                                        SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                        State v. Joey J. Fowler (A-5-18) (080880)

Argued March 25, 2019 -- Decided July 30, 2019

LaVECCHIA, J., writing for the Court.

        The Court reviews an Appellate Division judgment that reversed the murder
convictions of defendants Joey Fowler and Jamil Hearns for perceived reversible error by
the trial court in failing to charge the jury on self-defense, as well as for failing to charge
the lesser-included offenses of aggravated manslaughter and reckless manslaughter.

        Fowler and Hearns were indicted for first-degree murder and weapons offenses for
the fatal shooting of Donnell Johnson in March 2011. Hearns was also indicted for
hindering apprehension or prosecution. At trial, the State and defendants advanced
starkly different theories about the shooting. The alleged deficiencies in the jury
instructions are based on defendants’ version of events, as testified to by Hearns.

        Hearns testified that he and Fowler were near a nightclub in Elizabeth around
closing time when he saw Johnson and Jones leave a car and approach him. Hearns
testified that no one else was in the vicinity at the time. Fowler was around a corner.
According to Hearns’s account, Jones demanded that Hearns repay the $5000 he owed
Jones. Hearns offered a partial payment, but Jones rejected it and pulled a gun from his
waistband and pointed it at Hearns’s stomach. Believing that Jones was about to shoot
him, Hearns “grabbed [Jones’s] wrist and his forearm” and “pushed it away,” knocking
Jones’s “wrist against [Hearns’s] knee while holding [Jones’s] wrist” with the gun “still
in [Jones’s] hand.” According to Hearns’s account the gun fired several times during this
struggle. The trajectory of the shots was downward but the bullets ricocheted off the
sidewalk in the general direction of Johnson.

       The State presented a very different version of events. The State presented
testimony that Jones and Johnson were speaking to one another outside the vicinity of the
nightclub when Hearns approached them and shot Johnson, essentially point blank, as
revenge for Johnson’s participation in a previous assault and carjacking of Fowler.

        At the conclusion of the trial, the court held a jury charge conference. The
respective attorneys for Fowler and Hearns stated that neither wanted instructions on
lesser-included offenses. The judge indicated he did not “see any version of facts that
                                               1
would support an aggravated manslaughter” charge under either party’s version of events.
The prosecutor agreed there was no evidence to support a reckless state of mind, and the
judge confirmed, “[e]veryone is agreeing, no lesser includeds?” Counsel did not object.

       With respect to the other jury instruction issues, Fowler’s counsel asked for a
“self-defense slash accident” instruction, acknowledging the court’s observation that
“technically this is not a self-defense because Mr. Johnson was an innocent by-stander.”
The court stated that “if somebody drafts a paragraph, I would consider putting it into the
murder charge,” but indicated that, in its view, Hearns’s testimony did not show self-
defense as to Johnson; rather, it would tend to negate the state of mind needed to support
the murder charge. No one submitted a paragraph. The court rejected as inapposite the
further request by Hearns for a traditional self-defense instruction.

      The court instructed the jury that, to reach a guilty verdict for murder, the jury
must determine that Hearns caused the victim’s death and did so “purposely or
knowingly.” The court noted that defendant’s act must have caused Johnson’s death in a
way that was not “too remote, too accidental in its occurrence or too dependent on
another’s volitional act” to have a “just bearing on the defendant’s liability.”

        Both defendants appealed, arguing that the trial court erred in not instructing the
jury on self-defense and lesser-included offenses. 453 N.J. Super. 499, 505-06 (App.
Div. 2018). The Appellate Division agreed, determining that the trial court’s omission of
a self-defense and lesser-included-offense instructions was prejudicial error. Id. at 507.

       The Court granted the State’s petition for certification. 235 N.J. 187 (2018).

HELD: Review of the alleged instructional error must be moored to the facts, and the
Court concludes that the omission of the instructional charges was not error under the
circumstances of this case. The Court therefore reverses and remands to the Appellate
Division for consideration of defendants’ arguments that have not yet been addressed.

1. The mental states of “purposely” and “knowingly” are defined in N.J.S.A. 2C:2-2. To
be guilty of murder, a person must “cause[] the death of another human being”
purposefully or knowingly. N.J.S.A. 2C:11-2, -3. N.J.S.A. 2C:2-3(b) explains that “the
actual result must be within the design or contemplation” of the actor or “the actual result
must involve the same kind of injury or harm as that designed or contemplated and not be
too remote, accidental in its occurrence, or dependent on another’s volitional act to have a
just bearing on the actor’s liability or on the gravity of his offense.” (pp. 16-17)

2. “[T]he use of force upon or toward another person is justifiable 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:3-4(a). If a self-defense charge is requested and supported by some evidence
                                             2
in the record, it must be given. The plain language of the self-defense statute clearly
indicates that it is inapplicable to the factual scenario proffered by Hearns. The statute is
not drafted to address force used against third parties, but rather force used against a party
who uses force against the defendant. Reviewing the jury charges as a whole, the Court
concludes that, had the jury believed Hearns’s version of events, there were ample
instructions to lead them to a verdict of not guilty. Although explicitly stating that an
accidental death is incompatible with a conviction for murder would not have been an
error, the absence of such explication also did not constitute error. (pp. 17-21)

3. Turning to the lesser-included-offense charges, the inquiry here -- when defendants
explicitly declined the opportunity to have the court instruct on the lesser-included
charges of aggravated manslaughter and reckless manslaughter -- is whether evidence to
support convictions for manslaughter or aggravated manslaughter is clearly indicated
from the record; that is, whether that evidence jumps off the page. It does not. Under
Hearns’s version of the facts, no rational jury could find that he acted recklessly,
particularly considering that it was allegedly Jones who pulled the gun and who was
holding it when it started discharging before it ever hit Hearns’s knee. The Court
therefore finds no error in the exclusion of lesser-included-offense charges. (pp. 22-25)

4. The Appellate Division determined that the jury instructions used at trial did not
adequately account for circumstances when the defendant “uses force in self-defense, and
in doing so recklessly or negligently injures a bystander” and therefore “‘may’ be found
guilty of assault upon the bystander.” Fowler, 453 N.J. Super. at 508. The Appellate
Division thus presented additional instructions it would require on that point. The Court
finds that those additional instructions are not warranted under the circumstances of this
case. The instructions given by the trial court appropriately conveyed to the jury
defendants’ theory about the accidental nature of the shooting and how that fit within the
State’s proof requirements. Had the jury believed Hearns’s version of events, there were
ample instructions to lead them to a verdict of not guilty. (pp. 25-30)

       REVERSED and REMANDED for further proceedings.

        JUSTICE ALBIN, dissenting in part and concurring in part, agrees that the
court was not required to charge the jury on lesser-included offenses but expresses the
view that, based on Hearns’s testimony, the trial court was bound to honor Hearns’s
request for a self-defense charge. When N.J.S.A. 2C:3-4(a), N.J.S.A. 2C:3-4(b)(2), and
N.J.S.A. 2C:3-9(c) are read together, Justice Albin explains, they make clear that the
justification of self-defense is available when a person justifiably acts in self-defense
toward an aggressor but accidentally injures or even kills an innocent person.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE
ALBIN filed an opinion dissenting in part and concurring in part.
                                              3
       SUPREME COURT OF NEW JERSEY

             A-5 September Term 2018

                       080880


                State of New Jersey,

                 Plaintiff-Appellant,

                          v.

                Joey J. Fowler, a/k/a
              Joey Williams, Shaquan
             Williams, Shaquan Harris,
               and Joey Flower, and
               Jamil L. Hearns, a/k/a
             Khalil Hearns, Jay L. Love,
            Jayson Love, James Holmes,
                 and Jameel Hearns,

              Defendants-Respondents.

       On certification to the Superior Court,
   Appellate Division, whose opinion is reported at
       453 N.J. Super. 499 (App. Div. 2018).

      Argued                        Decided
   March 25, 2019                July 30, 2019


Milton S. Leibowitz, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause for
appellant (Michael A. Monahan, Acting Union County
Prosecutor, attorney; Milton S. Leibowitz, of counsel and
on the briefs).



                          1
            Marcia Blum, Assistant Deputy Public Defender, argued
            the cause for respondent Joey J. Fowler (Joseph E.
            Krakora, Public Defender, attorney; Marcia Blum, of
            counsel and on the briefs).

            Michael Confusione, Designated Counsel, argued the
            cause for respondent Jamil L. Hearns (Joseph E. Krakora,
            Public Defender, attorney; Michael Confusione, on the
            briefs and Jamil L. Hearns, pro se, on the supplemental
            brief).

            Lauren Bonfiglio, Deputy Attorney General, argued the
            cause for amicus curiae Attorney General of New Jersey
            (Gurbir S. Grewal, Attorney General, attorney; Lauren
            Bonfiglio, of counsel and on the brief).

            Michael Gilberti argued the cause for amicus curiae
            Association of Criminal Defense Attorneys of New
            Jersey (Jardim, Meisner & Susser, attorneys; Michael
            Gilberti, on the brief).


          JUSTICE LaVECCHIA delivered the opinion of the Court.


      In this appeal, we review an Appellate Division judgment that reversed

the murder convictions of defendants Joey Fowler and Jamil Hearns. The

appellate judgment rests on perceived error from omitted jury instructions.

      Review of the alleged instructional error at issue must be moored to the

facts. At this trial, the State and defendants advanced starkly different theories

about the fatal shooting of the victim, Donnell Johnson.

      According to the State, Hearns walked up to the victim and, in an act of

revenge, shot him at point-blank range. Hearns then returned to Fowler’s

                                        2
waiting car and both attempted to flee but were promptly apprehended by

nearby on-duty officers.

      According to defendants’ version, the victim -- a bystander -- was shot

due to the accidental discharge of a gun during a struggle that occurred

between Hearns and the victim’s cousin, Algere Jones. Hearns testified that

Jones confronted him at gunpoint about money Hearns owed to Jones.

According to Hearns, in his effort to dislodge the gun from Jones’s grasp, a

struggle ensued during which Hearns caused Jones’s hand, wrist, and/or

forearm to strike against Hearns’s knee. The gun went off once before, and

multiple times during, the striking of Jones’s arm against Hearns’s knee. Two

ricocheting bullets struck Johnson, unbeknownst to Hearns. When the gun fell

to the ground, Hearns grabbed it and ran to Fowler’s waiting car to get away

from Jones.

      Taking into account defendants’ version of events, the Appellate

Division determined that the trial court committed reversible error in failing to

charge the jury on self-defense, as well as for failing to charge the lesser-

included offenses of aggravated manslaughter and reckless manslaughter ,

which, when pressed by the court, neither defendant wanted included in the

instructions. We conclude that the omission of the instructional charges was

not error under the circumstances of this case. We therefore reverse, and we


                                         3
remand this matter to the Appellate Division for consideration of defendants’

numerous other arguments that have not yet been addressed.

                                        I.

                                        A.

      Johnson was shot on March 5, 2011, and he later died from his wounds.

As a result, Fowler and Hearns were indicted for first-degree murder, N.J.S.A.

2C:11-3(a)(1), (2); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). Hearns

was also indicted for hindering apprehension or prosecution, N.J.S.A. 2C:29-

3(b)(4). On the murder counts, the State charged Hearns as a principle and

Fowler under an accomplice theory. A jury convicted both defendants of all

charges.

      The alleged deficiencies in the jury instructions are based on a review of

the facts from the perspective of defendants’ version of events, as testified to

by Hearns. We therefore begin with a more detailed presentation of Hearns’s

testimony.

                                        1.

      Hearns testified that, at the time of the shooting, he owed Algere Jones

$5000 and that Jones had confronted him not long before about repaying the

debt. The day of the shooting, Hearns and Fowler had been out socializing and


                                        4
were near a nightclub in Elizabeth around closing time. Hearns testified he

heard two car doors close, turned, and saw Johnson and Jones leave a car and

approach him. Hearns testified that no one else was in the vicinity at the time.

Fowler was around a corner.

      According to Hearns’s account, Jones demanded that Hearns repay his

debt. Hearns offered a partial payment of $1300, which he had on him, but

Jones rejected it. Johnson tried to convince Jones to accept the partial

payment, but Jones was not to be persuaded. Jones pulled a gun from his

waistband and pointed it at Hearns’s stomach. Believing that Jones was about

to shoot him, Hearns “grabbed [Jones’s] wrist and his forearm” and “pushed it

away,” knocking Jones’s “wrist against [Hearns’s] knee while holding

[Jones’s] wrist” with the gun “still in [Jones’s] hand.”

      Again, according to Hearns’s account the gun fired several times during

this struggle. According to Hearns, the first discharge occurred before Jones’s

wrist hit Hearns’s knee. The gun continued to fire thereafter “each time [the

gun] hit [Hearns’s] knee.” The trajectory of the shots was downward toward

the ground but the bullets ricocheted off the sidewalk in the general direction

of Johnson. Hearns later learned that some shots struck Johnson. Eventually

the gun fell to the ground, and Hearns dove for it to prevent Jones from using

it against him. Hearns ran with the gun back to where Fowler was. Jones and


                                        5
Johnson returned to their vehicle and left the area. Johnson died two days

afterward from his gunshot wounds.

      The State presented a very different version of events. The State

presented testimony that Jones and Johnson were speaking to one another

outside the vicinity of the nightclub when Hearns approached them and shot

Johnson, essentially point blank. The shooting, the State alleged, was

committed on Fowler’s behalf as revenge for Johnson’s participation in a

previous assault and carjacking of Fowler.

                                        2.

      At the conclusion of the trial, the court held a jury charge conference

during which the parties discussed the propriety of including instructions on

lesser-included offenses, self-defense, and accident.

      At the hearing, the respective defense attorneys for Fowler and Hearns

stated that neither wanted instructions on lesser-included offenses. The trial

judge pressed the issue, seeking to ensure everyone was in agreement and had

considered all appropriate theories of the case.

            The Court: . . . [I]s there any evidence in the case . . .
            from which the jury can conclude that, for example,
            your client might be guilty of reckless and not murder
            or aggravated?

            [Hearns’s Counsel]: Well, I think the Court sua sponte
            can make that observation based on the record, and you


                                        6
           don’t have to reach too far to see there was testimony
           regarding a struggle. However --

           The Court: If you think it through, if we accept your
           client’s version of what happened, right? That means
           that, you know, Mr. Jones was coming at him with a
           weapon and then he grabbed the weapon and was, you
           know, banging it in a way to, you know, protect
           himself.

           [Hearns’s Counsel]: Which is self-defense.

           The Court: Self-defense against Mr. Jones. If he was
           charged with something regarding Mr. Jones, it would
           be self-defense. He’s not charged with any assault or
           anything vis-à-vis Mr. Jones.          But under what
           circumstances -- under what facts can the jury conclude
           a set of facts existed that would support a reckless or
           aggravated -- your client’s version of the facts, he
           didn’t bring a gun. He didn’t have any intent to harm
           anybody. Where is there a set of facts that would
           support -- in the record -- that the jury could conclude
           that would lead to the conclusion that your client might
           be guilty of one of the lesser includeds? I’m having
           trouble thinking of one.

           [Hearns’s Counsel]: Yeah. In fact --

           The Court: You’re agreeing with me?

           [Hearns’s Counsel]: I’m agreeing.

           The Court: [Fowler’s Counsel], you agree with that
           analysis?

           [Fowler’s Counsel]: Yes, Judge.

     Later in the conference, the judge reiterated that he did not “see any

version of facts that would support an aggravated manslaughter” charge under
                                      7
either party’s version of events but invited “anybody to tell [him] any set of

facts they can think of that supports that.” The prosecutor agreed there was no

evidence to support a reckless state of mind, and then the trial judge

confirmed, “[e]veryone is agreeing, no lesser includeds?” Counsel did not

object.

      With respect to the other jury instruction issues before us, the record

reveals that Fowler’s counsel asked for a “self-defense slash accident”

instruction, acknowledging the court’s observation that “technically this is not

a self-defense because Mr. Johnson was an innocent by-stander.” The court

stated that it had searched unsuccessfully for such a charge and case law on the

issue. Fowler’s counsel followed up, asking if they could “fashion [a charge]

in the sense the jury is told Mr. Hearns’[s] testimony is whatever and if you

find that to be the case, there’s no criminal responsibility on his part for trying

to avoid being shot?” The court responded that

            if somebody drafts a paragraph, I would consider
            putting it into the murder charge . . . . But I go back to
            . . . if you believe what Mr. Hearns says, the jury
            believes that, it just negates the criminal state of mind
            for anything, and that’s what it does. . . . What does it
            do beyond that? Because it makes it an accident rather
            than a knowing or intentional or reckless disregarding
            of the charges that in the State’s mind are relevant to
            manslaughter, reckless manslaughter and murder. . . .
            So what I came around to was it wasn’t self-defense,
            and that basically it was covered implicitly and
            explicitly in the charge -- murder charge of what the
                                         8
            appropriate state of mind was and this isn’t it. If you
            believe Mr. Hearns, then this isn’t it. The State has not
            met its burden to prove state of mind because it was just
            an accident.

      Based on the record, it appears that neither defense attorney drafted a

suggested “self-defense slash accident” instruction for the court’s

consideration, as requested by the trial judge. Later during the conference, the

court confirmed with Fowler’s counsel that

            You’re satisfied there’s nothing further on -- I’ll put in
            quotes -- self-defense slash accident, close quote[?]

            [Fowler’s Counsel]: Yes. I leave it to [Hearns’s
            counsel] to argue. He has a different position.

      Hearns’s counsel asked for a traditional self-defense charge. He argued

that, because there was testimony of a struggle over the gun, “the jurors have

the right to consider whether the struggle is with Mr. Jones or whether . . . it’s

a struggle involving Mr. Johnson and under the same scenario.” However, the

court pointed out that there was “no evidence that there was a struggle with

Mr. Johnson,” only with Jones. Therefore, the court rejected the request for a

self-defense instruction.

                                        3.

      After the conference, the court charged the jury. With respect to the

murder charges, the court instructed that, in order to reach a guilty verdict, the



                                         9
jury must determine that Hearns caused the victim’s death and did so

“purposely or knowingly.” The court further elaborated that:

                   In order for you to find a particular defendant
            guilty of purposeful serious bodily injury murder, the
            State must prove beyond a reasonable doubt that it was
            the defendant’s conscious object to cause serious bodily
            injury that then resulted in the victim’s death, that the
            defendant knew that the injury created substantial risk
            of death and that it was highly probable that death
            would result. In order for you to find the defendant
            guilty of knowing serious bodily injury murder, the
            State must prove beyond a reasonable doubt the
            defendant was aware that it was practically certain his
            conduct would cause serious bodily injury that then
            resulted in the victim’s death; that the defendant knew
            that the injury created a substantial risk of death; and
            that it was highly probable that death would result.

                   Whether the killing is committed purposely or
            knowingly, causing death or serious bodily injury
            resulting in death must be within the design or
            contemplation of the defendant.

      The court also addressed causation, noting that defendant’s act must

have caused Johnson’s death in a way that was not “too remote, too accidental

in its occurrence or too dependent on another’s volitional act” such that it

would not have a “just bearing on the defendant’s liability.”

      With respect to the charge on possession of a weapon for an unlawful

purpose, the court instructed the jury that it must determine, in relevant part,

that “[d]efendant possessed the firearm with the purpose to use it against the

person or property of another” and that the purpose was unlawful. The court
                                        10
explained that “[i]n this case the State contends that the defendant’s unlawful

purpose in possessing the firearm was to shoot Donnell Johnson,” but that

defendants “contend[] that Algere Jones brought the gun to the scene with the

intent to use it unlawfully against defendant Hearns.”

      The jury convicted both defendants of murder, unlawful possession of a

weapon, and possession of a weapon for an unlawful purpose. It also

convicted Hearns of hindering apprehension or prosecution.

                                        B.

      Both defendants appealed. Relevant to this appeal, in light of Hearns’s

testimony about an accidental shooting, defendants argued that the trial court

erred in not instructing the jury on self-defense and lesser-included offenses.1

State v. Fowler, 453 N.J. Super. 499, 505-06 (App. Div. 2018). The Appellate

Division agreed, determining that the trial court’s omission of a self-defense

instruction and corresponding instructions on lesser-included offenses was

prejudicial error. Id. at 507.

      The Appellate Division stated that, as “[a] necessary first step,” the trial

court should have given a molded self-defense charge, which would have “set


1
  Defendants also raised arguments concerning evidentiary issues, sentencing,
severance, and constitutional violations. State v. Fowler, 453 N.J. Super. 499,
505-07 (App. Div. 2018). Because the Appellate Division ordered a new trial
on the basis of flawed jury instructions, however, the appellate court did not
address the other points of appeal. Id. at 511.
                                        11
the stage for the jury’s consideration of whether Hearns acted recklessly by

wrestling with Jones and banging the gun against his knee during the struggle

in the midst of a crowd.” Id. at 508. The court noted that reckless conduct

could be an exception to the affirmative defense of self-defense under N.J.S.A.

2C:3-9(c), leaving defendants open to conviction for aggravated or reckless

manslaughter. Id. at 509 (citing N.J.S.A. 2C:11-4(a)(1), (b)(1); State v.

Rodriguez, 195 N.J. 165, 172-73 (2008)). The court reasoned that there were

sufficient facts in evidence for a jury to find that Hearns acted in self-defense

against Jones, that he did so in a reckless manner, and that the reckless act

caused Johnson’s fatal injuries. Id. at 510. Therefore, the Appellate Division

concluded that the trial court should have given molded instructions on self-

defense, the recklessness exception to self-defense, and aggravated and

reckless manslaughter. Id. at 509-10.

      The Appellate Division also determined that an additional instruction

should have been given to explain to the jury that Fowler, who was accused of

murder via accomplice liability, could not be found guilty if Hearns was only

guilty of one of the lesser-included offenses. Id. at 510.

      We granted the State’s petition for certification. 235 N.J. 187 (2018).

We also granted amicus curiae status to the Association of Criminal Defense

Lawyers of New Jersey (ACDL) and the Attorney General of New Jersey.


                                        12
                                        II.

                                        A.

      According to the State, the trial court’s decision not to instruct the jury

on self-defense was not error. The State argues Hearns’s testimony did not

provide a basis for self-defense; rather, it presented a factual scenario that

would negate the requisite purposeful or knowing mens rea of murder. The

jury instructions covered all the elements necessary for defendants’ conviction

of murder. And the instructions were sufficient to cover how defendants’

version of the facts -- that the shooting was an accident -- should be considered

in connection with those elements. Further, the State notes that the facts

presented at trial could not have led to a finding of recklessness and that the

exclusion of lesser-included charges was therefore not improper.

                                        B.

      The Attorney General supports the State’s position that the jury

instructions were not erroneous. The Attorney General adds that counsel for

both defendants had many opportunities to object to the exclusion of jury

charges or to propose their own but failed to do so, demonstrating that the jury

charges were in line with defendants’ theory of the case.

      The Attorney General also notes that, although the trial court did not

give a specific instruction on accident, the instructions clearly indicated that


                                        13
the State was required to demonstrate a purposeful or knowing mens rea,

which would be incompatible with a finding that Johnson’s death was an

accident. And, the Attorney General points out that the instructions on

causation for murder explained that a defendant’s act must not be “too remote,

too accidental in its occurrence or too dependent on another’s volitional act” in

relation to the victim’s death.

      Finally, the Attorney General argues that instructions on lesser-included

charges would have been improper, adding that the lack of a factual basis for

such charges would make the instructions on the elements of manslaughter

misleading, confusing, or likely to incentivize a compromise verdict.

                                        C.

      Fowler argues that the trial court erred when it did not include a self-

defense jury instruction. Absent a self-defense instruction, the jury was only

told “how it could convict defendants on the [S]tate’s evidence” but not “how

it could acquit defendants on the defense evidence.” Fowler further asserts

that theories of accident and self-defense are not inconsistent. Finally, citing

out-of-state case law, Fowler points to instances in which other jurisdictions

have transferred the intent of self-defense to harm done to a third party and

urges adoption of such an approach in New Jersey.




                                       14
                                        D.

       Hearns’s arguments are similar to Fowler’s. According to Hearns,

without a self-defense instruction, the jury was not informed of the “full range

of rational choices that the trial proofs afforded.” Hearns stresses that such a

lack of information had the potential to be particularly prejudicial should the

jury have credited parts but not all of defendants’ theory -- for example if the

jury concluded that Jones instigated the confrontation but not that the gun went

off accidentally.

       In a pro se brief, defendant Hearns adds that the trial court should have

charged the jury with lesser-included offenses, self-defense, recklessness,

imperfect self-defense, and accident.

                                        E.

       The ACDL also supports the Appellate Division’s decision. It asserts

that without molded jury instructions to fit the unique facts of this case --

which combined issues of self-defense and accident -- the jury was not given

proper guidance as to how to treat defendants’ evidence, depriving them of a

fair trial.

                                        III.

       We begin our analysis with the debate over the self-defense charge,

which occupied the trial court’s and the parties’ attention in the charge


                                        15
conference and was also the necessary first step in the Appellate Division’s

reasoning for finding the jury instructions flawed. First, we set forth some

basic background principles on murder and the affirmative defense of self-

defense.

                                        A.

                                        1.

      The New Jersey Code of Criminal Justice provides that “[a] person is

guilty of criminal homicide” -- identified, as is relevant here, as murder or

manslaughter, N.J.S.A. 2C:11-2(b) -- “if he purposely, knowingly, [or]

recklessly . . . causes the death of another human being,” N.J.S.A. 2C:11-2(a).

“[C]riminal homicide constitutes murder when . . . the actor purposely” or

“knowingly causes death or serious bodily injury resulting in death.” N.J.S.A.

2C:11-3(a)(1), (2).

      The mental states of “purposely” and “knowingly” are defined in

N.J.S.A. 2C:2-2. “A person acts purposely with respect to the nature of his

conduct or a result thereof if it is his conscious object to engage in conduct of

that nature or to cause such a result.” N.J.S.A. 2C:2-2(b)(1). “A person acts

knowingly with respect to a result of his conduct if he is aware that it is

practically certain that his conduct will cause such a result.” N.J.S.A. 2C:2-

2(b)(2).


                                        16
      To be guilty of murder, a person must “cause[] the death of another

human being” purposefully or knowingly. See N.J.S.A. 2C:11-2 (emphasis

added); N.J.S.A. 2C:11-3. With respect to causation, N.J.S.A. 2C:2-3(b)

explains that,

            [w]hen the offense requires that the defendant
            purposely or knowingly cause a particular result, the
            actual result must be within the design or
            contemplation, as the case may be, of the actor, or, if
            not, the actual result must involve the same kind of
            injury or harm as that designed or contemplated and not
            be too remote, accidental in its occurrence, or
            dependent on another’s volitional act to have a just
            bearing on the actor’s liability or on the gravity of his
            offense.

            [(emphases added).]

                                         2.

      The Criminal Code provides for self-defense as an affirmative defense to

an otherwise criminal act of homicide. N.J.S.A. 2C:3-4(a) sets forth the basic

principles of the self-defense justification:

            Subject to the provisions of this section and of
            [N.J.S.A.] 2C:3-9, the use of force upon or toward
            another person is justifiable 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.



                                        17
      In referring to the “use of force,” subsection (a) does not distinguish

between non-deadly and deadly force; both can be justifiable. See ibid.; see

also N.J.S.A. 2C:3-4(b)(2) (imposing certain limitations on the use of deadly

force).

                                        B.

      If a “self-defense charge is requested and supported by some evidence in

the record, it must be given.” Rodriguez, 195 N.J. at 174. However, absent a

request from the parties, “evidence must ‘clearly indicate[]’ such a defense” to

warrant a self-defense instruction. State v. Galicia, 210 N.J. 364, 390-91

(2012) (alteration in original) (quoting State v. Perry, 124 N.J. 128, 161

(1991)).

      As noted, under the Criminal Code “the use of force upon or toward

another person is justifiable 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:3-4(a) (emphases added). As with all statutes, when interpreting provisions

of the Criminal Code the Court first looks to “the statute’s plain language,

giving terms their ordinary meaning.” State v. Fede, 237 N.J. 138, 148 (2019)

(citing State v. S.B., 230 N.J. 62, 67 (2017)). If the plain language is clear,




                                        18
“we then are duty-bound to apply that plain meaning.” Ibid. (citing Kean

Fed’n of Teachers v. Morell, 233 N.J. 566, 584 (2018)).

      Because Hearns made a request for a traditional self-defense charge we

dispose quickly of the argument.

      The plain language of our self-defense statute clearly indicates that it is

inapplicable to the factual scenario proffered by Hearns. The language of the

statute is not drafted to address force used against third parties, but rather

offers justification for force used against a party who uses force against the

defendant. Therefore -- as noted by the trial court, and ultimately not

contested by either defendant’s attorney -- a self-defense instruction would

have been appropriate had Jones, the alleged attacker, been the victim, but not

Johnson as a third-party bystander. Contrary to the assertion of the dissent,

based on the testimony of Hearns, the trial court was not “bound to honor

Hearns’s request for a self-defense charge on the murder count,” post at __

(slip op. at 2), because the death of a bystander does not fit in the wording of

our self-defense statute. Indeed, the Appellate Division ruled consistently with

our view on this point.

      We hold that the trial court did not err in denying a traditional self-

defense charge when there was no evidence of use of force by Johnson against

Hearns.


                                        19
                                        C.

      Most telling that a traditional self-defense charge was not an applicable

instruction in this instance was defense counsels’ request for a “self-defense

slash accident” instruction, seemingly conceding that this was not an alleged

act of self-defense, but a situation of a different ilk. It was. The victim,

Johnson, was not the aggressor against whom Hearns was protecting himself in

self-defense. Jones was the aggressor and defendants faced no charges of

harming Jones.

      Although the trial court was open-minded about whether to include

language to elaborate on the role that accident played should the jury have

believed Hearns’s version of events, the requested proposed language for a

charge was not provided. We conclude that defendants were not prejudiced

when the trial court did not pick up defense counsels’ torch and provide its

own language to honor defendants’ half-hearted request for a charge melding

their accident theory into the structure of self-defense.

      Reviewing the jury charges as a whole, we conclude that, had the jury

believed Hearns’s version of events, there were ample instructions to lead

them to a verdict of not guilty. The jury was explicitly told that, to find

defendants guilty of murder, Hearns’s actions must have caused Johnson’s

death in a way that was not “too remote, too accidental in its occurrence or too


                                        20
dependent on another’s volitional act.” (emphasis added). The jurors were

further instructed that “causing death or serious bodily injury resulting in death

must be within the design or contemplation of the defendant.” Finally, the jury

was told that each of these elements must have been proved beyond a

reasonable doubt by the State. 2

      A guilty verdict under those directives is simply incompatible with a

belief that Johnson’s death was unintentional or accidental. Therefore,

although explicitly stating that an accidental death is incompatible with a

conviction for murder would not have been an error, we conclude that the

absence of such explication also did not constitute error.3




2
  In light of those instructions, we reject the argument that the State was
advantaged because it was not required to disprove the affirmative defense of
self-defense. The State was clearly required to show that Johnson’s murder
was both Hearns’s intent and not an accidental or remote consequence of other
actions. This inherently requires the State to disprove that Hearns’s actual
goal or intent was only to protect himself.
3
  We also note that defendants’ convictions for possession of a weapon for an
unlawful purpose further corroborates that defendants’ convictions were the
result of the jury believing the State’s version of events over Hearns’s. To
sustain that conviction, the jurors were instructed that they must find that the
“defendant possessed the firearm with the purpose to use it against the person
or property of another” in an unlawful manner, specifically that “the
defendant’s unlawful purpose in possessing the firearm was to shoot Donnell
Johnson.” Had the jurors believed Hearns’s version of events, they could not
have simultaneously found that Hearns possessed a weapon for the purpose of
shooting Johnson -- who was allegedly accidentally shot.
                                       21
                                        IV.

      We turn next to the argument about the lesser-included offenses. Jury

instructions for lesser-included offenses are reviewed under a standard that

examines whether “a rational basis” exists “for a jury to acquit the defendant

of the greater offense as well as to convict the defendant of the lesser,

unindicted offense.” State v. Funderburg, 225 N.J. 66, 81 (2016) (quoting

State v. Savage, 172 N.J. 374, 396 (2002)). When a charge is requested by the

parties, the trial court must “examine the record thoroughly to determine if the

rational-basis standard has been satisfied.” State v. Alexander, 233 N.J. 132,

142 (2018) (quoting State v. Crisantos, 102 N.J. 265, 278 (1986)).

      However, if the parties do not request a lesser-included-offense charge,

reviewing courts “apply a higher standard, requiring the unrequested charge to

be ‘clearly indicated’ from the record.” Id. at 143. This does not require the

trial court to

             “scour the statutes to determine if there are some
             uncharged offenses of which the defendant may be
             guilty,” State v. Brent, 137 N.J. 107, 118 (1994), or “‘to
             meticulously sift through the entire record . . . to see if
             some combination of facts and inferences might
             rationally sustain’ a lesser charge,” Funderburg, 225
             N.J. at 81 (quoting State v. Choice, 98 N.J. 295, 299
             (1985)). Instead, the evidence supporting a lesser-
             included charge must “jump[ ] off the page” to trigger
             a trial court’s duty to sua sponte instruct a jury on that
             charge. State v. Denofa, 187 N.J. 24, 42 (2006).


                                         22
            [Ibid. (alterations and omissions in original).]

      Therefore, the inquiry here -- when defendants explicitly declined the

opportunity to have the court instruct on the lesser-included charges of

aggravated manslaughter and reckless manslaughter -- is whether evidence to

support convictions for manslaughter or aggravated manslaughter “jump [s] off

the page.” We hold they do not.

      A defendant commits manslaughter when he acts recklessly, causing the

death of another human being. N.J.S.A. 2C:11-4(b)(1). A killing will be

considered to constitute aggravated manslaughter if it is done recklessly and

“under circumstances manifesting extreme indifference to human life.”

N.J.S.A. 2C:11-4(a)(1). A defendant acts recklessly when he or she

“consciously disregards a substantial and unjustifiable risk” that death will

occur from the defendant’s conduct, and disregarding the risk “involves a

gross deviation from the standard of conduct that a reasonable person would

observe” in the same situation. N.J.S.A. 2C:2-2(b)(3).

      In defendants’ trial, the jury was presented with two distinct, mutually

exclusive versions of events, neither of which could be viewed as

demonstrating the conscious disregard of a substantial and unjustifiable risk.

The State depicted a premeditated and purposeful murder. Defendants’

version asserted that, faced with an armed assailant at close range, Hearns


                                       23
attempted to disarm his attacker using non-lethal force in an unpopulated area.

The defendants’ version deserves careful scrutiny to assess whether there was

any basis whatsoever to support a claim of recklessness, let alone a showing

that jumps from the page.

      As the Attorney General succinctly yet comprehensively summarized in

its argument, the facts to which Hearns specifically testified were that he

thought Jones was going to kill him, so he grabbed Jones’s wrist and banged it

against his own knee, in an attempt to protect himself from being shot at close

range. Assuming Hearns’s testimony to be true, he attempted to unarm a

gunman who intended to shoot him. He did not aimlessly grab for the gun,

causing it to be pointed carelessly in the air or directed at someone. Instead,

he had the gun, which was in Jones’s hand, pointed toward the ground as he

banged it against his own knee. Under Hearns’s version of the facts, we

conclude that no rational jury could find that he acted recklessly, particularly

considering that it was allegedly Jones who pulled the gun and who was

holding it when it started discharging before it ever hit Hearns’s knee.4




4
  To the extent that the Appellate Division’s decision refers to the gun
discharging when it fell to the ground, we discern no evidence in this record to
support that inference. The facts recited above, and on which we rely, are
those distilled from Hearns’s actual testimony.

                                        24
      In sum, neither the State’s nor defendants’ scenario reasonably depicts

Hearns as an actor who consciously disregarded a substantial and unjustifiable

risk providing a platform for a manslaughter or aggravated manslaughter

charge based on recklessness, let alone constitutes a scenario where that

conclusion jumps off the page. 5

      We therefore find no error in the exclusion of lesser-included-offense

charges.

                                        V.

      In this matter the Appellate Division came to a different conclusion and

determined that the jury instructions were insufficient, warranting a new trial.

Specifically, the appellate court determined that

            [a] necessary first step was to give the jury a molded
            self-defense charge -- but other instructions were also
            necessary because the injury was allegedly accidentally

5
  In making this determination we acknowledge that, in dicta, this Court has
stated a defendant could commit manslaughter or aggravated manslaughter if
that defendant uses force in self-defense but does so in a reckless manner,
killing a third party. Rodriguez, 195 N.J. at 172-73 (“[A]cting on an honest
and reasonable belief in the need to use deadly force against an aggressor is
not reckless, but . . . endangering third parties in the use of such force may be
reckless.”). In Rodriguez, the decedent was the aggressor and was involved in
a deadly struggle with the defendant -- and not an innocent bystander as was
the victim here. Id. at 170. Also, the defendant actually used deadly force by
purposefully stabbing the decedent. Ibid. The circumstances of the instant
case are a far cry from those in Rodriguez where, in dicta, our Court penned
the language that the Appellate Division seized upon here. Moreover, we
reiterate that Hearns’s alleged use of force in this instance could not be said to
“jump off the page” as reckless.
                                        25
              inflicted on another -- not the attacker. Self-defense
              does, however, set the stage for the jury’s consideration
              of whether Hearns acted recklessly by wrestling with
              Jones and banging the gun against his knee during the
              struggle in the midst of a crowd.

              [Fowler, 453 N.J. Super. at 508.]

      In arriving at that conclusion, the Appellate Division focused on an

important caveat to the use of the self-defense justification, id. at 590, which

states that

              [w]hen 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.

              [N.J.S.A. 2C:3-9(c).]

      Based on that statute and dicta from this Court’s opinion in Rodriguez,

the Appellate Division determined that the jury instructions used at trial d id

not adequately account for circumstances when the defendant “uses force in

self-defense, and in doing so recklessly or negligently injures a bystander” and

therefore “‘may’ be found guilty of assault upon the bystander.” Fowler, 453

N.J. Super. at 508 (citing Rodriguez, 195 N.J. at 172-73).

      The Appellate Division conceded that our statutes would not permit self-

defense to “serve as legal justification for an assault on a third party” but

                                         26
determined that N.J.S.A. 2C:3-9(c) should, “[b]y analogy . . . inform[] the

lesser-included offenses that should have been charged to the jury.” Id. at 509.

The Appellate Division concluded that

            [g]iving the jury the alternative lesser-included forms
            of manslaughter allows them, within the framework of
            the New Jersey Code of Criminal Justice, N.J.S.A.
            2C:1-1 to 104-9, to assess whether the killing was truly
            accidental.     If it was not murder, aggravated
            manslaughter, or manslaughter, then Hearns could be
            fairly said to have accidentally killed and will be
            acquitted.    But the jury must be afforded the
            opportunity to make the decision with explicit
            guidance. The issue is not whether the killing was
            accidental -- but whether the State has proven, beyond
            a reasonable doubt, any of the offenses included in the
            Code.

            [Id. at 510 (emphasis added).]

      We disagree.

      In formulating that reasoning, the Appellate Division was focused on

allowing the jury to evaluate whether defendants were guilty of manslaughter

by way of the accidental discharge of a weapon. However, as explained in

Section IV, supra, the inclusion of the lesser-included offenses of

manslaughter and aggravated manslaughter were expressly rejected by defense

counsel. Because those charges were not requested, the question was not

“whether the State has proven, beyond a reasonable doubt, any of the offenses

included in the Code,” but whether a factual basis for the inclusion of charges


                                       27
for manslaughter or aggravated manslaughter “jump[ed] off the page.” As

previously explained, they do not.

      The circuitous instructions proposed by the Appellate Division to

contextualize the lesser-included offenses underscore that point. In order to

justify the manslaughter charges, the trial court would have had to introduce

the concept of self-defense -- which the Appellate Division concedes does not

apply to Hearns -- for the purpose of introducing an exception to that defense.

This, again, was all in order to support the possibility of a jury finding of guilt

of a lesser-included offense that neither the State nor defendants requested.6

      Rather than jury instructions being a roadmap of clarity for the jury to

follow, the course proposed would present the unwelcome prospect of

misleading or confusing the jury. Those are the very results that are meant to



6
   The dissent agrees with us that the lesser-included offenses were not
appropriate on the facts of this case. The Appellate Division pressed for a
hybrid self-defense charge under these circumstances because such a charge, in
its view, would set the stage for the lesser-included offenses that we, and the
dissent, agree do not apply. Curiously, the dissent nevertheless finds error in
the failure to give a self-defense charge. Even the parties and the Appellate
Division agreed a traditional self-defense charge did not fit these facts.

      For completeness, with respect to the further argument of our dissenting
colleague, we note the dissent cites out-of-state cases -- consistent with the
policy of MPC 3.09, on which our N.J.S.A. 2C:3-9(c) is modeled -- the
holdings of which we do not disagree with. However, those cases are
inapposite here. Hearns did use some force against Jones but that force is not
what killed Johnson. Hearns did not use force against Johnson.
                                        28
be curbed through jury instructions. Despite the appellate court’s well-

intentioned desire to be thorough, we conclude that the additional instructions

it would require are not warranted under the circumstances of this case.

      In reaching that conclusion, we reiterate how the instructions given by

the trial court appropriately conveyed to the jury defendants’ theory about the

accidental nature of the shooting and how that fit within the State’s proof

requirements. The jurors were explicitly told that, to find defendants guilty of

murder, Hearns’s actions must have caused Johnson’s death in a way that was

not “too remote, too accidental in its occurrence or too dependent on another’s

volitional act.” (emphasis added). They were also instructed that “causing

death or serious bodily injury resulting in death must be within the design or

contemplation of the defendant.” And, they were told that each of these

elements must have been proved beyond a reasonable doubt by the State.

Considering the jury charges as a whole, we have no trouble concluding that,

had the jury believed Hearns’s version of events, there were ample instructions

to lead them to a verdict of not guilty.

      In conclusion, we adhere to the literal language of the self-defense

justification authorized by the Legislature in the Criminal Code in determining

that a self-defense instruction was not warranted in this matter. And we hold

that the trial court did not err in failing to provide instructions on the lesser -


                                           29
included offenses of manslaughter and aggravated manslaughter, which were

not requested and do not jump off the page from the record in this matter.

                                      VI.

      We therefore reverse the Appellate Division’s judgment, reinstate

defendants’ convictions, and remand this matter for consideration of the

arguments not reached in the prior disposition.



     CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-
VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion.
JUSTICE ALBIN filed an opinion dissenting in part and concurring in part.




                                      30
                              State of New Jersey,

                              Plaintiff-Appellant,

                                        v.

                              Joey J. Fowler, a/k/a
                            Joey Williams, Shaquan
                           Williams, Shaquan Harris,
                             and Joey Flower, and
                             Jamil L. Hearns, a/k/a
                           Khalil Hearns, Jay L. Love,
                          Jayson Love, James Holmes,
                               and Jameel Hearns,

                           Defendants-Respondents.


          JUSTICE ALBIN, dissenting in part and concurring in part.


      Defendant Jamil Hearns testified that he acted in self-defense when

Algere Jones pointed a handgun at him and demanded money allegedly owed

to him. In defending himself, Hearns wrestled Jones for the gun, which

discharged killing Hearns’s cousin, Donnell Johnson, who was standing

nearby. Based on Hearns’s testimony, the trial court was bound to honor

Hearns’s request for a self-defense charge on the murder count, despite the

accidental death of a bystander. I agree with the Appellate Division that the

trial court’s failure to give that basic charge denied Hearns and his co-

defendant Joey Fowler a fair trial. See State v. Fowler, 453 N.J. Super. 499,


                                        1
511 (2018). I dissent because the majority, in overturning the Appellate

Division, has taken a constricted view of self-defense that is at odds with the

New Jersey Code of Criminal Justice, our jurisprudence, and case law in other

jurisdictions.

      I concur with the majority that the trial court was not required to charge

the jury on the lesser-included offenses of aggravated manslaughter and

reckless manslaughter. Neither Hearns nor Fowler requested the lesser-

included charge, and nothing in the record clearly indicates that Hearns -- if he

acted in self-defense -- did so recklessly.

                                         I.

                                        A.

      N.J.S.A. 2C:3-4(a) generally provides that “the use of force upon or

toward another person is justifiable 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.” See also N.J.S.A. 2C:3-4(b)(2) (providing that the use of deadly

force is justifiable when “the actor reasonably believes that such force is

necessary to protect himself against death or serious bodily harm”). A self-

defense charge “must be given” so long as the charge “is requested and

supported by some evidence in the record.” State v. Rodriguez, 195 N.J. 165,


                                         2
174 (2008). In determining whether there is “some evidence” to support the

charge, ibid., the evidence must be “viewed in the light most favorable to the

defendant,” id. at 170 (quoting State v. Galloway, 133 N.J. 631, 648 (1993)).

When self-defense is in the case, the State is required to disprove beyond a

reasonable doubt that the defendant did not act in self-defense. State v. Kelly,

97 N.J. 178, 200 (1984). In other words, an “acquittal is required if there

remains a reasonable doubt whether the defendant acted in self-defense.” Ibid.

      N.J.S.A. 2C:3-9(c) recognizes that a person justifiably defending himself

-- using force “toward the person of another” -- may injure or even kill an

innocent bystander. N.J.S.A. 2C:3-9(c) is our state’s analogue to section 3.09

of the Model Penal Code. Compare N.J.S.A. 2C:3-9(c), with Model Penal

Code and Commentaries § 3.09 at 146-47 (Am. Law. Inst. 1985). In the

comments to section 3.09, the drafters of the Model Penal Code explain that,

“if the only way to save one’s life is to use deadly force that creates some risk

of harm to others, that force might be justified.” Model Penal Code and

Commentaries § 3.09 cmt. 3 at 155. In construing Section 3.09 of the Model

Penal Code, the Supreme Court of Pennsylvania has held that punishing a

crime victim who inadvertently injures a bystander while justifiably exercising

his right of self-preservation furthers no policy of the criminal law.

Commonwealth v. Fowlin, 710 A.2d 1130, 1132, 1134 (Pa. 1998).


                                        3
      The person justifiably acting in self-defense is therefore only criminally

liable if, in defending himself, he recklessly causes injury or death to an

innocent third person. See N.J.S.A. 2C:3-9(c). Under New Jersey’s Criminal

Code, the justification of self-defense “is unavailable in a prosecution for such

recklessness or negligence towards innocent persons” when the person using

force toward another person “recklessly or negligently injures or creates a risk

of injury to innocent persons.” Ibid. (emphasis added). New Jersey’s Code

does not criminalize negligent homicide or negligent assault. Therefore, a

defendant is stripped of self-defense only if he recklessly causes harm to an

innocent person. See Rodriguez, 195 N.J. at 172.

      When N.J.S.A. 2C:3-4(a), N.J.S.A. 2C:3-4(b)(2), and N.J.S.A. 2C:3-9(c)

are read together, they make clear that the justification of self-defense is

available when a person justifiably acts in self-defense toward an aggressor but

accidentally injures or even kills an innocent person.

      For example, a person who defends herself from an axe-wielding

assailant is not stripped of the justification of self-defense if, acting

reasonably, she shoots at him but misses and accidentally kills an innocent

bystander. The same would be true if in attempting to disarm a robber

brandishing a gun -- acting in self-defense -- she accidentally kills a bystander.




                                          4
In those circumstances, if the prosecution does not disprove her self-defense

claim, she is entitled to an acquittal.

      That common-sense conclusion flows from our Code of Criminal Justice

and is recognized by other jurisdictions. See, e.g., People v. Mathews, 91 Cal.

App. 3d 1018, 1024 (Dist. Ct. App. 1979) (“[T]he doctrine of self-defense is

available to insulate one from criminal responsibility where his act, justifiably

in self-defense, inadvertently results in the injury of an innocent bystander.”);

Nelson v. State, 853 So. 2d 563, 565 (Fla. Dist. Ct. App. 2003) (“[I]f the

killing of the party intended to be killed would, under all the circumstances,

have been excusable or justifiable homicide upon the theory of self-defense,

then the unintended killing of a bystander, by a random shot fired in the proper

and prudent exercise of such self-defense, is also excusable or justifiable.”

(quoting Brown v. State, 94 So. 874, 874 (Fla. 1922))); People v. Jackson, 212

N.W.2d 918, 919 (Mich. 1973) (“The unintended killing of an innocent

bystander is not murder if justifiably committed in proper self-defense.”);

People v. Morris, 491 N.Y.S.2d 860, 863 (App. Div. 1985) (“If a reasonable

view of the evidence indicated that defendant may have been justified in

shooting Gibson, then defendant was no less justified in shooting Avery

accidentally.”).




                                          5
      In short, a person who unintentionally injures an innocent bystander

while using justifiable force in self-defense has committed no crime.

                                       B.

      Hearns testified that Jones, in attempting to collect on a purported debt,

threatened him with a handgun outside a nightclub. With the gun pointed at

his stomach and fearing for his life, Hearns grabbed the lower part of Jones’s

arm and repeatedly banged it against his own knee, “trying to knock the gun

out of [Jones’s] hand.” During the struggle, as Hearns used force against

Jones, the gun discharged five or six times. Johnson -- Jones’s cousin -- was

standing nearby and accidentally killed by one or more of the stray bullets.

Hearns’s account clearly amounted to “some evidence in the record” of self-

defense. See Rodriguez, 195 N.J. at 174. Accordingly, at the request of

Hearns, the trial court was required to give a self-defense charge and instruct

the jury that the prosecution had the burden of disproving self-defense beyond

a reasonable doubt. See Kelly, 97 N.J. at 200. If the jury believed that

Hearns’s testimony raised a reasonable doubt, both defendants had a complete

self-defense justification. See Rodriguez, 195 N.J. at 174-75.

      The trial court’s failure to give the requested self-defense charge

deprived both Hearns and his alleged accomplice Fowler of a fair trial. See

Rodriguez, 195 N.J. at 175 (emphasizing that “[c]lear and correct jury


                                        6
instructions are essential for a fair trial” (quoting State v. Martini, 187 N.J.

469, 477 (2006))); see also State v. Grunow, 102 N.J. 133, 148 (1986)

(“Erroneous instructions on matters or issues material to the jurors’

deliberations are presumed to be reversible error.”).

       I therefore would remand for a new trial. See Rodriguez, 195 N.J. at

176.

                                         II.

       Nothing in Hearns’s testimony -- or any other part of the record --

suggests that he acted recklessly in causing Johnson’s death. Because neither

Hearns nor Fowler requested that the trial court charge the lesser-included

offenses of aggravated manslaughter or reckless manslaughter, the court was

not obliged to give those charges unless the record “clearly indicated”

evidence of Hearns’s recklessness. See State v. Denofa, 187 N.J. 24, 42

(2006). Evidence of Hearns’s recklessness was not “jumping off the page” --

the requisite precondition for the court to give sua sponte the non-requested

lesser-included charges. See ibid.

       The trial court thus did not err in failing to charge the jury on the lesser -

included offenses of aggravated manslaughter and reckless manslaughter.




                                          7
                                        III.

      For the reasons expressed, unlike the majority, I would affirm the

Appellate Division’s judgment that Hearns and Fowler were deprived of a fair

trial by the trial court’s failure to charge the jury on self-defense. I concur

with the majority that the trial court did not err in not charging the jury on the

lesser-included offenses of aggravated manslaughter and reckless

manslaughter, and therefore would reverse the Appellate Division on that

issue. Accordingly, I respectfully dissent in part and concur in part.




                                         8
