On certification to the Superior Court, Appellate Division.
Handler, Wilentz, O'Hern, Garibaldi, Stein, Clifford, Pollock
The opinion of the court was delivered by
The issue in this appeal is whether a jury instruction on passion/provocation manslaughter created sufficient prejudice to warrant the reversal of criminal convictions. The flaws in that instruction related to the sequence in which the court required the jury to consider the charged offenses and to the State's burden of proof with respect to passion/provocation as an element of the homicide. The jury acquitted defendant of felony murder and convicted him of murder, criminal trespass as a lesser-included offense of burglary, and two weapons-possession charges. In an unreported opinion, the Appellate Division affirmed the conviction for murder. We granted defendant's petition for certification, N.J. (1993), and now affirm.
The factual circumstances leading to the homicide are essentially uncontested. Defendant, a thirty-six-year-old Jamaican who emigrated to the United States in 1984, married the victim, Millicent Heslop, in Jamaica in 1987. Their union produced one child, who lives in Jamaica with his maternal grandparents. For the last two years of their marriage defendant and the victim had resided in Brooklyn, New York. Defendant was gainfully employed as a floor-sander and had no prior criminal record. In February 1991, the victim left defendant and began residing with her sister, Natalie Gordon, in Irvington, New Jersey. A brief reconciliation occurred in April 1991, and defendant lived with his wife and sister-in-law in the Irvington apartment for about one week. When "problems" between defendant and his wife resurfaced, defendant was told to leave the apartment.
On April 26, 1991, Kirby Clark, a co-employee of defendant, drove defendant to the Irvington apartment so defendant could retrieve his tools, woodworking equipment, and clothing. Defendant left Clark's van but returned a few minutes later to get a crowbar, informing Clark that the locks had been changed. Defendant then returned to the apartment. The primary evidence of the events that occurred inside the apartment consisted of defendant's signed statement, which the State offered in evidence in the course of its case.
According to defendant, when he got back to the apartment, he could see his wife through the door, and he told her to let him in so that he could get his clothes and tools. Defendant stated that "she opened the door and greeted me with a knife." Defendant pushed her inside the apartment and they both fell to the floor. As defendant picked up the knife, which was broken, his wife "grabbed another knife and started stabbing at me. I started blocking it."
According to defendant's statement, his wife "took the knife and started to run and scream outside. Then we started to wrestle outside of the house, she tried to stab me with the knife, and I hit her with the crowbar, then she started running away and she ran to the barber shop."
According to witnesses, defendant dropped the crowbar and pursued the victim. Millicent entered the barber shop holding the knife, and screamed for help. When defendant entered the shop, a struggle ensued, and the victim fell to the floor, the knife dropping from her hand. As defendant picked up the knife, patrons in the shop shouted "Don't do it." Defendant responded, "It's okay, she is my wife," and stabbed Millicent. He removed the knife and walked back to Clark's van, dropping the knife in some bushes. The police arrived soon after and apprehended defendant.
A search of Natalie Gordon's apartment revealed a broken knife in the kitchen and blood stains on the apartment door, the floor, and the bedroom wall. After his arrest, defendant received medical treatment for a cut on his finger that required four stitches.
A grand jury indicted defendant for murder, felony murder, second-degree burglary, unlawful possession of a knife, and possession of a knife for an unlawful purpose. Defendant neither testified at his trial nor offered any other evidence bearing on the events contained in his statement. The trial court charged the jury on murder and on the lesser-included offenses of aggravated manslaughter, reckless manslaughter, and passion/provocation manslaughter. The jury acquitted defendant of felony murder but convicted him of murder, criminal trespass as a lesser-included offense of burglary, and the possessory offenses. The court merged the weapons convictions into the murder conviction and sentenced defendant to thirty years imprisonment with thirty years of parole ineligibility for the murder conviction and a concurrent term of eighteen months for the criminal trespass.
The Appellate Division rejected defendant's contention that the trial court had failed to instruct the jury that the State had the burden of proving beyond a reasonable doubt that defendant had not committed the homicide in the heat of passion based on reasonable provocation. Further, the court below had "serious doubt as to whether the facts could, even reviewing them in the light most favorable to the defendant, support a jury finding that this killing was 'committed in the heat of passion resulting from a reasonable provocation. . . .'" (quoting N.J.S.A. 2C:11-4b(2)) (emphasis supplied).
Our cases hold that an instruction that gives the jury the impression that it need consider passion/provocation manslaughter only if it fails to find that purposeful and knowing murder occurred is defective. State v. Coyle, 119 N.J. 194, 574 A.2d 951 (1990). Furthermore, we have held that if a court fails to indicate clearly that the burden is on the State to prove beyond a reasonable doubt that a defendant did not act with passion or provocation, such a failure will constitute error. State v. Erazo, 126 N.J. 112 (1991). If those two errors occur in combination and are left unmitigated by curative instructions, then the Conclusion that the errors were seriously prejudicial is difficult to resist. That proposition is especially applicable when the record contains strong evidence of passion/provocation such that had a jury been able fully to understand the significance of that evidence in light of correct instructions, the evidence would likely have persuaded the jury.
We do not minimize the errors that occurred here. But the errors were greatly mitigated, if not totally repaired.
The challenged instruction initially contained the same "sequential" error that we found in Coyle. The trial court here instructed the jury on knowing and purposeful murder, and then, prior to charging the jury on the lesser-included offenses of murder, stated:
If you were to decide the defendant is guilty of a purposely knowing murder, then you don't have to consider the lesser included offenses.
However, defense counsel, prior to deliberations, requested that the court refine the instructions. Accordingly, the court gave the jury the following curative instruction:
The . . . point that counsel wants me to make clear to you is that when you consider the charge of purposeful or knowing murder that you have to in that context, of course, aside from considering the self-defense that's been interposed here as well, that you have to consider the heat of passion.
In other words, if you are not satisfied beyond a reasonable doubt that the defendant acted purposely or knowingly, then you would not find him guilty of a purposeful or knowing murder.
If you are satisfied beyond a reasonable doubt that the defendant knowingly caused the death or serious bodily injury resulting in death without acting in a heat of passion, then you should find him guilty of murder.
If you are satisfied beyond a reasonable doubt that the defendant knowingly or purposely caused the death of the victim but you have a reasonable doubt as to whether the defendant did so in the heat of passion upon a reasonable provocation, then you should find the defendant guilty of manslaughter.
In other words, that you should consider the heat of passion upon reasonable provocation in connection with the purposeful or knowing murder count. (Emphasis added)
Thus, in submitting the matter to the jury, the trial court did not instruct it to consider and to determine purposeful/knowing murder prior to and separately from its consideration of passion/provocation manslaughter. Rather, it instructed the jury that in its consideration of the nature of the homicide that had been committed, it should take into account the element of passion/provocation together with the element of purpose/knowledge. Taken alone, the earlier sequential charge could have improperly foreclosed the jury's consideration of passion/provocation manslaughter and would have violated the stricture of Coyle. The later instruction, however, undid much of the damage caused by the earlier charge. In sum, the trial court emphatically and clearly told the jury that in the context of considering the charge of purposeful or knowing murder, it must "consider the heat of passion." The court also instructed the jury that if it had "a reasonable doubt as to whether the defendant [had caused the death of the victim] in the heat of passion upon a reasonable provocation," it could not find defendant guilty of knowing and purposeful murder.
In Coyle the trial court failed to correct the flawed sequential charge. This Court in Coyle noted that "the failure to heed defendant's objection to the charge and to reinstruct the jury so greatly risked confusion as to amount to error." 114 N.J. at 224. In contrast, the trial court heeded defendant's objection at trial in the present case. Thus, unlike the situation in Coyle, the correction alleviated the risk of confusion and the instruction as a whole could not be understood to foreclose the jury's full and appropriate consideration of passion/provocation manslaughter.
We have often emphasized that instructions to a jury are to be examined as a whole. "Portions of a charge alleged to be erroneous cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422, 307 A.2d 608 (1973). A consideration of the entire jury instruction leads to the inevitable Conclusion that the sequential error was largely overcome by the subsequent instruction.
The trial court also did not explicitly charge the jury that the State bore the burden of proving beyond a reasonable doubt the absence of passion/provocation, as required by Erazo. The importance of that charge, and the vice that attends its omission, is that a jury might otherwise be led to believe that the defendant has the burden to prove the presence of passion/provocation. However, that possibility appears attenuated in this case.
The court did sufficiently inform the jury that it must find defendant guilty of nothing greater than manslaughter if it had a reasonable doubt concerning whether defendant had acted in the heat of passion:
If you are not satisfied beyond a reasonable doubt that the defendant, that the elements of this offense have been proved, or any one of them has failed to be proved, then you should find the defendant not guilty of this charge.
On the other hand, if you are satisfied beyond a reasonable doubt that the defendant knowingly or purposely caused death or serious bodily injury resulting in death, without -- I am sorry-- if you are satisfied beyond a reasonable doubt that defendant knowingly or purposely caused the victim's death, but you have a reasonable doubt as to whether defendant did so in the heat of passion upon a reasonable provocation, then you should find the defendant guilty of manslaughter.
That instruction does not totally rectify the trial court's failure to point out specifically that the State bears the burden of proof with respect to a specific aspect of an element of purposeful and knowing murder, namely, the absence of passion and provocation. Nevertheless, although the instruction did not explicitly state that the burden of proving the lack of passion/provocation rests with the State, nowhere did it suggest that the burden of proof on that issue belongs to the defendant.
The Dissent of Justice Stein focuses on the trial court's use of the words "did so" in a sentence of the instruction. Post at (slip op. at 8-12). That sentence conveyed this directive: that "a reasonable doubt as to whether the defendant did so [committed the homicide] in the heat of passion upon a reasonable provocation" should result in a finding that the defendant was guilty of nothing greater than manslaughter. A correct instruction, according to the Dissent, should have used the words "did not do so" [did not commit the homicide] rather than "did so," because the State must prove the absence of passion/provocation in connection with the killing.
The Dissent's analysis of the trial court's language does not credit the commonsense, ordinary understanding reasonably imparted by the instruction as given. The trial court's use of the term "whether" in conventional parlance is a short-hand expression for "whether or not." The Compact Edition of the Oxford English Dictionary 3755 (1971). In the context of the court's charge, the "or not" implicit in the use of "whether" conveys this meaning: "whether the defendant did so or whether the defendant did not do so." Hence, fairly understood, "whether" would encompass the statement that the Dissent would prefer. Moreover, contrary to the suggestion found in Justice Clifford's Dissent, post at (slip op. at 3), the alternative formulation implicit in the trial court's instruction goes far to eliminate the risk that the jury understood that any aspect of the burden of proof was on defendant.
Furthermore, when the trial court recharged the jury on passion/provocation and repeated the above-challenged language, it followed with this instruction:
If you are convinced beyond a reasonable doubt that the defendant knowingly or purposely caused death or serious bodily injury and death without acting in the heat of passion on reasonable provocation, then you must find the defendant guilty of murder. (Emphasis added)
That additional language makes clear that the absence of passion/provocation must be proven ...