On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Michels, Long and Muir, Jr. The opinion of the court was delivered by Michels, P.J.A.D.
Tried to a jury, defendant Eugene Johnson, Jr., was convicted of murder in the second degree for the killing of Marie McDonald (McDonald) on or about May 16, 1979, in Camden, New Jersey, in violation of N.J.S.A. 2A:113-1 and -2 (repealed by L. 1978, c. 95, § 2C:98-2, effective September 1, 1979). The trial court committed defendant to the custody of the Commissioner of the Department of Corrections for a term of not less than 28 years, nor more than 30 years. Defendant appeals, seeking a reversal of his conviction or, alternatively, a modification of his sentence on the following grounds set forth in his brief:
I. THE TRIAL COURT'S REFUSAL TO GRANT THE DEFENSE'S REQUEST TO CHARGE AND ITS SUBSEQUENT REFUSAL TO PROVIDE THE JURY WITH AN INSTRUCTION ON THE LAW RELATING TO MANSLAUGHTER DEPRIVED DEFENDANT OF A FAIR TRIAL AND THEREFORE CONSTITUTES REVERSIBLE ERROR.
II. THE TRIAL JUDGE ERRED BY FAILING TO QUESTION DEFENDANT PERSONALLY REGARDING WHETHER OR NOT HE WISHED TO WAIVE THE STATUTE OF LIMITATIONS FOR MANSLAUGHTER. (Not Raised Below.)
III. THE COURT'S FAILURE TO DEFINE THE TERM "MALICE" RESULTED IN AN INADEQUATE DEFINITION OF THE OFFENSE OF MURDER. (Not Raised Below.)
IV. THE ADMISSION INTO EVIDENCE OF AUBREY STEVENS' PRIOR CONSISTENT STATEMENT AND THE FAILURE OF THE COURT TO GIVE ANY LIMITING INSTRUCTION REGARDING THE APPROPRIATE USE OF SUCH A STATEMENT DEPRIVED DEFENDANT OF A FAIR TRIAL.
A. The Admission Into Evidence Of Aubrey Stevens' Prior Consistent Statement Violated New Jersey Evidence Rule 20 And Deprived Defendant Of A Fair Trial.
B. The Failure To Give The Jury Any Limiting Instructions Regarding The Appropriate Use Of The Prior Consistent Statement Was Error.
V. IN THE CASE AT BAR, THE IMPOSITION OF A 28 TO 30 YEAR SENTENCE FOR SECOND DEGREE MURDER WAS MANIFESTLY EXCESSIVE.
Defendant first contends that the trial court erred in refusing to instruct the jury regarding manslaughter as it related to the charge of murder. At the time that defendant was indicted under Title 2A for murder, the five-year statute of limitations under N.J.S.A. 2A:159-2 (repealed by L. 1978, c. 95, § 2C:98-2, effective September 1, 1979) had run for all lesser included offenses of murder, including manslaughter. The trial court was faced with the choice of whether to charge the jury concerning manslaughter, despite that the limitations period had expired, or submit the case to the jury with instructions only on the charge of murder. The trial court, guided by the United States Supreme Court opinion in Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984), held that in order to receive the benefit of a charge to the jury on the lesser included offense of manslaughter, defendant first would have to waive his statute of limitations defense.
In Spaziano, the defendant was indicted and tried for capital murder after the statute of limitations had run for all non-capital offenses. At the close of the evidence, the trial court informed the defendant that it would instruct the jury regarding lesser included, non-capital offenses if the defendant would waive the statute of limitations as a defense to those offenses. The defendant declined and the trial court submitted the case to the jury solely on the charge of capital murder, whereupon the defendant was convicted and sentenced to death. The Supreme Court in Spaziano discussed its earlier opinion in Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), which "made clear that in a capital trial, a ...