(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued February 28, 1994 -- Decided July 14, 1994
STEIN, J., writing for a unanimous Court.
The issue on appeal is whether attempted passion/provocation manslaughter is a cognizable crime
under the New Jersey Code of Criminal Justice (Code).
Alphonso Robinson shot and injured his uncle, William Robinson, after William assaulted Alphonso
because he had failed to repay a debt. A jury convicted Alphonso Robinson of attempted murder,
aggravated assault, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose.
Robinson appealed his attempted-murder conviction, arguing that he was entitled to a jury
instruction on attempted passion/provocation manslaughter as a lesser-included offense of attempted murder,
even though that instruction was not requested. The State contended that attempted passion/provocation
manslaughter is not an offense recognized by the Code; rather, it is a category of homicide committed under
circumstances that mitigate the crime of murder. The Appellate Division held that attempted
passion/provocation manslaughter is a crime contemplated by the provisions of the Code. However, the
court did not reverse Robinson's convictions because it found that a jury charge on passion/provocation
manslaughter "was not clearly indicated by the evidence."
The Supreme Court granted both Robinson's and the State's petitions for certification.
HELD: Attempted passion/provocation manslaughter is cognizable under the Code of Criminal Justice as
a lesser-included offense of attempted murder.
1. Passion/provocation manslaughter is a homicide that would otherwise be murder except that it is
committed in the heat of passion resulting from reasonable provocation. Passion/provocation manslaughter
is a lesser-included offense of murder and is a second-degree crime. (pp. 5-7)
2. The criminalization of attempt focuses on the intent of the actor to cause a criminal result rather
than on the resulting harm. Attempted first-degree crimes are graded as second-degree crimes except for
attempted murder, which is a first-degree crime. (pp. 7-9)
3. The structure of the criminal attempt provisions of the Code demonstrates a legislative intent to
apply the attempt statute to any crime recognized by the Code that requires purposeful conduct for its
commission. Passion/provocation manslaughter is an intentional crime and the attempt statute applies to all
intentional crimes; therefore, the crime of attempted passion/provocation manslaughter must be recognized
under the Code. That conclusion comports with the determinations made by other states and furthers the
purposes underlying both the law of passion/provocation manslaughter and the law of attempt. Moreover,
the failure to recognize attempted passion/provocation manslaughter leads to anomalous sentencing results
that are contrary to the sentencing goals of the Code. If attempted passion/provocation manslaughter is not
recognized as a crime under the Code, a defendant found to have killed in the heat of passion would be
guilty of a second-degree offense, while a defendant who in the heat of passion attempted but failed to kill
the victim would be guilty of a first-degree offense. The Court will not interpret the Code as punishing an
unsuccessful defendant more harshly than a defendant who actually achieved the level of harm intended.
(pp. 9-16)
4. It is only when the facts "clearly indicate" the appropriateness of the charge that the duty of the trial
court arises to submit, on its own, the lesser-included offense of attempted passion/provocation manslaughter
to a jury in the absence of a request from counsel. The trial court in charging a jury must find the first two
objective elements of passion/provocation manslaughter are clearly indicated by the evidence; i.e., that there
was adequate provocation and that the defendant did not have time to cool off between the provocation and
the killing. If those two elements are clearly indicated, the two subjective elements should almost always be
left for the jury, i.e., whether the provocation actually impassioned the defendant and whether or not he
cooled off before the killing. That standard is also applicable to a trial court's decision to charge, on its own,
a jury on attempted passion/provocation manslaughter. (pp. 16-19)
5. Once the Appellate Division had determined that the first two objective elements were clearly
indicated by the evidence, it should have found that the evidence was adequate to raise a jury issue relating
to the subjective elements. In view of Williams' powerful punch to Robinson's face, the facts clearly indicate
the adequacy of the provocation. In addition, William was shot almost immediately after punching Robinson,
clearly indicating that a reasonable person might not have had time to cool down between the provocation
and the retaliation. Thus, the evidence was sufficient to mandate the trial court's own charge to the jury on
attempted passion/provocation manslaughter. (pp. 19-22)
Alphonso Robinson's attempted murder conviction is REVERSED and the matter is REMANDED to
the Law Division for further proceedings consistent with this opinion.
JUSTICES CLIFFORD, HANDLER, POLLOCK, O'HERN, and GARIBALDI join in JUSTICE
STEIN's opinion. CHIEF JUSTICE WILENTZ did not participate.
SUPREME COURT OF NEW JERSEY
A-101/
102 September Term 1993
STATE OF NEW JERSEY,
Plaintiff-Respondent
and Cross-Appellant,
v.
ALPHONSO ROBINSON,
Defendant-Appellant
and Cross-Respondent.
Argued February 28, 1994 -- Decided July 14, 1994
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
266 N.J. Super. 268 (1993).
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for appellant and
cross-respondent (Susan L. Reisner, Acting
Public Defender, attorney).
Deborah Bartolomey, Deputy Attorney General,
argued the cause for respondent and cross-appellant (Deborah T. Poritz, Attorney
General of New Jersey, attorney).
The opinion of the Court was delivered by
STEIN, J.
In this appeal we consider whether attempted
passion/provocation manslaughter is a cognizable crime under the
New Jersey Code of Criminal Justice (Code). Defendant, Alphonso
Robinson, shot and injured his uncle William Robinson after
William assaulted him because defendant had failed to repay a
debt. A jury convicted defendant of attempted murder, aggravated
assault, unlawful possession of a weapon, and possession of a
weapon for an unlawful purpose. Defendant appealed his
attempted-murder conviction, arguing that he was entitled to a
jury instruction on attempted passion/provocation manslaughter as
a lesser-included offense of attempted murder. The State argued
that attempted passion/provocation manslaughter is not an offense
recognized by the Code.
The Appellate Division held that attempted
passion/provocation manslaughter is a crime contemplated by the
provisions of the Code, but declined to reverse defendant's
convictions because it found that a charge to the jury on
passion/provocation manslaughter "was not clearly indicated by
the evidence."
266 N.J. Super. 268, 281 (1993). Defendant
petitioned for certification and the State cross-petitioned,
seeking review of the Appellate Division's determination that
attempted passion/provocation manslaughter is a crime cognizable
under the Code. We granted both petitions,
134 N.J. 486 (1993).
On May 11, 1988, at about 11:45 p.m., William Robinson
encountered defendant on the street. William believed that
defendant owed him money for ruining a pair of his pants and for
breaking his radio. William testified that he told defendant
"that I wanted my money and if he [didn't] give me my money then
I[] [was] going to hurt him." William left to get something to
eat, but met defendant again a short time later and repeated his
demand to be paid. Defendant paid him $120 and promised to pay
the rest the following day. William responded that he wanted
full payment immediately, whereupon the two began to argue.
William, a boxer, punched defendant once extremely hard on the
nose and mouth, and defendant "buckled" and "staggered back."
William prepared to hit defendant again but decided not to do so
because he feared defendant would "drop[] to the concrete" and
sustain severe injury. Instead, William told defendant to repay
the debt soon or William would have to "really" hurt him.
William then turned and walked away.
At a distance of only two or three feet from where he left
defendant, William heard a gunshot and felt a bullet graze his
leg and go through one of his fingers. William then began to run
in a "zig-zag" manner. He heard four more shots, three of which
hit him in the buttocks, arm, and back, narrowly missing his
spinal cord. William ran home and was taken to the hospital,
where he was treated for serious injuries, including partial loss
of movement in one finger.
While in the hospital, William told a police officer that he
had seen defendant shoot him. William also testified before the
grand jury that defendant had been his assailant. At the trial,
however, William testified that he had never actually seen his
assailant, and that the shooter could have been either defendant
or "Red," an acquaintance of defendant who was present at the
scene.
At trial, defendant relied on a mistaken-identity defense.
The jury, however, convicted defendant of attempted murder,
second-degree aggravated assault, and two weapons-possession
charges. The court merged the weapons offenses with the
attempted-murder conviction, for which defendant was sentenced to
fifteen years with a five-year parole-ineligibility period.
Defendant also received a concurrent seven-year sentence for the
assault, with three years of parole ineligibility.
On appeal, defendant argued that the court on its own
initiative should have instructed the jury on attempted
passion/provocation manslaughter, although no such charge had
been requested. Defendant argued that had he actually killed his
uncle, he would have been entitled to a jury instruction on
passion/provocation manslaughter as a lesser-included offense of
murder. Similarly, defendant reasoned, the jury should have
received an instruction on attempted passion/provocation
manslaughter as a lesser-included offense of attempted murder.
The State argued that an analysis of the Code shows that the
Legislature did not intend to apply the criminal "attempt"
statute, N.J.S.A. 2C:5-1, to passion/provocation manslaughter.
The State claimed that passion/provocation manslaughter is not an
independent offense but rather is a category of homicide
committed under circumstances that mitigate the crime of murder.
Thus, the State asserted, passion/provocation manslaughter is
relevant only in the context of a homicide that would otherwise
be murder, and is not relevant to attempted murder. The State
contended that even if such a crime were recognized, the court
would not have been required to charge the jury sua sponte on
attempted passion/provocation manslaughter.
The Appellate Division held that attempted
passion/provocation manslaughter is a crime. 266 N.J. Super. at
278. The court observed that if attempted passion/provocation
manslaughter were not recognized as a crime under the Code, a
defendant attempting a homicide under circumstances entitling him
to a charge of passion/provocation manslaughter could benefit if
his victim died, because passion/provocation manslaughter, a
second-degree crime, carries a lesser penalty than attempted
murder, a first-degree crime. Id. at 277. Nevertheless, the
Appellate Division affirmed defendant's convictions. Relying on
State v. Mauricio,
117 N.J. 402 (1990), the court found that the
evidence was insufficient to require the trial court to charge
sua sponte attempted passion/provocation manslaughter as a
lesser-included offense of attempted murder. 266 N.J. Super. at
279-81.
Passion/provocation manslaughter is an intentional homicide committed under extenuating circumstances that mitigate the murder. 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 7.10, at 252 (1986). The common law of passion/provocation manslaughter originated in England, where the impassioned killer was treated more leniently than the calm killer because of the harshness of the then-mandatory death penalty for all cases of homicide. Joshua Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J. Crim. L. & Criminology 421, 422-23 (1982). Although murder no longer carries a mandatory death penalty, passion/provocation manslaughter has remained a part of our criminal law as "'"a concession to the frailty of man, a recognition that the average person can understandably react violently to a sufficient wrong and hence some lesser punishment is appropriate."'" Mauricio, supra, 117 N.J. at 410 (quoting State v. Crisantos, 102 N.J. 265, 274 (1986) (quoting State v. Guido, 40 N.J. 191, 209-10 (1963))). N.J.S.A. 2C:11-4b(2) codified the common-law definition of passion/provocation manslaughter. Crisantos, supra, 102 N.J. at 271 n.7. That statute defines passion/provocation manslaughter as "[a] homicide that would otherwise be murder under section 2C:11-3 [except that it] is committed in the heat of passion resulting from a reasonable provocation." Thus, passion/provocation manslaughter is considered a lesser-included offense of murder: the offense contains all the elements of murder except that the presence of reasonable provocation, coupled with defendant's impassioned actions, establish a lesser culpability. See N.J.S.A. 2C:1-8d(3).
The grading of passion/provocation manslaughter reflects a general understanding that one who kills "in the heat of passion resulting from a reasonable provocation" is less culpable than one who is not so affected. Passion/provocation manslaughter is a second-degree crime. N.J.S.A. 2C:11-4c.
"'[T]he law of attempt exists because there is just as much need to stop, deter and reform a person who has unsuccessfully attempted * * * to commit a crime [as] one who has already committed such an offense.'" 2 LaFave & Scott, supra, § 6.2, at 22 (quoting Donald Stuart, The Actus Reus in Attempts, 1 970 Crim. L. Rev. 505, 511). Our criminal attempt statute has also been described as serving the following functions: 1) to punish an actor's disposition to commit a crime either on a specific occasion or in the future; and 2) to punish an actor whose failure to complete a crime occurs due to a fortuity, such as when a bullet misses its mark. 2 The New Jersey Penal Code: Final Report of the New Jersey Criminal Law Revision Commission introductory note to ch. 5, at 112 (1971) (hereinafter Final Report) (quoting Model Penal Code, art. 5 commentary at 24-25 (Tentative Draft No. 10, 1960)) (hereinafter Tentative Draft No. 10); see also 2 LaFave & Scott, supra, § 6.2, at 22-23 (listing objectives of criminal law served by crime of attempt). Therefore, one of the main purposes of the Code's criminal attempt statute, N.J.S.A. 2C:5-1, is to ensure that a person who acts with the purpose of committing a crime does not escape punishment merely because the crime was not completed. The criminalization of attempt focuses on the intent of the actor to cause a criminal result, 2 Final Report, supra, § 2C:5-1 commentary at 113, rather than on the resulting harm.
That focus has influenced the grading of attempt crimes. Generally, the penalties associated with attempt crimes correspond to the penalties associated with the crimes that are attempted. N.J.S.A. 2C:5-4a. Thus, an attempt to commit a second-degree crime is punishable as a second-degree crime. An exception to that general rule is that attempted first-degree crimes are graded as second-degree crimes. Ibid. However, attempted murder is excluded from that exception. N.J.S.A. 2C:5-4a was amended in 1986 to grade attempted murder as a first-degree crime:
An attempt * * * to commit a crime of the first degree is a crime of the second degree; except that an attempt to commit murder is a crime of the 1st degree. Otherwise an attempt is a crime of the same degree as the most serious crime which is attempted * * * .
[N.J.S.A. 2C:5-4a.]
Our criminal attempt statute generally serves to punish one
who acts with the level of culpability required to commit a crime
regardless of whether the intended result occurs. In defining an
attempt to commit a crime under circumstances in which a specific
result is an element of the crime, the Code provides:
a. * * * A person is guilty of an
attempt to commit a crime if, acting with the
kind of culpability otherwise required for
commission of the crime, he:
* * * *
(2) When causing a particular result is
an element of the crime, does or omits to do
anything with the purpose of causing such
result without further conduct on his part *
* * .
Thus, a person charged with attempted murder must be found to
have acted with the culpability required for the crime of murder,
as well as to have acted with the purpose of causing the result
that is an element of murder, namely, the death of another.
New Jersey's criminal attempt statute, N.J.S.A. 2C:5-1, does
not list the different "attempt" crimes that are cognizable under
the Code. Rather, N.J.S.A. 2C:5-1 makes criminal all attempts to
commit other crimes defined in the Code, when certain
circumstances are present. The statute is modeled after section
5.01 of the Model Penal Code ("MPC"). Prior to the adoption of
the Code, the New Jersey criminal statutes contained no
definition of criminal attempt. The courts followed principles
of "attempt" liability developed at common law. 2 Final Report,
supra, § 2C:5-1 commentary at 113. At the time of the drafting
of the MPC, other states also relied on case law to define
criminal attempt. Tentative Draft No. 10, supra, § 5.01
commentary at 27. As a result, the drafters of the MPC attempted
to define with greater specificity the elements of that crime.
One such element was the requirement that the defendant have
acted with the purpose of committing the crime. Tentative Draft
No. 10 notes that section 5.01 "follows the conventional pattern
of limiting this inchoate crime to purposive conduct. In the
language of the courts, there must be 'intent in fact' or
'specific intent' to commit the crime allegedly attempted."
Ibid.
Prior to the adoption of the Code, New Jersey courts had
required an "inten[t] to commit the crime itself" as an element
of attempt. State v. Weleck,
10 N.J. 355, 373 (1952). By
adopting the MPC language, the Code continued the requirement
that when a particular result is an element of the attempted
crime, the defendant must purposefully intend that result.
N.J.S.A. 2C:5-1a(2); see also Final Report, supra, § 2C:5-1
commentary at 114. Hence, the structure of the criminal attempt
provisions of the Code demonstrate a legislative intention to
apply the attempt statute to any crime recognized by the Code
that requires purposeful conduct for its commission.
Accordingly, without listing the crimes that are subject to its
attempt provisions, the Code defines that category of crimes
based on whether the crime that is attempted requires a
purposeful state of mind.
This Court applied the requirement that an attempt crime
involve purposeful conduct most recently in State v. Rhett,
127 N.J. 3 (1992). In Rhett, we reversed an attempted murder
conviction because it was based on an erroneous charge to the
jury regarding the mens rea required for conviction. The trial
court had instructed the jury that "a person 'acting purposely or
acting knowingly' who 'purposely engaged in the conduct which
would constitute the crime' is guilty of an attempt." Id. at 7.
This Court held that such an instruction would allow a jury to
find guilty of attempted murder a defendant who had acted
"knowingly" rather than "purposely," see N.J.S.A. 2C:2-2b(1) and
(2), and that that instruction was in "conflict[] with the
statutory definition of 'attempt.'" Ibid.
The Court's holding in Rhett was also based on a commonsense
understanding of the mens rea required for an attempt. Ibid. As
we stated in State v. McCoy,
116 N.J. 293 (1989), "'one cannot
logically attempt to cause a particular result unless causing
that result is one's "conscious object," the distinguishing
feature of a purposeful mental state.'" Id. at 304 (quoting
State v. McAllister,
211 N.J. Super. 355, 362 (App. Div. 1986)
(quoting N.J.S.A. 2C:2-2b(1))). Therefore, because "[a]n actor
cannot intend an unintended result * * *, an actor cannot attempt
to cause death unless death is a conscious object of the actor's
conduct." Rhett, supra, 127 N.J. at 7. See also State v. Darby,
200 N.J. Super. 327, 331 (App. Div. 1984) (stating that
"attempted felony murder" is not crime because felony murder does
not require purpose to cause death, and one cannot intend
unintended result), certif. denied,
101 N.J. 226 (1985).
Passion/provocation manslaughter, however, is an intentional
crime. Unlike other lesser-included offenses of murder, such as
aggravated manslaughter and reckless manslaughter, a finding of
guilt of passion/provocation manslaughter does not suggest that a
defendant did not intend to kill. Rather, a conviction of the
lesser-included offense of passion/provocation manslaughter
indicates that the defendant, while acting with an intent to
kill, did not act with the level of culpability necessary for a
murder conviction, due to circumstances present at the time of
the killing. Therefore, because passion/provocation manslaughter
is an intentional crime and the attempt statute applies to all
intentional crimes, the Code impels us to recognize the crime of
attempted passion/provocation manslaughter.
The quality of intent required for a passion/provocation-
manslaughter conviction has proven to be the determining factor
for other states as well in deciding whether to recognize the
crime of attempted passion/provocation manslaughter, or attempted
voluntary manslaughter as some states call it. See, e.g., Cox v.
State,
534 A.2d 1333 (Md. 1988) (holding that attempted voluntary
manslaughter is crime under common law of Maryland and noting
that majority of states that have affirmed convictions for
attempted voluntary manslaughter have analyzed issue with regard
to requirement of intent); see also Joshua Sachs, Is Attempt to
Commit Voluntary Manslaughter a Possible Crime?, 71 Ill. B.J.
166, 166-70 (Nov. 1982) (summarizing various states' positions on
attempted voluntary manslaughter and arguing that State of
Illinois should adopt definition of voluntary manslaughter that
includes intent to kill, leading to recognition of crime of
attempted voluntary manslaughter). Those states that do not
require intent to kill as an element of passion/provocation
manslaughter have not recognized attempted passion/provocation
manslaughter. See, e.g., Curry v. State,
792 P.2d 396, 397 (Nev.
1990) (holding that general intent crime of voluntary
manslaughter is incompatible with specific intent required for
criminal attempt, and stating that "attempted voluntary
manslaughter is therefore an illogical illusion"). However,
those states that define passion/provocation manslaughter as an
intentional crime generally have found attempted
passion/provocation manslaughter or attempted voluntary
manslaughter to be a cognizable crime under their criminal laws.
See, e.g., People v. Tucciarone,
187 Cal. Rptr. 159, 162 (Ct.
App. 1982) (holding that voluntary manslaughter is intentional
crime and thus supports crime of attempted voluntary
manslaughter); Ex parte Buggs,
644 S.W.2d 748, 750 (Tex. Crim.
App. 1983) (holding that attempted voluntary manslaughter
constitutes penal offense when intent to commit substantive
offense of murder is mitigated by evidence that accused acted
under immediate influence of passion arising from adequate
cause); State v. Norman,
580 P.2d 237, 240 (Utah 1978) (finding
that attempt to commit manslaughter is included offense of
attempted murder if defendant acted with intent to kill); cf.
Commonwealth v. Hebert,
368 N.E.2d 1204, 1206 (Mass. 1977)
(noting that attempted voluntary manslaughter is cognizable crime
but that crime of assault with intent to kill adequately
encompassed that offense); People v. Rodriguez,
631 N.E.2d 427,
432-33 (Ill. App. Ct. 1994) (noting that appellate courts are
divided on whether attempted voluntary manslaughter is cognizable
crime under revised Illinois statute). Thus, our analysis and
conclusion comports with determinations made by other states as
well.
Our conclusion that the Code contemplates the crime of
attempted passion/provocation manslaughter is also consistent
with our belief that recognition of that crime would further the
purposes underlying both the law of passion/provocation
manslaughter and the law of attempt. Passion/provocation
manslaughter exists to mitigate the penalties associated with the
offense of murder when an actor intentionally kills another but
does not possess the quality of culpability necessary for a
murder conviction. On the other hand, the law of attempt serves
to ensure that one who acts with a specified level of culpability
and the required criminal purpose is punished for that behavior,
regardless of whether the criminal result is achieved. When a
defendant is convicted of attempted passion/provocation
manslaughter, that defendant's level of culpability will have
been established as less than that required for a conviction of
attempted murder. Moreover, that defendant will receive
punishment for acting with the level of culpability necessary for
a conviction of passion/provocation manslaughter, even though the
intended result was not achieved. Thus, the purposes underlying
the crimes of passion/provocation manslaughter and criminal
attempt will have been given effect.
Furthermore, as the Appellate Division observed, a failure
to recognize attempted passion/provocation manslaughter yields
anomalous sentencing results that are contrary to the sentencing
goals of the Code. 266 N.J. Super. at 278. If attempted
passion/provocation manslaughter were not recognized as an
offense under the Code, a defendant found to have killed in the
heat of passion based on reasonable provocation would be guilty
of a second-degree offense, while a defendant who in the heat of
passion attempted but failed to kill the victim would be guilty
of a first-degree offense. To promote an interpretation of the
Code that would punish an unsuccessful defendant more harshly
than one who actually achieved the level of harm intended would
be unacceptable. See Final Report, supra, § 2C:5-4 commentary at
148 (quoting Tentative Draft No. 10, at 178-79) (noting that "the
inchoate crime should not be graded higher than the substantive
offense; it is the danger that the actor's conduct may culminate
in its commission that justifies creating the inchoate crime").
In recognizing the crime of attempted passion/provocation
manslaughter we eliminate that sentencing anomaly.
In sum, we find nothing in the Code that would suggest that
the Legislature intended to foreclose the possibility of
convicting a defendant for attempted passion/provocation
manslaughter. Rather, the language of our criminal attempt
statute indicates that it applies to all crimes found in the Code
that require purposeful conduct. Because passion/provocation is
an intentional crime, the attempt statute applies. We also find
that the crime of attempted passion/provocation manslaughter
furthers the purposes underlying our criminal attempt and
passion/provocation statutes. Therefore, we hold that attempted
passion/provocation manslaughter is cognizable under the Code as
a lesser-included offense of attempted murder.
This appeal also presents the issue of when a court should
submit the lesser-included offense of attempted
passion/provocation manslaughter to a jury in the absence of a
request from counsel.
For guidance, we look to the standard that we have
established for trial courts with regard to their duty to charge
a jury sua sponte on passion/provocation manslaughter. In State
v. Choice,
98 N.J. 295, 299 (1985), we noted that a trial court
"does not * * * have the obligation on its own meticulously to
sift through the entire record in every murder trial to see if
some combination of facts and inferences might rationally sustain
a manslaughter charge." Rather, we held that "[i]t is only when
the facts 'clearly indicate' the appropriateness of that charge
that the duty of the trial court arises." Ibid. (quoting State
v. Powell,
84 N.J. 305, 318 (1980)).
In addition, we also recognized that a trial court's
decision to give a charge sua sponte on passion/provocation
manslaughter requires a balancing of various interests that arise
due to "[t]he possible complexities at the trial level in a
criminal matter that may arise from a charge not requested by any
of the parties * * * ." Id. at 301. For example, a
manslaughter charge given by the court on its own initiative
could surprise the prosecution or the defense, and require the
court to grant an opportunity to both sides to present further
evidence. Id. at 300. Such a charge might also generate the
production of evidence that would make a conviction of murder
more likely. Ibid. On the other hand, we have recognized that
a lesser-included offense need not be consistent with the theory
offered by the defendant for it to be charged. Powell, supra, 84
N.J. at 317. We have also underscored that the public interest
in presenting such a charge to the jury "may go well beyond the
interests of the parties." Choice, supra, 98 N.J. at 301.
In Mauricio, supra, the Court addressed the issue of when a
trial court should, at defense counsel's request, submit the
issue of passion/provocation to a jury. The Court adopted a four
part test for passion/provocation manslaughter:
Passion/provocation manslaughter has
four elements: the provocation must be
adequate, the defendant must not have had
time to cool off between the provocation and
the slaying; the provocation must have
actually impassioned the defendant; and the
defendant must not have actually cooled off
before the slaying.
[117 N.J. at 411.]
The first two elements constitute the objective standard
required by the Legislature. The third and fourth elements are
more subjective because they relate to the defendant's actual
response. Ibid. The Court in Mauricio determined that once the
trial court has found that the first two requirements are
satisfied, the last two subjective elements "should almost always
be left to the jury." Id. at 413. The Mauricio Court also noted
that when a defendant
requests a charge on passion/provocation
manslaughter as a lesser-included offense of
murder, the trial court should instruct the
jury on that form of manslaughter if an
examination of the record discloses that the
evidence satisfies the rational-basis
standard -- that is, that "'it would not be
idle to have the jury decide' whether the
defendant had committed the lesser-included
offense."
[Id. at 417-18 (quoting Crisantos, supra, 102
N.J. at 278 (quoting State v. Sinclair,
49 N.J. 525, 540 (1967))).]
However, in determining whether to submit a
passion/provocation charge to a jury on its own initiative, we
held in Choice, supra, that a court must find that evidence
"'clearly indicate[s]'" the appropriateness of such a charge. 98
N.J. at 299 (quoting Powell, supra, 84 N.J. at 318). Therefore,
applying the standard announced in Choice to the procedure
established by Mauricio, we hold that a trial court in charging a
jury sua sponte must find first that the two objective elements
of passion/provocation manslaughter are clearly indicated by the
evidence. If they are, the two subjective elements should
"almost always be left for the jury." That standard is equally
applicable to a trial court's decision to charge a jury sua
sponte on attempted passion/provocation manslaughter.
The Appellate Division found that the two objective elements
of the test were clearly indicated by the evidence. 266 N.J.
Super. at 279-80. However, due to a lack of evidence or argument
on the passion/provocation issue, the court found that the two
subjective elements -- whether defendant had actually been
impassioned by the provocation and whether defendant had not
cooled off before the slaying -- were not clearly indicated. Id.
at 280. The Appellate Division applied an incorrect standard:
once it determined that the first two elements were clearly
indicated by the evidence, the court should have found that the
evidence was adequate to raise a jury issue relating to the
subjective elements.
The Appellate Division correctly determined that the facts
"clearly indicate" that the first two requirements of the
Mauricio test had been met. The first requirement is that the
provocation be adequate. The "provocation must be '"sufficient
to arouse the passions of an ordinary [person] beyond the power
of his [or her] control."'" Mauricio, supra, 117 N.J. at 412
(alterations in original) (quoting State v. King,
37 N.J. 285,
301-02 (1962) (quoting State v. Herrmann,
77 N.J.L. 534, 535 (E.
& A. 1909))). In Mauricio, the Court noted that "battery, except
for a light blow, has traditionally been considered, almost as a
matter of law, to be sufficiently provocative." Id. at 414; see
also 2 Charles E. Torcia, Wharton's Criminal Law § 158, at 252
("Assault or battery may constitute adequate provocation to
reduce the killing to voluntary manslaughter.") Thus, in view of
William's admittedly powerful blow to defendant's face, we agree
that the facts clearly indicate the objective adequacy of the
provocation.
The second objective requirement is that defendant must not
have had time to cool down between the provocation and the
retaliation. Although the Mauricio Court noted that
passion/provocation manslaughter is not available if a reasonable
person should have cooled off before the killing, it also
recognized that "it is well-nigh impossible to set specific
guidelines in temporal terms." Id. at 413. Thus, in Mauricio,
the Court found that a half hour was 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 415. Because William was shot almost
immediately after punching defendant, we must also agree that the
evidence clearly indicated that a reasonable person might not
have had time to cool down between the provocation and the
retaliation. Moreover, the circumstances of the shooting, which
occurred almost immediately after William struck defendant,
strongly suggest that defendant was actually impassioned and had
not cooled down. We also note that the trial court itself noted
at sentencing the presence of passion/provocation as a mitigating
factor. As a result, we find that the evidence was indeed
sufficient to mandate a sua sponte charge to the jury on
attempted passion/provocation manslaughter.
To sum up, the Legislature's grading of attempted murder
under the Code as a first degree crime warrants the conclusion
that it would intend that the uncompleted offense be mitigated,
as would be the completed offense, by the presence of
passion/provocation. This is an unfamiliar crime but not a new
crime. In the words of N.J.S.A. 2C:11-4b(2), the accused has
attempted a homicide that but for the presence of
passion/provocation would be murder. The Code describes as
manslaughter the crime that was attempted.
We think this crime will remain unfamiliar, because there
are few instances in which a defendant charged with attempted
homicide will want to raise before a jury the argument that he or
she actually intended to kill. We are considering a revision of
our Rules of Criminal Procedure to require charging conferences
to be put on the record. Report of the Supreme Court Committee
on Criminal Practice: 1992-1994 Term, at 51-53. At the charging
conference, the court should thoroughly explore potential
charging problems such as the appropriateness of charging
attempted passion/provocation manslaughter. In a case such as
this, in which the defendant denied that he was the perpetrator,
the defendant should be required before the court charges the
jury to make the strategic decision about how the case should be
presented to the jury. Plain error problems in charging should
not arise.
We reverse defendant's attempted-murder conviction and
remand the matter to the Law Division for further proceedings
consistent with this opinion.
Justices Clifford, Handler, Pollock, O'Hern, and Garibaldi
join in this opinion. Chief Justice Wilentz did not participate.