July 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JONATHAN K. NORMAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-04-0452.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 12, 2008
Before Judges Cuff and Simonelli.
Defendant Jonathan K. Norman appeals from his conviction, following a jury trial, for first degree murder, contrary to N.J.S.A. 2C:11-3a(1) (count one); second degree unlawful possession of firearm, contrary to N.J.S.A. 2C:39-4a (count two); and fourth degree aggravated assault with a firearm, contrary to N.J.S.A. 2C:12-1b(4) (count three). Defendant is serving a thirty-year term of imprisonment with a thirty-year period of parole ineligibility.
On appeal, defendant raises the following arguments:
POINT I THE COURT ERRED IN REFUSING TO CHARGE AGGRAVATED MANSLAUGHTER AS A LESSER INCLUDED OFFENSE.
POINT II THE VERDICT OF MURDER WAS AGAINST THE WEIGHT OF THE EVIDENCE, WHICH SUPPORTED ONLY PASSION/PROVOCATION MANSLAUGHTER.
We reject these arguments and affirm.
Defendant and his girlfriend, Taneka Milbourne (Milbourne), were corrections officers at Southwest State Prison. The couple had a child, Jayda, born in 2002. They lived together with Milbourne's two children from a prior relationship. The parties' relationship was volatile, and they eventually separated in October 2002.
After the couple separated, defendant was arrested several times for motor vehicle violations, which he claimed were orchestrated by Milbourne and her cousin, Kevin Milbourne (Kevin), a New Jersey State Trooper. On August 1, 2003, defendant was suspended from work for five days without pay as a result of disciplinary charges brought against him for a second infraction of driving with a suspended license. That evening, defendant called Milbourne to request visitation with Jayda the following day. One of Milbourne's older children called defendant shortly after 5:00 a.m. on August 2, 2003, and informed him that Milbourne would drop Jayda off at defendant's residence on her way to work. Defendant lived with his mother, but she was not present when Milbourne arrived.
According to defendant, Milbourne arrived at approximately 5:50 a.m. and brought Jayda into his apartment. Defendant placed Jayda in a high chair in the kitchen and noticed bruises on her face, "a big red mark on the [left] side of her face[,]" and "scratches on her eye." When he questioned Milbourne about the bruises, she laughed and replied "Fuck you. Don't worry about it[,]" and "it was a cold world, it's going to get colder." After more arguing, Milbourne "smacked [defendant] in the face" with an open hand, and defendant hit her in the mouth. Milbourne then came at defendant "wild[ly], . . . swinging and stuff[,]" and defendant pushed her to the floor, where she hit her head. Milbourne screamed that defendant would lose his job and never see Jayda again. As defendant stood over Milbourne, the pair continued screaming and hitting each other. Defendant admitted that at that point he:
[K]inda got frustrated and pretty much blacked out. And I  ran in the living room to  get the weapon from  under the couch where I kept it. It  was already loaded. And I went into the kitchen and she was still on the floor. And I got over top of her  she grabbed at me and  asked me [to] let her up. But I didn't  and she rolled over and that's when I shot her in the back of the head.*fn1
I went back in to the kitchen. Like I said  she was trying to get up  and I shoved her back down. And she just kept, you know, trying to grab me  grab my hand and stuff and she rolled over.
[I] guess she  figured she couldn't grab my  hold my hand so she  rolled over, you know, she rolled and tried to push herself up.
Defendant also admitted that the gun was in his right hand when he shot Milbourne, that he used his left hand to hold down Milbourne's left hand when she was face down, that the gun was a few inches from Milbourne's head when he fired it, and that the bullet went directly into her head.
After the shooting, defendant went to Jayda, apologized, and said that no one would hurt her anymore. He prepared a baby bottle and placed some snacks on a tray, and unsuccessfully attempted to call his cousin, brother, and a female friend. He also wrote a two-page note, explaining the reasons for his actions. It started with, "What I did I felt had to be done[,]" and ended with, "My baby, her kids, and the rest of the world is better off without her. (She must die)." Defendant placed the note on Milbourne's body. He also placed his bank card on his mother's bed, wrapped in a napkin on which he wrote the card's access code and the phrase "Take care of Jayda." He then went to the basement to commit suicide.
After two unsuccessful suicide attempts,*fn2 defendant placed the gun back under the sofa cushion and moved Milbourne's car into his garage. When defendant's mother returned, he refused to let her into the house. He drove with Jayda and his mother to Philadelphia to find his brother, but was unsuccessful.*fn3
During the ride, defendant told his mother what had happened. Based in part on her suggestion, defendant drove to the State Police barracks in Woodstown, went inside, and stated to a State trooper that, "I shot my daughter's mother, Taneka Milbourne, in the head. Her body is at my house. . . ."
Defendant was handcuffed to a bench, and read his Miranda*fn4 rights, which he waived. He gave a video-taped statement admitting the shooting.*fn5 The troopers who interviewed defendant did not observe any injuries or wounds on him, but observed bruises on the left side of Jayda's face, her forearm and wrist.
Pursuant to a search warrant for defendant's home, troopers found Milbourne's body, the note, and a spent shell casing on the floor next to her head.*fn6 Investigators also found the murder weapon under the sofa cushion, with two live rounds of ammunition, and a magazine with five live rounds. A DNA swab was taken from an area of discoloration on the back of defendant's hand, which tested presumptively positive for blood.
An autopsy of Milbourne's body revealed bruising on her left cheek, an abrasion and laceration on her forehead, a bruise on her inside upper lip, bruising to the left side of her neck, bruises and hemorrhages on both hands, an abrasion and reticular hemorrhages on the right side of her face, a contact bullet entry wound on the back of her head, and an exit wound through her left eye. The doctor performing the autopsy concluded that the cause of death was a contact gunshot wound to the head.
At trial, defendant conceded he shot Milbourne; however, he claimed he did so in the heat of passion and in response to reasonable provocation. Defense counsel requested a jury instruction on the lesser-included offenses of aggravated manslaughter and passion/provocation manslaughter. The trial judge instructed the jury on knowing or purposeful murder and passion-provocation manslaughter, but not aggravated manslaughter.
Defendant first contends the trial judge erred in denying his request to charge the jury on aggravated manslaughter. The judge reasoned that defendant was not merely careless by firing a handgun, and there was no evidence in the record indicating that Milbourne's death "was a mistake that was brought about by . . . cowboyish activity" as opposed to how defendant actually acted, which was either purposefully or knowingly.
"The trial judge has a mandatory duty to charge the jury on the fundamental principles of law which control the case[.]" State v. Holmes, 208 N.J. Super. 480, 490 (App. Div. 1986) (citing State v. Butler, 27 N.J. 560, 594-95 (1958)). Upon request from a party, "[t]he 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; State v. Harris, 357 N.J. Super. 532, 539 (App. Div. 2003). A "rational basis" is not sheer speculation, but rather exists when "[t]he evidence . . . present[s] adequate reason[s] for the jury to acquit the defendant on the greater charge and to convict on the lesser." State v. Brent, 137 N.J. 107, 118-19 (1994). A jury charge on such a lesser-included offense must be provided even if it is inconsistent with defendant's defense theory. Id. at 118 (citing State v. Powell, 84 N.J. 305, 317 (1980)). Failure to so instruct the jury, when the defendant requests that a lesser-included offense be charged, for which a rational basis exists in the record, "warrants reversal of the defendant's conviction." Ibid. (citing State v. Crisantos, 102 N.J. 265, 273 (1986)).
An offense is an included offense when:
(1) It is established by proof of the same or less than all of the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission. [N.J.S.A. 2C:1-8d.]
Murder occurs "when '[t]he actor purposely causes death or serious bodily injury resulting in death,' or when '[t]he actor knowingly causes death or serious bodily injury resulting in death." State v. Tucker, 265 N.J. Super. 296, 328 (App. Div. 1993) (quoting N.J.S.A. 2C:11-3a(1) and (2)), aff'd, 137 N.J. 259 (1994), cert. denied, 513 U.S. 1090, 115 S.Ct. 751, 130 L.Ed. 2d 651 (1995). "[T]he crime of murder is established where it was the actor's 'conscious object' to cause death or serious bodily injury resulting in death or where he was aware that his conduct would cause death or serious bodily injury resulting in death, or where it was 'practically certain' death or serious bodily injury resulting in death would occur." Ibid. (quoting N.J.S.A. 2C:2-2b(1) and (2)).
Aggravated manslaughter is a lesser-included offense of murder, and is defined as a homicide which occurs when "[t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life[.]" N.J.S.A. 2C:11-4a(1). "Recklessness under circumstances 'manifesting extreme indifference to the value of human life . . . is significantly more serious than ordinary reckless conduct.'" State v. Pearson, 318 N.J. Super. 123, 135 (App. Div. 1999) (quoting State v. Farrell, 250 N.J. Super. 386, 390 (App. Div. 1991)). "The higher degree of recklessness involves not just a possibility that death will occur, but a probability of its occurrence." Id. at 136 (quoting State v. Curtis, 195 N.J. Super. 354, 364-65 (App. Div.), certif. denied, 99 N.J. 212 (1984)). Thus, "[a]ggravated manslaughter requires proof that the defendant caused death and 'was aware of and consciously disregarded a substantial risk of death, i.e., a probability that death would result, and . . . manifested extreme indifference to human life.'" State v. Gaines, 377 N.J. Super. 612, 621 (App. Div.) (quoting State v. Cruz, 163 N.J. 403, 417 (2000), subsequent appeal at, motion denied by, 171 N.J. 419 (2002)), certif. denied, 185 N.J. 264 (2005); N.J.S.A. 2C:2-2b(3); see also State v. Jenkins, 178 N.J. 347, 363 (2004). In making such determination, "'[t]here are no legal rules as to what inferences may be drawn. The question is one of logic and common sense.'" State v. Hammond, 338 N.J. Super. 330, 337 (App. Div.) (quoting State v. Powell, 84 N.J. 305, 314 (1980), certif. denied, 87 N.J. 332 (1981)), certif. denied, 169 N.J. 609 (2001).
Here, defendant was a corrections officer who was familiar with, and trained in, firearm use. As such, he would be hard-pressed to contend that he did not know that shooting Milbourne in the head at point blank range would cause her death. Also, shoving Milbourne back down to the floor when she attempted to get up, and holding her hand when she was face down before shooting her suggests something much more than a reckless act. Also, defendant's suicide note also clearly indicates his intention to kill Milbourne. Based upon our careful review of the record, we are satisfied there was no rational basis to charge aggravated manslaughter.
Defendant next contends the trial judge should have granted his motion for a new trial because the murder verdict was against the weight of the evidence. He argues that no rational jury could have convicted him of anything other than passion/provocation manslaughter, based on evidence that Milbourne mistreated him over a long period of time. We disagree.
Upon counsel's motion, a judge may grant a new trial, as being "against the weight of the evidence" if, "in the interest of justice[,]" "it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1; State v. Perez, 177 N.J. 540, 555 (2003) (quoting R. 2:10-1). "On a motion for a new trial, the objective is not to second-guess the jury but to correct the injustice that would result from an obvious jury error." State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.) (citing State v. Balles, 47 N.J. 331, 337 (1966), appeal dismissed and cert. denied, 388 U.S. 461, 87 S.Ct. 2120, 18 L.Ed. 2d 1321 (1967)), certif. denied, 151 N.J. 470 (1997). Applying these standards, our examination of the record discloses no miscarriage of justice occurred.
Passion/provocation manslaughter involves the following 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 (1990) (citing 2 W. LaFave & A. Scott, Substantive Criminal Law § 7.10 at 256 (1986)). "If a slaying does not include all of those elements, the offense of passion/provocation manslaughter cannot be demonstrated." Ibid. The first two elements are objective, and the last two subjective. Id. at 412. "Adequate provocation" is "provocation [that] must be 'sufficient to arouse the passions of an ordinary [person] beyond the power of his [or her] control.'" Ibid. (quoting State v. King, 37 N.J. 285, 301-02 (1962)). It is a question of "whether loss of self control is a reasonable reaction." Ibid.
Here, there was substantial credible evidence upon which the jury could have found defendant guilty of murder and not passion/provocation manslaughter. Three witnesses testified about Milbourne's reputation for peacefulness, which if the jury believed, would rebut defendant's claim she subjected him to a continuing course of ill treatment amounting to adequate provocation.
Also, "ordinarily, words alone, no matter how offensive or insulting, do not constitute adequate provocation to reduce murder to manslaughter." State v. Viera, 346 N.J. Super. 198, 215 (App. Div. 2001) (citing Crisantos, supra, 102 N.J. at 274), certif. denied, 174 N.J. 38 (2002). However, "[a] continuing course of ill treatment, which the accused reasonably believes is likely to continue, may constitute adequate provocation." Id. at 216 (citing State v. Erazo, 126 N.J. 112, 124-25 (1991)).
The "continuing course of ill treatment" alleged by defendant here consists of Milbourne's threats to cause him to lose his job and not see his daughter. This is a far cry from that when a husband killed his wife after a tumultuous marriage "fraught with violence" and culminating in a night of various disputes when the parties were highly intoxicated, Erazo, supra, 126 N.J. at 124-25, or when the defendant was threatened numerous times with baseball bats and pipes by the victim and others, to the point where he had to live in another apartment to hide as well as purchase a firearm for protection. Viera, supra, 346 N.J. Super. at 208-09, 216; see also State v. Taylor, 350 N.J. Super. 20, 40-41 (App. Div.) ("a jury could rationally conclude that a reasonable person might, under the circumstances, have reasonably been provoked to the point of loss of control" because "by the time the altercation had become physical, defendant was not the only one armed"), certif. denied, 174 N.J. 190 (2002). Because these cases involve circumstances markedly more severe than those here, we are convinced that the jury properly rejected defendant's passion/provocation defense and properly returned the correct verdict.