On certification to the Superior Court, Appellate Division.
The opinion of the Court was delivered by Coleman, J. Justices Handler, Pollock, O'hern, Garibaldi and Stein join in Justice COLEMAN's opinion. Chief Justice Wilentz did not participate.
The opinion of the court was delivered by: Coleman
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
STATE OF NEW JERSEY V. DEMETRIUS M. DIAZ (A-57-95)
Argued November 27, 1995 -- Decided July 3, 1996
COLEMAN, J., writing for a unanimous Court.
The issue on appeal is whether a conviction for possession of a firearm for an unlawful purpose should merge with a conviction for passion/provocation manslaughter when the trial court did not instruct the jury with respect to an unlawful purpose that was broader than, and separate from, using the firearm to commit the homicide.
Demetrius Diaz injured his hand in a brawl. A few days later, Gregory Ricky Gordon bumped Diaz's injured hand. Diaz believed that Gordon bumped his hand intentionally. After this encounter with Gordon, Diaz left the area for less than one-half hour and returned with two friends, one of whom was carrying a handgun. Diaz approached Gordon and warned that he had gun. The two exchanged angry words and began to fight. Diaz eventually retrieved the gun from his friend and shot Gordon five times, killing Gordon. Diaz fled the scene and was chased by Gordon's cousin, Jeremiah German. As German followed Diaz, Diaz turned and threatened him with the gun.
Diaz was indicted for purposeful or knowing murder and possession of a firearm for an unlawful purpose. A jury found Diaz guilty of second-degree passion/provocation manslaughter and second-degree possession of a firearm for an unlawful purpose. At sentencing, defense counsel argued that the possession of a weapon conviction should merge with the passion/provocation manslaughter conviction because Diaz possessed and used the gun solely for the purpose of shooting Gordon. The State argued against merger, asserting that Diaz constructively possessed the gun when threatening Gordon prior to the shooting, and that Diaz used the gun for the purposes of shooting Gordon and then threatening German.
The trial court declined to merge the offenses, finding that the unlawful purpose was separate and distinct from the manslaughter. Diaz was sentenced on the manslaughter conviction to a custodial term of ten years with five years of parole ineligibility and on the possessory offense to a consecutive term of seven-and-one-half years with three-and-one-quarter years of parole ineligibility.
On appeal, the Appellate Division reversed and ordered merger. The court found that the evidence was sufficient to support a conviction that Diaz constructively possessed the gun when threatening Gordon and when he used the gun to ward off German as he fled from the scene after the shooting. The Appellate Division concluded, nonetheless, that merger was required because the trial court failed to instruct the jury properly with respect to determining whether Diaz possessed the weapon for a broader unlawful purpose than shooting Gordon.
The Supreme Court granted the State's petition for certification to review the propriety of the merger.
Failure to use a special verdict is not dispositive of the merger issue. Merger is not required when the evidence submitted to the jury is sufficient to permit it to determine that defendant possessed the firearm for a purpose independent of the greater offense and when the jury has been properly instructed and those instructions do not restrict the jury's consideration of the unlawful purpose only to the commission of the greater offense for which defendant was found guilty.
1. The focus of the charge of possession of a firearm for an unlawful purpose is on defendant's purpose in possessing the firearm. When the only unlawful purpose in possessing the gun is to use it to commit the substantive offense, merger is required. Where the unlawful purpose in possessing the firearm is unrelated to the commission of the substantive offense, merger is not required. (pp. 5-8)
2. In cases where the jury's verdict is ambiguous in regard to whether the jury found a broader purpose, the approach to merger set forth in State v. Williams is adopted. Under the Williams standard: 1) the defendant must have been charged in the indictment with possession of the weapon with a broader unlawful purpose, either generally or specifically, than using the weapon to kill or assault the victim of the greater offense; 2) the evidence must support a finding that the defendant had a broader unlawful purpose; 3) the Judge must have instructed the jury of the difference between possession with a specific unlawful purpose of using the weapon against the victim of the greater offense and a broader unlawful purpose; and 4) the verdict must express the jury's Conclusion that the defendant had a broader unlawful purpose. (pp. 9-11)
3. In this case, the first two requirements of the Williams standards were satisfied. The indictment against Diaz did not limit the victim of the possessory offense only to Gordon. Moreover, the evidence revealed that Diaz used the gun to ensure his flight from the scene while German attempted to stop him. Had the jury received a proper instruction, the evidence was sufficient to permit it to find that Diaz was in constructive possession of the gun when he threatened Gordon. Both of those unlawful purposes were independent of the homicide. As long as the jury could have found that possession for an unlawful purpose existed, then the jury was entitled to return a guilty verdict provided that the jury was instructed properly. (pp. 12-13)
4. The third Williams factor was not satisfied. Although the jury was instructed that the State bore the burden of proving beyond a reasonable doubt that Diaz had actual, not constructive, possession of the gun for the purpose of using it unlawfully against the person or property of another, the trial court did not instruct the jury what the alleged unlawful purposes were based on the evidence presented. The trial Judge was required to relate the specific unlawful purposes charge to the facts of the case; a proper jury instruction must include an identification of such unlawful purposes as may be suggested by the evidence. Moreover, because of the improper jury instructions, the Court does not know and may not assume that the verdict on possession of the gun for an unlawful purpose was for a broader unlawful purpose than the manslaughter. Therefore, the fourth Williams factor also was not satisfied. (pp. 13-14)
5. The failure to provide proper jury instructions may constitute plain error. Moreover, the prosecutor, in summation, did not argue that there was a broader unlawful purpose. Because of the way the prosecutor presented the case to the jury and the way the jury was instructed, the only unlawful purpose submitted to the jury was possession of the gun to use it in the killing. Under those circumstances, merger is required. (pp. 14-15)
6. Although State v. Petties suggests the use of special verdicts in some cases, it does not mandate using them in all cases. Requiring trial courts to use special verdicts or verdict-based analysis in all cases in which a defendant is charged with possession of a weapon for an unlawful purpose and a greater offense may substantially reduce the sentencing court's discretion on merger issues. Such a bright-line requirement would be contrary to the flexible approach to merger. When there is a compelling need for the use of special verdicts, the trial court in its discretion should use them to avoid reversal of ambiguous verdicts. The Court reaffirms the propriety of using the type of written special verdict sheets recommended in State v. McAllister. The way in which juries should use special verdict sheets must, however, be explained to the jury in the general jury instructions. Here, the special verdict sheet did not conform to McAllister because it was limited to a single unspecified possession of a weapon for an unlawful purpose. (pp. 15-20)
As MODIFIED, the judgment of the Appellate Division is AFFIRMED.
JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in JUSTICE COLEMAN's opinion. CHIEF JUSTICE ...