State v. Robinson

• Citation: 139 N.J.Super. 475,354 A.2d 374
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Gary ROBINSON and Derek Van Austin, Defendants-Appellants.
• Decision Date: 27 February 1976
• Court: New Jersey Superior Court – Appellate Division

Page 475

139 N.J.Super. 475

354 A.2d 374

STATE of New Jersey, Plaintiff-Respondent, v. Gary ROBINSON and Derek Van Austin, Defendants-Appellants.

Superior Court of New Jersey,

Appellate Division.

Submitted Sept. 30, 1975.

Decided Feb. 27, 1976.

Stanley C. Van Ness, Public Defender, for defendants-appellants (Daniel W. O'Mullan, designated attorney, Whippany, of counsel and on the brief for appellant Gary Robinson, and Philip S. Elberg, designated attorney, Orange, of counsel and on the brief for appellant Derek Van Austin).

Joseph P. Lordi, Essex County Prosecutor, for plaintiff-respondent (David L. Rhoads, Asst. Prosecutor, of counsel and on the brief).

Before Judges KOLOVSKY, BISCHOFF and BOTTER.

The opinion of the court was delivered by

BOTTER, J.A.D.

Defendants were convicted of second degree murder. The victim, Nathan 'Dukie' Mitchell, was shot on a street in East Orange on February 16, 1972. With leave of the court, separate appeal briefs were filed for each defendant, and each asserts various errors in the trial judge's instructions to the jury.

The State offered evidence tending to support a case of felony murder. Alma 'Dolly' Darci testified that she had given Dukie narcotics on credit; that shortly thereafter defendants approached Dukie, pushed him against a car and began going through his pockets. Dukie resisted and he was shot. She said that Gary Robinson had the gun, although there was testimony that Derek Van Austin had the gun earlier that evening.

Jimmy Johnson testified that he was with Alma Darci when he heard the shot. They were the State's principal witnesses. Johnson testified that they were walking side by side, talking, and upon hearing the shot he turned around and saw Dukie fall. Then defendants ran past them. There was evidence that Johnson and Darci were close associates who dealt in narcotics and knew defendants before this incident.

Both defendants testified. Gary Robinson said that he spent the day with Derek Van Austin; that Derek had a gun which he tried to use as security for a loan from Jimmy Johnson so that they could both buy heroin, but Johnson declined the offer. Robinson said that he took the gun from Derek intending to use it in negotiating for heroin. He also testified that earlier in the week he had 'burnt' Dukie by taking $35 from him for heroin without delivering the goods. He said he did not see Dukie again until the night in question. He testified that Dukie approached him in anger, an argument ensued and he stepped back, displaying part of the gun to Dukie to scare him off. Instead, Dukie reached for the gun, the gun went off and Dukie fell. He and Derek ran to Derek's house. At that time Derek had the gun and Robinson arranged to have someone dispose of it.

Derek Van Austin testified that he was with Gary Robinson when Dukie approached in an angry manner. Robinson produced a pistol and Dukie grabbed for it. A struggle ensued, the gun went off and he ran from the scene. He said he did not join in the struggle and he denied having the gun that night. He admitted using heroin in small quantities. Both defendants denied that it was Dukie who was supposed to deliver heroin to them. The State theorized that it was defendants who expected to receive heroin from Dukie and that they went after him to seize the heroin that he had obtained from Alma Darci.

The trial judge charged the jury on various principles of law, including murder, manslaughter, malice, aiding and abetting, misadventure, self-defense and the duty to retreat. Shortly after the jury began deliberating they asked to be reinstructed on the definition of first degree murder, second degree murder and manslaughter. Supplemental instructions were given and the jury resumed deliberations.

The next day the jury asked for additional instructions, namely, (1) the definition of aiding and abetting, (2) whether aiding and abetting can be applicable in second degree murder or manslaughter, and (3) the legal definition of malice. In response the court gave the following supplemental instructions:

* * * the law of this State with respect to aiders and abettors, is as follows:

If two or more persons act in concert in committing a criminal offense such as the one charged here, all who participate in the commission of the offense are equally guilty of this offense regardless of the part each took in the commission of the crime. Consequently, if a killing is brought about by the action of one of those involved, all who are acting in concert are guilty.

So that's the law with respect to aiding and abetting.

Now, with respect to the--you asked for the definition of malice as I gave it to you. I stated that malice in its legal sense means nothing more than an illegal state of mind. The law presumes that all unlawful homicides, that is, all unlawful killings are committed with malice unless the lack of malice appears from the evidence. That's the definition of malice.

Now, you asked the third question which is can aiding and abetting be applicable to second degree murder or manslaughter? Aiding and abetting can be applicable to any unlawful act.

Now, I think that answers the three questions, at least, I hope so.

Exception was taken to the supplemental charge on aiding and abetting, specifically to the absence of an instruction that intent to aid and abet must be present. Exceptions were also taken by both defendants to the charge on malice, complaining that it was not complete.

Both defendants contend before us that the supplemental charge on malice was erroneous. Robinson also contends that the earlier instructions placed undue emphasis on the presumption that all unlawful homicides or killings are murder in the second degree unless 'rebutted upward by the State by showing * * * that the killing was first degree murder' or 'rebutted downward if the evidence shows' that the offense was 'no more than manslaughter.' As a result, Robinson contends, the instructions implied that defendants had the burden of proving that the killing, if unlawful, was manslaughter and not murder. Our disposition of the contention regarding the supplemental charge on malice makes it unnecessary to resolve Robinson's assertion that the burden of 'mitigating murder to manslaughter' was impliedly shifted to defendants. ¹ Reading the charge as a whole (State v. Freeman, 64 N.J. 66, 69, 312 A.2d 143 (1973); State v. Wilbely, 63 N.J. 420, 422, 308 A.2d 669 (1973)), we conclude, nevertheless, that the supplemental instructions on malice were erroneous and require a reversal of defendants' convictions.

Murder (N.J.S.A. 2A:113--1 and N.J.S.A. 2A:113--2) is said to be distinguished from manslaughter (N.J.S.A. 2A:113--5) by malice, express of implied. State v. Gardner, 51 N.J. 444, 457--459, 242 A.2d 1 (1968); State v. Brown, 22 N.J. 405, 410--411, 126 A.2d 161 (1956). Manslaughter is an offense distinct from and not a degree of murder, and malice is 'the grand criterion which distinguishes murder from other killing.' Id. at 410, 126 A.2d at 163. At common law all homicides were presumed to be malicious unless the evidence proved otherwise, but murder could be 'justified by the command or permission of the law,' or it could be 'excused on the account of accident or self-preservation,' or it could be 'alleviated into manslaughter * * *.' Id. at 410--411, 126 A.2d at 163; State v. Gardner, supra.

In his charge proper and in the first supplemental instructions the trial judge stated that all 'unlawful homicides or killings are murder in the second degree,' but the presumption of second degree murder is rebuttable upward to first degree or downward to manslaughter, according to the evidence. Defendants contend that in defining malice as 'nothing more than an illegal state of mind,' and in charging that all unlawful homicides or killings 'are (presumed) committed with malice unless the lack of malice appears from the evidence,' the judge failed to define malice properly and relieved the State of its full burden of proving malice, thus erroneously establishing a presumption in favor of murder over manslaughter.

Earlier cases did say that an 'unlawful homicide' is presumed to be murder in the second degree, State v. DiPaolo, 34 N.J. 279, 294, 168 A.2d 401 (1961), Cert. den. 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961), and that proof of a 'killing' raises a presumption of malice which may be rebutted by the evidence. State v. Williams, 29 N.J. 27, 43--44, 148 A.2d 22 (1959); State v. Huff, 14 N.J. 240, 249, 102 A.2d 8 (1954). However, these statements are superseded by the ruling in State v. Gardner, supra, which makes it clear that the presumption of second degree murder ('any other kind of Murder is murder in the second degree.' N.J.S.A. 2A:113--2; emphasis added) applies only as between first degree murder and second degree murder; it comes into play for the benefit of a defendant only after the State has proved a Murder beyond a reasonable doubt. The presumption of second degree murder plays no role in distinguishing between murder and manslaughter. The prosecution bears the burden of proving malice to establish murder and must disprove facts that would reduce the offense to manslaughter (Id., 51 N.J. [354 A.2d 379] at 459, 242 A.2d 1), when the issue is presented by the evidence, just as the prosecution must disprove self-defense when that issue appears. State v. Abbott, 36 N.J. 63, 72--73, 174 A.2d 881 (1961); State v. Terry, 41 N.J. 1, 194 A.2d 457 (1963); see Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The court said in State v. Gardner:

Only when the essential elements of murder have been proved beyond a reasonable doubt does the presumption of murder in the second degree arise. This presumption is intended to favor the defendant and to underscore the burden of the State to prove three additional elements, I.e., premeditation, deliberation and willfulness as defined in State v. DiPaolo, 34 N.J. 279,...