On appeal from Superior Court of New Jersey, Law Division, Essex County. Motion for reconsideration granted June 3, 1993 - Decided June 8, 1993. This Opinion Substituted by Court for Opinion of May 10, 1993.
Antell, Skillman and Villanueva. The opinion of the court was delivered by Villanueva, J.s.c. (temporarily assigned).
[266 NJSuper Page 272] Defendant appeals from his convictions of attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1; second degree aggravated assault, N.J.S.A. 2C:12-1b(1); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Defendant seeks to have this court articulate that there is a crime of attempted passion/provocation manslaughter as a lesser-included offense of attempted murder. We so hold, but nonetheless affirm
the conviction for attempted murder as well as the other convictions.
On May 11, 1988, William Robinson encountered his nephew, defendant Alphonso Robinson, who owed him a substantial sum of money. William testified that he told defendant, "that I wanted my money and if he don't give me my money then I'm going to hurt him." William confronted defendant again a short time later and repeated his demand to be paid. Defendant paid him back some of the money, but could not repay the entire amount, so William, a boxer, punched defendant once extremely hard "on the nose and bridge of the mouth." Defendant "buckled" and "staggered back," according to William, who was preparing to hit him again but did not because he decided that if he hit defendant again as hard as the first time, defendant would "drop [ ] to the concrete" and possibly die. William then told defendant that he had better be repaid soon or else he would have to "really" hurt defendant. William turned and walked away.
As William got only a few steps away from defendant, he heard a gunshot and felt a bullet graze his leg and go through one of his fingers. He began to run in a "zigzag" fashion, but was struck by three more bullets in the arm, hip, and back, causing life-threatening injuries. One bullet missed him.
Defendant was indicted for first degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); third degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b (count three); and second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count four). William testified before the grand jury.
A few months later, after William engaged in a conversation with his sister, he returned to the Essex County Prosecutor's Office "to tell them to drop [the] charges because of a mistake [he] made . . . ." William had to be subpoenaed in order to force him to appear as a witness for the State. At trial, William testified in contradiction to his prior statement and to his grand jury testimony.
William testified at trial that he had never seen the defendant shoot him. The jury convicted defendant of all the charges.
The Judge sentenced defendant to a term of fifteen years imprisonment on count one with a five-year parole disqualifier, and a concurrent term of seven years with a three-year parole disqualifier on count two. Counts three*fn1 and four were merged into counts one and two. The Judge also imposed aggregated VCCB penalties of sixty dollars.
Defendant makes the following arguments on appeal:
POINT I DEFENDANT WAS ENTITLED TO A JURY INSTRUCTION ON ATTEMPTED PASSION/PROVOCATION MANSLAUGHTER AS A LESSER-INCLUDED OFFENSE OF ATTEMPTED MURDER. (Not Raised Below).
POINT II THE STATE'S SUMMATION TO THE JURY DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL WHEN THE PROSECUTOR REPEATEDLY ARGUED WITH NO EVIDENTIARY BASIS THAT DEFENDANT'S FAMILY HAD PRESSURED THE VICTIM INTO CHANGING HIS STORY. (Not Raised Below).
POINT III DEFENDANT'S CONVICTION FOR AGGRAVATED ASSAULT MUST MERGE INTO HIS CONVICTION FOR ATTEMPTED MURDER. (Not Raised Below).
POINT IV THE SENTENCE ON COUNT ONE IS MANIFESTLY EXCESSIVE.
Defendant raises for the first time on appeal that he was entitled to a jury instruction on attempted passion/provocation manslaughter as a lesser-included offense of attempted murder.
The reason that the passion/provocation doctrine was limited to murder is historical. The doctrine was 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." ...