On appeal from the Superior Court, Appellate Division, whose opinion is reported at 205 N.J. Super. 548 (1985) State of New Jersey v. Leon Bowens. On certification to the Superior Court, Law Division, Mercer County State of New Jersey v. Anthony Tyrone Rivers.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.
In these appeals both defendants contend that they were incorrectly denied jury charges on imperfect self-defense. We hold that the Code of Criminal Justice, N.J.S.A. 2C:1-1 to 98-4, does not provide an independent category of justification, excuse, or mitigation under the concept of imperfect self-defense. We find, however, that evidence that will sustain the defense at common-law is frequently relevant to the presence or absence of the essential elements of Code offenses. Accordingly, we affirm the judgment of the Appellate Division in State v. Bowens, 205 N.J. Super. 548 which reversed a conviction of murder for failure to permit the jury to assess, as bearing on the question of whether the homicide charged was reckless rather than purposeful or knowing, defendant's testimony that he intended not to kill the victim but only to defend himself. In State v. Rivers, we affirm defendant's conviction of aggravated manslaughter under circumstances in which he contended that he killed the victim to avert a deadly assault in a homosexual encounter. He received jury charges on the available verdicts for which there was a reasonable basis in the evidence.
Like the concept of diminished capacity involved in State v. Breakiron, 108 N.J. 591 (1987), also decided today, the concept of an imperfect self-defense requires us to focus upon the definitions of criminal culpability set forth in our Code of Criminal Justice as gradations of crime, and to examine the justifications or excuses for otherwise criminal conduct set forth in the Code. Like the concept of diminished or partial responsibility discussed in Breakiron, recognition of an "imperfect self-defense" would require us to create, as a matter of
decisional law, new substantive elements not embraced by the Code. Further, it would require us to hold that a self-defense claim that fails to meet the Code's requirements of objective reasonableness, although not exonerating the defendant of criminal responsibility, would downgrade the charge of murder to manslaughter. As in Breakiron, we decline to create a new substantive category of culpability absent clear legislative intent to do so.
The doctrine of imperfect self-defense has its roots in common-law attempts to grade the degrees of murder and thus to separate capital murder from all others. Chief Judge Charles Moylan of the Maryland Court of Appeals traced its history:
From the turbulent waters of the criminal law * * *, roiled by the dictates of Mullaney v. Wilbur, [421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975)], * * * emerged an esoteric qualification to the doctrine of self-defense, known as the "imperfect right of self-defense." [ Cunningham v. State, 58 Md.App. 249, 252, 473 A.2d 40, 41 (Ct.Spec.App.), cert. denied, 300 Md. 316, 477 A.2d 1195 (1984) (Moylan, J.) (quoting Faulkner v. State, 54 Md.App. 113, 114-15, 458 A.2d 81, 82 (Ct.Spec.App.1983), aff'd, 301 Md. 482, 483 A.2d 759 (1984).]
The characteristic effect of the doctrine is to negate the presence of malice that is predicate to a finding of first-degree or capital murder. Faulkner v. State, supra, 54 Md.App. at 113, 458 A.2d at 82 ("[t]he mitigating effect of imperfect self-defense is to negate malice"); People v. Flannel, 25 Cal. 3d 668, 160 Cal.Rptr. 84, 87, 603 P. 2d 1, 4 (1979) (en banc) (as a mental state, malice cannot coexist with an unreasonable belief by defendant that defendant was defending against imminent bodily harm). This effect of the defense -- negation of "malice" -- is not immediately relevant to a Code state that defines murder in "the minimal senses" of acting knowingly or purposely. State v. Breakiron, supra, 108 N.J. at 617 (quoting American Law Institute, Model Penal Code and Commentaries (Official Revised Comments, Comment to § 4.02 at 220 (1985)). We shall consider its relevance to our Code definition of murder.
Generally, "in order for a killer to have a perfect self-defense to homicide, he or she must: (1) be free from fault in bringing on the conflict with his or her adversary; and (2) reasonably, though not necessarily correctly, believe (a) that his adversary will, unless forcibly prevented, immediately inflict upon him or her a fatal or serious bodily injury, and (b) that the deadly force must be used upon the adversary to prevent him or her from inflicting such an injury." W. LaFave and A. Scott, Jr., Handbook on Criminal Law 583 (1972). "If one who is not the aggressor kills his adversary with these two actual and reasonable beliefs in his mind, his homicide is justified, and he is guilty of no crime -- not murder, not manslaughter, but no crime." Ibid. (footnote omitted). An aggressor faced even with the reasonable belief in the necessity to kill "cannot have the defense of self-defense, for that requires both freedom from fault in the inception of the difficulty and the entertainment of beliefs which are reasonable." Ibid.
In the context of this opinion we do not deal with the first aspect of a perfect self-defense, namely, the actor's freedom from fault in the inception of the conflict; this aspect is set forth in the Code, N.J.S.A. 2C:3-4(b)(2)(a). Instead, we focus on the second factor of self-defense: whether the actor's beliefs are reasonable. In this context, imperfect self-defense would mean no more than an honest subjective belief on the part of the killer that his or her actions were necessary for his or her safety, even though an objective appraisal by reasonable people would have revealed not only that the actions were unnecessary, but also that the belief was unreasonable. State v. Powell, 84 N.J. 305, 311-13 (1980).
In some jurisdictions, "one who uses force against another with an honest but unreasonable belief that he must use force to defend himself from an imminent attack by his adversary * * * is guilty of murder when he uses deadly force in such circumstances * * *." Handbook on Criminal Law, supra, at 397. Other courts and legislatures, however, find that one who acts with an honest but unreasonable belief is not guilty of
murder but is guilty of manslaughter. Ibid. We must choose between the two results.
As noted in State v. Grunow, 102 N.J. 133 (1986), the drafters of our Code originally approached the broader concept of justification in terms of the subjective attitudes of the criminal actor. Thus, as introduced, the Code of Criminal Justice provided for self-defense as follows:
Use of Force Justifiable For Protection of the Person. Subject to the provisions of this Section and of Section 2C:3-9, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. [1 NJ Criminal Law Revision Commission, Final Report 26, § 2C:3-4(a) (1971).]
However, in the course of legislative modifications the County Prosecutors Association and the Attorney General objected to the subjective standard of self-defense adopted in the Senate Judiciary Committee. As a result, the self-defense provisions were altered to re-establish the objective standard of self-defense:
Use of force justifiable for protection of the person. Subject to the provisions of this section and of section 2C:3-9, the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the ...