State v. Joey J. Fowler and Jamil L. Hearns (080880) (Union County and Statewide) ( 2019 )

SYLLABUS
This syllabus is not part of the Court’s opinion. 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
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Joey J. Fowler (A-5-18) (080880)
Argued March 25, 2019 -- Decided July 30, 2019
LaVECCHIA, J., writing for the Court.
The Court reviews an Appellate Division judgment that reversed the murder
convictions of defendants Joey Fowler and Jamil Hearns for perceived reversible error by
the trial court in failing to charge the jury on self-defense, as well as for failing to charge
the lesser-included offenses of aggravated manslaughter and reckless manslaughter.
Fowler and Hearns were indicted for first-degree murder and weapons offenses for
the fatal shooting of Donnell Johnson in March 2011. Hearns was also indicted for
hindering apprehension or prosecution. At trial, the State and defendants advanced
starkly different theories about the shooting. The alleged deficiencies in the jury
instructions are based on defendants’ version of events, as testified to by Hearns.
Hearns testified that he and Fowler were near a nightclub in Elizabeth around
closing time when he saw Johnson and Jones leave a car and approach him. Hearns
testified that no one else was in the vicinity at the time. Fowler was around a corner.
According to Hearns’s account, Jones demanded that Hearns repay the $5000 he owed
Jones. Hearns offered a partial payment, but Jones rejected it and pulled a gun from his
waistband and pointed it at Hearns’s stomach. Believing that Jones was about to shoot
him, Hearns “grabbed [Jones’s] wrist and his forearm” and “pushed it away,” knocking
Jones’s “wrist against [Hearns’s] knee while holding [Jones’s] wrist” with the gun “still
in [Jones’s] hand.” According to Hearns’s account the gun fired several times during this
struggle. The trajectory of the shots was downward but the bullets ricocheted off the
sidewalk in the general direction of Johnson.
The State presented a very different version of events. The State presented
testimony that Jones and Johnson were speaking to one another outside the vicinity of the
nightclub when Hearns approached them and shot Johnson, essentially point blank, as
revenge for Johnson’s participation in a previous assault and carjacking of Fowler.
At the conclusion of the trial, the court held a jury charge conference. The
respective attorneys for Fowler and Hearns stated that neither wanted instructions on
lesser-included offenses. The judge indicated he did not “see any version of facts that
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would support an aggravated manslaughter” charge under either party’s version of events.
The prosecutor agreed there was no evidence to support a reckless state of mind, and the
judge confirmed, “[e]veryone is agreeing, no lesser includeds?” Counsel did not object.
With respect to the other jury instruction issues, Fowler’s counsel asked for a
“self-defense slash accident” instruction, acknowledging the court’s observation that
“technically this is not a self-defense because Mr. Johnson was an innocent by-stander.”
The court stated that “if somebody drafts a paragraph, I would consider putting it into the
murder charge,” but indicated that, in its view, Hearns’s testimony did not show self-
defense as to Johnson; rather, it would tend to negate the state of mind needed to support
the murder charge. No one submitted a paragraph. The court rejected as inapposite the
further request by Hearns for a traditional self-defense instruction.
The court instructed the jury that, to reach a guilty verdict for murder, the jury
must determine that Hearns caused the victim’s death and did so “purposely or
knowingly.” The court noted that defendant’s act must have caused Johnson’s death in a
way that was not “too remote, too accidental in its occurrence or too dependent on
another’s volitional act” to have a “just bearing on the defendant’s liability.”
Both defendants appealed, arguing that the trial court erred in not instructing the
jury on self-defense and lesser-included offenses. 453 N.J. Super. 499, 505-06 (App.
Div. 2018). The Appellate Division agreed, determining that the trial court’s omission of
a self-defense and lesser-included-offense instructions was prejudicial error. Id. at 507.
The Court granted the State’s petition for certification. 235 N.J. 187 (2018).
HELD: Review of the alleged instructional error must be moored to the facts, and the
Court concludes that the omission of the instructional charges was not error under the
circumstances of this case. The Court therefore reverses and remands to the Appellate
Division for consideration of defendants’ arguments that have not yet been addressed.
1. The mental states of “purposely” and “knowingly” are defined in N.J.S.A. 2C:2-2. To
be guilty of murder, a person must “cause[] the death of another human being”
purposefully or knowingly. N.J.S.A. 2C:11-2, -3. N.J.S.A. 2C:2-3(b) explains that “the
actual result must be within the design or contemplation” of the actor or “the actual result
must involve the same kind of injury or harm as that designed or contemplated and not be
too remote, accidental in its occurrence, or dependent on another’s volitional act to have a
just bearing on the actor’s liability or on the gravity of his offense.” (pp. 16-17)
2. “[T]he use of force upon or toward another person is justifiable when the actor
reasonably believes that such force is immediately necessary for the purpose of protecting
himself against the use of unlawful force by such other person on the present occasion.”
N.J.S.A. 2C:3-4(a). If a self-defense charge is requested and supported by some evidence
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in the record, it must be given. The plain language of the self-defense statute clearly
indicates that it is inapplicable to the factual scenario proffered by Hearns. The statute is
not drafted to address force used against third parties, but rather force used against a party
who uses force against the defendant. Reviewing the jury charges as a whole, the Court
concludes that, had the jury believed Hearns’s version of events, there were ample
instructions to lead them to a verdict of not guilty. Although explicitly stating that an
accidental death is incompatible with a conviction for murder would not have been an
error, the absence of such explication also did not constitute error. (pp. 17-21)
3. Turning to the lesser-included-offense charges, the inquiry here -- when defendants
explicitly declined the opportunity to have the court instruct on the lesser-included
charges of aggravated manslaughter and reckless manslaughter -- is whether evidence to
support convictions for manslaughter or aggravated manslaughter is clearly indicated
from the record; that is, whether that evidence jumps off the page. It does not. Under
Hearns’s version of the facts, no rational jury could find that he acted recklessly,
particularly considering that it was allegedly Jones who pulled the gun and who was
holding it when it started discharging before it ever hit Hearns’s knee. The Court
therefore finds no error in the exclusion of lesser-included-offense charges. (pp. 22-25)
4. The Appellate Division determined that the jury instructions used at trial did not
adequately account for circumstances when the defendant “uses force in self-defense, and
in doing so recklessly or negligently injures a bystander” and therefore “‘may’ be found
guilty of assault upon the bystander.” Fowler, 453 N.J. Super. at 508. The Appellate
Division thus presented additional instructions it would require on that point. The Court
finds that those additional instructions are not warranted under the circumstances of this
case. The instructions given by the trial court appropriately conveyed to the jury
defendants’ theory about the accidental nature of the shooting and how that fit within the
State’s proof requirements. Had the jury believed Hearns’s version of events, there were
ample instructions to lead them to a verdict of not guilty. (pp. 25-30)
REVERSED and REMANDED for further proceedings.
JUSTICE ALBIN, dissenting in part and concurring in part, agrees that the
court was not required to charge the jury on lesser-included offenses but expresses the
view that, based on Hearns’s testimony, the trial court was bound to honor Hearns’s
request for a self-defense charge. When N.J.S.A. 2C:3-4(a), N.J.S.A. 2C:3-4(b)(2), and
N.J.S.A. 2C:3-9(c) are read together, Justice Albin explains, they make clear that the
justification of self-defense is available when a person justifiably acts in self-defense
toward an aggressor but accidentally injures or even kills an innocent person.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE
ALBIN filed an opinion dissenting in part and concurring in part.
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SUPREME COURT OF NEW JERSEY
A-5 September Term 2018
080880
State of New Jersey,
Plaintiff-Appellant,
v.
Joey J. Fowler, a/k/a
Joey Williams, Shaquan
Williams, Shaquan Harris,
and Joey Flower, and
Jamil L. Hearns, a/k/a
Khalil Hearns, Jay L. Love,
Jayson Love, James Holmes,
and Jameel Hearns,
Defendants-Respondents.
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
453 N.J. Super. 499 (App. Div. 2018).
Argued Decided
March 25, 2019 July 30, 2019
Milton S. Leibowitz, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause for
appellant (Michael A. Monahan, Acting Union County
Prosecutor, attorney; Milton S. Leibowitz, of counsel and
on the briefs).
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Marcia Blum, Assistant Deputy Public Defender, argued
the cause for respondent Joey J. Fowler (Joseph E.
Krakora, Public Defender, attorney; Marcia Blum, of
counsel and on the briefs).
Michael Confusione, Designated Counsel, argued the
cause for respondent Jamil L. Hearns (Joseph E. Krakora,
Public Defender, attorney; Michael Confusione, on the
briefs and Jamil L. Hearns, pro se, on the supplemental
brief).
Lauren Bonfiglio, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Gurbir S. Grewal, Attorney General, attorney; Lauren
Bonfiglio, of counsel and on the brief).
Michael Gilberti argued the cause for amicus curiae
Association of Criminal Defense Attorneys of New
Jersey (Jardim, Meisner & Susser, attorneys; Michael
Gilberti, on the brief).
JUSTICE LaVECCHIA delivered the opinion of the Court.
In this appeal, we review an Appellate Division judgment that reversed
the murder convictions of defendants Joey Fowler and Jamil Hearns. The
appellate judgment rests on perceived error from omitted jury instructions.
Review of the alleged instructional error at issue must be moored to the
facts. At this trial, the State and defendants advanced starkly different theories
about the fatal shooting of the victim, Donnell Johnson.
According to the State, Hearns walked up to the victim and, in an act of
revenge, shot him at point-blank range. Hearns then returned to Fowler’s
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waiting car and both attempted to flee but were promptly apprehended by
nearby on-duty officers.
According to defendants’ version, the victim -- a bystander -- was shot
due to the accidental discharge of a gun during a struggle that occurred
between Hearns and the victim’s cousin, Algere Jones. Hearns testified that
Jones confronted him at gunpoint about money Hearns owed to Jones.
According to Hearns, in his effort to dislodge the gun from Jones’s grasp, a
struggle ensued during which Hearns caused Jones’s hand, wrist, and/or
forearm to strike against Hearns’s knee. The gun went off once before, and
multiple times during, the striking of Jones’s arm against Hearns’s knee. Two
ricocheting bullets struck Johnson, unbeknownst to Hearns. When the gun fell
to the ground, Hearns grabbed it and ran to Fowler’s waiting car to get away
from Jones.
Taking into account defendants’ version of events, the Appellate
Division determined that the trial court committed reversible error in failing to
charge the jury on self-defense, as well as for failing to charge the lesser-
included offenses of aggravated manslaughter and reckless manslaughter ,
which, when pressed by the court, neither defendant wanted included in the
instructions. We conclude that the omission of the instructional charges was
not error under the circumstances of this case. We therefore reverse, and we
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remand this matter to the Appellate Division for consideration of defendants’
numerous other arguments that have not yet been addressed.
I.
A.
Johnson was shot on March 5, 2011, and he later died from his wounds.
As a result, Fowler and Hearns were indicted for first-degree murder, N.J.S.A.
2C:11-3(a)(1), (2); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). Hearns
was also indicted for hindering apprehension or prosecution, N.J.S.A. 2C:29-
3(b)(4). On the murder counts, the State charged Hearns as a principle and
Fowler under an accomplice theory. A jury convicted both defendants of all
charges.
The alleged deficiencies in the jury instructions are based on a review of
the facts from the perspective of defendants’ version of events, as testified to
by Hearns. We therefore begin with a more detailed presentation of Hearns’s
testimony.
1.
Hearns testified that, at the time of the shooting, he owed Algere Jones
$5000 and that Jones had confronted him not long before about repaying the
debt. The day of the shooting, Hearns and Fowler had been out socializing and
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were near a nightclub in Elizabeth around closing time. Hearns testified he
heard two car doors close, turned, and saw Johnson and Jones leave a car and
approach him. Hearns testified that no one else was in the vicinity at the time.
Fowler was around a corner.
According to Hearns’s account, Jones demanded that Hearns repay his
debt. Hearns offered a partial payment of $1300, which he had on him, but
Jones rejected it. Johnson tried to convince Jones to accept the partial
payment, but Jones was not to be persuaded. Jones pulled a gun from his
waistband and pointed it at Hearns’s stomach. Believing that Jones was about
to shoot him, Hearns “grabbed [Jones’s] wrist and his forearm” and “pushed it
away,” knocking Jones’s “wrist against [Hearns’s] knee while holding
[Jones’s] wrist” with the gun “still in [Jones’s] hand.”
Again, according to Hearns’s account the gun fired several times during
this struggle. According to Hearns, the first discharge occurred before Jones’s
wrist hit Hearns’s knee. The gun continued to fire thereafter “each time [the
gun] hit [Hearns’s] knee.” The trajectory of the shots was downward toward
the ground but the bullets ricocheted off the sidewalk in the general direction
of Johnson. Hearns later learned that some shots struck Johnson. Eventually
the gun fell to the ground, and Hearns dove for it to prevent Jones from using
it against him. Hearns ran with the gun back to where Fowler was. Jones and
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Johnson returned to their vehicle and left the area. Johnson died two days
afterward from his gunshot wounds.
The State presented a very different version of events. The State
presented testimony that Jones and Johnson were speaking to one another
outside the vicinity of the nightclub when Hearns approached them and shot
Johnson, essentially point blank. The shooting, the State alleged, was
committed on Fowler’s behalf as revenge for Johnson’s participation in a
previous assault and carjacking of Fowler.
2.
At the conclusion of the trial, the court held a jury charge conference
during which the parties discussed the propriety of including instructions on
lesser-included offenses, self-defense, and accident.
At the hearing, the respective defense attorneys for Fowler and Hearns
stated that neither wanted instructions on lesser-included offenses. The trial
judge pressed the issue, seeking to ensure everyone was in agreement and had
considered all appropriate theories of the case.
The Court: . . . [I]s there any evidence in the case . . .
from which the jury can conclude that, for example,
your client might be guilty of reckless and not murder
or aggravated?
[Hearns’s Counsel]: Well, I think the Court sua sponte
can make that observation based on the record, and you
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don’t have to reach too far to see there was testimony
regarding a struggle. However --
The Court: If you think it through, if we accept your
client’s version of what happened, right? That means
that, you know, Mr. Jones was coming at him with a
weapon and then he grabbed the weapon and was, you
know, banging it in a way to, you know, protect
himself.
[Hearns’s Counsel]: Which is self-defense.
The Court: Self-defense against Mr. Jones. If he was
charged with something regarding Mr. Jones, it would
be self-defense. He’s not charged with any assault or
anything vis-à-vis Mr. Jones. But under what
circumstances -- under what facts can the jury conclude
a set of facts existed that would support a reckless or
aggravated -- your client’s version of the facts, he
didn’t bring a gun. He didn’t have any intent to harm
anybody. Where is there a set of facts that would
support -- in the record -- that the jury could conclude
that would lead to the conclusion that your client might
be guilty of one of the lesser includeds? I’m having
trouble thinking of one.
[Hearns’s Counsel]: Yeah. In fact --
The Court: You’re agreeing with me?
[Hearns’s Counsel]: I’m agreeing.
The Court: [Fowler’s Counsel], you agree with that
analysis?
[Fowler’s Counsel]: Yes, Judge.
Later in the conference, the judge reiterated that he did not “see any
version of facts that would support an aggravated manslaughter” charge under
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either party’s version of events but invited “anybody to tell [him] any set of
facts they can think of that supports that.” The prosecutor agreed there was no
evidence to support a reckless state of mind, and then the trial judge
confirmed, “[e]veryone is agreeing, no lesser includeds?” Counsel did not
object.
With respect to the other jury instruction issues before us, the record
reveals that Fowler’s counsel asked for a “self-defense slash accident”
instruction, acknowledging the court’s observation that “technically this is not
a self-defense because Mr. Johnson was an innocent by-stander.” The court
stated that it had searched unsuccessfully for such a charge and case law on the
issue. Fowler’s counsel followed up, asking if they could “fashion [a charge]
in the sense the jury is told Mr. Hearns’[s] testimony is whatever and if you
find that to be the case, there’s no criminal responsibility on his part for trying
to avoid being shot?” The court responded that
if somebody drafts a paragraph, I would consider
putting it into the murder charge . . . . But I go back to
. . . if you believe what Mr. Hearns says, the jury
believes that, it just negates the criminal state of mind
for anything, and that’s what it does. . . . What does it
do beyond that? Because it makes it an accident rather
than a knowing or intentional or reckless disregarding
of the charges that in the State’s mind are relevant to
manslaughter, reckless manslaughter and murder. . . .
So what I came around to was it wasn’t self-defense,
and that basically it was covered implicitly and
explicitly in the charge -- murder charge of what the
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appropriate state of mind was and this isn’t it. If you
believe Mr. Hearns, then this isn’t it. The State has not
met its burden to prove state of mind because it was just
an accident.
Based on the record, it appears that neither defense attorney drafted a
suggested “self-defense slash accident” instruction for the court’s
consideration, as requested by the trial judge. Later during the conference, the
court confirmed with Fowler’s counsel that
You’re satisfied there’s nothing further on -- I’ll put in
quotes -- self-defense slash accident, close quote[?]
[Fowler’s Counsel]: Yes. I leave it to [Hearns’s
counsel] to argue. He has a different position.
Hearns’s counsel asked for a traditional self-defense charge. He argued
that, because there was testimony of a struggle over the gun, “the jurors have
the right to consider whether the struggle is with Mr. Jones or whether . . . it’s
a struggle involving Mr. Johnson and under the same scenario.” However, the
court pointed out that there was “no evidence that there was a struggle with
Mr. Johnson,” only with Jones. Therefore, the court rejected the request for a
self-defense instruction.
3.
After the conference, the court charged the jury. With respect to the
murder charges, the court instructed that, in order to reach a guilty verdict, the
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jury must determine that Hearns caused the victim’s death and did so
“purposely or knowingly.” The court further elaborated that:
In order for you to find a particular defendant
guilty of purposeful serious bodily injury murder, the
State must prove beyond a reasonable doubt that it was
the defendant’s conscious object to cause serious bodily
injury that then resulted in the victim’s death, that the
defendant knew that the injury created substantial risk
of death and that it was highly probable that death
would result. In order for you to find the defendant
guilty of knowing serious bodily injury murder, the
State must prove beyond a reasonable doubt the
defendant was aware that it was practically certain his
conduct would cause serious bodily injury that then
resulted in the victim’s death; that the defendant knew
that the injury created a substantial risk of death; and
that it was highly probable that death would result.
Whether the killing is committed purposely or
knowingly, causing death or serious bodily injury
resulting in death must be within the design or
contemplation of the defendant.
The court also addressed causation, noting that defendant’s act must
have caused Johnson’s death in a way that was not “too remote, too accidental
in its occurrence or too dependent on another’s volitional act” such that it
would not have a “just bearing on the defendant’s liability.”
With respect to the charge on possession of a weapon for an unlawful
purpose, the court instructed the jury that it must determine, in relevant part,
that “[d]efendant possessed the firearm with the purpose to use it against the
person or property of another” and that the purpose was unlawful. The court
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explained that “[i]n this case the State contends that the defendant’s unlawful
purpose in possessing the firearm was to shoot Donnell Johnson,” but that
defendants “contend[] that Algere Jones brought the gun to the scene with the
intent to use it unlawfully against defendant Hearns.”
The jury convicted both defendants of murder, unlawful possession of a
weapon, and possession of a weapon for an unlawful purpose. It also
convicted Hearns of hindering apprehension or prosecution.
B.
Both defendants appealed. Relevant to this appeal, in light of Hearns’s
testimony about an accidental shooting, defendants argued that the trial court
erred in not instructing the jury on self-defense and lesser-included offenses.1
State v. Fowler, 453 N.J. Super. 499, 505-06 (App. Div. 2018). The Appellate
Division agreed, determining that the trial court’s omission of a self-defense
instruction and corresponding instructions on lesser-included offenses was
prejudicial error. Id. at 507.
The Appellate Division stated that, as “[a] necessary first step,” the trial
court should have given a molded self-defense charge, which would have “set
1
Defendants also raised arguments concerning evidentiary issues, sentencing,
severance, and constitutional violations. State v. Fowler, 453 N.J. Super. 499,
505-07 (App. Div. 2018). Because the Appellate Division ordered a new trial
on the basis of flawed jury instructions, however, the appellate court did not
address the other points of appeal. Id. at 511.
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the stage for the jury’s consideration of whether Hearns acted recklessly by
wrestling with Jones and banging the gun against his knee during the struggle
in the midst of a crowd.” Id. at 508. The court noted that reckless conduct
could be an exception to the affirmative defense of self-defense under N.J.S.A.
2C:3-9(c), leaving defendants open to conviction for aggravated or reckless
manslaughter. Id. at 509 (citing N.J.S.A. 2C:11-4(a)(1), (b)(1); State v.
Rodriguez, 195 N.J. 165, 172-73 (2008)). The court reasoned that there were
sufficient facts in evidence for a jury to find that Hearns acted in self-defense
against Jones, that he did so in a reckless manner, and that the reckless act
caused Johnson’s fatal injuries. Id. at 510. Therefore, the Appellate Division
concluded that the trial court should have given molded instructions on self-
defense, the recklessness exception to self-defense, and aggravated and
reckless manslaughter. Id. at 509-10.
The Appellate Division also determined that an additional instruction
should have been given to explain to the jury that Fowler, who was accused of
murder via accomplice liability, could not be found guilty if Hearns was only
guilty of one of the lesser-included offenses. Id. at 510.
We granted the State’s petition for certification. 235 N.J. 187 (2018).
We also granted amicus curiae status to the Association of Criminal Defense
Lawyers of New Jersey (ACDL) and the Attorney General of New Jersey.
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II.
A.
According to the State, the trial court’s decision not to instruct the jury
on self-defense was not error. The State argues Hearns’s testimony did not
provide a basis for self-defense; rather, it presented a factual scenario that
would negate the requisite purposeful or knowing mens rea of murder. The
jury instructions covered all the elements necessary for defendants’ conviction
of murder. And the instructions were sufficient to cover how defendants’
version of the facts -- that the shooting was an accident -- should be considered
in connection with those elements. Further, the State notes that the facts
presented at trial could not have led to a finding of recklessness and that the
exclusion of lesser-included charges was therefore not improper.
B.
The Attorney General supports the State’s position that the jury
instructions were not erroneous. The Attorney General adds that counsel for
both defendants had many opportunities to object to the exclusion of jury
charges or to propose their own but failed to do so, demonstrating that the jury
charges were in line with defendants’ theory of the case.
The Attorney General also notes that, although the trial court did not
give a specific instruction on accident, the instructions clearly indicated that
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the State was required to demonstrate a purposeful or knowing mens rea,
which would be incompatible with a finding that Johnson’s death was an
accident. And, the Attorney General points out that the instructions on
causation for murder explained that a defendant’s act must not be “too remote,
too accidental in its occurrence or too dependent on another’s volitional act” in
relation to the victim’s death.
Finally, the Attorney General argues that instructions on lesser-included
charges would have been improper, adding that the lack of a factual basis for
such charges would make the instructions on the elements of manslaughter
misleading, confusing, or likely to incentivize a compromise verdict.
C.
Fowler argues that the trial court erred when it did not include a self-
defense jury instruction. Absent a self-defense instruction, the jury was only
told “how it could convict defendants on the [S]tate’s evidence” but not “how
it could acquit defendants on the defense evidence.” Fowler further asserts
that theories of accident and self-defense are not inconsistent. Finally, citing
out-of-state case law, Fowler points to instances in which other jurisdictions
have transferred the intent of self-defense to harm done to a third party and
urges adoption of such an approach in New Jersey.
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D.
Hearns’s arguments are similar to Fowler’s. According to Hearns,
without a self-defense instruction, the jury was not informed of the “full range
of rational choices that the trial proofs afforded.” Hearns stresses that such a
lack of information had the potential to be particularly prejudicial should the
jury have credited parts but not all of defendants’ theory -- for example if the
jury concluded that Jones instigated the confrontation but not that the gun went
off accidentally.
In a pro se brief, defendant Hearns adds that the trial court should have
charged the jury with lesser-included offenses, self-defense, recklessness,
imperfect self-defense, and accident.
E.
The ACDL also supports the Appellate Division’s decision. It asserts
that without molded jury instructions to fit the unique facts of this case --
which combined issues of self-defense and accident -- the jury was not given
proper guidance as to how to treat defendants’ evidence, depriving them of a
fair trial.
III.
We begin our analysis with the debate over the self-defense charge,
which occupied the trial court’s and the parties’ attention in the charge
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conference and was also the necessary first step in the Appellate Division’s
reasoning for finding the jury instructions flawed. First, we set forth some
basic background principles on murder and the affirmative defense of self-
defense.
A.
1.
The New Jersey Code of Criminal Justice provides that “[a] person is
guilty of criminal homicide” -- identified, as is relevant here, as murder or
manslaughter, N.J.S.A. 2C:11-2(b) -- “if he purposely, knowingly, [or]
recklessly . . . causes the death of another human being,” N.J.S.A. 2C:11-2(a).
“[C]riminal homicide constitutes murder when . . . the actor purposely” or
“knowingly causes death or serious bodily injury resulting in death.” N.J.S.A.
2C:11-3(a)(1), (2).
The mental states of “purposely” and “knowingly” are defined in
N.J.S.A. 2C:2-2. “A person acts purposely with respect to the nature of his
conduct or a result thereof if it is his conscious object to engage in conduct of
that nature or to cause such a result.” N.J.S.A. 2C:2-2(b)(1). “A person acts
knowingly with respect to a result of his conduct if he is aware that it is
practically certain that his conduct will cause such a result.” N.J.S.A. 2C:2-
2(b)(2).
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To be guilty of murder, a person must “cause[] the death of another
human being” purposefully or knowingly. See N.J.S.A. 2C:11-2 (emphasis
added); N.J.S.A. 2C:11-3. With respect to causation, N.J.S.A. 2C:2-3(b)
explains that,
[w]hen the offense requires that the defendant
purposely or knowingly cause a particular result, the
actual result must be within the design or
contemplation, as the case may be, of the actor, or, if
not, the actual result must involve the same kind of
injury or harm as that designed or contemplated and not
be too remote, accidental in its occurrence, or
dependent on another’s volitional act to have a just
bearing on the actor’s liability or on the gravity of his
offense.
[(emphases added).]
2.
The Criminal Code provides for self-defense as an affirmative defense to
an otherwise criminal act of homicide. N.J.S.A. 2C:3-4(a) sets forth the basic
principles of the self-defense justification:
Subject to the provisions of this section and of
[N.J.S.A.] 2C:3-9, the use of force upon or toward
another person is justifiable when the actor reasonably
believes that such force is immediately necessary for
the purpose of protecting himself against the use of
unlawful force by such other person on the present
occasion.
17
In referring to the “use of force,” subsection (a) does not distinguish
between non-deadly and deadly force; both can be justifiable. See ibid.; see
also N.J.S.A. 2C:3-4(b)(2) (imposing certain limitations on the use of deadly
force).
B.
If a “self-defense charge is requested and supported by some evidence in
the record, it must be given.” Rodriguez, 195 N.J. at 174. However, absent a
request from the parties, “evidence must ‘clearly indicate[]’ such a defense” to
warrant a self-defense instruction. State v. Galicia, 210 N.J. 364, 390-91
(2012) (alteration in original) (quoting State v. Perry, 124 N.J. 128, 161
(1991)).
As noted, under the Criminal Code “the use of force upon or toward
another person is justifiable when the actor reasonably believes that such force
is immediately necessary for the purpose of protecting himself against the use
of unlawful force by such other person on the present occasion.” N.J.S.A.
2C:3-4(a) (emphases added). As with all statutes, when interpreting provisions
of the Criminal Code the Court first looks to “the statute’s plain language,
giving terms their ordinary meaning.” State v. Fede, 237 N.J. 138, 148 (2019)
(citing State v. S.B., 230 N.J. 62, 67 (2017)). If the plain language is clear,
18
“we then are duty-bound to apply that plain meaning.” Ibid. (citing Kean
Fed’n of Teachers v. Morell, 233 N.J. 566, 584 (2018)).
Because Hearns made a request for a traditional self-defense charge we
dispose quickly of the argument.
The plain language of our self-defense statute clearly indicates that it is
inapplicable to the factual scenario proffered by Hearns. The language of the
statute is not drafted to address force used against third parties, but rather
offers justification for force used against a party who uses force against the
defendant. Therefore -- as noted by the trial court, and ultimately not
contested by either defendant’s attorney -- a self-defense instruction would
have been appropriate had Jones, the alleged attacker, been the victim, but not
Johnson as a third-party bystander. Contrary to the assertion of the dissent,
based on the testimony of Hearns, the trial court was not “bound to honor
Hearns’s request for a self-defense charge on the murder count,” post at __
(slip op. at 2), because the death of a bystander does not fit in the wording of
our self-defense statute. Indeed, the Appellate Division ruled consistently with
our view on this point.
We hold that the trial court did not err in denying a traditional self-
defense charge when there was no evidence of use of force by Johnson against
Hearns.
19
C.
Most telling that a traditional self-defense charge was not an applicable
instruction in this instance was defense counsels’ request for a “self-defense
slash accident” instruction, seemingly conceding that this was not an alleged
act of self-defense, but a situation of a different ilk. It was. The victim,
Johnson, was not the aggressor against whom Hearns was protecting himself in
self-defense. Jones was the aggressor and defendants faced no charges of
harming Jones.
Although the trial court was open-minded about whether to include
language to elaborate on the role that accident played should the jury have
believed Hearns’s version of events, the requested proposed language for a
charge was not provided. We conclude that defendants were not prejudiced
when the trial court did not pick up defense counsels’ torch and provide its
own language to honor defendants’ half-hearted request for a charge melding
their accident theory into the structure of self-defense.
Reviewing the jury charges as a whole, we conclude that, had the jury
believed Hearns’s version of events, there were ample instructions to lead
them to a verdict of not guilty. The jury was explicitly told that, to find
defendants guilty of murder, Hearns’s actions must have caused Johnson’s
death in a way that was not “too remote, too accidental in its occurrence or too
20
dependent on another’s volitional act.” (emphasis added). The jurors were
further instructed that “causing death or serious bodily injury resulting in death
must be within the design or contemplation of the defendant.” Finally, the jury
was told that each of these elements must have been proved beyond a
reasonable doubt by the State. 2
A guilty verdict under those directives is simply incompatible with a
belief that Johnson’s death was unintentional or accidental. Therefore,
although explicitly stating that an accidental death is incompatible with a
conviction for murder would not have been an error, we conclude that the
absence of such explication also did not constitute error.3
2
In light of those instructions, we reject the argument that the State was
advantaged because it was not required to disprove the affirmative defense of
self-defense. The State was clearly required to show that Johnson’s murder
was both Hearns’s intent and not an accidental or remote consequence of other
actions. This inherently requires the State to disprove that Hearns’s actual
goal or intent was only to protect himself.
3
We also note that defendants’ convictions for possession of a weapon for an
unlawful purpose further corroborates that defendants’ convictions were the
result of the jury believing the State’s version of events over Hearns’s. To
sustain that conviction, the jurors were instructed that they must find that the
“defendant possessed the firearm with the purpose to use it against the person
or property of another” in an unlawful manner, specifically that “the
defendant’s unlawful purpose in possessing the firearm was to shoot Donnell
Johnson.” Had the jurors believed Hearns’s version of events, they could not
have simultaneously found that Hearns possessed a weapon for the purpose of
shooting Johnson -- who was allegedly accidentally shot.
21
IV.
We turn next to the argument about the lesser-included offenses. Jury
instructions for lesser-included offenses are reviewed under a standard that
examines whether “a rational basis” exists “for a jury to acquit the defendant
of the greater offense as well as to convict the defendant of the lesser,
unindicted offense.” State v. Funderburg, 225 N.J. 66, 81 (2016) (quoting
State v. Savage, 172 N.J. 374, 396 (2002)). When a charge is requested by the
parties, the trial court must “examine the record thoroughly to determine if the
rational-basis standard has been satisfied.” State v. Alexander, 233 N.J. 132,
142 (2018) (quoting State v. Crisantos, 102 N.J. 265, 278 (1986)).
However, if the parties do not request a lesser-included-offense charge,
reviewing courts “apply a higher standard, requiring the unrequested charge to
be ‘clearly indicated’ from the record.” Id. at 143. This does not require the
trial court to
“scour the statutes to determine if there are some
uncharged offenses of which the defendant may be
guilty,” State v. Brent, 137 N.J. 107, 118 (1994), or “‘to
meticulously sift through the entire record . . . to see if
some combination of facts and inferences might
rationally sustain’ a lesser charge,” Funderburg, 225
N.J. at 81 (quoting State v. Choice, 98 N.J. 295, 299
(1985)). Instead, the evidence supporting a lesser-
included charge must “jump[ ] off the page” to trigger
a trial court’s duty to sua sponte instruct a jury on that
charge. State v. Denofa, 187 N.J. 24, 42 (2006).
22
[Ibid. (alterations and omissions in original).]
Therefore, the inquiry here -- when defendants explicitly declined the
opportunity to have the court instruct on the lesser-included charges of
aggravated manslaughter and reckless manslaughter -- is whether evidence to
support convictions for manslaughter or aggravated manslaughter “jump [s] off
the page.” We hold they do not.
A defendant commits manslaughter when he acts recklessly, causing the
death of another human being. N.J.S.A. 2C:11-4(b)(1). A killing will be
considered to constitute aggravated manslaughter if it is done recklessly and
“under circumstances manifesting extreme indifference to human life.”
N.J.S.A. 2C:11-4(a)(1). A defendant acts recklessly when he or she
“consciously disregards a substantial and unjustifiable risk” that death will
occur from the defendant’s conduct, and disregarding the risk “involves a
gross deviation from the standard of conduct that a reasonable person would
observe” in the same situation. N.J.S.A. 2C:2-2(b)(3).
In defendants’ trial, the jury was presented with two distinct, mutually
exclusive versions of events, neither of which could be viewed as
demonstrating the conscious disregard of a substantial and unjustifiable risk.
The State depicted a premeditated and purposeful murder. Defendants’
version asserted that, faced with an armed assailant at close range, Hearns
23
attempted to disarm his attacker using non-lethal force in an unpopulated area.
The defendants’ version deserves careful scrutiny to assess whether there was
any basis whatsoever to support a claim of recklessness, let alone a showing
that jumps from the page.
As the Attorney General succinctly yet comprehensively summarized in
its argument, the facts to which Hearns specifically testified were that he
thought Jones was going to kill him, so he grabbed Jones’s wrist and banged it
against his own knee, in an attempt to protect himself from being shot at close
range. Assuming Hearns’s testimony to be true, he attempted to unarm a
gunman who intended to shoot him. He did not aimlessly grab for the gun,
causing it to be pointed carelessly in the air or directed at someone. Instead,
he had the gun, which was in Jones’s hand, pointed toward the ground as he
banged it against his own knee. Under Hearns’s version of the facts, we
conclude that no rational jury could find that he acted recklessly, particularly
considering that it was allegedly Jones who pulled the gun and who was
holding it when it started discharging before it ever hit Hearns’s knee.4
4
To the extent that the Appellate Division’s decision refers to the gun
discharging when it fell to the ground, we discern no evidence in this record to
support that inference. The facts recited above, and on which we rely, are
those distilled from Hearns’s actual testimony.
24
In sum, neither the State’s nor defendants’ scenario reasonably depicts
Hearns as an actor who consciously disregarded a substantial and unjustifiable
risk providing a platform for a manslaughter or aggravated manslaughter
charge based on recklessness, let alone constitutes a scenario where that
conclusion jumps off the page. 5
We therefore find no error in the exclusion of lesser-included-offense
charges.
V.
In this matter the Appellate Division came to a different conclusion and
determined that the jury instructions were insufficient, warranting a new trial.
Specifically, the appellate court determined that
[a] necessary first step was to give the jury a molded
self-defense charge -- but other instructions were also
necessary because the injury was allegedly accidentally
5
In making this determination we acknowledge that, in dicta, this Court has
stated a defendant could commit manslaughter or aggravated manslaughter if
that defendant uses force in self-defense but does so in a reckless manner,
killing a third party. Rodriguez, 195 N.J. at 172-73 (“[A]cting on an honest
and reasonable belief in the need to use deadly force against an aggressor is
not reckless, but . . . endangering third parties in the use of such force may be
reckless.”). In Rodriguez, the decedent was the aggressor and was involved in
a deadly struggle with the defendant -- and not an innocent bystander as was
the victim here. Id. at 170. Also, the defendant actually used deadly force by
purposefully stabbing the decedent. Ibid. The circumstances of the instant
case are a far cry from those in Rodriguez where, in dicta, our Court penned
the language that the Appellate Division seized upon here. Moreover, we
reiterate that Hearns’s alleged use of force in this instance could not be said to
“jump off the page” as reckless.
25
inflicted on another -- not the attacker. Self-defense
does, however, set the stage for the jury’s consideration
of whether Hearns acted recklessly by wrestling with
Jones and banging the gun against his knee during the
struggle in the midst of a crowd.
[Fowler, 453 N.J. Super. at 508.]
In arriving at that conclusion, the Appellate Division focused on an
important caveat to the use of the self-defense justification, id. at 590, which
states that
[w]hen the actor is justified under sections 2C:3-3 to
2C:3-8 in using force upon or toward the person of
another but he recklessly or negligently injures or
creates a risk of injury to innocent persons, the
justification afforded by those sections is unavailable in
a prosecution for such recklessness or negligence
towards innocent persons.
[N.J.S.A. 2C:3-9(c).]
Based on that statute and dicta from this Court’s opinion in Rodriguez,
the Appellate Division determined that the jury instructions used at trial d id
not adequately account for circumstances when the defendant “uses force in
self-defense, and in doing so recklessly or negligently injures a bystander” and
therefore “‘may’ be found guilty of assault upon the bystander.” Fowler, 453
N.J. Super. at 508 (citing Rodriguez, 195 N.J. at 172-73).
The Appellate Division conceded that our statutes would not permit self-
defense to “serve as legal justification for an assault on a third party” but
26
determined that N.J.S.A. 2C:3-9(c) should, “[b]y analogy . . . inform[] the
lesser-included offenses that should have been charged to the jury.” Id. at 509.
The Appellate Division concluded that
[g]iving the jury the alternative lesser-included forms
of manslaughter allows them, within the framework of
the New Jersey Code of Criminal Justice, N.J.S.A.
2C:1-1 to 104-9, to assess whether the killing was truly
accidental. If it was not murder, aggravated
manslaughter, or manslaughter, then Hearns could be
fairly said to have accidentally killed and will be
acquitted. But the jury must be afforded the
opportunity to make the decision with explicit
guidance. The issue is not whether the killing was
accidental -- but whether the State has proven, beyond
a reasonable doubt, any of the offenses included in the
Code.
[Id. at 510 (emphasis added).]
We disagree.
In formulating that reasoning, the Appellate Division was focused on
allowing the jury to evaluate whether defendants were guilty of manslaughter
by way of the accidental discharge of a weapon. However, as explained in
Section IV, supra, the inclusion of the lesser-included offenses of
manslaughter and aggravated manslaughter were expressly rejected by defense
counsel. Because those charges were not requested, the question was not
“whether the State has proven, beyond a reasonable doubt, any of the offenses
included in the Code,” but whether a factual basis for the inclusion of charges
27
for manslaughter or aggravated manslaughter “jump[ed] off the page.” As
previously explained, they do not.
The circuitous instructions proposed by the Appellate Division to
contextualize the lesser-included offenses underscore that point. In order to
justify the manslaughter charges, the trial court would have had to introduce
the concept of self-defense -- which the Appellate Division concedes does not
apply to Hearns -- for the purpose of introducing an exception to that defense.
This, again, was all in order to support the possibility of a jury finding of guilt
of a lesser-included offense that neither the State nor defendants requested.6
Rather than jury instructions being a roadmap of clarity for the jury to
follow, the course proposed would present the unwelcome prospect of
misleading or confusing the jury. Those are the very results that are meant to
6
The dissent agrees with us that the lesser-included offenses were not
appropriate on the facts of this case. The Appellate Division pressed for a
hybrid self-defense charge under these circumstances because such a charge, in
its view, would set the stage for the lesser-included offenses that we, and the
dissent, agree do not apply. Curiously, the dissent nevertheless finds error in
the failure to give a self-defense charge. Even the parties and the Appellate
Division agreed a traditional self-defense charge did not fit these facts.
For completeness, with respect to the further argument of our dissenting
colleague, we note the dissent cites out-of-state cases -- consistent with the
policy of MPC 3.09, on which our N.J.S.A. 2C:3-9(c) is modeled -- the
holdings of which we do not disagree with. However, those cases are
inapposite here. Hearns did use some force against Jones but that force is not
what killed Johnson. Hearns did not use force against Johnson.
28
be curbed through jury instructions. Despite the appellate court’s well-
intentioned desire to be thorough, we conclude that the additional instructions
it would require are not warranted under the circumstances of this case.
In reaching that conclusion, we reiterate how the instructions given by
the trial court appropriately conveyed to the jury defendants’ theory about the
accidental nature of the shooting and how that fit within the State’s proof
requirements. The jurors were explicitly told that, to find defendants guilty of
murder, Hearns’s actions must have caused Johnson’s death in a way that was
not “too remote, too accidental in its occurrence or too dependent on another’s
volitional act.” (emphasis added). They were also instructed that “causing
death or serious bodily injury resulting in death must be within the design or
contemplation of the defendant.” And, they were told that each of these
elements must have been proved beyond a reasonable doubt by the State.
Considering the jury charges as a whole, we have no trouble concluding that,
had the jury believed Hearns’s version of events, there were ample instructions
to lead them to a verdict of not guilty.
In conclusion, we adhere to the literal language of the self-defense
justification authorized by the Legislature in the Criminal Code in determining
that a self-defense instruction was not warranted in this matter. And we hold
that the trial court did not err in failing to provide instructions on the lesser -
29
included offenses of manslaughter and aggravated manslaughter, which were
not requested and do not jump off the page from the record in this matter.
VI.
We therefore reverse the Appellate Division’s judgment, reinstate
defendants’ convictions, and remand this matter for consideration of the
arguments not reached in the prior disposition.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-
VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion.
JUSTICE ALBIN filed an opinion dissenting in part and concurring in part.
30
State of New Jersey,
Plaintiff-Appellant,
v.
Joey J. Fowler, a/k/a
Joey Williams, Shaquan
Williams, Shaquan Harris,
and Joey Flower, and
Jamil L. Hearns, a/k/a
Khalil Hearns, Jay L. Love,
Jayson Love, James Holmes,
and Jameel Hearns,
Defendants-Respondents.
JUSTICE ALBIN, dissenting in part and concurring in part.
Defendant Jamil Hearns testified that he acted in self-defense when
Algere Jones pointed a handgun at him and demanded money allegedly owed
to him. In defending himself, Hearns wrestled Jones for the gun, which
discharged killing Hearns’s cousin, Donnell Johnson, who was standing
nearby. Based on Hearns’s testimony, the trial court was bound to honor
Hearns’s request for a self-defense charge on the murder count, despite the
accidental death of a bystander. I agree with the Appellate Division that the
trial court’s failure to give that basic charge denied Hearns and his co-
defendant Joey Fowler a fair trial. See State v. Fowler, 453 N.J. Super. 499,
1
511 (2018). I dissent because the majority, in overturning the Appellate
Division, has taken a constricted view of self-defense that is at odds with the
New Jersey Code of Criminal Justice, our jurisprudence, and case law in other
jurisdictions.
I concur with the majority that the trial court was not required to charge
the jury on the lesser-included offenses of aggravated manslaughter and
reckless manslaughter. Neither Hearns nor Fowler requested the lesser-
included charge, and nothing in the record clearly indicates that Hearns -- if he
acted in self-defense -- did so recklessly.
I.
A.
N.J.S.A. 2C:3-4(a) generally provides that “the use of force upon or
toward another person is justifiable when the actor reasonably believes that
such force is immediately necessary for the purpose of protecting himself
against the use of unlawful force by such other person on the present
occasion.” See also N.J.S.A. 2C:3-4(b)(2) (providing that the use of deadly
force is justifiable when “the actor reasonably believes that such force is
necessary to protect himself against death or serious bodily harm”). A self-
defense charge “must be given” so long as the charge “is requested and
supported by some evidence in the record.” State v. Rodriguez, 195 N.J. 165,
2
174 (2008). In determining whether there is “some evidence” to support the
charge, ibid., the evidence must be “viewed in the light most favorable to the
defendant,” id. at 170 (quoting State v. Galloway, 133 N.J. 631, 648 (1993)).
When self-defense is in the case, the State is required to disprove beyond a
reasonable doubt that the defendant did not act in self-defense. State v. Kelly,
97 N.J. 178, 200 (1984). In other words, an “acquittal is required if there
remains a reasonable doubt whether the defendant acted in self-defense.” Ibid.N.J.S.A. 2C:3-9(c) recognizes that a person justifiably defending himself
-- using force “toward the person of another” -- may injure or even kill an
innocent bystander. N.J.S.A. 2C:3-9(c) is our state’s analogue to section 3.09
of the Model Penal Code. Compare N.J.S.A. 2C:3-9(c), with Model Penal
Code and Commentaries § 3.09 at 146-47 (Am. Law. Inst. 1985). In the
comments to section 3.09, the drafters of the Model Penal Code explain that,
“if the only way to save one’s life is to use deadly force that creates some risk
of harm to others, that force might be justified.” Model Penal Code and
Commentaries § 3.09 cmt. 3 at 155. In construing Section 3.09 of the Model
Penal Code, the Supreme Court of Pennsylvania has held that punishing a
crime victim who inadvertently injures a bystander while justifiably exercising
his right of self-preservation furthers no policy of the criminal law.
Commonwealth v. Fowlin, 710 A.2d 1130, 1132, 1134 (Pa. 1998).
3
The person justifiably acting in self-defense is therefore only criminally
liable if, in defending himself, he recklessly causes injury or death to an
innocent third person. See N.J.S.A. 2C:3-9(c). Under New Jersey’s Criminal
Code, the justification of self-defense “is unavailable in a prosecution for such
recklessness or negligence towards innocent persons” when the person using
force toward another person “recklessly or negligently injures or creates a risk
of injury to innocent persons.” Ibid. (emphasis added). New Jersey’s Code
does not criminalize negligent homicide or negligent assault. Therefore, a
defendant is stripped of self-defense only if he recklessly causes harm to an
innocent person. See Rodriguez, 195 N.J. at 172.
When N.J.S.A. 2C:3-4(a), N.J.S.A. 2C:3-4(b)(2), and N.J.S.A. 2C:3-9(c)
are read together, they make clear that the justification of self-defense is
available when a person justifiably acts in self-defense toward an aggressor but
accidentally injures or even kills an innocent person.
For example, a person who defends herself from an axe-wielding
assailant is not stripped of the justification of self-defense if, acting
reasonably, she shoots at him but misses and accidentally kills an innocent
bystander. The same would be true if in attempting to disarm a robber
brandishing a gun -- acting in self-defense -- she accidentally kills a bystander.
4
In those circumstances, if the prosecution does not disprove her self-defense
claim, she is entitled to an acquittal.
That common-sense conclusion flows from our Code of Criminal Justice
and is recognized by other jurisdictions. See, e.g., People v. Mathews, 91 Cal.
App. 3d 1018, 1024 (Dist. Ct. App. 1979) (“[T]he doctrine of self-defense is
available to insulate one from criminal responsibility where his act, justifiably
in self-defense, inadvertently results in the injury of an innocent bystander.”);
Nelson v. State, 853 So. 2d 563, 565 (Fla. Dist. Ct. App. 2003) (“[I]f the
killing of the party intended to be killed would, under all the circumstances,
have been excusable or justifiable homicide upon the theory of self-defense,
then the unintended killing of a bystander, by a random shot fired in the proper
and prudent exercise of such self-defense, is also excusable or justifiable.”
(quoting Brown v. State, 94 So. 874, 874 (Fla. 1922))); People v. Jackson, 212
N.W.2d 918, 919 (Mich. 1973) (“The unintended killing of an innocent
bystander is not murder if justifiably committed in proper self-defense.”);
People v. Morris, 491 N.Y.S.2d 860, 863 (App. Div. 1985) (“If a reasonable
view of the evidence indicated that defendant may have been justified in
shooting Gibson, then defendant was no less justified in shooting Avery
accidentally.”).
5
In short, a person who unintentionally injures an innocent bystander
while using justifiable force in self-defense has committed no crime.
B.
Hearns testified that Jones, in attempting to collect on a purported debt,
threatened him with a handgun outside a nightclub. With the gun pointed at
his stomach and fearing for his life, Hearns grabbed the lower part of Jones’s
arm and repeatedly banged it against his own knee, “trying to knock the gun
out of [Jones’s] hand.” During the struggle, as Hearns used force against
Jones, the gun discharged five or six times. Johnson -- Jones’s cousin -- was
standing nearby and accidentally killed by one or more of the stray bullets.
Hearns’s account clearly amounted to “some evidence in the record” of self-
defense. See Rodriguez, 195 N.J. at 174. Accordingly, at the request of
Hearns, the trial court was required to give a self-defense charge and instruct
the jury that the prosecution had the burden of disproving self-defense beyond
a reasonable doubt. See Kelly, 97 N.J. at 200. If the jury believed that
Hearns’s testimony raised a reasonable doubt, both defendants had a complete
self-defense justification. See Rodriguez, 195 N.J. at 174-75.
The trial court’s failure to give the requested self-defense charge
deprived both Hearns and his alleged accomplice Fowler of a fair trial. See
Rodriguez, 195 N.J. at 175 (emphasizing that “[c]lear and correct jury
6
instructions are essential for a fair trial” (quoting State v. Martini, 187 N.J.
469, 477 (2006))); see also State v. Grunow, 102 N.J. 133, 148 (1986)
(“Erroneous instructions on matters or issues material to the jurors’
deliberations are presumed to be reversible error.”).
I therefore would remand for a new trial. See Rodriguez, 195 N.J. at
176.
II.
Nothing in Hearns’s testimony -- or any other part of the record --
suggests that he acted recklessly in causing Johnson’s death. Because neither
Hearns nor Fowler requested that the trial court charge the lesser-included
offenses of aggravated manslaughter or reckless manslaughter, the court was
not obliged to give those charges unless the record “clearly indicated”
evidence of Hearns’s recklessness. See State v. Denofa, 187 N.J. 24, 42
(2006). Evidence of Hearns’s recklessness was not “jumping off the page” --
the requisite precondition for the court to give sua sponte the non-requested
lesser-included charges. See ibid.The trial court thus did not err in failing to charge the jury on the lesser -
included offenses of aggravated manslaughter and reckless manslaughter.
7
III.
For the reasons expressed, unlike the majority, I would affirm the
Appellate Division’s judgment that Hearns and Fowler were deprived of a fair
trial by the trial court’s failure to charge the jury on self-defense. I concur
with the majority that the trial court did not err in not charging the jury on the
lesser-included offenses of aggravated manslaughter and reckless
manslaughter, and therefore would reverse the Appellate Division on that
issue. Accordingly, I respectfully dissent in part and concur in part.
8