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September 14, 1984

ELIJAH TARD, JR., Superintendent, et al., Respondents

The opinion of the court was delivered by: STERN

 Christopher Wilson petitions for issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that the jury instructions given in his manslaughter trial prejudiced his constitutional right to be presumed innocent until the state had proven every element of the crime with which he was charged beyond a reasonable doubt. We will issue the writ: the trial court's jury instructions allocated to petitioner the burden of proving a defense which would directly negative the culpability element of the offense with which he was charged, an error which denied petitioner his right to due process.


 Petitioner was indicted by a Union County Grand Jury on charges of aggravated manslaughter *fn1" and possession of a handgun without a permit on December 12, 1980. He pleaded not guilty to both counts and was tried before the Honorable A. Donald McKenzie, J.S.C., and a jury from March 9-12, 1981. Petitioner was charged in connection with the October 15, 1980, shooting death of his friend Rodney Brown while they and two other men were discussing which of them should be the first to use some heroin in their possession. Petitioner did not dispute that he had shot Brown, but at trial he raised as a defense an alleged mistake of fact. *fn2" Petitioner contended that he had pointed the gun at his friend in a joking attempt to frighten him. He testified that he had removed the magazine of bullets from the gun before he aimed it, and contended that because of his unfamiliarity with the weapon he believed he had disarmed it. However, one bullet remained in the chamber of the gun; when petitioner aimed the gun at his friend and pulled the trigger, it discharged and fatally injured the victim. Petitioner argued, however, that his belief that the gun was unloaded when he pulled the trigger was a reasonable mistake under the circumstances, and that therefore he did not possess the level of mental culpability, recklessness, necessary to find him guilty of manslaughter.

 In his instructions to the jury, the trial court stressed that since the cause of Brown's death was not disputed, determination of petitioner's state of mind was critical to the state's proof of the offense of manslaughter. After first stating that the burden of proving each element of the offense beyond a reasonable doubt lay on the prosecution, the judge instructed the jury that the defense of mistake which the defendant had raised was an exception to the state's burden of proving all elements of the crime. Trial Transcript ("TT") 4-57. After summarizing New Jersey's statute on mistake, he told the jury that the burden lay on the defendant to "prove by a preponderance of the evidence" that he was mistaken in his belief that the gun was not loaded, and that "he arrived at the conclusion reasonably." He stated that the mistake would be a defense if the jury could find that "the defendant reasonably arrived at that conclusion underlying the mistake and it negates the culpable mental state required to establish the offense." TT 4-64 to 4-67.

 The judge further explained that if the jury concluded that defendant's mistake did negate the culpable mental state for manslaughter it should consider, pursuant to § 2C:2-4b, N.J. Stat. Ann., whether the defendant was guilty of aggravated assault. *fn3"

 On April 2, 1981, Judge McKenzie sentenced petitioner to ten years in prison, five years without parole eligibility, and to a $500 fine for the manslaughter conviction; and to five years for possession of the handgun, to be served concurrently with the manslaughter sentence. In addition, petitioner had pleaded guilty to charges of cocaine possession and possession of a handgun by a felon in connection with the same incident; he was sentenced to concurrent terms of 18 months and five years, respectively, on those charges.

 Petitioner appealed his conviction to the Superior Court of New Jersey, Appellate Division, on several grounds. Among them was his contention that the burden of proof for the defense of mistake of fact had been misallocated to him in the jury charge. On April 14, 1983, the Appellate Division affirmed petitioner's conviction. As to petitioner's argument that the jury charge was in error, the court stated: "One who deliberately aims and discharges a firearm directly at another human being, thereby causing the latter's death, cannot, as a matter of law, be found to have been reasonable in his mistaken belief that the gun was unloaded or to have acted other than recklessly. The defense in question should not even have been submitted to the jury." State of New Jersey v. Christopher Wilson, Nos. A-3703-80T4, A-3704-80T4, April 14, 1983 (Superior Court of New Jersey, Appellate Division, Per Curiam) at 3.

 On June 20, 1983, the Supreme Court of New Jersey denied petitioner's application for certification and direct appeal. Petitioner now seeks relief by way of petition for habeas corpus in this court.


 We turn first to the decision of the Appellate Division, which amounts to a holding that one who aims a gun at another person and deliberately pulls the trigger has acted recklessly per se ; in other words, petitioner's mental state is to be presumed from the act itself. By concluding that petitioner's mistake of fact defense should not even have been submitted to the jury, the Appellate Division drew a conclusive presumption from petitioner's acts, which amounts to "an irrebuttable direction by the court" to the factfinder to find that petitioner acted recklessly "once (it is) convinced of the facts triggering the presumption." See Sandstrom v. Montana, 442 U.S. 510, 517, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979).

 The Supreme Court has held that it is unconstitutional to direct the factfinder to draw a conclusive presumption as to a material element of a crime because to do so would "conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime," and would "invade the factfinding function" which in a criminal case the law assigns solely to the jury. Sandstrom, 442 U.S. 510 at 523, 61 L. Ed. 2d 39, 99 S. Ct. 2450, quoting Morissette v. United States, 342 U.S. 246 at 274-75 1952); see also United States v. United States Gypsum Co., 438 U.S. 422, 435, 446, 57 L. Ed. 2d 854, 98 S. Ct. 2864 (1978). Such a presumption, relieving the state from having to prove an element of the crime, conflicts with the principle, set out by the Supreme Court in In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."

 It is clear that the New Jersey statute makes the existence of the mental state of recklessness an essential element of the crime of manslaughter. In fact, it was the only element of the offense at issue in petitioner's trial, since he admitted to causing the death of the victim. Therefore, by directing a finding of recklessness based upon petitioner's acts, the Appellate ...

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