A-13-16 State v. Fernando Carrero, Jr. (078071) (Bergen County and Statewide) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5304-12T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FERNANDO CARRERO, JR.,
a/k/a FIPO,
Defendant-Appellant.
_____________________________________________
Argued December 15, 2015 – Decided June 10, 2016
Before Judges Yannotti, St. John and
Guadagno (Judge Guadagno dissenting).
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
08-10-1706.
Marcia Blum, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Ms. Blum, of counsel and on the
brief).
Catherine A. Foddai, Senior Assistant
Prosecutor, argued the cause for respondent
(John L. Molinelli, Bergen County
Prosecutor, attorney; Ms. Foddai, of counsel
and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Fernando Carrero appeals from his conviction
after a jury trial for, among other counts, first-degree murder.
Defendant challenges his conviction on numerous grounds,
including: (1) the denial of his request for a passion/
provocation jury charge; (2) the admission of other-bad-acts
evidence under N.J.R.E. 404(b); (3) the admission of double-
hearsay testimony regarding an alleged conversation between the
victim and defendant more than a week before the shooting; (4)
the admission of defendant's physical and spoken responses to
police inquiries regarding whether any weapons were present at
the site of his arrest; and (5) the life sentence with a sixty-
three-year parole disqualifier.
I.
The record discloses the following facts and procedural
history. On December 6, 2007, upon motion by the State, the
Chancery Division agreed that defendant, a juvenile, would be
tried as an adult, and waived jurisdiction in favor of the Law
Division. Subsequently, in late 2008, defendant was charged
with the first-degree murder of Jose Hall, N.J.S.A. 2C:11-
3(a)(1), (2); second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree possession
of a handgun without the requisite permit, N.J.S.A. 2C:39-5(b);
and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1).
Between 2009 and 2012, pretrial hearings were conducted,
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resulting in the admission of (1) the revolver used to murder
Hall, (2) N.J.R.E. 404(b) evidence regarding defendant's abusive
and controlling behavior toward his girlfriend, (3) defendant's
statements to police, (4) defendant's letters written to his
sister while in custody, and (5) a statement by Hall. A jury
trial ensued during January and February 2013, and defendant
testified to his version of the events.
The trial record discloses the following testimony. K.
Lowenstein dated C. Hicks for several years, and thereafter
dated defendant. Hicks had a close friend named Jose Hall and,
through Hicks, Lowenstein met Hall, with whom she became good
friends. In 2003, after Lowenstein and Hicks broke up, Hicks
moved into the basement of the three-story house that Lowenstein
shared with her parents. Though Lowenstein was originally in
favor of Hicks moving in, hoping that their romantic
relationship would resume, that relationship did not ensue and
they frequently came into conflict. Her relationship with Hall,
however, did not change. He was a frequent visitor to the
Lowenstein home, and was often included in family celebrations.
Lowenstein met defendant in 2005, and began dating him in
May 2006. At first, the two were happy together, however
defendant became more and more controlling. He forbade her from
using her phone unless on speaker, seeing her friends, looking
at other males, or doing anything that he did not say she could
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do. Five or six months into their relationship, defendant
struck Lowenstein.
In mid-July 2007, after a date, Lowenstein dropped
defendant off at his parents' home in Newark. The next day,
while driving in Newark with Lowenstein, defendant told her that
he thought he "saw a car full of guys wearing red bandanas
waiting outside his house to kill him." Defendant believed that
both Hicks and Hall were in the car and that Lowenstein had set
him up. Lowenstein informed defendant that Hall and Hicks were
in Delaware working at a carnival, noting that the car the two
had used the night before belonged to Hall. Defendant
subsequently drove to a side street, parked, and told Lowenstein
that he was going to ask her if she "set him up."
Because, as Lowenstein testified, "he knew the answer was
yes," defendant told her that every time Lowenstein "lied," he
would punch her. Defendant punched her "about 11 or 12 times"
on the left side of her temple until a bloodied Lowenstein
finally answered, "yes it was them."
In late October 2007, defendant and Lowenstein drove to her
house to pick up a movie. Hall was at the house that day.
While Lowenstein went inside, Hall went outside to attempt to
initiate conversation with defendant. Accounts differ as to the
conversation. Lowenstein (who did not witness the conversation)
testified that defendant remained in the car because her mother
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"didn't want him and [Hicks] getting into any arguments." Hall
told her that he offered defendant a sort of "peace treaty,"
telling him that as both he and Hicks had girlfriends, and since
defendant and Lowenstein loved one another, defendant had
"nothing to worry about." Hall told Lowenstein that the two
shook hands and agreed that "everything was going to be okay."
Defendant offered a different account. He agreed that Hall
approached him while he was sitting in the car, but denied the
two had a rapprochement. Instead, he claimed Hall simply told
him to "step out of the car, I want to talk." Defendant replied
that he did not trust Hall, and rolled up the window. Hall
persisted until, moments later, Lowenstein came out of the house
to the car. Hall then smiled at defendant, turned around, and
left.
Lowenstein recalled that during her relationship with
defendant, she usually stayed at his parents' home overnight.
During the week leading up to the shooting, however, defendant
had been staying with Lowenstein at her parents' home.
Lowenstein nevertheless had hoped that the situation would soon
resolve itself, as Hicks, who planned on joining the Army, would
soon be leaving for basic training. Then Hall would not come as
frequently to her home.
On the night of the incident, November 6, 2007, Lowenstein
returned home at about 4:30 p.m. Defendant was already there.
5 A-5304-12T3
Between 6:00 and 6:30 p.m., defendant drove Lowenstein to her
job in the Willowbrook Mall. Around 11:00 p.m., defendant
picked Lowenstein up from the mall; at 11:15, they dropped off
her co-worker and drove to Lyndhurst. During the trip,
Lowenstein's mother called to say that, because Hicks and Hall
were at the house, she did not want defendant to stay over.
Defendant called his sister to ask if he could spend the night
with her. When he could not reach his sister, Lowenstein told
him to continue to her house and try again later. They arrived
at the Lowenstein home shortly before midnight, and sat down
together in the living room.
Hall, Hicks, and Hicks' girlfriend were in the basement
watching a movie. A few minutes after defendant and Lowenstein
entered the house, Hicks walked upstairs to get a drink from the
kitchen refrigerator. According to Lowenstein, Hicks pointedly
stared at her and defendant before entering the kitchen. When
he returned to the basement, he informed Hall that defendant and
Lowenstein were upstairs. Hall did not react, and the three
continued watching the movie.
At some point, defendant and Lowenstein moved to the
kitchen to prepare food. Lowenstein testified that they were
"kissing and hugging," and she had her hands around his waist.
Several minutes later, Hall walked upstairs to the kitchen to
look for food in the refrigerator. Hall asked Lowenstein why
6 A-5304-12T3
she had not told him that she started working at Victoria's
Secret. Hall's girlfriend was employed at Victoria's Secret,
and had previously informed Lowenstein of a job opening at the
store. Lowenstein responded sarcastically, in an attempt to cut
their conversation short. She testified, "[she] knew that if
[she] got in a conversation with him, [defendant] would get
upset." She also testified that "[Hall] is a ball buster. . . .
I think he came upstairs to . . . test the waters and see how
[defendant] felt . . . ."
In an effort to separate Hall and defendant, Lowenstein
asked defendant to go upstairs with her. Meanwhile, Hall
persisted in his questioning. Defendant ordered Hall to stop
speaking to Lowenstein. Hall said he was just asking her a
question, but defendant stood up from the table and insisted
that Hall was not allowed to speak with her.
Lowenstein, afraid of a fight between them, left the
kitchen to find her parents. As she walked toward the stairs,
she heard Hall yell, "whoa, whoa, whoa," and then the sound of a
gunshot. She ran back to the kitchen to find Hall on his back
on the floor, with defendant pointing a gun at him. Lowenstein
attempted to convince defendant to leave and tried to pull
defendant's arm away, but defendant fought off her grip. He
then shot Hall in the head. Lowenstein ran to get her parents.
Defendant gave a different account at trial. He admitted
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that he had hit Lowenstein in the past, but said he had not done
so since they broke up and got back together during the summer
of 2007. Defendant testified that when Lowenstein initially
left the kitchen to find her parents on the night of the
incident, Hall said, "this is the last time you're going to come
in this house. And stop talking to [Lowenstein]," then pulled a
gun from his waistband. Defendant said he grabbed Hall's hand
and pointed the gun toward Hall, and the gun fired during the
struggle. According to defendant, Hall fell to his knees, but
continued to struggle. He testified that Lowenstein then
reentered the room, screaming, and jumped on his back. During
the subsequent three-way struggle, the gun again fired, causing
the wound to Hall's head. On cross-examination, defendant said
he was afraid of Hicks and Hall for starting trouble whenever
they were around.
During the incident, Hicks was in the basement and heard
yelling and "thumping" noises, then Lowenstein's scream. Hicks
went to the kitchen and found Hall on the floor bleeding, and
saw defendant run out the back door, gun in hand.
Police responded and found Hall still alive. EMTs arrived
but were unable to stop the bleeding. Hall was transported to
the hospital, where doctors determined the initial gun-shot
wound to his bladder was non-fatal if treated, but the gun-shot
wound to his head was fatal, and therefore surgery was not a
8 A-5304-12T3
realistic option. Hall died several days later and an autopsy
was performed.
The Newark Police Fugitive Apprehension Team found
defendant at a house in Orange. An officer asked him if there
were weapons in the house. Defendant motioned with his head
toward a black duffel bag to the right of the couch he was
sitting on, and the officers discovered a revolver inside the
bag but left it there after securing defendant and the area.
The officers received written consent to search the area from
the person renting the apartment, and secured the revolver and
four rounds of ammunition. When asked by the officers "if
anything else in the bag was his," defendant responded, "nothing
but the gun," and a cell phone on the couch. Ballistics
confirmed the revolver was the weapon used to kill Hall.
Defendant had no permit for the gun.
The jury convicted defendant of all counts. After
appropriate mergers, the sentencing judge sentenced defendant to
life imprisonment, subject to an eighty-five-percent parole
disqualifier on the first-degree murder charge. Lesser
concurrent sentences were imposed on the other counts. This
appeal ensued.
On appeal, defendant presents the following issues for our
consideration:
9 A-5304-12T3
POINT I
BECAUSE THE COURT REFUSED TO ALLOW FOR
INCONSISTENT THEORIES AND TO CONSIDER
EVIDENCE OTHER THAN THAT ADDUCED IN THE
DEFENSE CASE, IT IMPROPERLY DENIED AN
INSTRUCTION ON PASSION/PROVOCATION
MANSLAUGHTER.
POINT II
THE COURT ERRED IN ADMITTING EVIDENCE, ON
THE GROUND THAT IT WAS AN EXCEPTION TO
N.J.R.E. 404(b), THAT CARRERO FREQUENTLY
BEAT UP HIS GIRLFRIEND, WHICH HAD NO BEARING
ON ANY MATTER AT ISSUE AND SERVED NO PURPOSE
OTHER THAN TO INVITE THE JURY TO INFER THAT
HE HAS AN AGGRESSIVE DISPOSITION SO AS TO
UNDERMINE HIS CLAIM THAT HE ACTED IN SELF-
DEFENSE.
POINT III
THE DOUBLE-HEARSAY TESTIMONY ABOUT WHAT THE
VICTIM TOLD A WITNESS ABOUT HIS CONVERSATION
WITH CARRERO CONSTITUTED UNRELIABLE DOUBLE
HEARSAY AND DID NOT MEET ANY EXCEPTION TO
THE RULE EXCLUDING HEARSAY.
POINT IV
CARRERO'S STATEMENT ABOUT OWNERSHIP OF THE
GUN, AND THE GUN ITSELF, SHOULD HAVE BEEN
EXCLUDED BECAUSE THEY WERE OBTAINED IN
VIOLATION OF HIS RIGHT TO REMAIN SILENT.
POINT V
SENTENCING A JUVENILE UNDER THE AGE OF 18 TO
A LIFE TERM, WITH A MINIMUM PAROLE
DISQUALIFIER OF 63 YEARS AND NINE MONTHS,
CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT,
PARTICULARLY BECAUSE IT WAS IMPOSED WITHOUT
ANY CONSIDERATION OF HIS YOUTH. (Not Raised
Below).
10 A-5304-12T3
Additionally, defendant has filed a pro se brief, in which
he argues:
POINT I
DEFENDANT WAS DEPRIVED OF A FAIR TRIAL DUE
TO PROSECUTOR'S INAPPROPRIATE AND LEGALLY
INCORRECT STATEMENT MADE DURING CLOSING
ARGUMENTS WHICH ATTRIBUTED TO PROSECUTORS
MISCONDUCT, AS SUCH MISTRIAL SHOULD HAVE
BEEN GRANTED. (Partially Raised Below).
POINT II
THE TRIAL COURT DENIED DEFENDANT HIS
CONSTITUTION [SIC] RIGHT TO CONFRONT THE
WITNESS AGAINST HIM IN VIOLATION OF THE VI
AMENDMENT RIGHT OF THE UNITED STATES
CONSTITUTION AND IMPEDED DEFENDANT FROM
REVEALING AN AFFIRMATIVE DEFENSE FOR PASSION
PROVOCATION.
POINT III
DEFENDANT'S CONVICTION IS ILLEGAL DUE TO THE
WAIVER HEARING AT FAMILY COURT NOT PERFORMED
IN ACCORDANCE WITH LAW AND DEFENSE
ATTORNEY'S INEFFECIVE ASSISTANCE IN
REPRESENTING THE YOUTHFUL DEFENDANT AT SAID
HEARING WHICH MUST BE CORRECTED. (Not
Raised Below).
POINT IV
DEFENDANT INCORPORATES BY REFERENCE ALL
ISSUES RAISED ON DIRECT APPEAL BY BOTH
DEFENDANT AND COUNSEL AND ASSERTS THAT THE
CUMULATIVE ERRORS DENIED DEFENDANT A FAIR
TRIAL.
II.
As noted, defendant argues that the judge erred by refusing
to instruct the jury on passion/provocation manslaughter,
N.J.S.A. 2C:11-4(b)(2).
11 A-5304-12T3
"Appropriate and proper charges to a jury are essential for
a fair trial." State v. Daniels, 224 N.J. 168, 180 (2016).
Where, as here, defense counsel requests a lesser-included
offense instruction, the standard of review regarding the denial
of that request requires a plenary consideration of whether "the
evidence presents a rational basis on which the jury could
acquit the defendant of the greater charge and convict the
defendant of the lesser." State v. Brent, 137 N.J. 107, 117
(1994). The question is not whether the jury is likely to
accept the defendant's theory, but whether it would have a
rational basis on which to do so. State v. Mejia, 141 N.J. 475,
489 (1995). The failure to instruct the jury on a lesser-
included offense that a defendant has requested, and for which
the evidence provides a rational basis, warrants reversal of a
defendant's conviction. Brent, supra, 137 N.J. at 118.
Our Supreme Court has held, "[a] defendant is entitled to
an instruction on a lesser offense supported by the evidence
regardless of whether that charge is consistent with the theory
of the defendant's defense." Ibid. (citations omitted). So
long as the evidence supporting a lesser-included offense
"leaves room for dispute," the charge is appropriate. State v.
Crisantos, 102 N.J. 265, 278 (1986) (quoting State v. Sinclair,
49 N.J. 525, 542 (1967)). Conversely, if there is not a
rational basis to support the charge, it should not be given
12 A-5304-12T3
because it "invites a jury verdict based on sheer speculation or
compromise." State v. Bishop, 225 N.J. Super. 596, 602 (App.
Div. 1988).
In State v. Castagna, we noted, "[t]his 'rational basis'
test has been construed as a low threshold, especially for the
passion/provocation manslaughter charge. Indeed, if the
evidence in the record supports an instruction on
passion/provocation manslaughter, the charge should be given
whether or not it is consistent with the defense's theory."
376 N.J. Super. 323, 356 (App. Div. 2005), rev'd on other
grounds, 187 N.J. 293 (2006) (citations omitted). Moreover, the
trial judge, when deciding whether to instruct a jury on
passion/provocation manslaughter, should view the situation in a
light most favorable to the defendant. State v. Mauricio, 117
N.J. 402, 412 (1990). Thus, a passion/provocation charge is
required where "a version, or combination of versions, of the
evidence, considered in the light most favorable to defendant,"
provides a rational basis upon which a juror might conclude that
the elements of passion/provocation are met. State v. Taylor,
350 N.J. Super. 20, 40-41 (App. Div. 2002).
Furthermore, when a defendant requests a lesser-included
offense charge, strict adherence to the definition of "included"
under N.J.S.A. 2C:1-8(d) "is less important . . . than whether
the evidence presents a rational basis on which the jury could
13 A-5304-12T3
acquit the defendant of the greater charge and convict the
defendant of the lesser." Brent, supra, 137 N.J. at 117. Thus,
"[w]hen a lesser-included offense charge is requested by a
defendant, . . . the trial court is obligated, in view of
defendant's interest, to examine the record thoroughly to
determine if the rational-basis standard has been satisfied."
Crisantos, supra, 102 N.J. at 278 (citing State v. Powell, 84
N.J. 305, 318-19 (1980)).
Passion/provocation manslaughter is defined as a "homicide
which would otherwise be murder . . . [but] is committed in the
heat of passion resulting from a reasonable provocation."
N.J.S.A. 2C:11-4(b)(2). It has four essential 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." Mauricio, supra, 117 N.J. at 411. "The first two
elements constitute the objective standard[.]" State v.
Robinson, 136 N.J. 476, 490 (1994). "The third and fourth
elements are more subjective because they relate to the
defendant's actual response." Ibid. "[A] trial court in
charging a jury . . . must find first that the two objective
elements of passion/provocation manslaughter are clearly
indicated by the evidence." Id. at 491. "If they are, the two
14 A-5304-12T3
subjective elements 'should almost always be left for the
jury.'" Ibid. (quoting Mauricio, supra, 117 N.J. at 413).
"[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.
In this case, defense counsel requested a passion/
provocation manslaughter charge despite the inconsistency of
that charge with his assertion that defendant acted in self-
defense, and that the shooting was accidental. Defense counsel
argued that defendant's own testimony, as well as the testimony
of other witnesses, supported the charge. In requesting the
charge, defense counsel reviewed with the court each of the four
prongs of the passion/provocation model charge and supported his
argument for inclusion with the testimony of the defendant and
other witnesses.
In particular, defendant contended the charge was warranted
based on the adversarial history between himself and Hall, his
own testimony that, just prior to the shooting, Hall said to him
15 A-5304-12T3
"this is the last time you're going to come in this house. And
stop talking to [Lowenstein,]" and his testimony that Hall
initially drew the gun.
Furthermore, defendant was charged with knowingly or
purposely causing the death of Hall, which was factually
supported by Lowenstein's testimony. Although defendant
testified to the contrary, the jury believed the State's
witnesses and convicted defendant of that charge. As the Court
recently stated, "by asserting the justification of self-
defense, defendant placed the events immediately before the
shooting squarely before the jury." State v. Bass, N.J.
___, ___ (2016) (slip op. at 39). Here, the trial court agreed
to charge self-defense, aggravated, and reckless manslaughter.
The prosecutor argued that the record did not support
adequate provocation, stating the law "contemplates an
acknowledgement by the defendant that there was purposeful
conduct on his part[,]" and "[b]ecause this defendant clearly
testified he never had his finger on the trigger[,]" the
passion/provocation charge was not warranted. The prosecutor
also contended that, "if we give passion/provocation on these
facts, it would be hugely misleading to the jury."
The trial court reviewed the facts to determine if there
was a rational basis for a passion/provocation manslaughter
instruction. The court concluded, "[i]t's one thing to have
16 A-5304-12T3
self-defense. It's another to have an accidental shooting.
It's another thing to say that someone else is responsible";
they're "inconsistent." The court noted the inconsistencies in
the testimony could lead to jury confusion if the passion/
provocation charge was given, and denied the requested charge.
We disagree with the trial court's conclusion that the
evidence did not provide a rational basis to support the
elements necessary for a passion/provocation charge. We
recognize "[a]dequate provocation is not satisfied by 'words
alone, no matter how offensive or insulting.'" State v. Docaj,
407 N.J. Super. 352, 368 (App. Div.), certif. denied, 200 N.J.
370 (2009) (quoting Crisantos, supra, 102 N.J. at 274).
However, a threat with a gun or a knife may constitute adequate
provocation. Powell, supra, 84 N.J. at 320. Furthermore, a
battery, except for a light blow, has traditionally been
considered "almost as a matter of law," to constitute adequate
provocation. 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.
17 A-5304-12T3
In Crisantos, supra, 102 N.J. at 274, the Court noted the
common law rule that "mutual combat" can, in certain
circumstances, give rise to passion/provocation mitigation.
However, that combat "must have been waged on equal terms and no
unfair advantage taken of the deceased," unlike a setting in
which the defendant uses a deadly weapon against an unarmed
victim. Ibid. (internal quotation marks omitted).
We recognize that, "if a person, under color of fighting on
equal terms, kills the other with a deadly weapon which he used
from the beginning or concealed on his person from the
beginning, the homicide constitutes murder." Id. at 274-275(citations omitted). However, in this case, the only testimony
concerning the origin of the weapon used to kill the victim was
defendant's version, and he stated that the victim brought a
concealed and loaded handgun to the incident at the home that
night.
For provocation to be adequate, it "must be 'sufficient to
arouse the passions of an ordinary [person] beyond the power of
his [or her] control.'" Robinson, supra, 136 N.J. at 491(quoting Mauricio, supra, 117 N.J. at 412). On this score, it
has been held "that a threat with a gun or knife might
constitute adequate provocation." Mauricio, supra, 117 N.J. at
414. See State v. Pasterick, 285 N.J. Super. 607, 614 (App.
Div. 1995); see also Powell, supra, 84 N.J. at 321-22
18 A-5304-12T3
(defendant's statement that the victim attempted to wrestle the
defendant's gun away from him during an argument sufficiently
established adequate provocation, even though the defendant had
previously given a different story to the authorities); State v.
Bonano, 59 N.J. 515, 523-24 (1971) (holding that a verbal threat
alone insufficient to reduce the degree of the crime, however, a
menacing gesture with the weapon could properly be considered
adequate provocation); State v. Blanks, 313 N.J. Super. 55, 72
(App. Div. 1998) (holding history of belligerence and discovery
of a long-handled cooking fork on the floor at the victim's
side, sufficient to suggest that the victim may have brandished
the fork and further provoke defendant); State v. Vigilante, 257
N.J. Super. 296, 301-02, 305-06 (App. Div. 1992) (holding prior
history of abuse, threats to kill, and the fact that the victim
"bent down to pick up a pipe wrench" all indicated presence of
reasonable provocation); State v. Pridgen, 245 N.J. Super. 239,
242-43, 247-48 (App. Div.), certif. denied, 126 N.J. 327 (1991).
Applying these principles to the case at hand, we are
satisfied that "a version, or combination of versions, of the
evidence adduced at trial, considered in the light most
favorable to defendant," provides a rational basis upon which a
reasonable jury might make a finding of passion/provocation.
See Taylor, supra, 350 N.J. Super. at 40. Both defendant and
Lowenstein testified to the history of conflict between
19 A-5304-12T3
defendant and the victim and Hicks. By all accounts, a verbal
dispute took place, followed by a physical struggle between the
defendant and the victim involving a handgun. The only direct
testimony regarding the origin of the handgun came from
defendant, who maintained that Hall brought it upstairs with
him.
Our dissenting colleague interprets our opinion as relying
in large part on the acrimonious history between defendant and
victim, and the verbal dispute preceding the shooting. We
acknowledge that mere animosity or verbal sparring alone cannot
support a finding of passion/provocation. We view those facts
as secondary to the central issue supporting a passion/
provocation charge here: defendant's uncontroverted testimony
that Hall withdrew the weapon from his waistband and pointed it
at him, thereby threatening him.
We are cognizant of the Court's recent opinion in State v.
Funderburg, reaffirming the principle that in considering a sua
sponte instruction, appellate courts may not "sift[] through the
cold appellate record and construct[] a hypothetical and
factually unsupported scenario" in which a jury charge might
conceivably be appropriate. State v. Funderburg, ___ N.J. ___,
___ (slip op. at 10) (2016). However, this case differs from
Funderburg in two important respects. First, in Funderburg, the
defendant argued the trial judge erred by not sua sponte
20 A-5304-12T3
delivering the jury charge in question. Ibid. Here, the judge
denied defense counsel's explicit and well-reasoned request for
the charge. Second, unlike in Funderburg, there is factual
support in the record for a passion/provocation charge based on
"a version, or combination of versions," of the evidence adduced
at trial, considered in the light most favorable to defendant.
See Taylor, supra, 350 N.J. Super. at 40.
The facts supporting passion/provocation in this case are
neither "hypothetical" nor "unsupported." It is undisputed
that, when Hall entered the kitchen, Lowenstein was "[k]issing
and hugging" defendant, with her hands "[a]round his waist." A
verbal dispute ensued between defendant and Hall. At some
point, a gun was produced, escalating the confrontation.
According to defendant's uncontroverted testimony, it was Hall
who produced the gun.
The trial judge's task is merely to determine whether the
provocation was adequate as a matter of law, and whether, as a
matter of law, there was time for the defendant to "cool off."
Viera, supra, 346 N.J. Super. at 212. If the court determines
that the provocation was adequate, and the intervening time was
not too long, then it should provide a passion/provocation jury
instruction upon request. Ibid.
The combination of testimony in this case compels the
conclusion that the alleged provocation was adequate, and that
21 A-5304-12T3
the intervening time was short enough that defendant could still
have been acting under the influence of that provocation when,
moments later, he shot Hall as he lay wounded on the kitchen
floor. It is then for the jury to decide whether defendant was
in fact provoked, and whether his passion in fact cooled before
he committed the underlying offense.
In sum, we conclude that the evidence adduced at trial
provided a rational basis upon which a reasonable jury might
make a finding of passion/provocation, and the trial judge was
therefore required to give the requested instruction to the
jury. Given our determination that it was error to deny
defendant's request to instruct the jury on the lesser-included
offense of passion/provocation manslaughter, we need not address
the remaining arguments raised.
Reversed and remanded for a new trial consistent with this
opinion.
22 A-5304-12T3
_________________________________________
GUADAGNO, J.A.D. dissenting
Little more than a "scintilla of evidence" supporting a
charge of passion/provocation manslaughter is required before a
jury will be given the option of reducing a murder charge to
that lesser-included offense. State v. Crisantos, 102 N.J. 265,
278 (1986). Not even a scintilla of evidence supported
defendant's claim that he was entitled to such a charge.
Because I believe there was no rational basis to support a
passion/provocation charge, I respectfully dissent from the
majority decision, which reverses defendant's conviction.
The State and defendant presented two totally antithetical
versions of how Jose Hall died on November 7, 2007. The State
relied on the testimony of K. Lowenstein, who was sitting at her
parents' kitchen table with defendant when Hall entered the room
and began a conversation with her. Defendant ordered Lowenstein
not to talk with Hall, which prompted an argument between
defendant and Hall. Fearing the argument would escalate,
Lowenstein left the kitchen to get her parents, who were
upstairs. As she walked through the living room, but before she
reached the stairs, Lowenstein heard Hall yell "whoa" three
times, followed by a gunshot. She turned immediately and ran
back to the kitchen to find Hall on the floor curled up in a
ball with his legs and arms up in a defensive position, and
defendant standing over him pointing a gun at his head.
Ignoring Lowenstein's pleas to let go of the gun and leave the
house, defendant aimed the gun at Hall, who was writhing on the
floor, and fired a second shot into his head. No reasonable
interpretation of the State's version of Hall's killing will
support a passion/provocation charge.
Defendant's version is equally bereft of either passion or
provocation and asserts unequivocally that he acted solely in
self-defense. Defendant claimed that he was kissing Lowenstein
in the kitchen when Hall entered the room, went to the
refrigerator for food, and began speaking with Lowenstein.
Defendant then got up from the table and walked over to Hall.
Significantly, neither defendant nor Lowenstein testified that
Hall directed any of his remarks to defendant before defendant
got up from the table and walked over to Hall. As the majority
relies on defendant's version to conclude that he was provoked
by passion, I repeat his testimony:
Q: All right. Now, when you got up, where
did you go?
[Defendant]: I got up and I walked over
there to [Hall]. And he walked — he just
turned around a little bit, about to like
step towards me. So, we was face to face
talking to each other.
Q: And how were you talking with each
other?
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[Defendant]: I was talking low. He — he
had a little attitude.
Q: Okay. And when he had that little
attitude, how did you feel about it.
[Defendant]: We never had a conversation,
so I felt it — it - there wasn't no need for
that. I was just letting him know, you
could tell she didn't want to talk to him.
So, I was just letting him know, don't talk
to her.
Q: All right. Where did you see [Lowenstein]
go?
[Defendant]: When I — when, I got up and I
was walking [I] seen her, because she was
cleaning a little place right there. And
when she — I just seen her from the corner
of my eye, she was like, "Well, I'm going to
go get my parents." And she just walked and
walked out the kitchen.
Q: Okay. And did she leave the room?
[Defendant]: Yeah, I seen her leave the
room.
Q: Okay. What, if anything, happened when
she left that room?
[Defendant]: She left the room. José
looked at me and told me, "[this] is the
last time you're going to come in this
house. And stop talking to [Lowenstein]."
And he pulled out a gun on me.
Q: Where did he pull the gun from?
[Defendant]: From his waistband.
Q: And what did you do?
[Defendant]: I immediately went for it and
grabbed his hand.
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. . . .
Q: When you say, "He pulled it out." What
did you see him do?
[Defendant]: He just — he reached under
his shirt and pulled out a gun. I seen the
gun coming out. And I just went for his
hand.
Q: When you saw that gun come out, what
did you do?
[Defendant]: I grabbed his hand.
Q: And what else.
[Defendant]: I tried to — tried to make
sure he doing point it at me. I was
pointing it at him, he was trying to point
it at me.
Q: What happened?
[Defendant]: The gun went off. We were
struggling — we were struggling and the gun
went off.
Defendant testified that Lowenstein re-entered the room
after the first shot and joined the struggle, during which time
the second shot went off. Defendant's assertion is pure self-
defense. Nothing in defendant's version suggests that he was
provoked or motivated by passion or emotion. Indeed, there was
no time for provocation, as defendant claimed he grabbed Hall's
arm immediately after Hall drew the gun.
Passion/provocation manslaughter in this case is not only
inconsistent with defendant's testimony, it is also inconsistent
with the State's version of the homicide, and is unmoored to any
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record evidence. As in Crisantos, supra, a jury verdict of
passion/provocation manslaughter would have required the jury to
reject both defendant's and the State's versions. 102 N.J. at
280. Neither version of the shooting supports a theory that
defendant acted "in a transport of passion . . . induced by an
adequate provocation." Id. at 281 (alteration in original)
(quoting State v. Guido, 40 N.J. 191, 209-10 (1963)).
Four elements must be shown to justify a passion/
provocation charge. State v. Mauricio, 117 N.J. 402, 411
(1990). First, and most importantly, there must be adequate
provocation. Ibid. The majority relies on Mauricio for the
proposition that a threat with a gun or knife might constitute
adequate provocation. In Mauricio, the defendant was thrown out
of a bar by a bouncer on two occasions before he shot an
innocent third party, perhaps mistaking the victim for the
bouncer who had forcibly ejected him earlier that night. Id. at
408-09. The Court held that the provocation produced by the two
physical confrontations with the bouncer may have been
sufficient to cause the passions of a reasonable person to
become so aroused as to result in loss of self-control. Id. at
414.
Nowhere in this record is there anything approaching the
"humiliation at being ejected," which served as the provocation
in Mauricio. Id. at 415. Accepting defendant's version, the
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only possible provocation preceding the shooting came after Hall
entered the room and began to speak with Lowenstein. It is
fundamental that words alone do not constitute adequate
provocation. Crisantos, supra, 102 N.J. at 274. Even if Hall's
alleged "last time" statement to defendant can be seen as
"insulting or reproachful," it occurred simultaneously as Hall
was drawing the gun and does not constitute provocation. See
State v. King, 37 N.J. 285, 301 (1962) (suggesting there must be
a "time lapse between the utterance of [the alleged insulting
remarks] and the commission of the homicide").
The second factor requires that the defendant must not have
had time to cool off between the provocation and the slaying.
This would negate the effect of the "adversarial history"
between Hall and defendant, upon which the majority places great
reliance.
The third element is that the provocation must have
actually impassioned the defendant. Even accepting defendant's
version, he grabbed Hall instinctively attempting to defend
himself. He was not motivated by passion. This is precisely
the situation where a self-defense instruction is warranted. To
require a passion/provocation instruction here would be to blur
the line between provocation and fear, render the self-defense
instruction superfluous, and confuse the jury. Even under
defendant's version, there is no basis for a jury to rationally
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conclude that he had been provoked to the point of loss of
control.
While this appeal was pending, the Court decided State v.
Funderburg, ___ N.J. ___ (2016). Although the majority attempts
to distinguish Funderburg, the facts are similar. A romantic
triangle involving a woman, Andrews; her current boyfriend,
Parham; and her former boyfriend, Funderburg, sparked a
confrontation which ended with Funderburg stabbing Parham. Id.at ___ (slip op. at 2). The stabbing was preceded by a "tense
relationship" between the two men who had "previously exchanged
angry words." Ibid. After Funderburg took Andrews' car keys,
he argued with her until Parham intervened. Parham then chased
Funderburg, who drew a knife and stabbed Parham. Ibid.A jury found Funderburg guilty, but we reversed because the
trial judge failed to instruct the jury on the lesser-included
offense of attempted passion/provocation manslaughter. Id. at
___ (slip op. at 3). On appeal, Funderburg claimed he was
entitled to a passion/provocation charge, which he did not
request at trial. Id. at ___ (slip op. at 3). The Court
reversed and reinstated Funderburg's conviction, finding "there
was insufficient evidence in the trial record to indicate that a
reasonable person in Funderburg's situation would have been
adequately provoked." Id. at ___ (slip op. at 21).
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The majority attempts to distinguish Funderburg by noting
that defendant, here, requested the passion/provocation charge,
while Funderburg argued the trial judge erred by not delivering
it sua sponte. However, if Funderburg had been entitled to a
passion/provocation charge, the Court would not have affirmed
his conviction under any standard of appellate review. In
addition, the Court noted that the verbal sparring between
Funderburg and Parham, which was far more extensive than the
brief exchange in the kitchen between defendant and Hall, did
not suggest adequate provocation. Ibid. Significantly, the
Court noted that even if the jury found the defendant's
testimony that Parham initially held the knife to be the most
credible, that "would at most support the theory that Funderburg
acted in self-defense; it would likely not support a theory that
Funderburg was actually impassioned and intended to kill
Parham." Ibid.Because there was no rational basis to justify a
passion/provocation charge under the State's proofs or
defendant's version of the shooting, I respectfully dissent.
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