December 16, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TROY L. JACKSON DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. L-04-06-0502.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 22, 2008
Before Judges A. A. Rodríguez, Lyons and Kestin.
A Gloucester County grand jury returned Indictment No. 04-06-0502, charging defendant, Troy L. Jackson, with first-degree attempted murder, contrary to N.J.S.A. 2C:5-1 (count one); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1d(1) (count two); second-degree possession of a firearm for unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count three); and third-degree possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5(d)(4) (count four). Subsequently, on August 24, 2005, defendant was also indicted by a Gloucester County grand jury and charged with one count of second-degree possession of a weapon by a convicted person, contrary to N.J.S.A. 2C:39-7. Defendant was tried on the charges set forth above between October 17 and October 27, 2005. The trial court first tried defendant on the charges set forth in Indictment No. 04-06-502. A jury found defendant guilty of all the charges contained in that indictment. Immediately following that trial, defendant was tried on the August 24, 2005, one-count indictment charging second-degree possession of a weapon by a convicted felon and found guilty.
On the day set for sentencing, the trial court denied the State's motion for an extended term. Defendant was then sentenced to a term of imprisonment of twenty years on the first-degree attempted murder charge. The court found the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to be applicable and defendant was therefore found to be parole ineligible for eighty-five percent of the twenty-year term. Pursuant to the Graves Act, N.J.S.A. 2C:43-6c, defendant was found to be parole ineligible for fifty percent of the term imposed.
The trial court then merged the aggravated assault conviction (count two) into the first-degree attempted murder count. With respect to the second-degree possession of a firearm for an unlawful purpose conviction (count three), defendant was sentenced to a term of ten years concurrent to count one of the indictment, five years of which defendant is to be parole ineligible pursuant to the Graves Act. The court merged the third-degree possession of a handgun without a permit (count four) into count three of the indictment.*fn1
Defendant was sentenced on the second-degree possession of a weapon by a convicted person to a ten-year term to be served concurrently with the sentence set forth above. The appropriate fines and penalties were also assessed and defendant was ordered to pay $14,818 in restitution. This appeal ensued.
Defendant did not testify at trial, nor did he present any witnesses in his defense. The following facts are therefore based upon the State's proofs.
According to the testimony of Bill Carpenter, on the night of February 23, 2001, he went to John and Doug's Bar and Grill in Williamstown. He was accompanied by defendant, defendant's cousin Tyrese Jackson, and Rob Wilkins. Before they left for the bar, defendant asked Wilkins for a gun. Carpenter testified that he saw defendant with the gun before they went to the bar.
During the night, while at the bar, Tyrese and Labard Dumas got into an altercation regarding Melanie Chila. After some words were exchanged, Dumas punched Tyrese, "la[ying him] out on the ground," according to Chila.
Bill Carpenter described what happened, stating:
Tyrese Jackson was talking to a lady. I guess it was her boyfriend, said something to them, they got into an altercation. Then one--the guy hit Troy--knocked--I mean, Tyrese, knocked him out, and the next thing you know, I was about to hit the guy, and I looked over out of the corner of my eye, which was Troy sitting there with a gun, pulled it out and shot him right in the face.
In a statement dated February 19, 2004, by Kenneth Glover to the police, which was introduced into evidence but retracted by Glover while on the witness stand, he stated:
Glover: Came over there it was me, Rob Wilkins, Troy Jackson and Bill Carpenter. We see Tyrese Jackson lying there. We see the victim, going on about when he had the, about how he knock the guy out and this and that, this and that and as he [inaudible] Troy Jackson looked down on the ground at his [cousin] looked right at the guy, when the guy turned around he reached in [inaudible] pulled a semi-automatic out and shot him in the face with it.
Det. Smart: Troy Jackson pulled out a semi-automatic and shot the guy that hit Tyrese Jackson in the face area, is that what you[re] saying?
Det. Smart: How close were you to Troy Jackson at that time?
Glover: Within reaching distance.
According to the testimony of Dumas, the victim, he was standing over Tyrese after knocking him down, when he heard a gunshot. It hit Dumas in the mouth, and he just "sat there for a quick second." Dumas was struck in the right cheek, through the jaw. Dumas "got my tongue blown up, all my teeth blown out, and that's about it." Another person was on the ground screaming, and Dumas thought that that person had been shot, too. Dumas stepped over the other person and walked to the door. He drove himself to Sicklerville to the home of a friend, Kiniece Williams. From there, they drove to a hospital in Washington Township, where he was airlifted to Cooper Hospital.
When the police first came to investigate a reported gunshot, Officer David Crispin (by the time of trial, retired) testified he observed "a number of cars leaving the parking lot all at one time, going off in different directions...." The officer was told that there was a problem with "fireworks" and that the patrons were asked to leave by security. Crispin found no evidence of fireworks, but upon further investigation, he found a blood droplet. The bartender, when questioned, responded that a guy got hit in the face in a fight. At that time, no other evidence was found.
Crispin received a call from his dispatcher, who indicated that somebody had been shot in the face at John and Doug's Bar. The owners of the bar were called and the officers returned to the bar. According to Officer Francis James Kelley of the Gloucester County Prosecutor's Office, who was assigned to Crime Scene Investigation, the police obtained consent to search the bar from the owners. Kelley observed blood, a bullet hole, and a shell casing, as well as some other trash and debris. The bullet went through the wall and was recovered outside at the base of a nearby house. The casing was a 9mm Luger.
Meanwhile, according to Glover's statement, Carpenter arrived later that night with defendant at Lehigh Manor, in Sicklerville, where they lived. Defendant was carrying a bag with the blue jacket that he had been wearing. He made reference to disposing of the clothes. The next day, defendant spoke on the phone with Glover, "telling me that he had to go get the weapon that he used, the semi-automatic." Glover's statement relates how defendant, on the day following the shooting, recovered the weapon in a snow bank near the bar. Duane Carpenter, the twin brother of William, testified that on the day following the shooting, defendant read about the incident in the newspaper and joked about it, saying "That's how I do mine."
Tyrese Jackson testified that defendant was not with him at any time during that evening. Tyrese Jackson recalled drinking, dancing and eventually passing out. He denied he was knocked out by the victim or that he was involved in a fight inside the bar.
On this appeal, defendant raises the following arguments for our consideration:
POINT I: THE ABSENCE OF A JURY INSTRUCTION ON ATTEMPTED PASSION/PROVOCATION MANSLAUGHTER AS A LESSER INCLUDED OFFENSE OF ATTEMPTED MURDER DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV, N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
POINT II: THE TRIAL JUDGE'S REFUSAL TO PROVIDE A "FALSE IN ONE, FALSE IN ALL" JURY INSTRUCTION ON CREDIBILITY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS 1, 9, 10.
POINT III: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
POINT IV: THE CONVICTION FOR POSSESSION OF A FIREARM FOR AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED WITH THE CONVICTION FOR ATTEMPTED MURDER.
We first consider defendant's contention, raised for the first time on appeal, that the trial judge's charge to the jury was flawed in that it failed to include an instruction on attempted passion/provocation manslaughter as a lesser-included offense of the attempted murder charge. From our review of the record, it appears that neither defense counsel nor the prosecutor asked the trial judge to charge attempted passion/provocation manslaughter as a lesser-included offense of the attempted murder charge.
As we said in State v. Viera, 346 N.J. Super., 198, 210-11 (App. Div. 2001), certif. denied, 174 N.J. 38 (2002):
Because defendant failed to object to the charge, we must determine if the omission amounts to plain error that was "clearly capable of producing an unjust result." R. 2:10-2; State v. Cooper, 151 N.J. 326, 385 (1997), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145 L.Ed. 2d 681 (2000); State v. Macon, 57 N.J. 325, 337-38 (1971). In considering whether an error in the charge in a criminal case amounts to plain error, our Supreme Court has defined plain error as "legal impropriety in the charge, prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court [which convinces] the court that of itself[,] the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970). Clear and correct jury charges are essential to a fair trial, and the failure to provide them may constitute plain error. State v. Robinson, 165 N.J. 32, 40 (2000). Because "[a] charge is a road map to guide the jury and without an appropriate charge a jury can take a wrong turn in its deliberations,... the court must explain the controlling legal principles and the questions the jury is to decide." State v. Martin, 119 N.J. 2, 15 (1990). Finally, because appropriate and proper charges to the jury are essential to a fair trial, "[e]rroneous instructions are poor candidates for rehabilitation as harmless, and are ordinarily presumed to be reversible error." State v. Afanador, 151 N.J. 41, 54 (1997).
The trial judge may "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:1-8(e). Upon request, a defendant is entitled to a charge on a lesser-included offense if the evidence presents a rational basis on which the jury could acquit defendant of the greater charge and convict him of the lesser. State v. Brent, 137 N.J. 107, 116-17 (1994). On the other hand, when a defendant does not request the judge to charge a particular lesser-included offense, the judge need not sua sponte give that instruction unless the facts clearly indicate that the jury could find the defendant guilty of the lesser-included offense, rather than the charged offense.
State v. Choice, 98 N.J. 295, 299 (1985).
Thus, the trial court is not obliged to, on its own, meticulously sift through the entire record to see if some combination of facts and inferences might rationally sustain a charge on a lesser-included offense. Ibid.
In State v. Castagna, 376 N.J. Super. 323, 356 (App. Div. 2005), rev'd on other grounds, 187 N.J. 293 (2006), we elaborated on the rational basis test, stating:
[t]his "rational basis" test has been construed as a low threshold, especially for the passion/provocation manslaughter charge.
State v. Erazo, 126 N.J. 112, 123 (1991).
See State v. Copling, 326 N.J. Super. 417, 429 (App. Div. 1999) ("[t]he threshold for a jury instruction for passion-provocation manslaughter is relatively low"), certif. denied, 164 N.J. 189 (2000). Indeed, if the evidence in the record supports an instruction on passion/provocation manslaughter, the charge should be given whether or not it is consistent with the defense's theory. State v. Robinson, 84 N.J. 476, 490 (1994); State v. Powell, 84 N.J. 305, 317 (1980), certif. denied, 87 N.J. 332 (1981).
As the Supreme Court has noted in State v. Powell, supra, 84 N.J. at 314:
[i]n determining whether a manslaughter instruction should have been given, the issues involved are: first, the inferences that properly can be drawn from the proofs in the case, and second (very closely related to the first), the quantum, or weight, of evidence needed to justify such a charge. As for the first, there are no legal rules as to what inferences may be drawn. The question is one of logic and common sense.
In addressing the quantum of evidence issue, Powell stated "where the facts clearly indicate the possibility that the crime was manslaughter based upon either passion/provocation manslaughter or imperfect self-defense, we see no reason why the trial judge should not also be obliged, even without any request being made, so to charge." Id. at 318. Moreover, the trial judge, when deciding whether to instruct a jury on passion/provocation manslaughter, should view the situation in a light most favorable to defendant. State v. Mauricio, 117 N.J. 402, 412 (1990). Even where the evidence is susceptible to different interpretations, so long as it permits a jury to rationally conclude that a reasonable person might, under the circumstances, have reasonably been provoked to the point of loss of control, the charge should be given. Id. at 415.
Before evaluating the inferences that may be drawn from the proofs to determine whether there is a sufficient quantum of evidence to justify a passion/provocation charge, we first note that N.J.S.A. 2C:11-4b(2) provides that "criminal homicide constitutes manslaughter when:... (2) [a] homicide which would otherwise be murder under section 2C:11-3 is committed in the heat of passion resulting from a reasonable provocation."
In State v. Mauricio, the Court outlined the elements of this offense:
Passion/provocation manslaughter has four 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. The first two criteria are objective, the other two subjective. If a slaying does not include all of those elements, the offense of passion/provocation manslaughter cannot be demonstrated. [Supra, 117 N.J. at 411 (internal citations omitted).]
A trial court, in determining whether to charge sua sponte passion/provocation manslaughter, must therefore examine the record in a light most favorable to the defendant and determine whether there is a rational basis for a jury to conclude that the two objective criteria have been met. If so, the two remaining subjective criteria become questions that "should almost always be left to the jury." State v. Mauricio, supra, 117 N.J. at 413.
With respect to the first element, that is whether there was objectively reasonable and adequate provocation, it is clear that words alone, no matter how offensive or insulting, can never constitute sufficient provocation. State v. Cristanos, 102 N.J. 265, 274 (1986). Battery, though, except for a light blow, has traditionally been considered, almost as a matter of law, to be sufficiently provocative. State v. Mauricio, supra, 117 N.J. at 414. Also, injury to a relative has been found to be sufficient provocation. State v. Coyle, 119 N.J. 194, 225 (1990); State v. Bishop, 225 N.J. Super. 596, 605 (App. Div. 1988); State v. Copling, 326 N.J. Super. 417, 429 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000).
In examining the record in this case, we note at the outset Tyrese Jackson and defendant are cousins. Moreover, they lived together for a number of years. Some of the testimony indicates that they were often referred to as brothers.
The record clearly indicates that the victim struck Tyrese Jackson in the face with such force that he was knocked out and rendered unconscious on the dance floor. The testimony also indicated that this assault was right in front of defendant. Here the proofs support an argument defendant saw his cousin, with whom he had a close relationship, knocked unconscious with a blow to the face by a stranger. The question is not whether defendant, in response to his cousin's being rendered unconscious by the victim, objectively acted rationally in shooting the victim point-blank in the face. Rather, the issue is whether a trial court, after reviewing the evidence in a light most favorable to defendant, could find that the facts clearly indicate a reasonable person, in response to seeing his cousin knocked out cold by a punch to his face, would have been so provoked so as to lose self-control. Viewing all the facts in a light most favorable to defendant, a jury could rationally conclude that a reasonable person, upon observing his close relative being struck and rendered unconscious, would be reasonably provoked.
With respect to the second objective prong, whether defendant had time to cool off after the provocation and before his act, it is clear that defendant reacted almost immediately after his cousin struck the floor. Again, viewing the situation in a light most favorable to defendant, it would appear that defendant did not have time to cool off.
We conclude, therefore, that when one views the facts and the inferences that may be properly drawn from them, in a light most favorable to defendant, they clearly indicate the possibility that defendant's crime could be found to be attempted manslaughter as a result of passion/provocation. Hence, we hold in accordance with established case law that the trial court was obliged to give sua sponte the attempted passion/provocation manslaughter charge and we, therefore, reverse the conviction for attempted murder and remand for a new trial on that charge.
Defendant also claims that the trial judge's refusal to give the "false in one, false in all" jury instruction deprived defendant of the right to due process and a fair trial. Defendant sought this charge because a number of the witnesses who testified did not come forward at the time of the incident, but only after they were charged with other crimes themselves, and therefore their credibility was a crucial issue.
The charge sought reads:
If you believe that any witness or party willfully or knowingly testified falsely to any material facts in the case, with the intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it, or you may, in your discretion, disregard all of it.
In State v. Ernst, the Supreme Court stated:
But a trial judge in his discretion may give the [false in one, false in all] charge in any situation in which he reasonably believes a jury may find a basis for its application. Hargrave v. Stockloss, 127 N.J.L. 262, 266 (E. & A. 1941). Defendant does not say how he was prejudiced, and it is difficult to see how unfairness could result, for, as Wigmore points out (although in support of his conclusion that the charge should not be given at all), "it merely informs the jury of a truth of character which common experience has taught all of them long before they become jurymen." 3 Wigmore, Evidence (3d ed. 1940), § 1010.
[32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S.Ct. 464, 5 L.Ed. 2d 374 (1961) (emphasis added).]
Because the trial judge rejected the defense request, we must review the ruling to first determine if there was error and then, if so, whether it is harmless. State v. Macon, 57 N.J. 325, 328 (1971). The entire charge is reviewed in the context of the alleged error to make sure that the charge was not misleading or ambiguous. State v. Nelson, 173 N.J. 417, 447 (2002).
Consistent with Ernst, supra, the trial court exercised his discretion to refuse to give the instruction, which he thought might create confusion with the jury and had been adequately addressed in the charge as a whole. The judge gave many other instructions that, read in their entirety, give the same information as the "false in one" instructions. For example, the trial court gave charges that referred to witnesses who have previously been convicted of crimes, prior inconsistent statements, witness motives, inferences from other evidence, and finally admonished the jury to use common sense:
There's nothing different in the way a jury is to consider the proof in a criminal case from that in which all reasonable persons treat any questions, depending upon evidence presented to them. You are expected to use your good common sense, consider the evidence for only those purposes for which it has been admitted, and give it a reasonable and fair construction in light of your knowledge of how people behave. It is the quality of the evidence not simply the number of witnesses that control.
The trial court judge did not err by exercising his discretion to refuse to give the "false in one, false in all" jury instruction. He was given the discretion to include or omit the instruction by Ernst, supra, and chose not to give it based upon the totality of the charge. The other charges on witness credibility, read in their entirety, more than adequately covered the requested charge. Therefore, we do not find an abuse of discretion or error in not giving the requested charge.
In light of our holding with respect to the passion/provocation charge, we need not address defendant's argument regarding his sentence being manifestly excessive. In light of the possibility of a retrial and for the purposes of future guidance, we have nevertheless addressed defendant's last point that the conviction for possession of a firearm for an unlawful purpose should have been merged with the conviction for attempted murder.
In the majority of cases, the charge of possession of a firearm for an unlawful purpose "is coupled with a charge of an act accomplished with the gun--a robbery, an assault, a homicide--which the court tells the jury is unlawful." State v. Jenkins 234 N.J. Super. 311, 315 (App. Div. 1989). Under those circumstances, the use of the firearm to commit the substantive offense such as robbery, assault or homicide provides the factual underpinning for drawing an inference that the firearm was possessed for an unlawful purpose. State v. Daniels, 231 N.J. Super. 555, 559-60 (App. Div. 1989). When the only unlawful purpose in possessing the gun is to use it to commit the substantive offense, merger is required. [State v. Diaz, 144 N.J. 628, 636 (1996).]
In the absence of evidence that defendant possessed the weapon for different purposes, the possession of a firearm for an unlawful purpose conviction should have merged into the attempted murder conviction.
We, therefore, reverse and remand for a new trial on count one of Indictment No. 04-06-0502, the attempted murder charge.*fn2
We affirm defendant's other convictions.*fn3
Reversed in part, affirmed in part, and remanded.