State v. Brent
Decision Date | 27 July 1994 |
Citation | 644 A.2d 583,137 N.J. 107 |
Parties | STATE of New Jersey, Plaintiff-Appellant, v. Charles BRENT, Defendant-Respondent. |
Court | New Jersey Supreme Court |
Linda A. Rinaldi, Deputy Atty. Gen., for appellant (Deborah T. Poritz, Atty. Gen. of New Jersey, atty.).
Michael B. Jones, Asst. Deputy Public Defender, for respondent (Susan L. Reisner, Acting Public Defender, attorney; Mr. Jones and Toni M. Seguin, Designated Counsel, of counsel and on the briefs).
The opinion of the Court was delivered by
In this appeal we consider whether the trial court erred in failing to instruct the jury at defendant's request on the offense of criminal restraint as a lesser-included offense of kidnapping. The jury convicted defendant of first-degree kidnapping and first-degree aggravated sexual assault. The Appellate Division reversed the kidnapping conviction, holding that the trial court had improperly declined to give the criminal-restraint charge, because in the Appellate Division's view the evidence provided a basis for the charge and defendant had requested it. 265 N.J.Super. 577, 590, 628 A.2d 372 (1993).
A Union County grand jury indicted defendant on charges of first-degree kidnapping, contrary to N.J.S.A. 2C:13-1b, and first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a, in connection with the abduction and rape of a thirteen-year-old girl. The victim, M.C., testified at trial that defendant had seized her as she was walking to school and had carried her across the street to the front of an undeveloped lot. Defendant threw M.C. to the ground and struck her several times in the face. He then dragged her behind the foliage of the densely wooded lot to a spot from which she could not see the street, and there he raped her. A witness, Judy Barlow, testified that she had observed defendant from her apartment window carry M.C. across the street, throw her to the ground, and strike her in the face. Barlow left the window to call the police. When she returned, she could no longer see defendant and M.C. but could hear screams and muffled noises emanating from the shrubbery of the lot.
Officer Gilliam, who was patrolling in the area, responded to Barlow's call within minutes. Gilliam testified that when he arrived at the wooded lot, he did not see defendant and the victim from the street. Gilliam covertly entered the shrubbery and observed defendant on top of M.C. Unsure whether defendant was armed, Gilliam retreated to call for assistance and then reentered the wooded area. At that point defendant appeared to hear the officer because he quickly stood up and ran out of the lot. Gilliam, on foot, pursued defendant, who at one point "ran right out of his black shorts," but then Gilliam lost sight of defendant when he entered an apartment building. Another police officer apprehended defendant on a street behind the apartment building, and testified at trial that when apprehended defendant had pieces of leaves and shrubbery in his hair and on his clothes and wore only undershorts below the waist. Gilliam identified defendant at the scene and at trial as the same man he had observed on top of the victim in the wooded lot and as the same man he had closely pursued.
While the police officers were chasing defendant, M.C. left the wooded area and encountered a private ambulance that had responded to the scene. M.C. told an ambulance worker that a man had followed her, had picked her up off the street, and had dragged her into the wooded area, where he had raped her. The ambulance, at the direction of a police detective, took M.C. to the street where the police officers had detained defendant. She identified defendant as the man who had seized and assaulted her.
The kidnapping statute requires that a removal be accomplished by force, threat, or deception, or, in the case of a child under fourteen years old, without the consent of a parent, N.J.S.A. 2C:13-1d. The parties stipulated at trial that the parents of M.C. did not consent to her being removed from the street. Defendant's defense at trial was misidentification. He testified that he had been walking to his brother's house, the address of which he did not know, when a police officer had come up behind him and had struck him over the head with a night stick. Defendant, fearing for his safety, had begun running, with the officer in pursuit. Defendant testified that at one point he had hidden in some bushes to avoid being captured. Defendant denied having carried, struck, or raped M.C., and disclaimed any knowledge of the wooded lot where the sexual assault occurred.
Prior to jury deliberations, defense counsel requested that the court charge the jury on third-degree criminal restraint, N.J.S.A. 2C:13-2, as a lesser-included offense of the first-degree-kidnapping charge on which defendant had been indicted. The trial court declined to give the requested charge, stating that it did not find criminal restraint to be a lesser- offense of the "kidnapping by asportation" charged in this case, although the court acknowledged that criminal restraint might be a lesser-included offense of kidnapping by confinement. The court further stated, "I don't think there's any facts which would give the jury the basis to bring that particular statute into play." The court charged the jury on first- and second-degree kidnapping and on first-degree aggravated sexual assault and second-degree sexual assault.
The jury convicted defendant of first-degree kidnapping and first-degree aggravated sexual assault. The trial court, in accordance with N.J.S.A. 2C:13-1c(2), sentenced defendant on the kidnapping conviction to life imprisonment with a twenty-five-year parole-ineligibility period. The court merged the aggravated-sexual-assault conviction into the kidnapping conviction as required by N.J.S.A. 2C:13-1c(2). The Appellate Division reversed defendant's kidnapping conviction on the basis that the trial court had erred in failing to charge the jury at defendant's request on criminal restraint. 265 N.J.Super. at 590, 628 A.2d 372. The Appellate Division determined that regardless of whether criminal restraint "is an elemental lesser included offense of the kidnapping for which defendant was indicted," id. at 587, 628 A.2d 372, the trial court should have instructed the jury on criminal restraint because the defendant had requested the lesser charge and the evidence provided a basis for the charge. Id. at 590, 628 A.2d 372. We granted the State's petition for certification and denied defendant's cross-petition. 134 N.J. 563, 636 A.2d 520 (1993).
N.J.S.A. 2C:1-8e provides that a court "shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." The statute has been characterized and construed as requiring not only a rational basis in the evidence for a jury to convict the defendant of the included offense but requiring also a rational basis in the evidence for a jury to acquit the defendant of the charged offense before the court may instruct the jury on an uncharged offense. See 2 Final Report of the New Jersey Criminal Law Revision Commission, § 2C:1-7 ( ) commentary at 26 (1971) (); State v. Sloane, 111 N.J. 293, 299, 544 A.2d 826 (1988) ().
In drafting N.J.S.A. 2C:1-8e, the Criminal Law Revision Commission relied substantially on section 1.07 of the Model Penal Code. See 1 Final Report of the New Jersey Criminal Law Revision Commission, supra, § 2C:1-7 source at 8. As originally drafted that Model Penal Code section provided that a court "shall not charge the jury" on a lesser offense unless a rational basis exists in the evidence. Prior to adoption of the official draft, the American Law Institute amended the provision to read that a court "shall not be obligated to charge the jury." Model Penal Code and Commentaries § 1.07 cmt. at 134 (Official Draft and Revised Comments 1985). The drafters added those words Ibid. Our Code does not contain the change, and instead retains the "shall not" language. N.J.S.A. 2C:1-8e. The refusal to adopt the Model Penal Code amendment reflects State v. Crisantos, 102 N.J. 265, 276, 508 A.2d 167 (1986). See also Model Penal Code and Commentaries, supra, § 1.07 cmt. at 135 ().
Thus, our Code follows the earlier form of Model Penal Code section 1.07(5) (formerly numbered 1.08(5)). The commentary to the original Model Penal Code draft discusses the rationale and application of that section:
Where the proof goes to the higher inclusive offense and would not justify any other verdict...
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