STATE OF NEW JERSEY v. TIMOTHY J. CANFIELD (16-12-3619, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5586-18
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v.
January 10, 2022
TIMOTHY J. CANFIELD, APPELLATE DIVISION
Defendant-Appellant.
_______________________
Submitted September 15, 2021 – Decided January 10, 2022
Before Judges Hoffman, Geiger and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 16-12-3619.
Joseph E. Krakora, Public Defender, attorney for
appellant (Ruth E. Hunter, Designated Counsel, on the
briefs).
Grace C. MacAulay, Acting Camden County
Prosecutor, attorney for respondent (Jason Magid and
Rachel M. Lamb, Special Deputy Attorneys
General/Acting Assistant Prosecutors, of counsel and
on the brief).
The opinion of the court was delivered by
SUSSWEIN, J.A.D.
Defendant appeals from his jury trial convictions for aggravated
manslaughter and multiple counts of hindering apprehension or prosecution. 1
He contends that the Law Division judge committed numerous trial errors, all
but one of which are raised for the first time on appeal. This case arises from a
confrontation during which defendant shot his sister-in-law's former boyfriend
with a compound bow and arrow, inflicting a fatal wound. Defendant claimed
at trial that he meant only to release a "warning shot" and that he acted in self -
defense. He testified that the victim, who defendant knew to be HIV-positive,
came towards him in the course of their argument while holding an object th at
defendant believed to be a hypodermic syringe. The jury acquitted defendant of
knowing/purposeful murder, convicting him instead of the lesser-included
offense of aggravated manslaughter. In doing so, the jury necessarily found that
the State had proved beyond a reasonable doubt that defendant's use of deadly
force was not justified in self-defense.
Defendant contends that the trial court erred by failing to properly instruct
the jury on several principles of law, by admitting expert testimony regar ding
the effectiveness of archery equipment, by admitting hearsay pertaining to the
1
The jury also found defendant guilty of possession of a weapon for an unlawful
purpose. At sentencing, the court merged that conviction into the aggravated
manslaughter conviction.
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State's theory that defendant's self-defense claim was fabricated, and by
admitting a photograph of a hypodermic syringe that was found inside the house
similar to one police found in the backyard. Defendant's contention regarding
the admission of the photograph is the only asserted error that was brought to
the attention of the trial judge. All of the other alleged errors are raised for the
first time on appeal as plain error.
With respect to the jury instructions, defendant contends that the trial
court erred by failing to instruct the jury sua sponte as to: (1) the lesser-included
offense of passion/provocation manslaughter, (2) the self-defense principle that
a person employing deadly force does not have a duty to retreat in his or her
own dwelling, and (3) the causation of the victim's death. Defendant did not
request the trial court to give any of these jury instructions.
Defendant also contends that the eighteen-year prison term imposed on
the aggravated manslaughter conviction is excessive. He argues that the court
misapplied aggravating and mitigating factors and should have reduced the
sentence pursuant to N.J.S.A. 2C:44-1(f)(2). He further argues that a new
sentencing hearing is required at which the sentencing court must retroactively
apply a recently-enacted statutory mitigating factor, N.J.S.A. 2C:44-1(b)(14),
that accounts for a defendant's youth.
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After carefully reviewing the record in light of the arguments of the parties
and governing legal principles, we reject all but one of defendant's contentions
relating to trial errors. With respect to his contention that the court improperly
admitted hearsay testimony regarding an alleged family plan to support a
fabricated claim of self-defense, we deem it appropriate to order a limited
remand for the trial court to conduct a Rule 104 hearing 2 to determine whether
the elements of the co-conspirator exception to the hearsay rule have been
satisfied. See infra section VIII. In all other respects, we affirm the convictions.
We also affirm the sentence with the caveat that the issue whether the new
youthful offender mitigating factor applies retroactively is presently pending
before the Supreme Court. Because we are remanding for the trial court to make
findings with respect to the co-conspirator exception to the hearsay rule, we
deem it prudent for the trial court on remand to also consider whether the
sentence would have been different accounting for the new statutory mitigating
factor now codified in N.J.S.A. 2C:44-1(b)(14). That will obviate any need to
remand the case yet again if the Supreme Court decides that the new mitigating
factor applies retroactively.
2
See N.J.R.E. 104.
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We devote much of our attention in this opinion to defendant's argument
that the trial court should have afforded the jury the option to convict him of the
lesser-included offense of passion/provocation manslaughter. We conclude that
the facts in evidence do not clearly indicate an objectively reasonable
provocation, that is, one sufficient to arouse the passions of an ordinary person
beyond the power of his or her control. We therefore hold that the trial court
was not required to instruct the jury on passion/provocation manslaughter sua
sponte.
In reaching this conclusion, we recognize that the trial court's decision to
deliver a self-defense instruction indicates that evidence was presented at trial
from which a jury might reasonably find that the victim's death was attributable
to his own conduct. We reject the notion, however, that a court must instruct
the jury on passion/provocation manslaughter whenever self-defense is raised in
a murder prosecution. Passion/provocation manslaughter, as set forth in
N.J.S.A. 2C:11-4(b)(2), is a mitigated offense that is analytically distinct from
the use of force in self-protection, a justification defense, set forth in N.J.S.A.
2C:3-4.
These two statutory provisions are triggered by different material
elements and prerequisites, serve different purposes, and produce markedly
different results. When the State fails to disprove a claim of self-defense, the
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defendant is acquitted of the charge(s) involving the use of force. When a jury
finds the extenuating circumstances of passion/provocation, in contrast, a
defendant is not vindicated by an acquittal; rather, a homicide that otherwise
would be first-degree murder is mitigated to second-degree manslaughter.
Despite these fundamental distinctions, we recognize that both statutory
provisions address—in different ways—when and how a victim's conduct may
affect a defendant's culpability for causing the victim's death. We also recognize
that the same circumstances that prompt a responsive use of deadly force may
also provoke an impassioned reaction. When deadly force is employed during
a spontaneous or swiftly-evolving confrontation, the attending circumstances
may be fraught with emotion that causes the actor to lose self-control. In some
murder cases, therefore, the same trial evidence that would require a court to
provide a self-defense jury instruction might also require that the jury be
afforded the option to convict for the lesser-included crime of
passion/provocation manslaughter. After close inspection of the pertinent facts
in evidence, we conclude that this case does not fall into that category. Even
accepting as true defendant's version of events, as recounted in his trial
testimony, he has failed on appeal to meet the "clearly-indicated" standard that
is needed to require a jury instruction sua sponte. That standard is more
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demanding than the "rational-basis" standard that would have applied had
defendant requested the trial court to deliver a passion/provocation instruction.
Our review of this case reinforces our belief that the decision as to what
jury instructions should be delivered is best made in the first instance by a trial
court, aided and informed by the arguments of the parties. Indeed, that is one
of the fundamental purposes of the charge conference required by Rule 1:8-7(b).
We note further that self-defense often is asserted in murder trials when
the identity of the alleged perpetrator is not disputed. In those cases, defense
counsel will, of course, request that the jury be instructed on the legal principles
concerning the authorized use of force in self-defense, and in that event, trial
courts routinely deliver a self-defense charge as requested. The more
challenging and nuanced question—whether passion/provocation mitigation
should also be charged to the jury along with a self-defense instruction—arises
often enough to warrant prophylactic measures to ensure that this fact-sensitive
issue is considered in the first instance by the trial court and not, as in this case,
by an appellate court after a verdict has already been rendered. We therefore
recommend a new procedural rule that when, in a murder prosecution, the trial
court determines to instruct the jury on self-defense at the charge conference
conducted pursuant to Rule 1:8-7(b), the court should also consider and make
specific findings on the record as to whether to instruct the jury on the lesser -
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included offense of passion/provocation manslaughter, regardless of whether
either party has requested that instruction.
A trial verdict should not be placed at risk of reversal because the parties
and the court did not anticipate that this fact-sensitive issue would later be raised
on appeal as plain error. Nor should an otherwise valid guilty verdict be placed
in jeopardy of reversal on appeal because the defense chose for strategic reasons
not to request a passion/provocation instruction, hoping for an outright acquittal
rather than a second-degree manslaughter conviction.
A trial court's ultimate decision whether to instruct on
passion/provocation manslaughter, of course, will depend on the specific
circumstances of the case and the arguments of the parties. A defendant, for
example, may argue that a passion/provocation manslaughter instruction would
be incompatible with his or her self-defense theory. We emphasize that the new
procedural rule we recommend would not require that a passion/provocation
manslaughter instruction be given. Nor does it alter the "clearly-indicated"
standard that applies when that instruction has not been requested by the
defendant. The new practice we recommend is designed only to ensure that the
necessity for a passion/provocation manslaughter instruction is considered at the
charge conference, and that this fact-sensitive decision is made by the trial court
before a verdict is rendered.
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I.
We begin by summarizing the facts adduced at trial that are relevant to the
issues raised on appeal. On January 28, 2013, Trisha Dulin and Vincent
DeFilippis were sitting outside of the Dulin residence at an outdoor bar. Trisha 3
and DeFilippis were socializing for the first time since they had graduated from
high school. At approximately 10:00 p.m., Trisha saw Kereti Paulsen—her
former boyfriend and the father of her child—standing in the backyard. Paulsen
and Trisha had ended their relationship just a few weeks earlier.
DeFilippis knew Paulsen from high school but had not seen him since
graduating. Paulsen approached DeFilippis and a physical fight ensued,
resulting in scrapes and bloody knuckles. The fight was short-lived and ended
when Trisha admonished Paulsen that their relationship was over. Trisha then
went inside the house with DeFilippis. Paulsen remained outside in the
driveway.
Trisha informed her family that Paulsen had not left. Ashley Dulin
(Trisha's sister) and defendant (Ashley's husband) came out of their bedroom.
According to Ashley, her family disliked Paulsen because "he got [Trisha] into
. . . drugs." Ashley further explained that Paulsen was suspected of stealing
3
Because a number of the witnesses in this case share the same last name, we
refer to them by their first names to avoid confusion. We intend no disrespect
in doing so.
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from their house, and that defendant was angry at Paulsen because he "wasn't
supposed to be there."
At this point, Trisha, Ashley, DeFilippis, and defendant went outside and
began to argue with Paulsen. After arguing with Paulsen for several minutes,
the four went back inside the house. Paulsen remained outside the residence. 4
Defendant retrieved a compound bow and arrows and went back outside to
confront Paulsen.
During the one-on-one confrontation that followed, defendant shot an
arrow that struck and mortally wounded Paulsen. Defendant followed Paulsen
as he staggered into a neighbor's yard. The neighbor, Joseph Cassise, came out
of his house to investigate the noise. Cassise asked if Paulsen, who was lying
on the ground, was okay. Defendant told Cassise that he and Paulsen had "been
drinking." Cassise then went back into his house.
Shortly after, defendant returned inside his house and said, "I shot an
arrow. I don't know what happened." According to Ashley, defendant told her
"he shot [an arrow] at the fence to scare [Paulsen]."
4
We note that DeFilippis testified that defendant had a bow and arrows in his
hand when the four individuals went outside. Additionally, DeFilippis testified
that defendant never went back into the house with him, Ashley, and Trisha. For
purposes of determining whether the trial court committed plain error, we accept
defendant's version that he went inside the house with Ashley, Trisha, and
DeFilippis, retrieved the bow and arrows, and then went back outside alone to
confront Paulsen. See infra section III(G).
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Defendant testified at trial in his own defense. He claimed that he went
outside armed with the bow and arrows because he "was afraid of [Paulsen] "
and "didn't know what [Paulsen] was going to do." Defendant yelled at Paulsen
"again and again to leave," but "he wouldn't leave." Defendant testified that
Paulsen, who was approximately thirty feet away, "started coming towards me,
and he pulled something out of his pocket." Defendant acknowledged that
because it was dark, "I couldn't really tell what it was." He nonetheless believed
that Paulsen had pulled out an HIV-infected needle because of a recent text
message in which Paulsen said, "I'm HIV positive and the bitch [referring to
Trisha] is gonna die anyway." Defendant testified that he assumed the object
Paulsen was holding was a syringe because Paulsen had been in possession of a
needle the last time police removed him from the Dulin residence.
When asked about Paulsen approaching him, defendant testified:
I started backing up away from him, and at the point—
I backed into—we have a ledge in front of our shed, I
backed into that and started to lose my balance, let go
of the bow string, and ended up shooting. I didn't want
to hold onto the bow while I was falling down.
Defendant had told police that the bow "wasn't even fully drawn. It was just
tension on the string and when I pulled back[,] I guess I tripped." Defendant
testified, however, that he did not accidentally shoot the arrow at Paulsen.
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Rather, defendant testified that he shot the arrow intentionally as a "warning
shot" and that he intended "to scare him."
A neighbor, Bertram Francks, testified that he heard arguing and fighting
outside around 10 p.m. Francks observed defendant come outside with a bow
and yell at someone. He saw defendant aim the bow but did not see him back
up or trip. Francks also saw defendant walk back inside the Dulin residence
holding the bow and looking distraught.
Cassise also heard noise coming from the Dulins' backyard that evening.
He heard someone say: "What, are you going to shoot me with that?" He then
heard "some groans underneath [his] bedroom window" and "[i]t sounded like
somebody was in distress." Cassise believed he heard someone say he had been
shot with an arrow and subsequently had his son call 9-1-1. As previously noted,
Cassise testified that he went outside and asked defendant if everything was
okay. Defendant responded that everything was fine and that he and Paulsen
had been drinking. Cassise then went back into his home. At or around this
time, defendant called 9-1-1 using Paulsen's cellphone. He pretended to be
Paulsen, telling the 9-1-1 operator, "I've been shot."
At approximately 10:50 p.m., officers from the Berlin Police Department
were dispatched to the scene. Upon their arrival, the officers found Paulsen
lying face down in a neighbor's yard.
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Police questioned DeFilippis and Trisha at the Dulin residence and
detained them in separate police vehicles after they provided conflicting
statements. Trisha initially told the police that she had not seen Paulsen in weeks
and did not know why the officers had been dispatched to the residence.
DeFilippis also lied to the police initially, later explaining that he was concerned
that they had been called because he and Paulsen had been fighting. He told
police initially that his knuckles were bloody from engaging in sexual activity
with Trisha. Trisha disputed that statement. Police then transported them to the
police station to be interviewed.
Prior to transporting DeFilippis and Trisha to the police station, the police
knocked on the door of the Dulin residence. Defendant answered and then
notified Helen Dulin, the homeowner, that police wanted to search Trisha's
bedroom. This was defendant's first interaction with police that night. After
obtaining consent to search the bedroom, the police requested that Ashley and
Helen come to the police station to provide statements. Defendant remained at
the Dulin residence while the other individuals were being interviewed at the
police station.
Defendant eventually went to the police station in the early morning hours
of January 29, after Ashley and Helen had returned home following their
interviews. While at the police station, defendant participated in two interviews.
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During his second interview, defendant revealed that he had lied during his first
interview. Defendant testified at trial that he lied (1) about being asleep after
the altercation with Paulsen, (2) that he was not outside during the altercation,
(3) that he had never left the premises that night and had not followed Paulsen
onto the neighbor's property, and (4) that he had not spoken to any of the
neighbors. When questioned further, defendant admitted that he did speak with
Cassise after the altercation and lied when he explained to Cassise that Paulsen
was on the ground because he was drunk rather than because he had been shot
with an arrow. Additionally, defendant admitted to police that he used Paulsen's
phone to call 9-1-1 after the altercation and pretended to be Paulsen, telling the
9-1-1 operator that he was shot.
During the second interview, defendant disclosed that he had discarded
the bow in a wooded area a few miles from the police station. He told police he
did this because he was "scared" and "panicked." Defendant agreed to take the
officers to the location where he had discarded the weapon. After police
recovered the bow, they took defendant back to the Dulin residence where he
re-enacted his version of events. The re-enactment was videorecorded.
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As previously noted, police went to the Dulin residence to search Trisha's
bedroom. They found suspected drugs and an orange-capped syringe. 5 That
syringe was identical to an orange-capped syringe found outside when police
conducted a follow-up inspection of the crime scene.
In August 2016—more than three years after Paulsen's death—DeFilippis
revealed conversations involving members of the Dulin family that allegedly
occurred shortly after their police interviews had concluded on the night of the
incident. DeFilippis testified:
So, the day we got out of the police interrogation from
when everything happened, that following morning, we
were at the police department that night on [January]
28th, for about 9 hours. The next morning, the police
had drove me and Trish back to the house in the police
car, both of us. So[,] when we got to the house, Mr.
[Thomas] Dulin [defendant's father-in-law] was there
waiting for us. And, when we got out of the car and the
cops had left everything and we got inside and settled
down, there was kind of like a family meeting of
everybody that was involved. And they came up with
the story that we're going to say [Paulsen] had an HIV[-
]positive needle, so it was self-defense instead of him
just shooting an arrow at somebody he didn't like. And
everybody spoke about it. And I guess they had came
to kind of an agreement that that's what we're going to
say, and we're going to plead self-defense on this, try to
get [defendant] the least time possible for what
happened.
5
The record indicates that Trisha's mother consented to the search and that
police also returned to the home with a search warrant. The lawfulness of the
search of Trisha's room is not challenged in this appeal.
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DeFilippis further testified that a few days before he disclosed this
information to police in 2016, defendant and Ashley repeatedly reached out to
him to discuss the plan that had been "concocted in a living room." DeFilippis
testified that when he spoke to defendant on the phone, "[i]t was kind of like
stick to the story type thing." DeFilippis stated, "[a]nd[,] he kept saying, [s]tick
to the story [and go] pick up my copy of the statement so I—[DeFilippis]—know
exactly what was said, blah, blah, blah."
Defendant and members of the Dulin family denied that the meeting
described by DeFilippis ever happened. Ashley testified that she first heard
about Paulsen having a syringe at defendant's arraignment. She denied that she
or defendant had advised DeFilippis to lie about what happened on the night of
Paulsen's death. Thomas Dulin testified and also denied that the meeting
described by DeFilippis had ever occurred. He testified that he never instructed
members of his family to concoct a story about self-defense and a hypodermic
syringe.
II.
In December 2016, a grand jury returned an indictment charging
defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one);
third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39 -
4(d) (count two); third-degree hindering apprehension or prosecution, N.J.S.A.
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2C:29-3(b)(1), (3), and (4) (counts three, four, and five); and third-degree
tampering with witnesses and informants, N.J.S.A. 2C:28-5(a)(1) (counts six
and seven).
In April 2019, Judge David Ragonese presided over defendant's jury trial.
After considering the evidence presented by the State and defendant, the jury
acquitted defendant of knowing/purposeful murder but found him guilty of the
lesser-included offense of aggravated manslaughter. The jury also found
defendant guilty of third-degree possession of a weapon for an unlawful purpose
(count two) and hindering apprehension or prosecution (counts three, four, and
five). Defendant was acquitted on the two counts charging tampering with
witnesses.
On June 10, 2019, Judge Ragonese merged the convictions for aggravated
manslaughter and possession of a weapon for an unlawful purpose. He then
sentenced defendant on the aggravated manslaughter conviction to an eighteen -
year prison term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43 -
7.2. The court imposed three-year prison terms on the hindering convictions
and ordered them to be served concurrently with each other and the sentence
imposed on the aggravated manslaughter conviction. This appeal followed.
Defendant raises the following contentions for our consideration:
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POINT I
THE COURT'S FAILURE TO INSTRUCT THE JURY ON
THE LESSER-INCLUDED OFFENSE OF PASSION/
PROVOCATION MANSLAUGHTER, CAUSATION, AND
RETREATING FROM ONE'S OWN DWELLING, WAS
PLAIN ERROR AND DEPRIVED DEFENDANT OF A
FAIR TRIAL. (Not Raised Below).
POINT II
IT WAS PLAIN ERROR TO ADMIT EXPERT
TESTIMONY ON "ARCHERY EQUIPMENT
EFFECTIVENESS" BECAUSE IT WOULD NOT ASSIST
THE TRIER OF FACT TO UNDERSTAND THE
EVIDENCE OR DETERMINE A FACT IN ISSUE, AND
BECAUSE THE FIELD IS NOT GENERALLY ACCEPTED
WITHIN THE SCIENTIFIC COMMUNITY. (Not Raised
Below).
POINT III
DEFILIPPIS'S TESTIMONY ABOUT A DULIN FAMILY
PLAN TO CONCOCT A SELF-DEFENSE THEORY DID
NOT MEET THE ELEMENTS OF THE CO-
CONSPIRATOR EXCEPTION TO THE RULE AGAINST
HEARSAY AND ITS ADMISSION WAS THUS PLAIN
ERROR. (Not Raised Below).
POINT IV
THE PHOTOGRAPH OF THE SYRINGE IN TRISHA'S
BEDROOM WAS IMPROPERLY ADMITTED UNDER
N.J.R.E. 404(b) BECAUSE IT WAS NOT INTRINSIC
EVIDENCE OF THE CRIMES WITH WHICH
DEFENDANT WAS CHARGED[] AND FAILED TO MEET
THE COFIELD TEST FOR ADMISSIBILITY. SEE STATE
v. COFIELD, 127 N.J. 328 (1992). IT WAS ALSO
IMPROPERLY ADMITTED UNDER N.J.R.E. 403.
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POINT V
THIS COURT SHOULD REMAND FOR RESENTENCING
FOR THE TRIAL COURT TO RECONSIDER
DEFENDANT'S SENTENCE BASED ON THE NEW
MITIGATING FACTOR, "THE DEFENDANT WAS
UNDER 26 YEARS OF AGE AT THE TIME OF THE
COMMISSION OF THE OFFENSE." N.J.S.A. 2C:44-
1(b)(14). THE TRIAL COURT ALSO ERRED IN
REJECTING DEFENDANT'S REQUEST TO SENTENCE
HIM A DEGREE LOWER, AND ITS FINDINGS OF
AGGRAVATING AND MITIGATING FACTORS WERE
NOT BASED ON COMPETENT, CREDIBLE EVIDENCE
IN THE RECORD.
Defendant also contends in his reply brief that:
THE STATE'S RESPONSE TO DEFENDANT'S POINT I
INCORRECTLY DEPENDS ON "AN ASSESSMENT OF
THE CREDIBILITY OF THE WITNESSES." STATE v.
SAMUELS, 189 N.J. 236, 251 (2007). "BUT CREDIBILITY
IS NOT IN ISSUE WHEN DETERMINING IF A LESSER
INCLUDED OFFENSE INSTRUCTION SHOULD BE
GIVEN." IBID. RATHER, "THE QUESTION AT THAT
STAGE OF THE PROCEEDINGS CENTERS ON THE
EXISTENCE OF EVIDENCE TO SUPPORT THE LESSER
INCLUDED OFFENSE, AND NOT ON ITS WORTH."
IBID.III.
We first address defendant's contention that the trial court committed plain
error by failing to instruct the jury on the lesser-included crime of
passion/provocation manslaughter sua sponte. It is not disputed that defendant
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did not request this instruction at the charge conference. 6 We begin our analysis
by acknowledging the foundational legal principles governing our resolution of
this issue, first regarding jury instructions on lesser-included offenses generally,
and then pertaining specifically to passion/provocation manslaughter.
A.
It is a bedrock principle of our criminal justice system that "[a]ppropriate
and proper charges to a jury are essential for a fair trial." State v. Carrero, 229
N.J. 118, 127 (2017) (quoting State v. Daniels, 224 N.J. 168, 180 (2016)).
Proper jury instructions are "crucial to the jury's deliberations on the guilt of a
criminal defendant." State v. Jordan, 147 N.J. 409, 422 (1997).
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.
6So far as the record shows, the lesser-included offense of passion/provocation
manslaughter was not discussed at all during the charge conference. The
absence of any discussion of passion/provocation manslaughter stands in
contrast to the extensive discussion that took place concerning the lesser-
included offenses of aggravated manslaughter and reckless manslaughter. We
note that defense counsel objected to an instruction on those lesser-included
offenses. Counsel argued, "[b]ut for the record, it's my request that no lesser
included charges should be . . . charged here. And the reason is, Judge, I think
it almost invites the jury to compromise." Cf. State v. Powell, 84 N.J. 305, 317–
18 (1980) (noting "a defendant might oppose [a manslaughter] instruction for a
variety of reasons, including the possibility that it provides a vehicle for a
'compromise' verdict, perhaps lessoning what he [or she] perceives to be a strong
possibility of a verdict of acquittal").
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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 j urors
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)).
"[B]ecause correct jury charges are especially critical in guiding
deliberations in criminal matters, improper instructions on material issues are
presumed to constitute reversible error." State v. Jenkins, 178 N.J. 347, 361
(2004) (citing Jordan, 147 N.J. at 421–22). Therefore, an appellate court must
first "determine whether the trial court erred" and, if so, must proceed to
determine "if the mistake 'was clearly capable of producing an unjust result such
that a reasonable doubt is raised as to whether the error led the jury to a result it
otherwise might not have reached.'" Ibid. (quoting State v. Brims, 168 N.J. 297,
306 (2001)).
As our Supreme Court explained in State v. Funderburg, "[a] trial court is
vested with discretion in delivering the jury instructions that are most applicable
to the criminal matter before it." 225 N.J. 66, 80–81 (2016); see also State v.
Ernst, 32 N.J. 567, 583–84 (1960) (citing Hargrave v. Stockloss, 127 N.J.L. 262,
266, (E. & A. 1941)) ("[A] trial judge in his [or her] discretion may give [a jury]
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charge in any situation in which he [or she] reasonably believes a jury may find
a basis for its application."). The Court in Funderburg recognized, however,
that some jury instruction decisions—such as the charging of lesser-included
offenses—are governed by statute. Ibid. Specifically, N.J.S.A. 2C:1-8(e)
expressly provides that a trial court "shall not charge the jury with respect to an
included offense [not charged by indictment] unless there is a rational basis for
a verdict convicting the defendant of the included offense." Thus, "to justify a
lesser included offense instruction, a rational basis must exist in the evidence
for a jury to acquit the defendant of the greater offense as well as to convict the
defendant of the lesser, unindicted offense." Ibid. (citing State v. Savage, 172
N.J. 374, 396 (2002)).
One of the general principles underpinning N.J.S.A. 2C:1-8(e) 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." State v.
Muhammad, 182 N.J. 551, 577 (2005) (quoting State v. Garron, 177 N.J. 147,
180 (2003)). The failure to instruct the jury on a lesser-included offense can
pose the risk 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 of conviction." State v. Sloane, 111 N.J. 293, 299
(1988) (emphasis removed) (quoting Keeble v. United States, 412 U.S. 205,
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22
212–13 (1973)). For that reason, 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 [or she] committed and not convicting him [or
her] at all despite his [or her] guilt of a lesser offense." State v. Maloney, 216
N.J. 91, 113 (2013) (Albin, J., dissenting) (citing Garron, 177 N.J. at 180).
The law is thus well-settled that in certain circumstances, "[a] trial judge
has [] 'an independent obligation' to instruct the jury on lesser-included charges."
State v. O'Carroll, 385 N.J. Super. 211, 224 (App. Div. 2006) (quoting Jenkins,
178 N.J. at 361). As the Supreme Court made clear in Powell,
very simply, where the facts on record would justify a
conviction of a certain charge, the people of this State
are entitled to have that charge rendered to the jury, and
no one's strategy, or assumed (even real) advantage can
take precedence over that public interest . . . . The judge
is more than a referee between contestants. He [or she]
is the law's representative, and it is his [or her] duty to
see that the will of the law is done.
[84 N.J. at 319.]
In Garron, the Court reaffirmed and amplified that foundational principle,
stressing,
[w]e take this occasion to remind trial courts that their
primary obligation is to see that justice is done, and that
a jury is instructed properly on the law and on all
clearly indicated lesser-included offenses, even if at
odds with the strategic considerations of counsel. We
reaffirm that the integrity of the justice system and the
fact-finding process is not subordinate to the singular
A-5586-18
23
interests of the parties. The public interest in a correct
verdict based on the evidence must trump the partisan
strategic maneuvering of both the State and defendant.
[177 N.J. at 180.]
Importantly for purposes of this appeal, the substantive standard for
determining whether an instruction on an included offense is required depends
on whether the trial court was asked by the defendant to provide that instruction,
or whether instead, as in this case, the request for the jury instruction is made
by a defendant for the first time on appeal. There are two decidedly different
standards: a "rational-basis" test when the request for the lesser-included offense
instruction is made by a defendant at trial, and a "clearly-indicated [by the
evidence]" test when a defendant contends for the first time on appeal that the
trial court should have instructed the jury on a lesser-included offense sua
sponte. The distinction between these two standards can be outcome-
determinative and is critical to the resolution of the case before us. 7
7
We note that a footnote to the model jury charge for N.J.S.A. 2C:3-4 could be
read to suggest that the test in all circumstances is whether there is a rational-
basis for a passion/provocation manslaughter instruction. The footnote explains
in pertinent part:
[i]n almost all cases, if such evidence is adduced at
trial, the trial court should charge purposeful murder
and the lesser-included offense of aggravated
manslaughter, reckless manslaughter, and
passion/provocation manslaughter . . . . [I]f there is a
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24
As the Supreme Court explained in State v. Crisantos, "the rational-basis
test of the Code [under N.J.S.A. 2C:1-8(e)] imposes a low threshold" such that
"[w]hen the lesser-included offense charge is requested by a defendant . . . the
trial court is obligated, in view of defendant's interest, to examine the record
thoroughly to determine if the rational-basis standard has been satisfied." 102
N.J. 265, 278 (1986) (first citing State v. Sinclair, 49 N.J. 525, 540 (1967); and
then citing Powell, 84 N.J. at 318–19). In contrast, "[i]f parties do not request
a lesser-included-offense charge, reviewing courts 'apply a higher standard,
rational basis for a jury to find that defendant
reasonably believed in the necessity to use force, and
honestly but unreasonably believed that he/she needed
to resort to deadly force to repel the danger that he/she
faced, it could conclude that he/she acted in the heat of
passion resulting from a reasonable provocation, which
would justify submission of passion/provocation
manslaughter as a lesser included offense of murder.
[Model Jury Charges (Criminal), "Justification – Self
Defense: In Self Protection (N.J.S.A. 2C:3-4)" (rev.
June 13, 2011) (emphasis added).]
We believe the underscored portions of this footnote do not reflect the
standard that applies when a defendant does not request a passion/provocation
instruction at trial. As we explain, absent a defendant's request for a
passion/provocation manslaughter instruction, the "clearly-indicated" test, not
the "rational-basis" test, is used to determine if that instruction must be
delivered.
A-5586-18
25
requiring the unrequested charge to be "clearly indicated" from the record.'" 8
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).
There are important reasons for applying a more demanding substantive
standard when, as in this case, defendant raises the issue for the first time on
appeal. Our Supreme Court in Funderburg emphasized that "[t]he appropriate
time to object to a jury charge is 'before the jury retires to consider its verdict.'"
225 N.J. at 79. The Court added, "[w]hen a defendant fails to object to an error
or omission at trial, we review for plain error. Under that standard, we disregard
any alleged error 'unless it is of such a nature as to have been clearly capable of
producing an unjust result.'" Ibid. (citing R. 2:10-2). The mere possibility of
an unjust result is not enough. See Jordan, 147 N.J. at 422. As we have already
noted, to warrant reversal of a guilty verdict, an error at trial must be sufficient
8
We note that "[a] trial court's process for determining whether it can instruct
a jury on an uncharged included offense differs depending on whether the State
or the defendant has requested the charge." State v. Brent, 137 N.J. 107, 115
(1994). The Court explained that an included offense charge implicates the
constitutional considerations of the notice and due process rights guaranteed in
Article I, paragraph 8 of the New Jersey Constitution, which provides that "[n]o
person shall be held to answer for a criminal offense unless on the presentment
or indictment of a grand jury." When an included-offense charge is requested
by a defendant, "the law's concern is not notice to the defendant but whether the
evidence provides a rational basis for the charge[.]" Id. at 116.
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26
to raise "a reasonable doubt . . . as to whether the error led the jury to a result it
otherwise might not have reached." Jenkins, 178 N.J. at 361 (citation omitted).
We add that while we retain the "authority to 'notice plain error not
brought to the attention of the trial court[,]' provided it is 'in the interests of
justice' to do so," that authority is "not intended to supplant the obvious nee d to
. . . preserve issues for appeal." State v. [James] Robinson, 200 N.J. 1, 20 (2009)
(quoting R. 2:10-2). Our case law also makes clear that a trial court need not
"scour the statutes to determine if there are some uncharged offenses of which
the defendant may be guilty." Brent, 137 N.J. at 118 (quoting Sloane, 111 N.J.
at 302). Nor does a trial court "have the obligation on its own to meticulously
sift through the entire record in every murder trial to see if some combination of
facts and inferences might rationally sustain a manslaughter charge." State v.
Choice, 98 N.J. 295, 299 (1985). The Court in Funderburg reaffirmed and
stressed this point, "declin[ing] to impose such a burdensome requirement on
trial courts or suggest that every potential lesser-included offense must be
charged to the jury." 225 N.J. at 83. The Court emphasized that "[o]nly if the
record clearly indicates a lesser-included charge—that is, if the evidence is
jumping off the page—must the court give the required instruction." Id. at 81–
82 (quoting Denofa, 187 N.J. at 42).
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27
B.
We turn next to the legal principles that apply specifically to whether and
in what circumstances the crime of passion/provocation manslaughter must be
charged to the jury. A person commits murder when he or she "purposely" or
"knowingly causes death or serious bodily injury resulting in death." N.J.S.A.
2C:11-3(a)(1)–(2). "[A] homicide which would otherwise be murder under
N.J.S.A. 2C:11-3" may be mitigated to the lesser crime of passion/provocation
manslaughter when "committed in the heat of passion resulting from a
reasonable provocation." N.J.S.A. 2C:11-4(b)(2).
Passion/provocation manslaughter is a "well-established lesser-included
offense of murder." Carrero, 229 N.J. at 129 (citing State v. [Alphonso]
Robinson, 136 N.J. 476, 482 (1994)). The passion/provocation offense
"contains all the elements of murder except that the presence of reasonable
provocation, coupled with defendant's impassioned actions, establish a lesser
culpability." Robinson, 136 N.J. at 482 (citation omitted). In other words,
passion/provocation manslaughter "is an intentional homicide committed under
extenuating circumstances that mitigate the murder." Id. at 481 (citation
omitted).
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28
In Crisantos, the Court acknowledged that "passion/provocation can arise
in an infinite number of factual settings." 102 N.J. at 275. In Powell, the Court
noted,
[r]easonable provocation is a legal term of art,
encompassing a range of situations in which a victim
behaves in such a way as to cause a reasonable man [or
woman] to lose his [or her] normal self-control. The
traditional categories of provocative behavior are:
battery, mutual combat, assault, illegal arrest, adultery
and injuries to third persons.
[84 N.J. at 311 n.4 (citation omitted).]
There are four elements of 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 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—employing a reasonable person
perspective—while the last two elements are subjective. Ibid. In determining
whether the jury should be afforded the option to convict for
passion/provocation manslaughter, the trial court must decide whether there is
sufficient evidence of the first two elements. Importantly for purposes of this
appeal, "[t]o warrant the passion/provocation jury charge, the evidence must
A-5586-18
29
rationally support only the first two elements; the subjective elements 'should
usually be left to the jury to determine.'" Carrero, 229 N.J. at 129 (quoting
Mauricio, 117 N.J. at 413).
To satisfy the first element of attempted passion/provocation
manslaughter, a jury must conclude that a reasonable person in the defendant's
position would have been provoked sufficiently to "arouse the passions of an
ordinary man [or woman] beyond the power of his [or her] control." State v.
King, 37 N.J. 285, 301–02 (1962) (quoting State v. Herrmann, 77 N.J.L. 534,
535–36 (E. & A. 1909)).
The critical issue in this case is whether there was adequate provocation.
The adequacy of provocation is measured by whether "loss of self-control is a
reasonable reaction." State v. Foglia, 415 N.J. Super. 106, 126 (App. Div. 2010)
(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 Crisantos, 102 N.J. at 274). In contrast, "battery, except for a light
blow, has traditionally been considered, almost as a matter of law, to be
sufficiently provocative." Robinson, 136 N.J. at 492 (quoting Mauricio, 117
N.J. at 414).
A-5586-18
30
We reiterate and emphasize that under the objective standard that applies
to the first two elements of passion/provocation manslaughter, the adequacy of
provocation is determined by how a reasonable person would have reacted to
the provocation, not by how the defendant actually reacted. The Court in
Mauricio stressed:
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.
[117 N.J. at 412.]
C.
We next consider whether and in what circumstances evidence that
supports a self-defense instruction will also support a passion/provocation
instruction. We begin this part of our analysis by recognizing the conceptual
and practical differences between these two statutory features. Although the use
of deadly force in self-protection defense may share some characteristics with
passion/provocation manslaughter, these two statutory provisions are markedly
A-5586-18
31
different in several significant respects. Notably, one is an affirmative
justification defense, the other a lesser-included offense of murder.
N.J.S.A. 2C:3-4(a) provides in pertinent part that "the use of force upon
or toward another person is justifiable when the actor reasonably believ es that
such force is immediately necessary for the purpose of protecting himself [or
herself] against the use of unlawful force by such other person on the present
occasion." N.J.S.A. 2C:3-4(b)(2) places additional limits on the use of deadly
force. That statute provides in pertinent part:
(2) The use of deadly force is not justifiable . . . unless
the actor reasonably believes that such force is
necessary to protect himself [or herself] against death
or serious bodily harm; nor is it justifiable if:
(a) The actor, with the purpose of causing death or
serious bodily harm, provoked the use of force against
himself [or herself] in the same encounter;
(b) The actor knows that he [or she] can avoid the
necessity of using such force with complete safety by
retreating . . . except that:
(i) the actor is not obliged to retreat from his [or her]
dwelling, unless he [or she] was the initial aggressor[.]
[N.J.S.A. 2C:3-4(b)(2).]
A comparison of the text of N.J.S.A. 2C:3-4(a) with the text of N.J.S.A.
2C:11-4(b)(2) quickly demonstrates that the affirmative justification defense of
use of force in self-protection is analytically distinct from the mitigated offense
A-5586-18
32
of passion/provocation manslaughter. When the State fails to disprove a claim
of self-defense, the defendant is acquitted of all manner of homicide. The deadly
force that the actor employed, in other words, is found to be justified and lawful.
In stark contrast, when a jury finds the extenuating circumstances of
passion/provocation, the deadly force is unlawful. A conviction for the lesser -
included offense of passion/provocation manslaughter is just that—a conviction
for a serious crime, albeit one that is graded lower than knowing/purposeful
murder. The benefit a defendant receives when passion/provocation is
established, in other words, is not an outright acquittal as when the State fails to
disprove self-defense; rather, a homicide that otherwise would be first-degree
murder is mitigated to manslaughter—a second degree crime subject to NERA.
Aside from producing decidedly different outcomes, the material elements
of these two distinct statutory provisions are not aligned. The right to use deadly
force in self-defense arises only in the face of a perceived threat of death or
serious bodily harm, and such force must be "immediately necessary." The
immediate threat of death or serious bodily harm that justifies the responsive
use of deadly force may, of course, also constitute a reasonable provocation for
purposes of passion/provocation. There are other circumstances, however, that
might cause a reasonable person to lose normal self-control and thus rise to the
level of an adequate provocation. It is certainly possible, for example, that a
A-5586-18
33
jury might find that there was no immediate threat of death or serious bodily
injury to justify the use of deadly force and yet find that the victim's conduct
constituted an adequate provocation to mitigate a murder to passion/provocation
manslaughter. In State v. Bonano, the Court noted in this regard,
If the jury did not credit defendant's testimony that he
believed he was in danger of being killed or seriously
injured, and hence rejected the plea of self-defense, but
nevertheless did believe that [the victim] made the
menacing gesture[—victim drawing his knife while
uttering a threat—]it might properly have considered
such conduct to be adequate provocation to reduce to
manslaughter what would otherwise have been murder.
[59 N.J. 515, 523–24 (1971).]
D.
Accounting for both the similarities and differences between the
passion/provocation and self-defense doctrines, we next address whether and in
what circumstances a passion/provocation manslaughter instruction must be
given in conjunction with a self-defense instruction. In State v. Blanks, the
defendant "argue[d] that a passion/provocation manslaughter charge should
automatically be considered whenever a defendant claims self-defense and there
is a possibility that the jury may find that the defendant overreacted to the
victim's conduct." 313 N.J. Super. 55, 71 (App. Div. 1998). Although we
A-5586-18
34
reversed Blanks' convictions on other grounds, 9 we did not directly address his
argument that the theory of self-defense is invariably intertwined with
passion/provocation manslaughter. We do so now and reject the notion that a
court in a murder prosecution must instruct the jury on passion/provocation
manslaughter whenever self-defense is raised. There is no authority for any such
categorical rule, and we decline to adopt one.
Nonetheless, we recognize that, when applied to real-world violent
encounters, the doctrines of justifiable force in self-defense and
passion/provocation mitigation are not "watertight compartments." Cf. State v.
Smith, 136 N.J. 245, 255 (1994) (O'Hern, J., dissenting) (remarking that "[i]n
short, as our cases have repeatedly explained, the lesser-included-offense
doctrine is not an abstract doctrine of watertight compartments"). Both
doctrines measure a defendant's culpability for causing a death by reference to
the victim's conduct. When a defendant asserts self-defense, he or she has
placed the victim's conduct at issue, and the jury must apply use-of-force
principles to decide whether the victim's conduct contributed to his or her own
death by prompting, dare we say provoking, the justifiable use of deadly force.
9
We noted in Blanks, "[w]e review this aspect of the charge [pertaining to the
failure to instruct on passion/provocation manslaughter] only because other
fundamental flaws in the charge require reversal and a new trial." Ibid.A-5586-18
35
As we have noted, depending on the circumstances, the justification and
mitigation doctrines can overlap; the same evidence in a murder trial tha t
supports charging the jury on the principles of self-defense may also support an
instruction on the lesser-included offense of passion/provocation manslaughter.
It is not uncommon, after all, that when deadly force is employed by civilians,
the circumstances of the confrontation between the defendant and victim are
emotionally charged and involve heated passions. As a matter of common sense,
in a case where the victim's conduct posed an immediate threat of death or
serious bodily harm to the defendant, the defendant's reaction to that imminent
threat might be influenced as much by impassioned instinct as by a dispassionate
analysis and application of use-of-force principles. Furthermore, in some cases,
the immediate threat of death or serious bodily injury will be accompanied by
an actual battery that has already been committed during the course of the
confrontation. As our Supreme Court "noted[,] . . . 'battery, except for a light
blow, has traditionally been considered, almost as a matter of law, to b e
sufficiently provocative.'" Robinson, 136 N.J. at 492 (quoting Mauricio, 117
N.J. at 414).10
10
We note that in this instance, defendant does not claim that Paulsen ever
stabbed or even touched him before defendant fired the fatal arrow. Rather, the
evidence clearly shows that the victim was at a discrete distance—beyond the
A-5586-18
36
However, the two defense theories do not always co-occur or overlap.
Indeed, in some circumstances, the two theories may be mutually incompatible.
In Funderburg, for example, the State "point[ed] out that a jury instruction
proposing that Funderburg acted out of passion or provocation would indicate
that Funderburg in fact intended to injure Parham 11—not that Funderburg was
trying to defend himself, as Funderburg's counsel argued in his closing
argument." 225 N.J. at 78. 12 The State makes a similar argument in the case
range at which Paulsen could have immediately stabbed defendant with a
syringe—when defendant unleashed deadly force.
11
It bears noting that Funderburg involved a charge of attempted murder and
thus the lesser-included offense of attempted passion/provocation manslaughter.
See Robinson, 136 N.J. at 488–89 (holding that attempted passion/provocation
manslaughter is a lesser-included offense of attempted murder). An attempt
requires a purposeful culpable mental state, even if the completed offense, such
as murder, requires only a "knowing" culpable mental state. See State v. Jones,
242 N.J. 156, 169, 174–75 (2020).
12
Since Funderburg, our Supreme Court has noted that a defendant may be
entitled to a passion/provocation charge regardless of whether that instruction
would be inconsistent with the defendant's theory of self-defense, at least when
the defendant requests a passion/provocation instruction. In Carrero, the trial
court denied defendant's request for a passion/provocation manslaughter
instruction, finding it inconsistent with defendant's own accounts of self -defense
and accidental shooting. The Supreme Court concluded that the trial testimony
presented a rational-basis on which the jury could acquit defendant of murder
but convict him of passion/provocation manslaughter, and accordingly held that
defendant's murder conviction must be reversed. The Court reasoned,
"[a]lthough the passion/provocation charge is inconsistent with defendant's
theories of self-defense and accidental shooting, when the evidence supports []
a [passion/provocation] charge, a defendant may be entitled to the requested
A-5586-18
37
before us, reasoning that defendant testified that he meant only to fire a "warning
shot," and did not mean to strike Paulsen with the arrow.
We conclude that although the theories of justification and mitigation can
overlap, they must be analyzed separately when determining whether a jury
instruction on either or both theories must be delivered. Accordingly, a trial
court's determination that there is an evidential basis for a self-defense jury
charge does not by itself constitute a basis to charge on passion/provocation.
However, we recognize that the potential for these two culpability provisions to
overlap and co-occur arises on a recurring if not frequent basis. Because trial
courts have an independent duty to charge on lesser offenses when the "clearly -
indicated" standard is met, prudence dictates that a trial court should carefully
and explicitly consider whether to afford the jury the option to convict for
passion/provocation manslaughter when the court decides to instruct the jury on
self-defense. We discuss our recommendation for the new procedural rule
requiring such consideration in section IV.
instruction regardless of whether the charge is consistent with the defense." 229
N.J. at 121 (citing Brent, 137 N.J. at 107).
We add that the holding in Carrero further underscores the significant and
potentially outcome-determinative difference between the "rational-basis" and
"clearly-indicated" tests. Indeed, the Court in Carrero stressed the difference
between the two standards when it rejected the State's assertion that "Funderburg
is controlling here." Id. at 127.
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38
E.
Although neither party relies upon or even cites to the Supreme Court's
unanimous decision in Funderburg, we believe that case provides important
guidance on how to apply the "clearly-indicated" standard. In Funderburg, the
defendant was charged with attempting to murder his ex-partner's new
boyfriend, Andrew Parham. Id. at 70. Funderburg and his former girlfriend had
a child together. Ibid. On the day of the violent incident that gave rise to the
case, she and Parham were at Funderburg's house to pick up the baby. Id. at 71.
While Parham was putting the child in the car, Funderburg removed the keys
from the ignition. Id. at 72. Parham chased Funderburg for ten to fifteen
minutes in an effort to reclaim the car keys. Parham eventually stopped chasing
Funderburg and knocked on the front door, hoping Funderburg's mother might
convince her son to return the car keys. Ibid. Finding no one home, Parham
walked back onto the street and asked Funderburg and his brother whether they
wanted to fight. Ibid. They did not respond. Parham walked back to the car
and leaned against it as Funderburg and his brother approached. Ibid. Parham
and Funderburg continued to argue for several minutes as the confrontation
continued to escalate. Ibid. At some point, Funderburg lunged at Parham and
punched him several times in the chest. Ibid. When Parham stepped away, he
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39
realized he had been stabbed. Id. at 73. There was competing testimony on who
had first handled the knife that caused the serious non-fatal wound. Id. at 82.
Funderburg was tried for attempted murder and aggravated assault. Id. at
70. The judge instructed the jury on a number of lesser-included offenses to
aggravated assault. Ibid. However, counsel did not request a charge for the
lesser-included offense of attempted passion/provocation manslaughter, and that
charge was not delivered to the jury. Ibid.
On appeal, the Appellate Division panel reversed Funderburg's conviction
based on the trial court's failure to deliver an instruction for attempted
passion/provocation manslaughter sua sponte. Id. at 75. The Supreme Court
disagreed and reinstated the defendant's attempted murder conviction,
concluding that the panel had "improperly sifted through the cold appellate
record and constructed a hypothetical and factually unsupported scenario in
which Funderburg might have conceivably been adequately provoked." Id. at
70. The Court concluded that the facts before the trial court:
did not clearly indicate that the objective elements of
attempted passion/provocation manslaughter were
present. In particular, there was insufficient evidence
before the jury that a reasonable person in Funderburg's
position would have been adequately provoked by
Parham's behavior. Parham's chase did not threaten
Funderburg; it was simply an attempt to retrieve the car
keys. The chase was preceded by verbal sparring, at
which point Funderburg refused to return the keys.
Thus, this interaction alone did not suggest adequate
A-5586-18
40
provocation. Beyond that, there was insufficient
evidence to suggest that Parham had wielded the knife.
At best, there was a disagreement among the witnesses
about who first handled the knife that later stabbed
Parham. Andrews and Parham both testified that
Funderburg was the first person to reveal a knife. Only
Funderburg's father Leroy testified that Parham
revealed the knife first.
Even if the jury found Leroy's testimony to be the most
credible of all the eyewitnesses, Leroy's statement that
Parham initially held the knife would at most support
the theory that Funderburg acted in self-defense; it
would likely not support a theory that Funderburg was
actually impassioned and intended to kill Parham.
Ultimately, there was insufficient evidence in the trial
record to indicate that a reasonable person in
Funderburg's situation would have been adequately
provoked.
[Id. at 82 (citation omitted).]
The Court's analysis confirms that the two standards are different in
practical application, not just abstract theory. The "clearly-indicated" standard
that must be met to reverse a conviction for failure to deliver a jury instruction
sua sponte is more demanding than the "rational-basis" standard that applies
when a defendant asks a trial court to instruct the jury on passion/provocation
manslaughter.
The Court's subsequent decision in Carrero reaffirms that the choice of
standards is critical to the analysis and can be outcome-determinative. In that
case, the Court distinguished Funderburg, explaining, "[c]entral to the
A-5586-18
41
distinction is the lack of request for the jury instruction in Funderburg and the
clear request for the jury instruction here." 229 N.J. at 127. The Court in
Carrero stressed, "[h]ere, we apply a different standard—the rational-basis
test—to review the trial court's failure to provide a jury instruction when
defendant requested it." Id. at 127–28.
We therefore read Funderburg to establish a clear principle that must be
applied by appellate courts: when a defendant asks for a passion/provocation
instruction for the first time on appeal—only after the defense trial strategy has
failed—the requisite provocation must be more than "hypothetical."
Funderburg, 225 N.J. at 70. The evidence clearly indicating a reasonable
provocation must "jump[] off the page." Id. at 81–82 (citing Denofa, 187 N.J.
at 42).
F.
We next consider the State's argument that defendant invited the error he
now raises on appeal, in which event we could refuse to consider defendant's
contention rather than apply a plain error standard of review. The State cites to
State v. Williams for the general proposition that "[t]he doctrine of invited error
does not permit a defendant to pursue a strategy . . . and then when the strategy
does not work out as planned, cry foul and win a new trial." 219 N.J. 89, 101
(1984). The State argues that the error defendant now claims on appeal was
A-5586-18
42
invited because defense counsel at the charge conference not only failed to
request a passion/provocation charge but also affirmatively objected to charging
the jury on the lesser-included offenses of aggravated manslaughter and reckless
manslaughter.
Although there was no mention of passion/provocation manslaughter at
the charge conference, counsel, when objecting to jury charges on aggravated
manslaughter and reckless manslaughter, argued that "no lesser included charges
should be charged here." See supra note 6 (emphasis added). This is clearly a
situation where the defense would have preferred that the jury be presented with
an "all-or-nothing" choice. The issue now before us is whether the invited error
doctrine applies in these circumstances. We conclude it does not.
The Supreme Court's analysis and holding in Jenkins provides instruction.
178 N.J. at 347. In that murder case, defense counsel at the charge conference
acknowledged that the facts supported an instruction on the lesser offense of
reckless manslaughter but advised that his client had requested that the court
refrain from charging the jury on lesser-included offenses. Id. at 359–60. The
prosecutor also acknowledged that a conviction for aggravated manslaughter or
reckless manslaughter could be returned on the evidence presented and reminded
the trial court of its independent duty to make that determination irrespective of
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the defendant's position. The trial court decided not to instruct the jury on the
lesser-included charges. Id. at 360.
On appeal, the defendant "reversed positions." Id. at 357. He argued that
"notwithstanding his request at trial, the court erred in failing to instruct on [the]
lesser-included offenses of reckless manslaughter and aggravated
manslaughter." Ibid.Before addressing the substantive merits of the defendant's appellate
contention, the Supreme Court considered whether any error had been "invited."
The Court carefully framed the issue, noting, "we focus on whether a defendant
invites error merely by advocating an erroneous approach or, instead, whether
the court actually must rely on the defendant's position in reaching a result." Id.
at 358. The Court recognized that as a general matter, a "defendant cannot
beseech and request the trial court to take a certain course of action, and upon
adoption by the court, take his [or her] chance on the outcome of the trial, and
if unfavorable, then condemn the very procedure he [or she] sought and urged,
claiming it to be error and prejudicial." Ibid. (quoting State v. Pontery, 19 N.J.
457, 471 (1955)). The Court added,
when a defendant asks the court to take his [or her]
proffered approach and the court does so, we have held
that relief will not be forthcoming on a claim of error
by that defendant. On another occasion, we
characterized invited error as error that defense counsel
has "induced." State v. Corsaro, 107 N.J. 339, 346
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44
(1987). However, we have not decided whether actual
reliance by the court is necessary to trigger the doctrine.
[Ibid.]
The Court then explained that the doctrine of invited error as applied in
criminal cases "is designed to prevent defendants from manipulating the
system." Id. at 359. As a result, the Court reasoned,
the invited-error doctrine . . . is implicated only when a
defendant in some way has led the court into error.
Conversely, when there is no evidence that the court in
any way relied on a defendant's position, it cannot be
said that a defendant has manipulated the system. Some
measure of reliance by the court is necessary for the
invited-error doctrine to come into play.
[Ibid. (citation omitted)].
Applying those general principles to the matter before it, the Court in
Jenkins determined that although the trial court had acceded to the defendant's
request, the trial court's explanation for its decision made clear that it had arrived
at the decision not to instruct on lesser-included offenses "independently of any
invitation or encouragement by defendant." Id. at 360. The Supreme Court
concluded that "the doctrine of invited error does not apply. However, because
defendant did not object to the lack of such an instruction, we will review the
decision not to instruct on lesser-included offenses under a plain-error standard."
Ibid. Ultimately, the Court affirmed the Appellate Division's conclusion that
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the failure to deliver the lesser-included charges constituted plain error. Id. at
369.
The matter before us is distinguishable from Jenkins in several respects.
Here, there was no explicit request by defendant that the trial court not charge
the jury on passion/provocation manslaughter—the specific charge that
defendant now argues should have been delivered sua sponte. We decline to
assume that defendant's generic argument not to charge on lesser-included
offenses—which was made in the context of a discussion regarding the lesser-
included offenses of aggravated manslaughter and reckless manslaughter—
somehow influenced the trial court's decision whether to charge on passion -
provocation manslaughter. The trial court in this case could not have relied on
defendant's generic "all-or-nothing" position in deciding whether to charge the
jury on passion/provocation manslaughter for the simple reason that no
"decision" was made with respect to that specific instruction. As we have noted,
the passion/provocation mitigation doctrine was not even mentioned, much less
argued and ruled upon, at the charge conference. We thus conclude that the trial
court did not "actually . . . rely on the defendant's position in reaching a result."
Id. at 358.
In Blanks, we addressed the invited error doctrine in the specific context
of a passion/provocation manslaughter jury instruction. 313 N.J. Super. at 55.
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46
In that case, the defendant contended on appeal that that the trial judge's failure
to deliver a passion/provocation manslaughter charge denied him a fair trial. Id.
at 71. Defendant "acknowledge[d] that he did not request this charge. In fact,
his attorney agreed that the trial judge should not deliver this charge." Ibid. We
remarked,
[w]e would be remiss if we did not express our concern
about the invited error which seems to have occurred in
this matter. Ordinarily, we would refuse to review this
error because defense counsel expressly agreed that a
passion/provocation instruction should not be given.
We review this aspect of the charge only because other
fundamental flaws in the charge require reversal and a
new trial.
[Ibid.]
Blanks is distinguishable from the matter before us because in that case,
defense counsel affirmatively and specifically agreed that the
passion/provocation manslaughter instruction should not be delivered to the
jury. Here, in contrast, defendant did not expressly argue against a
passion/provocation instruction. His silence with respect to any such instruction
is at best a tacit objection that must be extrapolated inferentially from his
objection to other lesser-included-offense charges. In these circumstances, we
decline to invoke the invited error doctrine to the extent that the doctrine might
allow us to refuse to consider the merits of defendant's newly minted contention
applying a plain error standard of review. We are satisfied that the plain error
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standard, especially when viewed through the lens of the robust "clearly -
indicated" test, adequately accounts for defendant's apparent strategic
preference for an "all-or-nothing" choice and his failure to broach the specific
issue of whether to instruct the jury on passion/provocation manslaughter. We
reject defendant's contention not because he invited the error he now complains
of but rather because we are convinced that no error was committed in failing to
deliver a passion/provocation instruction based on the evidence that was
adduced at trial.
We do not mean to suggest, however, that the invited error doctrine would
not apply if, for example, a defendant at trial were to argue successfully that a
passion/provocation manslaughter instruction would be incompatible with the
defendant's self-defense theory, see infra note 19, and later "reversed positions"
by claiming that the trial court erred by accepting the defendant's trial argument.
See Jenkins, 178 N.J. at 357. In those circumstances, applying the analysis
spelled out in Jenkins, the invited error rule would indeed apply if the trial court
were to rely on the defendant's argument in deciding not to instruct the jury on
passion/provocation manslaughter. Id. at 359. But that simply did not happen
in this case.
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G.
Before we can apply the trial evidence to the "clearly-indicated" test to
decide whether there was an objectively reasonable provocation, we first must
consider how we determine what the relevant facts are since the circumstances
of the confrontation were disputed at trial. The method by which we identify
the evidence to measure against the "clearly-indicated" yardstick is an important
component of the standard of appellate review we must apply when a defendant
claims for the first time on appeal that the trial court failed to deliver a jury
charge sua sponte. By definition, in cases where there was no request for a
passion/provocation manslaughter charge and the issue was not discussed at the
charge conference, the trial court will not have had occasion to make findings
on the record that a reviewing court might rely upon—and defer to—in applying
the "clearly-indicated" test. In those circumstances, it falls upon the reviewing
court to determine what evidence to consider in determining whether the need
for a sua sponte charge on passion/provocation manslaughter was clearly
indicated in the record.
In this instance, defendant asserts in his reply brief that "the State is
essentially arguing that defendant's testimony regarding being provoked and
impassioned is not credible." Defendant contends the State's response violates
the rule established in State v. Samuels, 189 N.J. 236 (2007). We do not agree
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with that characterization of the State's argument on appeal. We do agree,
however, that when determining whether the "clearly-indicated" test has been
met, a court should not be concerned with the credibility of the evidence that
might support a jury instruction on a lesser-included-offense. The State argued
at trial that defendant's self-defense claim was fabricated. It was for the jury—
not a trial or appellate court—to decide whether defendant's self-defense
testimony was credible. Accordingly, in determining whether the trial evidence
clearly indicates adequate provocation, we have disregarded the evidence
presented by the State that defendant's self-defense claim was fabricated after
the slaying. See infra subsection H. Rather, for purposes of determining
whether the trial court was obliged to instruct the jury on passion/provocation
manslaughter, we accept defendant's testimony as credible and thus base our
decision on his version of the events that unfolded.
That approach is consonant with the rationale in Samuels, upon which
defendant relies. The Court in Samuels addressed whether the trial court
committed plain error by failing to charge attempted robbery as a lesser-included
offense of armed robbery. Id. at 243. The prosecutor in that case "counter[ed]
[the defendant's] contention with the State's version of the facts." Id. at 251.
The Supreme Court noted,
The problem with the Attorney General's response is
that it depends on an assessment of the credibility of the
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witnesses. But credibility is not in issue when
determining if a lesser included offense instruction
should be given. The question at that stage of the
proceedings centers on the existence of evidence to
support the lesser included offense, and not on its
worth.
[Id. at 251–52 (citations omitted).]
We note that in Carrero, the Court used a different formulation to explain
how trial evidence is to be assessed in determining whether a
passion/provocation manslaughter instruction was required. In that case, the
Court explained, "[i]n deciding whether the rational-basis test has been satisfied,
the trial court must view the evidence in the light most favorable to the
defendant." 229 N.J. at 128 (citing Mauricio, 117 N.J. at 412) (emphasis added).
We now consider whether the "most-favorable-to-the-defendant" formulation
should also be used when the "clearly-indicated" test applies. 13
In Mauricio, the Court used broader language than it would later use in
Carrero, explaining, "[w]hen deciding whether to instruct a jury on
passion/provocation manslaughter, a trial court should view the situation in the
13
We note that defendant in his reply brief—which focuses solely on the State's
response to the passion/provocation manslaughter jury charge issue—does not
ask us to apply the most-favorable-to-the-defendant standard in determining
whether the evidence clearly indicates the basis for charging that lesser included
offense. Indeed, defendant does not mention the most-favorable-to-the-
defendant standard of review; rather, defendant relies on the rule announced in
Samuels that "credibility is not in issue when determining if a lesser included
offense instruction should be given." 189 N.J. at 251.
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light most favorable to the defendant." 117 N.J. at 412 (emphasis added). The
Court in Mauricio thus did not explicitly limit the most-favorable-to-the-
defendant standard to situations where the issue was "whether the rational-basis
test has been satisfied" as was true in Carrero. However, in Mauricio, the
defendant "contend[ed] that the trial court incorrectly refused to instruct the jury
on passion/provocation manslaughter." Id. at 410. It is thus clear that the
provocation/manslaughter jury charge issue was not raised for the first time on
appeal as plain error. Accordingly, the Court in Mauricio had no occasion to
decide whether the most-favorable-to-the-defendant standard should apply to
cases where the defendant claimed that the trial court failed to instruct on
passion/provocation manslaughter sua sponte, that is, cases where the
heightened "clearly-indicated" standard applies.
We add that the broader language in Mauricio explaining when to use the
most-favorable-to-the-defendant lens was directed specifically and explicitly at
trial courts. See id. at 410 ("a trial court should view the situation in the light
most favorable to the defendant.") (emphasis added). That suggests this
standard is meant to be used when the question whether to instruct a jury on
passion/provocation manslaughter has been addressed at the trial court level, not
when that issue is raised for the first time on appeal as plain error.
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We also take note that in Carrero, the most-favorable-to-the-defendant
language appeared at the end of the same paragraph that began with a
recognition that "[t]he rational-basis test sets a low threshold." 229 N.J. at 128;
(citing Crisantos, 102 N.J. at 278). The Court in Carrero took pains to
differentiate between the "rational-basis" and "clearly-indicated" tests in
rejecting the State's assertion that "Funderburg is controlling here." Id. at 127.
Specifically, the Court emphasized:
Despite the similarity in factual circumstances—a
violent interaction preceded by a tense relationship
between two men involved in a romantic triangle—
Funderburg does not direct the outcome here. Central
to the distinction is the lack of request for the jury
instruction in Funderburg and the clear request for the
jury instruction here. We decided Funderburg under a
"clearly indicated" standard of review because it
involved an alleged failure to provide a sua sponte
instruction—the trial court had the obligation to give
the instruction if the evidence "clearly indicated" the
objective elements of the offense. Ibid. Here, we apply
a different standard—the rational-basis test—to review
the trial court's failure to provide a jury instruction
when defendant requested it.
[Id. at 127–28].
It also bears noting that in Funderburg, the Court rejected the defendant's
plain error argument notwithstanding that conflicting evidence had been
presented on whether the defendant or the victim had first wielded the knife.
225 N.J. at 82 (remarking, "[b]eyond that, there was insufficient evidence to
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suggest that [the victim] had wielded the knife. At best, there was a
disagreement among the witnesses about who first handled the knife that later
stabbed [the victim]."). That conclusion is inconsistent with the application of
a most-favorable-to-the-defendant standard. More fundamentally, the jump-off-
the-page review emphasized in Funderburg is at odds with the notion that the
trial evidence should be viewed in the light most favorable to the defendant.
It thus appears that the most-favorable-to-the-defendant standard is
reserved for cases where a defendant affirmatively requests a trial court to
instruct on passion/provocation manslaughter, and does not apply when, as in
this case, the issue is raised as plain error. That interpretation of the case law
would suggest yet another substantive difference between the "low threshold"
rational-basis test, Carrero, 229 N.J. at 128, and the more rigorous clearly-
indicated test.
We recognize that from a practical perspective, there may not be a
significant difference between the most-favorable-to-the-defendant formulation
and the formulation employed in Samuels—a plain error case—which instructs
appellate courts to consider only the existence of evidence to support a
passion/provocation charge and not the worth of that evidence. 189 N.J. at 251–
52. In the matter before us, we are satisfied that under either standard the
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evidential basis for a passion/provocation instruction is not clearly indicated in
the trial record for reasons we explain in detail in the next subsection.
H.
With the foregoing guiding principles in mind, we proceed next to apply
the "clearly-indicated" test to the evidence that was presented at trial. The
critical issue before us focuses on the first element of the passion/provocation
manslaughter offense, that is, whether there was objectively reasonable
provocation sufficient to arouse the passions of an ordinary person beyond the
power of his or her control. See Carrero, 229 N.J. at 129.
We conclude there was not. We reach that conclusion without having to
meticulously sift through the trial record in search of facts bearing on whether
there had been a reasonable provocation. Cf. Funderburg, 225 N.J. at 82–83
(citing Choice, 98 N.J. at 299). Defendant testified at trial in his own defense.
In this instance, defendant's testimony establishes that Paulsen's conduct did not
constitute an objectively reasonable provocation to mitigate murder. 14
14
Although the absence of a request for a passion/provocation jury instruction
effectively deprived the judge an opportunity to rule on passion/provocation
mitigation during the course of the trial, we note that at sentencing, the judge
commented, "defendant was the one who created the circumstances that led to
the victim's death. He was the one who chose to leave his home when he could
have called the police. He was the one who brought a weapon outside." The
judge added, "If there was any provocation to this crime, it was defendant who
created it." The judge also remarked, "[d]efendant was the one who initiated the
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The flaw in defendant's plain error contention, therefore, is not that the
evidence relevant to passion/provocation is buried in the trial record, making it
unduly burdensome for the trial court on its own to have gleaned a basis for
delivering a passion/provocation manslaughter charge. See ibid. Rather,
defendant's plain error argument fails because the version of events he recounted
in his trial testimony does not "jump off the page" in establishing that there was
objectively reasonable provocation. Ibid. Even accepting the credibility of
defendant's testimony, see supra subsection G, his version of the events that
unfolded during the fatal confrontation fails to meet the "clearly-indicated"
standard as to have required a jury instruction on passion/provocation
manslaughter sua sponte.
Indeed, what jumps off the pages of the trial transcript is the absence of
evidence relating to many of the traditional attributes of objectively reasonable
provocation. Notably, for example, there was no evidence of physical fighting
involving defendant and Paulsen. Rather, there were just words between them.
See Crisantos, 102 N.J. at 274 (noting words alone do not constitute adequate
provocation).
encounter . . . . There is no evidence that tends to excuse or justify defendant's
conduct."
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In Robinson, testimony was presented that "[the victim], a boxer, punched
defendant once extremely hard on the nose and mouth, and defendant 'buckled'
and 'staggered back.'" 136 N.J. at 479. The Court concluded that "in view of
[the victim's] admittedly powerful blow to defendant's face, we agree that the
facts clearly indicate the objective adequacy of the provocation." Id. at 492.
In the matter before us, in contrast, there is no evidence of any such
physical battery. Defendant was not involved in or even present at the brief
fistfight between Paulsen and DeFilippis. Accordingly, the subsequent one -on-
one encounter between defendant and Paulsen does not fall under the rubric of
either the "battery" or "mutual combat" variants of reasonable provocation. See
Powell, 84 N.J. at 311 n.4 (recognizing battery and mutual combat as two of the
"traditional categories of provocative behavior").
But even if the fatal confrontation between defendant and Paulsen were
charitably characterized as a mutual combat "contest," it certainly was not
waged on equal terms. See State v. Viera, 346 N.J. Super. 198, 215–16 (App.
Div. 2001) (citing Crisantos, 102 N.J. at 274–75) (noting that "although mutual
combat under certain circumstances may constitute adequate provocation and
reduce murder to manslaughter, the contest must be waged on equal terms").
Paulsen was, at most, armed with a syringe that might be impressed into use as
a close-range weapon. Defendant, in contrast, had taken the precaution to arm
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himself with a compound bow that was designed to be a deadly weapon, one that
could—and did—kill at distance.
Defendant's decision to retrieve a deadly weapon shows that he was
primed for a violent confrontation. The trial evidence suggests, moreover, that
defendant displayed the weapon, as indicated by the statement attributed to
Paulsen, "What, are you going to shoot me with that?" Defendant testified that
his "original intent was to show [Paulsen] I had a weapon." Defendant, in other
words, made a show of force, presumably to intimidate Paulsen and to induce
him to leave. Indeed, defendant testified that he meant to scare Paulsen. In
these circumstances, it seems fair to say that defendant essentially became the
provocateur of the fatal violence that ensued. See supra note 14 (explaining that
the trial judge reached the same conclusion during the sentencing hearing).
We acknowledge that defendant's testimony, when viewed in context with
DeFilippis' testimony concerning past episodes involving Paulsen, could be
interpreted to suggest that Paulsen may have previously threatened to infect
others with HIV. 15 But what jumps off the page of the trial transcript is that
15
We agree that past conduct and prior interactions between the parties may be
considered in gauging the adequacy of provocation. See Viera, 346 N.J. at 266
(holding a course of conduct, including a prior confrontation between the
defendant and victim, may be considered as part of the totality of the
circumstances in determining whether there was adequate provocation); see also
Funderburg, 225 N.J. at 70–71 (recounting incidents of hostility between the
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defendant never testified that on this occasion, Paulsen explicitly threatened to
use a syringe as a weapon. Indeed, defendant never testified that Paulsen had
ever assaulted anyone with a syringe or had ever explicitly threatened to do so.
Nor was there any evidence to suggest that Paulsen had used or threatened to
use a syringe or any other type of weapon during the earlier fight with
DeFilippis. Rather, defendant subjectively assumed the threat from the fact that
Paulsen was approaching him and appeared to have pulled out some object that
defendant assumed was a hypodermic syringe.
By defendant's own account, moreover, the victim was thirty feet away
when he began to approach defendant. Defendant did not testify that Paulsen
was running at him. Rather, defendant testified only that Paulsen was "coming
towards" him. Defendant did not testify that Paulsen had come close enough to
have used a syringe as a weapon. Furthermore, defendant did not testify that
Paulsen was holding the object in his hand as if preparing to strike with it. There
was, in other words, no evidence of a "menacing gesture." Bonano, 59 N.J. at523–24.
Throughout the confrontation, defendant was yelling at Paulsen. That
circumstance certainly indicates that defendant was agitated. However, the first
defendant and victim that occurred weeks before the altercation that resulted in
the victim's stabbing).
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element of passion/provocation manslaughter focuses on the victim's conduct
claimed to be provocative, not on whether defendant's passions were actually
aroused. See Mauricio, 117 N.J. at 412.
We note, finally, that defendant contends there was evidence that he was
"scared" and had "panicked." That argument once again misses the point. At
the risk of undue repetition, we reiterate that the critical threshold question
before us is not whether defendant subjectively lost his capacity for self-control.
Rather, this case hinges on whether the victim's conduct would cause an
objectively reasonable person to lose control.
In any event, our own review of the pertinent trial testimony shows that
the officer who interviewed defendant and testified that he had panicked was not
referring to defendant's decision to use deadly force during the confrontation.
Rather, the trial testimony concerning "panic" relates to defendant's subsequent
decisions to lie to an inquiring neighbor about Paulsen's dire physical condition
and thereafter to discard the bow and arrows at a remote, unconnected location.
For purposes of determining whether a passion/provocation manslaughter
instruction is clearly-indicated, it is irrelevant that defendant may have lost his
capacity for self-control after he realized that he had mortally wounded Paulsen.
Defendant's decision to lie to the neighbor about Paulsen's condition and his
ensuing decision to abandon the crime-weapon in the woods may well show that
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he was, by that point, in a state of panic. But those passions and any resultant
loss of self-control are attributable to defendant's alarming conduct, not
Paulsen's.
In view of our conclusion that there was insufficient evidence of adequate
provocation, we need not decide whether there had been an adequate "cooling
off" period. See Funderburg, 225 N.J. at 83 ("Without sufficient evidence to
suggest adequate provocation, there is no need to consider whether a reasonable
person in Funderburg's position would have had time to cool off between the
provocation and [attempted] slaying."). We note that in Robinson, the Court
acknowledged, "it is well-nigh impossible to set specific guidelines in temporal
terms" when determining whether defendant had sufficient time to cool down
between the provocation and the defendant's reaction. 136 N.J. at 492 (quoting
Mauricio, 117 N.J. at 413). The Court nonetheless held that "a half hour [is]
not, as a matter of law, a sufficiently long period of time such that 'no jury could
rationally determine that a reasonable person's inflamed passions might not have
cooled sufficiently to permit the return of self-control.'" Id. at 492 (quoting
Mauricio, 117 N.J. at 415).
In this instance, defendant testified that his one-on-one confrontation with
Paulsen "was all of a matter of a few seconds." It would thus appear that there
was no time at all for any inflamed passions to cool as measured from the
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moment of the provocation that defendant now asserts—the victim coming
towards him while holding a presumed syringe—and the moment defendant
fired the arrow. 16 But as Funderburg suggests, a consideration of the adequacy
of a "cooling off" period is unnecessary. Indeed, that analysis seems inapposite
in the absence of an objectively reasonable provocation from which to cool down
from.
In sum, applying the "clearly-indicated" test to the evidence adduced at
trial, we conclude that defendant was not entitled to an instruction on
passion/provocation manslaughter sua sponte.
IV.
The passion/provocation jury charge issue defendant raises on appeal as
plain error arises often enough to warrant a new practice and procedure to
safeguard a defendant's right to a fair trial and to avoid whenever possible the
need to reverse an otherwise valid jury verdict. 17 As our Supreme Court stressed
16
At the sentencing proceeding, the trial judge rejected defendant's request to
apply mitigating factor four, N.J.S.A. 2C:44-1(b)(4) ("[t]here were substantial
grounds tending to excuse or justify the defendant's conduct, though failing to
establish a defense"), reasoning that "[d]efendant was the one who initiated this
encounter. He had ample time to consider an alternative."
17
As we noted at the outset of this opinion, courts in this State are not
infrequently tasked in murder cases to decide whether to instruct the jury on the
lesser-included offense of passion/provocation manslaughter. See, e.g., Carrero,
229 N.J. at 131 (facts were sufficient for passion/provocation charge);
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in Funderburg, "[t]he appropriate time to object to a jury charge is 'before the
jury retires to consider its verdict.'" 225 N.J. at 79 (citing R. 1:7-2). It follows
that trial judges, not appellate courts, should decide in the first instance what
jury instructions should be delivered. In making those decisions, moreover, trial
courts should be aided and informed by the arguments of the parties. Indeed,
that is one of the principal reasons for the Court Rule that requires the trial court
to hold a charge conference. R. 1:8-7(b) ("Prior to closing arguments, the court
shall hold a charge conference on the record in all criminal cases."). Trial courts
should not be dissuaded from considering whether to instruct on
passion/provocation mitigation by what the Court in Garron characterized as
Funderburg, 225 N.J. at 82 (defendant was not entitled to passion/provocation
jury charge); State v. Branch, 155 N.J. 317, 329 (1998) (counsel failed to request
passion/provocation jury charge); Robinson, 136 N.J. at 492 (evidence was
sufficient for sua sponte jury charge on attempted passion/provocation
manslaughter); State v. Purnell, 126 N.J. 518, 540–42 (1992) (record did not
indicate need for passion/provocation jury charge); State v. Oglesby, 122 N.J.
522, 535–36 (1991) (record did not support passion/provocation jury charge);
State v. Perry, 124 N.J. 128, 158–59 (1991) (facts did not clearly indicate
appropriateness of jury charges); Mauricio, 117 N.J. at 417–18 (defendant was
entitled to passion/provocation charge); Crisantos, 102 N.J. at 278 n.11 (trial
court did not err in failing to provide jury charge on passion/provocation);
Powell, 84 N.J. at 310; Viera, 346 N.J. Super. at 214 (defendant was entitled to
sua sponte passion/provocation jury charge); Pridgen, 245 N.J. Super. at 250
(charge on passion provocation was required). We list only published cases
where the failure to charge on passion/provocation was raised on appeal. We
do not list unpublished cases that have addressed this recurring issue. See R.
1:36-3 (stating that except in circumstances not relevant here, "no unpublished
opinion shall be cited by any court.")
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"partisan strategic maneuvering of both the State and defendant[,]" 177 N.J. at
180, which in this case may have been expressed by the parties' silence.
History shows that counsel in murder cases often determine that their
client's interests would best be served by an "all-or-nothing" verdict. See
Powell, 84 N.J. at 317–18 (recognizing that a defendant "might oppose [a lesser
included manslaughter] instruction for a variety of reasons" including the
possibility of "perhaps lessening what he [or she] perceives to be a strong
possibility of a verdict of acquittal"). Indeed, both parties may prefer to take
their chances on an all-or-nothing verdict, in which event they may choose not
to raise the passion/provocation manslaughter issue with the trial judge. But as
we have emphasized, trial courts have an independent obligation to determine
whether the jury should be given the option to convict on lesser charges. See
Jenkins, 178 N.J. at 361 (holding that even in the absence of a request-to-charge,
"a trial court has an independent obligation to instruct on lesser-included charges
when the facts adduced at trial clearly indicate that a jury could convict on the
lesser while acquitting on the greater offense"); see also Powell, 84 N.J. at 317(noting that "[a]lthough a manslaughter instruction is usually requested by a
defendant . . . it is conceivable that the State could be the party seeking such an
instruction, or the [trial] court could consider delivery of such an instruction on
its own where neither party has made a request therefor").
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One of the problems with what might be characterized as a "don't ask/don't
charge" litigation strategy is that it puts the onus entirely on the trial judge to
broach the issue. Furthermore, the parties' strategic silence deprives the judge
the benefit of helpful arguments in marshaling the relevant facts to determine
whether the issue warrants a fulsome discussion. Cf. Powell, 84 N.J. at 311–12
(noting, "[t]he situation was complicated further when the courts were forced to
look to the record themselves (without any request by counsel) for
circumstances that could provide the inference of provocation/passion where an
altercation had taken place."). It is time to bring the decision whether to instruct
on passion/provocation manslaughter out of the shadows and onto the record in
cases where the trial court has already determined that the jury must consider
whether the victim's conduct affects the defendant's culpability under the self -
defense doctrine.
The recurring nature of the provocation/manslaughter jury instruction
issue that was raised in this case for the first time on appeal prompts us to
recommend a new procedural rule designed to enhance the decision-making
process at the trial court level so that courts can better fulfill their independent
obligation to charge a jury on passion/provocation when that instruction is
required to be delivered. We also deem it appropriate to take steps to minimize
the chances that an otherwise valid guilty verdict might have to be reversed for
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plain error. Any such reversal and the resultant need to retry a murder case
exacts a toll not only on the parties and the courts, but also on the survivors of
the homicide; victims have a keen interest in the fairness and finality of a trial
verdict. At the risk of stating the obvious, we have an obligation to help ensure
that error is not committed with respect to a passion/provocation jury
instruction, not just to remedy plain error on appeal by vacating a conviction
and remanding for a new trial. 18
18
We note that if a retrial were needed in any case, such as the present one,
where the defendant had been acquitted of murder but convicted of aggrav ated
manslaughter, the defendant could be retried only for aggravated manslaughter
and lesser offenses, not murder. That circumstance would complicate the jury
instructions on retrial to the extent that the passion/provocation manslaughter
offense requires the jury to find that the State proved the elements of
knowing/purposeful murder. In State v. Grunow, the Court held that
passion/provocation manslaughter could be presented at a retrial despite the
initial conviction for aggravated manslaughter. 102 N.J. 133, 149 (1986). The
Court nonetheless acknowledged,
[w]e recognize that our holding on the availability of
passion/provocation to mitigate aggravated
manslaughter will raise practical problems in
presenting the issues to the jury on the retrial since the
defendant cannot be retried for murder. We believe,
however, that if the evidence presented at the retrial
warrants, the court can clarify that passion/provocation
manslaughter may be an available verdict if the jury
finds from the evidence that the State has proven the
elements of that offense beyond a reasonable doubt.
[Ibid.; see also Pridgen, 245 N.J. Super. at 251.]
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We therefore deem it prudent that when in a murder prosecution the trial
court determines to instruct the jury on self-defense, the court at the charge
conference conducted pursuant to Rule 1:8-7(b) should also consider and make
specific findings on the record on whether to instruct the jury on the lesser -
included offense of passion/provocation manslaughter, regardless of whether
that instruction was requested by either party. To that end, we recommend that
the Model Criminal Jury Charges Committee consider the advisability of
revising the model jury instructions for murder, aggravated manslaughter,
reckless manslaughter, passion/provocation manslaughter, and self-defense to
include a notation or footnote advising trial judges to consider whether to deliver
the passion/provocation instruction in cases where the judge has determined to
deliver a self-defense instruction.
We emphasize that our recommendation is designed to ensure that the
decision whether to instruct the jury on passion/provocation manslaughter in
addition to self-defense is made with the aid of the arguments of counsel 19 and
We cite these cases to underscore that the best way to avoid the "practical
problems" alluded to in Grunow is to avoid the need for a retrial by ensuring
that the passion/provocation manslaughter issue is addressed correctly in the
first instance by the trial court.
19
A defendant's argument, for example, that a passion/provocation
manslaughter instruction would be inconsistent with his or her self-defense
theory should be presented to the trial court for its consideration. That argument
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placed on the record to facilitate appellate review if that should become
necessary. We stress that a passion/provocation instruction will not always be
needed or appropriate in conjunction with a self-defense instruction. A trial
court's ultimate decision of whether to instruct on passion/provocation
manslaughter will depend on a careful analysis of the specific circumstances of
the case and the arguments of the parties. We also wish to make clear that we
do not mean to alter the "clearly-indicated" standard that applies when the
defendant has not requested the passion/provocation manslaughter charge or
objects to it. See Funderburg, 225 N.J. at 81 ("When the parties to a criminal
proceeding do not request that a lesser-included offense such as attempted
passion/provocation manslaughter be charged, the charge should be delivered to
the jury only when there is 'obvious record support for such [a] charge.'")
(citation omitted); see also supra note 8 (discussing when the request for the
instruction is made by the State). Accordingly, a trial court should apply the
"clearly-indicated" standard if, at the charge conference, the defendant objects
to a passion/provocation manslaughter instruction. The new practice we
recommend is designed only to ensure that the applicable standard—whichever
should not be broached for the first time on appeal by the prosecutor, as was
necessary in Funderburg, 225 N.J. at 78; see also supra note 12.
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that may be—is applied in the first instance by the trial court before a verdict is
rendered, rather than by an appellate court reviewing a cold record.
V.
We next address defendant's contention that the trial court erred in
instructing the jury on the legal principles of self-defense. Defendant contends
that the charge on self-defense was incomplete and inadequate because the court
instructed the jury that a person has a duty to retreat before employing deadly
force but did not instruct the jury that a person is not obliged to retreat from his
or her own dwelling unless he or she was the aggressor. Defendant did not
request that specific instruction at the charge conference. Nor did he object to
the use-of-force charge that was delivered. 20
Because this issue was not raised at the charge conference, the judge had
no occasion to make specific findings with respect to the proximity of the fatal
confrontation to the house in which defendant resided. Defendant contends on
appeal that, "[f]rom this record, 21 there was sufficient evidence that Paulsen was
shot on defendant's driveway, close to the shed, and that the driveway was part
20
The record shows that Judge Ragonese delivered thorough and accurate
instructions on the principles of self-defense, tracking the pertinent model jury
charges as agreed at the charge conference.
21
Defendant refers to the videotaped re-enactment that he performed for police,
and to his trial testimony recounting his version of events.
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of the home's curtilage." We accept, for purposes of argument, that the incident
occurred on or near defendant's driveway. Notably, defendant does not claim
on appeal that the fatal confrontation occurred on a porch or entranceway of a
structure that was used as a home or lodging. Rather, the fundament of his
argument on appeal is that the driveway is part of the home's "curtilage" and
thus is included within the rubric of a dwelling for purposes of the duty to retreat.
We reject defendant's legal argument and, accepting his version of the facts,
conclude that the fatal confrontation between defendant and Paulsen occurred
outside the geographic scope of defendant's "dwelling" as that term is used in
N.J.S.A. 2C:3-4(b)(2)(b)(i).
A.
As we have already explained, when there is no objection to the jury
charge, the standard of review on appeal is plain error. Funderburg, 225 N.J. at
79; R. 2:10-2. "[P]lain error requires demonstration of 'legal 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. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54
N.J. 526, 538 (1969)). As our Supreme Court recently reaffirmed in State v.
Montalvo, when a defendant does not object to the jury charge, "there is a
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presumption that the charge was not error and was unlikely to prejudice ...
defendant's case." 229 N.J. 300, 320 (2017) (quoting State v. Singleton, 211
N.J. 157, 181–82 (2012)). When determining whether the plain error standard
has been met, moreover, the charge must be read as a whole, and the error "must
be evaluated in light of the totality of the circumstances—including all the
instructions to the jury, [and] the arguments of counsel." State v. Adams, 194
N.J. 186, 207 (2008) (alteration in original) (quoting State v. Marshall, 123 N.J.
1, 145 (1991)).
Under New Jersey law, the use of deadly force is not justifiable in self -
defense if the "actor knows that he can avoid the necessity of using such force
with complete safety by retreating" except that the "actor is not obliged to retreat
from his [or her] dwelling, unless he [or she] was the initial aggressor." N.J.S.A.
2C:3-4(b)(2)(b)(i). We are tasked in this appeal to determine (1) the meaning
of the statutory phrase "from his [or her] dwelling," and (2) whether the
confrontation between defendant and Paulsen occurred within or appurtenant to
a dwelling as to require that the jury be instructed on this exception to the
general duty to retreat before employing deadly force.
The term "dwelling" is not defined in N.J.S.A. 2C:3-4(b)(2)(b)(i) nor in
any other subsection or paragraph of N.J.S.A. 2C:3-4. However, it bears noting
that the term also is used in N.J.S.A. 2C:3-4(c), which addresses the duty to
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retreat from a threat posed by an intruder. 22 We believe the term dwelling is
intended to have same meaning in both N.J.S.A. 2C:3-4(b)(2)(b)(i) and N.J.S.A.
2C:3-4(c). These two statutory provisions appear in the same section of Title
2C that explains when force may be used in self-protection. The two provisions
are, without question, closely related; both pertain to the circumstances when
persons are authorized to stand their ground while in their dwellings. See
DiProspero v. Penn, 183 N.J. 477, 492 (2005) (first citing Lane v. Holderman,
23 N.J. 304, 313 (1957); and then citing Chasin v. Montclair State Univ, 159
N.J. 418, 426–27 (1999)) ("We ascribe to the statutory words their ordinary
meaning and significance, and read them in the context with related provisions
so as to give sense to the legislation as a whole."); see also State v. Rolon, 199
N.J. 575, 589 (2009) (Long, J., concurring) (citing Oldfield v. N.J. Realty Co.,
1 N.J. 63, 69 (1948)) ("[W]here the Legislature uses the same language more
22
N.J.S.A. 2C:3-4(c)(1) provides:
Notwithstanding the provisions of N.J.S. 2C:3-5, N.J.S.
2C:3-9, or this section [N.J.S.A. 2C:3-4], the use of
deadly force upon or toward an intruder who is
unlawfully in a dwelling is justifiable when the actor
reasonably believes that the force is immediately
necessary for the purpose of protecting himself [or
herself] or other persons in the dwelling against the use
of unlawful force by the intruder on the present
occasion.
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than once in a statute, the same meaning will be ascribed to each usage unless
the Legislature has specifically indicated otherwise."). Accordingly, published
cases that explain the scope of the use-of-force-against-an-intruder provision,
N.J.S.A. 2C:3-4(c), are relevant and persuasive in explaining the scope of
N.J.S.A. 2C:3-4(b)(2)(b)(i).
B.
We begin our survey of the relevant precedents by highlighting the model
jury instruction for N.J.S.A. 2C:3-4(c), which provides helpful guidance as to
the meaning of the term "dwelling." 23 See State v. Whitaker, 402 N.J. Super.
495, 513–14 (App. Div. 2008) (citing State v. Angoy, 329 N.J. Super. 79, 84
(App. Div. 2000)) (acknowledging that trial courts may rely on model jury
charges and that following a model charge "is a persuasive argument in favor
the charge as delivered"). That model charge explains that a "dwelling" is "any
building or structure though movable or temporary, or a portion thereof, which
is used as a person's home or place of lodging." Model Jury Charges (Criminal),
"Justification – Use of Force Upon an Intruder (N.J.S.A. 2C:3-4(c))" (rev. Sept.
23
We note that the model jury charge for N.J.S.A. 2C:3-4(b)(2)(b)(i) provides
consistent but less detailed guidance on the meaning of the term "dwelling."
That model instruction provides simply: "[CHARGE WHERE
APPLICABLE: A dwelling includes a porch or other similar structure.]" Model
Jury Charges (Criminal), "Justification – Self Defense: In Self Protection
(N.J.S.A. 2C:3-4)" (rev. June 13, 2011) (emphasis in original).
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12, 2016). The model charge for N.J.S.A. 2C:3-4(c) further explains that
"dwelling includes the entranceway of a building or structure" and also "includes
a 'porch or similar appurtenance.'" Ibid. The model jury charge cites as
authority our decisions in State v. Martinez, 229 N.J. Super. 593 (App. Div.
1989) and State v. Bilek, 308 N.J. Super. 1 (App. Div. 1998).
In Martinez, we held that for purposes of N.J.S.A. 2C:3-4(c), the term
"dwelling" includes the threshold of the house, such as the porch or front door.
229 N.J. Super. at 604. In Bilek, we held that a "dwelling" includes the doorway
or entranceway of an apartment. 308 N.J. Super. at 12. So far as we are aware,
no judicial decision has interpreted either N.J.S.A. 2C:3-4(c) or N.J.S.A. 2C:3-
4(b)(2)(b)(i) to apply to an altercation that occurs entirely outdoors at a location
that is not on or at the entranceway to a structure.
C.
Defendant urges us to interpret the word dwelling more expansively to
encompass any part of the so-called "curtilage" of a house. Curtilage is a Fourth
Amendment concept that defines the geographic scope of the heightened privacy
protections that are associated with a home. Those constitutional privacy
protections may in certain circumstances be extended outside a house to
walkways, driveways, and porches. See State v. Domicz, 188 N.J. 285, 302
(2006) (emphasis added) (citing State v. Johnson, 171 N.J. 192, 208–09 (2002))
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("Curtilage is land adjacent to a home and may include walkways, driveways,
and porches.").
We decline defendant's invitation to rely on Fourth Amendment principles
to expand the scope of the term dwelling for purposes of authorizing d eadly
force pursuant to N.J.S.A. 2C:3-4(b)(2)(b)(i). The Fourth Amendment and its
state constitutional counterpart—Article I, paragraph 7 of the New Jersey
Constitution—serve a different purpose than the statutory framework that
explains when a person is justified in using deadly force. The Fourth
Amendment and Article I, paragraph 7, protect against liberty and privacy
incursions by the government in the form of arrests, searches, and seizures.
These constitutional provisions do not protect against intrusions by private
actors. See State v. Navarro, 310 N.J. Super. 104 (App. Div. 1998) (holding that
the Fourth Amendment applies only to government actions and not to
unreasonable searches conducted by a landlady). Ultimately, the scope of the
dwelling exception to the general duty to retreat before employing deadly force
is defined by statute, not by Fourth Amendment principles.
We find support for our conclusion that N.J.S.A. 2C:3-4(b)(2)(b)(i) does
not extend throughout the curtilage of a home in Bonano, 59 N.J. at 515. That
pre-code case interpreted and applied the duty-to-retreat principles that are now
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codified in N.J.S.A. 2C:3-4(b)(2)(b)(i) and N.J.S.A. 2C:3-4(c).24 In Bonano, the
Supreme Court examined the so-called "castle doctrine," which is the common
law exception to the general rule that a person must retreat when it is reasonably
safe to do so before using deadly force for self-protection or the protection of
others. The Court in Bonano relied on our State's predecessor general self-
defense statute, N.J.S.A. 2A:113-6, and on common law principles exempting
the general duty to retreat when using protective force in one's own home. The
Court quoted our then-recent observation in State v. Provoid, 110 N.J. Super.
547, 554 (App. Div. 1970), that "the majority of jurisdictions in this country
have concluded the privilege of self-defense without retreat extends to anywhere
within the 'curtilage' of a man's [or woman's] home." 59 N.J. at 520.
The Bonano Court remarked, "[t]his is, indeed, the majority view, and yet
one may question its soundness." Ibid. The Court went on to stress that
"'[c]urtilage' is not a term that can in all cases be precisely defined," and then
posed the rhetorical question, "[m]ight not the better rule be that a duty to retreat
should exist except as to the dwelling house itself, defined, as stated above, to
include a porch or other similar appurtenance?" Ibid. The Court concluded,
24
N.J.S.A. 2C:3-4(a) and (b) were enacted in 1978 as part of the original version
of the New Jersey Code of Criminal Justice (penal code), N.J.S.A. 2C:1-1 to
104-9 (L. 1978, c. 95). N.J.S.A. 2C:3-4(c) was enacted in 1987. L. 1987, c.
120, § 1.
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"[t]his case does not raise the issue and we leave its resolution to another day."
Ibid. The Court nonetheless made clear, "[a]t this time, however, we limit our
acceptance of this [castle] rule to those cases where the defendant is actually in
his dwelling house. A porch or other similar physical appurtenance is deemed
to come within this concept." Ibid. (emphasis added).
We share the Bonano Court's concern that the term "curtilage" is not well-
defined. Grafting the amorphous and potentially complex 25 curtilage concept
into the definition of the term dwelling for purposes of N.J.S.A. 2C:3-
4(b)(2)(b)(i), therefore, might introduce uncertainty and ambiguity to the penal
code. For example, if we accepted the broad interpretation of dwelling that
defendant proposes, would the exception to the general duty to retreat apply to
25
In Domicz, our Supreme Court noted:
Whether the Fourth Amendment safeguards an area of
curtilage depends on a consideration of various factors,
including whether the area is included within an
enclosure surrounding the home, the nature of the uses
to which the area is put, and the steps taken by the
resident to protect the area from observation by people
passing by. An area within the curtilage to which the
public is welcome, such as a walkway leading to an
entrance to a home, is not afforded Fourth Amendment
protection because the resident has given implicit
consent to visitors to approach the home that way.
[188 N.J. at 302 (citations and quotations omitted).]
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the entire length of a driveway, extending to the apron that abuts a public
sidewalk or street? Would it extend to the entire area of a back or side yard,
reaching to and terminating at the unmarked boundary of a neighbor's yard? Or
is there an invisible line on a driveway or backyard—fixed somewhere between
the point closest to the house and the outer boundaries of the property line —
where the circumstances in which deadly force is authorized abruptly changes?
We leave that type of line-drawing to the Legislature and decline to interpret
this use-of-force provision of the penal code in a way that might render it
impermissibly vague. Cf. State v. Dillihay, 127 N.J. 42, 52 (1992) (quoting
State v. Profaci, 56 N.J. 346, 350 (1970)) (noting that "[e]ven though a statute
may be open to a construction which would render it unconstitutional or permit
its unconstitutional application, it is the duty of this Court to so construe the
statute as to render it constitutional if it is reasonably susceptible to such
interpretation"). It is one thing for trial and appellate courts to determine the
amorphous boundaries of a home's curtilage when deciding motions to suppress
evidence. It is another thing to import that complex and subjective legal
construct into the penal code as an element of an affirmative defense that must
be explained to a jury.
The Legislature presumably was aware of the concerns raised in Bonano
when it enacted N.J.S.A. 2C:3-4(b)(2)(b)(i) in 1978 and N.J.S.A. 2C:3-4(c) in
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1987. See DiProspero, 183 N.J. at 494. Notably, the Legislature did not employ
the term curtilage in the penal code. Rather, the Legislature enacted a
formulation in N.J.S.A. 2C:3-4 aligned with the more narrowly-crafted holding
in Bonano. See id. at 294–95 ("The Legislature knows how to incorporate into
a new statute a standard articulated in a prior [judicial] opinion.").
We add that N.J.S.A. 2C:1-1(e) expressly provides that, "[t]he provisions
of the [penal] code not inconsistent with those of prior laws shall be construed
as a continuation of such laws." Applying that principle of statutory
construction, we interpret the geographic scope of the term dwelling in N.J.S.A.
2C:3-4(b)(2)(b)(i) to have the same meaning as was used in the common law
duty-to-retreat principles and predecessor use-of-force statute, N.J.S.A. 2A:113-
6, that were interpreted in Bonano.
We are thus satisfied that Martinez and Bilek were correctly decided and
we see no reason to part company with the thoughtful analysis in those cases.
Nor has the Legislature seen fit to overturn those decisions by expanding the
term dwelling to include outdoor areas such as a backyard or driveway. In
DiProspero, our Supreme Court recognized that "the Legislature is presumed to
be aware of judicial construction of its enactments." 183 N.J. at 494 (quoting
N.J. Democratic Party, Inc. v. Samson, 175 N.J. 178, 195 n.6 (2002)). Relatedly,
"the Legislature knows how to incorporate into a new statute a standard
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articulated in a prior [judicial] opinion." Id. at 494–95; see also State v. Thomas,
166 N.J. 560, 567–68 (2001) (citing State v. Wilhalme, 206 N.J. Super. 359, 362
(App. Div. 1985), superseded by statute, N.J.S.A. 2C:43-7.2(d), as recognized
in Rutgers Cas. Ins. Co. v. LaCroix, 194 N.J. 515, 532 (2008)) ("Under
applicable canons of statutory construction, when the Legislature uses words in
a statute that previously have been the subject of judicial construction, the
Legislature will be deemed to have used those words in the sense that has been
ascribed to them.").
D.
We next apply the Bonano/Martinez/Bilek interpretation of "dwelling" to
the facts adduced at trial. The trial evidence, including defendant's version of
events as related in his trial testimony, clearly shows that he did not shoot the
arrow at Paulsen while either of them was on or in a porch, front door, or
entryway. Rather, as we have noted, defendant on appeal claims that Paulsen
was shot on the driveway, close to the shed. In these circumstances, we do not
believe the confrontation between them occurred within or appurtenant to
defendant's dwelling for purposes of N.J.S.A. 2C:3-4(b)(2)(b)(i). Given that
conclusion, we need not address whether defendant was the "initial aggressor"
for purposes of applying N.J.S.A. 2C:3-4(b)(2)(b)(i) (the "actor is not obliged
to retreat from his [or her] dwelling, unless he [or she] was the initial
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aggressor").26 Accordingly, the trial court did not err, much less commit plain
error, by failing to instruct the jury on this inapposite use-of-force principle sua
sponte.
VI.
We turn next to defendant's contention that the trial court delivered
incomplete and inadequate instructions to the jury on the principles of causation
as set forth in N.J.S.A. 2C:2-3. That statute reads in its entirety:
a. Conduct is the cause of a result when:
(1) It is an antecedent but for which the result in
question would not have occurred; and
(2) The relationship between the conduct and result
satisfies any additional causal requirements imposed by
the code or by the law defining the offense.
b. When the offense requires that the defendant
purposely or knowingly cause a particular result, the
actual result must be within the design or
contemplation, as the case may be, of the actor, or, if
not, the actual result must involve the same kind of
injury or harm as that designed or contemplated and not
be too remote, accidental in its occurrence, or
dependent on another’s volitional act to have a just
bearing on the actor’s liability or on the gravity of his
offense.
c. When the offense requires that the defendant
recklessly or criminally negligently cause a particular
26
We note in the interest of completeness that Judge Ragonese remarked at
sentencing that "[d]efendant was the one who initiated the encounter" and that
"[i]f there was any provocation to this crime, it was defendant who created it."
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result, the actual result must be within the risk of which
the actor is aware or, in the case of criminal negligence,
of which he should be aware, or, if not, the actual result
must involve the same kind of injury or harm as the
probable result and must not be too remote, accidental
in its occurrence, or dependent on another’s volitional
act to have a just bearing on the actor’s liability or on
the gravity of his offense.
d. A defendant shall not be relieved of responsibility for
causing a result if the only difference between what
actually occurred and what was designed, contemplated
or risked is that a different person or property was
injured or affected or that a less serious or less
extensive injury or harm occurred.
e. When causing a particular result is a material element
of an offense for which absolute liability is imposed by
law, the element is not established unless the actual
result is a probable consequence of the actor’s conduct.
Judge Ragonese charged the jury with respect to each homicide offense
that the State had to prove beyond a reasonable doubt to show defendant caused
Paulsen's death. The judge instructed the jury that "[y]ou must find that Kereti
Paulsen would not have died but for defendant's conduct." The judge also
instructed the jury that, "[w]hether the killing is committed purposely or
knowingly, causing death or serious bodily injury resulting in death must be
within the design or contemplation of the defendant."
Defendant contends that these instructions on causation were insufficient
and that the trial judge committed plain error by failing to deliver what defendant
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characterizes as the "full" jury charge on causation sua sponte. 27 Defendant does
not dispute that he did not request the trial court to deliver that model jury
27
Defendant refers to the model jury charge on causation that reads, in pertinent
part:
Causation has a special meaning under the law. To
establish causation, the State must prove two elements,
each beyond a reasonable doubt:
First, but for the defendant's conduct, the result in
question would not have happened. In other words,
without defendant’s actions the result would not have
occurred.
[WHEN PURPOSEFUL OR KNOWING
CONDUCT INVOLVED]
Second, the actual result must have been within the
design or contemplation of the defendant. If not, it
must involve the same kind of injury or harm as that
designed or contemplated, and must also not be too
remote, too accidental in its occurrence or too
dependent on another’s volitional act to have a just
bearing on the defendant's liability or on the gravity of
his/her offense.
[WHEN RECKLESS OR NEGLIGENT CONDUCT
INVOLVED]
Second, [for reckless conduct] that the actual result
must have been within the risk of which the defendant
was aware. If not, it must involve the same kind of
injury or harm as the probable result and must also not
be too remote, too accidental in its occurrence or too
dependent on another’s volitional act to have a just
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charge. Nor does he dispute that he did not object to the causation instructions
that were delivered.
A.
We begin our analysis by acknowledging that the "full" causation jury
instruction is not required in all cases. We note in this regard that the model
jury charge for murder provides judges with two distinct options for charging
on causation: one consisting of a single sentence to be used "if causal
relationship between conduct and result is not an issue," 28 and a longer option,
bearing on the defendant's liability or on the gravity of
his/her offense.
Second, [for negligent conduct] that the actual result
must have been within the risk of which the defendant
should have been aware. If not, it must involve the
same kind of injury or harm as the probable result and
must also not be too remote, too accidental in its
occurrence or too dependent on another’s volitional act
to have a just bearing on the defendant's liability or on
the gravity of his/her offense.
[Model Jury Charges (Criminal), "Causation (N.J.S.A.
2C:2-3)" (approved June 10, 2013) (emphasis in
original).]
28
The first causation option in the model jury charge for murder reads:
"Whether the killing is committed purposely or knowingly, causing death or
serious bodily injury resulting in death must be within the design or
contemplation of the defendant." As noted, the trial judge read this option
verbatim to the jury.
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reproducing the relevant text of N.J.S.A. 2C:2-3, "if causal relationship between
conduct and result is an issue." Model Jury Charge (Criminal), "Murder
(N.J.S.A. 2C:11-3(a)(1) and 3(a)(2))" (rev. June 14, 2004) (emphasis in
original); see supra note 27 (reproducing the long version of the model causation
instruction). In this instance, Judge Ragonese read verbatim the language in the
model murder charge that applies when the causal relationship between conduct
and result is not at issue. 29 Cf. Whitaker, 402 N.J. Super. at 513–14 (quoting
Angoy, 329 N.J. Super. at 84) (explaining that "[w]hen a jury instruction follows
the model jury charge, although not determinative, 'it is a persuasive argu ment
in favor of the charge as delivered'").
The notion that a jury instruction on legal causation is not required when
causation is not raised as an issue at trial is consistent with comments to the
Model Penal Code provision after which N.J.S.A. 2C:2-3 is modelled. The
29
We also note that Judge Ragonese properly charged the jury as to reckless
manslaughter and aggravated manslaughter. In doing so, Judge Ragonese read
verbatim the language in the model jury charges for when the causal relationship
between the conduct and result is not an issue. See Model Jury Charges
(Criminal), "Reckless Manslaughter (N.J.S.A. 2C:11-4(b)(1)" (rev. Mar. 22,
2004) (emphasis in original) ("If causal relationship between conduct and
result is not an issue, charge the following: You must find that (insert victim's
name) would not have died but for defendant's conduct."); Model Jury Charges
(Criminal), "Aggravated Manslaughter (N.J.S.A. 2C:11-4(a))" (rev. Mar. 22,
2004) (emphasis in original) ("If causal relationship between conduct and
result is not an issue, charge the following: You must find that (insert victim's
name) would not have died but for defendant's conduct.").
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drafters of the Model Penal Code noted that the causation provision "treats but -
for causation as the causal relationship that is normally sufficient, viewing this
as the simple, pervasive meaning of causation in the penal law." Model Penal
Code and Commentaries § 2.03 cmt. 2 at 257–58 (Am. L. Inst. 1985). The 1971
commentary to N.J.S.A. 2C:2-3 recites almost identical language, noting that
the statute "treats but-for cause as the causality relationship that normally should
be regarded as sufficient, in the view that this is the simple, pervasive meaning
of causation that is relevant for purposes of penal law." N.J.S.A. 2C:2-3 cmt. 3
(1971).
B.
The critical threshold question before us is whether the cause of Paulsen's
death was contested at trial and thus genuinely at issue. Defendant emphasizes
on appeal that N.J.S.A. 2C:2-3 and the model jury charge on causation refer to
a "result . . . not [] too remote, too accidental in its occurrence or too dependent
on another's volitional act to have a just bearing on the defendant's liability or
on the gravity of his/her offense." (emphasis supplied by defendant). Defendant
now argues that his testimony that he "lost his balance and ended up shooting"
supports a finding by the jury that he fired the arrow accidentally, thereby
automatically putting causation at issue.
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We disagree. For one thing, defendant's newly minted argument on appeal
ignores that he expressly and unambiguously testified at trial that he did not
shoot the arrow accidently, but rather did so intentionally as a warning shot.
Furthermore, defendant's argument conflates the fact-sensitive issue of whether
and to what degree he acted culpably in firing the arrow with the analytically
distinct question of whether his actions caused Paulsen's death. Defendant's
testimony concerning the awkward manner in which he claims to have
discharged the bow clearly supports the notion that his actions were reckless and
that he did not purposely or knowingly kill Paulsen. 30 Indeed, the jury ultimately
acquitted defendant of knowing/purposeful murder but found him guilty of the
lesser-included offense of aggravated manslaughter, which requires a reckless
culpable mental state. N.J.S.A. 2C:11-4(a)(1). But even accepting defendant's
version as true, any miscue in aiming the weapon did not affect the chain of
causation between the release of the arrow and the mortal wound that resulted
from that criminal act. Defendant's argument misconstrues the plain text of
N.J.S.A. 2C:2-3 by ignoring that the phrase "not too . . . accidental in its
30
As we have noted, Judge Ragonese instructed the jury on the lesser-included
offenses of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and reckless
manslaughter, N.J.S.A. 2C:11-4(b)(1). Both of these lesser-included offenses
require a reckless culpable mental state in contrast to the knowing or purposeful
mental culpability states required for the crime of murder for which defendant
was indicted. Defendant on appeal does not argue that the jury was improperly
instructed as to the meaning of "reckless" conduct.
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occurrence" refers to the "actual result," not to the voluntary act element of the
offense. See N.J.S.A. 2C:2-1(a) (providing in pertinent part that "[a] person is
not guilty of an offense unless his [or her] liability is based on conduct which
includes a voluntary act or the omission to perform an act of which he [or she]
is physically capable").
When causation is genuinely at issue, the specific causation requirement
prescribed in N.J.S.A. 2C:2-3 must be interpreted in the context of the culpable
mental state required for the offense. As the plain text of N.J.S.A. 2C:2-3 makes
clear, the standard for legal causation in cases where the offense requires that
the defendant purposely or knowingly caused a particular result is different from
the legal causation standard that applies when the offense requires that the
defendant recklessly or negligently caused a particular result. The fact that the
culpable mental state applies to all of the material elements of the offense,
including the result element, 31 does not mean, however, that causation is
automatically at issue when a defendant acts recklessly or negligently. As the
commentators to the Model Penal Code noted, "the Code proceeds on the
assumption that issues of this sort ought to be dealt with as problems of the
culpability required for conviction and not as problems of 'causation.'" Model
31
See N.J.S.A. 2C:2-2(a) and N.J.S.A. 2C:2-2(c)(1), providing that the culpable
mental state applies to all the material elements of the offense, including the
conduct (voluntary act or omission) and the result of the conduct.
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Penal Code § 2.03 cmt. 2 at 258 (Am. L. Inst. 1985). Accordingly, we interpret
the statutory phrase "not too . . . accidental in its occurrence" to address whether
the actual result of a defendant's conduct is fortuitous, not whether the defendant
acted purposefully, knowingly, recklessly, or negligently in using deadly force.
C.
We need not repeat in this section the case law we have already discussed
that explains the contours of the plain error standard of review that applies when
a defendant challenges jury instructions for the first time on appeal. We now
add to that discussion analyses of three cases in which guilty verdicts were
reversed on appeal as plain error specifically because the trial courts failed to
deliver adequate jury instructions on causation. We do so to shed light on when
the relationship between a defendant's conduct and the resultant harm of that
conduct is deemed to be at issue. 32
In State v. Green, the defendant was charged with aggravated assault of a
police officer. 318 N.J. Super. 361, 365–66 (App. Div. 1999), aff'd o.b., 163
N.J. 140 (2000). The officer, who was in plain clothes but was wearing a jacket
marked "police," approached the defendant's vehicle, displayed his badge, and
told the defendant he would like to speak with him. Id. at 367–68. Green reacted
32
We note that defendant fails to cite to cases discussing causation in his appeals
brief.
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by putting the car in reverse, "peel[ing] backward quickly," and then driv ing
forward. Id. at 368. The officer ran after the car while shouting for Green to
stop. Ibid. The fleeing vehicle struck the pursuing officer in the leg, causing
him to experience some pain. Ibid. The officer continued to run alongside
defendant's car and "punched his right hand through the driver's side window,
shattering the window and cutting his hand." Ibid. The officer was taken to the
hospital and eventually was left with a scar on his palm. Ibid. The seriousness
of the hand injury was relevant to whether the defendant had committed
aggravated assault as distinct from simple assault.
On those facts, we determined that "there was a factual issue regarding
causation [of the hand injury] that required the trial judge to give a fact-specific
causation charge, and that her failure to do so was plain error." Id. at 373.
Specifically, in that case, the jury needed to resolve whether the defendant's
actions were the legal cause of the officer's hand injury in view of the officer's
volitional decision to punch the car window during his pursuit. Id. at 374–75.
In State v. Parkhill, the defendant was convicted at trial of second-degree
reckless vehicular homicide, N.J.S.A. 2C:11-5(a). 461 N.J. Super. 494 (App.
Div. 2019). The defendant was travelling 80 m.p.h. in a 45 m.p.h. zone and had
been tailgating a vehicle when he crossed an intersection and struck and killed
a pedestrian. Id. at 497. The victim tried to traverse the road outside the
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crosswalk, while defendant and other oncoming drivers had a green light. Ibid.
The defendant contended that the victim caused the accident by crossing a busy
road during the morning rush hour against the light and outside the cross -walk.
Id. at 498. Defendant argued on appeal that in these circumstances, the trial
court should have delivered a specific instruction on causation sua sponte, which
the model jury charge on vehicular homicide requires "[i]f proximate cause is
an issue." Id. at 498–99; see Model Jury Charges (Criminal), "Vehicular
Homicide (N.J.S.A. 2C:11-5)" (rev. Apr. 20, 2020), n. 2. The trial court
delivered the model charge on vehicular homicide, but not the causation charge.
Id. at 498.
We recognized that not every case will present a genuine issue of
causation. Id. at 501. We acknowledged, however, that the jury must be given
the option to find causation, "assuming there is evidence raising an issue as to
remoteness, fortuity, or another's volitional act." Id. at 504. We held that the
failure to charge on causation was plain error, noting that the defendant had
expressly placed causation in issue. Id. at 500.
In State v. Martin, our Supreme Court also found plain error in the trial
court's failure to instruct the jury on causation. 119 N.J. 2, 15 (1990). In that
case, the defendant was charged with murder, felony murder, arson, and
aggravated arson arising out of the death of a woman in a building that defendant
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set on fire. Id. at 5. The victim, who was highly intoxicated, died from smoke
inhalation and carbon monoxide poisoning. Id. at 6. According to defendant's
version of events, he set the fire by putting a match to a paper bag containing
trash found in a hallway. Id. at 6. The defendant maintained that he meant only
to burn the garbage, believed the fire would self-extinguish, and did not intend
for the fire to spread. Id. at 6, 9. The State's version of the setting of the fire
was materially different from that of the defendant. Id. at 6–7. The State
presented expert testimony that the fire was deliberately set by spreading an
accelerant, kerosene, between the ground and second floors. Ibid.Defendant argued that supervening causes—including the presence of
stored kerosene of which he claimed to be unaware, the flammability of the
petroleum-based astroturf carpeting, open doors that allowed a rush of air to
stoke the fire, and the inoperability of fire detectors—broke the chain of
causation so that his conduct was not the legal cause of the victim's death. Id.at 9–10. Defendant thus argued that her death "was not a foreseeable, intended,
or probable consequence of his conduct." Id. at 9.
The Court concluded that in these circumstances, the defendant "was
entitled . . . to a charge that if the jury believed that [the victim's] death occurred
in a manner different from that designed or contemplated by defendant, it should
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decide whether her death was not too remote to have a just bearing on his
liability." Id. at 16. The Court reasoned that
[w]hen the actual result is of the same character, but
occurred in a different manner from that designed or
contemplated, it is for the jury to determine whether
intervening causes or unforeseen conditions lead to the
conclusion that it is unjust to find that the defendant's
conduct is the cause of the actual result.
[Id. at 13.]
In concluding that the trial court committed plain error by not instructing
the jury on the principles of legal causation, the Court stressed, "[t]he need for
an adequate charge on the question of causation is particularly compelling in the
present case because the State and defendant offered contrasting theories of
causation, each supported by expert testimony." Id. at 15 (quoting Green, 86
N.J. at 287–88). The Court added, "[w]hen, as here, divergent factual versions
give rise to different theories of causation, the trial court should provide the jury
with appropriate instructions, depending on which version it chooses to accept."
Id. at 16–17.
Green, Parkhill, and Martin support our conclusion that the principles of
legal causation need only be explained to the jury when causation is genuinely
at issue based on the trial evidence and the theories of the prosecution and
defense. There would have been no need in these cases to carefully analyze the
facts if there were a categorical rule that the full causation model jury charge
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must always be given when a crime includes a result element, such as injury or
death. Importantly for purposes of the present case, these precedents also
provide helpful guidance as to when and in what circumstances the trial evidence
suggests a disputed issue as to "remoteness, fortuity, or another's volitional act."
Parkhill, 461 N.J. Super. at 504.
D.
Applying these precedents to the case before us, we are satisfied that
causation was not at issue. There certainly were divergent factual versions as to
what transpired during the confrontation between defendant and Paulsen. In
stark contrast to the situation in Martin, however, there were no divergent
theories of causation for the jury to choose from. There were no "intervening
causes or unforeseen conditions" as in Martin. Id. at 13. It bears emphasis,
moreover, that counsel did not argue in summation that defendant's actions did
not cause Paulsen's death. 33 Nor were there competing expert opinions on the
cause of the victim's death. The medical examiner who performed the autopsy
concluded that Paulsen died from an arrow wound to the abdomen that caused
massive bleeding. The medical examiner explained the path of the "V-shaped"
33
We note that in his appeals brief in the point challenging the admissibility of
expert testimony on the effectiveness of archery equipment, which we address
in section VII of this opinion, defendant acknowledges, "but the jury already
knew that Paulsen was hit by an arrow as a result of defendant's actions."
(emphasis added).
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wound. "It went through the abdominal wall, the stomach, then struck a large
vein called the iliac vein" and ended with a "partial exit on the back." The
wound resulted in approximately "two and a half liters of blood within the
abdomen," which "normally shouldn’t [contain] any blood." The medical
examiner noted that Paulsen had no preexisting conditions or diseases that could
have contributed to his death.
In sum, our review of the trial record shows that no evidence was adduced
that might be deemed to raise an issue as to remoteness, fortuity, or another's
volitional act that would dissociate defendant's conduct from the ensuing result.
Defendant offered neither evidence nor argument as to any circumstance that
might complicate much less break the chain of causation between the release of
the arrow and the victim's death. We are thus satisfied that defendant did not
request a specific instruction on legal causation for the simple reason that
causation was not an issue at trial. Rather, the defense theory hinged on
defendant's claim that he acted in self-defense when he shot the arrow that
caused the fatal wound. We therefore conclude that the causation charge
delivered by Judge Ragonese was adequate and does not constitute error, much
less plain error capable of producing an unjust result. R. 2:10-2.
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VII.
Defendant next contends that the trial court committed plain error by
admitting expert testimony concerning the crime-weapon and the manner in
which it was used to cause the fatal wound. The State presented expert
testimony to show the velocity of the arrow, how the bowstring had to have been
drawn to achieve that velocity, and how the bow had to have been pointed
directly at the victim in order for the arrow to penetrate his body as it did. The
expert testimony contradicted defendant's version of events and his claims to
police that the bowstring was not fully drawn and that arrow was not intended
to strike the victim but rather was fired as a warning shot as defendant stumbled
backwards.
Defendant did not object to the expert's trial testimony. He now argues
for the first time on appeal that the expert's opinion did not assist the trier of fact
to understand the evidence at trial or to determine a fact in issue. He also
contends that the field of "archery equipment effectiveness" is not generally
accepted within the scientific community. We reject these contentions and
conclude that the trial court 34 did not abuse its discretion in admitting the expert's
testimony pursuant to N.J.R.E. 702.
34
We note that the Rule 104 hearing on the admissibility of the expert testimony
was conducted by Judge Richard Wells.
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A.
Prior to trial, the State proposed to admit testimony from Andrew
Kaufhold as an expert in archery equipment. Kaufold performed simulation
tests using a bow and arrows that were substantially identical to the bow
defendant owned and the arrow that struck and killed Paulsen. Kaufold
performed experiments using the bow to shoot arrows at a pig 35 carcass to
determine the velocity necessary for the arrow to penetrate the victim in the
manner and to the degree indicated by the autopsy. Kaufhold also tested how
far the bowstring needed to be pulled back to achieve that velocity.
Judge Wells conducted a Rule 104 hearing on the admissibility of
Kaufhold's expert testimony. At the outset of the hearing, defense counsel stated
that he had "no problem with [Kaufhold's] qualifications as an archery expert"
but took issue with the "use of the pig carcass." At the conclusion of the hearing,
Judge Wells determined that Kaufhold could testify as an expert but limited his
testimony to his knowledge of archery equipment and the tests he used to
measure arrow velocity. Judge Wells found that Kaufhold's testimony was
"beyond the ken of a regular jury" and was "certainly within his expertise" given
35
We note that the State occasionally refers to the carcass used in Kaufhold's
tests as a "bovine" carcass. Upon review of the record, neither Kaufhold nor Dr.
Jason Brooks use the phrase bovine. As such, we refer to the carcass used in the
experiment as a pig carcass in accordance with the testimony of Kaufhold and
Brooks.
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his knowledge and background. Judge Wells also found that the methodology
Kaufhold used to measure the speed of a test-fired arrow and the machine he
used to shoot those arrows were reliable.
However, Judge Wells initially ruled that Kaufhold would not be allowed
to testify about the penetration tests that were conducted on the pig carcass.
Judge Wells reasoned that Kaufhold "simply does not have credentials sufficient
to come up here and tell the jury that . . . a [pig] carcass mirrors a human body,
such that the penetration tests can be reliable as opposed to potentially goin g
beyond it and tending to mislead or confuse a jury."
The State eventually cured that deficiency by presenting supplemental
expert testimony from Dr. Jason Brooks, who was qualified as an expert in
veterinary pathology. 36 Brooks testified that a pig carcass is a "reasonable
simulant" with which to test the penetration and trauma inflicted by a bow and
arrow wound on a human abdomen. Brooks explained that the skin, digestive
tract, cardiovascular system, and urinary system found in the abdomen of pigs
are similar to that of humans and that "the structure and location of blood vessels
[in a pig abdomen] is almost identical to that of a human."
At trial before the jury, Kaufhold testified regarding the tests he performed
using a 2010 PSE Whitetail Magnus Bow and 2009-2010 Carbon Express
36
Defendant does not challenge the admission of Brooks' testimony on appeal.
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Piledriver arrows—the same type of weapons owned and used by defendant.
Kaufhold opined that:
[I]n order for that bow and those arrows to produce
enough velocity and energy for one of those arrows to
approach a lethal amount of energy to penetrate a
human being . . . the bow must have been drawn either
100 percent or, . . . given ou[r] test results, it could be
argued, you know, very close to 100 percent.
Kaufhold explained that he reached this conclusion by using a shooting
machine to fire arrows at a pig carcass at different "draws," referring to the
degree to which the bowstring was pulled back before releasing the arrow. He
charted the velocity of the arrows for each shot. He testified that the velocity
test could "easily be replicated" and "was performed to shoot the bow in the
manner in which it would be shot by a human being."
Kaufhold further explained that he used a pig carcass with similar weight
and waist circumference as the victim and dressed the carcass in the identical
brand, style, size, and type of clothing the victim wore on the night of the
incident. In addition, Kaufhold explained that when aimed at the abdomen area
of the carcass and fired at full draw, the arrow penetrated the abdomen in the
same manner as occurred to the victim. Kaufhold also compared the marks on
the clothing taken from the pig carcass to the actual clothes the victim wore. He
testified that the damage to each set of clothing was nearly identical.
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Specifically, Kaufhold testified that the tests showed that the arrow
penetrated the pig carcass's abdomen 16.5 inches at 100% draw, 11.5 inches at
75% draw, and six inches at 50% draw. At 25% draw, the arrow created "a very,
very lazy arc toward the carcass. The arrow struck the carcass and fell
harmlessly to the ground."
Kaufhold testified that, at full draw, the arrow reached the speed of 228
feet per second, which equates to approximately 155 miles per hour. He further
testified, based on his expertise in archery equipment, that the bow used by
defendant "is designed to be shot only at full draw" and that it would be "very
hard and very uncomfortable to hold that bow at anything less than full draw."
Kaufhold further opined that "for the arrow to strike where the arrow struck[,]
the bow had to be aimed exactly where the arrow struck. Otherwise, it [the
penetration] wouldn't have happened."
B.
We next acknowledge the legal principles governing our review of
defendant's contention that Kaufhold's testimony should have been excluded.
As we have noted, defendant did not challenge Kaufhold's qualifications as an
expert. Nor did defendant object to his testimony at trial. We need not repeat
the case law that explains the plain error standard of appellate review. We add
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that the failure to object permits an inference that any error in admitting
testimony was not prejudicial. See State v. Nelson, 173 N.J. 417, 471 (2002).
In State v. Covil, our Supreme Court recently reaffirmed that "the trial
court must act as gatekeeper to determine 'whether there exists a reasonable need
for an expert's testimony.'" 240 N.J. 448, 465 (2020) (quoting State v. Nesbitt,
185 N.J. 504, 507–08 (2006)). In Nesbitt, the Court noted that "[t]he failure of
a defendant to object to expert testimony does not relieve the trial court of its
gatekeeper responsibilities." 185 N.J. at 515. However, it also is well-settled
that a determination on the admissibility of expert testimony is committed to the
sound discretion of the trial court. Townsend v. Pierre, 221 N.J. 36, 52 (2015)
(citing State v. Berry, 140 N.J. 280, 293 (1995)). A trial court's grant or denial
of a motion to preclude expert testimony, therefore, is entitled to deference on
appellate review. Ibid.The admissibility of expert testimony is governed by N.J.R.E. 702. That
rule provides that "a witness qualified as an expert by knowledge, skill,
experience, training, or education" may testify in the form of an opinion when
"scientific, technical, or other specialized knowledge [would] assist the trier of
fact to understand the evidence or to determine a fact in issue." The party
offering the evidence must establish three foundational requirements:
(1) the intended testimony must concern a subject
matter that is beyond the ken of the average juror;
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(2) the subject of the testimony must be at a state of the
art such that an expert's testimony could be sufficiently
reliable; and
(3) the witness must have sufficient expertise to explain
the intended testimony.
[State v. Harvey, 151 N.J. 117, 169 (1997) (quoting
State v. Kelly, 97 N.J. 178, 208 (1984)).]
In Kemp ex rel. Wright v. State, the Court cautioned that, "in cases in
which the scientific reliability of an expert's opinion is challenged and the court's
ruling on admissibility may be dispositive of the merits, the sounder practice is
to afford the proponent of the expert's opinion an opportunity to prove its
admissibility at a Rule 104 [hearing]." 174 N.J. 412, 432–33 (2002). A Rule
104 hearing "allows the [trial] court to assess whether the expert's opinion is
based on scientifically sound reasoning or unsubstantiated personal beliefs
couched in scientific terminology." Id. at 427 (citing Landrigan v. Celotex
Corp., 127 N.J. 404, 414 (1992)).
During a Rule 104 hearing, the "expert must be able to identify the factual
basis for his [or her] conclusion, explain his [or her] methodology, and
demonstrate that both the factual basis and underlying methodology are
scientifically reliable." Ibid. "The party offering the evidence bears the burden
of proof." Harvey, 151 N.J. at 167 (citing Windmere, Inc. v. Int'l Ins. Co., 105
N.J. 373, 378 (1987)).
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We note that in this case, Judge Wells took the prudent precaution of
convening a Rule 104 hearing notwithstanding that defendant failed to challenge
Kaufhold's qualifications and raised no concerns with his testimony other than
with respect to his use of an animal carcass to perform the penetration tests.
C.
Applying the foregoing general principles to the matter before us, we
conclude that Judge Wells made adequate findings to support his decision to
admit Kaufhold's testimony. The judge determined that the subject-matter of
the testimony was "certainly within [Kaufhold's] expertise, and beyond the ken
of a regular jury." Judge Wells found the methodology used to test fire arrows
and to measure their velocity reliable. The judge also found that Kaufhold's
opinion was based on the tests he personally conducted. Judge Wells recognized
that he was performing a "gatekeeper" function, aptly noting that defendant
would be able to challenge the tests at trial, and that it was for the jury to decide
the expert's credibility and the weight to accord to his testimony.
Defendant now contends that Kaufhold's "testimony and conclusions were
unhelpful and irrelevant." We disagree. His testimony was properly admitted
in the trial court's discretion to help the jury understand how defendant shot the
arrow, which was disputed at trial. Defendant testified that he intentionally shot
the arrow but not to strike Paulsen; rather defendant testified that he meant only
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to fire a "warning shot" as he was stumbling backwards. Defendant was unable
to recall how far the bowstring was drawn, but noted it was not fully drawn.
Kaufhold opined that "for the arrow to strike where the arrow struck[,] the
bow had to be aimed exactly where the arrow struck. Otherwise, it [the
penetration] wouldn't have happened." Kaufhold's testimony thus was relevant
to the disputed question of whether defendant was aiming at Paulsen. 37
Furthermore, the expert's testimony, if believed, discredited defendant's account
of what happened at the final stage of the fatal confrontation. Indeed, defendant
acknowledges in his appeals brief that his own testimony "contradicted
Kaufold's conclusions because defendant testified he was not able to aim the
arrow and that he was 'just grabbing the string.'" That contradiction further
demonstrates that Kaufhold's testimony was relevant to a "fact of consequence
to the determination of the action." N.J.R.E. 401.
We add that it was for the jury, ultimately, to reconcile the contradictory
evidence presented by the State and by defendant. In Espinal v. Arias, we noted
in this regard that "[w]hile the trial judge must determine whether the expert's
training and experience are sufficient to permit the expert to state an opinion, it
remains the jury's function to determine the worth of that opinion." 391 N.J.
37We note that defendant at trial did not object that the expert used the word
"aim" rather than "point." We also note that Kaufhold did not render an opinion
as to defendant's state of mind at the moment the arrow was fired.
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Super. 49, 58 (App. Div. 2007) (citing Sanzari v. Rosenfeld, 34 N.J. 128, 138
(1961)).
D.
Defendant also argues in his appeals brief that "[t]he [p]rosecutor unfairly
took advantage of the erroneously admitted Kaufhold testimony by arguing in
summation that '[t]he arrow is aimed at [Paulsen]. The arrow couldn't have
struck [Paulsen] unless it was aimed at [Paulsen]. The arrow did not just go in
a swerving pattern and hit [Paulsen].'" We reject defendant's argument. For one
thing, defendant did not object to the prosecutor's summation when it was given.
The failure to make a timely objection indicates that defense counsel did not
believe at the time that the prosecutor had unfairly taken advantage of
Kaufhold's testimony within the atmosphere of the trial. See State v. Irving 114
N.J. 427, 444 (1989) (citing State v. Johnson, 31 N.J. 489, 511 (1960)) (noting,
"defense counsel's failure to make an objection at trial creates an inference that
he did not find the prosecutor's remarks prejudicial"); cf. State v. Ramseur, 106
N.J. 123, 323 (1987) ("If no objection is made, the remarks usually will not be
deemed prejudicial."). We believe the prosecutor's argument in summation was
a fair and appropriate use of the expert's testimony with regard to the disputed
question of whether the bow had been targeted at Paulsen when the arrow was
released.
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We add that the prosecutor—and ultimately the jury—could draw a fair
inference that the arrow had been aimed at the target it was pointed at when it
was released. We acknowledge that there was testimony that defendant was
stumbling backwards. As we noted during our discussion of causation, the jury
was presented with the question of whether defendant acted recklessly rather
than intentionally. It thus was for the jury to decide whether the arrow had been
intentionally aimed at Paulsen or whether it just happened to be pointed in his
direction at the moment of release.
We certainly agree with defendant's argument on appeal that the mere fact
that the arrow struck the victim and did not bounce off him "was not conclusive
evidence about defendant's intention." But, evidence does not have to be
"conclusive" to be relevant and admissible. We note that the model jury charge
for "State of Mind" explains that:
Purpose/knowledge/intent/recklessness/negligence
is/are condition(s) of the mind which cannot be seen
and can only be determined by inferences from conduct,
words or acts.
A state of mind is rarely susceptible of direct proof, but
must ordinarily be inferred from the facts.
[Model Jury Charges (Criminal), "State of Mind"
(approved Jan. 11, 1993).]
In this instance, the manner in which defendant handled and deployed the
weapon was relevant to whether he had aimed it directly at defendant or instead
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intended to miss Paulsen, as defendant testified. Aside from bearing on
defendant's intention at the moment he shot the arrow, the expert opinion
evidence that defendant acknowledges "contradicted" his own testimony was
relevant to whether defendant's version of events was credible. Just as it was
for the jury to decide whether Kaufhold's expert opinion was credible, it also
was for the jury to decide whether defendant was a credible witness.
In sum, we conclude that Judge Wells did not abuse his discretion or
otherwise err in qualifying Kaufhold as an expert in archery equipment
effectiveness and allowing him to testify at trial about the tests he performed
and relied upon to reach his conclusions. To the extent we have not specifically
addressed any remaining arguments defendant raises with respect to Kaufhold's
testimony, those arguments lack sufficient merit to warrant discussion. R. 2:11-
3(e)(2).
VIII.
Defendant contends that the trial court erred in allowing DeFilippis to
testify that Thomas Dulin, defendant's father-in-law, "concocted a story that
defendant shot Paulsen in self-defense." Specifically, defendant claims on
appeal that the following passage from DeFillipis' testimony constitutes
inadmissible hearsay:
Mr. [Thomas] Dulin was there waiting for us . . . .
[T]here was . . . a family meeting of everybody that was
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involved. And they came up with the story that we're
going to say Kereti [Paulsen] had an HIV positive
needle, so it was self-defense instead of him just
shooting an arrow at somebody he didn't like. And
everybody spoke about it. And I guess they had c[o]me
to kind of an agreement that that's what we're going to
say, and we're going to plead self-defense on this, try to
get Tim the least time possible for what happened.
Defendant did not object to this testimony at trial. 38 Rather, defendant
presented testimony from several witnesses, including Thomas Dulin, who
claimed that the family meeting described by DeFilippis never happened. It thus
appears that defense counsel may have made a strategic decision not to object
38
We note that the introduction of testimony that the self-defense claim was
fabricated and that there was a family-wide plan to support that defense
stratagem was hardly a surprise at trial. The State disclosed in discovery that
DeFilippis contacted authorities in 2016 to reveal such a plan. We believe that
any hearsay concerns regarding evidence of the family meeting at which the
alleged plan was first discussed should have been addressed in limine before
DeFilippis testified at trial.
We have concerns about the practical implications of defendant's plain
error argument, which presupposes that a trial judge has a duty to interrupt
testimony sua sponte as hearsay when the defendant does not object to the
testimony on those grounds. In general, it is not the judge's role or responsibility
to intervene with a well-founded hearsay objection when counsel chooses not to
raise one of his or her own. Cf. N.J. Div. of Child Prot. & Permanency v. J.D.,
447 N.J. Super. 337, 349 (App. Div. 2016). We note, however, that the State
does not argue that defendant has waived the right to challenge the admissibility
of this portion of DeFilippis' testimony as plain error. Rather, the gravamen of
the State's response is that "the admission of the hearsay statements was entirely
proper pursuant to the co-conspirator exception to the hearsay rule."
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so as to provide an opportunity to introduce conflicting testimony to challenge
DeFilippis' overall credibility. 39
Defendant now raises a hearsay challenge for the first time on appeal,
arguing that the trial court on its own volition should have interceded and
precluded DeFilippis from testifying as to what transpired during the alleged
family meeting when the agreement to support a fabricated self-defense claim
was first discussed. 40 On appeal, the State does not argue that DeFilippis'
testimony concerning the alleged family discussion does not constitute hearsay.
Rather, the State argues that the testimony relating to the alleged family meeting
is admissible under the co-conspirator exception to the hearsay rule, N.J.R.E.
803(b)(5).
39
We note that defendant may have been less concerned with DeFilippis'
testimony regarding the family meeting than with his testimony that defendant
called him years after the incident to convince him to "stick to the story"
concerning Paulsen's possession of a hypodermic syringe. DeFilippis' testimony
about the meeting provided an opportunity to challenge his overall credibility
through the testimony of multiple witnesses who flatly contradicted his account
of the family meeting.
40
We note that defendant on appeal argues that the statement was inadmissible
hearsay and that none of the elements of the co-conspirator exception have been
established. Defendant does not argue in his appeals brief that the statement
violates his confrontation rights under the Sixth Amendment. See Savage, 172
N.J. at 402; see also Bourjaily v. United States, 483 U.S. 171, 182 (1987).
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A.
In these circumstances, we decline to apply the general principle that
hearsay, which is subject to a well-founded objection, is generally evidential if
no objection is made. State v. Ingenito, 87 N.J. 204, 224 n. 1 (1981) (Schreiber,
J., concurring); see also Morris v. United States, 813 F.2d 343, 348 (11th Cir.
1987) (emphasis added) (quoting Spiller v. Atchison, Topeka & Sante Fe Ry.
Co., 253 U.S. 117 (1920)) (stating that "if evidence of this kind [that is, hearsay]
is admitted without objection, it is to be considered, and accorded its natural
probative effect, as if it were in law admissible"); J.A. Bock, Consideration, in
determining facts, of inadmissible hearsay evidence introduced without
objection, 79 A.L.R.2d 890 (2014) (stating that "overwhelming weight of
authority" supports the rule that inadmissible hearsay may be considered
evidential when it enters the record without objection, and it "should be given
its natural and logical probative effect"); Kenneth S. Broun, 1 McCormick on
Evidence § 245 at 181 (7th ed. 2013) ("If otherwise inadmissible hearsay
evidence is received without objection, it typically may be considered and, if
apparently reliable, is sufficient to sustain a verdict or finding of fact."); id. §
54 at 381.
Rather, because this is a criminal matter affecting substantial rights, we
instead follow the lead of our Supreme Court in State v. Frisby, which noted that
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"[b]ecause no objection was advanced with respect to [the] hearsay evidence
[introduced] at trial, it must be judged under the plain-error standard: that is,
whether its admission 'is of such a nature as to have been clearly capable of
producing an unjust result.'" 174 N.J. 583, 591 (2002) (quoting R. 2:10-2); see
Smith v. United States, 343 F.2d 539, 542 (5th Cir. 1965) (citations omitted)
("If there is no timely objection to hearsay, the jury may consider it for whatever
probative value it may have. The courts, however, may still reverse a conviction
based on hearsay evidence if there has been a plain error affecting su bstantial
rights of the accused."). We add that "when counsel does not make a timely
objection at trial, it is a sign 'that defense counsel did not believe the remarks
were prejudicial' when they were made." State v. Pressley, 232 N.J. 587, 594
(2018) (quoting State v. Echols, 199 N.J. 344, 360 (2009)). The absence of
objections "weighs against [the] defendant's claim that errors were 'clear' or
'obvious.' Indeed, '[i]t [is] fair to infer from the failure to object below that in
the context of the trial the error was actually of no moment.'" Nelson, 173 N.J.
417, 471 (2002) (alterations in original) (quoting State v. Macon, 57 N.J. 325,
333 (1971)).
B.
We next briefly summarize the governing law on the hearsay doctrine.
The familiar rule generally provides that "[a] statement, made other than by the
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witness while testifying, offered to prove the truth of the content of the statement
is hearsay evidence and is inadmissible unless it falls within one of the hearsay
exceptions." Savage, 172 N.J. at 402 (quoting State v. Phelps, 96 N.J. 500, 508
(1984)). "The co-conspirator exception to the hearsay rule, embodied in
N.J.R.E. 803(b)(5), provides that statements made 'at the time the party and the
declarant were participating in a plan to commit a crime' and 'made in
furtherance of that plan,' are admissible into evidence against another member
of the conspiracy." Ibid. (quoting N.J.R.E. 803(b)(5)).
Under this exception, "[w]here two or more persons are alleged to have
conspired to commit a crime, any statement made by one during the course of
and in furtherance of the conspiracy is admissible in evidence against any other
member of the conspiracy." State v. Harris, 298 N.J. Super. 478, 487 (App. Div.
1997) (first citing N.J.R.E. 803(b)(5); and then citing Phelps, 96 N.J. at 508).
This exception may apply even when the defendant is not formally charged with
the crime of conspiracy. See State v. Clausell, 121 N.J. 298, 336–37 (1990)
(citing State v. Carbone, 10 N.J. 329, 338–39 (1952) ("Absence of a conspiracy
charge does not necessarily negate the admissibility of a co-conspirator's
statements.")); State v. Baluch, 341 N.J. Super. 141, 183–84 (App. Div. 2001)
(citations omitted) ("There is no requirement that defendants be charged with
conspiracy in order for the [hearsay exception] to apply.").
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In Phelps, the Supreme Court recognized that admitting evidence of a co -
conspirator's statement may advance the goal of discerning where the truth lies,
considering that a conspiratorial agreement may be "effectuated through
unwritten statements passed from one to another." 96 N.J. at 509. The Court
noted, "[i]t has been said, 'silence, furtiveness and secrecy shroud the conduct
and speech of coconspirators.'" Ibid. (citation omitted). Thus, "[c]o[-
]conspirator's hearsay may be essential to establishing the existence of an illicit
agreement." Ibid. (citation omitted).
A hearsay statement is admissible under the co-conspirator exception if
the following conditions are met: "(1) the statement must have been made in
furtherance of the conspiracy; (2) the statement must have been made during the
course of the conspiracy; and (3) there must be 'evidence, independent of the
hearsay, of the existence of the conspiracy and defendant's relationship to it.'"
Savage, 172 N.J. at 402 (quoting Phelps, 96 N.J. at 509–10).
A statement is considered to have been made "in furtherance of the
conspiracy" if the statement "serves a 'current purpose such as to promote
cohesiveness, provide reassurance to a coconspirator or prompt one not a
member of the conspiracy to respond in a way that furthers the goal of the
conspiracy.'" State v. James, 346 N.J. Super. 441, 457–58 (App. Div. 2002)
(quoting State v. Taccetta, 301 N.J. Super. 227, 253 (App. Div. 1997)). In
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James, we held that a statement made by a co-conspirator in an effort to enlist
aid or support in disposing of a weapon used in the commission of the crime was
made in furtherance of the conspiracy. Ibid.As for the third element, "[t]he trial court must make a preliminary
determination of whether there is independent proof of the conspiracy." Savage,
172 N.J. at 403 (citing N.J.R.E. 104(b)). "[T]he trial court must determine
whether there is independent evidence 'substantial enough to engender a strong
belief in the existence of the conspiracy and of [the] defendant's participation.'"
Ibid. (quoting Phelps, 96 N.J. at 519). "The requisite independent evidence may
take many different forms, 'such as books and records, testimony of witnesses,
or other relevant evidence. There may be a combination of different types of
proof.'" Ibid. (quoting Phelps, 96 N.J. at 511). "[T]he prosecution has the
burden of satisfying the third part of the test by a fair preponderance of the
evidence." State v. Farthing, 331 N.J. Super. 58, 84 (App. Div. 2000) (citations
omitted).
C.
In this instance, defendant's failure to object to DeFilippis' testimony
deprived the trial judge the opportunity to make explicit findings concerning the
elements of the co-conspirator exception. It also deprived the State an
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opportunity to marshal its fact-sensitive arguments to establish the elements of
the exception.
In contrast to the situation addressed in section V where the record
allowed us to determine with confidence that defendant was not in his dwelling
when he fired the arrow, a ruling on the co-conspirator exception requires a more
nuanced assessment, especially regarding whether there was adequate
independent proof of a conspiracy. Had there been a timely objection, the
prosecutor might have presented additional proofs at a Rule 104 hearing. In
these circumstances, we find it most prudent to remand the matter for the trial
court to convene a 104 hearing to consider the admissibility of this tes timony
and make appropriate findings. See State v. Stubbs, 433 N.J. Super. 273, 289
(App. Div. 2013) (remanding for the trial court to conduct a Rule 104 hearing
to determine if the State had met its burden to establish whether a hearsay
document was admissible as an adoptive admission). We believe it
inappropriate for us to exercise original jurisdiction to determine, based on the
current record, whether the three elements of the co-conspirator exception have
been established. See R. 2:10-5 (allowing appellate court to exercise original
jurisdiction to eliminate unnecessary further litigation, but discouraging its use
if factfinding is involved); State v. Santos, 210 N.J. 129, 142 (2012) (explaining
that Rule 2:10-5 allows an appellate court to exercise original jurisdiction, but
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by exercising original jurisdiction, the court "would be addressing an
evidentiary matter that should be addressed, on the record, in the first instance,
by the [trial] court").
The remand shall be completed within ninety (90) days of this opinion.
We do not retain jurisdiction. If the trial court determines that the statement is
inadmissible, the court shall order a new trial unless the court concludes that the
admission of this testimony was not capable of producing an unjust result given
the other proofs, the prosecutor's summation, 41 and whether defense counsel's
decision not to object was a strategic decision. Following the issuance of the
trial court's ruling on remand, the parties shall have forty-five (45) days within
which to appeal an adverse ruling.
We by no means prescribe the outcome on remand and nothing in this
opinion should be construed as expressing our view on whether DeFilippis'
testimony falls within the co-conspirator exception or, if not, whether its
admission constituted plain error capable of producing an unjust result. R. 2:10-
2.
41
We note that the prosecutor's summation did not mention DeFilippis'
statement regarding the family meeting.
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IX.
Defendant contends that the trial court erred in admitting a photograph of
a hypodermic syringe that police found during a search of Trisha's bedroom.
Defendant objected to the admission of the photograph, arguing that it
constitutes evidence of a crime or bad act other than the one for which he was
tried and thus is inadmissible under N.J.R.E. 404(b). After reviewing the record
in light of the governing principles of law, we conclude the trial court properly
denied defendant's objection.
During a search of Trisha's bedroom, police found controlled substances
and an orange-capped hypodermic syringe. The syringe was substantially
identical to an orange-capped syringe found near Paulsen's body. The State
sought to introduce a photograph of the syringe that had been recovered from
Trisha's bedroom. Defense counsel objected, arguing that the photograph was
not relevant and was evidence of an uncharged crime and thus barred by Rule
404(b). The State argued that the photograph was relevant to show that
defendant had ready access to such syringes. Such access, the State argued, was
relevant to the prosecution theory that defendant's self-defense claim was
fabricated and that he planted the syringe that was found in the backyard to
support his claim that Paulsen had approached him while wielding a syringe.
The State thus argued that the photograph was intrinsic evidence of the
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underlying murder. Judge Ragonese agreed with the State's argument and
admitted the photograph over defendant's objection.
As a general matter, "[e]videntiary rulings made by the trial court are
reviewed under an abuse-of-discretion standard." State v. Scharf, 225 N.J. 547,
572 (2016) (citing Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)). "[R]elevant
evidence may be excluded if its probative value is substantially outweighed by
the risk of . . . undue prejudice." N.J.R.E. 403. "The trial court is granted broad
discretion in determining both the relevance of the evidence to be presented and
whether its probative value is substantially outweighed by its prejudicial
nature." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). This court "will
reverse an evidentiary ruling only if it 'was so wide of the mark that a manifest
denial of justice resulted.'" State v. Mauti, 448 N.J. Super. 275, 307 (App. Div.
2017) (quoting Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016)). When,
however, "the trial court fails to apply the proper legal standard in determining
the admissibility of proffered evidence," we review the evidentiary ruling de
novo. State v. Williams, 240 N.J. 225, 234 (2019).
N.J.R.E. 404(b) generally prohibits the use of evidence that a defendant
committed a crime or bad act other than one for which he or she is being tried.
The danger of prejudice expressed in Rule 404(b) is that the jury may view
evidence of any such bad act or other crime as proof of the defendant's
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propensity to violate the law. Such evidence may, however, be admissible to
establish a "common scheme or plan, a signature crime, motive, and most
frequently, to impeach the accused who takes the witness stand, but only through
a conviction." State v. Weeks, 107 N.J. 396, 406–07 (1987) (citations omitted).
The standard and prerequisites for admitting "other crimes" evidence
pursuant to Rule 404(b) are more rigorous than the relevance standard that
generally applies. In State v. Cofield, the Court described the higher standard
as "special relevance." 127 N.J. 328, 338 (1992). The Court distilled a rule
designed to "avoid the over-use of extrinsic evidence of other crimes or wrongs."
Ibid. That rule requires that:
1. The evidence of the other crime must be admissible
as relevant to a material issue;
2. It must be similar in kind and reasonably close in
time to the offense charged;
3. The evidence of the other crime must be clear and
convincing; and
4. The probative value of the evidence must not be
outweighed by its apparent prejudice.
[Ibid. (citation omitted)].
Importantly for purposes of this appeal, "[t]he threshold determination
under Rule 404(b) is whether the evidence relates to 'other crimes,' and thus is
subject to continued analysis under Rule 404(b), or whether it is evidence
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intrinsic to the charged crime, and thus need only satisfy the evidence rules
relating to relevancy, most importantly Rule 403." State v. Rose, 206 N.J. 141,
179 (2011). Accordingly, before a court determines whether a prior bad act is
admissible for a particular purpose authorized by Rule 404(b), it must determine
first whether the evidence, in fact, relates to a prior bad act, or whether instead
it is intrinsic to the underlying crime. See State v. Brockington, 439 N.J. Super.
311, 325 (App. Div. 2015) (citing Rose, 206 N.J. at 179 (2011)). Evidence that
is intrinsic to the crime for which the defendant is being tried need not satisfy
the requirements of Rule 404(b), but rather need only satisfy the general rules
of relevance and prejudice. Rose, 206 N.J. at 177–78. Intrinsic evidence
encompasses two categories: (1) evidence that "directly proves" the charged
offense and (2) evidence that, when performed contemporaneously with the
charged crime, facilitates the commission of the charged crime. Brockington,
439 N.J. Super. at 327–28 (quoting State v. Green, 617 F.3d 233, 248 (3d Cir.
2010)).
Applying these general principles, the critical threshold issue before us is
whether the photograph of the syringe was admitted as evidence of a bad act or
crime other than the murder and hindering charges for which defendant was
being tried. We conclude that in this instance, defendant's Rule 404(b)
contention proceeds from a mistaken premise. The State was not using the
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photograph to show that defendant unlawfully possessed the depicted syringe in
violation of N.J.S.A. 2C:36-6 (prohibiting the possession with intent to use a
hypodermic syringe to inject a controlled dangerous substance). Indeed, the
State did not contend that defendant had ever handled the specific syringe that
was depicted in the photograph.
Nor was the photograph offered to show that defendant was an intravenous
drug user or to show any other aspect of his character or propensity to violate
the law. Rather, the photograph was offered to show that syringes identical to
the one found near Paulsen's body were readily accessible to defendant because
they were kept in Trisha's bedroom inside the house that defendant lived in. The
photograph was proffered to rebut defendant's claim that he acted in self-defense
by showing that defendant had access to such syringes and thus had the means
to plant a syringe near the crime scene to bolster his claim that Paulsen was
armed with a syringe when he approached defendant during their confrontation.
The State had the burden at trial to disprove the affirmative defense of use
of force in self-protection beyond a reasonable doubt. See N.J.S.A. 2C:1-
13(b)(1). The prosecution's rebuttal theory was that the self-defense claim had
been fabricated after Paulsen was killed, and that the syringe found near the
victim's body had been planted to support the self-defense stratagem. In these
circumstances, evidence that showed (1) that defendant had access to Trisha's
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syringes inside the house, and (2) that her syringes were identical to the one
found near Paulsen's body, satisfies the definition of intrinsic evidence. Such
evidence would "directly prove" the murder charge, see Brockington, 439 N.J.
Super. at 327–28, by tending to disprove defendant's self-defense claim.
Accordingly, the State was not required to satisfy the preconditions for
admissibility of Rule 404(b) other crimes evidence spelled out in Cofield, 127
N.J. at 338.
We likewise reject defendant's fallback argument on appeal that under the
"'less searching inquiry' demanded under N.J.R.E. 403, the admission was still
error." N.J.R.E. 403 provides:
Except as otherwise provided by these rules or other
law, relevant evidence may be excluded if its probative
value is substantially outweighed by the risk of (a)
undue prejudice, confusion of issues, or misleading the
jury; or (b) undue delay, waste of time, or needless
presentation of cumulative evidence.
Evidence is deemed to be relevant if it has "a tendency in reason to prove
or disprove any fact of consequence to the determination of the action." N.J.R.E.
401. Evidence is deemed to be unduly prejudicial, in turn, "when its 'probative
value is so significantly outweighed by [its] inherently inflammatory potential
as to have a probable capacity to divert the minds of the jurors from a reasonable
and fair evaluation' of the issues in the case.'" State v. Koskovich, 168 N.J. 448,
486 (2002) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)).
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As we have already noted, the photograph was relevant because it had a
tendency to show that defendant had the wherewithal to plant the syringe that
was found near Paulsen's body; this evidence thus was probative to rebut
defendant's claim of self-defense. The photograph, moreover, was not
inflammatory or otherwise unduly prejudicial as to significantly outweigh its
probative value because it was not proffered to show, for example, that
defendant was an intravenous drug user or was somehow predisposed to violate
the law. In these circumstances, we conclude that the trial judge did not abuse
his broad discretion in admitting the photograph over defendant's objection. See
Green, 160 N.J. at 492; Mauti, 448 N.J. Super. at 307.
X.
A.
Finally, we address defendant's sentencing contentions. Defendant first
argues that a remand is needed for the sentencing court to apply a statutory
mitigating factor that was enacted on October 19, 2019, after the homicide and
the sentencing proceeding. See L. 2020, c. 110; see also A. 4373 (2020).
Mitigating factor fourteen, N.J.S.A. 2C:44-1(b)(14), now establishes a
mitigating circumstance when "[t]he defendant was under 26 years of age at the
time of the commission of the offense." It is not disputed that defendant was
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under twenty-six years of age when the homicide occurred on January 28,
2013.42
Defendant argues the Legislature intended for the new mitigating factor
to apply retroactively. The State argues the new factor should be given
prospective effect only. This question is now pending before the Supreme
Court, which granted certification in State v. Lane, No. A-17-21. In that case,
the Court will address, "[d]oes mitigating factor fourteen, N.J.S.A. 2C:44-
1(b)(14), that the 'defendant was under 26 years of age at the time of the
commission of the offense,' apply retroactively?" Id.
In State v. Bellamy, we recently addressed the retroactivity question,
noting that the "savings statute [N.J.S.A. 1:1-15] codifies the general rule that a
new law applies prospectively only, not affecting offenses and penalties incurred
prior to its enactment, unless the Legislature expresses a clear intent to the
contrary." 468 N.J. Super. 29, 43 (App. Div. 2021) (citing State v. J.V., 242
N.J. 432, 443 (2020), as revised (June 12, 2020)). We acknowledged, however,
that:
Among the recognized exceptions to the presumption
against retroactive application of a law is that the
statute is ameliorative or curative . . . . Under [this]
exception . . . the term ameliorative refers only to
criminal laws that effect a reduction in a criminal
42
Defendant, by our calculation, was twenty-five years, six months, and sixteen
days old at the time of the commission of the offense.
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penalty. The ameliorative amendment must be aimed
at mitigating a legislatively perceived undue severity in
the existing criminal law.
[Id. at 46 (citations and quotations omitted).]
We added that the Legislature tacitly acknowledged such a purpose in the
committee statement to the Assembly Bill, which explains that,
Current law provides [thirteen] mitigating factors that
the court may consider when sentencing a defendant.
The only mitigating factor related to the age of a
youthful defendant permits the court to consider
whether the defendant's conduct was substantially
influenced by another, more mature person. Under the
bill's provisions, the court would be permitted broadly
to consider as a mitigating factor whether a defendant
was under the age of [twenty-six] when an offense was
committed.
[Id. at 46 (alteration in original) (citing Assembly Law
& Pub. Safety Comm. Statement to Assembly, A. 4373
(July 20, 2020)).]
We concluded that, "[u]nquestionably, the Legislature wanted to fill a
void in N.J.S.A. 2C:44-1(b) by making a convicted person's youth a standalone
factor in the court's sentencing calculus. This draws the new mitigating factor
in line with other statutes deemed to satisfy the ameliorative exception and
justifies 'retroactive' applicability." Id. at 46–47. We also recognized that "[t]he
inclusion of an additional mitigating factor has the potential to effect a 'reduction
of a criminal penalty[,]' thereby rendering N.J.S.A. 2C:44-1(b) ameliorative."
Id. at 47.
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Although we thus suggested that the new mitigating factor is ameliorative,
we made clear that "[t]his is not intended to mean cases in the pipeline in which
a youthful defendant was sentenced before October 19, 2020, are automatically
entitled to a reconsideration based on the enactment of this statute alone. Rather,
it means where, for a reason unrelated to the adoption of the statute, a youthful
defendant is resentenced, he or she is entitled to argue the new statute applies."
Id. at 48.
Relatedly, recently in State v. Rivera, __ N.J. __ (2021), our Supreme
Court reversed and remanded for resentencing when the trial court improperly
considered the defendant's youth as an aggravating factor. Although the Court
did not address the retroactivity of the new statutory mitigating factor, the Court
concluded that "the [trial] court on resentencing is free to consider defendant's
youth at the time of the offense and apply mitigating factor fourteen, which was
given immediate effect in all sentencing proceedings on or after October 19,
2020." Id. at __ (slip op. at 22).
In the present matter, although we are not remanding the case for
resentencing, we are remanding for the trial court to make findings with respect
to the co-conspirator exception to the hearsay rule. We deem it prudent for the
trial court to use the occasion of the remand on the evidentiary issue to also
consider whether the sentence would have been different accounting for the new
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mitigating factor. That would avoid the necessity for yet an additional remand
should the Supreme Court ultimately decide that N.J.S.A. 2C:44-1(b)(14)
applies retroactively. We do not require the trial court to convene a new
sentencing hearing and leave to the court's discretion whether to require or
permit the parties to present oral argument or submit briefs concerning
defendant's youth as a mitigating circumstance. We also leave to the trial court's
discretion whether to modify the sentence in view of the new mitigating factor
or to amplify the reasons for imposing sentence. Cf. R. 2:5-1(b) (authorizing
the trial judge to provide an amplification of a prior statement or opinion when
an issue is raised on appeal).
B.
We proceed to address defendant's remaining sentencing arguments.
Specifically, he argues that the sentencing court's findings concerning
aggravating factor one, N.J.S.A. 2C:44-1(a)(1), and mitigating factor three,
N.J.S.A. 2C:44-1(b)(3), were not supported by competent, credible evidence in
the record. Defendant also contends that the trial court erred in denying his
request for a sentence downgrade pursuant to N.J.S.A. 2C:44-1(f)(2). Because
that statutory feature entails a balancing of the applicable aggravating and
mitigating circumstances, we consider all of the findings made by the sentencing
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court and not just its findings concerning the specific aggravating factor and
mitigating factor that defendant disputes.
We begin our substantive analysis of defendant's sentencing contentions
by acknowledging that the scope of our review of sentencing decisions is
narrow. As a general matter, sentencing decisions are reviewed under a highly
deferential standard. See State v. Roth, 95 N.J. 334, 364–65 (1984) (holding
that an appellate court may not overturn a sentence unless "the application of
the guidelines to the facts of [the] case makes the sentence clearly unreasonable
so as to shock the judicial conscience"). Our review is therefore limited to
considering:
(1) whether guidelines for sentencing established by the
Legislature or by the courts were violated; (2) whether
the aggravating and mitigating factors found by the
sentencing court were based on competent credible
evidence in the record; and (3) whether the sentence
was nevertheless "clearly unreasonable so as to shock
the judicial conscience."
[State v. Liepe, 239 N.J. 359, 371 (2019) (quoting State
v. McGuire, 419 N.J. Super. 88, 158 (App. Div.
2011)).]
"[A]ppellate courts are cautioned not to substitute their judgment for those
of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014) (citing State v.
Lawless, 214 N.J. 594, 606 (2013)). Relatedly, a trial court's exercise of
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discretion that is in line with sentencing principles "should be immune from
second-guessing." State v. Bieniek, 200 N.J. 601, 612 (2010).
With respect to the consideration of aggravating and mitigating
circumstances, "the [sentencing] court must describe the balancing process
leading to the sentence." State v. Kruse, 105 N.J. 354, 360 (1987) (citations
omitted). "To provide an intelligible record for review, the trial court should
identify the aggravating and mitigating factors, describe the balance of those
factors, and explain how it determined defendant's sentence." Ibid. "Merely
enumerating those factors does not provide any insight into the sentencing
decision, which follows not from a quantitative, but from a qualitative,
analysis." Id. at 363 (citing State v. Morgan, 196 N.J. Super. 1, 5 (App. Div.
1984)).
In this instance, Judge Ragonese performed a commendably thorough and
detailed analysis of the relevant circumstance pertaining both to the
circumstances in which the offense was committed and the offender's
background. After reviewing defendant's presentence report, Judge Ragonese
found that defendant "had prior contact with the court system." As a juvenile,
"defendant was adjudicated delinquent for endangering the welfare of a child.
He was sentenced to a three-year term of probation. He violated probation and
was sentenced to continued probation as a result of that violation." The judge
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found that as an adult, "defendant successfully completed pretrial intervention
after being charged with third-degree criminal trespass. He has no municipal
court convictions, no restraining orders, and the present conviction is his first
conviction for an indictable offense."
The court also found that defendant was married and the father of one
child. The judge noted that "defendant lived with his wife and children in a
home in Berlin. The presentence report indicates defendant is a high school
graduate. He has historically been employed in the auto repair industry serving
as the primary income earner for his family." The judge also found that
defendant has no history of drug abuse.
The court next considered the relevant statutory aggravating and
mitigating factors. The court found aggravating factor one, N.J.S.A. 2C:44 -
1(a)(1) ("[t]he nature and circumstances of the offense, and the role of the actor
in committing the offense, including whether or not [the crime] was committed
in an especially heinous, cruel, or depraved manner[.]"). The court explained:
The credible evidence showed that when defendant
came upon the victim, bleeding and nearing his last
breath, a neighbor came out of his home to check on the
noise he had heard. When the neighbor asked if the
person he saw on the ground was okay, defendant lied
and told the neighbor that the victim had drunk to[o]
much. The neighbor then went back in his home.
One can only imagine what the victim was thinking at
that moment, as he realized that the only person who
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could possibly help him was the person who had just
shot him with an arrow, and that potential help had just
been pushed away by the perpetrator of this crime.
Based upon this fact, the [c]ourt finds [a]ggravating
[f]actor [one] applies and gives it moderate weight.
The judge also found aggravating factor three, N.J.S.A. 2C:44-1(a)(3)
("[t]he risk that defendant will commit another offense"). The judge found that
given defendant's prior juvenile history and his violation of probation as a
juvenile, "there [was] a slight risk that defendant [would] commit another
crime." However, the court gave this aggravating factor minimal weight because
defendant had no adult criminal convictions.
The court also found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9)
("[t]he need for deterring the defendant and others from violating the law"). The
court explained that the need to deter defendant was particularly acute "because
defendant took the law into his own hands." The court gave aggravating factor
nine moderate weight.
The court next carefully considered the statutory mitigating factors. The
court found mitigating factor five, N.J.S.A. 2C:44-1(b)(5) ("[t]he victim of the
defendant's conduct induced or facilitated its commission"). The judge noted
that the victim was trespassing on the property on the night of the incident and
refused the family's repeated requests to leave. The court nonetheless gave
mitigating factor five minimal weight.
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The court also found mitigating factor eight, N.J.S.A. 2C:44-1(b)(8)
("[t]he defendant's conduct was the result of circumstances unlikely to recur")
and gave that factor moderate weight. The court explained:
Here, defendant's conduct was shooting an arrow from
a compound bow at a person and then trying to cover it
up. This conduct was the only instance of violence in
defendant's history. Moreover, the circumstances that
led to defendant's conduct were specific to this victim
and the unique relationship the victim had to the Dulin
Family.
The fight that preceded defendant's confrontation with
the victim was spontaneous and specific to the events
that immediately preceded the fight. Therefore, the
[c]ourt concludes that [m]itigating [f]actor [eight]
applies because defendant's conduct was the result of
circumstances that [are] unlikely to recur in the future.
The court acknowledged and distinguished its finding that aggravating factor
three applied, explaining that even though it found there was some risk that
defendant would commit another crime, it was not necessarily a risk that
defendant would commit a crime involving violence or death.
The court also found mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11)
("[t]he imprisonment of the defendant would entail excessive hardship to the
defendant or the defendant's dependents"), and gave that mitigating
circumstance moderate weight. The court explained that the credible evidence
showed that defendant was the sole income earner for his family, and that
incarceration would therefore result in severe financial hardship to his son.
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The court also found mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12)
("[t]he willingness of the defendant to cooperate with law enforcement
authorities"), but only with respect to defendant's conviction for hindering. The
court explained that "[a]fter defendant hid the bow and arrow, impersonated the
victim and lied to police, he brought police to the hiding spot." The court further
noted that, shortly after committing the crimes, defendant admitted his role in
the victim's death and that he reenacted the incident leading to the death of the
victim. The court nonetheless gave mitigating factor twelve "de minimis
weight" because defendant initially deceived police and other first responders.
The court refused defendant's request to apply mitigating factor three,
N.J.S.A. 2C:44-1(b)(3) ("[t]he defendant acted under a strong provocation"),
reasoning that the evidence showed that "defendant was the one who created the
circumstances that led to the victim's death. He was the one who chose to leave
his home when he could have called the police. He was the one who brought a
weapon outside." The judge added, "If there was any provocation to this crime,
it was defendant who created it."
The court also refused defendant's request to apply mitigating factor four,
N.J.S.A. 2C:44-1(b)(4) ("[t]here were substantial grounds tending to excuse or
justify the defendant's conduct, though failing to establish a def ense"). The
court reasoned, "[d]efendant was the one who initiated [the] encounter. He had
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ample time to consider an alternative, but he chose one that ended up destroying
two families . . . . There is no evidence that tends to excuse or justify defendant's
conduct."
In view of the sentencing court's thoughtful and explicit analysis, we
conclude the court did not abuse its discretion in applying aggravating factor
one and declining to apply mitigating factor three and four. Both determinations
are supported by competent credible evidence. We note that in this instance, the
sentencing judge had presided over the trial and thus was intimately familiar
with the trial evidence concerning the nature and circumstances of the offense
and the victim's conduct leading up to the homicide.
C.
We next address defendant's contention that the trial court abused its
discretion in declining defendant's request to invoke the sentence downgrade
provision codified in N.J.S.A. 2C:44-1(f)(2). The court weighed the aggravating
and mitigating factors and found that the aggravating factors slightly
outweighed the mitigating factors. 43 The court also found no compelling reason
43
We note that at one point during his oral ruling, the trial judge apparently
misspoke, stating "[t]he [c]ourt's finding is that the mitigating factors only
slightly outweigh the aggravating factors." The judge had earlier explained,
"[t]herefore at this time, in weighing the aggravating and mitigating factors on
a qualitative as well as quantitative basis, the Court is clearly convinced that the
aggravating factors slightly outweigh the mitigating factors." The Judgment of
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to justify a downgrade. Accordingly, the court denied defendant's request to
sentence him one degree lower.
N.J.S.A. 2C:44-1(f)(2) provides in pertinent part:
In cases of convictions for crimes of the first or second
degree where the court is clearly convinced that the
mitigating factors substantially outweigh the
aggravating factors and where the interest of justice
demands, the court may sentence the defendant to a
term appropriate to a crime of one degree lower than
that of the crime for which defendant was convicted.
The downgrade feature codified in N.J.S.A. 2C:44-1(f)(2) has been
extensively construed and interpreted by case law. When a trial court considers
imposing a sentence one degree lower than the crime for which a defendant has
been convicted, it must apply a two-step analytical process. State v. Rice, 425
N.J. Super. 375, 384 (App. Div. 2012). First, "[t]he judge must be clearly
convinced that the mitigating factors substantially outweigh the aggravating
ones." State v. L.V., 410 N.J. Super. 90, 109 (App. Div. 2009) (citing State v.
Megargel, 143 N.J. 484, 496 (1996)). Second, the defendant must present
compelling reasons why "the interest of justice demands a downgraded
Conviction states: "Therefore, at this time, in weighing those aggravating and
mitigating factors on a qualitative as well as quantitative basis, the [c]ourt is
clearly convinced that the aggravating factors slightly outweigh the mitigating
factors."
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sentence." Ibid. As the Supreme Court emphasized in Megargel, "the standard
governing downgrading is high." 143 N.J. at 500.
To aid in the analytical process, the Court in Megargel identified several
factors for the sentencing court to consider, including: (1) "the degree of the
crime [which] is the focus of the sentence;" (2) whether "[t]he surrounding
circumstances of an offense may make it very similar to a lower degree offense;"
(3) and "facts personal to the defendant," including his or her "role in the
incident." Id. at 500–01.
Importantly, the Court made clear that the reasons justifying a downgrade
must not only be "compelling," but must be based on circumstances "in addition
to, and separate from, the 'mitigating factors that substantially outweigh the
aggravating factors.'" Id. at 505. The Court also stressed that "the trial court
must focus primarily on the gravity of the crime." Ibid. "Furthermore, in those
cases in which the Legislature has acted to provide an enhanced penalty for
conviction of a particular offense, the downgrade of that offense requires more
compelling reasons than the downgrade of an offense for which the Legislature
has not attached an enhanced penalty." Id. at 502.
We note that by prescribing a ten-to-thirty-year ordinary range of
sentences for a conviction for aggravated manslaughter, N.J.S.A. 2C:11-4(c),
the Legislature provided for an enhanced penalty by prescribing a range that is
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greater than the ten-to-twenty-year range that generally applies to first-degree
crimes as set forth in N.J.S.A. 2C:43-6(a)(1). In Megargel—a case involving
kidnapping—the Court commented that this principle applies to aggravated
manslaughter convictions. The Court noted:
[b]y its description of the sentence, the Legislature has
indicated that an enhanced sentence was contemplated
for this crime [of kidnapping]. State v. Maguire, 84
N.J. 508, 514 (1980)[;] [State v.] Mirakaj, []268 N.J.
Super. [48,] 50–51 [(App. Div. 1993)] ("The
Legislature has established a thirty year maximum and
a twenty year presumptive term for aggravated
manslaughter . . . which reflects a legislative judgement
that this is an especially serious first degree offense").
Under such circumstances, trial courts must exercise
extreme caution [in applying a sentence downgrade
under N.J.S.A. 2C:44-1(f)(2)].
[Id. at 502].
Applying these foundational principles to the matter before us, the record
shows that the sentencing judge thoughtfully considered the relevant factors and
acted within his discretion in concluding that the mitigating factors did not
substantially outweigh the aggravating factors as required by N.J.S.A. 2C:44 -
1(f)(2). The court also found that defendant failed to establish compelling
reasons for a downgrade, especially accounting for the enhanced punishment
prescribed for persons convicted of aggravated manslaughter. Accordingly, the
sentencing court properly found that defendant failed to establish either of the
two prongs for a sentence downgrade as required in Rice. See also State v. Read,
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397 N.J. Super. 598, 613–14 (App. Div. 2008) (holding sentence downgrade was
not appropriate where the mitigating factors did not substantially preponderate,
the interests of justice would not be served, and the crime was serious in nature).
We conclude the sentencing court's decision not to invoke the sentence
downgrade feature was based on well-supported findings of fact, and correctly
applied the governing principles of law.
Nor does the sentence imposed on defendant's aggravated manslaughter
conviction shock the judicial conscience. See Roth, 95 N.J. at 364–65. The
judge sentenced defendant on that count to eighteen years of imprisonment,
subject to NERA. As we have noted, the ordinary term of imprisonment for
aggravated manslaughter ranges between ten and thirty years. N.J.S.A. 2C:11-
4(c). Accordingly, the court imposed a term of imprisonment below the mid -
point of the authorized range. We are satisfied that defendant was not entitled
to be sentenced as if he had been convicted of a second-degree crime, in which
event the maximum term of imprisonment would have been ten years.
To the extent we have not specifically addressed them, any other
arguments raised by defendant lack sufficient merit to warrant discussion in this
opinion. R. 2:11-3(e)(2).
Affirmed in part and remanded in part for further proceedings consistent
with sections VIII and X(A) of this opinion. We do not retain jurisdiction.
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