C. Felony Murder
In felony murder cases, courts should instruct juries
that they may not convict a defendant of felony murder
unless they convict him of the underlying offense that is
a predicate to the felony murder conviction. State v. Grey,
147 N.J. 4 (1996); State v. Spencer, 319 N.J. Super. 284,
309 (App. Div. 1999). Where there is a so-called
“inconsistent verdict,” however, such as where the jury
acquits the defendant of the underlying felony but
convicts him of felony murder, and the reason for the
inconsistent verdict cannot be determined, the verdict is
permissible so long as the evidence is sufficient to support
a conviction of the substantive offense beyond a
reasonable doubt. State v. Grey, 147 N.J. 4.
If more than one felony can serve as the basis for a
conviction of felony murder, the jury should be
instructed that it may only use the felonies of which it
convicts the defendant as the basis for a felony murder
conviction. If the jury convicts the defendant of more
than one predicate felony, it need not be unanimous on
which felony forms the basis of the felony murder
conviction. State v. Harris, 141 N.J. 525, 561-63
(1995).
The failure to instruct on “attempt” in conjunction
with a charge on robbery, specifically on the concepts of
purposeful conduct and substantial steps, was plain error
requiring reversal of the felony murder conviction where
the State failed to offer any evidence that the defendant
robbed the victim. State v. Gonzalez, 318 N.J. Super. 527
(App. Div.), certif. denied, 161 N.J. 148 (1999).
It is an affirmative defense to felony murder that the
defendant: (a) did not commit the homicidal act or in
any way solicit, request, command, importune, cause, or
aid its commission; and (b) was not armed with a deadly
weapon or any instrument, article, or substance readily
capable of causing death or serious bodily injury and of
a sort not ordinarily carried in public places by law-
abiding persons, and (c) had no reasonable ground to
believe that any other participant was armed with such a
weapon or instrument, and (d) had no reasonable ground
to believe that any other participant intended to engage
in conduct likely to result in death or serious bodily
injury. N.J.S.A. 2C:11-3a(3). Where the evidence
warrants a charge on this defense, a proper instruction
must advise the jury that the State has the burden to
disprove the defense beyond a reasonable doubt. State v.
Smith, 322 N.J. Super. 385 (App. Div.), certif. denied, 162
N.J. 489 (1999).
D. ManslaughterIf there is plausible evidence in the record to support
a conviction of a lesser degree of criminal homicide, a
defendant is entitled to an instruction on the lesser
offense even if it is not consistent with his defense. State
v. Powell, 84 N.J. 305, 317 (1980).A court may withhold a passion/provocation
manslaughter charge only where no jury could rationally
conclude that the State had not proven beyond a
reasonable doubt that the asserted provocation was
insufficient to inflame the passions of a reasonable person.
But where there is no evidence in the record of “passion”
or “extreme emotional disturbance,” there is no basis to
convict a defendant of passion/provocation manslaughter
and the trial court may not charge the jury on that
offense. State v. Crisantos (Arriagas), 102 N.J. 265
(1986).When a defendant places passion/provocation in
issue, the jury must be instructed that to prove a
purposeful and knowing murder, the State must prove
beyond a reasonable doubt that the defendant’s actions
were not the result of passion. State v. Grunow, 102 N.J.
133, 145 (1986); State v. Powell, 84 N.J. 305, 315
(1980).Where there is evidence that the victim has, in the
past, consistently physically abused the defendant or
someone with whom he has a close relationship, and that
the defendant knows about the abuse, the jury must be
told that the finding of provocation may be premised on
a course of ill-treatment which can induce a homicidal
response in a person of ordinary firmness and which the
accused reasonably believes is likely to continue. State v.
Coyle, 119 N.J. 194, 225-28 (1990); State v. Kelly, 97
N.J. 178 (1984).IV. VEHICULAR HOMICIDE (N.J.S.A. 2C:11-5)
A. GenerallyCriminal homicide constitutes vehicular homicide
when it is caused by driving a vehicle or vessel recklessly.
L.1995, c. 285, § 1 raised vehicular homicide from a
third to a second degree crime and provided that nothing
in the vehicular homicide statute would preclude, if the
evidence warrants, an indictment and conviction for
aggravated manslaughter.When a defendant is charged with (reckless)
manslaughter arising from an automobile accident, the