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State v. Moore

June 02, 1999


On certification of the Superior Court, Appellate Division, whose opinion is reported at 309 N.J. Super. 463 (1998).

The opinion of the court was delivered by: Coleman, J.

Argued February 2, 1999

The issue raised in this second-degree aggravated assault case is whether the jury should have been instructed on non-deadly force self-defense or deadly force self-defense. The trial court declined to submit either instruction to the jury. The Appellate Division reversed, finding that defendant was entitled to a non-deadly force self-defense instruction. 309 N.J. Super. 463 (1998). We granted the State's petition for certification, 155 N.J. 588 (1998), and now reverse.


Defendant was tried before a jury for second-degree aggravated assault, third-degree possession of a handgun without a permit, and second-degree possession of a handgun with the purpose to use it unlawfully against the person or property of another. The victim of the aggravated assault charge was Erv-Wakine Smith.

On July 5, 1995, Smith, Archie Crooks, Tamara Bush, Shakisa Lawson, and Malcolm Stohall went to a Chinese restaurant in East Orange. They left the restaurant at approximately 11:20 p.m. As they walked down the middle of Amherst Street in East Orange, they observed defendant standing under a tree rolling marijuana into a cigar. There are two versions of what happened thereafter.

Under the State's version, when Smith and his friend observed defendant, defendant yelled to the group, "What are you looking at," or something to that effect. Smith, not hearing what defendant had said, asked defendant to repeat himself as Smith walked alone toward defendant. When Smith came within five feet of defendant, defendant pulled a gun from his waistband, pointed it at Smith's head, and cocked the trigger. Smith grabbed defendant, and they tussled for control of the gun. As Smith pushed defendant away in an attempt to flee, defendant pulled the trigger, shooting Smith in the stomach. Although Smith suffered serious internal injuries, consisting of a bullet hole through the liver and intestines, he survived. Defendant then pointed the gun at Archie Crooks and ran away without firing the gun again.

Defendant was arrested within a few days based on eyewitnesses' descriptions of him and the fact that one of the eyewitnesses knew his name. On July 12, 1995, defendant admitted to members of the East Orange Police Department that he was rolling a blunt marijuana cigar when he first observed Smith and two of his friends staring at him. Defendant asked Smith if he had a problem with defendant's conduct. He admitted pulling out the gun and waving it around as Smith approached him. According to defendant, his gun went off when Smith grabbed it. Defendant said that after the shooting, he ran to a nearby Dunkin' Donuts store and caught a taxi.

At trial, defendant told a different story. He denied putting the gun to Smith's head, pulling back the hammer, or intending to pull the trigger. Defendant testified that he was carrying the gun because he had been attacked a few weeks before and did not wish to "give them a chance" this time. He pulled out the gun when Smith and his friends approached because he "didn't know what they was going to do . . . . They was just charging . . . at me . . . like I did something to them when I just asked them a question." Defendant "was afraid they might try to jump me or tak[e] my weed or something like that." He pulled out his gun and "flashed it around" to "see if they would run . . . figur[ing] they might see the gun and just back off." Defendant stated that he "didn't mean to pull the trigger"; his "intention was just to scare" them. Defendant testified that the gun accidentally discharged during the struggle.

On cross-examination, defendant admitted he was not afraid of Smith because his loaded gun would protect him if Smith, or anyone else, tried to attack him. Defendant acknowledged that no one tried to attack him, and there was no indication that anyone in the group was carrying a weapon.

At the close of all the evidence, the trial court conducted a conference to discuss special requests for jury instructions. At that conference, defendant requested that the jury be charged on self-defense. Counsel argued that, although the defense theory was that the gun went off accidentally during a struggle, "the jury could conclude that the gun was not discharged accidentally, while at the same time not having a way to account for an act that is otherwise justified . . . . [S]elf-defense is the only way to provide that to the jury." Although defense counsel conceded that "there are obvious problems in the defense prevailing on a self-defense claim," counsel nonetheless argued that without the self-defense charge, the jury would be "left with accident versus purposeful and knowing or reckless indifference to life options where this situation was different in the sense that there was a physical struggle over possession of the gun at some point." Defense counsel argued that "without the instruction on self-defense to provide some guidance . . . the resulting verdict may not be necessarily what the jury would intend."

The trial court refused to charge the jury on self-defense. It found that the defense had relied on an accident theory and that no evidence had been presented to support a claim of self-defense.

The jury convicted defendant of second-degree aggravated assault and third-degree possession of a weapon without a permit. The jury acquitted defendant on the charge of second-degree possession of a weapon for an unlawful purpose. Defendant was sentenced on the aggravated assault count to a custodial term of seven years with three years of parole ineligibility. He received a concurrent four-year term on the weapon conviction.

Defendant appealed, contending, among other things, that the trial court erred in not instructing the jury on self-defense on the count charging aggravated assault. The Appellate Division agreed and reversed. The court first concluded that a rational factual basis existed in the record to support a self-defense charge. According to the Appellate Division, that evidence consisted of defendant's testimony that he "didn't know what they was going to do" but he "was afraid they might try to jump [him] or take [his] weed or something like that." Moore, supra, 309 N.J. Super. at 468. The court also concluded that, based on its view of the evidence, defendant had no duty to retreat because waving or brandishing the handgun was not a display of deadly force. Id. at 469. Although the court questioned "the wisdom of a policy that permits an individual to brandish a handgun on a public street in circumstances such as these when retreat is readily available[,]" the Appellate Division felt constrained to reverse. Ibid. "Any change in policy that would prohibit defendant's conduct under these circumstances must come from the Legislature." Id. at 469-70.


The State, through the Essex County Prosecutor, presents a twofold argument. First, the State argues that brandishing a loaded gun on a public street in the presence of other people, knowing the gun has the potential to cause death or serious bodily injury, constitutes deadly force. Second, the State argues that even if brandishing the gun did not constitute deadly force, defendant actually used deadly force when he shot Smith in the stomach with the handgun. Under both arguments, according to the State, defendant had a duty to retreat before using deadly force. The State maintains that defendant admitted that he did not reasonably believe that he needed to employ the amount of force used. Finally, the State argues that the Appellate Division erred in not focusing on the actual use of deadly force.Defendant contends that he was entitled to a jury instruction on self-defense. He argues that "from the moment that Smith grabbed the gun, all of [defendant's] actions were arguably in self-defense because the victor in the struggle for the gun would have been in a position to harm the other." Defendant further argues that if the jury found that the struggle over the gun placed him in reasonable fear for his life, he would have been justified in using deadly force in self-defense without any duty to retreat first, even if he could have retreated with complete safety.

The Attorney General, as amicus curiae, agrees with defendant that, as an exception to the deadly force rule, defendant had a right to display a loaded gun in order to create an apprehension in Smith and his friends that he would use deadly force if necessary. The Attorney General agrees with the State that defendant used deadly force when he shot the victim in the stomach, and that defendant was obligated to retreat before using deadly force.



The self-defense issues in this case are related to the charge of second-degree aggravated assault. The decision on whether a self-defense jury instruction was required involves a multi-step analysis. We begin with the elements of the second-degree aggravated assault charge. In the context of this case, the State was required to prove that defendant either attempted to cause, or actually caused, serious bodily injury to Smith "purposely or knowingly[,] or under circumstances manifesting extreme indifference to the value of human life recklessly cause[d] such injury." N.J.S.A. 2C:12-1b(1). The State presented this case to the jury under both theories of liability, while contending that defendant shot Smith in the stomach without justifiable cause. Defendant contested his guilt by asserting that the shooting was accidental. Defendant alternatively argued that if the jury rejected that defense, he was entitled to have the jury instructed on self-defense.

Justifications under the Code based on accident and self-defense need not be inconsistent. State v. Giberson, 153 N.J. Super. 241, 245-47 (App. Div. 1977). The claim of accident as a justification is dependent on the assertion of facts that negate the purposeful and knowing mental states required for the crime of second-degree aggravated assault. Generally, self-defense as a justification, on the other hand, is an "affirmative defense that excuses conduct that is otherwise unlawful." State v. Harmon, 104 N.J. 189, 209 (1986). Where recklessness or negligence is the requisite mental state to establish an offense, as will be shown later, self-defense is not a justification.

The Code provides that "[c]onduct which would otherwise be an offense is excused or alleviated by reason of any defense . . . provided by law." N.J.S.A. 2C:2-5. An accidental shooting, when viewed in the context of the requisite mental state for second-degree aggravated assault, is a permitted justification under the Code. N.J.S.A. 2C:2-3b. Similarly, the use of force for self-protection may be a justifiable defense, provided that certain statutory preconditions are satisfied. N.J.S.A 2C:3-4a. Since an accidental shooting contemplates the total absence of a purposeful or knowing mental state required for one of the theories of second-degree aggravated assault, and legal self-defense contemplates volitional conduct, the two defenses would be inconsistent unless viewed as alternative defenses. Because it is impossible to determine before trial which version of the facts the jury will credit, defendant was not precluded from advancing accident and self-defense as alternative defenses. Thus, we agree with the Appellate Division that defendant was legally permitted to pursue both defenses. We must now decide whether defendant was legally entitled to have the jury instructed on self-defense.


The jury was properly instructed that if it found the shooting of Smith to be accidental, defendant should be exonerated of second-degree aggravated assault because he did not purposely or knowingly cause or attempt to cause serious bodily injury. Under this theory of criminal liability, an accidental shooting negates the requisite purposeful and knowing alternative criminal mental states. "[A] person is not guilty of an offense unless he acted" with the required mental state "with respect to each material element of the offense." N.J.S.A. 2C:2-2a. One of the purposes of requiring proof of a specific mental state is the Code's attempt to achieve greater individual Justice through a closer relationship between guilt and culpability. State v. Zeidell, 154 N.J. 417, 430 (1998).

Defendant's second-degree aggravated assault charge was also submitted to the jury under the alternative theory that defendant recklessly caused serious bodily injury to Smith by shooting him in the stomach "under circumstances manifesting extreme indifference to the value of human life." N.J.S.A. 2C:12-1b(1). The Code defines recklessly as "consciously disregard[ing] a substantial and unjustifiable risk that the material element exists or will result from [the actor's] conduct." N.J.S.A. 2C:2-2b(3). The Code also quantifies the "unjustifiable risk" created by the actor's conduct by requiring consideration of the surrounding circumstances. Ibid. "The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation." Ibid. The key elements under this theory of criminal liability for second-degree aggravated assault are recklessly causing serious bodily injury and causing such injury under circumstances manifesting extreme indifference to the value of human life. Measured in terms of degrees, the requirement that the serious bodily injury be caused under circumstances ...

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