State v. Hutson
| Decision Date | 11 June 1987 |
| Citation | 107 N.J. 222,526 A.2d 687 |
| Parties | STATE of New Jersey, Plaintiff-Appellant, v. Donald HUTSON, Defendant-Respondent. |
| Court | New Jersey Supreme Court |
Greta-Ann Gooden, Deputy Atty. Gen., for plaintiff-appellant (W. Cary Edwards, Atty. Gen. of New Jersey, attorney).
John R. Grele, Asst. Deputy Public Defender, for defendant-respondent (Alfred A. Slocum, Public Defender, attorney).
Defendant was convicted, after a jury trial, of first degree robbery in violation of N.J.S.A. 2C:15-1, and of possession of a controlled dangerous substance, diazepan, contrary to N.J.S.A. 24:21-20. The Appellate Division upheld the drug-possession conviction but vacated the conviction for first degree robbery. The court below remanded for correction of the judgment to show a conviction for second degree robbery, and it ordered that defendant be resentenced on that conviction. State v. Hutson, 211 N.J.Super. 49, 53, 510 A.2d 706 (1986). We granted the State's petition for certification, 107 N.J. 222, 526 A.2d 687 (1986), to review the vacating of the first degree robbery conviction. Although we do not agree with all of the reasoning of the court below, we nevertheless affirm the judgment.
At about 1:00 a.m. on April 18, 1984, at Penn Station in Newark defendant, Donald Hutson, and his friend Gordon Sheppard hailed a taxicab driven by one Hull Pierre-Louis. They asked to be taken to an address on Bergen Street, Newark. The driver testified that as they approached the destination, one of the passengers--Pierre-Louis could not distinguish between them--said that "they want[ed] some money." When the driver responded that he had no money, one of the passengers knocked on the partition between the front and rear seats and repeated their demand. Believing his passengers to be "playing around," Pierre-Louis paid little heed to their request until one of them said he had a gun, which the other passenger described as "a Magnum." The driver then testified that
[a]t this time I look in the back, they had a little newspaper and I started driving fast with no stop.
We pause to observe that, as will be seen, the reference to a newspaper assumes some importance. The foregoing excerpt from the transcript contains the only mention of a newspaper in Pierre-Louis's direct examination. Likewise on the driver's cross-examination there was but a single isolated allusion to a newspaper:
Q. You can't tell this jury which one of the men was holding a newspaper, can you?
A. No.
Q. And you don't know which of the men asked you for the money?
A. Both of them asked me for money.
The passengers' announcement about a gun shed a different light on things for the victim, for as he testified:
Q. When he said they had a gun, a Magnum, what did that mean to you?
A. That's when they mean business. If I stop, they going to shoot, but if I keep driving fast in the cab, they're not going to shoot.
Q. What did you do then?
A. I keep driving fast, blew my horn, drive fast with no stop. Even red lights there, I no stop.
Q. You put your high beams on, is that correct?
A. The high beam, yes.
Q. And what else did you do, blow your horn?
A. Yes.
The driver's intention was two-fold: to attract attention, and to discourage his passengers from firing at him, the theory being that fear of the consequences of a driverless cab careening down a main artery might make them think twice about disabling the operator. At one point Pierre-Louis stopped to avoid a truck, whereupon Sheppard jumped out but Hutson remained in the cab.
The driver made his way at high speed to the employee entrance of the Post Office at Mulberry and Franklin Streets, where he anticipated--correctly--that postal security officers would be on duty. One of them summoned the police, and in due course defendant was arrested. A search failed to turn up any weapon, and Pierre-Louis acknowledged that at no point had he seen a weapon. The arresting officer's testimony summarized the victim's report of the events as follows:
Q. Your report that was taken, what did Mr. Pierre-Louis indicate took place?
A. He stated that he had picked up two fares from Penn Station on the West Side and they requested to go to South 12th Street.
Q. And what else did he indicate with reference to South 12th Street?
A. He said on his way to South 12th Street in the area of West Market and Norfolk Street, one of the males stated that he had a gun and he wanted all the money. He told the guy he wasn't giving him the money and the man told him if you don't give me the money, I'm going to shoot. At which time Mr. Hull stated, shoot if you want to and started to drive at a higher rate of speed.
Significantly, the officer's account contains no reference to any newspaper.
At the conclusion of the State's case defendant moved to dismiss so much of the indictment as charged first degree robbery. In denying the motion the trial court emphasized that the victim
indicated he saw a person with a newspaper. He clearly indicated to the Court, I believe, that he thought a weapon was involved. What the Court has to determine, and it doesn't have to be a weapon, it can be a material or substance which is fashioned in a manner that the victim would believe there was a weapon capable of producing death or serious bodily injury. I think he testified to that fact.
The Appellate Division concluded that the evidence was insufficient to permit the first-degree robbery charge to go to the jury. The court held that there must be some tangible object giving rise to a belief by the victim that the defendant is armed with a deadly weapon, and in this case "no such object was displayed; no such object existed." 211 N.J.Super. at 53, 510 A.2d 706. The court determined that
[t]he driver's belief that a gun was under the newspaper neither converted the paper into a weapon nor eliminated the need for the existence of some object. Construing the criminal statute narrowly, as we must, we find error in the trial judge's conclusion that a victim's subjective belief is enough to satisfy a showing of a deadly weapon. [Ibid.]
The foregoing language at the heart of the Appellate Division opinion is the source of the controversy before us.
Robbery is a crime of the first degree if "in the course of committing [a] theft the actor * * * is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b. Although this language is susceptible of different interpretations, this Court has held that first degree robbery requires more than a threat; the actor must actually possess a deadly weapon during commission of the offense. State v. Butler, 89 N.J. 220, 228, 445 A.2d 399 (1982).
The question in Butler was whether a defendant could be convicted of first degree robbery "if he committed the offense by pretending to be carrying a handgun when, in fact, he was unarmed." Id. at 222, 445 A.2d 399. In holding that the actual possession of a deadly weapon is a necessary ingredient of the offense, the Court referred to an amendment to N.J.S.A. 2C:11-1c, L.1981, c. 384, effective after Butler's offense, that expanded the definition of "deadly weapon" to include the language italicized below:
"Deadly weapon" means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury. [Emphasis added.]
It is this amended definition, of course, that applies in this case; and the question thus becomes whether there was sufficient evidence in this case to permit the conclusion that defendant in fact possessed a deadly weapon as defined in the amended statute.
The portions of the statutory definition of a "deadly weapon" relevant to this appeal can be parsed into two elements. First, defendant must use a "firearm or other weapon, device, instrument, material or substance;" second, the manner in which that item is fashioned must lead the victim reasonably to believe it capable of producing death or serious bodily injury.
With regard to the first element, as the Appellate Division observed, there must be some tangible object possessed by the defendant that the victim believes to be a deadly weapon. 211 N.J.Super. at 52, 510 A.2d 706. A threat or reference to a deadly weapon alone is not enough. Conversely, it is not necessary that the device itself be capable of producing death or serious bodily harm: anything that simulates such a weapon will satisfy the definition. See Assembly Committee Statement to Senate Bill 1511 (1981), which became codified in N.J.S.A. 2C:11-1 ().
The statutory language regarding the nature of the object that would meet the definition is encompassing indeed: it includes any "device, instrument, material or substance." In State v. Cooper, 140 N.J.Super. 28, 32, 354 A.2d 713 (Law Div.1976), rev'd on other grounds, 165 N.J.Super. 57, 397 A.2d 702 (App.Div.), certif. denied, 81 N.J. 56, 404 A.2d 1155 (1979), the court considered an earlier law that proscribed armed robbery with
any object or device, whether toy or imitation, having an appearance similar to or...
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