STATE OF NEW JERSEY v. LEE FUNDERBURG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEE FUNDERBURG, a/k/a

LEE E. FUNDERBURG,

Defendant-Appellant.

____________________________________

July 17, 2014

Argued May 21, 2014 Decided

Before Judges Grall, Waugh, and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-05-0525.

Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Kirsch, on the brief).

William P. Fisher, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Mr. Fisher, of counsel and on the brief).

PER CURIAM

Defendant Lee Funderburg appeals his conviction for first-degree attempted murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2) and N.J.S.A. 2C:5-1, arguing that the trial judge should have charged the jury on the lesser-included offense of attempted passion/provocation manslaughter. N.J.S.A. 2C:11-4(b)(2). We agree and consequently reverse and remand for a new trial.

I.

We discern the following facts and procedural history form the record on appeal.

Funderburg and Terra Andrews had a son together, but were no longer involved with each other in February 2009. Andrews was then involved with Leno Parham. There were tensions between Funderburg and Parham concerning the latter's relationship with Andrews and the child.

On one occasion prior to the incident that gave rise to the criminal charges in this case, Parham interrupted a telephone argument between Funderburg and Andrews to tell Funderburg that he was going to "come see him," after which he told Funderburg's mother that he was coming over to fight Funderburg. Parham went to Funderburg's house and told him that he intended to continue his relationship with Andrews and the child. According to Parham, Funderburg then went into the house and subsequently came out with a knife. At that point, the police arrived and everyone dispersed.

On February 3, the child was at Funderburg's home. Andrews requested Parham to drive with her to Funderburg's home to pick up the child. When they arrived, Parham remained in the car while Andrews went to get the child. He eventually saw Andrews, Funderburg, and Funderburg's brother Jamaal, who was holding the child, standing in front of the house. When Jamaal resisted Andrews' attempt to take the child, Parham got out of the car, walked over to Jamaal, took the child, and put him in the backseat of Andrews' car.

Parham testified that Funderburg then came over to the car and removed the keys, which he refused to return. An argument ensued among Funderburg, Andrews, and Parham, apparently about Parham's presence at Funderburg's house. Parham chased Funderburg around the car, trying to retrieve the car keys. Parham claimed at trial that Funderburg had displayed a knife prior to the chase. On cross-examination, he was questioned about the police report that indicated he told the police the knife first appeared later on, but Parham denied that he had made such a statement. The chase ended after approximately fifteen minutes, but the argument continued.

According to Parham, he eventually concluded that Funderburg would not use the knife. Describing himself as frustrated because he wanted to leave, Parham went to the front door in the hope of getting help from Funderburg's mother, but Jamaal told Parham that no one was home. Parham then asked Funderburg and Jamaal whether they wanted to fight, but they did not respond.

At that point, Funderburg's parents arrived. According to Parham, as the parents were getting out of the car, Funderburg lunged at him and punched him in the chest. Jamaal grabbed Parham, and Funderburg's father pinned Parham to Andrews' car, while Jamaal said "better not swing." Funderburg then lunged at Parham's chest again. Although Parham's testimony was not consistent as to whether he saw the knife during the first lunge or after the second, he claimed that he grabbed Funderburg's wrist after the second lunge and saw a knife in his hand, after which he and Funderburg struggled over the knife. The knife blade broke during the struggle, and Parham dropped it.1

Parham then noticed two spots on his shirt. He felt "woozy," but was able to waive down a passing motorist, who took him to a hospital. When Parham entered the vehicle, he raised his shirt and discovered two bleeding stab wounds. Shortly thereafter, Funderburg left the area. He eventually turned himself in to the police.

Although there were some differences in detail, Andrews' testimony was consistent with Parham's assertions that it was Funderburg who first produced a knife. Jamaal testified that he did not see who produced a knife, but did see Parham with a knife when the struggle ended and he threw it, after which Parham flagged down the passing motorist.

Leroy Funderburg, defendant's father, described his efforts to prevent a fight between his son and Parham.2 Leroy testified that he saw Parham pull out a knife, but conceded that he had not told that fact to the police at the time of the stabbing. Instead, he told them that he saw defendant and Parham fighting over a knife.

Funderburg was subsequently indicted for the first-degree attempted murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2) and N.J.S.A. 2C:5-1 (count one); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(2) (count three); third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count four); and fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count five).

The trial was held in January and February 2011, including six days of testimony and four days of deliberations, during which the jury requested: "instructions for all counts in charges"; what the requisite mens rea was to find defendant guilty on certain charges; when possession of a weapon becomes unlawful if it was first possessed lawfully; the "legal definition" of attempted murder; a read back of portions of Jamaal's, Parham's, Andrews', and Leroy's testimony; and for further instructions regarding count one because they were "at a deadlock."

The jury eventually found Funderburg guilty on all counts, except for count three, which they had been instructed to consider only if they found him not guilty on count two.

A different judge sentenced Funderburg. After merging count two with count one, he sentenced Funderburg to incarceration for thirteen years, subject to the eighty-five-percent period of parole ineligibly required by N.J.S.A. 2C:43-7.2. He merged count five with count four and imposed a concurrent sentence of incarceration for eighteen months.3 This appeal followed.

II.

Funderburg raises the following issue on appeal:

POINT I: A JURY INSTRUCTION ON ATTEMPTED PASSION/PROVOCATION MANSLAUGHTER SHOULD HAVE BEEN GIVEN. (Not Raised Below)

Because Funderburg did not raise the issue of the passion/provocation charge at trial,4 we review his argument under the plain error rule. See State v. Jenkins, 178 N.J. 347, 360 (2004). Plain error is error that is "clearly capable of producing an unjust result," which should "in the interests of justice" be noticed even if "not brought to the attention of the trial . . . court." R. 2:10-2; see also Jenkins, supra, 178 N.J. at 360-61. "[T]he possibility of injustice [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. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

A trial judge "has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Jenkins, supra, 178 N.J. at 361. On the other hand, the judge has no duty to give a lesser-included offense instruction sua sponte "if the evidence does not clearly indicate or warrant such a charge." State v. Thomas, 187 N.J. 119, 132 (2006) (citation and internal quotation marks omitted); see also N.J.S.A. 2C:1-8(e) ("The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense."). In fact, the trial judge in this case did instruct the jury on lesser-included offenses following discussion with the prosecutor and defense counsel, during which none of them specifically raised passion/provocation manslaughter.5

The rationale for imposing such an independent obligation on the trial judge in this context is that "[n]o defendant should be convicted of a greater crime or acquitted merely because the jury was precluded from considering a lesser offense that is clearly indicated in the record." State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). The danger of prejudice to a defendant that may result from a trial judge's failure to charge a lesser-included offense to the jury is that "[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." State v. Sloane, 111 N.J. 293, 299 (1988) (quoting Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 1998, 36 L. Ed. 2d 844, 850 (1973)). In Jenkins, supra, 178 N.J. at 361, the Supreme Court noted that, "because correct jury charges are especially critical in guiding deliberations in criminal matters, improper instructions on material issues are presumed to constitute reversible error."

In the context of a discussion of a trial judge's obligation to give a sua sponte charge on the defense of diminished capacity, the Supreme Court, in State v. Rivera, 205 N.J. 488-90 (2011), saw parallels to a judge's similar duty to charge lesser-included offenses. The Court ultimately held:

[A] trial court's duty to charge the jury on its own motion is one that is not self-executing, and that duty arises only when the record evidence clearly indicates the need for or clearly warrants the unrequested jury instruction. . . . In determining whether an unrequested jury charge should be given, the notion that the facts must "'clearly indicate' the appropriateness" of the jury instruction is paramount: "'The trial court does not have the obligation on its own meticulously to sift through the entire record in every trial to see if some combination of facts and inferences might rationally sustain a[n unrequested] charge.'" [State v. Thomas, 187 N.J. 119, 134 (2006) (quoting State v. Choice, 98 N.J. 295, 299 (1985).]

. . . [A] trial court's sua sponte obligation to instruct the jury in respect of any defense . . . is triggered only when the evidence clearly indicates or clearly warrants such a charge, and . . . the trial court is not called on to scour the record in detail to find such support.

[Id. at 489-90 (third alteration in original) (citation and footnote omitted).]

As a lesser-included offense of murder, passion/provocation manslaughter must be charged, even absent a request, where it is "clearly indicate[d]" by the proofs. Jenkins, supra, 178 N.J. at 361. "[W]here the facts on record would justify a conviction of a certain charge, the people of this State are entitled to have that charge rendered to the jury." Garron, supra, 177 N.J. at 180 (quoting State v. Powell, 84 N.J. 305, 319 (1980)); see also State v. R.T., 205 N.J 493, 510 (2011) (Long, J., concurring) (stating that "the need for the charge must 'jump off' the proverbial page").

In order to decide whether a passion/provocation manslaughter instruction was "clearly indicated" by the proofs, we must explore the elements of that offense and the facts of this case. See State v. Crisantos, 102 N.J. 265, 273-78 (1986). N.J.S.A. 2C:11-4(b) provides that a "[c]riminal homicide constitutes manslaughter when . . . [i]t is committed recklessly; or . . . [a] homicide which would otherwise be murder . . . is committed in the heat of passion resulting from a reasonable provocation."

There are four components to passion/provocation manslaughter:

(1) reasonable and adequate provocation; (2) no cooling-off time in the period between the provocation and the slaying; (3) a defendant who actually was impassioned by the provocation; and (4) a defendant who did not cool off before the slaying. State v. Mauricio, 117 N.J. 402, 411 (1990). The first two elements of the offense are objective; thus, if they are supported by the evidence, the trial court should instruct the jury on passion/provocation manslaughter, leaving the determination of the remaining elements to the jury. State v. Robinson, 136 N.J. 476, 491 (1994).

[State v. Josephs, 174 N.J. 44, 103 (2002).]

In deciding whether an instruction on passion/provocation manslaughter is warranted, courts should view the evidence in a light most favorable to the defendant. State v. Mauricio, 117 N.J.402, 412 (1990). "[T]he judge must determine whether a reasonable fact-finder could conclude that the [defendant's] loss of self control was a reasonable reaction" to the victim's provocation. State v. Viera, 346 N.J. Super. 198, 212 (App. Div. 2001), certif. denied, 174 N.J. 38 (2002). The charge should only be withheld when "no jury could rationally conclude that the State had not proven beyond a reasonable doubt that the asserted provocation was insufficient to inflame the passions of a reasonable person." Mauricio, supra, 117 N.J.at 412.

To justify a finding of adequate provocation, "the provocation must be 'sufficient to arouse the passions of an ordinary [person] beyond the power of his [or her] control.'" Ibid. (alterations in original) (quoting State v. King, 37 N.J. 285, 301-02 (1962)). Generally, "words alone, no matter how offensive or insulting, do not constitute adequate provocation to reduce murder to manslaughter." Crisantos, supra, 102 N.J. at 274. "Nor do a bump and an insult by the victim. . . . On the other hand, the Court has held that a threat with a gun or knife might constitute adequate provocation." Mauricio, supra, 117 N.J. at 413-14 (citations omitted).

"'[M]utual combat' can in certain circumstances give rise to passion/provocation mitigation. However, the combat "must have been waged on equal terms and no unfair advantage taken of the deceased." State v. Galicia, 210 N.J. 364, 380 (2012) (quoting Crisantos, supra, 102 N.J. at 274). Mutual combat requires the parties to have a mutual intent to fight and to enter into the fight willingly. State v. Pasterick, 285 N.J. Super. 607, 617 (App. Div. 1995) (citation omitted). Use of force disproportionate to the provocation does not justify a mutual combat charge. See Crisantos, supra, 102 N.J. at 274-75; State v. Docaj, 407 N.J. Super. 352, 368-69 (App. Div.), certif. denied, 200 N.J. 370 (2009). In this case, the judge charged the jury on mutual combat as part of the charge on assault.

There was testimony during the trial that, if believed by the jury, would support a verdict of passion/provocation manslaughter. The following list is not necessarily all inclusive: (1) Parham testified that he went to Funderburg's house to fight with him at least once prior to the stabbing; (2) Parham also testified that, after the chase involving the keys, he asked Funderburg and Jamaal whether they wanted to fight; (3) Leroy testified that Parham was the first to pull a knife; (4) Jamaal testified that he saw Parham drop a knife at the end of his struggle with Funderburg; (5) there were differing descriptions of the knife,6 which could mean there were two knives rather than one; (6) no knife was recovered from the scene; and (7) Parham's police statement and his trial testimony were not consistent with respect to when he first saw Funderburg with a knife.

Consequently, for example, although the jury might have considered Funderburg's stabbing of Parham as unjustified in terms of self-defense at a time Parham was being restrained by his relatives, it could have concluded, had it been given the option, that he was so provoked by Parham's having asked for a fight and then pulling a knife that he acted in the heat of passion in stabbing Parham. That being the case, we conclude that the trial judge should have charged attempted passion/provocation manslaughter and that his failure to do so warrants reversal of the conviction for attempted murder, especially in light of the fact that the jury initially reported itself "at a deadlock" on the attempted murder count.

Reversed and remanded for a new trial.

1 Funderburg told the police he threw the knife into the bushes. However, it was never recovered.

2 In addition, Leroy testified that he had heard about two prior incidents when Parham had come to the house to "jump" his son and the police had to be called, but he had no firsthand knowledge of those incidents.

3 In a footnote to his brief, Funderburg notes, and the State does not dispute, that the judge should have merged count four with count one and imposed the concurrent sentence on count five. Because there was no appeal related to the weapons counts, we remand for correction of the judgment of conviction as to those records. See State v. Diaz, 144 N.J. 628, 636 (1996).

4 We note that there was a discussion of "imperfect self-defense" during the charge conference, but it is not clear from the record whether the discussion related to passion/provocation manslaughter or something else. See State v. Williams, 168 N.J. 323, 334-35 (2001). Consequently, we presume for the purposes of this opinion that the issue was not discussed at trial. In any event, the result would be the same.

5 See n.4, supra.

6 Andrews described the knife as having a silver blade and being approximately four inches in length, but she did not see its handle. Parham claimed that the knife's handle was black and the blade silver. According to Leroy, the knife was a utility knife, with a blue or green handle, and a blade about an inch long. Similar to his father, Jamaal asserted that the knife had a green handle and silver blade, and he also believed that the handle was about approximately four inches in length.