On Appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Matthews, J. H. Coleman and Gaulkin. The opinion of the court was delivered by Coleman, J.h., J.A.D.
This appeal requires us to decide what if any difference exists between aggravated manslaughter and reckless manslaughter. Defendant was tried to a jury for the murder of Rosemary Podgis, contrary to N.J.S.A. 2C:11-3, and theft of a van, contrary to N.J.S.A. 2C:20-3a. The jury was instructed on reckless manslaughter and aggravated manslaughter as lesser included offenses of the murder. He was acquitted of murder and the theft, but he was found guilty of aggravated manslaughter. The court imposed a custodial sentence of 20 years with 10 years of parole ineligibility. We now affirm.
Scott Franz was indicted for the murder of his stepfather, Alfred Podgis, on July 5, 1982. Defendant was indicted for the murder of Rosemary Podgis, Scott Franz's mother, on the same date. Franz pled guilty to murder and testified for the State while he was waiting to be sentenced. Defendant elected not to testify.
Franz and defendant graduated from Kings Edgehill School, a private boarding school in Nova Scotia, on June 18, 1982. Defendant resided in Canada while Franz resided in the Podgis home located at 401 Euclid Avenue, Loch Arbor, Allenhurst, New Jersey, where the homicides occurred over the July 4, 1982 weekend. Franz's stepfather and mother invited defendant to New Jersey to visit with Franz. Franz and defendant had been friends for two years.
The events in the Podgis household during the week preceding the homicides are highly relevant. Franz regarded his stepfather as physically abusive. He apparently loved his mother. On June 29, 1982, Franz and his stepfather went to the Newark Airport to pick up defendant who was flying in from Canada. The plane was late arriving. Franz and his
stepfather became embroiled in a heated argument because the stepfather thought the lateness of the plane would cost additional parking fees and would also interfere with a baseball date. Defendant was eventually transported from the airport to the Podgis home where he spent the next day uneventfully.
Franz testified that on July 1, he worked for a few hours and then went to the Englishtown Post Office to visit his mother at her job. His mother asked him to put gas in her car and to purchase a box of .30 caliber ammunition. Franz purchased the ammunition in the presence of defendant. The ammunition was brought to the Podgis home where it was placed on a table. Later that day Franz and his stepfather had an argument over a $389 Social Security check which Franz received monthly because of the death of his natural father.
Franz further testified that on July 2 there was another argument between him and his stepfather because Mr. Podgis left for work without taking Franz. Mr. Podgis punched Franz as Mrs. Podgis, defendant and Franz were leaving the house to go out for dinner.
On July 3, while Franz and defendant were cutting the lawn at about 11:30 a.m., they observed Mr. Podgis place some boxes containing rifles into one of the motor vehicles, cover them with towels and then lock the motor vehicle. Franz described his stepfather as being "hyper" because his face was totally red and he was walking in an unusual manner. Franz and defendant then went to the Seaview Square Mall where they remained until 9:30 p.m. When they returned home, Franz overheard his parents arguing. He heard Mr. Podgis say he never should have married Mrs. Podgis because some of her children are too much trouble. Later that night when Mr. Podgis came outside to take Franz's moped inside, defendant and Franz heard him say, "If I get my hands on that son-of-a-bitching kid, I'll kill him." He was referring to Franz. Defendant and Franz were afraid to enter the house that night until very late.
Franz also testified that on Sunday morning, July 4, he went upstairs to get his checkbook and to obtain defendant's travel checks. While upstairs Mr. Podgis fired a rifle shot at Franz. Franz dropped a tote bag he was carrying, which contained the belongings of defendant, and ran out of the house. Defendant and Franz spent the remainder of the day in Asbury Park. They returned home very late that night. Defendant indicated to Franz that Mr. Podgis "was a total pain and that we have to pay him back for making us stay outside." Later that Sunday evening, Mrs. Podgis indicated to Franz that her husband had found two of his collector guns underneath the mattress in the bedroom where defendant had been staying.
Significantly, before Franz and defendant entered the house late Sunday night, Franz broke into the locked motor vehicle containing the box of rifles and took two rifles and a box of bullets. These guns were to be used as protection by Franz and defendant whenever they would try to get back into the house to collect their personal belongings before leaving town. They felt they needed protection since Mr. Podgis had shot at Franz that morning. One of the guns removed from the locked vehicle was loaded. Franz unloaded that gun by ejecting the shells. He then loaded one-half of the shells into each of the two rifles. Defendant said he did not know how to load the rifle. Franz handed one of the loaded rifles to defendant with shells in the magazine, but no shell was in the firing chamber. The hammer was in the safety position. Defendant and Franz slept Sunday night on the sofa in the living room with the rifles on or underneath the sofa.
On Monday morning, July 5, defendant and Franz got up at approximately 7:30 a.m. Mrs. Podgis went into the kitchen to prepare french toast for breakfast. Defendant remained in the living room on the sofa with his loaded rifle on or underneath the sofa. Franz decided that he wanted to go upstairs to take a shower. However, before leaving to go upstairs, Franz told defendant "If Al [Alfred Podgis] tries anything, like shooting at me, then I am going to shoot him, and if you have to go out of
the house shooting, go ahead." Franz took with him a loaded .30 caliber rifle upstairs to take his shower.
Franz and his stepfather had an argument in the master bedroom as to why the stepfather had shot at Franz on Sunday. Mr. Podgis also accused Franz of stealing everything in the house and pawning it like his brother Mark. During the argument, Mr. Podgis held a .22 caliber rifle. Franz said Mr. Podgis then fired shots at him. Neither struck Franz. He fired from a leaning up position on the bed. Franz levered his rifle to move a shell from the magazine into the firing chamber. Franz fired a single shot that struck Mr. Podgis in the head blowing out most of his brain. Less than a minute after Franz fired his weapon, he heard a weapon discharge downstairs. Mrs. Podgis was killed downstairs by defendant with a rifle blast into her ...