(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 January 5, 1994 -- Decided May 3, 1994
HANDLER, J., writing for a majority of the Court.
The issue on appeal is whether a jury instruction on passion/provocation manslaughter created
sufficient prejudice to warrant the reversal of Nevel L. Heslop's murder conviction.
Heslop and the victim, Millicent Heslop, were married for four years. In February 1991, Millicent
left Heslop and began residing with her sister in Irvington, New Jersey. There was a brief reconciliation in
April 1991, wherein Heslop lived with his wife and sister-in-law in the Irvington apartment for about one
week. On April 26, 1991, Heslop returned to the Irvington apartment to retrieve his belongings. Because
the locks had been changed, Heslop went to get a crowbar. According to Heslop, he returned to the
apartment, saw his wife through the door, and asked her to let him in. Heslop claims that she opened the
door brandishing a knife. They scuffled and she attempted to stab him. Millicent then took the knife and
started to run outside, screaming. The two wrestled outside and Nevel hit Millicent with the crowbar.
Millicent then ran to a local barber shop, screaming for help. Nevel followed her. The two struggled and
Heslop stabbed Millicent in front of several witnesses.
Heslop was indicted by a grand jury for murder, felony murder, second-degree burglary, unlawful
possession of a knife and possession of a knife for an unlawful purpose. Prior to its deliberations, the court
charged the jury on murder, and on the lesser-included offenses of aggravated manslaughter, reckless
manslaughter, and passion/provocation manslaughter.
At the heart of the controversy is the judge's charge (given more than once) "that if you are satisfied
beyond a reasonable doubt that defendant knowingly or purposely caused the victim's death, but you have a
reasonable doubt as to whether defendant did so in the heat of passion upon a reasonable provocation, then
you should find the defendant guilty of manslaughter." (emphasis added) Initially, the trial court instructed
the jury on knowing and purposeful murder and then, prior to charging the jury on the lesser-included
offenses of murder, stated that if the jury were to decide that the defendant was not guilty of purposeful
knowing murder, then it didn't have to consider the lesser-included offenses. On defense counsel's request,
the court refined its instructions and charged the jury that in its consideration of the nature of the homicide
that had been committed, it should take into account the element of passion/provocation together with the
element of purpose/knowledge.
Heslop was acquitted of felony murder but was convicted by the jury of murder, criminal trespass, as
a lesser-included offense of burglary, and the weapons charges. Heslop was sentenced to thirty years
imprisonment with thirty years of parole ineligibility for the murder conviction and a concurrent term of
eighteen months for the criminal trespass.
On appeal, Heslop contended that the trial court had failed to instruct the jury that the State had
the burden of proving beyond a reasonable doubt that Heslop had not committed the murder in the heat of
passion based on reasonable provocation. The Appellate Division affirmed Heslop's conviction, rejecting that
argument and noting that it was doubtful whether the facts could support a jury finding that the killing was
committed in the heat of passion resulting from reasonable provocation.
The Supreme Court granted certification.
HELD: The jury instruction on passion/provocation murder did not create sufficient prejudice to warrant
the reversal of Nevel Heslop's convictions. A review of the factual record does not suggest the
likelihood that the court's explanation of the law of murder and manslaughter, the manner in
which the jury's deliberation should progress, and the State's burden of proof resulted in or
contributed to an improper verdict.
1. Taken alone, the initial, sequential charge could have improperly foreclosed the jury's consideration
of passion/provocation manslaughter. However, with its curative charge, the court clearly told the jury that
in the context of considering the charge of purposeful or knowing murder, it must consider the heat of
passion. Thus, the sequential charge error was largely overcome by the later instruction. The court's
instruction as a whole could not be understood to foreclose the jury's full and appropriate consideration of
passion/provocation murder. (pp. 5-8)
2. The court sufficiently informed the jury that it must find Heslop guilty of nothing greater than
manslaughter if it had a reasonable doubt concerning whether he had acted in the heat of passion. While
that instruction does not completely rectify the trial court's failure to charge specifically that the State bears
the burden of proving beyond a reasonable doubt the absence of passion/provocation, nowhere did its
instruction suggest that the burden of proof belonged to Heslop. (pp. 8-9)
3. According to the dissent, the court's charge should have used the words "did not do so" rather than
"did so" because the State must prove the absence of passion/provocation in connection with the killing. The
court's use of the term "whether" is a short-hand expression for "whether or not." Hence, whether could
encompass the statement preferred by the dissent. The instructions given left the jury with the overall
impression that the State's overriding burden to prove murder beyond a reasonable doubt would encompass
the absence of passion/provocation as an aspect of the element of purposeful/knowing murder. (pp. 9-11)
4. The trial court did not foreclose the jury's consideration of passion/provocation manslaughter and
the instructions were not so erroneous as to confuse or mislead a jury in its consideration of
passion/provocation manslaughter. Moreover, there is no overwhelming evidence of passion/provocation as
the singular and distinctive factor that led to the murder. The evidence suggests that Heslop relentlessly
pursued and viciously executed his wife after she had clearly given up the fight. That evidence militates
strongly against any prejudice that may have resulted from the somewhat poorly worded instructions. (pp.
11-13)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE STEIN, dissenting, in which JUSTICES CLIFFORD and POLLOCK join, is of the view
that proper charges to a jury are essential for a fair trial; therefore, the omission of an instruction that the
State bore the burden of proving beyond a reasonable doubt the absence of passion/provocation requires
reversal of Heslop's convictions. In the fourth paragraph of the modified instruction, the trial court
erroneously used the phrase "did so" rather than "did not do so," resulting in a flawed charge to the jury.
Moreover, an instruction that fails to state clearly that the State bears the burden of disproving
passion/provocation is not cured by the absence of language suggesting that the burden is borne by the
defendant.
JUSTICE CLIFFORD, joins in Justice Stein's dissent but writes separately to address the
grammatical correctness of the trial court's charge. The offending passage misstates the subject on which the
"reasonable doubt" focuses: whether Heslop did kill in the heat of passion, as contrasted with whether he did
not kill in the heat of passion. Those propositions are not at all the same, as the majority has suggested. A
court cannot convey to a jury the State's burden through an instruction that defines the subject on which it
may entertain a reasonable doubt in terms of whether Heslop did knowingly or purposely kill in the heat of
passion. Nor can a court convey the burden in terms of "whether or not" Heslop did kill in the heat of the
passion because that language not only encompasses the appropriate charge, but also fatally encompasses the
inaccurate instruction that plainly misstates the nature of the State's burden.
CHIEF JUSTICE WILENTZ and JUSTICES O'HERN and GARIBALDI join in JUSTICE
HANDLER's OPINION. JUSTICE STEIN filed a separate dissenting opinion in which JUSTICES
CLIFFORD AND POLLOCK join. JUSTICE CLIFFORD filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
60 September 1993
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NEVEL L. HESLOP,
Defendant-Appellant.
Argued January 5, 1994 -- Decided May 3, 1994
On certification to the Superior Court,
Appellate Division.
Steven M. Gilson, Designated Counsel, argued
the cause for appellant (Zulima V. Farber,
Public Defender, attorney).
Hilary L. Brunell, Assistant Prosecutor,
argued the cause for respondent (Clifford J.
Minor, Essex County Prosecutor, attorney).
The opinion of the Court was delivered by
HANDLER, J.
The issue in this appeal is whether a jury instruction on passion/provocation manslaughter created sufficient prejudice to warrant the reversal of criminal convictions. The flaws in that instruction related to the sequence in which the court required the jury to consider the charged offenses and to the State's burden of proof with respect to passion/provocation as an element
of the homicide. The jury acquitted defendant of felony murder
and convicted him of murder, criminal trespass as a lesser-included offense of burglary, and two weapons-possession charges.
In an unreported opinion, the Appellate Division affirmed the
conviction for murder. We granted defendant's petition for
certification, __ N.J. __ (1993), and now affirm.
The factual circumstances leading to the homicide are essentially uncontested. Defendant, a thirty-six-year-old Jamaican who emigrated to the United States in 1984, married the victim, Millicent Heslop, in Jamaica in 1987. Their union produced one child, who lives in Jamaica with his maternal grandparents. For the last two years of their marriage defendant and the victim had resided in Brooklyn, New York. Defendant was gainfully employed as a floor-sander and had no prior criminal record. In February 1991, the victim left defendant and began residing with her sister, Natalie Gordon, in Irvington, New Jersey. A brief reconciliation occurred in April 1991, and defendant lived with his wife and sister-in-law in the Irvington apartment for about one week. When "problems" between defendant and his wife resurfaced, defendant was told to leave the apartment.
On April 26, 1991, Kirby Clark, a co-employee of defendant, drove defendant to the Irvington apartment so defendant could retrieve his tools, woodworking equipment, and clothing.
Defendant left Clark's van but returned a few minutes later to
get a crowbar, informing Clark that the locks had been changed.
Defendant then returned to the apartment. The primary evidence
of the events that occurred inside the apartment consisted of
defendant's signed statement, which the State offered in evidence
in the course of its case.
According to defendant, when he got back to the apartment,
he could see his wife through the door, and he told her to let
him in so that he could get his clothes and tools. Defendant
stated that "she opened the door and greeted me with a knife."
Defendant pushed her inside the apartment and they both fell to
the floor. As defendant picked up the knife, which was broken,
his wife "grabbed another knife and started stabbing at me. I
started blocking it."
According to defendant's statement, his wife "took the knife
and started to run and scream outside. Then we started to
wrestle outside of the house, she tried to stab me with the
knife, and I hit her with the crowbar, then she started running
away and she ran to the barber shop."
According to witnesses, defendant dropped the crowbar and
pursued the victim. Millicent entered the barber shop holding
the knife, and screamed for help. When defendant entered the
shop, a struggle ensued, and the victim fell to the floor, the
knife dropping from her hand. As defendant picked up the knife,
patrons in the shop shouted "Don't do it." Defendant responded,
"It's okay, she is my wife," and stabbed Millicent. He removed
the knife and walked back to Clark's van, dropping the knife in
some bushes. The police arrived soon after and apprehended
defendant.
A search of Natalie Gordon's apartment revealed a broken
knife in the kitchen and blood stains on the apartment door, the
floor, and the bedroom wall. After his arrest, defendant
received medical treatment for a cut on his finger that required
four stitches.
A grand jury indicted defendant for murder, felony murder,
second-degree burglary, unlawful possession of a knife, and
possession of a knife for an unlawful purpose. Defendant neither
testified at his trial nor offered any other evidence bearing on
the events contained in his statement. The trial court charged
the jury on murder and on the lesser-included offenses of
aggravated manslaughter, reckless manslaughter, and
passion/provocation manslaughter. The jury acquitted defendant
of felony murder but convicted him of murder, criminal trespass
as a lesser-included offense of burglary, and the possessory
offenses. The court merged the weapons convictions into the
murder conviction and sentenced defendant to thirty years
imprisonment with thirty years of parole ineligibility for the
murder conviction and a concurrent term of eighteen months for
the criminal trespass.
The Appellate Division rejected defendant's contention that
the trial court had failed to instruct the jury that the State
had the burden of proving beyond a reasonable doubt that
defendant had not committed the homicide in the heat of passion
based on reasonable provocation. Further, the court below had
"serious doubt as to whether the facts could, even reviewing them
in the light most favorable to the defendant, support a jury
finding that this killing was 'committed in the heat of passion
resulting from a reasonable provocation. . . .'" (quoting
N.J.S.A. 2C:11-4b(2)) (emphasis supplied).
Our cases hold that an instruction that gives the jury the impression that it need consider passion/provocation manslaughter only if it fails to find that purposeful and knowing murder occurred is defective. State v. Coyle, 119 N.J. 194 (1990). Furthermore, we have held that if a court fails to indicate clearly that the burden is on the State to prove beyond a reasonable doubt that a defendant did not act with passion or provocation, such a failure will constitute error. State v. Erazo, 126 N.J. 112 (1991). If those two errors occur in combination and are left unmitigated by curative instructions, then the conclusion that the errors were seriously prejudicial is difficult to resist. That proposition is especially applicable when the record contains strong evidence of passion/provocation such that had a jury been able fully to understand the significance of that evidence in light of correct instructions, the evidence would likely have persuaded the jury.
We do not minimize the errors that occurred here. But the
errors were greatly mitigated, if not totally repaired.
The challenged instruction initially contained the same
"sequential" error that we found in Coyle. The trial court here
instructed the jury on knowing and purposeful murder, and then,
prior to charging the jury on the lesser-included offenses of
murder, stated:
If you were to decide the defendant is guilty
of a purposely knowing murder, then you don't
have to consider the lesser included
offenses.
However, defense counsel, prior to deliberations, requested that
the court refine the instructions. Accordingly, the court gave
the jury the following curative instruction:
The . . . point that counsel wants me to make
clear to you is that when you consider the
charge of purposeful or knowing murder that
you have to in that context, of course, aside
from considering the self-defense that's been
interposed here as well, that you have to
consider the heat of passion.
In other words, if you are not satisfied
beyond a reasonable doubt that the defendant
acted purposely or knowingly, then you would
not find him guilty of a purposeful or
knowing murder.
If you are satisfied beyond a reasonable
doubt that the defendant knowingly caused the
death or serious bodily injury resulting in
death without acting in a heat of passion,
then you should find him guilty of murder.
If you are satisfied beyond a reasonable doubt
that the defendant knowingly or purposely caused
the death of the victim but you have a reasonable
doubt as to whether the defendant did so in the
heat of passion upon a reasonable provocation,
then you should find the defendant guilty of
manslaughter.
In other words, that you should consider the
heat of passion upon reasonable provocation
in connection with the purposeful or knowing
murder count. (Emphasis added)
Thus, in submitting the matter to the jury, the trial court
did not instruct it to consider and to determine
purposeful/knowing murder prior to and separately from its
consideration of passion/provocation manslaughter. Rather, it
instructed the jury that in its consideration of the nature of
the homicide that had been committed, it should take into account
the element of passion/provocation together with the element of
purpose/knowledge. Taken alone, the earlier sequential charge
could have improperly foreclosed the jury's consideration of
passion/provocation manslaughter and would have violated the
stricture of Coyle. The later instruction, however, undid much
of the damage caused by the earlier charge. In sum, the trial
court emphatically and clearly told the jury that in the context
of considering the charge of purposeful or knowing murder, it
must "consider the heat of passion." The court also instructed
the jury that if it had "a reasonable doubt as to whether the
defendant [had caused the death of the victim] in the heat of
passion upon a reasonable provocation," it could not find
defendant guilty of knowing and purposeful murder.
In Coyle the trial court failed to correct the flawed
sequential charge. This Court in Coyle noted that "the failure
to heed defendant's objection to the charge and to reinstruct the
jury so greatly risked confusion as to amount to error." 114
N.J. at 224. In contrast, the trial court heeded defendant's
objection at trial in the present case. Thus, unlike the
situation in Coyle, the correction alleviated the risk of
confusion and the instruction as a whole could not be understood
to foreclose the jury's full and appropriate consideration of
passion/provocation manslaughter.
We have often emphasized that instructions to a jury are to
be examined as a whole. "[P]ortions of a charge alleged to be
erroneous cannot be dealt with in isolation but the charge should
be examined as a whole to determine its overall effect." State
v. Wilbely,
63 N.J. 420, 422 (1973). A consideration of the
entire jury instruction leads to the inevitable conclusion that
the sequential error was largely overcome by the subsequent
instruction.
The trial court also did not explicitly charge the jury that
the State bore the burden of proving beyond a reasonable doubt
the absence of passion/provocation, as required by Erazo. The
importance of that charge, and the vice that attends its
omission, is that a jury might otherwise be led to believe that
the defendant has the burden to prove the presence of
passion/provocation. However, that possibility appears
attenuated in this case.
The court did sufficiently inform the jury that it must find
defendant guilty of nothing greater than manslaughter if it had a
reasonable doubt concerning whether defendant had acted in the
heat of passion:
If you are not satisfied beyond a reasonable doubt that the defendant, that the elements
of this offense have been proved, or any one
of them has failed to be proved, then you
should find the defendant not guilty of this
charge.
On the other hand, if you are satisfied
beyond a reasonable doubt that the defendant
knowingly or purposely caused death or
serious bodily injury resulting in death,
without -- I am sorry-- if you are satisfied
beyond a reasonable doubt that defendant
knowingly or purposely caused the victim's
death, but you have a reasonable doubt as to
whether defendant did so in the heat of
passion upon a reasonable provocation, then
you should find the defendant guilty of
manslaughter.
That instruction does not totally rectify the trial court's
failure to point out specifically that the State bears the burden
of proof with respect to a specific aspect of an element of
purposeful and knowing murder, namely, the absence of passion and
provocation. Nevertheless, although the instruction did not
explicitly state that the burden of proving the lack of
passion/provocation rests with the State, nowhere did it suggest
that the burden of proof on that issue belongs to the defendant.
The dissent of Justice Stein focuses on the trial court's
use of the words "did so" in a sentence of the instruction. Post
at __ (slip op. at 8-12). That sentence conveyed this directive:
that "a reasonable doubt as to whether the defendant did so
[committed the homicide] in the heat of passion upon a reasonable
provocation" should result in a finding that the defendant was
guilty of nothing greater than manslaughter. A correct
instruction, according to the dissent, should have used the words
"did not do so" [did not commit the homicide] rather than "did
so," because the State must prove the absence of
passion/provocation in connection with the killing.
The dissent's analysis of the trial court's language does
not credit the commonsense, ordinary understanding reasonably
imparted by the instruction as given. The trial court's use of
the term "whether" in conventional parlance is a short-hand
expression for "whether or not." The Compact Edition of the
Oxford English Dictionary 3755 (1971). In the context of the
court's charge, the "or not" implicit in the use of "whether"
conveys this meaning: "whether the defendant did so or whether
the defendant did not do so." Hence, fairly understood,
"whether" would encompass the statement that the dissent would
prefer. Moreover, contrary to the suggestion found in Justice
Clifford's dissent, post at __ (slip op .at 3), the alternative
formulation implicit in the trial court's instruction goes far to
eliminate the risk that the jury understood that any aspect of
the burden of proof was on defendant.
Furthermore, when the trial court recharged the jury on
passion/provocation and repeated the above-challenged language,
it followed with this instruction:
If you are convinced beyond a reasonable
doubt that the defendant knowingly or
purposely caused death or serious bodily
injury and death without acting in the heat
of passion on reasonable provocation, then
you must find the defendant guilty of murder.
(Emphasis added)
That additional language makes clear that the absence of
passion/provocation must be proven beyond a reasonable doubt.
In Erazo, "a fair reading" of the charge would lead one "to
the conclusion that the charge erroneously placed on defendant
the burden of proving passion/provocation." 126 N.J. at 122.
Unlike the instruction in this case, the instruction in Erazo
failed to state specifically that defendant could not be found
guilty of knowing and purposeful murder if the jury had a
reasonable doubt regarding whether or not the victim had been
killed in the heat of passion upon a reasonable provocation. In
contrast to Erazo, the instructions in this case left the jury
with the overall impression that the State's overriding burden to
prove murder beyond a reasonable doubt would encompass the
absence of passion/provocation as a constituent aspect of the
element of purposeful/knowing murder.
Finally, the case does not involve the failure to allow the
jury to consider the evidence of passion/provocation
manslaughter. This is not a case in which the charge of
manslaughter and the evidence of passion/provocation were
disregarded by the trial court and not considered by the jury.
See, e.g., State v. Crisantos,
102 N.J. 265, 269 (1986). Little
more than a "scintilla of evidence" is required to warrant
submitting to the jury passion/provocation manslaughter as a
lesser-included offense. Id. at 278. Submission of the
passion/provocation charge will not be foreclosed even where
ample evidence demonstrates that "defendant's homicidal act was
coolly calculated." State v. Mauricio,
117 N.J. 402, 417 (1990).
In this case, however, unlike in Crisantos and Mauricio, the
trial court did not foreclose the jury's consideration of
passion/provocation manslaughter. Nor were its instructions so
erroneous as to confuse or mislead the jury in its consideration
of passion/provocation manslaughter. The instructions gave the
members of the jury an opportunity to consider fully whether
passion/provocation was present. The trial court explicitly told
them to consider passion/provocation in the context of knowing
and purposeful murder. It also told them that they could not
find the defendant guilty of knowing and purposeful murder if
they had a "reasonable doubt as to whether [or not] the
defendant" had killed his victim "in the heat of passion upon a
reasonable provocation."
Moreover, we are not faced with overwhelming evidence of
passion/provocation as the singular and distinctive factor that
led to the killing. Fairly viewed, the evidence suggests that
the relentless manner in which defendant pursued his wife and the
manner in which he viciously executed her after she clearly had
given up the combat and had become totally defenseless undermine
support for characterizing the murder as an act of
passion/provocation manslaughter. Although that view of the
homicide is not dictated by the evidence and clearly would not
obviate the submission of passion/provocation manslaughter to the
jury, it does militate strongly against the actuality of
prejudice that may have emanated from the somewhat maladroit
instructions on that charge. Justice Stein's dissent criticizes
that conclusion as "unsettling" reasoning that the "question
whether the homicide was mitigated by passion/provocation is for
the jury to resolve." Post at __ (slip op. at 5). However, the
jury, with ample opportunity, did consider passion/provocation
and rejected it. It did so on evidence that more than adequately
supported its verdict.
In sum, a review of the factual record does not suggest the
likelihood that the court's explanation of the law of murder and
manslaughter, the manner in which the jury's deliberations should
progress, and the State's burden of proof resulted in or
contributed to an improper verdict.
We affirm the judgment of the Appellate Division.
Chief Justice Wilentz and Justices O'Hern and Garibaldi join
in Justice Handler's opinion. Justice Stein has filed a separate
dissenting opinion in which Justices Clifford and Pollock join.
Justice Clifford has filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
60 September 1993
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NEVEL L. HESLOP,
Defendant-Appellant.
____________________________
STEIN, J., dissenting.
Despite an obviously flawed jury instruction on the State's
burden of proof, the Court affirms defendant's murder conviction,
concluding that the error did not cause prejudice sufficient to
warrant reversal. We often have emphasized that "'[a]ppropriate
and proper charges to a jury are essential for a fair trial.'"
State v. Collier,
90 N.J. 117, 122 (1982) (alteration in
original) (quoting State v. Green,
86 N.J. 281, 287 (1981)).
"[E]rroneous instructions on material issues are presumed to be
reversible error, excusable only if they are harmless beyond a
reasonable doubt." State v. Crisantos,
102 N.J. 265, 273 (1986)
(citing Collier, supra, 90 N.J. at 122-23). Such errors "are
poor candidates for rehabilitation under the harmless error
philosophy." State v. Simon,
79 N.J. 191, 206 (1979).
As the majority opinion acknowledges, ante at ___ (slip op.
at 8-9), the trial court did not specifically charge the jury
that "the State bears the burden of proof with respect to a
specific aspect of an element of purposeful and knowing murder,
namely, the absence of passion and provocation." The controlling
legal principle is firmly established, and was most recently
restated in State v. Wilson,
128 N.J. 233 (1992):
We adhere to our conclusion in [State v.
Erazo,
126 N.J. 112 (1991)]. The general
instructions given by the trial court do not
satisfy the requirement articulated in [State
v. Powell,
84 N.J. 305 (1980)], namely, that
"the trial judge must make the State's burden
clear by instructing the jury that * * * it
must be convinced beyond a reasonable doubt
that the accused did not kill * * * in the
heat of passion." 84 N.J. at 315. When the
record contains evidence of passion/
provocation, a charge that does not include a
specific instruction that the State must
disprove passion/provocation before the jury
can find defendant guilty of murder is
fatally flawed -- even when the instructions
contain general statements concerning the
State's burden of proof.
In my view, the omission of an instruction that the State
bore the burden of proving beyond a reasonable doubt the absence
of passion/provocation requires reversal of defendant's
conviction.
Although the majority observes that "we are not faced with overwhelming evidence of passion/provocation as the singular and
distinctive factor that led to the killing," ante at ___ (slip
op. at 12), the jury decision whether the homicide was murder or
passion/provocation manslaughter was the central issue at trial,
highlighted in the summation of both the prosecutor and defense
counsel. The uncontradicted evidence was that defendant and the
victim, who had been married approximately four years, had
recently separated. The victim, Millicent Heslop, had left the
marital home to reside with her sister in Irvington, New Jersey.
During a brief reconciliation in April 1991, defendant resided in
the Irvington apartment with the victim and her sister, but they
told him to leave a few days before the homicide. According to
defendant's statement, offered in evidence as part of the State's
case, his ejection from the apartment resulted in his sleeping in
the New York subway system for two nights.
On the evening of the homicide, a co-worker drove defendant
to the Irvington apartment to retrieve his tools and clothing.
Unarmed, defendant proceeded to the apartment but found that the
lock had been changed. He went back to the van for a crowbar to
force open the lock, and then returned to the apartment.
Defendant's statement constituted the primary evidence of what
occurred inside the apartment.
According to defendant, he saw his wife inside the apartment
and asked to be admitted to retrieve his personal belongings.
His wife opened the door holding a knife. A struggle ensued and
the two fell to the floor inside the apartment. Defendant picked
up the knife, which had been broken, but the victim "grabbed
another knife and started stabbing at me. I started blocking
it." The victim, still holding the knife, "started to run and
scream outside." According to defendant's statement, "we started
to wrestle outside of the house, she tried to stab me with the
knife, and I hit her with the crowbar, then she started running
away, and she ran to the barber shop."
Defendant's co-worker, Kirby Clark, testified for the State
and described what he saw when the victim and defendant came out
of the apartment. "[S]he had a big knife in her hand, and Nevel
was holding the crowbar. * * * First they were tussling, and the
woman, she spinned around, then I seen Nevel, he swung the
crowbar and, you know, he didn't hit her, but, you know, he swung
the crowbar at her, then like she broke free at that point and
then she headed down the side of the house toward the street
* * * ."
Defendant dropped the crowbar and pursued the victim, who
entered a nearby barber shop still carrying the knife and calling
for help. After a struggle in which the victim fell to the floor
and dropped the knife, defendant picked up the knife and stabbed
her. He removed the knife and proceeded back to his co-worker's
van, dropping the knife in some bushes on the way.
The police apprehended defendant soon after they arrived on
the scene. Officers searched the victim's sister's apartment,
finding blood stains on the door, floor, and bedroom wall, and a
broken knife. Police officers took defendant to a local
hospital, where he received stitches for a cut on his finger.
They then took him to police headquarters, where he voluntarily
gave the statement to police that the court admitted into
evidence at trial.
The majority opinion, although acknowledging the necessity
for a charge on passion/provocation manslaughter, implies that
support for that characterization of the homicide is undermined
because the stabbing occurred after the victim "had given up the
combat and had become totally defenseless * * * ." Ante at ___
(slip op. at 12). That view of the evidence, the majority
suggests, "militate[s] strongly against the actuality of
prejudice" caused by the faulty jury charge. Ibid. The Court's
rationale, however, is unsettling. Assuming, as the Court
concedes, that a jury charge on passion/provocation manslaughter
was required by the evidence, the question whether the homicide
was mitigated by passion/provocation is for the jury to resolve.
Crisantos, supra, 102 N.J. at 275. Moreover, the Court's focus
on the homicidal act minimizes the significance of the
uncontested evidence that the victim attempted to stab defendant
when he entered the apartment, and that after the first knife
broke, she obtained a second knife and continued to wield it
threateningly against defendant when the conflict continued
outside the apartment.
The law is well settled that merely a threat with a gun or
knife can constitute adequate provocation. State v. Mauricio,
117 N.J. 402, 414 (1990); State v. Powell,
84 N.J. 305, 320
(1980); State v. Bonano,
59 N.J. 515, 523-24 (1971). Battery, or
mutual combat, has generally been considered adequate
provocation, "almost as a matter of law * * * ." Mauricio,
supra, 117 N.J. at 414; Model Penal Code § 210.3 cmt. at 57
(1980); 2 Charles E. Torcia, Wharton's Criminal Law §§ 158-159
(14th ed. 1979). Once adequate provocation is established, a
trial court next considers "whether the perpetrator had
reasonable time to cool off before killing the victim," Mauricio,
supra, 117 N.J. at 412, an objective appraisal based on a court's
"sense of the situation." Id. at 413. On this record, the
interval that elapsed between the attempted knifing of defendant
in the apartment, the encounter outside with the victim wielding
a knife and defendant swinging a crowbar, and the fatal stabbing
in the barber shop surely was too brief to permit a court to
conclude that defendant necessarily had "cooled off" before the
homicide. The remaining elements of passion/provocation
manslaughter, whether the provocation actually impassioned the
perpetrator and whether the perpetrator actually cooled off, are
subjective elements ordinarily left for jury determination.
Ibid. Accordingly, notwithstanding the majority's assessment of
the strength of the evidence, the record unmistakably established
a rational basis for a jury verdict of passion/provocation
manslaughter.
The trial court charged the jury on murder and on the lesser-included offenses of aggravated manslaughter, reckless
manslaughter, and passion/provocation manslaughter. The court's
instructions on those offenses were flawed in three respects, and
only one of the errors was corrected before jury deliberations
commenced. The corrected error concerned the trial court's
initial instruction that the jury need not consider lesser
included offenses if it determined that defendant was guilty of
murder. The other errors -- failure to instruct the jury that
the State bore the burden of proving as an element of murder the
absence of passion and provocation, and an inadvertent but
clearly erroneous misstatement of the jury's function with
respect to the offense of passion/provocation manslaughter -
were never corrected.
The relevant portion of the trial court's charge to the
jury on murder stated:
Murder is the unlawful killing of one
person by another purposely or knowingly.
A person who commits a killing does so
purposely when it is the person's conscious
object to cause death or serious bodily
injury resulting in death.
A person who commits a killing does so
knowingly when the person is aware that what
he is doing will cause death or serious
bodily injury resulting in death or is
practically certain to cause death or serious
bodily injury resulting in death.
In either case, that is, whether the
killing is committed purposely or
knowingly[,] causing the death or serious
bodily injury must be within the design or
contemplation of the defendant.
Shortly thereafter, at the beginning of its charge to the
jury on the lesser-included offenses of murder, the court
instructed the jury:
If you were to decide the defendant is
guilty of a purposeful knowing murder, then
you don't have to consider the lesser
included offenses.
The trial court then proceeded to instruct the jury on the
lesser-included offenses, concluding its passion/provocation
manslaughter charge as follows:
If you are not satisfied beyond a
reasonable doubt that the defendant, that the
elements of this offense have been proved, or
any one of them has failed to be proved, then
you should find the defendant not guilty of
this charge.
On the other hand, if you are satisfied
beyond a reasonable doubt that the defendant
knowingly or purposely caused death or
serious bodily injury resulting in death,
without -- I am sorry -- if you are satisfied
beyond a reasonable doubt that the defendant
knowingly or purposely caused the victim's
death, but you have a reasonable doubt as to
whether the defendant did so in the heat of
passion upon a reasonable provocation, then
you should find the defendant guilty of
manslaughter.
As noted, the trial court's initial charge on murder and on passion/provocation manslaughter does not explain the relationship of the offenses or inform the jury that to convict defendant of murder, the State must prove beyond a reasonable doubt the absence of passion and provocation. In addition, referring to the last two paragraphs of the charge on passion/provocation manslaughter, the second paragraph
incorrectly states the jury's function and contradicts the
statement in the first paragraph. The problem arises from the
trial court's undoubtedly inadvertent use of the words "did so,"
rather than "did not do so," in the phrase "but you have a
reasonable doubt as to whether the defendant did so in the heat
of passion upon a reasonable provocation, then you should find
the defendant guilty of manslaughter." As stated, the charge
instructs the jury, contrary to the preceding paragraph, that it
should convict the defendant of passion/provocation manslaughter
if it had a reasonable doubt that the murder had been committed
in the heat of passion on a reasonable provocation. Obviously,
that explanation of the jury's duty in respect of
passion/provocation manslaughter seriously misstates the law.
Correctly stated, the concluding phrase of the second paragraph
should have read "but you have a reasonable doubt that the
defendant did not do so in the heat of passion on a reasonable
provocation, then you should find the defendant guilty of
manslaughter." Unfortunately, the trial court repeated the error
in the course of two other attempts to charge the jury on
passion/provocation manslaughter.
Prior to the commencement of deliberations, defense counsel
requested the trial court to modify that portion of the charge
that informed the jury that it need not consider the lesser-
included offense of passion/provocation manslaughter if it
decided that defendant was guilty of murder, undoubtedly
adverting to this Court's holding in State v. Coyle,
119 N.J. 194, 222-23 (1990), that a similar instruction constituted
reversible error. In response to defense counsel's concerns,
the trial court modified its earlier instruction:
The * * * point that counsel wants me to
make clear to you is that when you consider
the charge of purposeful or knowing murder
that you have to in that context, of course,
aside from considering the self defense
that's been interposed here as well, that you
also have to consider the heat of passion.
In other words, if you are not satisfied
beyond a reasonable doubt that the defendant
acted purposely or knowingly, then you would
find him not guilty of a purposeful or
knowing murder.
If you are satisfied beyond a reasonable
doubt that the defendant knowingly caused
death or serious bodily injury resulting in
death without acting in a heat of passion
upon reasonable provocation, then you should
find him guilty of murder.
If you are satisfied beyond a reasonable
doubt that the defendant knowingly or
purposely caused the death of the victim but
you have a reasonable doubt as to whether the
defendant did so in the heat of passion upon
a reasonable provocation, then you should
find the defendant guilty of manslaughter.
In other words, that you should consider
the heat of passion upon reasonable
provocation in connection with the purposeful
or knowing murder count.
Although the trial court corrected its charge to instruct the jury that it must consider passion/provocation manslaughter in connection with its deliberations on purposeful or knowing murder, the court did not instruct the jury that the State bore
the burden of proving beyond a reasonable doubt the absence of
passion/provocation. In addition, in the fourth paragraph of the
modified instruction, the trial court again erroneously used the
phrase "did so" rather than "did not do so," resulting in a
flawed charge to the jury.
The jury began deliberations on October 10, 1991. The
following day it requested additional instructions on murder and
aggravated manslaughter. At defense counsel's request, the
following sidebar discussion ensued in the course of which
defense counsel asked the court to recharge the jury on
passion/provocation manslaughter, emphasizing the State's burden
of disproving passion/provocation in the context of murder:
[DEFENSE COUNSEL]: I would ask you to
give them heat of passion along with that,
because if they [do] find knowing, purposeful
[murder], they have to be convinced beyond a
reasonable doubt that despite that it is not
in the heat of passion.
[ASSISTANT PROSECUTOR]: Judge, they
specifically asked for purposeful, knowing
[murder] and aggravated manslaughter.
THE COURT: Yes, but I think what she is
saying is that there is a recent case that
talks about that when that's raised, that you
have to give it in the context of the murder.
[DEFENSE COUNSEL]: And when it's
raised, the State has the burden of
disproving it.
THE COURT: I am going to do it. I am
not going to fool around with it.
Accordingly, the trial court recharged the jury on murder
and passion/provocation manslaughter, concluding with the
following statements:
If you are not satisfied beyond a
reasonable doubt the defendant in fact caused
the victim's death or that the defendant
acted purposely or knowingly, you should find
the defendant not guilty of murder.
If you are satisfied beyond a reasonable
doubt that the defendant knowingly or
purposely caused the victim's death, if you
have a reasonable doubt as to whether the
defendant did so in the heat of passion upon
reasonable provocation, then you should find
the defendant guilty of manslaughter.
If you are convinced beyond a reasonable
doubt that the defendant knowingly or
purposely caused death or serious bodily
injury and death without acting in the heat
of passion on reasonable provocation, then
you must find the defendant guilty of murder.
Once again, the trial court failed to instruct the jury that
the State, not the defendant, bore the burden of proof beyond a
reasonable doubt that the homicide did not occur in the heat of
passion on reasonable provocation. Moreover, the trial court
again used the phrase "did so" rather than "did not do so" in the
middle paragraph of the supplemental instruction quoted above,
resulting in an erroneous jury charge on passion/provocation
manslaughter.
Our cases make crystal clear that the trial court's
instruction was defective. We emphasized in State v. Grunow,
102 N.J. 133 (1986), a trial court's obligation in a case that
warrants a passion/provocation charge: "'[A] trial judge must
make the State's burden clear by instructing the jury that to
find [murder] it must be convinced beyond a reasonable doubt that
the accused did not kill * * * in the heat of passion caused by
inadequate provocation * * * .'" Id. at 145 (emphasis added)
(alterations in original) (quoting Powell, supra, 84 N.J. at 315
(footnote omitted)).
In Coyle, supra, we re-emphasized the importance of a proper
instruction on the State's burden of proof: "When the record
contains evidence of passion/provocation, the State can obtain a
murder conviction only if it proves beyond a reasonable doubt
that the purposeful killing was not the product of
passion/provocation." 119 N.J. at 221.
More recently, in Erazo, supra,
126 N.J. 112, Justice
Pollock restated the same principle and also rejected the State's
contention that the trial court's general instruction on burden
of proof was sufficient:
When a defendant places passion/provocation
in issue, the State, to prove a knowing or
purposeful murder, must prove beyond a
reasonable doubt that defendant's actions
were not the result of passion.
* * * *
* * * To support its contention that the
charge was merely ambiguous, the State points
to an earlier instruction:
[T]he burden of proof is on the
State. * * * [T]hat burden never
shifts and it remains on the State
throughout the whole case, so no
burden with respect to proof is
imposed upon the defendant, Mr.
Erazo. He is not obligated to
prove his innocence.
That general statement, although accurate,
lacks the muscle to shift to the State the
burden to disprove passion/provocation.
(alterations in original).]
As noted supra at ___ (slip op. at 2), the same rule was
repeated with unmistakable clarity in Wilson, supra, 128 N.J. at
240: "When the record contains evidence of passion/provocation,
a charge that does not include a specific instruction that the
State must disprove passion/provocation before the jury can find
defendant guilty of murder is fatally flawed -- even when the
instructions contain general statements concerning the State's
burden of proof."
In the face of this compelling precedent, the majority finds
comfort in its observation that "although the [trial court's]
instruction did not explicitly state that the burden of proving
the lack of passion/provocation rests with the State, nowhere did
it suggest that the burden of proof on that issue belongs to the
defendant." Ante at ___ (slip op. at 9). The Court also finds
reassurance in its review of the factual record, which, it
concludes, "does not suggest the likelihood" that the trial
court's flawed instruction either "resulted in or contributed to
an improper verdict." Ante at ___ (slip op. at 13). As our case
law makes abundantly clear, however, an instruction that fails to
state clearly that the State bears the burden of disproving
passion/provocation is not cured merely by the absence of
language suggesting that that burden is borne by the defendant.
Nor have we heretofore been willing to sustain a murder
conviction in the absence of an adequate instruction on the
State's burden of proof merely because the record did not
"suggest the likelihood" that the error contributed to an
improper verdict. The choice between murder and
passion/provocation manslaughter, which depends on the mental
state of the accused, is not the province of this Court.
"Deciding that question is the jury's function." Crisantos,
supra, 102 N.J. at 284 (O'Hern, J., concurring in part,
dissenting in part). On an issue so critical to the jury's
deliberative function, we should not compromise our insistence on
"a specific instruction that the State must disprove
passion/provocation [beyond a reasonable doubt] before the jury
can find defendant guilty of murder * * * ." Wilson, supra, 128
N.J. at 240.
I would reverse the judgment of the Appellate Division and
remand the matter for retrial.
Justice Clifford and Justice Pollock join in this opinion.
SUPREME COURT OF NEW JERSEY
A-
60 September Term 1993
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NEVEL L. HESLOP,
Defendant-Appellant.
CLIFFORD, J., dissenting.
I join in Justice Stein's dissent. Because part of the
debate on the accuracy of the trial court's charge seems to have
ripened into a disagreement on, of all things, correct grammar, I
write separately only to take up the cudgels in defense of
linguistic hygiene. See Pico v. State,
116 N.J. 55, 64 (1989)
(concurring opinion). I hasten to add that I approach the task
with but the slenderest of credentials, particularly in the face
of the sophisticated analyses spun out in my colleagues'
opinions. My own primitive frame of reference is limited pretty
much to what I learned around 1935-36 from Miss Doane in the
sixth grade at Franklin School No. 3, Passaic, New Jersey. Miss
Doane was not one to brook sloppy grammar.
The "grammar" issue originates in the following passage from
the trial court's jury charge on passion/provocation
manslaughter:
[I]f you are satisfied beyond a reasonable
doubt that the defendant knowingly or
purposely caused the victim's death, but you
have a reasonable doubt as to whether the
defendant did so in the heat of passion upon
a reasonable provocation, then you should
find the defendant guilty of manslaughter.
(Emphasis added).
Justice Stein's dissent argues that among the shortcomings in the
foregoing passage is the absence of "not" in the specification of
what the State must prove beyond a reasonable doubt before the
jury can find a defendant guilty of murder, namely, that the
defendant did not knowingly or purposely cause the victim's death
in the heat of passion on a reasonable provocation. Put
differently, the offending passage misstates the subject on which
the "reasonable doubt" focuses: whether the defendant did kill
in the heat of passion, as contrasted with whether he did not
kill in the heat of passion. The propositions are not at all the
same, and the Court does violence to both the law and the English
language in suggesting, ante at __ (slip op. at 10), that they
are.
When the evidence would permit a jury to find a defendant guilty of passion/provocation manslaughter as well as of knowing or purposeful murder, the State can gain a murder conviction only by persuading the jury beyond a reasonable doubt that the defendant did not kill in the heat of passion on reasonable provocation. The State's burden is to prove a negative. If the
jury has a reasonable doubt that the State has proven that
negative -- that is, that the defendant did not kill in the heat
of passion -- then the jury should return a passion/provocation
manslaughter verdict. In effect, the State "backs into" a
passion/provocation manslaughter conviction by its failure to
carry its burden to prove murder.
A trial court simply cannot convey to a jury the State's burden as stated above through an instruction that defines the subject on which it may entertain a reasonable doubt in terms of, as in this case, whether the defendant did knowingly or purposely kill in the heat of passion. Nor, in the Court's transposition of the charge, in terms of "whether or not" defendant did kill in the heat of passion. Assuming, as the Court does, ante at __ (slip op. at 10), that "'whether' would encompass the statement that the dissent would prefer" (emphasis added), it also unfortunately -- and fatally -- "encompasses" the entirely inaccurate instruction that plainly misstates the nature of the State's burden. And in putting that burden up for grabs, the charge runs the risk of creating the impression that the defendant must carry the burden of proving that he did kill in the heat of passion. We should not dispose of those concerns with the breezy -- and to me (to Miss Doane, too, I will wager) almost incomprehensible -- declaration, ante at __ (slip op. at 11), that "the jury here was left with the overall impression
that the State's overriding burden to prove murder beyond a
reasonable doubt would encompass the absence of
passion/provocation as a constituent aspect of the element of
purposeful/knowing murder."
Part of the problem in the charge in this case inheres in
the trial court's resort to the expression "as to whether." "As
to," as Miss Doane taught me years ago, and as confirmed by my
later exploration of Fowler, "is usually either a slovenly
substitute for some simple preposition," including "of," "about,"
"on," or "concerning," or it is "entirely otiose." F.W. Fowler,
Fowler's Modern English Usage 36-37 (Sir Ernest Gowers 2d ed.
1985). Fowler continues:
As might be expected, those who put their
trust in a phrase that is usually either
vague or otiose are constantly betrayed by it
into positive bad grammar * * * . The
popular favourites: The question as to
whether, The doubt as to whether, may almost
be included among the ungrammatical
developments, since the doubt or question
demands an indirect question in simple
apposition (The question whether, The doubt
whether); in such forms as Doubts are
expressed as to whether, the "as to" is not
incorrect, but merely repulsive.
The uncertainties posed by the clumsy "as to whether" language are obviated by the use of Justice Stein's simpler, more direct formulation of the charge, ante at ___ (slip op. at 9),
which is faithful to the law and respectful of the English
language, namely:
Correctly stated, the concluding phrase of
the second paragraph should have read "but
you have a reasonable doubt that the
defendant did not do so in the heat of
passion on a reasonable provocation, then you
should find the defendant guilty of
manslaughter." (First emphasis added).
The foregoing is consistent as well with the Model Jury
Charge that was in effect when this case was tried. That model
charge reads in pertinent part:
[To gain a murder conviction] the State
must prove beyond a reasonable doubt * * *
that the defendant did not act in the heat of
passion resulting from a reasonable
provocation.
If you determine that the State has disproved beyond a reasonable doubt that there was adequate provocation or that the provocation actually impassioned the defendant or that the defendant did not have a reasonable time to cool off or that the defendant did not actually cool off, and, in addition to disproving one of those four factors, you determine that the State has proven beyond a reasonable doubt that the defendant purposely or knowingly caused death or serious bodily injury resulting in death, you must find the defendant guilty of murder.
If, on the other hand, you determine that the State has not disproven at least one of the factors of passion/provocation manslaughter beyond a reasonable doubt, but that the State has proven beyond a reasonable doubt that the defendant purposely or knowi