate Division and the majority have affirmed that conviction. The record supports the conclusion that the foregoing aggravated assault was one of the three unlawful purposes for which defendant was alleged to have possessed the weapon, albeit for the short time he allegedly used the weapon unlawfully.

This case falls into the majority of cases in which “the charge of possession of a firearm for an unlawful purpose ‘is coupled with a charge of an act accomplished with the gun — a robbery, an assault, a homicide — which the court tells the jury is unlawful.’ ” State v. Diaz, 144 N.J. 628, 636, 677 A.2d 1120 (1996) (quoting State v. Jenkins, 234 N.J.Super. 311, 315, 560 A.2d 1240 (App.Div.1989)). Although “a conviction based on the use of the weapon is not a required precondition to a conviction for the possessory offense” under N.J.S.A. 2C:39-4a, it is part of the totality of the circumstances that the jury considers in determining the subjective intent of the defendant. Diaz, supra, 144 N.J. at 636, 677 A.2d 1120. In other words, when, as here, the firearm has been used to commit an offense such as an assault, use of the weapon in that manner “provides the factual underpinning for drawing an inference that the firearm was possessed for an unlawful purpose.” Ibid.

B.

Pertinent to this ease, the third and fourth elements of the offense of possession of a firearm with the purpose to use it unlawfully against Erickson’s person in violation of N.J.S.A. 2C:39-4a, require proof that “defendant’s purpose in possessing the firearm was to use it against the person or property of [Erickson,] and [that] defendant intended to use the firearm in a manner that was unlawful.” Diaz, supra, 144 N.J. at 635, 677 A.2d 1120; accord Harmon, supra, 104 N.J. at 212, 516 A.2d 1047. Proof that defendant intended to use the firearm in a manner that was unlawful requires “an identification of the unlawful purpose or purposes suggested by the evidence.” State v. Villar, 150 N.J. 503, 511, 696 A.2d 674 (1997). In this case, attempted murder and two aggravated assaults upon Erickson based on defendant’s use of his service revolver were charged in the indictment. Clearly, the State relied on the use of the gun to commit one or more of those offenses to establish the unlawful purpose of the possessory offense. The mental state required for possession of a firearm with a purpose to use it against the person or property of another for an identified unlawful purpose is satisfied “if it is his [or her] conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he [or she] ... believes or hopes that they exist.” N.J.S.A. 2C:2-2b(1). As noted previously, the “purpose to use a weapon unlawfully may be inferred from the [facts and] circumstances” presented at trial. Villar, supra, 150 N.J. at 510, 696 A.2d 674.

The trial court’s jury instruction regarding the third and fourth elements of possession of a weapon for an unlawful purpose correctly explained the law to the jury. In addition, the jury charge also made clear that:

Any lawful purpose would be a defense to the charge. For example, if the Defendant believed his purpose was to lawfully use the firearm, to protect himself or another against the use of unlawful force, then the Defendant’s conscious object and design was not to use the firearm in an unlaivful manner, and the State has failed to cany its burden of proof on this element beyond a reasonable doubt.

[Emphasis added.]

The trial court’s instruction stressed to the jury the importance of determining whether defendant had the purpose — the conscious object — to use his gun unlawfully against Tammy Erickson. In light of that fact, I am satisfied that the jury understood that it could not convict defendant of possession of a weapon for an unlawful purpose unless each juror found that defendant had the specific subjective intent to use his gun against Tammy Erickson in an unlawful manner when he pointed the gun and fired into Erickson’s vehicle.

Because defendant claimed that he fired his gun in defense of his wife, the trial court instructed the jury on the law of defense of a third person. The court explained that the applicable statute, N.J.S.A. 2C:3-4 to -5, requires three elements to be met:

[ O ]ne, the actor would be justified in using such force to protect himself against the injury believed to be threatened to the person whom he seeks to protect; and, two, under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would be justified in using such protective force; and three, the actor reasonably believes that his intervention is necessary for the protection of another person.

The jury instructions on defense of another properly informed the jury that defendant’s belief in the necessity to use deadly force to prevent harm to his wife and child had to be reasonable and honest. In accordance with State v. Kelly, 97 N.J. 178, 198-99, 478 A.2d 364 (1984), the jury was instructed that “[sjelf defense exonerates a person who uses force in the reasonable belief that such action was necessary to prevent his death or serious injury, even though his belief was later proven mistaken____Accordingly, the law requires only a reasonable, not necessarily a correct, judgment.” The majority agrees that “the court correctly instructed the jury regarding the justification defense.” Ante at 338, 774 A.2d at 466. Self-defense and defense of another as justifications mean that the actor’s conduct was volitional. Under those two theories of justification, exoneration is based on a legal excusal for intentional conduct — not on an actor’s mental state. Viewed in that context, the “honest” component of self-defense or defense of another as legal justifications cannot serve to reduce the mental culpability required for a conviction" pursuant to N.J.S.A. 2C:39-4a. Under our Code of Criminal Justice, the honesty of a defendant police officer’s belief, that his or her conduct is lawful when he or she intentionally fires a loaded service revolver at another is irrelevant to whether the requisite mental culpability has been established for an offense under N.J.S.A. 2C:39-4a. The Code provides that “[njeither knowledge nor recklessness nor negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such an offense.” N.J.S.A. 2C:2-2d.

C.

In an apparent attempt to circumvent the Code’s strictures for determining mental culpability required for a particular offense, the majority has reached outside the Code to support its holding. The majority’s reliance on State v. Bowens, 108 N.J. 622, 532 A.2d 215 (1987), to support its conclusion that Williams’s belief in the need to use force to defend his wife only had to be ‘honest’ and not necessarily reasonable is misplaced. The majority’s attempt to disguise its use of “imperfect self-defense” as nothing more than defensive proof is not persuasive. The majority is commingling self-defense and defense of another jurisprudence with imperfect self-defense law. Bowens used the “honest” principle in its discussion of imperfect self-defense, but not in its discussion of perfect self-defense. Bowens, supra, 108 N.J. at 628, 532 A.2d 215. In the present case, defendant alleged that he fired his gun in perfect defense of another. Defendant conceded in his testimony that he acted purposely when he fired the gun at Erickson’s vehicle, a concession that was consistent with his justification defense. Unlike a murder case in which imperfect self-defense can reduce only the degree of the homicide based on the level of mental culpability, here the use of imperfect self-defense would have the effect of obtaining a possible acquittal on the possessory offense.

Bowens, a murder ease, defined imperfect self-defense as “an honest subjective belief on the part of the killer that his or her actions were necessary for his or her safety, even though an objective appraisal by reasonable people would have revealed not only that the actions were unnecessary, but also that the belief was unreasonable.” Bowens, supra, 108 N.J. at 628, 532 A.2d 215. That is precisely what the majority has concluded in this case, albeit under a different name. In Bowens, the Court made clear that “[e]vidence of imperfect self-defense does not justify the conduct, it mitigates the offense.” Id. at 633, 532 A.2d 215. Unlike a murder prosecution, there is no way to mitigate second-degree possession of a firearm for an unlawful purpose since there is no lesser-included offense.

In State v. Pitts, 116 N.J. 580, 606, 562 A.2d 1320 (1989), this Court stated that “[t]he predicate for [an aggravated manslaughter] instruction, when it is based on evidence of imperfect self-defense, is that such evidence ... negates the mental state required for murder.” In State v. Colon, 298 N.J.Super. 569, 578, 689 A.2d 1359 (App.Div.), certif. denied, 149 N.J. 410, 150 N.J. 27, 694 A.2d 195, 695 A.2d 670 (1997), the court found no prejudice related to the trial court’s failure to charge the jury on imperfect self-defense in a case involving convictions for reckless aggravated assaults and possession of a weapon for an unlawful purpose. In State v. Pridgen, 245 N.J.Super. 239, 248, 584 A.2d 869 (App.Div.), certif. denied., 126 N.J. 327, 598 A.2d 886 (1991), another murder case, the court found that the defendant suffered no prejudice due to the trial court’s failure properly to charge imperfect self-defense because the defendant was convicted of aggravated manslaughter, which only requires a reckless culpability.

In contrast to the majority’s decision, I believe that the holding in Bowens should be restricted to murder cases because, as the Court observed there, “the Code of Criminal Justice does not provide an independent category of justification, excuse, or mitigation under the concept of imperfect self-defense.” Bowens, supra, 108 N.J. at 626, 532 A.2d 215 (citation omitted). Bowens also held that a trial court need not charge separately that “imperfect self-defense would serve to reduce murder to an unspecified degree of manslaughter.” Id. at 637, 532 A.2d 215; State v. Branch, 155 N.J. 317, 329, 714 A.2d 918 (1998) (declaring that “there is no such defense as imperfect self-defense” in New Jersey); State v. Gartland, 149 N.J. 456, 469, 694 A.2d 564 (1997) (stating “we have declined to create new justifications for criminal conduct”). In State v. Coyle, 119 N.J. 194, 228, 574 A.2d 951 (1990), a capital murder case, the Court held that the trial court did not err in refusing to specifically instruct the jury on the theory of imperfect self-defense. Restricting imperfect self-defense to murder cases is a compromise position employed in many states because imperfect self-defense allows the jury to find the defendant guilty of a lesser-ineluded offense of murder based on the reduced level of mental culpability.

A number of jurisdictions do not recognize the concept of imperfect self-defense under any circumstances. State v. Hughes, 106 Wash.2d 176, 721 P.2d 902, 910 (1986) (“The statutory definitions of self-defense and manslaughter in Washington provide no room for the theory advocated by the defendant that an honest (or good faith) but unreasonable belief that self-defense is necessary merits leniency.”); Best v. State, 736 P.2d 739, 747 (Wyo.1987) (“The title of the theory, ‘imperfect self-defense,’ is in itself intriguing. It is difficult to discern whether the adjective describes the legal theory or those courts which have been sufficiently gullible to swallow this proposition and reiterate it for a jury.”); Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.7(1) (1986) (“[Ojne who uses force against another with an honest but unreasonable belief that he must use force to defend himself ... is not, in most jurisdictions, justified in his use of force, for proper self-defense requires that the belief in the necessity for the force he uses be reasonable.”).

Most states that permit imperfect self-defense limit its application to homicide cases. State v. Abdalaziz, 45 Conn.App. 591, 696 A.2d 1310, 1316 (1997) (“The majority view is that imperfect self-defense applies to murder and homicide charges.”), aff'd, 248 Conn. 430, 729 A.2d 725 (1999); Richmond v. State, 330 Md. 223, 623 A.2d 630, 632 (1993) (finding “the concept of mitigation has universally and historically been limited to offenses involving criminal homicide, or the ‘shadow1 or inchoate forms of those offenses,” and that “imperfect self-defense negates only that species of malice applicable to murder”); Bryant v. State, 83 Md.App. 237, 574 A.2d 29, 32-33 (1990) (“Imperfect self-defense is an aspect of homicide law and nothing more. Outside of homicide law, the concept doesn’t exist.... With respect to all other crimes, the defendant is either guilty or not guilty. He either acted in self-defense or he did not. There is no ‘in between.’ ”); People v. Heflin, 434 Mich. 482, 456 N.W.2d 10, 22 n. 22 (1990) (“[T]he majority of jurisdictions that recognize ‘imperfect self-defense’ use it as a method of negating the element of malice in a murder charge____ [I]n these jurisdictions, ‘imperfect self-defense’ mitigates murder to voluntary manslaughter.”); Cynthia K.Y. Lee, The Act Belief Distinction in Self Defense Doctrine: A New Dual Requirement Theory of Justification, 2 Buff.Crim. L.Rev. 191, 241 (1998) (stating “[t]he doctrine of imperfect self-defense is generally limited to defendants charged with murder”). I disagree, therefore, with the majority that there is an “in between.” That conclusion is based on the majority’s improper creation of a new justification defense based on the imperfect self-defense doctrine. That doctrine should be restricted to murder prosecutions. The majority has rewritten the Legislature’s definition of justification defenses under N.J.S.A. 2C:3-4 and -5.

Even if imperfect self-defense or defense of others were applicable to non-murder cases, I would find no error in failing to give such a charge in this case. The State relied on the commission of each of the substantive offenses charged in the indictment as the predicate for the unlawful purpose element of the possessory offense under N.J.S.A. 2C:39-4a. The jury convicted defendant of fourth-degree use of the weapon by pointing and firing at Erickson in violation of N.J.S.A. 2C:12-1b(4). Defendant’s admission that he fired the weapon at Erickson and the jury’s finding that he knowingly pointed and fired the weapon at Erickson under circumstances manifesting extreme indifference to the value of human life provides the factual underpinning for the jury to draw an inference that defendant’s possession while pointing and firing the gun was for an unlawful purpose. The majority agrees that the jury was properly instructed on self-defense and that the evidence was sufficient to sustain a finding of such an unlawful purpose under N.J.S.A. 2C:39-4a. The majority is of the view, however, that the failure to give an imperfect self-defense charge deprived the jury of an opportunity to find that the purposefulness requirement for the possessory offense was not met. Because the majority does not deny that the jury rejected the justification defense regarding the fourth-degree offense, I am persuaded that that conviction under the circumstances of this case rendered the distinction between acting purposely and knowingly meaningless. When defendant acknowledged that he aimed and fired his service revolver at Erickson, that informed the jury that he acted purposely when he held the gun in his hand and fired it. His conscious object was to strike Erickson and/or her vehicle, and at that instant his possession of the weapon was for an unlawful purpose unless its possession and use were justified. In convicting defendant of fourth-degree aggravated assault, the jury determined that defendant’s use of the gun was unlawful, and because the period of the unlawful possession was restricted to the time it was used against Erickson, the jury could infer that his possession at that moment was for an unlawful purpose.

In its efforts to examine the intricacies of the intersection between the trial court’s self-defense/defense of another jury instruction and its instruction on possession of a weapon for an unlawful purpose, the majority discounts the likelihood that the jury simply concluded that defendant’s version of events was not credible. “The jury’s fact-finding function is all-inclusive and encompasses the evaluation of the credibility of witnesses and the weight and worth of evidence.” State v. Ingenito, 87 N.J. 204, 211, 432 A.2d 912 (1981). In contrast to the testimony given by defendant and his wife, five of the State’s eyewitnesses testified that they- did not see anyone else standing in the road when defendant fired at Erickson’s ear. Given the testimony adduced at trial, the jury would have been justified in concluding that defendant fired his gun out of anger, not to protect his wife. At that moment, he possessed the weapon to use it unlawfully against Erickson.

The majority opinion refers to several of defendant’s opaque responses as to why he fired his gun, including: “I fired in response to my wife screaming and the ear was passing.” In the absence of a clear sense of what led defendant to fire the shot, the jury may have relied on its common sense. For instance, it is not clear how shooting into the rear window of Erickson’s car, after it had passed him by, and as it allegedly was about to strike his wife, would have helped to protect defendant’s wife. If defendant had been attempting to stop Erickson’s car, he testified that he would have “emptied [his] clip,” which he did not do. Moreover, if defendant’s wife was standing right in front of Erickson’s approaching car, it seems that shooting into Erickson’s car, either to scare her, injure her, or kill her, might even have increased the likelihood that Erickson’s car would have spun out of control and ran over his wife.

For all of the foregoing reasons, I find that the jury instructions given in this ease adequately explained the jury’s responsibility with reference to the charge of possession of a weapon for an unlawful purpose. I find no error, but if there was some level of error in the trial court’s jury charge, under the compelling facts of this case that error was harmless.

III.

I also disagree that the jury instructions were insufficient to satisfy the dictates of State v. Petties, 139 N.J. 310, 321, 654 A.2d 979 (1995). The indictment charged that defendant possessed the firearm to use it unlawfully against the person of Tammy L. Erickson and the two assault charges as well as the attempted murder charge named Erickson as the victim. It is clear to me that the State has always relied on the three substantive crimes charged in the indictment to provide the factual underpinning for a conviction of possession of a weapon for an unlawful purpose. During summation, the prosecutor specifically stated that, at the moment that defendant drew his gun to shoot, he possessed it “for an unlawful purpose, to use it against Tammy Erickson, to point it at her or in her direction.” (Emphasis added). The jury convicted defendant of that crime — aggravated assault by knowingly pointing a firearm at another person under circumstances manifesting an extreme indifference to the value of human life. Consistent with that conviction, the jury also determined that when defendant unholstered, pointed, and fired his gun, he had the purpose to use it unlawfully against Tammy Erickson.

IV.

I would affirm defendant’s conviction for the reasons stated and substantially for the reasons expressed in the Appellate Division’s majority opinion.

Justice Verniero joins in this opinion.

For reversal and remandment — Chief Justice PORITZ and Justices STEIN, LONG, LAVECCHIA and ZAZZALI — 5.

For affirmance — Justices Coleman and Verniero — 2.