holding that trial court's instruction mandated a reversal of defendant's conviction; although the court subsequently instructed on passion/provocation, initial charge that jury need not consider manslaughter offenses unless it decided that State did not prove the elements of murder beyond a reasonable doubt "foreclose[d] jury consideration of whether passion/provocation should reduce an otherwise purposeful killing from murder to manslaughter"
How later courts described this case
- holding that trial court's instruction mandated a reversal of defendant's conviction; although the court subsequently instructed on passion/provocation, initial charge that jury need not consider manslaughter offenses unless it decided that State did not prove the elements of murder beyond a reasonable doubt "foreclose[d] jury consideration of whether passion/provocation should reduce an otherwise purposeful killing from murder to manslaughter"
- finding harmful error in trial court's sequential charge on purposeful murder and passion/provocation manslaughter, reasoning that sequential charge had the potential to foreclose jury consideration of whether passion/provocation should reduce an otherwise purposeful killing from murder to manslaughter
- holding sequential charges can be misleading in murder cases. Commentators have also noted a movement away from the acquittal-first approach. Abele, 23 U.C. Davis L. Rev. at 377– 78, 381 (citing seven states that had moved to a disagreement or “unable to agree” instruction between 1977 and 1989)
- stating that “a third person can be provoked when a close friend suffers injury or abuse under circumstances that would constitute adequate provocation had the third person been the object of the abuse”
Written by the judges who cited it.
The opinion
STEIN, J.,
concurring in part and dissenting in part.
I join the Court’s opinion in all respects other than its determination that the trial court’s failure to have instructed the jury in the manner required by State v. Gerald, 113 N.J. 40 , 549 A.2d 792 (1988), constitutes reversible error. Ante at 212, 574 A.2d at 960. We held in Gerald that under our state constitution, one who takes the life of another with “an intent to inflict only serious bodily injury with no intention that death be the result” cannot be subjected to the death penalty. 113 *252 N.J. at 89 , 549 A.2d 792 . Not having the benefit of our decision jn Gerald , the trial court did not distinguish in its charge on purposeful or knowing murder, N.J.S.A. 2C:ll-3a(l) and (2), between purposely causing death, and purposely causing only serious bodily injury resulting in death. In convicting defendant of murder, the jury was not instructed to specify for which of the two distinguishable offenses he was convicted, an error the majority concludes is reversible. Ante at 211-212, 574 A.2d at 960.
I am of the view that our holding in Gerald should have limited application in homicide cases in which the killing was committed with a gun fired at close range. Absent specific evidence in the record suggesting that the defendant’s intent was limited to the infliction of serious bodily injury only and that death was an unintended consequence, such homicides ordinarily will not fit within the class of serious-bodily-injury murders that we immunized from the death penalty in Gerald .
The evidence in this record was adequate to afford a slim but rational basis for the jury to convict defendant of serious-bodily-injury murder. The Code’s rational-basis test “imposes a low threshold * * * for permitting a charge on a lesser-included offense.” State v. Crisantos (Arriagas), 102 N.J. 265, 278 , 508 A.2d 167 (1986).
Defendant’s direct testimony that he was not trying to kill Lemberg but rather “to stop him from getting Rhonda” was theoretically consistent with the state of mind described in Gerald, i.e., an intent to cause serious bodily injury but not death. It is evident, however, that portions of defendant’s direct testimony were inconsistent with that state of mind:
To be perfectly honest, I didn’t care if he got killed at that point. As far as I was concerned at that point, my objective was to stop him from getting at Ehonda and whatever means available to do that, I was going to use. That’s all I was concerned with, and I did it. [Ante at 211, 574 A.2d at 959.]
Nevertheless, in applying the Code’s rational-basis test it is not necessary that all of defendant’s evidence support the lesser-included charge, provided that there is minimal but adequate *253 evidence to permit the jury rationally to return a verdict on the lesser offense. Crisantos, supra, 102 N.J. at 276 , 508 A.2d 167 . Thus, the jury theoretically could have disbelieved all of the State’s evidence and so much of defendant’s evidence not consistent with serious-bodily-injury murder, crediting only those portions of defendant’s testimony that reflected an intent to injure but not kill. On that assumption, the record would have been minimally adequate to support a charge on serious-bodily-injury murder.
As we acknowledged in Gerald , however, the evidence in some capital-murder cases is so compelling that there could be “no question that [the defendant] intended the death of his victim.” 113 N.J. at 79-80 , 549 A.2d 792 (citing State v. Ramseur, 106 N.J. 123 , 524 A.2d 188 (1987), and State v. Biegenwald, 106 N.J. 13 , 524 A.2d 130 (1987)). The decisive issue is whether the omission of an instruction on serious-bodily-injury murder was “clearly capable of affecting * * * the verdict * * See State v. Bey, 112 N.J. 45, 94 , 548 A.2d 846 (1988).
The Court’s opinion carefully describes the critical events. In the course of a heated argument with his wife, provoked at least in part by her relationship with defendant, Lemberg began to chase her down the street. Defendant followed him, opening fire with his nine-millimeter handgun from a distance of about twenty feet. Although defendant’s first shots missed, another round hit Lemberg in the leg. Lemberg crawled across the adjacent front lawn and hid behind a spruce tree. Defendant followed, and fired three more rounds. Two shots hit the victim: one bullet struck him in the shoulder, fired from a distance of twelve to twenty-eight inches; another bullet struck Lemberg in the back of the head and, according to the medical examiner, was immediately fatal. Defendant conceded that only “a couple of feet” separated the gun from the victim when he fired the final shots.
*254 Questioned specifically at trial about the events after Lem-berg was shot in the leg, defendant testified that Lemberg started to “launch back off the ground” after he was wounded. Defendant testified further as to his state of mind:
A. * * * Everything that I had tried didn’t work, and I couldn’t take anymore chances at that point.
Q. Were you firing to kill him?
A. No.
Q. Why were you shooting?
A. To stop him.
Q. To stop him from what?
A. To stop him from getting Rhonda.
(Emphasis added.)
Although admitting that he “didn’t care if [Lemberg] got killed at that point,” defendant insisted that he “wasn’t trying to kill him,” but “was just trying to stop him.”
Notwithstanding defendant’s insistence that his purpose was merely “to stop” Lemberg, it is virtually inconceivable on this record that a jury would conclude that defendant intended “to inflict only serious bodily injury with no intention that death be the result * * Gerald, supra, 113 N.J. at 89 , 549 A.2d 792 . The victim had fallen to the ground from the bullet wound in the leg, and had crawled behind a tree to escape from defendant. From extremely close range — two feet or so according to both defendant and the medical examiner — defendant fired three more rounds, striking Lemberg in the back of the shoulder and the back of the head. Death was instantaneous. As we observed in State v. Breakiron, 108 N.J. 591, 605-06 , 532 A.2d 199 (1987): “[O]ne who shoots the bullet into the head of another will be hard put to convince a jury that he or she did not know, with practical certainty, that death would result.”
For this jury to have returned a verdict of serious-bodily-injury murder, it would have had to conclude that defendant’s “conscious object” was to cause only serious bodily injury but not death, or that defendant was “practically certain” that only serious bodily injury but not death would result. See N.J.S.A. 2C:2-2b(l) and (2) (defining “purposely” and “knowingly”). *255 The risk of death from firing a nine-millimeter handgun at close range, aimed at or near the head of a victim, is so great as to be virtually irreconcilable with an intent to inflict only serious bodily injury and not death.
As noted, we explained in Gerald that our state constitution precludes the imposition of the death penalty on “those who act with a less culpable state of mind, i.e., an intent to inflict only serious bodily injury with no intention that death be the result.” 113 N.J. at 89 , 549 A.2d 792 . We have not specifically applied Gerald to a defendant who shoots and kills a victim at close range, intending either death or serious bodily injury. As I read Gerald , such a defendant remains subject to the death penalty.
I am fully satisfied that the trial court’s omission of the Gerald charge was not capable of affecting the jury’s verdict. Charged in accordance with Gerald , the jury could not conceivably have determined on this record that defendant intended to cause Lemberg only serious bodily injury and not death. See State v. Pitts, 116 N.J. 580, 614-20 , 562 A.2d 1320 (1989).
For reversal and remandment — Chief Justice WILENTZ, and Justices CLIFFORD, POLLOCK, O’HERN and GARIBALDI — 5.
Concurring in part; dissenting in part — Justices HANDLER and STEIN — 2.