STATE OF NEW JERSEY v. JEAN MORALES (2010)

Defendant Jean Morales was convicted by a jury of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1);  third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d);  and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).  Defendant had been previously convicted of the same crimes, plus first-degree murder, N.J.S.A. 2C:11-3(a)(1) or -3(a)(2) in a jury trial in 2002.   Those convictions were reversed for the failure of the trial judge to sua sponte instruct the jury on passion/provocation manslaughter as a lesser-included offense.   See State v. Castagna, 376 N.J.Super. 323, 355 (App.Div.2005), rev'd on other grounds, 187 N.J. 293 (2006).   This appeal reviews the outcome of defendant's retrial for the murder and other associated charges.

After merger, defendant was sentenced to an aggregate term of thirty years incarceration, subject to the eighty-five percent parole disqualification provision of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the charge of aggravated manslaughter.   He appeals, claiming three primary errors:  (1) the jury charge was not sufficiently tailored to the facts;  (2) N.J.S.A. 2C:11-4(b)(2) is violative of the Fourteenth Amendment's equal protection clause by denying offenders who kill with extreme recklessness the opportunity to mitigate their crimes to a second-degree offense;  and (3) the sentence was manifestly excessive.   We reject all of defendant's arguments and affirm.

I.

During the late evening of October 23, 1999 and into the early morning of October 24, 1999, a group including Violet Arias, Alvin Baez, Anthony Castagna, Josephine Castagna, Thomas D'Amico, Edward Gentile, Christopher Longo, Alex Montalvo, Carmine Perrotti, Luis Rodriguez, Ann Truzzolino, and defendant were present at Sinners Go-Go Bar (Sinners) in Elizabeth.   Some time after 11:00 p.m., Arthur McKeown and Bennett Grant arrived at Sinners.   There, they greeted and spoke with Truzzolino and the others.

After 1:00 a.m., McKeown and Grant decided to leave Sinners.   Truzzolino was in their company as they departed.   Arias observed them outside, where she prevailed upon an apparently intoxicated Truzzolino to return inside to the bar.   Grant followed Arias and Truzzolino where shortly thereafter, an oral and physical altercation ensued between Grant and Arias.   Sinners' management stepped in and ordered Grant to leave.   Grant acceded, exited Sinners, and began to walk away.   Arias, Castagna, and other patrons followed Grant, which resulted in more scuffling, name calling, and arguing.

Eventually a large group of patrons--fifteen to twenty in number--ran outside surrounding Grant, some of whom then engaged him in fisticuffs.   Grant fled towards a nearby bridge with what was described as “a wild herd” in hot pursuit.   His retreat took him through driveways, alleyways, and backyards throughout the neighborhood;  he even clambered over a fence in an attempt to escape the horde.

Meanwhile, back at Sinners, a Jeep Cherokee pulled up and several people entered the vehicle, which also set out to pursue Grant.   As Grant was continuing his flight towards the bridge, he began to cross a street when he was struck by the door of the Jeep and knocked to the pavement directly in front of the vehicle.   The crowd of pursuers reassembled around Grant, where several persons beat and kicked him mercilessly.   Arias testified that she saw defendant kick Grant several times in the upper body.

Eventually, defendant was observed walking towards Grant's immobile body carrying a Belgian block, which weighed approximately twenty-five pounds.   Still being pummeled by others in the now reduced crowd of about six or seven, Grant was “just laying on the floor kind of in a fetal position.”   Defendant held the block over his head with two hands and proceeded to drop it on Grant's head.   A witness described the aftermath as the following:

[Grant] had a large hole in the front of his forehead.   The whole cranial plate in the front of his forehead had flopped down.   Blood was gushing out of his brain.

The crowd immediately dissipated, and a new crowd of onlookers began to form around Grant as the multitude awaited emergency services.   Defendant, and virtually all of the other members of the mob that had pursued Grant, left the scene.

Grant was transported to University Hospital in Newark with multiple grievous injuries, including a fractured skull and brain contusion.   He was in a coma for five months before ultimately succumbing to his injuries.   At trial, the cause of death was described as stemming from “the complications of the blunt head trauma,” most certainly consistent with a “cement slab or rock being dropped on Mr. Bennett Grant's head.”

II.

As a result of our prior determination that passion/provocation manslaughter was available as a lesser-included offense to the charge of murder, defendant's convictions were reversed and remanded for a new trial.   During the retrial, the judge instructed the jury in complete fidelity to our instructions in Castagna, and followed the model jury charge.   Nevertheless, defendant argues,

[u]nbelievably, however, when it came time to instruct the jury on passion/provocation manslaughter at the second trial, the judge never explained that theory to the jury.   He made no attempt to explain to the jury what might be the basis for a finding of adequate provocation, i.e., namely that defendant was part of a mob responding to the alleged assaults by the large muscular victim on tiny Violet Arias, despite the fact that it was that very theory that cause[d] the case to have to be retried!

[Emphasis in original.]

We do not share in defendant's outrage, and find the trial judge's performance of his duties well within the mainstream of due process.

The State argues that defendant did not object to the trial court's use of the model jury charge, did not request an alteration of the instructions, and did not suggest the need for the tailoring urged upon us only now in defendant's appellate brief.   Accordingly, the State urges that “the instructions are presumed proper and will only be disturbed upon a finding of plain error.”

We recognize that “[e]rroneous instructions on matters or issues that are material to the jury's deliberation are presumed to be reversible error in criminal prosecutions.”  State v. Jordan, 147 N.J. 409, 422 (1997);  see also State v. Jenkins, 178 N.J. 347, 360 (2004).  “[E]rrors in the charge to the jury on material issues are viewed as ‘poor candidates for rehabilitation under the harmless error philosophy.’ ”  State v. Garretson, 313 N.J.Super. 348, 355 (App.Div.1998) (internal citations omitted), certif. denied, 156 N.J. 428 (1998).   That is, the plain error standard requires reversal only if the error was “clearly capable of producing an unjust result.”  State v. O'Carroll, 385 N.J.Super. 211, 224 (App.Div.), certif. denied, 188 N.J. 489 (2006)(citing R. 2:10-2).

Passion/provocation manslaughter is a lesser-included offense of murder.   See State v. Robinson, 136 N.J. 476, 489 (1994).  “A criminal homicide is passion/provocation manslaughter when it ‘[i]s committed in the heat of passion resulting from a reasonable provocation.’ ”  O'Carroll, supra, 385 N.J.Super. at 226-27 (quoting N.J.S.A. 2C:11-4(b)(2)).

“ ‘Passion/provocation manslaughter involves the same purposeful or knowing culpability requirement [as murder], as it involves what otherwise would be murder but for its being’ ” carried out in the heat of passion following a reasonable provocation.  Id. at 227 (quoting State v. Pridgen, 245 N.J.Super. 239, 251 (App.Div.), certif. denied, 126 N.J. 327 (1991)).

Passion/provocation manslaughter consists of four elements:  (1) “the provocation must be adequate;” (2) there must not have been time for defendant “to cool off between the provocation and the slaying;” (3) defendant must have actually been impassioned by the provocation;  and (4) “defendant must not have actually cooled off before the slaying.”  State v. Mauricio, 117 N.J. 402, 411 (1990);  see also State v. Noble, 398 N.J.Super. 574, 596-97 (App.Div.), certif. denied, 195 N.J. 522 (2008).

The crucial threshold “adequate provocation” element addresses whether the provocation, when viewed from an objective standard, was “sufficient to arouse the passions of an ordinary [person] beyond the power of his control.”   State v. King, 37 N.J. 285, 301-02 (1962).   Additionally, “[t]he provocation must be severe enough [so] that the ‘intentional homicide may be as much attributable to the extraordinary nature of the situation as to the moral depravity of the actor.’ ”  Mauricio, supra, 117 N.J. at 412.

In this regard, “words alone, no matter how offensive or insulting, do not constitute adequate provocation to reduce murder to manslaughter.”  State v. Crisantos, 102 N.J. 265, 274 (1986).   Alternatively, being threatened with a weapon might constitute adequate provocation.  Mauricio, supra, 117 N.J. at 414;  State v. Powell, 84 N.J. 305, 320 (1980).

Battery also “has traditionally been considered ․ to be sufficiently provocative.”  Mauricio, supra, 117 N.J. at 414.   Even “mutual combat [,] under certain circumstances[,] could constitute adequate provocation to reduce murder to manslaughter.”  Crisantos, supra, 102 N.J. at 274;  State v. Darrian, 255 N.J.Super. 435, 449 (App.Div.), certif. denied, 130 N.J. 13 (1992).

In this case, the trial court is faulted by defendant for not highlighting to the jury the arguably relevant circumstance that defendant was aware of the victim's clashes with Arias and Castagna.   These hostilities, according to defendant, should have impelled the court--on its own initiative--to further explain that adequate provocation need not necessarily directly involve defendant.   Furthermore, in defendant's newly minted theory, the judge should have done much more to instruct and alert the jury to consider whether defendant's putative knowledge of those confrontations with third parties amounted to adequate provocation to kill.   What is missing in defendant's latest argument, however, is recognition that exactly what he demands should have been done by the trial court, was contradictory to his vehement defense during the trial that he was not even at the scene of the crime.

It is well recognized that in particular circumstances a judge must properly instruct the jury by relating abstract legal principles to the contested facts in evidence.  State v. Savage, 172 N.J. 374, 389 (2002).   Nevertheless, it does not follow that every case requires such tailoring, and, in general, the trial judge may exercise broad discretion on whether to instruct the jury in depth.  State v. Green, 86 N.J. 281, 290 (1981).   As noted in State v. Angoy, 329 N.J.Super. 79, 85 (App.Div.), certif. denied, 165 N.J. 138 (2000), when “the facts of the case and the claims of the State and the defense [are] quite clear[,]” the failure by the court to tailor the charge is not considered prejudicial error.   Although a court often must comment on the facts of a case in its jury instructions, “any comment must be designed to avoid unduly influencing or otherwise invading the province of the jury.”   State v. Reddish, 181 N.J. 553, 612-13 (2004).   Here, the instructions accurately explained the legal concept of passion/provocation manslaughter in the context of the facts of this particular case.   Defendant was wholly unconstrained in arguing to the jury as he wished, and, by any measure, was successful in persuading the jury that he was--on the first count of the indictment--not guilty of murder and passion/provocation manslaughter.   We perceive no errors that were committed by the trial judge.

Furthermore, the charge should be examined in its entirety to determine the overall effect of the charge.  State v. Delibero, 149 N.J. 90, 106-07 (1997).  “[I]f on reading the charge as a whole, ‘prejudicial error does not appear, then the verdict must stand.’ ”  State v. Ramseur, 106 N.J. 123, 280 (1987) (quoting State v. Council, 49 N.J. 341, 342 (1967)).   We find nothing lacking in the jury charge nor any clear capacity for producing an unjust result in the trial court's instruction.   Therefore, the trial court's failure to sua sponte instruct the jury as defendant now suggests was not erroneous.

III.

Defendant contends that his aggravated manslaughter conviction should be reversed because permitting passion/provocation to reduce a murder charge, which requires a purposeful or knowing mental state of mind, to manslaughter, but not permitting passion/provocation to reduce aggravated manslaughter, which in turn only requires a reckless mental state, to manslaughter, is logically absurd and violative of equal protection.   The reductio ad absurdum suggested by defendant in his brief is this:

[A] defendant who kills in the heat of passion is better off if he does so purposely or knowingly than if he does so with the lower mens rea of extreme recklessness required by the aggravated manslaughter statute.   In the former instance, he will be guilty of second-degree passion/provocation manslaughter and receive a sentence of five to ten years;  in the latter instance, he will be guilty of aggravated manslaughter and receive a sentence of between [ten] and [thirty] years.

[Emphasis in original.]

Defendant recognizes that neither we, nor our Supreme Court, will write upon a clean slate regarding this issue.   More than two decades ago, the Court was presented with this issue in State v. Grunow, 102 N.J. 133 (1986), albeit without an equal protection gloss, and sustained the validity of the relevant statute.   Defendant nevertheless contends “that much has changed since Grunow and there are reasons related to statutory interpretation and constitutional law--none of which were argued to the Grunow Court--which warrant a different result.”

In Grunow, the Court answered the question of whether aggravated manslaughter should be reduced to manslaughter when committed as a result of passion/provocation.   On appeal from the trial court, this court had found that permitting a defendant charged with murder to have the crime reduced to passion/provocation manslaughter while not permitting a defendant charged with aggravated manslaughter to do so would lead to an absurd result.  Id. at 138.   The Court conceded that there was an inherent logic to that argument, but found that it conflicted with both the language of the statute and the development of New Jersey's Code of Criminal Justice (the Code), N.J.S.A. 2C:1-1 to 104-9.  Ibid. It noted that the Code drafters refused to include a proposed category of “reckless murder,” instead providing only for reckless manslaughter.  Id. at 139.

In light of this history, the Court found that it was not merely a legislative oversight that passion/provocation was not available to mitigate aggravated manslaughter.  Id. at 140.   The Court concluded:

[I]n rearranging the highly complex provisions of the Code ․ the Legislature downgraded “extreme indifference” reckless homicide from murder to aggravated manslaughter․  The Legislature recognized a single concept of reckless homicide that constituted manslaughter, with the gradation of punishment based upon the degree of risk of death․  Within this framework, the legislative scheme, as enacted, does not inevitably reflect an oversight with respect to the treatment of passion/provocation.   The Legislature could have concluded, on the basis of common experience, that passion/provocation usually causes an intentional reaction and that it is rare for passion/provocation to lead to recklessness.   The pre-Code analogue of passion/provocation manslaughter was referred to as “voluntary manslaughter,” which typically involved an intentional killing rather than one committed recklessly.

Since the scheme is plausible, we are not certain that the Legislature overlooked the matter;  rather, we believe that it could have concluded that the role of passion/provocation is not so much a matter of reclassifying an “extreme indifference” reckless criminal homicide as it is a means of reducing the severity of the penalty․  Hence, we hold on the basis of the language and structure of the act that the Code does not provide that the passion/provocation defense be invoked to reduce aggravated manslaughter to simple manslaughter.

[Id. at 143-44.]

The Court added that depending upon the circumstances of the offense, “we are dealing only with a difference in sentencing range, and presumably the sentencing judge will consider” whether the defendant acted under a strong provocation, and additionally whether there were substantial grounds tending to excuse the defendant's conduct, such as mitigating factors during sentencing.   Id. at 143.

As evidence of changed circumstances and the obsolescence of Grunow, defendant points to the increased maximum term for aggravated manslaughter (from twenty years to thirty years), which was legislatively implemented less than one year after Grunow was decided.   Adding to the argument, defendant highlights the passage of the NERA in 1997, with its eighty-five percent parole ineligibility applicable to homicides, which further changed the sentencing landscape for convictions of aggravated manslaughter.   Finally, considering these two significant statutory changes in sanctions together, defendant argues that to the extent the Grunow Court believed that the use of mitigating factors would alleviate any illogic in a literal reading of the statute, such belief has been belied by years of experience.

Even if we were to agree with defendant's anecdotal argument, we would not, on the sparse record before us, attempt to dictate a change in the law to our Supreme Court.   Our courts have routinely held that the Appellate Division, as an intermediate court, is not supposed to change the jurisprudence set by the New Jersey Supreme Court.   Specifically,

Stare decisis creates “certainty and stability” and applies primarily to decisions which invite reliance and on the basis of which men order their affairs.   To the extent that the principle of stare decisis affords a measure of stability, it is of great social value.   Extensive policy shifts should not be initiated by an intermediate appellate court.   The appropriate tribunal to accomplish such drastic changes is either the New Jersey Supreme Court or the legislature.

[David v. Gov't Employees Ins. Co., 360 N.J.Super. 127, 142 (App.Div.), certif. denied, 178 N.J. 251 (2003).]

See also Feldman v. Lederle Laboratories, 189 N.J.Super. 424, 434 (App.Div.1983) rev'd on other grounds, 97 N.J. 429 (1984);  Tierney v. Gilde, 235 N.J.Super. 61, 67 (App.Div.) (quoting Namm v. Charles E. Frosst & Co., 178 N.J.Super. 19, 35 (App.Div.1981), certif. denied, 117 N.J. 666 (1989)).

Similarly, our appellate courts have emphasized, despite a party's insistence for the court to break new ground, that “[a]s an intermediate appellate tribunal, [the court must] adhere to the decision of our Supreme Court in those cases.   Any departure should be undertaken ‘by the court of last resort, and not by the Appellate Division.’ ”  In re State in Interest of A.C., 115 N.J.Super. 77, 84 (App.Div.1971)(citing Casale v. Hous. Auth., City of Newark, 42 N.J.Super. 52, 62 (App.Div.1956);  accord, Silagy v. State, 105 N.J.Super. 507, 510 (App.Div.), certif. denied, 54 N.J. 506 (1969);  State v. Moffa, 79 N.J.Super. 425, 432-33 (App.Div.1963), rev'd o.b. 42 N.J. 258 (1964)).

If the only facets of criminal practice that have changed since Grunow was decided relate to the real prison time a convicted person is required to serve, we fail to see how our intervention is appropriate.   Any jurisprudential adjustment to the framework of the Code is best left for the Supreme Court.

Defendant also mounts a constitutional challenge based upon a putative equal protection violation.   He claims that similarly situated offenders--those who kill--are treated dissimilarly:  those who kill with extreme recklessness are disqualified from taking advantage of the mitigating effects of passion/provocation, while those who kill purposely or knowingly are afforded the passion/provocation safety valve.   Of course, this argument could have been made at the time of Grunow, and defendant does not attempt to explain why it was not raised at that time.   Moreover, defendant has not attempted to show how equal protection jurisprudence has changed in the twenty-four years since Grunow.

Instead, defendant tackles the statute's constitutionality head-on.   He argues that there is no rational relation between (1) any legitimate state interest and (2) punishing those offenders who cause death by extreme recklessness in response to passion/provocation more severely than those who cause death purposely or knowingly in response to passion/provocation.   The State counters with the argument that defendant's premise “that all killings (and thus all killers) are equal and should be treated alike” is a faulty assumption.   It notes that because qualitatively different states of mind animate different human behaviors, which are reflected in the differing nature of homicides, recognition of these vagaries by the legislature permits its non-uniform sanctioning practices.

“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.”  Doe v. Poritz, 142 N.J. 1, 91 (1995) (quoting City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L. Ed.2d 331, 320 (1985)).  “Equal protection does not preclude the use of classifications, but requires only that those classifications not be arbitrary.”  Ibid. (citation omitted).   Pursuant to the Fourteenth Amendment, if a statute neither treats a suspect or semi-suspect class disparately nor affects a fundamental right, then it will be upheld so long as it is “rationally related to a legitimate government interest.”   Ibid. (internal citations omitted).

An equal protection challenge to a legislative classification of offenders for purposes of fixing penalties is examined by utilizing the rational basis test.  State v. Lagares, 127 N.J. 20, 34 (1992).  “In such situations, the Legislature may provide different punishments for offenders convicted of the same crimes so long as there is some rational connection between the classification of offenders and a proper legislative purpose.”  Ibid. As the Court has stated:

The need for a particular or additional sanction in one area may appear to the legislative mind in different dimensions and proportions․  The Legislature has wide discretion in the creation or recognition of different classes of offenders for separate treatment.   In pursuing a legitimate objective, it may recognize degrees of harm or possible harm and strike at what it feels more urgently needs repression.   If there is some reasonable basis for the recognition of separate classes, and if the disparate treatment of the classes has a rational relationship to the object sought to be achieved by the lawmakers, the Constitution is not offended.   The transgression arises only when the classification rests upon grounds wholly irrelevant to the achievement of the State's objective;  the separate treatment must admit of but one conclusion beyond a reasonable doubt, i.e., that the basis therefore is arbitrary and unreasonable and without relevance to the legislative goal.

[State v. Smith, 58 N.J. 202, 206-07 (1971).]

Knowing or purposeful murder and passion/provocation manslaughter require the same state of mind, whereas aggravated manslaughter does not.   The former two, as noted above, require an intentional state of mind, whereas the latter requires a reckless state of mind.   It is illogical to conclude that one can be intentionally reckless.   There was, therefore, a rational basis for the distinction drawn by the Legislature in terms of the mitigating potential of passion/provocation.   We are therefore convinced that there is no merit in defendant's equal protection challenge.

IV.

We also find no basis to interfere with the sentence imposed.   The sentencing range for defendant's crime, aggravated manslaughter, was ten years to thirty years.  N.J.S.A. 2C:11-4(c).  He received the maximum thirty year prison term, with an eighty-five percent parole bar pursuant to N.J.S.A. 2C:43-7.2. The sentence was squarely within the sentencing range, and the parole ineligibility period was mandatory under NERA. In imposing this sentence, the court found aggravating factors (1), (2), (3), and (9),¹ which are adequately supported in the record, especially considering the seriousness of his offense, the vulnerability of the victim, defendant's denial of involvement, and lack of genuine remorse.   Weighed against these considerations is the lack of any mitigating factors, which the court also properly determined.²  Thus, defendant's sentence is neither unreasonable nor shocking to the judicial conscience.  State v. Bieniek, 200 N.J. 601, 608 (2010);  State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.

FOOTNOTES

FN1. N.J.S.A. 2C:44-1(a)(1), (2), (3), and (9)..  FN1. N.J.S.A. 2C:44-1(a)(1), (2), (3), and (9).

FN2. The jury's acquittal of the lesser-included passion/provocation manslaughter, supports the trial judge's exclusion of mitigating factors (3) and (4), N.J.S.A. 2C:44-1(b)(3) and (4), which relate to a strong provocation and justification..  FN2. The jury's acquittal of the lesser-included passion/provocation manslaughter, supports the trial judge's exclusion of mitigating factors (3) and (4), N.J.S.A. 2C:44-1(b)(3) and (4), which relate to a strong provocation and justification.

PER CURIAM