On appeal from Superior Court of New Jersey, Law Division, Essex County.
Brody, Muir, Jr. and Landau. The opinion of the court was delivered by Brody, J.A.D.
A jury found defendant guilty of three crimes arising out of an incident that occurred a month after his fifteenth birthday: first-degree aggravated manslaughter (as an accomplice), a violation of N.J.S.A. 2C:11-4a; second-degree possession of a
firearm with a purpose to use it unlawfully against another, a violation of N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a handgun without a permit, a violation of N.J.S.A. 2C:39-5b. The Judge imposed a prison term of 25 years, 12 years to be served before parole eligibility, for the aggravated manslaughter.*fn1 He merged the possession of a firearm for an unlawful purpose with the aggravated manslaughter, and imposed a consecutive prison term of 5 years for unlawfully possessing a handgun without a permit. Defendant and a co-defendant, who was separately tried, had been indicted for purposeful or knowing murder but the jury found defendant guilty of the lesser homicide offense. We reverse the aggravated manslaughter conviction because, given the somewhat unusual facts of this case, the trial Judge erred when he refused to have the jury consider whether defendant is guilty of the lesser offense of second-degree aggravated assault, a violation of N.J.S.A. 2C:12-1b(1).
The State presented evidence that defendant was walking on the sidewalk with two young friends, 17-year old co-defendant Kevin Elliott and 15-year old V.R. Defendant was carrying a loaded handgun. James Williams, an adult with no prior contact with the three boys, bumped into one of them as he was passing. The boys reacted with verbal threats that prompted Williams to wrestle Elliott to the ground. Williams, who was much larger than Elliott, was getting the better of the boy -- defendant testified that he was choking him -- when defendant shot Williams in the back, inflicting a nonfatal wound. With Williams prostrate, Elliott got to his feet, took the gun from defendant and shot Williams in the head, killing him.*fn2 There was conflicting evidence as to whether defendant handed the gun to Elliott or whether Elliott grabbed it out of defendant's
hand. Even if defendant had handed it to Elliott there remained the issue of whether he acted impulsively or with the purpose or expectation that Elliott would use the gun to shoot Williams.
The homicide count in the indictment charges simply that "Laurence Clark and Kevin Lamont Elliott . . . did purposely or knowingly murder James Williams by their own conduct . . . ." There was no evidence before the grand jury as to whether Williams was killed by the bullet defendant fired, the bullet Elliott fired or by both bullets. An investigating police officer provided the only evidence on the point. He testified, "All I know is one bullet went to the head and one to the back." At trial, the assistant prosecutor announced that the State would proceed on the theory that Williams was killed by the bullet Elliott fired and that defendant was guilty of murder solely as his accomplice.
The medical evidence at trial was that defendant's bullet caused Williams serious bodily injury, and that only Elliott's bullet killed him. Defendant asked the trial Judge to instruct the jury to consider whether he was guilty of second-degree aggravated assault for firing the first bullet should it find that he was not Elliott's accomplice in firing the second bullet. He also asked the Judge to include in the instructions the defense of using force to protect another person. N.J.S.A. 2C:3-5. The Judge denied both requests. He accepted the State's argument that defendant was not being tried for any crime associated with firing the first bullet because the State chose to limit its theory of defendant's guilt to his accountability as Elliott's accomplice. The Judge therefore limited the jury to finding defendant guilty of murder, or the lesser included offenses of first-degree aggravated manslaughter or second-degree reckless manslaughter, or finding him not guilty of any crime. The jury was not permitted to find him guilty of second-degree aggravated assault -- a crime clearly supported by the evidence -- as an alternative to finding him not guilty of any crime.
In a case where a defendant and co-defendant were indicted for murder for beating someone to death, we held that the jury must be given the option of finding the defendant guilty of only an aggravated assault as a lesser included offense if it might conclude that the victim died solely from the blows of the co-defendant. State v. Vujosevic, 198 N.J. Super. 435, 444, 487 A.2d 751 (App.Div.1985), certif. den. 101 N.J. 247, 501 A.2d 920 (1985), habeas corpus granted Vujosevic v. Rafferty, 844 F. 2d 1023 (3rd Cir.1988). Depriving the jury of that option could cause it to return an unjust "all or nothing" verdict. ". . . [T]he inJustice of an 'all-or-nothing' presentation of a criminal offense to a jury or factfinder with respect to a defendant who may in fact be guilty of only a lesser offense that is not charged is that the defendant will be found guilty of a crime he did ...