On certification to the Superior Court, Appellate Division.
Handler, Wilentz, Clifford, Pollock, O'Hern, Garibaldi, Stein
The opinion of the court was delivered by
In this case we must decide how a trial court should instruct a jury when the evidence would support a conviction on a lesser included offense to the offense charged but the statute of limitations has run on that lesser included offense.
Defendant John Short and his wife Candice Short resided together in an apartment in Belleville, New Jersey. Their marriage was not always smooth. In the fall of 1980, after about two years of marriage, the couple separated for about a week. For that week Candice stayed with her parents, Frederick and Helen Austin, who also resided in Belleville.
On June 22, 1981, Candice Short spent the afternoon with her sister, Jeanne Austin Suarez. Ms. Short mentioned to her sister that she had recently purchased a costume, including silver tights, for a June 26 dance recital. At approximately 4:30, Ms. Suarez dropped off Ms. Short at the Short's apartment. About two hours later, Ms. Short took her daughter to be babysat at the home of Betty Martin, her parents' neighbor. According to Martin, Ms. Short said that she was going to meet her husband, defendant, at the Willowbrook Mall.
Later that evening, at approximately 11:20, Mr. Short appeared at Betty Martin's home, inquiring about his wife and asking "Isn't she here yet?" He told Martin that he had not met his wife at the mall because he had gone to a business meeting instead. He then took his daughter to his in-laws' house where he again asked if anyone knew his wife's whereabouts. When his in-laws didn't know where she was, defendant said "She isn't home, something must have happened. She went to Willowbrook and she hasn't come home." At trial Ms. Short's father, Fred Austin, testified that defendant said he would look for his wife and that he asked Mr. Austin to accompany him.
Defendant and Mr. Austin went to the Willowbrook Mall where they discovered Candice Short's body lying in her parked car. Mr. Austin testified that, although the parking area was "pitch black," Short was able to spot his wife's car very quickly and was able to take them directly to it. When they found the body they summoned the police and an ambulance.
According to an officer who arrived at the scene, Candice Short was found lying in the car, her body badly bruised and her breasts exposed. A key ring with a white T-shirt fob was found in the car. The victim's handbag and wallet were on the front seat and appeared to have been "gone through."
An autopsy subsequently revealed that she had suffered an application of blunt force to the head and shoulders; a crushing of the neck; and a puncture wound that may have been caused by a screwdriver. The actual cause of death was determined to have been asphyxiation. There was no evidence of sexual assault.
On June 23, the day after the body was discovered, defendant was questioned by the Wayne police. Defendant consented to a search of the apartment, where the police found a silver leotard. This discovery was important because defendant had said that he thought his wife had gone shopping in order to buy a leotard.
A police investigation failed to corroborate defendant's alibi. Defendant told the police that at the time of the killing he had been driving around West Orange, lost, on his way to a meeting. That statement was contradicted with testimony of witnesses who stated that defendant worked in the area and knew it, and that the LaMaze classes that he and his wife had attended were located only a few doors away from the building where the meeting was to have been held. Police investigation also uncovered a paramour relationship that had developed prior to the killing between Short and a go-go dancer named Diane Lovejoy. According to Lovejoy, she had told defendant only days before the murder that she was a widow, and defendant had responded to her that he was a widower, his wife having been the victim of a violent mugging.
At trial, Barbara Capalbo, a prosecution witness, revealed that she had been shopping at the Willowbrook Mall on the evening of June 22, 1981. She stated that she saw a man and a woman arguing violently inside a car whose description roughly matched the car belonging to the victim. Capalbo said the man had been wearing a white T-shirt. At trial the prosecution established that Short regularly wore white T-shirts.
On February 3, 1988, more than six years after the killing, defendant was indicted for murder. No reason for the delay in prosecution has been given. A jury trial was held from January 23, 1989, through February 10, 1989.
After all of the evidence had been presented, the defense requested an instruction on lesser included offenses of manslaughter. After finding that a rational basis existed for such a charge, the trial court instructed the jury on passion-provocation manslaughter, aggravated manslaughter, reckless manslaughter, and murder. Over defense counsel's objection, the court further instructed the jury that if it found Short guilty of manslaughter he would be acquitted because the statute of limitations had run on that offense. The jury convicted defendant of murder. He was sentenced to thirty years in prison with a parole ineligibility period of fifteen years.
Defendant appealed, arguing that he was entitled to instructions on the lesser included offenses unaccompanied by warnings that he would go unpunished if convicted of one of them. He contended that by telling the jury that he would go free if convicted of manslaughter, the trial court all but guaranteed that the jury would not convict him of that offense, and thereby nullified any advantage he might have received from the requested instructions. The Appellate Division affirmed defendant's conviction. According to the Appellate Division, "Since Short did not waive or offer to waive the statute of limitations, he was not entitled to the benefit of the manslaughter charge." Characterizing defendant's position as the assertion of a right "to have a Judge deceive a jury," the Appellate Division determined that "the trial court's instruction to the jury respecting the impact of the statute of limitations constituted harmless error, if error at all."
We granted defendant's petition for certification. 127 ...