cdTOCtest

reversible error in a charge on passion/provocation
manslaughter is not rendered harmless by virtue of the
defendant’s acquittal of murder and conviction of
aggravated manslaughter. State v. Grunow, 102 N.J. 133
(1986).

The crime of manslaughter while eluding police
makes a person strictly liable for manslaughter when the
State proves a violation of N.J.S.A. 2C:29-2b, eluding,
which resulted in the death of another person. N.J.S.A.
2C:11-4b(3).

Where a fatal accident occurs during a police chase as
part of the flight from the predicate felony, manslaughter
while eluding should be charged as a lesser-included
offense of felony murder. State v. Pantusco, 330 N.J.
Super. 424, 445-49 (App. Div. 2000).

III. INSTRUCTIONS

A. Generally

When the defendant requests a charge on a lesser-
included offense, the charge is warranted only when the
evidence provides a “rational basis” for a verdict of the
lesser offense. State v. Crisantos (Arriagas), 102 N.J. 265,
273-78 (1986); State v. Choice, 98 N.J. 295, 298-99
(1985); State v. Powell, 84 N.J. 305, 318-19 (1980).
When a defendant does not request a charge on a lesser-
included offense, the trial court has a duty to nonetheless
charge on the lesser-included offense only “when the facts
‘clearly indicate’ the appropriateness of that charge.”
State v. Choice, 98 N.J. at 299. It is reversible error to
charge an offense of a higher degree than is warranted by
the evidence since it may cause a compromise verdict by
the jury. State v. Christener, 71 N.J. 55 (1976).

Ordinarily, juries may not consider lesser-included
offenses until they have acquitted of the greater offense.
The rationale behind the sequential ordering of greater-
and lesser-included offenses is that the jury must convict
of the crime supported by the evidence, as opposed to
compromising between jurors who want the greater
charge and those who want to acquit. State v. Cooper, 151
N.J. 326, 366 (1997); State v. Harris, 141 N.J. 525, 552-
53 (1995); State v. Zola, 112 N.J. 384, 405 (1988).

A passion/provocation charge, however, must be
incorporated into the purposeful murder charge. State v.
Cooper, 151 N.J. at 369; State v. Coyle, 119 N.J. 194,
223-24 (1990). The jury must be instructed that the
absence of passion/provocation is an element of murder
which the State must prove beyond a reasonable doubt

and that the jury may convict defendant only of

manslaughter when the homicide would have been

murder but for the existence of passion/provocation.

State v. Erazo, 126 N.J. 112, 125-26 (1991); State v.

Coyle, 119 N.J. at 224. The trial judge must instruct the

jury that to convict of murder, it must be convinced

beyond a reasonable doubt that the defendant did not kill

in the heat of passion. State v. Wilson, 128 N.J. 233, 238-

41 (1992); State v. Grunow, 102 N.J. 133, 145 (1986).

To determine if there is evidence to support an

instruction on the lesser-included offenses of aggravated

manslaughter and manslaughter, the focus of the inquiry

is whether there is proof of accidental rather than

intentional conduct. State v. Tucker, 265 N.J. Super. 296,

330 (App. Div.), aff’d, 137 N.J. 259 (1993), cert. denied,

513 U.S. 1090, 115 S.Ct. 751, 130 L. Ed. 2d 651

(1995).

A defendant is entitled to a charge on aggravated

assault where a jury could conclude that although the

defendant assaulted the victim, his death was solely as a

result of the action of another. State v. Vujosevic, 198 N.J.

Super. 435 (App. Div.), certif. denied, 101 N.J. 247

(1985). See also State v. Clark, 255 N.J. Super. 14 (App.

Div. 1992).

B. Murder

The required jury charge for serious bodily injury

murder is contained in State v. Cruz, 163 N.J. 403, 419-

20 (2000). This instruction must be adapted for a non-

capital prosecution.

In a murder prosecution where the State and the

defendant offer different theories of causation, the jury

should be instructed that if it determines that the

victim’s death occurred in a manner different than that

designed or contemplated by the defendant, then it

should decide whether the death was not too remote to

bear on the defendant’s liability. State v. Martin, 119

N.J. 2 (1990).

Because attempted murder requires that the

defendant purposely intended to cause death, an

instruction which states that the defendant could be

convicted if he purposely or knowingly attempted to

commit the killings is reversible error. State v. Rhett, 127

N.J. 3 (1992).