# State v. Gerald

> Supreme Court of New Jersey · October 25, 1988 · 113 N.J. 40

URL: https://www.frixlaw.com/law-library/cases/9746763

## Case

- **Full name:** State of New Jersey, Plaintiff-Respondent, v. Walter M. Gerald, Defendant-Appellant
- **Court:** Supreme Court of New Jersey
- **Decided:** October 25, 1988
- **Citations:** 113 N.J. 40; 549 A.2d 792; 83 A.L.R. 4th 331; 1988 N.J. LEXIS 107
- **Precedential status:** Published
- **Opinion:** Concurrence by O'Hern
- **Judges:** Clifford, O'Hern, Handler
- **Cited by:** 128 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9746763

## How later opinions describe it (automated extraction)

- finding that where the defendant killed in the course of greed-motivated burglary, his beating of victim after victim was unconscious was insufficient to show depravity in c(4)(c) sense
- stating “In New Jersey ... we have long adhered to the view that as a matter of state law, the waiver [of one’s right to remain silent] must be proven beyond a reasonable doubt.”
- finding that Article I, Paragraph 12 “affords greater protections to capital defendants than does the eighth amendment of the federal constitution”
- holding that a confession was voluntary although it was given after the defendant was informed that he failed a polygraph test
- finding the scope of mitigating evidence is not unlimited; evidence must be relevant to defendant’s character, record, or the circumstances of the offense

## Opinion text

O’HERN, J.,
concurring.
I agree entirely with the Court’s well-reasoned explanation that death would not be the appropriate punishment under New Jersey’s capital punishment act when the accused did not intend the death of the victim. I disagree that the Code contemplates such a result but would not, in any event, further complicate our capital murder law by creating a new form of murder not found in the Code. I offer these few suggestions for harmonizing the Code’s current definition of murder with the capital punishment act. Much of what I write will be found in the majority opinion but is included here for continuity.
I
I begin my analysis by recognizing that there is a difficulty in interpreting the Act occasioned by the Legislature’s selective inclusion of some, but not all, of the provisions of the Model Penal Code (MPC). We noted this legislative modification of the MPC definition of murder in State v. Grunow, 102 N.J. 133, 138-39 (1986):
*134 The drafters of the New Jersey Penal Code [originally] proposed four categories of murder: (1) criminal homicide committed purposely, 2C: 11 — 3(a)(1); (2) criminal homicide committed knowingly, 2C:ll-3(a)(2); (3) criminal homicide committed “recklessly under circumstances manifesting extreme indifference to the value of human life,” 2C:11 — 3(a)(3); and (4) felony murder, 2C:ll-3(a)(4).
[Citing II Commentary: Final Report of the New Jersey Criminal Law Revision Comm’n 50 (1971) [hereinafter Commentary].]
The Commission Report would have limited capital murder to only two categories: purposeful murder and felony murder. Commentary at 168. Murder in New Jersey had previously been divided into two degrees as part of an early reform to mitigate the death penalty, the first degree characterized by the “willful, deliberate and premeditated killing.” N.J.S.A. 2A:113-2, repealed by L. 1978, c. 95, 2C:98-2. All other murders were of the second degree and not subject to the death penalty. N.J.S.A. 2A:113-4 (repealed 1978). Criminal homicides that were not murder were manslaughter.
Our pre-Code statute did not define murder. Murder was a common-law crime. We seem to have adopted in New Jersey, as elsewhere, the common-law understanding that an unlawful homicide was murder if it resulted from an act of killing accompanied by “one of the following states of mind: (a) an intention to cause the death of or grievous bodily harm to any person or (b) knowledge that the act will probably cause either of these results, even though the actor hopes they may not occur or is indifferent about them, or (e) an intention to commit a felony or to resist a peace officer in the execution of his duty.” Wechsler & Michael, A Rationale of the Law of Homicide: I, 37 Colum.L.Rev. 700, 702-03 (1937) (footnote omitted) [hereinafter Wechsler & Michael]. See also State v. Gardner, 51 N.J. 444, 458 (1968) (citing Sir James Stephen Digest of the Criminal Law (1877) (defining “malice aforethought”)).
Although the first two of Stephen’s categories are phrased differently, they were difficult to distinguish at common law. Professor Wechsler noted that
[t]he second of Stephen’s categories of murder included, as we have said, homicides caused by an act which the actor knows will probably cause death or *135 grievous bodily harm, a case treated summarily and ambiguously by the earlier writers in so far as it was treated at all. It has commonly been thought to be the case of extremely gross recklessness resulting in death, to be distinguished from negligent homicides that are only manslaughter by the relatively greater danger of the act and the consequently great indifference to the safety of others manifested by it.
[Wechsler & Michael, supra, 37 Colum.L.Rev, at 709-10 (footnotes omitted).]
As originally introduced, however, through L. 1978, c. 95, 2C:ll-3, the New Jersey Code of Criminal Justice made no provision for any form of reckless murder, whether it be “extreme indifference” or through intention to cause “serious bodily injury” to another; it provided only for reckless manslaughter. Professor Knowlton, Chairman of the Commission, explained:
The statute departs significantly from the commission report in two respects. The first is the elimination of reckless murder. This is highly desirable since a homicide is murder if it is committed knowingly. The element of “recklessness” requires personal awareness of the risk and a conscious disregard of it, while the term “knowingly” requires the actor to be “practically certain that his conduct will cause such a result.” These two factors codify degrees of culpability for homicide: the more stringent one of “knowingly” is more suitable for murder because of its greater sanction; “recklessness” killings are properly made manslaughter.
[Knowlton, Comments Upon the New Jersey Penal Code, 32 Rutgers L.Rev. 1, 9 (1979) (footnotes omitted.)]
It appears to be the case that between the original enactment of the Code in September of 1978, and its effective date in September 1979, training sessions led observers to conclude that there was too great a gap in culpability between the crimes of murder and manslaughter. Accordingly, in the consensus amendments of 1979, section 2C:ll-4 was amended to divide manslaughter into two categories, aggravated manslaughter and reckless manslaughter, depending on the presence of circumstances manifesting extreme indifference to human life. L. 1979, c. 178 (codified at N.J.S.A. 2C:ll-4(a)). At the same time, the definition of murder was amended to add the present language that criminal homicide may constitute murder when the actor purposely or knowingly “causes death or serious bodily injury resulting in death." L. 1979, c. 178 (codified at N.J.S.A. 2C:ll-3(a) (emphasis added). What the Legislature *136 did was take two of Sir James Stephen’s categories of murder that were second-degree murder if not accompanied by willful, deliberate, premediated conduct, and put one of them, the serious bodily injury provision, under the definition of murder and the extreme indifference homicide under a higher degree of aggravated manslaughter, a first-degree offense.
As introduced, our Code made no provision for capital punishment. Hence, the only significance of the additions was, as the Senate Committee’s Statement stated:
By committee amendments, the concept of murder under 2C:ll-3 was expanded to include, in addition to those who “knowingly” or “purposely” cause [death], those individuals who “purposely” or “knowingly” cause serious bodily injury which results in death.
By committee amendments, a section 21A amending 2C:ll-4 (Manslaughter) was added to the bill. The purpose of the amendment is to create a new offense of “aggravated manslaughter” when the accused causes death under circumstances manifesting extreme indifference to human life.
[Senate Judiciary Committee, Statement to Senate No. 3203 (1979), reprinted in 7 CrimJustQ. 65, 67.]
At the same time, the bill added language to the definition of murder to “insure that the specific higher penalties provided in 2C:ll-3(b), rather than the presumptive sentences found in Chapter 44 of the Code, [were] applicable to the offense of murder.” Id. Ás enacted, that sentence was thirty years for murder with fifteen years without possibility of parole. One convicted of aggravated manslaughter was then guilty of a first-degree crime, subject to a ten- to twenty-year term of imprisonment with a possible ten year period of parole ineligibility. 1
When the Legislature restored capital punishment in 1982, it did so by a brief incorporation of the definitions of criminal homicides that were classified as murder and by the additional *137 requirement that the act be conducted by one’s own hand or that of a hired hand. N.J.S.A. 2C:ll-3(c).
At this point we must ask whether the Legislature would intend to preserve a form of unintended murder where the actor’s only intent is to inflict “serious bodily injury” upon the victim. I think not.
II
To begin with, N.J.S.A. 2C:ll-2(a) defines criminal homicide only in terms of death. It states that criminal homicide is committed if the actor “purposely, knowingly, recklessly or, under the circumstances set forth in section 2C:ll-5, [death by auto] causes the death of another human being.” The actor’s state of mind is related to the death. It is clear that this all-inclusive definition of criminal homicide does not embrace that which is arguably set forth in 2C:ll-3(a)(l) or (2) — that is, the definition of criminal homicide does not include the situation where the actor purposely or knowingly caused serious bodily injury that happened to result in death. Such a person did not purposely cause death (it was a happenstance); such a person did not knowingly cause death (it was a happenstance). We therefore must start out with a recognition that to interpret the Code that intentionally or knowingly causing serious bodily injury that happens to result in death is murder, albeit non-capital murder, is a conclusion that conflicts with the basic definition of criminal homicide found in 2C:ll-2.
We next consider the definition of “serious bodily injury.” Serious bodily injury is “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” N.J.S.A. 2C:ll-l(b). See State v, Sloane, 111 N.J. 293 (1988) (stab wound that pierces arm could cause serious bodily injury). If an actor has caused a “protracted loss or impairment of the function of any bodily member,” it is an instance of terrible criminal conduct but not one *138 that necessarily threatens death. We must ask the question whether the Legislature could possibly have intended that someone who breaks another person’s arm intentionally should be executed because death happens to result, and we answer “no.” That is our basic constitutional conclusion. 2
The further question is could the Legislature have intended that such an act be non-capital murder with thirty years in prison without parole. Recognizing that the Legislature can more seriously penalize that which we might think less culpable than that which we might think more culpable, we must accept the notion that there is some common understanding about culpability, even without the statute, that entitles us to divine legislative intent.
My conclusion then is that the lesser penalty that the Legislature has prescribed for aggravated manslaughter (which is more culpable than this putative non-capital murder), suggests the Legislature did not mean to impose the harsher penalty for this less culpable act. I further conclude that if the Legislature defined as “aggravated assault” precisely the same act (purposely or knowingly causing serious bodily injury to another) as this non-capital murder, except for the happenstance that in the former death did not result whereas in the latter it did, making the former (aggravated assault) a second degree crime (five to ten years) and the latter (non-capital murder) a mandatory thirty year prison term, we are ascribing an almost outrageous intent on the part of the Legislature. See N.J.S.A. 2C:12-1(b)(1) (aggravated assault).
*139 Plainly read, the crime of non-capital murder would require only that the actor purposely or knowingly inflict serious bodily injury, in terms of the actor’s intent and the actor’s conduct. The result — death—if the statute is so read, is simply a coincidence, albeit one that is not too remote as to have “a just bearing * * * on the gravity of his offense.” Supra, at 138 n. 2 (quoting N.J.S.A. 2C:2-3(b)). So construed, the provision would enact a “much discredited [Holmesian] theory of liability.” Atiyah, The Legacy of Holmes Through English Eyes in Holmes and the Common Law: A Century Later, 27, 30 (1983).
Contrast this with aggravated manslaughter, 2C:ll-4(a). There the actor “recklessly causes death under circumstances manifesting extreme indifference to human life.” One must find that that actor, realizing death was rather probable, and fully aware of that, nevertheless committed the act with a state of mind that said “I couldn’t care less, I don’t care at all, I don’t care in the least bit if this person dies, even though I know that my act possesses a high degree of probability of causing that person’s death.” The conduct of the actor could be as broad as the scope of human behavior, it could include inflicting injuries, it could include throwing someone out of an airplane or fracturing someone’s arm. All of these things go into “serious bodily injury,” but it would have to include above all of that the required state of mind that is almost, but not quite, the same as purposely causing death or knowingly causing death, i.e., conduct that manifests extreme indifference to the value of human life. 3 To me it is a much more culpable act, certainly more so than simply breaking the victim’s arm. Yet aggravated manslaughter carries a sentence of ten to thirty years with *140 a possible parole bar of fifteen years, while the non-capital murder requires a mandatory thirty-year prison term. This much more culpable act of extreme indifference resulting in death brings on a much less serious penalty (possible fifteen years mandatory) than the less culpable act of inflicting serious injury that results in death (non-capital murder — thirty years mandatory). The Legislature may do it; I would not say it is necessarily unconstitutional, but given our common culture I find it hard to believe the Legislature would have intended it. Finally, the legislative history of the death penalty act suggests to me that the Legislature never intended that the mere infliction of serious bodily injury without knowledge or purpose that death would result could be murder.
The Legislature under 2C:ll-3(a) made every murder by one’s own conduct eligible for the death penalty if accompanied by aggravating factors. In the sponsor’s view that incorporation meant “first degree murder, willful premeditated murder.” Capital Punishment Act: Hearing on S. 112 Before the Senate Judiciary Committee 1 (1982) [hereinafter Committee Hearing] (statement of Sen. Russo). See also Senate Judiciary Committee Statement to S-112 (1982) (“only a person who actually commits an intentional murder * * * would stand in jeopardy of the death penalty.”). Although these are pre-Code concepts, they reinforce the belief that the Legislature did not intend that the “serious bodily injury” feature of 2C:ll-3 murder be devoid of relationship to death. Recall that the feature’s function at common law was as an evidentiary device to furnish the proof of malice aforethought that distinguished murder. Such conduct helped the jury to understand the actor’s state of mind, his culpability for the death, not serve as an independent form of homicide.
Based on all of this I conclude that the insertion of the language “or serious bodily injury resulting in death” in 2C:11-3(a)(1) and (2) is necessarily subject to the internal consistency of the Code and the graduated punishment contemplated thereby. Hence, I would conclude that in those cases in which the *141 infliction of serious bodily injury on a victim is a probative element in the crime of murder under N.J.S.A. 2C:ll-8(a)(l) or (2), the jury must be charged that the defendant must have had as well the purpose or knowledge (in the Code’s sense of practical certainty), N.J.S.A. 2C:2 — 2(b)(2); see infra at 141-142, that death would result.
III
I am supported in my conclusion by the internal structure of the Code as well. When the Legislature transposed into the Code the previous common-law concepts of second-degree murder, it made these concepts subject to the Code’s general framework.
For purposes of this analysis, I shall limit my discussion to knowing murder, although the principles would be similar in the case of purposeful murder. It may be that the culpable mental state was .intended to apply only to the intent to inflict the blow. A plain English reading suggests that. But the mental-state provisions of the Code are complex indeed. The Code provides that no person can be guilty of an offense “unless he acted purposely, knowingly, recklessly, or negligently as the law may require, with respect to each material element of the offense.” N.J.S.A. 2C:2-2(a). The material elements of an offense vary in that they may involve (1) conduct per se, (2) the attendant circumstances of conduct, or (3) the result of conduct. The Code defines the culpability status for each. Moreover, “[w]hen the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.” N.J.S.A. 2C:2-2(c)(l) (emphasis added). 4 That the result of the injury be *142 death is clearly a material element of the crime of murder. Hence, under N.J.S.A. 2C:2-2(c)(l), it would follow that knowledge that death will follow is the requisite mental state for murder unless “a contrary purpose plainly appears.” Remember that knowledge is not purpose. The Code is quite specific about how knowledge is to apply to the various elements of an offense. In fact, the Code distinguishes between the state of knowledge required for (1) conduct, (2) attendant circumstances, and (3) the result of conduct.
A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or if he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result.
[N.J.S.A. 2C:2-2(b)(2) (emphasis added).]
Under this interpretation, if an actor commits serious bodily injury that results in death, he would be convicted of murder only if he is adjudged to have been practically certain that death would result from his conduct.
The Code, in this way, is self-correcting with respect to the anomaly created by the legislative bifurcation of the two forms of common law second-degree murder, i.e., “serious bodily injury” and “extreme indifference” homicide.
The precise delineation of these mental states of criminal culpability, each drawn from the Model Penal Code and each defined in N.J.S.A. 2C:2-2(b), represented an effort, as one of the framers of the Code put it, “to achieve greater individual justice through a closer relation between guilt and culpability, requiring workable definitions of the various culpability factors. These factors must be related precisely to each element of an offense, defense, or mitigation, and all unnecessary limitations upon individual culpability should be eliminated.” Knowlton, supra, 32 Rutgers L.Rev. at 2 (footnote omitted).
*143 People act “purposely” with respect to a result if their conscious objective is to cause such a result. People act “knowingly” with respect to the result if it is not their conscious objective, yet they are practically certain or aware of a high probability that their conduct will cause the result. * * *
People act “knowingly” with respect to a result if they are nearly certain or aware of a high probability that their conduct will cause the result. If they are aware only of a substantial risk, they act “recklessly” with respect to the result. The narrow distinction lies in the awareness of the certainty of the risk —“high probability” versus “substantial risk.” The broader distinction is considerably more significant. Purposeful and knowing conduct is viewed as "wilful, ” while reckless conduct or less is at most “careless.”
[Robinson, A Brief History of Distinctions in Criminal Culpability, 31 Hastings L.J. 815 , 818-19 (1980) (footnotes omitted).]
The Code, by closely tying the concepts of knowledge or purpose with respect to the result of a homicidal act, equates this conduct with “willful” conduct, which is the conduct that Senator Russo described as one of the characteristics of capital homicide. Our job in construing statutes is to make sense of the whole of a statute insofar as possible and not to construe individual sections in isolation. See State v. Valentin, 105 N.J. 14, 20-21 (1987). We make better sense of the whole of the homicide provisions of the Code by not creating another form of murder.
In sum, I conclude that because it is highly unlikely that the Legislature would have intended the anomalous construction of the Code that would contemplate two forms of murder, one capital and one non-capital, and because I believe that the Legislature would have intended that the capital murder provisions of the Code be construed to be in accordance with constitutional requirement, I would hold that for an accused to be found guilty of murder under 2C:ll-3(a)(l) or (2), the offense that will subject the accused to capital punishment, he must be adjudged by a jury to have had either the conscious object to cause the death of the victim or to have been practically certain or aware of a high probability that the conduct would cause death.
In murder cases in which the infliction of serious bodily injury is a probative factor, the trial court should charge the *144 jury that whatever the conduct may be that caused death, the jury must find that the defendant have the requisite mental state under the Code — either purpose (conscious object or design) or knowledge (practical certainty) that death will result. In many cases the intent to inflict serious bodily injury, if not demonstrative of such a state of mind concerning the death, will demonstrate that recklessness with respect to the consequence of death manifesting the extreme indifference characteristic of aggravated manslaughter. See Wechsler & Michael, supra, 37 Colum.L.Rev. at 709-10.
Justice GARIBALDI joins in this opinion.
The maximum sentence for a non-capital murder was later increased up to life imprisonment with thirty years without possibility of parole, L.1982, c. 111; the maximum sentence for aggravated manslaughter was increased to thirty years with a possible fifteen-year parole bar. L. 1986, c. 172.
Of course, the reticulated structure of the Code forbids absurd results. See N.J.S.A. 2C:2-3(b). An actor is not criminally culpable for the results of conduct unless the actual result either "be within the design or contemplation” of the actor (sometimes described as "the designed or contemplated result”) or involve "the same kind of injury or harm as that designed or contemplated and not be too remote, accidental in its occurrence, or dependent on another’s volitional act to have a just bearing on the actor's liability or on the gravity of his offense" (sometimes described as "the remote result”). N.J.S.A. 2C:2-3(b).
See State v. Rose, 112 N.J. 454 at 484 , (1988) (Handler, J., dissenting) (Justice Handler, noting the similarities between "purpose” and “extreme indifference,” observed: "[T]he Commentary recognizes the propinquity — indeed, it urges the inseparability — of species of recklessness ‘manifesting extreme indifference to the value of human life' and ‘knowing’ murder; ‘extreme indifference' is the formula by which ‘recklessness’ is ‘assimilated to knowledge.’ ”).
As noted, the legislative history with respect to the 1979 consensus amendments is sparse indeed concerning whether the Legislature intended to create a *142 /ess-morally-culpable form of criminal homicide that would be punished more severely than aggravated manslaughter.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9746763. Public record. Not legal advice.