On appeal from Superior Court of New Jersey, Law Division, Mercer County.
J.h. Coleman and Ashbey. The opinion of the court was delivered by J.h. Coleman, P.J.A.D.
The focus of this appeal is upon the positioning of a passion/provocation manslaughter jury charge in a murder trial. Because the initial jury instructions on murder did not define the elements to require the State to prove beyond a reasonable doubt the absence of passion/provocation, the murder conviction must be reversed.
This appeal follows a retrial in which defendant was again convicted of purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3a(1), (Count One); and possession of a knife for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d, (Count Two). After merging the possession charge with the murder, defendant was sentenced to a custodial term of life with 30 years of parole ineligibility. Defendant was previously convicted of the same offenses in 1985 but in a decision reported at 225 N.J. Super. 596, 543 A.2d 105 (App.Div.1988), we vacated the conviction because the trial judge failed to instruct "the jury regarding the other possible verdicts of manslaughter for which there was proof." Id. at 605, 543 A.2d 105.
On this appeal, the brief filed by counsel on behalf of defendant raises the following points:
I THE TRIAL JUDGE ERRED BY REPEATEDLY INSTRUCTING THE JURY THAT THEY COULD ONLY CONSIDER A PASSION/PROVOCATION MANSLAUGHTER VERDICT IF THEY ACQUITTED DEFENDANT OF MURDER.
II THE TRIAL COURT ADMITTED THE OUT-OF-COURT AND INCOURT IDENTIFICATIONS OF THE DEFENDANT IN VIOLATION OF HIS RIGHT TO DUE PROCESS OF LAW SINCE THEY WERE THE PRODUCT OF SUGGESTIVE PROCEEDINGS AND WERE INHERENTLY UNRELIABLE (U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, § 1, PAR. 1).
III DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
In a pro se supplemental brief, defendant raises the following contentions:
I THE WRITTEN VERDICT SHEET HERE COUPLED WITH THE INSTRUCTIONS FOR ITS USE, PRECLUDED THE JURY FROM CONSIDERING DEFENDANT'S PASSION/PROVOCATION DEFENSE IN MITIGATION OF HIS GUILT FROM MURDER TO MANSLAUGHTER.
II DISQUALIFICATION OF JUDGE FOR PERSONAL REASONS OF BIAS AND PREJUDICIAL CONCERN FOR PARTY, AND PERSONAL KNOWLEDGE OF DISPUTED EVIDENTIARY FACTS CONCERNING THE PROCEEDING.
III PRETRIAL PUBLICITY OF THE TRIAL IN THE NEWS MEDIA, WHICH WAS PREJUDICIAL, SUBLIMINALLY SUGGESTED OF GUILT, PLUS A VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS.
IV THE DENIAL OF SEQUESTION OF JURY FOR THE COMPLETION OF TRIAL, AND ALLOWING JURY TO BE SEPARATED DURING THE MIDDLE OF DELIBERATION, AND JURY'S LACK OF MEMORY IN TESTIMONY.
V FALSE TESTIMONY OF EXPERT MEDICAL WITNESS, AND INCONSISTENT TESTIMONY OF AUTOPSY FINDINGS, NEWLY DISCOVERED EVIDENCE, IF AVAILABLE AT TRIAL PROBABLY WOULD HAVE CHANGED THE JURY'S VERDICT, WARRANTING AN ORDER FOR A NEW TRIAL.
VI INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN CONDUCTING PRETRIAL INVESTIGATION, AND PERFORMANCE DURING THE TRIAL PROCEDURES.
We have considered the contentions raised in light of the record. We conclude that all issues raised in both briefs are clearly without merit, except for ...