STATE OF NEW JERSEY VS. JAMES A. STUARTÂ (13-09-0949, GLOUCESTER COUNTY AND STATEWIDE)

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APPROVAL OF THE APPELLATE DIVISION
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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-3262-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES A. STUART,
Defendant-Appellant.
________________________________
Submitted May 3, 2017 – Decided August 3, 2017
Before Judges Accurso, Manahan and Lisa.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Indictment
No. 13-09-0949.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stefan Van Jura, Deputy Public
Defender, of counsel and on the brief).
Sean F. Dalton, Gloucester County Prosecutor,
attorney for respondent (Douglas B. Pagenkopf,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant James A. Stuart was charged in a four-count
indictment with two counts of murder, one count of aggravated
manslaughter, and one count of possessing a firearm with the
purpose of using it unlawfully against the person or property of
another. These counts arose out of an incident in which there was
only one victim, David Compton, who was killed by a single gunshot
wound to his head. More specifically, the indictment charged:
Count One, purposeful murder, N.J.S.A. 2C:11-3a(1); Count Two,
knowing murder, N.J.S.A. 2C:11-3a(2); Count Three, aggravated
manslaughter, N.J.S.A. 2C:11-4a; and Count Four, possession of a
firearm with purpose to use it unlawfully against the person or
property of another, N.J.S.A. 2C:39-4a. The jury acquitted
defendant of Counts One and Four, and convicted him of Counts Two
and Three. Accordingly, the jury found defendant guilty of both
murder and aggravated manslaughter for this single homicidal act
against a single victim. After merging Count Three with Count
Two, the judge sentenced defendant to thirty years imprisonment
with thirty years parole ineligibility, the minimum allowable
sentence for murder. See N.J.S.A. 2C:11-3b(1).
Defendant raises the following points on appeal:
POINT I
DUE PROCESS REQUIRES THE KNOWING MURDER AND
AGGRAVATED MANSLAUGHTER CONVICTIONS TO BE
REVERSED. THERE WAS ONLY A SINGLE VICTIM, YET
AN ERRONEOUS JURY INSTRUCTION PERMITTED THE
JURY TO CONVICT ON BOTH OFFENSES. THE
REQUISITE MENTAL STATES ARE IRRECONCILABLE AND
THERE IS NO PRINCIPLED BASIS TO ELEVATE ONE
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CONVICTION OVER THE OTHER. (Not Raised
Below).
POINT II
THE TRIAL COURT ERRED IN ITS FAILURE TO CHARGE
THE MISTAKE OF FACT DEFENSE. (Not Raised
Below).
POINT III
THE TRIAL COURT ERRED IN ITS FAILURE TO CHARGE
THE INTOXICATION DEFENSE. (Not Raised Below).
POINT IV
THE COURT ERRED IN DENYING DEFENDANT'S MOTIONS
FOR A JUDGMENT OF ACQUITTAL OF THE MURDER
CHARGES AND FOR A NEW TRIAL.
POINT V
THE AGGRAVATED MANSLAUGHTER CONVICTION SHOULD
BE REVERSED BECAUSE THE STATE'S IMPROPER
ARGUMENT ELEVATED DEFENDANT'S STANDARD OF CARE
ABOVE THE OBJECTIVE REASONABLE PERSON
STANDARD, WHICH, BY DEFNITION, ESTABLISHES THE
FLOOR OF RECKLESS CONDUCT. (Not Raised
Below).
POINT VI
THE CUMULATIVE EFFECT OF THE TRIAL ERRORS
DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS AND
A FAIR TRIAL, AND WARRANTS REVERSAL. (Not
Raised Below).
We agree with Points I and II. We conclude that the failure
to charge the jury to consider the homicide counts sequentially
and failure to charge the defense of mistake of fact constituted
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plain error which was not harmless. Accordingly, we reverse and
remand for a new trial as to Counts Two and Three.
I.
The homicide occurred on January 5, 2013. Defendant was a
Deptford Township police officer at that time. Defendant and
Compton were close personal friends, a friendship that dated back
to their high school days about ten years earlier. The relevant
factual circumstances can be divided, for purposes of analysis,
into three parts: the events leading up to the time defendant and
Compton were alone in defendant's house, which is where the
homicidal act occurred; the activities and interactions of
defendant and Compton during the hours they were alone in his
house, including the shooting; and the events in the immediate
aftermath of the shooting. All were relevant to the jury's
assessment of defendant's guilt or innocence on the various charges
presented to them.
The first set of events are not in dispute. Defendant worked
a midnight shift, ending at about 6:30 a.m. on January 4, 2013.
He went home and slept for a few hours, woke up and had lunch, and
remained in his home, where he lived alone. By prior arrangement,
defendant, Compton, and three other men, all of whom were friends
of each other, planned to meet that night at a local bar. At
about 9:00 p.m., Compton arrived at defendant's house. They
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watched television together, and, at about 11:00 p.m., Compton
drove himself and defendant to the bar. As planned, they met up
there with their friends. The five friends remained at the bar
until its 2:00 a.m. closing time. They enjoyed their evening,
dancing with some women at the bar, conversing, and, of course,
consuming some alcohol. Defendant contended that he drank about
four beers during the four hours at the bar, and one shot of
liquor.
At trial, defendant testified that he and Compton had no
disagreements or disputes of any kind during their time together
that evening, including at the bar. The other three men all
testified to the same effect with respect to the bar. A
surveillance video at the bar was played during trial, which
further confirmed there were no disputes between any of the men,
including between defendant and Compton.
When the bar closed, the other three men went to a nearby
diner. Defendant and Compton went to defendant's house, where it
was their intention to watch a movie, "Dredd," on Compton's
computer through a website. En route from the bar to defendant's
house, the two men stopped at a convenience store for food.
Defendant again testified there was no dispute between the men at
that time, and the surveillance video from the convenience store,
played at trial, confirmed that fact.
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The lead investigator in the case, Detective John Petroski
of the Gloucester County Prosecutor's Office, confirmed in his
trial testimony that the surveillance videos from the bar and the
convenience store did not show any evidence of a conflict between
defendant and Compton. Indeed, defendant, Compton, and several
other friends were scheduled to take a cruise together the
following week.
The next set of events pertain to the activities at
defendant's house from the time they arrived there until the
shooting that occurred shortly before 5:00 a.m. At trial,
defendant gave a detailed account of his version of what
transpired. Some of what he said was corroborated by physical
evidence later found at the scene; some was not. Of course, the
jury's assessment of defendant's credibility regarding these
critical events was essential to their assessment of his
culpability. It is not disputed that he fired the shot that killed
Compton.
According to defendant, he and Compton had trouble getting
the movie to play on defendant's television. They finally
succeeded in making the necessary connection to defendant's
computer and began to watch the movie at about 3:30 a.m. Defendant
and Compton sat on opposite ends of the L-shaped couch, with
defendant on the left side and Compton on the right. According
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to defendant, during the entire time at his house, after returning
from the bar, he consumed one or two beers and a large glass of
scotch. He said Compton had one beer at his house.
Defendant carried his off-duty weapon, a Glock .27 handgun,
in an ankle holster. He said that when he sat back to watch the
movie and propped his leg up to relax, the ankle holster became
uncomfortable and he removed it. The gun was loaded with a total
of eleven rounds, nine in the magazine, one in the magazine
extender, and one in the chamber. Defendant said he placed the
holster containing the loaded gun beside himself on the couch.
According to defendant, Compton inquired about the gun.
Apparently, Compton was unfamiliar with guns and had not had any
personal experience with them. He wanted to know how the gun
worked and wanted to handle it. Defendant said he took all of the
steps required to render the gun safe. After removing it from the
holster, he pointed it to the side, removed the magazine, racked
the slide back to eject the round from the chamber, and visually
and physically ensured there were no rounds in the gun. He then
"dry fired" it a couple of times, pointing it to the side. The
expelled round had fallen on the floor and defendant said he placed
it in a standing up position on the end table next to him. He
said he placed the magazine on the couch near where he was sitting.
He then allowed Compton to handle the gun.
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The movie they were watching was an action film with a lot
of shooting in it. Compton was using the gun to pretend he was
shooting the bad guys in the movie, by dry firing it at the
television. At some point, Compton told defendant he was surprised
at how hard it was to pull the trigger, something he did not
expect. Defendant told him that of the three guns he had, the
Glock .27 had a lighter trigger pull than the other two, an old
revolver and his duty weapon, a Glock .22. Compton asked if he
could see those two guns to compare trigger pulls. Defendant
agreed.
He left Compton alone in the living room, leaving behind the
ammunition as well as the gun that Compton was handling, and went
upstairs to his bedroom to get the other two guns from the lockbox
in which he kept them. He said he had no bullets for the revolver,
and he had never had any, because he had bought that gun as a
collector's item and never used it for actual firing. Defendant
said that while still upstairs, he rendered the Glock .22 safe in
the same manner as he had done previously with the Glock .27. He
said he left the loaded magazine and the round that was ejected
from the chamber in the lockbox. He then returned to the living
room with both guns.
Defendant said that when he returned, the Glock .27 appeared
to be in the same area where defendant had previously left it. He
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allowed Compton to handle the other two guns and dry fire them.
From time to time, defendant left the living room to use the
bathroom or to get another drink, always leaving the live
ammunition along with the three guns in the living room while
Compton was there alone.
At some point during the movie, Compton asked defendant how
to reload a gun. Defendant said he explained how it would be done
but did not actually demonstrate it. Defendant drifted off to
sleep. He is not sure how long he slept, but did not believe it
was very long. He said he was awakened by a loud sequence in the
movie, and when he woke up, Compton was laughing at him because
he had fallen asleep.
Defendant said he reached for the Glock .27 at his side,
observing that the magazine was still outside the weapon and in
the same location where it had previously been on the couch. He
was sitting about six feet from where Compton was sitting on the
other end of the couch. He said he intended to dry fire at the
"bad guys" in the movie, and as he began to pull the trigger,
Compton said something that caused him to instinctively turn toward
Compton. Defendant said as he did so, he was in the process of
completing his trigger pull. He heard a loud boom and "didn't
know what happened." He later surmised that as he was turning
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toward Compton the direction of the gun also turned toward him and
the shot struck Compton in the cheek.
Then, in the immediate aftermath of the shooting, these events
occurred. Upon hearing the loud noise, defendant said he jumped
out of his chair and banged into a nearby table causing his glass
of scotch to break. He dropped the gun and tried to determine
what happened. According to him, he was not aware at that time
that he had fired the gun he was holding and did not know if
somehow one of the other guns had gone off. His first thought was
that if he had fired the gun he was holding "there's going to be
a hole in my TV now if it was that gun." He looked to see if
there was a spark or other damage to his television. He then
realized that Compton should have been "freaking out" like he was,
but he "didn't hear anything from [him]." Defendant then turned
toward Compton and saw a small hole and blood coming from his
cheek.
Defendant said he immediately attempted to provide first aid
by placing his hand on Compton's cheek to stop the bleeding. He
then ran into the kitchen and got some paper towels. On his way
back to the living room, he grabbed his cell phone. He said while
keeping one hand on Compton's cheek with the paper towels, and
holding the phone with the other hand, he called a direct line to
County Dispatch that was programmed into his phone.
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Defendant said he chose to call that number rather than 911
because, in his estimation, it was the quickest way to get
emergency assistance. He said he was aware that 911 calls are
sometimes misdirected. Even more specifically, he said that his
home is in Deptford Township, but has a Wenonah address, and is
also very close to another neighboring community, Woodbury
Heights.
The recording of the call was played twice for the jury, once
during the State's case and once during defendant's. The recording
revealed that defendant immediately identified himself as a police
officer by badge number and that he requested an ambulance for a
man who was shot. When asked what happened, defendant said: "we
had a, a, a man, he was ah playing with a weapon, it was loaded
and ah he, there was a shot fired." He said the man was shot in
the cheek, and he said he was putting pressure on his cheek at
that time. The dispatcher asked whether this was a family member,
and defendant responded that it was "a friend."
Another dispatcher then got on the line and asked defendant
how it happened, to which defendant replied: "Ah he was, he was
playing with one of my weapons, I, I don't know how it happened,
I don't know." This dispatcher then instructed defendant to go
and get a clean towel and hold it with pressure on the wound.
Defendant apparently went and got a towel and told the dispatcher
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he had done so and was holding it on Compton's wound. The
dispatcher then told defendant an ambulance was on its way. The
call ended at that point.
The dispatcher then called Sergeant Edward Kiermeier of the
Deptford Township Police Department to confirm that the call was
not a prank. The first dispatcher, Patricia Warlow, "wanted to
make sure that before [she] put it out over the radio that the
guys weren't messing and saying, he said that his friend shot
himself in the cheek." Kiermeier said he and other officers would
immediately go to defendant's home and asked Warlow to hold off
on broadcasting the call.
At trial, Warlow testified that she was unsure whether the
caller was sincere because the tone of his voice was "too quiet
and [a] whisper. There was no urgency in the call like I previously
had with other gunshot calls." However, Warlow acknowledged that
it is often difficult to hear clearly the voice coming in, and
indicated this might have been the situation when defendant said
he was putting pressure on Compton's cheek. She also acknowledged
that the other dispatcher on the call, Elliott Davis, did not
think it sounded like the caller was kidding. Indeed, in the
recording of the call with Kiermeier, Davis said: "It doesn't
sound like he's joking around at all." Davis did not testify at
trial.
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The recording of these calls confirmed that the movie was
still playing and could be heard in the background. Defendant
said that at one point during his conversation with the
dispatchers, he put the phone on speaker to enable him to better
tend to Compton.
Defendant further testified that, after the emergency call
ended, he took it upon himself to do something other than continue
tending to Compton while waiting for emergency personnel to arrive.
He said he was aware from his police experience that emergency
personnel would not enter a residence if it contained unsecured
firearms. Instead, they would wait outside for police officers
to arrive to clear the scene. For this reason, he said he felt
there was not much he could do for Compton at that time, so he
racked the slide back on the Glock .27, placed its magazine in the
gun and ran to his bedroom with that gun in his bloody right hand
and the other two guns in his clean left hand. His reason for
placing the magazine in the Glock .27 was to make it easier to
carry all three guns at once. He placed the Glock .27 on top of
his bedroom dresser, and placed the Glock .22 and revolver in the
lockbox, which he then closed. He said he wiped the blood from
his hand on his jeans and then ran back downstairs to Compton. He
said it appeared that Compton was choking on his own blood and he
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began to reposition him on his side. At that time, the police
arrived.
Kiermeier said he was notified at about 5:01 a.m. that County
Dispatch had received a potential prank call and he personally
went to the location. He arrived at defendant's home at 5:07 a.m.
Two other officers arrived at the same time in separate vehicles.
Defendant opened the door for Kiermeier, who saw Compton lying
upright on the couch. He was unconscious and unresponsive, but
was breathing and had a pulse. There was a cloth towel and paper
towels beside him. Kiermeier asked defendant where the weapons
were and what happened. Defendant replied that the weapons were
in a safe upstairs.
On Kiermeier's instructions, one of the other officers
removed defendant from the home and stayed with him in the
backyard. Kiermeier said defendant appeared to be in a state of
shock, looking like he was "in a complete daze." He said he "kept
on asking [defendant], 'What happened? Did he shoot himself? Did
you shoot him?'" Kiermeier continued that he believed defendant
said "I don't know." On cross-examination, Kiermeier acknowledged
that defendant had not simply stated that he had no idea what
happened, but said "[h]is friend was shot by accident."
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Paramedics arrived at 5:09 a.m. They removed Compton from
the scene at 5:35 a.m. and transported him by ambulance to a
hospital, where he died six days later from the gunshot wound.
There was considerable testimony from various witnesses
regarding the conditions at defendant's house after the shooting.
The living room was messy. Different witnesses described it
differently. It was acknowledged that some of the mess may have
occurred through the activities of the paramedics. Defendant
testified that he is not a particularly good housekeeper.
Kiermeier said it was "kind of messy," and looked to him like a
"frat house." The significance of this testimony is that it could
have supported an inference that defendant and Compton had engaged
in a physical altercation of some sort.
Further, the prosecutor argued that some of defendant's
testimony was incredible. For example, his decision to remove the
guns from the living room not only was contrary to police training
not to disturb the scene of a potential crime, but could not have
really been accomplished in the manner defendant described. The
guns in the lockbox, namely his duty weapon and the revolver, were
in the same location as they would normally be. The Glock .22 was
fully loaded, yet there was no blood in the closet, no blood on
the safe, no blood on the duty weapon or its magazine, or on the
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revolver. The prosecutor argued that this scenario defied
credulity:
Now remember: When he took it out of the
safe, he says initially there was one in the
chamber and the magazine was separate. So he
ejected the live round and left it in the safe,
the lock box. That's his testimony. He would
have had to go back up, one-handed, with two
guns in his hand, put the guns -- open the
safe, or he said he left the safe open. Put
the guns in. He would have -- to get the gun
the way that it was found, he would have had
to reload it, rack it, and drop the magazine
out again to put one in the chamber. Because
when we found that gun in the safe, there was
one in the chamber. He did all that with one
hand and never got any blood on anything?
This argument calls into question defendant's entire story
about bringing the extra guns downstairs because Compton wanted
to see them and compare the trigger pulls and about the dry firing
at the bad guys in the movie, leading up to the live shot that
killed Compton.
As to that shot, the prosecutor suggested it was unlikely
that Compton would have attempted to load the gun on his own, and
the defense suggestion that Compton did so while defendant had
dozed off was also not believable. The prosecutor demonstrated
to the jury the difficulty and noise that would be attendant to
placing one round in the chamber of the Glock .27. She said:
He would have had to put the magazine in.
Rack the slide back, and then eject the
magazine and put it down and put this in the
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exact same location where it was without the
defendant waking up or knowing what he was
doing.
Now, he said that there was a movie
playing in the background. And yes, you can
hear it on parts of the dispatch tape. It's
not very loud, though. So he didn't hear the
slide being racked. He didn't hear the
magazine clicking, nothing.
And David would have had to, again, load
it, rack it, drop the magazine out -- that
would've kept one in the chamber, and then the
magazine come out -- put it right back where
it was.
The State also emphasized at trial, and continues to argue,
that defendant's initial call to County Dispatch is significant
in that he was concealing any level of culpability. He chose his
words very carefully to make it sound as though the victim had
accidentally shot himself. The State also points out that the
evidence revealed a slightly downward trajectory to the bullet
wound, which is inconsistent with defendant's testimony that he
was sitting on the couch at the same level as Compton, when the
shot was fired. This evidence could suggest that defendant was
standing when he fired the shot.
Without dispute, defendant had been consuming alcohol in the
hours prior to the shooting. A blood draw of defendant at 8:42
a.m., about four hours after the shooting, revealed a blood alcohol
content of .144 percent. The State did not produce expert
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testimony in an effort to extrapolate from this result what
defendant's blood alcohol content would have been at the time of
the shooting. Instead, the State simply pointed out that
defendant's blood alcohol level was far above the .08 percent
level at which driving a motor vehicle is prohibited.
Ballistics testimony established that the shot was fired from
at least five and one-half feet away from Compton. This is
consistent with defendant's testimony that he was sitting about
six feet away from Compton when the shot was fired.
The Glock .27, covered in blood, was found on defendant's
dresser in his upstairs bedroom. It contained a magazine loaded
with nine bullets and none in the chamber. It was "locked to the
rear." Because the Glock .27 could hold a total of eleven rounds,
the other two had to be accounted for. One was accounted for by
an empty shell casing found in the living room, and the other was
a live round found on or near the table where defendant said he
had placed it when he first rendered the gun safe. The evidence
established that if the gun would have been fired with the magazine
in it, another live round would have automatically been fed into
the chamber. When the gun was recovered from defendant's dresser,
there was not a bullet in the chamber. Thus, at least to some
extent, these circumstances were consistent with defendant's
version of the events.
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Throughout his testimony, both on direct and cross-
examination, defendant repeatedly insisted that he was 100% sure
the Glock .27 was safe. He did not believe his friend would ever
have attempted to load the gun after defendant had initially made
it safe. However, in hindsight, he surmised that Compton must
have loaded it while defendant was sleeping. This was his entire
defense to any homicide charges, whether murder, aggravated
manslaughter, or reckless manslaughter. Defendant steadfastly
insisted that he would have never pulled the trigger of the Glock
.27 if he had any reason to believe or suspect that it was loaded.
In her summation, the prosecutor made strong arguments as to
how the evidence constituted proof of defendant's recklessness.
She mentioned the murder charges only briefly and did not dwell
upon how the evidence supported proof of either purposeful or
knowing murder. She referred to the allowable permissive inference
that a jury could draw from the use of a deadly weapon in killing
another that it was the perpetrator's purpose to take the victim's
life or cause serious bodily injury resulting in death. Indeed,
the prosecutor concluded her summation by urging the jury "to
please find him guilty of at least aggravated manslaughter."
When faced with motions for acquittal of murder, both at the
end of the State's case and at the conclusion of all the evidence,
the trial court noted that this was an extremely close case, closer
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than any he had ever seen or heard of before. However, he concluded
that there was sufficient evidence upon which a jury could
reasonably convict defendant of murder, and he denied the motions.
II.
Defendant contends in Point I that his murder and aggravated
manslaughter convictions are fatally irreconcilable and resulted
from erroneous jury instructions on the homicide charges. More
particularly, defendant argues that the trial court erred by
permitting the jury to render verdicts on incompatible theories
of culpability for commission of a homicide and that the jury did,
in fact, find that defendant acted with two mutually exclusive
states of mind in killing Compton. Defendant argues that, in the
circumstances of this case, there is no sound basis to favor one
conviction over the other and due process requires that both
convictions be vacated.
At the charge conference, the court reviewed with counsel its
proposed jury instructions. The charge instructed the jurors to
render its verdict on Count One, purposeful murder. Then, whether
guilty or not, the jury was instructed to render its verdict on
Count Two, knowing murder. Then, again whether guilty or not, to
render its verdict on Count Three, aggravated manslaughter.
Finally, with respect to the homicide charges, the jurors would
be instructed that if they found defendant guilty of aggravated
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manslaughter, they should skip the next question, pertaining to
reckless manslaughter, and go on to their consideration of Count
Four. If, however, they found defendant not guilty of aggravated
manslaughter, they would be instructed to consider and decide
whether defendant should be found guilty or not guilty of the
lesser-included offense of reckless manslaughter. The proposed
jury verdict sheet was set up accordingly. Neither counsel
objected to these provisions in the jury instructions or on the
verdict sheet. The instructions were thus given, and, as we have
stated, the jury found defendant not guilty of purposeful murder,
but guilty of both knowing murder and reckless manslaughter.
Defendant now argues, for the first time on appeal, that
these instructions were erroneous as they failed to direct the
jury to render its verdict in sequence, first on the murder
charges1, to consider aggravated manslaughter only if defendant
were found not guilty of murder, and likewise, to consider reckless
manslaughter only if they found defendant not guilty of aggravated
1
The prevailing practice is to combine knowing or purposeful
murder in a single count of an indictment. After being instructed
on both forms of murder, jurors are then further instructed that
they do not have to agree unanimously as to which form of murder
is present, as long as they all believe it was one form of murder
or the other. Model Jury Charge (Criminal), "Murder and
Aggravated/Reckless Manslaughter" (2011).
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manslaughter. Defendant argues this is plain error which deprived
him of a fair trial.
In Point II, defendant argues that the trial court also
committed plain error in failing to charge the mistake of fact
defense. At the charge conference, this potential instruction was
never discussed. Defense counsel never requested it, and the
court did not give it. Defendant's entire defense was predicated
upon his unyielding assertion that he was certain, in his own
mind, that the Glock .27 was unloaded, and that otherwise, he
would not have been dry firing it at the television and would not
have tragically pivoted towards Compton in response to Compton's
voice. Defendant argues that "[r]eversal of the murder and
aggravated manslaughter convictions should be ordered because this
failure deprived defendant of a fair trial," citing U.S. Const.
amends. V and XIV, and N.J. Const. art. I, ¶ 10.
Defendant asserts that either of these plain errors in the
jury instructions constitute, individually, a basis for reversal.
Obviously, defendant also argues that the cumulative effect of
both errors adds greater weight to the need for reversal. We
agree with defendant.
Jury instructions not objected to at trial are reviewed for
plain error. State v. McKinney, 223 N.J. 475, 494 (2015). We
will only reverse if that error was "clearly capable of producing
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an unjust result." R. 2:10-2; State v. Adams, 194 N.J. 186, 207
(2008). Our Supreme Court has established that
[i]n the context of jury instructions, plain
error is "[l]egal impropriety in the charge
prejudicially affecting the substantial
rights of the defendant and sufficiently
grievous to justify notice by the reviewing
court and to convince the court that of itself
the error possessed a clear capacity to bring
about an unjust result."
[State v. Camacho, 218 N.J. 533, 554 (2014)
(second alteration in original) (quoting State
v. Adams, 194 N.J. 186, 207 (2008)).]
An unjust result arises when the error raises a reasonable doubt
as to whether the jury was led to a result it might not otherwise
have reached. State v. Taffaro, 195 N.J. 442, 454 (2008).
The court must not look at portions of the charge alleged to
be erroneous in isolation; rather, "the charge should be examined
as a whole to determine its overall effect," State v. Jordan, 147
N.J. 409, 422 (1997) (quoting State v. Wilbely, 63 N.J. 420, 422
(1973)), and "whether the challenged language was misleading or
ambiguous," State v. Nelson, 173 N.J. 417, 447 (2002) (citing
State v. Simon, 161 N.J. 416, 477 (1999)).
"An essential ingredient of a fair trial is that a jury
receive adequate and understandable instructions." State v.
Afanador, 151 N.J. 41, 54 (1997). Jury instructions have been
described as "a road map to guide the jury, and without an
23 A-3262-15T4
appropriate charge a jury can take a wrong turn in its
deliberations." State v. Martin, 119 N.J. 2, 15 (1990). The
judge "should explain to the jury in an understandable fashion its
function in relation to the legal issues involved." State v.
Green, 86 N.J. 281, 287 (1981). The trial judge must deliver "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." Id. at 287-88. The trial judge must
"instruct the jury as to the fundamental principles of law which
control the case . . . [including] the definition of [the] crime,
the commission of which is basic to the prosecution against the
defendant." Id. at 288 (quoting State v. Butler, 27 N.J. 560, 595
(1958)).
"Because proper jury instructions are essential to a fair
trial, 'erroneous instructions on material points are presumed to'
possess the capacity to unfairly prejudice the defendant." State
v. Bunch, 180 N.J. 534, 541-42 (2004) (quoting Nelson, supra, 173
N.J. at 446). See also Jordan, supra, 147 N.J. at 422 (holding
that some jury instructions are "so crucial to the jury's
deliberations on the guilt of a criminal defendant that errors in
those instructions are presumed to be reversible."). Therefore,
"[e]rroneous instructions are poor candidates for rehabilitation
24 A-3262-15T4
as harmless, and are ordinarily presumed to be reversible
error." Afanador, supra, 151 N.J. at 54.
"This requirement of a charge on a fundamental matter is more
critical in a criminal case when a person's liberty is at stake."
Green, supra, 86 N.J. at 289. "The key to finding harmless error
in such cases is the isolated nature of the transgression and the
fact that a correct definition of the law on the same charge is
found elsewhere in the court's instructions." State v. Sette, 259
N.J. Super. 156, 190-91 (App. Div.), certif. denied, 130 N.J. 597
(1992).
Because defendant was acquitted of purposeful murder, he
cannot be retried for that offense under double jeopardy
principles. We therefore limit our discussion to knowing murder.
To prove a defendant guilty of knowing murder, the State must
prove beyond a reasonable doubt that the defendant caused the
victim's death or serious bodily injury that resulted in the
victim's death, and did so knowingly. N.J.S.A. 2C:11-3a(2). "A
person acts knowingly with respect to a result of his conduct if
he is aware that it is practically certain that his conduct will
cause such a result." N.J.S.A. 2C:2-2b(2). Thus, the State was
required to prove that defendant was aware that his conduct
(pulling the trigger while the gun was pointed at Compton) would
kill Compton or cause serious bodily injury resulting in death.
25 A-3262-15T4
On the other hand, as relevant here, a defendant commits
aggravated manslaughter if he "recklessly causes death under
circumstances manifesting extreme indifference to human life."
N.J.S.A. 2C:11-4a(1). "A person acts recklessly with respect to
a material element of an offense when he consciously disregards a
substantial and unjustifiable risk that the material element
exists or will result from his conduct." N.J.S.A. 2C:2-2b(3).
Thus, for defendant to be convicted of aggravated manslaughter,
the State was required to prove beyond a reasonable doubt that he
acted recklessly, namely that he consciously disregarded a
substantial and unjustifiable risk that his conduct would cause
Compton's death or serious bodily injury resulting in death.
Thus, knowing murder requires not only awareness, but a
practical certainty that defendant's conduct would cause death or
serious bodily injury resulting in death, whereas manslaughter
involves only a conscious disregard of a substantial and
unjustifiable risk of death. State v. Breakiron, 108 N.J. 591,
605 (1987). See also State v. Wilder, 193 N.J. 398, 409 (quoting
State v. Jenkins, 178 N.J. 347, 363 (2004)).
The model jury instruction on murder and manslaughter directs
the jury to consider manslaughter only if it acquits of murder:
If you determine that the State has
proven beyond a reasonable doubt that the
defendant purposely or knowingly caused death
26 A-3262-15T4
. . . , you must find the defendant guilty of
murder.
If, on the other hand, you determine that
the State has not proven beyond a reasonable
doubt that the defendant purposely or
knowingly caused death or serious bodily
injury resulting in death, then you must find
him/her not guilty of murder (and go on to
consider whether the defendant should be
convicted of the crimes of aggravated or
reckless manslaughter).
[Model Jury Charge (Criminal) "Murder And
Aggravated/Reckless Manslaughter" (2011)
(emphasis added).]
The State argues that because aggravated manslaughter is a
lesser-included offense of murder only because "a lesser kind of
culpability suffices to establish its commission," N.J.S.A. 2C:1-
8d(3), it is not inconsistent for a defendant to be convicted of
both offenses. This argument has facial appeal because imbedded
within the definition of recklessness is a concept similar to
"knowing" conduct, namely, conduct by which an actor "consciously"
disregards a particular risk. However, this argument does not
take into account the requirement that a lesser-included offense
should not be submitted to a jury for consideration unless they
have first unanimously found the defendant not guilty of the
greater offense. State v. Zola, 112 N.J. 384, 405 (1988) cert.
denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989).
This accords with the principle that "a trial court has an
27 A-3262-15T4
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."
Jenkins, supra, 178 N.J. at 361 (emphasis added). In State v.
Ruiz, 399 N.J. Super. 86, 96 (App Div. 2008), we described the
principle as follows:
A lesser-included offense charge is warranted
when (1) "the requested charge satisf[ies] the
definition of an included offense set forth
in N.J.S.A. 2C:1-8d, and (2) . . . there [is]
a rational basis in the evidence to support a
charge on that included offense." State v.
Thomas, 187 N.J. 119, 131 (2006); see also
N.J.S.A. 2C:1-8e (included offense should not
be charged "unless there is a rational basis
for a verdict convicting the defendant of the
included offense"). "[A] rational basis in
the evidence for a jury to acquit the
defendant of the charged offense [is also
necessary] before the court may instruct the
jury on an uncharged offense." State v.
Brent, 137 N.J. 107, 113-14 (1994).
[(emphasis and alterations in original).]
We further noted in Ruiz that there is "no meaningful
difference between a crime charged in an indictment and an
unindicted lesser-included offense based on the trial evidence."
Id. at 99. Therefore, the fact that aggravated manslaughter was
included in the indictment as a separate count does not distinguish
it from the principles generally applicable to submitting lesser-
28 A-3262-15T4
included offenses to a jury. One such principle is that the jury
must first acquit of the greater offense.
This is what our Model Jury Charge prescribes, as well as the
model verdict sheet. This practice channels the jury's attention
to the distinction between the various homicide offenses that it
may choose from, with a clear mandate that the jury may either
find the defendant not guilty or choose one and only one of the
homicide charges that is appropriate based on the evidence. And,
because there is no meaningful distinction between an indicted
lesser-included offense and one simply based on the evidence (as
was, in this case, reckless manslaughter), the State is not
deprived of having the jury consider all appropriate offenses.
The State's charging discretion is not impaired.
It is clear to us that the guilty verdicts on murder and
aggravated manslaughter were inconsistent. We are mindful of the
Dunn/Powell2 rule, which provides generally that inconsistent
verdicts are permitted to stand "because it is beyond our power
to prevent them." State v. Banko, 182 N.J. 44, 54 (2004). Such
verdicts are permitted, even when the jury's action does not
benefit the defendant, "so long as the evidence was sufficient to
2
Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L.
Ed. 356 (1932); United States v. Powell, 469 U.S. 57, 105 S.
Ct. 471, 83 L. Ed. 2d 461 (1984).
29 A-3262-15T4
establish guilt on the substantive offense beyond a reasonable
doubt." Id. at 55 (quoting State v. Petties, 139 N.J. 310, 319
(1995)). "That said, the return of an 'inconsistent verdict' may
not insulate a conviction from reversal based on other defects in
the criminal proceeding." Ibid. In other words, the "Dunn/Powell
rule does not sanitize other trial errors," State v. Grey, 147
N.J. 4, 17 (1996), such as "when an incomplete or misleading jury
instruction causes an unfair trial." Banko, supra, 182 N.J. at
55.
The instruction here was misleading and led to an implausible
result. A defendant cannot act simultaneously with distinctly
different mental states. The jury should have been instructed to
choose which, if any, of the mental states was proven beyond a
reasonable doubt, and in a descending order of culpability to
comply with the principle that a lesser-included offense will be
considered only if the greater offense has first been unanimously
found not to have been proven beyond a reasonable doubt. We
conclude that the inconsistency is not "sanitized" and cannot be
overlooked or adjusted by merger at sentencing, as was done here.
On the contrary, we conclude that the misleading instruction caused
an unfair trial.
We next consider the failure to instruct the jury regarding
mistake of fact. This case cried out for such an instruction.
30 A-3262-15T4
Indeed, in its appellate brief, the State begins its discussion
on that point as follows: "The State recognizes the strength of
the Defendant's argument with regard to a charge to a mistake of
fact in the jury instructions." Then, after acknowledging that
no such instruction was given, the State continues: "However, the
jury was instructed they could consider Defendant's testimony in
terms of credibility." The State continues to argue that the
mistake of fact instruction was not necessary because the jurors
were instructed to consider the evidence presented by the witnesses
and their credibility, and because defendant did not raise an
objection at trial.
We do not agree that the instructions as a whole were adequate
to instruct the jurors on this critical point of law as it applied
to the facts of this case. As to the absence of an objection, of
course we are guided by the plain error standard. As with the
error regarding the homicide charges, the error in failing to give
a mistake of fact charge raises a reasonable doubt as to whether
the jury was led to a result it might not otherwise have reached.
Taffaro, supra, 195 N.J. at 454.
N.J.S.A. 2C:2-4a(1) provides that a mistake of fact "is a
defense if the defendant reasonably arrived at the conclusion
underlying the mistake and . . . [the mistake] negatives the
culpable mental state required to establish the offense."
31 A-3262-15T4
"[E]vidence of [a defendant's] mistaken belief relates to
whether the State has failed to prove an essential element of the
charged offense beyond a reasonable doubt." State v. Sexton, 160
N.J. 93, 106 (1999). "'No person may be convicted of an offense
unless each element of such offense is proven beyond a reasonable
doubt.' If the defendant's ignorance or mistake makes proof of a
required culpability element impossible, the prosecution will
necessarily fail in its proof of the offense." Sexton, supra, 160
N.J. at 100 (quoting Paul H. Robinson & Jane A. Grall, Element
Analysis in Defining Criminal Liability: The Model Penal Code and
Beyond, 35 Stan. L. Rev. 681, 726-27 (1983) (quoting Model Penal
Code § 1.12(1) (Proposed Official Draft 1962)). In other words,
mistake of fact is not a separate element but a "defense" against
the mental state element, which, once raised, the State must
overcome.3 Id. at 106-07.
In Sexton, the jury found the defendant guilty of reckless
manslaughter. 160 N.J. at 96. The Supreme Court held the trial
court erred in not charging the jury with mistake of the fact,
even if unreasonable, that Sexton thought the gun was unloaded
3
Subsection (a) of the mistake of fact statute is "technically
unnecessary" given the prosecution's obligation to prove each
element of an offense beyond a reasonable doubt. See State v.
Pena, 178 N.J. 297, 306 (2004) (citing Sexton, supra, 178 N.J. at
106).
32 A-3262-15T4
when he shot his victim. Id. at 105-07. There, the victim gave
Sexton a gun with the assurance it was not loaded. Id. at 95.
Unbeknownst to either party, there was a bullet in the firing
chamber which killed the victim when Sexton pulled the trigger.
Ibid. A ballistics expert testified that a gun novice might have
thought the gun was unloaded if the magazine was removed after one
round was inserted in the chamber. Ibid. The Court suggested
that, instead of charging mistake as a separate defense for a
crime based on recklessness, the jury should be charged as to the
elements of the offense and how the claimed mistake affects the
culpability the State must prove. Id. at 106.
The Sexton Court suggested the following mistake of fact
charge for reckless manslaughter:
In this case, ladies and gentlemen of the
jury, the defendant contends that he
mistakenly believed that the gun was not
loaded. If you find that the State has not
proven beyond a reasonable doubt that the
defendant was reckless in forming his belief
that the gun was not loaded, defendant should
be acquitted of the offense of manslaughter.
On the other hand, if you find that the State
has proven beyond a reasonable doubt that the
defendant was reckless in forming the belief
that the gun was not loaded, and consciously
disregarded a substantial and unjustifiable
risk that a killing would result from his
conduct, then you should convict him of
manslaughter.
[Ibid.]
33 A-3262-15T4
After setting forth this suggested charge, the Court stated:
"Undoubtedly, our Committee on Model Criminal Charges can improve
the formulation." Ibid.
The formulation presently in effect for the mistake of fact
charge, for a knowing or purposeful crime, approved in 2007, is
as follows:
If you find that the State has failed to
prove beyond a reasonable doubt that defendant
did not believe that (mistake of fact or law),
then you must find him/her not guilty of
(offense charged). However, if you find that
the State has proven beyond a reasonable doubt
that defendant did not believe (mistake of
fact or law), and you find that the State has
proven all of the elements of the offense
beyond a reasonable doubt, then you must find
him/her guilty of (offense charged).
[Model Jury Charge (Criminal) "Ignorance or
Mistake" (2007).]
For a reckless crime, the model charge provides:
If you find that the State has failed to
prove beyond a reasonable doubt that defendant
did not believe that (mistake of fact or law),
or that he/she was reckless in forming that
belief, as I have already defined that term
for you, then you must find him/her not guilty
of (offense charged). However, if you find
that the State has proven beyond a reasonable
doubt that defendant did not believe that
(mistake of fact or law), or that he/she acted
recklessly in forming that belief, and you
find that the State has proven all of the
elements of the offense beyond a reasonable
doubt, then you must find defendant guilty of
(offense charged).
34 A-3262-15T4
[Ibid.]
Thus, to find defendant guilty of knowing murder, the State
was obligated to prove beyond a reasonable doubt that defendant
did not believe that the gun was unloaded. If the jury was
convinced that the State carried its burden on this point, the
jury would then go on to consider whether the State proved all
elements of knowing murder beyond a reasonable doubt, in which
case they must find defendant guilty of that charge.
To find defendant guilty of a reckless crime, including
aggravated manslaughter, and, if the jury were to reach it,
reckless manslaughter, the State was obligated to prove beyond a
reasonable doubt either that defendant did not believe that the
gun was unloaded or that he was reckless in forming that belief.
If the jury was convinced that the State carried its burden on
this point, the jury would then go on to determine whether the
State proved all of the elements of the offense beyond a reasonable
doubt, in which case it must find defendant guilty of that offense.
A review of the totality of the judge's charge convinces us
that these important principles were not conveyed to the jury. In
his summation, defense counsel touched upon the subject to some
extent, arguing that defendant could not be guilty of knowing
murder because he "believed in his mind that the gun wasn't
loaded." With respect to aggravated manslaughter, defense counsel
35 A-3262-15T4
argued that defendant could not be guilty because he "picked up
the gun . . . to dry-fire it at the TV, . . . pulling back on the
trigger" while turning toward Compton "and bang! The shot goes
off." In her summation, the prosecutor did not broach the subject.
In our view, even though we are well aware that defendant's
asserted mistake of fact was highlighted in the trial, particularly
through defendant's testimony, defense counsel's limited reference
to it in his summation was not sufficient to convey to the jury
the significance of this point. Further, defense counsel's
argument was posited in his capacity as an advocate for defendant.
The judge correctly charged the jury that arguments of counsel are
not evidence. In her summation the prosecutor did not acknowledge
that she was required, in order to obtain a conviction, to prove
beyond a reasonable doubt that defendant did not believe that the
gun was unloaded (as to murder) or, as to manslaughter, that she
was required to prove beyond a reasonable doubt that defendant did
not believe the gun was unloaded, or if he did, he recklessly
formed that belief. Even had the prosecutor conceded that point,
the absence of a clear and unequivocal explanation by the court,
in accordance with the model charge, might have still required
reversal.
The plain error occasioned by these two shortcomings in the
jury instructions cannot be viewed as an isolated transgression
36 A-3262-15T4
that we can overlook because the correct principles of law were
provided to the jury elsewhere in the court's instructions, or at
least in the arguments of counsel. Thus, we cannot deem these
errors harmless. A new trial is required on the remaining charges
for which defendant was not acquitted.
III.
For the sake of completeness, we briefly address defendant's
remaining arguments. In Point III, defendant argues that the
court erred in failing to charge the jury with the voluntary
intoxication defense. Voluntary intoxication can provide
a defense to a charge of knowing and purposeful conduct if it is
sufficient to cause a "prostration of faculties," meaning the
intoxication must be of an "extremely high level" rendering the
defendant incapable of forming an intent to commit the crime.
State v. Cameron, 104 N.J. 42, 54 (1986); see also N.J.S.A. 2C:2-
8a and b. A jury issue arises only if the evidence is such that
a jury could conclude that defendant's faculties were so
prostrated. State v. R.T., 205 N.J. 493, 508 (2011). If not, the
charge is not warranted. Ibid.
If a defendant requests the charge, it will be given if there
is a rational basis in the evidence for it. Id. at 509 (2011).
If defense counsel does not request the instruction, the "clearly
37 A-3262-15T4
indicated" standard applies, in which the need for the charge must
"jump off" the page. Id. at 509-10.
In this case, defendant testified and gave an extremely
detailed account, often minute by minute, of the events that
transpired in his home when he was there alone with Compton after
returning from the bar and leading up to the shooting. His
detailed account included the shooting itself and his actions in
the immediate aftermath of the shooting. In describing the events
and the actions he took, he often gave detailed accounts of his
thought processes in real time which induced him to act in that
manner. Simply stated, it was not clearly indicated from this
record that defendant met the prostration of faculties test. There
was no error in failing to give this charge.
In Point IV, defendant argues that the court erred in denying
his motions for acquittal at the end of the State's case and again
at the conclusion of all evidence. We have described previously
in this opinion some of the facts that weigh against reckless
conduct and could have supported a jury finding of knowing conduct
in defendant's shooting of Compton. Defendant's vague and
misleading statements to the dispatcher when he called for
assistance could be deemed indicative of denying any culpability.
The fact that he called County Dispatch as a police officer, rather
than the public 911 service, could be viewed as evidence that he
38 A-3262-15T4
was hoping for preferential treatment. The downward projection
of the wound could support a finding that he was standing, not
sitting as he said he was, when he shot Compton. The jury could
have rejected as incredible defendant's testimony that Compton
asked him how to reload the gun, that he explained the process,
and shortly thereafter fell asleep, during which time Compton must
have reloaded the gun by placing one live round in the chamber,
but without the magazine being left in the gun. Likewise, the
jury could have rejected defendant's description of replacing his
duty weapon and revolver in the lock box, having reloaded the duty
weapon to its normal condition, but with a total absence of blood
on the guns, the magazine, the lock box, or in the closet.
Overall, in assessing a trial court's ruling on a motion for
judgment of acquittal, an appellate court reviews the decision de
novo. State v. Williams, 218 N.J. 576, 593-94 (2014). In so
doing, this court must determine "whether the evidence, viewed in
its entirety, be it direct or circumstantial, and giving the State
the benefit of all of its favorable testimony as well as all of
the favorable inferences which reasonably could be drawn," is
sufficient to allow the jury to find guilt beyond a reasonable
doubt. State v. Kluber, 130 N.J. Super. 336, 341 (App.
Div.), certif. denied, 67 N.J. 72 (1975) (citing State v. Reyes,
50 N.J. 454, 458-59 (1967)); see also R. 3:18-1 (discussing a
39 A-3262-15T4
motion for acquittal at the close of the State's case). If the
State has failed to prove any one of the elements of the crime
charged, the motion must be granted. Pressler & Verniero, Current
N.J. Court Rules, comment 1 on R. 3:18-1 (2016). The "trial judge
is not concerned with the worth, nature or extent (beyond a
scintilla) of the evidence, but only with its existence, viewed
most favorably to the State." Kubler, supra, 130 N.J. Super. at
342.
A trial court's ruling on a motion for a new trial "shall not
be reversed unless it clearly appears that there was a miscarriage
of justice under the law." R. 2:10-1.4 See also Dolson v.
Anastasia, 55 N.J. 2, 7 (1969).
From our review of the record, we concur with the trial
court's assessment that this was a very close case as between
murder and aggravated or reckless manslaughter. However, it does
not clearly appear to us that there was a miscarriage of justice
4
Similarly, pursuant to Rule 3:20-1, the trial judge shall not
set aside a jury verdict unless "it clearly and convincingly
appears that there was a manifest denial of justice under the
law." The "semantic" difference between "miscarriage of justice"
and "manifest denial of justice under the law" is an "oversight
and should not be construed as providing for a different standard
in criminal cases at the trial level than that applicable to
appellate review and to civil cases at the trial level." Pressler
& Verniero, Current N.J. Court Rules, comment 2 on R. 3:20-
1 (2016) (citing State v. Perez, 177 N.J. 540, 555 (2003); State
v. Gaikwad, 349 N.J. Super. 62, 82 (App. Div. 2002)).
40 A-3262-15T4
under the law. Defendant's argument on this point does not provide
a basis for reversal.
In Point V, defendant argues, for the first time on appeal,
that the aggravated manslaughter conviction should be reversed
because the State improperly argued that defendant should be
subject to an elevated standard of care by virtue of his police
officer status. Through cross-examination, the prosecutor
established that defendant received special training in the
handling of firearms, firearms safety, the use of firearms, and
the like. The prosecutor elicited that by defendant's version of
the events, his conduct constituted violations of some
departmental regulations pertaining to firearms. In her
summation, the prosecutor recounted some of this testimony and
argued that the jury should consider defendant's specialized
firearms training in assessing whether he acted in a reckless
manner.
The court instructed the jury on recklessness, including the
provision that the risk disregarded by a defendant charged with
reckless conduct must be a gross deviation from "the standard of
conduct that a reasonable person would follow in the same
situation." Defendant now argues that it was improper to suggest
that a police officer, trained in firearm safety, should be held
to a higher standard.
41 A-3262-15T4
Defense counsel did not object to any of the questions posed
in this regard, nor to the prosecutor's summation comments on this
point. In light of the absence of timely objections, the court
was not given the opportunity to rule on the objections, and, if
deemed appropriate, to sustain them, give a limiting or curative
instruction, or take other appropriate action.
In our view, the experience or lack of experience with
firearms of an individual is relevant testimony in assessing
whether that individual acted recklessly in the use of a firearm.
On the whole, these questions and summation comments did not exceed
permissible bounds and do not constitute plain error that would
warrant reversal.
We do note that any suggestion by the prosecutor that
defendant was guilty of violating department regulations and that
he acted as though the departmental rules did not apply to him
could be problematic. Such questions and comments should be
carefully framed to avoid any suggestion to the jury that defendant
should be convicted on his criminal charges for violating
departmental rules and regulations. If requested, an appropriate
limiting instruction should be considered. On the basis of this
record, however, where there was no objection and no request for
an instruction, we do not find a basis for reversal on this point.
42 A-3262-15T4
We need not address, beyond what we have already stated, the
argument in Point VI that the cumulative effect of the trial errors
denied defendant his right to due process and a fair trial, thus
warranting reversal.
For the reasons stated in Part II of this opinion, defendant's
judgment of conviction is reversed, and the matter is remanded for
a new trial on Counts Two (knowing murder) and Three (aggravated
manslaughter).
43 A-3262-15T4