STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RONALD LEE, A/K/A JOHN DAVIS, DEFENDANT-APPELLANT.
Supreme Court of New Jersey
Argued November 29, 1983—Decided May 7, 1984.
96 N.J. 156
Mark Paul Cronin, Deputy Attorney General, argued the cause for respondent (Irwin I. Kimmelman, Attorney General of New Jersey, attorney; Mark Paul Cronin, Victoria Curtis Bramson and Catherine A. Foddai, Deputy Attorneys General, of counsel; Victoria Curtis Bramson and Catherine A. Foddai, on the brief).
The opinion of the Court was delivered by
POLLOCK, J.
In this case, we must determine the constitutionality of
A majority in the Appellate Division found an explicit charge on defеndant‘s intent unnecessary “as long as the crime was defined in terms of the circumstances surrounding the possession of the weapon.” 188 N.J.Super. 432, 435 (1982). The court described the standard of “circumstances not manifestly appropriate” for lawful uses, however, as the functional equivalent of an unlawful intent to use. Id. at 436.
One judge dissented, asserting that the jury was not adequately instructed that an unlawful intent to use the weapon in question, a pair of scissors taped into a makeshift stiletto, was an element of the crime. Id. at 436, 439 (Antell, J.A.D., dissеnting). The defendant, who appealed as of right because of the dissent, petitioned for certification on the constitutional issues.
We granted the petition, 94 N.J. 592 (1983), and now affirm the judgment of the Appellate Division. We hold, however, that an “intent to use for an unlawful purpose” is not an element of the offense, and that the statute is constitutional.
I
The Appellate Division summarized the facts:
The incident giving rise to the charges herein commenced at about 1:25 p.m. on December 8, 1979. James Whitney, an off-duty рolice officer, entered the kitchen from the living room of his home, at which time he heard a noise on his screen porch. Through a window of the kitchen door the officer saw defendant with his upper torso inside the screen of the porch. Whitney pursued defendant and being unable to apprehend him returned home and telephoned a central dispatch station, reporting the incident, together with a description аnd direction of flight of the intruder. Lee was eventually apprehended. At the time of his arrest Lee was patted down, as a result of which a pair of scissors taped at the ends, a spool of string, surgical tape and black leather gloves were recovered. Whitney subsequently recognized and identified Lee as the intruder in his home.
At the trial Sgt. Michael O‘Donovan was qualified as an expert on weapons and gave his opiniоn that the taped scissors were useless for their traditional purpose and in the taped condition became a “stiletto.” Defendant rested
without calling witnesses or testifying. Nor did the defendant present any objection to the judge‘s charge.
The jury found defendant guilty of burglary,
In evaluating defendant‘s challenge to the constitutionality of
In the first class, the mere possession of certain weapons, such as sawed-off shotguns, constitutes a per se offense. See
A second class of offenses prohibits the possession of a weapon with the intent to use it against the person or property of another. See
The preceding categories are useful for understanding the legislative intent, but should not be considered as mutually exclusive. The possession of a particular weapon can be prohibited under onе or more of the categories, depending upon the intent of the possessor or the circumstances surrounding the possession. Quite logically, the Legislature made the possession of a given weapon a more serious crime if that possession was accompanied by an intent to use it unlawfully against another. Compare
In
The former criminal statutes contained two sections that are predecessors of
We find that many of the circumstances formerly found by this Court to indicate possession of a knife with an unlawful purpose under
The criminalization of the possession of a weapon with the intent to use it unlawfully against another is carried forward in
The history of the Criminal Code, although unclear, sheds some light on whether
Another section in the original draft of the Criminal Code proscribed possession of weapons in general by making it a crime of the fourth degree for any person to knowingly have in his possession any firearm or weapon. See Volume I at 137 (proposed § 2C:39-3 g). As enacted, the Criminal Code moved the phrase “possessed under circumstances not manifestly appropriate for lawful use which it may have” from the definition of “weapon” into
Interestingly, the “not manifestly appropriate” phrase also appears in the Model Penal Code definition of “weapon,” the possession of which gives rise to a presumption of criminal purpose. Model Penal Code § 5.06, 10 U.L.A. 504-05 (1974). Although it is the basis for many provisions in the Criminal Code, the Model Penal Code is not cited as a source for
From the foregoing, we conclude that the Legislature did not require proof of an intent to use a weapon for an unlawful purpose as an element of a violation of
In this case, the trial court gave the normal instruction that the defendant is presumed innocent and that the burden of proof is on the State throughout the trial. After specifically stating that the defendant has no burden of proof, the trial court read
Contrary to defendant‘s contention on appeal, the statute does not require him “to come forth and prove that his possession is not inappropriate.” That argument is invalid because, as the trial court instructed the jury, the State bears both the burden of proof and of coming fоrward with the evidence. Hence, the statute does not effect an unconstitutional shift in the burden of proof.
II
We next consider whether the statute as interpreted is unconstitutionally vague or overbroad. The first step is to determine if the statute is overbroad. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362, 369, reh‘g denied, 456 U.S. 950, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982) (Flipside). In making that analysis, the question is whether the enactment reaches a “substantial amount of constitutionally protеcted conduct.” Flipside, supra, 455 U.S. at 494, 102 S.Ct. at 1191,
As a general proposition, however, the overbreadth doctrine is invoked when an enactment impinges upon first amendment rights. See, e.g., Central Hudson Gas v. Public Serv. Comm‘n of New York, 447 U.S. 557, 565 n. 8, 100 S.Ct. 2343, 2351 n. 8, 65 L.Ed.2d 347, 350 n. 8 (1980); Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915-16, 37 L.Ed.2d 830, 839-40 (1973); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 168, 92 S.Ct. 1965, 1969, 32 L.Ed.2d 627, 634 (1972); In Re Hinds, 90 N.J. 604, 617-19 (1982). See generally L. Tribe, American Constitutional Law § 12-24 (1978); Note, Overbreadth Review and the Warren Court, 49 N.Y.U.L.Rev. 532 (1974); Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 845-46 (1970). Indeed, the overbreadth doctrine emanates from the notion that “[f]irst amendment freedoms need breathing space to survive * * *.” N.A.A.C.P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, 418 (1963).
Here, the stаtute does not impinge upon any first amendment right; in fact, as interpreted, it does not reach any constitutionally-protected conduct. The statute affects only the knowing possession of a weapon under circumstances “not manifestly appropriate” for lawful uses of that weapon. Hence, the statute does not fail because of overbreadth. It remains to consider the contention that the statute is unсonstitutionally vague.
Vagueness “is essentially a procedural due process concept grounded in notions of fair play.” State v. Lashinsky, 81 N.J. 1, 17 (1979). The vagueness test “demands that a law be sufficiently clear and precise so that people are given notice and adequate warning of the law‘s reach.” Town Tobacconist v. Kimmelman, supra, 94 N.J. at 125 n. 21.
The Legislature has considerable latitude in addressing criminal conduct. It can either prepare a detailed catalogue of proscribed activities or, within constitutional limits, address the problem more generally. See Sanitary Vendors v. Byrne, 40 N.J. 157, 166 (1963). The wisdom of a more general approach to the definition of certain possessory offenses is made manifest by the facts of this case. It is doubtful that a legislator, no matter how meticulous, would have thought of including scissors taped into a stiletto on a list of prohibited weapons.
Thаt the prohibited behavior is not susceptible to precise definition need not lead to legislative paralysis. The words of the challenged statute are a sufficient warning so that an ordinary person “is apprised with a reasonable degree of certainty of that which is proscribed.” State v. Joas, 34 N.J. 179, 187 (1961) (sustaining statute prohibiting careless driving as sufficiently specific to withstand constitutional scrutiny). Similarly, law enforcement officers are on notiсe that mere possession of a potential weapon is not sufficient to justify an arrest. The possession of a weapon must be knowing and “not manifestly appropriate” for such lawful uses as the object may have. See State v. Colon, 186 N.J.Super. 355, 357-58 (App.Div.1982).
As modified, the judgment of the Appellate Division is affirmed.
CLIFFORD, J., dissenting.
If the woeful lack of precision in our public discourse has not yet reached scandalous proportions, it bodes fair soon to do so. Teetering on the brink of that hyperbole, I view today‘s decision as making a significant, if unwitting, contribution to the decline of exactness in speech, thereby advancing an unfortunate trend that our every effort should be bent on retarding.
Not only has the Court swept aside respected authority (State v. Green, 62 N.J. 547 (1973), and In re T.E.T., 184 N.J.Super. 324 (App.Div.1982)) with its holding that proof of intent to use a weapon for an unlawful purpose is not requirеd to sustain a violation of
At the outset I would record my agreement with Judge Antell, dissenting below, that even if we were able to agree on an acceptable meaning of “not manifestly appropriate,” its use presents an insurmountable obstacle to any coherence in this criminal statute.
If read literally the statutory language would encompass countless situations which the Legislature could not have intended as the subject of prosecution. The workman carrying home a linoleum knife earlier used in his work; the paring knife inadvertently left on an automobile floor after being used for a lawful purpose; a stevedore‘s hook or a fisherman‘s gaff thrown into a vehicle and forgotten. A “weapon” could include a brick, a baseball bat, a hammer, a broken bottle, a fishing knife, barbed wire, a knitting needle, a sharpened pencil, a riding crop, a jagged can, rope, a screwdriver, an ice pick, a tire iron, garden shears, a pitch fork, a shovel, a length of chain, a penknife, a fork, metal pipe, a stick, etc. The foregoing only illustrate the variety of lawful objects which are often innocently possessed without wrongful intent, but under circumstances which are clearly not “manifestly appropriate” for their lawful use.
Possession of a fоrk is manifestly appropriate only at the dinner table, of a bat on the athletic field, of a shovel in the garden. It cannot be reasonably concluded that this penal enactment was actually intended to apply to possession of these commonplace articles in the myriad circumstances when its appropriateness is less than “manifest.” It has long been the rule that “where a literal reading of the statutе leads to absurd consequences ‘the court must restrain the words’ and seek the true legislative intent.” Furthermore, in this case a literal reading of the statute breaches the precept that “[p]enal laws must be clear enough so that ‘all men subject to their penalties may know what acts it is their duty to avoid.‘” [188 N.J.Super. at 437 (citations omitted).]
Even apart from the language problem, as Judge Antell saw it (again I agree),
[although] the circumstances of this defendant‘s рossession of the taped scissors suffice to support a finding of intent to use them as a weapon, the jury was not instructed that such a finding must be made as a condition to arriving at a guilty verdict. Since defendant‘s intent was an element of the crime charged, he was entitled to such an instruction from the court without a request that it be given. [Id.]
But the trouble—and more the source of this fulmination—is that “not manifestly appropriate” is so lacking in any рrecise meaning as to defy definition. The Court, wisely, does not even hazard one. As Judge Antell‘s examples demonstrate, meaning
“Not manifestly appropriate” drips with subjective content: what is “not manifestly appropriate” to one may be perfectly apprоpriate to another. Before this esoteric exercise gets out of hand, an example: I consider it to be “not manifestly appropriate“—maybe even “manifestly inappropriate” (although surely they do not carry the same meaning)—to overlook, in the company of ladies, certain amenities: the relinquishment of my seat in a public conveyance when, for want of space, a lady is obliged to stand; thе removal of my hat when a lady enters the elevator; the holding of a door—that sort of thing. Some of my younger friends doubtless view this as horse-and-buggy bunkum, being of the view that observance of any of the foregoing civilities in this day and age is surely “not manifestly appropriate,” and is possibly “manifestly inappropriate.” Our differences are traceable at least as much to variations of meaning that inhere within such an expression as thеy are to our respective notions of chivalry or to a generation gap.
The point is that a phrase like “not manifestly appropriate” runs the risk, intolerable in a criminal statute, of wild swings of meaning. We should not undertake to justify its use in this statute by assuming that “we all know what it means.”
Traditionalists revere their mother-tongue (how apt is the piety of that formulation!) not out of a perverse delight in quibbling nor * * * out of a slavish adherence to arbitrary rules and antique forms, but rather because they realize that language is the participatory instrument of intellection. From this perspective language is not simply a means of communication but also an ethical art * * *. The practice of that art involves solicitude for precision, devotion to the possibilities of imagery, and above all delight in the intricate play of word-craft—the kind of delight that follows only upon reverence. [Salemi, Book Review, 19 The University Bookman 45, 47 (1979) (reviewing J. Hook, English Today: A Practical Handbook (1976)).]
I would reverse and remand.
For reversal and remandment—Justice CLIFFORD—1.