State v. Apprendi

698 A.2d 1265, 304 N.J. Super. 147, 1997 N.J. Super. LEXIS 365

• Court: New Jersey Superior Court Appellate Division
• Decided: August 19, 1997
• Status: Published

Opinions

HUMPHREYS, J.A.D.

The defendant appeals his extended term sentence which was imposed pursuant to N.J.S.A. 2C:44-3(e) (the “Hate Crime Statute”). The defendant asserts that the statute is unconstitutional because: (1) the statute is too vague; (2) the statute violates his constitutional right to due process by using a preponderance of the evidence standard.

We have thoroughly reviewed the record and considered the arguments presented. We conclude that the statute is constitutional and affirm.

I

The defendant fired a rifle on two occasions in 1994 at the home of a neighbor. On the first occasion, a bullet entered the third floor bedroom of one of the neighbor’s three children. On the second occasion, defendant fired several times and as a result the neighbor’s front door and windows were “bullet-riddled.” Fortunately, no one was injured. The defendant is white; the neighbor is an African-American. The police later searched the defendant’s home and found an “arsenal of weapons,” including an antipersonnel bomb.

The defendant was charged in an indictment with various crimes, including first-degree attempted murder. He pled guilty on July 24, 1995 to counts three and eighteen charging him with the second degree crime of possession of a firearm for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a) and to count twenty-two charging him with the third degree crime of unlawful possession of a prohibited weapon, the anti-personnel bomb, in violation of N.J.S.A. 2C:39-3(a). The defendant conditioned his plea upon the right to appeal his sentence. See R. 3:9—3(f).

The State moved to have the defendant sentenced to an extended term pursuant to N.J.S.A. 2C:44-3(e). That statute provides:

The court shall, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime, ... to an extended term if it finds, by a preponderance of the evidence, the grounds in subsection e____

e. The defendant in committing the crime acted, at least in part, with ill will, hatred or bias toward, and with a purpose to intimidate, an individual or group of individuals because of race, color, religion, sexual orientation or ethnicity.

[Ibid, but see L.1995, c. 211, § 3, eff. Aug. 14, 1995 (amending the text of this statute).]

The extended sentence for the defendant’s second degree crimes is between ten and twenty years which is the ordinary range for a first degree crime. For his third degree crime, the extended sentence would be five to ten years which is the ordinary range for a second degree crime. See N.J.S.A. 2C:43-7(a)(3), (4); N.J.S.A. 2C:43-6(a)(2), (3). In effect, hate crimes are sentenced one degree higher.

A police officer testified at the hearing on the State’s motion that the defendant had told the police that he shot at the house because he knew that blacks were living there and he wanted to give them “a message that they were in his neighborhood.” The defendant, a pharmacist, testified at the hearing. He said that he shot at the front door because the “glass and the purple door” caught his eye and that at the time of the incident, he was under the influence of alcohol and drugs. He denied that he shot at the house because he wanted to keep blacks away from the area. He also denied that he was a racist or a member of any racist group. He said that he had black friends and had no bias against African-Americans. He testified that he lied to the police about his reasons for shooting, because the police officer threatened him and the defendant wanted to get the interrogation over with.

A psychologist testifying for the defendant at the hearing said that the defendant suffered from an obsessive-compulsive disorder, a cyclothymic disorder (excessive mood swings), drug dependence, alcohol abuse, the impulse disorder of kleptomania, and premature ejaculation. The psychologist concluded that a person of defendant’s personality type would say or do almost anything, including lie, to get out of a police interrogation.

The judge found that the testimony of the police officer was “credible, believable.” The judge said that the questioning of the defendant by the police “was not overbearing. It was not onerous or is not in any sense dictatorial.” The judge said he was “satisfied that the crime was motivated by racial bias” and that the defendant’s explanation for the shooting was bizarre. The judge concluded that the defendant had changed his story in order to avoid punishment for a bias crime. The judge found that “the standard of proof required by the statute [preponderance of the evidence] has been met. The defendant is subject to enhanced penalties.”

The defendant was sentenced on count eighteen to an extended term of twelve years with a parole ineligibility of four years, the mandatory minimum parole ineligibility under the Graves Act. See N.J.S.A. 2C:4S-6(c). He was sentenced on count three to a concurrent term of seven years imprisonment with a three year parole bar and on count twenty-two to a concurrent term of three years imprisonment. He was ordered to pay $1,980 restitution to the victim. On each of the three counts, a $100 Violent Crimes Compensation Board penalty and a $75 Safe Street Act penalty were imposed. The remaining counts were dismissed.

II

The defendant contends that the statute is too vague. See State v. Afanador, 134 N.J. 162, 170, 631 A.2d 946 (1993) (a criminal statute is unconstitutionally vague “if persons of common intelligence must necessarily guess at its meaning and differ as to its application”); State v. Cameron, 100 N.J. 586, 593, 498 A.2d 1217 (1985) (a statute is facially invalid where it is “impermissibly vague in all its application, that is, there is no conduct that it proscribes with sufficient certainty”).

The defendant’s contention is refuted by the decision of the New Jersey Supreme Court in State v. Mortimer, 135 N.J. 517, 529, 641 A.2d 257, cert. denied, 513 U.S. 970, 115 S.Ct. 440, 130 L.Ed.2d 351 (1994). In that case, the Court considered the constitutionality of a section of the Hate Crime Statute, N.J.S.A. 2C:33-4(d), which provided that “harassment,” a petty disorderly persons offense, would be raised to a fourth degree offense if the defendant “acted, at least in part, with ill will, hatred or bias toward, and with a purpose to intimidate, an individual or group of individuals because of race, color, religion, sexual orientation or ethnicity.” The defendant in Mortimer, supra, challenged the statute on a number of constitutional grounds including vagueness. The Supreme Court said that if the statute were “construed narrowly and applied to a proper predicate offense, subsection d withstands a Vagueness’ challenge.” 135 N.J. at 531, 641 A.2d 257. The Court cured the vagueness problem by excising the words “at least in part, with ill will, hatred or bias toward.” Id. at 534, 641 A.2d 257.

The section of the Hate Crime Statute at issue in the present case, N.J.S.A. 2C:44-3(e), has the same language as that construed in Mortimer. As was done in Mortimer, we will excise the words “at least in part, with ill will, hatred or bias toward” and thereby overcome the vagueness challenge. We note that the Legislature has already made this change to the text of the statute (the statute was amended by L.1995, c. 211, § 3, eff. Aug. 14, 1995).

III

The Hate Crime Statute provides for an extended term based upon a finding of bias by a preponderance of the evidence. N.J.S.A. 2C:44-3(e). The Due Process clause of the United States Constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970); accord State v. Anderson, 127 N.J. 191, 200-01, 603 A.2d 928 (1992). The defendant argues that using the preponderance of evidence standard to mandate an extended term sentence violates the constitutional requirement that the State must prove the elements of a crime by the reasonable doubt standard.

The flaw in the defendant’s argument is that the Legislature has not made racial bias an element of the crime. The Hate Crime Statute acts as a sentencing factor. The language in the statute is not included in the definition of any crime in the New Jersey Code of Criminal Justice. Instead, the statute is included in a section of the code entitled “authority of court in sentencing.” As to sentencing factors which are not elements of a crime, the State’s burden of proof is not subject to the reasonable doubt standard. See McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2419, 91 L.Ed.2d 67, 79 (1986).

A State has the power to define the elements of a crime. The State’s definition of the elements of the crime is usually “dispositive.” Id. at 85, 106 S.Ct. at 2415, 91 L.Ed.2d at 75. The State’s power to define the elements of a crime has constitutional limits. Id. at 91, 106 S.Ct. at 2419, 91 L.Ed.2d at 79; Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281, 292 (1977) (there are constitutional limits to the State’s power to redefine the elements of a crime so as to eliminate the reasonable doubt standard); Mullaney v. Wilbur, 421 U.S. 684, 699, 95 S.Ct. 1881, 1889-90, 44 L.Ed.2d 508, 519-20 (1975) (the State may not require a defendant charged with murder to bear the burden of proving the elements of manslaughter in order to reduce the crime to manslaughter; the State may not undermine due process by redefining elements that constitute different crimes and characterizing them as factors bearing solely on punishment).

In McMillan, supra, the State statute provided for a mandatory minimum sentence of five years imprisonment if the sentencing judge found by a preponderance of the evidence that the defendant “visibly possessed” a firearm during the commission of certain enumerated felonies. The Supreme Court found the statute to be constitutional. The Court said that the constitutionality of a statute redefining a crime would “depend on differences of degree” and that the statute in McMillan fell on the “permissible side of the constitutional line.” 477 U.S. at 91, 106 S.Ct. at 2419, 91 L.Ed.2d at 79.

The Court pointed out in McMillan that the statute did not create a presumption that the person was guilty of a crime and did not restructure existing crimes to evade the requirements of the Due Process clause. Id. at 87, 106 S.Ct. at 2416-17, 91 L.Ed.2d at 77. The Court said: “[t]he statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense.” Id. at 88, 106 S.Ct. at 2417, 91 L.Ed.2d at 77. Instead, the State has taken a traditional sentencing factor, possession of a firearm, and “dictated the precise weight to be given that factor.” Id. at 89-90, 106 S.Ct. at 2418, 91 L.Ed.2d at 79. The Court also said that the defendants’ claim that visible possession is “really” an element of the crime, “would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment....” Id. at 88, 106 S.Ct. at 2417, 91 L.Ed.2d at 77-78.

The New Jersey Hate Crime Statute does not create a presumption of guilt nor does it restructure any crimes. The statute is not “tailored to permit the [racial or other bias] finding to be a tail which wags the dog of the substantive offense.” See id. at 88, 106 S.Ct. at 2417, 91 L.Ed.2d at 77; State v. Federico, 198 N.J.Super. 120, 128-29, 486 A.2d 882 (App.Div.1984) (the elements distinguishing the degrees of the crime of kidnapping must be determined by the jury and not the judge to avoid undermining a defendant’s constitutional due process rights), aff'd, 103 N.J. 169, 510 A.2d 1147 (1986) (affirming on statutory construction grounds; the Court expressly did not determine whether the result is “compelled by either the United States or New Jersey Constitutions”); see also State v. Anderson, 127 N.J. 191, 603 A.2d 928 (1992) (provision in the Code of Criminal Justice that materiality in a prosecution for perjury is a matter of law for the judge to determine is a violation of the New Jersey Constitution because materiality is an element of the crime).

Further, in New Jersey “motive traditionally has been an important factor for judges to consider at sentencing.” Mortimer, supra, 135 N.J. at 528, 641 A.2d 257. Here, as in McMillan, the State has taken a sentencing factor, the motive for the crime, and prescribed the weight to be given it. See 477 U.S. at 89-90, 106 S.Ct. at 2418, 91 L.Ed.2d at 79.

Numerous cases have held that sentencing factors do not have to be established beyond a reasonable doubt. See State v. Biegenwald, 106 N.J. 13, 59, 524 A.2d 130 (1987) (ordinarily, the State’s contentions at a sentencing proceeding need not be proven beyond a reasonable doubt, even those that are statutorily prescribed); State v. Smith, 279 N.J.Super. 131, 139, 652 A.2d 241 (App.Div. 1995) (the State need not prove beyond a reasonable doubt grading provisions which do not constitute elements of the offense); see also Graves Act, N.J.S.A. 2C:43-6(c) (upon a judge’s finding by a preponderance of the evidence that a defendant used or possessed a gun while committing certain crimes, a sentence of three years without parole must be imposed); State v. Des Marets, 92 N.J. 62, 455 A.2d 1074 (1983) (the Graves Act does not unconstitutionally infringe upon the judicial power to suspend sentences); cf. Wisconsin v. Mitchell, 508 U.S. 476, 490, 113 S.Ct. 2194, 2202, 124 L.Ed.2d 436, 448 (1993) (a penalty enhancement statute for race-based selection of a victim was not unconstitutional, overbroad or violative of free speech); State v. Colella, 298 , 690 A.2d 156 (App.Div.1997) (upholding an extended sentence imposed under the Hate Crime Statute).

The New Jersey Hate Crime Statute does expose the defendant to “greater and additional punishment” and therefore the defendant’s claim has “superficial appeal.” See McMillan, supra, 477 U.S. at 88, 106 S.Ct. at 2417, 91 L.Ed.2d at 78. However, this one factor standing alone does not place the statute on the “impermissible side of the constitutional line.” See id. at 91, 106 S.Ct. at 2419, 91 L.Ed.2d at 79. Court decisions have consistently upheld the constitutionality of statutes containing sentencing factors which impose a greater or additional punishment. In United States v. Rumney, 867 F.2d 714, 717 (1st Cir.), cert. denied, 491 U.S. 908, 109 S.Ct. 3194, 105 L.Ed.2d 702 (1989), the court held that the heightened penalty provided by the Armed Career Criminal Act (“ACCA”) 18 U.S.C. § 924(e)(1), for persons who possess a firearm “after having been thrice convicted of burglary/robbery is a sentence enhancer [not] a substantive crime.” Virtually all of the other federal courts of appeal have reached the same conclusion. E.g., United States v. McGatha, 891 F.2d 1520, 1524 nn. 27, 29 (11th Cir.) (noting that all the federal circuit courts of appeal except the second and fifth circuit have held that the ACCA does not create a new offense but is merely a sentence enhancement provision), cert. denied, 495 U.S. 938, 110 S.Ct. 2188, 109 L.Ed.2d 516 (1990); but see United States v. Davis, 801 F.2d 754 (5th Cir.1986); see also United States v. Palacios-Casguete, 55 F.3d 557 (11th Cir.1995) (agreeing with four and disagreeing with one federal circuit courts of appeal by holding that a criminal statute regarding deported aliens remaining unlawfully in the United States is - a sentence enhancing statute as opposed to a statute defining a separate crime).

The merits of hate crime statutes have been widely recognized. Most of the states have enacted hate crime statutes which provide for enhanced sentences for bias crimes. See Craig P. Gaumer, Punishment for Prejudice: A Commentary on the Constitutionality and Utility of State Statutory Responses to the Problem of Hate Crimes, 39 S.D.L.Rev. 1, 9 & n. 39 (1994) (noting that as of 1994, twenty-nine states had enacted Hate Crime Statutes which were “essentially” sentence enhancement statutes).

In Mortimer, supra, the Supreme Court stated:

[tjhe Legislature can surely treat bias-motivated offenses with an enhanced level of severity, because bias crimes, by nature, have distinct harmful effects. As the Supreme Court has noted, “bias-motivated crimes are more likely [than other crimes] to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.” Therefore, a regulation providing harsher penalties for bias-motivated crimes is appropriate as a means of addressing the greater harm those crimes cause.

Thus, we hold that subsection d does not violate the First Amendment. The statute neither regulates protected expression nor impermissibly punishes motive.

[ 135 N.J. at 529, 641 A.2d 257 (citation omitted) (emphasis added).]

In providing for enhanced sentencing in crimes motivated by racial bias, the Legislature has not trespassed on the fundamental element of criminal intent. The requisite criminal intent for this defendant’s crimes has been established by his plea of guilty, namely, (1) having a firearm in his possession “with a purpose” to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4(a); and (2) “knowingly” having in his possession a destructive device. N.J.S.A. 2C:39-3. Motive is quite different from intent. “... [MJotive is the inducement for doing an act; the intent is the resolve to commit an act.” Stated differently, motive relates to the end; intent relates to the means. Bryan A. Garner A Dictionary of Modem Legal Usage 458 (2d Ed.1995).

In Morss v. Forbes, 24 N.J. 341, 359, 132 A.2d 1 (1957), the Court said that intent should not be “confused” with motive and “proof of motive is never essential to a conviction but may be evidential.” In Snakenberg v. Hartford Casualty Ins. Co., 299 S.C. 164, 383 S.E.2d 2, 7 & n. 7 (Ct.App.1989), the court said: “purpose relates to the result desired by the actor; motive is his subjective reason for desiring the result.” See also 21 Am.Jur.2d Criminal Law § 173 (1981) (“In criminal law motive may be defined as that which leads or tempts the mind to indulge in a criminal act, or as the moving power which impels to action for a definite result. Motive is distinguishable from intent, which is the purpose to use a particular means to effect a certain result. Motive is not an essential element of any crime, unless made so by statute.”)

The parties have not cited and our legal research has not • uncovered any ease in which the motive for the crime when used solely as a sentencing enhancer or factor is transformed into an element of the crime which then must be established beyond a reasonable doubt. The modern trend in the law is in the opposite direction. Sentencing judges are being given more discretion to engage in factfinding regarding the circumstances of the crime. As stated in a law review article:

Under real-offense sentencing systems, [sentencing] judges are given spacious authority to determine an offender’s “real” crimes____

The United States Constitution, as currently interpreted, imposes virtually no restrictions on the practices of real-offense sentencing. Any constitutional constraints that might be imagined by lawyers or academics would require the making of “new Law,” and the present Supreme Court has given no signals of movement in that direction. Indeed, the few major rulings handed down by the Court Have uniformly given the states wide latitude in structuring their laws concerning factfinding at sentencing.

[Kevin R. Reitz, Sentencing Facts: Travesties of Real-Offense Sentencing, 45 Stan.L.Rev. 523, 542 (1993); see also Elizabeth T. Lear, Is Conviction Irrelevant?, 40 U.C.L.A.L.Rev. 1179 (1993) (criticizing real offense sentencing and McMillan); Susan N. Werman, The Tail that Wagged the Dog: Bifurcated Fact-Finding Under the Federal Sentencing Guidelines and the Limits of Due Process, 66 S.Cal.L.Rev. 289 (1992) (same).]

We recognize that in a given case, a draconian statutory sentencing mandate based upon a finding of motive reached only by a preponderance of the evidence could infringe on a defendant’s due process rights. However, we are also mindful that an act of the Legislature should not be lightly east aside. Legislatures “are guardians of the liberty and welfare of the people in quite as great a degree as the courts.” Missouri, Kansas & Texas Railway Co. v. May, 194 U.S. 267, 270, 24 S.Ct. 638-39, 48 L.Ed. 971, 973 (1904) (Holmes, J.). Further, “every possible presumption favors the validity of an act of the Legislature.” New Jersey Sports & Exposition Auth. v. McCrane, 61 N.J. 1, 8, 292 A.2d 545 (1972). We are satisfied that this statute falls on the permissible side of the constitutional line. See McMillan, supra, 477 U.S. at 91, 106 S.Ct. at 2419, 91 L.Ed.2d at 79.

In sum, if a person is convicted of a crime by a plea of guilty or by proof beyond a reasonable doubt, we find no constitutional impediment to a statutory requirement for an extended term upon the sentencing judge being satisfied by a preponderance of the evidence that the crime was committed because of racial hatred.

Affirmed.