STATE OF NEW JERSEY v. TIMOTHY J. CANFIELD (16-12-3619, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5586-18

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v.

January 10, 2022

TIMOTHY J. CANFIELD, APPELLATE DIVISION

Defendant-Appellant.

_______________________

Submitted September 15, 2021 – Decided January 10, 2022

Before Judges Hoffman, Geiger and Susswein.

On appeal from the Superior Court of New Jersey, Law

Division, Camden County, Indictment No. 16-12-3619.

Joseph E. Krakora, Public Defender, attorney for

appellant (Ruth E. Hunter, Designated Counsel, on the

briefs).

Grace C. MacAulay, Acting Camden County

Prosecutor, attorney for respondent (Jason Magid and

Rachel M. Lamb, Special Deputy Attorneys

General/Acting Assistant Prosecutors, of counsel and

on the brief).

The opinion of the court was delivered by

SUSSWEIN, J.A.D.

Defendant appeals from his jury trial convictions for aggravated

manslaughter and multiple counts of hindering apprehension or prosecution. 1

He contends that the Law Division judge committed numerous trial errors, all

but one of which are raised for the first time on appeal. This case arises from a

confrontation during which defendant shot his sister-in-law's former boyfriend

with a compound bow and arrow, inflicting a fatal wound. Defendant claimed

at trial that he meant only to release a "warning shot" and that he acted in self -

defense. He testified that the victim, who defendant knew to be HIV-positive,

came towards him in the course of their argument while holding an object th at

defendant believed to be a hypodermic syringe. The jury acquitted defendant of

knowing/purposeful murder, convicting him instead of the lesser-included

offense of aggravated manslaughter. In doing so, the jury necessarily found that

the State had proved beyond a reasonable doubt that defendant's use of deadly

force was not justified in self-defense.

Defendant contends that the trial court erred by failing to properly instruct

the jury on several principles of law, by admitting expert testimony regar ding

the effectiveness of archery equipment, by admitting hearsay pertaining to the

1

The jury also found defendant guilty of possession of a weapon for an unlawful

purpose. At sentencing, the court merged that conviction into the aggravated

manslaughter conviction.

A-5586-18

2

State's theory that defendant's self-defense claim was fabricated, and by

admitting a photograph of a hypodermic syringe that was found inside the house

similar to one police found in the backyard. Defendant's contention regarding

the admission of the photograph is the only asserted error that was brought to

the attention of the trial judge. All of the other alleged errors are raised for the

first time on appeal as plain error.

With respect to the jury instructions, defendant contends that the trial

court erred by failing to instruct the jury sua sponte as to: (1) the lesser-included

offense of passion/provocation manslaughter, (2) the self-defense principle that

a person employing deadly force does not have a duty to retreat in his or her

own dwelling, and (3) the causation of the victim's death. Defendant did not

request the trial court to give any of these jury instructions.

Defendant also contends that the eighteen-year prison term imposed on

the aggravated manslaughter conviction is excessive. He argues that the court

misapplied aggravating and mitigating factors and should have reduced the

sentence pursuant to N.J.S.A. 2C:44-1(f)(2). He further argues that a new

sentencing hearing is required at which the sentencing court must retroactively

apply a recently-enacted statutory mitigating factor, N.J.S.A. 2C:44-1(b)(14),

that accounts for a defendant's youth.

A-5586-18

3

After carefully reviewing the record in light of the arguments of the parties

and governing legal principles, we reject all but one of defendant's contentions

relating to trial errors. With respect to his contention that the court improperly

admitted hearsay testimony regarding an alleged family plan to support a

fabricated claim of self-defense, we deem it appropriate to order a limited

remand for the trial court to conduct a Rule 104 hearing 2 to determine whether

the elements of the co-conspirator exception to the hearsay rule have been

satisfied. See infra section VIII. In all other respects, we affirm the convictions.

We also affirm the sentence with the caveat that the issue whether the new

youthful offender mitigating factor applies retroactively is presently pending

before the Supreme Court. Because we are remanding for the trial court to make

findings with respect to the co-conspirator exception to the hearsay rule, we

deem it prudent for the trial court on remand to also consider whether the

sentence would have been different accounting for the new statutory mitigating

factor now codified in N.J.S.A. 2C:44-1(b)(14). That will obviate any need to

remand the case yet again if the Supreme Court decides that the new mitigating

factor applies retroactively.

2

See N.J.R.E. 104.

A-5586-18

4

We devote much of our attention in this opinion to defendant's argument

that the trial court should have afforded the jury the option to convict him of the

lesser-included offense of passion/provocation manslaughter. We conclude that

the facts in evidence do not clearly indicate an objectively reasonable

provocation, that is, one sufficient to arouse the passions of an ordinary person

beyond the power of his or her control. We therefore hold that the trial court

was not required to instruct the jury on passion/provocation manslaughter sua

sponte.

In reaching this conclusion, we recognize that the trial court's decision to

deliver a self-defense instruction indicates that evidence was presented at trial

from which a jury might reasonably find that the victim's death was attributable

to his own conduct. We reject the notion, however, that a court must instruct

the jury on passion/provocation manslaughter whenever self-defense is raised in

a murder prosecution. Passion/provocation manslaughter, as set forth in

N.J.S.A. 2C:11-4(b)(2), is a mitigated offense that is analytically distinct from

the use of force in self-protection, a justification defense, set forth in N.J.S.A.

2C:3-4.

These two statutory provisions are triggered by different material

elements and prerequisites, serve different purposes, and produce markedly

different results. When the State fails to disprove a claim of self-defense, the

A-5586-18

5

defendant is acquitted of the charge(s) involving the use of force. When a jury

finds the extenuating circumstances of passion/provocation, in contrast, a

defendant is not vindicated by an acquittal; rather, a homicide that otherwise

would be first-degree murder is mitigated to second-degree manslaughter.

Despite these fundamental distinctions, we recognize that both statutory

provisions address—in different ways—when and how a victim's conduct may

affect a defendant's culpability for causing the victim's death. We also recognize

that the same circumstances that prompt a responsive use of deadly force may

also provoke an impassioned reaction. When deadly force is employed during

a spontaneous or swiftly-evolving confrontation, the attending circumstances

may be fraught with emotion that causes the actor to lose self-control. In some

murder cases, therefore, the same trial evidence that would require a court to

provide a self-defense jury instruction might also require that the jury be

afforded the option to convict for the lesser-included crime of

passion/provocation manslaughter. After close inspection of the pertinent facts

in evidence, we conclude that this case does not fall into that category. Even

accepting as true defendant's version of events, as recounted in his trial

testimony, he has failed on appeal to meet the "clearly-indicated" standard that

is needed to require a jury instruction sua sponte. That standard is more

A-5586-18

6

demanding than the "rational-basis" standard that would have applied had

defendant requested the trial court to deliver a passion/provocation instruction.

Our review of this case reinforces our belief that the decision as to what

jury instructions should be delivered is best made in the first instance by a trial

court, aided and informed by the arguments of the parties. Indeed, that is one

of the fundamental purposes of the charge conference required by Rule 1:8-7(b).

We note further that self-defense often is asserted in murder trials when

the identity of the alleged perpetrator is not disputed. In those cases, defense

counsel will, of course, request that the jury be instructed on the legal principles

concerning the authorized use of force in self-defense, and in that event, trial

courts routinely deliver a self-defense charge as requested. The more

challenging and nuanced question—whether passion/provocation mitigation

should also be charged to the jury along with a self-defense instruction—arises

often enough to warrant prophylactic measures to ensure that this fact-sensitive

issue is considered in the first instance by the trial court and not, as in this case,

by an appellate court after a verdict has already been rendered. We therefore

recommend a new procedural rule that when, in a murder prosecution, the trial

court determines to instruct the jury on self-defense at the charge conference

conducted pursuant to Rule 1:8-7(b), the court should also consider and make

specific findings on the record as to whether to instruct the jury on the lesser -

A-5586-18

7

included offense of passion/provocation manslaughter, regardless of whether

either party has requested that instruction.

A trial verdict should not be placed at risk of reversal because the parties

and the court did not anticipate that this fact-sensitive issue would later be raised

on appeal as plain error. Nor should an otherwise valid guilty verdict be placed

in jeopardy of reversal on appeal because the defense chose for strategic reasons

not to request a passion/provocation instruction, hoping for an outright acquittal

rather than a second-degree manslaughter conviction.

A trial court's ultimate decision whether to instruct on

passion/provocation manslaughter, of course, will depend on the specific

circumstances of the case and the arguments of the parties. A defendant, for

example, may argue that a passion/provocation manslaughter instruction would

be incompatible with his or her self-defense theory. We emphasize that the new

procedural rule we recommend would not require that a passion/provocation

manslaughter instruction be given. Nor does it alter the "clearly-indicated"

standard that applies when that instruction has not been requested by the

defendant. The new practice we recommend is designed only to ensure that the

necessity for a passion/provocation manslaughter instruction is considered at the

charge conference, and that this fact-sensitive decision is made by the trial court

before a verdict is rendered.

A-5586-18

8

I.

We begin by summarizing the facts adduced at trial that are relevant to the

issues raised on appeal. On January 28, 2013, Trisha Dulin and Vincent

DeFilippis were sitting outside of the Dulin residence at an outdoor bar. Trisha 3

and DeFilippis were socializing for the first time since they had graduated from

high school. At approximately 10:00 p.m., Trisha saw Kereti Paulsen—her

former boyfriend and the father of her child—standing in the backyard. Paulsen

and Trisha had ended their relationship just a few weeks earlier.

DeFilippis knew Paulsen from high school but had not seen him since

graduating. Paulsen approached DeFilippis and a physical fight ensued,

resulting in scrapes and bloody knuckles. The fight was short-lived and ended

when Trisha admonished Paulsen that their relationship was over. Trisha then

went inside the house with DeFilippis. Paulsen remained outside in the

driveway.

Trisha informed her family that Paulsen had not left. Ashley Dulin

(Trisha's sister) and defendant (Ashley's husband) came out of their bedroom.

According to Ashley, her family disliked Paulsen because "he got [Trisha] into

. . . drugs." Ashley further explained that Paulsen was suspected of stealing

3

Because a number of the witnesses in this case share the same last name, we

refer to them by their first names to avoid confusion. We intend no disrespect

in doing so.

A-5586-18

9

from their house, and that defendant was angry at Paulsen because he "wasn't

supposed to be there."

At this point, Trisha, Ashley, DeFilippis, and defendant went outside and

began to argue with Paulsen. After arguing with Paulsen for several minutes,

the four went back inside the house. Paulsen remained outside the residence. 4

Defendant retrieved a compound bow and arrows and went back outside to

confront Paulsen.

During the one-on-one confrontation that followed, defendant shot an

arrow that struck and mortally wounded Paulsen. Defendant followed Paulsen

as he staggered into a neighbor's yard. The neighbor, Joseph Cassise, came out

of his house to investigate the noise. Cassise asked if Paulsen, who was lying

on the ground, was okay. Defendant told Cassise that he and Paulsen had "been

drinking." Cassise then went back into his house.

Shortly after, defendant returned inside his house and said, "I shot an

arrow. I don't know what happened." According to Ashley, defendant told her

"he shot [an arrow] at the fence to scare [Paulsen]."

4

We note that DeFilippis testified that defendant had a bow and arrows in his

hand when the four individuals went outside. Additionally, DeFilippis testified

that defendant never went back into the house with him, Ashley, and Trisha. For

purposes of determining whether the trial court committed plain error, we accept

defendant's version that he went inside the house with Ashley, Trisha, and

DeFilippis, retrieved the bow and arrows, and then went back outside alone to

confront Paulsen. See infra section III(G).

A-5586-18

10

Defendant testified at trial in his own defense. He claimed that he went

outside armed with the bow and arrows because he "was afraid of [Paulsen] "

and "didn't know what [Paulsen] was going to do." Defendant yelled at Paulsen

"again and again to leave," but "he wouldn't leave." Defendant testified that

Paulsen, who was approximately thirty feet away, "started coming towards me,

and he pulled something out of his pocket." Defendant acknowledged that

because it was dark, "I couldn't really tell what it was." He nonetheless believed

that Paulsen had pulled out an HIV-infected needle because of a recent text

message in which Paulsen said, "I'm HIV positive and the bitch [referring to

Trisha] is gonna die anyway." Defendant testified that he assumed the object

Paulsen was holding was a syringe because Paulsen had been in possession of a

needle the last time police removed him from the Dulin residence.

When asked about Paulsen approaching him, defendant testified:

I started backing up away from him, and at the point—

I backed into—we have a ledge in front of our shed, I

backed into that and started to lose my balance, let go

of the bow string, and ended up shooting. I didn't want

to hold onto the bow while I was falling down.

Defendant had told police that the bow "wasn't even fully drawn. It was just

tension on the string and when I pulled back[,] I guess I tripped." Defendant

testified, however, that he did not accidentally shoot the arrow at Paulsen.

A-5586-18

11

Rather, defendant testified that he shot the arrow intentionally as a "warning

shot" and that he intended "to scare him."

A neighbor, Bertram Francks, testified that he heard arguing and fighting

outside around 10 p.m. Francks observed defendant come outside with a bow

and yell at someone. He saw defendant aim the bow but did not see him back

up or trip. Francks also saw defendant walk back inside the Dulin residence

holding the bow and looking distraught.

Cassise also heard noise coming from the Dulins' backyard that evening.

He heard someone say: "What, are you going to shoot me with that?" He then

heard "some groans underneath [his] bedroom window" and "[i]t sounded like

somebody was in distress." Cassise believed he heard someone say he had been

shot with an arrow and subsequently had his son call 9-1-1. As previously noted,

Cassise testified that he went outside and asked defendant if everything was

okay. Defendant responded that everything was fine and that he and Paulsen

had been drinking. Cassise then went back into his home. At or around this

time, defendant called 9-1-1 using Paulsen's cellphone. He pretended to be

Paulsen, telling the 9-1-1 operator, "I've been shot."

At approximately 10:50 p.m., officers from the Berlin Police Department

were dispatched to the scene. Upon their arrival, the officers found Paulsen

lying face down in a neighbor's yard.

A-5586-18

12

Police questioned DeFilippis and Trisha at the Dulin residence and

detained them in separate police vehicles after they provided conflicting

statements. Trisha initially told the police that she had not seen Paulsen in weeks

and did not know why the officers had been dispatched to the residence.

DeFilippis also lied to the police initially, later explaining that he was concerned

that they had been called because he and Paulsen had been fighting. He told

police initially that his knuckles were bloody from engaging in sexual activity

with Trisha. Trisha disputed that statement. Police then transported them to the

police station to be interviewed.

Prior to transporting DeFilippis and Trisha to the police station, the police

knocked on the door of the Dulin residence. Defendant answered and then

notified Helen Dulin, the homeowner, that police wanted to search Trisha's

bedroom. This was defendant's first interaction with police that night. After

obtaining consent to search the bedroom, the police requested that Ashley and

Helen come to the police station to provide statements. Defendant remained at

the Dulin residence while the other individuals were being interviewed at the

police station.

Defendant eventually went to the police station in the early morning hours

of January 29, after Ashley and Helen had returned home following their

interviews. While at the police station, defendant participated in two interviews.

A-5586-18

13

During his second interview, defendant revealed that he had lied during his first

interview. Defendant testified at trial that he lied (1) about being asleep after

the altercation with Paulsen, (2) that he was not outside during the altercation,

(3) that he had never left the premises that night and had not followed Paulsen

onto the neighbor's property, and (4) that he had not spoken to any of the

neighbors. When questioned further, defendant admitted that he did speak with

Cassise after the altercation and lied when he explained to Cassise that Paulsen

was on the ground because he was drunk rather than because he had been shot

with an arrow. Additionally, defendant admitted to police that he used Paulsen's

phone to call 9-1-1 after the altercation and pretended to be Paulsen, telling the

9-1-1 operator that he was shot.

During the second interview, defendant disclosed that he had discarded

the bow in a wooded area a few miles from the police station. He told police he

did this because he was "scared" and "panicked." Defendant agreed to take the

officers to the location where he had discarded the weapon. After police

recovered the bow, they took defendant back to the Dulin residence where he

re-enacted his version of events. The re-enactment was videorecorded.

A-5586-18

14

As previously noted, police went to the Dulin residence to search Trisha's

bedroom. They found suspected drugs and an orange-capped syringe. 5 That

syringe was identical to an orange-capped syringe found outside when police

conducted a follow-up inspection of the crime scene.

In August 2016—more than three years after Paulsen's death—DeFilippis

revealed conversations involving members of the Dulin family that allegedly

occurred shortly after their police interviews had concluded on the night of the

incident. DeFilippis testified:

So, the day we got out of the police interrogation from

when everything happened, that following morning, we

were at the police department that night on [January]

28th, for about 9 hours. The next morning, the police

had drove me and Trish back to the house in the police

car, both of us. So[,] when we got to the house, Mr.

[Thomas] Dulin [defendant's father-in-law] was there

waiting for us. And, when we got out of the car and the

cops had left everything and we got inside and settled

down, there was kind of like a family meeting of

everybody that was involved. And they came up with

the story that we're going to say [Paulsen] had an HIV[-

]positive needle, so it was self-defense instead of him

just shooting an arrow at somebody he didn't like. And

everybody spoke about it. And I guess they had came

to kind of an agreement that that's what we're going to

say, and we're going to plead self-defense on this, try to

get [defendant] the least time possible for what

happened.

5

The record indicates that Trisha's mother consented to the search and that

police also returned to the home with a search warrant. The lawfulness of the

search of Trisha's room is not challenged in this appeal.

A-5586-18

15

DeFilippis further testified that a few days before he disclosed this

information to police in 2016, defendant and Ashley repeatedly reached out to

him to discuss the plan that had been "concocted in a living room." DeFilippis

testified that when he spoke to defendant on the phone, "[i]t was kind of like

stick to the story type thing." DeFilippis stated, "[a]nd[,] he kept saying, [s]tick

to the story [and go] pick up my copy of the statement so I—[DeFilippis]—know

exactly what was said, blah, blah, blah."

Defendant and members of the Dulin family denied that the meeting

described by DeFilippis ever happened. Ashley testified that she first heard

about Paulsen having a syringe at defendant's arraignment. She denied that she

or defendant had advised DeFilippis to lie about what happened on the night of

Paulsen's death. Thomas Dulin testified and also denied that the meeting

described by DeFilippis had ever occurred. He testified that he never instructed

members of his family to concoct a story about self-defense and a hypodermic

syringe.

II.

In December 2016, a grand jury returned an indictment charging

defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one);

third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39 -

4(d) (count two); third-degree hindering apprehension or prosecution, N.J.S.A.

A-5586-18

16

2C:29-3(b)(1), (3), and (4) (counts three, four, and five); and third-degree

tampering with witnesses and informants, N.J.S.A. 2C:28-5(a)(1) (counts six

and seven).

In April 2019, Judge David Ragonese presided over defendant's jury trial.

After considering the evidence presented by the State and defendant, the jury

acquitted defendant of knowing/purposeful murder but found him guilty of the

lesser-included offense of aggravated manslaughter. The jury also found

defendant guilty of third-degree possession of a weapon for an unlawful purpose

(count two) and hindering apprehension or prosecution (counts three, four, and

five). Defendant was acquitted on the two counts charging tampering with

witnesses.

On June 10, 2019, Judge Ragonese merged the convictions for aggravated

manslaughter and possession of a weapon for an unlawful purpose. He then

sentenced defendant on the aggravated manslaughter conviction to an eighteen -

year prison term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43 -

7.2. The court imposed three-year prison terms on the hindering convictions

and ordered them to be served concurrently with each other and the sentence

imposed on the aggravated manslaughter conviction. This appeal followed.

Defendant raises the following contentions for our consideration:

A-5586-18

17

POINT I

THE COURT'S FAILURE TO INSTRUCT THE JURY ON

THE LESSER-INCLUDED OFFENSE OF PASSION/

PROVOCATION MANSLAUGHTER, CAUSATION, AND

RETREATING FROM ONE'S OWN DWELLING, WAS

PLAIN ERROR AND DEPRIVED DEFENDANT OF A

FAIR TRIAL. (Not Raised Below).

POINT II

IT WAS PLAIN ERROR TO ADMIT EXPERT

TESTIMONY ON "ARCHERY EQUIPMENT

EFFECTIVENESS" BECAUSE IT WOULD NOT ASSIST

THE TRIER OF FACT TO UNDERSTAND THE

EVIDENCE OR DETERMINE A FACT IN ISSUE, AND

BECAUSE THE FIELD IS NOT GENERALLY ACCEPTED

WITHIN THE SCIENTIFIC COMMUNITY. (Not Raised

Below).

POINT III

DEFILIPPIS'S TESTIMONY ABOUT A DULIN FAMILY

PLAN TO CONCOCT A SELF-DEFENSE THEORY DID

NOT MEET THE ELEMENTS OF THE CO-

CONSPIRATOR EXCEPTION TO THE RULE AGAINST

HEARSAY AND ITS ADMISSION WAS THUS PLAIN

ERROR. (Not Raised Below).

POINT IV

THE PHOTOGRAPH OF THE SYRINGE IN TRISHA'S

BEDROOM WAS IMPROPERLY ADMITTED UNDER

N.J.R.E. 404(b) BECAUSE IT WAS NOT INTRINSIC

EVIDENCE OF THE CRIMES WITH WHICH

DEFENDANT WAS CHARGED[] AND FAILED TO MEET

THE COFIELD TEST FOR ADMISSIBILITY. SEE STATE

v. COFIELD, 127 N.J. 328 (1992). IT WAS ALSO

IMPROPERLY ADMITTED UNDER N.J.R.E. 403.

A-5586-18

18

POINT V

THIS COURT SHOULD REMAND FOR RESENTENCING

FOR THE TRIAL COURT TO RECONSIDER

DEFENDANT'S SENTENCE BASED ON THE NEW

MITIGATING FACTOR, "THE DEFENDANT WAS

UNDER 26 YEARS OF AGE AT THE TIME OF THE

COMMISSION OF THE OFFENSE." N.J.S.A. 2C:44-

1(b)(14). THE TRIAL COURT ALSO ERRED IN

REJECTING DEFENDANT'S REQUEST TO SENTENCE

HIM A DEGREE LOWER, AND ITS FINDINGS OF

AGGRAVATING AND MITIGATING FACTORS WERE

NOT BASED ON COMPETENT, CREDIBLE EVIDENCE

IN THE RECORD.

Defendant also contends in his reply brief that:

THE STATE'S RESPONSE TO DEFENDANT'S POINT I

INCORRECTLY DEPENDS ON "AN ASSESSMENT OF

THE CREDIBILITY OF THE WITNESSES." STATE v.

SAMUELS, 189 N.J. 236, 251 (2007). "BUT CREDIBILITY

IS NOT IN ISSUE WHEN DETERMINING IF A LESSER

INCLUDED OFFENSE INSTRUCTION SHOULD BE

GIVEN." IBID. RATHER, "THE QUESTION AT THAT

STAGE OF THE PROCEEDINGS CENTERS ON THE

EXISTENCE OF EVIDENCE TO SUPPORT THE LESSER

INCLUDED OFFENSE, AND NOT ON ITS WORTH."

IBID.

III.

We first address defendant's contention that the trial court committed plain

error by failing to instruct the jury on the lesser-included crime of

passion/provocation manslaughter sua sponte. It is not disputed that defendant

A-5586-18

19

did not request this instruction at the charge conference. 6 We begin our analysis

by acknowledging the foundational legal principles governing our resolution of

this issue, first regarding jury instructions on lesser-included offenses generally,

and then pertaining specifically to passion/provocation manslaughter.

A.

It is a bedrock principle of our criminal justice system that "[a]ppropriate

and proper charges to a jury are essential for a fair trial." State v. Carrero, 229

N.J. 118, 127 (2017) (quoting State v. Daniels, 224 N.J. 168, 180 (2016)).

Proper jury instructions are "crucial to the jury's deliberations on the guilt of a

criminal defendant." State v. Jordan, 147 N.J. 409, 422 (1997).

In its jury instructions, a "trial court must give 'a comprehensible

explanation of the questions that the jury must determine, including the law of

the case applicable to the facts that the jury may find.'" State v. Baum, 224 N.J.

6

So far as the record shows, the lesser-included offense of passion/provocation

manslaughter was not discussed at all during the charge conference. The

absence of any discussion of passion/provocation manslaughter stands in

contrast to the extensive discussion that took place concerning the lesser-

included offenses of aggravated manslaughter and reckless manslaughter. We

note that defense counsel objected to an instruction on those lesser-included

offenses. Counsel argued, "[b]ut for the record, it's my request that no lesser

included charges should be . . . charged here. And the reason is, Judge, I think

it almost invites the jury to compromise." Cf. State v. Powell, 84 N.J. 305, 317–

18 (1980) (noting "a defendant might oppose [a manslaughter] instruction for a

variety of reasons, including the possibility that it provides a vehicle for a

'compromise' verdict, perhaps lessoning what he [or she] perceives to be a strong

possibility of a verdict of acquittal").

A-5586-18

20

147, 159 (2016) (quoting State v. Green, 86 N.J. 281, 287–88 (1981)).

Accordingly, "the court has an 'independent duty . . . to ensure that the j urors

receive accurate instructions on the law as it pertains to the facts and issues of

each case, irrespective of the particular language suggested by either party.'"

Ibid. (alteration in original) (quoting State v. Reddish, 181 N.J. 553, 613

(2004)).

"[B]ecause correct jury charges are especially critical in guiding

deliberations in criminal matters, improper instructions on material issues are

presumed to constitute reversible error." State v. Jenkins, 178 N.J. 347, 361

(2004) (citing Jordan, 147 N.J. at 421–22). Therefore, an appellate court must

first "determine whether the trial court erred" and, if so, must proceed to

determine "if the mistake 'was clearly capable of producing an unjust result such

that a reasonable doubt is raised as to whether the error led the jury to a result it

otherwise might not have reached.'" Ibid. (quoting State v. Brims, 168 N.J. 297,

306 (2001)).

As our Supreme Court explained in State v. Funderburg, "[a] trial court is

vested with discretion in delivering the jury instructions that are most applicable

to the criminal matter before it." 225 N.J. 66, 80–81 (2016); see also State v.

Ernst, 32 N.J. 567, 583–84 (1960) (citing Hargrave v. Stockloss, 127 N.J.L. 262,

266, (E. & A. 1941)) ("[A] trial judge in his [or her] discretion may give [a jury]

A-5586-18

21

charge in any situation in which he [or she] reasonably believes a jury may find

a basis for its application."). The Court in Funderburg recognized, however,

that some jury instruction decisions—such as the charging of lesser-included

offenses—are governed by statute. Ibid. Specifically, N.J.S.A. 2C:1-8(e)

expressly provides that a trial court "shall not charge the jury with respect to an

included offense [not charged by indictment] unless there is a rational basis for

a verdict convicting the defendant of the included offense." Thus, "to justify a

lesser included offense instruction, a rational basis must exist in the evidence

for a jury to acquit the defendant of the greater offense as well as to convict the

defendant of the lesser, unindicted offense." Ibid. (citing State v. Savage, 172

N.J. 374, 396 (2002)).

One of the general principles underpinning N.J.S.A. 2C:1-8(e) 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." State v.

Muhammad, 182 N.J. 551, 577 (2005) (quoting State v. Garron, 177 N.J. 147,

180 (2003)). The failure to instruct the jury on a lesser-included offense can

pose the risk 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) (emphasis removed) (quoting Keeble v. United States, 412 U.S. 205,

A-5586-18

22

212–13 (1973)). For that reason, trial courts must "avoid presenting the jury

with an 'all-or-nothing' choice, a choice between convicting a defendant of an

offense greater than the one he [or she] committed and not convicting him [or

her] at all despite his [or her] guilt of a lesser offense." State v. Maloney, 216

N.J. 91, 113 (2013) (Albin, J., dissenting) (citing Garron, 177 N.J. at 180).

The law is thus well-settled that in certain circumstances, "[a] trial judge

has [] 'an independent obligation' to instruct the jury on lesser-included charges."

State v. O'Carroll, 385 N.J. Super. 211, 224 (App. Div. 2006) (quoting Jenkins,

178 N.J. at 361). As the Supreme Court made clear in Powell,

very simply, where 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, and

no one's strategy, or assumed (even real) advantage can

take precedence over that public interest . . . . The judge

is more than a referee between contestants. He [or she]

is the law's representative, and it is his [or her] duty to

see that the will of the law is done.

[84 N.J. at 319.]

In Garron, the Court reaffirmed and amplified that foundational principle,

stressing,

[w]e take this occasion to remind trial courts that their

primary obligation is to see that justice is done, and that

a jury is instructed properly on the law and on all

clearly indicated lesser-included offenses, even if at

odds with the strategic considerations of counsel. We

reaffirm that the integrity of the justice system and the

fact-finding process is not subordinate to the singular

A-5586-18

23

interests of the parties. The public interest in a correct

verdict based on the evidence must trump the partisan

strategic maneuvering of both the State and defendant.

[177 N.J. at 180.]

Importantly for purposes of this appeal, the substantive standard for

determining whether an instruction on an included offense is required depends

on whether the trial court was asked by the defendant to provide that instruction,

or whether instead, as in this case, the request for the jury instruction is made

by a defendant for the first time on appeal. There are two decidedly different

standards: a "rational-basis" test when the request for the lesser-included offense

instruction is made by a defendant at trial, and a "clearly-indicated [by the

evidence]" test when a defendant contends for the first time on appeal that the

trial court should have instructed the jury on a lesser-included offense sua

sponte. The distinction between these two standards can be outcome-

determinative and is critical to the resolution of the case before us. 7

7

We note that a footnote to the model jury charge for N.J.S.A. 2C:3-4 could be

read to suggest that the test in all circumstances is whether there is a rational-

basis for a passion/provocation manslaughter instruction. The footnote explains

in pertinent part:

[i]n almost all cases, if such evidence is adduced at

trial, the trial court should charge purposeful murder

and the lesser-included offense of aggravated

manslaughter, reckless manslaughter, and

passion/provocation manslaughter . . . . [I]f there is a

A-5586-18

24

As the Supreme Court explained in State v. Crisantos, "the rational-basis

test of the Code [under N.J.S.A. 2C:1-8(e)] imposes a low threshold" such that

"[w]hen the 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." 102

N.J. 265, 278 (1986) (first citing State v. Sinclair, 49 N.J. 525, 540 (1967); and

then citing Powell, 84 N.J. at 318–19). In contrast, "[i]f parties do not request

a lesser-included-offense charge, reviewing courts 'apply a higher standard,

rational basis for a jury to find that defendant

reasonably believed in the necessity to use force, and

honestly but unreasonably believed that he/she needed

to resort to deadly force to repel the danger that he/she

faced, it could conclude that he/she acted in the heat of

passion resulting from a reasonable provocation, which

would justify submission of passion/provocation

manslaughter as a lesser included offense of murder.

[Model Jury Charges (Criminal), "Justification – Self

Defense: In Self Protection (N.J.S.A. 2C:3-4)" (rev.

June 13, 2011) (emphasis added).]

We believe the underscored portions of this footnote do not reflect the

standard that applies when a defendant does not request a passion/provocation

instruction at trial. As we explain, absent a defendant's request for a

passion/provocation manslaughter instruction, the "clearly-indicated" test, not

the "rational-basis" test, is used to determine if that instruction must be

delivered.

A-5586-18

25

requiring the unrequested charge to be "clearly indicated" from the record.'" 8

State v. Fowler, 239 N.J. 171, 188 (2019) (quoting State v. Alexander, 233 N.J.

132, 143 (2018)); see also State v. Denofa, 187 N.J. 24, 42 (2006).

There are important reasons for applying a more demanding substantive

standard when, as in this case, defendant raises the issue for the first time on

appeal. Our Supreme Court in Funderburg emphasized that "[t]he appropriate

time to object to a jury charge is 'before the jury retires to consider its verdict.'"

225 N.J. at 79. The Court added, "[w]hen a defendant fails to object to an error

or omission at trial, we review for plain error. Under that standard, we disregard

any alleged error 'unless it is of such a nature as to have been clearly capable of

producing an unjust result.'" Ibid. (citing R. 2:10-2). The mere possibility of

an unjust result is not enough. See Jordan, 147 N.J. at 422. As we have already

noted, to warrant reversal of a guilty verdict, an error at trial must be sufficient

8

We note that "[a] trial court's process for determining whether it can instruct

a jury on an uncharged included offense differs depending on whether the State

or the defendant has requested the charge." State v. Brent, 137 N.J. 107, 115

(1994). The Court explained that an included offense charge implicates the

constitutional considerations of the notice and due process rights guaranteed in

Article I, paragraph 8 of the New Jersey Constitution, which provides that "[n]o

person shall be held to answer for a criminal offense unless on the presentment

or indictment of a grand jury." When an included-offense charge is requested

by a defendant, "the law's concern is not notice to the defendant but whether the

evidence provides a rational basis for the charge[.]" Id. at 116.

A-5586-18

26

to raise "a reasonable doubt . . . as to whether the error led the jury to a result it

otherwise might not have reached." Jenkins, 178 N.J. at 361 (citation omitted).

We add that while we retain the "authority to 'notice plain error not

brought to the attention of the trial court[,]' provided it is 'in the interests of

justice' to do so," that authority is "not intended to supplant the obvious nee d to

. . . preserve issues for appeal." State v. [James] Robinson, 200 N.J. 1, 20 (2009)

(quoting R. 2:10-2). Our case law also makes clear that a trial court need not

"scour the statutes to determine if there are some uncharged offenses of which

the defendant may be guilty." Brent, 137 N.J. at 118 (quoting Sloane, 111 N.J.

at 302). Nor does a trial court "have the obligation on its own to meticulously

sift through the entire record in every murder trial to see if some combination of

facts and inferences might rationally sustain a manslaughter charge." State v.

Choice, 98 N.J. 295, 299 (1985). The Court in Funderburg reaffirmed and

stressed this point, "declin[ing] to impose such a burdensome requirement on

trial courts or suggest that every potential lesser-included offense must be

charged to the jury." 225 N.J. at 83. The Court emphasized that "[o]nly if the

record clearly indicates a lesser-included charge—that is, if the evidence is

jumping off the page—must the court give the required instruction." Id. at 81–

82 (quoting Denofa, 187 N.J. at 42).

A-5586-18

27

B.

We turn next to the legal principles that apply specifically to whether and

in what circumstances the crime of passion/provocation manslaughter must be

charged to the jury. A person commits murder when he or she "purposely" or

"knowingly causes death or serious bodily injury resulting in death." N.J.S.A.

2C:11-3(a)(1)–(2). "[A] homicide which would otherwise be murder under

N.J.S.A. 2C:11-3" may be mitigated to the lesser crime of passion/provocation

manslaughter when "committed in the heat of passion resulting from a

reasonable provocation." N.J.S.A. 2C:11-4(b)(2).

Passion/provocation manslaughter is a "well-established lesser-included

offense of murder." Carrero, 229 N.J. at 129 (citing State v. [Alphonso]

Robinson, 136 N.J. 476, 482 (1994)). The passion/provocation offense

"contains all the elements of murder except that the presence of reasonable

provocation, coupled with defendant's impassioned actions, establish a lesser

culpability." Robinson, 136 N.J. at 482 (citation omitted). In other words,

passion/provocation manslaughter "is an intentional homicide committed under

extenuating circumstances that mitigate the murder." Id. at 481 (citation

omitted).

A-5586-18

28

In Crisantos, the Court acknowledged that "passion/provocation can arise

in an infinite number of factual settings." 102 N.J. at 275. In Powell, the Court

noted,

[r]easonable provocation is a legal term of art,

encompassing a range of situations in which a victim

behaves in such a way as to cause a reasonable man [or

woman] to lose his [or her] normal self-control. The

traditional categories of provocative behavior are:

battery, mutual combat, assault, illegal arrest, adultery

and injuries to third persons.

[84 N.J. at 311 n.4 (citation omitted).]

There are four elements of passion/provocation manslaughter: (1) there

must be adequate provocation; (2) "the defendant must not have had time to 'cool

off' between the provocation and the slaying"; (3) "the defendant must have been

actually impassioned by the provocation"; and (4) "the defendant must not have

actually cooled off before the slaying." Funderburg, 225 N.J. at 80 (quoting

State v. Mauricio, 117 N.J. 402, 411 (1990)).

The first two elements are objective—employing a reasonable person

perspective—while the last two elements are subjective. Ibid. In determining

whether the jury should be afforded the option to convict for

passion/provocation manslaughter, the trial court must decide whether there is

sufficient evidence of the first two elements. Importantly for purposes of this

appeal, "[t]o warrant the passion/provocation jury charge, the evidence must

A-5586-18

29

rationally support only the first two elements; the subjective elements 'should

usually be left to the jury to determine.'" Carrero, 229 N.J. at 129 (quoting

Mauricio, 117 N.J. at 413).

To satisfy the first element of attempted passion/provocation

manslaughter, a jury must conclude that a reasonable person in the defendant's

position would have been provoked sufficiently to "arouse the passions of an

ordinary man [or woman] beyond the power of his [or her] control." State v.

King, 37 N.J. 285, 301–02 (1962) (quoting State v. Herrmann, 77 N.J.L. 534,

535–36 (E. & A. 1909)).

The critical issue in this case is whether there was adequate provocation.

The adequacy of provocation is measured by whether "loss of self-control is a

reasonable reaction." State v. Foglia, 415 N.J. Super. 106, 126 (App. Div. 2010)

(quoting Mauricio, 117 N.J. at 412). "The generally accepted rule is that words

alone, no matter how offensive or insulting, do not constitute adequate

provocation to reduce murder to manslaughter." Funderburg, 225 N.J. at 80

(quoting Crisantos, 102 N.J. at 274). In contrast, "battery, except for a light

blow, has traditionally been considered, almost as a matter of law, to be

sufficiently provocative." Robinson, 136 N.J. at 492 (quoting Mauricio, 117

N.J. at 414).

A-5586-18

30

We reiterate and emphasize that under the objective standard that applies

to the first two elements of passion/provocation manslaughter, the adequacy of

provocation is determined by how a reasonable person would have reacted to

the provocation, not by how the defendant actually reacted. The Court in

Mauricio stressed:

We emphasize that the actual reaction of the defendant

is not a consideration at this point in the analysis. It is

irrelevant at this stage whether the defendant in

question did in fact "lose his cool." Neither the trial

court in deciding whether to instruct the jury on the

offense nor the jury in determining whether the offense

of passion/provocation manslaughter applies should

consider at this point how the defendant in fact reacted

to the asserted provocation. Rather, both must limit the

focus to the nature and adequacy of the provocation

itself.

[117 N.J. at 412.]

C.

We next consider whether and in what circumstances evidence that

supports a self-defense instruction will also support a passion/provocation

instruction. We begin this part of our analysis by recognizing the conceptual

and practical differences between these two statutory features. Although the use

of deadly force in self-protection defense may share some characteristics with

passion/provocation manslaughter, these two statutory provisions are markedly

A-5586-18

31

different in several significant respects. Notably, one is an affirmative

justification defense, the other a lesser-included offense of murder.

N.J.S.A. 2C:3-4(a) provides in pertinent part that "the use of force upon

or toward another person is justifiable when the actor reasonably believ es that

such force is immediately necessary for the purpose of protecting himself [or

herself] against the use of unlawful force by such other person on the present

occasion." N.J.S.A. 2C:3-4(b)(2) places additional limits on the use of deadly

force. That statute provides in pertinent part:

(2) The use of deadly force is not justifiable . . . unless

the actor reasonably believes that such force is

necessary to protect himself [or herself] against death

or serious bodily harm; nor is it justifiable if:

(a) The actor, with the purpose of causing death or

serious bodily harm, provoked the use of force against

himself [or herself] in the same encounter;

(b) The actor knows that he [or she] can avoid the

necessity of using such force with complete safety by

retreating . . . except that:

(i) the actor is not obliged to retreat from his [or her]

dwelling, unless he [or she] was the initial aggressor[.]

[N.J.S.A. 2C:3-4(b)(2).]

A comparison of the text of N.J.S.A. 2C:3-4(a) with the text of N.J.S.A.

2C:11-4(b)(2) quickly demonstrates that the affirmative justification defense of

use of force in self-protection is analytically distinct from the mitigated offense

A-5586-18

32

of passion/provocation manslaughter. When the State fails to disprove a claim

of self-defense, the defendant is acquitted of all manner of homicide. The deadly

force that the actor employed, in other words, is found to be justified and lawful.

In stark contrast, when a jury finds the extenuating circumstances of

passion/provocation, the deadly force is unlawful. A conviction for the lesser -

included offense of passion/provocation manslaughter is just that—a conviction

for a serious crime, albeit one that is graded lower than knowing/purposeful

murder. The benefit a defendant receives when passion/provocation is

established, in other words, is not an outright acquittal as when the State fails to

disprove self-defense; rather, a homicide that otherwise would be first-degree

murder is mitigated to manslaughter—a second degree crime subject to NERA.

Aside from producing decidedly different outcomes, the material elements

of these two distinct statutory provisions are not aligned. The right to use deadly

force in self-defense arises only in the face of a perceived threat of death or

serious bodily harm, and such force must be "immediately necessary." The

immediate threat of death or serious bodily harm that justifies the responsive

use of deadly force may, of course, also constitute a reasonable provocation for

purposes of passion/provocation. There are other circumstances, however, that

might cause a reasonable person to lose normal self-control and thus rise to the

level of an adequate provocation. It is certainly possible, for example, that a

A-5586-18

33

jury might find that there was no immediate threat of death or serious bodily

injury to justify the use of deadly force and yet find that the victim's conduct

constituted an adequate provocation to mitigate a murder to passion/provocation

manslaughter. In State v. Bonano, the Court noted in this regard,

If the jury did not credit defendant's testimony that he

believed he was in danger of being killed or seriously

injured, and hence rejected the plea of self-defense, but

nevertheless did believe that [the victim] made the

menacing gesture[—victim drawing his knife while

uttering a threat—]it might properly have considered

such conduct to be adequate provocation to reduce to

manslaughter what would otherwise have been murder.

[59 N.J. 515, 523–24 (1971).]

D.

Accounting for both the similarities and differences between the

passion/provocation and self-defense doctrines, we next address whether and in

what circumstances a passion/provocation manslaughter instruction must be

given in conjunction with a self-defense instruction. In State v. Blanks, the

defendant "argue[d] that a passion/provocation manslaughter charge should

automatically be considered whenever a defendant claims self-defense and there

is a possibility that the jury may find that the defendant overreacted to the

victim's conduct." 313 N.J. Super. 55, 71 (App. Div. 1998). Although we

A-5586-18

34

reversed Blanks' convictions on other grounds, 9 we did not directly address his

argument that the theory of self-defense is invariably intertwined with

passion/provocation manslaughter. We do so now and reject the notion that a

court in a murder prosecution must instruct the jury on passion/provocation

manslaughter whenever self-defense is raised. There is no authority for any such

categorical rule, and we decline to adopt one.

Nonetheless, we recognize that, when applied to real-world violent

encounters, the doctrines of justifiable force in self-defense and

passion/provocation mitigation are not "watertight compartments." Cf. State v.

Smith, 136 N.J. 245, 255 (1994) (O'Hern, J., dissenting) (remarking that "[i]n

short, as our cases have repeatedly explained, the lesser-included-offense

doctrine is not an abstract doctrine of watertight compartments"). Both

doctrines measure a defendant's culpability for causing a death by reference to

the victim's conduct. When a defendant asserts self-defense, he or she has

placed the victim's conduct at issue, and the jury must apply use-of-force

principles to decide whether the victim's conduct contributed to his or her own

death by prompting, dare we say provoking, the justifiable use of deadly force.

9

We noted in Blanks, "[w]e review this aspect of the charge [pertaining to the

failure to instruct on passion/provocation manslaughter] only because other

fundamental flaws in the charge require reversal and a new trial." Ibid.

A-5586-18

35

As we have noted, depending on the circumstances, the justification and

mitigation doctrines can overlap; the same evidence in a murder trial tha t

supports charging the jury on the principles of self-defense may also support an

instruction on the lesser-included offense of passion/provocation manslaughter.

It is not uncommon, after all, that when deadly force is employed by civilians,

the circumstances of the confrontation between the defendant and victim are

emotionally charged and involve heated passions. As a matter of common sense,

in a case where the victim's conduct posed an immediate threat of death or

serious bodily harm to the defendant, the defendant's reaction to that imminent

threat might be influenced as much by impassioned instinct as by a dispassionate

analysis and application of use-of-force principles. Furthermore, in some cases,

the immediate threat of death or serious bodily injury will be accompanied by

an actual battery that has already been committed during the course of the

confrontation. As our Supreme Court "noted[,] . . . 'battery, except for a light

blow, has traditionally been considered, almost as a matter of law, to b e

sufficiently provocative.'" Robinson, 136 N.J. at 492 (quoting Mauricio, 117

N.J. at 414).10

10

We note that in this instance, defendant does not claim that Paulsen ever

stabbed or even touched him before defendant fired the fatal arrow. Rather, the

evidence clearly shows that the victim was at a discrete distance—beyond the

A-5586-18

36

However, the two defense theories do not always co-occur or overlap.

Indeed, in some circumstances, the two theories may be mutually incompatible.

In Funderburg, for example, the State "point[ed] out that a jury instruction

proposing that Funderburg acted out of passion or provocation would indicate

that Funderburg in fact intended to injure Parham 11—not that Funderburg was

trying to defend himself, as Funderburg's counsel argued in his closing

argument." 225 N.J. at 78. 12 The State makes a similar argument in the case

range at which Paulsen could have immediately stabbed defendant with a

syringe—when defendant unleashed deadly force.

11

It bears noting that Funderburg involved a charge of attempted murder and

thus the lesser-included offense of attempted passion/provocation manslaughter.

See Robinson, 136 N.J. at 488–89 (holding that attempted passion/provocation

manslaughter is a lesser-included offense of attempted murder). An attempt

requires a purposeful culpable mental state, even if the completed offense, such

as murder, requires only a "knowing" culpable mental state. See State v. Jones,

242 N.J. 156, 169, 174–75 (2020).

12

Since Funderburg, our Supreme Court has noted that a defendant may be

entitled to a passion/provocation charge regardless of whether that instruction

would be inconsistent with the defendant's theory of self-defense, at least when

the defendant requests a passion/provocation instruction. In Carrero, the trial

court denied defendant's request for a passion/provocation manslaughter

instruction, finding it inconsistent with defendant's own accounts of self -defense

and accidental shooting. The Supreme Court concluded that the trial testimony

presented a rational-basis on which the jury could acquit defendant of murder

but convict him of passion/provocation manslaughter, and accordingly held that

defendant's murder conviction must be reversed. The Court reasoned,

"[a]lthough the passion/provocation charge is inconsistent with defendant's

theories of self-defense and accidental shooting, when the evidence supports []

a [passion/provocation] charge, a defendant may be entitled to the requested

A-5586-18

37

before us, reasoning that defendant testified that he meant only to fire a "warning

shot," and did not mean to strike Paulsen with the arrow.

We conclude that although the theories of justification and mitigation can

overlap, they must be analyzed separately when determining whether a jury

instruction on either or both theories must be delivered. Accordingly, a trial

court's determination that there is an evidential basis for a self-defense jury

charge does not by itself constitute a basis to charge on passion/provocation.

However, we recognize that the potential for these two culpability provisions to

overlap and co-occur arises on a recurring if not frequent basis. Because trial

courts have an independent duty to charge on lesser offenses when the "clearly -

indicated" standard is met, prudence dictates that a trial court should carefully

and explicitly consider whether to afford the jury the option to convict for

passion/provocation manslaughter when the court decides to instruct the jury on

self-defense. We discuss our recommendation for the new procedural rule

requiring such consideration in section IV.

instruction regardless of whether the charge is consistent with the defense." 229

N.J. at 121 (citing Brent, 137 N.J. at 107).

We add that the holding in Carrero further underscores the significant and

potentially outcome-determinative difference between the "rational-basis" and

"clearly-indicated" tests. Indeed, the Court in Carrero stressed the difference

between the two standards when it rejected the State's assertion that "Funderburg

is controlling here." Id. at 127.

A-5586-18

38

E.

Although neither party relies upon or even cites to the Supreme Court's

unanimous decision in Funderburg, we believe that case provides important

guidance on how to apply the "clearly-indicated" standard. In Funderburg, the

defendant was charged with attempting to murder his ex-partner's new

boyfriend, Andrew Parham. Id. at 70. Funderburg and his former girlfriend had

a child together. Ibid. On the day of the violent incident that gave rise to the

case, she and Parham were at Funderburg's house to pick up the baby. Id. at 71.

While Parham was putting the child in the car, Funderburg removed the keys

from the ignition. Id. at 72. Parham chased Funderburg for ten to fifteen

minutes in an effort to reclaim the car keys. Parham eventually stopped chasing

Funderburg and knocked on the front door, hoping Funderburg's mother might

convince her son to return the car keys. Ibid. Finding no one home, Parham

walked back onto the street and asked Funderburg and his brother whether they

wanted to fight. Ibid. They did not respond. Parham walked back to the car

and leaned against it as Funderburg and his brother approached. Ibid. Parham

and Funderburg continued to argue for several minutes as the confrontation

continued to escalate. Ibid. At some point, Funderburg lunged at Parham and

punched him several times in the chest. Ibid. When Parham stepped away, he

A-5586-18

39

realized he had been stabbed. Id. at 73. There was competing testimony on who

had first handled the knife that caused the serious non-fatal wound. Id. at 82.

Funderburg was tried for attempted murder and aggravated assault. Id. at

70. The judge instructed the jury on a number of lesser-included offenses to

aggravated assault. Ibid. However, counsel did not request a charge for the

lesser-included offense of attempted passion/provocation manslaughter, and that

charge was not delivered to the jury. Ibid.

On appeal, the Appellate Division panel reversed Funderburg's conviction

based on the trial court's failure to deliver an instruction for attempted

passion/provocation manslaughter sua sponte. Id. at 75. The Supreme Court

disagreed and reinstated the defendant's attempted murder conviction,

concluding that the panel had "improperly sifted through the cold appellate

record and constructed a hypothetical and factually unsupported scenario in

which Funderburg might have conceivably been adequately provoked." Id. at

70. The Court concluded that the facts before the trial court:

did not clearly indicate that the objective elements of

attempted passion/provocation manslaughter were

present. In particular, there was insufficient evidence

before the jury that a reasonable person in Funderburg's

position would have been adequately provoked by

Parham's behavior. Parham's chase did not threaten

Funderburg; it was simply an attempt to retrieve the car

keys. The chase was preceded by verbal sparring, at

which point Funderburg refused to return the keys.

Thus, this interaction alone did not suggest adequate

A-5586-18

40

provocation. Beyond that, there was insufficient

evidence to suggest that Parham had wielded the knife.

At best, there was a disagreement among the witnesses

about who first handled the knife that later stabbed

Parham. Andrews and Parham both testified that

Funderburg was the first person to reveal a knife. Only

Funderburg's father Leroy testified that Parham

revealed the knife first.

Even if the jury found Leroy's testimony to be the most

credible of all the eyewitnesses, Leroy's statement that

Parham initially held the knife 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.

Ultimately, 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 82 (citation omitted).]

The Court's analysis confirms that the two standards are different in

practical application, not just abstract theory. The "clearly-indicated" standard

that must be met to reverse a conviction for failure to deliver a jury instruction

sua sponte is more demanding than the "rational-basis" standard that applies

when a defendant asks a trial court to instruct the jury on passion/provocation

manslaughter.

The Court's subsequent decision in Carrero reaffirms that the choice of

standards is critical to the analysis and can be outcome-determinative. In that

case, the Court distinguished Funderburg, explaining, "[c]entral to the

A-5586-18

41

distinction is the lack of request for the jury instruction in Funderburg and the

clear request for the jury instruction here." 229 N.J. at 127. The Court in

Carrero stressed, "[h]ere, we apply a different standard—the rational-basis

test—to review the trial court's failure to provide a jury instruction when

defendant requested it." Id. at 127–28.

We therefore read Funderburg to establish a clear principle that must be

applied by appellate courts: when a defendant asks for a passion/provocation

instruction for the first time on appeal—only after the defense trial strategy has

failed—the requisite provocation must be more than "hypothetical."

Funderburg, 225 N.J. at 70. The evidence clearly indicating a reasonable

provocation must "jump[] off the page." Id. at 81–82 (citing Denofa, 187 N.J.

at 42).

F.

We next consider the State's argument that defendant invited the error he

now raises on appeal, in which event we could refuse to consider defendant's

contention rather than apply a plain error standard of review. The State cites to

State v. Williams for the general proposition that "[t]he doctrine of invited error

does not permit a defendant to pursue a strategy . . . and then when the strategy

does not work out as planned, cry foul and win a new trial." 219 N.J. 89, 101

(1984). The State argues that the error defendant now claims on appeal was

A-5586-18

42

invited because defense counsel at the charge conference not only failed to

request a passion/provocation charge but also affirmatively objected to charging

the jury on the lesser-included offenses of aggravated manslaughter and reckless

manslaughter.

Although there was no mention of passion/provocation manslaughter at

the charge conference, counsel, when objecting to jury charges on aggravated

manslaughter and reckless manslaughter, argued that "no lesser included charges

should be charged here." See supra note 6 (emphasis added). This is clearly a

situation where the defense would have preferred that the jury be presented with

an "all-or-nothing" choice. The issue now before us is whether the invited error

doctrine applies in these circumstances. We conclude it does not.

The Supreme Court's analysis and holding in Jenkins provides instruction.

178 N.J. at 347. In that murder case, defense counsel at the charge conference

acknowledged that the facts supported an instruction on the lesser offense of

reckless manslaughter but advised that his client had requested that the court

refrain from charging the jury on lesser-included offenses. Id. at 359–60. The

prosecutor also acknowledged that a conviction for aggravated manslaughter or

reckless manslaughter could be returned on the evidence presented and reminded

the trial court of its independent duty to make that determination irrespective of

A-5586-18

43

the defendant's position. The trial court decided not to instruct the jury on the

lesser-included charges. Id. at 360.

On appeal, the defendant "reversed positions." Id. at 357. He argued that

"notwithstanding his request at trial, the court erred in failing to instruct on [the]

lesser-included offenses of reckless manslaughter and aggravated

manslaughter." Ibid.

Before addressing the substantive merits of the defendant's appellate

contention, the Supreme Court considered whether any error had been "invited."

The Court carefully framed the issue, noting, "we focus on whether a defendant

invites error merely by advocating an erroneous approach or, instead, whether

the court actually must rely on the defendant's position in reaching a result." Id.

at 358. The Court recognized that as a general matter, a "defendant cannot

beseech and request the trial court to take a certain course of action, and upon

adoption by the court, take his [or her] chance on the outcome of the trial, and

if unfavorable, then condemn the very procedure he [or she] sought and urged,

claiming it to be error and prejudicial." Ibid. (quoting State v. Pontery, 19 N.J.

457, 471 (1955)). The Court added,

when a defendant asks the court to take his [or her]

proffered approach and the court does so, we have held

that relief will not be forthcoming on a claim of error

by that defendant. On another occasion, we

characterized invited error as error that defense counsel

has "induced." State v. Corsaro, 107 N.J. 339, 346

A-5586-18

44

(1987). However, we have not decided whether actual

reliance by the court is necessary to trigger the doctrine.

[Ibid.]

The Court then explained that the doctrine of invited error as applied in

criminal cases "is designed to prevent defendants from manipulating the

system." Id. at 359. As a result, the Court reasoned,

the invited-error doctrine . . . is implicated only when a

defendant in some way has led the court into error.

Conversely, when there is no evidence that the court in

any way relied on a defendant's position, it cannot be

said that a defendant has manipulated the system. Some

measure of reliance by the court is necessary for the

invited-error doctrine to come into play.

[Ibid. (citation omitted)].

Applying those general principles to the matter before it, the Court in

Jenkins determined that although the trial court had acceded to the defendant's

request, the trial court's explanation for its decision made clear that it had arrived

at the decision not to instruct on lesser-included offenses "independently of any

invitation or encouragement by defendant." Id. at 360. The Supreme Court

concluded that "the doctrine of invited error does not apply. However, because

defendant did not object to the lack of such an instruction, we will review the

decision not to instruct on lesser-included offenses under a plain-error standard."

Ibid. Ultimately, the Court affirmed the Appellate Division's conclusion that

A-5586-18

45

the failure to deliver the lesser-included charges constituted plain error. Id. at

369.

The matter before us is distinguishable from Jenkins in several respects.

Here, there was no explicit request by defendant that the trial court not charge

the jury on passion/provocation manslaughter—the specific charge that

defendant now argues should have been delivered sua sponte. We decline to

assume that defendant's generic argument not to charge on lesser-included

offenses—which was made in the context of a discussion regarding the lesser-

included offenses of aggravated manslaughter and reckless manslaughter—

somehow influenced the trial court's decision whether to charge on passion -

provocation manslaughter. The trial court in this case could not have relied on

defendant's generic "all-or-nothing" position in deciding whether to charge the

jury on passion/provocation manslaughter for the simple reason that no

"decision" was made with respect to that specific instruction. As we have noted,

the passion/provocation mitigation doctrine was not even mentioned, much less

argued and ruled upon, at the charge conference. We thus conclude that the trial

court did not "actually . . . rely on the defendant's position in reaching a result."

Id. at 358.

In Blanks, we addressed the invited error doctrine in the specific context

of a passion/provocation manslaughter jury instruction. 313 N.J. Super. at 55.

A-5586-18

46

In that case, the defendant contended on appeal that that the trial judge's failure

to deliver a passion/provocation manslaughter charge denied him a fair trial. Id.

at 71. Defendant "acknowledge[d] that he did not request this charge. In fact,

his attorney agreed that the trial judge should not deliver this charge." Ibid. We

remarked,

[w]e would be remiss if we did not express our concern

about the invited error which seems to have occurred in

this matter. Ordinarily, we would refuse to review this

error because defense counsel expressly agreed that a

passion/provocation instruction should not be given.

We review this aspect of the charge only because other

fundamental flaws in the charge require reversal and a

new trial.

[Ibid.]

Blanks is distinguishable from the matter before us because in that case,

defense counsel affirmatively and specifically agreed that the

passion/provocation manslaughter instruction should not be delivered to the

jury. Here, in contrast, defendant did not expressly argue against a

passion/provocation instruction. His silence with respect to any such instruction

is at best a tacit objection that must be extrapolated inferentially from his

objection to other lesser-included-offense charges. In these circumstances, we

decline to invoke the invited error doctrine to the extent that the doctrine might

allow us to refuse to consider the merits of defendant's newly minted contention

applying a plain error standard of review. We are satisfied that the plain error

A-5586-18

47

standard, especially when viewed through the lens of the robust "clearly -

indicated" test, adequately accounts for defendant's apparent strategic

preference for an "all-or-nothing" choice and his failure to broach the specific

issue of whether to instruct the jury on passion/provocation manslaughter. We

reject defendant's contention not because he invited the error he now complains

of but rather because we are convinced that no error was committed in failing to

deliver a passion/provocation instruction based on the evidence that was

adduced at trial.

We do not mean to suggest, however, that the invited error doctrine would

not apply if, for example, a defendant at trial were to argue successfully that a

passion/provocation manslaughter instruction would be incompatible with the

defendant's self-defense theory, see infra note 19, and later "reversed positions"

by claiming that the trial court erred by accepting the defendant's trial argument.

See Jenkins, 178 N.J. at 357. In those circumstances, applying the analysis

spelled out in Jenkins, the invited error rule would indeed apply if the trial court

were to rely on the defendant's argument in deciding not to instruct the jury on

passion/provocation manslaughter. Id. at 359. But that simply did not happen

in this case.

A-5586-18

48

G.

Before we can apply the trial evidence to the "clearly-indicated" test to

decide whether there was an objectively reasonable provocation, we first must

consider how we determine what the relevant facts are since the circumstances

of the confrontation were disputed at trial. The method by which we identify

the evidence to measure against the "clearly-indicated" yardstick is an important

component of the standard of appellate review we must apply when a defendant

claims for the first time on appeal that the trial court failed to deliver a jury

charge sua sponte. By definition, in cases where there was no request for a

passion/provocation manslaughter charge and the issue was not discussed at the

charge conference, the trial court will not have had occasion to make findings

on the record that a reviewing court might rely upon—and defer to—in applying

the "clearly-indicated" test. In those circumstances, it falls upon the reviewing

court to determine what evidence to consider in determining whether the need

for a sua sponte charge on passion/provocation manslaughter was clearly

indicated in the record.

In this instance, defendant asserts in his reply brief that "the State is

essentially arguing that defendant's testimony regarding being provoked and

impassioned is not credible." Defendant contends the State's response violates

the rule established in State v. Samuels, 189 N.J. 236 (2007). We do not agree

A-5586-18

49

with that characterization of the State's argument on appeal. We do agree,

however, that when determining whether the "clearly-indicated" test has been

met, a court should not be concerned with the credibility of the evidence that

might support a jury instruction on a lesser-included-offense. The State argued

at trial that defendant's self-defense claim was fabricated. It was for the jury—

not a trial or appellate court—to decide whether defendant's self-defense

testimony was credible. Accordingly, in determining whether the trial evidence

clearly indicates adequate provocation, we have disregarded the evidence

presented by the State that defendant's self-defense claim was fabricated after

the slaying. See infra subsection H. Rather, for purposes of determining

whether the trial court was obliged to instruct the jury on passion/provocation

manslaughter, we accept defendant's testimony as credible and thus base our

decision on his version of the events that unfolded.

That approach is consonant with the rationale in Samuels, upon which

defendant relies. The Court in Samuels addressed whether the trial court

committed plain error by failing to charge attempted robbery as a lesser-included

offense of armed robbery. Id. at 243. The prosecutor in that case "counter[ed]

[the defendant's] contention with the State's version of the facts." Id. at 251.

The Supreme Court noted,

The problem with the Attorney General's response is

that it depends on an assessment of the credibility of the

A-5586-18

50

witnesses. But credibility is not in issue when

determining if a lesser included offense instruction

should be given. The question at that stage of the

proceedings centers on the existence of evidence to

support the lesser included offense, and not on its

worth.

[Id. at 251–52 (citations omitted).]

We note that in Carrero, the Court used a different formulation to explain

how trial evidence is to be assessed in determining whether a

passion/provocation manslaughter instruction was required. In that case, the

Court explained, "[i]n deciding whether the rational-basis test has been satisfied,

the trial court must view the evidence in the light most favorable to the

defendant." 229 N.J. at 128 (citing Mauricio, 117 N.J. at 412) (emphasis added).

We now consider whether the "most-favorable-to-the-defendant" formulation

should also be used when the "clearly-indicated" test applies. 13

In Mauricio, the Court used broader language than it would later use in

Carrero, explaining, "[w]hen deciding whether to instruct a jury on

passion/provocation manslaughter, a trial court should view the situation in the

13

We note that defendant in his reply brief—which focuses solely on the State's

response to the passion/provocation manslaughter jury charge issue—does not

ask us to apply the most-favorable-to-the-defendant standard in determining

whether the evidence clearly indicates the basis for charging that lesser included

offense. Indeed, defendant does not mention the most-favorable-to-the-

defendant standard of review; rather, defendant relies on the rule announced in

Samuels that "credibility is not in issue when determining if a lesser included

offense instruction should be given." 189 N.J. at 251.

A-5586-18

51

light most favorable to the defendant." 117 N.J. at 412 (emphasis added). The

Court in Mauricio thus did not explicitly limit the most-favorable-to-the-

defendant standard to situations where the issue was "whether the rational-basis

test has been satisfied" as was true in Carrero. However, in Mauricio, the

defendant "contend[ed] that the trial court incorrectly refused to instruct the jury

on passion/provocation manslaughter." Id. at 410. It is thus clear that the

provocation/manslaughter jury charge issue was not raised for the first time on

appeal as plain error. Accordingly, the Court in Mauricio had no occasion to

decide whether the most-favorable-to-the-defendant standard should apply to

cases where the defendant claimed that the trial court failed to instruct on

passion/provocation manslaughter sua sponte, that is, cases where the

heightened "clearly-indicated" standard applies.

We add that the broader language in Mauricio explaining when to use the

most-favorable-to-the-defendant lens was directed specifically and explicitly at

trial courts. See id. at 410 ("a trial court should view the situation in the light

most favorable to the defendant.") (emphasis added). That suggests this

standard is meant to be used when the question whether to instruct a jury on

passion/provocation manslaughter has been addressed at the trial court level, not

when that issue is raised for the first time on appeal as plain error.

A-5586-18

52

We also take note that in Carrero, the most-favorable-to-the-defendant

language appeared at the end of the same paragraph that began with a

recognition that "[t]he rational-basis test sets a low threshold." 229 N.J. at 128;

(citing Crisantos, 102 N.J. at 278). The Court in Carrero took pains to

differentiate between the "rational-basis" and "clearly-indicated" tests in

rejecting the State's assertion that "Funderburg is controlling here." Id. at 127.

Specifically, the Court emphasized:

Despite the similarity in factual circumstances—a

violent interaction preceded by a tense relationship

between two men involved in a romantic triangle—

Funderburg does not direct the outcome here. Central

to the distinction is the lack of request for the jury

instruction in Funderburg and the clear request for the

jury instruction here. We decided Funderburg under a

"clearly indicated" standard of review because it

involved an alleged failure to provide a sua sponte

instruction—the trial court had the obligation to give

the instruction if the evidence "clearly indicated" the

objective elements of the offense. Ibid. Here, we apply

a different standard—the rational-basis test—to review

the trial court's failure to provide a jury instruction

when defendant requested it.

[Id. at 127–28].

It also bears noting that in Funderburg, the Court rejected the defendant's

plain error argument notwithstanding that conflicting evidence had been

presented on whether the defendant or the victim had first wielded the knife.

225 N.J. at 82 (remarking, "[b]eyond that, there was insufficient evidence to

A-5586-18

53

suggest that [the victim] had wielded the knife. At best, there was a

disagreement among the witnesses about who first handled the knife that later

stabbed [the victim]."). That conclusion is inconsistent with the application of

a most-favorable-to-the-defendant standard. More fundamentally, the jump-off-

the-page review emphasized in Funderburg is at odds with the notion that the

trial evidence should be viewed in the light most favorable to the defendant.

It thus appears that the most-favorable-to-the-defendant standard is

reserved for cases where a defendant affirmatively requests a trial court to

instruct on passion/provocation manslaughter, and does not apply when, as in

this case, the issue is raised as plain error. That interpretation of the case law

would suggest yet another substantive difference between the "low threshold"

rational-basis test, Carrero, 229 N.J. at 128, and the more rigorous clearly-

indicated test.

We recognize that from a practical perspective, there may not be a

significant difference between the most-favorable-to-the-defendant formulation

and the formulation employed in Samuels—a plain error case—which instructs

appellate courts to consider only the existence of evidence to support a

passion/provocation charge and not the worth of that evidence. 189 N.J. at 251–

52. In the matter before us, we are satisfied that under either standard the

A-5586-18

54

evidential basis for a passion/provocation instruction is not clearly indicated in

the trial record for reasons we explain in detail in the next subsection.

H.

With the foregoing guiding principles in mind, we proceed next to apply

the "clearly-indicated" test to the evidence that was presented at trial. The

critical issue before us focuses on the first element of the passion/provocation

manslaughter offense, that is, whether there was objectively reasonable

provocation sufficient to arouse the passions of an ordinary person beyond the

power of his or her control. See Carrero, 229 N.J. at 129.

We conclude there was not. We reach that conclusion without having to

meticulously sift through the trial record in search of facts bearing on whether

there had been a reasonable provocation. Cf. Funderburg, 225 N.J. at 82–83

(citing Choice, 98 N.J. at 299). Defendant testified at trial in his own defense.

In this instance, defendant's testimony establishes that Paulsen's conduct did not

constitute an objectively reasonable provocation to mitigate murder. 14

14

Although the absence of a request for a passion/provocation jury instruction

effectively deprived the judge an opportunity to rule on passion/provocation

mitigation during the course of the trial, we note that at sentencing, the judge

commented, "defendant was the one who created the circumstances that led to

the victim's death. He was the one who chose to leave his home when he could

have called the police. He was the one who brought a weapon outside." The

judge added, "If there was any provocation to this crime, it was defendant who

created it." The judge also remarked, "[d]efendant was the one who initiated the

A-5586-18

55

The flaw in defendant's plain error contention, therefore, is not that the

evidence relevant to passion/provocation is buried in the trial record, making it

unduly burdensome for the trial court on its own to have gleaned a basis for

delivering a passion/provocation manslaughter charge. See ibid. Rather,

defendant's plain error argument fails because the version of events he recounted

in his trial testimony does not "jump off the page" in establishing that there was

objectively reasonable provocation. Ibid. Even accepting the credibility of

defendant's testimony, see supra subsection G, his version of the events that

unfolded during the fatal confrontation fails to meet the "clearly-indicated"

standard as to have required a jury instruction on passion/provocation

manslaughter sua sponte.

Indeed, what jumps off the pages of the trial transcript is the absence of

evidence relating to many of the traditional attributes of objectively reasonable

provocation. Notably, for example, there was no evidence of physical fighting

involving defendant and Paulsen. Rather, there were just words between them.

See Crisantos, 102 N.J. at 274 (noting words alone do not constitute adequate

provocation).

encounter . . . . There is no evidence that tends to excuse or justify defendant's

conduct."

A-5586-18

56

In Robinson, testimony was presented that "[the victim], a boxer, punched

defendant once extremely hard on the nose and mouth, and defendant 'buckled'

and 'staggered back.'" 136 N.J. at 479. The Court concluded that "in view of

[the victim's] admittedly powerful blow to defendant's face, we agree that the

facts clearly indicate the objective adequacy of the provocation." Id. at 492.

In the matter before us, in contrast, there is no evidence of any such

physical battery. Defendant was not involved in or even present at the brief

fistfight between Paulsen and DeFilippis. Accordingly, the subsequent one -on-

one encounter between defendant and Paulsen does not fall under the rubric of

either the "battery" or "mutual combat" variants of reasonable provocation. See

Powell, 84 N.J. at 311 n.4 (recognizing battery and mutual combat as two of the

"traditional categories of provocative behavior").

But even if the fatal confrontation between defendant and Paulsen were

charitably characterized as a mutual combat "contest," it certainly was not

waged on equal terms. See State v. Viera, 346 N.J. Super. 198, 215–16 (App.

Div. 2001) (citing Crisantos, 102 N.J. at 274–75) (noting that "although mutual

combat under certain circumstances may constitute adequate provocation and

reduce murder to manslaughter, the contest must be waged on equal terms").

Paulsen was, at most, armed with a syringe that might be impressed into use as

a close-range weapon. Defendant, in contrast, had taken the precaution to arm

A-5586-18

57

himself with a compound bow that was designed to be a deadly weapon, one that

could—and did—kill at distance.

Defendant's decision to retrieve a deadly weapon shows that he was

primed for a violent confrontation. The trial evidence suggests, moreover, that

defendant displayed the weapon, as indicated by the statement attributed to

Paulsen, "What, are you going to shoot me with that?" Defendant testified that

his "original intent was to show [Paulsen] I had a weapon." Defendant, in other

words, made a show of force, presumably to intimidate Paulsen and to induce

him to leave. Indeed, defendant testified that he meant to scare Paulsen. In

these circumstances, it seems fair to say that defendant essentially became the

provocateur of the fatal violence that ensued. See supra note 14 (explaining that

the trial judge reached the same conclusion during the sentencing hearing).

We acknowledge that defendant's testimony, when viewed in context with

DeFilippis' testimony concerning past episodes involving Paulsen, could be

interpreted to suggest that Paulsen may have previously threatened to infect

others with HIV. 15 But what jumps off the page of the trial transcript is that

15

We agree that past conduct and prior interactions between the parties may be

considered in gauging the adequacy of provocation. See Viera, 346 N.J. at 266

(holding a course of conduct, including a prior confrontation between the

defendant and victim, may be considered as part of the totality of the

circumstances in determining whether there was adequate provocation); see also

Funderburg, 225 N.J. at 70–71 (recounting incidents of hostility between the

A-5586-18

58

defendant never testified that on this occasion, Paulsen explicitly threatened to

use a syringe as a weapon. Indeed, defendant never testified that Paulsen had

ever assaulted anyone with a syringe or had ever explicitly threatened to do so.

Nor was there any evidence to suggest that Paulsen had used or threatened to

use a syringe or any other type of weapon during the earlier fight with

DeFilippis. Rather, defendant subjectively assumed the threat from the fact that

Paulsen was approaching him and appeared to have pulled out some object that

defendant assumed was a hypodermic syringe.

By defendant's own account, moreover, the victim was thirty feet away

when he began to approach defendant. Defendant did not testify that Paulsen

was running at him. Rather, defendant testified only that Paulsen was "coming

towards" him. Defendant did not testify that Paulsen had come close enough to

have used a syringe as a weapon. Furthermore, defendant did not testify that

Paulsen was holding the object in his hand as if preparing to strike with it. There

was, in other words, no evidence of a "menacing gesture." Bonano, 59 N.J. at

523–24.

Throughout the confrontation, defendant was yelling at Paulsen. That

circumstance certainly indicates that defendant was agitated. However, the first

defendant and victim that occurred weeks before the altercation that resulted in

the victim's stabbing).

A-5586-18

59

element of passion/provocation manslaughter focuses on the victim's conduct

claimed to be provocative, not on whether defendant's passions were actually

aroused. See Mauricio, 117 N.J. at 412.

We note, finally, that defendant contends there was evidence that he was

"scared" and had "panicked." That argument once again misses the point. At

the risk of undue repetition, we reiterate that the critical threshold question

before us is not whether defendant subjectively lost his capacity for self-control.

Rather, this case hinges on whether the victim's conduct would cause an

objectively reasonable person to lose control.

In any event, our own review of the pertinent trial testimony shows that

the officer who interviewed defendant and testified that he had panicked was not

referring to defendant's decision to use deadly force during the confrontation.

Rather, the trial testimony concerning "panic" relates to defendant's subsequent

decisions to lie to an inquiring neighbor about Paulsen's dire physical condition

and thereafter to discard the bow and arrows at a remote, unconnected location.

For purposes of determining whether a passion/provocation manslaughter

instruction is clearly-indicated, it is irrelevant that defendant may have lost his

capacity for self-control after he realized that he had mortally wounded Paulsen.

Defendant's decision to lie to the neighbor about Paulsen's condition and his

ensuing decision to abandon the crime-weapon in the woods may well show that

A-5586-18

60

he was, by that point, in a state of panic. But those passions and any resultant

loss of self-control are attributable to defendant's alarming conduct, not

Paulsen's.

In view of our conclusion that there was insufficient evidence of adequate

provocation, we need not decide whether there had been an adequate "cooling

off" period. See Funderburg, 225 N.J. at 83 ("Without sufficient evidence to

suggest adequate provocation, there is no need to consider whether a reasonable

person in Funderburg's position would have had time to cool off between the

provocation and [attempted] slaying."). We note that in Robinson, the Court

acknowledged, "it is well-nigh impossible to set specific guidelines in temporal

terms" when determining whether defendant had sufficient time to cool down

between the provocation and the defendant's reaction. 136 N.J. at 492 (quoting

Mauricio, 117 N.J. at 413). The Court nonetheless held that "a half hour [is]

not, as a matter of law, a sufficiently long period of time such that 'no jury could

rationally determine that a reasonable person's inflamed passions might not have

cooled sufficiently to permit the return of self-control.'" Id. at 492 (quoting

Mauricio, 117 N.J. at 415).

In this instance, defendant testified that his one-on-one confrontation with

Paulsen "was all of a matter of a few seconds." It would thus appear that there

was no time at all for any inflamed passions to cool as measured from the

A-5586-18

61

moment of the provocation that defendant now asserts—the victim coming

towards him while holding a presumed syringe—and the moment defendant

fired the arrow. 16 But as Funderburg suggests, a consideration of the adequacy

of a "cooling off" period is unnecessary. Indeed, that analysis seems inapposite

in the absence of an objectively reasonable provocation from which to cool down

from.

In sum, applying the "clearly-indicated" test to the evidence adduced at

trial, we conclude that defendant was not entitled to an instruction on

passion/provocation manslaughter sua sponte.

IV.

The passion/provocation jury charge issue defendant raises on appeal as

plain error arises often enough to warrant a new practice and procedure to

safeguard a defendant's right to a fair trial and to avoid whenever possible the

need to reverse an otherwise valid jury verdict. 17 As our Supreme Court stressed

16

At the sentencing proceeding, the trial judge rejected defendant's request to

apply mitigating factor four, N.J.S.A. 2C:44-1(b)(4) ("[t]here were substantial

grounds tending to excuse or justify the defendant's conduct, though failing to

establish a defense"), reasoning that "[d]efendant was the one who initiated this

encounter. He had ample time to consider an alternative."

17

As we noted at the outset of this opinion, courts in this State are not

infrequently tasked in murder cases to decide whether to instruct the jury on the

lesser-included offense of passion/provocation manslaughter. See, e.g., Carrero,

229 N.J. at 131 (facts were sufficient for passion/provocation charge);

A-5586-18

62

in Funderburg, "[t]he appropriate time to object to a jury charge is 'before the

jury retires to consider its verdict.'" 225 N.J. at 79 (citing R. 1:7-2). It follows

that trial judges, not appellate courts, should decide in the first instance what

jury instructions should be delivered. In making those decisions, moreover, trial

courts should be aided and informed by the arguments of the parties. Indeed,

that is one of the principal reasons for the Court Rule that requires the trial court

to hold a charge conference. R. 1:8-7(b) ("Prior to closing arguments, the court

shall hold a charge conference on the record in all criminal cases."). Trial courts

should not be dissuaded from considering whether to instruct on

passion/provocation mitigation by what the Court in Garron characterized as

Funderburg, 225 N.J. at 82 (defendant was not entitled to passion/provocation

jury charge); State v. Branch, 155 N.J. 317, 329 (1998) (counsel failed to request

passion/provocation jury charge); Robinson, 136 N.J. at 492 (evidence was

sufficient for sua sponte jury charge on attempted passion/provocation

manslaughter); State v. Purnell, 126 N.J. 518, 540–42 (1992) (record did not

indicate need for passion/provocation jury charge); State v. Oglesby, 122 N.J.

522, 535–36 (1991) (record did not support passion/provocation jury charge);

State v. Perry, 124 N.J. 128, 158–59 (1991) (facts did not clearly indicate

appropriateness of jury charges); Mauricio, 117 N.J. at 417–18 (defendant was

entitled to passion/provocation charge); Crisantos, 102 N.J. at 278 n.11 (trial

court did not err in failing to provide jury charge on passion/provocation);

Powell, 84 N.J. at 310; Viera, 346 N.J. Super. at 214 (defendant was entitled to

sua sponte passion/provocation jury charge); Pridgen, 245 N.J. Super. at 250

(charge on passion provocation was required). We list only published cases

where the failure to charge on passion/provocation was raised on appeal. We

do not list unpublished cases that have addressed this recurring issue. See R.

1:36-3 (stating that except in circumstances not relevant here, "no unpublished

opinion shall be cited by any court.")

A-5586-18

63

"partisan strategic maneuvering of both the State and defendant[,]" 177 N.J. at

180, which in this case may have been expressed by the parties' silence.

History shows that counsel in murder cases often determine that their

client's interests would best be served by an "all-or-nothing" verdict. See

Powell, 84 N.J. at 317–18 (recognizing that a defendant "might oppose [a lesser

included manslaughter] instruction for a variety of reasons" including the

possibility of "perhaps lessening what he [or she] perceives to be a strong

possibility of a verdict of acquittal"). Indeed, both parties may prefer to take

their chances on an all-or-nothing verdict, in which event they may choose not

to raise the passion/provocation manslaughter issue with the trial judge. But as

we have emphasized, trial courts have an independent obligation to determine

whether the jury should be given the option to convict on lesser charges. See

Jenkins, 178 N.J. at 361 (holding that even in the absence of a request-to-charge,

"a trial court 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"); see also Powell, 84 N.J. at 317

(noting that "[a]lthough a manslaughter instruction is usually requested by a

defendant . . . it is conceivable that the State could be the party seeking such an

instruction, or the [trial] court could consider delivery of such an instruction on

its own where neither party has made a request therefor").

A-5586-18

64

One of the problems with what might be characterized as a "don't ask/don't

charge" litigation strategy is that it puts the onus entirely on the trial judge to

broach the issue. Furthermore, the parties' strategic silence deprives the judge

the benefit of helpful arguments in marshaling the relevant facts to determine

whether the issue warrants a fulsome discussion. Cf. Powell, 84 N.J. at 311–12

(noting, "[t]he situation was complicated further when the courts were forced to

look to the record themselves (without any request by counsel) for

circumstances that could provide the inference of provocation/passion where an

altercation had taken place."). It is time to bring the decision whether to instruct

on passion/provocation manslaughter out of the shadows and onto the record in

cases where the trial court has already determined that the jury must consider

whether the victim's conduct affects the defendant's culpability under the self -

defense doctrine.

The recurring nature of the provocation/manslaughter jury instruction

issue that was raised in this case for the first time on appeal prompts us to

recommend a new procedural rule designed to enhance the decision-making

process at the trial court level so that courts can better fulfill their independent

obligation to charge a jury on passion/provocation when that instruction is

required to be delivered. We also deem it appropriate to take steps to minimize

the chances that an otherwise valid guilty verdict might have to be reversed for

A-5586-18

65

plain error. Any such reversal and the resultant need to retry a murder case

exacts a toll not only on the parties and the courts, but also on the survivors of

the homicide; victims have a keen interest in the fairness and finality of a trial

verdict. At the risk of stating the obvious, we have an obligation to help ensure

that error is not committed with respect to a passion/provocation jury

instruction, not just to remedy plain error on appeal by vacating a conviction

and remanding for a new trial. 18

18

We note that if a retrial were needed in any case, such as the present one,

where the defendant had been acquitted of murder but convicted of aggrav ated

manslaughter, the defendant could be retried only for aggravated manslaughter

and lesser offenses, not murder. That circumstance would complicate the jury

instructions on retrial to the extent that the passion/provocation manslaughter

offense requires the jury to find that the State proved the elements of

knowing/purposeful murder. In State v. Grunow, the Court held that

passion/provocation manslaughter could be presented at a retrial despite the

initial conviction for aggravated manslaughter. 102 N.J. 133, 149 (1986). The

Court nonetheless acknowledged,

[w]e recognize that our holding on the availability of

passion/provocation to mitigate aggravated

manslaughter will raise practical problems in

presenting the issues to the jury on the retrial since the

defendant cannot be retried for murder. We believe,

however, that if the evidence presented at the retrial

warrants, the court can clarify that passion/provocation

manslaughter may be an available verdict if the jury

finds from the evidence that the State has proven the

elements of that offense beyond a reasonable doubt.

[Ibid.; see also Pridgen, 245 N.J. Super. at 251.]

A-5586-18

66

We therefore deem it prudent that when in a murder prosecution the trial

court determines to instruct the jury on self-defense, the court at the charge

conference conducted pursuant to Rule 1:8-7(b) should also consider and make

specific findings on the record on whether to instruct the jury on the lesser -

included offense of passion/provocation manslaughter, regardless of whether

that instruction was requested by either party. To that end, we recommend that

the Model Criminal Jury Charges Committee consider the advisability of

revising the model jury instructions for murder, aggravated manslaughter,

reckless manslaughter, passion/provocation manslaughter, and self-defense to

include a notation or footnote advising trial judges to consider whether to deliver

the passion/provocation instruction in cases where the judge has determined to

deliver a self-defense instruction.

We emphasize that our recommendation is designed to ensure that the

decision whether to instruct the jury on passion/provocation manslaughter in

addition to self-defense is made with the aid of the arguments of counsel 19 and

We cite these cases to underscore that the best way to avoid the "practical

problems" alluded to in Grunow is to avoid the need for a retrial by ensuring

that the passion/provocation manslaughter issue is addressed correctly in the

first instance by the trial court.

19

A defendant's argument, for example, that a passion/provocation

manslaughter instruction would be inconsistent with his or her self-defense

theory should be presented to the trial court for its consideration. That argument

A-5586-18

67

placed on the record to facilitate appellate review if that should become

necessary. We stress that a passion/provocation instruction will not always be

needed or appropriate in conjunction with a self-defense instruction. A trial

court's ultimate decision of whether to instruct on passion/provocation

manslaughter will depend on a careful analysis of the specific circumstances of

the case and the arguments of the parties. We also wish to make clear that we

do not mean to alter the "clearly-indicated" standard that applies when the

defendant has not requested the passion/provocation manslaughter charge or

objects to it. See Funderburg, 225 N.J. at 81 ("When the parties to a criminal

proceeding do not request that a lesser-included offense such as attempted

passion/provocation manslaughter be charged, the charge should be delivered to

the jury only when there is 'obvious record support for such [a] charge.'")

(citation omitted); see also supra note 8 (discussing when the request for the

instruction is made by the State). Accordingly, a trial court should apply the

"clearly-indicated" standard if, at the charge conference, the defendant objects

to a passion/provocation manslaughter instruction. The new practice we

recommend is designed only to ensure that the applicable standard—whichever

should not be broached for the first time on appeal by the prosecutor, as was

necessary in Funderburg, 225 N.J. at 78; see also supra note 12.

A-5586-18

68

that may be—is applied in the first instance by the trial court before a verdict is

rendered, rather than by an appellate court reviewing a cold record.

V.

We next address defendant's contention that the trial court erred in

instructing the jury on the legal principles of self-defense. Defendant contends

that the charge on self-defense was incomplete and inadequate because the court

instructed the jury that a person has a duty to retreat before employing deadly

force but did not instruct the jury that a person is not obliged to retreat from his

or her own dwelling unless he or she was the aggressor. Defendant did not

request that specific instruction at the charge conference. Nor did he object to

the use-of-force charge that was delivered. 20

Because this issue was not raised at the charge conference, the judge had

no occasion to make specific findings with respect to the proximity of the fatal

confrontation to the house in which defendant resided. Defendant contends on

appeal that, "[f]rom this record, 21 there was sufficient evidence that Paulsen was

shot on defendant's driveway, close to the shed, and that the driveway was part

20

The record shows that Judge Ragonese delivered thorough and accurate

instructions on the principles of self-defense, tracking the pertinent model jury

charges as agreed at the charge conference.

21

Defendant refers to the videotaped re-enactment that he performed for police,

and to his trial testimony recounting his version of events.

A-5586-18

69

of the home's curtilage." We accept, for purposes of argument, that the incident

occurred on or near defendant's driveway. Notably, defendant does not claim

on appeal that the fatal confrontation occurred on a porch or entranceway of a

structure that was used as a home or lodging. Rather, the fundament of his

argument on appeal is that the driveway is part of the home's "curtilage" and

thus is included within the rubric of a dwelling for purposes of the duty to retreat.

We reject defendant's legal argument and, accepting his version of the facts,

conclude that the fatal confrontation between defendant and Paulsen occurred

outside the geographic scope of defendant's "dwelling" as that term is used in

N.J.S.A. 2C:3-4(b)(2)(b)(i).

A.

As we have already explained, when there is no objection to the jury

charge, the standard of review on appeal is plain error. Funderburg, 225 N.J. at

79; R. 2:10-2. "[P]lain error requires demonstration of 'legal impropriety in the

charge prejudicially affecting the substantial rights of the defendant and

sufficiently grievous to justify notice by the reviewing court and to convince the

court that of itself the error possessed a clear capacity to bring about an unjust

result.'" State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54

N.J. 526, 538 (1969)). As our Supreme Court recently reaffirmed in State v.

Montalvo, when a defendant does not object to the jury charge, "there is a

A-5586-18

70

presumption that the charge was not error and was unlikely to prejudice ...

defendant's case." 229 N.J. 300, 320 (2017) (quoting State v. Singleton, 211

N.J. 157, 181–82 (2012)). When determining whether the plain error standard

has been met, moreover, the charge must be read as a whole, and the error "must

be evaluated in light of the totality of the circumstances—including all the

instructions to the jury, [and] the arguments of counsel." State v. Adams, 194

N.J. 186, 207 (2008) (alteration in original) (quoting State v. Marshall, 123 N.J.

1, 145 (1991)).

Under New Jersey law, the use of deadly force is not justifiable in self -

defense if the "actor knows that he can avoid the necessity of using such force

with complete safety by retreating" except that the "actor is not obliged to retreat

from his [or her] dwelling, unless he [or she] was the initial aggressor." N.J.S.A.

2C:3-4(b)(2)(b)(i). We are tasked in this appeal to determine (1) the meaning

of the statutory phrase "from his [or her] dwelling," and (2) whether the

confrontation between defendant and Paulsen occurred within or appurtenant to

a dwelling as to require that the jury be instructed on this exception to the

general duty to retreat before employing deadly force.

The term "dwelling" is not defined in N.J.S.A. 2C:3-4(b)(2)(b)(i) nor in

any other subsection or paragraph of N.J.S.A. 2C:3-4. However, it bears noting

that the term also is used in N.J.S.A. 2C:3-4(c), which addresses the duty to

A-5586-18

71

retreat from a threat posed by an intruder. 22 We believe the term dwelling is

intended to have same meaning in both N.J.S.A. 2C:3-4(b)(2)(b)(i) and N.J.S.A.

2C:3-4(c). These two statutory provisions appear in the same section of Title

2C that explains when force may be used in self-protection. The two provisions

are, without question, closely related; both pertain to the circumstances when

persons are authorized to stand their ground while in their dwellings. See

DiProspero v. Penn, 183 N.J. 477, 492 (2005) (first citing Lane v. Holderman,

23 N.J. 304, 313 (1957); and then citing Chasin v. Montclair State Univ, 159

N.J. 418, 426–27 (1999)) ("We ascribe to the statutory words their ordinary

meaning and significance, and read them in the context with related provisions

so as to give sense to the legislation as a whole."); see also State v. Rolon, 199

N.J. 575, 589 (2009) (Long, J., concurring) (citing Oldfield v. N.J. Realty Co.,

1 N.J. 63, 69 (1948)) ("[W]here the Legislature uses the same language more

22

N.J.S.A. 2C:3-4(c)(1) provides:

Notwithstanding the provisions of N.J.S. 2C:3-5, N.J.S.

2C:3-9, or this section [N.J.S.A. 2C:3-4], the use of

deadly force upon or toward an intruder who is

unlawfully in a dwelling is justifiable when the actor

reasonably believes that the force is immediately

necessary for the purpose of protecting himself [or

herself] or other persons in the dwelling against the use

of unlawful force by the intruder on the present

occasion.

A-5586-18

72

than once in a statute, the same meaning will be ascribed to each usage unless

the Legislature has specifically indicated otherwise."). Accordingly, published

cases that explain the scope of the use-of-force-against-an-intruder provision,

N.J.S.A. 2C:3-4(c), are relevant and persuasive in explaining the scope of

N.J.S.A. 2C:3-4(b)(2)(b)(i).

B.

We begin our survey of the relevant precedents by highlighting the model

jury instruction for N.J.S.A. 2C:3-4(c), which provides helpful guidance as to

the meaning of the term "dwelling." 23 See State v. Whitaker, 402 N.J. Super.

495, 513–14 (App. Div. 2008) (citing State v. Angoy, 329 N.J. Super. 79, 84

(App. Div. 2000)) (acknowledging that trial courts may rely on model jury

charges and that following a model charge "is a persuasive argument in favor

the charge as delivered"). That model charge explains that a "dwelling" is "any

building or structure though movable or temporary, or a portion thereof, which

is used as a person's home or place of lodging." Model Jury Charges (Criminal),

"Justification – Use of Force Upon an Intruder (N.J.S.A. 2C:3-4(c))" (rev. Sept.

23

We note that the model jury charge for N.J.S.A. 2C:3-4(b)(2)(b)(i) provides

consistent but less detailed guidance on the meaning of the term "dwelling."

That model instruction provides simply: "[CHARGE WHERE

APPLICABLE: A dwelling includes a porch or other similar structure.]" Model

Jury Charges (Criminal), "Justification – Self Defense: In Self Protection

(N.J.S.A. 2C:3-4)" (rev. June 13, 2011) (emphasis in original).

A-5586-18

73

12, 2016). The model charge for N.J.S.A. 2C:3-4(c) further explains that

"dwelling includes the entranceway of a building or structure" and also "includes

a 'porch or similar appurtenance.'" Ibid. The model jury charge cites as

authority our decisions in State v. Martinez, 229 N.J. Super. 593 (App. Div.

1989) and State v. Bilek, 308 N.J. Super. 1 (App. Div. 1998).

In Martinez, we held that for purposes of N.J.S.A. 2C:3-4(c), the term

"dwelling" includes the threshold of the house, such as the porch or front door.

229 N.J. Super. at 604. In Bilek, we held that a "dwelling" includes the doorway

or entranceway of an apartment. 308 N.J. Super. at 12. So far as we are aware,

no judicial decision has interpreted either N.J.S.A. 2C:3-4(c) or N.J.S.A. 2C:3-

4(b)(2)(b)(i) to apply to an altercation that occurs entirely outdoors at a location

that is not on or at the entranceway to a structure.

C.

Defendant urges us to interpret the word dwelling more expansively to

encompass any part of the so-called "curtilage" of a house. Curtilage is a Fourth

Amendment concept that defines the geographic scope of the heightened privacy

protections that are associated with a home. Those constitutional privacy

protections may in certain circumstances be extended outside a house to

walkways, driveways, and porches. See State v. Domicz, 188 N.J. 285, 302

(2006) (emphasis added) (citing State v. Johnson, 171 N.J. 192, 208–09 (2002))

A-5586-18

74

("Curtilage is land adjacent to a home and may include walkways, driveways,

and porches.").

We decline defendant's invitation to rely on Fourth Amendment principles

to expand the scope of the term dwelling for purposes of authorizing d eadly

force pursuant to N.J.S.A. 2C:3-4(b)(2)(b)(i). The Fourth Amendment and its

state constitutional counterpart—Article I, paragraph 7 of the New Jersey

Constitution—serve a different purpose than the statutory framework that

explains when a person is justified in using deadly force. The Fourth

Amendment and Article I, paragraph 7, protect against liberty and privacy

incursions by the government in the form of arrests, searches, and seizures.

These constitutional provisions do not protect against intrusions by private

actors. See State v. Navarro, 310 N.J. Super. 104 (App. Div. 1998) (holding that

the Fourth Amendment applies only to government actions and not to

unreasonable searches conducted by a landlady). Ultimately, the scope of the

dwelling exception to the general duty to retreat before employing deadly force

is defined by statute, not by Fourth Amendment principles.

We find support for our conclusion that N.J.S.A. 2C:3-4(b)(2)(b)(i) does

not extend throughout the curtilage of a home in Bonano, 59 N.J. at 515. That

pre-code case interpreted and applied the duty-to-retreat principles that are now

A-5586-18

75

codified in N.J.S.A. 2C:3-4(b)(2)(b)(i) and N.J.S.A. 2C:3-4(c).24 In Bonano, the

Supreme Court examined the so-called "castle doctrine," which is the common

law exception to the general rule that a person must retreat when it is reasonably

safe to do so before using deadly force for self-protection or the protection of

others. The Court in Bonano relied on our State's predecessor general self-

defense statute, N.J.S.A. 2A:113-6, and on common law principles exempting

the general duty to retreat when using protective force in one's own home. The

Court quoted our then-recent observation in State v. Provoid, 110 N.J. Super.

547, 554 (App. Div. 1970), that "the majority of jurisdictions in this country

have concluded the privilege of self-defense without retreat extends to anywhere

within the 'curtilage' of a man's [or woman's] home." 59 N.J. at 520.

The Bonano Court remarked, "[t]his is, indeed, the majority view, and yet

one may question its soundness." Ibid. The Court went on to stress that

"'[c]urtilage' is not a term that can in all cases be precisely defined," and then

posed the rhetorical question, "[m]ight not the better rule be that a duty to retreat

should exist except as to the dwelling house itself, defined, as stated above, to

include a porch or other similar appurtenance?" Ibid. The Court concluded,

24

N.J.S.A. 2C:3-4(a) and (b) were enacted in 1978 as part of the original version

of the New Jersey Code of Criminal Justice (penal code), N.J.S.A. 2C:1-1 to

104-9 (L. 1978, c. 95). N.J.S.A. 2C:3-4(c) was enacted in 1987. L. 1987, c.

120, § 1.

A-5586-18

76

"[t]his case does not raise the issue and we leave its resolution to another day."

Ibid. The Court nonetheless made clear, "[a]t this time, however, we limit our

acceptance of this [castle] rule to those cases where the defendant is actually in

his dwelling house. A porch or other similar physical appurtenance is deemed

to come within this concept." Ibid. (emphasis added).

We share the Bonano Court's concern that the term "curtilage" is not well-

defined. Grafting the amorphous and potentially complex 25 curtilage concept

into the definition of the term dwelling for purposes of N.J.S.A. 2C:3-

4(b)(2)(b)(i), therefore, might introduce uncertainty and ambiguity to the penal

code. For example, if we accepted the broad interpretation of dwelling that

defendant proposes, would the exception to the general duty to retreat apply to

25

In Domicz, our Supreme Court noted:

Whether the Fourth Amendment safeguards an area of

curtilage depends on a consideration of various factors,

including whether the area is included within an

enclosure surrounding the home, the nature of the uses

to which the area is put, and the steps taken by the

resident to protect the area from observation by people

passing by. An area within the curtilage to which the

public is welcome, such as a walkway leading to an

entrance to a home, is not afforded Fourth Amendment

protection because the resident has given implicit

consent to visitors to approach the home that way.

[188 N.J. at 302 (citations and quotations omitted).]

A-5586-18

77

the entire length of a driveway, extending to the apron that abuts a public

sidewalk or street? Would it extend to the entire area of a back or side yard,

reaching to and terminating at the unmarked boundary of a neighbor's yard? Or

is there an invisible line on a driveway or backyard—fixed somewhere between

the point closest to the house and the outer boundaries of the property line —

where the circumstances in which deadly force is authorized abruptly changes?

We leave that type of line-drawing to the Legislature and decline to interpret

this use-of-force provision of the penal code in a way that might render it

impermissibly vague. Cf. State v. Dillihay, 127 N.J. 42, 52 (1992) (quoting

State v. Profaci, 56 N.J. 346, 350 (1970)) (noting that "[e]ven though a statute

may be open to a construction which would render it unconstitutional or permit

its unconstitutional application, it is the duty of this Court to so construe the

statute as to render it constitutional if it is reasonably susceptible to such

interpretation"). It is one thing for trial and appellate courts to determine the

amorphous boundaries of a home's curtilage when deciding motions to suppress

evidence. It is another thing to import that complex and subjective legal

construct into the penal code as an element of an affirmative defense that must

be explained to a jury.

The Legislature presumably was aware of the concerns raised in Bonano

when it enacted N.J.S.A. 2C:3-4(b)(2)(b)(i) in 1978 and N.J.S.A. 2C:3-4(c) in

A-5586-18

78

1987. See DiProspero, 183 N.J. at 494. Notably, the Legislature did not employ

the term curtilage in the penal code. Rather, the Legislature enacted a

formulation in N.J.S.A. 2C:3-4 aligned with the more narrowly-crafted holding

in Bonano. See id. at 294–95 ("The Legislature knows how to incorporate into

a new statute a standard articulated in a prior [judicial] opinion.").

We add that N.J.S.A. 2C:1-1(e) expressly provides that, "[t]he provisions

of the [penal] code not inconsistent with those of prior laws shall be construed

as a continuation of such laws." Applying that principle of statutory

construction, we interpret the geographic scope of the term dwelling in N.J.S.A.

2C:3-4(b)(2)(b)(i) to have the same meaning as was used in the common law

duty-to-retreat principles and predecessor use-of-force statute, N.J.S.A. 2A:113-

6, that were interpreted in Bonano.

We are thus satisfied that Martinez and Bilek were correctly decided and

we see no reason to part company with the thoughtful analysis in those cases.

Nor has the Legislature seen fit to overturn those decisions by expanding the

term dwelling to include outdoor areas such as a backyard or driveway. In

DiProspero, our Supreme Court recognized that "the Legislature is presumed to

be aware of judicial construction of its enactments." 183 N.J. at 494 (quoting

N.J. Democratic Party, Inc. v. Samson, 175 N.J. 178, 195 n.6 (2002)). Relatedly,

"the Legislature knows how to incorporate into a new statute a standard

A-5586-18

79

articulated in a prior [judicial] opinion." Id. at 494–95; see also State v. Thomas,

166 N.J. 560, 567–68 (2001) (citing State v. Wilhalme, 206 N.J. Super. 359, 362

(App. Div. 1985), superseded by statute, N.J.S.A. 2C:43-7.2(d), as recognized

in Rutgers Cas. Ins. Co. v. LaCroix, 194 N.J. 515, 532 (2008)) ("Under

applicable canons of statutory construction, when the Legislature uses words in

a statute that previously have been the subject of judicial construction, the

Legislature will be deemed to have used those words in the sense that has been

ascribed to them.").

D.

We next apply the Bonano/Martinez/Bilek interpretation of "dwelling" to

the facts adduced at trial. The trial evidence, including defendant's version of

events as related in his trial testimony, clearly shows that he did not shoot the

arrow at Paulsen while either of them was on or in a porch, front door, or

entryway. Rather, as we have noted, defendant on appeal claims that Paulsen

was shot on the driveway, close to the shed. In these circumstances, we do not

believe the confrontation between them occurred within or appurtenant to

defendant's dwelling for purposes of N.J.S.A. 2C:3-4(b)(2)(b)(i). Given that

conclusion, we need not address whether defendant was the "initial aggressor"

for purposes of applying N.J.S.A. 2C:3-4(b)(2)(b)(i) (the "actor is not obliged

to retreat from his [or her] dwelling, unless he [or she] was the initial

A-5586-18

80

aggressor").26 Accordingly, the trial court did not err, much less commit plain

error, by failing to instruct the jury on this inapposite use-of-force principle sua

sponte.

VI.

We turn next to defendant's contention that the trial court delivered

incomplete and inadequate instructions to the jury on the principles of causation

as set forth in N.J.S.A. 2C:2-3. That statute reads in its entirety:

a. Conduct is the cause of a result when:

(1) It is an antecedent but for which the result in

question would not have occurred; and

(2) The relationship between the conduct and result

satisfies any additional causal requirements imposed by

the code or by the law defining the offense.

b. When the offense requires that the defendant

purposely or knowingly cause a particular result, the

actual result must be within the design or

contemplation, as the case may be, of the actor, or, if

not, the actual result must involve the same kind of

injury or harm as that designed or contemplated and not

be too remote, accidental in its occurrence, or

dependent on another’s volitional act to have a just

bearing on the actor’s liability or on the gravity of his

offense.

c. When the offense requires that the defendant

recklessly or criminally negligently cause a particular

26

We note in the interest of completeness that Judge Ragonese remarked at

sentencing that "[d]efendant was the one who initiated the encounter" and that

"[i]f there was any provocation to this crime, it was defendant who created it."

A-5586-18

81

result, the actual result must be within the risk of which

the actor is aware or, in the case of criminal negligence,

of which he should be aware, or, if not, the actual result

must involve the same kind of injury or harm as the

probable result and must not be too remote, accidental

in its occurrence, or dependent on another’s volitional

act to have a just bearing on the actor’s liability or on

the gravity of his offense.

d. A defendant shall not be relieved of responsibility for

causing a result if the only difference between what

actually occurred and what was designed, contemplated

or risked is that a different person or property was

injured or affected or that a less serious or less

extensive injury or harm occurred.

e. When causing a particular result is a material element

of an offense for which absolute liability is imposed by

law, the element is not established unless the actual

result is a probable consequence of the actor’s conduct.

Judge Ragonese charged the jury with respect to each homicide offense

that the State had to prove beyond a reasonable doubt to show defendant caused

Paulsen's death. The judge instructed the jury that "[y]ou must find that Kereti

Paulsen would not have died but for defendant's conduct." The judge also

instructed the jury that, "[w]hether the killing is committed purposely or

knowingly, causing death or serious bodily injury resulting in death must be

within the design or contemplation of the defendant."

Defendant contends that these instructions on causation were insufficient

and that the trial judge committed plain error by failing to deliver what defendant

A-5586-18

82

characterizes as the "full" jury charge on causation sua sponte. 27 Defendant does

not dispute that he did not request the trial court to deliver that model jury

27

Defendant refers to the model jury charge on causation that reads, in pertinent

part:

Causation has a special meaning under the law. To

establish causation, the State must prove two elements,

each beyond a reasonable doubt:

First, but for the defendant's conduct, the result in

question would not have happened. In other words,

without defendant’s actions the result would not have

occurred.

[WHEN PURPOSEFUL OR KNOWING

CONDUCT INVOLVED]

Second, the actual result must have been within the

design or contemplation of the defendant. If not, it

must involve the same kind of injury or harm as that

designed or contemplated, and must also not be too

remote, too accidental in its occurrence or too

dependent on another’s volitional act to have a just

bearing on the defendant's liability or on the gravity of

his/her offense.

[WHEN RECKLESS OR NEGLIGENT CONDUCT

INVOLVED]

Second, [for reckless conduct] that the actual result

must have been within the risk of which the defendant

was aware. If not, it must involve the same kind of

injury or harm as the probable result and must also not

be too remote, too accidental in its occurrence or too

dependent on another’s volitional act to have a just

A-5586-18

83

charge. Nor does he dispute that he did not object to the causation instructions

that were delivered.

A.

We begin our analysis by acknowledging that the "full" causation jury

instruction is not required in all cases. We note in this regard that the model

jury charge for murder provides judges with two distinct options for charging

on causation: one consisting of a single sentence to be used "if causal

relationship between conduct and result is not an issue," 28 and a longer option,

bearing on the defendant's liability or on the gravity of

his/her offense.

Second, [for negligent conduct] that the actual result

must have been within the risk of which the defendant

should have been aware. If not, it must involve the

same kind of injury or harm as the probable result and

must also not be too remote, too accidental in its

occurrence or too dependent on another’s volitional act

to have a just bearing on the defendant's liability or on

the gravity of his/her offense.

[Model Jury Charges (Criminal), "Causation (N.J.S.A.

2C:2-3)" (approved June 10, 2013) (emphasis in

original).]

28

The first causation option in the model jury charge for murder reads:

"Whether the killing is committed purposely or knowingly, causing death or

serious bodily injury resulting in death must be within the design or

contemplation of the defendant." As noted, the trial judge read this option

verbatim to the jury.

A-5586-18

84

reproducing the relevant text of N.J.S.A. 2C:2-3, "if causal relationship between

conduct and result is an issue." Model Jury Charge (Criminal), "Murder

(N.J.S.A. 2C:11-3(a)(1) and 3(a)(2))" (rev. June 14, 2004) (emphasis in

original); see supra note 27 (reproducing the long version of the model causation

instruction). In this instance, Judge Ragonese read verbatim the language in the

model murder charge that applies when the causal relationship between conduct

and result is not at issue. 29 Cf. Whitaker, 402 N.J. Super. at 513–14 (quoting

Angoy, 329 N.J. Super. at 84) (explaining that "[w]hen a jury instruction follows

the model jury charge, although not determinative, 'it is a persuasive argu ment

in favor of the charge as delivered'").

The notion that a jury instruction on legal causation is not required when

causation is not raised as an issue at trial is consistent with comments to the

Model Penal Code provision after which N.J.S.A. 2C:2-3 is modelled. The

29

We also note that Judge Ragonese properly charged the jury as to reckless

manslaughter and aggravated manslaughter. In doing so, Judge Ragonese read

verbatim the language in the model jury charges for when the causal relationship

between the conduct and result is not an issue. See Model Jury Charges

(Criminal), "Reckless Manslaughter (N.J.S.A. 2C:11-4(b)(1)" (rev. Mar. 22,

2004) (emphasis in original) ("If causal relationship between conduct and

result is not an issue, charge the following: You must find that (insert victim's

name) would not have died but for defendant's conduct."); Model Jury Charges

(Criminal), "Aggravated Manslaughter (N.J.S.A. 2C:11-4(a))" (rev. Mar. 22,

2004) (emphasis in original) ("If causal relationship between conduct and

result is not an issue, charge the following: You must find that (insert victim's

name) would not have died but for defendant's conduct.").

A-5586-18

85

drafters of the Model Penal Code noted that the causation provision "treats but -

for causation as the causal relationship that is normally sufficient, viewing this

as the simple, pervasive meaning of causation in the penal law." Model Penal

Code and Commentaries § 2.03 cmt. 2 at 257–58 (Am. L. Inst. 1985). The 1971

commentary to N.J.S.A. 2C:2-3 recites almost identical language, noting that

the statute "treats but-for cause as the causality relationship that normally should

be regarded as sufficient, in the view that this is the simple, pervasive meaning

of causation that is relevant for purposes of penal law." N.J.S.A. 2C:2-3 cmt. 3

(1971).

B.

The critical threshold question before us is whether the cause of Paulsen's

death was contested at trial and thus genuinely at issue. Defendant emphasizes

on appeal that N.J.S.A. 2C:2-3 and the model jury charge on causation refer to

a "result . . . not [] too remote, too accidental in its occurrence or too dependent

on another's volitional act to have a just bearing on the defendant's liability or

on the gravity of his/her offense." (emphasis supplied by defendant). Defendant

now argues that his testimony that he "lost his balance and ended up shooting"

supports a finding by the jury that he fired the arrow accidentally, thereby

automatically putting causation at issue.

A-5586-18

86

We disagree. For one thing, defendant's newly minted argument on appeal

ignores that he expressly and unambiguously testified at trial that he did not

shoot the arrow accidently, but rather did so intentionally as a warning shot.

Furthermore, defendant's argument conflates the fact-sensitive issue of whether

and to what degree he acted culpably in firing the arrow with the analytically

distinct question of whether his actions caused Paulsen's death. Defendant's

testimony concerning the awkward manner in which he claims to have

discharged the bow clearly supports the notion that his actions were reckless and

that he did not purposely or knowingly kill Paulsen. 30 Indeed, the jury ultimately

acquitted defendant of knowing/purposeful murder but found him guilty of the

lesser-included offense of aggravated manslaughter, which requires a reckless

culpable mental state. N.J.S.A. 2C:11-4(a)(1). But even accepting defendant's

version as true, any miscue in aiming the weapon did not affect the chain of

causation between the release of the arrow and the mortal wound that resulted

from that criminal act. Defendant's argument misconstrues the plain text of

N.J.S.A. 2C:2-3 by ignoring that the phrase "not too . . . accidental in its

30

As we have noted, Judge Ragonese instructed the jury on the lesser-included

offenses of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and reckless

manslaughter, N.J.S.A. 2C:11-4(b)(1). Both of these lesser-included offenses

require a reckless culpable mental state in contrast to the knowing or purposeful

mental culpability states required for the crime of murder for which defendant

was indicted. Defendant on appeal does not argue that the jury was improperly

instructed as to the meaning of "reckless" conduct.

A-5586-18

87

occurrence" refers to the "actual result," not to the voluntary act element of the

offense. See N.J.S.A. 2C:2-1(a) (providing in pertinent part that "[a] person is

not guilty of an offense unless his [or her] liability is based on conduct which

includes a voluntary act or the omission to perform an act of which he [or she]

is physically capable").

When causation is genuinely at issue, the specific causation requirement

prescribed in N.J.S.A. 2C:2-3 must be interpreted in the context of the culpable

mental state required for the offense. As the plain text of N.J.S.A. 2C:2-3 makes

clear, the standard for legal causation in cases where the offense requires that

the defendant purposely or knowingly caused a particular result is different from

the legal causation standard that applies when the offense requires that the

defendant recklessly or negligently caused a particular result. The fact that the

culpable mental state applies to all of the material elements of the offense,

including the result element, 31 does not mean, however, that causation is

automatically at issue when a defendant acts recklessly or negligently. As the

commentators to the Model Penal Code noted, "the Code proceeds on the

assumption that issues of this sort ought to be dealt with as problems of the

culpability required for conviction and not as problems of 'causation.'" Model

31

See N.J.S.A. 2C:2-2(a) and N.J.S.A. 2C:2-2(c)(1), providing that the culpable

mental state applies to all the material elements of the offense, including the

conduct (voluntary act or omission) and the result of the conduct.

A-5586-18

88

Penal Code § 2.03 cmt. 2 at 258 (Am. L. Inst. 1985). Accordingly, we interpret

the statutory phrase "not too . . . accidental in its occurrence" to address whether

the actual result of a defendant's conduct is fortuitous, not whether the defendant

acted purposefully, knowingly, recklessly, or negligently in using deadly force.

C.

We need not repeat in this section the case law we have already discussed

that explains the contours of the plain error standard of review that applies when

a defendant challenges jury instructions for the first time on appeal. We now

add to that discussion analyses of three cases in which guilty verdicts were

reversed on appeal as plain error specifically because the trial courts failed to

deliver adequate jury instructions on causation. We do so to shed light on when

the relationship between a defendant's conduct and the resultant harm of that

conduct is deemed to be at issue. 32

In State v. Green, the defendant was charged with aggravated assault of a

police officer. 318 N.J. Super. 361, 365–66 (App. Div. 1999), aff'd o.b., 163

N.J. 140 (2000). The officer, who was in plain clothes but was wearing a jacket

marked "police," approached the defendant's vehicle, displayed his badge, and

told the defendant he would like to speak with him. Id. at 367–68. Green reacted

32

We note that defendant fails to cite to cases discussing causation in his appeals

brief.

A-5586-18

89

by putting the car in reverse, "peel[ing] backward quickly," and then driv ing

forward. Id. at 368. The officer ran after the car while shouting for Green to

stop. Ibid. The fleeing vehicle struck the pursuing officer in the leg, causing

him to experience some pain. Ibid. The officer continued to run alongside

defendant's car and "punched his right hand through the driver's side window,

shattering the window and cutting his hand." Ibid. The officer was taken to the

hospital and eventually was left with a scar on his palm. Ibid. The seriousness

of the hand injury was relevant to whether the defendant had committed

aggravated assault as distinct from simple assault.

On those facts, we determined that "there was a factual issue regarding

causation [of the hand injury] that required the trial judge to give a fact-specific

causation charge, and that her failure to do so was plain error." Id. at 373.

Specifically, in that case, the jury needed to resolve whether the defendant's

actions were the legal cause of the officer's hand injury in view of the officer's

volitional decision to punch the car window during his pursuit. Id. at 374–75.

In State v. Parkhill, the defendant was convicted at trial of second-degree

reckless vehicular homicide, N.J.S.A. 2C:11-5(a). 461 N.J. Super. 494 (App.

Div. 2019). The defendant was travelling 80 m.p.h. in a 45 m.p.h. zone and had

been tailgating a vehicle when he crossed an intersection and struck and killed

a pedestrian. Id. at 497. The victim tried to traverse the road outside the

A-5586-18

90

crosswalk, while defendant and other oncoming drivers had a green light. Ibid.

The defendant contended that the victim caused the accident by crossing a busy

road during the morning rush hour against the light and outside the cross -walk.

Id. at 498. Defendant argued on appeal that in these circumstances, the trial

court should have delivered a specific instruction on causation sua sponte, which

the model jury charge on vehicular homicide requires "[i]f proximate cause is

an issue." Id. at 498–99; see Model Jury Charges (Criminal), "Vehicular

Homicide (N.J.S.A. 2C:11-5)" (rev. Apr. 20, 2020), n. 2. The trial court

delivered the model charge on vehicular homicide, but not the causation charge.

Id. at 498.

We recognized that not every case will present a genuine issue of

causation. Id. at 501. We acknowledged, however, that the jury must be given

the option to find causation, "assuming there is evidence raising an issue as to

remoteness, fortuity, or another's volitional act." Id. at 504. We held that the

failure to charge on causation was plain error, noting that the defendant had

expressly placed causation in issue. Id. at 500.

In State v. Martin, our Supreme Court also found plain error in the trial

court's failure to instruct the jury on causation. 119 N.J. 2, 15 (1990). In that

case, the defendant was charged with murder, felony murder, arson, and

aggravated arson arising out of the death of a woman in a building that defendant

A-5586-18

91

set on fire. Id. at 5. The victim, who was highly intoxicated, died from smoke

inhalation and carbon monoxide poisoning. Id. at 6. According to defendant's

version of events, he set the fire by putting a match to a paper bag containing

trash found in a hallway. Id. at 6. The defendant maintained that he meant only

to burn the garbage, believed the fire would self-extinguish, and did not intend

for the fire to spread. Id. at 6, 9. The State's version of the setting of the fire

was materially different from that of the defendant. Id. at 6–7. The State

presented expert testimony that the fire was deliberately set by spreading an

accelerant, kerosene, between the ground and second floors. Ibid.

Defendant argued that supervening causes—including the presence of

stored kerosene of which he claimed to be unaware, the flammability of the

petroleum-based astroturf carpeting, open doors that allowed a rush of air to

stoke the fire, and the inoperability of fire detectors—broke the chain of

causation so that his conduct was not the legal cause of the victim's death. Id.

at 9–10. Defendant thus argued that her death "was not a foreseeable, intended,

or probable consequence of his conduct." Id. at 9.

The Court concluded that in these circumstances, the defendant "was

entitled . . . to a charge that if the jury believed that [the victim's] death occurred

in a manner different from that designed or contemplated by defendant, it should

A-5586-18

92

decide whether her death was not too remote to have a just bearing on his

liability." Id. at 16. The Court reasoned that

[w]hen the actual result is of the same character, but

occurred in a different manner from that designed or

contemplated, it is for the jury to determine whether

intervening causes or unforeseen conditions lead to the

conclusion that it is unjust to find that the defendant's

conduct is the cause of the actual result.

[Id. at 13.]

In concluding that the trial court committed plain error by not instructing

the jury on the principles of legal causation, the Court stressed, "[t]he need for

an adequate charge on the question of causation is particularly compelling in the

present case because the State and defendant offered contrasting theories of

causation, each supported by expert testimony." Id. at 15 (quoting Green, 86

N.J. at 287–88). The Court added, "[w]hen, as here, divergent factual versions

give rise to different theories of causation, the trial court should provide the jury

with appropriate instructions, depending on which version it chooses to accept."

Id. at 16–17.

Green, Parkhill, and Martin support our conclusion that the principles of

legal causation need only be explained to the jury when causation is genuinely

at issue based on the trial evidence and the theories of the prosecution and

defense. There would have been no need in these cases to carefully analyze the

facts if there were a categorical rule that the full causation model jury charge

A-5586-18

93

must always be given when a crime includes a result element, such as injury or

death. Importantly for purposes of the present case, these precedents also

provide helpful guidance as to when and in what circumstances the trial evidence

suggests a disputed issue as to "remoteness, fortuity, or another's volitional act."

Parkhill, 461 N.J. Super. at 504.

D.

Applying these precedents to the case before us, we are satisfied that

causation was not at issue. There certainly were divergent factual versions as to

what transpired during the confrontation between defendant and Paulsen. In

stark contrast to the situation in Martin, however, there were no divergent

theories of causation for the jury to choose from. There were no "intervening

causes or unforeseen conditions" as in Martin. Id. at 13. It bears emphasis,

moreover, that counsel did not argue in summation that defendant's actions did

not cause Paulsen's death. 33 Nor were there competing expert opinions on the

cause of the victim's death. The medical examiner who performed the autopsy

concluded that Paulsen died from an arrow wound to the abdomen that caused

massive bleeding. The medical examiner

This text is long and has been trimmed here. Open the source document for the complete record.