State v. Stasio

• Decision Date: 18 January 1979
• Citation: 78 N.J. 467,396 A.2d 1129
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Thomas STASIO, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 467

78 N.J. 467

396 A.2d 1129

STATE of New Jersey, Plaintiff-Appellant, v. Thomas STASIO, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Sept. 11, 1978.

Decided Jan. 18, 1979.

Ileana N. Saros, Deputy Atty. Gen., for plaintiff-appellant (John J. Degnan, Atty. Gen attorney; Susan W. Sciacca, Deputy Atty. Gen., of counsel and on the briefs).

Arnold C. Lakind, Designated Counsel, Lawrenceville, for defendant-respondent (Stanley C. Van Ness, Public Defender, attorney).

The opinion of the court was delivered by

SCHREIBER, J.

The major issue on this appeal is whether voluntary intoxication constitutes a defense to a crime, one element of which is the defendant's intent. Defendant Stasio was found guilty by a jury of assault with intent to rob, in violation of N.J.S.A. 2A:90-2, and of assault while being armed with a dangerous knife, contrary to N.J.S.A. 2A:151-5. The trial court sentenced the defendant to three to five years on the assault with intent to rob count and a concurrent term of one to two years on the second count. The prison term was suspended and the defendant was placed on probation for three years. The Appellate Division reversed the convictions and ordered a new trial. We granted the State's petition for certification. 75 N.J. 613, 384 A.2d 843 (1978).

The scene of this incident was the Silver Moon Tavern located at 655 Van Houten Avenue, Clifton. The date was October 7, 1975. The defendant having presented no evidence, what occurred must be discerned from the testimony of three witnesses for the State: Peter Klimek, a part owner of the Silver Moon; Robert Colburn, a patron; and Robert Rowan, a member of the Clifton police force.

Robert Colburn had frequented the Silver Moon Tavern not only for its alcoholic wares but also to engage in pool. On October 7, Colburn arrived at the Tavern about 11:00 a. m. and started to play pool. Sometime before noon the defendant joined him. They stayed together until about 3:00 p. m. when the defendant left the bar. Though the defendant had been drinking during this period, in Colburn's opinion the defendant was not intoxicated upon his departure. Neither the defendant's speech nor his mannerisms indicated drunkenness.

Peter Klimek arrived at the Tavern shortly before 5:00 p. m. and assumed his shift at tending bar. There were about eight customers present when, at approximately 5:40 p. m., the defendant entered and walked in a normal manner to the bathroom. Shortly thereafter he returned to the front door, looked around outside and approached the bar. He demanded that Klimek give him some money. Upon refusal, he threatened Klimek. The defendant went behind the bar toward Klimek and insisted that Klimek give him $80 from the cash register. When Klimek persisted in his refusal, the defendant pulled out a knife. Klimek grabbed the defendant's right hand and Colburn, who had jumped on top of the bar, seized the defendant's hair and pushed his head toward the bar. The defendant then dropped the knife.

Almost immediately thereafter Police Officer Rowan arrived and placed the defendant in custody. He testified that defendant responded to his questions with no difficulty and walked normally. Klimek also stated that defendant did not appear drunk and that he had not noticed any odor of alcohol on defendant's breath.

At the conclusion of the State's case, the defendant elected not to take the stand. He made this decision because of an earlier conference in chambers ¹ at which defense counsel had advised the court that his defense would be that defendant had been so intoxicated that he was incapable of forming the intent to rob. The trial court responded by stating that it would charge that "voluntary intoxication was not a defense to any act by the defendant in this matter." The defendant on a Voir dire made it clear that his decision not to testify was predicated upon the trial court's position. It might be noted that the defendant had no record of prior convictions.

Holding that the trial court's declaration in view of the defendant's proffer of proof was erroneous, the Appellate Division reversed the convictions and ordered a new trial. The Appellate Division reasoned that specific intent is an essential element of the crime of an assault with intent to rob and that voluntary intoxication may be shown to negate that element of the offense.

This Court last considered the culpability of an individual who had committed an illegal act while voluntarily under the influence of a drug or alcohol in State v. Maik, 60 N.J. 203, 287 A.2d 715 (1972). There the defendant Maik had been charged with the first degree murder of his friend, a fellow college student. The defense was insanity at the time of the killing. Evidence at the trial had suggested that the defendant was schizophrenic and that a psychotic episode may have been triggered by the defendant's voluntary use of LSD or hashish. The trial court had charged the jury that if it found that the underlying psychosis had been activated by the voluntary use of either narcotic, the defense of insanity would not stand.

On appeal Chief Justice Weintraub, writing for a unanimous Court, began by discussing generally the concept of criminal responsibility. After pointing out that although there was a difference in the treatment of sick and bad offenders, he noted that notwithstanding that difference "the aim of the law is to protect the innocent from injury by the sick as well as the bad." 60 N.J. at 213, 287 A.2d at 720. It was in that context that a decision would have to be made whether the voluntary use of alcoholic beverages or drugs should support a viable defense. He then stated the generally accepted proposition that criminal responsibility was not extinguished when the offender was under the influence of a drug or liquor and the reasons for that rule:

It is generally agreed that a defendant will not be relieved of criminal responsibility because he was under the influence of intoxicants or drugs voluntarily taken. This principle rests upon public policy, demanding that he who seeks the influence of liquor or narcotics should not be insulated from criminal liability because that influence impaired his judgment or his control. The required element of badness can be found in the intentional use of the stimulant or depressant. Moreover, to say that one who offended while under such influence was sick would suggest that his sickness disappeared when he sobered up and hence he should be released. Such a concept would hardly protect others from the prospect of repeated injury. (60 N.J. at 214, 287 A.2d at 720)

The Chief Justice set forth four exceptions to the general rule. First, when drugs being taken for medication produce unexpected or bizarre results, no public interest is served by punishing the defendant since there is no likelihood of repetition. Second, if intoxication so impairs a defendant's mental faculties that he does not possess the wilfulness, deliberation and premeditation necessary to prove first degree murder, a homicide cannot be raised to first degree murder. State v. Sinclair, 49 N.J. 525, 544, 231 A.2d 565 (1967); State v. Trantino, 44 N.J. 358, 369, 209 A.2d 117 (1965), Cert. den. 382 U.S. 993, 86 S.Ct. 573, 15 L.Ed.2d 479 (1966). Under this exception the influence of liquor "no matter how pervasive that influence may be, will not lead to an acquittal. It cannot reduce the crime below murder in the second degree, and this because of the demands of public security." State v. Maik, supra, 60 N.J. at 215, 287 A.2d at 721. Third, a felony homicide will be reduced to second degree murder when intoxication precludes formation of the underlying felonious intent. Parenthetically, it may be noted that since voluntary intoxication does not eliminate responsibility for the felony, it could be contended that the defendant should remain liable for first degree felony murder. On the other hand, considerations of fairness indicate that such a defendant should be treated the same as one charged with ordinary first degree homicide requiring premeditation. Fourth, the defense of insanity is available when the voluntary use of the intoxicant or drug results in a fixed state of insanity after the influence of the intoxicant or drug has spent itself. Since the defense in Maik may have fallen into the fourth category, the charge as given was erroneous and the cause was remanded for a new trial on the issue of whether the defendant had been insane at the time of the killing and whether that condition continued thereafter.

A difference of opinion has been expressed in the Appellate Division as to the meaning of Chief Justice Weintraub's discussion of intoxication in Maik. In State v. Del Vecchio, 142 N.J.Super. 359, 361 A.2d 579 (App.Div.), certif. den. 71 N.J. 501, 366 A.2d 657 (1976), a conviction for breaking and entering with intent to steal was reversed on the ground that the jury had improperly been charged that voluntary intoxication was not a defense to a crime requiring a specific intent. The Appellate Division reasoned that, when a specific intent was an element of an offense, voluntary intoxication may negate existence of that intent. Since intoxication may have prevented existence of that specific intent, an acquittal might be in order. The Appellate Division also held that the only principle to be derived from Maik was the proposition that voluntary intoxication may be relevant in determining whether a murder may be raised to first degree. In contrast, Judge Allcorn's dissent in State v. Atkins, 151 N.J.Super. 555, 573, 377 A.2d 718 (App.Div.1977), rev'd 78 N.J. 454, 396 A.2d 1122 (1979), expresses the opinion that Maik stands for the proposition that voluntary intoxication is not a defense to any criminal offense irrespective of whether a specific or general intent is an element of the offense.

In our opinion the Chief Justice in Maik enunciated a principle applicable...