On appeal from the Superior Court, Law Division, Camden County.
Botter, Antell and Furman. The opinion of the court was delivered by Furman, J.A.D.
[183 NJSuper Page 275] Defendant was convicted of first degree murder, in violation of N.J.S.A. 2A:113-1 and 2, of kidnapping, in violation of N.J.S.A. 2A:118-1, and of abduction, in violation of N.J.S.A. 2A:86-2, following a jury trial. The victim of these crimes was Kathleen Kinsman. Defendant was acquitted by the jury of assault with intent to rape Kathleen Kinsman and of kidnapping Kristen Herreshoff.
On appeal he charges error in the trial judge's refusal to submit the issues of second degree murder and manslaughter to the jury, arguing that there was a rational basis in the record to support a conviction of either or both of these two lesser offenses. He also charges error in the trial judge's refusal to instruct the jury on the legal effect of voluntary intoxication and the judge's failure sua sponte to merge the kidnapping and abduction convictions.
Defendant and Kristen Herreshoff testified to the events of the early morning hours of August 18, 1977, leading up to Kathleen Kinsman's death in jumping from a moving car driven by Clark Smith. A statement by Clark Smith, who was not available at the time of the trial, was read into evidence.
Defendant, then in his twenties, was driving his car in Pennsylvania accompanied by Clark Smith, then aged 16, as passenger. They had been smoking marijuana. Defendant was affected "a little." Kathleen Kinsman and Kristen Herreshoff, then aged 19 and 18, respectively, were hitchhiking back to their homes in Mount Holly, New Jersey, after attending a concert in Philadelphia. At about one in the morning, in Trevose, Pennsylvania, defendant stopped and offered a ride to the two young women, who asked to be taken to Mount Holly. Defendant agreed. The young women entered the back seat. Before crossing the Burlington-Bristol Bridge into New Jersey, Smith lit up a pipe with marijuana and passed it around. Kinsman refused. The other three smoked for about ten minutes. According to defendant, he was "high" and feeling "pretty good." Defendant proposed that the young women accompany him and Smith to Cape May, New Jersey. Kinsman at first expressed willingness. But when the car reached what would have been the turn-off to Mount Holly, both young women asked to be let out. Kinsman told defendant and Smith that she was scheduled to take a motor vehicle driver's test the next day. She repeated her plea to be let out several times. Defendant continued driving in a southerly and then easterly direction away from the Mount Holly turn-off towards the New Jersey shore. On the
Atlantic City Expressway, with the car moving, defendant directed Smith to take over the steering wheel and climbed into the back seat. Herreshoff then climbed into the passenger seat alongside Smith, who had assumed the driving. Smith maintained a speed of about 45 miles an hour.
According to Herreshoff, defendant, prior to climbing into the back seat, had threatened to shoot the young women unless they consented to sexual relations, but he was not holding a gun in view. Defendant testified that Smith said, "What if we had a gun?" and that he himself repeated that query, intending it facetiously.
According to Smith's statement which was read into evidence, defendant said to Kinsman, but not seriously, "I guess we will have to torture you and drink your blood."
Herreshoff's version of events after defendant joined Kinsman in the back seat diverges from defendant's version. Herreshoff heard terrified screaming by Kinsman, which went on and on and "seemed like forever." She heard struggling and a "commotion." The screaming stopped. Defendant called out. Herreshoff looked back. The door on Kinsman's side was open. She had jumped out while the car was travelling at about 45 miles an hour and was killed when she struck the pavement.
Defendant testified that Herreshoff seemed to acquiesce in a trip to the New Jersey shore but that Kinsman protested several more times, referring to her driver's test the next day. He offered to drive Kinsman back from Cape May the following morning. He was still "high" from the marijuana and confident that he would have sexual relations. He put his arm around Kinsman. She said, "Leave me alone." He put his hand on her leg and again she asked him to stop. He offered her money for sexual relations. She refused. He leaned forward to speak to Smith. He heard the door open. He looked back and saw Kinsman's body lying in the roadway. He was shocked because Kinsman had not even seemed scared. Frightened himself and concerned about his prior criminal record, he ordered Herreshoff out of the car and drove off.
N.J.S.A. 2A:113-1 et seq. , repealed effective September 1, 1979, governed the prosecution of defendant for murder of Kathleen Kinsman. Under N.J.S.A. 2A:113-2, murder committed in perpetrating or attempting to perpetrate arson, burglary, kidnapping, rape, robbery or sodomy was first degree murder, as was any willful, deliberate and premeditated killing. Defendant was prosecuted for felony murder in perpetrating a kidnapping and in attempting to perpetrate rape.
Any other killing with intent to kill or to inflict grievous bodily harm was second degree murder under New Jersey Revised Statutes, Title 2A. State v. Madden , 61 N.J. 377, 385 (1972); State v. Gardner , 51 N.J. 444, 456-459 (1968). The element of malice, express or implied, differentiated murder from manslaughter. State v. Christener , 71 N.J. 55, 64-65 (1976). Manslaughter was proscribed but not defined in N.J.S.A. 2A:113-5. Under the decisional law, manslaughter was recognized to be a killing in the heat of passion, resulting from reasonable provocation, or as the involuntary consequence of an unlawful act, with intent to inflict less than grievous bodily harm or in reckless disregard of the life or safety of another. State v. Madden, supra; State v. Bonano , 59 N.J. 515, 523 (1971); State v. Brown , 22 N.J. 405, 411 (1956).
Under the governing provisions of Title 2A, a criminal homicide committed in perpetrating an abduction, which is not one of the felonies specified in N.J.S.A. 2A:113-2, would not have been first degree murder. Nor would a criminal homicide have been first degree murder if committed in perpetrating one of several lesser offenses of which defendant may have been guilty under the proofs, for example, simple assault in touching and attempting to fondle Kathleen Kinsman against her will, a threat to kill or torture ...