(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).
STATE OF NEW JERSEY V. DEMETRIUS M. DIAZ (A-57-95)
Argued November 27, 1995 -- Decided July 3, 1996
COLEMAN, J., writing for a unanimous Court.
The issue on appeal is whether a conviction for possession of a firearm for an unlawful purpose
should merge with a conviction for passion/provocation manslaughter when the trial court did not instruct
the jury with respect to an unlawful purpose that was broader than, and separate from, using the firearm to
commit the homicide.
Demetrius Diaz injured his hand in a brawl. A few days later, Gregory Ricky Gordon bumped
Diaz's injured hand. Diaz believed that Gordon bumped his hand intentionally. After this encounter with
Gordon, Diaz left the area for less than one-half hour and returned with two friends, one of whom was
carrying a handgun. Diaz approached Gordon and warned that he had gun. The two exchanged angry words
and began to fight. Diaz eventually retrieved the gun from his friend and shot Gordon five times, killing
Gordon. Diaz fled the scene and was chased by Gordon's cousin, Jeremiah German. As German followed
Diaz, Diaz turned and threatened him with the gun.
Diaz was indicted for purposeful or knowing murder and possession of a firearm for an unlawful
purpose. A jury found Diaz guilty of second-degree passion/provocation manslaughter and second-degree
possession of a firearm for an unlawful purpose. At sentencing, defense counsel argued that the possession
of a weapon conviction should merge with the passion/provocation manslaughter conviction because Diaz
possessed and used the gun solely for the purpose of shooting Gordon. The State argued against merger,
asserting that Diaz constructively possessed the gun when threatening Gordon prior to the shooting, and that
Diaz used the gun for the purposes of shooting Gordon and then threatening German.
The trial court declined to merge the offenses, finding that the unlawful purpose was separate and
distinct from the manslaughter. Diaz was sentenced on the manslaughter conviction to a custodial term of
ten years with five years of parole ineligibility and on the possessory offense to a consecutive term of seven-and-one-half years with three-and-one-quarter years of parole ineligibility.
On appeal, the Appellate Division reversed and ordered merger. The court found that the evidence
was sufficient to support a conviction that Diaz constructively possessed the gun when threatening Gordon
and when he used the gun to ward off German as he fled from the scene after the shooting. The Appellate
Division concluded, nonetheless, that merger was required because the trial court failed to instruct the jury
properly with respect to determining whether Diaz possessed the weapon for a broader unlawful purpose
than shooting Gordon.
The Supreme Court granted the State's petition for certification to review the propriety of the
merger.
HELD: Failure to use a special verdict is not dispositive of the merger issue. Merger is not required when
the evidence submitted to the jury is sufficient to permit it to determine that defendant possessed
the firearm for a purpose independent of the greater offense and when the jury has been properly
instructed and those instructions do not restrict the jury's consideration of the unlawful purpose only
to the commission of the greater offense for which defendant was found guilty.
1. The focus of the charge of possession of a firearm for an unlawful purpose is on defendant's purpose in
possessing the firearm. When the only unlawful purpose in possessing the gun is to use it to commit the
substantive offense, merger is required. Where the unlawful purpose in possessing the firearm is unrelated
to the commission of the substantive offense, merger is not required. (pp. 5-8)
2. In cases where the jury's verdict is ambiguous in regard to whether the jury found a broader purpose, the
approach to merger set forth in State v. Williams is adopted. Under the Williams standard: 1) the defendant
must have been charged in the indictment with possession of the weapon with a broader unlawful purpose,
either generally or specifically, than using the weapon to kill or assault the victim of the greater offense; 2)
the evidence must support a finding that the defendant had a broader unlawful purpose; 3) the judge must
have instructed the jury of the difference between possession with a specific unlawful purpose of using the
weapon against the victim of the greater offense and a broader unlawful purpose; and 4) the verdict must
express the jury's conclusion that the defendant had a broader unlawful purpose. (pp. 9-11)
3. In this case, the first two requirements of the Williams standards were satisfied. The indictment against
Diaz did not limit the victim of the possessory offense only to Gordon. Moreover, the evidence revealed that
Diaz used the gun to ensure his flight from the scene while German attempted to stop him. Had the jury
received a proper instruction, the evidence was sufficient to permit it to find that Diaz was in constructive
possession of the gun when he threatened Gordon. Both of those unlawful purposes were independent of
the homicide. As long as the jury could have found that possession for an unlawful purpose existed, then the
jury was entitled to return a guilty verdict provided that the jury was instructed properly. (pp. 12-13)
4. The third Williams factor was not satisfied. Although the jury was instructed that the State bore the
burden of proving beyond a reasonable doubt that Diaz had actual, not constructive, possession of the gun
for the purpose of using it unlawfully against the person or property of another, the trial court did not
instruct the jury what the alleged unlawful purposes were based on the evidence presented. The trial judge
was required to relate the specific unlawful purposes charge to the facts of the case; a proper jury instruction
must include an identification of such unlawful purposes as may be suggested by the evidence. Moreover,
because of the improper jury instructions, the Court does not know and may not assume that the verdict on
possession of the gun for an unlawful purpose was for a broader unlawful purpose than the manslaughter.
Therefore, the fourth Williams factor also was not satisfied. (pp. 13-14)
5. The failure to provide proper jury instructions may constitute plain error. Moreover, the prosecutor, in
summation, did not argue that there was a broader unlawful purpose. Because of the way the prosecutor
presented the case to the jury and the way the jury was instructed, the only unlawful purpose submitted to
the jury was possession of the gun to use it in the killing. Under those circumstances, merger is required.
(pp. 14-15)
6. Although State v. Petties suggests the use of special verdicts in some cases, it does not mandate using
them in all cases. Requiring trial courts to use special verdicts or verdict-based analysis in all cases in which
a defendant is charged with possession of a weapon for an unlawful purpose and a greater offense may
substantially reduce the sentencing court's discretion on merger issues. Such a bright-line requirement would
be contrary to the flexible approach to merger. When there is a compelling need for the use of special
verdicts, the trial court in its discretion should use them to avoid reversal of ambiguous verdicts. The Court
reaffirms the propriety of using the type of written special verdict sheets recommended in State v. McAllister.
The way in which juries should use special verdict sheets must, however, be explained to the jury in the
general jury instructions. Here, the special verdict sheet did not conform to McAllister because it was
limited to a single unspecified possession of a weapon for an unlawful purpose. (pp. 15-20)
As MODIFIED, the judgment of the Appellate Division is AFFIRMED.
JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in JUSTICE
COLEMAN's opinion. CHIEF JUSTICE WILENTZ did not participate.
SUPREME COURT OF NEW JERSEY
A-
57 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DEMETRIUS M. DIAZ,
Defendant-Respondent.
Argued November 27, 1995 -- Decided July 3, 1996
On certification to the Superior Court,
Appellate Division.
Joseph Connor, Jr., Assistant County
Prosecutor, argued the cause for appellant
(W. Michael Murphy, Jr., Morris County
Prosecutor, attorney).
Susan M. Chagrin, Assistant Deputy Public
Defender, argued the cause for respondent
(Susan L. Reisner, Public Defender,
attorney).
Gerard C. Sims, Jr., Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (Deborah T. Poritz,
Attorney General, attorney).
The opinion of the Court was delivered by
COLEMAN, J.
The issue raised in this appeal is whether a conviction for possession of a firearm for an unlawful purpose should merge with a conviction for passion/provocation manslaughter when the trial court did not instruct the jury with respect to an unlawful
purpose that was broader than, and separate from, using the
firearm to commit the homicide.
We hold that failure to use a special verdict is not
dispositive of the merger issue. Merger is not required when the
evidence submitted to the jury is sufficient to permit it to
determine that defendant possessed the firearm for an unlawful
purpose independent of the greater offense, here a homicide, and
when the jury has been properly instructed and those instructions
do not restrict the jury's consideration of the unlawful purpose
only to commission of the greater offense for which defendant was
found guilty.
Defendant was twenty-two years old when he injured his hand
in a brawl and had to wear a cast. A few days after that fight,
he was walking through a crowded playground when Gregory Ricky
Gordon bumped into defendant's injured hand. Defendant believed
that Gordon deliberately bumped into his hand to show disrespect.
According to defendant, Gordon then taunted him about being
injured in the prior brawl.
After the encounter with Gordon, defendant left the
playground for less than one half hour and returned with two
friends, Orlando Diaz and Anticious "Shorty" McGhee. Defendant
knew before reentering the playground that Shorty was carrying a
handgun.
Defendant approached Gordon and warned that he had a gun.
Gordon retorted that he also had a gun. Defendant threatened
Gordon to stay away before defendant "put something in [Gordon]
they [cannot] take out." In response, Gordon jeered at
defendant. Defendant and Gordon exchanged angry words and began
to fight. Shorty fired one shot into the air.
Very shortly after firing that shot, Shorty handed the gun
to defendant. Defendant then approached Gordon and shot him five
times. Two of the fatal shots were fired into the victim's back.
As it turned out, Gordon was unarmed. Gordon died that night
from the gunshot wounds.
After firing those shots, defendant fled the scene with
Gordon's cousin, Jeremiah German, in hot pursuit. German
testified that as he followed defendant, defendant turned towards
German and repeatedly told him, "Don't come near me, he made me
do it." German further stated that as defendant made those
statements, he "crunched [the gun] in his pants."
Defendant was indicted for purposeful or knowing murder,
N.J.S.A. 2C:11-3a(1) and (2), and possession of a firearm for an
unlawful purpose contrary to N.J.S.A. 2C:39-4a.
A jury found defendant guilty of second-degree
passion/provocation manslaughter, N.J.S.A. 2C:11-4b(2), and
second-degree possession of a firearm for an unlawful purpose.
At sentencing, defense counsel argued that the possession of
a weapon conviction should merge with the passion/provocation
manslaughter conviction because defendant possessed and used the
gun solely for the purpose of committing the substantive offense.
The State argued against merger, asserting that defendant
constructively possessed the gun when threatening Gordon prior to
the shooting. Further, the State contended, defendant used the
gun for the purposes of shooting Gordon and then threatening
German.
The trial court declined to merge the offenses, finding they
were essentially dissimilar. The court reasoned that defendant
was in joint constructive possession of the gun with Shorty in
order to be prepared for an expected altercation. The court
concluded that the unlawful purpose was separate and distinct
from the manslaughter because defendant had gone "home to get the
weapon, carr[ied] the weapon, and ma[de] threats with the
weapon." Defendant was sentenced for manslaughter to a custodial
term of ten years with five years of parole ineligibility, and to
a consecutive term of seven and one half years with three and one
quarter years of parole ineligibility on the possessory offense.
The Appellate Division in an unpublished opinion reversed
and ordered merger. The court found, however, that the evidence
was sufficient to support a conviction that defendant
constructively possessed the gun when threatening Gordon and when
he used the gun to ward off German as he fled from the scene
after the shooting. The Appellate Division concluded,
nonetheless, that merger was required because the trial court
failed to instruct the jury properly with respect to determining
whether defendant possessed the weapon for a broader unlawful
purpose than shooting Gordon. We granted the State's petition
for certification to review the propriety of the merger.
142 N.J. 450 (1995).
The State argues that merger was not warranted because the
Appellate Division found that there was "considerable evidence
regarding defendant's continued possession of the weapon after
the shooting and [defendant's] reliance on the gun to ensure his
flight from the scene and from those attempting to apprehend
him." The State further contends that defendant's "purpose to
use the gun to ensure his flight is separate from the purpose to
shoot Mr. Gordon." The State reasons that because "the jury
instructions did not limit the jury to the theory that defendant
possessed the handgun to [only] shoot Mr. Gordon," a general
verdict returned by the jury on the possessory offense should not
merge based on a sufficiency of the evidence standard as viewed
by the court. The Attorney General, as amicus curiae, asserts
the same position and adds that requiring special jury verdicts
on possessory offenses is both unnecessary and unwise.
Although defendant did not object to the jury instruction
with respect to the possessory offense, he argues that merger was
required because the jury was not asked to determine whether the
possessory offense consisted solely of the unlawful purpose to
use the gun against Gordon or for a different unlawful purpose.
A charge of possession of a "firearm with purpose to use it
unlawfully against the person or property of another" under
N.J.S.A. 2C:39-4a requires proof of four elements. Those
elements are: (1) the object possessed was a "firearm" within
the meaning of N.J.S.A. 2C:39-1(f); (2) the firearm was possessed
by defendant as defined in N.J.S.A. 2C:2-1c; (3) the defendant's
purpose in possessing the firearm was to use it against the
person or property of another; and (4) the defendant intended to
use the firearm in a manner that was unlawful. State v. Harmon,
104 N.J. 189, 212 (1986).
The focus of the charge is on a defendant's purpose in
possessing the firearm. State v. Mieles,
199 N.J. Super. 29, 41
(App. Div.), certif. denied,
101 N.J. 265 (1985). Mere
possession of a firearm in and of itself does not establish a
purpose to use it unlawfully. The purpose of the possession must
be illegal and existent "at whatever time the State claims that
the [possession for an unlawful purpose] offense took place."
State v. Petties,
139 N.J. 310, 321 (1995) (quoting State v.
Harmon, supra, 104 N.J. at 210).
The State is not required to prove a defendant's original
purpose in possessing a firearm. Although in many cases the
unlawful purpose or subjective intent of a defendant required to
be established by the State may be inferred from the totality of
the circumstances, including the use of the weapon, a conviction
based on the use of the weapon is not a required precondition to
a conviction for the possessory offense. State v. Petties,
supra, 139 N.J. at 316; State v. Latimore,
197 N.J. Super. 197,
211 (App. Div. 1984), certif. denied,
101 N.J. 328 (1985).
The fact patterns frequently relied on by the State to
establish the unlawful purpose fall into one of two categories or
a combination thereof. In the majority of cases, the charge of
possession of a firearm for an unlawful purpose "is coupled with
a charge of an act accomplished with the gun -- a robbery, an
assault, a homicide -- which the court tells the jury is
unlawful." State v. Jenkins,
234 N.J. Super. 311, 315 (App. Div.
1989). Under those circumstances, the use of the firearm to
commit the substantive offense such as robbery, assault or
homicide, provides the factual underpinning for drawing an
inference that the firearm was possessed for an unlawful purpose.
State v. Daniels,
231 N.J. Super. 555, 559-60 (App. Div. 1989).
When the only unlawful purpose in possessing the gun is to use it
to commit the substantive offense, merger is required.
A second fact pattern relied on sometimes by the State to
establish the unlawful purpose may be independent of the
commission of the substantive offense. If a defendant assaults
or murders a convenience store clerk with an object found in the
store, and then uses a gun on his or her person to threaten
eyewitnesses not to identify him or her, the unlawful purpose in
possessing the firearm is unrelated to the commission of the
assault or murder. Merger is, therefore, not required.
Merger is also not required under the following set of
facts. A defendant uses a gun to commit a substantive offense
such as robbery and then also uses the gun to frighten and
prevent eyewitnesses from informing the police or to force a
person to provide protective shelter. Under that fact pattern,
the defendant's purposes in possessing the gun were first to use
it to commit the substantive offense against one victim, and then
to use it to threaten a person other than the victim of the
substantive offense. State v. Johnson,
203 N.J. Super. 127, 136
(App. Div.), certif. denied,
102 N.J. 312 (1985).
N.J.S.A. 2C:1-8a establishes the legislative parameters for
merger of offenses. The Legislature "defines the unit of
prosecution or `offense' and ordains its punishment." In the
sentencing context, the federal "constitutional guarantee
[against double jeopardy] is limited to assuring that the court
does not exceed its legislative authorization by imposing
multiple punishments for the same offense." Brown v. Ohio,
432 U.S. 161, 165,
97 S. Ct. 2221, 2225,
53 L. Ed.2d 187, 194
(1977); accord Missouri v. Hunter,
459 U.S. 359, 368-69,
103 S.
Ct. 673, 679,
74 L. Ed.2d 535, 543-44 (1983). Similarly, merger
issues implicate a defendant's substantive state constitutional
rights that are rooted in principles of double jeopardy, due
process, or some other legal tenet. State v. Dillihay,
127 N.J. 42, 46-47 (1992); State v. Cole,
120 N.J. 321, 327 (1990). The
purpose of merger is to avoid double punishment for a single
wrongdoing. State v. Brown,
138 N.J. 481, 561 (1994); State v.
Cole, supra, 120 N.J. at 325-27; State v. Davis,
68 N.J. 69, 77
(1975).
The standard for merger of offenses set forth at N.J.S.A.
2C:1-8, providing that offenses are different when each requires
proof of facts not required to establish the other, has been
characterized as "mechanical." State v. Truglia,
97 N.J. 513,
520 (1984). A preferred and more flexible standard was
articulated in the pre-code case of State v. Davis,
68 N.J. 69
(1975). State v. Dillihay, supra, 127 N.J. at 47. In Davis, the
Court observed:
Such an approach would entail analysis of the
evidence in terms of, among other things, the
time and place of each purported violation;
whether the proof submitted as to one count
of the indictment would be a necessary
ingredient to a conviction under another
count; whether one act was an integral part
of a larger scheme or episode; the intent of
the accused; and the consequences of the
criminal standards transgressed.
[State v. Davis, supra, 68 N.J. at 81.]
The Appellate Division applied the Davis test in the present case and concluded that the facts could support separate convictions for manslaughter and possession of the gun for an unlawful purpose under theories of constructive and actual possession. The court also noted that the offenses involved different victims at different times. See State v. Truglia, supra, 97 N.J. at 521 (holding merger of possession for an unlawful purpose offense is not required when possession offense and aggravated assault with weapon offense could have occurred at different times). The Appellate Division observed that the trial
court did not instruct the jury regarding constructive
possession.
The Appellate Division further found that despite
considerable evidence that defendant possessed the gun after
shooting Gordon for an additional independent unlawful purpose,
merger of the possession conviction with the manslaughter
conviction was required. The court reasoned that merger was
required because the jury did not
"determine by separate verdicts whether the
possession was solely with the unlawful
purpose to use the weapon against the victim
or victims of the substantive offense, or
with a broader unlawful purpose." State v.
Petties,
139 N.J. 310, 320 (1995). Since the
possession conviction is not based on actions
separate from the actual shooting, merger is
required. Cf. State v. Truglia,
97 N.J. 513,
521-22 (1984).
We reject defendant's contention that when a court is unable to determine from the verdict whether the jury found a broader purpose, despite the sufficiency of credible evidence and the adequacy of jury instructions, the possessory offense must merge with the substantive offense. We hold that when a trial court declines to use a special verdict but there is sufficient evidence before the jury to support a finding of a broader purpose to use the weapon unlawfully, see United States v. Powell, 469 U.S. 57, 67, 105 S. Ct. 471, 478, 83 L. Ed.2d 461, 470 (1984); State v. Reyes, 50 N.J. 454, 458-59 (1967), and the trial court gives a proper jury instruction that does not include
an instruction that the unlawful purpose is the same as using the
weapon to commit the substantive offense, merger is not required.
When the jury's verdict is ambiguous, we adopt the approach
to merger set forth in State v. Williams,
213 N.J. Super. 30
(App. Div. 1986), certif. denied,
107 N.J. 104 (1987):
(1) the defendant must have been charged in
the indictment with possession of the weapon
with a broader unlawful purpose, either
generally or specifically, than using the
weapon to kill or assault the victim of the
greater offense, (2) the evidence must
support a finding that the defendant had a
broader unlawful purpose, (3) the judge must
have instructed the jury of the difference
between possession with the specific unlawful
purpose of using the weapon against the
victim of the greater offense and a broader
unlawful purpose and (4) the verdict must
express the jury's conclusion that the
defendant had a broader unlawful purpose.
[State v. Williams, supra, 213 N.J. Super. at
36.]
The first two requirements were satisfied in the present case. First, defendant was charged in the indictment with murdering Gregory Gordon and with possession of a "firearm with the purpose to use it unlawfully against the person of another." The indictment did not limit the victim of the possessory offense to only Gordon. Cf. State v. Williams, supra, 213 N.J. Super. at 36 (observing that where indictment charged defendant with possession of weapon for purpose of using it against victim of greater offense, merger is required). Although the indictment in the present case charged only one count of unlawful possession of a weapon, which was without specification of conduct or victim, a
defendant can be convicted under only one theory when multiple
theories are submitted to a jury under a single count.
Second, the evidence revealed that defendant used the gun to
ensure his flight from the scene while German attempted to stop
and possibly apprehend him. Defendant made the gun's presence
known to German by manipulating it in his hands and pressing it
against his pants. Furthermore, had the jury received a proper
instruction, the evidence was sufficient to permit it to find
that defendant was in constructive possession of the gun when he
threatened Gordon. Both of those unlawful purposes were
independent of the homicide. Therefore, "in this case, as long
as the jury could have found that possession for an unlawful
purpose existed [by defendant at any time before or after the
shooting,] . . . then the jury was entitled to return a verdict
of guilty for a violation of N.J.S.A. 2C:39-4a," provided that
the jury was instructed properly. State v. Petties, supra, 139
N.J. at 316.
The third factor under Williams was not satisfied. Although
the jury was instructed that the State bore the burden of proving
beyond a reasonable doubt that defendant had actual -- not
constructive -- possession of the gun for the "purpose or
conscious objective" of using it unlawfully "against the person
or property of another," the trial court did not instruct the
jury what the alleged unlawful purposes were based on the
evidence presented. The trial judge was required to "relate the
specific unlawful purpose charged to the facts of the case." Id.
at 321; accord State v. Concepcion,
111 N.J. 373, 379 (1988).
That requirement is essential because "[a] jury is not qualified
to say without guidance which purposes for possessing a gun are
unlawful under N.J.S.A. 2C:39-4a and which are not." State v.
Jenkins, supra, 234 N.J. Super. at 316. The trial court "must
guide the jury [with jury instructions] in its determination of
the unlawful purposes alleged." State v. Petties, supra, 139
N.J. at 319. To achieve that objective, a proper jury
instruction "must include an identification of such unlawful
purposes as may be suggested by the evidence." Id. at 310
(citing Williams, supra, 139 N.J. at 316). Because of the
improper jury instructions, we do not know, and may not assume,
that the verdict on possession of the gun for an unlawful purpose
was for a broader unlawful purpose than the manslaughter.
Accordingly, the fourth factor under Williams also was not
satisfied.
This Court has consistently held that "[a]ccurate and
understandable jury instructions in criminal cases are essential
to a defendant's right to a fair trial." State v. Concepcion,
supra, 111 N.J. at 379. Moreover, the failure to provide proper
jury instructions may constitute plain error. State v. Brown,
138 N.J. 481, 522 (1994). In criminal cases, erroneous jury
instructions are "almost invariably regarded as prejudicial,"
State v. Vick,
117 N.J. 288, 289 (1989), and are "poor candidates
for rehabilitation under the harmless error philosophy." State
v. Weeks,
107 N.J. 396, 410 (1987); State v. Grunow, 102 N.J.
133, 148 (1986). Improper jury instructions, however, do not
require merger of offenses when the evidence is sufficient to
support convictions on both the substantive and possessory
offenses. State v. Petties, supra, 139 N.J. at 321.
Cases have held that merger is not required notwithstanding
an ambiguous jury verdict when the evidence supports a broader
unlawful purpose. State v. Cole, supra, 120 N.J. at 325, 335;
State v. Miller,
108 N.J. 112, 120 (1987); State v. Truglia,
supra, 97 N.J. at 521, 525; State v. Goode,
278 N.J. Super. 85,
88 (App. Div. 1994); State v. Russo,
243 N.J. Super. 383, 411-12
(App. Div. 1990), certif. denied,
126 N.J. 322 (1991); State v.
Johnson,
203 N.J. Super. 127, 136 (App. Div.), certif. denied,
102 N.J. 312 (1985). In contrast, the court in State v. Mieles,
supra, found that the evidence was insufficient to support a
conviction for possession of a gun for an unlawful purpose.
State v. Mieles, supra, 199 N.J. Super. at 41. When the jury is
explicitly instructed that the unlawful purpose was to use the
gun against the victim of the substantive offense, unless that
unlawful purpose extended over a substantial period, merger is
required notwithstanding that the evidence was sufficient to
support a separate unlawful purpose. State v. Williams, supra,
213 N.J. Super. at 36.
In the present case, not only were the jury instructions
insufficient to have permitted a finding of a broader unlawful
purpose, the prosecutor in summation did not argue that there was
in fact a broader unlawful purpose. The prosecutor focused only
on the killing and never mentioned the existence of the unlawful
possession charge. His only comment that may have been intended
to relate to that charge was that defendant "began to back up.
And what did he say? Stay your distance [German]. Again, with
the gun, stay your distance." The prosecutor, however, never
argued that the quoted language could support a broader unlawful
purpose. Because of the way the prosecutor presented the case to
the jury and the way the jury was instructed, we conclude that
the only unlawful purpose submitted to the jury was possession of
the gun to use it in the killing. Under the circumstances of
this case, merger is required.
Next, we address whether special verdicts should be mandated
in all cases in which a defendant is charged with a substantive
offense and possession of a weapon for unlawful use against
another person or property. Defendant urges this Court to
mandate special verdicts to protect his constitutional rights.
The State and the Attorney General, on the other hand, urge the
Court not to mandate special verdicts because such a requirement
would be contrary to the flexible approach to merger adopted in
State v. Davis, supra, and State v. Cole, supra.
The Appellate Division misinterpreted this Court's decision
in State v. Petties, supra. There, the Court stated:
To resolve issues of merger of weapons
offenses with substantive counts, a court may
ask the jury to determine by separate
verdicts whether the possession was solely
with the unlawful purpose to use the weapon
against the victim or victims of the
substantive offense, or with a broader
unlawful purpose. See State v. Williams,
213 N.J. Super. 30, 36-37,
516 A.2d 265 (App.
Div. 1986) (explaining that although
defendant may have intended to use firearm
for broader unlawful purpose -- threatening
associates of victim -- jury instruction on
charge of possession for unlawful purpose was
limited to unlawful use against victim, thus
requiring merger), certif. denied,
107 N.J. 104,
526 A.2d 177 (1987). State v.
McAllister,
211 N.J. Super. 355, 364-67,
511 A.2d 1216 (App. Div. 1986) contains a
suggested form of a verdict sheet, which can
be revised to fit the needs of each case.
[State v. Petties, supra, 139 N.J. at 320-21.]
The Appellate Division transformed Petties' suggested method of handling the merger issue in some cases into an absolute requirement in all cases. Although the Appellate Division did not cite State v. Lado, 275 N.J. Super. 140 (App. Div.), certif. denied, 138 N.J. 271 (1994), it reached the same result, namely that "in the absence of a special verdict, . . . the possession of a weapon with an unlawful purpose conviction must merge into the substantive offense." Id. at 158. Although Petties suggested the use of special verdicts in some cases, it did not mandate using them in all cases. Petties involved five counts of assaults, two counts of possession of weapons for unlawful purposes, one count of unlawful possession of a handgun without a permit and ten lesser-included offenses. State v. Petties, supra, 139 N.J. at 313-14. A retrial on the two unlawful purpose charges was ordered because the jury was not instructed on what
the alleged unlawful purposes were. Id. at 321. Petties is a
clear example of a case in which special verdicts ought to be
used.
We agree with the State and the Attorney General that
requiring trial courts to use special verdicts or verdict-based
analysis in all cases in which a defendant is charged with
possession of a weapon for an unlawful purpose and a greater
offense may substantially reduce the sentencing court's
discretion on merger issues. Such a bright-line requirement
would be contrary to the flexible approach to merger adopted in
State v. Davis, supra, and State v. Cole, supra. Notwithstanding
that special verdict sheets may tend to limit that flexibility,
the objectives achieved in using special verdict sheets in
certain compelling cases outweigh any diminished benefits
associated with the flexible approach to merger.
We recognize that the use of special interrogatories in
criminal cases is discouraged because of "their potential for
destroying the ability of the jury to deliberate upon the issue
of guilt or innocence free of extraneous influences. That
potential for harm inheres in the subtly coercive effect
interrogatories can have upon the course of a jury's
deliberations." State v. Simon,
79 N.J. 191, 199-200 (1979).
The subtle coercive effect is manifested in requiring the jury to
make specific findings of fact.
Most of the risks inherent in the use of special
interrogatories are not present in special verdict sheets that
have been properly prepared and submitted to the jury with
appropriate instructions. Special verdict sheets that list only
the charges and lesser-included offenses under an indictment, and
do not list the elements of the offenses, are unlikely to be
confusing or have any coercive effect on the jury. When multiple
offenses are submitted to a jury, special verdicts are often
helpful to an orderly deliberative process. The use of special
verdicts was approved in State v. Petties, supra, 139 N.J. at
320-21. Furthermore, Rule 3:19-1(b) permits trial courts, in
their discretion, to submit special verdicts to juries "to
facilitate the determination of the grade of the offense under
the Code of Criminal Justice or otherwise simplify the
determination of a verdict when multiple charges are submitted to
the jury."
Consistent with State v. Petties, supra, 139 N.J. at 320-21,
State v. Simon, supra, 79 N.J. at 202, and Rule 3:19-1(b), when
there is a compelling need for the use of special verdicts, the
trial court in its discretion should use them to avoid reversal
of ambiguous verdicts. A compelling need might arise in a case
involving multiple counts in the indictment that may include
lesser-included offenses. In such cases, juries may be asked to
determine the degree of offenses, or provide information that
would assist the judge in making merger determinations at
sentencing. If, as in the present case, a charge of possession
of a weapon for an unlawful purpose is submitted to a jury on
multiple theories of liability under a single indictment or count
thereof, a special verdict greatly facilitates merger
determinations.
We therefore reaffirm the propriety of using the type of
written special verdict sheets recommended in State v.
McAllister, supra, 211 N.J. Super. at 365-67. The way in which
juries should use special verdict sheets must, however, be
explained to the jury in the general jury instructions. Further,
descriptive labels may be used to distinguish the weapon, the
victim, and the unlawful purpose for offenses charged under
N.J.S.A. 2C:39-4 without running afoul of the proscription
against listing elements of an offense on the special verdict
sheet. The special verdict sheet in the present case did not
conform to McAllister because it was limited to a single
unspecified "possession of a weapon for an unlawful purpose."
As modified, the judgment of the Appellate Division is
affirmed.
JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in JUSTICE COLEMAN's opinion. CHIEF JUSTICE WILENTZ did not participate.
NO. A-57 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DEMETRIUS M. DIAZ,
Defendant-Respondent.
DECIDED July 3, 1996
Justice Handler PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY