On certification to the Superior Court, Appellate Division, whose opinion is reported at 198 N.J. Super. 575 (1985).
For affirmance -- Justices Clifford, Handler, Pollock, Garibaldi and Stein. For remand for new trial -- Chief Justice Wilentz and Justice O'Hern. The opinion of the Court was delivered by Stein, J. O'Hern, J., concurring in part, dissenting in part.
[102 NJ Page 266] Appellant was indicted for the murder and robbery of Ramon Torres. Francisco Ruiz was also indicted for those offenses,
but was never apprehended. After the trial court declined defense counsel's request to charge manslaughter, N.J.S.A. 2C:11-4, a jury convicted appellant of felony murder and first-degree robbery. The Appellate Division affirmed the conviction, concluding that appellant was entitled to the manslaughter charge but that the trial court's failure to give the charge was harmless error because passion/provocation manslaughter "is not available to reduce a robber's accountability for murder when someone is killed in the course of or immediate flight from the robbery." 198 N.J. Super. 575, 583 (1985). We now affirm appellant's conviction, but do so because the evidence would not have afforded the jury a rational basis for convicting appellant of passion/provocation manslaughter. N.J.S.A. 2C:1-8(e). Consequently, the trial court did not err in declining to charge the jury with passion/provocation manslaughter.
Ramon Torres, a 54-year-old unemployed auto mechanic, was robbed and brutally murdered on his way home from a bar during the early morning hours of April 9, 1982. He died of internal bleeding caused by multiple stab wounds to the chest.
Appellant and Ruiz were indicted for first-degree armed robbery and murder. Count one of the two-count indictment alleged that appellant and Ruiz robbed Torres while armed with a knife, N.J.S.A. 2C:15-1. The second count charged defendants with "knowingly" killing Torres, N.J.S.A. 2C:11-3(a)(2), "and/or" causing his death in the course of a robbery, N.J.S.A. 2C:11-3(a)(3).
The State and defense offered sharply conflicting versions of the events pertinent to the crime. The evidence presented by the State suggested that appellant and Ruiz attacked the victim while he was walking home alone from a bar, disabled him by breaking his ankle, and then robbed him of his jewelry and wallet. When the State's principal witness, Nicholas Santana, approached the scene, the perpetrators hid nearby. Santana
found Torres beaten but conscious, with no serious wounds other than a broken ankle.*fn1 Torres told Santana that the men who robbed him were the same two men who had robbed him two weeks earlier. Santana left Torres in order to call the police from a phone booth across the street. When he returned, he saw two men on top of Torres; they appeared to be stabbing him repeatedly. Santana threatened the two men with a broken fence post and they fled. When the police arrived, they discovered that Torres had been stripped of all valuables and identification and was bleeding profusely from multiple stab wounds of the face and chest.*fn2 The broken-off blade of a knife was found in Torres' overcoat. Torres died shortly thereafter at the hospital.*fn3
The prosecutor theorized that Santana had chanced upon the tail end of the robbery. He suggested that the assailants, fearing that Torres could identify them, returned to kill him while Santana was in the telephone booth. By its verdict, the jury apparently accepted the State's theory.
The defense presented an entirely different version of the facts. Appellant admitted being on the scene, but denied either robbing or killing Torres. He testified that Torres had instigated a fight by shouting "dirty words" and ethnic epithets*fn4 as he and Ruiz walked by. Arriagas testified that he responded to Torres' comments by confronting him, and then walked away.
When Torres followed him, Arriagas challenged Torres to fight, retaliating after Torres attempted to land the first blow. According to Arriagas, Torres kicked him in the leg and Arriagas hit Torres in the eye and face, knocking him down. Then Ruiz pushed Arriagas aside and stabbed Torres "three or four times." Arriagas said he ran from the scene only because Ruiz ran. The defense characterized Arriagas as guilty of, at most, simple assault.
Arriagas' claim that Ruiz had acted alone in killing Torres was corroborated by four men who shared with Ruiz an apartment overlooking the scene of the murder. Their testimony was weakened by internal contradictions and prior inconsistent statements each had given the police.*fn5
The trial court instructed the jury to consider appellant's guilt of knowing or purposeful murder, felony murder, and robbery, but refused defense counsel's request to charge the jury on manslaughter:
There's no such evidence. He didn't die from the fight. He died from the stab wounds. Your own client said that he was all right after the fight * * * and, as a matter of fact, your client delineates his activity from the stabbing. There's no manslaughter here.
In accordance with the trial court's instruction to consider appellant's guilt of purposeful or knowing murder only if it acquitted appellant of felony murder,*fn6 the jury found appellant guilty of felony murder and first-degree robbery and did not
consider purposeful or knowing murder. The trial court sentenced appellant to an extended term of fifty years for the felony-murder conviction, with a twenty-five-year period of parole ineligibility, and imposed a consecutive twenty-year term for the robbery conviction.
Although the Appellate Division affirmed the conviction, it agreed with appellant that the trial court, under State v. Powell, 84 N.J. 305 (1980), should have given the jury a manslaughter instruction because the jury had been given the option of convicting for purposeful or knowing murder. 198 N.J. Super. at 582. The court concluded that the error was harmless because the jury never considered purposeful or knowing murder, but convicted appellant of felony murder, a crime not amenable to mitigation based on provocation or passion. Id. at 583-84. However, the Appellate Division remanded the case to the trial court for resentencing, concluding that because the conviction for robbery necessarily merged with the felony-murder conviction, it was plain error for the trial court to have imposed a separate sentence for armed robbery. Id. at 579.
Although our ultimate disposition of this appeal does not require us to consider the Appellate Division's conclusion that failure to charge passion/provocation manslaughter was harmless error in this case, we are constrained to comment on the issue because of its recurrence. We most recently considered this question in State v. Grunow, 102 N.J. 133 (1986), holding that a jury instruction erroneous as to burden of proof when passion/provocation manslaughter is charged as a lesser-included offense is not harmless error where the jury acquitted defendant of murder and convicted him of aggravated manslaughter. Cf. State v. Vujosevic, 198 N.J. Super. 435, 444-46 (App.Div.1985) (failure to charge aggravated assault is harmless error where jury, charged with murder, aggravated manslaughter,
and manslaughter, convicts defendant of aggravated manslaughter); State v. Selby, 183 N.J. Super. 273 (App.Div.1981) (failure to charge jury with second degree murder and manslaughter is not harmless error where jury ...