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State v. Stasio

Decided: January 18, 1979.


On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For reversal -- None. The opinion of the court was delivered by Schreiber, J. Handler, J., concurring. Justice Clifford joins in this opinion. Pashman, J., concurring in result only and dissenting. Clifford and Handler, JJ., concurring in the result and Pashman, J., concurring in the result and dissenting.


The major issue on this appeal is whether voluntary intoxication constitutes a defense to a crime, one element of which is the defendant's intent. Defendant Stasio was found guilty by a jury of assault with intent to rob, in violation of N.J.S.A. 2A:90-2, and of assault while being armed with a dangerous knife, contrary to N.J.S.A. 2A:151-5. The trial court sentenced the defendant to three to five years on the assault with intent to rob count and a concurrent term of one to two years on the second count. The prison term was suspended and the defendant was placed on probation for three years. The Appellate Division reversed the convictions and ordered a new trial. We granted the State's petition for certification. 75 N.J. 613 (1978).

The scene of this incident was the Silver Moon Tavern located at 655 Van Houten Avenue, Clifton. The date was October 7, 1975. The defendant having presented no evidence, what occurred must be discerned from the testimony of three witnesses for the State: Peter Klimek, a part owner of the Silver Moon; Robert Colburn, a patron; and Robert Rowan, a member of the Clifton police force.

Robert Colburn had frequented the Silver Moon Tavern not only for its alcoholic wares but also to engage in pool. On October 7, Colburn arrived at the Tavern about 11:00 A.M. and started to play pool. Sometime before noon the defendant joined him. They stayed together until about 3:00 P.M. when the defendant left the bar. Though the defendant had been drinking during this period, in Colburn's opinion the defendant was not intoxicated upon his departure. Neither

the defendant's speech nor his mannerisms indicated drunkenness.

Peter Klimek arrived at the Tavern shortly before 5:00 P.M. and assumed his shift at tending bar. There were about eight customers present when, at approximately 5:40 P.M., the defendant entered and walked in a normal manner to the bathroom. Shortly thereafter he returned to the front door, looked around outside and approached the bar. He demanded that Klimek give him some money. Upon refusal, he threatened Klimek. The defendant went behind the bar toward Klimek and insisted that Klimek give him $80 from the cash register. When Klimek persisted in his refusal, the defendant pulled out a knife. Klimek grabbed the defendant's right hand and Colburn, who had jumped on top of the bar, seized the defendant's hair and pushed his head toward the bar. The defendant then dropped the knife.

Almost immediately thereafter Police Officer Rowan arrived and placed the defendant in custody. He testified that defendant responded to his questions with no difficulty and walked normally. Klimek also stated that defendant did not appear drunk and that he had not noticed any odor of alcohol on defendant's breath.

At the conclusion of the State's case, the defendant elected not to take the stand. He made this decision because of an earlier conference in chambers*fn1 at which defense counsel had advised the court that his defense would be that defendant had been so intoxicated that he was incapable of forming the intent to rob. The trial court responded by stating that it would charge that "voluntary intoxication was not a defense to any act by the defendant in this matter." The defendant on a voir dire made it clear that his decision not to testify was predicated upon the trial court's position. It might be noted that the defendant had no record of prior convictions.

Holding that the trial court's declaration in view of the defendant's proffer of proof was erroneous, the Appellate Division reversed the convictions and ordered a new trial. The Appellate Division reasoned that specific intent is an essential element of the crime of an assault with intent to rob and that voluntary intoxication may be shown to negate that element of the offense.

This Court last considered the culpability of an individual who had committed an illegal act while voluntarily under the influence of a drug or alcohol in State v. Maik, 60 N.J. 203 (1972). There the defendant Maik had been charged with the first degree murder of his friend, a fellow college student. The defense was insanity at the time of the killing. Evidence at the trial had suggested that the defendant was schizophrenic and that a psychotic episode may have been triggered by the defendant's voluntary use of LSD or hashish. The trial court had charged the jury that if it found that the underlying psychosis had been activated by the voluntary use of either narcotic, the defense of insanity would not stand.

On appeal Chief Justice Weintraub, writing for a unanimous Court, began by discussing generally the concept of criminal responsibility. After pointing out that although there was a difference in the treatment of sick and bad offenders, he noted that notwithstanding that difference "the aim of the law is to protect the innocent from injury by the sick as well as the bad." 60 N.J. at 213. It was in that context that a decision would have to be made whether the voluntary use of alcoholic beverages or drugs should support a viable defense. He then stated the generally accepted proposition that criminal responsibility was not extinguished when the offender was under the influence of a drug or liquor and the reasons for that rule:

It is generally agreed that a defendant will not be relieved of criminal responsibility because he was under the influence of intoxicants or drugs voluntarily taken. This principle rests upon public policy, demanding that he who seeks the influence of liquor or

narcotics should not be insulated from criminal liability because that influence impaired his judgment or his control. The required element of badness can be found in the intentional use of the stimulant or depressant. Moreover, to say that one who offended while under such influence was sick would suggest that his sickness disappeared when he sobered up and hence he should be released. Such a concept would hardly protect others from the prospect of repeated injury. [60 N.J. at 214]

The Chief Justice set forth four exceptions to the general rule. First, when drugs being taken for medication produce unexpected or bizarre results, no public interest is served by punishing the defendant since there is no likelihood of repetition. Second, if intoxication so impairs a defendant's mental faculties that he does not possess the wilfulness, deliberation and premeditation necessary to prove first degree murder, a homicide cannot be raised to first degree murder. State v. Sinclair, 49 N.J. 525, 544 (1967); State v. Trantino, 44 N.J. 358, 369 (1965), cert. den. 382 U.S. 993, 86 S. Ct. 573, 15 L. Ed. 2d 479 (1966). Under this exception the influence of liquor "no matter how pervasive that influence may be, will not lead to an acquittal. It cannot reduce the crime below murder in the second degree, and this because of the demands of public security." State v. Maik, supra, 60 N.J. at 215. Third, a felony homicide will be reduced to second degree murder when intoxication precludes formation of the underlying felonious intent. Parenthetically, it may be noted that since voluntary intoxication does not eliminate responsibility for the felony, it could be contended that the defendant should remain liable for first degree felony murder. On the other hand, considerations of fairness indicate that such a defendant should be treated the same as one charged with ordinary first degree homicide requiring premeditation. Fourth, the defense of insanity is available when the voluntary use of the intoxicant or drug results in a fixed state of insanity after the influence of the intoxicant or drug has spent itself. Since the defense in Maik may have fallen into the fourth category, the charge as given was

erroneous and the cause was remanded for a new trial on the issue of whether the defendant had been insane at the time of the killing and whether that condition continued thereafter.

A difference of opinion has been expressed in the Appellate Division as to the meaning of Chief Justice Weintraub's discussion of intoxication in Maik. In State v. Del Vecchio, 142 N.J. Super. 359 (App. Div.), certif. den. 71 N.J. 501 (1976), a conviction for breaking and entering with intent to steal was reversed on the ground that the jury had improperly been charged that voluntary intoxication was not a defense to a crime requiring a specific intent. The Appellate Division reasoned that, when a specific intent was an element of an offense, voluntary intoxication may negate existence of that intent. Since intoxication may have prevented existence of that specific intent, an acquittal might be in order. The Appellate Division also held that the only principle to be derived from Maik was the proposition that voluntary intoxication may be relevant in determining whether a murder may be raised to first degree. In contrast, Judge Allcorn's dissent in State v. Atkins, 151 N.J. Super. 555, 573 (App. Div. 1977), rev'd 78 N.J. 454 (1979), expresses the opinion that Maik stands for the proposition that voluntary intoxication is not a defense to any criminal offense irrespective of whether a specific or general intent is an element of the offense.

In our opinion the Chief Justice in Maik enunciated a principle applicable generally to all crimes and, unless one of the exceptions to the general rule is applicable, voluntary intoxication will not excuse criminal conduct. The need to protect the public from the prospect of repeated injury and the public policy demanding that one who voluntarily subjects himself to intoxication should not be insulated from criminal responsibility are strongly supportive of this result. We reject the approach adopted by Del Vecchio because, although it has surface appeal, it is based

on an unworkable dichotomy, gives rise to inconsistencies, and ignores the policy expressed in Maik.

Del Vecchio would permit the intoxication defense only when a "specific" as distinguished from a "general" intent was an element of the crime. However, that difference is not readily ascertainable. "The distinction thus made between a 'specific intent' and a 'general intent,'" wrote the Chief Justice in Maik, "is quite elusive, and although the proposition [that voluntary intoxication may be a defense if it prevented formation of a specific intent] is echoed in some opinions in our State, see State v. White, [27 N.J. 158, 165-167 (1958)]; cf. State v. Letter, 4 N.J. Misc. 395, 133 A. 46 (Sup. Ct. 1926), it is not clear that any of our cases in fact turned upon it." 60 N.J. at 214-215. Professor Hall has deplored the attempted distinction in the following analysis:

The current confusion resulting from diverse uses of "general intent" is aggravated by dubious efforts to differentiate that from "specific intent." Each crime * * * has its distinctive mens rea, e.g. intending to have forced intercourse, intending to break and enter a dwelling-house and to commit a crime there, intending to inflict a battery, and so on. It is evident that there must be as many mentes reae as there are crimes. And whatever else may be said about an intention, an essential characteristic of it is that it is directed towards a definite end. To assert therefore that an intention is "specific" is to employ a superfluous term just as if one were to speak of a "voluntary act." [ J. Hall, General Principles of Criminal Law 142 (2d ed. 1960)]

For a similar analysis see People v. Hood, 1 Cal. 3d 444, 456-457, 82 Cal. Rptr. 618, 625-626, 462 P. 2d 370, 377-378 (1969). The same point is made in G. Williams, Criminal Law -- The General Part (2d ed. 1961):

The adjective "specific" seems to be somewhat pointless, for the intent is no more specific than any other intent required in criminal law. The most that can be said is that the intent is specifically referred to in the indictment. There is no substantive difference between an intent specifically mentioned and one implied in the name of the crime. [ Id. at 49]

The undeniable fact is "that neither common experience nor psychology knows any such actual phenomenon as 'general intent' that is distinguishable from 'specific intent.'" Hall, "Intoxication and Criminal Responsibility," 57 Harv. L. Rev. 1045, 1064 (1944).

Moreover, distinguishing between specific and general intent gives rise to incongruous results by irrationally allowing intoxication to excuse some crimes but not others. In some instances if the defendant is found incapable of formulating the specific intent necessary for the crime charged, such as assault with intent to rob, he may be convicted of a lesser included general intent crime, such as assault with a deadly weapon. N.J.S.A. 2A:90-3. In other cases there may be no related general intent offense so that intoxication would lead to acquittal. Thus, a defendant acquitted for breaking and entering with intent to steal because of intoxication would not be guilty of any crime -- breaking and entering being at most under certain circumstances the disorderly persons offense of trespass. N.J.S.A. 2A:170-31. Similarly, if the specific intent to rob were not demonstrated because of intoxication, then the defendant may have no criminal responsibility since assault with intent to rob would also be excused.

Finally, where the more serious offense requires only a general intent, such as rape, see J. Hall, General Principles of Criminal Law 143 (2d ed. 1960), and sources cited, intoxication provides no defense, whereas it would be a defense to an attempt to rape, specific intent being an element of that offense. Yet the same logic and reasoning which impels exculpation due to the failure of specific intent to commit an offense would equally compel the same result when a general intent is an element of the offense.*fn2

One commentator summed up the situation in the following way:

For example, if the defendant is found incapable of formulating the specific intent necessary for the crime with which he is charged, he may be convicted instead of a lesser included general intent offense. Yet in some cases there may be no related general intent offense on which conviction can be based, and complete acquittal will result. See, e.g., People v. Jones, 263 Ill. 564, 105 N.E. 744 (1914) (attempted burglary); Hall, [ Intoxication and Criminal Responsibility, 57 Harv. L. Rev. 1045, 1062 (1944)]. Thus, the intoxicated offender may be denied exculpation, receive partial exculpation, or receive total exculpation, depending upon the nature of the crime with which he is charged. As one commentator concludes: "It is thus apparent that the criminal liability of the grossly intoxicated offender depends upon the crime fortuitously committed while incapacitated." Note, Volitional Fault and the Intoxicated Criminal Offender, 36 U. Cin. L. Rev. 258, 276 (1967). [Comment, 61 Minn. L. Rev. 901, 904 n. 14 (1977)]

The Del Vecchio approach may free defendants of specific intent offenses even though the harm caused may be greater than in an offense held to require only general intent. This course thus undermines the criminal law's primary function of protecting society from the results of behavior that endangers the public safety. This should be our guide rather than concern with logical consistency in terms of any single theory of culpability, particularly in view of the fact that alcohol is significantly involved in a ...

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