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State v. Carrero

Supreme Court of New Jersey

May 22, 2017

STATE OF NEW JERSEY, Plaintiff-Appellant,
FERNANDO CARRERO, JR. (a/k/a FIPO), Defendant-Respondent.

          Argued October 13, 2017

         On appeal from the Superior Court, Appellate Division.

          Danielle R. Grootenboer, Senior Assistant Prosecutor, argued the cause for appellant (Gurbir S. Grewal, Bergen County Prosecutor, attorney; Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, of counsel and on the brief).

          Marcia H. Blum, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney).

          Timpone, J., writing for a unanimous Court.

         In this appeal, the Court considers the propriety of a passion/provocation manslaughter jury instruction.

         On November 6, 2007, Jose Hall was shot twice at Kerrilyn Lowenstein's house in Lyndhurst, where she lived with her parents. At the time of the shooting, seventeen-year-old Lowenstein was dating defendant Fernando Carrero, Jr., who was sixteen. Before dating defendant, Lowenstein had dated Hall's close friend, Corey Hicks. In 2003, after Lowenstein and Hicks ended their relationship, Hicks moved into the basement of Lowenstein's house. According to Lowenstein, defendant specifically told her that he did not want her speaking to Hicks or Hall, despite her repeated protestations that she had no romantic feelings for either of them.

         In the week leading up to the shooting, defendant stayed overnight at Lowenstein's house. On the date of the shooting, Lowenstein's mother told her that defendant could not stay at the house that night because Hicks and Hall would be there. Defendant called his sister to ask if he could stay with her, but she did not answer. Lowenstein and defendant went to Lowenstein's house, planning to try to reach his sister again later on. While they were sitting at the kitchen table, Hall came up from the basement. He asked Lowenstein why she had not told him that she had secured a job. Defendant asserted that he told Hall to stop speaking to Lowenstein.

         Lowenstein testified that she was fearful of an impending fight between defendant and Hall, so she left the kitchen to get her parents. While she was out of the kitchen but near the stairs, Lowenstein indicated that she heard Hall yell, "whoa, whoa, whoa, " followed by the sound of a gunshot. She ran back to the kitchen and saw Hall lying on his back with defendant standing over him, pointing a gun at him. Hall was lying in a defensive position saying, "whoa stop, whoa stop." Lowenstein stated that she pleaded with defendant to "just leave." When he did not respond, she attempted to pull defendant's arm away, but he fought off her grip. Lowenstein testified that defendant then shot Hall in the head.

         Defendant's version of the shooting differed. He testified that, after Lowenstein left the kitchen to find her parents, Hall told him "this is the last time you're going to come in this house. And stop talking to [Lowenstein]." Hall then reached under his shirt and pulled a gun from his waistband. Defendant tried to grab the gun from Hall and the gun went off during the struggle. After the first shot, Hall fell to his knees but continued to struggle. Lowenstein reentered the room and jumped on defendant's back. During the three-way struggle for the gun, the gun fired while aimed at Hall's head.

         Hicks, who was in the basement at the time of the shooting, testified that he ran upstairs after hearing yelling and "thumping" noises. When he got to the kitchen, he found Hall on the floor bleeding and saw defendant run out the back door with the gun in hand. Hall died two days later in the hospital. Defendant was arrested the morning after the shooting.

         A Bergen County grand jury returned an indictment, charging defendant with first-degree murder; second-degree possession of a weapon for an unlawful purpose; third-degree possession of a handgun without the requisite permit; and third-degree hindering apprehension.

         At the close of evidence, defendant requested an instruction on passion/provocation manslaughter as a lesser-included offense of murder. The court denied the request. The jury subsequently found defendant guilty on all counts.

         In a split opinion, a majority of the Appellate Division reversed defendant's conviction, concluding that, when considered in the light most favorable to defendant, the evidence adduced at trial "provide[d] a rational basis upon which a reasonable jury might make a finding of passion/provocation." The majority found defendant's testimony that Hall drew a weapon and pointed it at him supported a passion/provocation charge. A dissenting panel member concluded that there was no evidence to support a passion/provocation charge and that a passion/provocation manslaughter verdict "would have required the jury to reject both defendant's and the State's versions" of events. The State appealed to this Court as of right. 1L 2:2-1(a) (2).

         HELD: The trial testimony presents a rational basis on which the jury could acquit defendant of murder but convict him of passion/provocation manslaughter. Although the passion/provocation charge is inconsistent with defendant's theories of self-defense and accidental shooting, when the evidence supports such a charge, a defendant may be entitled to the requested instruction regardless of whether the charge is consistent with the defense.

         1. As a threshold matter, the Court rejects the assertion that State v. Funderburg, 225 N.J. 66, 81 (2016), is controlling here. That case addressed the failure to provide sua sponte a passion/provocation manslaughter charge. The Court decided Funderburg under a "clearly indicated" standard of review because it involved an alleged failure to provide a sua sponte instruction-the trial court had the obligation to give the instruction only if the evidence "clearly indicated" the objective elements of the offense. Id. at 82. Here, the rational-basis test applies to review the trial court's failure to provide an instruction when defendant requested it. (p. 10-11)

         2. When a defendant requests a jury instruction on a lesser-included offense and is denied the requested instruction, an appellate court reviews the denial of that request, determining whether the evidence presents a rational basis on which the jury could (1) acquit the defendant of the greater charge and (2) convict the defendant of the lesser. If such a rational basis exists, a trial court's failure to give the requested instruction is reversible error. A defendant is entitled to a lesser-included offense instruction rationally supported by the evidence, even if the instruction is inconsistent with the defense theory, (pp. 11-12)

         3. Passion/provocation manslaughter is a well-established lesser-included offense of murder with four essential elements: (1) the provocation must be adequate; (2) the defendant must not have had time to cool off between the provocation and the slaying; (3) the provocation must have actually impassioned the defendant; and (4) the defendant must not have actually cooled off before the slaying. The first two elements are assessed objectively, while the third and fourth are more subjective because they relate to the defendant's actual response. To warrant the passion/provocation jury charge, the evidence must rationally support only the first two elements; the subjective elements should usually be left to the jury to determine, (pp. 12-13)

         4. As to the first element, the presence of a gun or knife can satisfy the provocation requirement. Battery is also considered adequate provocation almost as a matter of law. With respect to the second element, the Court found in State v. Robinson. 136 N.J. 476, 492 (1994), that a reasonable person in the defendant's position "might not have had time to cool down between the provocation and the retaliation" where the defendant shot his uncle "almost immediately" after being provoked, (p. 14)

         5. Here, a reasonable jury, viewing the evidence in the light most favorable to defendant, could believe that Hall was the first one to pull out the gun. Even if Hall did not draw the weapon, the physical struggle between Hall and defendant constituted a battery, which rises to the level of adequate provocation. There was a rational basis for a jury to find that the provocation was objectively adequate. The evidence also provides a rational basis on which to conclude there was no cooling-off period between the provocation and the shooting, (pp. 14-16)

         6. Those determinations provide a sufficient basis to have warranted a passion/provocation manslaughter instruction. The instruction should have been provided as requested. The remaining elements-whether defendant was in fact provoked and whether he in fact cooled off-are left to the jury. (p. 16)

         The judgment of the Appellate Division is AFFIRMED, and the matter is remanded to the trial court for further ...

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