On appeal from the Superior Court, Law Division, Union County.
Furman, Petrella and Cohen. Petrella, J.A.D., dissenting.
Defendant appeals from his conviction of murder, N.J.S.A. 2C:11-3a(1) or (2), following a seven-day jury trial. We reverse and remand because of error in the trial court's refusal to charge reckless manslaughter and in its failure to charge aggravated manslaughter sua sponte.
At issue is whether a killing by excessive force in self-defense may be aggravated or reckless manslaughter, not murder, under the Code of Criminal Justice. N.J.S.A. 2C:11-3 defines murder, insofar as pertinent, as purposefully or knowingly causing death or serious bodily injury resulting in death. N.J.S.A. 2C:11-4 defines manslaughter:
a. Criminal homicide constitutes aggravated manslaughter when the actor recklessly causes death under circumstances manifesting extreme indifference to human life.
b. Criminal homicide constitutes manslaughter when:
(1) It is committed recklessly; or
(2) A homicide which would otherwise be murder under section 2C:11-3 is committed in the heat of passion resulting from a reasonable provocation.
The general definition of "recklessly" is set out in N.J.S.A. 2C:2-2:
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would
observe in the actor's situation. "Recklessness," "with recklessness" or equivalent terms have the same meaning.
A version of the evidence which would have supported a jury verdict of aggravated or reckless manslaughter is as follows, drawn chiefly from defendant's own testimony. For over a year defendant had repeated arguments with John Booker over a woman. Booker threatened him about 50 times. Booker was "always drunk." Several times Booker accompanied his threats by pulling out a knife about seven to eight inches long, like a dagger, and showing it to defendant. Booker was bigger than defendant. Defendant knew of Booker's reputation for violence and was fearful of Booker's violence when drunk.
On a late afternoon in July, Booker had been at an outdoor barbecue and had been drinking. Defendant was on an errand across the street. Booker started across towards defendant, saying that he wanted to see him. Booker's hands were in his pockets. He started cursing defendant. He appeared to be drunk. Defendant was apprehensive that Booker had a knife and would make a sneak attack on him. Defendant asked Booker to leave him alone. Defendant showed his own knife to Booker, then put it back in his belt. Defendant walked away. Booker followed him. When Booker was about two feet away from him defendant stabbed Booker slightly in the chest "because I knew he was going to stab me." Defendant's intention was to stop Booker, not to hurt him badly. After the blow Booker had a "funny look on his face like he was smiling." It occurred to defendant that Booker had not felt the ...