NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5010-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH MCCOY, a/k/a ABDUL M. AKBAR SALAAM,
Defendant-Appellant. _______________________
Submitted April 19, 2021 – Decided June 28, 2021
Before Judges Rothstadt and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 17-06-1173.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Sarah D. Brigham, Deputy Attorney General, of counsel and on the brief).
PER CURIAM Defendant appeals from his convictions for murder and related firearms
offenses. The victim, J.H., 1 was defendant's girlfriend and was fatally shot in
the apartment they shared in Atlantic City. Defendant was sentenced on the
murder conviction to a fifty-year prison term subject to the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2. Defendant contends the prosecutor
committed misconduct by failing to instruct the grand jury that it could consider
lesser-included homicide offenses. He also contends: the trial judge should
have suppressed text messages found on the victim's cellphone that the
prosecutor failed to provide in discovery until the eve of trial; the trial judge
erred by denying defendant's request to instruct the jury that it could draw an
adverse inference from the State's failure to call a witness whose statement to
police was mentioned at the grand jury; the trial judge erred by not instructing
the petit jury on passion/provocation manslaughter; and the trial judge imposed
an excessive sentence. After carefully reviewing the record in light of the
arguments of the parties and the applicable principles of law, we reject these
contentions and affirm the convictions and sentence.
1 We use initials to protect the privacy of the domestic violence victim and her loved ones. N.J.S.A. 2A:82-46; N.J.S.A. 2C:25-19(a)(1).
2 A-5010-18 I.
We briefly recount the procedural history and the facts that are pertinent
to the issues raised in this appeal. In June 2017, the prosecutor presented
testimony to an Atlantic County grand jury from Detective Joseph Rauch, who
had been assigned to investigate the shooting death of J.H. Detective Rauch
testified that he obtained statements from several individuals whom defendant
communicated with shortly after the shooting. Those witnesses—Lance Byard,
Shamirah Dorsey, and Isaiah Seldon—were acquaintances of both defendant and
J.H. Detective Rauch told the grand jury that defendant admitted to Seldon that
defendant and J.H. had "got[ten] into a dispute, they were struggling and
sustained—and the gun went off and she got shot." Defendant asked Seldon for
transport out of Atlantic City. Seldon declined, telling defendant his vehicle
"had problems."
Detective Rauch also testified that he took a statement from defendant's
close friend and confidante, Stella Powell-Nixon, who stated that defendant had
called her that night upset and crying. Powell-Nixon was able to pick out the
words "Jackie," "hit," and "shoulder" from defendant's excited utterances.
Detective Rauch testified that those words corresponded to the injuries J.H.
sustained.
3 A-5010-18 After presenting the detective's testimony, the assistant prosecutor asked
the grand jury if they had any questions. The grand jurors declined to pose
questions to the prosecutor and proceeded to return an indictment charging
defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(2); second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1); and second-degree
possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1). The
grand jury returned a separate indictment charging defendant with second-
degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b)(1).
Defendant thereafter moved to dismiss the indictment, contending the
grand jury should have been presented with the option of charging defendant
with the lesser offenses of aggravated manslaughter, reckless manslaughter, and
passion/provocation manslaughter. On September 25, 2018, Judge John R. Rauh
heard oral argument and denied the motion.
The trial was scheduled to start on April 8, 2019 before Judge Donna M.
Taylor. On that day, the State informed the judge that it had recently been
notified that police were in possession of J.H.'s cellphone. The police had
overlooked the cellphone as a source of potential evidence until the State had
4 A-5010-18 begun its trial preparation. 2 According to the explanation of the assistant
prosecutor assigned to the case, approximately one week before trial, as the State
was interviewing its witnesses in preparation for trial, one witness (Keturah
Foster) identified J.H.'s cellphone. Recognizing its inadvertence, the State
immediately applied for and obtained a communications data warrant (CDW) to
extract data from the phone. On the afternoon of April 2, 2019, the assistant
prosecutor received a forensic report that included text messages that were
stored on the phone. The assistant prosecutor reviewed the records, deemed
them to be relevant to the case, left a voicemail message for defense counsel that
evening, and the next day emailed counsel a pdf copy of the text messages. The
2 The prosecutor acknowledged at the April 8, 2019 hearing:
I agree [the phone has] been in our possession. Like I said, if we had realized the significance at the time it would have been investigated further. . . . It's not like this was happening by the same detective at the same time where this was recognized. So while it was an oversight and it's not ideal, it's not any malicious intent on the part of the State, and again, I would have loved to have had this evidence two years ago. So this is something that—it's not just people weren't doing their job. The significance of the owner and identity of the person using this phone was not realized until substantive trial prep[aration], until it was confirmed by a witness, again, a witness who will testify in this courtroom later this week.
5 A-5010-18 assistant prosecutor also made several unsuccessful attempts to communicate
with defense counsel by phone, email, and in-person. The assistant prosecutor
finally spoke with counsel on April 5—the Friday before the Monday scheduled
trial date—at which time she turned over a CD containing the data that had been
extracted from the victim's phone.
At the April 8 hearing, Judge Taylor denied counsel's request to suppress
the text messages based on their belated production in discovery. Instead, the
judge granted a one-week continuance to permit defendant and his attorney an
opportunity to review the material.
On April 15, 2019—the rescheduled date for the start of trial—defendant
personally objected to the trial commencing, claiming that he had difficulty
accessing the digital information and insufficient time to review the text
messages. He also registered his dissatisfaction with his attorney's decision to
not file a motion for a further continuance. The State refuted defendant's claim
that he could not access the digital information, noting that it had provided
defendant with a computer to review the text messages the State intended to
introduce at trial. The State had also told defendant that it would assist him with
viewing the material for "as long as the defendant needed." Judge Taylor found
the State had made the information available to defendant and his counsel. She
6 A-5010-18 thereupon overruled defendant's personal objection and declined to adjourn the
trial.
Defendant was tried over the course of five consecutive days, after which
the jury returned guilty verdicts on the counts charging murder, unlawful
possession of a handgun, and possession of a firearm for an unlawful purpose.
Defendant waived his right to a jury trial for the bifurcated certain-persons
charge. The court held a bench trial on May 30, 2019, finding defendant guilty
of that offense.
We briefly summarize the evidence the State adduced at trial.
The State presented four witnesses—Keturah Foster, Lance Byard,
Shamirah Dorsey, and Isaiah Seldon—who testified as to the acrimonious
romantic relationship between defendant and the victim.
Keturah Foster testified she shared an apartment with defendant and
J.H.—the same apartment in which J.H. was later found dead. Foster claimed
she observed frequent arguments between defendant and the victim culminating
in defendant moving out shortly before J.H.'s death. Foster testified the couple
argued over whether defendant could take the mattress they shared. She heard
defendant tell the victim: "That's my mattress. You won't have another n****
sleep on this mattress."
7 A-5010-18 Foster also testified that at about 11:40 p.m. on the night of J.H.'s death,
Foster saw defendant's Facebook post depicting "a gun, a box of Newport
[cigarettes], weed, and a liquor bottle of Amsterdam green apple [vodka]" on
defendant's lap. Since Foster was not in the apartment at the time, she asked
J.H. via text message whether defendant was there with her. J.H. confirmed that
defendant was in the apartment with her.
Lance Byard and Shamirah Dorsey, who lived together, testified they
received a call from defendant on the night of the murder. They corroborated
Keturah Foster's account that defendant and J.H. were undergoing relationship
problems. On the night of the shooting, they were awoken by a call from
defendant's close friend, Stella Powell-Nixon. Powell-Nixon alerted them that
defendant had tried calling them to ask for assistance. Byard noted that he had
a missed call from defendant at 3:06 a.m. Byard and Dorsey arranged for Isaiah
Seldon to drive them to the victim's apartment. There, they discovered J.H.
lying unconscious, under the mattress she and defendant had previously shared,
with a gunshot wound on the side of her abdomen.
Isaiah Seldon testified that after he dropped Byard and Dorsey off at the
apartment, he parked the car and entered the apartment. He also observed J.H.
lying under the mattress. Seldon testified he then left the apartment and went to
8 A-5010-18 defendant's known drug "stash house." There, he encountered defendant
conferring with Stella Powell-Nixon. Seldon told defendant that he had come
from the victim's apartment but did not ask defendant what happened. Seldon
and defendant then "smoked a blunt." Defendant stated to Seldon, "I f***ed up"
and "I know I did her in." Defendant then asked Seldon for a ride out of Atlantic
City, but Seldon made up an excuse that his vehicle was inoperable.
The State introduced 114 text messages between defendant and the victim
spanning from the early afternoon to the night of the murder. Those messages
showed that defendant was upset that J.H. had a new lover. In a series of text
messages between 1:46 p.m. to 3:59 p.m., defendant asked for the identity and
location of J.H.'s new paramour so he could "shoot him in the face," claiming
that
[J.H.] violated [defendant], so somebody got to pay. And since it's not going to be [J.H.], that leaves [the other man]. Art of war, when violated one must strike with such savagery that those who violated will never think to do it again.
The State also played video surveillance footage from a nearby apartment
complex showing that at 2:52 a.m., a large mattress-shaped object poked out of
the victim's apartment and was then pulled back inside. The State also presented
phone records showing that defendant had called 9-1-1 at 3:01 a.m.—hanging
9 A-5010-18 up after two seconds—and again at 3:13 a.m. Defendant reported an alleged
robbery and shooting at the victim's apartment, but again hung up when the 9-
1-1 operator asked, "who has the gun."
The court sentenced defendant on the murder conviction to a fifty-year
state prison term subject to NERA. The trial court merged the conviction for
unlawful possession of a firearm for an unlawful purpose into the murder
conviction. The court also imposed an eight-year prison sentence with a four-
year term of parole ineligibility on defendant's conviction for unlawful
possession of a firearm, and a seven-year prison term with a five-year period of
parole ineligibility on the conviction for the certain persons offense. The court
ordered that the sentences imposed on the weapons convictions were to run
concurrently with each other and the sentence imposed on the murder
conviction.
Defendant raises the following arguments for our consideration:
POINT I
DEFENDANT'S MOTION TO DISMISS THE INDICTMENT WAS IMPROPERLY DENIED.
POINT II DEFENDANT WAS UNDULY PREJUDICED BY THE TRIAL COURT'S DECISION TO PERMIT THE STATE TO OFFER EVIDENCE OF TEXT
10 A-5010-18 MESSAGES IN THE POSSESSION OF THE STATE, BUT NOT PROVIDED TO DEFENDANT IN DISCOVERY UNTIL THE EVE OF TRIAL.
POINT III
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S REQUEST FOR AN ADVERSE INFERENCE JURY INSTRUCTION DUE TO THE STATE'S FAILURE TO CALL STELLA POWELL- NIXON AS A WITNESS.
POINT IV THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S REQUEST TO INSTRUCT THE JURY AS TO PASSION/PROVOCATION MANSLAUGHTER.
POINT V DEFENDANT'S SENTENCE OF FIFTY YEARS, SUBJECT TO THE NO EARLY RELEASE ACT IS MANIFESTLY EXCESSIVE.
II.
We first address defendant's contention the court erred in denying his
motion to dismiss the indictment because the prosecutor failed to instruct the
grand jury on lesser forms of homicide. 3 We begin our analysis by
3 The petit jury was instructed on the lesser-included offenses of aggravated manslaughter, N.J.S.A. 2C:11-4(a), and reckless manslaughter, N.J.S.A. 2C:11- 4(b)(1). The trial judge declined defendant's request to instruct the petit jury on passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2). We address
11 A-5010-18 acknowledging the legal principles governing this appeal. The scope of our
review is narrow. We review the trial court's determination of a motion to
dismiss for a clear abuse of discretion. State v. Aloi, 458 N.J. Super. 234, 238
(App. Div. 2019) (citing State v. Ferguson, 455 N.J. Super. 56, 63 (App. Div.
2018)). An indictment is presumed valid, see State v. Perry, 124 N.J. 128, 167–
68 (1991), and should not be dismissed unless "manifestly deficient or palpably
defective," State v. Hogan, 144 N.J. 216, 229 (1996). See also State v. Tringali,
451 N.J. Super. 18, 27 (App. Div. 2017) ("A trial court should only dismiss an
indictment on the 'clearest and plainest' grounds and only when it is clearly
defective.") (quoting State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18–19 (1984)).
Furthermore, "[s]o long as the prosecutor has probable cause to believe
that the accused committed an offense defined by the statute, the decision
whether or not to prosecute, and what charge[s] to file or bring before a grand
jury, generally rests entirely in [the prosecutor's] discretion." Perry, 124 N.J. at
168 (quoting Bordenkicher v. Haye, 434 U.S. 357, 364 (1978)). Moreover, "any
error in the grand jury proceeding connected with the charging decision [is]
harmless" in light of a petit jury's subsequent verdict of guilty as charged beyond
defendant's contention the petit jury should have been instructed on passion/provocation manslaughter in Section V, infra.
12 A-5010-18 a reasonable doubt. United States v. Mechanick, 475 U.S. 66, 70 (1986); State
v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994).
Importantly for purposes of this appeal, "[a] lesser-included offense . . .
need not be separately charged in the indictment." Warmbrun, 277 N.J. Super.
at 60 (quoting State v. Mann, 244 N.J. Super. 622, 628 (App. Div. 1990)). Our
Supreme Court recently affirmed this principle in State v. Bell, 241 N.J. 552,
566 (2020). In that case, the Court held:
When the grand jurors' questions, considered in context, ask about lesser-included offenses and there is a rational basis for instructions on [those] lesser- included offenses, the better practice for prosecutors is to provide them and advise the grand jury that the trial court may include instructions on lesser-included offenses whether or not the grand jury authorizes them.
[Ibid.]
The Court did not, however, establish a per se rule requiring grand juries to be
given the option to charge lesser-included offenses. The Court carefully
examined decisions of other state supreme courts, noting "[t]hose courts have
generally found no affirmative duty [on the part of the prosecutor] to instruct on
lesser-included offenses because of the discretion inherent in prosecutors'
charging decisions." Id. at 563–64 (citing State v. Coconino Cnty. Super. Ct.,
678 P.2d 1386, 1389 (Ariz. 1984); Cummiskey v. Super. Ct., 839 P.2d 1059,
13 A-5010-18 1062 (Cal. 1992); Oxereok v. State, 611 P.2d 913, 917 (Alaska 1980);
Commonwealth v. Noble, 707 N.E.2d 819, 822 (Mass. 1999)). The Court agreed
with those decisions, ultimately concluding "the constitutional protections
afforded defendants by the grand jury process are not undermined by the failure
to charge lesser-included offenses." Id. at 565.
We agree with Judge Taylor that in this case, there was no affirmative
duty for the prosecutor to present lesser-included offenses to the grand jury.
Importantly, no members of the grand jury ever asked about such charges. In
these circumstances, the decision to present the grand jury with lesser-included
offenses rested in the discretion of the prosecutor. We see no abuse of
prosecutorial discretion here. Nor did the trial judge abuse her discretion in
denying defendant's motion to dismiss the indictment. We add that even
assuming for the sake of argument that the grand jury should have been
presented with the option to indict on types of homicide besides
knowing/purposeful murder, any such error is harmless in light of the petit jury's
subsequent guilty verdict on the murder charge after having been instructed on
the lesser-included offenses of aggravated manslaughter and reckless
manslaughter. See Mechanick, 475 U.S. at 70; Warmbrun, 277 N.J. Super. at
60.
14 A-5010-18 III.
We next address defendant's contentions related to the eleventh-hour
discovery of the text messages the State introduced at trial. We begin by
reaffirming the importance of full and timely discovery. Our Court Rules are
designed to "assist defendants [in] mount[ing] a complete defense." State v.
Smith, 224 N.J. 36, 48 (2016). "Rule 3:13-3 entitles defendants to broad
discovery and imposes an affirmative duty on the State to make timely
disclosure of relevant information." Ibid. (citing R. 3:13-3(b)(1)). "The rule
also places a continuing duty on the State to provide discovery." Ibid. (citing
R. 3:13-3(f)).
"A trial court's resolution of a discovery issue is entitled to substantial
deference and will not be overturned absent an abuse of discretion." State v.
Stein, 225 N.J. 582, 593 (2016). Rule 3:13-3(f) sets forth options for the trial
court when confronted with a discovery violation. Specifically, the Rule
provides,
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, it may order such party to permit the discovery of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not
15 A-5010-18 disclosed, or it may enter such other order as it deems appropriate.
As we recently emphasized in State v. Washington, "[a]n adjournment or
continuance is a preferred remedy where circumstances permit." 453 N.J. Super.
164, 190 (App. Div. 2018) (quoting State v. Clark, 347 N.J. Super. 497, 509
(App. Div. 2002)). In contrast, "the sanction of preclusion is a drastic remedy
and should be applied only after other alternatives are fully explored." Ibid.
(quoting State v. Scher, 278 N.J. Super. 249, 272 (App. Div. 1994)); accord
Zaccardi v. Becker, 88 N.J. 245, 253 (1982) ("[A]lthough it is the policy of the
law that discovery rules be complied with, it is also the rule that drastic sanctions
should be imposed only sparingly.").
In Washington, we explained that when considering the appropriate
remedy, a court must consider three factors: "(1) the absence of any design to
mislead, (2) the absence of the element of surprise if the evidence is admitted[,]
and (3) the absence of prejudice which would result from the admission of
evidence." 453 N.J. Super. at 191 (citing State v. LaBrutto, 114 N.J. 187, 205
(1989) and State v. Zola, 112 N.J. 384, 418 (1988)).
Applying these factors to the case before us, we are convinced that a
continuance, not suppression, was the appropriate remedy. The record does not
indicate that the State intended to mislead defendant. This is not a situation
16 A-5010-18 where the State conducted a forensic analysis of the contents of the victim's
cellphone and withheld the results. The unexplained error was the failure by the
State to examine the phone in police possession for evidence of communications
between the domestic violence victim and defendant, which was made apparent
only after one witness identified the victim's cellphone during trial preparation.
This investigative oversight afforded no tactical advantage to the State. To the
contrary, this gaffe delayed the State from obtaining relevant evidence and not
just the defense. The record makes clear, moreover, that the prosecutor
promptly disclosed the text messages to defense counsel once she became aware
of them.
As to the element of surprise, the text messages revealed that the romantic
relationship between defendant and the victim was troubled. That was hardly
an unexpected revelation. The deteriorated nature of the domestic relationship
was amply established by other evidence—the testimony of several
acquaintances—that was disclosed in discovery in a timely fashion. Relatedly,
defendant suffered no prejudice from the untimely disclosure of the text
messages. As noted, other testimony presented by the State established that the
romantic relationship had soured.
17 A-5010-18 Considering all these circumstances, we believe Judge Taylor did not
abuse her discretion in concluding that a continuance was the appropriate
remedy for the eleventh-hour disclosure of the text messages. We further
conclude the one-week adjournment was sufficient to allow defense counsel and
his client to review the text messages and address their introduction at trial.
Defendant has not articulated how or why the defense response to the
introduction of the text messages or the outcome of the trial would have been
different had Judge Taylor granted defendant's personal request for another
continuance.
IV.
Defendant contends the trial judge erred in refusing to give an adverse
inference jury instruction—commonly referred to as a Clawans 4 charge—when
the State at trial decided to not call a witness, Stella Powell-Nixon, whose
hearsay statement had been presented to the grand jury. We conclude Judge
Taylor did not abuse her discretion in rejecting defendant's request for the
adverse inference instruction.
During the State's grand jury presentation, a detective related a portion of
a statement that Powell-Nixon had given to police regarding a phone call she
4 State v. Clawans, 38 N.J. 162, 170 (1962).
18 A-5010-18 received from defendant after the shooting. She stated that defendant was crying
and used the words "Jackie," "hit," and "shoulder." The detective testified that
those words corresponded to the injuries the victim sustained. Defendant argued
Powell-Nixon's testimony was necessary either to corroborate or contradict
Isaiah Seldon's testimony that defendant told him "I know I did her in." In
responding to defendant's motion for a Clawans charge, the prosecutor explained
that Powell-Nixon had not been cooperative or truthful with the State, and that
the State was unable to locate her after she gave the statement to the detective
in 2018.
A party seeking a Clawans charge must first "state the name of the witness
. . . not called and must set forth the basis for the belief that the witness . . . [has]
superior knowledge of relevant facts." Washington v. Perez, 219 N.J. 338, 356
(2014) (alterations in original) (quoting State v. Hill, 199 N.J. 545, 560–61
(2009)). Secondly, the trial court must determine that an adverse inference
charge is appropriate in light of its findings with respect to four factors:
(1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate
19 A-5010-18 relevant and critical facts in issue[;] and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.
[Hill, 199 N.J. at 561–62.]
Defendant has not cited any authority for the proposition that a defendant
is automatically entitled to a Clawans charge when the State decides not to call
a witness whose hearsay statement was presented to a grand jury. We therefore
apply the analysis set forth in Hill.
Judge Taylor found that Powell-Nixon had a special relationship with
defendant, not the State. The judge also accepted the State's representation that
it made reasonable but unsuccessful efforts to contact Powell-Nixon after she
provided her initial statement to police in 2018. More importantly, Judge Taylor
found that defendant failed to demonstrate that Powell-Nixon's testimony was
"superior" to that of another witness, Isaiah Seldon, who testified at trial that
defendant admitted to him the night of the victim's death that he "did her in."
The judge also accepted the State's representation that Powell-Nixon was
uncooperative, untruthful, and biased in defendant's favor. We have no basis
upon which to overturn Judge Taylor's thoughtful and well-articulated findings
with respect to the relevant factors.
20 A-5010-18 V.
We turn next to defendant's contention the trial judge erred by refusing to
charge the jury on passion-provocation manslaughter. That crime "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)). "[T]he passion sufficient
to sustain a passion/provocation manslaughter verdict must disturb a defendant's
reason," must "deprive[] the killer of the mastery of understanding, [and must
be] a passion which was acted upon before a time sufficient to permit reason to
resume its sway had passed." State v. Pitts, 116 N.J. 580, 612 (1989).
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."
State v. Josephs, 174 N.J. 44, 103 (2002) (citing State v. Mauricio, 117 N.J. 402,
411 (1990)); Galicia, 210 N.J. at 379–80. "The first two criteria are objective,
the other two subjective. If a slaying does not include all of those elements, the
offense of passion/provocation manslaughter cannot be demonstrated."
Mauricio, 117 N.J. at 411.
21 A-5010-18 "As to the first element, the provocation must be sufficient to arouse the
passions of an ordinary person beyond the power of his or her control." State v.
Carrero, 229 N.J. 118, 129 (2017) (internal quotation marks omitted) (quoting
Mauricio, 117 N.J. at 413). "Words alone are insufficient to create adequate
provocation, but the presence of a gun or knife can satisfy the provocation
requirement." Ibid. (citations omitted). "With respect to the second element,
the cooling-off period, we have recognized that 'it is well-nigh impossible to set
specific guidelines in temporal terms.'" Ibid. (quoting Mauricio, 117 N.J. at
413). "[I]n a murder prosecution, . . . the State bears the burden of proving the
inadequacy of any provocation." Mauricio, 117 N.J. at 412 (citing State v.
Grunow, 102 N.J. 133, 145 (1986)).
We next consider the general legal principles governing when a trial judge
should instruct a jury on a lesser offense than the crime for which the defendant
was indicted. N.J.S.A. 2C:1-8(e) provides, "[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." An appellate court reviews
the denial of a defendant's request for a lesser-included offense instruction by
"determining whether 'the evidence presents a rational basis on which the jury
could (1) acquit the defendant of the greater charge and (2) convict the defendant
22 A-5010-18 of the lesser.'" Carrero, 229 N.J. at 128 (2017) (quoting State v. Brent, 137 N.J.
107, 117 (1994)). "If such a rational basis exists, a trial court's failure to give
the requested instruction is reversible error." Ibid.
Our application of these general principles to the circumstances presented
in the domestic violence case before us is guided by our decisions in State v.
Darrian, 255 N.J. Super. 435 (App. Div. 1992), and State v. McClain, 248 N.J.
Super. 409 (App. Div. 1991). In Darrian, we rejected the defendant's argument
that "the jury could have found from the evidence that he killed the victim in a
jealous rage after an argument about their relationship led to 'mutual combat.'"
255 N.J. Super. at 447. Notwithstanding Darrian's statement that he "had argued
and fought" with the victim before raping and killing her, we noted that the lack
of evidence of physical combat precluded a finding of sufficient provocation.
Id. at 448 ("It is generally accepted that words alone, no matter how offensive
or insulting, do not constitute adequate provocation to reduce murder to
manslaughter.") (citing Mauricio, 117 N.J. at 413).
Likewise, in McClain, we held that a passion/provocation instruction was
unavailable to a defendant charged with shooting her lover "because she was
tired of him 'cheating' on her." McClain, 248 N.J. at 414. In both Darrian and
McClain, the defendants suspected or knew that their romantic partners had been
23 A-5010-18 unfaithful. That was not sufficient, however, to justify a passion/provocation
charge. Rather, we found it dispositive in those cases that "there was an absence
of either physical abuse or threat of physical harm within any reasonable period
of time prior to the murder." Ibid.
As in Darrian and McClain, defendant in the present case expressed
consternation that the victim slept with another man. Also as in Darrian and
McClain, there is no evidence of any physical altercation between defendant and
the victim that might constitute a legally sufficient provocation for him to shoot
her. Furthermore, the text messages between defendant and the victim spanned
nearly ten hours from their initial text message exchange at 3:59 p.m. to the
shooting that occurred around 2:52 a.m. that night. That interval provided more
than an objectively reasonable amount of time for defendant to "cool off."
Accordingly, we conclude defendant has not met the first two objective
prerequisites for a passion/provocation instruction. Judge Taylor therefore
properly denied defendant's request for that instruction.
VI.
Finally, we address defendant's contention the sentence imposed on his
murder conviction is excessive. We begin our analysis by emphasizing that our
24 A-5010-18 role in reviewing a sentence imposed by a trial judge is limited. State v. L.V.,
410 N.J. Super. 90, 107 (App. Div. 2009). We review only
(1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience.
[State v. Megargel, 143 N.J. at 493 (citing State v. Roth, 95 N.J. 334, 363–65 (1984)).]
N.J.S.A. 2C:11-3(b)(1) provides in pertinent part that a defendant
convicted of murder must be sentenced either to a thirty-year prison sentence
with a thirty-year period of parole ineligibility, or "to a specific term or years
which shall be between 30 years and life imprisonment." For purposes of
calculating parole eligibility, a "life" sentence is equivalent to a custodial term
of seventy-five years. See State v. Manzie, 168 N.J. 113, 115 (2001) (Stein,
Coleman, and Zazzali, JJ., concurring). Accordingly, a fifty-year prison term
falls within the range of sentences that may be imposed on a murder conviction.
Judge Taylor carefully applied the applicable aggravating and mitigating
factors. She found aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (the risk
defendant would commit another offense), aggravating factor six, N.J.S.A.
2C:44-1(a)(6) (the extent of the defendant's criminal history), and aggravating
25 A-5010-18 factor nine, N.J.S.A. 2C:44-1(a)(9) (the need for deterring the defendant and
others from violating the law). She accorded substantial weight to aggravating
factor three because defendant's "life of crime and unemployment" and
"escalating" criminal behavior demonstrated he would likely reoffend. She
accorded significant weight to aggravating factor six because of defendant's long
history of criminality as both a juvenile and adult. She also accorded substantial
weight to aggravating factor nine, noting defendant's crime was "call[o]us and
senseless."
Judge Taylor found that there were no mitigating factors. Although
defendant argued that the victim's relationship with another man supported a
finding for mitigating factor three ("[t]he defendant acted under a strong
provocation"), the judge rejected this argument and noted there was no evidence
in the record suggesting any such strong provocation. Defendant points to State
v. Flores, 228 N.J. Super. 586, 591 n.1 (App. Div. 1988), where we recognized
in dicta the proper exercise of the sentencing judge's discretion in deeming "the
victim's meretricious relationship with defendant's wife" as sufficiently strong
provocation to find mitigating factor three. We did not, however, suggest that
mitigating factor three applies when a person convicted of murdering his on-
and-off girlfriend becomes upset because she started a romantic relationship
26 A-5010-18 with another person. We do not believe Judge Taylor abused her discretion in
declining to find that defendant's jealous rage was provoked for purposes of the
mitigating factor. Indeed, it would be inconsistent with the undergirding
purpose of the Protection of Domestic Violence Act (PDVA) to suggest J.H.
provoked her own demise by starting a new relationship. See N.J.S.A. 2C:25-
18 ("The Legislature finds and declares that domestic violence is a serious crime
against society; that there are thousands of persons in this State who are
regularly beaten, tortured[,] and in some cases even killed by their spouses or
cohabitants . . . .").
The judge concluded that "the [a]ggravating [f]actors so clearly and
substantially outweigh the absence of [m]itigating factors, a sentence beyond
the mandatory minimum of [thirty] years [for murder was] necessary." We
agree. The fifty-year term falls within the allowable range of sentences and in
no way shocks the judicial conscience. Roth, 95 N.J. at 364–65.
Affirmed.
27 A-5010-18