B. Honest and Reasonable Belief
Defendant’s belief in the necessity of force must not
only be held honestly, but also be reasonable. State v.
Moore, 158 N.J. 292 (1999); State v. Gartland, 149 N.J.
456 (1997); State v. Bowens, 108 N.J. 622 (1987); State v.
Kelly, 97 N.J. 178 (1984); State v. Aguiar, 322 N.J. Super.
175 (App. Div. 1999); State v. Hines, 303 N.J. Super. 311
(App. Div. 1997); State v. Bryant, 288 N.J. Super. 27 (App.
Div.), certif. denied, 144 N.J. 589 (1996); State v. Rivers,
252 N.J. Super. 142 (App. Div. 1991); State v. Burks, 208
N.J. Super. 595 (App. Div. 1986). What is a reasonable
belief is measured by an objective standard, not what
defendant believed reasonable. Moore, supra; Kelly, supra;
State v. Bess, 53 N.J. 10 (1968); Bryant, supra; State v.
Johnston, 257 N.J. Super. 178 (App. Div. 1992). The jury
must judge the reasonableness of the belief in light of all of
the circumstances known to defendant at the time of the
action. Bess, supra; Aguiar, supra; Bryant, supra.
Actual shooting is not required to establish defendant’s
honest and reasonable belief in the need for use of deadly
force. A party brandishing a firearm and otherwise
threatening defendant could establish such reasonable
belief. Burks, supra. However, an armed defendant could
not have such belief if another unarmed person attempts to
seize the gun but does not gain control of it. Moore, supra.
And, a defendant who brandishes his gun first could not
have such belief if the victim then responds by putting his
hand in his pocket to feign possession of a gun. Rivers,
supra. Additionally, defendant’s alleged skill with deadly
weapons is not admissible because of its irrelevance to a
belief in the need for force. State v. Coyle, 119 N.J. 194
(1990).
The victim’s character trait of aggressiveness is
admissible as to the reasonableness of defendant’s belief
only if defendant had prior knowledge of it. Gartland,
supra. However, even without such prior knowledge, this
trait may be admissible to corroborate the circumstances
that defendant’s claims called for self-defense. Aguiar,
supra; see State v. Conyers, 58 N.J. 123 (1971); see also,
N.J.R.E. 404(a)(2) (permitting admission of evidence of a
pertinent character trait of victim). Additionally, a
defendant charged with murder and asserting a claim of
self-defense is entitled to discovery from the State of a
criminal case history of the victim relating to charges
involving violence, aggressiveness, or offenses against
persons. State v. Carter, 278 N.J. Super. 629 (Law Div.
1994).
Expert testimony regarding psychological disabilities
or lack of intelligence is not admissible as to the
reasonableness of defendant’s belief. Bess, supra; State v.
Sikora, 44 N.J. 453 (1965). However, expert testimony
about “battered-woman’s syndrome” and post-traumatic
stress disorder is admissible on the issues of honesty and
reasonableness of defendant’s belief. Kelly, supra; Hines,
supra.C. ImminenceDefendant must believe that the use of force is
immediately necessary on the present occasion. Even a
defendant who has armed himself in advance of a
confrontation with another may be justified in the use of
force if, in the actual confrontation, that use becomes
immediately necessary. State v. Harmon, 104 N.J. 189
(1986); State v. Lopez, 213 N.J. Super. 324 (App. Div.
1985). However, most conspiracy cases to commit murder
or attempted murder will generally involve planning and
other actions which can not be considered an immediate
response to an immediate threat. State v. Buonadonna, 122
N.J. 22 (1991).D. Actual NecessityIt is not imperative that actual necessity exist in order
to act in self-defense. Defendant’s belief may be mistaken.
State v. Kelly, 97 N.J. 178 (1984); State v. Aguiar, 322 N.J.
Super. 175 (App. Div. 1999); State v. Bryant, 288 N.J.
Super. 27 (App. Div.), certif. denied, 144 N.J. 589 (1996);
State v. Johnston, 257 N.J. Super. 178 (App. Div. 1992);
State v. Rivers, 252 N.J. Super. 142 (App. Div. 1991); State
v. Burks, 208 N.J. Super. 595 (App. Div. 1986).E. Unlawfulness of Force by AggressorUnlawful force is defined as force which is employed
without the consent of the person to whom it is directed
and constitutes an offense or actionable tort. N.J.S.A.
2C:3-11a.F. Use of Force by DefendantA person may not use more force than that which he
reasonably believes is necessary to repel the attack. It need
not be proportionate to the force used against defendant.
State v. Kelly, 97 N.J. 178 (1984); State v. Fair, 45 N.J. 77
(1965); State v. Bryant, 288 N.J. Super. 27 (App. Div.),
certif. denied, 144 N.J. 589 (1996).