STATE OF NEW JERSEY VS. CARLOS ORTIZ (17-08-0438, MERCER COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3952-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARLOS ORTIZ,
Defendant-Appellant.
_______________________
Submitted January 12, 2021 – Decided February 26, 2021
Before Judges Haas, Mawla, and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 17-08-0438.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michael Denny, Assistant Deputy Public
Defender, of counsel and on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Elizabeth M. Newton, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Carlos Ortiz appeals from a judgment of conviction entered
after a jury found him guilty of murder, assault, theft, and related weapons
offenses.
On appeal, defendant does not challenge the jury's finding that he fatally
strangled the victim, Rufina Castro, his former girlfriend. His contentions are
that the trial judge committed plain error when he failed to: 1) instruct the jury,
sua sponte, on the lesser-included offense of passion/provocation manslaughter;
2) incorporate the self-defense jury charge into each individual count; and 3)
preclude the admission of testimony in which Castro's son and daughter
identified defendant as her killer. He also asserts that his sentence to a term of
life imprisonment subject to an approximately sixty-four-year period of parole
ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, was
excessive. For the reasons that follow, we affirm in part, reverse defendant's
murder conviction, and remand for proceedings consistent with this opinion.
I.
The evidence adduced at trial, upon which the jury relied, consisted of
testimony from law enforcement officers, forensic experts, the victim's children,
and defendant. The facts established by that evidence are summarized as
follows.
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Defendant killed Castro on August 16, 2016. Police arrested him the next
day, and during an interview conducted in Spanish, which was later translated,
defendant stated he lived with Castro and her son for approximately a year. He
described Castro as having a drinking problem and acknowledged that he used
drugs regularly during their relationship.
Defendant admitted that he killed Castro after an argument and that he
"lost [his] mind at that moment." When describing the incident, defendant stated
he picked Castro up from work and drank with her at their home. Defendant
said they started arguing, which he said, "happened every day." While Castro
was putting beer in the refrigerator in their bedroom, she "called [defendant] a
motherfucker." Upset, defendant stated he hit Castro on the head with a "big"
beer bottle causing it to shatter. Castro then "threw herself against" defendant,
they "started to wrestle," and defendant "ended up hanging her" with a cell phone
cord. Defendant said Castro grabbed him and "hurt[]" him while they wrestled,
so he "had to fight with her, using the [phone] c[]ord until she let go of [him .]"
By the time he let go, defendant stated Castro "had already asphyxiated."
Defendant hid Castro's body by covering it with clothes. As he "was
covered in blood," defendant changed his clothes. Defendant then left to pick
up Castro's son and lied to him that Castro would be working late. Defendant
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also went to Castro's job and falsely stated to her manager that she would not be
coming in to work because she was in the hospital.
Defendant then returned to the home, took approximately $1000 from
Castro's purse, and drove to Newark to see his son from a previous relationship.
Defendant told his son that he got into an argument with Castro and confessed
that he killed her. His son rented a motel room for defendant where he was
arrested the following morning after Castro's body was discovered.
On August 23, 2017, a grand jury charged defendant with: first-degree
murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree possession of a
weapon for an unlawful purpose (glass bottle), N.J.S.A. 2C:39-4(d) (count
three); fourth-degree unlawful possession of a weapon (glass bottle), N.J.S.A.
2C:39-5(d) (count four); third-degree possession of a weapon for an unlawful
purpose (cell phone charging cord), N.J.S.A. 2C:39-4(d) (count five); fourth-
degree unlawful possession of a weapon (cell phone charging cord), N.J.S.A.
3C:39-5(d) (count six); and third-degree theft by unlawful taking, N.J.S.A.
2C:20-3(a) (count seven).
At trial, defendant's counsel claimed Castro's death "wasn't murder"
because defendant was "defending himself from an attack." Defendant's
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recorded statement to the police was played for the jury and an officer that
arrested defendant testified that he found alcohol, drugs, and Castro's jewelry
and bank card in the motel room. Another officer who photographed defendant
after his arrest testified that he only saw a few "faint scratch[s]" on his shoulder
and neck.
A forensic scientist with the State Police testified that Castro's DNA was
a "major contributor" of DNA found on defendant's shorts, a shard of glass, and
the cell phone cord. A forensic pathologist stated that Castro's cause of death
was "asphyxia due to compression of the neck" and explained that for
asphyxiation to cause death it would take "minutes," not seconds. She noted
that releasing pressure from strangulation immediately after loss of
consciousness would result in the victim regaining consciousness. The
pathologist also stated that Castro had several "skin scrapes and bruises" on her
face, neck, left shoulder, left leg, back left arm, back right forearm, right lower
back, and right ankle and "a laceration [that] was caused by a force" on the back
of her head.
Castro's daughter also testified and identified defendant when asked if she
"kn[e]w who murdered [her] mother." Castro's son testified similarly stating he
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believed defendant killed his mother. Castro's son also stated when defendant
picked him up defendant told him that his mother was at work.
During trial, the parties discussed the proposed jury instructions. The
court's initial draft, as circulated to the parties, included a passion/provocation
manslaughter charge. The State objected, claiming the charge was not required
based on defendant's statement to the police because "mere words are not
sufficient provocation." The court reserved on finalizing the charge until the
close of testimony so that it could "proceed accordingly based upon the
applicable case law [as to] what comes in and what doesn't come in."
Defendant testified at trial. Contrary to the version of the incident he
described in his recorded statement, defendant stated that Castro, not he, was
the aggressor. He testified that he was kneeling down and putting beer in the
refrigerator when Castro "began to say obscene words" that made him angry.
Castro then started the physical altercation while he had his back to her by
throwing a beer bottle at his direction causing the bottle to shatter. Defendant
testified that Castro, who was heavier than him, "call[ed him] a son of a bitch"
and then "jumped on top of [him]" while he was on his knees.
Defendant explained that he had a spinal injury in his lower back, which
resulted in metal placements in his neck and the need to walk with a prosthetic
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boot. He stated that Castro grabbed him by those metal "pieces" and "strangle[d
him]." When he tried to stand up from his kneeling position, Castro was on his
back and the two fell backwards. In the fall, Castro "hit her head on the window"
and let go of defendant. According to defendant, Castro then grabbed three
phone charging cords that she used to choke him.
In response, defendant stated he took a leather shoelace in the shape of a
noose that he used to put on his prosthetic boot, "threw it back" around Castro's
neck, and "[a]s [he] pulled[,] the noose tightened up." He stated that Castro then
passed out, after which he unsuccessfully attempted to resuscitate her. When
asked to explain the inconsistences between his trial testimony and his recorded
statement, defendant testified he provided the initial version of the incident to
the police to protect Castro's "good image of a mother" and so the incident would
not come out in the media, causing her children to suffer from people that "don't
understand the situation."
During the charge conference held on the record pursuant to Rule 1:8-
7(b), the court indicated it removed the passion/provocation instruction from the
jury charge because it found "the facts presented [do] not warrant[] such a
charge." Defendant's counsel did not object to the final charge, instead,
characterizing it as "satisfactory." In closing arguments, defendant's counsel
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again repeated defendant's theory of the case stating "August 16[] . . . wasn't
murder. [Defendant] was acting in self[-]defense."
As to first degree murder, the court instructed the jury in part that "[i]f
you determine that the State has proven beyond a reasonable doubt that the
defendant purposely or knowingly caused death or serious bodily injury
resulting in death[,] you must find the defendant guilty of murder." It also
explained as to self-defense that:
The State has the burden to prove to you beyond a
reasonable doubt that the defense of self[-]defense is
untrue. . . .
....
If the State does not satisfy this burden, . . . then it must
be resolved in favor of the defendant and you must
allow the claim of self[-]defense and acquit the
defendant.
With regard to the jury charge for possession of the phone charging cord
as a weapon for an unlawful purpose, the court instructed the jury that the State
had the burden to prove those elements and noted "[t]he defense . . . contends
that the defendant acted in self[-]defense when he used the cell phone charger
cord on the person of Rufina Castro." The court gave a similar self-defense
instruction on the possession of the glass bottle as a weapon for an unlawful
purpose.
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The jury found defendant guilty on all counts. During sentencing, the
court found applicable aggravating factors three, N.J.S.A. 2C:44-1(a)(3) ("The
risk that the defendant will commit another offense . . . ."); six, N.J.S.A. 2C:44-
1(a)(6) ("The extent of the defendant's prior criminal record and the seriousness
of the offenses of which the defendant has been convicted . . . ."); and nine,
N.J.S.A. 2C:44-1(a)(9) ("The need for deterring the defendant and others from
violating the law . . . .") and did not find any mitigating factors.
On appeal, defendant presents the following issues for our consideration:
I. IT WAS PLAIN ERROR NOT TO GIVE AN
INSTRUCTION ON PASSION-PROVOCATION
MANSLAUGHTER WHEN SELF-DEFENSE WAS
ALSO CHARGED. (Not Raised Below).
II. THE JURY INSTRUCTIONS ON SELF-DEFENSE
WERE NOT INCORPORATED INTO THE
INDIVIDUAL COUNTS AND WERE NOT
SPECIFICALLY TAILORED TO THE FACTS OF
THE CASE. (Not Raised Below).
III. IT WAS PLAIN ERROR TO ALLOW IMPROPER
OPINION TESTIMONY FROM THE VICTIM'S
SON AND DAUGHTER THAT THE
DEFENDANT HAD MURDERED OR KILLED
THEIR MOTHER.
IV. THE SENTENCING COURT ERRED BY
FAILING TO FIND MITIGATING FACTOR
[THREE], THAT THE DEFENDANT ACTED
UNDER STRONG PROVOCATION, DESPITE IT
BEING CLEARLY INDICATED BY THE
RECORD.
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II.
We first address defendant's argument that the trial judge committed plain
error by failing to charge passion/provocation manslaughter as a lesser-included
offense of murder. He maintains "the need for a passion/provocation
manslaughter charge was clearly indicated from the record" based on defendant's
trial testimony that "Castro called him a son of a bitch, jumped on his back,
clawed and hit on a spot on his neck where he was vulnerable, and started
choking him with a cell phone charger." We agree.
"When a defendant fails to object to an error or omission [about a jury
charge] 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.'" State v. Funderburg, 225 N.J. 66, 79 (2016)
(quoting R. 2:10-2). Reversal is warranted only where an error raises
"reasonable doubt . . . as to whether the error led the jury to a result it otherwise
might not have reached." Ibid. (alteration in original) (quoting State v. Jenkins,
178 N.J. 347, 361 (2004)). "The mere possibility of an unjust result is not
enough." Ibid. A jury instruction is particularly "crucial to the jury's
deliberations on the guilt of a criminal defendant," and "'[e]rrors [having a direct
impact] upon these sensitive areas of a criminal trial are poor candidates for
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rehabilitation' under the plain error theory." State v. Jordan, 147 N.J. 409, 422-
23 (1997) (quoting State v. Simon, 79 N.J. 191, 206 (1979)).
In its jury instructions, a "trial court must give 'a comprehensible
explanation of the questions that the jury must determine, including the law of
the case applicable to the facts that the jury may find.'" State v. Baum, 224 N.J.
147, 159 (2016) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)).
Accordingly, "the court has an 'independent duty . . . to ensure that the jurors
receive accurate instructions on the law as it pertains to the facts and issues of
each case, irrespective of the particular language suggested by either party.'"
Ibid. (alteration in original) (quoting State v. Reddish, 181 N.J. 553, 613
(2004)).
The rationale for imposing such an independent obligation on the trial
judge in this context is that "[n]o defendant should be convicted of a greater
crime or acquitted merely because the jury was precluded from considering a
lesser offense that is clearly indicated in the record." State v. Garron, 177 N.J.
147, 180 (2003). The danger of prejudice to a defendant that may result from a
trial judge's failure to charge a lesser-included offense to the jury is that "[w]here
one of the elements of the offense charged remains in doubt, but the defendant
is plainly guilty of some offense, the jury is likely to resolve its doubts in favor
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of conviction." State v. Sloane, 111 N.J. 293, 299 (1988) (emphasis removed)
(quoting Keeble v. United States, 412 U.S. 205, 212-13 (1973)).
As such, trial courts must "avoid presenting the jury with an 'all-or-
nothing' choice, a choice between convicting a defendant of an offense greater
than the one he committed and not convicting him at all despite his guilt of a
lesser offense." State v. Maloney, 216 N.J. 91, 113 (2013) (citing Garron, 177
N.J. at 180). Further, the trial court reviews the evidence "in the light most
favorable to defendant." State v. Bauman, 298 N.J. Super. 176, 198-99 (App.
Div. 1997) (citing State v. Galloway, 133 N.J. 631, 648 (1993); State v. Moore,
113 N.J. 239, 287 (1988)).
"[I]f parties do not request a lesser-included-offense charge, reviewing
courts 'apply a higher standard, requiring the unrequested charge to be "clearly
indicated" from the record.'" State v. Fowler, 239 N.J. 171, 188 (2019) (quoting
State v. Alexander, 233 N.J. 132, 143 (2018)); see also State v. Denofa, 187 N.J.
24, 42 (2006); N.J.S.A. 2C:1-8(e).1 As such:
1
This is to be distinguished from the invited error doctrine when a party on
appeal "request[s] the trial court to take a certain course of action, . . . then
condemn[s] the very procedure he sought and urged, claiming it to be error and
prejudicial." State v. Pontery, 19 N.J. 457, 471 (1955). "Ordinarily, we would
refuse to review this [type of] error . . . ." State v. Blanks, 313 N.J. Super. 55,
71 (1998) (citing Pontery, 19 N.J. at 471).
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The "clearly indicated" standard does not require trial
courts either to "scour the statutes to determine if there
are some uncharged offenses of which the defendant
may be guilty," . . . or "'to meticulously sift through the
entire record . . . to see if some combination of facts
and inferences might rationally sustain' a lesser charge"
. . . . Instead, the evidence supporting a lesser-included
charge must "jump[] off the page" to trigger a trial
court's duty to sua sponte instruct a jury on that charge.
[Alexander, 233 N.J. at 143 (third and fifth alterations
in original) (citations omitted).]
Passion/provocation manslaughter is a "well-established lesser-included
offense of murder." State v. Carrero, 229 N.J. 118, 129 (2017). A criminal
homicide may be considered manslaughter when "[a] homicide which would
otherwise be murder . . . is committed in the heat of passion resulting from a
reasonable provocation." N.J.S.A. 2C:11-4(b)(2). "Passion/provocation
manslaughter is an intentional homicide committed under extenuating
circumstances that mitigate the murder." State v. Robinson, 136 N.J. 476, 481
(1994). It "contains all the elements of murder except that the presence of
reasonable provocation, coupled with defendant's impassioned actions, establish
a lesser culpability." Id. at 482; see N.J.S.A. 2C:1-8(d)(3).
Four elements must be met for passion/provocation manslaughter: 1)
there must be adequate provocation; 2) "the defendant must not have had time
to cool off between the provocation and the slaying"; 3) the defendant must have
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been actually impassioned by the provocation; and 4) "the defendant must not
have actually cooled off before the slaying." Funderburg, 225 N.J. at 80
(quoting State v. Mauricio, 117 N.J. 402, 411 (1990)).
The first two elements are objective while the other two are subjective.
Carrero, 229 N.J. at 129. Accordingly, a court should decide whether there is
sufficient evidence of the first two elements. Ibid. "To warrant the
passion/provocation jury charge, the evidence must [clearly indicate] only the
first two elements; the subjective elements 'should usually be left to the jury to
determine.'" Ibid. (quoting Mauricio, 117 N.J. at 413).
As the Supreme Court has previously noted:
We emphasize that the actual reaction of the defendant
is not a consideration at this point in the analysis. It is
irrelevant at this stage whether the defendant in
question did in fact "lose his cool." Neither the trial
court in deciding whether to instruct the jury on the
offense nor the jury in determining whether the offense
of passion/provocation manslaughter applies should
consider at this point how the defendant in fact reacted
to the asserted provocation. Rather, both must limit the
focus to the nature and adequacy of the provocation
itself.
[Mauricio, 117 N.J. at 412.]
The element of adequate provocation is measured by whether "loss of self-
control is a reasonable reaction." State v. Foglia, 415 N.J. Super. 106, 126 (App.
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Div. 2010) (quoting Mauricio, 117 N.J. at 412). With regard to the first element,
"the provocation must be 'sufficient to arouse the passions of an ordinary
[person] beyond the power of his [or her] control.'" Carrero, 229 N.J. at 129
(alterations in original) (quoting Mauricio, 117 N.J. at 412). "The generally
accepted rule is that words alone, no matter how offensive or insulting, do not
constitute adequate provocation to reduce murder to manslaughter."
Funderburg, 225 N.J. at 80 (quoting State v. Crisantos, 102 N.J. 265, 274
(1986)). "Battery is . . . considered adequate provocation 'almost as a matter of
law'" and the element may also be satisfied by "the presence of a gun or knife."
Carrero, 229 N.J. at 129 (quoting Mauricio, 117 N.J. at 414).
In delineating the line between passion/provocation manslaughter and
self-defense, the Supreme Court has held:
If a defendant subjectively thinks that self-defense is
necessary but does not intend fatal injury, in either the
sense of knowledge or purpose, such evidence is
relevant to the State's case on that issue. If such a
defendant is aware that his or her acts create a risk of
serious harm but unreasonably disregards that risk,
then, if the essential elements of the crime are present,
the defendant can be found guilty of manslaughter as
defined by N.J.S.A. 2C:11-4[(a)] or [(b)], instead of
murder. In some circumstances the evidence may bear
upon the question of whether the defendant who
committed a homicide in the heat of passion was
reasonably provoked.
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[State v. Bowens, 108 N.J. 622, 641 (1987) (citation
omitted).]
Here, clear evidence existed in the record as to the elements of
passion/provocation manslaughter and it was, therefore, clear error not to so
charge the jury sua sponte. Defendant testified that Castro was the aggressor,
threw a beer bottle, assaulted him by jumping on his back, struck a vulnerable
area on his neck, and choked him with phone cords. That evidence objectively
constituted provocation without an adequate cooling off period. We draw no
conclusions on the persuasiveness of defendant's testimony but note our
obligation, like the trial court, was to determine whether the passion/provocation
charge was "clearly indicate[d]" by the record. In our view, the failure to charge
on the lesser included offense raises a reasonable doubt that "the error led the
jury to a result it otherwise might not have reached." Funderburg, 225 N.J. at
79.
The State relies on Crisantos, 102 N.J. at 280, and State v. Galicia, 210
N.J. 364 (2010), for the proposition that "[r]eviewing courts can consider the
'adequacy of the evidence of provocation and sufficiency of the evidence linking
provocation to the homicide.'" It also argues "[t]o find a passion provocation
charge, the jury would have had to not only discredit defendant's testimony
indicating that he was afraid the victim would strangle him, but then also credit
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his version of events that the victim threw the beer bottle at him, threatened him,
and choked him." In support, the State relies on factual inaccuracies throughout
the record to show defendant's testimony is unreliable and notes an instruction
on passion/provocation manslaughter "would have been inapposite with
defendant's theory at trial of self-defense." We find neither case dispositive on
the issue before us.
In Crisantos, a fifty-four-year-old inebriated victim was robbed and
murdered while heading home. 102 N.J. at 267. The State's evidence showed
that defendant and a second assailant attacked the victim, immobilized him by
breaking his ankle, and then robbed him. Ibid. When another person
approached, the attackers hid nearby. Ibid. After the person left to call the
police, the defendant and his accomplice jumped on top of the victim, stabbing
him repeatedly. Id. at 268. The defendant's account was that the victim
provoked a fight by calling them names and ethnic epithets and then began a
physical altercation during which he was stabbed. Id. at 268-69. Characterizing
defendant's version as a "gross mismatch, an older inebriated man against two
younger men, at least one armed with a knife," the court found no evidence of
passion or extreme emotional disturbance. Id. at 279-80.
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The defendant in Galicia, a spurned lover, killed his former boyfriend.
210 N.J. at 367-68. After a heated argument over possession of defendant's car,
defendant testified that the victim was the initial aggressor and the parties
engaged in a fist fight. Id. at 371-72. Defendant, however, then got into his car,
drove it at the victim, hit him with the car, and drove several blocks with the
victim on the car's hood resulting in the victim's eventual death. Ibid. The Court
found that at the time of the offense, there was inadequate provocation, as well
as a lack of evidence of "an absence of adequate cooling-off time." Id. at 385.
Specifically, the Court noted "the victim in this case did not die in a physical
altercation 'waged on equal terms'" because defendant "retreated to the safety of
a locked car that he owned and controlled" before "exercise[ing] that control to
drive in a manner that precipitated [the victim]'s death." Ibid. (quoting
Crisantos, 102 N.J. at 274).
Unlike in Crisantos, defendant testified that Castro was heavier than him
and that she escalated the physical altercation by attempting to strangle him.
These facts do not indicate a "gross mismatch" as in Crisantos where the
defendant escalated a physical altercation by resorting to stabbing the inebriated
victim with a knife.
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At trial, defendant testified that Castro went from jumping on his back and
hitting the metal plates in his neck to choking him with phone cords. Contrary
to the facts in Galicia, defendant's testimony, if believed, showed he was not in
a controlling position. Rather, his trial testimony stated a physical altercation
initiated by Castro "waged on equal terms." Crisantos, 102 N.J. at 274.
We also reject the State's position that, essentially, a reviewing court
should ignore defendant's testimony because of factual inaccuracies in the
record. As noted, when determining whether the trial record supports a jury
charge, we are to review the evidence "in the light most favorable to the
defendant." Bauman, 298 N.J. Super. at 198-99. Indeed, reviewing the
"adequacy of the evidence of provocation," Crisantos, 102 N.J. at 280, does not
permit us to make such credibility findings. Here, the passion/provocation
charge was apparent from defendant's trial testimony without requiring the court
to "meticulously sift[] through the entire record." Alexander, 233 N.J. at 143.
Further, although neither party substantively relies on Funderburg, 225
N.J. 66, we nonetheless discuss and distinguish that case from the facts
presented here. In Funderburg, defendant was charged with attempted murder
of his ex-partner's new boyfriend during a physical altercation in which
defendant stabbed the boyfriend. 225 N.J. at 69-70. Leading up to the stabbing,
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a chase ensued between defendant and the victim. Id. at 72-73. At trial, like
here, neither party requested the passion/provocation attempted manslaughter
charge to be included as a lesser offense to attempted murder. Id. at 75.
On appeal, we reversed and remanded for failure to deliver the
passion/provocation attempted manslaughter instruction. Ibid. The Supreme
Court reinstated defendant's conviction, finding "the facts . . . did not clearly
indicate that the objective elements of attempted passion/provocation
manslaughter were present." Id. at 82. It found that the altercation was not
threatening, despite a chase and "verbal sparring," and noted "there was a
disagreement among the witnesses about who first handled the knife that later
stabbed [the victim]." Ibid. The Court concluded even if the jury accepted that
the victim first held the knife against defendant, it "would at most support the
theory that [defendant] acted in self-defense." Ibid. As such, the Court did not
find the failure to sua sponte provide the instruction to be in error. Id. at 83-84.
Unlike in Funderburg, defendant's alleged "loss of self-control," Foglia,
415 N.J. Super. at 126, was, according to his trial testimony, in response to
Castro initiating a physical altercation who then escalated the situation by
choking defendant with the phone charging cords. The defendant in Funderburg
was responding to a verbal disagreement and non-threatening foot chase which,
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objectively, is not a situation where a loss of self-control would be a reasonable
reaction. 225 N.J. at 72-73.
Finally, since Funderburg, our Supreme Court has noted that regardless of
whether a "passion/provocation charge is inconsistent with defendant's theories
of self-defense," defendant may still be entitled to such a charge. Carrero, 229
N.J. at 121 (citing State v. Brent, 137 N.J. 107, 118 (1994)). Although decided
under the lesser rational basis test, Carrero plainly rejects the State's argument
that the trial court should overlook evidence that clearly indicates
passion/provocation simply because it would have been contrary to defendant's
self-defense theory. See also Blanks, 313 N.J. Super. at 70-72 (finding plain
error under the facts for the trial court to provide incorrect instructions on self -
defense and failing to provide any instructions on passion/provocation
manslaughter).
III.
Defendant next relies on State v. Coyle, 119 N.J. 194, 224 (1990), and
argues that the trial court's jury instructions on self-defense "failed to
incorporate the absence of self-defense into each of the substantive counts . . . ."
Additionally, defendant maintains that because he never testified that he used
the cell phone charging cord in self-defense, "[t]he factual inaccuracies in the
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version given by the judge could have caused the jurors to ignore self -defense
as it applied to all of the charges . . . ." We disagree.
As noted, we review a defendant's failure to object to an error in a jury
charge at trial under plain error. See Funderburg, 225 N.J. at 79. In determining
whether an alleged defect in a charge rises to the level of reversible error, the
alleged error must be "viewed in the totality of the entire charge, not in
isolation." State v. Chapland, 187 N.J. 275, 289 (2006); see also State v.
Figueroa, 190 N.J. 219, 246 (2007). "If the defendant does not object to the
charge at the time it is given, there is a presumption that the charge was not error
and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J.
157, 182 (2012).
Use of deadly force is justifiable if "the actor reasonably believes that such
force is necessary to protect himself against death or serious bodily harm."
N.J.S.A. 2C:3-4(b)(2). Such force is not justifiable, however, if defendant
provoked the harm. Ibid. Whether the defendant's belief was reasonable is
measured by what the jury, not the defendant, considers reasonable under an
objective standard. State v. Bess, 53 N.J. 10, 15-17 (1968); accord State v.
Handy, 215 N.J. 334, 356-57 (2013).
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We addressed the impact Coyle has on a trial court's obligation to provide
jury charges on self-defense and stated:
Citing [Coyle], defendant claims that the trial court
committed plain error by failing to refer to the
justifications of self-defense and defense of others in its
instructions on the elements of murder. Defendant's
reliance on Coyle is clearly misplaced. In Coyle, our
Supreme Court found defective an instruction that
foreclosed the jury from considering
passion/provocation manslaughter "unless it
determined that the State had failed to prove beyond a
reasonable doubt the offense of murder." [191 N.J.]
222. The jury here was not told to disregard evidence
of justification if it found the State had proven the
statutory elements of murder. To the contrary, the trial
court's charge clearly indicated to the jury that it was to
acquit defendant if it harbored a reasonable doubt that
the killing was justified by self-defense or defense of
others. We perceive no error—far less plain error. Cf.
State v. Harris, 141 N.J. 525, 556 (1995).
[State v. Bryant, 288 N.J. Super. 27, 40 (1996).]
In this case, the court's self-defense charge was not plainly erroneous.
Indeed, defendant concedes that the court's instruction on self-defense was
consistent with the Model Jury Charge. The court did not provide a defective
instruction that foreclosed the jury from considering self-defense "unless it
determined that the State had failed to prove beyond a reasonable doubt the
offense of murder." 119 N.J. at 222. Rather, the court explicitly instructed on
each element of murder and that "[t]he State has the burden to prove to you
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23
beyond a reasonable doubt that the defense of self[-]defense is untrue" and "[i]f
the State does not satisfy this burden, . . . then it must be resolved in favor of
the defendant and you must allow the claim of self[-]defense and acquit the
defendant."
Further, the court charged on self-defense as to each of the applicable
offenses. Defendant offers no explanation as to how the court's description of
self-defense on the possession of a weapon for an unlawful purpose charge
would have, as defendant posits, caused the jury to ignore the court's correct and
clear instructions on self-defense. See Bryant, 288 N.J. Super. at 37-39 (finding
no indication that defendant was prejudiced when defendant "conced[ed] that
the trial court's instruction was a correct statement of the law, . . . [but] claim[ed]
that it was prejudicial in the context of the facts presented"). Defendant's
position also ignores his recorded statement regarding his use of the phone
charging cords. We are satisfied upon a review of the charge as a whole that the
court's self-defense charge was proper.
IV.
Defendant further argues the testimony of Castro's son and daughter
identifying defendant as Castro's murderer were "unfounded and irrelevant
opinions on [defendant]'s guilt" in violation of N.J.R.E. 701 as they did not have
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24
firsthand knowledge of the killing. He contends this testimony "had the clear
capacity to produce an unjust result" because it "could have influenced the
credibility of the State's remaining witnesses." Although defendant concedes he
did not object to the testimony as a violation of N.J.R.E. 701, he argues the trial
court should have independently instructed the jury to disregard the testimony.
We address this issue because it could serve as an independent basis to reverse
the jury's verdict and also to provide guidance with regard to any future trial
proceeding.
Failure to object to testimony "signif[ies] that in the atmosphere of the
trial [that defendant] did not believe [he] was prejudiced by this testimony."
State v. Engel, 249 N.J. Super. 336, 376 (App. Div. 1991) (citing State v. Marks,
201 N.J. Super. 514, 534 (App. Div. 1985)). Conclusory remarks by witnesses
that would have been "better left unsaid" do not warrant reversal if it "did not
have the capacity to sway the jury." Id. at 374. Even "significant errors" by a
trial court can be insufficient to "tip the scales" if "evaluated in light of the vast
evidence against defendant . . . ." State v. Prall, 231 N.J. 567, 588 (2018) (citing
State v. Daniels, 182 N.J. 80, 95 (2004); State v. Marrero, 148 N.J. 469, 497
(1997)).
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Lay opinion testimony is permitted when it is "rationally based on the
perception of the witness" and "will assist in understanding the witness'
testimony or in determining a fact in issue." N.J.R.E. 701. Lay opinion
testimony "is not a vehicle for offering the view of the witness about a series of
facts that the jury can evaluate for itself or an opportunity to express a view on
guilt or innocence." State v. McLean, 205 N.J. 438, 462 (2011). "[T]estimony
in the form of an opinion, whether offered by a lay or an expert witness, is only
permitted if it will assist the jury in performing its function." Ibid. "The [Rule]
does not permit a witness to offer a lay opinion on a matter . . . as to which the
jury is as competent as he to form a conclusion . . . ." Id. at 459 (internal
quotation marks and citation omitted).
Here, defendant did not object to the testimony of Castro's children for
lack of foundation and, therefore, we review the issue under the plain error
standard. Engel, 249 N.J. Super. at 376. Even were we to assume the testimony
of Castro's children violated N.J.R.E. 701, defendant has failed to exhibit the
errors had "the capacity to sway the jury." Engel, 249 N.J. Super. at 374.
Indeed, defendant argued that he killed Castro in self-defense and the issue of
his identity was not in dispute but rather his degree of culpability. Based on our
review of the record as a whole, we conclude the testimony of Castro's children
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26
did not "tip the scales" against defendant such that the interests of justice require
reversal. Prall, 231 N.J. at 588; see also, e.g., State v. Hightower, 120 N.J. 378,
410 (1990) (holding "the strength of the State's case, the length of the trial, and
the number of witnesses called" made a sergeant's testimony that defendant "was
the person responsible for the murder" harmless error). On remand, however,
the parties should refrain from eliciting testimony contrary to of the Rules of
Evidence.
V.
In light of our decision reversing defendant's murder conviction and
remanding the matter for further proceedings, we do not address defendant's
final point that his sentence was excessive. Finally, to the extent we have not
addressed any of the parties' arguments, it is because we have concluded that
they are without sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed in part, reversed in part, and remanded for proceedings
consistent with this opinion. We do not retain jurisdiction.
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