On appeal from the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed-none. The opinion of the Court was delivered by Clifford, J.
In an unreported opinion, a divided panel of the Appellate Division entered a judgment of acquittal after reversing defendant's conviction for manslaughter under N.J.S.A. 2C:11-4b(2). That statute defines as a second-degree crime a homicide committed in the heat of passion resulting from reasonable provocation (hereinafter passion/provocation manslaughter). The Dissenter below would have affirmed the conviction. The State appeals as of right under Rule 2:2-1(a)(2). The sole question that divided the court below, and hence the only issue before us on this appeal, R. 2:2-1(a)(2), is whether defendant consented to having the jury consider an offense for which the grand jury had not indicted him. The State's brief argues that "[t]he trial court's instruction charging passion/provocation manslaughter as a lesser included offense of aggravated manslaughter was not reversible error because defendant consented to the charge below and was not prejudiced." We agree, and therefore reverse the Appellate Division and reinstate the conviction.
The events giving rise to the criminal charge against defendant, John Ciuffreda, originated in an argument that defendant and his friends had with the victim, Michael Mugan, at a tavern. The record reveals a minor scuffle, a period of relative peace after the scuffle had subsided, then some name-calling, with the victim finally threatening that he would wait outside so that he could "kick [Ciuffreda's] ass." Defendant waited for between twenty and thirty minutes before leaving the tavern with his wife. Because Mugan was standing next to Ciuffreda's motorcycle, Ciuffreda sent his wife back into the bar to call the
police, whereupon the victim approached and reached for or grabbed defendant. The Appellate Division summarized the events thereafter as follows:
Defendant struck his victim * * * in the head with a motorcycle helmet, once while they were standing confronting each other, a second time as Mugan was falling to the ground, and a third time while Mugan was on the ground on his hands and knees. While Mugan was on the ground, having trouble breathing, defendant, who was wearing boots, kicked him in the ribs and then in the eye. Police officers arrived at that point and intervened, but Mugan died as a result of his injuries. According to the testimony of the county medical examiner, his death was caused by severe brain contusions resulting from the blows to his head.
Defendant went to trial on a one-count indictment charging him with aggravated manslaughter contrary to N.J.S.A. 2C:11-4a, for having "recklessly cause[d] the death or serious bodily injury resulting in the death of Michael Mugan, under circumstances manifesting extreme indifference to the value of human life." Defendant claimed self-defense. The trial court instructed the jury not only on aggravated manslaughter, the first-degree offense for which defendant had been indicted, but also on reckless manslaughter (N.J.S.A. 2C:11-4b(1)) and passion/provocation manslaughter as lesser-included offenses of aggravated manslaughter. In submitting those latter charges to the jury the court relied on State v. Powell, 84 N.J. 305, 419 A.2d 406 (1980); State v. Choice, 98 N.J. 295, 486 A.2d 833 (1985); and State v. Grunow, 199 N.J. Super. 241, 488 A.2d 1098 (App.Div.1985). This Court's opinion in Grunow, reported at 102 N.J. 133, 506 A.2d 708 (1986), disagreeing with the Appellate Division's analysis of the case but nevertheless affirming that court's judgment, had not yet been handed down at the time Ciuffreda's case was tried -- a significant circumstance, as we shall demonstrate.
The jury acquitted defendant of both aggravated manslaughter and reckless manslaughter but convicted him of passion/provocation manslaughter. The trial court sentenced defendant to ten years in prison with four years of parole ineligibility, imposed a fine of $7,500, and required defendant to pay $10,000 to the Violent Crimes Compensation Board.
On appeal to the Appellate Division defendant claimed that "the State failed to disprove [his] affirmative claim of self-defense beyond a reasonable doubt," and that the "$7,500 fine and the $10,000 Violent Crimes Penalty imposed * * * were manifestly excessive and an abuse of discretion." Because our opinion in Grunow, supra, 102 N.J. 133, 506 A.2d 708, had been published by then, the Appellate Division ordered the parties to file supplemental briefs addressing the propriety of the jury charge on passion/provocation manslaughter in light of that case.
In Grunow we held that aggravated manslaughter is not reduced to manslaughter when committed in the heat of passion resulting from reasonable provocation. The State therefore, in its supplemental brief to the Appellate Division, conceded that submission to the jury of the passion/provocation charge in this case had been improper as conflicting with that principle of law; but it contended that the Appellate Division should sustain the jury verdict because the defendant had, through his counsel, orally consented to the charge. Alternatively, the State argued that the Appellate Division should mold the jury verdict to one that found defendant guilty of aggravated assault. The Appellate Division concluded that the defendant had not consented to the charge of passion/provocation manslaughter, and refused to mold the jury verdict. Judge Deighan Dissented on the "consent" issue.
Article I, paragraph 8, of the New Jersey Constitution provides, "No person shall be held to answer for a criminal offense unless on the presentment or indictment of a grand jury." A defendant, however, may waive that right and agree to proceed without indictment. R. 3:7-2. To determine whether the State's failure to indict Ciuffreda for passion/provocation manslaughter warrants a reversal of his conviction for that offense, we must consider whether defendant orally consented to the
unindicted charge of passion/provocation manslaughter, and, if so, what the legal effect of that consent was.
Because that portion of the transcript on which the State relies as demonstrating defendant's consent to the passion/provocation manslaughter charge is central to the resolution of this appeal, we quote at length the colloquy between the court and counsel:
THE COURT: Is there anything else that is necessary, in addition to the normal introductory charge?
[DEFENSE COUNSEL]: I was wondering if the Court would note my objection to the provocation charge. It's my specific request that it not be ...