On appeal from and on certification to the Superior Court, Appellate Division.
Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, and Garibaldi join in this opinion in its entirety. Justices Clifford and Stein have filed a separate opinion Dissenting in part.
A jury convicted defendant of knowing and purposeful murder, possession of a handgun without a permit, and possession of a weapon for an unlawful purpose. The court sentenced defendant as follows: on the murder count, to life imprisonment with a thirty-year period of parole ineligibility; on the possession-without-a-permit count, to a consecutive term of five years, two-and-one-half years without parole eligibility; and on the possession-for-an-unlawful-purpose conviction, to ten years, five years without parole eligibility, consecutive to the other sentences. In an unreported decision a divided panel of the Appellate Division affirmed. We reverse in part and affirm in part.
On September 24, 1987, defendant, Ronald Wilson, killed Gary Meredith by shooting him twice -- once in the head and once in the left flank. The evidence of the events that culminated in the homicide is in conflict.
The State's principal witness, Timothy Dyson, described those events as follows. On September 24, 1987, defendant told Dyson that he was "going to go over and shoot [the victim]." After some Discussion defendant, accompanied by Dyson, took a taxi to the victim's apartment, where the three men drank beer and listened to music until defendant and Meredith went into the bedroom. By the time Dyson joined the other two in the bedroom, Wilson had taken off his shirt and boots. When defendant left the room, the victim "grabbed [Dyson's] groin." After Wilson returned, he took out his pistol, ordered Meredith to lie on the bed with a pillow over his head, and threatened to shoot. The victim begged defendant not to shoot. Because he did not want to get involved, Dyson fled down a flight of stairs to the street, after which he heard "one shot and a lot of mumbling."
According to Wilson the events unfolded differently. On the night of the shooting he went to Meredith's apartment to retrieve a ring that he had left there. Because he had been raped during an earlier visit to the apartment, defendant armed himself with a gun and took Dyson along for protection. After drinking beer and listening to some music, defendant asked to use Meredith's bathroom. Instead of going to the bathroom, however, defendant went into the victim's bedroom to look for the ring. Meredith followed. While the victim and defendant were alone in the victim's bedroom, the victim grabbed Wilson by the neck and testicles, and wrestled him to the bed. Defendant then "grabbed the gun and just put it over and * * * shot him." Defendant got off of the bed as Dyson entered the room. Dyson then told Wilson that he was leaving. As Meredith lunged at defendant, defendant fired a second shot, again hitting the victim.
In addition to the foregoing the record contains evidence that within hours after killing Meredith, defendant pointed a gun at one Kevin Morye and threatened to shoot him in the head.
The Appellate Division's affirmance of the convictions produced a Dissent by Judge Brochin, who found reversible error in the trial court's jury charge on murder. In addition, the Dissenter below would have merged defendant's conviction for possession of a weapon for an unlawful purpose with his conviction for murder.
Defendant appealed to this Court as of right on the basis of the Dissent below, see Rule 2:2-1(a)(2), and petitioned for certification, which we granted, 126 N.J. 324 (1991), on the issue of the prosecutor's comments during summation.
Thus, three questions are before us: (1) whether the trial court's jury instructions concerning the law of murder were erroneous; (2) whether the prosecutor's statements during summation were improper; and (3) whether defendant's conviction for possession of a weapon with an unlawful purpose merges with his conviction for murder. Because we conclude that the jury instructions on murder were legally deficient, we reverse defendant's conviction for murder. Although some of the prosecutor's remarks were inappropriate, we find that they were not clearly capable of producing an unjust result. See R. 2:2-10. Thus we affirm defendant's remaining convictions. Because we reverse defendant's murder conviction, we need not reach the merger question.
We first consider defendant's contention that the jury instructions were flawed in that they failed adequately to communicate that the State has the burden of proving that the defendant did not act in the heat of passion.
An unjustified purposeful killing is either murder or passion/provocation manslaughter: a homicide that would otherwise be murder save for the fact that it was committed in the heat of passion resulting from reasonable provocation. State v. Coyle, 119 N.J. 194, 221 (1990). When the record contains evidence of passion/provocation, the jury can convict a defendant of murder only if the State proves beyond a reasonable doubt that the purposeful killing was not the product of passion/provocation. E.g., State v. Erazo, 126 N.J. 112, 121 (1991); State v. Coyle, supra, 119 N.J. at 221-22; State v. Grunow, 102 N.J. 133, 145 (1986); State v. Powell, 84 N.J. 305, 315 (1980). "A failure to charge accordingly violates defendant's Sixth and Fourteenth Amendment rights." Powell, supra, 84 N.J. at 315 n.10.
Here, although the trial court recognized that the record contained evidence of passion/provocation, its charge to the jury did not meet Powell's requirement of an instruction on the State's burden: to demonstrate that defendant had not acted in the heat of passion. The trial court charged as follows:
If you are satisfied beyond a reasonable doubt that the defendant purposely or knowingly caused the death of the victim without acting in the heat of passion * * * then you must return a verdict of guilty of murder * * * .
If you find beyond a reasonable doubt that the killing was done in the sudden state of rage or in the heat of anger and under circumstances furnishing legal provocation, then the crime ...