On appeal from Superior Court of New Jersey, Law Division, Somerset County.
Pressler, Brody and Havey. The opinion of the court was delivered by Brody, J.A.D.
Indicted for murder, defendant was acquitted of that crime but found guilty by a jury of aggravated manslaughter. He was sentenced to 20 years of imprisonment, 10 years to be served before parole eligibility. In charging the jury, the judge erroneously placed upon defendant the burden of proving that he was acting under the stress of reasonable provocation sufficient to reduce murder to provocation/passion manslaughter. The State contends that the error was harmless. We disagree and remand for a new trial thereby rendering moot numerous other issues presented on this appeal.
At the heart of the matter factually was the inconstancy of the victim's wife. In 1977 she was defendant's secretary and mistress. In 1980 she took up residence with the victim. Thereafter she alternated, spending several months with one man and then several with the other. She finally married the victim about two months before defendant bludgeoned him to death. According to defendant, shortly after the wedding he resumed having sexual relations with her. There is no dispute that they were together for lunch at his home on the day of the homicide.
Later that day defendant and the victim met. The victim did not survive the encounter. The facts leading to the homicide were very much in dispute. For our purposes it is enough to know that without objection the judge permitted the jury to consider whether defendant was guilty of purposeful murder, knowing murder, aggravated manslaughter, reckless manslaughter or provocation/passion manslaughter. The jury was also instructed to consider whether defendant acted in self-defense.
With respect to the provocation/passion manslaughter portion of the charge, the judge instructed the jury in part as follows:
Now, the second type of manslaughter is criminal homicide which would otherwise be murder except that it was committed in the heat of passion resulting from a reasonable provocation.
Six hours into their deliberations, the jury asked the judge to define the crimes with which defendant was charged and to explain the defense of self-defense. The judge repeated his original charge verbatim.
After the jury was excused to resume their deliberations, defendant's attorney objected that the quoted language "would operate to suggest that the burden of proof is upon the defendant to indicate and to show beyond a reasonable doubt that he was deprived of his self control." The judge responded that the charge "was taken from the model charge . . . and I think the language does not in any way suggest that the burden is upon the defendant to prove anything." In fact the judge departed from the language of the model jury charge and incorrectly instructed the jury that in order to convict defendant of provocation/passion manslaughter they must be convinced beyond a reasonable doubt that he was acting under the stress of reasonable provocation.
"Criminal homicide constitutes manslaughter when . . . [a] homicide which would otherwise be murder . . . is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2). When there is evidence of these mitigating facts the judge must charge the jury that it is the State's burden to prove that the defendant did not act in the heat of passion on reasonable provocation. See State v.
Powell, 84 N.J. 305, 315 & n. 10 (1980). If the jury in such a case is convinced beyond a reasonable doubt that the elements of murder have been proved, but have a reasonable doubt as to whether the defendant acted under the stress of reasonable provocation, they must acquit the defendant of murder and, ...