cdTOCtest

(coco) #1

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).
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