On certification to the Superior Court, Appellate Division, whose opinion is reported at N.J. Super. (1979).
For reversal and remandment -- Chief Justice Wilentz and Justices Pashman, Schreiber, Handler and Pollock. For affirmance -- Justice Sullivan and Clifford. The opinion of the Court was delivered by Wilentz, C.J. Sullivan and Clifford, JJ., dissenting.
On September 7, 1975, between 9:50 and 10:10 p.m., Debbie Couch was shot and killed in her apartment in Camden, New Jersey. The defendant Larry Powell, a police officer, was tried and convicted for her murder. The Appellate Division, 175 N.J. Super. 407, affirmed his conviction, and its determination is now before us for review.
Defendant's appeal from his conviction of second degree murder is rooted in the trial judge's failure to deliver a voluntary manslaughter instruction to the jury, which defendant claims was mandated by the presence of evidence in the record from which a jury could reasonably have concluded that the killing was done in the heat of passion resulting from reasonable provocation. In particular, defendant points to an inculpatory statement, put into evidence by the State, that he made to his
fellow officers, which was summarized by the Appellate Division as follows:
Essentially . . . the statement indicates a quarrel between defendant and the deceased, a subsequent struggle between them for possession of the gun in his waist when she tried to seize it from him and an unexplained or unexpected shooting of deceased with the gun while she was standing near a chair.*fn1 [At 411].
At trial, defense counsel suggested to the judge that the jury, if it believed the statement, could reasonably infer from it and other proof that the deceased tried to grab his gun and kill him, and that Powell, in a fit of rage, took the gun away from her and killed her. The trial judge refused to charge accordingly because he felt that the defendant's subsequent repudiation of his inculpatory statement and denial of any involvement at all in the shooting precluded issuance of a charge grounded in defendant's intentional conduct. Although the reason for this refusal was clearly in error, the Appellate Division affirmed because it concluded (a) that the disavowed statement did not support the delivery of a manslaughter instruction based on provocation/passion, and (b) that if such charge were appropriate, its omission was harmless. We disagree and therefore reverse. As is explained subsequently, the facts in the record below could support either a murder or manslaughter conviction. However, the trial judge charged first and second degree murder only. He also charged self-defense and accidental homicide, both of which would lead to acquittal. The jury convicted Powell of second degree murder. It carried a potential penalty of up to 30 years in prison, whereas conviction of manslaughter would have carried a penalty of up to 10 years in prison or $1,000 or both. The actual sentence was 28 to 30 years imprisonment, at least 18 years longer than the maximum sentence of imprisonment for manslaughter. Clearly, the trial court's omission of a charge supported by evidence in the record was harmful error -- it eliminated the possibility of a conviction of a lesser offense.
Debbie Couch, the deceased, was defendant Larry Powell's "common-law" wife. Together they had a daughter who was almost a year old at the time Debbie Couch was killed. The couple had been living together since shortly after the birth of the baby, and resided in the apartment where the homicide occurred. It is clear from the record that their relationship was unsteady, wavering from love to hate on various occasions. The couple argued often, about a variety of topics ranging from day-to-day housekeeping problems to defendant's relationships with other women. They quarreled on the morning of the homicide, and defendant packed up his clothes when he left the house, ostensibly to give the impression that he had had enough and was leaving the deceased. This conduct may have been provoked by the fact that the deceased herself was thinking of leaving him, although he denied knowledge of that fact at trial. As he put it, they were "playing cat and mouse." Powell's "partner" (a fellow police officer who worked closely with him) recalled a number of occasions on which Powell and the deceased had argued, at which times he had gotten so angry that he made threats against her, threats which his partner "knew" Powell had no intention of carrying out.
Our understanding of the chain of events that led to Debbie Couch's death is clouded by the fact that Powell offered two conflicting explanations of what transpired. The first account, a statement given to police early on in their interrogation, and repeated in court when the defendant was on the stand, "pinned" the shooting on retributive acts of a number of individuals who Powell thought "had it in for him." According to Powell, he returned home after an evening of "visiting" in Atlantic City, and found the deceased sitting in a chair. When he touched her, he realized she was dead. In this statement, he attributed her death to those individuals who were allegedly "out to get him."
Powell's second statement, obtained after hours of interrogation in the police station, described an "accidental" shooting that occurred when he arrived home and had another quarrel with the deceased, at which time she lunged for his revolver:
". . . I went up to the place and had an argument and she went for my pistol. She got it and I grabbed it and I was pulling it toward me and I turned it away from me and it went off. She fell on the chair." In this statement Powell described his alleged surprise on discovering that Debbie was the one who had been hit, having determined that she was in control of the gun and that she was the one who was going to shoot him. After the shooting, Powell walked out and began driving to Atlantic City. On the way to Atlantic City, he threw his gun out of the car, because "I started realizing, you know, it didn't really hit me what happened. You know, . . . I was just saying to myself I know this is not true, I know this didn't happen. You know I didn't realize . . . what happened then." At this point, the two statements merge and contain a single account of defendant's trip to his mother's house, to some bars, to a friend's house, etc., and his eventual return to the apartment where Debbie lay dead in the chair.
It appears from the record that the police were notified, and Powell went back with them to the police station to cooperate in the investigation of Debbie's death. He was subjected to approximately nine hours of questioning, during which time he issued the two statements just described. As noted above, Powell unsuccessfully sought to have the second statement suppressed on the ground that it was a product of coercion and had been obtained in violation of his Miranda rights.
The suppression motion having been denied, defense counsel pursued four inconsistent defenses: the first, to which defendant testified at trial, denying involvement and claiming an alibi (was in Atlantic City); the second admitting involvement but claiming misadventure (an accidental shooting); the third and fourth admitting involvement and intent to kill but claiming self-defense and provocation/passion respectively. All but the first arose from defendant's second statement to the police. The trial court charged on alibi, accident, and self-defense but refused to charge provocation/passion.
An analysis of the relevant legal principles applied to the facts in this case leads to the conclusion that a manslaughter instruction
on provocation/passion was required. Defendant Powell is therefore entitled to a new trial.*fn2
Since the case will be retried, we have considered the question, not raised below but first suggested in the briefs before this Court, whether the record supports a further manslaughter instruction based on imperfect self-defense. We conclude that it does and that such defense was available under pre-Code law. Assuming substantially similar evidence on retrial, such charge should be given. While our discussion hereafter treats passion/provocation and imperfect self-defense together, we choose to base our reversal on the failure to charge manslaughter based on passion/provocation. While failure to charge imperfect self-defense, even though such charge was not requested, might otherwise require a reversal (see infra at 316, 318), the propriety of such reversal here is doubtful, for not only was there no request but the doctrine itself (imperfect self-defense) had not been explicitly recognized in this State. Thus we need not pass on this difficult question here.
The balance of our opinion will be divided into two parts. Part I discusses whether imperfect self-defense was available under pre-Code law to reduce second degree murder to manslaughter and Part II discusses the sufficiency of the evidence in this case to warrant manslaughter ...