SYLLABUS
(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 September 9, 2003 -- Decided January 26, 2004
LaVECCHIA, J., writing for a majority of the Court.
This appeal concerns application of the incomplete mistake-of-fact defense, and whether the trial court should have charged a crime that is not a lesser-included offense of any of the charges in the indictment.
Acting on a tip, on August 25, 1995, Port Authority police officers at Newark Airport detained Jose Pena after his arrival on a flight from Houston, Texas. A DEA agent in Houston had informed Port Authority officers that an x-ray taken during flight check-in indicated that Pena’s suitcase contained several bundles of an apparent controlled dangerous substance. When questioned by Port Authority officers about his suitcase, Pena stated he had done most of the packing himself and that the bag contained “clothes and things.” When asked directly whether the suitcase contained drugs, Pena responded, “I don’t know.”
Pena consented to the suitcase’s search, which revealed a sleeping bag wrapped around thirteen plastic bundles of seventy-five percent pure cocaine weighing approximately fifteen kilograms (over thirty-three pounds). The cocaine had an estimated street value of $800,000. Pena was indicted on charges of third-degree possession of CDS in violation of N.J.S.A. 2C:35-10a(1), and first-degree possession with intent to distribute in violation of N.J.S.A. 2C:35-5b(1).
Pena’s initial conditional plea to the charges was vacated on appeal, the Appellate Division holding that the plea lacked a factual basis because Pena maintained his innocence by his assertion that he did not know that the suitcase contained cocaine. State v. Pena, 301 N.J. Super. 158 (App. Div.), certif. denied, 151 N.J. 465 (1997). At trial, Pena’s case consisted of his mistake-of-fact defense. Pena testified that he had worked in a clothing store and frequented the area of Broadway and 142nd Street in New York City. There, he became acquainted with a man named Rudolpho Santana. Pena knew that Santana sold stolen objects like televisions, VCRs and expensive clothing, but he claimed he did not know that Santana sold drugs.
According to Pena, Santana had engaged him to fly to Houston and obtain some stolen fur coats. Pena stated that when he arrived in Houston, he was taken to a house by a man known to him as “Antonio.” Pena testified that he packed the six fur coats in a single suitcase, aware that he was engaging in the criminal activity of receiving stolen property. Pena denied packing the drugs or any of the other items later found in the suitcase. He stayed overnight at the house in Houston, and was taken the next morning to the airport for the flight to Newark.
As part of its case, the State presented an expert who explained that a courier knows when he or she is carrying CDS because, even if the courier does not know the actual drug being transported, remuneration is based on the weight (customarily “$1,000 a kilo”), and not the identity of the substance. Pena was carrying approximately fifteen kilograms of cocaine; therefore he could have anticipated receiving at least $15,000. The State emphasized the unlikelihood that Pena did not know what he actually was carrying and its value to him.
At the close of the evidence Pena requested a jury instruction on the incomplete mistake-of-fact defense available pursuant to N.J.S.A. 2C:2-4b. Pena acknowledged that the mistaken offense, receipt of stolen property in violation of N.J.S.A. 2C:20-7, was not a lesser-included offense of either of the charges in the indictment. He asserted, however, that if the jury believed his testimony, he should be held culpable only for the different and lesser offense he believed he was committing. The trial court denied the requested instruction, viewing the Section 2-4b mistake-of-fact defense as inapplicable to a non-lesser included offense. The court held that Pena was restricted to arguing that his mistaken belief negated the requisite state of mind for a finding of guilt on the cocaine possession charge.
The jury found Pena guilty on both counts. The court merged the offenses and sentenced Pena to the maximum term for conviction of first-degree possession with intent to distribute: twenty years with a ten-year period of parole ineligibility. The Appellate Division affirmed in an unpublished opinion.
The Supreme Court granted Pena’s petition for certification limited to the issues arising out of the trial court’s denial of the request to charge the jury in respect of mistake of fact.
HELD: It was error for the trial court to refuse Pena’s request to charge the jury that if it accepted Pena’s testimony of his mistaken belief, it could convict him of the uncharged, non-lesser included offense of receipt of stolen property.
1. N.J.S.A. 2C:2-4b provides that “the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.” The question whether this section applies to a non-lesser included offense and, if so, the sub-issue of what offense may a defendant be found guilty, are matters of statutory interpretation. The State points to the reference to reduction in the “grade and degree” of the offense as indicative of a legislative intent to have the defense available only for lesser-included offenses that a defendant believed mistakenly that he was committing. The term “lesser-included offense,” however, does not appear in the text of the statute. The Code contains other instances in which the Legislature included the modifier “included offense,” or a reference to one offense being included in another when it meant to do so. It would seem that if the Legislature intended to limit Section 2-4b to lesser-included offenses, it would have stated that intent expressly, not inferentially. (pp. 7-14)
2. New Jersey is one of only a handful of States that adopted the ignorance or mistake-of-fact provision from the Model Penal Code (MPC) verbatim. The evolution of that language in the Official Draft of the MPC demonstrates that the drafters specifically considered whether to allow the mistake-of-fact defense to apply to a non-lesser included offense. The Official Draft proposed alternatives for the provision, one of which limited application of the mistake-of-fact defense to allow for a conviction only of a “lesser and included” offense. The final version omitted any language limiting the provision to lesser-included offenses. In its Commentary, the New Jersey Criminal Law Revision Commission also discusses the options that were considered and notes specifically the Commission’s choice of that option which would permit the defense to apply even when the offense is a non-lesser included offense. (pp. 14-21)
3. Among the competing views on what offense a defendant may be convicted and for which he may be punished, the Court finds that it is analytically more consistent with Code precepts to allow conviction and punishment for the crime of which the defendant was culpable – that is, the crime that he actually would have committed had the facts proven to be as he believed. Thus, a jury must be instructed under N.J.S.A. 2C:2-4b that it may convict a defendant of the crime to which he has admitted if it believes his testimony. Respecting the requirement of fair notice of a crime through indictment, the Court has recognized that a defendant may waive the right to indictment and agree to proceed on a non-lesser included charge. The Court concludes that Pena waived his right to indictment by asserting, as his mistake-of-fact defense to possession of CDS, that he believed he was engaged in the criminal offense of receipt of stolen property. (pp. 21-33)
JUSTICE VERNIERO filed a separate opinion concurring in part and dissenting in part, in which CHIEF JUSTICE PORITZ joins. He agrees with the Court’s statutory analysis, but would apply a harmless-error analysis and hold that given the State’s overwhelming proofs, the jury charge required by the majority would not have altered the jury’s verdict.
Judgment of the Appellate Division is REVERSED, and the matter is REMANDED for further proceedings consistent with this opinion.
JUSTICES LONG, ZAZZALI, ALBIN and WALLACE join in JUSTICE LaVECCHIA’s opinion. JUSTICE VERNIERO filed a separate opinion concurring in part and dissenting in part, in which CHIEF JUSTICE PORITZ joins.
SUPREME COURT OF NEW JERSEY
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSE PENA,
Defendant-Appellant.
Argued September 9, 2003 – Decided January 26, 2004
On certification to the Superior Court, Appellate Division.
Lon C. Taylor, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne
Smith Segars, Public Defender, attorney).
Janet Flanagan, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey,
Attorney General of New Jersey, attorney).
Justice LaVECCHIA delivered the opinion of the Court.
This appeal concerns application of the “incomplete” mistake-of-fact defense available pursuant to N.J.S.A.
2C:2-4b. Defendant Jose Pena was charged with possession of cocaine and possession of
cocaine with intent to distribute. His defense was that he believed the suitcase
he was transporting contained stolen fur coats, not cocaine. Defendant requested that the
jury be charged on his mistake-of-fact defense that, if it accepted his mistaken
belief, it could convict him of the uncharged, non-lesser included offense of receipt
of stolen property. We hold that it was error for the trial court
to have refused defendant’s request, notwithstanding that the crime of receiving stolen property
is not a lesser-included offense of either charge in the indictment returned against
defendant. We are constrained, therefore, to reverse and remand for a new trial.
Acting on a tip, on August 25, 1995, Port Authority police officers at Newark Airport detained defendant after his arrival on a flight from Houston, Texas. A United States Drug Enforcement Agency (DEA) agent stationed in Houston had informed Port Authority officers that an x-ray taken during flight check-in indicated that defendant’s suitcase contained several bundles of an apparent controlled dangerous substance. When questioned by the Port Authority officers about his suitcase, defendant stated that he had done “most of” its packing and that the bag contained “clothes and things.” When asked directly whether the suitcase contained any drugs, defendant responded, “I don’t know.”
Defendant consented to the suitcase’s search. According to the State’s witnesses, defendant appeared unsurprised when that search revealed that the suitcase contained a sleeping bag wrapped around thirteen plastic bundles of seventy-five percent “pure” cocaine weighing approximately fifteen kilograms (roughly equivalent to thirty-three and one-half pounds). The cocaine was estimated to have a street value of $800,000. In addition to the drugs, the suitcase contained a new pair of tennis shoes, two new towels, and six empty hangers. Defendant was indicted for third-degree possession of a controlled dangerous substance (CDS), in violation of N.J.S.A. 2C:35-10a(1) (Count I), and first-degree possession of CDS with intent to distribute, in violation of N.J.S.A. 2C:35-5b(1) (Count II).
Defendant’s initial conditional plea to the charges was vacated on appeal. State v. Pena, 301 N.J. Super. 158, 160-64 (App. Div.), certif. denied, 151 N.J. 465 (1997). The Appellate Division held that the plea lacked a factual basis because defendant had maintained his innocence by his assertion that he did not know that the suitcase contained cocaine. Ibid. At trial, defendant’s case consisted of his mistake-of-fact defense. As background to the events that led to his arrest, defendant testified that in 1991 he had worked in a clothing store and had occasion to frequent the area of Broadway and 142nd Street in New York City. There he became acquainted with a man named “Rudolpho Santana.” Defendant knew that Santana sold stolen objects such as televisions, VCRs, and expensive clothing, but he claimed he did not know that Santana sold drugs.
In August 1995, according to defendant, Santana engaged him to fly to Houston and obtain some stolen fur coats. Defendant’s instructions were to pick up the coats, each worth approximately $5,000 to $6,000, and return with them via Newark Airport. In exchange, defendant would be paid $2,000. Santana supplied defendant with a ticket, purchased with cash, for a flight departing from LaGuardia Airport to Houston.
When he arrived at the Houston airport, defendant was met by a man (known to him only as “Antonio”) and taken to a house. There, defendant obtained six coats that he described as medium size, full length and “furry.” He testified that he packed the six coats into a single suitcase, aware at the time that he was engaging in the criminal activity of receiving stolen property. Although defendant admitted to placing the coats in the suitcase, he claimed that he did not pack any of the other items later found in the suitcase, including the six empty hangers.
Defendant stayed overnight at the house and the next morning was taken to the Houston airport for a flight to Newark. His one-way airline ticket again was purchased for him with cash. According to defendant, his suitcase was placed in the trunk of the car for the drive to the airport but the record is unclear as to when that occurred. At the terminal, defendant checked the suitcase for the flight and, upon his arrival in Newark at the appropriate luggage carousel, he claimed the suitcase that bore his name and claim number. The Port Authority officers, who had been observing him since he disembarked the plane, then approached him for questioning.
As part of its case, the State presented an expert who explained that a courier knows when he or she is carrying CDS because, even if the courier does not know the actual drug being transported, remuneration is based on the weight (customarily “$1,000 a [kilo]”) and not the identity of the substance. Defendant was carrying approximately fifteen kilograms of cocaine; therefore he could have anticipated receiving at least $15,000. The State emphasized the unlikelihood that defendant did not know what he actually was carrying and its value to him.
At the close of the evidence defendant requested a jury instruction on the incomplete mistake-of-fact defense available pursuant to N.J.S.A. 2C:2-4b. Defendant acknowledged that the “mistaken” offense, receipt of stolen property in violation of N.J.S.A. 2C:20-7, was not a lesser-included offense of either of the charges in his indictment, but he did not contend that the indictment was flawed for not including the charge. Defendant asserted that if the jury believed his testimony, he should be held criminally culpable only for the “different and lesser offense” he believed he was committing because under N.J.S.A. 2C:2-4b, “there still can be a downgrading of an offense . . . , and also a slight shift . . . to . . . the one that was committed.”
The trial court denied the requested instruction. It viewed the N.J.S.A. 2C:2-4b mistake-of-fact defense as inapplicable to a non-lesser included offense and held that defendant was restricted to arguing that his mistaken belief negated the requisite state of mind for a finding of guilt on the cocaine possession charges. The court charged the jury on the elements of possession and possession with intent to distribute. No instruction was given in respect of defendant’s mistake-of-fact defense; rather, the charge tracked the model jury instruction, without any molding to the facts related to that defense. Defendant registered no objection to the charge as given except to preserve for appeal the denial of the earlier charge request.
The jury found defendant guilty on both counts. The court merged the charges and sentenced defendant to the maximum term for conviction of first-degree possession with intent to distribute: twenty years’ imprisonment with a ten-year period of parole ineligibility. The Appellate Division affirmed in an unpublished opinion. It agreed with the trial court that defendant’s asserted mistake of fact related to his state of mind. Based on that mistaken belief, defendant could contest whether he knowingly possessed, and possessed with intent to distribute, cocaine. However, because the crime of receiving stolen property, N.J.S.A. 2C:20-7, is not a lesser-included offense to either of the charges in the indictment, the Appellate Division concluded that the trial court correctly declined to charge the jury on mistake of fact under N.J.S.A. 2C:2-4b.
We granted defendant’s petition for certification “limited to the issues arising out of the trial court’s denial of the request to charge the jury in respect of ‘mistake of fact.’” 175 N.J. 431 (2003).
A.
This case concerns a matter of first impression: whether a defendant may avail himself of the incomplete mistake-of-fact defense available under Section 2-4b of the New Jersey Code of Criminal Justice (Code) when the mistaken belief concerns commission of a non-lesser included offense to the offenses charged. Mistake of fact has been characterized as an area of law rife with confusion. See 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.1(a) at 575 (2d ed. 1986)(LaFave & Scott) (observing that “[n]o area of the substantive law has traditionally been surrounded by more confusion than that of ignorance or mistake of fact or law”). Thus, faced with a novel question in this uncertain area of the law affecting criminal culpability, we begin at bedrock, namely, with the accepted requirements for criminal liability: proof of “a voluntary act and a culpable state of mind [are] the minimum conditions” for imposing criminal liability. State v. Sexton, 160 N.J. 93, 98 (1999) (citing N.J.S.A. 2C:2-1, -2).
The Code, like its “‘conceptual source,’” the Model Penal Code (MPC), Sexton, supra, 160 N.J. at 94 (quoting Richardson v. Nickolopoulos, 110 N.J. 241, 242 (1988)), provides generally that “no person should be guilty of an offense unless the person ‘acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.’” Sexton, supra, 160 N.J. at 99 (emphasis added) (quoting N.J.S.A. 2C:2-2a). See also MPC § 2.02(1) (same). In respect of the specific CDS possession offenses in issue, the Code provides that it is unlawful for an unauthorized person to “knowingly or purposely” possess CDS, whether with or without intent to distribute. N.J.S.A. 2C:35-10a, -5a(1). “A person acts purposely with respect to the nature of his conduct . . . if it is his conscious object to engage in conduct of that nature or cause such result.” N.J.S.A. 2C:2-2b(1). “A person acts knowingly with respect to the nature of his conduct . . . if he is aware that his conduct is of that nature.” N.J.S.A. 2C:2-2b(2). A person voluntarily possesses an object if he “knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.” N.J.S.A. 2C:2-1c. As the court below duly noted during the first appeal in this matter, when used in our criminal statutes, “[p]ossession . . . signifies ‘a knowing, intentional control of a designated thing, accompanied by a knowledge of its character.’” Pena, supra, 301 N.J. Super. at 162-63 (emphasis added) (quoting State v. Montesano, 298 N.J. Super. 597, 612 (App. Div.), certif. denied, 150 N.J. 27 (1997)). See also State v. McCoy, 116 N.J. 293, 298 (1989) (“In a broad sense, the term ‘possession’ denotes facts pertaining to the relationship between a person and an item of property, as well as the consequences that attach to those facts.”).
In this case, then, a jury could not hold defendant criminally liable for the CDS possession offenses with which he was charged unless it found that he knew or was aware, at a minimum, that he possessed CDS. See footnote 1 Pena, supra, 301 N.J. Super. at 162-63. See also Model Jury Charge (Criminal), Possession (N.J.S.A. 2C:2-1) (1988); Model Jury Charge (Criminal), Unlawful Possession of a Controlled Dangerous Substance (N.J.S.A. 2C:35-10) (1988); and Model Jury Charge (Criminal), Possession of a Controlled Dangerous Substance with Intent to Distribute (N.J.S.A. 2C:35-5) (1992). Culpability requirements would appear to render that result self-evident. However, we are required to interpose into that basic culpability analysis the mistake-of-fact defense in N.J.S.A. 2C:2-4.
Patterned after MPC § 2.04, N.J.S.A. 2C:2-4 provides in relevant part:
a. Ignorance or mistake of fact as to a matter of fact or law is a defense if the defendant reasonably arrived at the conclusion underlying the mistake and:
(1) It negatives the culpable mental state required to establish the offense; or
(2) The law provides that the state of mind established by such ignorance
or mistake constitutes a defense.
b. Although ignorance or mistake would otherwise afford a defense to the offense
charged, the defense is not available if the defendant would be guilty of
another offense had the situation been as he supposed. In such case, however,
the ignorance or mistake of the defendant shall reduce the grade and degree
of the offense of which he may be convicted to those of the
offense of which he would be guilty had the situation been as he
supposed.
The meaning and application of Section 2-4a of the Code was addressed recently
in Sexton, supra. That subsection provides for a complete defense to criminal liability
based on a mistake of fact or matter of law. After reviewing our
Code’s adoption of the MPC’s mental-state formulation for culpability, we concluded in Sexton
that subsection a. was, in effect, technically unnecessary, because “‘[it] simply confirm[s that
n]o person may be convicted of an offense unless each element . .
. is proven beyond a reasonable doubt.’ If the defendant’s ignorance or mistake
makes proof of a required culpability element impossible, the prosecution will necessarily fail
in its proof of the offense.’” 160 N.J. at 100 (quoting Paul H.
Robinson & Jane A. Grall, Element Analysis in Defining Criminal Liability: The Model
Penal Code and Beyond,
35 Stan. L. Rev. 681, 726-27 (1983) (quoting MPC
§ 1.12 (1) (Proposed Official Draft 1962))). Because even an “unreasonable” mistake, i.e., negligence,
would negate the mental state required for criminal liability, we found it necessary
to conform the language of N.J.S.A. 2C:2-4a essentially to the language of MPC
§ 2.04(1), by eliminating our Code’s additional requirement that a defendant’s mistake be “reasonable.”
160 N.J. at 105-07.
See footnote 2
Section 2-4b of our Code, on the other hand, is identical to MPC
§ 2.04(2). However, we appear to be among only a handful of states that
adopted MPC § 2.04(2) verbatim.
See footnote 3
As a consequence, there is a dearth of case
law to which we may advert in considering this provision. At bottom, the
issue of whether Section 2-4b applies to a non-lesser included offense and, if
so, the sub-issue of what offense may a defendant be found guilty, involve
matters of statutory interpretation. As in all exercises of statutory interpretation, we start
with the language of the legislation.
If the statute is clear and unambiguous on its face and admits of
only one interpretation, we need delve no deeper than the act’s literal terms
to divine the Legislature’s intent. . . . However, if the statute is
not clear and unambiguous on its face, we consider sources other than the
literal words of the statute to guide our interpretive task[. T]he Court considers
extrinsic factors, such as the statute’s purpose, legislative history, and statutory context to
ascertain the Legislature’s intent.
[State v. Thomas,
172 N.J. 560, 567 (2001) (citations and internal quotation marks
omitted).]
Here it does not seem possible to discern the legislative intent concerning Section
2-4b’s application to non-lesser included offenses solely from the language of the statute.
The State points to the second sentence of Section 2-4b referring to reduction
in the “grade and degree” of the offense for which a defendant asserting
the defense may be convicted. The State views that reference as indicative of
a legislative intent to have the defense available only for lesser-included offenses that
a defendant may have believed mistakenly that he was committing. The State thus
posits one possible construction of the statutory language; however, it is not the
only construction that is reasonably possible.
The term “lesser-included offense” nowhere appears in the text of N.J.S.A. 2C:2-4b. The
first sentence of Section 2-4b, which establishes when the incomplete defense is available,
refers only to a defendant being guilty of “another offense had the situation
been as he supposed.” The Code contains other instances in which the Legislature
included the modifier “included offense,” or a reference to one offense being included
in another, when it meant to do so. See N.J.S.A. 2C:1-8a(1), -8d, and
-8e; N.J.S.A. 2C:1-9a. It would seem that if the Legislature intended to limit
N.J.S.A. 2C:2-4b to lesser-included offenses, it would have stated that intent expressly, not
inferentially.
As raised in this appeal then, there appear to be multiple interpretations of
Section 2-4b in respect of defendant’s mistake-of-fact defense: (1) that Section 2-4b only
encompasses lesser-included offenses, and therefore provides no defense against defendant’s CDS charges because
receiving stolen property is not a lesser-included offense of those charges; or (2)
that Section 2-4b encompasses non-lesser included offenses, and therefore provides a defense by
which, if the jury believed his testimony, defendant should have been convicted of
either (a) third-degree possession of stolen property, or (b) third-degree possession of CDS.
Because the statute is not free of ambiguity, we may turn to extrinsic
aids for assistance in discerning the likely legislative intent underlying this Section. See
Thomas, supra, 166 N.J. at 567.
In tracing Section 2-4b to its source, it appears that the Section’s language originated as the “final version” of the ignorance or mistake-of-fact provision adopted for inclusion in the MPC. The evolution of that language in the Official Draft of MPC § 2.04(2) demonstrates that the drafters specifically considered whether to allow the mistake-of-fact defense to apply to a non-lesser included offense. As originally drafted by the American Law Institute (ALI), MPC § 2.04(2) provided, in relevant part:
(2) When ignorance or mistake affords a defense to the offense charged but the defendant would be guilty of another [and included] offense had the situation been as he supposed it was, he may be convicted of that other offense.
[Alternative (1): “he may be convicted of an attempt to commit that other offense.”
[Alternative (2): “he may be convicted of the offense charged but shall be sentenced only as may be authorized if the situation had been as he supposed”.]
[MPC § 2.04(2) (Tentative Draft No. 4 1955) (alternations in original).]
The accompanying Reporter’s Commentary to the Tentative Draft recommended the provision as quoted
above, rejecting Alternative (1) and (2). Id. § 2.04 cmt. 2 at 137. The
Reporter’s Commentary also highlighted a flaw in the approach being suggested, a flaw
that would implicate a defendant’s right to indictment if the mistake-of-fact defense were
to be applied to a non-lesser included offense.
There is, however, an important problem of procedure as to how far the
suggested principle may be applied. No difficulty is presented when the lesser offense
is an included crime, conviction of which is permitted generally on the indictment
or information filed. The issue may arise, however, when one offense is not
included in the other. The defendant, for example, may be charged with knowingly
possessing narcotics. If his defense is that he thought the package found in
his possession contained a different kind of contraband, is it procedurally necessary that
he be acquitted if his defense is believed? Some members of the Council
of the Institute consider that it is, upon the ground that the offense
which the defendant thought he was committing is not included in the accusation
made. The Reporter thinks that the procedural requirement should be susceptible of relaxation
in this special situation; the defendant needs no notice of the charge when
he avows his effort to commit another crime to escape conviction of the
crime that has been charged. But if the [ALI] considers the procedural objection
valid, the section can be limited to cases where an included offense is
involved and still have some substantial value.
[Id. at 137-38 (emphasis added).]
Ultimately, the suggested language was rejected. See Richard Singer, The Model Penal Code
and Three Two (Possibly Only One) Ways Courts Avoid Mens Rea, 4 Buff.
Crim. L. Rev. 139, 191 (2001) (noting ALI overruled proposed provision). The ALI
settled on a differently worded version that omitted any language limiting the provision
to lesser-included offenses:
Although ignorance or mistake would otherwise afford a defense to the offense charged,
the defense is not available if the defendant would be guilty of another
offense had the situation been as he supposed. In such case, however, the
ignorance or mistake of the defendant shall reduce the grade and degree of
the offense of which he may be convicted to those of the offense
of which he would be guilty had the situation been as he supposed.
[MPC § 2.04(2) (Proposed Official Draft 1962) (emphasis added). See also MPC § 2.04(2) (Official
Draft and Revised Comments 1985) (same); N.J.S.A. 2C:2-4b (same).]
MPC § 2.04(2) is, “in substance, Alternative (2) of the [1955 tentative] draft, which
both the Advisory Committee and the Council deemed the preferable treatment of the
problem of the actor who submits as a defense to the crime charged
a mistake which, had the facts been as he thought, would have involved
commission of another crime.” MPC § 2.04(2) note at 31 on status of section
(Proposed Official Draft 1962). Thus, although a complete defense to the crime charged
is unavailable, an “incomplete” defense operates to preclude conviction and punishment for the
graver offense with which the defendant was charged but for which there is
no culpability. As explained in the Reporter’s final Official Draft Explanatory Note:
[MPC § 2.04(2)] deals with a special kind of case, one where the actor
raises a particular belief as a defense to the offense with which he
is charged, but where he would be guilty of another offense had the
situation been as he supposed. In this event, the defense that would otherwise
be available under [MPC § 2.04(1)] is denied. The defendant cannot be convicted of
a grade or degree of offense higher than the offense of which he
could have been convicted had the situation been as he supposed.
[MPC § 2.04 Explanatory note at 268 (Official Draft and Revised Comments 1985) (emphasis
added).]
The final revised Commentary is more expansive in explanation:
[MPC § 2.04(2)] is addressed to a limited problem that may produce distortion in
the law, namely where the defendant claims mistake but where a criminal offense
still would have occurred had the situation been as the defendant believed it
to be. If the defense were denied altogether, an actor culpable in respect
to one offense could be convicted of a much more serious offense. On
the other hand, the defendant should not go free, for on either view
– the facts as they occurred or as the defendant believed them to be
– a criminal offense was committed.
The offense of burglary will illustrate the problem. Burglary is defined generally by
Section 221.1 to include entry into any building or occupied structure for the
purpose of committing a crime therein, and is graded normally as a felony
of the third degree. It is a felony of the second degree, however,
if the building is a dwelling house. If the defendant believed, and formed
his belief in a manner that could not be characterized as reckless, that
the building was a store, he could be convicted only of a third
degree felony.
To deny the relevance of the defense of mistake in this situation would
be in effect to re-characterize, for this special purpose, the culpability level normally
required by the Code for the material element of the more serious offense.
Presumably a considered judgment led to the inclusion as a material element the
requirement that the building be a dwelling in order to aggravate the offense
to a second degree felony; measuring the defendant’s culpability toward that element should
be an important exercise in grading the extent of the criminality involved. The
doctrine that when one intends a lesser crime he may be convicted of
a graver offense committed inadvertently leads to anomalous results if it is generally
applied in the penal law; and while the principle obtains to some extent
in homicide, its generality has rightly been denied.
Even if the defendant in the circumstances supposed is not to be convicted
of the graver crime, it seems clear that he should not be acquitted.
One possibility is that the case could go to the jury as an
attempt to commit the lesser offense. Another possibility would be to permit a
conviction of the lesser offense, the one which he would have committed had
the facts been as he supposed them to be. A third possibility, which
is the one embraced in Section 2.04(2), is to deny the defense in
these circumstances, but to limit the classification of the offense and the available
dispositions of the defendant to those that would have been available upon conviction
of the lesser offense.
These three alternative approaches were published as such in Tentative Draft No. 4
at 17 (1955). The Advisory Committee and the Council selected the approach reflected
in [MPC § 2.04(2)], largely on the ground that it avoided a procedural objection
to the other alternatives, namely, that they might lead to a conviction of
a crime that the indictment or the information did not charge. The important
point, whichever of these solutions is adopted, is that the effective measure of
defendant’s liability should be his culpability, not the actual consequences of his conduct.
This is the result obtained here, through the denial of a defense that
otherwise would be available.
[Id. § 2.04 cmt. 2 at 272-74 (emphasis added) (footnotes omitted).]
The commentary does not end there. The 1971 explanation of proposed Section 2-4b
by the New Jersey Criminal Law Revision Commission (Commission) places on the MPC
language (recommended for verbatim inclusion in our Code) a gloss that is somewhat
confusing due to a few obvious internal errors. Nonetheless, it too discusses the
Commission’s patent intent to have the defense apply to non-lesser included offenses and
focuses on the determination of the crime for which a defendant may be
found guilty when his mistake involves such criminal conduct. The Commission stated:
The second change [to pre-Code New Jersey law] is found in § 2C:2-4c. [Gann
Ed. Note: This probably was intended to read 2C:2-4b.] Mistake dogma is frequently
stated as requiring that the mistake must be of such a nature as
to make the conduct non-criminal. If it is not, the mistake does not
excuse at all. When defendant would be guilty of some offense under his
view of the facts, it is possible to [1] find him guilty of
the graver offense, [2] find him guilty of the lesser offense, i.e., the
offense of which he would have been guilty were the facts as he
believed them, [3] find him guilty of the greater offense but limit sentence
to the lesser, or [4] find him guilty of an attempt to commit
the lesser offense. The Code alleviates the existing rule by stating that the
defendant cannot be found guilty of the greater offense which is negated by
the mistake but can be convicted of the offense which would have been
committed if the facts had been as he mistakenly believed them to be,
i.e., the third [Gann Ed. Note: This probably was intended to read second]
alternative, above. MPC T.D. 4, pp. 17-137 (1955).
[Cannel, supra, comment 4 on N.S.S.A. 2C:2-4b (reprinting II The New Jersey Penal
Code, Final Report of the New Jersey Criminal Law Revision Commission cmt. 3
on 2C:2-4 at 53 (1971)(emphasis added)).]
III.
A.
It is evident from the commentary on MPC § 2.04(2) that a defendant who
believed that it was another offense that he was committing, was not to
be allowed a complete defense to liability as permitted under MPC § 2.04(1). It
is also clear that efforts to limit the incomplete mistake-of-fact defense permitted under
MPC § 2.04(2) to included offenses was considered, and rejected, in the final language
contained in the MPC Official Draft. The Official Draft pointedly demonstrates rejection of
the proposed version of MPC § 2.04(2), which had highlighted the perceived difficulty of
allowing the incomplete defense in the context of a defendant’s mistaken belief he
was committing a non-lesser included offense. A version that eschewed such a limitation
was adopted by the ALI and later incorporated into our Code without change.
We see no reason to infer that by the MPC § 2.04(2) reference to
reducing “the grade and degree of the offense of which [the defendant] may
be convicted,” the MPC drafters intended to limit the incomplete mistake-of-fact defense of
MPC § 2.04(2) to lesser-included offenses only.
Even more compelling is the Commentary by the Commission concerning Section 2-4b of
our Code, despite the obvious errors in transcription. The Commentary discusses the options
that were considered for inclusion in the provision and notes specifically the Commission’s
choice of that option which would permit the defense to apply even when
it is a non-lesser included offense that a defendant supposed he was committing.
Applying the consistent thread that runs throughout the discussions of those involved in
the drafting of the MPC and our Code, we can find an intent
to allow the imperfect mistake-of-fact defense to a defendant who commits one crime
while believing himself to be committing another, non-lesser included, offense.
Moreover, were we to conclude otherwise and hold that a defendant in such
a circumstance could argue only that his mistaken belief, if accepted by the
jury, negated the required mental state for the graver offense charged (the “all-or-nothing”
position taken by the State, the trial court and the Appellate Division here),
we would put the defendant in no different a position than he is
under Section 2-4a. Section 2-4b would be reduced to surplusage in such circumstances.
Enabling a defendant to avoid conviction entirely was not the desired intent of
the drafters of Section 2-4b and its predecessor in the MPC. Just the
converse appears to have been intended: namely, that the defendant be held liable
for his lesser culpability, while not allowing conviction for the greater wrong of
which he was not aware. As stated by the MPC Commentary, the “effective
measure of defendant’s liability should be his culpability, not the actual consequences of
his conduct.” MPC § 2.04 cmt. 2 at 273-74. The drafters did not intend
that a defendant who believed he was committing a non-lesser included offense would
be able to evade criminal liability entirely.
B.
The sum of the MPC and Code commentary is a mix, however, in
respect of identifying the crime for which a defendant, asserting a mistake-of-fact defense
under Section 2-4b may be found guilty. In addition, there are criminal law
scholars who contend, essentially, that the culpability determination is critical in the analysis
of how to punish a defendant under Section 2-4b. Proponents of that approach
argue for the defendant’s actual culpability to be given controlling effect as between
that which a defendant may have mistakenly done and that which he thought
he did. See LaFave & Scott, supra, § 5.6(c) at 405. Stated differently, although
a defendant should not be held liable for a graver crime if he
did not have the requisite mens rea, he may be convicted for another,
non-lesser included crime that he believed he was committing.
That is Cannel’s interpretation of our Code’s language. He explains that “[b]asically, what
[Section 2-4b] says is that if a person reasonably believes he is shooting
a deer, and he is shooting a person, he can not be convicted
of murder, but only of hunting out of season.” Cannel, supra, comment 4
on N.J.S.A. 2C:2-4. Cannel’s view is shared by LaFave, who construes the source
language of MPC § 2.04(2) to mean that a defendant may be convicted “‘of
the offense of which he would be guilty had the situation been as
he supposed,’” notwithstanding that the supposed offense is not a lesser-included offense of
that actually committed. LaFave & Scott, supra, § 5.1(b) at 584 & n.53 (quoting
MPC § 2.04(2) (Official Draft and Revised Comments 1985)).
To be sure, the scholarly commentators are not of one mind on this
subject. Although it is generally agreed that a defendant ought not be acquitted
if he claims that it was another lesser crime that he supposed he
was committing, the competing rationales for supporting a conviction on some lesser crime
are debatable. Certain commentators would construe the MPC and Section 2-4b to permit
a defendant to be charged with, and convicted of, “the [graver] offense for
which the actus reus is satisfied,” but limit the punishment for that offense,
if it would be more severe, to that of the “offense that he
thought he was committing.” 1 Paul H. Robinson et al., Criminal Law Defenses
§ 62 (c)(5) & n.37 (1984 & Supp. 2002-2003)(Robinson). See also Singer, supra, 4
Buff. Crim. L. Rev. at 191. According to Professor Robinson, both the MPC
and Section 2-4b contemplate application of the doctrine of “substituted mental elements,” which
would allow the requisite mens rea for the crime actually committed to be
imputed from a defendant’s admitted culpable mental state for the crime he supposed
he was committing. Robinson, supra, §§ 62(c)(5), 89(e). Robinson adds that although the language
of the MPC (and Section 2-4b) would seem “to permit the actor’s culpable
mental state for any other offense to provide the basis for imputation, the
better approach is to adopt an equivalency theory that would require that the
other offense be one of similar blameworthiness,” such as mistaken arson or burglary
of a dwelling rather than a store. See id. § 62(c)(5) & n.34.
In sum, and as all the above scholars seem to agree, the language
of Section 2-4b and its source provision in the MPC reasonably support an
approach permitting a defendant to present his incomplete mistake-of-fact defense under N.J.S.A. 2C:2-4b
when he claims he was committing another non-lesser included offense and not the
different and graver crime for which he was indicted. That mistake-of-fact defense, if
believed by the jury, would prevent his conviction and punishment for the graver
crime. It does not entitle him to a complete acquittal, however, not even
if the other offense he supposed he was committing was not charged in
the indictment and not even if it was not a lesser-included offense to
the offense charged in the indictment.
As among the competing views on what offense a defendant may be convicted
and for which he may be punished, we find that it is analytically
more consistent with Code precepts to allow conviction and punishment of a defendant
for the crime of which he was culpable, that is the crime that
he actually would have committed had the facts proven to be as he
believed. We choose that approach over an approach that would convict defendant of
a crime for which he did not have intent on the basis of
substituted intent, and then reduce the conviction in grade to match the degree
of culpability of the offense he believed he was committing.
See footnote 4
If the jury
believes the defendant’s “explanation” that he thought he was acting in furtherance of
the commission of a non-lesser included offense, it may convict the defendant of
that crime on the basis of that testimony. Thus, we hold that a
jury must be instructed that under N.J.S.A. 2C:2-4b that it may convict a
defendant of the crime to which he has admitted if it believes his
testimony. In this instance, defendant was entitled to a jury charge that would
allow him to be convicted of receiving stolen property, in violation of N.J.S.A.
2C:20-7a (a crime of the third degree), in addition to the charges on
which he was indicted, Count I, third-degree possession of CDS, in violation of
N.J.S.A. 2C:35-10a(1); and Count II, first-degree possession of CDS with intent to distribute,
in violation of N.J.S.A. 2C:35-5b(1).
To be sure, the substituted mens rea approach has analytic attraction, drawing as
it does from the language in N.J.S.A. 2C:2-4b that refers to punishment of
a defendant for the crime charged, reduced to the “grade and degree” of
the crime he supposed he was committing. Under the alternative approach espoused by,
among others, Professor Singer, defendant could have the grade and degree of offenses
for which he was indicted – first-degree possession of CDS with intent to distribute
and third-degree possession of CDS – reduced to the grade and degree of the
offense that he believed he committed – third-degree receiving stolen property. In this matter
either approach results in conviction of an offense of the same grade and
degree, a third-degree crime. However, a third-degree drug offense carries different, and more
severe penalties than third-degree receiving stolen property, including the potential of an extended
term sentence under N.J.S.A. 2C:43-6f, and a fine of up to $75,000 for
third-degree possession of CDS with intent to distribute pursuant to N.J.S.A. 2C:35-5b(5), versus
a fine of $15,000 for third-degree receiving stolen property pursuant to N.J.S.A. 2C:43-3b(1).
Thus, Professor Singer’s approach would place the sentencing judge in the awkward position
of meting out a sentence for a drug offense when defendant only had
the mens rea for a theft offense. As stated, our approach here is
guided by the Code’s direction that the criminal laws be applied in a
manner that punishes an individual for his culpability. If the jury accepts defendant’s
testimony and finds that he did not believe he was carrying drugs, his
punishment should be that which the legislature has chosen to apply to the
specific crime the defendant believed he was committing. Our holding serves that sensible
purpose.
Finally, to the extent that the MPC drafters perceived “procedural difficulties” associated with
our approach, see MPC § 2.04 cmt. 2 at 273 (expressing concern for notice
through indictment where that right is guaranteed), we find that those difficulties to
be more apparent than real. Deviation from the requirement of fair notice through
indictment may be justified when a defendant raises his intention to commit the
non-lesser included offense as his defense to the offenses charged. See LaFave &
Scott, supra, § 5.01(c) at 584 n.53. Indeed, although submission to a jury of
an unindicted, non-lesser included offense implicates the guarantee that “[n]o person shall be
held to answer for a criminal offense unless on the presentment or indictment
of a grand jury,” N.J. Const. art. I, ¶ 8, we have recognized that
a defendant may waive the right to indictment and agree to proceed on
a non-lesser included charge. State v. Ciuffreda,
127 N.J. 73, 76 (1992). See
R. 3:7-2 (allowing defendant in non-capital case to waive, in writing, right to
indictment).
In Ciuffreda, we permitted an exception to the waiver requirements of Rule 3:7-2
due to the timing and source of the request. The defendant consented to
a passion/provocation charge after all the evidence had been presented by the parties
and, in that context, the defendant’s oral consent was deemed a sufficient waiver.
Here, as in Ciuffreda, defendant contemplated before trial that the unindicted charge of
receiving stolen property might have been submitted to the jury as a non-lesser
included offense. His entire defense was built on the hope that the jury
would believe his testimony about the fur coats and the trial proceeded on
that basis. Defendant clearly was satisfied with the evidence submitted to the jury
on the proposed possession of stolen property offense because he himself requested that
the unindicted charge be submitted for the jury’s consideration. His due process rights
to notice and opportunity to defend were not violated in those circumstances.
However, whereas in Ciuffreda the State had requested that the unindicted charge be
submitted and Ciuffreda consented, here, the State objected to the charge defendant requested.
The State contends that defendant has turned Ciuffreda effectively on its head by
attempting to use his fundamental right to indictment to advantage against the State’s
prerogative to choose which unrelated charges it will, or will not, charge and
prosecute. See State v. Smith,
136 N.J. 245, 253 (1994) (“A defendant should
not be allowed to alter the State’s trial strategy by admitting the commission
of an unrelated, less serious offense, and then having the court charge the
jury, over the State’s objection, that it can return a verdict on that
offense”); see also State v. Freeman,
324 N.J. Super. 463, 469 (App. Div.
1999) (noting prosecutor’s charging discretion and consent are relevant to whether unindicted charge
may be submitted to jury when defendant’s proposed lesser-offense charge is neither an
included offense nor one “embraced” by indictment).
The State’s approach, if accepted, would preclude defendant from access to the incomplete
mistake-of-fact defense that the Legislature has permitted by the inclusion of N.J.S.A. 2C:2-4b
in our Code. Such a result would be inconsistent with the statutory language,
and its history, as we understand it. Moreover, the State’s view results in
rendering Section 2-4b essentially superfluous, for its interpretation would limit Section 2-4b by
the constraints applicable to a trial court’s existing lesser-included offense charging responsibilities under
N.J.S.A. 2C:1-8. That would confound Section 2-4b’s independent significance.
Finally, as we did in Sexton, we remind the trial court that it
must explain in its instruction to the jury the contours of the incomplete
mistake-of-fact defense in light of the facts of this case. See Sexton, supra,
160 N.J. at 106. The trial court may consider a charge along the
following lines on the facts here presented:
In this case, the defendant contends that he believed that he possessed stolen
fur coats, which if true, would constitute the offense of receiving stolen property,
a crime of the third degree. If you find that the State has
not proven beyond a reasonable doubt that the defendant knew that he possessed
cocaine, rather than fur coats, defendant should be acquitted of [CDS offenses] and
convicted of receiving stolen property. If, on the other hand, you find that
the State has proven beyond a reasonable doubt that the defendant knew he
possessed CDS, and not fur coats as the defendant contends, then you should
convict defendant of [CDS offenses] and not convict defendant of receiving stolen property.
We shall refer the question of a more general charge on the subject
to the Committee on Model Criminal Charges for review.
In sum, we conclude that the defendant has waived his right to indictment
secured to him under Article I, paragraph 8 of the New Jersey Constitution
by asserting, as his mistake-of-fact defense to possession of CDS, that he believed
he was engaged in the criminal offense of receipt of stolen property. The
jury should have been instructed on that defense and should have been told
that if it believed defendant’s testimony it could find him guilty of the
third-degree crime of receipt of stolen property.
We acknowledge that our dissenting colleagues would end this matter now because of their view that a proper instruction would not have altered the jury’s verdict. We, however, are not as willing to make that prediction consistent with a traditional harmless-error analysis. Put another way, this case is not so unusual to require departure from the well-established rule that presumes that a trial court’s instructional error on a material issue constitutes reversible error. See State v. Warren, 104 N.J. 571, 579 (1986) (outlining relevant standards in this area of law). Under those circumstances, a new trial before a properly charged jury is the appropriate remedy.
The judgment of the Appellate Division is reversed and the matter remanded for further proceedings consistent with this opinion.
JUSTICES LONG, ZAZZALI, ALBIN, and WALLACE join in JUSTICE LaVECCHIA’s opinion. JUSTICE VERNIERO filed a separate opinion concurring in part and dissenting in part in which CHIEF JUSTICE PORITZ joins.
SUPREME COURT OF NEW JERSEY
A- 51 September Term 2001
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSE PENA,
Defendant-Appellant.
JUSTICE VERNIERO, concurring and dissenting.
I concur with the Court’s statutory analysis but respectfully dissent from its ultimate
disposition. I would find that the trial court’s failure to charge a mistake-of-fact
defense was harmless error.
I fully appreciate that “erroneous [jury] instructions on material issues are presumed to
be reversible error, excusable only if they are harmless beyond a reasonable doubt.”
State v. Warren,
104 N.J. 571, 579 (1986) (internal citation and quotation marks
omitted). Harmless error in these circumstances ordinarily is not found. However, this is
the unusual case in which the record lends itself compellingly to a harmless-error
analysis.
The State presented overwhelming evidence of defendant’s guilt. Included in those proofs were
the undisputed expert testimony that Houston (the city to which defendant traveled to
secure the contraband) is a source city for cocaine; that drug traffickers often
purchase one-way tickets (like the ticket purchased for defendant) to source cities; that
they purchase those tickets with cash (as happened here); and evidence that defendant
himself was familiar with the drug trade because of a prior drug conviction
(which the jury learned by his own testimony).
Importantly, the State’s proofs also included the physical evidence such as the suitcase
containing the cocaine that defendant was carrying when arrested. Defendant testified to his
belief that the suitcase contained not cocaine, but rather six fur coats that
he described as “medium size, . . . long sleeve, very furry and
inside, very comfortable.” (We inspected the suitcase, which is part of the record.
It is an average-size container, approximately eight inches wide, seventeen inches high, and
twenty-four inches long, suitable for one person to carry.)
In her closing argument the assistant prosecutor pointedly referred to the physical and
testimonial evidence, asking jurors,
how many fur coats . . . do you think you can get
into [that] suitcase? Six? Wrong. No. I want you, when the suitcase goes
[into the jury deliberation room] with the drugs, I want you to feel
how heavy it is with and without the drugs. And I want you
to ask yourself those questions that I had asked of you. Because when
you do that, you’re going to know, you’re going to find out for
yourselves that the reason that defendant went to Houston was to pick up
the drugs, the merchandise as he puts it.
The conclusion is unmistakable that, in returning its guilty verdict, the jury simply
could not accept that defendant was laboring under the mistaken belief that he
was carrying six “long sleeve, very furry” fur coats in that single suitcase.
The jury’s determination should come as no surprise. As demonstrated by the assistant
prosecutor, it is virtually impossible for a person to fit and carry six
such fur coats in the suitcase used by defendant. Affording an accused a
fair trial does not mean that we must expect jurors to accept an
utterly implausible or untenable defense.
Although the trial court did not instruct the jury on mistake-of-fact, neither did
it contradict that theory in its overall charge. Moreover, jurors fully were aware
of the defendant’s position. Indeed, defendant’s entire defense was predicated on that proposition,
which the jury presumably understood based on defendant’s testimony and his counsel’s statements
to jurors. (Defense counsel repeatedly referred jurors to defendant’s mistake-of-fact defense.) “We must
. . . consider the charge [that was given here] in light of
the arguments made by trial counsel, as those arguments can mitigate prejudice resulting
from a less-than-perfect charge.” State v. Robinson,
165 N.J. 32, 47 (2000).
In sum, I am satisfied beyond a reasonable doubt that the brief charge
that the majority now requires would not have altered the jury’s verdict. Defendant
presented his mistake-of-fact defense, albeit without his requested instruction. Yet, “[c]onsidering the instructions
in their entirety, in the context of the evidence and the arguments of
trial counsel, [I am] convinced that the charge [that was given in this
case] was fair.” Ibid. Measured against the overwhelming proofs presented by the State,
there was nothing about defendant’s trial that was capable of producing an unjust
result. The jury’s verdict, therefore, should not be disturbed.
CHIEF JUSTICE PORITZ joins this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-51 SEPTEMBER TERM 2002
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSE PENA,
Defendant-Appellant.
DECIDED January 26, 2004
Chief Justice Poritz PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINION BY Justice Verniero
DISSENTING OPINION BY
CHECKLIST