For reversal -- Chief Justice Hughes, and Justices Mountain, Sullivan, Pashman and Schreiber. For affirmance -- Justice Clifford and Judge Conford. The opinion of the Court was delivered by Pashman, J. Hughes, C.J. (concurring). Justice Mountain joins in this concurring opinion. Schreiber, J. (concurring). Conford, P.J.A.D., Temporarily Assigned (dissenting). Justice Clifford joins in this opinion. Hughes, C.J., and Schreiber, J., concurring in the result.
Defendant-appellant Benjamin A. Christener, Jr. was convicted of manslaughter for the shooting death of one John French during an altercation at defendant's trailer home in Franklin on October 1, 1972. Defendant was sentenced to the State Prison for a term of four to six years.
The Appellate Division affirmed in an unreported opinion and this Court granted certification, 67 N.J. 81 (1975). Although appellant seeks relief on multifarious grounds, we find material only the question of the propriety of an instruction on first degree murder under the facts of this case. Having reviewed this issue, we conclude that there was error requiring a reversal.
The October 1 shooting incident was actually the culmination of a larger skein of events which occurred during the preceding one-year period. Benjamin Christener was the proprietor of a tavern in Newton. Although married, he was separated from his wife and divorce proceedings had been instituted. Because he lived alone and devoted long hours to his business, defendant resided in a small house adjoining the tavern.
During this period, Mrs. Britt French, wife of the decedent, frequently visited defendant's tavern with friends from
work. Through these visits, defendant became aware that Mrs. French was experiencing serious marital problems with her husband. For instance, defendant noticed that Mrs. French often received telephone calls from her husband which left her "white, pale, nervous and upset." He also learned that Mrs. French had been threatened by her husband and, as a result, feared for her own safety and that of her four-year-old daughter. On one occasion, Mrs. French came to the tavern with a black eye from a beating which she had received from her husband. While at the tavern, Mrs. French related to defendant other instances of her husband's brutality. For example, on one occasion, after attempting to discuss their marital problems, Mrs. French had been beaten and choked. Mrs. French testified to other beatings she had received as well as an attempt on her life during which she narrowly escaped being thrown from a cliff.
Perhaps most emblematic of this troubled marriage was an incident which occurred on February 26, 1972 involving Mr. and Mrs. French and the defendant. Upon leaving her place of employment at the end of the working day, Mrs. French was unable to locate her car. After accepting a ride from a friend, she went to defendant's tavern where she found both the car and her husband. Earlier, John French had come to the tavern, introduced himself to defendant as the theretofore unknown telephone caller, and indicated to defendant his suspicions concerning his wife's infidelity. Mrs. French at this point entered the tavern and asked her husband if he had taken her car. When he said that he had, she left the building and proceeded toward the parking lot. Before she reached the car, her husband, who had followed her, pushed her to the ground and began to beat her. Defendant observed the assault and then called the police who had to physically restrain and escort Mr. French from the lot. In addition to threatening his wife, French directed a variety of threats and epithets at defendant who had joined the bystanders watching French's arrest. Mrs. French later
filed a complaint against her husband who was incarcerated for five days after his conviction in Municipal Court.
Because her entreaties to the local police were generally unsuccessful, defendant, sometime in February, contacted the State Police on her behalf and later arranged for Mrs. French and her daughter to stay at a nearby motel. A bond of affection subsequently developed between defendant and Mrs. French. Mrs. French had by that time instituted divorce proceedings against her husband and had agreed with defendant to be married when their respective divorces were final. In anticipation of this marriage, defendant purchased a mobile home in the Borough of Franklin and Mrs. French and her daughter established residence there.
During the ensuing months, Mr. French made frequent telephone calls both to defendant's tavern and to the mobile home, during which he threatened defendant, Mrs. French and her daughter. On one occasion in July 1972, French directly confronted Mrs. French and her daughter at the local unemployment office. Hoping to avoid an altercation, Mrs. French and her daughter waited in the ladies' lounge until it was time for her interview. During the interview, however, Mrs. French heard the daughter's scream when John French attempted to drag her from the building. Pulling the girl away from her father, Mrs. French summoned the police to escort her to her car.
As a result of these incidents, defendant learned to fear John French largely because of his threats which were made credible by French's great strength and his apparent ability to carry out the threats. While defendant and French were of comparable size, the decedent was a much stronger man. Defendant's fear of French was also heightened by his unavailing efforts to secure police protection for himself and Mrs. French. Although he had purchased a shotgun for protection at Mrs. French's insistence after the employment office incident, defendant continued to actively seek police protection. Nonetheless, the local police proved relatively unsympathetic to his complaints. His inability to impress the police with
the seriousness of John French's threats and his own fear of the man produced a sense of frustration and helplessness in defendant. This frustration was manifested after an unsuccessful plea for protection to the local police chief on September 15 when defendant remarked, "I have a gun down at the tavern and I will shoot the son of a bitch." This statement, though petulant, stands in stark contrast to defendant's general behavior pattern during this time period. Generally, defendant made great efforts to avoid potential confrontations with French, and his normal activities were altered to accommodate his fear. For example, defendant often slept in the tavern for personal safety. He also had his telephone number changed. On one occasion, he called the police and had French and several companions escorted from the bar after French earlier had threatened to "bring hoods from New York [to] break the place up and get the pair of you."
On Friday, September 29, 1972, Mrs. French informed defendant that she expected her husband to visit the mobile home the next day in conjunction with visitation rights which had been granted at the divorce hearing. Afraid that John French might kill her, Mrs. French asked defendant to be present and to bring the shotgun with him from the tavern. Defendant consented.
The next morning defendant arrived at the mobile home and placed the shotgun in one of the back rooms. By early afternoon, when French still had not come, defendant, accompanied by Mrs. French and her daughter, decided to do some errands, have supper and then do some work at the tavern. At approximately 11 P.M. they returned home. After Mrs. French and her daughter had gone to sleep, defendant locked both the outside storm door and the inside wooden door and secured the chain lock. He then watched television for awhile and fell asleep in the living room.
He was rudely awakened in the early morning by the constant ringing of the doorbell. Unable to ascertain from a nearby window who was ringing the bell, he asked the visitor to identify himself In response, John French demanded admittance [71 NJ Page 62] to the trailer and threatened to kill Christener. When defendant refused to open the doors, French began pounding on the storm door and swearing at both defendant and Mrs. French. Although defendant urged French to leave, these pleas only further enraged him. Defendant aroused Mrs. French in the hope that she might be better able to mollify her estranged husband. However, her efforts also proved unsuccessful, and French continued to bang on the door. When French began to pry the storm door open, defendant telephoned the police, reported a breaking and entering and asked that assistance be sent immediately. At this point, French succeeded in pulling the storm door out of its frame and began pounding on the inside wooden door. Defendant told French that the police had been summoned and would arrive momentarily. This, however, did not deter his efforts to get inside the trailer. Suddenly, the door gave way and was held by only the chain lock. Mrs. French screamed for defendant to "do something" and he ran to the rear of the mobile home for the shotgun. Retrieving the weapon, he proceeded to load it as he ran towards the living room. Just as he returned, the chain on the front wooden door broke and John French entered the room. Because of the confined quarters, defendant was unable to raise the shotgun to his shoulder and, instead, held it by his side. Although French did not appear to be armed, according to defendant he looked like a "wild man." French moved towards Mrs. French and attempted to grab her though she successfully eluded his grasp. Defendant ordered the intruder to leave and repeated that he had called the police. French lunged towards Mrs. French and defendant fired the shotgun. Although he had only intended to hit French in the arm, the unusual manner in which he was forced to fire the weapon (while holding it at his side) and his inexperience in shooting from such a position drastically reduced defendant's ability to aim the shotgun. Because of this and also because of the scattering effect of the single shotgun shell,
multiple wounds were inflicted on French and knocked the decedent to the floor.
Immediately after the shooting, Mrs. French telephoned the police to report the incident and to request that an ambulance be sent. A medical examiner later ascertained that multiple pellet wounds sustained from the shotgun blast had produced the massive hemorrhaging which was the ultimate cause of French's death. The examiner also found that the alcohol content of the body far exceeded that level at which an individual is considered to be under the influence of alcohol.
Defendant was indicted in Sussex County and charged with murder in violation of N.J.S.A. 2A:113-1 and N.J.S.A. 2A:113-2. After a 14-day trial, the court instructed the jury as to the substantive offenses of first and second degree murder and manslaughter, the duty to retreat and the affirmative defenses of self-defense and the defense of others. The jury found defendant guilty of manslaughter and the Appellate Division thereafter affirmed. We granted certification to consider the substantive questions posed by this case. 67 N.J. 81 (1975).
First, we consider the propriety of the trial court's instructions to the jury as to first degree murder, N.J.S.A. 2A:113-1 and N.J.S.A. 2A:113-2. We limit our discussion to considering whether this instruction was supported by the evidence. We are cognizant of the fact that neither party has raised an objection to this instruction. Nonetheless, because of the potentially prejudicial effect of an erroneous instruction, we raise the question sua sponte pursuant to our power to "notice plain error not brought to the attention of the trial or appellate court." R. 2:10-2. See State v. Macon, 57 N.J. 325 (1971); State v. Hock, 54 N.J. 526, 538 (1969), cert. den. 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).
We consider the issue in two parts. The first part concerns the sufficiency of the evidence to support the instruction of first degree murder. Because we find the evidence in this regard to be inadequate, the second part of our discussion considers the prejudice which defendant suffered as a result of this charge.
The crime of murder in New Jersey is one which is delineated by N.J.S.A. 2A:113-1 and N.J.S.A. 2A:113-2. As embodied in those provisions, the crime consists of the unlawful, unjustified and inexcusable killing of one person by another with malice aforethought. 1 Warren, Homicide, § 54 at 162 (1938); 1 Wharton, Criminal Law and Procedure, § 187 at 432 (1957). In order to warrant an instruction as to first degree murder and sustain a conviction thereon, the State must also show that the killing was "willful, deliberate and premeditated."*fn1 State v. Gardner, 51 N.J. 444, 459 (1968); State v. Billingsley, 46 N.J. 219 (1966); State v. Di Paolo, 34 N.J. 279, 295 (1961); cert. den. 368 U.S. 880, 82 S. Ct. 130, 7 L. Ed. 2d 80 (1961). The elements of willfulness, premeditation and deliberation are not only essential to establishing the crime, but also serve to distinguish this offense from the related offenses of second degree murder and manslaughter. Malice also distinguishes murder from manslaughter, and the prosecution is assigned the burden of proving malice and disproving
facts which would reduce the offense to manslaughter. State v. Gardner, supra, 51 N.J. at 459; State v. Robinson, 139 N.J. Super. 475, 484 (App. Div. 1976). Proof of these statutory elements -- the burden of which is placed on the State -- must be sufficient to negate every reasonable doubt as to their nonexistence. State v. Mills, 51 N.J. 277 (1968). See also Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); State v. Robinson, supra. See also, Jones, "Presumptions Past, Present and Future," 4 Crim. Justice Q. 14 (1976).
In instructing the jury in the instant case, the trial court defined these elements using language which closely parallels that used by this Court in State v. Di Paolo, supra. In that case, Chief Justice Weintraub stated:
As settled by judicial construction, the first element is premeditation, which consists of the conception of the design or plan to kill. Next comes deliberation. The statutory word "deliberate" does not here mean "willful" or "intentional" as the word is frequently used in daily parlance. Rather it imports "deliberation" and requires a reconsideration of the design to kill, a weighing of the pros and cons with respect to it. Finally, the word "willful" signifies an intentional execution of the plan to kill which had been conceived and deliberated upon. [34 N.J. at 295]
Accord, State v. Ernst, 32 N.J. 567, 579 (1960), cert. den. 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961); State v. Conyers, 58 N.J. 123, 128 (1971). To support such an instruction, much less a conviction, it is necessary that evidence at trial establish the presence and concurrence of these elements. State v. Van Duyne, 43 N.J. 369, 378-79 (1964), cert. den. 380 U.S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965); State v. Washington, 60 N.J. 170, 172 (1972). Failure to make this basic factual showing will effectively defeat a prosecutorial allegation of first degree murder. State v. Smith, supra, 32 N.J. 501; State v. Roscus, 16 N.J. 415 (1954); State v. Schilling, 95 N.J.L. 145 (E. & A. 1920). In determining whether the requisite factual showing has been made, the trial court must view
the "State's evidence in its entirety, giving the State the benefit of all of its favorable testimony as well as all the favorable inferences which reasonably could be drawn therefrom." State v. Fiorello, 36 N.J. 80, 90 (1961); State v. Reyes, 50 N.J. 454, 458-459 (1967); State v. Loray, 41 N.J. 131, 138 (1963). Having done so, the court should not allow the issue to go to the jury unless the jury could reasonably find the defendant guilty of that offense beyond a reasonable doubt.
Turning to the facts of this case, it becomes clear that the requisite showing was not made. Consequently, the first degree murder instruction should not have been given to the jury. The proofs fail to indicate that defendant ever designed or desired the death of John French. Although defendant harbored a distinct dislike for French -- which he readily conceded at trial -- defendant's principal reaction to the deceased was one of fear. Even if the record supported inferences of defendant's resentment for John French relating to French's visitation rights or to his intrusion into Christener's relationship with Mrs. French (which it does not), defendant's actions reveal an all-encompassing fear of his antagonist and therefore are far from probative of any intent or motive to kill French. Even while he was in the very act of shooting, defendant only intended to wound French, not to kill him. These facts mitigate against a finding of willfulness, that is, the intentional execution of a plan to kill the decedent, and against any suggestion that defendant had formulated such a plan in the first place. Even if we consider the fact emphasized by the State, that Benjamin Christener expected a visit from the deceased sometime during that day and had brought his gun to his home, this fact alone fails to ...