(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 October 24, 1994 -- Decided July 12, 1995
POLLOCK, J., writing for the Court.
A jury convicted Rigoberto Mejia of murder, robbery, and related offenses in the death of Balbino
Garcia, a co-worker. During the penalty phase, the jury unanimously found the aggravating factor of murder
committed during a felony to outweigh the mitigating factors, and sentenced Mejia to death.
Mejia and Garcia were undocumented workers at the Breakers Hotel in Spring Lake. Mejia gave a
statement to authorities indicating that he had entrusted Garcia with $750 for safekeeping. When Mejia
learned that Garcia was planning to leave the country, Mejia confronted him with a handgun and demanded
the money. Garcia denied possession of the money.
Mejia stated that he intended to use the handgun only to scare Garcia. He struck Garcia in the
head with the gun when Garcia tried to disarm him. Garcia then fled, and Mejia pursued him. Garcia was
shot at close range in the back and died a short time later. Mejia stated that the gun went off accidentally
while he was pursuing Garcia.
The Trial court failed to instruct the jury at the guilt phase that it need not be unanimous on
whether Mejia intended to kill Garcia or to cause serious bodily injury, and that if the jury was not
unanimous on Mejia's intent, then Mejia would not be subject to the death penalty. This omission was
critical. At the time of the offense, a defendant who intended to cause serious bodily injury, but not death,
was not subject to the death penalty. The erroneous charge constitutes reversible error.
HELD: Where the evidence provides a rational basis for a jury to find that a defendant intended only to
cause serious bodily injury, the jury must be given the option of convicting the defendant of murder without
unanimously agreeing on whether defendant's intent was to kill. Should the jury not be unanimous on a
defendant's intent, the defendant is not eligible for the death sentence. The claim of right defense is not
available to a defendant charged with robbery.
1. Recent constitutional and statutory amendments provide that murderers who intend to commit
serious bodily injury, like those who intend to kill, are death-eligible. At the time of Mejia's offense,
however, only a defendant who intended to kill would be subject to a death sentence. State v. Gerald,
113 N.J. 40 (1988). The trial court's charge essentially required the jury to deliberate sequentially and to acquit
Mejia of "intent to kill" murder before reaching the issue of "serious bodily injury" murder. The instruction
was defective in several respects: it exercised a potentially coercive effect; it did not adequately inform the
jury that the determination of Mejia's intent could also determine whether Mejia would live or die; and, most
significantly, it did not provide the jury with the option of convicting Mejia of murder without unanimously
agreeing on Mejia's intent. (pp. 6-15)
2. The Court rejects the State's argument that the error in the jury instruction as to Mejia's intent was
harmless. The failure to give a Gerald charge constitutes reversible error whenever the evidence is minimally
adequate to provide a rational basis for the jury to have a reasonable doubt whether a defendant intended to
cause death. On the facts of the instant case, a jury reasonably could have found either that the killing was
accidental, that Mejia intended to kill, or that he intended to cause serious bodily injury. (pp. 15-19)
3. Mejia was not entitled to an instruction that if the jury found he had sought to recover his money
under a claim of right, it could find him not guilty of robbery. The defense of claim of right is not available
to a defendant charged with robbery. The Criminal Code evinces a legislative intent to preclude recourse to
such a defense for thefts accompanied by violence. This interpretation comports with public policy, which
eschews self-help through violence. By contrast, a claim of right instruction should have been given in the
penalty phase, since such a claim could lend weight to the "catch-all" mitigating factor and could reduce the
weight placed on the aggravating factor of murder committed during a felony. (pp. 20-35).
4. The Court rejects Mejia's argument that his statement cannot be introduced as evidence because he
had not knowingly and intelligently waived his Miranda rights. Although the bilingual Miranda cards used by
authorities here contained some confusing language regarding Mejia's right to have a lawyer appointed to
represent him, the record is devoid of any suggestion that Mejia was confused or did not fully appreciate his
rights. (pp. 35-39)
5. There was no error in the trial court's failure to charge passion/provocation manslaughter, since the
record does not support such a charge. In addition, the trial court did not abuse its discretion in imposing a
twenty-year sentence for the robbery consecutive to Mejia's sentence for murder. Mejia's arguments in
respect of the penalty phase are rendered moot by the Court's disposition. (pp. 39-42)
Defendant's convictions are AFFIRMED. A question exists concerning the sentence for armed
robbery, and the trial court should clarify on remand the specific term and the period of parole ineligibility
on the armed robbery conviction. The imposition of the death penalty is REVERSED. If the State elects to
retry Mejia for capital murder, all convictions will be vacated. The matter is REMANDED for further
proceedings.
JUSTICE HANDLER, concurring in part and dissenting in part, concurs in the majority's opinion
that the death sentence should be reversed, but dissents to cite the following additional grounds warranting
reversal: the refusal of the trial court to allow particularized questioning of jurors in respect of publicity
generated by a recently-concluded capital trial in Monmouth County in which the defendant had received a
life sentence; and the State's use of evidence in the penalty phase to rebut Mejia's mitigation evidence that
he was abused as a child because the State's evidence was not truly rebuttal and it served to undermine the
jury's opportunity to properly measure Mejia's culpability for purposes of imposing the death penalty.
CHIEF JUSTICE WILENTZ and JUSTICES O'HERN, GARIBALDI and STEIN join in JUSTICE
POLLOCK'S opinion. JUSTICE HANDLER filed a separate opinion concurring in part and dissenting in
part. JUSTICE COLEMAN did not participate.
SUPREME COURT OF NEW JERSEY
A-
4 September Term 1994
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RIGOBERTO MEJIA, a/k/a MARTIN
GAMEZ,
Defendant-Appellant.
Argued October 24, 1994 -- Decided July 12, 1995
On appeal from the Superior Court, Law
Division, Monmouth County.
Jacqueline E. Turner and Abby P. Schwartz,
Assistant Deputy Public Defenders, argued the
cause for appellant (Susan L. Reisner, Public
Defender, attorney).
Mark P. Stalford, Assistant Prosecutor,
argued the cause for respondent (John Kaye,
Monmouth County Prosecutor, attorney; Stacy
H. Gaffney, Assistant Prosecutor, on the
brief).
Deborah Bartolomey, 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
POLLOCK, J.
Defendant, Rigoberto Mejia, also known as Martin Gamez, and
the victim, Balbino Garcia, were undocumented workers employed at
the Breakers Hotel in Spring Lake. Mejia had entrusted Garcia
with $750 from Mejia's earnings. When Mejia learned that Garcia
was about to leave the United States, Mejia demanded the return
of the money. Although Garcia had placed $1,201 in his eye-glass
case, he denied possession of Mejia's money. After a dispute,
Garcia fled down a basement hallway. Mejia fired a single shot,
which struck Garcia in the back. A short time later, Garcia
died. The State claimed the shot was purposeful; Mejia claimed
it was accidental.
At trial, the critical issue was whether Mejia had intended
to kill Garcia. The trial court instructed the jury that to find
defendant guilty of capital murder, it must unanimously find that
he had so intended. The court, however, failed to charge that to
find Mejia had intended to cause only serious bodily injury
resulting in death, the jury need not be unanimous. That
omission was critical. At the time of the offense, a defendant
who intended to cause serious bodily injury, but not death, was
not subject to the death penalty. State v. Gerald,
113 N.J. 40
(1988). On the facts, the erroneous charge constitutes
reversible error.
The jury convicted Mejia of capital murder and related offenses. We affirm Mejia's conviction for murder, but reverse the imposition of the death penalty. On remand, if the State elects not to seek the death penalty, Mejia's murder conviction
will stand, and the Law Division shall sentence him under
N.J.S.A. 2C:11-3b. If the State elects to seek the death
penalty, all convictions will be vacated and the State may re-try
him for murder and all other offenses.
The record, which includes Mejia's statement to the police, reveals the following facts. Defendant did not testify at either the guilt- or penalty-phase hearings. In the summer of 1991, Mejia and Garcia were co-workers at the Breakers, sharing a room in the hotel basement until Mejia was fired. Before leaving, Mejia asked Garcia to safeguard his savings of $750 "in case of emergency so that it would be protected."
After moving to Brooklyn, Mejia called Garcia several times
to recover his money. Garcia, however, did not return the money,
and Mejia learned that Garcia intended to return to Mexico before
Christmas. In fact, Garcia planned to return on December 8,
1991, on a 7:00 a.m. flight. Three hours before the flight,
Mejia, armed with a .357 Magnum and accompanied by an accomplice
armed with a knife, confronted Garcia in the hotel basement.
Garcia "spoke badly to [Mejia] and pushed his way out of the room and ran down the hall." Mejia pursued Garcia into a bedroom occupied by Garcia's brother-in-law and nephew and pointed his
handgun at the three men. According to Mejia's statement, Mejia
"didn't want to kill [Garcia]" and threatened Garcia with the
pistol to scare him. Garcia tried to take the pistol from Mejia,
who struck Garcia with the gun, fracturing Garcia's skull.
Garcia fled down the hallway with Mejia in pursuit. Mejia
claims that he slipped while chasing Garcia and accidentally
fired the gun. According to the State's ballistic expert, the
gun was fired within one-half inch of the victim's back. As
Garcia lay dying, he told his girlfriend that Mejia had shot him.
Three days later, Garcia's nephew called the police after
observing Mejia walking along the boardwalk in Belmar. When the
police arrested Mejia, he was carrying a .357 Magnum with five
cartridges in its six-cartridge chamber. A State Police
ballistics expert determined that the bullet taken from Garcia's
body had been fired from Mejia's gun.
A Monmouth County Grand Jury charged Mejia with murder, in violation of N.J.S.A. 2C:11-3; felony murder, in violation of N.J.S.A. 2C:11-3a(3); armed robbery, in violation of N.J.S.A. 2C:15-1; aggravated assault, in violation of N.J.S.A. 2C:12-1b; possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a; and unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5b. The prosecutor served a notice
of aggravating factors specifying that Mejia had committed the
murder during a felony, N.J.S.A. 11-3c(4)(g) ("the c(4)(g)
factor").
The jury convicted Mejia on all counts. At the penalty
phase, the jury found that defendant had committed the murder
during a felony. Mejia relied on N.J.S.A. 2C:11-3c(5)(h), which
lists as a mitigating factor "[a]ny other factor which is
relevant to the defendant's character or record or to the
circumstances of the offense" ("the catch-all factor"). Of the
eight mitigating factors specified by Mejia, the jury unanimously
found two factors because Mejia's father had physically and
mentally abused him as a child. Five jurors found that Mejia had
suffered emotional deprivation during his childhood. Three found
a non-specific catch-all factor. The jury unanimously found that
the single aggravating factor outweighed the mitigating factors
beyond a reasonable doubt. Consequently, the jury sentenced
Mejia to death.
On the non-capital offenses, the court sentenced Mejia: for armed robbery, twenty years without parole eligibility to run consecutively to the death sentence; for aggravated assault, ten years with a five-year period of parole ineligibility; for possession of a weapon for an unlawful purpose, ten years with a five-year period of parole ineligibility; and for unlawful
possession of a weapon, a concurrent five-year term with two and
one-half years of parole ineligibility.
Defendant urges as plain error the trial court's failure to instruct the jury that it could return a non-unanimous verdict that he intended only to cause serious bodily injury. Gerald, supra, 113 N.J. at 89. We agree. We also find that the evidence provides a rational basis for a jury to find that defendant intended only to cause serious bodily injury. Accordingly, we reverse defendant's death sentence and remand for imposition of a non-capital-murder sentence. On remand, if the State should seek the death sentence, the murder conviction must be vacated and the murder count retried. See State v. Purnell, 126 N.J. 518, 543 (1992) (vacating capital sentence but permitting State to re-try murder count on remand); State v. Dixon, 125 N.J. 223, 229 (1991) (vacating death sentence and remanding for imposition of non-capital murder sentence); State v. Long, 119 N.J. 439, 504-05 (1990) (discussing effect of partial criminal reversal and whether reversal of capital-murder count requires reversal of any other related count).
The intent to cause serious bodily injury, like the intent to kill, can establish the requirement that a murder is "knowing"
or "purposeful" under N.J.S.A. 2C:11-3a. Because of recent
constitutional and statutory amendments, P.L. 1993, c. 111
(signed May 5, 1993), murderers who intend to commit serious
bodily injury, like those who intend to kill, are death-eligible.
At the time of defendant's offense, however, only a defendant who
intended to kill would be subject to a death sentence. Gerald,
supra, 113 N.J. at 89. Accordingly, the trial court should have
instructed the jury to distinguish between finding that defendant
intended to kill and that he intended to inflict serious bodily
injury.
After defining "purposeful" and "knowing," the trial court
instructed the jury:
And so your inquiry as to this form of
murder will be has the State proved, beyond a
reasonable doubt, that the defendant
knowingly caused the death of the victim, Mr.
Garcia. If you are unanimously so satisfied,
then you will indicate that on the verdict
sheet and return a verdict of guilty to
purposely or knowingly causing the death of
the victim.
If you're not satisfied, you will so
indicate on the verdict sheet and return a
verdict of not guilty to purposely or
knowingly causing the death of the victim.
The trial court then proceeded to define "the other form of
murder":
The next inquiry is with regard to the
other form of murder under the statute. If
you're satisfied, beyond a reasonable doubt,
that the defendant either purposely or
knowingly caused the death of the victim,
then you don't have to answer the other
question as to that second form of murder.
But if your decision is that he's not guilty
of purposely or knowingly causing the death
of the victim, then you must consider now
whether the defendant purposely or knowingly
caused serious bodily injury to the victim
which resulted in the death.
Essentially, the court required the jury to deliberate
sequentially and to acquit defendant of "intent to kill" murder
before reaching the issue of "serious bodily injury" murder. The
court later emphasized:
And so you make the following determination
with regard to [the murder count] of the
indictment: One, how do you find the
defendant on the charge that on or about
December 8, 1991 he purposely or knowingly
caused the death of the victim, Balbino
Garcia. If your verdict is guilty to that
particular question, then you don't have to
consider any of the other issues that are
involved in count one that are on the verdict
sheet, and I'll go over that with you
shortly.
But if you determine that the State has
failed to prove that, beyond a reasonable
doubt, and then you consider the following
question: How do you find the defendant on
the charge that on or about 12/8/91, he
purposely or knowingly caused serious bodily
injury resulting in the death of Balbino
Garcia. And if your answer to that question
is guilty, then you don't have to consider
aggravated manslaughter or reckless
manslaughter.
Reflecting the sequential charge, the verdict sheet provided
in relevant part:
1. How do you find the defendant Rigoberto
Mejia on the charge that on or about
December 8, 1991 he did purposely or
knowingly cause the death of Balbino
Garcia?
If your verdict is GUILTY to the above
question, you need not answer any of the
following questions with regard to Count
One, and you may now go on to consider
Count Two.
2. How do you find the defendant Rigoberto
Mejia on the charge that on or about
December 8, 1991 he did purposely or
knowingly cause serious bodily injury
resulting in the death of Balbino
Garcia?
If your verdict is GUILTY to the above
question #2, you need not answer any of
the following questions with regard to
Count One, and you may now go on to
consider Count Two.
While reading the verdict sheet, the trial court reemphasized
that the jury need not consider any other possible verdicts on
the murder count unless it first acquitted defendant of "intent
to kill" murder.
The instructions contain several crucial defects. First, the sequential charge exercised a potentially coercive effect on
the jury. Second, the charge did not adequately inform the jury
that its determination of defendant's mental state could also
determine whether he would live or die. Most significantly, the
jury charge did not provide the jury with the option of
convicting defendant of purposeful or knowing murder without
unanimously agreeing on defendant's mental state.
We recently addressed the issue of sequential charges in
State v. Coyle,
119 N.J. 194 (1990). In Coyle, the trial court
instructed the jury that it could not consider the offense of
passion/provocation manslaughter without first acquitting the
defendant of murder. We held that the trial court's "instruction
had the potential to foreclose jury consideration of whether
passion/provocation should reduce an otherwise purposeful killing
from murder to manslaughter." Id. at 222. We observed that
"[j]uries are consistently told not to consider the
lesser-included offenses unless they first find the defendant not
guilty of the greater offense." Id. at 223. Although sequential
charges can provide an orderly framework for considering
lesser-included offenses, such charges should not be used in
cases involving passion/provocation manslaughter, which is not a
lesser-included offense of knowing and purposeful murder. Ibid.
Likewise, serious-bodily-injury murder is an alternative form of homicide, not a lesser-included offense of "intent to
kill" murder. See Long, supra, 119 N.J. at 450 (holding that
murder statute created two forms of murder); Dixon, supra, 125
N.J. at 252 (1991) (same); John M. Cannel, New Jersey Criminal
Code, Annotated, comment 13 to N.J.S.A. 2C:1-8(e) (1994) ("Though
no form of murder is, technically, a lesser-included of any
other, in a capital case, where there is support in the evidence
for a non-capital murder conviction, the jury must be given every
opportunity to convict of the charge not carrying the death
penalty."). Under N.J.S.A. 2C:11-3a, murder is defined as a
criminal homicide committed by an actor who knowingly or
purposely intends to cause death or serious bodily injury
resulting in death. Thus, one who kills with either intent is a
murderer. At the time of the homicide in question, however, only
an actor who killed with the intent to cause death would be
subject to the death penalty.
Our assessment of the prejudicial capacity of a sequential charge is grounded in the "circumstances of the case." State v. Zola, 112 N.J. 384, 406 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed.2d 205 (1989). One problem with a sequential charge is that it may cause a jury that believes a defendant guilty of something to convict on the first and most serious charge. See United States v. Tsanas, 572 F.2d 340, 345 (2d Cir.), cert. denied, 435 U.S. 995, 98 S. Ct. 1647, 56 L. Ed.2d 84 (1978) (stating when one element of offense is doubtful,
but defendant is plainly guilty of some offense, jury likely to
resolve doubts in favor of conviction). By treating serious-bodily-injury murder as a lesser-included offense, the subject
charge reduced the likelihood that the jury would consider
whether defendant intended to cause only serious bodily injury.
Thus, by not informing the jury about the effect of its
determination of defendant's mental state, the charge enhanced
the likelihood that the jury would find that defendant had
intended to cause death.
As we have repeatedly stated, trial courts, particularly in capital cases, must inform juries of the legal effect of their findings. See State v. Bey II, 112 N.J. 123, 164-65 (1988) (Bey II) (finding that failure to instruct jury about death consequences of finding one or more aggravating factors and no mitigating factors constituted reversible error); State v. Ramseur, 106 N.J. 123, 316 (1987) (holding that trial court must "make absolutely certain the jury is aware, not simply of the consequences of its actions, but of its total responsibility for the judgment"); cf. Roman v. Mitchell, 82 N.J. 336, 345 (1980) (finding that where comparative negligence is applicable, court must inform jury about the ultimate outcome of its determination of parties' percentage comparative fault); Dimogerondakis v. Dimogerondakis, 197 N.J. Super. 518, 519 (Law Div. 1984) (same). In the guilt phase of the present case, the court should have
told the jury that its determination of defendant's mental state
would predetermine whether defendant was subject to the death
penalty. Specifically, the court should have instructed the jury
that if it found that defendant had intended to kill the victim,
he would be subject to the death penalty. Conversely, the court
should have told the jury that if it found that defendant had
intended to cause serious bodily injury, he would be subject to
life imprisonment with thirty-years parole ineligibility. The
failure to inform the jury of the difference, which could have
"diluted the jury's responsibility for the imposition of the
death penalty," Bey II, supra, 112 N.J. at 164, constitutes
reversible error.
The most serious error was that the instructions foreclosed the jury from reaching a guilty verdict on the murder count without unanimously agreeing on defendant's mental state. Contrary to the State's contention, if the jury unanimously found that defendant committed homicide with the intent either to cause death or to cause serious bodily injury, but could not unanimously decide which mental state defendant possessed, this finding would result in a non-capital conviction. The finding would not, as the State asserts, result in a hung jury.
The State argues that such a result would violate the
"bedrock principles of jury unanimity and proof beyond a
reasonable doubt." We disagree. A jury need not agree
unanimously on a defendant's mental state when a finding on one
of several alternative mental states will satisfy the relevant
statutory requirement.
Our conclusion that the court should inform the jury of the
option to return a non-unanimous verdict on a defendant's mental
state follows our recent holding that a trial court must provide
the jury with the option of returning a non-unanimous verdict
when determining whether the defendant had committed murder by
his or her own conduct. State v. Bobby Lee Brown,
138 N.J. 481,
514 (1994). In Brown, we held "that the proper approach is for
trial courts to inform juries in capital cases of their option to
return a non-unanimous verdict on whether the defendant committed
the murder by his own conduct." Id. at 518.
Like the "by your own conduct" requirement, the "intent to
kill" requirement "`is not an element of the offense of murder
[but is] merely a triggering device for the death-penalty phase
of the trial.'" Gerald, supra, 113 N.J. at 99 (quoting State v.
Moore,
207 N.J. Super. 561, 576 (Law Div. 1985)). For this
reason,
[a]lthough a jury verdict that a defendant
committed murder [with the intent to kill]
must be unanimous, unanimity is not required
to support a verdict that a defendant guilty
of murder [committed the murder with the
intent to cause serious bodily injury].
Rather, the inability of the jury to reach a
unanimous decision of the [intent to kill]
determination constitutes a final verdict
that results in the imposition of a sentence
of imprisonment of at least a thirty-year
mandatory term, pursuant to N.J.S.A. 2C:11-3b.
Contrary to the State's argument, the unanimity requirement
redounds to the benefit of the defendant, not the State. As we
explained in Bey II, supra, 112 N.J. at 159, "[t]he unanimity
requirement extends only to verdicts adverse to the defendant,
and the Legislature may provide for the return of a verdict
favorable to the defendant on less than unanimity."
Here, at the end of the charge, the trial court instructed the jury: "Now this is a criminal case, your verdict has to be unanimous. All twelve of you deliberating must agree." The court also instructed the jury that they must decide, beyond a reasonable doubt, whether defendant intended to kill or to cause serious bodily injury. Consistent with the charge, the verdict sheet does not inform the jurors that they have an option to return a non-unanimous, or reasonably-doubtful, finding on the distinction between the intent to kill and to cause serious
bodily injury. The court erred by instructing the jury that to
avoid sentencing defendant to death, it must unanimously find
that defendant intended only serious bodily injury.
The State argues alternatively that the error was harmless. It contends that the court need not have given a Gerald charge because the evidence does not provide a rational basis for the jury to find that defendant intended only serious bodily injury. Again, we disagree.
As we have previously stressed, jury instructions are
"crucial in a capital case because of the jury's responsibility
to decide whether a defendant shall live or die." Id. at 162.
Moreover, a "trial court commit[s] prejudicial error by
instructing the jurors to engage in further deliberations in
terms that strongly impel[] them to reach a unanimous verdict."
Ramseur, supra, 106 N.J. at 305. As we stated in Ramseur,
such instructions cannot be considered
harmless error because "errors which impact
substantially and directly on fundamental
procedural safeguards, and particularly upon
the sensitive process of jury deliberations,
are not amenable to harmless error
rehabilitation . . . . A defendant
confronted with this kind of trial error need
not demonstrate actual prejudice in order to
reacquire his right to a fair trial."
[Id. at 312 (quoting State v. Czachor, 82
The charges in the present case impermissibly coerced the jury by
requiring it to return a unanimous verdict on defendant's state
of mind.
In appropriate cases, we have found the failure to give a Gerald charge to be harmless when the evidence did not provide a rational basis for a finding that the defendant intended only serious bodily injury. The defendant's actions in those cases, however, were so wantonly brutal that the jury could have concluded only that the defendant intended to cause death. See, e.g., State v. Bey III, 129 N.J. 557, 579 (1992) (defendant stomped on victim with sufficient force to crush her chest); State v. Biegenwald, III, 126 N.J. 1, 18 (1991) (defendant fired four gunshots to victim's head); State v. McDougald, 120 N.J. 523, 558-60 (1990) (defendant slashed victims' throats, bludgeoned one victim with a baseball bat, and expressed intent to kill victims before and after killings); State v. Hightower, 120 N.J. 378, 412-14 (1990) (defendant shot victim at close range in chest, neck, and head, and then dragged victim into freezer); State v. Rose, 120 N.J. 61, 63-64 (1990) (defendant fired twelve-gauge, sawed-off shotgun point-blank into victim's
stomach); State v. Pitts,
116 N.J. 580, 614-20 (1989) (defendant
threatened to kill victims two days before murder, inflicted
twenty-five to thirty stab wounds with a combat knife, cut one
victim's throat twice, and paused to take victim's pulse to
verify death); State v. Hunt,
115 N.J. 330, 374-77 (1989)
(defendant stated intent to kill immediately prior to stabbing
victim twenty-four times).
In contrast, the failure to give a Gerald charge constitutes
reversible error whenever the evidence is minimally adequate to
provide a rational basis for the jury to hold a reasonable doubt
that the defendant intended to cause death. See, e.g., Pitts,
supra, 116 N.J. at 615 (characterizing rational-basis standard as
a "low threshold"); State v. Pennington,
119 N.J. 547, 561 (1990)
(same).
As we have stressed,
[a]lthough it might seem probable that the
jury had intentional murder in mind, the
question is whether there is a rational basis
in the evidence on which the jury, if
instructed to distinguish the two, might
return a verdict of serious-bodily-injury
murder. If there is, then the jury, as the
finder of fact, must decide the matter. An
appellate court cannot.
Although the rational-basis test requires more than a mere
"scintilla of the evidence," it has a low threshold. State v.
Crisantos,
102 N.J. 265, 278 (1986). A rational basis may exist,
although the jury is likely to reject the defendant's theory. In
State v. Harris, ___ N.J. ___ (1995), also decided today, we find
the failure to give a Gerald charge to constitute harmless error.
The facts in that case, however, suggest that when Harris shot
the victim in the back of the neck, most likely while the victim
was handcuffed and lying on the ground, that the shooting was
intentional and that Harris was practically certain that death
would result.
The facts in the instant case, however, provide a rational basis for a charge that defendant intended to cause only serious bodily injury. Mejia confronted the victim about the return of his money. As Mejia explained in his statement to the police, when the victim denied possession of the money, Mejia hit him on the head with the gun, "[b]ecause I didn't want to use the gun . . . ." The initial attack, although criminal, is consistent either with an intent to kill or to cause serious bodily injury. Mejia states that he slipped as he pursued the victim and that the gun accidentally discharged. He fired a single shot, after which the victim lingered long enough to talk with his girlfriend. Mejia consistently has asserted that he did not
intend to kill the victim. To the contrary, he has stated that
the firing was accidental. We acknowledge that defendant's
statement that the killing was accidental differs from the
proposition that he intended to cause only serious bodily injury.
With so much at stake, however, we cannot draw overly fine
distinctions when analyzing a defendant's mental state. Our
examination of the record persuades us that the jury could have
found either that the killing was accidental, that defendant
intended to kill, or that he intended to cause serious bodily
injury.
As we stated in Pennington, supra, 119 N.J. at 562, "[t]o
the extent that the evidence sufficed to support a charge that
defendant acted recklessly, it raised the possibility that he did
not intend to cause death." We explained that "[g]iven the
inherent ineffability of mental states, the determination of
defendant's specific intent is best left to the jury." Id. at
563. Consequently, we held that the trial court, which had found
a rational basis for charging aggravated and reckless
manslaughter, also should have charged the jury on serious
bodily-injury murder. So here, we find that the jury should have
been given the option of finding that defendant had intended to
cause only serious bodily injury when he killed the victim.
Consequently, we reverse defendant's death sentence. That
disposition moots many of defendant's arguments. Consequently,
we will address only those issues that may affect a retrial.
Mejia contends that the trial court should have charged the jury that if it found that he had sought to recover his money under a claim of right, it could find him not guilty of robbery. We disagree.
On the State's case, a police officer read into evidence
Mejia's statement to the police. The statement indicated that
Garcia owed Mejia $750 that Mejia had entrusted to him for
safekeeping. Mejia stated further that he went to the Breakers
Hotel to "collect the money [Garcia] owed me," and that he
threatened Garcia with a gun "so he would give me the money."
According to Mejia, neither he nor Garcia had bank accounts
because they feared that account records might lead to disclosure
of their status as undocumented workers.
Consistent with his statement that he was seeking to recover
his own money, Mejia requested a claim-of-right charge. The
statutory basis for such a charge is:
c. Claim of right. It is an
affirmative defense to prosecution for theft
that the actor:
(1) Was unaware that the property or
service was that of another;
(2) Acted under an honest claim of
right to the property or service involved or
that he had a right to acquire or dispose of
it as he did . . . .
In its guilt-phase charge, the trial court, however, charged
that Mejia was not entitled to a claim-of-right defense:
Now, even if you find that the Defendant
was trying to collect a monetary debt he
claims the victim owed to him, you may still
find him guilty of robbery, if you find that
the Defendant used or threatened the use of
force. Since it is unlawful to use force or
the threat of force to collect a debt. The
use of force or threats to collect a monetary
debt, even if legitimately there is
legitimate debt, is unlawful.
Before the penalty phase, counsel renewed her request for a
claim-of-right instruction. Her point was that if the jury had
found that defendant was attempting to recover his own money, not
rob Garcia, that finding could have affected the jury's decision
to impose the death penalty. The trial court denied the request,
explaining that the claim-of-right defense is available only when
a defendant had attempted to reclaim specific property, but not
when he had attempted to collect a debt. The court found further
that the evidence did not support Mejia's argument that at the
time of the homicide he was attempting to reclaim the specific
parcel of money that he had entrusted to Garcia.
Mejia claims that the "anti-claim-of-right" charge in the
guilt phase constitutes reversible error. He argues further that
the court's repetition of the charge during the penalty phase
foreclosed the jury from considering the effect of the
surrounding circumstances on the mitigating or aggravating
factors.
Although the Appellate Division has recognized the claim-of-right defense to a charge of robbery, we have not addressed the
issue. We now hold that a defendant charged with robbery is not
entitled to an affirmative defense of claim of right. We also
find that the trial court erred in the penalty phase by
precluding the jury from considering as a mitigating factor
evidence of Mejia's honest belief that he was recovering his own
money.
The common law defined robbery generally as theft of property from the victim by force or by putting the victim in fear of immediate bodily injury. See State v. Cottone, 52 N.J. Super. 316, 323 (App. Div. 1958), certif. denied, 28 N.J. 527 (1959); see also 77 C.J.S. Robbery § 2 (1994) (listing elements of common law robbery); 67 Am. Jur 2d Robbery §§ 1, 12 (1985) (same). Common law robbery consisted of the combination of the common law crimes of assault and larceny. State v. McDonald, 91 N.J.L. 233, 236 (E. & A. 1918) (holding that robbery consists of combination of theft and actual or threatened injury); 77 C.J.S. Robbery § 2 n.14 (1994) (holding that robbery said to be combination of assault and larceny); 67 Am. Jur 2d Robbery § 9 n.3 (1985) (stating that robbery is customarily viewed as aggravated form of larceny). Robbery, like larceny and the equivalent statutory offense of theft, requires proof of the defendant's larcenous intent. See 2 Frank G. Schlosser, Criminal Laws of New Jersey § 92:5 (3d ed. 1970) ("To constitute robbery the property must be taken with larcenous intent, i.e. with intent to steal it."); 77 C.J.S. Robbery § 11 (1994); 67 Am. Jur 2d Robbery § 17 (1985). Absent proof of the specific intent to steal, a defendant cannot be found guilty of robbery. Ibid.
When adopting the New Jersey Code of Criminal Justice (the Code), the Legislature intended to "`revise and codify the [criminal] law in a logical, clear and concise manner.'" Daniel Louis Grossman, The New Jersey Code of Criminal Justice: Analysis and Overview, 3 Seton Hall Legis. J. 1, 1 (1977) (quoting N.J.S.A. 1:19-4). Patterned after the Model Penal Code (MPC), the Code abolished all common law crimes, N.J.S.A. 2C:1-5, including robbery. In determining whether the defense of claim of-right applies to robbery, we must ascertain the intent of the Legislature. Hence, we turn to the language and legislative
history of the Code's provisions pertaining to robbery, theft,
and the claim-of-right defense.
N.J.S.A. 2C:15-1a defines robbery:
A person is guilty of robbery if, in the
course of committing a theft, he:
(1) Inflicts bodily injury or uses force
upon another; or
(2) Threatens another with or purposely
puts him in fear of immediate bodily injury;
or
(3) Commits or threatens immediately to
commit any crime of the first or second
degree.
The statute defines "in the course of committing a theft" to
include attempts to commit theft and immediate flight after an
attempted or completed theft. Ibid. By so defining "theft," the
Legislature broadened the common law definition of "robbery."
The Legislature further broadened the common law definition by
providing that the requisite force, although less than that
needed for an assault, could satisfy the requirement of "injury"
and "force." One authority explains: "The phrase `or uses force'
broadens the definition of robbery to include situations without
threat or injury, such as `the blindside muggings typical of many
purse-snatchings.'" Cannel, supra, at 351 (quoting State v.
Carlos,
187 N.J. Super. 406, 412 (App. Div. 1982), certif.
denied,
93 N.J. 297 (1983)).
The MPC expressly links robbery and theft, differentiating the two offenses only by requiring the use or threat of force as an element of robbery. Thus, the MPC implies that robbery and theft share the same requirement of criminal intent. See David Kleinhans, Note, Robbery in Illinois: A Proposal to Reinstate the Element of Specific Intent, 27 J. Marshall L. Rev. 819, 842 (1994) (stating that MPC does not distinguish theft from robbery on basis of defendant's mental state). Most state statutes, like the MPC, define robbery as a specific-intent crime. See id. at 844 n.202; see also, e.g., Ala. Code § 13A-8-43 (1982) (defining robbery as offense that involves theft); Ark. Code Ann. § 5-12-102 (Michie 1987) (declaring that robbery must occur in course of committing theft); Conn. Gen. Stat. § 53a-133 (1985) (stating that robbery must occur in course of committing larceny); Del. Code Ann. tit. 11, § 831 (1987 & Supp. 1992) (defining robbery as an offense that occurs in the course of committing a theft); Ga. Code Ann. § 16-8-40 (Harrison 1990) (listing intent to commit theft as statutory requirement for robbery conviction); Haw. Rev. Stat. § 708-840 (1985) (containing in the course-of-committing-theft language); Iowa Code Ann. § 711.1 (West 1993) (requiring intent to commit a theft); Ky. Rev. Stat. Ann. § 515.030 (Michie/Bobbs-Merrill 1990) (linking theft and robbery by course-of-committing-theft language); Me. Rev. Stat. Ann. tit. 17-A, § 651 (West 1983) (associating robbery with theft by stating robbery must occur if theft committed or
attempted); Mont. Code Ann. § 45-5-401 (1993) (using MPC course of-committing-theft language); N.H. Rev. Stat. Ann. § 636:1 (Supp. 1993) (same); N.M. Stat. Ann. § 30-16-2 (Michie 1984) (stating that robbery consists of theft by force or threats of force); N.Y. Penal Law § 160.00 (McKinney 1988) (declaring that robbery must occur in course of committing larceny); N.D. Cent. Code § 12.1-22-01 (1985) (including MPC in the course-of committing-theft language); Ohio Rev. Code Ann. § 2911.02 (Anderson 1993) (listing theft section and MPC language); Or. Rev. Stat. § 164.395 (1990) (following MPC interpretation of robbery); Pa. Stat. Ann. tit. 18, § 3701 (1972) (same); Tenn. Code Ann. § 39-13-401 (1991) (defining robbery as intentional or knowing theft of property); Tex. Penal Code Ann. § 29.02 (West 1989) (declaring robbery as offense occurring in course of committing theft); Wyo. Stat. § 6-2-401 (1988) (listing theft section and MPC language). Only a handful of states adopt the minority view that robbery is a crime of general intent. See, e.g., State v. Minano, 710 P.2d 1013, 1016 (Alaska 1985) (holding that intent to deprive is not indispensable element of robbery); People v. Meeks, 542 P.2d 397, 398 (Colo. Ct. App. 1975) (declaring that robbery is general, not specific-intent, crime); State v. Thompson, 558 P.2d 1079, 1086 (Kan. 1976) (holding that intent to permanently deprive not element of robbery and that general intent will suffice for robbery conviction); Traxler v. State, 251 P.2d 815, 836 (Okla. Crim. App. 1953) (ruling that
intent to steal or deprive not element of robbery). Following
the majority view, the Code specifies that robbery, like theft,
is a specific-intent crime.
The Code, like the MPC, incorporates theft as an element of robbery. In this sense, all robberies are thefts, but not all thefts are robberies. See State v. Sein, 124 N.J. 209, 229 (1991) (Wilentz, C.J., dissenting) (stating that "[a]ll robberies are thefts; robbery is simply a greater offense that always includes theft"); see also State v. Jordan, 240 N.J. Super. 115, 120 (App. Div.) ("[T]heft of movable property and shoplifting are lesser-included offenses of second-degree robbery . . . ."), certif. denied, 122 N.J. 328 (1990); State v. Lawson, 217 N.J. Super. 47, 51 (App. Div. 1987) (theft merges into robbery); Carlos, supra, 187 N.J. Super. at 419 (Gaulkin, J. concurring) ("[S]ince robbery requires proof of theft or attempted theft, each such theft or attempted theft can yield only a single robbery conviction no matter how many persons are intimidated in connection therewith."); cf. State v. Talley, 94 N.J. 385, 393 (1983) (theft by deception, while not strictly lesser-included-offense of robbery, is nonetheless "embraced" within robbery). Consequently, the intent required for theft also is required for robbery. Although robbery may consist of an assault on one victim following a theft from another, State v. Mirault, 92 N.J. 492, 497 n.4 (1983), theft or attempted theft is always a
necessary element of any robbery, Carlos, supra, 187 N.J. Super.
at 412.
The Code makes clear that for an act to constitute theft the stolen property must belong to another. An actor commits theft "if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof." N.J.S.A. 2C:20-3a; see also N.J.S.A. 2C:20-3b ("A person is guilty of theft if he unlawfully transfers any interest in immovable property of another with purpose to benefit himself or another not entitled thereto."); N.J.S.A. 2C:20-5 ("A person is guilty of theft by extortion if he purposely and unlawfully obtains property of another by extortion."). Implicit in the statute is the allocation to the State of the burden of proving that the property is that of another. "Property of another," under the statute, "includes property in which any person other than the actor has an interest which the actor is not privileged to infringe . . . ." N.J.S.A. 2C:20-1h. Of course, a defendant has the right to present evidence tending to negate an essential element of the State's case. See State v. Bowens, 108 N.J. 622, 637 (1987) (explaining that evidence simultaneously can serve to support failure-of-proof defense and exculpatory defense). More specifically, a defendant charged with theft or robbery may present evidence proving that the property taken was the defendant's and not the "property of another." By comparison,
claim of right is not premised on a failure of proof, but on
justification. See State v. Breakiron,
108 N.J. 591, 603-04
(1987) (discussing various categories of defense: justification,
excuse, failure of proof, or public policy).
Mejia contends that the trial court's anti-claim-of-right charge may have led the jury to believe that it could convict him of robbery even if it found that he had attempted to recover his own property. If the jury charge had that effect, however, the error was harmless. The jury could not have concluded rationally either that Mejia was attempting to recover his own specific property or that Garcia did not possess a protectible interest in it.
Here, moreover, Mejia was not attempting to recover specific
currency, such as antique coins. Nothing suggests that Mejia
would have been dissatisfied with anything but the specific $750
that he had delivered to Garcia. As Mejia stated, he went to
"collect the money [Garcia] owed me." In sum, Mejia attacked
Garcia to collect a $750 debt.
Apart from arguing that he sought to recover his own specific property, defendant also relies on the affirmative
defense of claim of right. To establish the claim-of-right
defense, defendant need prove only that he honestly believed that
he was recovering his own property, not that the alleged victim
actually possessed his property. As the 1971 Commentary to the
Code states, "[t]he Code adopts the position that a genuine
belief in one's legal right shall in all cases be a defense to
theft" when credible evidence supports the defense. II New
Jersey Code: The Final Report of the New Jersey Law Commission
§ 2C:20-2, Commentary at 221-22 (1971); cf. State v. Taplin,
230 N.J. Super. 90, 100 (1988) (recognizing defendant entitled to
defense because he honestly but incorrectly believed he was
assisting rightful owner in removing television set).
New Jersey has long recognized a claim-of-right defense.
See, e.g., State v. Mayberry,
52 N.J. 413, 431 (1968), cert.
denied,
393 U.S. 1043,
89 S. Ct. 673,
21 L. Ed.2d 593 (1969).
Before the enactment of the Code, however, in State v. Ortiz,
124 N.J. Super. 189 (1973), the Appellate Division refused to accept
a claim-of-right defense to the charge of robbery, stating:
In our view, the proposition [that a bona fide but mistakenly held belief that one has a right or claim to property negates the mens rea element of robbery] not only is lacking in sound reason and logic, but it is utterly incompatible with and has no place in an ordered and orderly society such as ours, which eschews self-help through violence. Adoption of the proposition would be but one step short of accepting lawless reprisal as
an appropriate means of redressing
grievances, real or fancied.
In the Code, the Legislature expressly established "claim of
right" as an affirmative defense to theft:
It is an affirmative defense to
prosecution for theft that the actor:
(1) Was unaware that the property or
service was that of another;
(2) Acted under an honest claim of right
to the property or service involved or that
he had a right to acquire or dispose of it as
he did; or
(3) Took property exposed for sale,
intending to purchase and pay for it
promptly, or reasonably believing that the
owner, if present, would have consented.
At issue is whether the Legislature implicitly intended the
claim-of-right defense to apply to robbery.
In one pre-Code case, the Appellate Division held that the
claim-of-right defense so applies. See State v. D'Agostino,
176 N.J. Super. 49, 53 (1980), certif. denied,
85 N.J. 494 (1981).
The court reasoned that "[r]obbery . . . is an aggravated form
of larceny and when a person cannot be convicted of theft, then
he cannot be convicted of robbery." Id. at 53. Thus, the court
limited the defense to situations in which the defendant sought
to reclaim his or her own property, not that of the victim,
although equal in value, or repayment of a debt. Id. at 55-56.
Subsequently, the Law Division held that a defendant charged
with robbery who claimed that he had loaned the victim twenty
dollars could assert a claim-of-right defense only if the
defendant sought to recover the identical currency that he had
loaned. State v. Bull,
259 N.J. Super. 120, 122-23 (1992).
Under these cases, to establish a claim-of-right defense,
defendants charged with robbery must prove that they sought to
recover the specific property delivered to the victim.
We disagree with D'Agostino and Bull. Consequently, we
overrule them to the extent that they hold that claim-of-right is
a defense to robbery. Those decisions hinge on the following
syllogism. Robbery equals theft plus assault. Claim of right is
a defense to theft. Therefore, it is a defense to robbery.
Robbery, however, is a more complex crime than theft plus
assault. As we recently noted, "the shorthand understanding that
robbery equals theft plus assault is inconsistent with the clear,
albeit complicated, language of the Code." State v. Sewell,
127 N.J. 133, 147 (1992). Our reading of the Code leads us to
conclude that the Legislature did not intend to treat robbery
simply as the combination of theft plus the use of unprivileged
force.
Indeed, the Code's structure indicates that the Legislature
intended that not all defenses to theft should apply to robbery.
The Legislature, when it enacted the Code in 1979, placed the
crime of robbery in the section entitled "Offenses Involving
Danger to the Person," and that of theft in "Offenses Against
Property." As one commentator states:
[T]he arrangement of sections within the Code
is not haphazard. There is a conscientious
attempt to organize sections and chapters by
subject. Thus, as part of L. 1979, c. 178,
[r]obbery was removed from Chapter 19, where
it was grouped with offenses against
property, to Chapter 15, so that it would be
grouped with offenses against persons.
Other provisions of the Code suggest that the Legislature
intended to preclude recourse to the claim-of-right defense for
thefts accompanied by violence. For example, the theft-by-extortion statute contains its own claim-of-right provision,
which provides that "[i]t is an affirmative defense to
prosecution . . . that the property was honestly claimed as
restitution or indemnification for harm done in the circumstances
or as lawful compensation for property or services." N.J.S.A.
2C:20-5. The statute, however, limits the defense to extortion
committed by the threat of accusation, exposure, withholding
official action, or withholding testimony. It does not extend to
threats to "[i]nflict bodily injury on or physically confine or
restrain anyone or commit any other criminal offense." N.J.S.A.
2C:20-5g. This limitation evinces a legislative intent to
withhold a claim-of-right defense from those who threaten others
with physical harm.
Furthermore, the emerging trend in other jurisdictions rejects the claim-of-right defense to robbery. People v. Reid, 508 N.E.2d 661, 664 (N.Y. 1987); see also, e.g., State v. Schaefer, 790 P.2d 281, 284 (1990) (rejecting claim-of-right
defense because "[i]t encourages disputants to resolve disputes
on the streets through violence instead of through the judicial
system."); Commonwealth v. Sleighter,
433 A.2d 469, 471 (Pa.
1981) (asserting that person with adequate remedy at law should
not try to recover property by force or violence); Austin v.
State,
271 N.W.2d 668, 670 (Wis. 1978) (holding that defendant's
belief he was recovering his own money did not bar conviction for
armed robbery), overruled on other grounds, State v. Poellinger,
451 N.W.2d 752, 757 (Wis. 1990).
From the words and structure of the Code, and for sound
reasons of public policy, we conclude that the Legislature did
not intend to extend the claim-of-right defense to robbery.
We hold that Mejia was not entitled to a claim-of-right charge on
the guilt phase. Accordingly we affirm his robbery and
felony-murder convictions.
By comparison, we hold that the penalty-phase anti-claim-of-right charge precluded the jury from considering as a mitigating factor Mejia's honest belief that he was entitled to recover his $750 from Garcia. If on remand the case should proceed to the penalty phase, we offer the following further comments to guide the trial court. The evidence that Mejia was seeking to recover his own money relates both to the mitigating and aggravating
factors. For example, the evidence relates to the "catch-all"
factor, N.J.S.A. 11:3c(5)(h), pertaining to "any other factor
which is relevant to his character or background or to the
circumstances of the offense." If the jury believed that Mejia
acted to prevent Garcia from fleeing to Mexico with Mejia's
money, it could have weighed the mitigating evidence more heavily
than if it believed that he went to the hotel to rob Garcia.
Similarly, if one or more jurors believed that Mejia acted under
a claim of right, that belief could have reduced the weight the
jury placed on the c(4)(g) factor, "murder committed during a
felony." If on remand, the case should proceed to the penalty
phase, the court should instruct the jury on the relevance of the
evidence both to the aggravating and mitigating factors.
Relying on the Fifth and Fourteenth Amendments to the United States Constitution and article I of the New Jersey Constitution, Mejia challenges the admission into evidence of his written statement. He contends that the trial court erred in concluding that he had knowingly and intelligently waived his "Miranda" rights, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966), before making the statement. We reject that claim and sustain the admission of his statement.
When Mejia was arrested on December 10, 1991, Belmar
patrolman John Massey asked him if he understood English. Mejia
replied, "very little." After Officer Massey read Mejia his
Miranda rights, Mejia indicated that he did not understand. By
putting his forefinger to his mouth, the officer signalled that
Mejia should remain silent.
Sergeant Jose Raymond Ortiz of the Bradley Beach Police
Department responded to a call from the Belmar Police Department
for assistance. Sergeant Ortiz was born in Puerto Rico and
raised in a Spanish-speaking home. He had not, however, had any
formal education in Spanish. Officer Ortiz read Mejia his rights
from a Spanish language Miranda card.
According to Ortiz, Mejia understood his rights as Ortiz
read them to him. In response to questions asked by Officer
Ortiz, Mejia stated his name, address, and date of birth. He
then signed the card.
At the Spring Lakes Police Department, Investigator Joseph
Paglino from the Monmouth County Prosecutor's Office interviewed
Mejia. Investigator Paglino had studied Spanish in high school
and had acted as a translator for the prosecutor's office.
Paglino read to Mejia his rights from a bilingual Miranda
card provided by the Spring Lakes Police Department. The Spanish
translation of the Miranda rights on the Spring Lakes card
differed from that on the Belmar card. As Paglino read each
line, he paused and asked Mejia whether he understood. Each
time, Mejia answered "Si," indicating that he understood. After
reading the entire card, Paglino again inquired whether Mejia
understood each right read to him, and asked, "[k]eeping these
rights in mind, do you want to speak to us now?" Mejia answered
"Si" to both questions.
Paglino then asked Mejia to read the <