RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1148-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v. APPROVED FOR PUBLICATION AS REDACTED
MICHAEL OWENS, a/k/a January 6, 2026 MICHAEL WENS and APPELLATE DIVISION MICHAEL R. OWENS,
Defendant-Appellant. _________________________
Argued April 8, 2024 – Decided June 12, 2024 1
Before Judges Gilson, DeAlmeida, and Jacobs (Judge Gilson dissenting).
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 21-07-0466.
Kevin Scott Finckenauer, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer Nicole Sellitti, Public Defender, attorney; Kevin Scott Finckenauer, of counsel and on the briefs).
1 We are now publishing most of an opinion, including the dissent, which we previously issued as an unpublished opinion. The published version omits our analysis of several issues raised by defendant, which were discussed in Part II, sections C and D of the unpublished majority opinion, and Part II, sections B, C, and D of the dissent. We have not included those sections because we do not think those issues need to be included in a published opinion. See R. 1:36-3. We have also made minor edits and revisions to the published opinion. Matthew S. Samel, Assistant Prosecutor, argued the cause for respondent (Angelo J. Onofri, Mercer County Prosecutor, attorney; Matthew S. Samel, of counsel and on the brief).
The opinion of the court was delivered by
JACOBS, J.A.D.
Defendant Michael Owens appeals his August 2022 conviction and
sentence for the first-degree murder of Luis Gonzalez and related charges. We
vacate defendant's first-degree murder conviction, as well as his conviction for
second-degree possession of a firearm for an unlawful purpose. We also reverse
defendant's conviction for fourth-degree theft. We affirm his convictions of
second-degree unlawful possession of a handgun without a permit and third-
degree aggravated assault.
I.
On the evening of July 17, 2020, Hamilton Township police officers
responded to a report of domestic violence between defendant and his girlfriend,
M.L.2 The incident was sparked by defendant's discovery that another man had
telephoned her. Enraged by this contact, defendant grabbed M.L. by the throat
2 We use initials to protect the identity of M.L. as a victim of domestic violence. R. 1:38-3(c)(12). A-1148-22 2 and began to choke her. M.L. escaped defendant's grip, but immediately
afterward defendant snatched her cell phone and car keys and drove off in M.L.'s
black Chevrolet Malibu.
With defendant's departure, M.L. went to a neighbor's house and asked
them to call the police. While there, M.L. called a man named Luis Gonzalez.
M.L. regularly bought heroin from Gonzalez for personal use and resale.
Evidence at trial showed that defendant obtained Gonzalez's contact information
from M.L.'s cell phone that very day. The State theorized defendant learned of
Gonzalez's whereabouts in this manner.
Within approximately forty-five minutes of the domestic violence incident
between M.L. and defendant in Hamilton, Trenton police officers responded to
a report of gunshots at an address approximately one mile away. Upon arrival,
police found Gonzalez's body lying in the middle of the street outside of his
home. Police and emergency medical personnel rendered aid on scene.
Gonzalez was transported to a local hospital. Shortly after arrival, he was
pronounced dead. An autopsy determined the cause of death as two gunshot
wounds to the torso.
In the investigation that ensued, police learned from Gonzalez's brother
that Gonzalez had been speaking angrily on the phone just before he was shot.
A-1148-22 3 GPS location and cell phone data tracked M.L.'s phone to the immediate vicinity
of the homicide at the time of shooting. 3 Police also secured surveillance video
from various locations in the area. From this footage, they identified M.L.'s
black Chevrolet Malibu at the scene of the shooting. Surveillance video showed
the fatal shots were fired from that vehicle. Present in the car was an individual
matching defendant's description. In addition, text messages obtained via
warrant evidenced drug sales between M.L. and Gonzalez. The messages
between M.L. and defendant included ones from defendant upset with M.L's
heroin use. Based on this evidence, a warrant was issued for defendant's arrest.
In July 2021, a Mercer County grand jury returned an indictment for (1)
first-degree murder, N.J.S.A. 2C:11-3(a)(1); (2) second-degree possession of a
firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); (3) second-degree
unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)(1); (4)
third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(13); (5) fourth-degree
theft by unlawful taking (M.L.'s cell phone), N.J.S.A. 2C:20-3(a); and (6)
second-degree certain person not to have a weapon, N.J.S.A. 2C:39-7(b)(1).
3 The day following the shooting, M.L. found her phone on a couch within an apartment she shared with defendant and their minor son. A-1148-22 4 Before trial, defense counsel made an application to sever the theft and
aggravated assault charges. Following a N.J.R.E. 404(b) hearing and
application of the Cofield4 factors, the trial court denied defendant's application.
Trial was conducted between July 19, 2022 and August 23, 2022.
Defendant elected to proceed with an identification defense. That defense
failed.
Following convictions on the first five counts, the State dismissed count
six, charging second-degree certain person not to possess a firearm, N.J.S.A.
2C:39-7(b)(1). Defendant was sentenced to an aggregate term of forty-five
years with a parole disqualifier of eighty-five percent pursuant to the No Early
Release Act, N.J.S.A. 2C:43-7.2.
II.
Defendant raises the following points on appeal:
POINT I
THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON PASSION/PROVOCATION MANSLAUGHTER AS A LESSER-INCLUDED OFFENSE OF MURDER BECAUSE THE STATE'S ENTIRE THEORY OF THE CASE WAS THAT MR. OWENS KILLED LUIS GONZALEZ IN A RAGE OVER GONZALEZ
4 State v. Cofield, 127 N.J. 328, 338 (1992). A-1148-22 5 CONTACTING HIS ROMANTIC PARTNER, [M.L.]. (NOT RAISED BELOW).
POINT II
THE TRIAL COURT ERRED IN FAILING TO SEVER THE DOMESTIC VIOLENCE AGGRAVATED ASSAULT FROM THE HOMICIDE OFFENSES.5
We address defendant's arguments in turn.
A. Jury Instruction on Passion/Provocation Manslaughter.
Defendant argues the evidence presented at trial clearly indicated
passion/provocation manslaughter, a lesser-included offense to murder. He
contends the trial court was obligated to sua sponte instruct the jury on this
lesser-included offense despite his counsel's failure to request the instruction
below. We agree.
It is well-settled that "[a]ccurate and understandable jury instructions in
criminal cases are essential to a defendant's right to a fair trial." State v.
Concepcion, 111 N.J. 373, 379 (1988). However, "[i]f the defendant does not
object to the charge at the time it is given, there is a presumption that the charge
was not error and was unlikely to prejudice the defendant's case." State v.
5 In accordance with Rule 1:36-3, the published version of this opinion omits discussion of the stipulation, theft charge, and the sentence discussed in the unpublished version in Part II, Sections C and D of the majority opinion. A-1148-22 6 Singleton, 211 N.J. 157, 182 (2012) (citing State v. Macon, 57 N.J. 325, 333-34
(1971)).
Therefore, "the failure to object to a jury instruction requires review under
the plain error standard." State v. Wakefield, 190 N.J. 397, 473 (2007) (citing
State v. Bunch, 180 N.J. 534, 541 (2004)). The plain error standard involves a
two-fold determination: "(1) whether there was error; and (2) whether that error
was 'clearly capable of producing an unjust result,' R. 2:10-2; that is, whether
there is 'a reasonable doubt . . . as to whether the error led the jury to a result it
otherwise might not have reached.'" State v. Dunbrack, 245 N.J. 531, 544 (2021)
(quoting State v. Funderburg, 225 N.J. 66, 79 (2016)) (omission in original). "If
both conditions are met, reversal is warranted." Ibid.; see also State v. Walker,
203 N.J. 73, 89 (2010).
"A trial court's determination of whether to include a charge to a lesser [-]
included offense is governed by statute." Dunbrack, 245 N.J. at 544. Under
N.J.S.A. 2C:1-8(e), "[t]he court shall not charge the jury with respect to an
included offense unless there is a rational basis for a verdict convicting the
defendant of the included offense." Ibid. (alteration in original). If, as here, the
defendant "did not request a charge or did not object to the omission of a charge
to a lesser[-]included offense," the appellate court does not review the record to
A-1148-22 7 determine whether a rational basis existed. Id. at 545. Rather, it assesses
"whether the record 'clearly indicated' the charge, such that the trial court was
obligated to give it sua sponte." Ibid. (quoting State v. Denofa, 187 N.J. 24, 41-
42 (2006)). In other words, "[a]n unrequested charge on a lesser-included
offense must be given only where the facts in evidence 'clearly indicate' the
appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002)
(citing State v. Choice, 98 N.J. 295, 298 (1985)).
"[A] trial court has an independent obligation to instruct on lesser -
included charges when the facts adduced at trial clearly indicate that a jury could
convict on the lesser while acquitting on the greater offense." State v. Jenkins,
178 N.J. 347, 361 (citing State v. Garron, 177 N.J. 147, 180 (2003)). However,
"when the defendant fails to ask for a charge on lesser-included offenses, the
court is not obliged to sift meticulously through the record in search of any
combination of facts supporting a lesser-included charge." Denofa, 187 N.J. at
42 (citing State v. Sloane, 111 N.J. 293, 303 (1988)). Thus, even if neither the
State nor defendant requests the trial judge to instruct the jury on a lesser-
included offense, "the court must sua sponte provide [such] an instruction" when
appropriate. State v. Maloney, 216 N.J. 91, 107 (2013) (internal citations
A-1148-22 8 omitted). Ultimately, "the need for the charge must 'jump off' the proverbial
page." State v. R.T., 205 N.J. 493, 510 (2011) (quoting Denofa, 187 N.J. at 42).
"Passion/provocation manslaughter is an intentional homicide committed
under extenuating circumstances that mitigate the murder." State v. Robinson,
136 N.J. 476, 481 (1994). A criminal homicide may be considered manslaughter
when "[a] homicide which would otherwise be murder under [section] 2C:11-3
is committed in the heat of passion resulting from a reasonable provocation."
N.J.S.A. 2C:11-4(b)(2). "Thus, passion/provocation manslaughter is considered
a lesser-included offense of murder: the offense contains all the elements of
murder except that the presence of reasonable provocation, coupled with
defendant's impassioned actions, establish a lesser culpability." Robinson, 136
N.J. at 482; see also N.J.S.A. 2C:1-8(d)(3).
In our jurisprudence, attempted passion/provocation manslaughter is comprised of four elements: [1] the provocation must be adequate; [2] the defendant must not have had time to cool off between the provocation and the slaying; [3] the provocation must have actually impassioned the defendant; and [4] the defendant must not have actually cooled off before the slaying.
[Funderburg, 225 N.J. at 80 (quoting State v. Mauricio, 117 N.J. 402, 411 (1990)).]
The first two criteria are objective and the second two are subjective.
Mauricio, 117 N.J. at 411.
A-1148-22 9 "In determining whether to instruct a jury on passion/provocation
manslaughter, the trial judge must view the evidence in the light most favorable
to defendant." State v. Viera, 346 N.J. Super. 198, 212 (App. Div. 2001) (citing
Mauricio, 117 N.J. at 412). As the Supreme Court explained,
a trial court in charging a jury sua sponte must find first that the two objective elements of passion/provocation manslaughter are clearly indicated by the evidence. If they are, the two subjective elements should "almost always be left for the jury." That standard is equally applicable to a trial court's decision to charge a jury sua sponte on attempted passion/provocation manslaughter.
[Robinson, 136 N.J. at 491 (citing Mauricio, 117 N.J. at 413) (emphasis in original).]
The two objective elements are whether the provocation was adequate and
whether there was time for the defendant to cool off before the homicide. The
measure of adequate provocation is "whether loss of self-control is a reasonable
reaction." Mauricio, 117 N.J. at 412. "The provocation must be sufficient to
arouse the passions of an ordinary [person] beyond the power of his [or her]
control." Robinson, 136 N.J. at 491 (quoting Mauricio, 117 N.J. at 412)
(alterations in original) (internal quotation marks omitted). "The generally
accepted rule is that words alone, no matter how offensive or insulting, do not
constitute adequate provocation to reduce murder to manslaughter."
Funderburg, 225 N.J. at 80 (quoting State v. Crisantos, 102 N.J 265, 274 (1986)).
A-1148-22 10 Notwithstanding these parameters, the Supreme Court has "acknowledge[d] and
embrace[d] the 'trend away from the usual practice of placing the various types
of provocatory conduct into pigeon-holes . . . .'" State v. Perry, 124 N.J. 128,
159 (1991) (internal citations omitted).
Concerning the cooling-off period, the Supreme Court has said "it is well-
nigh impossible to set specific guidelines in temporal terms," therefore "[t]rial
courts are . . . remitted to the sense of the situation as disclosed by the facts."
Mauricio, 117 N.J. at 413. In Mauricio, where the defendant argued with a bar
bouncer, left, and returned to commit a homicide within a duration of "anywhere
from fifteen minutes to forty-five minutes (the issue was in dispute)," the Court
observed:
[n]or can we say that as a matter of law the time period between defendant's altercation with the bouncer and humiliation at being ejected and his shooting of the victim – something over half an hour – was such that no jury could rationally determine that a reasonable person's inflamed passions might not have cooled sufficiently to permit the return of self-control.
[Id. at 415-16.]
Here, the evidence "clearly indicates" defendant learned of the dangerous
nature of his girlfriend's relationship with the deceased, became impassioned,
and committed a homicide within a forty-five-minute time frame. In opening
A-1148-22 11 arguments, the prosecutor amplified the significance of this newfound
knowledge:
Because about forty-five minutes before the murder, around 8:00 p.m. . . . the evidence will show that the defendant was going through [M.L.'s] phone. And when he was going through her phone[,] he became enraged about the contents of her phone.
Now, before you understand the relationship between Michael Owens and Luis Gonzalez, first you need to understand the relationship between [M.L.], Michael Owens's girlfriend, and Luis Gonzalez. Put quite simply, Luis Gonzalez had been selling [M.L.] drugs. He had been selling her heroin.
[(Emphasis added).]
In urging a finding of guilty during closing arguments, the prosecutor
stressed defendant's anger at learning of the drug-based relationship between
Gonzalez and M.L.
The defendant [started] calling Luis Gonzalez immediately at 8:03 [p.m.] and then continuously six more times up until the murder. [M.L.] calling Luis Gonzalez from [a friend's] phone after she was just assaulted, Gonzalez being deleted, references to [M.L.'s] phone. And then after the fact[,] texting about dope, angry about it. Well[,] where did she get her dope? She got her heroin from Luis Gonzalez.
A-1148-22 12 The lethal consequence of drug use, particularly heroin, is well known.
The information defendant discovered and to which he swiftly reacted struck at
the core of his romantic and familial relationship with M.L. and their minor
child. Learning that M.L. was a heroin addict whose drugs were supplied by
Gonzalez threatened the health of his romantic relationship and the continuance
of their family structure. More abstractly, discovering the involvement of a
loved one in drug use bears direct resemblance to a classic scenario, where one
reacts violently to the surprise discovery of one's romantic partner in a sexual
liaison. Determining that the impact of a discovery of this kind would provoke
an impassioned reaction, as here, does not require a "meticulous[] . . . sift[ing]
through the entire record[.]" Funderburg, 225 N.J. at 81 (quoting Choice, 98
N.J. at 299). Rather, the evidence "jump[s] off the page." Ibid. (quoting Denofa,
187 N.J. at 42).
In so ruling, we consider also the theory of prosecution in the context of
this case. Here, the State's opening and closing arguments on the identification
linked defendant's impassioned reaction to discovery of a drug-based
relationship of his child's mother to the homicide that followed in short order.
As a matter of fundamental fairness, because the State centered its prosecution
on defendant's impassioned conduct, defendant is entitled to the jury's
A-1148-22 13 consideration of that mental state in rendering its verdict. Under these
circumstances, failing to administer the passion/provocation manslaughter
instruction is "of such a nature to have been clearly capable of producing an
unjust result." State v. Allen, 254 N.J. 530, 549 (2023) (quoting State v.
Trinidad, 241 N.J. 425, 451 (2020)). The impact of this knowledge in these
circumstances is adequate provocation to meet the first element of the
passion/provocation test. Mauricio, 117 N.J. at 411.
In this regard, we differ with the dissent, which cites State v. Copling for
holding "that there was insufficient provocation when the defendant killed the
victim 'in retaliation' [upon] learning that the victim had attacked the defendant's
younger brother the previous day." 326 N.J. Super. 417, 430-31 (App. Div.
1999). The court in Copling stressed that the defendant's conduct was retaliatory
rather than legally provoked, because while defendant's brother was indeed
attacked, "defendant learned that his brother was uninjured" before taking lethal
action. Ibid. By contrast, the State here emphasized that drug sales to M.L. in
fact occurred. The resultant harm to M.L. and the family structure is a given.
Additionally, as noted in Copling, the Court has recognized that "a person
can be provoked without actually witnessing the provoking assault on the
relative." Id. at 429-30 (internal citations omitted); see also 2 LaFave & Scott,
A-1148-22 14 § 7.10 at 657-58 (2d ed.1986) (noting that words conveying information of a
fact that would constitute adequate provocation had that fact been observed
constitutes sufficient provocation). Thus, it is words conveying factual
information of conduct toward a relative – rather than the words themselves –
that here constitutes adequate provocation.
Also objectively present is a compressed period of time (forty-five
minutes) sufficient to meet the second element. Mauricio, 117 N.J. at 412-13.
Whether the provocation "actually impassioned" defendant and whether
defendant failed to cool off before the slaying are subjective jury questions. Id.
at 411; see also Funderburg, 225 N.J. at 80, 82. It is for a jury to determine
whether by stopping for gas, visiting a housing complex, and "apparently [twice]
sp[eaking] to Gonzalez," as the dissent observes, defendant had sufficient time
to cool off.
In so ruling, we recognize that because the prosecution and defense were
vested in all-or-nothing identification theories, neither they nor the trial court
considered with any detail whether to include a passion/provocation
manslaughter instruction. The entire discussion of lesser-included offenses
consisted of this exchange:
A-1148-22 15 THE COURT: All right. Let's talk lesser included [offenses]. Are there any possible lesser included offenses?
[ASSISTANT PROSECUTOR]: State submits that there's not, Your Honor.
[DEFENSE COUNSEL]: I agree.
THE COURT: Okay. No lesser included.
Notwithstanding this understandable oversight, it was plain error for the
trial court not to administer a passion/provocation manslaughter instruction. In
so concluding, we determine that failure to so charge likely led to an unjust
result that is "sufficient to raise a reasonable doubt as to whether the error led
the jury to a result it otherwise might not have reached." State v. Williams, 168
N.J. 323, 336 (2001) (quoting Macon, 57 N.J. at 336).
Finally, we stress that even where defendant relies exclusively on an
identification defense for strategic considerations, "[t]he public interest in a
correct verdict based on the evidence must trump the partisan strategic
maneuvering of both the State and the defendant." Garron, 177 N.J. at 180.
Such is the case here. The inconsistency of this charge with the defense
stratagem, as highlighted in dissent, could and should have been assuaged with
a jury charge explaining that when the law requires, the trial court has a duty to
administer a charge for alternate theories of liability. Absent the administration
A-1148-22 16 of a charge required by law, it is the defendant's right to a fair trial, rather than
the integrity of the jury's verdict, that is at stake. U.S. Const. amend. VI; N.J.
Const. art. I, ¶ 10.
B. Severance of the Aggravated Assault Charge.
As mentioned, defense counsel's motion to sever the aggravated assault
charge was denied. In denying the application, the trial court ruled that joinder
of the six counts into a single indictment was proper under Rule 3:7-6, which
provides in pertinent part:
Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on [two] or more acts or transactions connected together or constituting parts of a common scheme or plan.
Applying the four-prong test set forth in Cofield, the court found that
evidence of the aggravated assault and theft would likely be admissible under
N.J.R.E. 404(b) in a separate trial. Therefore, defendant would not be overly
prejudiced by the inclusion of those charges in the indictment. The four -prong
test under Cofield requires:
(1) evidence of the other crime must be admissible as relevant to a material issue;
A-1148-22 17 (2) it must be similar in kind and reasonably close in time to the offense charged;
(3) the evidence of the other crime must be clear and convincing; and
(4) the probative value of the evidence must not be outweighed by its apparent prejudice.
[127 N.J. at 338.]
We give great deference to the decision of the trial court in our review of
its determination on the admissibility of evidence of other crimes under N.J.R.E.
404(b). State v. Lykes, 192 N.J. 519, 534 (2007). "Only where there is a 'clear
error of judgment' should the 'trial court's conclusion with respect to that
balancing test' be disturbed." State v. Marrero, 148 N.J. 469, 483 (1997)
(quoting State v. DiFrisco, 137 N.J. 434, 496-97 (1994)).
We will not address the trial court's analysis of the first three prongs, as
that analysis was legally sound. Here, our concern is limited to the fourth and
most difficult prong to assess under Cofield. Due to the damaging nature of
such evidence, the trial court must engage in a "careful and pragmatic
evaluation" of the evidence to determine whether the probative worth of the
evidence is outweighed by its potential for undue prejudice. Cofield, 127 N.J.
at 334.
A-1148-22 18 "The trial judge should be careful to exclude other . . . crimes evidence,
even though it is independently relevant, wherever he [or she] can reasonably
do so without damaging the . . . prosecutor's case." State v. Stevens, 115 N.J.
289, 303 (1989) (quoting Report of the New Jersey Supreme Court Committee
on Evidence 103 (1963)). To reduce inherent prejudice, trial courts are required
to sanitize the evidence when appropriate. State v. Collier, 316 N.J. Super. 181,
195 (App. Div. 1998). In Collier, the court stated "[t]hat sanitizing
accommodates the right of the proponent to present relevant evidence and the
right of the objecting party to avoid undue prejudice." Ibid. at 195; see also
State v. Brown, 180 N.J. 572, 584 (2004) (finding "that any potential for
prejudice can be ameliorated by the sanitization of the predicate offense"); State
v. Fortin, 318 N.J. Super. 577, 598 (App. Div. 1999) (noting that "at trial the
judge must 'sanitize' the other-crime evidence by confining its admissibility to
those facts reasonably necessary for the probative purpose of 'identity'").
Here, it was a clear error in judgment for the trial court not to sanitize the
State's proofs regarding the aggravated assault charge. M.L. suffered visible
injuries to her face, fingers, and neck. Of those injuries, superfluous testimony
regarding choking were most likely to cause undue prejudice, as that aspect of
the assault has an ineluctable propensity to suggest homicidal intent. Such
A-1148-22 19 prejudice could have been readily avoided by permitting the State to present
proofs of a physical assault while limiting glaringly prejudicial details, such as
testimony regarding defendant choking M.L. by the neck.
Because we have ruled in defendant's favor on his arguments for a
passion/provocation charge and severance questions, we need not reach his
argument regarding the weight to be given to general deterrence as an
aggravating factor in sentencing. N.J.S.A. 2C:44-1(a)(9).
In sum, we vacate defendant's convictions of first-degree murder and
second-degree possession of a firearm for an unlawful purpose and vacate the
sentence imposed on those counts. In addition, we reverse defendant's
conviction of fourth-degree theft by unlawful taking, vacate the sentence
imposed for that conviction, and dismiss with prejudice count four of the
indictment charging that offense. We remand for resentencing on defendant's
convictions for second-degree unlawful possession of a handgun without a
permit and second-degree aggravated assault, which defendant did not
challenge. Should this matter be retried on the vacated charges, the trial court
must sanitize presentation of the aggravated assault charge as provided herein.
Vacated, reversed, and remanded for proceedings consistent with this
opinion. We do not retain jurisdiction.
A-1148-22 20 RECORD IMPOUNDED
_________________________________
GILSON, P.J.A.D., dissenting.
The majority concludes that evidence of defendant becoming enraged
when he looked at his girlfriend's text messages and saw she was buying drugs
from Louis Gonzalez and, forty-five minutes later, twice shot and killed
Gonzalez constitutes clear evidence that defendant was passionately provoked
into shooting Gonzalez. I disagree and, therefore, dissent.
My dissent is based on four considerations. First, Gonzalez did not
provoke defendant. Second, to the extent that defendant was ever passionately
provoked, he had ample time to cool off before he shot Gonzalez. Third, we
review this jury instruction issue for plain error, and I see none. Finally, our
jurisprudence is based on the sound principle that a jury verdict should be
respected, and I do not see clear grounds for vacating defendant's murder
conviction.
"'[P]assion/provocation manslaughter,' occurs when a homicide which
would otherwise be murder . . . is 'committed in the heat of passion resulting
from a reasonable provocation.'" State v. Galicia, 210 N.J. 364, 378-79 (2012)
(quoting N.J.S.A. 2C:11-4(b)(2)). Murder is punishable by a term of thirty years
to life imprisonment with a period of parole ineligibility as prescribed by the No Early Release Act (NERA). N.J.S.A. 2C:11-3(b)(1); N.J.S.A. 2C:43-7.2. In
contrast, voluntary manslaughter is punishable by a term of imprisonment of
five to ten years, subject to NERA. See N.J.S.A. 2C:11-4(c); N.J.S.A. 2C:43-
6(a)(2); N.J.S.A. 2C:43-7.2.
Passion/provocation manslaughter has four elements: "(1) reasonable and
adequate provocation; (2) no cooling-off time in the period between the
provocation and the slaying; (3) a defendant who actually was impassioned by
the provocation; [and] (4) a defendant who did not cool off before the slaying."
Galicia, 210 N.J. at 379-80 (quoting State v. Josephs, 174 N.J. 44, 103 (2002)).
The first two elements are "objective; thus, if they are supported by the evidence,
the trial court should instruct the jury on passion/provocation manslaughter,
leaving the determination of the remaining elements to the jury." Id. at 380
(quoting Josephs, 174 N.J. at 103).
"'[T]he passion sufficient to sustain a passion/provocation manslaughter
verdict must disturb a defendant's reason,' [and] . . . this passion must 'deprive[]
the killer of the mastery of understanding, a passion which was acted upon
before a time sufficient to permit reason to resume its sway had passed.'" Id. at
379 (third alteration in original) (quoting State v. Pitts, 116 N.J. 580, 612
(1989)) (internal quotation marks omitted). Reducing an act that would
A-1148-22 2 otherwise be murder to voluntary manslaughter is based on the rationale that
when sufficiently provoked, a "person can understandably react violently to a
sufficient wrong and hence some lesser punishment is appropriate." State v.
Guido, 40 N.J. 191, 209-10 (1963). In considering the second element, "[t]he
amount of time that passes between the provocation alleged and the killing, and
the precise sequence of events, are thus pivotal factors in [the] determination."
Galicia, 210 N.J. at 380.
A. No Clear Provocation.
Gonzalez did not provoke defendant. Instead, defendant became outraged
when he looked at his girlfriend's text messages at her apartment in Hamilton.
Gonzalez was not present; rather, the evidence demonstrated that Gonzalez was
in the neighboring city of Trenton, at least a mile away.
The majority points out that the New Jersey Supreme Court has
"acknowledge[d] and embrace[d] the 'trend away from the usual practice of
placing the various types of provocatory conduct into pigeon-holes.'" State v.
Perry, 124 N.J. 128, 159 (1991) (quoting State v. Mauricio, 117 N.J. 402, 414
(1990)). The majority also points out that in determining whether to instruct a
jury on passion/provocation manslaughter, the trial judge must view the
evidence in the light most favorable to the defendant. See State v. Viera, 346
A-1148-22 3 N.J. Super. 198, 212 (App. Div. 2001). Nevertheless, the facts of this case do
not fall within the ambit of what an ordinary person would consider reasonable
provocation. Gonzalez did not take any direct actions against defendant.
Instead, defendant saw text messages between his girlfriend and Gonzalez. It is
well-established that "words alone" do not "constitute adequate provocation to
reduce murder to manslaughter." State v. Funderburg, 225 N.J. 66, 80 (2016)
(quoting State v. Crisantos, 102 N.J. 265, 274 (1986)). In this case, there was
no evidence that the text messages defendant saw were intended to or would
reasonably provoke an ordinary person into a passionate rage to kill another
person. There is a difference between becoming angry and being passionately
provoked. See State v. Copling, 326 N.J. Super. 417, 430-31 (App. Div. 1999)
(reasoning that there was insufficient provocation when the defendant killed the
victim "in retaliation" after learning that the victim had attacked the defendant's
younger brother the previous day).
The majority reasons that defendant "swiftly" reacted to seeing text
messages concerning drug sales and assumes that the messages "struck at the
core" of "his romantic relationship and the continuance of their family
structure." That assumption ignores the fact that defendant assaulted his
girlfriend just after she received a call from an unknown male and before he saw
A-1148-22 4 any text messages from Gonzalez. Moreover, defendant's assault of his
girlfriend belies any assumption that he was passionately enraged because of the
potential that the girlfriend might overdose on heroin. Instead, the evidence of
the assault and defendant's systematic tracking down of Gonzalez demonstrate
a calculated but controlled anger—not passionate provocation.
The majority also reasons that seeing text messages about drug sales is
analogous to "the surprise discovery of one's romantic partner in a sexual
liaison." I suggest that analogy does not work. Defendant did not walk in and
find his girlfriend using drugs that Gonzalez had sold to her. Instead, they were
alone together, she received a call, he got angry, he assaulted her, he took her
cell phone, and then he saw the text messages from Gonzalez.
The issue before us is not whether text messages to a loved one can ever
constitute passion/provocation. Instead, the issue is whether those facts clearly
indicated the need to charge the jury because the passion/provocation jumped
off the page, such that the trial judge should have sua sponte given the charge.
Because there are no cases directly on point and because an ordinary person
would not be provoked into a homicidal rage by looking at text messages, I do
not see clear evidence of a reasonable provocation of defendant.
B. Ample Time to Cool Off.
A-1148-22 5 The evidence also does not clearly indicate that defendant remained
enraged between the time that he saw the text messages and the time that he shot
Gonzalez. Defendant saw the text messages at approximately 8:00 p.m. He first
assaulted his girlfriend, then took her cell phone and car keys, then drove around
for approximately forty minutes. During the time he was driving, he stopped at
a gas station and a housing complex, repeatedly called Gonzalez using the
girlfriend's cell phone, and apparently spoke to Gonzalez at least twice. That
evidence demonstrates that defendant had time to cool off before he twice shot
Gonzalez. At a minimum, that evidence does not clearly show that he did not
have time to cool off and that the trial court should have sua sponte given a
passion/provocation charge. See State v. Mujahid, 252 N.J. Super. 100, 117
(App. Div. 1991) (holding that the proofs did not rationally support a
passion/provocation charge when the defendant had a physical altercation with
two residents of a rooming house, went home and talked to his brother-in-law,
and returned to the rooming house approximately thirty minutes later with an
"angry look on his face").
C. No Plain Error.
As noted, we review whether the jury charge of passion/provocation
should have been given for plain error. Defendant did not ask for a
A-1148-22 6 passion/provocation charge. Instead, his counsel agreed with the State that there
was no evidence of a lesser-included charge of murder, or any other charge
against defendant. Critically, the decision not to request a passion/provocation
charge was not an oversight. As the majority concedes, defendant's defense was
based on a claim that he was not the shooter; that is, he claimed someone else
shot Gonzalez. It would have been highly inconsistent to rely on that def ense
and then ask for a passion/provocation charge. In other words, the jury would
have seen the obvious inconsistency in claiming that defendant was not the
shooter but, if he was the shooter, he acted because of reasonable provocation.
D. The Jury Verdict Should Be Respected.
Our State has always respected the use of juries in criminal matters.
Indeed, that right is guaranteed in the United States and New Jersey
Constitutions. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. Therefore,
appellate courts should have clear grounds when they vacate a jury verdict.
In this case, a jury of twelve persons heard the evidence and unanimously
found that defendant murdered Gonzalez. Inconsistent with the position he took
at trial, defendant now argues that the trial judge should have sua sponte given
the lesser-included charge of passion/provocation when instructing the jury on
the murder charge. As I have emphasized, I do not see clear evidence of
A-1148-22 7 passion/provocation. Therefore, I do not see clear grounds for reversing the
unanimous jury verdict of murder. So, I would reject defendant's argument that
the trial court erred in not giving a passion/provocation charge and affirm
defendant's conviction of murder.
Defendant raised four arguments in addition to his contention that the trial
court erred in failing to give the passion/provocation jury instruction. On one
of those issues, I disagree with the majority's conclusion. Specifically, I discern
no abuse of discretion in the trial court's denial of defendant's motion to sever
the aggravated assault charge from the murder charge. 1
A. The Denial of the Motion to Sever.
The majority concludes that the trial court erred in not sanitizing the
aggravated assault evidence and that the probative value of the evidence was
outweighed by its apparent prejudice because it was not properly sanitized. I
disagree.
1 In accordance with Rule 1:36-3, the published version of this opinion omits discussion of the stipulation, theft charge, and the sentence discussed in the unpublished version in Part II, Sections B, C, and D of the dissent.
A-1148-22 8 Defendant argued that there was no material relationship between the
assault of his girlfriend and Gonzalez's death. The trial court denied defendant's
motion to sever, reasoning that the charges were properly joined under Rule 3:7-
6 and that the evidence of the assault was admissible under N.J.R.E. 404(b). We
review decisions to sever and the admission of evidence under an abuse of
discretion standard. State v. Chenique-Puey, 145 N.J. 334, 341 (1996); State v.
Fortin, 318 N.J. Super. 577, 594-95 (App. Div. 1999), aff'd, 162 N.J. 517, 535
(2000).
The trial court reasoned that joinder was proper under Rule 3:7-6 because
of the proximity in time between the assault of the girlfriend and the shooting
of Gonzalez. The court also reasoned that the evidence surrounding the
aggravated assault was probative of defendant's motive to kill Gonzalez. See
State v. Cofield, 127 N.J. 328, 338 (1992). In reaching that conclusion, the trial
court analyzed each of the Cofield factors and found (1) that there was a logical
connection between the aggravated assault and murder; (2) the assault was close
in time to the murder; (3) the evidence of the assault was reliable; and (4) the
evidence of the assault was not unduly prejudicial as it related to the murder
charge.
A-1148-22 9 The majority focuses only on the fourth prong and concludes that the
evidence was unduly prejudicial. I do not see the evidence as unduly prejudicial.
Instead, I discern no abuse of discretion. The trial court was in a better position
to analyze the potential for prejudice. Unlike the majority, I do not deem
evidence that defendant choked his girlfriend to be unduly prejudicial given that
defendant was charged with aggravated assault of his girlfriend. I also discern
no abuse of discretion in admitting that evidence to be considered in relation to
the separate, but related, murder charge.
III.
In summary, I would affirm defendant's convictions on all crimes except
for the theft. I would also affirm his sentence and remand to have the judgment
of conviction amended to eliminate the conviction on the theft charge.
A-1148-22 10