explaining that a jury "may be tempted to find [a] defendant guilty of a crime he or she did not commit simply because it prefers to convict on some crime rather than no crime at all."
How later courts described this case
- explaining that a jury "may be tempted to find [a] defendant guilty of a crime he or she did not commit simply because it prefers to convict on some crime rather than no crime at all."
- explaining where jurors are not instructed on a lesser-included offense, they "may be tempted to find defendant guilty of a crime he or she did not commit simply because it prefers to convict on some crime rather than no crime at all"
- concluding that statutes of limitations are “binding on the courts” and bar the conviction of a defendant whom the jury finds guilty of a lesser included and time-barred offense
- reasoning that “telling the jury that [the] defendant would go free if convicted of manslaughter . . . all but invite[s] the jury to disregard the manslaughter instruction”
Written by the judges who cited it.
The opinion
O’HERN, J.,
concurring in part, dissenting in part.
Defendant has been charged with the 1981 murder of his wife. He pleads alibi as a defense. In fact, he may have committed the homicide but have done so in the heat of passion or under other circumstances that would warrant a manslaughter charge. The State’s 1988 indictment could not charge defendant with manslaughter, because the five-year statute of limitations had run. The State could not provide a valid explanation for the delay, although one of the original investigating officers had died. There is, however, no statute of limitations for murder. At trial, defendant requested a charge on the various forms of manslaughter that were supported by the evidence, but also sought to preserve his rights under the applicable statute of limitations not to be convicted of manslaughter.
The circumstances create a troubling dilemma. On the one hand, a defendant is entitled to have the jury consider all the available verdicts that bear on his or her guilt or innocence, State v. Sloane, 111 N.J. 293 , 544 A.2d 826 (1988); on the other hand, a jury should never be misled with respect to its function, State v. Bey II, 112 N.J. 123, 162-64 , 548 A.2d 887 (1988); and a prosecution should never be a sham.
The majority deals with one risk, that the jury confronted with an all-or-nothing verdict might lean over backward to convict. It ignores the other risk, that the jury confronted with a lesser-included offense might for compromise or for compassion convict the defendant of the lesser crime only to find that it has been put through a mock trial. We often speak of the profound importance of “public confidence in the administration *64 of criminal justice.” E.g., In re Commitment of Edward S., 118 N.J. 118, 139 , 570 A.2d 917 (1990). To send a jury into deliberations on murder and its lesser-included offenses without informing the jury that the court will not accept a guilty verdict if other than for murder will undermine public confidence in the administration of justice. Pulling the wool over jurors’ eyes surely cannot be a legitimate function of the justice system. The Appellate Division correctly characterized defendant’s position as the assertion of a right “to have a judge deceive a jury,” and that is what the Court sustains today.
Nor can I agree that the dilemma is insoluble. In many circumstances, we candidly explain to juries that even though they will not be empowered to return a verdict on certain offenses, they must consider those offenses as part of their evaluations of guilt of the offenses charged. Examples abound. In State v. Brown, 118 N.J. 595, 620-21 , 573 A.2d 886 (1990), we explained that even though the defendants could not be charged with motor vehicle offenses of reckless driving in a “cat-and-mouse” incident on a highway, the jury would have to consider those offenses in evaluating whether the State had proved the defendants’ guilt of the crimes of death by auto. See also State v. Muniz, 118 N.J. 319, 332 , 571 A.2d 948 (1990) (concluding that jury should be informed that there are lesser-included motor-vehicle offenses to be determined solely by court). Other examples arise. In State v. Grunow, 102 N.J. 133 , 506 A.2d 708 (1986), even though the defendant could not be charged with murder (he had been previously acquitted of that offense by a jury), we held that the jury on retrial must nevertheless consider the available verdict of passion/provocation manslaughter, a lesser-included offense of the uncharged murder. And in State v. Bowens, 108 N.J. 622, 640 , 532 A.2d 215 (1987), we explained that even though a jury could not return a verdict of manslaughter based on imperfect self defense, the jury must nevertheless consider all the evidence of uncertainty in the defendant’s mind in deciding whether the State had proved each and every element of the offense charged beyond a reasonable doubt.
*65 In those and many other circumstances we trust juries to follow instructions. See, e.g., State v. Marshall, 123 N.J. 1, 148-50 , 586 A. 2d 85 (1991) (holding that jury instruction adequately informed jury of its responsibility to sentence defendant to death); State v. Winter, 96 N.J. 640, 649 , 477 A.2d 323 (1984) (holding that jury is capable of following curative instruction to ignore prejudicial matter). In a case such as this the jury will be told that the defendant has been charged only with murder. The jury may then conclude that defendant had committed a crime in accordance with the definitions of those offenses (murder and the lesser-included offenses) presented to it. Finally, the jury will be instructed that if the offense he or she committed was not murder, the jury must return a verdict of not guilty of murder.
Just as there is no constitutional right to be tried without a jury, State v. Dunne, 124 N.J. 303 , 590 A.2d 1144 (1991), there is no constitutional right to deceive a jury. The majority’s analogy to the sentencing posture, ante at 60-61, 618 A. 2d 323 , is unpersuasive. Although the jury will not know the range of punishment, it knows that its verdict, barring legal error, will stand.
We have been particularly insistent about maintaining the singular role of juries in the administration of justice. We have insisted that trial courts are bound “to make absolutely certain [that] the jury is aware, not simply of the consequences of its actions, but of its total responsibility for the judgment.” State v. Ramseur, 106 N.J. 123, 316 , 524 A.2d 188 (1987). So solemn is the jurors’ responsibility that we do not permit them to be misled by consideration of issues not proper for their deliberations. Thus, we will not deliver an instruction on a criminal charge when there is no evidence to support the instruction. State v. Christener, 71 N.J. 55 , 362 A.2d 1153 (1976). In Christener , this Court reasoned:
It must be assumed that the jury inferred by the giving of such an instruction that the elements of that charge were present in the case. Jurors are not skilled in legal techniques. They welcome an opportunity to compose differences and agree upon a compromise verdict.
*66 [Id. at 73, 362 A. 2d 1153 (citation omitted).]
Lest the jury be misled, we will not let a jury return a partial verdict unless the jury intended the verdict to be final and it fully understands the significance of such an action. State v. Shomo, 129 N.J. 248 , 609 A. 2d 394 (1992). In short, there is simply no substitute for a jury verdict, “[f]or the verdict is the definitive answer given by the jury to the court concerning matters of fact committed to the jury for [its] deliberation and determination.” State v. Williams, 89 N.J.L. 234, 237 , 98 A. 416 (E. & A.1916) (emphasis added).
There is no insoluble dilemma here; there is a problem that can be handled by instructing the jury accurately with respect to its function. Just as in Muniz, Rivers, and Brown , we can trust the jury here to discharge its functions. The Legislature has solved the problem by enacting legislation that in the future removes all time bars for the offenses of aggravated manslaughter and manslaughter. See N.J.S.A. 2C:1-6 (amended by L. 1988, c. 68). In transitional cases such as this, defendants are entitled to waive the defense of the statute of limitations and have the lesser-included offenses submitted to the jury. If defendants choose not to waive the defense, defendants may not have it both ways. They may not have the lesser-included offenses submitted to the jury with a reservation of right to annul its verdict. Neither defendants nor the court should be able to trick jurors into thinking that they are discharging one of the most profound responsibilities of a free society when in fact they are not. A fully informed jury can be trusted to discharge its functions appropriately.
It may be unfair, however, to one such as this defendant, who had to predict what the rule of law would be, to insist on the finality of his election not to waive the statute of limitations defense. That aspect of the case was compounded by a misleading emphasis in the trial court’s charge to the jury. The court charged that “because of the Statute of Limitations if you find * * * [the manslaughter offenses established] you must find the defendant not guilty [of murder].” (Emphasis added.)
*67 In reality, it is not the Statute of Limitations that causes the defendant to be acquitted of murder but the defendant’s fair-trial right to have the jury consider on the basis of all the evidence whether he may have been guilty of an offense other than murder.
I can thus concur in the Court’s judgment requiring a new trial but not in an opinion that would allow the trial court to withhold from the jury the consequences of its verdict.
Justices GARIBALDI and STEIN join in this opinion.
For reversal and remandment — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER and POLLOCK — 4.
Justices O’HERN, GARIBALDI and STEIN, concur in part and dissent in part — 3.