On certification to the Superior Court, Appellate Division, whose opinion is reported at 199 N.J. Super. 241 (1985).
For affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.
[102 NJ Page 134] Defendant was tried to a jury for capital murder. The jury acquitted the defendant of murder but convicted him of aggravated manslaughter. On appeal, the Appellate Division reversed the conviction because the instructions to the jury impermissibly shifted the burden of proof to defendant to establish that the act was "committed in the heat of passion resulting from a reasonable provocation" (N.J.S.A. 2C:11-4(b)(2)) so as to reduce murder to manslaughter. 199 N.J. Super. 241, 246-49 (1985). (For convenience, hereafter we refer to this statutory
element as "passion/provocation.") In the Appellate Division's view, the incorrect charge "had the clear capacity to lead the jury to a wrong verdict." Id. at 249. We granted the State's petition for certification, 101 N.J. 293 (1985), to consider its assertion that it was harmless error to have shifted the burden of proof to defendant to establish the passion/provocation defense since the jury convicted defendant of aggravated manslaughter, an offense that could not be mitigated by passion/provocation. We agree that aggravated manslaughter is not reduced to manslaughter by passion/provocation, but we disagree with the State that the jury's verdict conclusively established that it was not misled by the charge. Hence we affirm the judgment directing a new trial.
The case arises from a love triangle that resulted in death. Only certain details of the final events preceding the death are in doubt. Defendant employed the victim's wife. She was allegedly torn between her employer and her husband, Michael Moylen. Defendant induced Moylen to visit premises that defendant had rented for Moylen's wife to occupy. An argument or an ambush ensued resulting in Moylen's death. Subsequently, the State charged the defendant with knowing and purposeful murder of Michael Moylen. Defendant testified at his trial that the encounter between the two had resulted in a violent emotional confrontation during which Moylen attacked him, and that in resisting the violent assault he mortally wounded Moylen, and thereafter defendant lost control of his reason and mutilated the body. The victim's body had been brutally assaulted with a metal bar, repeatedly stabbed with a garden pick, dismembered, and buried in a sealed steel drum.
Depending upon which version of the events the jury believed, it conceivably could have convicted defendant of capital murder, aggravated manslaughter, or manslaughter, or it could have acquitted him on all charges on a theory of self-defense. The jury convicted defendant of aggravated manslaughter. Defendant was sentenced to twenty-years imprisonment, with a ten-year term of parole ineligibility.
We emphasize at the outset that by this opinion we do not intend to resolve all of the extraordinarily complex factual and legal issues that may arise in the context of a mutual exchange of violent force that results in death. Hence, we do not address in detail the considerations of what factual circumstances will limit the availability of self-defense when the actor either has provoked the use of force against himself or can avoid the necessity of using deadly force by retreating, N.J.S.A. 2C:3-4(b)(2)(a) and (b). Nor do we address the specific circumstances that might give rise to a legally-cognizable defense based on passion/provocation under N.J.S.A. 2C:11-4(b)(2) or the availability of an imperfect self-defense to mitigate murder to manslaughter.
In assessing the validity of this conviction, we focus our review upon two issues:
(1) whether, as a matter of law, the crime of aggravated manslaughter is reduced to manslaughter when it is committed in the heat of passion resulting from a reasonable provocation, and
(2) if the answer to (1) is "no," whether an erroneous instruction on the burden of proving whether the homicide was committed in the heat of passion resulting from reasonable provocation may be considered harmless.
(1) Is aggravated manslaughter reduced to manslaughter when committed in the heat of passion resulting from a reasonable provocation?
To answer this question, it is necessary to review the development of the structure of the Code of Criminal Justice, N.J.S.A. 2C:1-1 to :98-4 and the Code's treatment of criminal homicide.*fn1 Chapter 11 of the Code of Criminal Justice provides that causing the death of another human being purposely,
knowingly, or recklessly shall be treated as criminal homicide. N.J.S.A. 2C:11-2(a). The Code divides criminal homicide into three categories: murder, manslaughter, and death by auto. N.J.S.A. 2C:11-2(b). There are three forms of murder: purposeful, knowing, and in the course of committing or attempting to commit certain felonies. N.J.S.A. 2C:11-3(a). There are three forms of manslaughter: aggravated, reckless, and passion/provocation. N.J.S.A. 2C:11-4(a) and (b). Criminal homicide caused by one's driving a vehicle recklessly is death by auto. N.J.S.A. 2C:11-5. For purposes of sentence and punishment, the Code grades criminal homicide as follows: murder is a crime of the first degree. A person convicted of murder must be sentenced to a minimum term of thirty years before being eligible for parole. N.J.S.A. 2C:11-3(b). Certain murders are capital murders, which are subject to a separate proceeding to determine whether the defendant should be sentenced to death. N.J.S.A. 2C:11-3(c)(1). Aggravated manslaughter occurs "when the actor recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a). It is a crime of the first degree. N.J.S.A. 2C:11-4(c). Reckless manslaughter and passion/provocation manslaughter are second-degree crimes. N.J.S.A. 2C:11-4(b) and (c). It is the definition of passion/provocation manslaughter that provokes the issue here since it is only "murder under section 2C:11-3" that is expressly reduced to manslaughter if "committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2).
In this case we deal only with purposeful and knowing murder.*fn2 An illustration may serve to show the verdicts, other than acquittal, that were available to the jury under the language of the Code and the degrees of punishment related thereto:
The Appellate Division found that "[i]t would be contrary to pre-Code law and lead to [an] absurd result that a defendant charged with murder would be eligible to have the crime reduced to second-degree provocation/passion manslaughter but a defendant charged with the lesser offense of first-degree aggravated manslaughter would not." 199 N.J. Super. at 251 This argument has an inherent logic; nevertheless it conflicts with the language of the statute, and does not fully reflect other substantive changes in the development of the Code.
The drafters of the New Jersey Penal Code proposed four categories of murder: (1) criminal homicide committed purposely, 2C:11-3(a)(1); (2) criminal homicide committed knowingly, 2C:11-3(a)(2); (3) criminal homicide committed "recklessly under circumstances manifesting extreme indifference to the value of human life," 2C:11-3(a)(3); and (4) felony murder, 2C:11-3(a)(4). Final Report of the New Jersey Criminal Law Revision
Comm'n (Oct.1971), Vol. I, at 50. They described the nature of the proposed crime of reckless murder as follows:
where recklessness should be assimilated to knowledge * * *[,] [t]he conception employed is that of extreme indifference to the value of human life. The significance of purpose or knowledge is that, cases of provocation apart, it demonstrates precisely such indifference. Whether recklessness is so extreme that it demonstrates similar indifference is not a question that, in our view, can be further clarified; it must be left directly to the trier of the facts. If recklessness exists but is not so extreme, the homicide is manslaughter.
[ Final Report, Vol. II, at 156.]
Under pre-Code law our statutes merely provided the punishment for manslaughter, N.J.S.A. 2A:113-5, repealed by L. 1978, c. 95, § 2C:98-2, leaving its definition to the common law. Under the common law of New Jersey, "extreme indifference" homicide was second-degree murder. State v. Gardner, 51 N.J. 444, 457-58 (1968).
As originally enacted, the Code made no provision for any form of reckless murder; it provided for only reckless manslaughter. L. 1978, c. 95, § 2C:11-4(a)(1). Professor Knowlton, Chairman of the Commission, explained:
The statute departs significantly from the commission report in two respects. The first is the elimination of reckless murder. This is highly desirable since a homicide is murder if it is committed knowingly. The element of "recklessness" requires personal awareness of the risk and a conscious disregard of it, while the term "knowingly" requires the actor to be "practically certain that his conduct will cause such a result." These two factors codify degrees of culpability for homicide: the more stringent one of "knowingly" is more suitable for murder because of its greater sanction; "recklessness" killings are properly made manslaughter.
[Knowlton, Comments Upon the New Jersey Penal Code, 32 Rutgers L.Rev. 1, 9 (1979) (footnotes omitted).]
In the consensus amendments of 1979, section 2C:11-4 was amended to divide manslaughter between aggravated manslaughter and reckless manslaughter depending upon the presence of "circumstances manifesting extreme indifference to human life." L. 1979, c. 178, § 2C:11-4(a).*fn3
However, the argument that it was merely a legislative oversight that passion/provocation is not explicitly available to mitigate aggravated manslaughter under the new Code may not fully reflect the accompanying changes that the Legislature made in reducing the offense from murder to manslaughter. The history of the Code also reveals that the Legislature made a very substantial departure from certain fundamental underlying premises of the Commission with respect to individual responsibility for criminal conduct. In some instances the Commission would have viewed penal responsibility in terms of individual or subjective levels of criminal consciousness. The Legislature, on the other hand, has tended to view criminal culpability on collective or objective levels of responsibility.
Hence, the Code as enacted provides that criminal homicide constitutes manslaughter only when "committed in the heat of passion resulting from a reasonable provocation," N.J.S.A. 2C:11-4(b)(2), as opposed to the Commission's recommendation of "under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse." Final Report, Vol. I, at 51, § 2C:11-4(a)(2). In addition to expanding the mitigating mental or emotional disturbance to include unprovoked reactions, the manslaughter section proposed by the Commission would have provided that the reasonableness of the explanation or excuse would "be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be." Id. This proposal was rejected by the Legislature in favor of a resolution substantially in the current form. The narrowing of the scope of the defense of passion/provocation has been balanced, however, by the reduction in grade of the unintentional homicide reflecting extreme indifference to human life from murder to manslaughter.
In addition, as originally presented, the Criminal Law Revision Commission's concepts of justification also would have been framed in terms of subjective evaluation. The Commission proposed:
The justification provisions * * * of the Code have been so framed that when the actor believes the force that he employs is necessary for any of the purposes which may establish a justification, his belief affords him a defense although it is erroneous, subject to the qualification of Section 2C:3-9 that when "the actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force," he may be convicted of "an offense for which recklessness or negligence, as the case may be, suffices to establish culpability." These provisions assure that homicides in self-defense, defense of others, defense of property, effectuation of arrest or crime prevention, where the actor's belief in the necessity rests on unreasonable grounds, must be approached as crimes of recklessness or negligence, if they are crimes at all. Such homicides, accordingly, are manslaughter at most under the Code -- whether or not there was intent to kill.
[ Final Report, Vol. II, at 163.]
Taken together, these provisions would have drawn a careful balance between individual culpability and collective security from crime by penalizing the actor who is reckless or negligent in forming the mental state that guided his conduct, exposing the actor to criminal liability for any grade of crime for which such mental state would suffice.
As noted, the legislative sponsors of the Code substantially altered the subjective view of mitigation or justification. They returned to the common law concepts of objectively reasonable reactions to both provocation and the need for self-defense. At the same time the Legislature recognized the inconsistency of treating as murder a criminal homicide that was not knowing, purposeful, or committed in the course of a felony.*fn4 The
composite result represents a balance between the subjective ranges of criminal responsibility proposed by the Commission and the Legislature's desire to ...