On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Michels, Bilder and Wallace. The opinion of the court was delivered by Michels, P.J.A.D.
Tried to a jury, defendant Rupert Jumpp was convicted of (1) purposely and knowingly murdering Patricia Thomas in violation of N.J.S.A. 2C:11-3a(1) and (2) (First Count); (2) possession of a knife under circumstances not manifestly appropriate for such lawful uses as it may have in violation of N.J.S.A. 2C:39-5d (Second Count), and (3) possession of a knife with a purpose to use it unlawfully against the person of another in violation of N.J.S.A. 2C:39-4d (Third Count). The trial court merged defendant's convictions for unlawful possession of a knife under circumstances not manifestly appropriate for such lawful uses as it may have under the Second Count and unlawful possession of a knife with a purpose to use it unlawfully against the person of another under the Third Count into his conviction for murder under the First Count and committed defendant to the custody of the Commissioner of the Department of Corrections for life with a thirty year period of parole ineligibility and assessed a $30 Violent Crimes Compensation Board penalty. Defendant appeals.
Defendant seeks a reversal of his convictions and a new trial on the following grounds set forth in his brief:
I. THE TRIAL COURT'S REFUSAL TO CHARGE PASSION/PROVOCATION MANSLAUGHTER 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. 9, 10.
II. THE COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED JURORS TO TAKE NOTES AND QUESTION WITNESSES DURING THE COURSE OF THE TRIAL.
A. It Was Reversible Error To Allow The Jurors To Take Notes.
B. It Was Reversible Error For The Trial Court To Allow The Jurors To Question The Witnesses.
III. THE TRIAL COURT'S FACTUAL FINDINGS WERE ERRONEOUS. ALL OF DEFENDANT'S STATEMENTS WERE INVOLUNTARY AND THEIR ADMISSION INTO EVIDENCE VIOLATES DUE PROCESS OF LAW AND DEFENDANT'S PRIVILEGE AGAINST SELF-INCRIMINATION. U.S. CONST.AMENDS. V, XIV; N.J. CONST. (1947), ART. I, PAR. 1.
We have carefully considered these contentions and all of the arguments advanced by defendant in support of them and find that they are clearly without merit. R. 2:11-3(e)(2). However, further comment is appropriate with respect to some of the contentions.
Defendant first contends that the trial court's refusal to charge passion/provocation manslaughter denied him a fair trial and requires a reversal of his murder conviction. At the close of all the evidence, the trial court informed counsel that it would charge the jury as to murder, aggravated manslaughter and reckless manslaughter. Defendant requested that the trial court also charge as to passion/provocation manslaughter. The trial court denied the request because it was satisfied that there was no evidence to support such a charge. Defendant argues that there was sufficient evidence of provocation to warrant a passion/provocation manslaughter charge because two days before the stabbing, the victim was told by her sister that defendant had made sexual advances toward her and that he had argued with the victim about her calling his mother and telling her lies. According to defendant, this, coupled with his statement that the stabbing occurred during a "heated argument"
and "blew out of proportion," presented a rational basis on which to convict him of passion/provocation manslaughter. We disagree.
The applicable test for determining whether a jury should be charged with respect to an included offense is set forth in N.J.S.A. 2C:1-8e of the New Jersey Code of Criminal Justice (Code), which reads as follows:
The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense. [ N.J.S.A. 2C:1-8e].
Where there is a rational basis in the evidence to find defendant guilty of an included offense and not guilty of the encompassing offense, it is reversible error for the trial court to refuse, upon request, to charge as to the included offense. See State v. Crisantos, 102 N.J. 265, 278, 508 A.2d 167 (1986); State v. Choice, 98 N.J. 295, 298-99, 486 A.2d 833 (1985); State v. Powell, 84 N.J. 305, 316 n. 12, 419 A.2d 406 (1980); State v. Hollander, 201 N.J. Super. 453, 473-74, 493 A.2d 563 (App. Div.), certif. denied, 101 N.J. 335, 501 A.2d 983 (1985). Under the Code, however, the "scintilla of evidence" standard advocated in State v. Powell, supra, 84 N.J. at 316 n. 12, 419 A.2d 406, is no longer controlling. In State v. Crisantos, the Supreme Court emphasized that the Code formulation of the rational-basis test is somewhat more restrictive than the pre-Code guidelines in State v. Powell, pointing out that:
Under our Code it is improper for a trial court to charge manslaughter, even when requested by the defendant, if there is no evidence in the record to support a manslaughter conviction. Cf. State v. Powell, supra, 84 N.J. at 316 n. 12 [, 419 A.2d 406] (pre-Code). [ State v. Crisantos, supra, 102 N.J. at 276[, 508 A.2d 167__.
Applying these principles here, the trial court properly refused to instruct the jury with respect to passion/provocation manslaughter. The relevant portion of the Code, N.J.S.A. 2C:11-4, provides in pertinent part:
a. Criminal homicide constitutes aggravated manslaughter when the actor recklessly causes death under circumstances manifesting extreme indifference to human life.
b. Criminal homicide constitutes manslaughter when:
(1) It is committed recklessly;
(2) A homicide which would otherwise be murder under section 2C:11-3 is committed in the heat of passion resulting from a reasonable provocation. . . .
The offense of passion/provocation manslaughter referred to in N.J.S.A. 2C:11-4b(2) has four elements: "the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying." State v. Mauricio, 117 N.J. 402, 411, 568 A.2d 879 (1990) (citing 2 W. LaFave & A. Scott, Substantive Criminal Law § 7.10, at 255 (1986)); see State v. Darrian, 255 N.J. Super. 435, 447, 605 A.2d 716 (App.Div.), certif. denied, 130 N.J. 13, 611 A.2d 651 (1992). The first two of these elements are objective, the latter two are subjective. State v. Mauricio, supra, 117 N.J. at 411, 568 A.2d 879; State v. Darrian, supra, 255 N.J. Super. at 447, 605 A.2d 716. Unless all four elements are established, passion/provocation manslaughter cannot be demonstrated, and, therefore, cannot be charged to the jury.
Defendant cannot satisfy the first element of passion/provocation manslaughter -- adequate provocation. At common-law, the offense of passion/provocation manslaughter, a lesser-included offense to murder, developed as "a concession to the frailty of man, a recognition that the average person can understandably react violently to a sufficient wrong and hence some lesser punishment is appropriate." State v. Crisantos, supra, 102 N.J. at 274, 508 A.2d 167 (quoting State v. Guido, 40 N.J. 191, 209-210, 191 A.2d 45 (1963)). This concept recognizes that "a reasonable man who has thus lost control over himself would not kill, yet his homicidal reaction to the provocation is at least understandable." State v. Mauricio, supra, 117 N.J. at 410, 568 A.2d 879 (quoting 2 W. LaFave & A. Scott, Substantive Criminal Law § 7.10, at 256 (1986)). Our Supreme Court has discussed the objective evaluation of alleged provocation:
The first of the foregoing requirements is that the provocation be adequate. That test is purely objective, because the provocation must be "sufficient to arouse the passions of an ordinary [person] beyond the power of his [or her] control." State v. King, 37 N.J. 285, 301-02[, 181 A.2d 158] (1962) (quoting State v. Herrmann, 77 N.J.L. 534, 535[, 76 A. 1086] (E. & A.1909)). The provocation must be severe enough that the "intentional homicide may be as much attributable to the extraordinary nature of the situation as to the moral depravity of the actor." Model Penal Code § 210.3, comment. [ State v. Mauricio, supra, 117 N.J. at 412[, 568 A.2d 879].
Stated somewhat differently, "the question of whether provocation is adequate essentially amounts to whether loss of self-control is a reasonable reaction." Id.
Here, defendant's loss of self-control and his stabbing the victim, was not a reasonable reaction to adequate provocation. In his written statement, defendant explained why he stabbed the victim:
A. Me and her like, I'm saying. I have no reason. Me and ...