On appeal from Superior Court, Law Division, Hudson County.
King, Long and Stern. The opinion of the court was delivered by Stern, J.A.D.
Defendant was indicted for murder, contrary to N.J.S.A. 2C:11-3a(1) or (2) (count one); possession of a handgun with the intent to use it unlawfully, contrary to N.J.S.A. 2C:39-4a (count two); and possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5b (count three). Following a trial by jury, defendant was convicted of the lesser included offense of aggravated manslaughter on count one and possession of a handgun without a permit. He was acquitted of the possession of a handgun for an unlawful purpose.
Defendant was sentenced to 30 years of imprisonment with a 15 year parole ineligibility on count one and to a concurrent 5 year term with two and one-half years parole ineligibility on count three. An aggregate VCCB penalty of $60.00 was also imposed.
On this appeal defendant argues:
POINT I THE TRIAL COURT'S REFUSAL TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF PASSION/PROVOCATION MANSLAUGHTER AND REFUSAL TO PROPERLY INSTRUCT THE JURY ON RECKLESS MANSLAUGHTER CONSTITUTED A VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10.
A. Passion/Provocation Manslaughter
POINT II THE TRIAL COURT'S ERRONEOUS INSTRUCTION TO THE JURY THAT THE DECEDENT'S STATE OF MIND WAS RELEVANT TO DETER MINE WHETHER DEFENDANT'S USE OF DEADLY FORCE WAS JUSTIFIABLE, DENIED THE DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
POINT III TESTIMONY DURING THE STATE'S CASE AND COMMENT IN THE PROSECUTOR'S SUMMATION THAT DEFENDANT BORROWED THE PISTOL TO DO "STICK-UPS" VIOLATED EVID.R. 55 AND SO PREJUDICED DEFENDANT AS TO DENY HIM A FAIR TRIAL. (Not Raised Below).
In a pro se supplementary brief he makes similar contentions and also argues that the charge on "reckless manslaughter" was inconsistent with the definition of "reckless" in N.J.S.A. 2C:2-2b(3).
Our careful review of the record satisfies us that the defendant's conviction for aggravated manslaughter must be reversed because of the trial judge's refusal to charge the jury on passion/provocation manslaughter, as requested by defendant. We find it therefore unnecessary to address the evidentiary issues raised by defendant and leave their resolution to the proofs and contentions as they develop at the retrial. We affirm the conviction for the possessory offense under count three as we find no error affecting it.
We commence by reciting the critical proofs relating to the death of Thomas Martin and the issues raised on this appeal.
On December 17, 1987 at approximately 5:30 p.m., James Owens was dropped off outside of his apartment at 7 Monticello Avenue in Jersey City. At that time he saw defendant (also known as "Omar") "standing in front of the apartment." Owens invited him inside, but did not have his key. They ultimately entered when LaTrenda Thomas, who also lived there, "came down the street" with a key.
Martin (also known as "Abdul"), Barry Vonce (also known as "Kareem"), his girlfriend and a woman named Ann were in the apartment when Owens and defendant entered. LaTrenda's boyfriend, Darnell Johnson (also known as "Blood"), was sleeping in the back room. ...