[66] Mr. Charles Handler argued the cause for defendant-appellant (Mr. Joel F. Handler, on the brief).

Mr. Martin L. Greenberg, Assistant Prosecutor, argued the cause for plaintiff-respondent (Mr. Brendan T. Byrne, Essex County Prosecutor, attorney).

The opinion of the court was delivered by WEINTRAUB, C.J.

Frank Abbott was convicted of atrocious assault and battery. The Appellate Division affirmed, 64 N.J. Super. 191 (1960), and we granted certification, 34 N.J. 176 (1961).

Abbott shared a common driveway with his neighbors, Michael and Mary Scarano. The Scaranos engaged a contractor to pave their portion. Abbott obtained some asphalt from the contractor and made a doorstop to keep his garage door from swinging onto the Scaranos' property. Nicholas Scarano, who was visiting with the Scaranos, his parents, objected to Abbott's innovation. After some words between them a fist fight ensued.

Although Abbott managed to land the first punch, with which he sent Nicholas to the ground, a jury could find Nicholas was the aggressor. At this point Michael Scarano came at Abbott with a hatchet. Michael said the tool had just been returned to him by the contractor, and denied he [67] meant to use it as a weapon. According to Abbott, Mary Scarano followed, armed with a carving knife and large fork. The actors gave varying versions of what happened, but the end result was that all of the Scaranos were hit by the hatchet. Nicholas received severe head injuries. Abbott claimed he too suffered a laceration.

Abbott admitted he finally wrested the hatchet from Michael but denied he wielded it at all. Rather he insisted that the Scaranos were injured during a common struggle for the instrument. A jury could, however, find Abbott intentionally inflicted the blows.

Abbott was separately indicted for atrocious assault and battery upon each of the Scaranos. There was a common trial of these indictments. The jury acquitted Abbott of the charges relating to Michael and Mary, but found him guilty as to Nicholas.

I.

The principal question is whether the trial court properly instructed the jury upon the issue of self-defense. The trial court charged upon the subject of excessive force, as to which Abbott does not complain. It charged also upon the subject of retreat, and it is here that error is alleged. Although the jury could have found Abbott used excessive force, we cannot know whether the jury found for him on that subject and convicted because he had failed to retreat in accordance with the trial court's instruction.

As to retreat, the trial court charged upon two hypotheses. One was that the critical events occurred upon Abbott's property. Upon that basis, the court said Abbott could stand his ground, and, of course, of this Abbott does not complain. The second hypothesis was that the alleged offense occurred upon the common driveway. Presumably on the authority of State v. Pontery, 19 N.J. 457, 475 (1955), the trial court held that since all the principals were equally entitled to be on the driveway, Abbott could not claim immunity [68] from the ordinary retreat rule. Abbott does not question that thesis, but disputes the court's statement of the conditions under which an obligation to retreat would arise.

A.

We have the preliminary question whether defendant must demonstrate "plain error" to question the instruction. As the Appellate Division noted, defendant did not record a protest to the charge as given. But he had requested a charge and did note his objection to the trial court's refusal to grant it. His request was erroneous, but nonetheless it is plain he did not acquiesce in the trial court's version. The important fact is that the trial court was alerted to the basic problem and charged in a manner different from the request made. In such circumstances, especially when the controlling principles are complex or unsettled, it would be unreasonable to deny a review merely because a defendant failed to project a formula which squares with our concept of the true doctrine. We would never deny relief merely because a litigant's position on appeal went beyond the point we found to be correct. We should not demand a greater capacity for prediction during the trial itself. We accordingly reach the meritorious issue.

B.

The subject of retreat usually arises in homicide matters. We will first discuss it in that context, and then consider whether the principles apply to a charge of atrocious assault and battery, and if they do, whether the trial court correctly guided the jury in this difficult area.

We should make it clear that we are discussing the doctrine of retreat and not the subject of the use of excessive force. If the force used was unnecessary in its intensity, the claim of self-defense may fall for that reason. In the discussion which follows we assume a defendant used no more force [69] than he believed necessary to protect himself in the circumstances as they reasonably appeared to him, and consider only whether the claim of self-defense should be denied because he could have avoided the use of that force by retreating.

The question whether one who is neither the aggressor nor a party to a mutual combat must retreat has divided the authorities. Self-defense is measured against necessity. Brown v. State, 62 N.J.L. 666, 708 (E. & A.), affirmed, 175 U.S. 172, 20 S.Ct. 77, 44 L.Ed. 119 (1899); State v. Hipplewith, 33 N.J. 300, 316-318 (1960). From that premise one could readily say there was no necessity to kill in self-defense if the use of deadly force could have been avoided by retreat. The critics of the retreat rule do not quarrel with the theoretical validity of this conclusion, but rather condemn it as unrealistic. The law of course should not denounce conduct as criminal when it accords with the behavior of reasonable men. Upon this level, the advocates of no-retreat say the manly thing is to hold one's ground, and hence society should not demand what smacks of cowardice. Adherents of the retreat rule reply it is better that the assailed shall retreat than that the life of another be needlessly spent. They add that not only do right-thinking men agree, but further a rule so requiring may well induce others to adhere to that worthy standard of behavior. There is much dispute as to which view commands the support of ancient precedents, a question we think it would be profitless to explore.

Other jurisdictions are closely divided upon the retreat doctrine. It is said that the preponderant view rejects it. Perkins, Criminal Law 899 (1957); 1 Warren, Homicide § 157, at pp. 767-68 (perm. ed. 1938); Model Penal Code § 3.04, comment 3, at p. 24 (Tent. Draft No. 8, 1958). For additional discussions of the contending views see 1 Wharton, Criminal Law and Procedure § 235 (Anderson 1957); Annotation, 2 L.R.A. (N.S.) 49 (1906); Annotation, 18 A.L.R. 1279 (1922). Our Court of Errors and [70] Appeals deliberately adopted the retreat rule with an awareness of the contending views, State v. Di Maria, 88 N.J.L. 416 (Sup. Ct. 1916), affirmed o.b., 90 N.J.L. 341 (E. & A. 1917), and the doctrine has since been invoked. State v. Centalonza, 18 N.J. Super. 154 (App. Div. 1952); cf. State v. Goldberg, 12 N.J. Super. 293 (App. Div. 1951). The Model Penal Code embraces the retreat rule while acknowledging that on numerical balance a majority of the precedents oppose it. Model Penal Code § 3.04, comment 3, at p. 24 (Tent. Draft No. 8, 1958).

We are not persuaded to depart from the principle of retreat. We think it salutary if reasonably limited. Much of the criticism goes not to its inherent validity but rather to unwarranted applications of the rule. For example, it is correctly observed that one can hardly retreat from a rifle shot at close range. But if the weapon were a knife, a lead of a city block might well be enough. Again, the rule cannot be stated baldly, with indifference to the excitement of the occasion. As Mr. Justice Holmes cryptically put it, "Detached reflection cannot be demanded in the presence of an uplifted knife." Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.Ed. 961, 963 (1921). Such considerations, however, do not demand that a man should have the absolute right to stand his ground and kill in any and all situations. Rather they call for a fair and guarded statement of appropriate principles.

In Brown, supra, the United States Supreme Court said (256 U.S., at p. 343, 41 S.Ct., at p. 502, 65 L.Ed., at p. 963):

"* * * Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt."

The comment to § 3.04 of the Model Penal Code (at p. 24) says the passage just quoted "seems to be a median position" and "would apparently remit the issue to the jury, without [71] a legal mandate on the point." We are not sure we correctly understand these observations. We think it clear that Brown accepted the retreat doctrine, but we do not read the opinion of Mr. Justice Holmes to mean that the subject should be submitted without guidance, thus permitting each jury to decide whether the subject of retreat should be considered, and if so, what the ingredients of the doctrine should be. We know of no jurisdiction which leaves to a jury the task of devising the legal principles. Rather we read Brown to hold only that the particular "formula laid down by the [trial] court" was not "adequate to the protection of the defendant's rights" (256 U.S., at pp. 342-343, 41 S.Ct., at p. 502, 65 L.Ed., at pp. 962-63) in the factual pattern which the defendant there asserted.

We believe the following principles are sound:

1. The issue of retreat arises only if the defendant resorted to a deadly force. It is deadly force which is not justifiable when an opportunity to retreat is at hand. Model Penal Code § 3.04(2)(b)(iii). As defined in § 3.12(2) a deadly force means "force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm."

Hence it is not the nature of the force defended against which raises the issue of retreat, but rather the nature of the force which the accused employed in his defense. If he does not resort to a deadly force, one who is assailed may hold his ground whether the attack upon him be of a deadly or some lesser character. Although it might be argued that a safe retreat should be taken if thereby the use of any force could be avoided, yet, as the comment in the Model Penal Code observes (at p. 23), "The logic of this position never has been accepted when moderate force is used in self-defense; here all agree that the actor may stand his ground and estimate necessity upon that basis." Cf. Prosser, Torts § 19, at p. 90 (2d ed. 1955); Restatement, Torts § 63 (1934). Hence, in a case like the present one, the jury should be instructed that Abbott could hold his ground when Nicholas [72] came at him with his fists, and also when Michael and Mary came at him with the several instruments mentioned, and that the question of retreat could arise only if Abbott intended to use a deadly force.

2. What constitutes an opportunity to retreat which will defeat the right of self-defense? As § 3.04(2)(b)(iii) of the Model Penal Code states, deadly force is not justifiable "if the actor knows that he can avoid the necessity of using such force with complete safety by retreating * * *." We emphasize "knows" and "with complete safety." One who is wrongfully attacked need not risk injury by retreating, even though he could escape with something less than serious bodily injury. It would be unreal to require nice calculations as to the amount of hurt, or to ask him to endure any at all. And the issue is not whether in retrospect it can be found the defendant could have retreated unharmed. Rather the question is whether he knew the opportunity was there, and of course in that inquiry the total circumstances including the attendant excitement must be considered. We add that upon a retrial the facts as developed in the light of this principle may be such that Abbott would be entitled to an instruction that if his version of the approach by Michael and Mary is accepted, the issue of retreat must be resolved in Abbott's favor.

3. There has been some uncertainty in the language of our cases upon the burden of proof with respect to self-defense. The decisions are treated in State v. Chiarello, 69 N.J. Super. 479 (1961), where the Appellate Division correctly said that although the burden is upon a defendant to adduce evidence to support the defense, yet if such evidence appears either in the State's case or upon the defendant's case, the issue must be left to the jury with this instruction: that the burden is upon the State to prove beyond a reasonable doubt that the defense is untrue, and hence there must be an acquittal if there is a reasonable doubt as to whether defendant did act in self-defense within the definition of that defense. Accordingly, if the issue of [73] retreat is raised in connection with the defense of self-defense, the jury should be instructed that the burden is also the State's to prove beyond a reasonable doubt that defendant knew he could have retreated with complete safety, and that if a reasonable doubt upon that question should exist, the issue of retreat must be resolved in defendant's favor.

C.

As we have said, the subject of retreat arises most often in homicide cases. It is equally pertinent if the charge is assault with intent to kill (N.J.S. 2A:90-2). State v. Centalonza, supra (18 N.J. Super. 154). Here the charge is atrocious assault and battery (N.J.S. 2A:90-1), a crime which involves vicious or brutal conduct. State v. Riley, 28 N.J. 188, 197-198 (1958), appeal dismissed and cert. denied, 359 U.S. 313, 79 S.Ct. 891, 3 L.Ed.2d 832 (1959). An intent to kill is not an ingredient of that offense, but an intent to do serious bodily harm would seem to be implicit. The doctrine of retreat reflects a policy with respect to the use of deadly force, and the same policy considerations equally obtain if the end result is something less than murder. The Appellate Division held the doctrine applicable to atrocious assault and battery. The comment to Article 3 of the Model Penal Code (at p. 3) expresses the same view, saying, "If the particular force, for example, would be unjustifiable in a prosecution for homicide it should be equally unjustifiable if the victim survives and what is charged is an assault." This seems sound, and hence an instruction upon the subject is appropriate in a trial for atrocious assault and battery, but the instruction should be expressly centered about the use of deadly force.

D.

We turn to the instruction of the trial court. It reads:

"* * * If you find the charges involved or either of them happened on the joint or common driveway and that the defendant [74] had an available opportunity to retreat and you also find that he was or appeared to be threatened by assault and battery with imminent danger of life or serious bodily harm, again there is no duty to retreat. On the other hand, under the latter circumstances, if you find that he did not appear to be threatened by assault and battery with imminent danger of life or great bodily harm, he had a duty to retreat and if he failed to retreat the defense of self-defense would not avail him and would not constitute a defense to these charges or any of these charges if you find that he had a duty to retreat."

It is at once apparent that the charge consists of abstract propositions, unanchored to the factual setting. It will be recalled the encounter had two phases, although one quickly followed the other. The first phase was an unarmed attack by Nicholas which Abbott met in kind; the second involved, as the jury could find, an attack or apparent attack by hatchet in the hands of Michael and by kitchen utensils allegedly wielded by Mary, both aided by Nicholas who had arisen from the initial punch. We have no way of knowing whether the jury understood Abbott was required to retreat when first assailed by Nicholas alone. The jury may well have so gathered since the instruction excluded self-defense "if you find that he [Abbott] did not appear to be threatened by assault and battery with imminent danger of life or great bodily harm," and of course Nicholas's attack with his fists readily fitted within those terms.

The State asks us to assume the jury understood an unarticulated premise, i.e., that the court was referring solely to the hatchet affair. If we could so assume, still under the instruction the obligation to retreat would depend upon the nature of the attack upon Abbott rather than the amount of force Abbott intended to employ. In short, there was no reference to the use of a deadly force by Abbott. And if we should read the charge in still another way, to wit, that the court was merely defining its prior reference to "an available opportunity" to retreat and hence meant that the opportunity was not "available" if retreat would have subjected Abbott to imminent danger to his life or of great bodily harm but was "available" if he could get away with [75] a hurt of lesser character, still the charge would be incorrect. This is so because there is no obligation to retreat unless retreat can be effected "with complete safety," and indeed with knowledge that retreat can be so effected. Further, upon that interpretation, the instruction would be devoid of any statement of the facts prerequisite for consideration of the subject, i.e., an intent by the defendant to use a deadly force.

We have said enough to indicate the insufficiency of the charge. Even upon study and restudy we are not sure we can extract the thesis the trial court held. A jury which listens to a single reading of an instruction cannot be expected to debate its meaning and reach a correct view of it. A charge should be a clear, unambiguous guide related to the evidence in the case. The conviction must be reversed.

II.

The record of Abbott's direct examination reads in part:

"Q. How much do you weigh, Mr. Abbott? A. At the present time?

Q. At the present time. A. Just close to 200 pounds, right now.

Q. Now, on July 15, 1957 [the date of the alleged crime] do you know how much you weighed? About July 15, not necessarily on that day, say within a few pounds either way. A. About 135, 140 pounds, I guess.

Q. Why was your weight so low at that time?

Mr. Loftus: I object on the ground it is irrelevant. I don't see any relevancy to this situation.

The Court: I will sustain the objection."

Defendant complains he was thereby barred from showing serious medical conditions, pertinent to his ability to defend with lesser force or to retreat with safety. The Appellate Division held defendant failed to comply with R.R. 1:5-1(a) in that he did not object to the ruling, and further held there was no manifest wrong or injury.

The cited rule reads in part:

"* * * Error in the admission or rejection of testimony, or in the charge of the court, or in the refusal to charge as requested by [76] the defendant, or in the denial by the court of any matter resting in discretion, or in any other ruling or order made during the course of the trial, shall be cause for reversal if specific objection thereto was made and it appears from the entire record of the proceedings had upon the trial that the defendant thereby suffered manifest wrong or injury." (Emphasis added)

Read literally, this rule would seem to require a specific objection to be stated after an offer of proof has been rejected, and some casual statements might be read to support that theme. State v. Gibson, 15 N.J. 384, 391 (1954); State v. Huff, 14 N.J. 240, 248 (1954); State v. Hogan, 20 N.J. Super. 1, 9 (App. Div. 1952). Thus understood, the rule could be thought to continue the discredited practice of former days under which error could not be asserted on appeal unless at the trial counsel had intoned "exception."

Our rules do not perpetuate mere ritual. Rather the purpose is to require a litigant to make known his position to the end that the trial court may consciously rule upon it. When that has happened, it would be pure ceremony to require some further protest. This view is embodied in R.R. 3:7-8, which reads as follows and in the light of which R.R. 1:5-1(a), quoted above, must be understood:

"Exceptions to rulings or orders of the court or instructions to the jury are not required in order to reserve the questions involved for review on appeal; and for all purposes for which an exception has heretofore been necessary it suffices that the defendant, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and the grounds therefor; but if a party has no opportunity to object to a ruling or order, the absence of an objection shall not thereafter prejudice him."

Actually in the Tentative Draft (1948) of our rules, the provisions of this rule appeared in Rule 1:2-14(a), the forerunner of R.R. 1:5-1(a).

Applied to the admission and exclusion of evidence, these rules have this effect: If a litigant complains of the admission of evidence, he must show he objected to its receipt and stated the reasons for his opposition. If he did, no more is required to preserve his right to appellate [77] review. If the litigant complains of an exclusion of evidence, it is enough that his adversary's objection was upheld unless he refused an opportunity to tell the court why he thought the evidence should be admitted. Here Abbott complains of the exclusion of proof. The State objected to the offer as "irrelevant." If the trial court wished Abbott to explain his thesis, an opportunity to do so should have been given. The trial court did not, but rather, apparently satisfied it fully appreciated what was involved, upheld the State. We see no reason to require Abbott to utter "I object" or to attempt to argue against a ruling already announced. He made known the ruling he wished, i.e., admission of the evidence he offered. He did not decline an opportunity to enlighten the court. We are satisfied the alleged error is presented without recourse to the doctrine of "plain error."

There is a different question with which the one just discussed should not be confused. That question is whether a litigant must spread on the record the essence of what he would have proved but for the adverse ruling. R.R. 4:44-3 provides "the examining attorney may make a specific offer of what he expects to prove by the answer of the witness." The rule in terms applies to civil matters but is merely declaratory of prior good practice and should be observed as well in criminal proceedings. Without such disclosure, an appellate court cannot readily evaluate whether the exclusion, although erroneous, resulted in manifest wrong or injury. State v. Micci, 46 N.J. Super. 454, 458 (App. Div. 1957); see State v. Gambutti, 36 N.J. Super. 219, 233 (App. Div. 1955); New Jersey Highway Authority v. Rudd, 36 N.J. Super. 1, 5 (App. Div. 1955).

Of course the details of the proffered proof ultimately depend upon the integrity of counsel, and that being so, a representation first made on appeal might be argued to be no less meaningful. But the proffer should be made at trial, for at least the reason that the statement may well induce the trial judge to reconsider and perhaps to reverse his ruling.

[78] Our experience indicates widespread failure to place such offers upon the trial record. Indeed, frequently we receive our first glimpse in response to questions at oral argument. In the present case the disclosure first appeared in the brief on appeal, wherein we are told defendant wanted to prove serious injuries and illness from which he was in the process of recovery at the time of the alleged offense. The admissibility of such proof on the issues of excessive force and of retreat is too evident to require discussion. The question disallowed was on its face suggestive of proof of that kind. Since the judgment must be reversed for other reasons already given, we need not speak further of the sufficiency of the record. But we take this opportunity to remind the bar that a failure to spread the offer on the trial record may lead the appellate court to conclude that it cannot find the error was harmful.

III.

Abbott further urges the State could not move the indictment against him because prior thereto it had brought Michael Scarano to trial for assault with intent to kill him, which trial resulted in an acquittal. We think the Appellate Division correctly rejected this contention.

IV.

Since the case must be remanded, we refer to a ruling of which Abbott does not here complain, lest it be repeated at a retrial. During direct examination Abbott was asked, "At any time did you intentionally strike anybody with this ax?" The State objected "on the ground it is leading," and was sustained. Curiously, a question essentially the same had already been asked and answered. After that question was answered, the State objected without specifying any ground. The trial court replied, "I think it is admissible and is answered anyway. I will permit it to stand."

The objection that the question was "leading" was unsound. In a sense every question is "leading." If [79] interrogation did not lead, a trial would get nowhere. Indeed one vice of a question such as, "What is your position in this case?," is that it does not lead enough, and thus would deny the opposing party an opportunity to guard against the rankest kind of improper proof. A question must invite the witness's attention to something. No formula can be stated with confidence that it will embrace all situations. But it may be said that ordinarily a question is not improperly leading unless it suggests what the answer should be or contains facts which in the circumstances can and should originate with the witness. See generally McCormick, Evidence § 6 (1954); 3 Wigmore, Evidence §§ 769-72 (3d ed. 1940). The question whether Abbott intentionally struck any of the Scaranos with the ax was perfectly proper; we do not see how else it could be phrased. Cf. State v. Len, 108 N.J.L. 439, 440 (Sup. Ct. 1932).

Since the objection to the earlier question was not particularized, it is appropriate to add that questions addressed to the mental operations of a defendant are thoroughly proper when such operations are an ingredient of the State's case or of a defense. See State v. Myers, 7 N.J. 465, 483 (1951); State v. Len, supra (108 N.J.L. 439). Relevancy and materiality are obvious. And a defendant's competency to testify thereto is equally plain. Indeed no one knows better than he. Of course, he may not be believed, but his self-interest is not a bar, and has not been since the demise of the common-law rule which denied the stand to a party to a controversy. See 2 Wigmore, Evidence § 579, at p. 701 (3d ed. 1940).

The judgment is reversed and the matter remanded for further proceedings not inconsistent herewith.

For reversal and remandment — Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 7.

For affirmance — None.

Robert M. Morgenthau, District Attorney (Robert M. Pitler, Mark Dwyer and Gregory L. Waples of counsel), for appellant.

Mark M. Baker, Barry Ivan Slotnick and Michael Shapiro for respondent.

Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur.

[99] Chief Judge WACHTLER.

A Grand Jury has indicted defendant on attempted murder, assault, and other charges for having shot and wounded four youths on a New York City subway train after one or two of the youths approached him and asked for $5. The lower courts, concluding that the prosecutor's charge to the Grand Jury on the defense of justification was erroneous, have dismissed the attempted murder, assault and weapons possession charges. We now reverse and reinstate all counts of the indictment.

I.

The precise circumstances of the incident giving rise to the charges against defendant are disputed, and ultimately it will be for a trial jury to determine what occurred. We feel it necessary, however, to provide some factual background to [100] properly frame the legal issues before us. Accordingly, we have summarized the facts as they appear from the evidence before the Grand Jury. We stress, however, that we do not purport to reach any conclusions or holding as to exactly what transpired or whether defendant is blameworthy. The credibility of witnesses and the reasonableness of defendant's conduct are to be resolved by the trial jury.

On Saturday afternoon, December 22, 1984, Troy Canty, Darryl Cabey, James Ramseur, and Barry Allen boarded an IRT express subway train in The Bronx and headed south toward lower Manhattan. The four youths rode together in the rear portion of the seventh car of the train. Two of the four, Ramseur and Cabey, had screwdrivers inside their coats, which they said were to be used to break into the coin boxes of video machines.

Defendant Bernhard Goetz boarded this subway train at 14th Street in Manhattan and sat down on a bench towards the rear section of the same car occupied by the four youths. Goetz was carrying an unlicensed .38 caliber pistol loaded with five rounds of ammunition in a waistband holster. The train left the 14th Street station and headed towards Chambers Street.

It appears from the evidence before the Grand Jury that Canty approached Goetz, possibly with Allen beside him, and stated "give me five dollars". Neither Canty nor any of the other youths displayed a weapon. Goetz responded by standing up, pulling out his handgun and firing four shots in rapid succession. The first shot hit Canty in the chest; the second struck Allen in the back; the third went through Ramseur's arm and into his left side; the fourth was fired at Cabey, who apparently was then standing in the corner of the car, but missed, deflecting instead off of a wall of the conductor's cab. After Goetz briefly surveyed the scene around him, he fired another shot at Cabey, who then was sitting on the end bench of the car. The bullet entered the rear of Cabey's side and severed his spinal cord.

All but two of the other passengers fled the car when, or immediately after, the shots were fired. The conductor, who had been in the next car, heard the shots and instructed the motorman to radio for emergency assistance. The conductor then went into the car where the shooting occurred and saw Goetz sitting on a bench, the injured youths lying on the floor or slumped against a seat, and two women who had apparently [101] taken cover, also lying on the floor. Goetz told the conductor that the four youths had tried to rob him.

While the conductor was aiding the youths, Goetz headed towards the front of the car. The train had stopped just before the Chambers Street station and Goetz went between two of the cars, jumped onto the tracks and fled. Police and ambulance crews arrived at the scene shortly thereafter. Ramseur and Canty, initially listed in critical condition, have fully recovered. Cabey remains paralyzed, and has suffered some degree of brain damage.

On December 31, 1984, Goetz surrendered to police in Concord, New Hampshire, identifying himself as the gunman being sought for the subway shootings in New York nine days earlier. Later that day, after receiving Miranda warnings, he made two lengthy statements, both of which were tape recorded with his permission. In the statements, which are substantially similar, Goetz admitted that he had been illegally carrying a handgun in New York City for three years. He stated that he had first purchased a gun in 1981 after he had been injured in a mugging. Goetz also revealed that twice between 1981 and 1984 he had successfully warded off assailants simply by displaying the pistol.

According to Goetz's statement, the first contact he had with the four youths came when Canty, sitting or lying on the bench across from him, asked "how are you," to which he replied "fine". Shortly thereafter, Canty, followed by one of the other youths, walked over to the defendant and stood to his left, while the other two youths remained to his right, in the corner of the subway car. Canty then said "give me five dollars". Goetz stated that he knew from the smile on Canty's face that they wanted to "play with me". Although he was certain that none of the youths had a gun, he had a fear, based on prior experiences, of being "maimed".

Goetz then established "a pattern of fire," deciding specifically to fire from left to right. His stated intention at that point was to "murder [the four youths], to hurt them, to make them suffer as much as possible". When Canty again requested money, Goetz stood up, drew his weapon, and began firing, aiming for the center of the body of each of the four. Goetz recalled that the first two he shot "tried to run through the crowd [but] they had nowhere to run". Goetz then turned to his right to "go after the other two". One of these two "tried to run through the wall of the train, but * * * he had [102] nowhere to go". The other youth (Cabey) "tried pretending that he wasn't with [the others]" by standing still, holding on to one of the subway hand straps, and not looking at Goetz. Goetz nonetheless fired his fourth shot at him. He then ran back to the first two youths to make sure they had been "taken care of". Seeing that they had both been shot, he spun back to check on the latter two. Goetz noticed that the youth who had been standing still was now sitting on a bench and seemed unhurt. As Goetz told the police, "I said `[y]ou seem to be all right, here's another'", and he then fired the shot which severed Cabey's spinal cord. Goetz added that "if I was a little more under self-control * * * I would have put the barrel against his forehead and fired." He also admitted that "if I had had more [bullets], I would have shot them again, and again, and again."

II.

After waiving extradition, Goetz was brought back to New York and arraigned on a felony complaint charging him with attempted murder and criminal possession of a weapon. The matter was presented to a Grand Jury in January 1985, with the prosecutor seeking an indictment for attempted murder, assault, reckless endangerment, and criminal possession of a weapon. Neither the defendant nor any of the wounded youths testified before this Grand Jury. On January 25, 1985, the Grand Jury indicted defendant on one count of criminal possession of a weapon in the third degree (Penal Law § 265.02), for possessing the gun used in the subway shootings, and two counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01), for possessing two other guns in his apartment building. It dismissed, however, the attempted murder and other charges stemming from the shootings themselves.

Several weeks after the Grand Jury's action, the People, asserting that they had newly available evidence, moved for an order authorizing them to resubmit the dismissed charges to a second Grand Jury (see, CPL 190.75 [3]). Supreme Court, Criminal Term, after conducting an in camera inquiry, granted the motion. Presentation of the case to the second Grand Jury began on March 14, 1985. Two of the four youths, Canty and Ramseur, testified. Among the other witnesses were four passengers from the seventh car of the subway who had seen some portions of the incident. Goetz again chose not to [103] testify, though the tapes of his two statements were played for the grand jurors, as had been done with the first Grand Jury.

On March 27, 1985, the second Grand Jury filed a 10-count indictment, containing four charges of attempted murder (Penal Law §§ 110.00, 125.25 [1]), four charges of assault in the first degree (Penal Law § 120.10 [1]), one charge of reckless endangerment in the first degree (Penal Law § 120.25), and one charge of criminal possession of a weapon in the second degree (Penal Law § 265.03 [possession of loaded firearm with intent to use it unlawfully against another]). Goetz was arraigned on this indictment on March 28, 1985, and it was consolidated with the earlier three-count indictment.^[1]

On October 14, 1985, Goetz moved to dismiss the charges contained in the second indictment alleging, among other things, that the evidence before the second Grand Jury was not legally sufficient to establish the offenses charged (see, CPL 210.20 [1] [b]), and that the prosecutor's instructions to that Grand Jury on the defense of justification were erroneous and prejudicial to the defendant so as to render its proceedings defective (see, CPL 210.20 [1] [c]; 210.35 [5]).

On November 25, 1985, while the motion to dismiss was pending before Criminal Term, a column appeared in the New York Daily News containing an interview which the columnist had conducted with Darryl Cabey the previous day in Cabey's hospital room. The columnist claimed that Cabey had told him in this interview that the other three youths had all approached Goetz with the intention of robbing him. The day after the column was published, a New York City police officer informed the prosecutor that he had been one of the first police officers to enter the subway car after the shootings, and that Canty had said to him "we were going to rob [Goetz]". The prosecutor immediately disclosed this information to the court and to defense counsel, adding that this was the first time his office had been told of this alleged statement and that none of the police reports filed on the incident contained any such information. Goetz then orally expanded his motion to [104] dismiss, asserting that resubmission of the charges voted by the second Grand Jury was required under People v Pelchat (62 N.Y.2d 97) because it appeared, from this new information, that Ramseur and Canty had committed perjury.

In an order dated January 21, 1986, Criminal Term granted Goetz's motion to the extent that it dismissed all counts of the second indictment, other than the reckless endangerment charge, with leave to resubmit these charges to a third Grand Jury. The court, after inspection of the Grand Jury minutes, first rejected Goetz's contention that there was not legally sufficient evidence to support the charges. It held, however, that the prosecutor, in a supplemental charge elaborating upon the justification defense, had erroneously introduced an objective element into this defense by instructing the grand jurors to consider whether Goetz's conduct was that of a "reasonable man in [Goetz's] situation". The court, citing prior decisions from both the First and Second Departments (see, e.g., People v Santiago, 110 AD2d 569 [1st Dept]; People v Wagman, 99 AD2d 519 [2d Dept]), concluded that the statutory test for whether the use of deadly force is justified to protect a person should be wholly subjective, focusing entirely on the defendant's state of mind when he used such force. It concluded that dismissal was required for this error because the justification issue was at the heart of the case.^[2]

Criminal Term also concluded that dismissal and resubmission of the charges were required under People v Pelchat (supra) because the Daily News column and the statement by the police officer to the prosecution strongly indicated that the testimony of Ramseur and Canty was perjured. Because the additional evidence before the second Grand Jury, as contrasted with that before the first Grand Jury, consisted largely of the testimony of these two youths, the court found that the integrity of the second Grand Jury was "severely undermined" by the apparently perjured testimony.

On appeal by the People, a divided Appellate Division [105] affirmed Criminal Term's dismissal of the charges. The plurality opinion by Justice Kassal, concurred in by Justice Carro, agreed with Criminal Term's reasoning on the justification issue, stating that the grand jurors should have been instructed to consider only the defendant's subjective beliefs as to the need to use deadly force. Justice Kupferman concurred in the result reached by the plurality on the ground that the prosecutor's charge did not adequately apprise the grand jurors of the need to consider Goetz's own background and learning. Neither the plurality nor the concurring opinion discussed Criminal Term's reliance on Pelchat as an alternate ground for dismissal.

Justice Asch, in a dissenting opinion in which Justice Wallach concurred, disagreed with both bases for dismissal relied upon by Criminal Term. On the justification question, he opined that the statute requires consideration of both the defendant's subjective beliefs and whether a reasonable person in defendant's situation would have had such beliefs. Accordingly, he found no error in the prosecutor's introduction of an objective element into the justification defense. On the Pelchat issue, Justice Asch noted the extensive differences between the Grand Jury evidence in that case and the case at bar and concluded that the out-of-court statements attributed to Cabey and Canty did not affect the validity of the indictment. In a separate dissenting opinion, Justice Wallach stressed that the plurality's adoption of a purely subjective test effectively eliminated any reasonableness requirement contained in the statute.

Justice Asch granted the People leave to appeal to this court. We agree with the dissenters that neither the prosecutor's charge to the Grand Jury on justification nor the information which came to light while the motion to dismiss was pending required dismissal of any of the charges in the second indictment.

III.

Penal Law article 35 recognizes the defense of justification, which "permits the use of force under certain circumstances" (see, People v McManus, 67 N.Y.2d 541, 545). One such set of circumstances pertains to the use of force in defense of a person, encompassing both self-defense and defense of a third person (Penal Law § 35.15). Penal Law § 35.15 (1) sets forth the general principles governing all such uses of force: "[a] [106] person may * * * use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person" (emphasis added).^[3]

Section 35.15 (2) sets forth further limitations on these general principles with respect to the use of "deadly physical force": "A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless (a) He reasonably believes that such other person is using or about to use deadly physical force * * *^[4] or (b) He reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery" (emphasis added).

Thus, consistent with most justification provisions, Penal Law § 35.15 permits the use of deadly physical force only where requirements as to triggering conditions and the necessity of a particular response are met (see, Robinson, Criminal Law Defenses § 121 [a], at 2). As to the triggering conditions, the statute requires that the actor "reasonably believes" that another person either is using or about to use deadly physical force or is committing or attempting to commit one of certain enumerated felonies, including robbery. As to the need for the use of deadly physical force as a response, the statute requires that the actor "reasonably believes" that such force is necessary to avert the perceived threat.^[5]

Because the evidence before the second Grand Jury included statements by Goetz that he acted to protect himself from being maimed or to avert a robbery, the prosecutor correctly chose to charge the justification defense in section 35.15 to the Grand Jury (see, CPL 190.25 [6]; People v Valles, 62 N.Y.2d 36, 38). The prosecutor properly instructed the grand jurors to [107] consider whether the use of deadly physical force was justified to prevent either serious physical injury or a robbery, and, in doing so, to separately analyze the defense with respect to each of the charges. He elaborated upon the prerequisites for the use of deadly physical force essentially by reading or paraphrasing the language in Penal Law § 35.15. The defense does not contend that he committed any error in this portion of the charge.

When the prosecutor had completed his charge, one of the grand jurors asked for clarification of the term "reasonably believes". The prosecutor responded by instructing the grand jurors that they were to consider the circumstances of the incident and determine "whether the defendant's conduct was that of a reasonable man in the defendant's situation". It is this response by the prosecutor — and specifically his use of "a reasonable man" — which is the basis for the dismissal of the charges by the lower courts. As expressed repeatedly in the Appellate Division's plurality opinion, because section 35.15 uses the term "he reasonably believes", the appropriate test, according to that court, is whether a defendant's beliefs and reactions were "reasonable to him". Under that reading of the statute, a jury which believed a defendant's testimony that he felt that his own actions were warranted and were reasonable would have to acquit him, regardless of what anyone else in defendant's situation might have concluded. Such an interpretation defies the ordinary meaning and significance of the term "reasonably" in a statute, and misconstrues the clear intent of the Legislature, in enacting section 35.15, to retain an objective element as part of any provision authorizing the use of deadly physical force.

Penal statutes in New York have long codified the right recognized at common law to use deadly physical force, under appropriate circumstances, in self-defense (see, e.g., 1829 Rev Stat of NY, part IV, ch 1, tit II, § 3; 1881 Penal Code § 205; People v McManus, supra, at p 546). These provisions have never required that an actor's belief as to the intention of another person to inflict serious injury be correct in order for the use of deadly force to be justified, but they have uniformly required that the belief comport with an objective notion of reasonableness. The 1829 statute, using language which was followed almost in its entirety until the 1965 recodification of the Penal Law, provided that the use of deadly force was justified in self-defense or in the defense of specified third persons "when there shall be a reasonable ground to apprehend [108] a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished".

In Shorter v People (2 N.Y. 193), we emphasized that deadly force could be justified under the statute even if the actor's beliefs as to the intentions of another turned out to be wrong, but noted there had to be a reasonable basis, viewed objectively, for the beliefs. We explicitly rejected the position that the defendant's own belief that the use of deadly force was necessary sufficed to justify such force regardless of the reasonableness of the beliefs (id., at pp 200-201).

In 1881, New York reexamined the many criminal provisions set forth in the revised statutes and enacted, for the first time, a separate Penal Code (see generally, 1937 Report of NY Law Rev Commn, Communication to Legislature Relating to Homicide, at 525, 529 [hereafter cited as Communication Relating to Homicide]). The provision in the 1881 Penal Code for the use of deadly force in self-defense or to defend a third person was virtually a reenactment of the language in the 1829 statutes,^[6] and the "reasonable ground" requirement was maintained.

The 1909 Penal Law replaced the 1881 Penal Code. The language of section 205 of the 1881 code pertaining to the use of deadly force in self-defense or in defense of a third person was reenacted, verbatim, as part of section 1055 of the new Penal Law. Several cases from this court interpreting the 1909 provision demonstrate unmistakably that an objective element of reasonableness was a vital part of any claim of self-defense. In People v Lumsden (201 N.Y. 264, 268), we approved a charge to the jury which instructed it to consider whether the circumstances facing defendant were such "as would lead a reasonable man to believe that [an assailant] is about to kill or to do great bodily injury" (see also, People v Ligouri, 284 N.Y. 309, 316, 317). We emphatically rejected the position that any belief by an actor as to the intention of another to cause severe injury was a sufficient basis for his use of deadly force, and stated specifically that a belief based upon "mere fear or fancy or remote hearsay information or a delusion pure and simple" would not satisfy the requirements of the statute (201 NY, at p 269). In People v Tomlins (213 N.Y. 240, 244), [109] we set forth the governing test as being whether "the situation justified the defendant as a reasonable man in believing that he was about to be murderously attacked."

Accordingly, the Law Revision Commission, in a 1937 Report to the Legislature on the Law of Homicide in New York, summarized the self-defense statute as requiring a "reasonable belief in the imminence of danger", and stated that the standard to be followed by a jury in determining whether a belief was reasonable "is that of a man of ordinary courage in the circumstances surrounding the defendant at the time of the killing" (Communication Relating to Homicide, op. cit., at 814). The Report added that New York did not follow the view, adopted in a few States, that "the jury is required to adopt the subjective view and judge from the standpoint of the very defendant concerned" (id., at 814).

In 1961 the Legislature established a Commission to undertake a complete revision of the Penal Law and the Criminal Code. The impetus for the decision to update the Penal Law came in part from the drafting of the Model Penal Code by the American Law Institute, as well as from the fact that the existing law was poorly organized and in many aspects antiquated (see, e.g., Criminal Law Revision Through A Legislative Commission: The New York Experience, 18 Buff L Rev 213; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469). Following the submission by the Commission of several reports and proposals, the Legislature approved the present Penal Law in 1965 (L 1965, ch 1030), and it became effective on September 1, 1967. The drafting of the general provisions of the new Penal Law (see, Penal Law part I), including the article on justification (id., art 35), was particularly influenced by the Model Penal Code (see, Denzer, Drafting a New York Penal Law for New York, 18 Buff L Rev 251, 252; Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Colum L Rev 1425, 1428). While using the Model Penal Code provisions on justification as general guidelines, however, the drafters of the new Penal Law did not simply adopt them verbatim.

The provisions of the Model Penal Code with respect to the use of deadly force in self-defense reflect the position of its drafters that any culpability which arises from a mistaken belief in the need to use such force should be no greater than the culpability such a mistake would give rise to if it were made with respect to an element of a crime (see, ALI, Model [110] Penal Code and Commentaries, part I, at 32, 34 [hereafter cited as MPC Commentaries]; Robinson, Criminal Law Defenses, op. cit., at 410). Accordingly, under Model Penal Code § 3.04 (2) (b), a defendant charged with murder (or attempted murder) need only show that he "believe[d] that [the use of deadly force] was necessary to protect himself against death, serious bodily injury, kidnapping or [forcible] sexual intercourse" to prevail on a self-defense claim (emphasis added). If the defendant's belief was wrong, and was recklessly, or negligently formed, however, he may be convicted of the type of homicide charge requiring only a reckless or negligent, as the case may be, criminal intent (see, Model Penal Code § 3.09 [2]; MPC Commentaries, op. cit., part I, at 32, 150).

The drafters of the Model Penal Code recognized that the wholly subjective test set forth in section 3.04 differed from the existing law in most States by its omission of any requirement of reasonableness (see, MPC Commentaries, op. cit., part I, at 35; LaFave & Scott, Criminal Law § 53, at 393-394). The drafters were also keenly aware that requiring that the actor have a "reasonable belief" rather than just a "belief" would alter the wholly subjective test (MPC Commentaries, op. cit., part I, at 35-36). This basic distinction was recognized years earlier by the New York Law Revision Commission and continues to be noted by the commentators (Communication Relating to Homicide, op. cit., at 814; Robinson, Criminal Law Defenses, op. cit.; Note, Justification: The Impact of the Model Penal Code on Statutory Reform, 75 Colum L Rev 914, 918-920).

New York did not follow the Model Penal Code's equation of a mistake as to the need to use deadly force with a mistake negating an element of a crime, choosing instead to use a single statutory section which would provide either a complete defense or no defense at all to a defendant charged with any crime involving the use of deadly force. The drafters of the new Penal Law adopted in large part the structure and content of Model Penal Code § 3.04, but, crucially, inserted the word "reasonably" before "believes".

The plurality below agreed with defendant's argument that the change in the statutory language from "reasonable ground," used prior to 1965, to "he reasonably believes" in Penal Law § 35.15 evinced a legislative intent to conform to the subjective standard contained in Model Penal Code § 3.04. This argument, however, ignores the plain significance of the [111] insertion of "reasonably". Had the drafters of section 35.15 wanted to adopt a subjective standard, they could have simply used the language of section 3.04. "Believes" by itself requires an honest or genuine belief by a defendant as to the need to use deadly force (see, e.g., Robinson, Criminal Law Defenses, op. cit. § 184 (b), at 399-400). Interpreting the statute to require only that the defendant's belief was "reasonable to him," as done by the plurality below, would hardly be different from requiring only a genuine belief; in either case, the defendant's own perceptions could completely exonerate him from any criminal liability.

We cannot lightly impute to the Legislature an intent to fundamentally alter the principles of justification to allow the perpetrator of a serious crime to go free simply because that person believed his actions were reasonable and necessary to prevent some perceived harm. To completely exonerate such an individual, no matter how aberrational or bizarre his thought patterns, would allow citizens to set their own standards for the permissible use of force. It would also allow a legally competent defendant suffering from delusions to kill or perform acts of violence with impunity, contrary to fundamental principles of justice and criminal law.

We can only conclude that the Legislature retained a reasonableness requirement to avoid giving a license for such actions. The plurality's interpretation, as the dissenters below recognized, excises the impact of the word "reasonably". This same conclusion was recently reached in Justice Levine's decision for a unanimous Third Department in People v Astle (117 AD2d 382), in which that court declined to follow the First Department's decision in this case (see also, People v Hamel, 96 AD2d 644 [3d Dept]).

The change from "reasonable ground" to "reasonably believes" is better explained by the fact that the drafters of section 35.15 were proposing a single section which, for the first time, would govern both the use of ordinary force and deadly force in self-defense or defense of another. Under the 1909 Penal Law and its predecessors, the use of ordinary force was governed by separate sections which, at least by their literal terms, required that the defendant was in fact responding to an unlawful assault, and not just that he had a reasonable ground for believing that such an assault was occurring (see, 1909 Penal Law §§ 42, 246 [3]; People v Young, 11 N.Y.2d 274; 7 Zett, New York Criminal Practice ¶ 65.3). [112] Following the example of the Model Penal Code, the drafters of section 35.15 eliminated this sharp dichotomy between the use of ordinary force and deadly force in defense of a person. Not surprisingly then, the integrated section reflects the wording of Model Penal Code § 3.04, with the addition of "reasonably" to incorporate the long-standing requirement of "reasonable ground" for the use of deadly force and apply it to the use of ordinary force as well (see, Zett, New York Criminal Practice, § 65.3 [1], [2]; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1500).

The conclusion that section 35.15 retains an objective element to justify the use of deadly force is buttressed by the statements of its drafters. The executive director and counsel to the Commission which revised the Penal Law have stated that the provisions of the statute with respect to the use of deadly physical force largely conformed with the prior law, with the only changes they noted not being relevant here (Denzer & McQuillan, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 35.15, p 63 [1967]). Nowhere in the legislative history is there any indication that "reasonably believes" was designed to change the law on the use of deadly force or establish a subjective standard. To the contrary, the Commission, in the staff comment governing arrests by police officers, specifically equated "[he] reasonably believes" with having a reasonable ground for believing (Penal Law § 35.30; Fourth Interim Report of the Temporary State Commission on Revision of the Penal Law and Criminal Code at 17-18, 1965 NY Legis Doc No. 25).

Statutes or rules of law requiring a person to act "reasonably" or to have a "reasonable belief" uniformly prescribe conduct meeting an objective standard measured with reference to how "a reasonable person" could have acted (see, e.g., People v Cantor, 36 N.Y.2d 106; Donovan v Kaszycki & Sons Contrs., 599 F Supp 860, 871; Klotter, Criminal Law, at 312; Fletcher, The Right and the Reasonable, 98 Harv L Rev 949; 57 Am Jur 2d, Negligence, §§ 67, 68). In People v Cantor (supra), we had before us a provision of the Criminal Procedure Law authorizing a police officer to stop a person "when he reasonably suspects that such person is committing, has committed or is about to commit [a crime]" (CPL 140.50 [1]; emphasis added). We held that this section authorized "stops" only when the police officer had "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man [113] under the circumstances to believe criminal activity is at hand" (People v Cantor, 36 NY2d, at pp 112-113, supra).

In People v Collice (41 N.Y.2d 906), we rejected the position that section 35.15 contains a wholly subjective standard. The defendant in Collice asserted, on appeal, that the trial court had erred in refusing to charge the justification defense. We upheld the trial court's action because we concluded that, even if the defendant had actually believed that he was threatened with the imminent use of deadly physical force, the evidence clearly indicated that "his reactions were not those of a reasonable man acting in self-defense" (id., at p 907). Numerous decisions from other States interpreting "reasonably believes" in justification statutes enacted subsequent to the drafting of the Model Penal Code are consistent with Collice, as they hold that such language refers to what a reasonable person could have believed under the same circumstances (see, e.g., State v Kelly, 97 NJ 178, 478 A2d 364, 373-374; Weston v State, 682 P2d 1119, 1121 [Alaska]).

The defense contends that our memorandum in Collice is inconsistent with our prior opinion in People v Miller (39 N.Y.2d 543). In Miller, we held that a defendant charged with homicide could introduce, in support of a claim of self-defense, evidence of prior acts of violence committed by the deceased of which the defendant had knowledge. The defense, as well as the plurality below, place great emphasis on the statement in Miller that "the crucial fact at issue [is] the state of mind of the defendant" (id., at p 551). This language, however, in no way indicates that a wholly subjective test is appropriate. To begin, it is undisputed that section 35.15 does contain a subjective element, namely that the defendant believed that deadly force was necessary to avert the imminent use of deadly force or the commission of certain felonies. Evidence that the defendant knew of prior acts of violence by the deceased could help establish his requisite beliefs. Moreover, such knowledge would also be relevant on the issue of reasonableness, as the jury must consider the circumstances a defendant found himself in, which would include any relevant knowledge of the nature of persons confronting him (see, e.g., People v Taylor, 177 N.Y. 237, 245; Communication Relating to Homicide, op. cit., at 816). Finally, in Miller, we specifically recognized that there had to be "reasonable grounds" for the defendant's belief.

Goetz's reliance on People v Rodawald (177 N.Y. 408) is [114] similarly misplaced. In Rodawald, decided under the 1881 Penal Code, we held that a defendant who claimed that he had acted in self-defense could introduce evidence as to the general reputation of the deceased as a violent person if this reputation was known to the defendant when he acted. We stated, as emphasized by Goetz, that such evidence, "when known to the accused, enables him to judge of the danger and aids the jury in deciding whether he acted in good faith and upon the honest belief that his life was in peril. It shows the state of his mind as to the necessity of defending himself" (177 NY, at p 423). Again, such language is explained by the fact that the threshold question, before the reasonableness issue is addressed, is the subjective beliefs of the defendant. Nowhere in Rodawald did we hold that the only test, as urged by Goetz, is whether the defendant honestly and in good faith believed himself to be in danger. Rather, we recognized that there was also the separate question of whether the accused had "reasonable ground" for his belief, and we upheld the trial court's refusal to charge the jury that the defendant's honest belief was sufficient to establish self-defense (177 NY, at pp 423, 426-427).

Goetz also argues that the introduction of an objective element will preclude a jury from considering factors such as the prior experiences of a given actor and thus, require it to make a determination of "reasonableness" without regard to the actual circumstances of a particular incident. This argument, however, falsely presupposes that an objective standard means that the background and other relevant characteristics of a particular actor must be ignored. To the contrary, we have frequently noted that a determination of reasonableness must be based on the "circumstances" facing a defendant or his "situation" (see, e.g., People v Ligouri, 284 N.Y. 309, 316, supra; People v Lumsden, 201 N.Y. 264, 268, supra). Such terms encompass more than the physical movements of the potential assailant. As just discussed, these terms include any relevant knowledge the defendant had about that person. They also necessarily bring in the physical attributes of all persons involved, including the defendant. Furthermore, the defendant's circumstances encompass any prior experiences he had which could provide a reasonable basis for a belief that another person's intentions were to injure or rob him or that the use of deadly force was necessary under the circumstances.

Accordingly, a jury should be instructed to consider this [115] type of evidence in weighing the defendant's actions. The jury must first determine whether the defendant had the requisite beliefs under section 35.15, that is, whether he believed deadly force was necessary to avert the imminent use of deadly force or the commission of one of the felonies enumerated therein. If the People do not prove beyond a reasonable doubt that he did not have such beliefs, then the jury must also consider whether these beliefs were reasonable. The jury would have to determine, in light of all the "circumstances", as explicated above, if a reasonable person could have had these beliefs.

The prosecutor's instruction to the second Grand Jury that it had to determine whether, under the circumstances, Goetz's conduct was that of a reasonable man in his situation was thus essentially an accurate charge. It is true that the prosecutor did not elaborate on the meaning of "circumstances" or "situation" and inform the grand jurors that they could consider, for example, the prior experiences Goetz related in his statement to the police. We have held, however, that a Grand Jury need not be instructed on the law with the same degree of precision as the petit jury (see, People v Valles, 62 N.Y.2d 36, 38; People v Calbud, Inc., 49 N.Y.2d 389, 394; compare, CPL 190.25 [6], with CPL 300.10 [2]). This lesser standard is premised upon the different functions of the Grand Jury and the petit jury: the former determines whether sufficient evidence exists to accuse a person of a crime and thereby subject him to criminal prosecution; the latter ultimately determines the guilt or innocence of the accused, and may convict only where the People have proven his guilt beyond a reasonable doubt (see, People v Calbud, Inc., 49 NY2d, at p 394, supra).

In People v Calbud, Inc. (supra, at pp 394-395), we stated that the prosecutor simply had to "provid[e] the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime". Of course, as noted above, where the evidence suggests that a complete defense such as justification may be present, the prosecutor must charge the grand jurors on that defense, providing enough information to enable them to determine whether the defense, in light of the evidence, should preclude the criminal prosecution. The prosecutor more than adequately fulfilled this obligation here. His instructions were not as complete as the court's charge on justification should be, but they sufficiently apprised the [116] Grand Jury of the existence and requirements of that defense to allow it to intelligently decide that there is sufficient evidence tending to disprove justification and necessitating a trial. The Grand Jury has indicted Goetz. It will now be for the petit jury to decide whether the prosecutor can prove beyond a reasonable doubt that Goetz's reactions were unreasonable and therefore excessive.

IV.

Criminal Term's second ground for dismissal of the charges, premised upon the Daily News column and the police officer's statement to the prosecutor, can be rejected more summarily. The court relied upon People v Pelchat (62 N.Y.2d 97, supra), the facts of which, however, are markedly different from those here. In Pelchat, the defendant was one of 21 persons arrested in a house to which police officers had seen marihuana delivered. The only evidence before the Grand Jury showing that defendant had anything to do with the marihuana was the testimony of a police officer listing defendant as one of 21 persons he had observed transporting the drug. After defendant was indicted, this same police officer told the prosecutor that he had misunderstood his question when testifying before the Grand Jury and that he had not seen defendant engage in any criminal activity. Although the prosecutor knew that there was no other evidence before the Grand Jury to establish the defendant's guilt, he did not disclose the police officer's admission, and instead, accepted a guilty plea from the defendant. We reversed the conviction and dismissed the indictment, holding that the prosecutor should not have allowed the proceedings against defendant to continue when he knew that the only evidence against him before the Grand Jury was false, and thus, knew that there was not legally sufficient evidence to support the indictment.

Here, in contrast, Canty and Ramseur have not recanted any of their Grand Jury testimony or told the prosecutor that they misunderstood any questions. Instead, all that has come to light is hearsay evidence that conflicts with part of Canty's testimony. There is no statute or controlling case law requiring dismissal of an indictment merely because, months later, the prosecutor becomes aware of some information which may lead to the defendant's acquittal. There was no basis for the Criminal Term Justice to speculate as to whether Canty's and Ramseur's testimony was perjurious (see, CPL 190.25 [5]), and [117] his conclusion that the testimony "strongly appeared" to be perjured is particularly inappropriate given the nature of the "evidence" he relied upon to reach such a conclusion and that he was not in the Grand Jury room when the two youths testified.

Moreover, unlike Pelchat, the testimony of Canty and Ramseur was not the only evidence before the Grand Jury establishing that the offenses submitted to that body were committed by Goetz. Goetz's own statements, together with the testimony of the passengers, clearly support the elements of the crimes charged, and provide ample basis for concluding that a trial of this matter is needed to determine whether Goetz could have reasonably believed that he was about to be robbed or seriously injured and whether it was reasonably necessary for him to shoot four youths to avert any such threat.

Accordingly, the order of the Appellate Division should be reversed, and the dismissed counts of the indictment reinstated.

Order reversed, etc.

[1] On May 14, 1985, Goetz commenced an article 78 proceeding in the Appellate Division seeking to prohibit a trial on the charges contained in the second indictment on the ground that the order allowing resubmission of the charges was an abuse of discretion. The Appellate Division dismissed the proceeding on the ground that prohibition did not lie to review the type of error alleged by Goetz (111 AD2d 729, 730), and this court denied a motion for leave to appeal from the Appellate Division order (65 N.Y.2d 609). The propriety of the resubmission order is not before us on this appeal.

[2] The court did not dismiss the reckless endangerment charge because, relying on the Appellate Division decision in People v McManus (108 AD2d 474), it held that justification was not a defense to a crime containing, as an element, "depraved indifference to human life." As our reversal of the Appellate Division in McManus holds, justification is a defense to such a crime (People v McManus, 67 N.Y.2d 541). Accordingly, had the prosecutor's instructions on justification actually rendered the Grand Jury proceedings defective, dismissal of the reckless endangerment count would have been required as well.

[3] Subdivision (1) contains certain exceptions to this general authorization to use force, such as where the actor himself was the initial aggressor.

[4] Section 35.15 (2) (a) further provides, however, that even under these circumstances a person ordinarily must retreat "if he knows that he can with complete safety as to himself and others avoid the necessity of [using deadly physical force] by retreating".

[5] While the portion of section 35.15 (2) (b) pertaining to the use of deadly physical force to avert a felony such as robbery does not contain a separate "retreat" requirement, it is clear from reading subdivisions (1) and (2) of section 35.15 together, as the statute requires, that the general "necessity" requirement in subdivision (1) applies to all uses of force under section 35.15, including the use of deadly physical force under subdivision (2) (b).

[6] The 1881 provision expanded the class of third persons for whose defense an actor could employ deadly force from certain specified persons to any other person in the actor's presence.

[9] Lacy H. Thornburg, Atty. Gen., by Steven F. Bryant, and Jeffrey P. Gray, Asst. Atty. Gen., for appellant State.

Robert W. Wolf, Forest City, and Robert L. Harris, Rutherfordton, for defendant-appellee.

MITCHELL, Justice.

The defendant was tried at the 16 February 1987 Criminal Session of Superior Court for Rutherford County upon a proper indictment charging her with the first degree murder of her husband. The jury found the defendant guilty of voluntary manslaughter. The defendant appealed from the trial court's judgment sentencing her to six years imprisonment.

The Court of Appeals granted a new trial, citing as error the trial court's refusal to submit a possible verdict of acquittal by reason of perfect self-defense. Notwithstanding the uncontroverted evidence that the defendant shot her husband three times in the back of the head as he lay sleeping in his bed, the Court of Appeals held that the defendant's evidence that she exhibited what has come to be called "the battered wife syndrome" entitled her to have the jury consider whether the homicide was an act of perfect self-defense and, thus, not a legal wrong.

We conclude that the evidence introduced in this case would not support a finding that the defendant killed her husband due to a reasonable fear of imminent death or great bodily harm, as is required before a defendant is entitled to jury instructions concerning either perfect or imperfect self-defense. Therefore, the trial court properly declined to instruct the jury on the law relating to self-defense. Accordingly, we reverse the Court of Appeals.

At trial, the State presented the testimony of Deputy Sheriff R.H. Epley of the Rutherford County Sheriff's Department, who was called to the Norman residence on the night of 12 June 1985. Inside the home, Epley found the defendant's husband, John Thomas Norman, lying on a bed in a rear bedroom with his face toward the wall and his back toward the middle of the room. He was dead, but blood was still coming from wounds to the back of his head. A later autopsy revealed three gunshot wounds to the head, two of which caused fatal brain injury. The autopsy also revealed a .12 percent blood alcohol level in the victim's body.

Later that night, the defendant related an account of the events leading to the killing, after Epley had advised her of her constitutional rights and she had waived her right to remain silent. The defendant told Epley that her husband had been beating her all day and had made her lie down on the floor while he slept on the bed. After her husband fell asleep, the defendant carried her grandchild to the defendant's mother's house. The defendant took a pistol from her mother's purse and walked the short distance back to her home. She pointed the pistol at the back of her sleeping husband's head, but it jammed the first time she tried to shoot him. She fixed the gun and then shot her husband in the back of the head as he lay sleeping. After one shot, she felt her husband's chest and determined that he was still breathing and making sounds. She then shot him twice more in the back of the head. The defendant told Epley that she killed her husband because "she took all she was going to take from him so she shot him."

The defendant presented evidence tending to show a long history of physical and mental abuse by her husband due to his [10] alcoholism. At the time of the killing, the thirty-nine-year-old defendant and her husband had been married almost twenty-five years and had several children. The defendant testified that her husband had started drinking and abusing her about five years after they were married. His physical abuse of her consisted of frequent assaults that included slapping, punching and kicking her, striking her with various objects, and throwing glasses, beer bottles and other objects at her. The defendant described other specific incidents of abuse, such as her husband putting her cigarettes out on her, throwing hot coffee on her, breaking glass against her face and crushing food on her face. Although the defendant did not present evidence of ever having received medical treatment for any physical injuries inflicted by her husband, she displayed several scars about her face which she attributed to her husband's assaults.

The defendant's evidence also tended to show other indignities inflicted upon her by her husband. Her evidence tended to show that her husband did not work and forced her to make money by prostitution, and that he made humor of that fact to family and friends. He would beat her if she resisted going out to prostitute herself or if he was unsatisfied with the amounts of money she made. He routinely called the defendant "dog," "bitch" and "whore," and on a few occasions made her eat pet food out of the pets' bowls and bark like a dog. He often made her sleep on the floor. At times, he deprived her of food and refused to let her get food for the family. During those years of abuse, the defendant's husband threatened numerous times to kill her and to maim her in various ways.

The defendant said her husband's abuse occurred only when he was intoxicated, but that he would not give up drinking. She said she and her husband "got along very well when he was sober," and that he was "a good guy" when he was not drunk. She had accompanied her husband to the local mental health center for sporadic counseling sessions for his problem, but he continued to drink.

In the early morning hours on the day before his death, the defendant's husband, who was intoxicated, went to a rest area off I-85 near Kings Mountain where the defendant was engaging in prostitution and assaulted her. While driving home, he was stopped by a patrolman and jailed on a charge of driving while impaired. After the defendant's mother got him out of jail at the defendant's request later that morning, he resumed his drinking and abuse of the defendant.

The defendant's evidence also tended to show that her husband seemed angrier than ever after he was released from jail and that his abuse of the defendant was more frequent. That evening, sheriff's deputies were called to the Norman residence, and the defendant complained that her husband had been beating her all day and she could not take it anymore. The defendant was advised to file a complaint, but she said she was afraid her husband would kill her if she had him arrested. The deputies told her they needed a warrant before they could arrest her husband, and they left the scene.

The deputies were called back less than an hour later after the defendant had taken a bottle of pills. The defendant's husband cursed her and called her names as she was attended by paramedics, and he told them to let her die. A sheriff's deputy finally chased him back into his house as the defendant was put into an ambulance. The defendant's stomach was pumped at the local hospital, and she was sent home with her mother.

While in the hospital, the defendant was visited by a therapist with whom she discussed filing charges against her husband and having him committed for treatment. Before the therapist left, the defendant agreed to go to the mental health center the next day to discuss those possibilities. The therapist testified at trial that the defendant seemed depressed in the hospital, and that she expressed considerable anger toward her husband. He testified that the defendant threatened a number of times that night to kill her husband and that she [11] said she should kill him "because of the things he had done to her."

The next day, the day she shot her husband, the defendant went to the mental health center to talk about charges and possible commitment, and she confronted her husband with that possibility. She testified that she told her husband later that day: "J.T., straighten up. Quit drinking. I'm going to have you committed to help you." She said her husband then told her he would "see them coming" and would cut her throat before they got to him.

The defendant also went to the social services office that day to seek welfare benefits, but her husband followed her there, interrupted her interview and made her go home with him. He continued his abuse of her, threatening to kill and to maim her, slapping her, kicking her, and throwing objects at her. At one point, he took her cigarette and put it out on her, causing a small burn on her upper torso. He would not let her eat or bring food into the house for their children.

That evening, the defendant and her husband went into their bedroom to lie down, and he called her a "dog" and made her lie on the floor when he lay down on the bed. Their daughter brought in her baby to leave with the defendant, and the defendant's husband agreed to let her baby-sit. After the defendant's husband fell asleep, the baby started crying and the defendant took it to her mother's house so it would not wake up her husband. She returned shortly with the pistol and killed her husband.

The defendant testified at trial that she was too afraid of her husband to press charges against him or to leave him. She said that she had temporarily left their home on several previous occasions, but he had always found her, brought her home and beaten her. Asked why she killed her husband, the defendant replied: "Because I was scared of him and I knowed when he woke up, it was going to be the same thing, and I was scared when he took me to the truck stop that night it was going to be worse than he had ever been. I just couldn't take it no more. There ain't no way, even if it means going to prison. It's better than living in that. That's worse hell than anything."

The defendant and other witnesses testified that for years her husband had frequently threatened to kill her and to maim her. When asked if she believed those threats, the defendant replied: "Yes. I believed him; he would, he would kill me if he got a chance. If he thought he wouldn't a had to went to jail, he would a done it."

Two expert witnesses in forensic psychology and psychiatry who examined the defendant after the shooting, Dr. William Tyson and Dr. Robert Rollins, testified that the defendant fit the profile of battered wife syndrome. This condition, they testified, is characterized by such abuse and degradation that the battered wife comes to believe she is unable to help herself and cannot expect help from anyone else. She believes that she cannot escape the complete control of her husband and that he is invulnerable to law enforcement and other sources of help.

Dr. Tyson, a psychologist, was asked his opinion as to whether, on 12 June 1985, "it appeared reasonably necessary for Judy Norman to shoot J.T. Norman?" He replied: "I believe that ... Mrs. Norman believed herself to be doomed ... to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable...." Dr. Tyson later added: "I think Judy Norman felt that she had no choice, both in the protection of herself and her family, but to engage, exhibit deadly force against Mr. Norman, and that in so doing, she was sacrificing herself, both for herself and for her family."

Dr. Rollins, who was the defendant's attending physician at Dorothea Dix Hospital when she was sent there for evaluation, testified that in his opinion the defendant was a typical abused spouse and that "[s]he saw herself as powerless to deal with the situation, that there was no alternative, no way she could escape it." Dr. Rollins was asked his opinion as to whether "on June 12th, 1985, it appeared reasonably [12] necessary that Judy Norman would take the life of J.T. Norman?" Dr. Rollins replied that in his opinion, "that course of action did appear necessary to Mrs. Norman."

Based on the evidence that the defendant exhibited battered wife syndrome, that she believed she could not escape her husband nor expect help from others, that her husband had threatened her, and that her husband's abuse of her had worsened in the two days preceding his death, the Court of Appeals concluded that a jury reasonably could have found that her killing of her husband was justified as an act of perfect self-defense. The Court of Appeals reasoned that the nature of battered wife syndrome is such that a jury could not be precluded from finding the defendant killed her husband lawfully in perfect self-defense, even though he was asleep when she killed him. We disagree.

The right to kill in self-defense is based on the necessity, real or reasonably apparent, of killing an unlawful aggressor to save oneself from imminent death or great bodily harm at his hands. State v. Gappins, 320 N.C. 64, 357 S.E.2d 654 (1987). Our law has recognized that self-preservation under such circumstances springs from a primal impulse and is an inherent right of natural law. State v. Holland, 193 N.C. 713, 718, 138 S.E. 8, 10 (1927).

In North Carolina, a defendant is entitled to have the jury consider acquittal by reason of perfect self-defense when the evidence, viewed in the light most favorable to the defendant, tends to show that at the time of the killing it appeared to the defendant and she believed it to be necessary to kill the decedent to save herself from imminent death or great bodily harm. State v. Gappins, 320 N.C. at 71, 357 S.E. 2d at 659. That belief must be reasonable, however, in that the circumstances as they appeared to the defendant would create such a belief in the mind of a person of ordinary firmness. Id. Further, the defendant must not have been the initial aggressor provoking the fatal confrontation. Id. A killing in the proper exercise of the right of perfect self-defense is always completely justified in law and constitutes no legal wrong.

Our law also recognizes an imperfect right of self-defense in certain circumstances, including, for example, when the defendant is the initial aggressor, but without intent to kill or to seriously injure the decedent, and the decedent escalates the confrontation to a point where it reasonably appears to the defendant to be necessary to kill the decedent to save herself from imminent death or great bodily harm. State v. Mize, 316 N.C. 48, 340 S.E.2d 439 (1986); State v. Wilson, 304 N.C. 689, 285 S.E.2d 804 (1982). Although the culpability of a defendant who kills in the exercise of imperfect self-defense is reduced, such a defendant is not justified in the killing so as to be entitled to acquittal, but is guilty at least of voluntary manslaughter. State v. Mize, 316 N.C. at 52, 340 S.E.2d at 441.

The defendant in the present case was not entitled to a jury instruction on either perfect or imperfect self-defense. The trial court was not required to instruct on either form of self-defense unless evidence was introduced tending to show that at the time of the killing the defendant reasonably believed herself to be confronted by circumstances which necessitated her killing her husband to save herself from imminent death or great bodily harm. Id. No such evidence was introduced in this case, and it would have been error for the trial court to instruct the jury on either perfect or imperfect self-defense. See State v. Gappins, 320 N.C. 64, 73, 357 S.E.2d 654, 660 (1987); State v. Mize, 316 N.C. 48, 53, 340 S.E.2d 439, 442 (1986); State v. Spaulding, 298 N.C. 149, 157, 257 S.E.2d 391, 396 (1979); State v. Marshall, 208 N.C. 127, 129, 179 S.E. 427, 428 (1935); State v. Kidd, 60 N.C.App. 140, 142, 298 S.E.2d 406, 408 (1982) disc. rev. denied, 307 N.C. 700, 301 S.E.2d 393 (1983); State v. Dial, 38 N.C. App. 529, 531, 248 S.E.2d 366, 367 (1978); 40 C.J.S. Homicide § 123(b) (1944).

The jury found the defendant guilty only of voluntary manslaughter in the present case. As we have indicated, an instruction on imperfect self-defense would have entitled [13] the defendant to nothing more, since one who kills in the exercise of imperfect self-defense is guilty at least of voluntary manslaughter. Therefore, even if it is assumed arguendo that the defendant was entitled to an instruction on imperfect self-defense—a notion we have specifically rejected—the failure to give such an instruction was harmless in this case. Accordingly, although we recognize that the imminence requirement applies to both types of self-defense for almost identical reasons, we limit our consideration in the remainder of this opinion to the issue of whether the trial court erred in failing to instruct the jury to consider acquittal on the ground that the killing was justified and, thus, lawful as an act of perfect self-defense.

The killing of another human being is the most extreme recourse to our inherent right of self-preservation and can be justified in law only by the utmost real or apparent necessity brought about by the decedent. For that reason, our law of self-defense has required that a defendant claiming that a homicide was justified and, as a result, inherently lawful by reason of perfect self-defense must establish that she reasonably believed at the time of the killing she otherwise would have immediately suffered death or great bodily harm. Only if defendants are required to show that they killed due to a reasonable belief that death or great bodily harm was imminent can the justification for homicide remain clearly and firmly rooted in necessity. The imminence requirement ensures that deadly force will be used only where it is necessary as a last resort in the exercise of the inherent right of self-preservation. It also ensures that before a homicide is justified and, as a result, not a legal wrong, it will be reliably determined that the defendant reasonably believed that absent the use of deadly force, not only would an unlawful attack have occurred, but also that the attack would have caused death or great bodily harm. The law does not sanction the use of deadly force to repel simple assaults. State v. Watkins, 283 N.C. 504, 196 S.E.2d 750 (1973).

The term "imminent," as used to describe such perceived threats of death or great bodily harm as will justify a homicide by reason of perfect self-defense, has been defined as "immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law." Black's Law Dictionary 676 (5th ed. 1979). Our cases have sometimes used the phrase "about to suffer" interchangeably with "imminent" to describe the immediacy of threat that is required to justify killing in self-defense. State v. Holland, 193 N.C. 713, 718, 138 S.E. 8, 10 (1927).

The evidence in this case did not tend to show that the defendant reasonably believed that she was confronted by a threat of imminent death or great bodily harm. The evidence tended to show that no harm was "imminent" or about to happen to the defendant when she shot her husband. The uncontroverted evidence was that her husband had been asleep for some time when she walked to her mother's house, returned with the pistol, fixed the pistol after it jammed and then shot her husband three times in the back of the head. The defendant was not faced with an instantaneous choice between killing her husband or being killed or seriously injured. Instead, all of the evidence tended to show that the defendant had ample time and opportunity to resort to other means of preventing further abuse by her husband. There was no action underway by the decedent from which the jury could have found that the defendant had reasonable grounds to believe either that a felonious assault was imminent or that it might result in her death or great bodily injury. Additionally, no such action by the decedent had been underway immediately prior to his falling asleep.

Faced with somewhat similar facts, we have previously held that a defendant who believed himself to be threatened by the decedent was not entitled to a jury instruction on either perfect or imperfect self-defense when it was the defendant who went to the decedent and initiated the final, fatal confrontation. State v. Mize, 316 N.C. 48, [14] 340 S.E.2d 439 (1986). In Mize, the decedent Joe McDonald was reported to be looking for the defendant George Mize to get revenge for Mize's alleged rape of McDonald's girl friend, which had exacerbated existing animosity between Mize and McDonald. After hiding from McDonald for most of the day, Mize finally went to McDonald's residence, woke him up and then shot and killed him. Mize claimed that he feared McDonald was going to kill him and that his killing of McDonald was in self-defense. Rejecting Mize's argument that his jury should have been instructed on self-defense, we stated:

Here, although the victim had pursued defendant during the day approximately eight hours before the killing, defendant Mize was in no imminent danger while McDonald was at home asleep. When Mize went to McDonald's trailer with his shotgun, it was a new confrontation. Therefore, even if Mize believed it was necessary to kill McDonald to avoid his own imminent death, that belief was unreasonable.

316 N.C. at 53, 340 S.E.2d at 442 (citations omitted). The same reasoning applies in the present case.

Additionally, the lack of any belief by the defendant—reasonable or otherwise—that she faced a threat of imminent death or great bodily harm from the drunk and sleeping victim in the present case was illustrated by the defendant and her own expert witnesses when testifying about her subjective assessment of her situation at the time of the killing. The psychologist and psychiatrist replied affirmatively when asked their opinions of whether killing her husband "appeared reasonably necessary" to the defendant at the time of the homicide. That testimony spoke of no imminent threat nor of any fear by the defendant of death or great bodily harm, imminent or otherwise. Testimony in the form of a conclusion that a killing "appeared reasonably necessary" to a defendant does not tend to show all that must be shown to establish self-defense. More specifically, for a killing to be in self-defense, the perceived necessity must arise from a reasonable fear of imminent death or great bodily harm.

Dr. Tyson additionally testified that the defendant "believed herself to be doomed... to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable." Such evidence of the defendant's speculative beliefs concerning her remote and indefinite future, while indicating she had felt generally threatened, did not tend to show that she killed in the belief—reasonable or otherwise—that her husband presented a threat of imminent death or great bodily harm. Under our law of self-defense, a defendant's subjective belief of what might be "inevitable" at some indefinite point in the future does not equate to what she believes to be "imminent." Dr. Tyson's opinion that the defendant believed it was necessary to kill her husband for "the protection of herself and her family" was similarly indefinite and devoid of time frame and did not tend to show a threat or fear of imminent harm.

The defendant testified that, "I knowed when he woke up, it was going to be the same thing, and I was scared when he took me to the truck stop that night it was going to be worse than he had ever been." She also testified, when asked if she believed her husband's threats: "Yes.... [H]e would kill me if he got a chance. If he thought he wouldn't a had to went to jail, he would a done it." Testimony about such indefinite fears concerning what her sleeping husband might do at some time in the future did not tend to establish a fear— reasonable or otherwise—of imminent death or great bodily harm at the time of the killing.

We are not persuaded by the reasoning of our Court of Appeals in this case that when there is evidence of battered wife syndrome, neither an actual attack nor threat of attack by the husband at the moment the wife uses deadly force is required to justify the wife's killing of him in perfect self-defense. The Court of Appeals concluded that to impose such requirements [15] would ignore the "learned helplessness," meekness and other realities of battered wife syndrome and would effectively preclude such women from exercising their right of self-defense. 89 N.C.App. 384, 392-393, 366 S.E.2d 586, 591-592 (1988). See Mather, The Skeleton in the Closet: The Battered Woman Syndrome, Self-Defense, and Expert Testimony, 39 Mercer L.Rev. 545 (1988); Eber, The Battered Wife's Dilemma: To Kill Or To Be Killed, 32 Hastings L.J. 895 (1981). Other jurisdictions which have addressed this question under similar facts are divided in their views, and we can discern no clear majority position on facts closely similar to those of this case. Compare, e.g., Commonwealth v. Grove, 363 Pa.Super. 328, 526 A.2d 369, appeal denied, 517 Pa. 630, 539 A.2d 810 (1987) (abused wife who killed her sleeping husband not entitled to self-defense instruction as no immediate threat was posed by the decedent), with State v. Gallegos, 104 N.M. 247, 719 P.2d 1268 (1986) (abused wife could claim self-defense where she walked into bedroom with gun and killed husband who was awake but lying on the bed).

The reasoning of our Court of Appeals in this case proposes to change the established law of self-defense by giving the term "imminent" a meaning substantially more indefinite and all-encompassing than its present meaning. This would result in a substantial relaxation of the requirement of real or apparent necessity to justify homicide. Such reasoning proposes justifying the taking of human life not upon the reasonable belief it is necessary to prevent death or great bodily harm—which the imminence requirement ensures—but upon purely subjective speculation that the decedent probably would present a threat to life at a future time and that the defendant would not be able to avoid the predicted threat.

The Court of Appeals suggests that such speculation would have been particularly reliable in the present case because the jury, based on the evidence of the decedent's intensified abuse during the thirty-six hours preceding his death, could have found that the decedent's passive state at the time of his death was "but a momentary hiatus in a continuous reign of terror by the decedent [and] the defendant merely took advantage of her first opportunity to protect herself." 89 N.C.App at 394, 366 S.E.2d at 592. Requiring jury instructions on perfect self-defense in such situations, however, would still tend to make opportune homicide lawful as a result of mere subjective predictions of indefinite future assaults and circumstances. Such predictions of future assaults to justify the defendant's use of deadly force in this case would be entirely speculative, because there was no evidence that her husband had ever inflicted any harm upon her that approached life-threatening injury, even during the "reign of terror." It is far from clear in the defendant's poignant evidence that any abuse by the decedent had ever involved the degree of physical threat required to justify the defendant in using deadly force, even when those threats were imminent. The use of deadly force in self-defense to prevent harm other than death or great bodily harm is excessive as a matter of law. State v. Hunter, 315 N.C. 371, 338 S.E.2d 99 (1986).

As we have stated, stretching the law of self-defense to fit the facts of this case would require changing the "imminent death or great bodily harm" requirement to something substantially more indefinite than previously required and would weaken our assurances that justification for the taking of human life remains firmly rooted in real or apparent necessity. That result in principle could not be limited to a few cases decided on evidence as poignant as this. The relaxed requirements for perfect self-defense proposed by our Court of Appeals would tend to categorically legalize the opportune killing of abusive husbands by their wives solely on the basis of the wives' testimony concerning their subjective speculation as to the probability of future felonious assaults by their husbands. Homicidal self-help would then become a lawful solution, and perhaps the easiest and most effective solution, to this problem. See generally Rosen, The Excuse of Self-Defense: Correcting A Historical [16] Accident on Behalf of Battered Women Who Kill, 36 Am.U.L.Rev. 11 (1986) (advocating changing the basis of self-defense acquittals to excuse rather than justification, so that excusing battered women's killing of their husbands under circumstances not fitting within the traditional requirements of self-defense would not be seen as justifying and therefore encouraging such self-help killing); Mitchell, Does Wife Abuse Justify Homicide?, 24 Wayne L.Rev. 1705 (1978) (advocating institutional rather than self-help solutions to wife abuse and citing case studies at the trial level where traditional defenses to homicide appeared stretched to accommodate poignant facts, resulting in justifications of some killings which appeared to be motivated by revenge rather than protection from death or great bodily harm). It has even been suggested that the relaxed requirements of self-defense found in what is often called the "battered woman's defense" could be extended in principle to any type of case in which a defendant testified that he or she subjectively believed that killing was necessary and proportionate to any perceived threat. Rosen, The Excuse of Self-Defense: Correcting A Historical Accident on Behalf of Battered Women Who Kill, 36 Am.U.L. Rev. 11, 44 (1986).

In conclusion, we decline to expand our law of self-defense beyond the limits of immediacy and necessity which have heretofore provided an appropriately narrow but firm basis upon which homicide may be justified and, thus, lawful by reason of perfect self-defense or upon which a defendant's culpability may be reduced by reason of imperfect self-defense. As we have shown, the evidence in this case did not entitle the defendant to jury instructions on either perfect or imperfect self-defense.

For the foregoing reasons, we conclude that the defendant's conviction for voluntary manslaughter and the trial court's judgment sentencing her to a six-year term of imprisonment were without error. Therefore, we must reverse the decision of the Court of Appeals which awarded the defendant a new trial.

REVERSED.

MARTIN, Justice, dissenting.

At the outset it is to be noted that the peril of fabricated evidence is not unique to the trials of battered wives who kill. The possibility of invented evidence arises in all cases in which a party is seeking the benefit of self-defense. Moreover, in this case there were a number of witnesses other than defendant who testified as to the actual presence of circumstances supporting a claim of self-defense. This record contains no reasonable basis to attack the credibility of evidence for the defendant.

Likewise, the difficulty of rebutting defendant's evidence because the only other witness to many of the events is deceased is not unique to this type of case. This situation is also commonplace in cases in which self-defense is raised, although, again, in the case sub judice there was more than one surviving witness to such events. In considering the argument that the state is faced with a difficult burden in attempting to rebut evidence of which defendant is the only surviving witness, one must not overlook the law: the burden is always on the state to prove that the killing was intentional beyond a reasonable doubt. "Defendant may always rest ultimately on the weakness of the state's case and the state's failure to carry its burden of proof." State v. Patterson, 297 N.C. 247, 256, 254 S.E.2d 604, 610 (1979).

At the heart of the majority's reasoning is its unsubstantiated concern that to find that the evidence presented by defendant would support an instruction on self-defense would "expand our law of self-defense beyond the limits of immediacy and necessity." Defendant does not seek to expand or relax the requirements of self-defense and thereby "legalize the opportune killing of allegedly abusive husbands by their wives," as the majority overstates. Rather, defendant contends that the evidence as gauged by the existing laws of self-defense is sufficient to require the submission of a self-defense instruction to the [17] jury. The proper issue for this Court is to determine whether the evidence, viewed in the light most favorable to the defendant, was sufficient to require the trial court to instruct on the law of self-defense. I conclude that it was.

In every jury trial, it is the duty of the court to charge the jury on all substantial features of the case arising on the evidence, whether or not such instructions have been requested. See State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974). All defenses presented by the defendant's evidence are substantial features of the case, even if that evidence contains discrepancies or is contradicted by evidence from the state. Id. This rule reflects the principle in our jurisprudence that it is the jury, not the judge, that weighs the evidence.

A defendant is entitled to an instruction on self-defense when there is evidence, viewed in the light most favorable to the defendant, that these four elements existed at the time of the killing:

(1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and

(2) defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and

(3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and

(4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.

State v. Gappins, 320 N.C. 64, 71, 357 S.E.2d 654, 659 (1987). See also State v. McCray, 312 N.C. 519, 324 S.E.2d 606 (1985) (to be entitled to an instruction on self-defense defendant must produce evidence tending to show he was free from fault and it was necessary or reasonably appeared to be necessary to kill in order to protect himself from great bodily harm or death). See generally State v. Wallace, 309 N.C. 141, 305 S.E.2d 548 (1983); State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982); State v. Wilson, 304 N.C. 689, 285 S.E.2d 804 (1982); State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981); State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978) (cases setting out these elements as requisites of proof of self-defense). The first element requires that there be evidence that the defendant believed it was necessary to kill in order to protect herself from serious bodily harm or death; the second requires that the circumstances as defendant perceived them were sufficient to create such a belief in the mind of a person of ordinary firmness. Both elements were supported by evidence at defendant's trial.

Evidence presented by defendant described a twenty-year history of beatings and other dehumanizing and degrading treatment by her husband. In his expert testimony a clinical psychologist concluded that defendant fit "and exceed[ed]" the profile of an abused or battered spouse, analogizing this treatment to the dehumanization process suffered by prisoners of war under the Nazis during the Second World War and the brainwashing techniques of the Korean War. The psychologist described the defendant as a woman incarcerated by abuse, by fear, and by her conviction that her husband was invincible and inescapable:

Mrs. Norman didn't leave because she believed, fully believed that escape was totally impossible. There was no place to go. He, she had left before; he had come and gotten her. She had gone to the Department of Social Services. He had come and gotten her. The law, she believed the law could not protect her; no one could protect her, and I must admit, looking over the records, that there was nothing done that would contradict that belief. She fully believed that he was invulnerable to the law and to all social agencies that were available; that nobody could withstand his power. As a result, there was no such thing as escape.

[18] When asked if he had an opinion whether it appeared reasonably necessary for Judy Norman to shoot her husband, this witness responded:

Yes.... I believe that in examining the facts of this case and examining the psychological data, that Mrs. Norman believed herself to be doomed ... to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable; death of herself, which was not such, I don't think was such an issue for her, as she had attempted to commit suicide, and in her continuing conviction of J.T. Norman's power over her, and even failed at that form of escape. I believe she also came to the point of beginning to fear for family members and her children, that were she to commit suicide that the abuse and the treatment that was heaped on her would be transferred onto them.

This testimony describes defendant's perception of circumstances in which she was held hostage to her husband's abuse for two decades and which ultimately compelled her to kill him. This testimony alone is evidence amply indicating the first two elements required for entitlement to an instruction on self-defense.

In addition to the testimony of the clinical psychologist, defendant presented the testimony of witnesses who had actually seen defendant's husband abuse her. These witnesses described circumstances that caused not only defendant to believe escape was impossible, but that also convinced them of its impossibility. Defendant's isolation and helplessness were evident in testimony that her family was intimidated by her husband into acquiescing in his torture of her. Witnesses also described defendant's experience with social service agencies and the law, which had contributed to her sense of futility and abandonment through the inefficacy of their protection and the strength of her husband's wrath when they failed. Where torture appears interminable and escape impossible, the belief that only the death of the oppressor can provide relief is reasonable in the mind of a person of ordinary firmness, let alone in the mind of the defendant, who, like a prisoner of war of some years, has been deprived of her humanity and is held hostage by fear.

In State v. Mize, 316 N.C. 48, 53, 340 S.E.2d 439, 442 (1986), this Court noted that if the defendant was in "no imminent danger" at the time of the killing, then his belief that it was necessary to kill the man who had pursued him eight hours before was unreasonable. The second element of self-defense was therefore not satisfied. In the context of the doctrine of self-defense, the definition of "imminent" must be informed by the defendant's perceptions. It is not bounded merely by measurable time, but by all of the facts and circumstances. Its meaning depends upon the assessment of the facts by one of "ordinary firmness" with regard to whether the defendant's perception of impending death or injury was so pressing as to render reasonable her belief that it was necessary to kill.

Evidence presented in the case sub judice revealed no letup of tension or fear, no moment in which the defendant felt released from impending serious harm, even while the decedent slept. This, in fact, is a state of mind common to the battered spouse, and one that dramatically distinguishes Judy Norman's belief in the imminence of serious harm from that asserted by the defendant in Mize. Psychologists have observed and commentators have described a "constant state of fear" brought on by the cyclical nature of battering as well as the battered spouse's perception that her abuser is both "omnipotent and unstoppable." See Comment, The Admissibility of Expert Testimony on the Battered Woman Syndrome in Support of a Claim of Self-Defense, 15 Conn.L.Rev. 121, 131 (1982). Constant fear means a perpetual anticipation of the next blow, a perpetual expectation that the next blow will kill. "[T]he battered wife is constantly in a heightened state of terror because she is certain that one day her husband will kill her during the course of a beating.... Thus from the perspective of the battered wife, the danger is constantly `immediate.' " Eber, The Battered Wife's Dilemma: [19] To Kill or To Be Killed, 32 Hastings L.J. 895, 928-29 (1981). For the battered wife, if there is no escape, if there is no window of relief or momentary sense of safety, then the next attack, which could be the fatal one, is imminent. In the context of the doctrine of self-defense, "imminent" is a term the meaning of which must be grasped from the defendant's point of view. Properly stated, the second prong of the question is not whether the threat was in fact imminent, but whether defendant's belief in the impending nature of the threat, given the circumstances as she saw them, was reasonable in the mind of a person of ordinary firmness.^[1]

Defendant's intense fear, based on her belief that her husband intended not only to maim or deface her, as he had in the past, but to kill her, was evident in the testimony of witnesses who recounted events of the last three days of the decedent's life. This testimony could have led a juror to conclude that defendant reasonably perceived a threat to her life as "imminent," even while her husband slept. Over these three days, her husband's anger was exhibited in an unprecedented crescendo of violence. The evidence showed defendant's fear and sense of hopelessness similarly intensifying, leading to an unsuccessful attempt to escape through suicide and culminating in her belief that escape would be possible only through her husband's death.

Defendant testified that on 10 June, two days before her husband's death, he had again forced her to go to a reststop near Kings Mountain to make money by prostitution. Her daughter Phyllis and Phyllis's boyfriend Mark Navarra accompanied her on this occasion because, defendant said, whenever her husband took her there, he would beat her. Phyllis corroborated this account. She testified that her father had arrived some time later and had begun beating her mother, asking how much money she had. Defendant said they all then drove off. Shortly afterwards an officer arrested defendant's husband for driving under the influence. He spent the night in jail and was released the next morning on bond paid by defendant's mother.

Defendant testified that her husband was argumentative and abusive all through the next day, 11 June. Mark Navarra testified that at one point defendant's husband threw a sandwich that defendant had made for him on the floor. She made another; he threw it on the floor, as well, then insisted she prepare one without touching it. Defendant's husband had then taken the third sandwich, which defendant had wrapped in paper towels, and smeared it on her face. Both Navarra and Phyllis testified that they had later watched defendant's husband seize defendant's cigarette and put it out on her neck, the scars from which defendant displayed to the jury.

A police officer testified that he arrived at defendant's home at 8:00 that evening in response to a call reporting a domestic quarrel. Defendant, whose face was bruised, was crying, and she told the officer that her husband had beaten her all day long and that she could not take it any longer. The officer told her that he could do nothing for her unless she took out a warrant on her husband. She responded that if she did, her husband would kill her. The officer left but was soon radioed to return because defendant had taken an overdose of pills. The officer testified that defendant's husband was interfering with ambulance attendants, saying "Let the bitch die." When he refused to respond to the officer's warning that if he continued to hinder the attendants, he would be arrested, the officer was compelled to chase him into the house.

Defendant's mother testified that her son-in-law had reacted to the discovery that her daughter had taken the pills with cursing and obscenities and threats such as, "Now, you're going to pay for taking those pills," and "I'll kill you, your mother and your grandmother." His rage was such that defendant's mother feared he might kill the whole family, and knowing defendant's [20] sister had a gun in her purse, she took the gun and placed it in her own.

Defendant was taken to the hospital, treated, and released at 2:30 a.m. She spent the remainder of the night at her grandmother's house. Defendant testified that the next day, 12 June, she felt dazed all day long. She went in the morning to the county mental health center for guidance on domestic abuse. When she returned home, she tried to talk to her husband, telling him to "straighten up. Quit drinking.... I'm going to have you committed to help you." Her husband responded, "If you do, I'll see them coming and before they get here, I'll cut your throat."

Later, her husband made her drive him and his friend to Spartanburg to pick up the friend's paycheck. On the way, the friend testified, defendant's husband "started slapping on her" when she was following a truck too closely, and he periodically poured his beer into a glass, then reached over and poured it on defendant's head. At one point defendant's husband lay down on the front seat with his head on the arm rest, "like he was going to go to sleep," and kicked defendant, who was still driving, in the side of the head.

Mark Navarra testified that in the year and a half he had lived with the Normans, he had never seen defendant's husband madder than he was on 12 June, opining that it was the DUI arrest two days before that had ignited J.T.'s fury. Phyllis testified that her father had beaten her mother "all day long." She testified that this was the third day defendant's husband had forbidden her to eat any food. Phyllis said defendant's family tried to get her to eat, but defendant, fearing a beating, would not. Although Phyllis's grandmother had sent over a bag of groceries that day, defendant's husband had made defendant put them back in the bag and would not let anyone eat them.

Early in the evening of 12 June, defendant's husband told defendant, "Let's go to bed." Phyllis testified that although there were two beds in the room, her father had forbidden defendant from sleeping on either. Instead, he had made her lie down on the concrete floor between the two beds, saying, "Dogs don't lay in the bed. They lay in the floor." Shortly afterward, defendant testified, Phyllis came in and asked her father if defendant could take care of her baby while she went to the store. He assented and eventually went to sleep. Defendant was still on the floor, the baby on the small bed. The baby started to cry and defendant "snuck up and took him out there to [her] mother's [house]." She asked her mother to watch the baby, then asked if her mother had anything for headache, as her head was "busting." Her mother responded that she had some pain pills in her purse. Defendant went in to get the pills, "and the gun was in there, and I don't know, I just seen the gun, and I took it out, and I went back there and shot him."

From this evidence of the exacerbated nature of the last three days of twenty years of provocation, a juror could conclude that defendant believed that her husband's threats to her life were viable, that serious bodily harm was imminent, and that it was necessary to kill her husband to escape that harm. And from this evidence a juror could find defendant's belief in the necessity to kill her husband not merely reasonable but compelling.

The third element for entitlement to an instruction on self-defense requires that there be evidence that the defendant was not the aggressor in bringing on the affray. If the defendant was the aggressor and killed with murderous intent, that is, the intent to kill or inflict serious bodily harm, then she is not entitled to an instruction on self-defense. State v. Mize, 316 N.C. 48, 340 S.E.2d 439. A hiatus between provocation by the decedent and the killing can mark the initiation of a new confrontation between the defendant and the decedent, such that the defendant's earlier perception of imminent danger no longer appears reasonable and the defendant becomes the aggressor. For example, in Mize, the defendant, who had been told the day before that the decedent was "out to get" him, went to the decedent's trailer with a shotgun, knocked on the front door, and hid under the steps when the decedent opened the door and asked who was there. Defendant then went to the back door, [21] knocked again, and shot the decedent. When the defendant went with his shotgun to the decedent's trailer, this Court said, it was a new confrontation, and if the defendant still believed that it was necessary to kill the decedent to avoid his own imminent death, that belief was unreasonable.

Where the defendant is a battered wife, there is no analogue to the victim-turned-aggressor, who, as in Mize, turns the tables on the decedent in a fresh confrontation. Where the defendant is a battered wife, the affray out of which the killing arises can be a continuing assault. There was evidence before the jury that it had not been defendant but her husband who had initiated "the affray," which the jury could have regarded as lasting twenty years, three days, or any number of hours preceding his death. And there was evidence from which the jury could infer that in defendant's mind the affray reached beyond the moment at which her husband fell asleep. Like the ongoing threats of death or great bodily harm, which she might reasonably have perceived as imminent, her husband continued to be the aggressor and she the victim.

Finally, the fourth element of self-defense poses the question of whether there was any evidence tending to show that the force used by defendant to repel her husband was not excessive, that is, more than reasonably appeared to be necessary under the circumstances. This question is answered in part by abundant testimony describing defendant's immobilization by fear caused by abuse by her husband. Three witnesses, including the decedent's best friend, all recounted incidents in which defendant passively accepted beating, kicks, commands, or humiliating affronts without striking back. From such evidence that she was paralyzed by her husband's presence, a jury could infer that it reasonably appeared to defendant to be necessary to kill her husband in order ultimately to protect herself from the death he had threatened and from severe bodily injury, a foretaste of which she had already experienced.

In State v. Wingler, 184 N.C. 747, 115 S.E. 59 (1922), in which the defendant was found guilty for the murder of his wife, Justice (later Chief Justice) Stacy recognized the pain and oppression under which a woman suffers at the hands of an abusive husband: "The supreme tragedy of life is the immolation of woman. With a heavy hand, nature exacts from her a high tax of blood and tears." Id. at 751, 115 S.E. at 61. By his barbaric conduct over the course of twenty years, J.T. Norman reduced the quality of the defendant's life to such an abysmal state that, given the opportunity to do so, the jury might well have found that she was justified in acting in self-defense for the preservation of her tragic life.

It is to be remembered that defendant does not have the burden of persuasion as to self-defense; the burden remains with the state to prove beyond a reasonable doubt that defendant intentionally killed decedent without excuse or justification. See State v. Mash, 323 N.C. 339, 346, 372 S.E.2d 532, 537 (1988) (the state must satisfy the jury beyond a reasonable doubt that, despite evidence of intoxication, defendant did form a deliberate and premeditated intent to kill). If the evidence in support of self-defense is sufficient to create a reasonable doubt in the mind of a rational juror whether the state has proved an intentional killing without justification or excuse, self-defense must be submitted to the jury. This is such a case.

[1] This interpretation of the meaning of "imminent" is reflected in the Comments to the Model Penal Code: "The actor must believe that his defensive action is immediately necessary and the unlawful force against which he defends must be force that he apprehends will be used on the present occasion, but he need not apprehend that it will be immediately used." Model Penal Code § 3.04 comment (ALI 1985).