Charles Carter, the defendant, is charged with the murder of Robert Hawkins. His anticipated defense is that the killing occurred while he was defending himself, his home, and his family against the violent conduct of the decedent. Defendant now seeks to compel the State to produce in discovery any criminal case history information (the "rap sheet") regarding the decedent. See R.3:13-3(f).
The State contends that defendant is not entitled to this information, especially where, as here, defendant has not alleged or shown that at the time of the homicide he had knowledge of any prior acts of violence or aggressiveness on the part of the decedent.
Defendant contends that he is entitled to discovery of the victim's "rap sheet" since this may lead to admissible evidence of the victim's character trait of violence or aggressiveness. Defendant articulates two alternative grounds to support this contention. First, evidence of the victim's character trait of violence or aggressiveness may have a bearing on defendant's claim that he acted in self-defense. Alternatively, evidence of the victim's aggressive or violent character may corroborate the circumstances of the encounter in which defendant claims that the victim was the aggressor.
This court has found no reported decision in this jurisdiction which clearly makes the distinction between these two grounds. However, in other jurisdictions, where the attention of the court has been called to this distinction, the majority of such courts have held that evidence of the violent character of the victim is admissible in a homicide trial as tending to corroborate the circumstances of the incident, regardless of whether the defendant was aware of such character. Annotation, Evidence - Self-Defense - Reputation, 1 A.L.R.3d 571, 601-303 (1965). See, e.g., Engstrom v. Superior Court, In and For County of Alameda, 20 Cal. App. 3d 240, 97 Cal.Rptr. 484 (Ct. App. 1971).
It is generally recognized that where the defendant in a prosecution for assault or homicide pleads self-defense and seeks to introduce evidence of the character or reputation of the victim for turbulence and violence, for the purpose of proving that the defendant had reason to, and did, apprehend death or serious bodily injury and thus was justified in acting as he did, it must appear that at the time of the encounter the defendant had knowledge of the victim's reputation in this regard, since otherwise his conduct could not have been influenced thereby. However, it has generally been held that where evidence of the character or reputation of the victim for turbulence and violence has merely been offered for the purpose of corroborating evidence for the defendant as to the circumstances of the encounter, such evidence is admissible whether the defendant had knowledge of such character or reputation at the time of the encounter or not.
Annotation, supra, 1 A.L.R.3d at 575-76]
The New Jersey courts which have admitted evidence of the victim's violent character as relevant to a claim of self-defense, have predicted such admission on knowledge by the defendant of the dangerous nature of the victim. See, e.g., State v. Burgess, 141 N.J. Super. 13, 16, 357 A.2d 62 (App. Div. 1976); State v. Engels, 2 N.J. Super. 126, 129, 64 A.2d 897 (App. Div. 1949); State v. Dart, 11 N.J.Misc. 192, 165 A. 289 (Sup. Ct. 1933). This requirement makes sense, since the use of self-protective force is only justifiable when the defendant honestly and reasonably believes that such force is immediately necessary to protect himself against the use of unlawful force by another. N.J.S.A. 2C:3-4 a. Any assertion that defendant's use of self-protective force was prompted by the victim's violent reputation or character would have little significance if the accused was actually unaware of such reputation or character. Cf. State v. Pratt, 226 N.J. Super., 307, 322, 544 A.2d 392 (App. Div. 1988).
In State v. Pratt, the issue of the victim's aggressive character arose in the context of whether the homicide was committed in the heat of passion resulting from a reasonable provocation. The court stated:*fn1
As we said in State v. Burgess, 141 N.J. Super. 13, 357 A.2d 62 (App. Div. 1976), "at the very least it must be demonstrated that defendant had knowledge of the 'victim's' reputation for aggressiveness." Id. at 16. "Absent proof of defendant's knowledge of the [deceased's] pugnacious reputation, evidence thereof will not be admitted." Ibid. This requirement makes much sense since in the context of a claim of reasonable provocation an assertion that defendant's actions were influenced or prompted by the victim's aggressive reputation has little significance if the accused was actually unaware of the fact. Here, there was no such showing.
In State v. Conyers, 58 N.J. 123, 275 A.2d 721 (1971), a murder prosecution, the defendant did not assert self-defense and did not say that he armed himself because he had knowledge of the deceased's propensity for violence. Defendant argued that evidence of the deceased's aggressiveness should be admissible to corroborate defendant's claim that he accidentally shot and killed ...