STATE OF NEW JERSEY v. ROBERT A. DAVIES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT A. DAVIES, a/k/a BOB DABIES

and ROBERT DAVIS,

Defendant-Appellant.

______________________________

November 20, 2014

 

Argued March 19, 2014 Decided

Before Judges Grall, Waugh and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-08-1867.

Al Glimis, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Glimis, of counsel and on the brief).

Deborah A. Hay, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Ms. Hay, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

GRALL, P.J.A.D.

Defendant, Robert A. Davies, was charged with crimes involving the fatal stabbing of Lavern P. Ritch. A jury found defendant guilty of second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1); third-degree possession of a weapon, a knife, with the purpose of using it unlawfully against the person of another, which the judge instructed the jury was the unlawful purpose of killing Ritch, N.J.S.A. 2C:39-4d; and fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7a. The grand jurors had also charged defendant with murder, N.J.S.A. 2C:11-3a-b; aggravated manslaughter, N.J.S.A. 2C:11-4a(1); passion/provocation manslaughter, N.J.S.A. 2C:11-4b(2); and possessing a knife under circumstances not manifestly appropriate for its use, N.J.S.A. 2C:39-5d. On those charges, the jury found defendant not guilty.

Prior to sentencing, the judge denied defendant's motions for judgment of acquittal and a new trial. In addition, the judge determined that defendant was subject to an extended-term sentence on two grounds, a mandatory extended term for manslaughter pursuant to N.J.S.A. 2C:43-6.4e, and a discretionary extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a.

The judge sentenced defendant to twenty years' imprisonment for manslaughter, subject to periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Because the judge did not specify whether this extended-term sentence was imposed pursuant to N.J.S.A. 2C:43-6.4e or N.J.S.A. 2C:44-3a and the judgment refers to both, the basis for the extended term is not clear. For the weapons offenses, the judge imposed five years' imprisonment with thirty months' parole ineligibility for possession of a weapon with an unlawful purpose and eighteen months' imprisonment with nine months' parole ineligibility for possession of a weapon as a convicted person.

With respect to the concurrent or consecutive service of the foregoing sentences, the judgment of conviction is not consistent with the sentence pronounced in court. At the time of sentencing, the judge determined that defendant's two longest terms of incarceration for manslaughter and possession of a weapon for an unlawful purpose were concurrent and the sentence for the other weapons offense was consecutive. The judgment of conviction, however, provides that the sentences for the weapons offenses are concurrent and the twenty years' imprisonment for manslaughter is consecutive to the eighteen months' imprisonment for possession of weapon as a convicted person. The aggregate sentence stated on the judgment is twenty-one years' and six months' imprisonment.

I

At defendant's request and with the judge's approval, defendant represented himself with the assistance of stand-by counsel until the State's case was nearing completion. At that point, defendant, expressing his dissatisfaction with the quality of his cross-examination of a witness and noting his exhaustion, asked the judge to permit his stand-by counsel to take over. Accordingly, defendant was represented by stand-by counsel during the remainder of the State's case through sentencing.

The evidence presented at trial disclosed these facts. Defendant stabbed Ritch in public in Margate during the early morning hours on August 12, 2007. There was no evidence that defendant, who was living in Wildwood, and Ritch, who was living in Wales and visiting friends in the United States, ever had any contact before Ritch touched defendant on the shoulder and defendant turned and stabbed him.

When Ritch touched defendant, defendant was chasing Mr. Chavez, who had just knocked defendant to the ground with a punch he landed as defendant was walking in public. The State and the defense assumed that Ritch, who was in a position to see the assault, ran across the street and caught up to defendant intending to help. At least two of Chavez's friends were behind Ritch when he approached defendant.

The State's theory was that defendant killed Ritch out of rage. The theory of the defense, as laid out by defendant in his opening statement to the jury, was that he stabbed Ritch reasonably believing that he was defending himself against an immediate threat posed by a gang of "illegal alien Mexicans." Defendant explained that Chavez was "seething with anger, filled with frustration and rage" after he encountered defendant in the restroom of a bar in Margate. After that incident, Chavez and his friends stood together in the bar "getting drunk" and making a plan "to hunt [defendant] down and attack" him.

On the day in question, Chavez and three of his co-workers Mr. Torres, Mr. Gonzalez and Mr. Vu left work at a restaurant shortly after 1:00 a.m. and stopped at a nearby bar intending to share a cab later. All of them but Vu, who was under age and waited outside, went into the bar. By Chavez's account, he and his co-workers were there about forty minutes before he went to the restroom. Defendant and a Mexican Chavez did not know were inside. Defendant asked Chavez if he was from Mexico, and Chavez told him he was. Defendant told Chavez that even though Chavez spoke English, this was not his country and he should leave. As Chavez left the restroom, defendant called him an "asshole."

Admittedly angry, Chavez told Gonzalez and complained to the bar's cook, Mr. Oblea, about defendant's remarks. According to Oblea, Chavez told him that defendant had said something "racist" and asked Oblea to have defendant kicked out of the bar. Oblea pointed defendant out to another employee, and when he did, defendant left through the bar's back door. Gonzalez and Torres left through the same door, according to them, to wait for a cab. Defendant walked outside from the rear of the bar and around to the front, and Gonzalez and Torres took the same route. Gonzalez was talking on his cellphone as he walked.

When defendant reached and walked by the front of the bar, he passed Chavez without incident. By Chavez's account, he was still there because he was waiting for a cab. When Gonzalez arrived, he pointed defendant out to Chavez. Chavez then followed defendant. When Chavez reached defendant, he punched him in the face with enough force to cause defendant to fall to the ground on his hands and knees. Defendant's hat and eyeglasses fell off and he had a bleeding cut near his eye. Nevertheless, defendant was able to get up. When he did, he pursued Chavez, who had turned around and was walking back toward the bar. Gonzalez, who had walked on the opposite side of the street following Chavez out of curiosity and thinking a fight was probable, saw Chavez punch defendant and defendant's fall and subsequent pursuit of Chavez.

Gonzalez yelled to Chavez, warning that defendant was right behind him. According to Gonzalez, defendant was reaching to his right side as he pursued Chavez. Torres also saw defendant following Chavez, and by his account defendant's hand was near or in his waistband. In response to the warning from Gonzalez, Chavez started running.

As Chavez ran away, he passed Mr. Ulrich. Ulrich, who had been in an outdoor area of the bar, was at his car. As Chavez passed Ulrich, Chavez was shaking his head and saying he had to catch a bus.

Meanwhile Gonzalez, still near the place where Chavez punched defendant, noticed Ritch. Gonzalez described Ritch as a light-skinned man whom Gonzalez thought might be an African American. According to Gonzalez, Ritch ran across the street and after defendant. Ritch was running "really fast" and Gonzalez, Torres and Vu followed him. Gonzalez saw Ritch catch up to defendant and touch his left shoulder.

According to Gonzalez's testimony, when defendant turned in response to Ritch's touch, Ritch put his hands up and said, "I'm just trying to help." Gonzalez's testimony about the timing of Ritch's gesture and remark deviated from two prior statements he had given to the police, and defendant used those statements to impeach Gonzalez. In one of the statements, Gonzalez did not mention Ritch's profession or demonstration of benign intent, and in the other statement, he indicated that Ritch announced and demonstrated his intention after defendant punched him.

Ulrich was still at his car in the place where Chavez had passed when he heard Ritch say he was just trying to help and turned to see defendant punching Ritch. Torres saw Ritch raise his hands before defendant came around with his right arm and hit Ritch in the stomach. Gonzalez did not see defendant use a knife and, based on the sound when defendant landed the blow, surmised that defendant punched Ritch. After striking Ritch, defendant ran after Chavez.

Gonzalez went to Ritch's side, and Ritch told Gonzalez that he thought he had been stabbed. At that point, Gonzalez noticed the blood confirming that Ritch was right. The knife penetrated a rib and the right ventricle of Ritch's heart, and it was the cause of his death. The knife was never found.

After defendant resumed his pursuit of Chavez, Chavez ran by a young man who asked him what was going on. Chavez told him he had to catch a bus. After Chavez passed, defendant, breathing heavily, looking exhausted and having a wound on his head, approached the same man, who asked defendant what was going on. Defendant said, "a Mexican snuck me."

In addition to the foregoing testimony, the State and the defense played videos taken by surveillance cameras in the area that depicted some, but not all of the events. Because investigators were unable to locate anyone who knew defendant's identity, the county prosecutor had images of defendant secured from the surveillance tapes broadcasted on television. After the broadcasts, defendant turned himself in.

The only witness for the defense was an investigator employed by the public defender. He testified to the various distances between the places where the events occurred.

In summation, the assistant prosecutor submitted that defendant murdered Ritch, because he was angry about having been ejected from the bar at the behest of a Mexican and wanted to kill Chavez or another Mexican. Defense counsel urged the jurors to consider the circumstances: defendant had just been knocked down and wounded by a punch from Chavez; was exhausted from running; and Ritch and Chavez's companions were running behind and toward him. Defendant's attorney contended that defendant could not have known who was behind him or what their intentions were. Defense counsel submitted that defendant was acting in self-defense and in reasonable fear of death or serious bodily injury when he used his knife to stab Ritch after Ritch touched his shoulder.

II

Defendant's attorney raises these issues in the opening brief on appeal

I. THE COURT'S CHARGE ON THE "FAILURE TO

RETREAT" PORTION OF THE SELF-DEFENSE CHARGE FAILED TO ADDRESS THE FACTS OF THIS CASE, PRECLUDED THE JURY FROM CONSIDERING SELF-DEFENSE AND DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).

II. DEFENDANT WAS DENIED A FAIR TRIAL WHEN

THE PROSECUTOR ARGUED IN SUMMATION THAT DEFENDANT WAS GUILTY OF INTENDING TO KILL CHAVEZ. (U.S. CONST., AMEND. XIV, N.J. CONST. (1947) ART. I, PAR. 1). (Not Raised Below).

A. Introduction.

B. The Prosecutor's Remarks In Summation Deprived Davies Of His Right To Indictment By Grand Jury And Due Process. (U.S. CONST., Amends. V, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 8). (Not Raised Below).

C. The Court Below Erred By Denying The State's Request To Charge "Reckless Or Negligent Injury Or Risk Of Injury To Innocent Persons," pursuant to N.J.S.A. 2C:3-9c And By Instructing The Jury That "If the Defendant Intended To Do Harm To Another Person, Then He Is Responsible For The Injuries To The Unintended Victim." Once The Prosecutor Argued In Summation That Davies Intended To Kill Chavez Or Any Other Mexican, The Court Was Clearly Obliged To Charge The Jury Pursuant to N.J.S.A. 2C:3-9c. (Partially Raised Below).

D. Since The State Advanced Different Theories Of Culpability For Reckless Manslaughter and Possession of a Weapon For An Unlawful Purpose, Based on Different Actions And Different Victims, The Trial Court Should Have Instructed The Jurors That To Convict They Had To Unanimously Agree As To Which Specific Criminal Acts Were Committed. The Absence Of A Unanimity Instruction Violated Defendant's Constitutional Right to Due Process (U.S. CONST. Amends. VI & XIV; N.J. CONST. (1947) Art. I, Pars. 1, 9). (Not Raised Below).

III. THE COURT MISHANDLED THE BIFURCATED

TRIAL ON THE "CERTAIN PERSONS" CHARGE AND THE CONVICTION MUST BE REVERSED. (NOT RAISED BELOW).

IV. THE PROSECUTION OF DEFENDANT FOR

POSSESSION OF A WEAPON AFTER HIS ACQUITTAL FOR UNLAWFUL POSSESSION OF THE SAME WEAPON WAS PRECLUDED BY THE DOCTRINE OF COLLATERAL ESTOPPEL. ACCORDINGLY, THE CONVICTION MUST BE VACATED. U.S. CONST., AMENDS. V, XIV; N.J. CONST. (1947) Art. I, Par. 11. (Not Raised Below).

V. BECAUSE DEFENDANT WAS NOT SERVING A

SENTENCE OF PAROLE SUPERVISION FOR LIFE, THE COURT'S IMPOSITION OF AN EXTENDED TERM SENTENCE PURSUANT TO N.J.S.A. 2C:43-6.4[e] IS BOTH ILLEGAL AND UNCONSTITUTIONAL.

A. Defendant Was Not on Parole Supervision For Life.

B. Defendant's Sentence Was Imposed In

Violation Of the Ex Post Facto Clauses of the State and Federal Constitutions.

VI. THE TRIAL WAS SO INFECTED WITH ERROR

THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED MR. DAVIES A FAIR TRIAL. (Not Raised Below).

VII. DEFENDANT'[S] SENTENCE IS EXCESSIVE.

Defendant filed a pro se supplemental brief elaborating on his attorney's arguments and raising additional points

I. (raised below)

Cumulative effect of multiple errors in

the court[']s charge of the jury

deprived defendant of a fair trial. U.S. Const. Amends. 5, 6, 14; N.J. Const. (1947) Art. I, pars. 1, 8, 9, 10, 11.

a) the court failed/refused to instruct on all lesser-included and/or related assault/possessory offenses.

b) the court delivered an egregiously incorrect charge on causation.

c) the court delivered an erroneous charge on the right to "infer" an unlawful purpose.

d) the court delivered an incorrect definition of "reasonable belief."

e) the court failed/refused to instruct on the Duress and Necessity defenses.

f) the court delivered a prejudicial instruction linking the right of self-defense to the existence of elements in a lesser-included homicide offense.

II. (raised below)

Supplemental argument augmenting

assigned counsel's brief on defendant's behalf under Points I and II (a), (b) and (d) of that brief.

a) the trial court failed to deliver instructions on the exception to the duty to retreat rule applying to the facts.

b) the court's charge combined with the State's summation deprived defendant of a fair trial and led to his conviction based upon conduct not included in the indictment and in violation of the rule against duplicity.

III. (raised below)

The trial court entered an erroneous

judgment of conviction on count six (possession of a weapon by a previously convicted person, N.J.S.A. 2C:39-7, 4th degree).

a) the State failed to prove defendant possessed a "weapon" and, therefore, that defendant violated N.J.S.A. 2C:39-7.

b) by improperly invoking the collateral estoppel doctrine in declaring defendant's guilt on count six[,] the court violated defendant's fundamental right to trial and his right to due process of law.

IV. (not raised below)

The trial court's tactic of going into

chambers to conduct the charge conference off-the-record, outside presence of defendant and in violation of court rules[,] violated defendant's fundamental right to understand what is occurring at trial.

V. (not raised below)

The State's attorney's summation

accusing defendant of being some type of racist hate-monger deprived defendant of a fair trial.

VI. (raised below)

The trial court imposed an outrageously

excessive sentence which shocks the judicial conscience.

a) the sentence imposed violates defendant's right to be free from double jeopardy and his right to equal protections under the law.

b) the trial court erroneously double, triple and quadruple-counted defendant's previous conviction under N.J.S.A. 2C:24-4a to impose both mandatory and discretionary extended-term sentences related to counts three and six.

Defendant also filed a pro se supplemental reply brief responding to the State's brief in opposition to his appeal.

For the reasons that follow, we conclude that there is no error requiring a reversal of any conviction. We further conclude that a remand is necessary for merger of defendant's convictions for manslaughter and possession of a weapon with an unlawful purpose, identification of the basis for the extended-term sentence and reconsideration of the consecutive sentences for possession of a weapon by a convicted person and manslaughter in light of pertinent factors not addressed.

III

This part of the opinion covers the multiple claims of error in the jury instructions. With the exception of the charge on transferred intent, to which defendant's attorney objected as unnecessary, these claims of error are raised for the first time on appeal.1 Review of errors in a jury instruction not raised at the time is for plain error. R. 2:10-2. Error in a jury instruction is "plain" only where "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant [is] sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)); accord State v. Singleton, 211 N.J. 157, 182-83 (2012).

Our determination does not rest on distinctions between plain and harmless error. Where there is error in a jury instruction material to the jury's deliberations on guilt such as an element of a crime charged or a defense to the charge the error implicates the State's obligation under the State and Federal Constitution to prove guilt beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); State v. Delibero, 149 N.J. 90, 99-100 (1997). Accordingly, reversal is required when such instructional error raises a reasonable doubt about the resulting verdict. State v. Castagna, 187 N.J. 293, 312 (2006) (discussing Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967)); State v. Macon, 57 N.J. 325, 335-36 (1971) (discussing the standards for harmless error in New Jersey and federal constitutional error). Our courts have long-recognized that

Appropriate and proper charges to a jury are essential for a fair trial. It is at this point in the trial before the jury retires to deliberate and resolve the factual issues that the trial court should explain to the jury in an understandable fashion its function in relation to the legal issues involved.

[State v. Green, 86 N.J. 281, 287 (1981) (internal citations omitted).]

We reject defendant's claims of error, because, with respect to every charge on which the jury found defendant guilty, the jury instructions to which he objects were proper. Read as whole, those instructions clearly conveyed the essential elements of every crime the State was required to prove beyond a reasonable doubt and all of the elements of self-defense implicated by the evidence that the State was required to disprove beyond a reasonable doubt in order to obtain the guilty verdicts the jury returned. See Singleton, supra, 211 N.J. at 181-82 (discussing principles pertaining to review of jury instructions); Green, supra, 86 N.J. at 287-88 (same); see also State v. Bowens, 108 N.J. 622, 628-29 (1987) (setting forth the general principles of self-defense and explaining the relevance of an exercise of self-defense based on an unreasonable belief to passion provocation and reckless manslaughter).

We decline to consider claims of error that pertain only to the instructions on crimes for which defendant was acquitted. Because of the acquittals, those errors could not have been prejudicial to defendant. Accordingly, any error was harmless.

A2

Appellate counsel urges reversal of defendant's conviction based on the absence of a reference to the facts of the case in the jury instruction on the "'failure to retreat' portion of the self-defense instruction." Counsel contends that "[g]iven the complex nature of the self-defense charge and the unusual facts of this case, the [judge's] failure to apply the facts to the law denied defendant a fair trial" in violation of the Federal and State Constitution.

As the State argues and appellate counsel acknowledges, instructions must be tailored with reference to the evidence if a "statement of the relevant law, when divorced from the facts" is "potentially confusing or misleading to the jury." State v. Robinson, 165 N.J. 32, 42 (2000). In this case, no basis for such confusion is apparent.

When defendant resorted to the use of deadly force, Chavez, the man who had punched him in the face, had run away; Ritch and Chavez's companions had pursued defendant; and Ritch had caught up to defendant and touched his shoulder. In addition, there was conflicting testimony as to whether Ritch announced his intent to help defendant before or after defendant stabbed him. The retreat rule was implicated.

Self-defense is available as a defense to a crime involving the "use of force upon or toward another person . . . when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-4a. But "[t]he use of deadly force is not justifiable . . . unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm." N.J.S.A. 2C:3-4b(2).

The retreat rule is one of several limitations on that broad license to defend oneself with "deadly force" against "death or serious bodily harm." Ibid. It limits the use of deadly force outside, but not inside, the defender's dwelling unless one using deadly force in his own dwelling was the initial aggressor, in which case the retreat rule applies. N.J.S.A. 2C:3-4b(2)(b)(i). Nor does the retreat rule apply to require an officer, a person assisting an officer or a person justified in making an arrest or preventing an escape to retreat by abandoning that endeavor. N.J.S.A. 2C:3-4b(2)(b)(ii).

The application of the retreat rule to the foregoing evidence was neither confusing nor complex. The events took place in a public place and no exemptions from the rule applied. If defendant reasonably believed that use of deadly force was immediately necessary to protect himself against what he reasonably believed was a threat of "death or serious bodily harm," he did not have to retreat unless he knew he could avoid death or serious bodily injury "with complete safety by retreating." N.J.S.A. 2C:3-4b(2)(b).

The pertinent facts were obvious, and defense counsel argued them well in his closing. Defendant's appellate counsel contends that the judge "should have charged the jury that they must consider the fact that [defendant] knew that Chavez, the man he was chasing, was not alone; that he had friends." He further claims that the judge "should also have instructed the jury that [defendant] had run over 220 yards (or about 670 feet) and was out of breath when approached by Ritch." As phrased by appellate counsel, the proffered explanation contains conclusions about the facts and the credibility of the witnesses that the jury had to resolve, not the judge. Moreover, the pertinence of the underlying facts permitting the inferences appellate counsel suggests was so apparent that the judge's decision to refrain from bringing those facts to the attention of the jurors was not error. The evidence indicating that Ritch deemed it necessary to make his benign intention clear to defendant dramatically highlighted the ambiguity inherent in the circumstances of defendant's encounter with Ritch. On the arguments presented, we cannot conclude that the judge erred by not including a reference to the evidence in the instruction on the retreat rule.

In his pro se supplemental brief, defendant claims that the judge erred in not instructing the jury on the exception to the retreat rule codified in N.J.S.A. 2C:3-4b(2)(b)(ii). The claim has no merit. As previously noted, that provision applies only to persons making arrests or preventing escapes. It had no relevance here. An instruction on this point of law not implicated by the evidence was unnecessary.

Appellate counsel and defendant argue that the evidence in this case required a special instruction on N.J.S.A. 2C:3-9c. This statutory provision actually operates to narrow the scope of self-defense. N.J.S.A. 2C:3-9c provides

When the actor is justified under sections 2C:3-3 to 2C:3-8 in using force upon or toward the person of another but he recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for such recklessness or negligence towards innocent persons.

In effect, this provision makes it clear that even where a defendant's use of force against the aggressor would be wholly justified, the defense is not available to a defendant who has recklessly or negligently injured a person other than the one posing the threat of harm. Ibid. In short, delivery of an instruction on this point of law could not have redounded to defendant's benefit.

Omission of an instruction on this point of law was entirely proper where the question was whether defendant reasonably believed that the person whom he stabbed posed an immediate threat of serious bodily harm that he did not know he could avoid by retreat. In any event, defendant who was acquitted of murder and aggravated manslaughter and convicted of reckless manslaughter, could not have been prejudiced by its omission. The identity of the person posing the threat was immaterial to the defense.

In defendant's pro se supplemental brief, he raises additional objections to the self-defense instruction as it relates to the homicide crimes submitted to the jury. To the extent that we understand the arguments, they concern the reasonable belief requirement essential to a claim of self-defense and defendant's objection to the use of the term reckless in defining reasonable belief, which is an element of reckless homicide.

Reference to recklessness and negligence is essential to an understanding of a reasonable belief. Defendant's arguments on this point are based on his misunderstanding of the Code and the Supreme Court's decision in State v. Bowens, 108 N.J. 622, 626-37 (1987) abrogated on the question of merger only in State v. Tate, 216 N.J. 300, 312 (2013).

As defined in N.J.S.A. 2C:1-14, which provides definitions of terms that apply throughout the Code "unless a different meaning is plainly required," the term "'[r]easonably believes' or 'reasonable belief' designates a belief the holding of which does not make the actor reckless or criminally negligent[.]" N.J.S.A. 2C:1-14j. Thus, recklessness and negligence pertinent to the defendant's belief are always relevant when self-defense is raised.

Defendant contends that an honest belief cannot be unreasonable. But the honesty of a belief depends on nothing other than what the actor in fact believes. In contrast, the question whether a belief is reasonable or unreasonable depends on whether the actor is reckless or negligent in believing what he honestly believes. The questions are different. Under the Code's formulation of self-defense, an honest and mistaken belief can support a claim of self-defense, but that is so only if the honest but mistaken belief is not recklessly or negligently held.

Stated in terms of the State's burden of proof to disprove a claim of self-defense, the State must prove that defendant's belief in the existence of conditions justifying the force or the amount of force the defendant used to repel the threat was unreasonable that is, that the belief was either recklessly or negligently held. If the State proves the unreasonableness of the belief under that standard, then self-defense is out of the case.

In that circumstance, the evidence establishing an honest but unreasonable belief in the necessity for using defensive force may establish passion/provocation, which mitigates murder to manslaughter, N.J.S.A. 2C:11-4b(2). Or such evidence may negate that is, cast a reasonable doubt upon the adequacy of the State's proof of the purpose or knowledge required for a murder conviction, N.J.S.A. 2C:11-3a(1)-(2), and still permit a finding of the recklessness that is required for a conviction of aggravated or reckless manslaughter, N.J.S.A. 2C:11-4a(1), b(1). See Bowens, supra, 108 N.J. at 632-35. As the Supreme Court has concluded, "in many cases the issues of the reasonableness of the defendant's conduct presented to the jury in defense of the substantive crimes charged will have relevance to the essential elements of the homicidal act: whether it was the actor's conscious object to inflict deadly force, whether death was almost certain to follow, or whether the act was done recklessly or with reasonable provocation." Id. at 634.

Having considered the arguments defendant presents in his supplemental brief implicating the objective and subjective components of the "reasonable belief" requirements applicable to self-defense and their relationship to the crimes charged, we conclude that they have insufficient merit to warrant any additional discussion. R. 2:11-3(e)(2).

B3

We turn to consider claims of error raised by defendant concerning the jury instruction on the "unlawful purpose" element of N.J.S.A. 2C:39-4d. Defendant's claim is sufficiently significant to warrant an explanation for our conclusion that it is wholly lacking in merit. The explanation is that the claim is not supported by the record.

In pertinent part, the judge gave the jurors the following direction

If you find that the Defendant had a lawful purpose, for example, to use the knife to protect himself or another against the use of unlawful force or protect his property, if you have a reasonable doubt as to the Defendant's purpose, then the State has failed to carry its burden of proof on this element, beyond a reasonable doubt.

I instruct you that for purposes of this offense, if the Defendant honestly believed that he needed to use the knife to protect himself, the law does not require that this belief be reasonable. In other words, if the Defendant had an honest and unreasonable belief he needed to use the weapon to protect himself, this negates the purposeful mental state required for this offense.

This instruction gives no reason for doubt or concern about whether the jury would have concluded under this instruction, as defendant argues, that defendant could be guilty of this crime even if his purpose in possessing the knife was to use it in lawful self-defense. The instruction is a proper application of the legal principle made clear in Bowens that evidence relevant to self-defense may negate an element of a crime. Bowens, supra, 108 N.J. at 632-34.

Defendant's argument seems to assume that the jury acquitted him of murder, passion/provocation manslaughter and aggravated manslaughter, because the jury found he acted in self-defense and that he was convicted of reckless manslaughter and other crimes. But that assumption is wholly unwarranted. The suddenness of Ritch's approach following the unexpected punch from Chavez, could well have led the jury to conclude that the State failed to prove that defendant caused Ritch's death purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to human life.

C

Defendant has several other claims of error in the jury instruction none of which require extended discussion. We address them here.4

In Point I a of his pro se supplemental brief defendant argues that the judge erred in not giving the jury instruction, sua sponte, on lesser-included and lesser-related crimes various forms of assault and unspecified possessory offenses. In Point 1 e, he argues that the judge erred in not given the jury instruction, sua sponte, on the defenses of necessity and duress.

Absent a request, an instruction on lesser offenses and defenses is not required unless the lesser offense or the defense is clearly indicated by the evidence. See State v. Walker, 203 N.J. 73, 86-87, 89 (2010) (discussing the cases); see, e.g., State v. R.T., 205 N.J. 493, 509 (2011). None of these were clearly indicated by the evidence. First, there was no evidence of any assault other than the one that caused Ritch's death. Second, as a matter of law, the necessity defense does not apply where a specific justification such as self-defense applies, N.J.S.A. 2C:3-2b. Third, the defense of duress is available only where the defendant is "coerced" to "engage in the conduct charged to constitute [the] offense"; it has no relevance to an offense involving the unreasonable use of force to defend oneself, N.J.S.A. 2C:2-9a.

Defendant also contends, in Point I b, that the judge's charge on causation relevant to manslaughter was flawed. Defendant is correct that in referring the jurors to the charge on causation for murder, the judge mistakenly incorporated the instruction explaining causation where the offense requires proof that the defendant caused a result purposely or knowingly, N.J.S.A. 2C:2-3b, instead of causation where the offense requires proof the defendant caused the result recklessly or criminally negligently, N.J.S.A. 2C:2-3c. But the effect of this error was to require the State to prove the more demanding requirements applicable to causation in murder cases. Accordingly, the error redounded to defendant's benefit and was not capable of prejudicing the outcome.

Based on an argument made in the State's summation and an instruction of transferred intent included in the jury instruction on murder only, appellate counsel argues that the judge erred in failing to include a special charge requiring unanimity. A special instruction on unanimity, by which we mean one beyond the general model charge covering the point that was given in this case, is required "'in cases where there is a danger of a fragmented verdict.'" State v. Parker, 124 N.J. 628, 637 (1991) (quoting United States v. North, 910 F.2d 843, 875 (D.C. Cir.) (North I), vacated in part and rev'd in part on rehearing, 920 F.2d 940 (D.C. Cir. 1990) (North II), cert. denied, 500 U.S. 941, 111 S. Ct. 2235, 114 L. Ed. 2d 477 (1991)), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992). Such a possibility exists, for example, where "the state [has] proffered two entirely distinct factual scenarios to support" a conviction. State v. Frisby, 174 N.J. 583, 599 (2002).

This argument is premised on passages in the assistant prosecutor's argument. Appellate counsel relies on portions of the prosecutor's summation that he summarizes as follows

[Defendant] intended to use the knife against a person not named in the indictment, Chavez, and further, that [defendant] intended to kill Chavez or any other Mexican, but mistakenly killed Ritch thinking he was Mexican. The prosecutor stated: "Bob Davies was going to kill a Mexican that night and that guy was close enough. Probably did think this was a Mexican."

The foregoing comments have nothing to do with the crimes that defendant argues called for an unanimity instruction they pertained to murder. With respect to possession of the knife with an unlawful purpose and manslaughter, the State's only theory concerned Ritch. In instructing the jury on possession of the knife with an unlawful purpose, the judge gave the general broad charge on that crime, but in discussing the "unlawful purpose element" the judge directed: "In this case the State contends that [d]efendant's unlawful purpose in possessing the weapon was to cause the death of Lavern Ritch." Moreover, in instructing the jury on manslaughter the judge read the charge returned by the grand jurors which charged nothing other than that defendant recklessly caused the death of Ritch.

Given the instructions and the manslaughter charged, there was no need or reason for a special charge on unanimity. The arguments warrant no additional discussion. R. 2:11-3(e)(2).

IV

Turning from the arguments based on the jury instructions, we address the remaining arguments.5 After giving them full

consideration in light of the record and controlling legal principles, we have concluded that they have insufficient merit to warrant any discussion in a written opinion beyond the brief explanations that follow.

Defendant's claimed entitlement to relief based on violation of his right to indictment is based on the prosecutor's argument in summation and an instruction on transferred intent that was limited to the murder charge. The reasons for our rejection of this claim are the same as those we have previously given for concluding that a charge on unanimity was not required. The jury instructions simply did not permit a conviction based on defendant's killing or possessing a knife with intent to kill anyone other than Ritch.

We also reject appellate counsel's claim that the prosecutor's closing argument provides a basis for reversal of a conviction. That relief is warranted only when the argument was "'so egregious that it deprived [the] defendant of a fair trial.'" State v. DiFrisco, 137 N.J. 434, 474 (1994) (quoting State v. Pennington, 119 N.J. 547, 575 (1990)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). "Generally, if counsel did not object, the remarks will not be deemed prejudicial." State v. Josephs, 174 N.J. 44, 124 (2002). Here there was no objection. Appellate counsel's argument rests on his summary of the prosecutor's summation previously quoted and its capacity to prejudice defendant on the charge of possession of a knife with an unlawful purpose. Any prejudice was cured by the judge's instruction limiting the juror's consideration to whether defendant possessed the knife with a purpose to kill Ritch.

In his pro se supplemental brief, defendant, focusing on the same passage of the summation as his attorney does, argues that the prosecutor's argument was egregious because it painted defendant as a racist and invited a conviction on that basis. While the argument may have come close to or crossed the "line that separates forceful from impermissible closing argument," State v. Rose, 112 N.J. 454, 518 (1988), viewed in the context of the trial and defendant's opening statement addressing the national origins of Chavez and his companions and their concoction of a plan to hunt him down, we cannot conclude that is was sufficiently "egregious" to deprive defendant of a fair trial.

We reject defendant's claims of error related to the bifurcated bench trial on the charge of possession of a weapon by a convicted person for the following reasons.

The crime of possession of a weapon by a convicted person prohibits "any person previously convicted of certain designated offenses from possessing a weapon. [And, the] term 'weapon' is defined in N.J.S.A. 2C:39-1r as including 'anything readily capable of lethal use or of inflicting serious bodily injury.'" State v. Jones, 198 N.J. Super. 553, 556 (App. Div. 1985).

The judge, having heard the evidence presented at trial and having considered the evidence the prosecutor presented to establish defendant's prior convictions, made findings of fact on the elements of the crime that are amply supported by the record and binding on appeal. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). Defendant's conviction for this crime does not violate any principle of collateral estoppel. The judge did not rely on the jury's determination that defendant was guilty of possessing a weapon with the purpose of using it unlawfully against Ritch to establish Ritch's possession of a knife. Moreover, the jury's acquittal of defendant for possessing a knife under circumstances not manifestly appropriate for its use by no means prevented his conviction for a possession of a weapon by a convicted person. It is simply wrong to contend that the jury determined the State failed to prove that defendant possessed a weapon. The jury convicted defendant of possessing a knife with the purpose of using it unlawfully against the person who tapped him on the shoulder, Ritch, and the jury acquitted defendant of possessing a weapon under circumstances not manifestly appropriate for its use.

We reject defendant's claim that reversal of his conviction for possession of a weapon as a convicted person is required because the judge did not ask if he wanted to testify. Defendant, who had waived the right to testify before the jury, and who was represented by counsel in the bifurcated proceeding, did not even suggest that he wished to testify. Without question, the better practice would have been to inquire about defendant's interest in testifying at the bench trial. State v. Ball, 381 N.J. Super. 545, 556-57 (App. Div. 2005). Moreover, it is clear that defendant's waiver of the right to testify at the jury trial was not a waiver of his right to testify at the bench trial that followed. State v. Lopez, 417 N.J. Super. 34, 40 (App. Div. 2010), certif. denied 205 N.J. 520 (2011). "We have previously held, however, that when a defendant is represented by counsel, the court need not engage in a voir dire on the record to establish defendant's waiver." Ball, supra, 381 N.J. Super. at 556; State v. Bogus, 223 N.J. Super. 409, 424 (App. Div.), certif. denied, 111 N.J. 567 (1988).

Here, defendant was unquestionably aware of his right to testify and was represented by counsel at the bench trial. There was no mention of any testimony. We have reversed a conviction where a judge precluded defendant from testifying at a second trial on the ground that defendant had waived it at the first. Lopez, supra, 417 N.J. Super. at 40-41. That is not what happened here, and we decline to extend Lopez to the facts of this case.

V

For the reasons set forth in Parts III and IV of this opinion, we affirm defendant's convictions. There is no error affecting any conviction and for that reason no cause to consider the cumulative impact of the errors.

VI

We turn to consider defendant's objection to his sentence. As noted at the outset of this opinion, we have concluded that a remand for merger and resentencing is required.

Merger of defendant's conviction for possession of a weapon for an unlawful purpose is required because the judge's instruction to the jury, as he acknowledged at sentencing, limited the jury to considering the single unlawful purpose the State alleged purpose to use the knife to kill Ritch. As the Supreme Court recently indicated in abrogating the merger analysis applied in Bowens in favor of the analysis in State v. Diaz, 144 N.J. 628 (1996), "Diaz is clear: 'When the jury is explicitly instructed that the unlawful purpose was to use the gun against the victim of the substantive offense . . . merger is required notwithstanding that the evidence was sufficient to support a separate unlawful purpose.'" Tate, supra, 216 N.J. at 313. As merger is required, no sentence may be imposed for this crime.

Remand is also required for reconsideration of the consecutive sentence imposed for possession of a weapon by a convicted person. As the Court recently explained in State v. Miller, 205 N.J. 109, 128-29 (2011), this court should not infer that a judge has considered all of the factors pertinent to the exercise of the judge's discretion to impose sentences to run concurrently or consecutively. Those factors are set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

There are multiple factors that should be considered

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

. . . .

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

. . . and

(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.

[Miller, supra, 205 N.J. at 128 (quoting Yarbough, supra, 100 N.J. at 643-44); cf. N.J.S.A. 2C:44-5b(2) (amended by L. 1993, c. 223 to provide that "there shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses").]

The judge addressed only factors (1) and 3(a), noting that there should be no free crimes and that defendant's decision to arm himself with the knife was completed with that action and independent of the events that followed. The judge did not address several of the factors implicated by the evidence and tending to favor concurrent sentences specifically, 3 (b), (d) and (e). With respect to the independent crimes, there was testimony that defendant was reaching to his side or waistband while chasing Chavez and before Ritch intervened, but no evidence that he removed it from the place it was concealed before he turned on Ritch or that he threatened to use it against anyone else. Accordingly, we remand for reconsideration of the consecutive sentences for this crime in light of the several Yarbough factors implicated but not addressed.

Finally, a remand is required because the basis upon which the judge imposed an extended-term sentence is not at all clear. The record of the sentencing proceeding and the judgment of conviction both refer to two extended-term statutes N.J.S.A. 2C:44-3a, the persistent offender extended term, and N.J.S.A. 2C:43-6.4e, the extended term applicable to a person convicted while serving a special sentence of parole supervision for life pursuant to N.J.S.A. 2C:43-6.4. It is now clear that a defendant may not be sentenced to a discretionary and a mandatory extended term of parole ineligibility. State v. Robinson, 217 N.J. 594, 610 (2014).

Even if defendant received only one extended term, the basis for its imposition is important. Defendant argues that the extended term specified in N.J.S.A. 2C:43-6.4e, which is applicable to "[a] person who, while serving a special sentence of parole supervision for life imposed pursuant to this section, commits" one of several enumerated crimes. Prior to its amendment by L. 2003, c. 267, 1, this section applied to "[a] person who, while serving a special sentence of community supervision imposed pursuant to [N.J.S.A. 2C:43-6.4]," committed a designated crime. L. 1994, c. 130, 2. Defendant's qualifying crime was committed in 2000, thus he was serving a special sentence of community supervision when he committed this crime. Under current law, the extended term mandated by N.J.S.A. 2C:43-6.4e for a person convicted of an enumerated crime committed while serving a special sentence of "parole" supervision "shall . . . be served in its entirety prior to the person's resumption of the term of parole supervision for life." The extended term applicable prior to the 2003 amendment did not include any specifications addressing release. L. 1994, c. 130, 2.

The State argues that N.J.S.A. 2C:43-6.4e, as presently written, applies to persons sentenced to special community and special parole supervision. We disagree. Several subsections of N.J.S.A. 2C:43-6.4 refer to special terms of community supervision and special terms of parole supervision. See, e.g., N.J.S.A. 2C:43-6.4a, d. Others, like subsection e, refer only to one type of special supervision. N.J.S.A. 2C:43-6.4b, c, f. Because N.J.S.A. 2C:43-6.4 is a penal statute, its terms should not be expanded to impose more stringent sentences on persons not included within the class plainly described by the statute's terms. State v. Williams, 218 N.J. 576, 586 (2014) (discussing the Court's strict construction of penal statutes). Thus, as a matter of statutory interpretation, we conclude that a defendant who committed a crime while serving a sentence of community supervision imposed prior to the effective date of the 2003 amendments to N.J.S.A. 2C:43-6.4e, is subject to an extended term as provided in L. 1994, c. 130, 2. Our interpretation of the statute makes it unnecessary to consider defendant's contention that sentencing for a new crime under N.J.S.A. 2C:43-6.4e as amended would be in violation of the Ex Post Facto Clause. Defendant's claim that the imposition of the extended term would deprive him of any protection afforded by the double jeopardy clause requires no discussion. R. 2:11-3(e)(2).

On remand, the judge should identify the basis for the extended term imposed and resentence accordingly and in conformity with State v. Pierce, 188 N.J. 155, 170 (2006). The remand is not limited to an enhanced statement of reasons, but contemplates a resentencing of defendant "as he appears on the day of resentencing," as opposed to how defendant appeared years before in another sentencing proceeding in conformity with State v. Randolph, 210 N.J. 330, 353-54 (2012). In this case, multiple, consecutive maximum sentences accompanied by discretionary periods of parole ineligibility warrant special attention to the weight assigned to aggravating factors in the interest of avoiding any double counting of the significance of defendant's criminal record demonstrating a risk of recidivism.

Defendant's convictions are affirmed and the matter is remanded for resentencing in conformity with this opinion.

1 Months before trial and when defendant was representing himself, he submitted requests for jury instructions. But at the time of the charge conference, his attorney did not request those charges and did not object to their omission when the judge delivered the final instruction. Consequently, any objection based on omission of the charges defendant requested prior to trial is properly reviewed for plain error.

2 Section A covers Points I and II(C) raised by appellate counsel and Points I a, d, and f and II a of defendant's pro se supplemental brief. The arguments presented in Point I a of defendant's pro se supplemental brief for the most part concern self-defense and are not suggested by the point heading, which refers to omission of instructions on lesser-included and lesser-related crimes. We address the latter claims in Section C of Part III.

3 Point I c of defendant's pro se supplemental brief.

4 The points discussed here are raised in Points I a, b and e of defendant's pro se supplemental brief and in Point II D of appellate counsel's brief.

5 The points addressed here are Points II B and D, III and IV of appellate counsel's brief and Points II b, III, IV and V of defendant's pro se supplemental brief.