SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-660-94T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM LAWTON,
Defendant-Appellant.
_________________________________________________________________
Submitted October 16, 1996 - Decided February 25, 1997
Before Judges Pressler, Humphreys and Wecker
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County.
Susan Reisner, Public Defender, attorney for appellant
(Diana H. Jeffrey, Designated Counsel, on the brief).
Charles R. Buckley, Deputy Attorney General, Acting
Bergen County Prosecutor, attorney for respondent
(Susan W. Sciacca, Special Deputy Attorney General,
Acting Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
HUMPHREYS, J.A.D.
Defendant appeals the denial of his motion for post-conviction relief. He asserts that his 1987 conviction for first
degree murder and possession of a handgun should be vacated. He
contends:
I. THE JURY INSTRUCTIONS WERE INHERENTLY CONFUSING,
CONTRADICTORY, AND IMPERMISSIBLY SHIFTED THE BURDEN OF
PROOF ONTO THE DEFENDANT, RESULTING IN PLAIN ERROR.
A. Taken In Its Entirety, The Instruction Is Still
Inherently Confusing And Contradictory, Even With
The Re-Charge.
B. The Trial Court Impermissibly Shifted the Burden
Of Proof Onto The Defendant.
C. The Flaws In The Jury Instruction And Re-Charge
Were Prejudicial, Not Harmless.
II. THE REVIEWING COURT VIOLATED THE DEFENDANT'S RIGHT TO A
FAIR TRIAL AND RIGHT TO CONFRONT WITNESSES WHEN IT
DETERMINED THAT THE TRIAL COURT DID NOT ERR IN
RESTRICTING CROSS EXAMINATION.
III. THE DOCTRINE OF COLLATERAL ESTOPPEL DOES NOT FORECLOSE
POST CONVICTION REVIEW OF THE TRIAL COURT'S FAILURE TO
INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF
RECKLESS MANSLAUGHTER.
IV. THE REVIEWING COURT'S CLAIM THAT ALL OF THE DEFENDANT'S
ISSUES SHOULD BE BARRED BECAUSE THEY WERE NOT RAISED ON
DIRECT APPEAL IS WITHOUT MERIT.
We asked the defendant to brief the issue of whether he was
denied effective assistance of appellate counsel because the
alleged flaws in the jury charge were not raised on direct
appeal. In response to this request, defendant filed a letter
brief in which he contends:
I. APPELLATE COUNSEL'S FAILURE TO RAISE ON APPEAL THE
FLAWS IN THE JURY INSTRUCTIONS AMOUNTED TO INEFFECTIVE
ASSISTANCE OF COUNSEL, IN VIOLATION OF DEFENDANT'S 6TH
AMENDMENT RIGHTS.
A. The First Prong of the Strickland-Cronic-Fritz
Test Can Be Satisfied: Counsel's Performance Was
Deficient.
B. Mr. Lawton Was Prejudiced By His Counsel's
Deficient Performance.
1. The Jury Instructions Were Contradictory and
Inherently Confusing.
2. In Its Instructions to the Jury, the Trial
Court Improperly Shifted the Burden of Proof to
the Defendant.
3. The Trial Court Impermissibly Instructed the
Jury It Could Not Deliberate on the Manslaughter
Charge Until After It First Deliberated the Murder
Charge.
We conclude that errors in the charge to the jury caused a
fundamental injustice and a deprivation of constitutional rights.
We therefore reverse and remand for a new trial on the murder
conviction. We do not reach the other issues raised by the
defendant.
Defendant was beaten in a bar in 1986. He went home, got a handgun, went back to the bar, and shot and killed a person he thought was one of his assailants. Only ten minutes elapsed between the end of the beating and the shooting. The critical issue in the case was whether defendant acted in the heat of passion with reasonable provocation. If he did so act, the offense would be manslaughter, not murder.
The defendant was tried in 1987. The jury convicted the defendant of murder, contrary to N.J.S.A. 2C:11-3(a)(1). He was also convicted of possession of a handgun for unlawful purposes, contrary to N.J.S.A. 2C:39-4(a). He was sentenced to life imprisonment with thirty years parole ineligibility on the murder conviction and a concurrent seven year term on the handgun conviction. Another panel of the Appellate Division affirmed his convictions and sentences in an unreported opinion. His petition for certification was denied by the Supreme Court. State v. Lawton, 122 N.J. 152 (1990).
Thereafter, he filed a pro se petition for post-conviction
relief ("PCR"). His petition was denied by an order entered in
May 1992 on the ground that his claims had previously been
adjudicated. The defendant appealed. We remanded for a hearing
which was held in July 1994. By an order dated August 1, 1994,
his motion for PCR was again denied. He appeals from that order.
The crucial issue in this case is whether defendant's crime was murder or manslaughter.
Former Chief Justice Weintraub defined voluntary manslaughter as
a slaying committed in a transport of passion or heat of blood induced by an adequate provocation, provided the killing occurs before the passage of time sufficient for an ordinary person in like circumstances to cool off. The common law deemed such circumstances to negate the malice required for murder. Involved is 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.
[State v. Guido,
40 N.J. 191, 209-10 (1963) (citations
omitted).]
Under the New Jersey Code of Criminal Justice, a homicide
which would otherwise be murder is manslaughter if it is
"committed in the heat of passion resulting from a reasonable
provocation." N.J.S.A. 2C:11-4(b)(2).
In State v. Mauricio,
117 N.J. 402 (1990), the Court said:
[p]assion/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. The first
two criteria are objective, the other two subjective.
If a slaying does not include all of those elements,
the offense of passion/provocation manslaughter cannot
be demonstrated.
[Id. at 411 (citations omitted).]
Words alone do not constitute adequate provocation. State
v. Crisantos,
102 N.J. 265, 274 (1986). A threat with a gun or a
knife may constitute adequate provocation. State v. Powell,
84 N.J. 305, 320 (1980). A battery, except for a light blow, has
traditionally been considered "almost as a matter of law," to
constitute adequate provocation. State v. Mauricio, supra, 117
N.J. at 414. In Mauricio, the Court concluded that where
defendant had an altercation with a bouncer, was later forcibly
evicted from a tavern, and then shot and killed a person he
erroneously believed to be the bouncer some fifteen minutes
later, a jury could reasonably find passion/provocation
manslaughter. Id. at 415.
A battery unquestionably occurred in the present case. The
defendant was severely beaten by perhaps as many as eight to ten
persons. A police officer observed that the defendant's face was
"swollen," an eye was apparently closed and his face appeared
"deformed." The defendant's wife testified that he had been
beaten so badly that the swelling in his face made his eyes
appear "like they were sitting on the side of his head." The
severity of the beating coupled with the defendant's committing
the crime only ten minutes later offer strong support for the
contention that this was a crime resulting from
passion/provocation and therefore was manslaughter not murder.
When the evidence warrants a passion/provocation charge, as
it certainly does here, the trial judge must charge the jury that
the State bears the burden of proving beyond a reasonable doubt
the absence of "passion/provocation." State v. Heslop,
135 N.J. 318, 322 (1994); State v. Erazo,
126 N.J. 112, 135 (1991); State
v. Coyle,
119 N.J. 194, 222 (1990); State v. Grunow,
102 N.J. 133, 145 (1986).
The Court stated in State v. Heslop, supra:
[w]e 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.
[135 N.J. at 322 (emphasis added).]
In State v. Grunow, supra, the Court disapproved of the then
model charge, which read as follows:
[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 he did so in the heat of passion upon a
reasonable provocation, then you must find the
defendant guilty of manslaughter.
[102 N.J. at 145]
The Court noted that:
this form of charge, by not expressly referring to the
burden of proof, may inadequately convey to the jury
that the prosecution must prove beyond a reasonable
doubt every fact necessary to constitute the crime of
murder, including the absence of reasonable
provocation. The model jury charge should be revised
to conform more closely to Powell and the dictates of
Mullaney v. Wilbur,
421 U.S. 684,
95 S.Ct. 1881,
44 L.Ed.2d 508 (1975).
[Id. at 145 n.5; see State v. Erazo, supra, 126 N.J. at
122 (also disapproving the charge).]
Additionally, the trial judge must be careful not to suggest
to the jury that "the defendant bears a burden to prove beyond a
reasonable doubt the presence of reasonable provocation." State
v. Grunow, supra, 102 N.J. at 145. For this reason, the trial
judge must not charge the jury in a sequence which may foreclose
the jury from considering passion/provocation during its
deliberations on the murder charge and which may also indicate
that the jury could find passion/provocation manslaughter only if
it first acquits the defendant of murder.
The trial judge in Erazo gave a sequential charge. The
judge had instructed the jury that it should first consider
whether the defendant was guilty of murder and then consider the
manslaughter charge.
This error was described by the Supreme Court in Erazo as
follows:
[t]his part of the charge contained two errors. First, the instruction had the capacity to confuse the jurors about the elements of knowing or purposeful murder. As explained above, when a defendant places passion/provocation in issue, the State, to prove a knowing or purposeful murder, must prove beyond a reasonable doubt that the defendant did not act from passion aroused by reasonable provocation. Hence, the initial problem with the charge is that it may have foreclosed the jury from considering passion/provocation during its deliberations on the murder count. Second, the court erroneously instructed the jury that it could find passion/provocation manslaughter only if it first acquitted defendant of knowing or purposeful murder. This instruction is backwards. Only a homicide that would otherwise be a knowing or purposeful murder may be reduced to manslaughter by the presence of passion/provocation. If, on retrial, the court should again give a sequential charge, it should make clear both that the absence of passion/provocation is an element of murder on which the State bears the burden of proof and that
the jury may convict defendant only of manslaughter
when the homicide would have been murder but for the
existence of passion/provocation.
[Id. at 125-26 (emphasis added).]
The trial judge in Erazo also erred by giving the charge
disapproved in Grunow. The trial judge charged:
[s]o if you're satisfied beyond a reasonable doubt that
the defendant caused the decedent's death under
circumstances that would [otherwise] be murder but was
committed in the heat of passion, then you may return a
verdict of guilty of manslaughter.
[State v. Erazo, supra, 126 N.J. at 122.]
The Supreme Court concluded in Erazo that "a fair reading
[of the charge] leads to the conclusion that the charge
erroneously placed on defendant the burden of proving
passion/provocation. This error requires reversal." Ibid.
The State argued in Erazo, as it does here, that earlier
instructions to the jury cured the errors. The trial court had
instructed the jury earlier in the charge that "the burden of
proof was 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. . . . He is not
obligated to prove his innocence." Ibid.
The Court in Erazo rejected the State's argument and
reasoned "that the general statement, although accurate, lacks
the muscle to shift to the State the burden to disprove
passion/provocation. At best, the charge was contradictory."
Ibid. Accordingly, the Court found the charge to be "inherently
inadequate." Ibid.
The charge in the present case suffers from the same
infirmities as the charges in Grunow, Erazo, Coyle and Heslop.
The judge did not charge the jury that the State had the burden
of proving that the defendant did not act from
passion/provocation. The judge did not charge that the State's
burden on this issue was proof beyond a reasonable doubt. The
judge's initial charge was erroneously sequential. The charge
disapproved of in Grunow was charged in this case. The judge's
attempt at a curative charge fell considerably short of
correcting his error.
The cumulative impact of these errors was likely to cause
confusion in the jurors' minds and also to suggest to the jury
that the defendant, not the State, had the burden of proof on the
issue of passion/provocation.
The judge in this case charged:
[i]f after consideration of all the evidence you are
convinced beyond a reasonable doubt that the Defendant
either purposely or knowingly caused the death of the
victim then your verdict should be guilty. If,
however, after consideration of all the evidence you
find that the State has failed to prove each and every
element of the offense your verdict should be not
guilty.
As I have said to you before, although the crime of
manslaughter is not mentioned in the Indictment you
have a right and a duty to consider that offense.
A homicide which would otherwise be murder is
manslaughter when the killing is committed in the heat
of passion, resulting from a reasonable provocation.
This charge is the erroneous sequential charge disapproved
in Grunow and Erazo. The judge later compounded this error by
charging:
[i]f you are not satisfied beyond a reasonable doubt
that the Defendant did, in fact, cause the victim's
death or that the Defendant acted purposely or
knowingly then you must find the Defendant guilty of
murder. If, however, you're satisfied beyond a
reasonable doubt that the Defendant knowingly,
purposely caused the victim's death but you have a
reasonable doubt as to whether he did so in the heat of
passion upon a reasonable provocation you shall 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 resulting in death without acting in the heat of
passion upon reasonable provocation then you must find
the Defendant guilty of murder.
The first sentence in the above charge was plainly wrong.
If the jury is not satisfied beyond a reasonable doubt that the
defendant caused the victim's death or acted purposely or
knowingly, then a not guilty verdict is required, not a guilty
verdict.
The second sentence in the above portion of the charge is
the charge disapproved in Grunow and Erazo. The three sentences
when read together are clearly confusing and misleading.
These errors were further compounded by the verdict form and
the judge's description of it. The judge told the jury:
[t]he first part of the verdict form has to do with the
question of murder or manslaughter. If you read it you
will see that it will indicate that on or about March
19th, 1986, William Lawton did cause the death or
serious bodily injury resulting in the death of Steven
Stack either purposely or knowingly. If it's a
unanimous verdict that he purposely or knowingly caused
that death[] you check the space marked guilty. If
you find that the State has failed to prove the
elements of the offense beyond a reasonable doubt then
you check[] the space under the words not guilty.
Then you proceed[] to consider manslaughter, that, on or about March 19th, 1986, William Lawton did cause death or serious bodily injury resulting in the death of Steven Stack while in the heat of passion resulting
from a reasonable provocation. If you find that that
is the situation[] in this case, that he caused the
death while in the heat of passion and as a result of a
reasonable provocation you check the box[] marked
guilty. If you find that the State has failed to prove
that type of homicide beyond a reasonable doubt then
you check not guilty.
[(emphasis added).]
The verdict form and the judge's description of the form
repeated the sequential error in the judge's charge. Defense
counsel objected, saying:
If they find a knowing and purposeful killing but they
have a reasonable doubt as to passion or provocation,
then they could find the defendant guilty of
manslaughter.
The judge responded: "I said that in the charge."
Defense counsel replied:
I know you did, I'm just saying as far as the form is
concerned, they should be carefully instructed as to
that because it's most important. Otherwise, if they
just address themselves to the first charge of murder,
they may very well believe once they have found serious
bodily injury or death or death resulting from serious
bodily injury knowing or purposely, that's the end of
the case and that's why I think it's most important
that they be -
The judge interjected: "You may have a point there. I did
say it in the charge."
Defense counsel replied: "I know you did Judge, only
because the way law is written insofar as manslaughter is
concerned[.]"
The judge agreed that he "may have misled" the jury with the
form. "They may think that they must find heat of passion beyond
a reasonable doubt. They don't have to do that at all." The
judge said he would not give the jury the verdict form and he
would recharge the jury.
The jury returned to the courtroom and the judge charged
them as follows:
There's been some suggestion that I may have, and it's
possible, that I may have misled you with respect to
manslaughter, the manslaughter phase. Let's go back.
Now, remember, the first charge is murder. If you find
that the State[] has proven beyond a reasonable doubt
all of the elements of the crime of murder which means
that the killing was purposely and knowingly and you
find nothing else and if you find that the State has
proven that beyond a reasonable doubt and you find the
absence of any heat of passion or provocation then you
must find the Defendant guilty.
Now, if, however, in examining the facts and
circumstances of this case you find that there was an
unlawful killing of a person knowingly and/or purposely
and you find in considering either heat of passion and
provocation that you have a reasonable doubt as to
whether it was heat of passion or provocation then you
cannot find the Defendant guilty of murder, you must
find the Defendant guilty of manslaughter. Do you
understand that? Do you understand that, Mr. Foreman,
when you discuss this? If there's some doubt in your
minds as to heat of passion or provocation it cannot be
murder. Reasonable doubt, not just any kind of doubt.
Do you understand that?
[(emphasis added).]
The above charge ameliorated to some extent the judge's
error in originally using a sequential charge. However, this
attempted curative charge still did not place the burden of proof
on the State to prove the absence of passion/provocation beyond a
reasonable doubt. See State v. Heslop, supra, 135 N.J. at 322;
State v. Erazo, supra, 126 N.J. at 121-22; State v. Grunow,
supra, 102 N.J. at 145; State v. Powell, supra, 84 N.J. at 315.
Clearly, the charge in this case suffered from multiple
errors. Two errors were especially egregious. The jury was
never advised that the State had the burden of disproving
passion/provocation in order to sustain a conviction for murder.
The absence of this charge, and the erroneous sequential nature
of the initial charge could readily have led the jury to conclude
that the defendant had to prove the existence of
passion/provocation, thereby impermissibly shifting the burden of
proof from the State to the defendant. State v. Erazo, supra,
126 N.J. at 121-22; State v. Grunow, supra, 102 N.J. at 144-45 &
n.5.
The Supreme Court in State v. Heslop, supra, stated that
where:
those two errors, [(1) the failure to charge that the
State has the burden of disproving passion/provocation
and (2) the sequential charge,] 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.
[135 N.J. at 322.]
In Heslop, the majority of the Supreme Court found that the evidence of passion/provocation in that case was not strong and therefore the conviction should not be reversed. The Court said that considering the charge as a whole, the possibility that a jury might have been "led to believe that the defendant ha[d] the burden to prove the presence of passion/provocation" was "attenuated." Id. at 324. The majority found that the evidence of passion/provocation was not "overwhelming" and that fairly
viewed "the evidence suggest[ed] that . . . [the murder was not]
an act of passion/provocation manslaughter" but instead militated
strongly against the "actuality of prejudice that may have
emanated from the somewhat maladroit instructions on that
charge." Id. at 327.
The majority in Heslop concluded that "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." Id. at 328.
In the present case, the record does not give that
reassurance. Here, the issue of murder or passion/provocation
manslaughter is close. If the jury had been properly charged,
the likelihood of a manslaughter verdict would have been
substantially increased. Consequently, the charge here was
reversible error.
The State concedes that the issues raised as to the judge's charge are not subject to the procedural bar of R. 3:22-4. This is because the issues are of constitutional dimension and involve claims of fundamental injustice. See R. 3:22-4(b), (c).
Nevertheless, the State cites State v. Cupe, 289 N.J. Super. 1, 8 (App. Div.), certif. denied, 144 N.J. 589 (1996), for the proposition that the prohibition against sequential jury charges in passion/provocation cases will not be applied to defendants
who have exhausted their right to direct review. However, unlike
Cupe, the jury charge in the present case not only was
erroneously sequential but also suffered from other serious
errors, especially the failure to charge that the State has the
burden of disproving passion/provocation. Hence, we find Cupe to
be inapplicable to the present case.
Further, these other serious errors in the charge had been
identified as defects in State v. Powell, supra, 84 N.J. at 315,
and State v. Grunow, supra, 102 N.J. at 145. Both of these cases
were decided before the trial in the present case. Consequently,
these defects are not "new law" and therefore are not subject to
retroactivity analysis. See State v. Burgess, ___ N.J. Super.
___ (App. Div. 1997) (both majority and dissenting opinions).
In sum, the errors here are serious defects in a jury
charge. The errors severely infringe the defendant's
constitutional right to a fair trial. The errors also directly
impact on the defendant's guilt or innocence of the crime for
which he was convicted. If the jury had been properly
instructed, the jury in this close case could have readily
concluded that the State had not met its burden of disproving
beyond a reasonable doubt that the defendant acted in the heat of
passion and with reasonable provocation. The defendant, a person
with no criminal history, must spend thirty years in jail on what
may well have been a manslaughter not a murder. We are satisfied
that a fundamental injustice has occurred having constitutional
implications. Hence, the murder conviction must be reversed.
See State v. Mitchell,
126 N.J. 565, 548-85 (1992); R. 3:22-4(b),
(c).
In view of our decision, the issue of ineffective assistance
by appellate counsel is now moot. The other contentions raised
by the defendant are without merit and do not warrant discussion
in a written opinion. See R. 2:11-3(e)(2).
The defendant testified and admitted that he shot the
victim. The only real issue is whether the offense is murder or
manslaughter. The State may therefore elect to consent to the
entry of a judgment of manslaughter in lieu of a retrial. See
State v. Washington,
60 N.J. 170, 173 (1972); State v. Alexander,
215 N.J. Super. 522, 531 (App. Div. 1987). If the State does so
consent, the judge should conduct a new sentencing proceeding.
The judgment of conviction is reversed and the case is
remanded for further proceedings consistent with this opinion.