On certification to the Superior Court, Appellate Division, whose opinion is reported at 266 N.J. Super. 268 (1993).
Stein, Clifford, Handler, Pollock, O'Hern, Garibaldi
The opinion of the Court was delivered by
In this appeal we consider whether attempted passion/provocation manslaughter is a cognizable crime under the New Jersey Code of Criminal Justice (Code). Defendant, Alphonso Robinson, shot and injured his uncle William Robinson after William assaulted
him because defendant had failed to repay a debt. A jury convicted defendant of attempted murder, aggravated assault, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose. Defendant appealed his attempted-murder conviction, arguing that he was entitled to a jury instruction on attempted passion/provocation manslaughter as a lesser-included offense of attempted murder. The State argued that attempted passion/provocation manslaughter is not an offense recognized by the Code.
The Appellate Division held that attempted passion/provocation manslaughter is a crime contemplated by the provisions of the Code, but declined to reverse defendant's convictions because it found that a charge to the jury on passion/provocation manslaughter "was not clearly indicated by the evidence." 266 N.J. Super. 268, 281 (1993). Defendant petitioned for certification and the State cross-petitioned, seeking review of the Appellate Division's determination that attempted passion/provocation manslaughter is a crime cognizable under the Code. We granted both petitions, 134 N.J. 486 (1993).
On May 11, 1988, at about 11:45 p.m., William Robinson encountered defendant on the street. William believed that defendant owed him money for ruining a pair of his pants and for breaking his radio. William testified that he told defendant "that I wanted my money and if he [didn't] give me my money then I [was] going to hurt him." William left to get something to eat, but met defendant again a short time later and repeated his demand to be paid. Defendant paid him $120 and promised to pay the rest the following day. William responded that he wanted full payment immediately, whereupon the two began to argue. William, a boxer, punched defendant once extremely hard on the nose and mouth, and defendant "buckled" and "staggered back." William prepared to hit defendant again but decided not to do so because he feared defendant would "drop to the concrete" and sustain
severe injury. Instead, William told defendant to repay the debt soon or William would have to "really" hurt him. William then turned and walked away.
At a distance of only two or three feet from where he left defendant, William heard a gunshot and felt a bullet graze his leg and go through one of his fingers. William then began to run in a "zig-zag" manner. He heard four more shots, three of which hit him in the buttocks, arm, and back, narrowly missing his spinal cord. William ran home and was taken to the hospital, where he was treated for serious injuries, including partial loss of movement in one finger.
While in the hospital, William told a police officer that he had seen defendant shoot him. William also testified before the grand jury that defendant had been his assailant. At the trial, however, William testified that he had never actually seen his assailant, and that the shooter could have been either defendant or "Red," an acquaintance of defendant who was present at the scene.
At trial, defendant relied on a mistaken-identity defense. The jury, however, convicted defendant of attempted murder, second-degree aggravated assault, and two weapons-possession charges. The court merged the weapons offenses with the attempted-murder conviction, for which defendant was sentenced to fifteen years with a five-year parole-ineligibility period. Defendant also received a concurrent seven-year sentence for the assault, with three years of parole ineligibility.
On appeal, defendant argued that the court on its own initiative should have instructed the jury on attempted passion/provocation manslaughter, although no such charge had been requested. Defendant argued that had he actually killed his uncle, he would have been entitled to a jury instruction on passion/provocation manslaughter as a lesser-included offense of murder. Similarly, defendant reasoned, the jury should have received an instruction on attempted passion/provocation manslaughter as a lesser-included offense of attempted murder.
The State argued that an analysis of the Code shows that the Legislature did not intend to apply the criminal "attempt" statute, N.J.S.A. 2C:5-1, to passion/provocation manslaughter. The State claimed that passion/provocation manslaughter is not an independent offense but rather is a category of homicide committed under circumstances that mitigate the crime of murder. Thus, the State asserted, passion/provocation manslaughter is relevant only in the context of a homicide that would otherwise be murder, and is not relevant to attempted murder. The State contended that even if such a crime were recognized, the court would not have been required to charge the jury sua sponte on attempted passion/provocation manslaughter.
The Appellate Division held that attempted passion/provocation manslaughter is a crime. 266 N.J. Super. at 278. The court observed that if attempted passion/provocation manslaughter were not recognized as a crime under the Code, a defendant attempting a homicide under circumstances entitling him to a charge of passion/provocation manslaughter could benefit if his victim died, because passion/provocation manslaughter, a second-degree crime, carries a lesser penalty than attempted murder, a first-degree crime. Id. at 277. Nevertheless, the Appellate Division affirmed defendant's convictions. Relying on State v. Mauricio, 117 N.J. 402, 568 A.2d 879 (1990), the court found that the evidence was insufficient to require the trial court to charge sua sponte attempted passion/provocation manslaughter as a lesser-included offense of attempted murder. 266 N.J. Super. at 279-81.
Passion/provocation manslaughter is an intentional homicide committed under extenuating circumstances that mitigate the murder. 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 7.10, at 252 (1986). The common law of passion/provocation
manslaughter originated in England, where the impassioned killer was treated more leniently than the calm killer because of the harshness of the then-mandatory death penalty for all cases of homicide. Joshua Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J. Crim. L. & Criminology 421, 422-23 (1982). Although murder no longer carries a mandatory death penalty, passion/provocation manslaughter has remained a part of our criminal law 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."'" Mauricio, supra, 117 N.J. at 410 (quoting State v. Crisantos, 102 N.J. 265, 274, 508 A.2d 167 (1986) (quoting State v. Guido, 40 N.J. 191, 209-10, 191 A.2d 45 (1963))).
N.J.S.A. 2C:11-4b(2) codified the common-law definition of passion/provocation manslaughter. Crisantos, supra, 102 N.J. at 271 n.7. That statute defines passion/provocation manslaughter as "[a] homicide that would otherwise be murder under section 2C:11-3 [except that it] is committed in the heat of passion resulting from a reasonable provocation." Thus, passion/provocation manslaughter is considered a lesser-included offense of murder: the offense contains all the elements of murder except that the presence of reasonable provocation, coupled with defendant's impassioned actions, establish a lesser culpability. See N.J.S.A. 2C:1-8d(3).
The grading of passion/provocation manslaughter reflects a general understanding that one who kills "in the heat of passion resulting from a reasonable provocation" is less culpable than one who is not so affected. ...