SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4709-93T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JERMAINE BRYANT,
Defendant-Appellant.
_________________________________
Argued January 30, 1996 - Decided February 27, 1996
Before Judges Michels, Baime, and Kimmelman.
On appeal from Superior Court of New
Jersey, Law Division, Essex County.
Stephen W. Kirsch, Assistant Deputy Public Defender,
argued the cause for appellant (Susan L. Reisner,
Public Defender, attorney; Mr. Kirsch, of counsel
and on the brief).
Barbara A. Rosenkrans, Assistant Essex County
Prosecutor, argued the cause for respondent
(Clifford J. Minor, Prosecutor, attorney; Ms.
Rosenkrans, of counsel and on the brief).
The opinion of the court was delivered by
BAIME, J.A.D.
Following a protracted jury trial, defendant was found guilty of murder (N.J.S.A. 2C:11-3a(1) and (2)), aggravated assault (N.J.S.A. 2C:12-1b(1)), possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4a), and possession of a rifle without a permit (N.J.S.A. 2C:39-5c(1)). The trial court sentenced defendant to life imprisonment with a thirty year
parole disqualifier on the conviction for murder, to a
consecutive ten year term with a five year parole disqualifier on
the conviction for aggravated assault, and to a concurrent five
year term on the conviction for possession of a rifle without a
permit. The trial court merged the conviction for possession of
a firearm for an unlawful purpose with the murder conviction.
Defendant was assessed the applicable penalties.
On appeal, defendant contends (1) the trial court committed
plain error in its instructions regarding self-defense, (2) the
judge's charge on possession of a firearm for an unlawful purpose
failed to apprise the jury of the right to carry a weapon for
self-protection, and (3) the sentences imposed were manifestly
excessive. We find no sound basis to disturb defendant's
convictions or the sentences imposed.
his mother, who stopped a passing police car. The police officer
told Charles to direct his nephews to leave. Believing that the
argument had been defused, the officer then departed.
Shortly after the police officer left the scene, a fistfight
erupted between Clarence Roundtree, a friend of defendant, and
the Saunders brothers. It was undisputed that the fight ended
quickly and inconclusively.
During the altercation, defendant entered his apartment and
emerged with a rifle. From the landing in front of the apartment
building, defendant fired at least one shot in the air, at which
point the gun jammed. While defendant attempted to engage the
trigger mechanism, Roundtree took the rifle from him and pointed
it at the Saunders brothers. Roundtree unsuccessfully attempted
to fire the weapon. Defendant then grabbed the rifle from
Roundtree's hands and fired at least one more shot in the air.
The State's witnesses gave sharply differing accounts
concerning what happened next. Michael Saunders testified that
he and his brother ran to their car and attempted to enter it.
While running to the car, Mitchell reached his hands into his
pants pockets to remove his car keys. As Mitchell was opening
the driver's door, defendant shot him in the chest. The bullet
pierced his heart and aorta and caused his chest cavity to fill
with blood, ultimately killing him. Upon seeing his brother
fall, Michael ran around the car in an effort to reach his
uncle's apartment. As Michael passed the car door, defendant
shot him once in the shoulder, the bullet piercing his lung.
Defendant then fled from the scene. The police were immediately
summoned, and both victims were transported to the hospital. In
a statement given in the emergency room, Michael recounted that
his brother had been running toward the defendant when he was
shot and that the two had been involved in an ongoing dispute.
Diamond Burchett, who lived next door, largely corroborated
Michael's account of the shooting, although he never saw
Roundtree with the weapon. He did state, however, that when the
gun jammed, one of the Saunders brothers remarked to defendant
that he was not "shooting nothing but blanks." Burchett also
testified that one of the Saunders brothers was moving toward
defendant when he was shot.
Mary Manigo testified that after defendant had retrieved the
gun, he fired several warning shots in the air. She claimed
that, notwithstanding these shots, the victims continued to
approach defendant while reaching into their pants pockets. In
the witness's words, the Saunders brothers "kept walking like
zombies[,] like they couldn't be touched" by bullets. According
to Manigo, defendant shot Michael first in the shoulder, and then
Roundtree grabbed the gun and killed Mitchell.
of the relationship between the justifications of self-defense
and defense of others, and (3) foreclosed the jury from
considering self-defense in the course of determining defendant's
guilt or innocence of the substantive charges. Our examination
of the trial court's instructions discloses no error capable of
producing an unjust result. R. 2:10-2.
correct, judgment. See State v. Hipplewith,
33 N.J. 300, 316-17
(1960); State v. Mount,
73 N.J.L. 582, 585-86 (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. 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. 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.
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.
A defendant is justified in using force to defend another
person when:
(1) The [defendant] would be justified under section 2C:3-4
in using such force to protect himself against the injury he
believes to be threatened to the person whom he seeks to
protect; and
(2) Under the circumstances as the [defendant] reasonably
believes them to be, the person whom he seeks to protect
would be justified in using such protective force; and
(3) The [defendant] reasonably believes that his
intervention is necessary for the protection of such other
person.
[N.J.S.A. 2C:3-5a]. Whether the person the defendant seeks to
protect was actually the aggressor in the situation is irrelevant
if unknown to the defendant. The defense is valid if the
defendant reasonably believed both that the person he sought to
aid was unlawfully attacked and that the force used was necessary
to protect that person from the attack. State v. Martinez,
229 N.J.Super. 593, 600 (App. Div. 1989); see also State v. Fair,
45 N.J. 77, 92-93 (1965). Again, the reasonableness of the
defendant's belief is judged from the perspective of a reasonable
person in defendant's position under the circumstances existing
at the time he intervened. See State v. Holmes,
208 N.J.Super. 480, 486-88 (App. Div. 1986).
The trial court must charge the jury on self-defense and
defense of another if there exists evidence in either the State's
or the defendant's case sufficient to provide a "rational basis"
for their applicability. State v. Martinez, 229 N.J.Super. at
600; see also State v. Kelly, 97 N.J. at 200. If such a rational
basis exists, then the State is required to prove that the
defendant did not act in either self-defense or defense of
another beyond a reasonable doubt. State v. Kelly, 97 N.J. at
200; State v. Martinez, 229 N.J.Super. at 600.
The trial court's instructions in the present case fully
comported with these principles, as defendant fairly concedes.
Indeed, the instructions as given tracked the model charge.
Defendant argues, however, that an instruction that is
appropriate in one case may not be sufficient for another, and
that the trial court's charge here was not molded in such a way
as to properly explain the law to the jury in the context of the
material facts of the case. State v. Concepcion,
111 N.J. 373,
379 (1988).
harm" even if his use of deadly force is disproportionate to the
threat leveled against him. As we understand defendant's
contention, he asserts that a person who perceives himself
threatened with death or serious bodily harm may use deadly force
even though other means are readily available to repel the attack
upon him. He thus claims that the trial court erred by
introducing the concept of "proportionality" in the context of
the use of deadly force.
We question the thesis that a person may use deadly force
whenever he perceives himself threatened with death or serious
bodily harm where means short of the use of such force are
readily at hand to repel such a threat. "Self-defense is
measured against necessity." State v. Abbott,
36 N.J. 63, 69
(1961). A cogent argument can be made that deadly force may not
be used where there is no need for its use. Moreover,
defendant's argument suffers from some degree of circularity. As
we have stressed, the right to use deadly force rests on the
defendant's reasonable belief in the need to use such force.
Where a lesser degree of force would have sufficed to repel an
attack, it seems incongruous to suggest that the actor reasonably
believed he was threatened with death or serious bodily harm. In
other words, if the circumstances of the attack indicate that the
defendant could not reasonably have believed that he needed to
employ the amount of force used, then he cannot invoke the
defense. See Cannel, New Jersey Criminal Code Annotated, comment
9 on N.J.S.A. 2C:3-4 (1995).
But even if one could conjure up facts where the deadly
force legitimately used by a defendant threatened with death or
serious bodily harm might be considered "disproportionate" in its
intensity, we would not reverse defendant's conviction. The
instructions, read in their entirety, fairly conveyed the
principle that the defendant was to be acquitted if the jury
determined he used deadly force in the reasonable belief that
such force was necessary to protect himself against death or
serious bodily harm at the hands of the Saunders brothers.
Defendant neither submitted a request to charge nor interposed an
objection to the court's instructions. We are entirely satisfied
that defendant was not prejudiced by the instructions given.
instruction was a correct statement of the law, defendant claims
that it was prejudicial in the context of the facts presented.
Specifically, he asserts that his initial use of the rifle was
justified by the need to protect Roundtree, but that the jury,
under the instructions as given, could have considered his firing
warning shots as "provocation," thus disqualifying him from
asserting the justification of self-defense.
We reject this contention. If, as defendant claims, his
initial brandishing and firing of the rifle was necessary to
protect Roundtree from attack, the jury would have considered
this conduct as privileged under the trial court's charge on the
justification of defense of others. "A threat to cause death or
serious bodily harm, by the production of a weapon or otherwise"
is justified "so long as the actor's purpose is limited to
creating an apprehension" that such force will be used "if
necessary." N.J.S.A. 2C:3-11b. It has thus been said that our
statutes "permit[] an individual to display or brandish a firearm
or other weapon when the need for self-protection [or protection
of another] is reasonably perceived and he merely intends to
create an 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).
While the trial court's charge on the defense of others did not
specifically refer to these principles, it clearly conveyed the
idea that, if defendant's initial use of the rifle to fire
warning shots was perceived by defendant as reasonably necessary
to protect Roundtree, such conduct was privileged and could not
result in criminal liability. Moreover, if, as defendant now
contends, he fired warning shots in order to protect Roundtree,
then his use of the weapon could not have been "with the purpose
of causing death or serious bodily harm," a precondition for a
finding of provocation under N.J.S.A. 2C:3-4b(2)(a). Under the
charge as given, the jury was told that provocation would
disqualify the defendant from invoking self-defense only if the
defendant acted "with the purpose of causing death or serious
bodily harm to another." This charge fairly conveyed the
applicable legal principle.See footnote 1
Although in retrospect perhaps it would have been preferable
had the trial court explicitly told the jury that conduct found
to be reasonably necessary to protect a third person could not be
considered provocation precluding the actor from relying on the
justification of self-defense, we are satisfied that defendant
was not prejudiced. Defense counsel's failure to submit a
request to charge or to interpose an objection signifies that he
was satisfied with the instructions as given. We are convinced
that the jury was not misled.
was to acquit defendant if it harbored a reasonable doubt that
the killing was justified by self-defense or defense of others.
We perceive no error - far less plain error. Cf. State v.
Harris,
141 N.J. 525, 556 (1995)
Footnote: 1 Legal commentators have suggested that the standard spelled out in N.J.S.A. 2C:3-4b(2)(a), which provides that the use of deadly force is not justifiable if the defendant, "with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter," differs from the "without fault" standard described in several of our decisions. State v. Rivers, 252 N.J. Super. at 149. The legislative history reveals an intent on the part of the Criminal Code's drafters to adopt a rule that involves a "narrower forfeiture of the privilege" than the "without fault" standard. See Cannel, New Jersey Criminal Code Annotated, comment 11 on N.J.S.A. 2C:3-4 (1995) (quoting 1971 Commentary, par. 10); but see State v. Bowens, 108 N.J. 622, 628 (1987) ("An aggressor faced even with the reasonable belief in the necessity to kill `cannot have the defense of self-defense, for that requires both freedom from fault in the inception of the difficulty and the entertainment of beliefs which are reasonable.'") (quoting W. LaFave and A. Scott, Jr., Handbook on Criminal Law 583 (1972)); State v. Rivers, 252 N.J.Super. at 149-50 (citing the statutory language quoted above). The Code Commentary indicates that a defendant is not necessarily disqualified from advancing the justification of self-defense merely because he provoked the attack. Cannel, New Jersey Criminal Code Annotated, comment 11 on N.J.S.A. 2C:3-4 (1995) (quoting 1971 Commentary, par 10). The defendant is disqualified from raising self defense only if he went "into the fight with a positive purpose to seriously injure or kill the victim," thus provoking the attack upon him. Ibid. In light of the fact that the court below instructed the jury in accordance with the more restrictive statutory language, there is
no need for an extended discussion of the differing implications of the two rules or for a determination of which one correctly expresses the state of the law. We merely note that the shorthand references to the "without fault" standard that appear in our earlier decisions must be considered within the context of the statutory language of N.J.S.A. 2C:3-4b(2)(a).