On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Handler, J., concurring. Handler, J., concurring in the result.
[111 NJ Page 374] Defendant, Miguel Concepcion, was convicted of reckless manslaughter, contrary to N.J.S.A. 2C:11-4(b)(1). He was sentenced to a five-year term, with a three-year parole ineligibility period pursuant to the Graves Act. N.J.S.A. 2C:43-6(c). The Appellate Division affirmed in an unpublished opinion. We granted certification, 109 N.J. 494 (1987), and we now reverse.
The sequence of events leading up to the death of the victim in this case began on the morning of November 14, 1984, in defendant's living room. Defendant cleaned a gun that he legally possessed as part of his training to become a Newark Special Police Officer. After cleaning it, defendant practiced loading and unloading the gun. He put the loaded gun on a bookshelf to answer a telephone call, and subsequently left his apartment. Defendant returned to his apartment twice during the course of the day but did not touch the gun.
Later that evening, defendant and a friend, David Correa, were driving around the streets of Newark. At approximately 10:30 p.m., defendant and Correa picked up the victim, Jacqueline Jones, who was an acquaintance of Correa. Defendant had not met the victim prior to this encounter.
Defendant, Correa, and the victim then went to defendant's apartment. At some point, defendant's brother, Angel Concepcion, joined the group. Once inside the apartment, Angel went to the stereo in the living room and played some music, while Correa started dancing. Defendant toured the apartment with the victim for a few minutes and then returned to the living room, whereupon Correa entered the bathroom.
At trial, conflicting evidence was produced concerning what happened next. Defendant testified that when he came back into the living room with the victim, he saw the victim, out of the corner of his eye, pick up the gun from the bookshelf. Within seconds, according to defendant, he wrestled the gun away from the victim, and as he did, he realized that the gun was cocked. Defendant stated that as he attempted to uncock the gun, he saw the victim's hand coming towards him and he "just reacted and I lifted the gun, you know, like taking it away, just snatching it up * * *" and "the gun discharged."
After hearing the gunshot, Correa ran into the living room from the bathroom to see what happened. Defendant initially told Correa that the victim had shot herself. Defendant also
instructed Correa "never to tell anybody that Angel was there." When Correa called the Newark police to report the incident, he described the shooting as a suicide. Defendant told one of the officers who arrived on the scene that the victim had shot herself. Shortly thereafter, however, defendant recanted this version of the incident when he gave a statement to the police that comported with his testimony at trial. Defendant attributed his initial suicide account to his state of panic and nervousness immediately following the shooting.
Angel Concepcion fled the apartment as soon as he saw what had happened. The following morning he gave a statement to the police in which he stated that defendant "went to get his gun from one of the shelfs [ sic ] then the gun went off." However, at trial Angel testified that he had not actually seen defendant pick up the gun and had not seen any of the events leading up to the shooting because he was facing the stereo the entire time. Explaining the inconsistencies of his prior statement, he stated, "I was assuming because I was trying to figure it all together. I was just assuming that [defendant] had took [ sic ] the gun off the shelf but I never saw him pick the gun off the shelf myself."
Defendant argues that the trial court erroneously instructed the jury on the single count of reckless manslaughter.*fn1 When evaluating the propriety of a jury charge, an appellate court "does not excise and examine in isolation those statements alleged to be obscure or ambiguous, but looks to the charge as a whole." State v. Freeman, 64 N.J. 66, 69 (1973); accord State v. Ramseur, 106 N.J. 123, 280 (1987).
In this case, the trial court began the charge by generally discussing the different responsibilities of the court, counsel, and jury in conducting a jury trial. The court then gave more specific instructions regarding the presumption of innocence and the concept of reasonable doubt. Within the reasonable doubt discussion, the trial court stated, "if, for example, the defendant's contention that the killing of Ms. Jones was accidental, if that causes such a doubt, it is your duty to give him the benefit of the doubt and acquit him."
In formulating the component of the charge dealing with reckless manslaughter, the trial court tracked the model jury charge and essentially consolidated three provisions of the Criminal Code. Under the Code "[c]riminal homicide constitutes manslaughter when * * * it is committed recklessly * * *." N.J.S.A. 2C:11-4(b)(1). "Recklessly" is defined by N.J.S.A. 2C:2-2(b)(3):
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. "Recklessness," "with recklessness" or equivalent terms have the same meaning.
Further, the Code provides that for a defendant recklessly to have caused a particular result, either the defendant must have been aware he or she risked such a result or the "result must involve the same kind of injury or harm as the probable result and must not be too * * * accidental in its occurrence * * *." N.J.S.A. 2C:2-3(c).
It is appropriate to repeat the entire text of the reckless manslaughter component of the charge:
Now, the defendant is charged in the indictment that on the 15th day of November, 1984 in the City of Newark, in the County of Essex aforesaid and within the jurisdiction of this Court he did recklessly kill Jacqueline Jones contrary to the provisions of N.J.S.A. 2C:11-4(b) and against the peace of this State, the government and dignity of the same. The defendant has ...