On appeal from the Superior Court, Law Division, Essex County.
Bilder, R. S. Cohen and Arnold M. Stein. The opinion of the court was delivered by R. S. Cohen, J.A.D.
Defendant was indicted for second degree aggravated assault of his wife, Juanita Jenkins (N.J.S.A. 2C:12-1b(1)); third degree possession of a handgun without a permit (N.J.S.A. 2C:39-5b), and second degree possession of the gun with purpose to use it unlawfully against the person of another (N.J.S.A. 2C:39-4a). Tried to a jury, he was acquitted of aggravated assault, convicted of the undercharge of simple assault, and convicted of both gun possession charges. The sentences aggregated seven years with a minimum Graves Act term of three years. Defendant appealed. For a combination of reasons, we reverse all of the convictions.
The State and defendant agree on a great many of the facts. In August 1986, defendant and his wife of six years, companions for a total of 17 years, were not getting on as well as they once did. One day after work, defendant stopped in a neighborhood bar and ordered a beer. His wife, seated across the bar, threw defendant a hostile question and he left. After defendant returned home, his teenage daughter became upset and tearful, because the wife had telephoned from the bar and said she was staying the night with her cousin Guendetta.
Defendant became angry -- he says -- because his wife had upset the daughter. He returned to the bar, had words with his wife and punched her in the face, knocking her off her barstool.
Other patrons then eased defendant outside to the parking lot. Shortly thereafter the wife followed. What happened in the parking lot was the subject of divergent testimony. The jury could have believed that the daughter, another daughter of the wife -- stepdaughter to defendant -- and the stepdaughter's boyfriend had come to the parking lot, and that defendant and the boyfriend were arguing. The wife intervened and defendant hit her again, knocking her to the ground.
The next part of the episode is very murky. At trial the wife and daughter said they heard popping or firecracker-like sounds that could have been shots. They saw no gun. Cousin Guendetta heard noises from inside the bar, saw the wife running towards the bar, and saw the younger daughter come in and heard her say "He's shooting." In earlier statements to the police, the witnesses were clearer that shots were fired. A police report had the wife describing a .25 caliber automatic, a description that seemed to mystify her at trial.
A police officer who promptly arrived to investigate looked for but found no gun, cartridges, bullets, or bullet holes. No one ever knew defendant to own a gun or carry one. Defendant testified that the noise which sounded like shots must have been his car engine with its defective muffler backfiring in the parking lot as he prepared to drive off after hitting his wife the second time.
Over defendant's objection, the State's case included the wife's account of an Eastertime confrontation with defendant some three or four months before the incident in question. The wife said defendant became upset because she was selling charity breakfast tickets for a friend but refused to do so for defendant's fraternal organization. He punched and choked her and said he ought to kill her. Defendant was cross-examined about the incident. His was a kinder, gentler version, but he admitted there was some "wrestling." The evidence was admitted on the thesis that it bore on defendant's intent on the night in question. Evid.R. 55.
Defendant's first complaint before us is that the court's instructions on N.J.S.A. 2C:39-4a were inadequate. We agree. The court correctly charged that, in order to convict, the jury had to find that the object was a firearm, that defendant possessed it, that defendant's purpose was to use it against the person of another, and that he intended to use it in a manner that was prohibited by law, that is, to commit an illegal act. State v. Harmon, 104 N.J. 189, 212 (1986).
It is impossible to say with any assurance what the jury thought was defendant's unlawful purpose. The problem arises from the fact that defendant was acquitted of aggravated assault, which means that the jury probably had a reasonable doubt that defendant fired a gun at his wife. It is apparent the jury ...