State v. Lee Funderburg (074760) , 225 N.J. 66 ( 2016 )

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
interest of brevity, portions of any opinion may not have been summarized).
State v. Lee Funderburg (a/k/a Lee E. Funderburg) (A-29-14) (074760)
Argued March 1, 2016 -- Decided May 5, 2016
FERNANDEZ-VINA, J., writing for a unanimous Court.
In this appeal concerning a jury trial for first-degree attempted murder, the Court considers whether a trial
court erred by failing to charge the jury sua sponte on the lesser-included offense of attempted passion/provocation
manslaughter.
Defendant Lee Funderburg had a romantic relationship with Terra Andrews, which resulted in the birth of a
son. After the relationship ended, defendant and Andrews shared parenting responsibilities for their child. Later,
Andrews began dating Leno Parham. After Andrews and Parham had been dating for about one year, Parham and
defendant developed a somewhat tense relationship, and the two exchanged angry words. Defendant and Parham
did not interact again until February 3, 2009, when Andrews and Parham arrived at defendant’s house to pick up the
baby. As Parham buckled the baby into his car seat, defendant reached into Andrews’s parked car and took the keys
out of the ignition. Andrews and defendant began arguing, and Parham intervened on Andrews’s behalf. Parham
chased defendant for ten to fifteen minutes in an effort to reclaim Andrews’s keys. At some point, defendant
brandished a knife. After giving up the chase, Parham leaned against the car, at which point defendant lunged at
him and punched him several times in the chest. Defendant’s father and brother, who were nearby, intervened to
separate the men. When Parham stepped away, he realized he had been stabbed and immediately sought medical
attention. He sustained life-threatening injuries and underwent major surgery but survived.
Defendant was arrested and charged with attempted murder and aggravated assault, as well as related
weapons charges. At defendant’s trial, defense counsel’s theory of the case was that defendant pulled out a knife
after Parham began chasing him because defendant was fearful and wanted the chase to stop. Defense counsel
asserted that defendant did not intentionally stab Parham when he lunged at him; rather, he contended that Parham
was accidentally stabbed during a chaotic struggle for control of the knife.
After closing arguments, counsel for both parties met with the judge to discuss the final jury charges. All
counsel agreed that it was necessary to instruct the jury on a number of lesser-included offenses to aggravated
assault. However, neither party requested that a charge of attempted passion/provocation manslaughter be provided
as a lesser-included offense of attempted murder. Accordingly, the judge instructed the jury on a number of lesser-
included offenses to aggravated assault, but did not deliver a charge for the lesser-included offense of attempted
passion/provocation manslaughter. The jury found defendant guilty on all counts.
Defendant appealed and the Appellate Division reversed the trial court’s decision. The panel held that the
trial court had failed to instruct the jury on the lesser-included offense of attempted passion/provocation
manslaughter, and remanded the case for a new trial. The Court granted the State’s petition for certification. 220
N.J. 268 (2015).
HELD: Defendant was not entitled to a jury instruction on attempted passion/provocation manslaughter because the
facts before the trial court did not clearly indicate that the elements of attempted passion/provocation manslaughter
were present. In particular, there was insufficient evidence before the jury to demonstrate that a reasonable person in
defendant’s position would have been adequately provoked by the victim’s behavior.
1. The appropriate time to object to a jury charge is “before the jury retires to consider its verdict.” R. 1:7-2. When
a defendant fails to object to an error or omission at trial, as in this case, appellate courts review for plain error.
Under that standard, courts disregard any alleged error unless it is of such a nature as to have been clearly capable of
producing an unjust result. To warrant reversal, an error must be sufficient to raise a reasonable doubt as to whether
the error led the jury to a result it otherwise might not have reached. (pp. 16-17)
2. Attempted passion/provocation manslaughter is comprised of four 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 criteria are objective, and the latter two are subjective. To satisfy the first element
of attempted passion/provocation manslaughter, a jury must conclude that a reasonable person in the defendant’s
position would have been provoked sufficiently to arouse the passions of an ordinary man beyond the power of his
control. The generally accepted rule is that words alone, no matter how offensive or insulting, do not constitute
adequate provocation to reduce murder to manslaughter. (pp. 17-18).
3. Although a trial court is vested with discretion in delivering jury instructions, some of the trial court’s decisions,
such as the charging of lesser-included offenses, are governed by statute. To justify a lesser-included offense
instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well
as to convict the defendant of the lesser, unindicted offense. N.J.S.A. 2C:1-8(e). When the parties to a criminal
proceeding do not request that a lesser-included offense be charged, the charge should be delivered to the jury only
where the facts in evidence clearly indicate the appropriateness of that charge. For a trial court to be required to
charge a jury sua sponte on attempted passion/provocation manslaughter, the court must find first that the two
objective elements of the offense are clearly indicated by the evidence. (pp. 18-20)
4. Here, defendant was not entitled to a jury instruction on attempted passion/provocation manslaughter because
there was insufficient evidence that a reasonable person in defendant’s position would have been adequately
provoked by Parham’s behavior. Parham’s chase did not threaten defendant, and there was insufficient evidence to
suggest that Parham wielded the knife. Even if the jury credited testimony by defendant’s father that Parham
revealed the knife first, the statement would at most support the theory that defendant acted in self-defense; it would
likely not support a theory that defendant was actually impassioned and intended to kill Parham. Since the first
objective prong of attempted passion/provocation manslaughter cannot be satisfied by the testimony presented at
defendant’s trial, there is no need to consider whether a reasonable person in defendant’s position would have had
time to cool off between the provocation and the slaying. An instruction for the lesser-included offense would have
been unwarranted. (pp. 20-22)
5. The Court’s holding reaffirms the principle that a trial court does not have “the obligation on its own
meticulously to sift through the entire record in every murder trial to see if some combination of facts and inferences
might rationally sustain a manslaughter charge.” State v. Choice, 98 N.J. 295, 299 (1985). It is only when the facts
“clearly indicate” the appropriateness of an attempted passion/provocation manslaughter charge that the duty of the
trial court arises. It is not improper for a trial court to withhold instruction on attempted passion/provocation
manslaughter when there is no evidence that would clearly indicate the appropriateness of that charge. (pp. 22-23)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to reinstate
defendant’s conviction.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON
join in JUSTICE FERNANDEZ-VINA’s opinion. JUDGE CUFF (temporarily assigned) did not participate.
2
SUPREME COURT OF NEW JERSEY
A-29 September Term 2014
074760
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
LEE FUNDERBURG (a/k/a LEE E.
FUNDERBURG),
Defendant-Respondent.
Argued March 1, 2016 – Decided May 5, 2016
On certification to the Superior Court,
Appellate Division.
William P. Fisher, Acting Assistant
Prosecutor, argued the cause for appellant
(Angelo J. Onofri, Acting Mercer County
Prosecutor, attorney).
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney).
Jennifer E. Kmieciak, Deputy Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (John J.
Hoffman, Acting Attorney General, attorney).
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
This appeal presents the question of whether, in the
context of a jury trial for first-degree attempted murder, a
trial court erred by failing to charge the jury sua sponte on
1
the lesser-included offense of attempted passion/provocation
manslaughter.
The facts in this appeal were established at trial.
Defendant Lee Funderburg and Terra Andrews had previously been
in a romantic relationship, and they continued to share
parenting responsibilities for their two-year-old son even after
they stopped dating. Funderburg had a tense relationship with
Andrews’s new boyfriend, Leno Parham, and they had previously
exchanged angry words. On February 3, 2009, an argument ensued
between Funderburg and Parham when Andrews arrived with her
boyfriend to pick up the baby from Funderburg’s house.
Funderburg removed the keys from the ignition of Andrews’s car.
Parham chased Funderburg for ten to fifteen minutes in an effort
to reclaim the keys. Several eyewitnesses testified that, at
some point before or during the chase, Funderburg brandished a
knife. After giving up the chase, Parham leaned against the
car, at which point Funderburg lunged at Parham and punched him
several times in the chest. Funderburg’s father and brother,
who were nearby, also got involved in the tussle, ostensibly in
an effort to separate the men. When Parham stepped away, he
realized he had been stabbed and immediately sought medical
attention. He sustained life-threatening injuries and underwent
major surgery but survived.
2
Funderburg was arrested later that evening and charged with
attempted murder and aggravated assault, as well as related
weapons charges. At Funderburg’s trial, the judge instructed
the jury on a number of lesser-included offenses to aggravated
assault. However, counsel did not request a charge for the
lesser-included offense of attempted passion/provocation
manslaughter, and the charge was not delivered to the jury.
We now address whether it was error for the trial judge to
fail to charge the jury sua sponte on the lesser-included
offense of attempted passion/provocation manslaughter. We hold
that Funderburg was not entitled to a jury instruction on
attempted passion/provocation manslaughter because the facts
before the trial court did not clearly indicate that the
elements of attempted passion/provocation manslaughter were
present. In particular, there was insufficient evidence before
the jury to demonstrate that a reasonable person in Funderburg’s
position would have been adequately provoked by Parham’s
behavior.
Our holding today reaffirms that a trial court does “not
. . . have the obligation on its own meticulously to sift
through the entire record in every murder trial to see if some
combination of facts and inferences might rationally sustain a
manslaughter charge.” State v. Choice, 98 N.J. 295, 299 (1985).
Because the Appellate Division here improperly sifted through
3
the cold appellate record and constructed a hypothetical and
factually unsupported scenario in which Funderburg might have
conceivably been adequately provoked, we are compelled to
reverse and remand with instructions to reinstate Funderburg’s
conviction.
I.
Defendant Lee Funderburg had a romantic relationship with
Terra Andrews, which resulted in the birth of a son. Shortly
thereafter, Funderburg and Andrews stopped dating but continued
to share parenting responsibilities. Later, Andrews began
dating Leno Parham, the victim. Parham routinely accompanied
Andrews to Funderburg’s residence to pick up the baby. However,
after Andrews and Parham had been dating for about one year,
Parham and Funderburg developed a somewhat tense relationship.
Several weeks before the altercation that resulted in
Parham’s stabbing, Parham and Funderburg exchanged hostile words
by telephone. Parham informed Funderburg that he was going to
“come see him shortly” in person. On the way to Funderburg’s
house, Parham spoke to Funderburg’s mother by telephone and
informed her that he was planning to fight her son. When Parham
arrived at Funderburg’s house (which Funderburg shared with his
mother, father, and brother), Funderburg came outside and
exchanged angry words with Parham. Funderburg briefly retreated
4
into the house and returned with a knife. The police arrived,
and Parham left the scene.
Funderburg and Parham did not interact again until February
3, 2009. In the late afternoon, Parham received a call from
Andrews. Andrews asked Parham if he would accompany her to
Funderburg’s house to pick up her son, who was then about two
years old. Parham agreed, and Andrews picked him up in her car.
Both then drove to Funderburg’s house. Most of the trial
witnesses testified that it was beginning to snow that
afternoon.
Upon arriving, Andrews pulled her car into the driveway and
got out to pick up her son while Parham stayed behind in the
passenger seat. Funderburg emerged from inside the house but
did not bring the child with him. Shortly thereafter,
Funderburg’s brother Jamaal Funderburg1 came out of the house,
holding the baby. Andrews tried to retrieve her son from
Jamaal, but was unable to do so. Parham then exited the car,
took the baby from Jamaal, and began to place the baby into a
car seat in the backseat.
As Parham buckled the baby into the car seat, Funderburg
reached into the driver’s side of the parked car and took the
1 Because the defendant and his family members share the same
last name, we refer to the defendant’s family members by their
first names. We intend no disrespect by this practice.
5
keys out of the ignition. Andrews and Funderburg began arguing.
Funderburg was upset that Andrews brought Parham over every time
she came to pick up their son, and Andrews was upset that she
was being prevented from leaving. Parham intervened on
Andrews’s behalf and began to chase Funderburg around the car in
an attempt to recover the car keys. The snow on the ground made
pursuit more difficult. Funderburg evaded Parham for about ten
to fifteen minutes. Andrews and Jamaal both stood nearby but
did not participate in the chase.
Several eyewitnesses -- including Andrews, Parham, and
Jamaal -- testified that Funderburg brandished a knife.
However, Parham gave conflicting statements as to when the knife
appeared. Parham told police several days after the incident
that Funderburg brandished the knife after Parham began chasing
him to obtain the car keys. At trial, Parham indicated that
Funderburg brandished the knife before the chase began.
Parham eventually stopped chasing Funderburg and knocked on
Funderburg’s front door, hoping to persuade Funderburg’s mother
to entreat Funderburg to return the car keys. Finding no one
home, Parham walked into the street and asked Funderburg and
Jamaal if they wanted to fight; they did not respond. Parham
walked back to the car and leaned against it, and Funderburg and
Jamaal both approached him. Parham and Funderburg continued to
argue verbally for several minutes and the confrontation
6
continued to escalate. Parham testified that Funderburg held
the knife in his hand, but he did not believe Funderburg would
use it. Meanwhile, Funderburg’s parents arrived at home by car
and parked in front of their house. Funderburg’s father Leroy
approached the men as they stood arguing next to Andrews’s car.
According to Parham, Funderburg then lunged at him and
punched him several times in the chest. Jamaal and Leroy got
involved, and both testified that they intervened to restrain
Funderburg and Parham from one another. However, Parham
testified that Jamaal and Leroy helped to pin Parham against the
car as Funderburg assaulted him. Parham struggled with
Funderburg for control of the knife, and it eventually was
dropped onto the ground.
Parham testified that he stepped away from the car and
immediately began feeling “woozy.” He noticed two spots on his
shirt and realized he had been hurt and was bleeding. He walked
into the street and flagged down a passing motorist in a van,
who immediately agreed to drive him to the hospital upon seeing
his injuries. He was in critical condition when he arrived, but
after emergency surgery and transfer to a trauma center, doctors
were able to successfully treat him for two stab wounds to the
chest, which had resulted in a laceration to the right ventricle
of his heart and a perforated lung. Parham was discharged from
the hospital one week later.
7
Funderburg left the scene of the altercation shortly before
police arrived. He returned about two hours later, and was
arrested after declaring to officers, “I’m the one you are
looking for.” The officers read Funderburg his Miranda rights,
and began to secure him in the police vehicle. As he was being
secured, Funderburg was questioned about the knife. He told
officers he had tossed the knife into a bush near the front
porch of his home. However, officers were unable to locate the
knife at the scene or in the vicinity afterwards.
The witnesses’ accounts differed as to the features of the
knife that was used in the assault. Andrews stated the knife
had a silver blade about four inches long, but she could not
describe its handle. Parham stated that the knife’s handle was
black with a silver blade about five inches long. Funderburg’s
father Leroy stated that the knife looked like a “carpet knife”
with a blue or green handle and a blade about one inch long.
Funderburg’s brother Jamaal stated that he saw a box-cutter with
a green handle about four inches long and a silver blade.
II.
Funderburg was indicted by a Mercer County grand jury on
five counts: first-degree attempted murder, contrary to
N.J.S.A. 2C:11-3(a)(1) and (2) and N.J.S.A. 2C:5-1 (Count One);
second-degree aggravated assault, contrary to N.J.S.A. 2C:12-
1(b)(1) (Count Two); third-degree aggravated assault, contrary
8
to N.J.S.A. 2C:12-1(b)(2) (Count Three); third-degree possession
of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-
4(d) (Count Four); and fourth-degree unlawful possession of a
weapon, contrary to N.J.S.A. 2C:39-5(d) (Count Five).
The State’s case against Funderburg proceeded to trial in
January 2011. The State presented testimony from a number of
witnesses, including Parham, Andrews, the motorist who drove
Parham to the hospital, a neighbor of the Funderburgs, two of
Parham’s doctors, and officers who responded to the scene.
Funderburg’s brother, Jamaal, and his father, Leroy, both
testified in Funderburg’s defense. Jamaal testified that he did
not know who had the weapon initially, but said that it
eventually ended up in Parham’s hand during the struggle.
Jamaal testified that Parham tossed the knife as he was walking
away from the fight and into the street, where he flagged down
the passing van and left.
Leroy was the only witness to testify that Parham held the
knife first. Leroy testified that he saw Parham pull out a
knife as he was leaning against the car and before Funderburg
lunged at Parham. Leroy explained that he got involved to
separate Funderburg from Parham. He testified that he saw
Parham toss a knife into the bushes after the scuffle, just
before getting into the van that took him to the hospital.
Leroy was also the only witness who denied that it was snowing
9
on the afternoon of February 3, 2009; he stated that the weather
was cold but dry that day.
In closing arguments, Funderburg’s defense counsel
presented his theory of the case: Funderburg pulled out a knife
after Parham began chasing him because he was fearful and wanted
the chase to stop. Defense counsel asserted that Funderburg did
not intentionally stab Parham when he lunged at him; rather, he
contended that Parham was accidentally stabbed during a chaotic
struggle for control of the knife.
After closing arguments, counsel for both parties met with
the judge to discuss the final jury charges. All counsel agreed
that it was necessary to instruct the jury on a number of
lesser-included offenses to aggravated assault. The judge
provided instructions on lesser-included offenses, including
aggravated assault, attempted serious bodily injury aggravated
assault, significant bodily injury aggravated assault, bodily
injury with a deadly weapon aggravated assault purposely or
knowingly caused, recklessly causing bodily injury with a deadly
weapon, simple assault, simple assault without the use of a
deadly weapon, and attempt to cause bodily injury. However,
neither party requested that a charge of attempted
passion/provocation manslaughter be provided to the jury as a
lesser-included offense of attempted murder. After several days
10
of deliberations, the jury found Funderburg guilty on all
counts.
In January 2012, Funderburg appeared for sentencing. After
merging various charges,2 the court sentenced him to an aggregate
term of thirteen years of incarceration.
Funderburg appealed his conviction in July 2012. After
hearing oral argument in May 2014, the Appellate Division
reversed the trial court’s decision in an unpublished per curiam
opinion. The appellate court held that the trial court had
failed to instruct the jury on the lesser-included offense of
attempted passion/provocation manslaughter, and remanded the
case for a new trial. The State thereafter filed a petition for
certification, which we granted. State v. Funderburg, 220 N.J.
268 (2015).
III.
A.
Funderburg argues that the Appellate Division properly
reversed and remanded his case for a new trial. He contends
that a jury instruction on attempted passion/ provocation
2 Funderburg’s sentence is not at issue in this appeal. We note
briefly that the sentencing judge improperly merged some of
Funderburg’s weapons charges in violation of our instructions in
State v. Diaz, 144 N.J. 628, 636 (1996). This was error but had
no net effect on Funderburg’s sentence. The Appellate Division
properly remanded for correction of the judgment of conviction
to address this error.
11
manslaughter should have been given by the trial judge sua
sponte, and urges that the failure to do so constituted plain
and reversible error.
Funderburg relies on case law providing that the trial
judge has a duty to instruct the jury on any lesser-included
offense for which a rational basis is “clearly indicate[d]” by
the record. See, e.g., State v. Jenkins, 178 N.J. 347, 361
(2004) (“[A] trial court has an independent obligation to
instruct on lesser-included charges when the facts adduced at
trial clearly indicate that a jury could convict on the lesser
while acquitting on the greater offense.”); see State v. Powell,
84 N.J. 305, 318 (1980) (holding that trial court has “duty . .
. in a murder case to charge the applicable law to the jury
based upon the facts regardless of what requests counsel may
make”).3 He also cites State v. Robinson, 136 N.J. 476, 488-89
(1994), in which we held that attempted passion/provocation
manslaughter is a lesser-included offense of attempted murder.
Funderburg contends that a trial judge must sua sponte
instruct the jury on attempted passion/provocation manslaughter
whenever the objective evidence presented at trial clearly
3Funderburg argues that counsel requested that all lesser-
included offenses be charged to the jury. However, that
statement was in the context of a discussion involving
aggravated assault and cannot be read to include a request for
an attempted passion/provocation manslaughter charge.
12
indicates both (1) reasonable and adequate provocation and (2) a
lack of cooling-off time. See State v. Mauricio, 117 N.J. 402,
411 (1980). He emphasizes that the jury could have found that a
reasonable person in his position would have been adequately
provoked by Parham’s actions, and that such a person would have
had insufficient time to “cool off” before the physical
altercation took place.
B.
In opposition, the State urges us to reverse the Appellate
Division decision and reinstate defendant’s convictions. The
State first contends that there was no evidence in the record to
“clearly indicate” that an instruction on attempted
passion/provocation manslaughter was warranted. It contends
that the Appellate Division improperly sifted through the record
to find a combination of facts and inferences that would have
supported a manslaughter charge at the trial level, even though
the trial court was not required to perform such a time-
intensive activity.
Next, the State submits that neither of the two objective
elements of attempted passion/provocation manslaughter
articulated in Mauricio, supra, were present. The State argues
that the facts presented by Funderburg’s witnesses were not
sufficient to support an inference that there was reasonable and
adequate provocation, since Funderburg initiated both the
13
confrontation in the driveway and the physical contact that
resulted in Parham’s stabbing. The State urges that even the
foot chase initiated by Parham was not adequate provocation. It
notes that Parham’s chase was preceded by verbal negotiation,
which Funderburg rejected. As such, the State asserts that
there was no need for “cooling-off” time, since Parham’s actions
would not have provoked a reasonable person in Funderburg’s
situation.
Finally, the State notes that a jury instruction on
attempted passion/provocation manslaughter would have
contradicted defense counsel’s theory of the case that
Funderburg pulled out his knife in fear when Parham began
chasing him. The State points out that a jury instruction
proposing that Funderburg acted out of passion or provocation
would indicate that Funderburg in fact intended to injure Parham
-- not that Funderburg was trying to defend himself, as
Funderburg’s counsel argued in his closing statement.
C.
The Attorney General (“AG”) participates in this appeal as
amicus curiae and supports the State’s arguments. The AG
submits that the Appellate Division improperly substituted its
own judgment for that of the trial judge when it sifted through
the record to find support for a lesser-included offense that
defendant did not request. The AG cites State v. Denofa, 187
14
N.J. 24, 42 (2006), for the proposition that trial courts are
required to give sua sponte jury instructions only when the
evidence presented in a case “jump[s] off the page.” Here, the
AG argues that the Appellate Division cherry-picked several
factual references from the record in support of a potential
verdict on attempted passion/provocation manslaughter, thereby
focusing on the cold appellate record rather than the trial
judge’s first-hand knowledge of the case.
The AG also contends that no reversible error occurred at
Funderburg’s trial. The AG submits that a presumption of
reversible error for a trial court’s omission or incomplete
instruction to the jury would produce needless extra work for
the State, and would undermine the integrity of the judicial
process by disrupting the finality of jury verdicts. The AG
also urges that such a presumption could encourage defendants to
remain silent at trial and later seek a second bite at the
proverbial apple when a judge fails to render a complete
instruction.
Finally, the AG urges that the evidence adduced at
Funderburg’s trial was not enough to warrant an instruction on
attempted passion/provocation manslaughter, because none of the
witnesses testified believably that Funderburg acted in self-
defense when he stabbed Parham. The AG contends that having
insufficient evidence of self-defense is tantamount to having
15
insufficient evidence to support a charge of manslaughter, since
a manslaughter charge may be warranted when a defendant has an
“honest but unreasonable belief in the necessity to resort to
force in self-defense.” See Model Jury Charges (Criminal),
Justification - Self Defense in Self Protection 1 n.1 (revised
June 13, 2011). The AG notes that defense counsel conceded to
the judge that there was no basis upon which to charge the jury
on self-defense, since Funderburg did not testify.4
IV.
A.
The appropriate time to object to a jury charge is “before
the jury retires to consider its verdict.” R. 1:7-2. Here,
Funderburg did not object to the absence of the attempted
passion/provocation manslaughter charge at any point prior to
his appeal. When a defendant fails to object to an error or
omission at trial, we review for plain error. Under that
standard, we disregard any alleged error “unless it is of such a
nature as to have been clearly capable of producing an unjust
result.” R. 2:10-2; see also State v. Robinson, 165 N.J. 32, 47
(2000) (citations omitted). The mere possibility of an unjust
result is not enough. See State v. Jordan, 147 N.J. 409, 422
4 The record reflects that Funderburg unjustifiably absented
himself from the last day of trial, and his defense counsel was
therefore unable to call Funderburg as a witness in his own
defense, although he had planned for Funderburg to testify.
16
(1997). To warrant reversal by this Court, an error at trial
must be sufficient to raise “a reasonable doubt . . . as to
whether the error led the jury to a result it otherwise might
not have reached.” Jenkins, supra, 178 N.J. at 361 (citation
omitted).
B.
In Robinson, supra, we recognized for the first time that
attempted passion/provocation manslaughter is a cognizable
offense under the New Jersey Code of Criminal Justice codified
in Title 2C. 136 N.J. at 486. Under that provision, an
intentional homicide that would otherwise be murder may be
mitigated to manslaughter when it is “committed in the heat of
passion resulting from a reasonable provocation.” N.J.S.A.
2C:11-4(b)(2); see Mauricio, supra, 117 N.J. at 411. However,
in recognizing the crime, we predicted that it would likely
“remain unfamiliar, because there are few instances in which a
defendant charged with attempted homicide will want to raise
before a jury the argument that he or she actually intended to
kill.” Robinson, supra, 136 N.J. at 493.
In our jurisprudence, attempted passion/provocation
manslaughter is comprised of four 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
17
defendant; and [4] the defendant must not have actually cooled
off before the slaying.” Mauricio, supra, 117 N.J. at 411
(citation omitted). The first two criteria are objective, and
the latter two are subjective. Ibid.
To satisfy the first element of attempted
passion/provocation manslaughter, a jury must conclude that a
reasonable person in the defendant’s position would have been
provoked sufficiently to “arouse the passions of an ordinary man
beyond the power of his control.” State v. King, 37 N.J. 285,
301-02 (1962). “The generally accepted rule is that words
alone, no matter how offensive or insulting, do not constitute
adequate provocation to reduce murder to manslaughter.” State
v. Crisantos, 102 N.J. 265, 274 (1986) (citations omitted).
C.
A trial court is vested with discretion in delivering the
jury instructions that are most applicable to the criminal
matter before it. See, e.g., State v. Ernst, 32 N.J. 567, 583-
84 (1960) (“[A] trial judge in his discretion may give [a jury]
charge in any situation in which he reasonably believes a jury
may find a basis for its application.” (citing Hargrave v.
Stockloss, 127 N.J.L. 262, 266 (E. & A. 1941))), cert. denied,
364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961).
However, some of the trial court’s decisions, such as the
charging of lesser-included offenses, are governed by statute.
18
N.J.S.A. 2C:1-8 provides that a trial 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:1-8(e). Thus, “to justify a
lesser included offense instruction, a rational basis must exist
in the evidence for a jury to acquit the defendant of the
greater offense as well as to convict the defendant of the
lesser, unindicted offense.” State v. Savage, 172 N.J. 374, 396
(2002) (citation omitted); see also Denofa, supra, 187 N.J. at
41-42 (citations omitted).
When the parties to a criminal proceeding do not request
that a lesser-included offense such as attempted
passion/provocation manslaughter be charged, the charge should
be delivered to the jury only when there is “obvious record
support for such [a] charge . . . .” Powell, supra, 84 N.J. at
319. A trial court should deliver the instruction sua sponte
“only where the facts in evidence ‘clearly indicate’ the
appropriateness of that charge.” Savage, supra, 172 N.J. at 397
(citing Choice, supra, 98 N.J. at 298) (further citations
omitted). A trial court need not “scour the statutes to
determine if there are some uncharged offenses of which the
defendant may be guilty.” State v. Brent, 137 N.J. 107, 118
(1994) (quoting State v. Sloane, 111 N.J. 293, 302 (1988))
(further citations omitted). Nor does the trial court have “the
19
obligation on its own meticulously to sift through the entire
record in every murder trial to see if some combination of facts
and inferences might rationally sustain” a lesser charge like
manslaughter. Choice, supra, 98 N.J. at 299. “Only if the
record clearly indicates a lesser-included charge -- that is, if
the evidence is jumping off the page -- must the court give the
required instruction.” Denofa, supra, 187 N.J. at 42 (citations
omitted).
For a trial court to be required to charge a jury sua
sponte on attempted passion/provocation manslaughter, the court
“must find first that the two objective elements of [the
offense] are clearly indicated by the evidence.” Robinson,
supra, 136 N.J. at 491. “If they are, the two subjective
elements should ‘almost always be left for the jury.’” Id. at
490 (citing Mauricio, supra, 117 N.J. at 413).
V.
Applying the law to the facts of this case, we conclude
that Funderburg was not entitled to a jury instruction on
attempted passion/provocation manslaughter. We find that the
facts before the trial court did not clearly indicate that the
objective elements of attempted passion/provocation manslaughter
were present. In particular, there was insufficient evidence
before the jury that a reasonable person in Funderburg’s
20
position would have been adequately provoked by Parham’s
behavior. See Mauricio, supra, 117 N.J. at 411. Parham’s chase
did not threaten Funderburg; it was simply an attempt to
retrieve the car keys. The chase was preceded by verbal
sparring, at which point Funderburg refused to return the keys.
Thus, this interaction alone did not suggest adequate
provocation. Beyond that, there was insufficient evidence to
suggest that Parham had wielded the knife. At best, there was a
disagreement among the witnesses about who first handled the
knife that later stabbed Parham. Andrews and Parham both
testified that Funderburg was the first person to reveal a
knife; Jamaal could not testify as to who revealed the knife.
Only Funderburg’s father Leroy testified that Parham revealed
the knife first.
Even if the jury found Leroy’s testimony to be the most
credible of all of the eyewitnesses, Leroy’s statement that
Parham initially held the knife would at most support the theory
that Funderburg acted in self-defense; it would likely not
support a theory that Funderburg was actually impassioned and
intended to kill Parham. Ultimately, there was insufficient
evidence in the trial record to indicate that a reasonable
person in Funderburg’s situation would have been adequately
provoked.
21
Without sufficient evidence to suggest adequate
provocation, there is no need to consider whether a reasonable
person in Funderburg’s position would have had time to cool off
between the provocation and the slaying. See ibid. Since the
first objective prong of attempted passion/provocation
manslaughter cannot be satisfied by the testimony presented at
Funderburg’s trial, an instruction for the lesser-included
offense would have been unwarranted.
Our holding today reaffirms our earlier-stated principle
that a trial court does not have “the obligation on its own
meticulously to sift through the entire record in every murder
trial to see if some combination of facts and inferences might
rationally sustain a manslaughter charge.” Choice, supra, 98
N.J. at 299. We decline to impose such a burdensome requirement
on trial courts or suggest that every potential lesser-included
offense must be charged to the jury. It is only when the facts
“clearly indicate” the appropriateness of an attempted
passion/provocation manslaughter charge that the duty of the
trial court arises. See Robinson, supra, 136 N.J. at 489
(citations omitted). “[U]nder our Code [of Criminal Justice,]
it is improper for a trial court to charge manslaughter . . . if
there is no evidence in the record to support a manslaughter
conviction.” Crisantos, supra, 102 N.J. at 276 (citation
omitted).
22
In reaching this conclusion, we emphasize that whether
Funderburg instigated the fight that led to Parham’s stabbing is
not relevant to the question before us. “The issue here is
whether a reasonable person would have been provoked, not
whether a reasonable person would have engaged in conduct that
incited the alleged provocation.” Mauricio, supra, 117 N.J. at
415. Since we conclude that a reasonable person in Funderburg’s
position would not have been adequately provoked, the question
of “who started it” does not affect our analysis.
Finally, we acknowledge that “correct jury charges are
especially critical in guiding deliberations in criminal
matters, [and] improper instructions on material issues are
presumed to constitute reversible error.” Jenkins, supra, 178
N.J. at 361 (citing Jordan, supra, 147 N.J. at 421-22). Our
holding today is consistent with that pronouncement. It is not
improper for a trial court to withhold instruction on attempted
passion/provocation manslaughter when there is no evidence that
would clearly indicate the appropriateness of that charge.
VI.
The judgment of the Appellate Division is reversed, and the
matter is remanded to reinstate Funderburg’s conviction.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, and SOLOMON join in JUSTICE FERNANDEZ-VINA’s opinion.
JUDGE CUFF (temporarily assigned) did not participate.
23
SUPREME COURT OF NEW JERSEY
NO. A-29 SEPTEMBER TERM 2014
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
LEE FUNDERBURG (a/k/a LEE E.
FUNDERBURG),
Defendant-Respondent.
DECIDED May 5, 2016
Chief Justice Rabner PRESIDING
OPINION BY Justice Fernandez-Vina
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) ------------------
TOTALS 6