(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 interests of brevity, portions of any opinion may not have been summarized).
Argued February 2, 1999 -- Decided June 2, 1999
COLEMAN, J., writing for a majority of the Court.
The issue in this second-degree aggravated assault case is whether the jury should have been instructed on
non-deadly force self-defense or deadly force self-defense.
Hussan Moore was tried before a jury for second-degree aggravated assault, third-degree possession of a
handgun without a permit, and second-degree possession of a handgun with the purpose to use it lawfully against
the person or property of another. The victim of the assault was Erv-Wakine Smith.
Smith and Moore had different versions of the alleged assault. Smith alleged that late in the evening on
July 5, 1995, he was leaving a Chinese restaurant in East Orange when he and his four companions spotted Moore
standing under a tree rolling marijuana into a cigar. At that point, Moore yelled to the group, “what are you
looking at?” Smith, not hearing what Moore said, asked Moore to repeat himself while Smith walked alone
toward him. When Smith came within five feet of him, Moore pulled a gun from his waistband, pointed it at
Smith's head, and cocked the trigger. Smith then grabbed Moore, and the two struggled for control of the gun.
As Smith pushed Moore away in an attempt to flee, Moore pulled the trigger, shooting Smith in the stomach.
At trial, Moore denied that he ever put the gun to Smith's head or that he intended to pull the trigger.
Rather he maintained that the gun accidentally discharged during his struggle with Smith. Moore further testified
that he had been carrying the gun because he had been attacked several weeks earlier. He pulled out the gun when
Smith and his friends approached because they were charging at him and he didn't know what they were going to
do. He stated that he was afraid that they would try to jump him or take his “weed.” His intent when he pulled
out the gun was “to see if they would . . . just back off.”
On cross-examination, Moore admitted that he was not afraid of Smith because his loaded gun would
protect him if Smith or anyone else tried to attack him. He further acknowledged that no one tried to attack him,
and that there was no indication that anyone in the group was carrying a weapon.
At the close of the evidence, Moore's counsel requested that the jury be charged on self-defense, arguing
that although the defense theory was that the gun discharged accidentally during a struggle, the jury could conclude
otherwise, “while at the same time not having a way to account for an act that is otherwise justified.” The trial
court refused to charge the jury on self-defense, finding that the defense had relied on an accident theory and that
no evidence had been presented to support a claim of self-defense.
The jury convicted Moore of second-degree aggravated assault and third-degree possession of a weapon
without a permit. The jury acquitted Moore on the charge of second-degree possession of a weapon for an
unlawful purpose. Moore was sentenced on the aggravated assault count to a custodial term of seven years with
three years of parole ineligibility. He received a concurrent four-year term on the weapon conviction.
Moore appealed, claiming that the trial court committed error in not instructing the jury on self-defense on
the count charging aggravated assault. The Appellate Division agreed and reversed Moore's conviction. The panel
first concluded that a rational factual basis existed in the record to support a self-defense charge by virtue of
Moore's testimony that he feared that Smith and his group would “jump” him. The Appellate Division further
concluded that Moore had no duty to retreat because waving or brandishing the handgun was not a display of
deadly force. Although the panel questioned the wisdom of a policy that permits an individual to brandish a
handgun on a public street in circumstances such as these when retreat is readily available, it felt constrained to
reverse, noting that any change in policy that would prohibit Moore's conduct under these circumstances must
come from the Legislature.
The Supreme Court granted the State's petition for certification.
HELD: Because Moore ultimately used deadly force, he was not entitled to a jury instruction on the use of non-deadly force; and because he was the aggressor and could have retreated safely, Moore was not entitled to a jury
instruction on self-defense.
1. Although justifications under the Code based on accident and self-defense need not be inconsistent, where
recklessness or negligence is the requisite mental state to establish an offense, self-defense is not a justification.
(pp.8-9)
2. Because it was impossible to determine before trial which version of the facts the jury would credit, Moore was
not precluded from advancing accident and self-defense as alternative defenses. Thus, Moore was legally permitted
to pursue both defenses. (p. 10)
3. Self-defense is not an available justification under the recklessly causing serious bodily injury alternative theory
of second-degree aggravated assault. (pp. 11-13)
4. Under N.J.S.A. 2C:3-11b, brandishing a weapon to scare off a potential attacker, without more, constitutes a
non-deadly use of force. (pp. 13-15)
5. Based on a strong public policy that firearm offenses should be treated seriously, a defendant who has brought a
loaded gun to a scene is not entitled to any protection afforded by the lenient non-deadly force rules if that gun
discharges while still in control of the defendant. (pp. 15-18)
6. Although brandishing a weapon does not constitute deadly force when its purpose is to threaten the use of
deadly force if necessary, once the weapon is discharged, deadly force has been used. Thus, in that circumstance, a
defendant is not entitled to a jury instruction on the use of non-deadly force in self-defense because, as a matter of
law, deadly force has been used. (pp. 18-21)
7. Deadly force is not justified if the actor knows that he can avoid the necessity of using such force with complete
safety by retreating. Because deadly force was used, there must be a rational basis in the evidence to show that
Moore could not have retreated with safety before using deadly force in order to entitle him to a jury instruction on
self-defense. (pp. 21-25)
8. Based on the uncontroverted facts, Moore could have retreated safely. Thus, no rational basis existed requiring
a self-defense charge. (pp. 24-25)
9. Moore cannot claim self-defense when he was the aggressor. (pp. 26-27)
Judgment of the Appellate Division is REVERSED and the judgment of the Law Division is
REINSTATED.
JUSTICE O'HERN filed a separate dissenting opinion in which JUSTICE STEIN joins. Justice O'Hern
believed that there was uncontroverted evidence of a struggle for the gun and that, therefore, there was a rational
basis to charge the jury on the justifiable use of deadly force. He further believed that Moore was entitled to a
self-defense instruction on the use of non-deadly force in pointing a loaded gun at his assailants. Finally, Justice
O'Hern believed that the majority made its own assessment of the facts, which assessment should have been left to
the jury.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, and GARIBALDI join in JUSTICE
COLEMAN's opinion. JUSTICE O'HERN filed a separate dissenting opinion in which JUSTICE STEIN joins.
SUPREME COURT OF NEW JERSEY
A-
218 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
HUSSAN MOORE,
Defendant-Respondent.
Argued February 2, 1999 -- Decided June 2, 1999
On certification of the Superior Court,
Appellate Division, whose opinion is reported
at
309 N.J. Super. 463 (1998).
Gary A. Thomas, Assistant Prosecutor, argued
the cause for appellant (Patricia A. Hurt,
Essex County Prosecutor, attorney).
Paul B. Halligan, Assistant Deputy Public
Defender, argued the cause for respondent
(Ivelisse Torres, Public Defender, attorney).
Robert E. Bonpietro, Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (Peter Verniero,
Attorney General, attorney).
The opinion of the Court was delivered by
COLEMAN, J.
The issue raised in this second-degree aggravated assault
case is whether the jury should have been instructed on non-deadly force self-defense or deadly force self-defense. The
trial court declined to submit either instruction to the jury.
The Appellate Division reversed, finding that defendant was
entitled to a non-deadly force self-defense instruction.
309 N.J. Super. 463 (1998). We granted the State's petition for
certification,
155 N.J. 588 (1998), and now reverse.
Defendant was tried before a jury for second-degree
aggravated assault, third-degree possession of a handgun without
a permit, and second-degree possession of a handgun with the
purpose to use it unlawfully against the person or property of
another. The victim of the aggravated assault charge was Erv-Wakine Smith.
On July 5, 1995, Smith, Archie Crooks, Tamara Bush, Shakisa
Lawson, and Malcolm Stohall went to a Chinese restaurant in East
Orange. They left the restaurant at approximately 11:20 p.m. As
they walked down the middle of Amherst Street in East Orange,
they observed defendant standing under a tree rolling marijuana
into a cigar. There are two versions of what happened
thereafter.
Under the State's version, when Smith and his friend
observed defendant, defendant yelled to the group, "What are you
looking at," or something to that effect. Smith, not hearing
what defendant had said, asked defendant to repeat himself as
Smith walked alone toward defendant. When Smith came within five
feet of defendant, defendant pulled a gun from his waistband,
pointed it at Smith's head, and cocked the trigger. Smith
grabbed defendant, and they tussled for control of the gun. As
Smith pushed defendant away in an attempt to flee, defendant
pulled the trigger, shooting Smith in the stomach. Although
Smith suffered serious internal injuries, consisting of a bullet
hole through the liver and intestines, he survived. Defendant
then pointed the gun at Archie Crooks and ran away without firing
the gun again.
Defendant was arrested within a few days based on
eyewitnesses' descriptions of him and the fact that one of the
eyewitnesses knew his name. On July 12, 1995, defendant admitted
to members of the East Orange Police Department that he was
rolling a blunt marijuana cigar when he first observed Smith and
two of his friends staring at him. Defendant asked Smith if he
had a problem with defendant's conduct. He admitted pulling out
the gun and waving it around as Smith approached him. According
to defendant, his gun went off when Smith grabbed it. Defendant
said that after the shooting, he ran to a nearby Dunkin' Donuts
store and caught a taxi.
At trial, defendant told a different story. He denied
putting the gun to Smith's head, pulling back the hammer, or
intending to pull the trigger. Defendant testified that he was
carrying the gun because he had been attacked a few weeks before
and did not wish to "give them a chance" this time. He pulled
out the gun when Smith and his friends approached because he
"didn't know what they was going to do . . . . They was just
charging . . . at me . . . like I did something to them when I
just asked them a question." Defendant “was afraid they might
try to jump me or tak[e] my weed or something like that." He
pulled out his gun and "flashed it around" to "see if they would
run . . . figur[ing] they might see the gun and just back off."
Defendant stated that he “didn't mean to pull the trigger”; his
“intention was just to scare” them. Defendant testified that the
gun accidentally discharged during the struggle.
On cross-examination, defendant admitted he was not afraid
of Smith because his loaded gun would protect him if Smith, or
anyone else, tried to attack him. Defendant acknowledged that no
one tried to attack him, and there was no indication that anyone
in the group was carrying a weapon.
At the close of all the evidence, the trial court conducted
a conference to discuss special requests for jury instructions.
At that conference, defendant requested that the jury be charged
on self-defense. Counsel argued that, although the defense
theory was that the gun went off accidentally during a struggle,
"the jury could conclude that the gun was not discharged
accidentally, while at the same time not having a way to account
for an act that is otherwise justified . . . . [S]elf-defense is
the only way to provide that to the jury." Although defense
counsel conceded that "there are obvious problems in the defense
prevailing on a self-defense claim," counsel nonetheless argued
that without the self-defense charge, the jury would be "left
with accident versus purposeful and knowing or reckless
indifference to life options where this situation was different
in the sense that there was a physical struggle over possession
of the gun at some point." Defense counsel argued that "without
the instruction on self-defense to provide some guidance . . .
the resulting verdict may not be necessarily what the jury would
intend."
The trial court refused to charge the jury on self-defense.
It found that the defense had relied on an accident theory and
that no evidence had been presented to support a claim of self-defense.
The jury convicted defendant of second-degree aggravated
assault and third-degree possession of a weapon without a permit.
The jury acquitted defendant on the charge of second-degree
possession of a weapon for an unlawful purpose. Defendant was
sentenced on the aggravated assault count to a custodial term of
seven years with three years of parole ineligibility. He
received a concurrent four-year term on the weapon conviction.
Defendant appealed, contending, among other things, that the
trial court erred in not instructing the jury on self-defense on
the count charging aggravated assault. The Appellate Division
agreed and reversed. The court first concluded that a rational
factual basis existed in the record to support a self-defense
charge. According to the Appellate Division, that evidence
consisted of defendant's testimony that he "didn't know what they
was going to do" but he "was afraid they might try to jump [him]
or take [his] weed or something like that." Moore, supra, 309
N.J. Super. at 468. The court also concluded that, based on its
view of the evidence, defendant had no duty to retreat because
waving or brandishing the handgun was not a display of deadly
force. Id. at 469. Although the court questioned "the wisdom of
a policy that permits an individual to brandish a handgun on a
public street in circumstances such as these when retreat is
readily available[,]" the Appellate Division felt constrained to
reverse. Ibid. “Any change in policy that would prohibit
defendant's conduct under these circumstances must come from the
Legislature.” Id. at 469-70.
The State, through the Essex County Prosecutor, presents a
twofold argument. First, the State argues that brandishing a
loaded gun on a public street in the presence of other people,
knowing the gun has the potential to cause death or serious
bodily injury, constitutes deadly force. Second, the State
argues that even if brandishing the gun did not constitute deadly
force, defendant actually used deadly force when he shot Smith in
the stomach with the handgun. Under both arguments, according to
the State, defendant had a duty to retreat before using deadly
force. The State maintains that defendant admitted that he did
not reasonably believe that he needed to employ the amount of
force used. Finally, the State argues that the Appellate
Division erred in not focusing on the actual use of deadly force.
Defendant contends that he was entitled to a jury
instruction on self-defense. He argues that "from the moment
that Smith grabbed the gun, all of [defendant's] actions were
arguably in self-defense because the victor in the struggle for
the gun would have been in a position to harm the other."
Defendant further argues that if the jury found that the struggle
over the gun placed him in reasonable fear for his life, he would
have been justified in using deadly force in self-defense without
any duty to retreat first, even if he could have retreated with
complete safety.
The Attorney General, as amicus curiae, agrees with
defendant that, as an exception to the deadly force rule,
defendant had a right to display a loaded gun in order to create
an apprehension in Smith and his friends that he would use deadly
force if necessary. The Attorney General agrees with the State
that defendant used deadly force when he shot the victim in the
stomach, and that defendant was obligated to retreat before using
deadly force.
The self-defense issues in this case are related to the
charge of second-degree aggravated assault. The decision on
whether a self-defense jury instruction was required involves a
multi-step analysis. We begin with the elements of the second-degree aggravated assault charge. In the context of this case,
the State was required to prove that defendant either attempted
to cause, or actually caused, serious bodily injury to Smith
"purposely or knowingly[,] or under circumstances manifesting
extreme indifference to the value of human life recklessly
cause[d] such injury." N.J.S.A. 2C:12-1b(1). The State
presented this case to the jury under both theories of liability,
while contending that defendant shot Smith in the stomach without
justifiable cause. Defendant contested his guilt by asserting
that the shooting was accidental. Defendant alternatively argued
that if the jury rejected that defense, he was entitled to have
the jury instructed on self-defense.
Justifications under the Code based on accident and self-defense need not be inconsistent. State v. Giberson,
153 N.J.
Super. 241, 245-47 (App. Div. 1977). The claim of accident as a
justification is dependent on the assertion of facts that negate
the purposeful and knowing mental states required for the crime
of second-degree aggravated assault. Generally, self-defense as
a justification, on the other hand, is an "affirmative defense
that excuses conduct that is otherwise unlawful." State v.
Harmon,
104 N.J. 189, 209 (1986). Where recklessness or
negligence is the requisite mental state to establish an offense,
as will be shown later, self-defense is not a justification.
The Code provides that "[c]onduct which would otherwise be
an offense is excused or alleviated by reason of any defense
. . . provided by law." N.J.S.A. 2C:2-5. An accidental
shooting, when viewed in the context of the requisite mental
state for second-degree aggravated assault, is a permitted
justification under the Code. N.J.S.A. 2C:2-3b. Similarly, the
use of force for self-protection may be a justifiable defense,
provided that certain statutory preconditions are satisfied.
N.J.S.A 2C:3-4a. Since an accidental shooting contemplates the
total absence of a purposeful or knowing mental state required
for one of the theories of second-degree aggravated assault, and
legal self-defense contemplates volitional conduct, the two
defenses would be inconsistent unless viewed as alternative
defenses. Because it is impossible to determine before trial
which version of the facts the jury will credit, defendant was
not precluded from advancing accident and self-defense as
alternative defenses. Thus, we agree with the Appellate Division
that defendant was legally permitted to pursue both defenses. We
must now decide whether defendant was legally entitled to have
the jury instructed on self-defense.
The jury was properly instructed that if it found the
shooting of Smith to be accidental, defendant should be
exonerated of second-degree aggravated assault because he did not
purposely or knowingly cause or attempt to cause serious bodily
injury. Under this theory of criminal liability, an accidental
shooting negates the requisite purposeful and knowing alternative
criminal mental states. "[A] person is not guilty of an offense
unless he acted" with the required mental state "with respect to
each material element of the offense." N.J.S.A. 2C:2-2a. One of
the purposes of requiring proof of a specific mental state is the
Code's attempt to achieve greater individual justice through a
closer relationship between guilt and culpability. State v.
Zeidell,
154 N.J. 417, 430 (1998).
Defendant's second-degree aggravated assault charge was also
submitted to the jury under the alternative theory that defendant
recklessly caused serious bodily injury to Smith by shooting him
in the stomach "under circumstances manifesting extreme
indifference to the value of human life." N.J.S.A. 2C:12-1b(1).
The Code defines recklessly as "consciously disregard[ing] a
substantial and unjustifiable risk that the material element
exists or will result from [the actor's] conduct." N.J.S.A.
2C:2-2b(3). The Code also quantifies the "unjustifiable risk"
created by the actor's conduct by requiring consideration of the
surrounding circumstances. Ibid. "The risk must be of such a
nature and degree that, considering the nature and purpose of the
actor's conduct and the circumstances known to him, its disregard
involves a gross deviation from the standard of conduct that a
reasonable person would observe in the actor's situation." Ibid.
The key elements under this theory of criminal liability for
second-degree aggravated assault are recklessly causing serious
bodily injury and causing such injury under circumstances
manifesting extreme indifference to the value of human life.
Measured in terms of degrees, the requirement that the serious
bodily injury be caused under circumstances manifesting extreme
indifference to the value of human life means a probability as
opposed to a mere possibility of causing such injury. State v.
Curtis,
195 N.J. Super. 354, 364 (App. Div.), certif. denied,
99 N.J. 212 (1984); see also State v. Barboza,
115 N.J. 415, 419
(1989); State v. Breakiron,
108 N.J. 591, 605 (1987).
The drafters of the Code did not intend that a defendant who
recklessly causes serious bodily injury under circumstances
manifesting extreme indifference to the value of human life
should be able to find shelter under the threat provision of
N.J.S.A. 2C:3-11b once a gun discharges. II Final Report of the
New Jersey Criminal Law Revision Commission § 2C:3-11, at 82-84
(1971). The Code's justification defenses are not available in a
prosecution where recklessness or negligence suffices to
establish the requisite mental element. Ibid.; N.J.S.A. 2C:3-9c;
State v. Grunow,
102 N.J. 133, 141-42 (1986). Where a defendant
brandishes a loaded gun, he or she is consciously disregarding a
substantial and unjustifiable risk that the gun will discharge
and kill or seriously injure someone. Consequently, self-defense
is not an available justification under the recklessly causing
serious bodily injury alternative theory of second-degree
aggravated assault. Further consideration of self-defense as a
justification to the second-degree aggravated assault in this
case will be limited to the purposely or knowingly theory of
criminal liability.
Next, we address whether defendant used unlawful force
against Smith as part of our consideration of whether a self-defense jury charge was required. Unlawful force is defined as
"force . . . which is employed without the consent of the person
against whom it is directed and the employment of which
constitutes an offense or actionable tort . . . except for a
defense." N.J.S.A. 2C:3-11a. Deadly force means "force which
the actor uses with the purpose of causing or which he knows to
create a substantial risk of causing death or serious bodily
harm." N.J.S.A. 2C:3-11b.
Although the use of force against a person in self-defense
is justifiable "when the actor reasonably believes that such
force is immediately necessary for the purpose of protecting
himself against the use of unlawful force" by that person,
N.J.S.A. 2C:3-4a, force under the Code is divided into non-deadly
and deadly categories. We have used non-deadly force self-defense and deadly force self-defense to correspond to the Code's
distinction between force that is not deadly and force that is
deadly. Based on those distinctions, we must decide whether
either brandishing a handgun or shooting Smith in the stomach, or
both, under the circumstances, entitled defendant to have the
jury instructed on either type of self-defense.
Brandishing a weapon to scare off a potential attacker
constitutes a non-deadly use of force. The Code provides that
production of a deadly weapon for the limited purpose of
"creating an apprehension that he will use deadly force if
necessary, does not constitute deadly force." N.J.S.A. 2C:3-11b.
That exception is taken almost verbatim from the Model Penal
Code. Although New Jersey's common law appears to have been to
the contrary, State v. Abbott,
36 N.J. 63, 69-72 (1961), the
purpose of that exception is to change the common law rule "that
where there is no justification for using extreme force in self-defense, threatening to use it may be considered an assault . . .
. The [exception is intended] to provide that even though the
defendant fears only slight injury, he may lawfully threaten his
adversary with a knife or gun by way of defense, provided that he
does not intend to carry out the threat." Model Penal Code §
3.11 commentary at 160. The Commentary states that under the
exception to the definition of deadly force, a defendant may
assert non-deadly force self-defense without having to retreat.
Ibid. Consistent with that comment, "N.J.S.A. 2C:3-4a permits an
individual to display or brandish a firearm or other weapon when
the need for self-protection is reasonably perceived and he
merely intends to create apprehension in the aggressor that he
will use deadly force if necessary." State v. Harmon,
203 N.J.
Super. 216, 223 (App. Div. 1985), rev'd on other grounds,
104 N.J. 189 (1986).
Although brandishing a weapon without more does not
constitute deadly force, a more in depth understanding of the
Code's definition of deadly force is essential to our analysis of
whether a self-defense jury instruction was required in
defendant's case. As noted previously, deadly force means "force
which the actor uses with the purpose of causing or which he
knows to create a substantial risk of causing death or serious
bodily harm." N.J.S.A. 2C:3-11b. The limited exception to the
deadly force rule does not legalize an otherwise unlawful
possession or use of the weapon. For example, if defendant
pointed the gun at Smith knowing that Smith was not about to
attack defendant, that would be an unlawful use of force.
Indeed, in this case, defendant sought and obtained a jury
instruction that permitted the jury to consider a lesser-included
offense of fourth-degree aggravated assault based on pointing or
brandishing the gun at Smith. The record does not reflect that
defendant sought a self-defense charge regarding the lesser-included offense. Even if defendant was entitled to such a
charge on the lesser-included offense, failure to so instruct the
jury was harmless since the jury did not convict on that offense.
In addition to the lesser-included offense instruction,
defendant sought to have the jury instructed on non-deadly force
self-defense based on brandishing the handgun as a legal
justification for the second-degree aggravated assault. The
trial court declined to give such an instruction, finding no
rational factual predicate, because the incident between
defendant and Smith escalated into the actual use of deadly
force.
In reversing the trial court's ruling, the Appellate
Division relied on State v. Giberson, supra, 153 N.J. Super. at
243-47. Giberson, however, does not support the determination
that defendant was entitled to an instruction on the non-deadly
use of force in self-defense under N.J.S.A. 2C:3-11b. Giberson
presented a garden-variety self-defense claim in which there was
no issue regarding the use of non-deadly force. Ibid. Moreover,
that case was decided pre-Code and, therefore, N.J.S.A. 2C:3-11b
was not an issue. Ibid.
In contrast to the law under which Giberson was decided, the
Code strictly regulates the possession, display, and use of guns
and other dangerous weapons. See N.J.S.A. 2C:39-1 to -15;
N.J.S.A. 2C:43-6 ("Graves Act"). The Legislature has created a
"carefully constructed," State v. Lee,
96 N.J. 156, 160 (1984),
and "comprehensive regulatory program." State v. Ingram,
98 N.J. 489, 499 (1985). In enacting those regulatory measures, the
Legislature has expressed a strong public policy that firearm
offenses should be treated seriously. In furtherance of that
legislative policy, this Court has concluded that the mere
presence of a firearm presents definable dangers to everyone at
the scene. State v. Des Marets,
92 N.J. 62, 70 (1983). Based on
that strong public policy, a defendant who has brought a loaded
gun to a scene is not entitled to any protection afforded by the
lenient non-deadly force rules if that gun discharges while still
in control of the defendant.
States that have adopted the Model Penal Code also draw a
distinction between the threatened use of deadly force and the
actual use of deadly force. See Toledo v. Florida,
452 So.2d 661, 662 n.3 (Fla. Dist. Ct. App. 1984) (stating that display of
a weapon without more does not constitute deadly force); State v.
Williams,
433 A.2d 765, 766 (Me. 1981) (threatening victim with
gun not deadly force); Mattox v. Texas,
874 S.W.2d 929, 935-36
(Tex. Ct. App. 1994) ( threatening victim with gun constituted
deadly force when firearm discharged). Once the gun discharges,
however, those states hold that, by definition, the defendant has
used deadly force and must justify his actions under the rules
regarding the use of deadly force.
In State v. Rincker,
423 N.W.2d 434, 441 (Neb. 1988), for
example, the defendant argued that he was entitled to a jury
instruction on the non-deadly use of force in self-defense under
the Nebraska Code provision on brandishing a weapon, because he
pulled out a knife to scare the victim. The Nebraska statute is
similar to ours, and provides: “[a] threat to cause death or
serious bodily harm, by the production of a weapon or otherwise,
so long as the actor's purpose is limited to creating an
apprehension that he will use deadly force if necessary, shall
not constitute deadly force.” Neb. Rev. Stat. § 28-1406(3)
(1985). Since the defendant claimed the knife plunged into the
victim accidentally as he turned around, he argued that he had
used non-deadly force.
The Nebraska Supreme Court held that the defendant was not
entitled to an instruction on the use of non-deadly force because
he “did something more than merely threaten to use the knife to
cause death or serious bodily harm; he actually used the knife.”
State v. Rincker, supra, 423 N.W.
2d at 441. The court applied an
assumption of the risk type analysis to conclude that the
defendant lost the right to claim use of non-deadly force in
self-defense once he actually used the weapon. Ibid.
Moreover, states without threat provisions in their deadly
force statutes distinguish between the threatened use of deadly
force and its actual use. Massachusetts, for example, which does
not have a threat provision, holds that once the gun discharges,
the defendant has employed deadly force. Commonwealth v.
Cataldo,
668 N.E.2d 762 (Mass. 1996); Commonwealth v. Klein,
363 N.E.2d 1313 (Mass. 1977). See also State v. Williams, supra,
433 A.2d 765 (finding that evidence of defendant's threatened use of
deadly force to prevent alleged theft of property was
insufficient to generate issue of "deadly force" for jury's
consideration). The New York Court of Appeals has gone further,
holding that cocking a deadly weapon constitutes a use of deadly
force. People v. Magliato,
496 N.E.2d 856, 860 (N.Y. 1986).
Like many other jurisdictions, we are also persuaded that a
critical difference exists between brandishing a gun and actually
discharging it. Although brandishing a weapon does not
constitute deadly force when its purpose is to threaten the use
of deadly force if necessary, once the weapon is discharged,
deadly force has been used. The discharge, however, does not
mean that a claim of accidental discharge is unavailable. That
remains a viable defense. What it does mean is that a defendant
is not entitled to a jury instruction on the use of non-deadly
force in self-defense, because as a matter of law, deadly force
has been used.
The uncontroverted evidence in the present case reveals that
defendant drew a loaded handgun on a city street because one or
two people walked toward him. Once defendant pulled the handgun
from his pants, the situation escalated almost immediately into
the use of deadly force. Thus, the Appellate Division erred in
finding that defendant did not use deadly force and that he was
entitled to a self-defense charge based on the non-deadly force
rules.
When deadly force is used, whether or not a self-defense
jury instruction is required depends on whether the legal
requirements have been satisfied and whether the evidentiary
record supports such a charge. N.J.S.A. 2C:3-4b. The Appellate
Division's analysis is incomplete in that it did not discuss the
legal requirements for self-defense in circumstances where
deadly force is used. The court implied, however, that if deadly
force was used, a self-defense jury instruction was not required
because "[d]efendant could have retreated, and had he done so,
this shooting may not have resulted." Moore, supra, 309 N.J.
Super. at 469 (citing N.J.S.A. 2C:3-4b(2)(b)).
A claim of self-defense is based on N.J.S.A. 2C:3-4.
Subsection a provides that "the use of force upon or toward
another person is justifiable when the actor reasonably believes
that such force is immediately necessary for the purpose of
protecting himself against the use of unlawful force by such
other person on the present occasion." N.J.S.A. 2C:3-4a. A
person using protective force may estimate the necessity of its
use without retreating. N.J.S.A. 2C:3-4b(3). Because deadly
force, rather than protective force, was used in this case, its
use "is not justifiable . . . unless the actor reasonably
believes that [it] is necessary to protect himself against death
or serious bodily harm." N.J.S.A. 2C:3-4b(2). Deadly force is
not justified if the actor "knows that he can avoid the necessity
of using such force with complete safety by retreating."
N.J.S.A. 2C:3-4b(2)(b).
Defendant sought, and the Appellate Division required, a
self-defense jury instruction based on defendant's subjective
belief that Smith wanted to take his marijuana or otherwise
attack him. At common law, a defendant claiming self-defense had
to establish that his or her belief in the necessity to use force
was reasonable. State v. Kelly,
97 N.J. 178, 199 (1984); State
v. Bess,
53 N.J. 10, 16, (1968); State v. Mellillo,
77 N.J.L. 505, 509-10 (E. & A. 1908). The drafters of the Code as proposed
in 1971 sought to change the common law. They approved the
concept of justification, of which self-defense is a part, based
on the subjective attitudes of the actor. As proposed, N.J.S.A.
2C:3-4a read:
Use of Force Justifiable For Protection of
the Person. Subject to the provisions of
this Section . . . , the use of force upon or
toward another person is justifiable when the
actor believes that such force is immediately
necessary for the purpose of protecting
himself against the use of unlawful force by
such other person on the present occasion.
[I Final Report of the New Jersey Criminal
Law Revision Commission § 2C:3-4(a), at 26
(1971) (emphasis supplied).]
However, before the Code became effective on September 1, 1979,
the proposed subjective justification provision was modified to
require an objective self-defense standard. The section as
amended remains the same today. It provides:
Use of force justifiable for protection of
the person. Subject to the provisions of
this section . . . , the use of force upon or
toward another person is justifiable when the
actor reasonably believes that such force is
immediately necessary for the purpose of
protecting himself against the use of
unlawful force by such other person on the
present occasion.
[N.J.S.A. 2C:3-4a (added by Senate Committee
amendments) (emphasis supplied).]
The statute, as amended, requires the actor's belief in the
necessity to use force not only to be held honestly, but also
that his belief be reasonable. State v. Bowens,
108 N.J. 622,
629 (1987); Grunow, supra, 102 N.J. at 141 ; Kelly, supra, 97
N.J. at 198-99; State v. Bryant,
288 N.J. Super. 27, 34-37 (App.
Div.), certif. denied,
144 N.J. 589 (1996). The objective self-defense standard emphasizes the all-or-nothing operation of
justification. That means that an honest but unreasonable belief
in the necessity to use deadly force is not a legal justification
and results in purposeful criminal liability. When defendant
requested a self-defense jury instruction, the trial court also
was obligated to examine the evidence presented by both the State
and defendant to determine whether a rational basis existed in
the evidentiary record to require the requested charge. Kelly,
supra, 97 N.J. at 200; Bryant, supra, 288 N.J. Super. at 35.
Because deadly force was used, there also must be a rational
basis in the evidence to show that defendant could not have
retreated with safety before using deadly force.
Our statutory exception to deadly force previously discussed
does not serve as a substitute or proxy for a safe retreat; nor
does it in any way deviate from or diminish the duty to retreat
where deadly force is actually employed. Where, as here, deadly
force has been used, a defendant's decision to brandish a gun
does not excuse him or her from a duty to retreat where he or she
can do so with complete safety, particularly where the
brandishing itself leads or contributes to the loss of an
opportunity to retreat. As the Supreme Judicial Court of
Massachusetts has observed in another context, "allowing a jury
to determine whether the defendant's threat of force . . . was
intended to cause death or great bodily harm preserves the
integrity of the duty to retreat by not providing a 'safe harbor'
for the escalation of violence." Cataldo, supra, 668 N.E.
2d at
766. Thus, where the gun actually is used, defendant must not
have been able to retreat safely at the time he or she initially
brandished the weapon in order to be entitled to a charge of self
defense.
Our review of the record causes us to conclude that no
rational basis existed requiring a self-defense charge. Under
the State's version of the facts, there was no scuffle; defendant
simply pulled out the gun and shot Smith. Defendant's version is
that after brandishing the gun, there was a scuffle for the gun
during which Smith was shot. There is no evidence that Smith or
any of his friends were armed. The victim merely made a comment
to defendant as he walked toward him. The incident occurred in a
public street rather than in a confined area. See State v.
Gartland,
149 N.J. 456, 475 (1997). Defendant admitted that he
was not afraid of Smith and his friends because only he was armed
with a handgun. Based on the uncontested facts, no issue existed
concerning whether defendant reasonably believed that it was
necessary to use deadly force immediately to protect himself
against death or serious bodily harm that might reasonably be
inflicted by Smith or his friends. We therefore agree with the
Appellate Division that based on the uncontroverted facts,
defendant could have retreated safely.
Even if defendant's version that a struggle ensued is
credible, when the struggle ended defendant had possession of the
gun. He discarded the gun after the shooting. Defendant did not
testify that he purposely or knowingly shot the victim during the
struggle based on any fear that the victim would seize control of
the gun and then shoot him. He contended only that an accidental
shooting occurred during the struggle. If there was a struggle,
once defendant obtained control of the gun he had a duty to
retreat since he could have done so safely without using deadly
force. Under the Code's objective standard, even if defendant
honestly believed force was necessary during the alleged
struggle, such a belief became unreasonable when he reacquired
sole possession of the handgun. We conclude that there was
neither an honest nor reasonable belief by defendant in the
necessity to use deadly force.
There is still another reason why a self-defense instruction
was inappropriate. Defendant was the aggressor. Based on
defendant's own version, he initiated the confrontation by
yelling something along the lines of "what are you looking at?"
Defendant then pulled out a gun and pointed it at Smith as he
approached. Pulling out the gun clearly escalated the conflict
into what defendant described as a struggle. Defendant cannot
claim self-defense when he was the aggressor. Bowens, supra, 108
N.J. at 628; State v. Agnesi,
92 N.J.L. 53, 56 (Sup. Ct. 1918),
aff'd,
92 N.J.L. 638 (E. & A. 1919); State v. Rivers,
252 N.J.
Super. 142, 149-50 (App. Div. 1991). Consequently, neither the
factual nor legal requirements necessary for self-defense were
satisfied in this case.
We conclude, therefore, that defendant was not entitled to
have the jury instructed on self-defense. The judgment of the
Appellate Division is reversed, and the judgment of the Law
Division is reinstated.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, and
GARIBALDI join in JUSTICE COLEMAN's opinion. JUSTICE O'HERN
filed a separate dissenting opinion in which JUSTICE STEIN joins.
SUPREME COURT OF NEW JERSEY
A-
218 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
HUSSAN MOORE,
Defendant-Respondent.
O'HERN, J., dissenting.
To afford fair trial rights to one such as defendant is an
arduous challenge. The record does not portray him as a
sympathetic figure. In all likelihood he unjustifiably shot
another young man in a street rumble. His street talk may be
distracting (such as his reference to marijuana as “weed”).
Nevertheless, his testimony contained the elements of a self-defense claim -- that he was confronted by a threat of serious
bodily harm from which he could not safely retreat. The question
is whether he is entitled to a fair trial, specifically whether a
jury should decide whether his conduct may have been justified by
principles of self-defense. Defendant requested a self-defense
charge. The trial court refused to charge self-defense on the
basis that defendant had described the shooting as accidental and
thus could not plead self-defense. That ruling was patently
erroneous under State v. Powell,
84 N.J. 305, 317 (1980), certif.
denied,
87 N.J. 332 (1981), which holds that the fact that
defenses are inconsistent does not warrant denial of a self-defense charge. Because of the trial court's error, the
Appellate Division reversed defendant's conviction and ordered a
new trial.
309 N.J. Super. 463 (1998). Making its own
assessment of the facts, the Court has reinstated the conviction.
For reasons too familiar to be repeated here, the assessment of
facts in a criminal case is for a jury, not a judge. State v.
Simon,
79 N.J. 191 (1979). I must therefore dissent.
We granted certification primarily to consider, not the grant of a new trial, but whether the Appellate Division had misunderstood a fundamental distinction between the statutory authority to “display” deadly force to repel a threat of non-serious bodily harm under N.J.S.A. 2C:3-11b, and the statutory authority to “use” deadly force under N.J.S.A. 2C:3-4b(2). The State had argued that the Appellate Division misunderstood that the “brandishing” statute is not in itself a justification for the “use” of deadly force. Justification for the use of force or deadly force must come from N.J.S.A. 2C:3-4. All that 2C:3-11b does is to except the “production” or display of a weapon to instill the fear of deadly force in someone from the definition of deadly force.See footnote 1 The flaw in the Appellate Division's opinion led it to conclude that although defendant may not have been in imminent peril of death or serious bodily harm, firing the gun under such circumstances could be justified because the initial production of the gun was a justifiable response to the threatened harm. I agree entirely with the Attorney General that unless defendant was in imminent peril of death or serious bodily harm, firing the gun was unjustified.
Judge Baime recently furnished this basic description of our statutes and cases dealing with the justification of self-defense:
The use of force against a person in self-defense is justifiable “when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force” by that person. N.J.S.A. 2C:3-4a. The defendant must harbor an actual, reasonable belief that the use of force on his own part is necessary to prevent the imminent application of unlawful force by the assailant. State v. Kelly, 97 N.J. 178, 199-200, 478 A.2d 364 (1984). The doctrine of self-defense exonerates a person from criminal liability even though his belief in the need to use force to repel an attack is later proven mistaken. Id. at 198, 478 A.2d 364. “Detached reflection cannot be demanded in the presence of an uplifted knife,” Brown v. United States, 256 U.S. 335, 343, 41 S. Ct. 501, 502, 65 L. Ed. 961, 963 (1921), and the law thus recognizes the frailties of human perception, requiring only a reasonable, and not necessarily correct, judgment. See State v. Hippelwith, 33 N.J. 300, 316-17, 164 A.2d 481 (1960); State v. Mount, 73 N.J.L. 582, 585-86, 64 A. 124 (E. & A. 1906). While it is not requisite that actual necessity exist, the justification of self-defense requires an honest belief on the part of the defendant in the need to use force. State v. Kelly, 97 N.J. at 198, 478 A.2d 364. Honesty, alone, however, does not suffice. A defendant claiming the privilege of self-defense must also establish that his belief in the need to use force was reasonable. Id. at 199, 478 A.2d 364. The reasonableness of the defendant's belief is to be determined by the jury using an objective standard of what a reasonable person would have done in defendant's position in light of the circumstances known to defendant at the time the force was used. Id. at 199-200, 478 A.2d 364.
Further, the defendant may use deadly
force in self-defense only if he “reasonably
believes that such force is necessary to
protect himself against death or serious
bodily harm.” N.J.S.A. 2C:3-4b(2). Two
additional limitations on the use of deadly
force exist. First, the defendant may not
use deadly force if he, “with the purpose of
causing death or serious bodily harm,
provoked the use of force against himself in
the same encounter.” N.J.S.A. 2C:3-4b(2)(a).
Second, the defendant may not use such force
if he “knows that he can avoid the necessity
of using such force with complete safety by
retreating. . . .” N.J.S.A. 2C:3-4b(2)(b).
Deadly force is defined as “force which the
actor uses with the purpose of causing or
which he knows to create a substantial risk
of causing death or serious bodily harm.”
N.J.S.A. 2C:3-11b. This definition
encompasses the act of “[p]urposely firing a
firearm in the direction of another person.”
Ibid.
[State v. Bryant,
288 N.J. Super. 27, 34-35
(App. Div.), certif. denied,
144 N.J. 589
(1996).]
Thus, a person who is confronted on the street by an
assailant who uses or threatens physical but non-deadly force may
defend in kind, that is, with non-deadly force, if the actor
reasonably believes that such force is immediately necessary for
self-protection. That person, however, may not pull out a gun or
other deadly weapon and use deadly force in response to a
relatively benign attack.
By misconstruing the statutory definition of deadly force,
the Appellate Division essentially held that the eventual use of
deadly force in such a situation can be justified if the actor
has initially brandished the gun or other weapon to threaten
deadly force to ward off the non-deadly assault. That is
incorrect. N.J.S.A. 2C:3-11b simply states that the threat to
use deadly force by the “production” of a weapon does not
constitute the employment of deadly force. That authority to
brandish a deadly weapon is strictly limited to creating the
apprehension that deadly force will be used. The statute draws
the line there; it does not allow the actor to cross the line and
use deadly force unless confronted with death or serious bodily
harm.
At oral argument, the Attorney General agreed that “[i]t
could be a defense to a fourth-degree pointing chargeSee footnote 2 that the
defendant felt he was in fear [not of] serious bodily harm but
merely bodily harm, and that he pulled out or displayed or
brandished a weapon to create the apprehension that he would
respond with deadly force.” The Attorney General's concern,
however, was to clarify that the “brandishing” statute does not
permit the actor to cross the line and actually fire the weapon
unless faced with imminent fear of death or serious bodily harm.
“And [he concluded] that's the key to this case.”
Ultimately, N.J.S.A. 2C:3-4 determines whether either non-deadly or deadly force is justified. The Attorney General also
acknowledged that “if the defendant were facing imminent danger
of serious bodily harm or death [from which he could not safely
retreat,] he could purposely fire the weapon.” As noted, the
State's primary concern was that the Appellate Division found
that circumstance not to be present but nevertheless concluded
that self-defense had to be charged because of the definition in
2C:3-11b, which excepts from the definition of deadly force the
threat of using deadly force.
The principles of law having been clarified, the question is whether there was evidence in the record that defendant was facing imminent danger of death or serious bodily harm from which he could not safely retreat. The Court considers only one side of the evidence. It excludes a fair consideration of defendant's evidence. All that is required for a charge of self-defense is that there be in evidence a rational basis for the charge either in the defendant's case or the State's case. The issues of justifiable use of non-deadly force and justifiable use of deadly force were clearly raised in this case.
Because there was uncontroverted evidence of a struggle for the gun, there was a rational basis to charge on the justifiable use of deadly force.
Defendant was standing alone at midnight on a street corner
when he was surrounded by five strangers. Two of the individuals
approached him and “got in his face.” He feared for his safety,
explaining that “I thought they were going to jump me.” He took
out the gun and began waving it. He said, “I was trying to get
them to back off.” Another witness corroborated his testimony.
The witness said that when defendant took out the gun and started
waving it, Smith, the victim, grabbed the gun. Once Smith
grabbed the gun and a struggle ensued, defendant was clearly
entitled to the charge on the use of deadly force. Simply
because defendant claimed that the shooting was an accident did
not mean that the jury could not have found that he had some
level of culpable intent in trying to rid himself of Smith. If
Smith succeeded in getting hold of the gun, he could have shot
defendant. A life-or-death struggle over a deadly
instrumentality clearly entitles the defendant to a charge on the
justifiable use of deadly force. People v. Bedoya,
681 N.E.2d 19, 27 (Ill. Ct. App. 1997), appeal denied,
686 N.E.2d 1165 (Ill.
1998); see also Commonwealth v. McFadden,
587 A.2d 740 (Pa.
Super. 1991) (holding that struggle for gun with estranged
husband entitled defendant to self-defense charge). In Bedoya,
the court held that the defendant's claim
that the gun fired accidentally during the
struggle [for the gun] does not eliminate
self-defense. The firing of the gun might
have been an unintended act, but, according
to [the defendant] it happened during a life
[or] death struggle. Where there is evidence
of self-defense in addition to evidence of
accident, the defendant has the right to rely
"on an accident theory as to the ultimate
injury and a self-defense theory as to his
preceding acts."
[Ibid. (citing People v. Robinson,
516 N.E.2d 1292 (Ill. Ct. App. 1987), appeal denied,
522 N.E.2d 1253 (1988).]
Contrary to the Court's assertion, defendant does not argue
that, assuming he had a reasonable fear for his life, the
struggle over the gun justified him "in using deadly force in
self-defense without any duty to first retreat, even if he could
have retreated with complete safety." Ante at ___, slip op. at
8). Defendant acknowledges that he had a duty to retreat if that
were possible, but whether he could have retreated safely is a
factual matter properly to be determined by a jury.
Under the undisputed circumstances of a struggle for a gun,
the foundation for a charge of justifiable use of deadly force
was in the evidence. The rational basis test for charging self-defense requires "more than a mere 'scintilla of evidence', [but]
it is nevertheless * * * a low threshold.” State v. Erazo,
126 N.J. 112, 123 (1991). That standard was clearly met.
There is no doubt that defendant was entitled to a self-defense instruction on the use of non-deadly force in pointing a loaded gun at the assailants.
As noted, supra (slip op. at 6), the Attorney General readily conceded this point. The Court also acknowledges, as it must, that defendant was entitled to a self-defense charge on the fourth-degree offense of pointing the gun, but limits its discussion to the "self-defense issues . . . related to the charge of second-degree aggravated assault.” Ante at ___, slip op. at 8).See footnote 3 That is an unfair treatment of the record. There is nothing in the record to sustain the conclusion that defendant was conceding that he had unjustifiably drawn and pointed a gun at his assailants. That he claimed simply to have waved it does not mean that he is precluded from claiming self-defense if the jury found that he pointed the gun.
In addition, the prosecutor argued vigorously that even if the discharge was accidental, defendant was responsible for the attack because he took out the gun without any justification. The prosecutor argued to the jury that because defendant did not have to take out the gun, whatever happened thereafter was his fault. The jury was never instructed that he could have been justified in taking out the gun. Thus, even if the jury believed defendant's version of events -- that he took out the gun because he was afraid and that the gun went off accidentally -- the jury could have improperly convicted him because the jurors believed (as the prosecutor related the facts) that his unjustified brandishing of the weapon made him responsible for everything that happened. The jury was never told otherwise. Because of the trial court's error in ruling that only an "accident" defense could be presented to the jury, the issue of a justifiable brandishing of the gun was taken away from the jury. The jury should have been instructed that it could have found that defendant was entitled to take out the gun in the first instance if he reasonably believed that such force was necessary for protection against the unlawful force of another.
In short, it is undisputed that defendant was standing alone at midnight on a side street in East Orange. After an exchange of words, two members of a group of five came within a few feet of defendant and menaced him. Whether it was reasonable to believe that he was about to be attacked by a menacing crowd is clearly a jury question under those circumstances. Defendant did not approach an unarmed victim. Five people approached him. One of them reached for defendant's gun. Defendant's role as the aggressor depends on whom the jury believes. It is clear from the facts that the evidence supported a charge on the justifiable use of both non-deadly and deadly force. There is simply no principled way of avoiding it. There is no authority for the proposition that even if one is not found to be entitled to use deadly force, that somehow disentitles the actor to an instruction on the justifiable use of non-deadly force.
The reversible error that the trial court committed was in failing to charge the jury that if it found that defendant had shot the victim because defendant was in fear of his life or serious bodily harm, the jury could then find that he acted in self-defense. In addition, the jury should also have been charged concerning the justifiable use of non-deadly force, that defendant would have been justified in brandishing the weapon as a defense to the second-degree aggravated assault charge.
We have always placed an extraordinarily high value on the importance of appropriate and proper jury charges to the right to trial by jury. "[E]rroneous instructions on matters or issues material to the jury's deliberations are presumed to be reversible error." State v. Collier, 90 N.J. 117, 122-23 (1982) (citing State v. Green, 86 N.J. 281, 291 (1981)). The right to a trial by jury includes certain intangible but real benefits to a defendant that are lost whenever the jury is induced to think incorrectly in terms of guilt. State v. Ingenito, 87 N.J. 204, 216-17 (1981). So paramount is the duty to ensure a fair trial that a jury must deliberate in accordance with correct instructions even when such instructions are not requested by counsel. Unless a chosen trial strategy dictates against it, and perhaps in some cases even when that is the case, the court ordinarily has a supervening responsibility to charge the jury concerning any version of the offense “clearly indicate[d]" by the evidence to require proper jury consideration. State v. Choice, 98 N.J. 295, 299 (1985). “This judicial obligation, to assure the jury's impartial deliberations upon the guilt of a criminal defendant based solely upon the evidence in accordance with proper and adequate instructions, is at the core of the guarantee of a fair trial.” State v. Sim