On appeal from Superior Court of New Jersey, Law Division, Cumberland County.
Seidman, Antell and Lane. The opinion the court was delivered by Lane, J.A.D.
This appeal was argued before Judges Seidman and Lane. Thereafter the attorneys for the parties consented to have Judge Antell participate in the decision. The decision and this opinion are by Judges Seidman, Antell and Lane.
Defendant was indicted for kidnapping (count 1), threat to take a life (count 2) and atrocious assault and battery (count 3). He was found guilty of count 3 and sentenced to the New Jersey State Prison for a minimum of one year and a maximum of three years. The incident that forms the basis of the indictment occurred October 24, 1978. The trial began November 13, 1979.
On appeal defendant urges that there was insufficient evidence to support the conclusion beyond a reasonable doubt that he had aided and abetted the commission of the crimes; that the exclusion of certain prior inconsistent statements of the victim deprived him of a fair trial; that the trial judge's failure to apply the procedural provisions of N.J.S.A. 2C:1-1 by placing the burden of proof of duress upon defendant deprived him of a fair trial, and that, taken as a whole, the charge was unfair and deprived him of a fair trial. We reverse on the ground that the trial judge's failure to apply the procedural provisions of N.J.S.A. 2C:1-1 so far as they applied to the burden of proof of the affirmative defense of duress was clearly capable of producing an unjust result.
State v. Toscano , 74 N.J. 421, 442 (1977), revised the common law to establish that duress would be a defense to a crime other than murder "if the defendant engaged in conduct because he was coerced to do so by the use of, or threat to use, unlawful force against his person . . . which a person of reasonable firmness in his situation would have been unable to resist."
Duress, as an affirmative defense, is a matter of substantive law. The burden of proof, however, is a procedural matter within the meaning of N.J.S.A. 2C:1-1(c)(1). State v. Molnar , 81 N.J. 475, 488 (1980).
Although defendant did not testify, sufficient evidence was adduced to support the defense and require its submission to the jury. Defendant requested the trial judge to charge the jury concerning duress under N.J.S.A. 2C:1-1 et seq. Later in the trial the attorney was asked why the instruction should be given under the new Code of Criminal Justice when the offense occurred before the effective date of the Code. The attorney replied that there was no objection to the judge charging on the equivalent charge in the old Code. The effect of not charging the jury under N.J.S.A. 2C:1-1 et seq. was that defendant had the burden of proving the affirmative defense of duress by a preponderance of the evidence, as established by State v. Toscano, supra , 74 N.J. at 443.
State v. Toscano was decided June 27, 1977. It established a change in the common law so that a defendant could raise the affirmative defense of duress as to any crime other than murder. The court stated (at 442) that in establishing the rule it had "deliberately followed the language of the proposed New Jersey Penal Code " and that it expected trial judges "to frame their jury charges in the same terms." In placing upon defendant the burden of persuasion on the issue of duress, the court stated:
In this case, however, we think it more appropriate as a matter of public policy to follow the practice utilized in insanity cases and to require the defendant to prove the existence of duress by a preponderance of the evidence. [at 443]
The court was not construing the then pending New Jersey Code of Criminal Justice. That Code was not adopted until August 10, 1978, to be effective September 1, 1979. It is the Legislature that is primarily responsible for public policy. A court cannot override legislative decisions because ...