APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4866-04T4
STATE OF NEW JERSEY,
March 29, 2007
APPELLATE DIVISION
Plaintiff-Respondent,
v.
WILBERTO RODRIGUEZ,
Defendant-Appellant.
_____________________________
March 29, 2007
Argued February 26, 2007 - Decided
Before Judges S.L. Reisner, Seltzer and King.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County,
Indictment No. 1194-07-03.
Michael B. Jones, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne
Smith Segars, Public Defender, attorney; Mr. Jones, of counsel and on the brief).
Lisa DeMartini, Assistant Prosecutor, argued the cause for respondent (Edward J. De Fazio,
Hudson County Prosecutor, attorney; Leo Hernandez, Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
S.L. REISNER, J.A.D
Defendant, Wilberto Rodriguez, appeals from his conviction for reckless manslaughter, N.J.S.A. 2C:11-4b(1), possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and unlawful possession of
a weapon, N.J.S.A. 2C:39-5d, as well as from the fifteen-year sentence imposed.
Because the trial court erroneously instructed the jury that they should not consider
self-defense with respect to manslaughter and failed to charge the jury on the
issue of defendant's honest but mistaken belief in the need to act in
self-defense as it related to the weapons offenses, we reverse the convictions and
remand for re-trial.
Self-defense was the central issue at trial. There is no dispute that defendant was in the W.L. Mini-Market in Jersey City, attempting to sell two car radios to the store's employees and customers. Anthony Hobbs entered the store to buy pantyhose for his girlfriend. Defendant asked Hobbs if he wanted to buy the radios. Hobbs told defendant that he was not interested in buying the radios but if he wanted them, he would beat up defendant and take them. According to at least one eyewitness, Hobbs then threatened to "kick [defendant's] ass" and told defendant to come outside. Hobbs left and defendant remained in the store.
A few minutes later, Hobbs came back in the store and asked an employee, Pedro Castro, if Castro knew defendant. Hobbs then immediately began an unprovoked attack on defendant. Castro testified that Hobbs punched defendant in the head. Another witness testified that Hobbs forcefully grabbed defendant by the shoulder and tried to drag him out of the store. Defendant responded by stabbing Hobbs with a folding knife. The knife was described as "small" and as about six inches long in total. It was never recovered. See footnote 1 All of the witnesses agreed that Hobbs, who was twenty-three years old, was the aggressor and that he was considerably taller than defendant, who was a small man in his late thirties.
Hobbs ran in a circle around to the back of the store and then toward the front of the store where he ran out the door. He ran a block to the home he shared with his girlfriend, where he collapsed. He died shortly thereafter in the hospital. According to the State's medical expert, decedent suffered a stab wound two to four inches deep which severed the right coronary artery and punctured the heart. Death was caused by an accumulation of blood within the sac surrounding the heart, which eventually caused the heart to stop beating. The expert opined that a person with that type of wound would not die immediately and would still be able to run as Hobbs did.
Defendant remained in the store until a regular customer drove him away from the scene at the request of the store manager, who was concerned that Hobbs would return to continue his attack on defendant. No one who witnessed the attack believed that Hobbs was seriously injured.
Although defendant did not testify, the State introduced his tape recorded confession, in which he described Hobbs' threat to wait outside the store for him, take the radios from him and beat him up. Defendant "[t]old [Hobbs] leave me alone. I don't want no problems." He stayed in the store when Hobbs left, but Hobbs came back into the store and attacked him. Defendant insisted that he had acted in self-defense as Hobbs, who towered over him, was attempting to beat and rob him. Defendant stated that he "hit" Hobbs with the knife but did not realize he had "stuck" Hobbs. The transcript of his confession indicates that defendant was crying as he insisted that he "didn't mean to do this."
Officer D'Angelo, who took defendant's statement, confirmed that defendant was emotional but "quite straightforward" in his demeanor. He was asked on cross-examination: "Did it sound or seem to you as though [defendant's] answers were contrived or purposefully designed to mislead?" D'Angelo answered "[n]o."
The only witness who addressed the issue of defendant's possible avenue of escape from Hobbs testified that there was only one way out of the store, through the front door. He indicated that there was an emergency exit at the back, but that it only worked in emergencies. It was not clear from his testimony whether it was locked. There was no testimony that defendant knew about the emergency exit, although there was testimony that defendant had been in the store on five or six occasions.
Defendant raises the following issues on appeal:
POINT I: THE JUDGE'S CHARGE ON SELF-DEFENSE AS TO THE KILLING WAS CONFUSING AND INACCURATE AND DENIED THE DEFENDANT'S RIGHT TO A FAIR TRIAL. (Partially Raised Below).
A. The Judge's Charge Failed To Relate Self-Defense To The Lesser Included Offenses And Repeatedly Asserted That Self-Defense Had No Bearing On The Crimes Other Than Murder.
B. The Judge Improperly Included Matters In The Charge For Which There Was
No Evidential Support.
C. This Court Should Hold That, As A Matter Of Law, When A
Person Reasonably Believes That He Or She Is Threatened With Sexual Assault Or
Robbery, That The Fear Of Serious Bodily Injury Is Established And There Is
No duty To Consider Retreat Before Employing Deadly Force.
POINT II: THE JUDGE ERRED BY ALLOWING THE PROSECUTOR TO INTRODUCE A MUG
SHOT OF THE DEFENDANT BECAUSE IDENTIFICATION WAS NOT AN ISSUE IN THE CASE.
(Not Raised Below).
POINT III: THE JUDGE'S CHARGE ON UNLAWFUL POSSESSION OF A WEAPON AND POSSESSION
OF A WEAPON FOR UNLAWFUL PURPOSES WERE IMPROPER UNDER STATE V. WILLIAMS, AND
DEFENDANT'S CONVICTIONS ON COUNT TWO AND THREE MUST BE REVERSED AND REMANDED. (Not
Raised Below).
POINT IV: THE IMPOSITION OF A LENGTHY EXTENDED TERM UNDER THESE CIRCUMSTANCES WAS
MANIFESTLY EXCESSIVE.
A. The Court Ignored The Standards Established In State v. Dunbar And Imposed
The Extended Term Sentence Without Properly Following The Dictates Of Dunbar.
B. The Defendant's Sixth Amendment Right To Have A Jury Determine All Of
The Elements Of The Crime Was Violated When He Was Sentenced To An
Extended Term Based Upon The Trial Court's Implicit Fact Finding That There Was
A Need To Protect The Public. (Not Raised Below).
We address the self-defense issue first. We consider defendant's appellate objections to the
jury charge under the plain error standard, because defense counsel did not object
to the charge at trial. R. 1:7-2; R. 2:10-2. Nonetheless, we also bear
in mind that accurate jury instructions are essential to a defendant's right to
a fair trial. State v. Grunow,
102 N.J. 133, 148-49 (1986). In this
case we are persuaded that errors in the jury charge deprived defendant of
a fair trial and may have caused the jury to find him guilty
when they might have acquitted him if properly charged. See State v. Macon,
57 N.J. 325, 336 (1971).
In order to understand our conclusion that the jury charge constituted prejudicial error,
it is necessary to review what the judge told the jury about the
offenses of murder and manslaughter and how self-defense applied or did not apply
to those charges. At the beginning of his instructions, the judge explained to
the jury that murder required the State to prove that defendant purposely caused
"death or serious bodily injury resulting in death, or knowingly caus[ed] death or
serious bodily injury resulting in death." He also told them that, as to
the murder charge, the State had the burden to prove defendant did not
act in self-defense.
So when I instruct you in self-defense, we call it justification, you may
consider that when you consider the murder charge. Because [murder's] got to be
a purposeful state of mind or a knowing state of mind. If the
State hasn't proved a purpose, they can't prove murder. If they haven't proved
a knowing state of mind, they can't prove murder. If they haven't proven
that he didn't act in self-defense, then he's found not guilty.
The judge then instructed the jury concerning manslaughter, telling them that "as to
self-defense, one can only act in self-defense as to a purposeful or knowing
state of mind in causing death or serious bodily injury resulting in death."
Therefore, he charged them that "self-defense is not an element that the State
must prove beyond a reasonable doubt in the reckless [manslaughter] charge, it's only
an element in the purposeful or knowing murder charge."
The verdict sheet did not specifically ask the jury to determine whether defendant
acted in self-defense. Question one asked the jury to decide if defendant was:
"(a) NOT GUILTY of MURDER or PASSION/PROVOCATION MANSLAUGHTER (b) GUILTY of PASSION/PROVOCATION MANSLAUGHTER
or (c) GUILTY of MURDER and NOT acting in SELF DEFENSE." The remaining
questions concerning aggravated manslaughter, reckless manslaughter and weapons charges did not mention self-defense.
The jury checked question 1(a), finding defendant not guilty of murder or passion/provocation
manslaughter. They found him not guilty of aggravated manslaughter, but guilty of reckless
manslaughter.
The jury charge, together with the verdict sheet, created the possibility that the
jury might have found defendant not guilty of murder without ever considering his
claim of self-defense. They might have acquitted him of murder because they believed
defendant's statement to the police that he "didn't mean" to cause Hobbs death
or serious bodily injury. The charge then required them to deliberate on the
aggravated and reckless manslaughter charges without considering self-defense, because the judge told them
repeatedly that self-defense did not apply to those charges.
During deliberations, the jury asked a series of questions from which we infer
that they were focused on the issue of self-defense and its relationship to
the manslaughter charges. On December 8, 2004, they sent out several questions including
the following: "Can self-defense nullify passion/provocation manslaughter, can self-defense nullify all charges?" The
judge construed the question as directed only at passion/provocation manslaughter and, accordingly, re-read
the charge on self-defense and explained that lack of self-defense was an element
of murder but not of passion/provocation manslaughter. In re-charging the jury, however, he
again reminded them "[n]ow, remember, only in this murder charge will you hear
the element of self-defense, not in passion/provocation or the reckless charges." He also
stated that "[s]elf-defense is only an element as to purposeful knowing murder that
I've just defined." In answering the question as to whether self-defense could nullify all
charges, the judge answered:
Yes. If there's a finding that the person acts in self-defense as to
that original murder charge, then he's not guilty of all charges, because he
acted in self-defense. However, if, for example, you're deliberating reckless manslaughter, self-defense is
not an element that they have to prove. So if you find .
. . that he did act in self-defense, he's not guilty, because he
acted in self-defense justification as to murder. Therefore you need not render a
verdict as to any other charge except for the weapons charges.
. . . [L]ikewise, if you find that he's guilty of murder, and
did not act in self-defense, then you find he's guilty of murder. If
you find that he did not act in self-defense, or did not purposely
or knowingly act, then he's not guilty [of murder].
[(Emphasis added).]
Reasonable jurors could easily have understood the above language as a direction that
self-defense only applied to murder, and that if they found defendant not guilty
of murder on grounds other than self-defense, they were not then to consider
self-defense with respect to any of the other homicide charges. The jurors' evident
confusion appeared in their question on the next day, when they asked for
"a written statement of the law that applies to this case. If not,
may we take notes during explanation." When the judge asked the jury for
a more specific question, they asked again to be charged on self-defense. This
time, the judge charged them that
self-defense is an element of purposeful or knowing murder that the State must
prove that the defendant didn't act in self-defense, as opposed to passion/provocation manslaughter
or murder.
. . . If one is found to be acting in self-defense, meaning
the State did not prove that they didn't act in self-defense, that is
a complete exoneration, there's a finding of not guilty, rather, as to that
charge, and then as to all charges relative to any homicide charges that
you're considering. . . .
So the State has to prove the defendant guilty beyond a reasonable doubt
of murder, and prove that the defendant didn't act in self-defense. . .
. Because if the State doesn't prove that the defendant did not act
in self-defense you need not deliberate as to any other charge."
[(Emphasis added).]
While this charge came close to being correct, the judge did not tell
the jury what to do with the self-defense issue if they concluded that
the State did not otherwise prove defendant guilty of murder.
The jury then asked to be charged on the difference between reckless manslaughter
and aggravated manslaughter. In response, the judge again told them that they could
not consider self-defense with respect to those charges.
Now, when we deal with recklessness, we are not dealing with the murder
charges of purposeful or knowing . . . or self-defense . . .
.
After this instruction, defense counsel pointed out that the verdict sheet did not
directly give the jury the opportunity to make a finding as to self-defense.
The judge refused to modify the verdict sheet to address that issue.
On the following day of deliberations, the jury asked for, and received, a
recharge on the weapons offenses. They were instructed that, as to both charges,
the State had to prove that defendant was not acting in self-defense.
The Legislature has defined self-defense as follows:
Subject to the provisions of this section and of section 2C:3-9, 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.]
However, "[t]he use of deadly force is not justifiable . . . unless
the actor reasonably believes that such force is necessary to protect himself against
death or serious bodily harm." N.J.S.A. 2C:3-4b(2). "[N]or is it justifiable if .
. . [t]he 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).
In State v. Kelly,
97 N.J. 178 (1984), the Supreme Court recognized the
applicability of self-defense to a charge of reckless manslaughter. Id. at 202-04. The
Court also specifically rejected the State's argument that "self-defense was not available as
a defense" to reckless manslaughter. Id. at 203 n.12. In State v. Ciuffreda,
127 N.J. 73, 81-82 (1992), the Supreme Court likewise inferentially recognized that self-defense
applied to manslaughter ("Here, defendant had notice before his trial began that he
might be charged with passion/provocation manslaughter. His self-defense posture applied as much to
that charge as it did to aggravated manslaughter and reckless manslaughter." Ibid.). The
Model Jury Charge (Criminal), § 2C:3-4 does not indicate that self-defense may only be
charged in connection with murder; to the contrary it gives as an example
that defendant is charged with "homicide."
The State's position, that self-defense cannot negate reckless manslaughter, is based on a
misreading of cases addressing imperfect self-defense. In State v. Bowens,
108 N.J. 622
(1987), the Supreme Court addressed the issue of imperfect self-defense, i.e., a situation
in which a defendant commits a homicide due to "his honest, if not
reasonable, belief in the necessity to use force." Id. at 636. See N.J.S.A.
2C:3-9a. In Bowens, the Court held that imperfect self-defense is not a justification
defense, as to which a jury must be charged in the way a
jury must be charged as to self-defense. Bowens, supra, 108 N.J. at 626.
See State v. Coyle,
119 N.J. 194, 228 (1990). Rather, evidence of such
a mistaken but honest belief may bear "upon the question whether the State
had proven that [defendant] acted purposely or knowingly" with "the conscious object or
design to kill." Bowens, supra, 108 N.J. at 636-37. Thus, a defendant's evidence
of imperfect self-defense, if believed, may result in a verdict of manslaughter rather
than murder, because such evidence could permit the jury to conclude that defendant
acted recklessly rather than knowingly or purposely. That is a totally different issue,
however, from whether "complete" self-defense can exonerate a defendant of all homicide charges.
Clearly it can, and Bowens did not hold that a jury should not
be charged as to self-defense in connection with a charge of manslaughter.
In State v. Pridgen,
245 N.J. Super. 239 (App. Div.), certif. denied,
126 N.J. 327 (1991), we held that "instructions on imperfect self-defense, to the extent
authorized in State v. Bowens, should not be given with respect to the
crimes of aggravated manslaughter or reckless manslaughter." Id. at 248 (emphasis added). That
is so because imperfect self-defense conduct is unreasonable conduct, which equates with recklessness,
and therefore is not a defense to manslaughter. Pridgen does not stand for
the proposition that self-defense is not a defense to manslaughter. In fact, in
Pridgen, we noted that "the trial judge charged the jury on murder, aggravated
manslaughter, reckless manslaughter, and self-defense." Ibid.
In State v. Colon,
298 N.J. Super. 569 (App. Div.), certif. denied,
150 N.J. 27 (1997), we considered, under the plain error standard, the propriety of
a charge that "the defense of others charge did not apply to the
recklessness counts." Id. at 576. We noted that prior cases, including Kelly, supra,
had mentioned "charging self-defense as to reckless counts" but had provided little analysis
on the issue. Id. at 577. We concluded that "the [self-defense] charge should
have been given" with respect to reckless manslaughter, but we also concluded that
the failure to give the charge was harmless error. Id. at 578-79.
In its brief, the State contends that
[w]hen seeking conviction for reckless manslaughter, the [S]tate is not required to prove
a knowing and purposeful mindset, but only that the acts were not justified.
The [S]tate is therefore not required to disprove self-defense justification, as it would
if such justification were raised as an affirmative defense to a purposeful and
knowing crime.
The State's approach, however, begins by assuming the conclusion that defendant committed reckless
manslaughter, a crime requiring the State to prove defendant's "gross deviation" from reasonable
conduct in the situation. N.J.S.A. 2C:2-2b(3). The State then asks, reasoning backward, whether
self-defense (which requires a reasonable intent to defend, not reckless conduct) could excuse
defendant. This approach is logically erroneous. Under the Criminal Code, "[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. The same conduct on which
a jury could base a finding of reckless manslaughter could also support a
finding of self-defense, depending on whether defendant acted on a reasonable belief in
the necessity for the force employed. This case is a perfect example.
It is readily inferrable from defendant's statement to the police that he "hit"
Hobbs with the knife, not intending to kill or seriously injure him but
only intending to make Hobbs leave him alone. Absent the justification of self-defense,
defendant's statement was a confession to manslaughter, because he acted recklessly but with
no intent to kill or seriously injure Hobbs. On the other hand, if
the jury believed that defendant acted to save himself from an imminent threat
from Hobbs of death or serious injury, and that defendant could not retreat
in complete safety, defendant's conduct constituted self-defense and he should have been acquitted.
Defendant was therefore entitled to a self-defense charge as to manslaughter as well
as murder, and the trial court's repeated instruction to the jury that self-defense
did not apply to manslaughter was prejudicial error.
State v. Moore,
158 N.J. 292 (1999), which the State cites, does not
require a different result here. The issue in Moore was "whether the jury
should have been instructed on non-deadly force self-defense or deadly force self-defense" to
a charge of second-degree aggravated assault. Id. at 296. In Moore, the defendant
unjustifiably brandished a loaded gun at a group of people who were approaching
him. Id. at 297. A fight broke out, during which the victim grabbed
the gun and the defendant shot him. Id. at 297-98. The defendant's primary
claim at trial was that the shooting was an accident. Id. at 298.
However, he contended that the trial judge should also have charged the jury
as to self-defense, not based on the defendant's reasons for brandishing the gun
but based on the subsequent struggle over the weapon. Ibid.
The Court held that once a defendant recklessly brandishes a gun, he cannot
claim justification under "the threat provision of N.J.S.A. 2C:3-11b" after the gun discharges.
See footnote 2
Id. at 303. Further, he cannot claim self-defense "under the recklessly causing serious
bodily injury alternative theory of second-degree aggravated assault." Ibid. Taken in context, the
Court's statement in the same paragraph, that "[t]he Code's justification defenses are not
available in a prosecution where recklessness or negligence suffices to establish the requisite
mental element," is dicta. Ibid. The Court's holding is consistent with our conclusion
here, because the Court in Moore was addressing a defendant's conduct that by
definition was reckless. By contrast, the issue for the jury in this case
is whether defendant's conduct was reckless or whether it was self-defense. Moreover, the
result in Moore was heavily influenced by the fact that defendant was using
a firearm, id. at 306-7, and unlike this case, "no rational basis existed
requiring a self-defense charge." Id. at 310.
Although we agree that there were prejudicial errors in the jury instructions, we
do not agree with defendant's further contentions that the trial judge erred in
instructing the jury as to defendant's duty to retreat if he could do
so with complete safety. N.J.S.A. 2C:3-4b(2)(b). While the State's case on this issue
was marginal, it was sufficient to create a jury issue. After the stabbing,
Hobbs retreated from defendant by running around the various aisles and counters in
the store and then running out the front door. The jury might have
concluded that defendant could have done the same thing.
We find no merit in defendant's contention that he had no duty to
retreat in the face of a threatened robbery. The Model Jury Charge on
self-defense includes, where appropriate, an explanation that sexual assault is a form of
serious bodily injury, the threat of which would justify the use of deadly
force in self-defense. Model Jury Charge (Criminal), § 2C:3-4. Unlike sexual assault, robbery itself
is not a form of physical injury, and not every robbery presents an
immediate threat of serious bodily injury or death. See N.J.S.A. 2C:15-1b. Although Hobbs
may have been trying to rob defendant, the issue for purposes of self-defense
is whether Hobbs' actions presented defendant with an immediate threat of serious bodily
injury or death.
Finally, we agree with defendant that the jury charge concerning the weapons offenses
was fatally flawed, because it omitted the following portion of the Model Charge:
if defendant honestly believed that (he/she) needed to use a (name weapon) to
protect [himself], the law does not require that this belief be reasonable. In
other words, if defendant had an honest though unreasonable belief that he/she needed
to use the weapon to protect [himself], this negates the purposeful mental state
required for the offense.
[Model Jury Charge (Criminal), § 2C:39-4d.]
We consider this issue under the plain error standard, since it was not
raised below. R. 2:10-2.
In State v. Williams,
168 N.J. 323 (2001), the Court held that a
defendant charged with possession of a weapon for an unlawful purpose "may not
be deprived of the opportunity to assert a mistaken belief that could negate
the mental state required to convict." Id. at 333. Therefore, defendant Williams, charged
with possession of a weapon for an unlawful purpose, was entitled to present
in defense proof that he possessed the weapon for the purpose of defending
his wife, even if he was mistaken about the need to use the
weapon to defend her. Id. at 334. The Court found that the failure
to instruct the jury on this issue was prejudicial error, noting the particular
"potential for confusion" when a defendant claims self-defense as a "justification defense" to
aggravated assault, but also claims that he possessed a weapon for purposes of
self-defense. Id. at 338-39. The jury may "improperly import[ ] the reasonableness requirement
from the justification defense to the determination of whether [defendant] had the requisite
state of mind to be convicted under N.J.S.A. 2C:39-4a [unlawful weapons possession.]" Id.
at 338. "By 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 339.
We conclude that the absence of the appropriate charge was prejudicial error with
respect to the convictions on both weapons charges. As the trial judge properly
charged the jury, self-defense would negate defendant's guilt on the charges of possession
of the knife for an unlawful purpose, N.J.S.A. 2C:39-4d, and unlawful possession of
the knife, N.J.S.A. 2C:39-5d. The latter charge required the State to prove that
defendant knowingly possessed the knife "under circumstances not manifestly appropriate for such lawful
uses as it may have." Ibid. The weapon in question was a folding
knife which might be entirely appropriate to possess, and therefore defendant's guilt turned
on why he possessed the knife. As the Model Charge indicates:
You may consider factors such as the surrounding circumstances; . . . the
time, place and actions of the defendant when it was found in his/her
possession to determine whether or not the object was manifestly appropriate for its
lawful use.
[Model Jury Charge (Criminal), § 2C:39-5d; N.J.S.A. 2C:39-5d.]
Reversed and remanded.
Footnote: 1
At trial the prosecutor elicited certain evidence that was irrelevant or unnecessary. She
presented testimony from a police witness concerning a large kitchen knife that police
found eight blocks from the store, encrusted with old debris. She also had
the officer show the knife to the jury. After the prosecutor conceded that
this could not possibly have been the weapon defendant used, the judge strongly
instructed the jury to disregard the evidence.
The prosecutor also had a police witness testify concerning a photograph of defendant,
redacted to cover up information identifying it as a mug shot, that one
of the eyewitnesses identified during the investigation. The photo was later introduced into
evidence, without defense objection, although there was no issue as to defendant's identity
or as to his presence at the scene of the stabbing. The judge
properly charged the jury that the photo was not evidence that defendant had
ever been arrested or convicted of a crime and that it could have
been from a driver's license or other application. Defendant's appellate arguments concerning the
photograph do not merit further discussion in a written opinion. R. 2:11-3(e)(2).
Footnote: 2
"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, does
not constitute deadly force." N.J.S.A. 2C:3-11b.
A-