State v. Gantt

HANDLER, J.,

concurring.

During the course of our decisional treatment of the issues relating to the scope and content of the Graves Act, N.J.S.A. 2C:43-6c, I have expressed strong differences from the views endorsed by the majority of the Court. In State v. Des Marets, 92 N.J. 62 (1983), this Court gave singular and overwhelming emphasis to the deterrent purpose of the Graves Act to launch its thesis that the Act dictated “broad coverage” rather than narrow application. In accordance with its perception of deterrence, it ruled that the Act included defendants in “possession of a firearm, without any need to demonstrate intent to use____” Id. at 68 . Although I agreed with the majority “that the overriding purpose of the Graves Act is deterrence,” id. at 97 (dissenting and concurring opinion), I felt that the Court had gone well beyond the bounds envisioned by the Legislature itself under the Graves Act in order to accomplish the needs of penal deterrence. In my opinion, “[t]he majority’s reading of the statute to cover simple possession without any intent to use a weapon criminally ... strain[ed] the language of the statute * * Id. at 162 . The import of the statutory language employed by the Legislature, in conjunction with the imperative for strict construction that arises from the ambiguity of a penal statute, demanded that “intent to use” be deemed a necessary component of the critical statutory phenomenon of “possession.” Accordingly, I expressed the view that bare or simple possession of a gun in the absence of a demonstrable or inferable intent to use it in the commission of a crime was insufficient to invoke the automatic and mandatory penal sanctions of the Graves Act. Id. at 106 .

In State v. Stewart, 96 N.J. 596 (1984), a rapprochement with the majority seemed possible. I acknowledged the precedential *593 authority of the Court’s Des Marets holding, although I remained unpersuaded as to its soundness. Accordingly, I joined in the Court’s ruling that “possession of a firearm for the purposes of the Graves Act includes not only actual possession but constructive possession that the defendant is able to convert practically immediately to actual possession.” State v. Stewart, supra, 96 N.J. at 604 . I took some comfort in the Court’s strict, realistic and fair interpretation of the concept of “possession” for Graves Act purposes.

I was jilted by the Court’s decision in State v. White, 98 N.J. 122 (1984). In White , the majority, again marching to its own deterrence drummer, ruled that if the accomplice “knew or had reason to know before the crime was committed that his partner would possess or use a firearm while the crime was being committed, or during the immediate flight thereafter ...,” then, even though the accomplice was unarmed, was not in actual or constructive possession of the gun and, indeed, nowhere near the gun, the accomplice-defendant could still be guilty of “the same crime as the individual who possessed or used the gun,” and, by a quantum leap, would be subject to the mandatory sentencing provisions of the Graves Act. Id. at 130-31 . White , in my estimation, was inconsistent both with the Stewart requirement that there must be the “ability to exercise imminent control over the firearm” ( 96 N.J. at 604 ), and with the core rule of Des Marets that “intent to use” is not a constituent element of Graves Act possession as defined by Stewart (Id. at 609 (concurring opinion)). I dissented, again complaining that the Court’s failure to adhere to the commands of strict statutory interpretation of penal statutes was at the root of its dire and dogmatic interpretation of the Graves Act.

In this case, I find myself once more in somewhat of a mésalliance with the Court in a Graves Act matter. The issue before this Court is whether a firearm must be proven to be operable as a prerequisite to imposing a Graves Act sentence. Ante, at 577. The majority concludes “that the Graves Act is *594 directed at real guns which pose actual physical dangers to the potential victims of the crime.” Ante at 582. I agree with this. The Graves Act is concerned with those in criminal possession of “real guns.” This view of the deterrent theory of the Graves Act, which encourages criminals to think twice prior to going forth to commit crimes while armed with guns, serves as the foundation for the majority’s holding.

The Court in determining what is a “real gun” states that the relevant inquiry is not “a device’s present operability, but ... its original design.” Ante at 584. According to the Court’s definitional formula as to the meaning of “firearm,” if the design of a firearm itself bespeaks the objective capacity or potential of the weapon to kill by firing a projectile, its possession will automatically implicate the Graves Act. This is so — at least in the absence of any evidence indicating that the original design of the gun qua lethal weapon has been permanently changed as a result of the weapon having become permanently inoperable. If the weapon has been rendered permanently inoperable, it can no longer be considered a “real gun.”

Curiously the Court eschews a statement that operability of the weapon is in actuality an essential element of a Graves Act offense. Hence its approach to a sensible understanding of the term “firearm” seems somewhat obscure and elliptical. I fully recognize that the rules of strict construction extending to penal statutes, such as the Graves Act, Neeld v. Giroux, 24 N.J. 224, 229 (1957); State v. Brenner, 132 N.J.L. 607, 611 (E. & A. 1944), do not prohibit the imputation of distinct meanings to the definition of the term “firearm” when used in the variant contexts of a substantive offense and a sentencing provision. See Commonwealth v. Ponds, 236 Pa.Super. 107 , 345 A.2d 253, 255 (1975) (“The use of different standards of operability for different legislation is not unreasonable in light of the different purposes behind the legislation”); People v. DeWitt, 285 A.D. 1157 , 140 N.Y.S.2d 190 (1955); see also Taylor v. State, 467 So.2d 367 (Fla.App. 2 Dist.1985) (vicarious possession, while sufficient to sustain a conviction for possession of a *595 firearm, is not sufficient to justify imposition of a minimum three year period of imprisonment under the statute). However, the principles of strict construction should be applied so that in cases where there exists “a margin of error ... affecting the breadth of [a penal statute’s] coverage, that margin should be narrowed as much as language reasonably permits to assure fairness and justice in the law’s individual applications.” State v. Des Marets, supra, 92 N.J. at 105 (dissenting and concurring opinion).

Fairness and justice in defining the meaning of a “firearm” in the context of an enhanced sentencing provision demand that operability be established as an essential element to sentencing under the Graves Act. United States v. Terry, 760 F.2d 939 (9th Cir.1985); York v. State, 56 Md.App. 222 , 467 A.2d 552 (Md.Ct.Spec.App.1983), cert. denied, 299 Md. 137 , 472 A.2d 1000 (1984); State v. Morris, 440 A.2d 1035 (Me.1982); Rusling v. State, 96 Nev. 778 , 617 A.2d 1302 (1980). That element, I submit, may be established by direct evidence or evidence founded on reasonable inferences. See discussion infra at 596. In this case, I do not fault the Court with any laxity in construing the statute with sufficient strictness and circumspection. As noted, it rules that if there is evidence of permanent inoperability, the gun cannot be considered a “firearm” for Graves Act purposes. I agree that possession of a gun that is permanently inoperable should not be deemed a Graves Act offense. I concur in the opinion of the Court because I believe that its holding implicitly embraces a recognition as to the essentiality of the operability of a firearm, albeit in the sheep’s clothing of design. The Court clearly acknowledges that the State must prove that the weapon is a “firearm” in the sense that it was designed as a lethal gun. It simply chooses to posit the relevance of operability under its design rubric. However, regardless of whether the standard of operability is expressed directly or is stated indirectly as an aspect of the design of the gun, the major burden of proof, both in terms of production and persuasion, is substantially the same.

*596 The Court suggests that a reason for preferring a definition of firearm based on “design” is that proof of operability “would effectively eliminate the application of the Graves Act in all cases in which the defendant has discarded or secreted a weapon.” Ante at 585. However, the burden of proving operability in no way compromises the application of the Graves Act. We have consistently recognized the various forms of evidence that may establish whether a gun has retained the qualities of operability. See State v. Cole, 154 N.J.Super. 138, 146 (App.Div.1977) (“the application of the inference of operability cannot be made to depend on the recovery of the weapon or its production in court.”); State v. Schulthesis, 113 N.J.Super. 11, 16 (App.Div.), certif. denied, 58 N.J. 390 (1971) (testimony by an eyewitness that a gun was a “real gun” was tantamount to legal proof “that the gun was capable of being fired.”). See also State v. Millett, 392 A.2d 521 (Me.1978) (recognizing that lay testimony would suffice in deciding whether the object involved was a “real gun”).

I consequently would find nothing untoward in an interpretation of the Graves Act that would posit a rebuttable presumption of operability for purposes of determining whether the weapon used during the commission of the crime was a “firearm” justifying imposing a Graves Act sentence. Cf. State v. Ingram, 98 N.J. 489, 498 (1985) (permitting a jury to infer, until the defendant comes forward with some evidence to the contrary, that a defendant does not possess a license or permit to carry a weapon as required under N.J.S.A. 2C:39-2). The majority’s concern that such a presumption would invite “protracted inquiry” into various issues raised by a defendant in rebuttal, Ante at 586, fails to recognize that a defendant would be similarly entitled to show that the gun is not a “firearm” in that it was not or is no longer designed as a gun because it is permanently inoperable. Thus, the Court itself, through the backdoor of its design-definition, recognizes the relevance of such evidence and the permissibility of such infer *597 enees on the issue of inoperability as related to design. Ante at 589.

I hope with this opinion I can lay to rest my differences with the Court on these matters. As Justice Clifford observed in another case with respect to the quandry posed by his continuing differences with a majority of his colleagues:

The Talmud says that if, when you are stone sober, a man tells you that you are drunk, knock his teeth out; if two men tell you that, laugh at them; but if three men tell you that, go to bed.

[Lynch v. Rubacky, 85 N.J. 65, 79 (1981) Clifford, J., dissenting.]

I shall be sanguine about the state of my current sodality with the Court in this area, but confess to some trepidation as I see gathering on the horizon portentous issues that may yet break upon us. E.g. Commonwealth v. Wright, — Pa. —, 494 A.2d 354 , cert. granted sub nom. McMillan v. Pennsylvania, 474 U.S.-, 106 S.Ct. 58 , 88 L.Ed.2d 47 (1985). Accordingly, I concur in the judgment of the Court.

HANDLER, J., concurring in the result.

For affirmance —Chief Justice WILENTZ, and CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN— 7.

For reversal —None.