*1 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW TOSCANO, JOSEPH DEFENDANT-APPELLANT.
Argued September 27, 1976 Decided June 1977. *3 Mr. S. M. Framblau Chris the cause argued appellant Framblau, (Messrs. Fallcin, Mr. Cohen and Fram- attorneys; blau, Fallcin, of brief; counsel on L. Gary and the Mr. of counsel). Greenman,
Mr. B. Roy Prosecutor, Assistant argued Lordi, cause for respondent Prosecutor, at- (Mr. Joseph P. Greenman, Mr. torney; of counsel and on brief). Mr. William P. Welaj, General, Deputy Attorney argued curiae, the cause for amicus General New Attorney Jersey. William (Mr. F. Hyland, Attorney General New Jersey, Mr. attorney; Welaj counsel and on the brief).
The opinion the court was delivered by J. Defendant Joseph Toscano was convicted of Pashman, obtain conspiring money false in violation pretenses N. J. S. A. 2A:98-1. Although he aided had admitting in the preparation of fraudulent claim by insurance mail out a ing false medical report, he that he had acted argued under duress. The trial ruled judge threatened
424 charging to justify imminent harm not sufficiently was returned the jury After of duress. on the defense jury $500. fined verdict the defendant guilty, J.N. conviction. affirmed the Division Appellate had defendant It stressed that Super. 1975). Div. (App. and threat time of the between ample opportunity the mat report coerced act commission of the allegedly in the conspiracy participation ter to the or to avoid police Churchill, N. L. 123 J. on State altogether. Relying Palmieri, & L. 195 N. (E. J. & A. and State (E. 1928) satisfy failed defendant A. it also concluded that 1919), harm be “present, that the threatened condition threshold imminent and impending.” as of duress the status to consider
We certification granted We N. J. (1975). an affirmative defense to crime. to a crime hold that is an affirmative an al- based murder, it not be upon than and that need standard Under injury. threat of immediate leged bodily suf- allege did announced that this we find today, claim of ficient warrant facts to charging remand his conviction duress. reverse Accordingly, for a new trial.
I 20, 1972, On the Essex April County Grand returned Jury a 48-count indictment that eleven alleging named defend- ants two unindicted had vari- co-conspirators defrauded ous insurance companies by accidents in staging public places settlement of fictitious in- obtaining payments *4 juries. The First Count of the indictment alleged single twelve different over conspiracy involving accidents “staged” a span counts, of almost three In the the years. remaining were of con- participants separate offenses charged false and spiracy, obtaining money by pretenses receiving money. fraudulently obtained Toscano, Dr. named Joseph chiropractor, was as a de- fendant in the First Count and in two counts alleging to conspiracy defraud the Insurance Kemper Company of the trial, Prior to seven eleven defendants (Kemper). pleaded to various defendant as guilty charges, leaving sole with the defendant remaining charged conspiracy defraud who was Wil- Kemper. pleaded guilty those Among liam Leonardo, of the general the architect con- alleged and the of the spiracy incidents. each organizer separate the trial Although First Count was dismissed judge at the conclusion of the case,1 State’s the evidence reveal did a characteristic modus operandi co- ij Leonardo horts in helpful the fraudulent scheme understanding against an Kemper. accident Typically, they stage a fall feign in a A for public place.2 false medical report the “injured person, with a false of em- together verification ployment and lost then wages, would be submitted to insurer the premises. The two were same doctors used secure the medical reports every in instance except involving Likewise, the claim against Kemper. confirma- tions of employment wages and lost were secured from the same pool friendly employers. insurance companies made cash payments to resolve the claims under their “quick settlement” programs, within a few weeks usually after purported accidents. Leonardo took for responsibility divid- 1Defendant de moved to sever his trial those of three other ground alleged participated general on that he in fendants conspiracy He renewed one the motion without occasion. after success the dismissal the First Count. In addition to this sever, supposedly refusal raises several errors judge, including prejudicial charge committed the trial acquittal. grant failure motion Because of our holding erroneously the issue withheld from jury, questions. do not reach those mishaps supermarkets, stores, 2The occurred in discount movie factory. occasions, and a theaters On de two Leonardo others liberately testing caused accident while road a used car from a dealer. There were three incidents five three 1970 and one in 1971. *5 accidents, funds to the “victims” of the to doctors ing a substantial for himself. employers, taking portion acted an unindicted who co-conspirator Michael Hanaway, accidents, testified as the victim in a number of these staged hap- by that was drawn into this scheme largely defendant at a fall January 1970, Hanaway penstance. staged On the di- New under E. J. Korvette’s in Woodbridge, who another Neri, rection of Leonardo and Frank doc- one two Miele, Dr. of the pleaded trial. guilty prior fraudu- tors Leonardo upon provide called repeatedly by Hanaway’s injuries claimed lent medical attested to reports, subse- was Hanaway on form the insurer. supplied his the Under- in settlement of claim paid $975 quently insurer. writers on behalf Korvette’s Company Adjusting In the a sim- meantime, however, the trio performed same Montclair, ilar R. O. Theater in charade the K. Wellmont Theater, the R. O. insured K. Jersey. Kemper, Miele claim, was notified Dr. immediately Hanaway’s was on a medi- verify Hanaway’s injuries enlisted to again However, cal K. O. occurred report. because the R. accident — after Korvette’s Januarjr only days two — mis- incident Dr. Miele two confused the claims was Hana- takenly Kemper’s adjuster told he treating way Hanaway sustained at Korvette’s. When injuries Wil- learned the claims he informed adjuster’s suspicions, liam who, Leonardo Richard turn, contacted brother co-defendant at (a trial)3 to determine whether Toscano the treatments. agree verify fill to show that attempted Toscano agreed out medical because he report money false owed Richard Leonardo for debts. It gambling also suggested falsely charged confirming 3Richard Leonardo was the em ployment participants of various Since the fraudulent schemes. count, general conspiracy he was named as a defendant in the judge he from the dismissed after the trial dismissed the case First Count. *6 Toscano to cover the crime subsequently up fab- sought by office ricating records non-existent office visits Han- away. Defendant these assertions and main- sharply disputed tained he that William Leonardo’s demands capitulated to because he fearful for his wife’s own only was and his it our function bodily safety. Since is not here to assess these shall versions, we summarize those conflicting which, facts if believed jury, defend- support ant’s claim of duress.
Defendant first met Richard Leonardo in 1953 a pa- as tient and knew him subsequently as a friend. Defendant briefly brother, encountered the William, in the late 1950’s at Caldwell when Penitentiary Toscano served as a prison guard. William Although was an inmate, the doctor did know him personally. Through with conversations po- some lice officers and William’s brother father, however, and he did learn about William enough to know of criminal his record.4 In Richard particular, told him many times that William “on was junk,” that had a he gang, “they can’t with keep up amount of money that they need habit,” and that he himself stayed away from William.
Thus, when William first called defendant at his of- for a fice, favor, immediately cut off asking he the con- versation on the was that he with pretext patient. Although William had not mentioned specifically the medical form time, at that testified that he was “nauseated” A by “just later, name.” few days on a Thursday evening, he received another call in his office. This time Leonardo asked defendant to make out a for a report friend order submit bill to adjuster. claims He was more insis- tent, that defendant stating it,” “going do but de- attempted 4Defendant to introduce William’s criminal record into unsavory reputation evidence and to establish his community. in the Although wholly successful, these efforts were not testimony other supported at trial his characterization of William Leonardo as a violent, Hanaway erratic individual. “opened stated that Leonardo Frank Neri’s skull with a things.” bat” and often did “off-the-wall fendant that he would not could not replied provide and Once the doctor ended conversation report. again that he abruptly by falsely, persons. was with claiming, and final Friday The third call occurred evening. “You’re Leonardo was and loud” go- “boisterous repeating, make this bill for me.” Then “Remem- ing out he said: ber, you just moved into a has a dark en- place very . . You and you your trance leave wife. . there wife are leave that your you when going jump shadows dark entrance.”5 “des- Leonardo sounded “vicious” and he it” defendant felt that had to do perate” “just himself his wife. He calling about protect thought but failed to would go away do so that “it police, hope *7 wouldn’t bother me more.” any left instructions, defendant In accordance with Leonardo’s for Leonardo Saturday morning a form in his mailbox on fictitious about the necessary fill in with the information and defendant com- was returned that injuries. evening It at a Hanaway pre- On he met Sunday morning it. pleted a bill and the com- and delivered medical spot arranged for no his medical He received report. compensation pleted form of cash William Leonardo services, either from the He Leonardo. debts Richard forgiven gambling that Sunday. from Leonardo after heard more nothing the entire Shortly thereafter, episode, still frightened by his telephone moved a new and had defendant address in an to an unlisted number ef- changed number avoid contacts with Leonardo. He fort future but a was unsuccessful. His permit also applied gun Au- with the Uewark Housing at his daytime job superior work the of defendant’s quality confirmed that thority that he forced to defend- markedly question so dropped conversation, some defendant his After ant about attitude. by against he had been threats him upset that explained “very, very pitch from his described the exit office as 5Defendant alleyway” building. side of the black the to a co-worker and Ms wife. He also revealed threats at the Newark Housing Authority. testified,
After the trial judge granted defendant State’s motion to further in connec any testimony exclude duress, claim tion defendant’s and announced Ms decision not to on that He based charge defense. his on two decisions ruling the former Errors by Court of Palmieri, State v. Appeals, v. Chur chill, supra, which referred to the common law rule that a successful claim of duress aof required showing “pres ent, imminent and threat of harm. As he in impending” these decisions, terpreted could not satisfy this standard his own establishing subjective estimate immediacy of harm. Rather, the defendant was obliged its prove immediacy an objective standard which included reasonable explanation of he why did report threats to the police. Since Toscano’s excuse for only to make failing such report was his doubts that the po lice be or able to willing Mm, court protect ruled subjective were fears irrelevant.
After that the stating applicable there is an allegation where act was committed in response to threat present, imminent and impending harm, death or serious bodily the trial judge charged jury: *8 standing receiving Now, and one who is instructions from someone point gun is, course, peril. a of in such the of One can describe imminent, being present pending, and such threat as and a crime circumstances, engaged
committed under those rather conduct in circumstances, though nature, even under those criminal in would be by the circumstances in excused reason of which it was committed. Now, peril imminent, present pending is not where the and to the opportunity police that the has to extent the seek assist- well, places upon for wife ance himself and his as the law such a person duty acquiesce any the not in to the. unlawful and demand may may engage in criminal conduct which he thereafter not be Now, principle prevails regardless subjective excused. of the may degree danger made estimate he have as to the of with which he may or his case, wife have been confronted. Under the facts of this jury, you, de- I instruct as the circumstances members that by leading implication scribed Dr. Toscano his in whatever you may participated criminal activities in find are he sufficient of duress. to constitute defense II law formulation of of duress judge’s ap- trial in See with recent of this Court. harmony decisions pears Dissicini, b., 66 N. J. o. (1975), aff’ing Falco, J. 60 N. J. N. Div. State v. Super. 1974); (App. offer some Nevertheless, sup- while these cases (1972). law in following tacitly the common rule port approved Churchill, Palmieri and whether prece- those question should be under the instant facts. controlling dents a a im- failure Here, allege “present, sole defect harm as an excuse for danger impending” minent and by In none of the recent cases decided conduct. defendant’s upheld, of duress discussion claim this Court Dissicini, in members Moreover, two was sparse. defense nature of the unsettled duress of this noted Court whether it was addressing even and refrained crime because peculiar available defense as 66 N. J. at 411-12 there. presented factual setting JJ., Clifford, concurring). n. 2 (Pashman, from the stemmed decision uncertainty Much of this in Palmieri which inti- Appeals the Court of Errors as a not be available might mated that There the circumstances. defendant claimed any crime under robbery in a and murder be- he had participated that The evi- accomplices. he had been threatened cause he had made to the previously trip indicated dence attempt carry aborted the rob- home out victim’s shot and killed after actually he victim and that bery, to the had been knocked another shot. ground the latter Court N. L. at 196. The noted the disagreement J. duress, status but concerning jurisdictions were threats made far from alleged out pointed *9 —crime if "hours, scene days” of the not before murder 93 N. L. was committed. J. at 199-200. Since those which defense a jurisdictions allowed the required showing imminent and "present, impending” compulsion, the Court declined to address the duress effect on a Id. crime. Palmieri no Although made reference to the well-established a rule that to murder, duress not defense see infra think ground we that also explains its holding. Churchill, later, Nine in a years similar claim a was asserted by defendant who had been convicted of case, In robbery. that the Court observed that the defend- did not allegations ant’s meet the common law test of im- mediate harm because he had failed to seize opportu- nity However, to escape. the Court ruled that it was re- lieved from deciding the issue because of a procedural waiver, and once disclaimed again intention any of determining whether a duress constituted a defense to crime. L. N. J. at 125. Falco,
More in a recently, officer police convicted for mis- conduct in office a false filing report asserted that he had acted under duress. Chief Justice Weintraub summarily dis- missed this claim noting compulsion that towas tell “[t]he truth; one no ordered defendant a file false report upon if pain threat he not do did 60 N. J. so.” at 586. Einally, affirmed the Appellate opinion Division’s Dissicini, that holding duress was not defense to murder if even defendant was charged Although Dis aiding abetting killing. sidni Palmieri followed duress as refusing permit murder, also de evidence indicated threat, fears rather fendant’s were based on but specific resulted from his of dis apprehension sign the least Ms violent from agreement provoke response gang J. leader. 126 N. 569. Super. at Dissicini Apart patterns factual particular Palmieri, implausible, made the of duress claims highly *10 in- cases sui because generis they
we those are think case as Thus, we approach volved intentional killings. with a crime charged first in which a defendant instance of under the threat than allegedly murder committed has relative to himself and a near serious bodily injury im- must such harm be “present, issue of whether raised minent and impending.” of duress the strict view
Defendant us abandon urges Both the in these cases. prior which was impliedly approved General, as amicus appearing Prosecutor and the Attorney curiae, also the circumstances under us define urge they to a crime. Although duress constitute defense standard, traditional they also a modification of the support test, under a liberal the defendant that even more argue not to the threats alleged should be excused yielding that the trial was correct. ruling future harm and court’s
Ill no defining has statute applicable Since are common law duress,6 guided only by defense prin of our criminal justice which conform to the ciples purposes and fair justice reflect notions system and contemporary Culver, 495, See N. J. cert. State v. 23 503 (1957), ness. den., 1387, Ct. L. Ed. 925, 354 U. S. 77 S. 1 1441 (1957); 2d Inc., Sons, & 44 N. J. chip 70, S v. Levitt 90 per (1965); Cf. 29, v. 27 N. J. Eye Infirmary, Newark Ear 43- Collopy 45 (1958).
At common law the of duress was recognized only when the coercion involved a or threat of use alleged harm which imminent and “of “present, is pending” such a to induce nature as a well grounded apprehension statutory provision majority defining 6The have states no duress. statutory For a discussion of the 20 sections states which have subject, Code, 2.09, (MPC) enacted laws on the see Model Pernal § (Tent. 1960). 10, Comment 1 2-4. at Draft No.
433 death or serious if bodily harm the act Nall done.” v. Commonwealth, 700, 208 271 Brown Ky. S. W. 1059 (1925); State, v. ing 31 Ala. 137, So. 13 2d 54 State App. (1943); 220 Iowa N. Clay, 1191, W. 77, (1935); Patterson, Or. P. See ,(1926). generally 22 C. J. S. 135-36; Criminal Law 44 Am. pages Jur. § 2d Law, 180; Criminal Perkins, 100 at Criminal Law (2 ed. 916-18; Annotation, 1969) Coercion or “Compulsion, Duress Prosecution,” as Defense to Criminal 40 A. L. R. 2d 910 (1955).
It was
does not
said that
excuse
commonly
*11
of an
killing
innocent
even if
acted
accused
person
State,
to
12 So.
response
5,
threats.
v.
97 Ala.
Arp
immediate
State,
301
Brewer
W.
145,
v.
72 Ark.
78 S.
773
(1893);
v.
299,
State
26 R. I.
(1904);
Nargashian,
58
953 (1904);
A.
Martin,
v.
People
P.
96,
13 Cal.
1034
App.
(1910);
108
State,
Taylor
505,
v.
158 Miss.
130
502
So.
Aside
(1930).7
however,
from this
duress was
a de
exception,
permitted as
see,
offenses,
fense
for
e.
prosecution
range
g.,
serious
States,
v. United
338,
192 F.
358
D’Aquino
2d
Cir.
(9
1951)
States,
Gillars v.
(treason;
United
S.
capital offense);
87 U.
16,
962,
D. C.
182 F.
App.
2d
976
C. Cir.
(D.
(trea
1950)
States,
; Shannon v.
son)
United
434
N. W. 418
601,
(1920)
v.
Mich.
180
Merhige, 212
People
Commonwealth,
Nall v.
(breaking
(robbery);
Sanders,
Cal.
v.
82
People
with intent
entering
steal);
State, 136
v.
778,
Hall
435 Robinson, v. Ill. People 526, 41 N. Ed. 2d 3d 354 117 App. State, v. (1976); Harris Tex. Cr. R. 446, 91 241 S. W. 175 v. N. W. (1922); 601, 212 Mich. 180 People Merhige, 418 (1920).
More
the defense of
not
al
commonly,
duress has
been
because
lowed
lack
immediate
to the
danger
threatened
When
person.
source
coercion is a
alleged
threat
harm,
of “future”
courts have generally found that
the defendant
thp
had
duty
from the
escape
control of
or to seek
threatening person
assistance from law enforcement
See,
States,
e. g.,
authorities.
Shannon v.
F.
United
76
2d
State,
490, 493 (10 Cir.
Burton v.
1935);
196,
51 Tex. Cr. R.
State,
danger
de
statements,
false
that,
of making
instead
sibility
for protec
trial
to the
judge
appealed
fendant could have
State, supra
Bain v.
(duress
But see
tion against reprisal.
And in Commonwealth
as a
unavailable
defense to perjury).
farmer
a tenant
300,
v.
For of the sufficiency allegations defendant’s to assess nature of of the jury, purpose regardless of charging Birch, F. States v. 2d 808 (4 United the crime. Compare 1897, L. Ed. S. S. Ct. cert. den. 411 Cir. 1972) U. documents) 2d 390 government (1972) (falsifying Palmer, in the United supra presence States v. (illegal United States, supra v. United D’Aquino (treason) with States) States, supra (kidnapping). Shannon United law on the common insistence under danger may or death serious causing bodily injury force immediate treason, early dealing be its cases origins ascribed McGrowther, see, Rex v. v. M’Carty, supra; e. g., Respublica of a to the proclivities 168 Eng. Rep. “tougher- (1746), & Center v. Aetna R. I. Recreation Casualty age,” minded Co., judicial simply 2d Surety F. and fabrication of baseless fears defenses. We do perjury the latter concern as reason for not discount caution in rule, but we are accepted concerned modifying its for injustice. shortcomings potential obvious Under some circumstances, the commission a minor criminal offense if excusable even the coercive agent should be does not use *14 or threaten force which is to result in likely death or “serious” hodily injury.10 it is that authorities Similarly, possible might not be able eventually a threat of harm from prevent future Reffitt, As Commonwealth being carried out. shown by State, wholly Hall v. have not supra, and courts supra, the reasonably who an individual disregarded predicament of believes enforcement of for assistance law appeals ficials will be but there has no widespread been unavailing, of See acknowledgment generally such LeFave exception. & Scott, Criminal Law Annotation, 49 at 377-78 (1972); § 40 A. L. R. supra, 2d at 913. or of future Warnings injury death will be all the more if the victim powerful prospective is another child, such as a person, or whose spouse safety means more threatened than own person well- being. as the drafters Finally, of the Model Penal Code ob served, and “long pressure break down resistance wasting may more effectively than a threat of immediate destruction.” 2.09, Comment at 8 Draft No. (Tent. 1960). §
Commentators have expressed dissatisfaction with the com- mon law of duress. standard viewed the defense as Stephen a threat to the deterrent function law, of the criminal that “it is at the moment when argued temptation is strong- est that the law should most speak clearly and emphatically 2 History contrary.” Stephen, Criminal Law in of A England modern (1883). refinement of position 10If the consideration the maximization were of social benefits single instance, undoubtedly would there situations in which be property person’s reputation even the destruction of or greater proscribed constitute evil than the commission an act Scott, the criminal law. See LeFave & Criminal Law 49§ (1972) ; Hitchler, 4 Val. L. Rev. at 535. Both the proposed Jersey Model Penal Code New Penal Code establish principle justification general defense, as a which would en compass many 3.02, eases. See Model Penal those Code Com § (Tent. 8, 1958) ; ment Draft No. Penal Code 2C:3-1 (1971). present law, however, Under such a is limited to Abbott, self-defense defense of another. See 36 N. J. 63 (1961). defense should be to encourage persons designed to act their if a against percentage self-interest substantial Hall, situation so. General persons such would do Criminal Law ed. 446-47. This Principles 1960), (2 its relatively standard would limit minor applicability to all serious crimes unless com- crimes exclude virtually Id. at 448.11 mitted under threat of imminent death. effects deterrent have more about the skeptical Others been observed Court Supreme of a rule. As Alabama strict *15 case: early peril exposed persons death imminent and That themselves have man, where innocent are instances fellow and there their that death, persons assaults, and suffered have murderous submitted to established; life, such self-sacrifice is but rather than well take legal punishment. motives the fear of emanated than [Arp supra, State, v. Ala. 97 12, 303.] at 12 So. at on some commentators have ad Building premise, rule which consider vocated flexible would allow to act in ac actually whether accused lost capacity motivation, or will” under desire, own or cordance “his See & real or forces. Newman pressure imagined Law,” Criminal 30 S. Weitzer, “Duress, Free Will and the Fletcher, “The 313, Cal. L. 331 Individualiza (1957); Rev. 1269, Cal. Rev. Conditions,” tion of 47 S. L. 1288- Excusing on the weaknesses 93 here focus inquiry (1974). defendant, his subjective of a and strengths particular and considerably beyond approach goes common law 11This 25, (Mo. Clair, 1953) severity. S. W. v. St. 2d 27 See State yet (“coercion taking person, life of does an innocent not excuse ; Commonwealth, supra, crimes”) Nall lesser it does all excuse Perkins, However, generally, W. See 271 S. at 1060. 916. capital distinguished non-capital and between states several crimes, have non-felony See, g., felony e. and offenses. Texas Stat. generally, Hersey (1970). Avins, See & Ann.-Penal Code 8.05 Prosecution,” “Compulsion as Defense to Criminal L. 11 Okla. (1958). 283, Rev. reaction to unlawful Thus, demands. the “standard heroism” of the common law would not to a way, give “reasonable person” standard, but to a set of expectations based on. the defendant’s Cham character and situation. Cf. Florida, bers v. 309 U. L. S. 60 S. Ct. Ed. N. J. (1940) (coerced confession); Taylor, 46 316 (1966) coercion (no by physical psychological pres sure; Rubenstein, confession Rubenstein v. voluntary); N. J. 359 (1956) entered into (contract under duress).
The drafters of the Model Penal Code and the New Penal Code sought to steer a middle course two between these positions by on focusing whether the standard imposed upon the accused was one with which “normal members of * * *” * will be able community to comply They stated: * * * deepest sense, hypocritical, law is is ineffective indeed it imposes if it actor who has the misfortune to confront a dilem- choice, judges prepared matic a standard that his to affirm are they comply should could with if turn to their face problem should arise. Condemnation in such case is bound to be an threat; is, however, significant ineffective what more is that it injust. any divorced from moral base and is Where would be it ‘personally socially debilitating’ accept both actor’s defense, equally debilitating as a cowardice would be it to demand legality. heroism be the standard of *16 2.09, [Model Penal Code § Comment at 7 (Tent. 10, 1960), quoting Hart, Draft No. Law,” Aims “The of the Criminal 23 Law Contemp. & Prod. 414 and n. 31 (1958) ; Jersey New Model Penal Code 2C:2-9, Commentary (1971).] § at 71
Thus, that a court limit they proposed its consideration to “stark, an accused’s “situation” to tangible factors which dif- another, ferentiate actor from the like size or strength or health,” matters age excluding temperament. sub- They stantially from the departed common existing statutory and law limitations that the requiring result be death or serious harm, that bodily the threat be immediate and at the aimed accused, or that the crime be committed a non-capital offense. While these factors would be evidential given weight,
failure of these not to one or more conditions would satisfy from the justify trial the defense judge’s withholding Code, 7-8; Penal Model Penal at New jury. supra, Code, at 71. substantially
Both the and the Attorney Prosecutor General of the approve, modifications drafters suggested by However, the model issue to be codes. would allow the they a submitted to has made only where trial jury judge "im- threshold determination that the harm threatened was us Defendant, fashion, minent.” in a refers rather cryptic to York Penal New duress, York’s definition statutory Code of coercion by (1970), requires showing §-40.00 the use or use of unlawful How- threatened imminent force. ever, immediacy he advocates to the question leaving l^y. 435-436, a above, reasons ante at se per
Eor suggested rule may immediate exclude valid claims of injury based to for whom resistance threats or by persons duress resort official not realistic. While we are hesitant protection was who fail rule which reward citizens approve would efforts, make such are that capitulation persuaded unlawful is there is excusable when only "gun demands head” of the defendant. We believe the better is to the issue to the in- course leave appropriate structions judge. identical, are not both entirely under
Although they had have his claim of duress model codes defendant Defendant’s testimony provided to the jury.12 submitted provisions significant two between the difference 12The most Model Penal as murder. The defense to treatment Jersey- defense, permits the New it while as affirmative Code murder man a crime from to- reduce allows it Penal Code provisions portions slaughter. are forth of the two set The relevant : belo w Penal Code 2.09 Model engaged in the (1) the actor It defense that is an affirmative *17 charged was an offense he coerced constitute because to conduct
Ml factual basis for a him and Leonardo threatened finding his wife with in violence he refused to assist physical if from fraudulent scheme. have found Moreover, a jury might in- Leonardo’s threats at trial that adduced testimony he asserted in defendant. Since a reasonable fear duced because the false only that he to documents agreed complete of the defense were this elements requisite apprehension, it would have the model Under code provisions, established. a whether “person been for the determine solely jury to seek have failed to in his would reasonable firmness situation” use, against of, force to do so the use a threat to unlawful or person another, person in his which a of reasonable firmness his would unable to situation have been resist. (2) provided by 'this is unavailable if the The defense Section placed recklessly himself in a situation in which actor probable was it subjected' duress. that he would be The defense negligent placing also if he in himself in such a unavailable was situation, negligence culpability suffices establish for whenever charged. the offense Penal Code 2C:2-9 Subject Section, a. Subsection b it is an affirmative engaged charged defense that the actor in the conduct to constitute of, he was or offense because coerced to do so use use, against person person unlawful threat another, force or the person in reasonable firmness his situation been would have unable to resist. provided by b. The defense this Section is if unavailable recklessly placed actor in himself a situation in which it was subjected probable that he be to duress. The also defense is negligent criminally placing if unavailable he in himself situation, negligence such a culpability whenever criminal suffices to establish charged. prosecution murder, for In the offense degree the defense is available to reduce the of the crime to manslaughter. argue Attorney Prosecutor and the General we should provision, but rather rule that duress can never be a follow neither involving a intent homicide or an to kill. See defense to crime State, 788, (1951). So. 212 Miss. 2d 441 In the cir Watson inappropriate case, modify cumstances of this we deem it to extend holdings, Dissicini Palmieri. Insofar as our those cases adhere murder, rule that duress is not defense to common law see to.the today. I, ante at reaffirm them As indicated ante Part clearly distinguishable we find this case be Dissicmi and Palmieri. *18 442
police or such cooperate, assistance refused to whether person defendant, have unlike able resist. been, law, our the common
Exercising authority to revise Creswick, have Faber v. J. we 234, (1959), 31 N. cf. Jersey. decided to as law of New adopt the approach Henceforth, shall a crime other than duress be a defense murder if the he in conduct because engaged defendant coerced unlawful of, use, to do so use 'by or threat the force another, which against person person his or the of have person of reasonable in situation would firmness been unable to resist. the of
We have followed the deliberately language Penal our holding Code in proposed stating in the trial to frame their expect judges jury charges the of pro same terms. defendant shall burden have the evidence that ducing satisfy sufficient the trial judge of may fact issue. Such appear duress evidence Fair, v. the case or that of the See State State’s defendant. Abbott, 63, N. N. State J. J. 91 (1965); Chiarello, N. 498 (App. Super. J. (1961); Evidence, McCormick, 341 at 801-802 (1972); Div. 1961); § 271. Ho (3 1940), longer Evidence ed. Wigmore, the that judicial will determination preliminary there be impend threats imminent and danger “present, of posed In the charging harm to the defendant or another. ing” however, the trial advert to this factor jury, judge should threatened, harm of well the of the immediacy, gravity as as the crime the committed, identity seriousness or resistance endangered, possibilities escape person He official assistance. for seeking and the opportunities judg standard for applicable should that the emphasize also firm reasonable “person is the the defendant’s excuse ing situation.” ness [the accused’s] instruct jury will judge the trial Finally, issue persuasion has burden aby he must establish the defense prepon and that To win an order acquittal. derance of evidence in to- M3 confusion, avoid the judge should stress prosecu- tion all must other prove elements and dis- the crime prove any defenses beyond Only reasonable doubt. if the prosecution that burden has met should the con- duress; sider the affirmative defense of at that alone point will the defendant have the burden of proving the aby of the preponderance evidence in order to prevail.
We
in
recognize
instances where the initial
burden of
in
producing evidence
of an affirmative
support
defense
been
placed
defendant,
has
the
burden of
the
the
disproving
defense
re-
beyond
doubt has
reasonable
See,
mained with the State.
e. g.,
Stein,
State v.
70
J.N.
369, 393 (1976)
Dolce,
422,
State v.
41
J.
(entrapment);
N.
432
Abbott,
(1964)
State v.
(entrapment);
36
J.
supra,
N.
at 71-72 (self-defense).
case,
In
however,
this
we think
it more
as a
appropriate
matter of public
to
policy
follow
utilized
practice
cases
insanity
and to
require
to
prove
existence
duress
aby
prepon-
derance of
Lewis,
the evidence. See State v.
47,
67 N.
48
J.
(1975);
288,
v. DiPaglia, 64 N. J.
293 (1974); State
Cordasco,
J.
2 N.
189, 196 (1949).
duress,
nature of
peculiar
focuses on the
reasonableness of
fear
the accused’s
and his actual
ability
resist unlawful demands, is
offset
completely
“per
son of reasonable firmness” standard.
idiosyn
While the
cracies of an
individual’s
cannot
temperament
excuse
inability to withstand such demands, his attributes
(age,
health, etc.) are
“situation” which
part
is
admonished to consider.
think that the admittedly
We
open-
standard,
ended nature of this
with the
for
possibility
abuse and
treatment,
uneven
justifies
the onus on the
placing
defendant to
See Note,
convince the jury.
“Justification: The
Impact
the Model Penal Code on Statutory Reform,” 75
Colum. L. Rev.
914,
and n. 9 (1975);
Morrison v.
cf.
California,
82, 88-89,
291 U. S.
IV conviction of obtain money by Defendant’s conspiracy a new false and remanded for pretenses hereby reversed trial. D., assigned, concurring A. Temporarily P. J.
Conford, I the Court’s part. agree and dissenting part its stated in opin- reversal of the conviction the reasons in the However, opin- I the announcement ion. dissent herein, retrial hereafter, ion that and presumably a defense asserting defendants in criminal as cases will be the satisfaction prove the required I evidence. preponderance regard the fact-finder *20 ultimate New law with to the change Jersey respect burden of as to affirmative defenses persuasion (except modifica- the defense of insanity) be unwarranted tion of the criminal concept Anglo-American civilized of law that it burden of the prove guilt is the the a beyond every the accused reasonable doubt criminally case. the Court second by (442, paragraph)
The cases cited that, as New rule Jersey general document the amply (duress clearly being defenses defendant one), to affirmative forward evi- with some coming the initial burden has unless such evidence in the State’s thereof, appears dence de- the burden ease, disproving ultimate the whereupon by a reasonable doubt is to be borne beyond required fense I. is both A. L. by the State. rule adhered to the This Penal Model Penal Code proposed the Code. See M. P. C. official draft 1.12 (proposed 1962) Sec. (1), (2); No. 4 Commentary, Tent. Dr. 108- (1955) pp. 113; N. J. P. C. 20:1-12 a. b. (1971) Sec. Com- (1); mentary, 35-36. In pp. the commenting upon operation of rule the the Model Penal Code cites with reporter expressly approval Professor a McCormick’s duress as listing typi- cal affirmative defense as the should not be jury permitted to if convict a they entertain reasonable doubt. Commentary, 112-113; Tent. Dr. No. and see McCormick, Evidence, id., Sec. 321 at 684 (1954); second edition, Sec. 341 at 800-802 (1972).
The Court now burden reverses the as to duress proof because of nature of the “open-ended” newly defense as reformulated Court “a by (whether of reason person able firmness in situation would been have [defendant’s] unable to coercion, resist” the p. as well as 442) pos “the for abuse and uneven treatment” sibility (supra, p. The substantive reformulation of defense of 443). duress is a in our opinion Court’s progressive step view rational jurisprudence. adopts highly Court Model Penal of the Code and the New Jer point proposed Penal However, Code I do not sey (supra, p. 442). the defense as thus reformulated as more sub regard any ject to “abuse” and “uneven treatment” than of the any self-defense, other criminal affirmative en defenses such as If or the like. the defense of trapment duress true ease is innocent as been particular having Savoie, J. free from intent. See State N. culpable 439, 455 (1975). Ordinarily defendant cannot 'be con victed unless the criminal jury beyond finds his intent doubt. Yet rule today reasonable the Court adopted to convict even if permit they entertained reasonable doubt the defendant (as person reason firmness) able had been free the coercive effect of when he committed indicted act. *21 fact that evidence of duress is within the peculiarly the defendant no justification the Court’s knowledge affirmative of all situation is more or true That less position. — defenses the standard explains why a circumstance coming the initial burden of imposes rule on the defendant forward the defense (unless with some evidence a jury is no reason to it). State’s case There believe supplies less cases affirm- capable, as compared and defenses, credibility witnesses appraising ative have no concluding and they weighing proofs accordingly untrue in a reasonable doubt that the defense is particular case. I not alter the
Eor reasons would rule existing these burden of as to the affirmative duress. defense of proof D., P. J. A. the result concurring
Conford, For reversal remandment —Chief Justice Hughes, Justices Mountain, Pashman, Sullivan, Cliffobd Judge Scheeibeb Confobd — 7.
For affirmance —Hone. SOMMER, PLAINTIFF-RESPONDENT,
ABRAHAM KRIDEL, JR., JAMES A. DEFENDANT-APPELLANT. CO., PLAINTIFF-RESPONDENT, RIVER VIEW REALTY PEROSIO, DEFENDANT-APPELLANT. CARLOS Argued June October 1976 Decided 1977.