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State v. Rose

Decided: May 23, 1990.


On appeal from the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz and Justices Clifford, Pollock, Garibaldi, and Stein -- 5, join in this opinion. Justice Handler has filed a separate dissenting opinion in which Justice O'Hern joins. Dissenting -- Justices Handler and O'Hern. The opinion of the Court was delivered by Clifford, J. Handler, J., dissenting. Justice O'Hern joins in this opinion.


[120 NJ Page 62] Defendant, Teddy Rose, was convicted of knowing and purposeful murder and was sentenced to death. In State v. Rose, 112 N.J. 454, 548 A.2d 1058 (1988), we affirmed defendant's murder conviction but vacated his death sentence and remanded for a new penalty-phase hearing. On remand defendant moved before the trial court for a new trial on the guilt phase as well, on the basis of State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988). The trial court denied the motion. It also ruled against defendant on his proffer of testimony of three religious leaders and a sociologist regarding the morality, deterrent effect, and mechanics of the death penalty. After the Appellate Division

denied leave to appeal, we granted defendant's motion for leave to appeal the trial court's rulings, N.J. (1990), and summarily affirmed both orders. N.J. (1990). This opinion elucidates our affirmance.


Defendant argues that the original trial court's failure to have instructed the jury separately for the crimes of knowingly or purposely causing death (intentional murder) and of knowingly or purposely causing serious bodily injury resulting in death (serious-bodily-injury murder) requires reversal of his conviction. In State v. Gerald, supra, 113 N.J. at 69, 549 A.2d 792, we held that a person who is convicted of serious-bodily-injury murder under N.J.S.A. 2C:11-3(a)(1) or (2) may not be sentenced to death. If there is sufficient evidence that a defendant may have intended only serious bodily injury, not death, the trial court must charge the jury separately on the two crimes.

The record discloses that the victim, a police officer, approached defendant, who was standing on the street with a sawed-off shotgun concealed in a canvas bag, and asked him what was in the bag. Defendant "put his hand in the bag, raised it up, * * * held the bag to [the officer's] stomach and fired the shotgun." State v. Rose, supra, 112 N.J. at 470, 548 A.2d 1058. The blast from the shot knocked the officer "five or six feet into the street, flat on his back." Ibid.

In our first review of this case, we rejected defendant's contention that there was evidence "suggesting that the shooting was accidental and not intentional" and that therefore a charge on aggravated manslaughter should have been given. Id. at 482, 548 A.2d 1058. The issue now is whether a jury could have rationally concluded that in pressing a twelve-gauge sawed-off shotgun against the officer's stomach and pulling the trigger, defendant had either intended or known that his actions would only injure the officer, not kill him. To state the

question is virtually to answer it. As noted in our first opinion, there was uncontradicted evidence that to fire the weapon, one had to complete a two-step procedure: cock the hammer and, with four-and-a-quarter pounds of pressure, pull the trigger. Id. at 482, 548 A.2d 1058. We observed that "a person firing a sawed-off shotgun into the abdomen of another at point-blank range necessarily is aware that 'it is practically certain' that such conduct will cause the victim's death." Id. at 484, 548 A.2d 1058 (quoting N.J.S.A. 2C:2-2b(2)). Defendant was familiar with destructive power of the shotgun, having practiced firing at tires and plastic buckets. It is inconceivable that defendant was not "practically certain" that his action would kill the officer.

Defendant asserts that evidence adduced at trial could have led a jury to conclude otherwise: he was not carrying the shotgun on the fateful evening with the intent to use it against the victim; afterwards he was "crying and nervous"; and when questioned by the police, he expressed the hope that the officer would recover. None of those facts, however, is relevant to whether when defendant intentionally pulled the trigger of the shotgun, he was "practically certain" that the officer would die. N.J.S.A. 2C:2-2b(2). We find no evidence that could have led a rational jury to conclude that defendant did not know that his conduct would cause the victim's death. Defendant is not entitled to a new trial on the guilt phase of the case.


The State moved to exclude at the penalty phase the proffered testimony of three clergymen regarding the religious propriety of the death penalty and of a sociologist regarding the deterrent effect of the death penalty. The trial court ruled that the testimony would be barred.

Evidence proffered by a defendant at the penalty phase must be "relevant to * * * [the] defendant's character or record, or to the ...

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