On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Michels, Deighan and Stern. The opinion of the court was delivered by Deighan, J.A.D.
Defendant William Reed was indicted for aggravated manslaughter in violation of N.J.S.A. 2C:11-4a. After a jury trial he was found not guilty of aggravated manslaughter but was convicted of the lesser included offense of reckless manslaughter in violation of N.J.S.A. 2C:11-4b(1). Defendant's motion for a new trial and for a judgment of acquittal was denied. He was then sentenced to a term of ten years with five years parole ineligibility. Additionally, a $1,000 Violent Crimes Compensation Board penalty was imposed. Defendant's subsequent motion for reconsideration of sentence was denied.
On November 18, 1985, we granted the public defender's request to file a brief amicus curiae addressing whether the jury must be informed of the impact of the Graves Act, N.J.S.A. 2C:43-6c, which requires mandatory sentencing in crimes involving a firearm.
The material facts concerning this unfortunate incident are as follows: On March 11, 1984 the victim, Lisa Kline, age 16, was visiting the residence of the defendant in Winslow Township.
Defendant, then 23 years old, had known Lisa for about six months. They had been dating on a regular basis and Lisa often visited defendant's home. On this particular occasion defendant and Lisa went to defendant's room where they were "just joking around." Defendant reached behind the bedroom door, picked up one of the three shotguns he kept there, pointed it at Lisa, then pulled the trigger. The gun discharged and Lisa died from the resulting wound which was inflicted from a range of three feet or less. There was no evidence of any motive, disagreement or other basis to prompt this tragic incident.
Immediately after the shooting, other members of defendant's family who were present in the house at that time, summoned an ambulance and the police. The first officer on the scene found the victim lying on defendant's bed. A shotgun containing one spent round of ammunition was found lying on the floor. The police officer transported defendant, who he found crying at the kitchen table, to the police station. Another officer who questioned defendant at the police station testified that defendant "looked upset" and was "like crying" when he observed him at the station. Although he had difficulty speaking, defendant gave a recorded statement and was "very cooperative" with the police.
At trial, defendant stated that he never knowingly brought a loaded weapon into the house and he did not think that the shotgun was loaded. The gun was last used when he and a friend went hunting one or two weeks before the occurrence. Upon their return, he told his friend to unload the gun, but admitted that he did not check the shotgun to make sure it was not loaded.
Defendant admitted that he was experienced with shotguns and was aware of the risks in handling firearms. On one occasion previous to this incident the same gun accidentally discharged while he was cleaning it.
On appeal, defendant presents the following issues:
POINT I THE LOWER COURT ERRED BY FAILING TO SUBMIT A NEGLIGENCE INSTRUCTION TO THE JURY.
POINT II THE LOWER COURT ERRED IN SUBMITTING THE AGGRAVATED MANSLAUGHTER CHARGE TO THE JURY, SINCE THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE CHARGE.
POINT III THE LOWER COURT ERRED BY FAILING TO INSTRUCT THE JURY THAT A GUILTY VERDICT WOULD RESULT IN A MANDATORY MINIMUM SENTENCE UNDER THE GRAVES ACT.
POINT IV THE IMPOSITION OF THE MAXIMUM TERM OF 10 YEARS AND THE MAXIMUM TERM OF PAROLE INELIGIBILITY UNDER THE GRAVES ACT WAS IN DEROGATION OF THE SENTENCING GUIDELINES OF THE CODE AND CONSTITUTED AN ABUSE OF DISCRETION.
Defendant argues that, in light of the fact that negligent homicide is not a crime in New Jersey, the trial judge should have granted his request to instruct the jury regarding the difference between reckless and negligent conduct. He points out that the model charge for death by auto, N.J.S.A. 2C:11-5, includes an instruction that mere carelessness or negligence should not result in a conviction. The State contends that, since the trial judge adequately and properly defined recklessness and the other elements of manslaughter, there was no need to define negligence.
Although criminal negligence is a type of culpability defined in N.J.S.A. 2C:2-2b(4), unlike the Model Penal Code, § 210.4 (1962), there is no crime of negligent homicide in New Jersey.*fn1 The difference between the two terms is the degree of culpability: "recklessness" occurs when the actor "consciously disregards a substantial and unjustifiable risk," N.J.S.A. 2C:2-2b(3); "negligence" occurs when an actor "should be aware of a substantial and unjustifiable risk." Id. subsection (4).
This same argument was raised and rejected in State v. Curtis, 195 N.J. Super. 354 (App.Div.1984), certif. den. 99 N.J. 212 (1984). There defendant was tried for murder and theft and was found guilty of the lesser included offense of aggravated manslaughter. The jury was instructed on aggravated and reckless manslaughter. On appeal defendant argued that the court erred in not charging his request on negligent homicide or the meaning of an accidental killing. Id. 195 N.J. Super. at 368-369. This court noted that "the jury was told that if the ...