On certification to the Superior Court, Appellate Division.
SYLLABUS (This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized.)
The opinion of the court was delivered by: Justice Patterson
State v. Reynaldo Galicia
Argued November 30, 2011 -- Decided June 19, 2012
PATTERSON, J., writing for a majority of the Court.
This appeal requires the Court to consider the "passion/provocation" statute, N.J.S.A. 2C:11-4(b)(2), which reduces what would otherwise be murder to voluntary manslaughter when the homicide "is committed in the heat of passion resulting from a reasonable provocation."
On May 2, 2004, an argument on a Newark street escalated into an altercation that caused the death of a young man. Julio Colon, a Vineland resident who had recently moved to Newark, was approached by two men with whom he had previously been romantically involved, Hector Cordero and defendant Reynaldo Galicia. Cordero and defendant had traveled from Vineland to Newark to confront Colon about a sport utility vehicle (SUV) that he had borrowed but failed to return. Cordero implored Colon to renew their relationship, and Cordero and defendant both begged Colon to return to Vineland with them. Their quarrel swiftly turned violent. The three men battled over the keys to the SUV, and Colon exchanged punches and kicks with Cordero and defendant. With Cordero in the passenger seat, defendant twice drove his car toward Colon, prompting Colon to climb on the hood of the car and bang his fists on the window. As Colon clung to the car, defendant accelerated and drove several blocks, running a stop sign. Defendant abruptly stopped the car, and Colon fell from the hood to the pavement. Defendant and Cordero immediately took Colon to a hospital, where he was admitted in critical condition in a coma. After a week on life support, Colon died.
Defendant and Cordero were arrested. Defendant was indicted for purposeful or knowing murder, felony murder, first-degree robbery, second-degree aggravated assault, second-degree conspiracy to commit robbery, and two charges arising from his alleged use of his vehicle as a weapon. The trial court severed the charges against defendant from the charges against Cordero. Defendant's trial barely touched upon the two issues at the center of this case, passion/provocation and self-defense. The State requested a charge on passion/provocation, notwithstanding its view that there was an insufficient basis in the record to establish its applicability. The defendant opposed a jury charge on passion/provocation because, he argued, it would confuse the jury. The trial court charged the jury with respect to the passion/provocation statute. Neither the prosecution nor the defense requested a charge regarding self-defense. In summation, defense counsel argued that the passion/provocation issue was "not in the case" and the prosecutor contended that the incident had not occurred suddenly, and that nothing transpired on the day of Colon's death "that would result in [defendant] actually being impassioned at this point." Justification by self-defense was not addressed in the defense summation, but was raised and refuted briefly in the summation of the prosecution.
The trial court correctly addressed passion/provocation in its instructions to the jury on the murder charge. However, the verdict sheet suggested that the jury would only reach the issue of passion/provocation if it found the defendant guilty of murder. Before the jury deliberated, the prosecutor objected to this portion of the verdict form. Defense counsel agreed, but the trial court did not rule on that objection or correct the verdict sheet.
Defendant was convicted of aggravated manslaughter, second-degree aggravated assault, disorderly persons theft by unlawful taking, and two weapons charges. Defendant appealed and an Appellate Division panel affirmed.
The Appellate Division rejected defendant's challenge to State v. Grunow, 102 N.J. 133 (1986), confirming the Legislature's determination that passion/provocation can mitigate murder, not aggravated manslaughter. The appellate panel further concluded that the trial court's correct instruction to the jury neutralized the mistake on the verdict sheet regarding passion/provocation, and that any error in the verdict sheet could therefore be regarded as harmless. The Appellate Division also rejected defendant's claim that the trial court should have sua sponte charged the jury on self-defense.
The Supreme Court granted defendant's petition for certification. State v. Galicia, 205 N.J. 101 (2011).
HELD: The facts of this case, as developed in the trial record, do not support a passion/provocation finding under N.J.S.A. 2C:11-4(b)(2).
1. The New Jersey Criminal Code recognizes three forms of criminal homicide: murder, manslaughter and death by auto. N.J.S.A. 2C:11-2(b). The Code recognizes voluntary and involuntary manslaughter; within involuntary manslaughter, the Code separately addresses aggravated and reckless manslaughter. N.J.S.A. 2C:11-4. Reckless manslaughter requires only "reckless" conduct causing the victim's death, imposing a lesser burden on the State than murder, which includes among its elements a "purposely or knowingly" mens rea. Involuntary manslaughter can constitute aggravated manslaughter, found when the actor "recklessly causes death under circumstances manifesting extreme indifference to human life," N.J.S.A. 2C:11-4(a)(1). Voluntary manslaughter, also known as "passion/ provocation manslaughter," occurs when a homicide which would otherwise be murder under section 2C:11-3, other than felony murder, is "committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2). The Legislature has limited passion/provocation to crimes that would otherwise constitute murder, as opposed to manslaughter. N.J.S.A. 2C:11-4(b)(2). (pp. 16-21)
2. The Court declines to reconsider the holding in Grunow, supra, and concurs with the Appellate Division that N.J.S.A. 2C:11-4(b)(2) makes clear that only murder can be mitigated by passion/provocation. The Court rejects defendant's contention that the applicability of passion/provocation to murder but not manslaughter creates a logical absurdity, reflects a legislative oversight, or compels the Court to construe N.J.S.A. 2C:11-4(b)(2) contrary to its express terms. Accordingly, even if passion/provocation mitigation were supported by the trial evidence, defendant's challenge to this Court's construction of N.J.S.A. 2C:11-4(b)(2), and to its constitutionality, would not warrant reversal of his conviction. (pp. 21-26)
3. Although defendant and Colon had been romantically involved, there is nothing in the record that suggests that defendant operated his car in a jealous rage or the "heat of passion." Neither of the two "objective elements" of passion/provocation -- reasonable and adequate provocation and an absence of adequate cooling-off time -- is evidenced by the facts presented. Neither party took the position in opening or in summation, in the examination of witnesses, or in the charge conference, that passion/provocation mitigation was part of this case. Accordingly, the trial court's decision to charge the jury regarding passion/provocation lacked the required foundation in the trial evidence. (pp. 26-28)
4. The verdict sheet, in conjunction with the jury charges, constitutes the trial court's direction to the jury. When there is an error in a verdict sheet but the trial court's charge has clarified the legal standard for the jury to follow, the error may be deemed harmless. The verdict sheet error in this case was not a simple omission easily rectified by the jury charge and had the potential to mislead. Accordingly, the Court disagrees with that portion of the Appellate Division panel's decision that found the verdict sheet not to constitute error. However, that error was harmless here and did not deprive defendant of a fair trial. (pp. 28-33)
5. To avail himself of the justification of self-defense, the actor must have an "'actual, honest, reasonable belief'" in the necessity of using force. The Code circumscribes the justification of self-defense when the actor chooses to use deadly force. Defendant's use of the automobile -- driving the vehicle directly at an individual, then traveling several blocks disregarding stop signs with a person clinging to the hood of the car, and braking and accelerating the car to cause the person to fall off the hood -- constitutes an exercise of deadly force. Moreover, that deadly force was used at a time when defendant was in minimal -- if any -- danger, and defendant had the option to drive away from the scene. Accordingly, defendant is not entitled to invoke the justification of self-defense. (pp. 33-37)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE ALBIN filed a separate, DISSENTING opinion, stating that viewed through the appropriate legal lens, the facts present a classic case of passion/provocation manslaughter.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, HOENS, and JUDGE WEFING (temporarily assigned) join in JUSTICE PATTERSON's opinion. JUSTICE ALBIN filed a separate, dissenting opinion.
Argued November 30, 2011 --
JUSTICE PATTERSON delivered the opinion of the Court.
On May 2, 2004, an argument on a Newark street escalated into an altercation that caused the death of a young man. Julio Colon, a Vineland resident who had recently moved to Newark, was approached by two men with whom he had previously been romantically involved, Hector Cordero and defendant Reynaldo Galicia. Cordero and defendant had traveled from Vineland to Newark to confront Colon about a sport utility vehicle (SUV) that he had borrowed but failed to return. Cordero implored Colon to renew their relationship, and Cordero and defendant both begged Colon to return to Vineland with them.
Their quarrel swiftly turned violent. The three men battled over the keys to the SUV, and Colon exchanged punches and kicks with Cordero and defendant. With Cordero in the passenger seat, defendant twice drove his car toward Colon, prompting Colon to climb on the hood of the car and bang his fists on the window. As Colon clung to the car, defendant accelerated and drove several blocks, running a stop sign. Defendant abruptly stopped the car, and Colon fell from the hood to the pavement. He sustained severe head injuries and died a week later.
Tried separately from Cordero, defendant was convicted by a jury of aggravated manslaughter, second-degree aggravated assault, disorderly persons theft and weapons charges. His conviction and sentence were affirmed by the Appellate Division. This Court granted defendant's petition for certification.
This appeal requires us to consider the "passion/provocation" statute, N.J.S.A. 2C:11-4(b)(2). The statute reduces what would otherwise be murder to voluntary manslaughter when "[a] homicide which would otherwise be murder under section 2C:11-3 is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11- 4(b)(2). We decline defendant's invitation to reconsider our holding in State v. Grunow, 102 N.J. 133 (1986). There, we rejected the defendant's contention that the Legislature intended N.J.S.A. 2C:11-4(b)(2) to mitigate aggravated manslaughter to voluntary manslaughter. We further reject defendant's argument that N.J.S.A. 2C:11-4(b)(2) is unconstitutional insofar as it may mitigate murder, other than felony murder, but not manslaughter. The Legislature did not violate equal protection principles when it enacted N.J.S.A. 2C:11-4(b)(2), which authorizes passion/provocation to affect only one form of criminal homicide -- murder committed in violation of N.J.S.A. 2C:11-3. We affirm the Appellate Division's determination on those issues.
We hold that the facts of this case, as developed in the trial record, do not support a passion/provocation finding under N.J.S.A. 2C:11-4(b)(2). When defendant drove his vehicle directly at Colon -- forcing the victim to cling to the windshield wiper -- and then jarred him from the hood to the pavement with abrupt braking and acceleration, he was not in a fury provoked by emotion or a violent attack. Instead, in the words of his counsel, he was "nervous, panicked and confused." No argument of counsel or testimony of trial witnesses suggested that defendant acted in the heat of passion resulting from a reasonable provocation when the victim sustained his fatal injury. Although the prosecution requested, and the court gave, a jury charge regarding the statute, it was recognized by both the prosecution and the defense to be inapplicable in the factual setting of this case.
We further hold that the verdict sheet incorrectly guided the jury in its consideration of the passion/provocation issue, and reverse that portion of the Appellate Division's decision that deemed the verdict sheet not to constitute error. Notwithstanding the trial court's correct instruction to the jury that it could not find defendant guilty of murder unless it concluded that passion/provocation did not apply, the verdict sheet improperly directed the jury not to consider the issue of passion/provocation unless it had already reached a guilty verdict on the murder charge. We remind trial judges of the importance of ensuring that verdict sheets are consistent with the jury charges and the legal standard. However, given the absence of an evidentiary foundation for an application of N.J.S.A. 2C:11-4(b)(2), the trial court's error was harmless.
Finally, we affirm the Appellate Division's decision rejecting defendant's belated invocation of the use of force in self-defense as a defense to the charges against him. Behind the wheel and in control of a locked car, defendant faced no imminent threat from Colon, who was attempting to cling to a moving vehicle as he banged on the windshield. The trial court's omission of self-defense from the jury charge did not give rise to plain error, and we accordingly affirm the decision of the Appellate Division with respect to this issue.
The incident at the center of this case occurred in the setting of a series of romantic relationships. Colon and Cordero lived together for a substantial period until December 2002, when they separated. Cordero persistently sought a reconciliation, but after meeting defendant through the internet, Colon moved in with him in Vineland in about February 2004. Colon also initiated an online friendship with Irwin Castro, who lived with his roommate Edward James in an apartment in Newark. Colon visited Castro during the weeks preceding his death. Castro and James agreed that Colon could stay with them in Newark while he sought employment in New York City, and it was agreed that he would move in with them over the last weekend in April 2004.
On Friday, April 30, 2004, Colon borrowed a Chevrolet Suburban SUV belonging to his former employer, Kenneth Sheppard, assuring Sheppard that he needed the SUV to move personal belongings and would shortly return it. The next day, advising defendant that he was leaving to get a haircut and visit his mother, Colon drove to Newark. Defendant, unable to reach Colon despite repeated attempts, called Cordero on the evening of May 1, 2004, notwithstanding the fact that they had never met, and the two spent the evening and part of the next day discussing the situation. On Sunday, May 2, 2004, defendant and Cordero approached Colon's former employer, Sheppard, and learned that Colon had borrowed Sheppard's SUV and had failed to return it. They offered to drive to Newark and retrieve the SUV. Sheppard agreed, but did not direct them to take the SUV by force.
Defendant and Cordero drove to Newark in defendant's Acura, and knocked on the door of the apartment shared by James and Castro, where they knew Colon would be staying. Told by James that they had located the wrong apartment, defendant and Cordero called Colon's name from the street. In an attempt to avoid disturbing the neighbors, James went outside and spoke with defendant and Cordero, who told him that they were in Newark to collect Sheppard's SUV, which was considered stolen. Attempting to defuse the situation, James instructed Colon to contact the SUV's owner and reassure him that the SUV would be returned. Colon complied.
Undeterred, defendant and Cordero located the borrowed SUV, parked and unlocked on East Delavan Avenue around the corner from the apartment of James and Castro. They entered the SUV, took items belonging to Colon, and brought them to defendant's car. Shortly thereafter, they encountered Colon, James and Castro, who approached the SUV intending to move it to a safer location. Colon and Cordero began to argue over the keys to the SUV. According to defendant, Cordero begged Colon to "come home" and resume their relationship. According to the trial testimony of James, who witnessed most of the incident, Colon pulled Cordero out of the SUV, telling Cordero and defendant to go home to Vineland.
The situation escalated immediately. James testified that defendant left his car to join in the struggle, hit Colon from behind, and "got popped in the face" by Colon. Defendant, in contrast, characterized Colon as the initial aggressor, and testified that Colon kicked and punched him, and put him in a headlock when he tried to intervene in the altercation between Cordero and Colon.
Stating that he intended to go home, defendant returned to his Acura. James recalled that after grabbing the SUV keys from Colon, Cordero entered the Acura and sat in the passenger seat, directing defendant to start the car. With the doors locked, defendant drove the Acura toward Colon, who was running toward the car. James testified that he yelled to warn Colon that the car would hit him, and that Colon leaped on the hood to avoid being struck by defendant's car. A neighbor who witnessed part of the incident confirmed that Colon followed Cordero toward defendant's car, but testified that Colon climbed on the hood of the car and sat with his back against the windshield. According to defendant's account, Colon was "breaking the windshield." He testified, "I didn't know what to do. I panicked. I'm shocked. I just left," and he did so, with Colon on the hood of his car.
In an account substantially confirmed by the testimony of two neighbors, James stated that defendant slammed on the brakes to "get [Colon] off [the hood of the car] and he went flying off." According to James, defendant backed up the car and drove it at Colon, who jumped on the hood a second time. James testified that defendant backed up again and drove forward, with Colon hanging on to the hood, swerving and turning around, eventually speeding up, running a stop sign and taking a right turn on to Mount Prospect Avenue, out of James' view. Defendant disputed that account, testifying that he never put the car in reverse or aimed it at Colon, whom he would never hurt "in a million years." He testified that he drove with Colon on the car punching the windshield and trying to break the windshield wiper, and when he stopped the car, Colon "fell off the hood of [the] car back first and hit his head on the pavement."
Defendant and Cordero immediately took Colon to a hospital, where he was admitted in critical condition in a coma. After a week on life support, he died. An autopsy determined that the cause of Colon's death was blunt impact injury to the head, and that his injuries were consistent with trauma caused by a fall from a moving vehicle onto pavement. Defendant and Cordero were questioned by police officers and arrested.
Defendant was indicted for purposeful or knowing murder in violation of N.J.S.A. 2C:11-3(a)(1), (a)(2), felony murder in violation of N.J.S.A. 2C:11-3(a)(3), first-degree robbery in violation of N.J.S.A. 2C:15-1, second-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1), second-degree conspiracy to commit robbery in violation of N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2, and two charges arising from his alleged use of his vehicle as a weapon: unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5(d) and possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(d). The trial court severed the charges against defendant from the charges against Cordero, and defendant was tried alone.
Defendant's trial, which began on June 5, 2007, barely touched upon the two issues at the center of this case, passion/provocation and self-defense. In their opening statements, neither the prosecutor nor defense counsel addressed either issue. Defense counsel did not characterize the death of Colon as the result of an emotional confrontation provoked by the victim; instead, he termed the case a "tragic series of events that winds up in an awful accident." The State presented the testimony of James, Colon's brother-in-law, the two neighbors who witnessed part of the incident, the employer who lent his car to Colon, the medical examiner, police officers and investigators. Prosecution witnesses offered no evidence suggesting that defendant's handling of his car was prompted by factors suggesting passion/provocation, or that he acted in self-defense.
Defendant called two of his brothers to testify that he was not prone to violence, and took the stand on his own behalf. Defendant stated that he and Colon had been in a romantic relationship and were living together when Colon departed for Newark. He characterized Colon as the initial aggressor in their altercation on May 2, 2004, and stated that after Colon kicked him and put him in a headlock, he retreated to his car. He testified that when Colon climbed on the car, Cordero screamed at him to "[j]ust go, go, go, just go," and defendant, "panicked," drove with Colon on the car. Defendant said that he was afraid that Colon's fist would break the windshield, and insisted that he did not intend or expect that Colon would be hurt when the car came to a stop.
After the defense rested, the trial court held a charge conference. The State requested a charge on passion/provocation, notwithstanding its view that there was an insufficient basis in the record to establish its applicability, citing concerns about potential appellate review if the charge were not given. The defendant opposed a jury charge on passion/provocation, noting that "it confuses the jury if there's a provocation issue, it mitigates against the murder but I know it confuses the murder and puts them in the direction that we don't have facts to support." Notwithstanding the defendant's position, the trial court decided to charge the jury with respect to the passion/provocation statute. Neither the prosecution nor the defense requested a charge regarding self-defense.
In summation, defense counsel noted that the jury would be instructed about passion/provocation, commenting that the jury "will have to decide whether or not there was a passion about all of this," but argued that this issue was "not in the case." The prosecutor addressed passion/provocation in her summation, contending that the incident had not occurred suddenly, and that nothing transpired on the day of Colon's death "that would result in [defendant] actually being impassioned at this point." Justification by self-defense was not addressed in the defense summation, but was raised and refuted briefly in the summation of the prosecution. The trial court addressed passion/provocation in its instruction to the jury on the murder charge:
If you find beyond a reasonable doubt that the defendant purposely or knowingly caused Julio Colon's death or serious bodily injury that then resulted in death and that he did not act, meaning Mr. Galicia did not act in the heat of passion resulting from ...