STATE OF NEW JERSEY v. GREGORY ROSE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6410-03T46410-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY ROSE,

Defendant-Appellant.

______________________________

 

Argued March 26, 2007 - Decided April 25, 2007

Before Judges S.L. Reisner and Seltzer.

On appeal from the Superior Court of New
Jersey, Law Division, Cumberland County,

03-10-0937.

Cecelia Urban, Assistant Deputy Public

Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Urban, of counsel and

on the brief).

Lesley Snock, Assistant Prosecutor, argued the cause for respondent (Ronald J. Casella, Cumberland County Prosecutor, attorney; Ms. Snock, of counsel and on the brief).

PER CURIAM

Defendant, Gregory Rose, was indicted by a Cumberland County grand jury on charges of first-degree murder, N.J.S.A. 2C:11-3(a) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); and fourth-degree possession of prohibited devices (hollow-nose bullets), N.J.S.A. 2C:39-3(f) (count three). Tried to a jury, defendant was convicted of first-degree murder and possession of a weapon for an unlawful purpose. He was acquitted of the charge of possession of hollow-point bullets. The judge merged the weapon offense with the murder charge and sentenced defendant to a custodial term of seventy-five years subject to the parole ineligibility period required by the No Early Release Act, N.J.S.A. 2C:43-7.2.

On appeal, defendant challenges his conviction, asserting that, despite his failure to request them, the trial judge did not provide two now-identified jury instructions. He also challenges the length of the sentence imposed. Specifically, defendant argues

POINT I

The trial court's jury instruction errors denied Mr. Rose of his rights to due process of law and a fair trial. U.S. Const. Amend. XIV; N.J. Const. (1947) Art. I, pars. 1, 9, 10. (Not raised below).

A. The trial court's failure to give a sua sponte jury charge on passion/provocation manslaughter denied Mr. Rose of a fair trial.

1. The trial record clearly indicated that an instruction on passion/provocation manslaughter was appropriate, thereby triggering the trial court's duty to instruct on passion/provocation manslaughter.

2. Since a properly instructed jury reasonably may have convicted Mr. Rose of passion/provocation manslaughter, the trial court's failure to give a sua sponte instruction was plain error.

B. The trial court's failure to explain to the jurors the implications of a failed self-defense claim, insofar as it could denote a form of manslaughter, rather than murder, also violated Mr. Rose's right to due process of law and a fair trial. U.S. Const. Amend. XIV; N.J. Const. (1947) Art. I, pars. 1, 9, 10. (Not raised below).

POINT II

THE LIFE TERM THAT THE TRIAL COURT IMPOSED WAS MANIFESTLY EXCESSIVE.

We find defendant's first point meritorious and, accordingly, reverse and remand for a new trial.

Because defendant's allegations of error involve a claim that the trial judge was obligated to, but did not, give certain instructions to the jury despite defendant's failure to request that he do so, we consider the allegations under the plain error standard. R. 2:10-2. See State v. Green, 86 N.J. 281, 289 (1981). That is, we determine if the failure to provide the now-identified instructions was error and, if so, whether the failure to provide the instructions was "sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). Said another way, to warrant reversal, the failure to charge must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

We consider first the duty of the court to advise the jury of its ability to determine if defendant acted from passion resulting from adequate provocation. Because the instruction was not requested, the judge was required to give it only if the evidence "clearly indicate[s] the appropriateness of that charge." State v. Choice, 98 N.J. 295, 299 (1985) (internal quotations omitted). The requested charge arises by virtue of N.J.S.A. 2C:11-4(b)(2), which provides that "[a] homicide which would otherwise be murder under [N.J.S.A.] 2C:11-3 . . . committed in the heat of passion resulting from a reasonable provocation" is manslaughter. To succeed in reducing a homicide from murder to manslaughter under the statute, "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." State v. Mauricio, 117 N.J. 402, 411 (1990). In deciding whether an instruction on passion/provocation manslaughter is warranted, the courts should review the evidence in the light most favorable to defendant. Id. at 412. Accordingly, we review the evidence in that light to determine if the facts clearly indicated that the jury should have been advised that if it found defendant to have acted from passion incited by reasonable provocation, a manslaughter, not a murder, conviction would have been appropriate.

The evidence thus viewed would permit a fact-finder to conclude that the Bridgeton police received a phone call at about 1:00 a.m. on June 19, 2002, reporting the shooting of F.D. McCall. When the police responded, they found McCall lying on the ground with gunshot wounds to his face and torso from which he would eventually die. McCall was able to identify the shooter as Joseph Simmons. Simmons, in turn, identified defendant as the assailant.

Defendant ultimately provided a tape-recorded statement, later introduced at trial, to the police in which he confessed to the shooting. Defendant indicated that in the early hours of June 19, 2002, he was with Simmons smoking marijuana, discussing McCall's recent release from jail. Defendant was concerned about this release because he and McCall had an earlier dispute in which McCall accused defendant of a romantic involvement with McCall's ex-wife. During that dispute, McCall pointed a gun at defendant.

Defendant and McCall then saw a group of men gathered in front of the scene of the shooting and stopped to see who was there. Defendant saw McCall and, in an attempt to resolve their differences, got out of the truck and called to McCall. Defendant's statement went on to explain that as he attempted to deny any involvement with McCall's ex-wife, McCall became enraged, pulled out a gun, pointed it at him, and pulled the trigger twice. The gun misfired both times. At that point, defendant claimed to have rushed at McCall, pushed him back, and yanked the gun out of his hand. McCall started to back up saying "come on man." Defendant said that he exclaimed, "[M]other fucker, you tried to [shoot] me" and "[Y]ou [could] have killed me, you could have killed me."

Believing the gun must have been unloaded and that McCall had been trying to scare him, defendant retaliated by pulling the trigger and was surprised to discover the gun fired. Realizing that the gun was loaded and that McCall had tried to shoot him, defendant began to understand that he could have been killed. That understanding, defendant's statement continued, made him "mad and scare[d] at the same time," and the realization that "[I] could have been killed . . . made me want to shoot him . . . ." As McCall fled, defendant chased him aiming the gun at him and squeezing the trigger. Defendant returned to Simmons's car not knowing whether any of his shots had hit McCall.

Simmons's story corroborated, in part, defendant's confession. Simmons indicated that as McCall approached the truck, defendant got out. Simmons could hear but could not see the men arguing and heard them "tussle[]" during which there was contact with the rear of his truck.

On that evidence, it seems clear to us that a jury might well have concluded that defendant had acted in the heat of passion resulting from reasonable provocation. Defendant's confession, introduced by the State, would support a finding that he was involved in an altercation in which a gun was aimed at him, that he became upset when he realized the gun was loaded and shot his assailant shortly after he was able to wrest the gun from him. That defendant discovered he had been threatened with a loaded gun after a "tussle" to control the gun was sufficient for a jury to find "reasonable provocation." See State v. Robinson, 136 N.J. 476, 492 (1994) (holding that a punch indicated objective adequacy of provocation). The statement respecting the short interval between the "tussle" and the shooting, corroborated by Simmons, and the statement as to the effect upon defendant of being faced with a loaded gun, permits a finding of the necessary passion. Accordingly, the instruction on passion/provocation manslaughter should have been given even in the absence of a request.

We are satisfied that the error was not harmless. "[I]f [there is error] in a jury instruction that is crucial to the jury's deliberation on the guilt of a criminal defendant[,] it is a poor candidate[] for rehabilitation under the plain error theory." State v. Torres, 183 N.J. 554, 564 (2005) (internal quotations omitted). Defendant's right to have the jury consider a passion/provocation manslaughter adversely impacted his substantial substantive rights and requires a new trial. Robinson, supra, 136 N.J. at 492.

To be sure there was evidence that defendant, not McCall, had brought the gun to the scene of the shooting; that defendant had previously threatened McCall and that defendant had not acted as the result of McCall's provocative acts. Nevertheless, the jury could have believed defendant's confession, in which event a passion/provocation manslaughter conviction would have been indicated. In short, we are satisfied that the evidence clearly indicated that the jury should have been apprised of the effect of acting in the heat of passion resulting from provocation, and the failure of the judge to provide those instructions was plain error.

Given our decision that a new trial is necessary, we need not address defendant's remaining contentions. Nevertheless, because the issue may arise at retrial, we make the following brief comments with respect to the necessity of charging "imperfect" self-defense.

Self defense requires an honest and reasonable belief in the necessity for the use of the force actually employed. N.J.S.A. 2C:3-4. After the adoption of Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9, an honest but unreasonable belief in the necessity for the use of force ("imperfect self- defense") is no longer a viable justification for criminal behavior. State v. Bowens, 108 N.J. 622, 626-27 (1987).

Nevertheless, a "defendant [is] entitled to have the jury consider the evidence of his honest, if not reasonable, belief in the necessity to use force if in fact the evidence bore upon the question whether the State had proven that [defendant] acted purposely or knowingly." Id. at 636. Although the Bowens court approved a refusal to charge imperfect self-defense, it did so where the judge had given "the jury the opportunity to assess the evidence [to decide if the State had proven that defendant acted purposely or knowingly] when it instructed the jury on the alternate verdicts of murder, reckless manslaughter, and aggravated manslaughter . . . ." Id. at 637. Said another way, "when a trial judge includes instructions on offenses that by definition require the jury to consider whether the defendant acted knowingly or purposely, or with a less culpable, reckless state of mind, a separate instruction on imperfect self-defense is unnecessary." State v. O'Carroll, 385 N.J. Super. 211, 238 (App. Div.) (citing Bowens, supra, 108 N.J. at 637), certif. denied, 188 N.J. 489 (2006).
Nevertheless, the failure to insure that the jury understands the effect of an unreasonable but honest belief in the need to use force is error. State v. Pridgen, 245 N.J.Super. 239, 246-47 (App. Div.), certif. denied, 126 N.J. 327 (1991). Accordingly, to the extent the evidence at the retrial suggests defendant's honest but unreasonable belief in the need to use force to defend himself, the jury should be directed to decide whether there was such an unreasonable belief and of the effect of such a finding on the question of whether defendant acted knowingly or purposefully. See Bowens, supra, 108 N.J. at 636-37.

 
Reversed and remanded.

To the extent evidence of passion/provocation is adduced at the retrial, the court should also instruct the jury that a murder conviction may not be found if the State does not prove beyond a reasonable doubt that the killing was not done in the heat of passion. See State v. Grunow, 102 N.J. 133, 145 (1986).

(continued)

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A-6410-03T4

April 25, 2007