STATE OF NEW JERSEY v. REYNALDO GALICIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2774-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

REYNALDO GALICIA,

Defendant-Appellant.

_________________________________

September 22, 2010

 

Argued: March 17, 2010 - Decided:

 

Before Judges Stern, Graves and J. N. Harris.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-2153.

 

Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Kirsch, of counsel and on the brief).

 

Frank J. Ducoat, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Mr. Ducoat, of counsel and on the brief).

PER CURIAM

Defendant was indicted for second degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count five);1 first degree robbery, N.J.S.A. 2C:15-1 (count six); felony murder, N.J.S.A. 2C:11-3(a)(3) (count seven); purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count eight); unlawful possession of a weapon (an automobile), N.J.S.A. 2C:39-5(d) (count nine); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count ten); and second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count eleven).

Defendant was found guilty of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as a lesser-included offense to the purposeful or knowing murder; of a disorderly persons theft, N.J.S.A. 2C:20-3, see N.J.S.A. 2C:20-2b(3), as lesser-included offense to robbery; of the two weapons offenses; and of aggravated assault. The trial judge merged the weapons and aggravated assault convictions into the aggravated manslaughter conviction and sentenced defendant to the custody of the Commissioner of Corrections for ten years with eighty-five percent to be served before parole eligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent thirty-day term for theft. Defendant was also ordered to pay $1050 to the Violent Crimes Compensation Board (VCCB), and to pay other penalties.

I.

Co-defendant Cordero and the victim, Julio Colon, were lovers who lived together before their relationship ended. According to Colon's brother-in-law with whom Cordero and Colon had lived, Cordero was "possessive, abusive and very jealous." After the relationship ended, Cordero repeatedly sought to get back together with Colon. But defendant and Colon developed a relationship and began living together in Vineland in February 2004. Colon also maintained an online friendship with Irwin Castro, who lived in Newark. Defendant knew Colon had a friend in Newark, and that when Colon visited the friend, defendant could not get in touch with him.

On April 30, 2004, Colon borrowed a Chevy Suburban SUV from Kenneth Sheppard, the owner of Sheppard Bus Service, a company Colon had worked for, with the "understanding [that the vehicle] would be brought back that night or the next day." Edward James, Castro's roommate, testified that he and Castro had agreed to allow Colon to move in with them while Colon looked for a job in New York City.

The Suburban SUV had not been returned as promised. On May 2, defendant and Cordero visited Sheppard looking for Colon, and Sheppard told them that Colon had his car and he "wanted [his] vehicle back." Defendant and Cordero offered to go to Newark to find Colon, and Sheppard agreed and told them they would have to get the keys from Colon. Cordero and defendant then drove to Newark in defendant's car, a 2003 silver Acura CL owned by defendant's stepfather.

At about 7:30 a.m. on May 2, defendant and Cordero knocked on James's door looking for Colon. James knew Colon only as "Jay" or "J" and told them they had "the wrong apartment." Around 11:00 a.m., James heard Cordero and defendant calling Colon's name from outside the building. James went outside to speak to the men who were sitting in a car on the corner of East Delevan and Mt. Prospect Avenues. They told James that the SUV was considered stolen and that they were there to retrieve it. James then went back up to his apartment and told Colon "to call the owner of the car."

A short while later, James, Colon, and Castro went outside heading towards the SUV. An argument ensued between Colon and Cordero, at which point defendant got out of his car, and began fighting with Colon over the keys to the SUV. Cordero took the keys and entered the SUV, at which point defendant attempted to grab Colon to stop him from pulling Cordero out of the SUV. Defendant proceeded to hit Colon from behind, whereupon Colon turned around and punched defendant. Defendant then said, "I'm out of here," and went back to his own car.

Shortly afterwards, Cordero ran across the street with the keys to the SUV and a few items of Colon's, including a yellow rose. He got into the defendant's car. Colon followed him and jumped on the hood of defendant's car as it was moving towards him. According to James, had Colon not jumped on the hood the car would "have ran him over."

Defendant's car continued moving until it came to a stop which, James stated, was an effort "to get [Colon] off" the hood. Colon went "flying off" the hood at which point the car "backed . . . up" and then "came towards him again." Colon jumped back on the hood of the car, and grabbed the windshield wiper as the car began "swerving." James estimated that the car was traveling more than twenty-five miles per hour.

The driver, who James identified as defendant, ran a stop sign on the corner of East Delevan and Clifton Avenues, as well as a stop sign on the corner of East Delevan and Mount Prospect Avenues, while, according to James, Colon was "[h]anging on for his life."

James Hester, who lived in a house on the corner of East Delevan and Clifton, having heard noise went outside, and saw two men involved in an altercation near a silver Acura. The two men then walked over to the "gold SUV," whereupon another altercation ensued. One of the men got into the SUV, and Colon "force[d] the guy out of the driver's side," and followed him as the man, holding a set of keys, walked back to the Acura. After the man got into the Acura, Colon climbed on top of the hood and sat with his back "resting against the windshield."

According to Hester, the Acura "drov[e] forward," the driver "hit the brake," and Colon "roll[ed] off" the hood. Colon stood up, and the Acura went into reverse and then drove forward directly at Colon whereupon Colon again jumped on the hood. With Colon hanging onto the windshield wipers, the car made a left on East Delevan and ran a stop sign at Mount Prospect.

Timothy Hester, James Hester's uncle, also went outside after he heard noises and saw what appeared to be a fight across the street. He went into his driveway to get "a better signal" for his cell phone, and called 9-1-1. When he returned he saw a man on the hood of a car which started to move, and "then came to a stop and the man fell off." The man "seemed" to stand back up, at which point "the car reversed" and came back towards him. The man jumped on the hood of the car again whereupon "the car reversed another time, changed direction and appeared to speed away." Timothy then lost sight of the car. However, he stated that had the man not jumped on the hood of the car, he "would have been run down." He added that the driver "could have gone around" the man.

Detective Anthony Iamello of the Newark Police Department arrived on the scene around 3:00 p.m. At the south side of the 500 block of Mount Prospect Avenue, Iamello "discovered two large pools of blood," approximately ten feet apart. He then went to Clara Mass Hospital in Belleville. There he saw the Acura that transported Colon to the hospital, noticed "large amounts of blood" inside it. He also saw a "dent on the hood" and that the windshield wipers had been "pulled open." Iamello also observed items inside the Acura that he learned belonged to Colon, including a cell phone, backpack, and yellow rose.

Detective Todd Mazur of the Newark Police Department was dispatched to the hospital, where he encountered defendant and Cordero. Mazur described them as "covered in blood, very emotional [and] crying."

Colon was in a "deep coma" when he was brought into the hospital and died a week later. The Medical Examiner, who conducted his autopsy, observed four skull fractures as well as bleeding and swelling of the brain. He concluded that the cause of death was "blunt impact" to the head.

Defendant gave a statement to the police at around 7:00 p.m. on May 2, which the State introduced at his trial. His version of the incident was as follows:

Me and Hector Cordero were sitting in my car talking about Julio Colon. Julio is Hector's ex-boyfriend. Then we started to cry and decided that we were going to leave. Then we seen [sic] Julio with two other guys walking towards the Suburban. Hector . . . got out [and] told Julio he wanted to talk to him. Julio tried to start the Suburban and Hector told him to come back home with him. Hector kept asking for the keys to the Suburban but Julio would not give him the keys. I kept telling Hector[, l]et's go, but Hector did not want to go.

 

Hector got a hold of Julio's keys and Julio tried to get the keys back. I drove my car towards the Suburban and told Hector that someone is going to call the cops
. . . . Hector got in the Suburban and Julio got in and tried to get the keys. They started to fight in the Suburban. I got out and tried to break up the fight. Julio kicked me in the chest and the stomach and [I] asked him to stop. Julio grabbed me in a head lock and Hector got out and tried to break it up. Hector and Julio got into it again. The neighbors see it and try to stop the fight. Then when the fight was broken up, I seen [sic] Hector get into my car and I got in the driver's side, [and] locked the doors. Julio was walking towards us. Started the car. Julio jumped on the hood of my car and grabbed the wiper. I started to move at a slow speed and told him to get off. I was on Clifton Avenue, made a left on to Delavan. Julio was still on the hood. He bent the wiper. I hit the brake. He was falling off. He got back on the hood. He punched the windshield. I am still driving and made a right onto Mount Prospect Avenue. I hit the brakes again. He fell off and hit the ground. I got out with Hector and grabbed him, put him in the passenger seat and I made a U turn and asked people for help to get me to a hospital.

Defendant added that he had been in a "dating relationship with Julio" and that Cordero took Colon's cell phone, hat, razor, yellow rose, ring and a black belt from the SUV. Defendant stated that he was not operating his vehicle at a high rate of speed while Colon was on the hood.

Defendant testified that he and Colon were lovers, living together. Late on the evening of April 30, 2004, defendant took Colon to Bridgeton so that he could borrow a truck from Ken Sheppard. When defendant returned home from work on May 1, Colon was not there and he called Colon's cell phone several times.

Defendant then called Cordero. The two agreed to meet in Vineland, where they spent the night talking in defendant's car before falling asleep. On the morning of May 2, they went to Sheppard's to see whether Colon had returned the truck. Defendant became "scared" that Colon might be arrested because Sheppard was "very upset" that his truck had not been returned. Defendant also wanted to find out whether Colon was in a relationship with another man. However, Colon had previously advised defendant that he had visited someone named Castro in Newark. Defendant went back to his house and looked up Castro's address and drove to Newark with Cordero.

Defendant and Cordero drove to Newark, parked on Mount Prospect Avenue, and rang the bell for Castro's apartment; there was no answer, but a security guard let them in after they told him they were "guests to see someone." They knocked on the door of Castro's apartment, and James answered. He denied that Colon was there, and also denied that a picture Cordero had was that of Irwin Castro. Defendant and Cordero then walked back to their car where Cordero began screaming Colon's name. James came out of the building and told Cordero to stop the noise. He also told defendant and Cordero "[y]ou're getting my boyfriend upset and making my boyfriend think that [I] am cheating on him." According to defendant, he "just wanted to go home" and avoid trouble, but Cordero "prevented" him "from getting in the driver's side" of his Acura.

Defendant and Cordero then noticed the SUV. According to defendant, the door was "unlocked" and Cordero removed a speeding ticket, a razor, a cell phone, a yellow rose and a ring from the SUV, which he took to defendant's vehicle.

Shortly thereafter, the two men spotted Colon walking towards the SUV with Castro and James. Cordero got out of defendant's car and began talking to Colon, pleading with him to "come home." However, Colon got in the SUV and started the engine; Cordero got in the front passenger side seat and a struggle ensued over the keys.

Defendant got out of his car, went over to the SUV in an attempt to break up the fight and asked Colon to "stop and just talk to me." Colon kicked defendant in the stomach and in the chest, and then grabbed him in "a headlock." Cordero tried to get Colon to stop hitting defendant, and once Colon stopped. Defendant stated, "I had enough. I am going home."

Defendant and Cordero went back to defendant's Acura, got in, and locked the doors. Cordero had the keys to the SUV. Defendant started the car, whereupon Colon jumped on the hood of the Acura and began "punch[ing] the windshield." Cordero screamed at defendant to "Just go, go, go, go, just go." Defendant described himself as "shocked," and "panicked." He began driving with Colon "on top of the hood of the car," "punching the windshield" and grabbing the wipers while holding onto the windshield. Defendant testified that Colon fell off the hood when the car made a right turn on Mount Prospect Avenue, but that he never put the car in reverse or "aimed" the vehicle at Colon. Defendant also denied hitting the brakes, accelerating, or swerving in an effort to throw Colon off the car. He stated he "would never hurt Julio." He drove the car with Colon on the hood because he was "afraid [Colon's] fist [would] go through the windshield and might break through the glass" and cause injury to defendant or himself. He "never thought that [Colon] would get hurt" when he stopped the car. However, when defendant stopped the car, Colon fell backwards off the hood, hitting his head on the pavement. Defendant described himself as "in shock" and "scared," and he screamed out, "Oh my God. Please help me." Defendant told Cordero that they had to take Colon to the hospital; the two picked up Colon and carried him to defendant's car.

Defendant drove over 820 feet with Colon on the hood of the car. He did not intend to steal anything from him, had no "intention" of hurting Colon, and did not believe he would end up dead. He subsequently gave a statement to Detective Iamello because he "didn't want to hide anything."

II.

Defendant maintains that the trial court should have instructed the jury, sua sponte, on a justification defense regarding the use of force in self-defense. Defendant now claims he was justified in driving the way he did to avoid harm from Colon.

The State contends that there was no plain error in the court's failure to charge self-defense sua sponte because there was no indication of a rational basis for the charge. Specifically, the State claims that any threat to defendant ceased once he got into his vehicle, and that he was not entitled to use deadly force to get Colon off the hood of his car. Finally, the State maintains that defendant was not without fault because, along with Cordero, he was the initial aggressor. Since defendant did not request this instruction at trial, the issue is raised as "plain error." R. 2:10-2.

Pursuant to N.J.S.A. 2C:3-4(a), the use of force may be justifiable "when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." The use of deadly force is justifiable only if the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm. N.J.S.A. 2C:3-4(b)(2). "Deadly force" is defined in relevant part as "force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm." N.J.S.A. 2C:3-11(b). In order to be accorded the defense of self-defense, the actor must possess an actual, honest and objectively reasonable belief that the use of force is necessary, State v. Rivers, 252 N.J. Super. 142, 148-49 (App. Div. 1991), and the right to self-defense is only available to one who is without fault. Id. at 149.

The trial judge must charge the jury on self-defense if there is evidence in the case sufficient to provide a "rational basis" for its applicability. State v. O'Carroll, 385 N.J. Super. 211, 236 (App. Div.), certif. denied, 188 N.J. 489 (2006). See also State v. Walker, ___ N.J. ___ (2010) (affirmative defense to felony murder). Moreover, to charge the jury on self-defense sua sponte, the trial judge must determine that the evidence "clearly indicates" such a defense. State v. Perry, 124 N.J. 128, 161 (1991).

In O'Carroll, supra, 385 N.J. Super. at 235, the defendant did not request a self-defense charge, and did not object when the judge indicated that he was not going to give such a charge. We held that the trial judge erred in not giving such a charge because the issue was raised directly in the defendant's statement to the police and by the State in its summation, and there was evidence of prior acts of aggression by the victim towards the defendant which provided a "minimal basis" for self-defense. Id. at 236-37. Here, there was no evidence of similar prior violent acts by Colon towards defendant. Nor did the State argue in summation that defendant was not acting in self-defense. Thus, the evidence in this case does not even rise to the "minimal basis" found in O'Carroll.

The jury could have found that defendant, along with Cordero, instigated the confrontation with Colon; that defendant joined in the altercation between Cordero and Colon, and then twice drove his car directly at Colon. A person "who provokes or initiates an assault cannot escape criminal liability by invoking self-defense as a defense to a prosecution arising from the injury done to another." State v. Bryant, 288 N.J. Super. 27, 37-38 (App. Div), certif. denied, 144 N.J. 589 (1996) (quoting State v. Rivers, supra, 252 N.J. Super. at 149). Moreover, one may not use deadly force when that person "provoked the use of force against himself in the same encounter." N.J.S.A. 2C:3-4(b)(2)(a).

Defendant's conduct, driving an automobile with someone on the hood at twenty-five miles per hour while running stop signs, meets the definition of "deadly force." Whether a car poses a deadly threat "depends very much on the facts of each case." Brosseau v. Haugen, 543 U.S. 194, 201, 125 S. Ct. 596, 600, 160 L. Ed. 2d 583, 591 (2004) (per curiam). "It is indisputable that an automobile can inflict deadly force on a person and that it can be used as a deadly weapon." United States v. Aceves-Rosales, 832 F.2d 1155, 1157 (9th Cir. 1987), cert. denied, 484 U.S. 1077, 108 S. Ct. 1056, 98 L. Ed. 2d 1018 (1988). See also Ludwig v. Anderson, 54 F.3d 465, 473 (8th Cir. 1995) (attempt to hit pedestrian with moving squad car held to be "attempt to [arrest] by use of deadly force").

In addition, once defendant was in the vehicle, the threat of serious bodily injury by Colon no longer existed, and defendant could have avoided hitting Colon by not moving his vehicle or by driving away from him, if not the first time Colon jumped on the hood, then certainly after Colon fell off the hood the first time. One may not use deadly force when he or she knows that the use of such force can be avoided by retreating with complete safety. N.J.S.A. 2C:3-4(b)(2)(b).

Moreover, the accused must reasonably believe "that his adversary will, unless forcibly prevented, immediately inflict upon him or her a fatal or serious bodily injury, and . . . that the deadly force must be used upon the adversary to prevent him or her from inflicting such an injury." State v. Bowens, 108 N.J. 622, 628 (1987) (citation omitted); see Wayne R. LaFave, Criminal Law 541 (4th ed. 2003). The most harm Colon could have done, once defendant was locked inside the car, was break the windshield and break the windshield wipers. There is no evidence in the record that Colon was in possession of any weapon or object that could have inflicted fatal or serious bodily injury. Thus, the record did not "clearly indicate" the need for a charge on self-defense, and the judge was not obligated to charge the justification particularly in the absence of a request. See State v. Ramsey, ___ N.J. Super. ___, ___ (App. Div. 2010) (slip op. at 9).

III.

Defendant argues that the trial court erred in denying his request to charge the jury that defendant's action after Colon was injured, taking him to the hospital for treatment, was inconsistent with a consciousness of guilt and a reckless state of mind.

In State v. Williams, 190 N.J. 114, 128-29 (2007), the Supreme Court held that post-crime consciousness of guilt evidence is admissible as relevant to culpability in prosecutions involving reckless conduct as well as where a specific intent mental state is at issue. The relevance of such evidence is that a defendant's post-crime conduct evidencing a guilty conscience "provide[s] a sound basis from which a jury logically could infer that a defendant was acting consistent with an admission of guilt." Id. at 126.

In denying defendant's request to give the charge in this case, the trial court stated:

I am not going to give the charge for the following reasons: Number one, I find that Williams is not controlling here . . . . [T]he case says that where recklessness is an issue they were going to allow the State to get his post incident actions before the jury as consciousness of guilt as [N.J.R.E. 404(b)] evidence. The evidence would be normally be inadmissible but for [N.J.R.E. 404(b)] . . . . [H]ere[,] this evidence is not [N.J.R.E. 404(b)] evidence. It's already in. The only issue is whether I should give some type of instruction. I don't believe there's a need for instruction. The evidence is in. Certainly counsel can argue with it. A reasonable jury could find that these acts . . . [were that] of a person who had been involved in a horrible accident, not the actions of a person who had committed a crime, they're free to find that, but I don't believe that I should be giv[ing] them a charge [to that effect].

We find no abuse of discretion in this decision. See, e.g., Commonwealth v. Espada, 880 N.E.2d 795, 806 (Mass. 2008); Commonwealth v. Pina, 717 N.E.2d 1005, 1012 (Mass. 1999); Commonwealth v. Oeun Lam, 650 N.E.2d 796, 798-99 (Mass. 1995). See also State v. Timmons, 509 A.2d 64, 70 (Conn. App. Ct. 1986), appeal dismissed, 526 A.2d 1340 (Conn. 1987) (no basis to charge inference of innocence based on voluntary surrender to the police).

IV.

Defendant contends that his aggravated manslaughter conviction should be reversed because permitting passion/provocation to reduce murder, which requires a purposeful or knowing state of mind, to manslaughter, but not permitting passion/provocation to reduce aggravated manslaughter, which only requires a reckless mental state, to passion/provocation manslaughter, is irrational and violative of equal protection. This is the same issue raised in State v. Morales, A-5846-06T4, one of three cases argued and decided together with this opinion. We reject the contention.

Defendant's reliance on State v. Robinson, 136 N.J. 476, 492-93 (1994), where the Court held that passion/provocation was available to mitigate attempted murder, even though not specifically set forth in the Code, is misplaced. Attempted murder and passion/provocation manslaughter share the same culpability requirement, id. at 486, whereas aggravated manslaughter does not.

In any event, as an intermediate appellate court, we must adhere to the Supreme Court's opinion in State v. Grunow, 102 N.J. 133 (1986), which decided the same issue contrary to defendant's position. Today, as at the time Grunow was decided, aggravated manslaughter is a first degree crime while reckless and passion/provocation manslaughter are second degree crimes. And, then as now, only murder can be reduced by reasonable provocation. See id. at 136-44; N.J.S.A. 2C:11-3, -4(b)(2). Certainly, passion provocation involves greater culpability than the reckless conduct required for aggravated manslaughter, albeit with extreme indifference to the value of human life. But the fact an actor was provoked by extreme passion can, in essence, result in more sympathy from the legislature in terms of grading the offense than the type of recklessness needed for aggravated manslaughter. See Grunow, supra, 102 N.J. at 144. Moreover, the difference in culpability between aggravated manslaughter and passion/provocation manslaughter is not the type of lesser offense to which N.J.S.A. 2C:1-8(d)(3) is addressed.

We add only that the jury was instructed on passion/provocation manslaughter as a prerequisite to murder, and the jury found defendant not guilty of a homicide based on purposeful or knowing conduct.

In a related claim, defendant argues that the aggravated manslaughter conviction should also be reversed because the trial court's instructions and the verdict sheet relating to the passion/provocation manslaughter instruction that was given were confusing and contradictory. Specifically, he maintains that the jury was improperly led to believe that it had to convict on the murder count in order to reach the question of passion/provocation.

The State contends that, when read as a whole, the charge was proper. In any event, according to the State, any error was harmless because passion/provocation should not have been charged in the first place.

The trial court instructed the jury on passion/provocation as follows:

A person is guilty of murder if he; [o]ne, caused the victim's death or serious bodily injury that then resulted in death and; [t]wo, the defendant did do purposely or knowingly and; three, did not act in the heat of passion resulting from a reasonable provocation.

If you find beyond a reasonable doubt that the defendant purposely or knowingly caused Julio Colon's death or serious bodily injury that then resulted in death and that he did not act . . . in the heat of passion resulting from a reasonable provocation, the defendant would be guilty of murder.

If, however, you find that the defendant purposely or knowingly caused death or serious bodily injury that then resulted in death and that he did act[]
. . . in the heat resulting from a reasonable provocation, then the defendant would not be guilty of murder but would be guilty of passion/provocation manslaughter.

The court proceeded to instruct the jury that "the State must prove beyond a reasonable doubt to find the defendant guilty of murder . . . that the defendant did not act in the heat of passion resulting from a reasonable provocation." The court then went through the elements of passion/provocation manslaughter. It added:

If on the other hand you determine that the State has not proved at least one of the factors of passion/provocation manslaughter beyond a reasonable doubt but that the State has proved beyond a reasonable doubt that the defendant purposely or knowingly caused death or serious bodily injury resulting in death, then you must find him guilty of passion/provocation manslaughter. However, if the State failed to prove beyond a reasonable doubt that the defendant acted purposely or knowingly or that the defendant's conduct actually caused death or serious bodily injury resulting in death, you must acquit the defendant of murder and acquit the defendant of passion/provocation manslaughter and go on to consider whether the defendant should be convicted of the crime of aggravated or reckless manslaughter.

At the conclusion of the charge, the court went through the verdict sheet with the jury. With respect to the murder count, the court told the jury: "If you find defendant guilty of the charge of murder, do you find that the defendant acted in the heat of passion resulting from reasonable provocation?" At the conclusion of the reading of the verdict sheet, the prosecutor asked the court to modify the language of the murder count because the finding of guilt as to murder was not a prerequisite for determining passion/provocation manslaughter. Defense counsel agreed. However, the court apparently never clarified the matter for the jury.

The verdict sheet asked the jury whether they found defendant guilty or not guilty of murder. The jury was then asked: "If you find the defendant . . . guilty as to the charge of [m]urder, do you find the defendant acted in the heat of passion resulting from a reasonable provocation?" The jury was then told to move to the question regarding the unlawful possession of a weapon count if it found defendant guilty of either murder or passion/provocation manslaughter. If it found defendant not guilty of either, it was instructed to determine whether defendant was guilty of aggravated manslaughter.2

Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial. State v. Concepcion, 111 N.J. 373, 379 (1988). Without such instructions to guide the jury, "a jury can take a wrong turn in its deliberations." State v. Nelson, 173 N.J. 417, 446 (2002). "So critical is the need for accuracy that erroneous instructions on a material point are presumed to be reversible error." Ibid. (quoting State v. Martin, 119 N.J. 2, 15 (1990)). In general, it is speculative to forecast what verdict a jury would have returned if properly instructed. State v. Grunow, supra, 102 N.J. at 148.

"[C]lear verdict sheet directions" are important. Nelson, supra 173 N.J. at 449. A jury's "efforts to answer questions they may have about verbal instructions almost certainly [will] involve an examination of the verdict sheet directions." Ibid. "If verbal instructions are unclear, or if jurors do not fully comprehend verbal instructions, the typewritten verdict sheet is likely the primary road map they will use to direct their deliberative path." Ibid.

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. State v. Coyle, 119 N.J. 194, 221 (1990). If there is sufficient evidence of passion/provocation, the trial court must instruct 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. Id. at 221-22. In Coyle, the Court held that charging murder and passion/provocation in a sequential manner was inadequate. Id. at 223-24. Rather, it determined that trial courts should instruct the jury in the initial charge on murder about the effect of passion/provocation on an otherwise intentional killing. Id. at 224.

Thus, "an instruction that gives the jury impression that it need consider passion/provocation manslaughter only if it fails to find that purposeful and knowing murder occurred is defective." State v. Heslop, 135 N.J. 318, 322 (1994). Defendant argues that the jury could have found him not guilty of murder based on passion/provocation, but was prevented from so indicating by the wording of the verdict sheet which instructed the jury to return its verdict on passion/provocation only if it found defendant guilty of murder. Moreover, under this argument, based on the wording of the verdict sheet, lack of an opportunity for an affirmative finding on that question meant that defendant was deprived of the opportunity of skipping the aggravated manslaughter verdict altogether. Thus, according to defendant, he may have been deprived of a conviction based on passion/provocation rather than aggravated manslaughter.

In State v. Brooks, 309 N.J. Super. 43 (App. Div.), certif. denied, 156 N.J. 386 (1998), the defendant was convicted of murder. There, the verdict sheet instructed the jury to determine whether the defendant purposely or knowingly caused the death of the victim. Id. at 64. If the jury found the defendant guilty, it was told to consider the ensuing question on passion provocation; if it found the defendant not guilty of murder, the jury was told to skip that question. Ibid. We found no error because

the trial court repeatedly emphasized in its charge that in order to convict the defendant of murder the jury had to find the State had proven beyond a reasonable doubt the absence of at least one element of passion/provocation manslaughter. Thus, the court did not fall into the error of instructing the jury to first decide if the defendant was guilty of murder and to consider passion/provocation only if it found the defendant not guilty of murder.

[Id. at 65.]

Moreover, as our Supreme Court recently said:

A verdict sheet is intended for recordation of the jury's verdict and is not designed to supplement oral jury instructions. See State v. Reese, 267 N.J. Super. 278, 287, 631 A.2d 550 (App. Div.), certif. denied, 134 N.J. 563, 636 A.2d 521 (1993). Although a verdict sheet should list all elements of each offense, or no elements of any offense, our inquiry focuses on whether the jury understood the elements as instructed by the judge, and was not misled by the verdict sheet. See ibid. Where we conclude that the oral instructions of a court were sufficient to convey an understanding of the elements to the jury, and where we also find that the verdict sheet was not misleading, any error in the verdict sheet can be regarded as harmless. See id. at 287-89, 631 A.2d 550; State v. Vasquez, 265 N.J. Super. 528, 547, 628 A.2d 346 (App. Div.) (finding no reversible error where verdict sheet was erroneous but jury received proper oral instruction, because "[t]he jury is presumed to have understood [the] instructions" (citation omitted)), certif. denied, 134 N.J. 480, 634, A.2d 527(1993); see also Sons of Thunder, Inc., 148 N.J. 396, 418, 690 A.2d 575 (1997) (stating that judge's charge and interrogatories to jury do not provide grounds for reversal unless misleading, confusing, or ambiguous).

 

[State v. Gandhi, ___ N.J. ___, ___ (2010).]

 

Here, as in Brooks, supra, 309 N.J. Super. at 65, "[t]he charge clearly indicated that questions 1 and 2 had to be answered for there to be a verdict of guilty of murder and that the defendant would only be guilty of murder if the State disproved one of the elements of passion/provocation." Ibid.

While in this case defendant was found not guilty of murder, the verdict sheet in Brooks, supra, which was found not to constitute reversible error, is similar to the one used in this case. Moreover, as in Brooks, the trial court here repeatedly charged the jury in its instructions that the presence or absence of passion/provocation was to be part and parcel of its deliberations on murder, and the oral instructions controlled. See Gandhi, supra, 201 N.J. at 197; Reese, supra, 267 N.J. Super. at 287. Here, the court told the jury to acquit of both purposeful or knowing murder and passion/provocation manslaughter "if the State failed to prove beyond a reasonable doubt that the defendant acted purposely or knowingly."

We conclude that the court's instructions regarding the verdict sheet, and the verdict sheet itself, do not warrant reversal of defendant's aggravated manslaughter conviction.

V.

In sentencing defendant, the trial court imposed a $1050 VCCB penalty, but failed to express its reasons for doing so. See N.J.S.A. 2C:43-3.1(a)(1). As a result, the State acknowledges that the matter must be remanded to give the court the opportunity to place its reasons for the penalty on the record or to impose a minimum penalty.

The convictions are affirmed, but the matter is remanded with respect to the VCCB penalty imposed.

1 Defendant was not charged in the first four counts of the indictment. Hector Cordero was the subject of these and was charged jointly with defendant on counts five, six, seven, and eleven. The trial court granted the State's motion to sever, and defendant was tried alone.

2 We are told the verdict sheet included by defendant in his appendix, was obtained from the prosecutor's office. It indicates that the jury found defendant guilty of reckless manslaughter. Both parties agree that this is incorrect.