State v. Diaz

• Decision Date: 03 July 1996
• Citation: 144 N.J. 628,677 A.2d 1120
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Demetrius M. DIAZ, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 628

144 N.J. 628

677 A.2d 1120

STATE of New Jersey, Plaintiff-Appellant, v. Demetrius M. DIAZ, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Nov. 27, 1995.

Decided July 3, 1996.

Joseph Connor, Jr., Assistant County Prosecutor, for appellant (W. Michael Murphy, Jr., Morris County Prosecutor, attorney).

Susan M. Chagrin, Assistant Deputy Public Defender, for respondent (Susan L. Reisner, Public Defender, attorney).

Gerard C. Sims, Jr., Deputy Attorney General, for amicus curiae, Attorney General of New Jersey (Deborah T. Poritz, Attorney General, attorney).

The opinion of the Court was delivered by

COLEMAN, J.

The issue raised in this 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.

We hold that 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 an unlawful purpose independent of the greater offense, here a homicide, and when the jury has been properly instructed and those instructions do not restrict the jury's consideration of the unlawful purpose only to commission of the greater offense for which defendant was found guilty.

I

Defendant was twenty-two years old when he injured his hand in a brawl and had to wear a cast. A few days after that fight, he was walking through a crowded playground when Gregory Ricky Gordon bumped into defendant's injured hand. Defendant believed that Gordon deliberately bumped into his hand to show disrespect. According to defendant, Gordon then taunted him about being injured in the prior brawl.

After the encounter with Gordon, defendant left the playground for less than one half hour and returned with two friends, Orlando Diaz and Anticious "Shorty" McGhee. Defendant knew before reentering the playground that Shorty was carrying a handgun.

Defendant approached Gordon and warned that he had a gun. Gordon retorted that he also had a gun. Defendant threatened Gordon to stay away before defendant "put something in [Gordon] they [cannot] take out." In response, Gordon jeered at defendant. Defendant and Gordon exchanged angry words and began to fight. Shorty fired one shot into the air.

Very shortly after firing that shot, Shorty handed the gun to defendant. Defendant then approached Gordon and shot him five times. Two of the fatal shots were fired into the victim's back. As it turned out, Gordon was unarmed. Gordon died that night from the gunshot wounds.

After firing those shots, defendant fled the scene with Gordon's cousin, Jeremiah German, in hot pursuit. German testified that as he followed defendant, defendant turned towards German and repeatedly told him, "Don't come near me, he made me do it." German further stated that as defendant made those statements, he "crunched [the gun] in his pants."

Defendant was indicted for purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and (2), and possession of a firearm for an unlawful purpose contrary to N.J.S.A. 2C:39-4a.

A jury found defendant guilty of second-degree passion/provocation manslaughter, N.J.S.A. 2C:11-4b(2), 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 defendant possessed and used the gun solely for the purpose of committing the substantive offense. The State argued against merger, asserting that defendant constructively possessed the gun when threatening Gordon prior to the shooting. Further, the State contended, defendant used the gun for the purposes of shooting Gordon and then threatening German.

The trial court declined to merge the offenses, finding they were essentially dissimilar. The court reasoned that defendant was in joint constructive possession of the gun with Shorty in order to be prepared for an expected altercation. The court concluded that the unlawful purpose was separate and distinct from the manslaughter because defendant had gone "home to get the weapon, carr[ied] the weapon, and ma[de] threats with the weapon." Defendant was sentenced for manslaughter to a custodial term of ten years with five years of parole ineligibility, and to a consecutive term of seven and one half years with three and one quarter years of parole ineligibility on the possessory offense.

The Appellate Division in an unpublished opinion reversed and ordered merger. The court found, however, that the evidence was sufficient to support a conviction that defendant 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 defendant possessed the weapon for a broader unlawful purpose than shooting Gordon. We granted the State's petition for certification to review the propriety of the merger. 142 N.J. 450, 663 A.2d 1357 (1995).

II

The State argues that merger was not warranted because the Appellate Division found that there was "considerable evidence regarding defendant's continued possession of the weapon after the shooting and [defendant's] reliance on the gun to ensure his flight from the scene and from those attempting to apprehend him." The State further contends that defendant's "purpose to use the gun to ensure his flight is separate from the purpose to shoot Mr. Gordon." The State reasons that because "the jury instructions did not limit the jury to the theory that defendant possessed the handgun to [only] shoot Mr. Gordon," a general verdict returned by the jury on the possessory offense should not merge based on a sufficiency of the evidence standard as viewed by the court. The Attorney General, as amicus curiae, asserts the same position and adds that requiring special jury verdicts on possessory offenses is both unnecessary and unwise.

Although defendant did not object to the jury instruction with respect to the possessory offense, he argues that merger was required because the jury was not asked to determine whether the possessory offense consisted solely of the unlawful purpose to use the gun against Gordon or for a different unlawful purpose.

A charge of possession of a "firearm with purpose to use it unlawfully against the person or property of another" under N.J.S.A. 2C:39-4a requires proof of four elements. Those elements are: (1) the object possessed was a "firearm" within the meaning of N.J.S.A. 2C:39-1(f); (2) the firearm was possessed by defendant as defined in N.J.S.A. 2C:2-1c; (3) the defendant's purpose in possessing the firearm was to use it against the person or property of another; and (4) the defendant intended to use the firearm in a manner that was unlawful. State v. Harmon, 104 N.J. 189, 212, 516 A.2d 1047 (1986).

The focus of the charge is on a defendant's purpose in possessing the firearm. State v. Mieles, 199 N.J.Super. 29, 41, 488 A.2d 235 (App.Div.), certif. denied, 101 N.J. 265, 501 A.2d 933 (1985). Mere possession of a firearm in and of itself does not establish a purpose to use it unlawfully. The purpose of the possession must be illegal and existent "at whatever time the State claims that the [possession for an unlawful purpose] offense took place." State v. Petties, 139 N.J. 310, 321, 654 A.2d 979 (1995) (quoting State v. Harmon, supra, 104 N.J. at 210, 516 A.2d 1047).

The State is not required to prove a defendant's original purpose in possessing a firearm. Although in many cases the unlawful purpose or subjective intent of a defendant required to be established by the State may be inferred from the totality of the circumstances, including the use of the weapon, a conviction based on the use of the weapon is not a required precondition to a conviction for the possessory offense. State v. Petties, supra, 139 N.J. at 316, 654 A.2d 979; State v. Latimore, 197 N.J.Super. 197, 211, 484 A.2d 702 (App.Div.1984), certif. denied, 101 N.J. 328, 501 A.2d 978 (1985).

The fact patterns frequently relied on by the State to establish the unlawful purpose fall into one of two categories or a combination thereof. In the majority of cases, the charge of possession of a firearm for an unlawful purpose "is coupled with a charge of an act accomplished with the gun--a robbery, an assault, a homicide--which the court tells the jury is unlawful." State v. Jenkins, 234 N.J.Super. 311, 315, 560 A.2d 1240 (App.Div.1989). Under those circumstances, the use of the firearm to commit the substantive offense such as robbery, assault or homicide, provides the factual underpinning for drawing an inference that the firearm was possessed for an unlawful purpose. State v. Daniels, 231 N.J.Super. 555, 559-60, 555 A.2d 1180 (App.Div.1989). When the only unlawful purpose in possessing the gun is to use it to commit the substantive offense, merger is required.

A second fact pattern relied on sometimes by the State to establish the unlawful purpose may be independent of the commission of the substantive offense. If a defendant assaults or murders a convenience store clerk with an object found in the store, and then uses a gun on his or her person to threaten eyewitnesses not to identify him or her, the unlawful purpose in possessing the firearm is unrelated to the commission of the assault or murder. Merger is, therefore, not required.

Merger is also not required under the following set of facts. A defendant uses a gun to commit a substantive offense such as robbery and then also uses the gun to frighten and prevent...