(N.J.S.A. 2C:35-9) model jury charge
(Count ________ of) the indictment
charges the defendant as follows:
(Read Indictment)
The pertinent part of the statute (N.J.S.A.
2C:35-9) on which this indictment is based reads as follows:
Any person who (manufactures) (distributes) or (dispenses)
(methamphetamine), (lysergic acid diethylamide), (phencyclidine) or (any other
controlled dangerous substance classified in Schedules I or II) or (any
controlled substance analog thereof) is strictly liable for a death which
results from the injection, inhalation, or ingestion of that substance and is
guilty of a . . . crime.[1]
This
statute, read together with the indictment, identifies the elements which the
State must prove beyond a reasonable doubt to establish guilt of the defendant
on this (count of the) indictment. The
elements are that:
1. The defendant (manufactured), (distributed)
or (dispensed) (methamphetamine), (lysergic acid diethylamide), (phencyclidine)
or (any . . . controlled dangerous substance classified in Schedules I or II)
or (any controlled substance analog thereof);[2]
2. The defendant acted knowingly or purposefully
in (manufacturing), (dispensing) or (distributing) the (insert appropriate
substance);
3. (Insert
name of alleged victim) injected, inhaled, or ingested the (insert appropriate
substance) (manufactured), (distributed) or (dispensed) by the defendant;
4. (Insert
name of alleged victim) died as a result of injecting, inhaling, or ingesting
the (insert appropriate substance) (manufactured), (distributed) or (dispensed)
by the defendant. That is, the
defendant’s act of (manufacturing) (distributing) or (dispensing) the (insert
appropriate substance) caused (the name of alleged victim)’s death.
[When it is alleged that a Schedule I or II controlled
dangerous substance, other than those specifically identified in the statute, i.e.
methamphetamine, L.S.D., or phencyclidine was involved, the following should be
charged][3]
With
respect to the first element, the State, as I have said, must prove beyond a
reasonable doubt that the defendant (manufactured), (distributed) or (dispensed)
a Schedule I or II controlled dangerous substance. Here, the State alleges the defendant (manufactured),
(distributed) or (dispensed) (insert appropriate substance, e.g. heroin,
cocaine, etc.). (Insert appropriate
substance) is a Schedule I or II controlled dangerous substance.
[When it is alleged that a
controlled substance analog was involved, the following definition of
controlled substance analog should be charged]
A
“controlled substance analog” is a substance that (1) has a chemical structure
substantially similar to that of a controlled dangerous substance and (2) was
specifically designed to produce an effect substantially similar to that of a
controlled dangerous substance.[4] In this case,
the indictment alleges that the defendant (manufactured), (distributed) or (dispensed)
______________ which is an analog of ________________, which is a Schedule I or
II controlled dangerous substance. Thus,
to establish this part of the first element, the State must prove beyond a
reasonable doubt that __________ has a substantially similar chemical structure
to the dangerous substance _____________, and that ________________ was
specifically designed to produce an effect substantially similar to the
controlled dangerous substance _______________, which is a Schedule I or II
controlled dangerous substance.
[If the indictment alleges the defendant
manufactured the CDS, charge the following definition of manufacture]
“Manufacture”
means the production, preparation, propagation, compounding, conversion or
processing of (insert appropriate substance) either directly or by extraction
from substances of natural origin, or independently by means of chemical
synthesis, or by a combination of extraction and chemical synthesis, and
includes any packaging or repackaging of the substance or labeling or
re-labeling of its container, except that this term does not include the
preparation or compounding of a controlled dangerous substance (or controlled
substance analog) by an individual for his own use or the preparation, compounding,
packaging, or labeling of a controlled dangerous substance: (1) by a
practitioner as an incident to his administering or dispensing of a controlled
dangerous substance or controlled substance analog in the course of his
professional practice, or (2) by a practitioner (or under his supervision) for
the purpose of, or as an incident to, research, teaching or chemical analysis
and not for sale.[5]
In
this regard, the term “practitioner” means a physician, dentist, veterinarian,
scientific investigator, laboratory, pharmacy, hospital or other person
licensed, registered, or otherwise permitted to distribute, dispense, conduct
research with respect to, or administer a controlled dangerous substance (or
controlled substance analog) in the course of professional practice or research
in this State.[6]
[If the indictment alleges
that the defendant distributed the CDS charge the following definition of
distribution.][7]
With
respect to the first element, to “distribute” means the transfer, actual,
constructive or attempted, from one person to another of (insert appropriate
substance).[8] It is not
necessary that the drugs be transferred in exchange for payment or promise of
payment of money or anything of value.[9]
In
regard to the second element, the State must prove beyond a reasonable doubt
that the defendant acted knowingly or purposefully in (manufacturing), (distributing),
or (dispensing) the (insert appropriate substance).
A
person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that
his/her conduct is of that nature, or that such circumstances exist, or he/she is aware of a
high probability of their existence. A
person acts knowingly with respect to a result of his/her conduct if he/she is aware that
it is practically certain that his/her conduct will cause such a result.
“Knowing”, “with knowledge” or equivalent terms have the same meaning.[10]
A
person acts purposely with respect to the nature of his/her conduct or a result thereof if it is his/her conscious object to engage in conduct of that nature or to cause such
a result. A person acts purposely with
respect to attendant circumstances if he/she believes or
hopes that they exist. “With purpose,”
“designed”, “with design” or equivalent terms have the same meaning.[11]
Remember
that when we speak of knowingly and purposely we are speaking of conditions of
the mind that cannot be seen. It is not
necessary for the State to prove the existence of such mental states by direct
evidence such as a statement by the defendant that he/she had particular knowledge or a particular purpose. Knowledge and purpose as separate
propositions of proof do not commonly exist.
They must ordinarily be discovered as other mental states are from
circumstantial evidence; that is, by reference to the defendant’s conduct, words,
or acts and all the surrounding circumstances.
In regard
to the third element, the State must prove beyond a reasonable doubt, as I have
said, that (insert name of alleged victim) injected, inhaled, or ingested the (insert
appropriate substance) (manufactured), (distributed), or (dispensed) by the
defendant.
The
fourth element is that (insert name of alleged victim) died as a result of
injecting, inhaling, or ingesting the (insert appropriate substance) (manufactured),
(distributed), or (dispensed) by the defendant.
To prove this element, the State must prove that the defendant’s act of (manufacturing),
(distributing), or (dispensing) the (insert appropriate substance) caused (insert
name of alleged victim)’s death. In
order for the State to prove this element, the State must prove, beyond a
reasonable doubt, the following:
First,
the State must prove that the injection, inhalation or ingestion of the (insert
appropriate substance) is an antecedent, that is a preceding act, but for which
the death would not have occurred; in other words, that the death would not
have occurred without the injection, inhalation, or ingestion of the (insert
appropriate substance).
Second,
the State must prove that the death was not too remote in its occurrence as to
have a just bearing on defendant’s liability, and,
Third,
the State must prove that the death was not too dependent upon conduct[12] of another person which was unrelated to the (injection),
(inhalation), (ingestion) of the (insert appropriate substance) or to its
effect as to have a just bearing on the defendant’s liability.
In
determining whether the death was not too remote or not too dependent upon the
conduct of another person, you should consider, among all other factors
suggested by the evidence,[13] whether causes other than the (injection), (ingestion),
(inhalation) of the (insert appropriate substance) contributed to the death,
and if so, then the number and nature of such cause or causes.[14] You should
also consider how drug-induced deaths normally occur in comparison with how
this death actually occurred,[15] or, in other words, whether the State has proven
beyond a reasonable doubt that the death did not occur in such an unusual
manner that it would be unjust to find the defendant responsible for the death.[16] You should
also consider, if you find them relevant, the length of time between
defendant’s act of (manufacturing), (distributing), (dispensing) the (insert
appropriate substance) and the place of (insert name of decedent)’s death.
The
fact that (insert alleged victim’s name) contributed to (his/her) own death by
(his/her) purposeful, knowing, reckless, or negligent injection, inhalation, or
ingestion of the (appropriate substance), or by (his/her) consenting to the
administration of (insert appropriate substance) by another is not a defense to
prosecution for this offense.[17] Thus, (insert
name of alleged victim)’s conduct of injecting, inhaling, or ingesting the (insert
appropriate substance) or consenting to its administration by another does not
make the death too remote or too dependent upon the conduct of another to have
a just bearing on defendant’s liability.[18]
[At this point in the charge
the Court should explain the relationship of the remoteness issue to the facts
of the case, if it has not already done so.
If the State’s and defendant’s versions of the facts differ, the charge
should include appropriate instructions with respect to each party’s position].[19]
In
summary, in order for the State to prove the defendant’s guilt under this
(count of the) indictment, the State must prove four elements:
1. That the defendant (manufactured), (distributed),
or (dispensed) (insert appropriate substance);
2. That the defendant did so knowingly or
purposefully;
3. That (insert
name of alleged victim) injected, inhaled, or ingested the (insert appropriate
substance), and
4.
That (insert name of alleged victim) died as a result of injecting, inhaling,
or ingesting the (insert appropriate substance) (manufactured), (distributed),
or (dispensed) by the defendant. In
other words, that the defendant’s act of (manufacturing), (distributing), or (dispensing)
the (insert appropriate substance) caused the victim’s death; that is, but for (insert
name of alleged victim)’s injection, inhalation, or ingestion of the (insert
appropriate substance), (he/she) would not have died, and the death was not too
remote in its occurrence or too dependent upon the conduct of another person
which was unrelated to the injection, inhalation or ingestion of the (insert
appropriate substance) or its effect as to have a just bearing on the
defendant’s liability.
If you
find that the State has proven all of these elements beyond a reasonable doubt
then you must find the defendant guilty.
On the other hand, if you find the State has failed to prove beyond a
reasonable doubt any of these elements, then you must find the defendant not
guilty.
[1] Based on the State’s allegations, the
appropriate act or acts and substance or substances should be selected.
[2] Again, based on the State’s
allegations, the appropriate act or acts and substance or substances should be
selected.
[3] Most indictments containing a drug
induced death count will also include a count for the predicate offense of
manufacturing or distributing the drug.
Therefore, the jury may well have been instructed beforehand on the
elements of manufacturing or distributing a CDS. Under these circumstances, it will probably
be sufficient to direct the jury’s attention to the previously given definition
of these terms and to direct them to utilize that definition in deciding this
count. See State v. Maldonado,
137 N.J. 536, 577 (1994) (trial court instructed jury: “You will rely
upon the law that I have referred to before when I charged to you the law that
applies to a distribution of cocaine”, but then went on to “remind” the jury of
the definition of distribution.) For the
sake of completeness and because the court may wish to reinforce the definition
of these terms, this model charge incorporates the full definition of the
elements of manufacturing and distributing CDS.
[8] This definition is taken from the
definitions of “distribute” and “deliver” set forth in N.J.S.A. 2C:35-2.
[12] In Cannel, Criminal Code
Annotated, at p. 681 (1996-1997 ed.), N.J.S.A. 2C:35-9b2(b) is
erroneously reproduced to read “too dependent upon control of another.” (emphasis added). The correct term is conduct not control. See West, New Jersey
Statutes Annotated, 2C:35-9b2(b) (1995), see also State v.
Maldonado, supra, 137 N.J. at 544 and the 1987 legislative
commentary to N.J.S.A. 2C:35-9, which is reprinted in Cannel, supra,
at 683.
[18] See Cannel, Criminal
Code Annotated, at pp. 682-684 (1996-1997 ed); note, however, that State
v. Maldonado, supra, indicates in dictum that coerced or
unknowing consumption of drugs may be exculpatory. 137 N.J. at 572, n.5.
