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MURDER N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2)

MURDER, PASSION/PROVOCATION AND AGGRAVATED/RECKLESS MANSLAUGHTER1model jury charge N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2)

1 This charge is to be given when passion/provocation and aggravated/reckless manslaughter are in the case. See, for example, footnote 1 of Model Jury Charge, Justification Self Defense In Self Protection (N.J.S.A. 2C:3-4) (rational basis for either or both forms of manslaughter can be found in evidence supporting pre-Code theory of imperfect self defense). If passion/provocation manslaughter is not in the case, see charge on Murder and Aggravated/Reckless Manslaughter. When an auto or vessel is involved, see the charge on Vehicular Homicide (N.J.S.A. 2C:11-5).

2 In State v. Coyle, 119 N.J. 194, 222 (1990), the Supreme Court found that the trial courts initial charge concerning purposeful murder failed to make clear that if there is evidence of passion/provocation, a jury cannot convict for murder without first finding that the defendant did not kill in the heat of passion. In State v. Grunow, 102 N.J. 133, 145 (1986), the Court held that the trial judge must instruct the jury that the State bears the burden of disproving passion/provocation.

NOTE: A Model Verdict Sheet is included at the end of this charge.

N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2)

Defendant is charged by indictment with the murder of (insert victims name). Count __________ of the indictment reads as follows: (Read pertinent count of indictment)

A person is guilty of murder if he/she:

(1) caused the victims death or serious bodily injury that then resulted in death; and

(2) the defendant did so purposely or knowingly; and

(3) did not act in the heat of passion resulting from a reasonable provocation.2

If you find beyond a reasonable doubt that defendant purposely or knowingly caused (insert victims name) death or serious bodily injury that then resulted in death and that he/she did not act in the heat of passion resulting from a reasonable provocation, defendant would be guilty of murder. If, however, you find that defendant purposely or knowingly caused death or serious bodily injury that then resulted in death and that he/she did act in the heat of passion resulting from a reasonable provocation, defendant would be guilty of passion/provocation manslaughter.

In order for you to find defendant guilty of murder, the State is required to prove each of the following elements beyond a reasonable doubt:

(1) that defendant caused (insert victims name) death or serious bodily injury that then resulted in (insert victims name) death, and

(2) that defendant did so purposely or knowingly, and

(3) that defendant did not act in the heat of passion resulting from a reasonable provocation. MURDER, PASSION/PROVOCATION AND AGGRAVATED/RECKLESS MANSLAUGHTER N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2) Page 2 of 13

One of the elements that the State must prove beyond a reasonable doubt is that defendant acted purposely or knowingly.

A person acts purposely when it is the persons conscious object to cause death or serious bodily injury resulting in death.3

3 N.J.S.A. 2C:2-2b(1).

4 N.J.S.A. 2C:2-2b(2).

5 State v. Beard, 16 N.J. 50, 60 (1954).

A person acts knowingly when the person is aware that it is practically certain that his/her conduct will cause death or serious bodily injury resulting in death.4

The nature of the purpose or knowledge with which defendant acted toward (insert victims name) is a question of fact for you the jury to decide. Purpose and knowledge are conditions of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. It is not necessary for the State to produce a witness or witnesses who could testify that defendant stated, for example, that his/her purpose was to cause death or serious bodily injury resulting in death; or that he/she knew that his/her conduct would cause death or serious bodily injury resulting in death. It is within your power to find that proof of purpose or knowledge has been furnished beyond a reasonable doubt by inferences which may arise from the nature of the acts and the surrounding circumstances. Such things as the place where the acts occurred, the weapon used, the location, number and nature of wounds inflicted, and all that was done or said by defendant preceding, connected with, and immediately succeeding the events leading to the death of (insert victims name) are among the circumstances to be considered.

Although the State must prove that defendant acted either purposely or knowingly, the State is not required to prove a motive. If the State has proved the essential elements of the offense beyond a reasonable doubt, defendant must be found guilty of that offense regardless of defendants motive or lack of a motive. If the State, however, has proved a motive, you may consider that insofar as it gives meaning to other circumstances.5 On the other hand, you may consider the absence of motive in weighing whether or not defendant is guilty of the crime charged.

[Charge where appropriate]

The use of a deadly weapon, such as (describe the deadly weapon used) in itself would permit you to draw an inference that defendants purpose was to take life or cause serious bodily MURDER, PASSION/PROVOCATION AND AGGRAVATED/RECKLESS MANSLAUGHTER N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2) Page 3 of 13 A deadly weapon is any firearm or other weapon, device, instrument, material or substance, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury.In your deliberations you may consider the weapon used and the manner and circumstances of the killing, and if you are satisfied beyond a reasonable doubt that defendant (shot) (stabbed) and killed (insert victims name) with a (gun) (knife) you may draw an inference from the weapon used, that is, the (gun) (knife), and from the manner and circumstances of the killing, as to defendants purpose or knowledge. MURDER, PASSION/PROVOCATION AND AGGRAVATED/RECKLESS MANSLAUGHTER N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2) Page 4 of 13

(If causal relationship between conduct and result is an issue, charge the following9)

9 State v. Martin, 119 N.J. 2, 16-18 (1990).

10 State v. Martin, 119 N.J. at 33.

11 State v. Martin, 119 N.J. at 18.

12 The four factors of passion/provocation manslaughter and their definitions are set forth in State v. Mauricio, 117 N.J. 402, 412-15 (1990).

Causation has a special meaning under the law. To establish causation, the State must prove two elements, each beyond a reasonable doubt:

First, that but for defendants conduct, (insert victims name) would not have died.

Second, (insert victims name) death must have been within the design or contemplation of defendant. If not, it must involve the same kind of injury or harm as that designed or contemplated, and must also not be too remote, too accidental in its occurrence, or too dependent on anothers volitional act to have a just bearing on defendants liability or on the gravity of his/her offense. In other words, the State must prove beyond a reasonable doubt that (insert victims name) death was not so unexpected or unusual that it would be unjust to find defendant guilty of murder.10

(Where defendant and State offer contrasting factual theories of causation, each version should be summarized for the jury.11)

All jurors do not have to agree unanimously concerning which form of murder is present so long as all believe that it was one form of murder or the other. However, for a defendant to be guilty of murder, all jurors must agree that defendant either knowingly or purposely caused the death or serious bodily injury resulting in the death of (insert victims name).

The third element that the State must prove beyond a reasonable doubt to find defendant guilty of murder is that defendant did not act in the heat of passion resulting from a reasonable provocation.

Passion/provocation manslaughter is a death caused purposely or knowingly that is committed in the heat of passion resulting from a reasonable provocation.

Passion/provocation manslaughter has four factors which distinguish it from murder.12 In order for you to find defendant guilty of murder, the State need only prove the absence of any one of them beyond a reasonable doubt. The four factors are:

(1) There was adequate provocation;

(2) The provocation actually impassioned defendant;

(3) Defendant did not have a reasonable time to cool off between the MURDER, PASSION/PROVOCATION AND AGGRAVATED/RECKLESS MANSLAUGHTER N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2) Page 5 of 13

provocation and the act which caused death; and

(4) Defendant did not actually cool off before committing the act which caused death.

The first factor you must consider is whether the State has proven beyond a reasonable doubt that the provocation was not adequate. Whether the provocation is inadequate essentially amounts to whether loss of self-control is a reasonable reaction to the circumstances. In order for the State to carry its burden it must prove beyond a reasonable doubt that the provocation was not sufficient to arouse the passions of an ordinary person beyond the power of his/her control.13 For example, words alone do not constitute adequate provocation.14 On the other hand, a threat with a gun or knife15 or a significant physical confrontation might be considered adequate provocation.16 Again, the State must prove that the provocation was not adequate.

13 State v. Mauricio, 117 N.J. at 412, quoting State v. King, 37 N.J. 285, 301-02 (1962).

14 State v. Mauricio, 117 N.J. at 413, quoting State v. Crisantos, 102 N.J. 265, 274 (1986).

15 State v. Mauricio, 117 N.J. at 414, quoting State v. Powell, 84 N.J. 305, 320 (1980), and State v. Bonano, 59 N.J. 515, 523-24 (1971).

16 Where applicable, the jury must be instructed that a continuing course of ill treatment by the decedent against the defendant or a third person with whom the defendant stands in close relationship, can constitute adequate provocation. State v. Coyle, 119 N.J. at 225-28, citing State v. Kelly, 97 N.J. 178 (1984), and State v. Guido, 40 N.J. 191 (1963).

The second factor you must consider is whether the State has proven beyond a reasonable doubt that defendant was not actually impassioned, that is, that he/she did not actually lose his/her self-control.

The third factor you must consider is whether the State has proven beyond a reasonable doubt that defendant had a reasonable time to cool off. In other words, you must determine whether the State has proven that the time between the provoking event(s) and the act(s) which caused death was adequate for the return of a reasonable persons self-control.

The fourth factor you must consider is whether the State has proven beyond a reasonable doubt that defendant actually did cool off before committing the act(s) which caused death, that is, that he/she was no longer actually impassioned.

If you determine that the State has proven beyond a reasonable doubt that there was not adequate provocation or that the provocation did not actually impassion the defendant or that defendant had a reasonable time to cool off or that defendant actually cooled off, and, in addition to proving one of those four factors, you determine that the State has proven beyond a reasonable doubt that defendant purposely or knowingly caused death or serious bodily injury resulting in MURDER, PASSION/PROVOCATION AND AGGRAVATED/RECKLESS MANSLAUGHTER N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2) Page 6 of 13

death, you must find defendant guilty of murder.

If, on the other hand, you determine that the State has not disproved at least one of the factors of passion/provocation manslaughter beyond a reasonable doubt, but that the State has proven beyond a reasonable doubt that defendant purposely or knowingly caused death or serious bodily injury resulting in death, then you must find him/her guilty of passion/provocation manslaughter.

If, however, the State has failed to prove beyond a reasonable doubt that defendant purposely or knowingly caused death or serious bodily injury resulting in death, you must find the defendant not guilty of murder and passion/provocation manslaughter, (and go on to consider whether defendant should be convicted of the crimes of aggravated or reckless manslaughter).

A person is guilty of aggravated manslaughter if he/she recklessly causes the death of another person under circumstances manifesting extreme indifference to human life.

In order for you to find defendant guilty of aggravated manslaughter, the State is required to prove each of the following elements beyond a reasonable doubt:

(1) that defendant caused (insert victims name) death, and

(2) that defendant did so recklessly, and

(3) that defendant did so under circumstances manifesting extreme indifference to human life.

One element that the State must prove beyond a reasonable doubt is that defendant acted recklessly.

A person who causes anothers death does so recklessly when he/she is aware of and consciously disregards a substantial and unjustifiable risk that death will result from his/her conduct. The risk must be of such a nature and degree that, considering the nature and purpose of defendants conduct and the circumstances known to defendant, his/her disregard of that risk is a gross deviation from the standard of conduct that a reasonable person would follow in the same situation.17

17 N.J.S.A. 2C:2-2(3).

In other words, you must find that defendant was aware of and consciously disregarded the risk of causing death. If you find that defendant was aware of and disregarded the risk of causing death, you must determine whether the risk that he/she disregarded was substantial and unjustifiable. In doing so, you must consider the nature and purpose of defendants conduct, and MURDER, PASSION/PROVOCATION AND AGGRAVATED/RECKLESS MANSLAUGHTER N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2) Page 7 of 13 MURDER, PASSION/PROVOCATION AND AGGRAVATED/RECKLESS MANSLAUGHTER N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2) Page 8 of 13

The final element that the State must prove beyond a reasonable doubt is that defendant caused (insert victims name) death.

(If causal relationship between conduct and result is not an issue, charge the following:) You must find that (insert victims name) would not have died but for defendants conduct.21

21 N.J.S.A. 2C:2-3(a)(1).

22 State v. Concepcion, 111 N.J. 373, 377 (1988); N.J.S.A. 2C:2-3c.

23 State v. Martin, 119 N.J. at 33.

24 State v. Pelham, 176 N.J. 448, 455-56 and n. 2 (2003).

(If causal relationship between conduct and result is an issue, charge the following)22

Causation has a special meaning under the law. To establish causation, the State must prove two elements, each beyond a reasonable doubt:

First, that but for defendants conduct, (insert victims name) would not have died.

Second, (insert victims name) death must have been within the risk of which defendant was aware. If not, it must involve the same kind of injury or harm as the probable result of defendants conduct, and must also not be too remote, too accidental in its occurrence, or too dependent on anothers volitional act to have a just bearing on defendants liability or on the gravity of his/her offense. In other words, the State must prove beyond a reasonable doubt that (insert victims name) death was not so unexpected or unusual that it would be unjust to find the defendant guilty of aggravated manslaughter.23

[NOTE: In cases where Causation - Removal of Life Support is an issue, the jury should be instructed as follows:

You have heard testimony that on [date], (insert victims name) was taken off life support and that (he/she) died at some point after this was done. Should you find beyond a reasonable doubt that (insert victims name) died from medical complications that resulted from injuries caused by defendants actions, the removal of life support, in this case (method of removal), is not an intervening cause that relieves defendant of any criminal liability for those actions.24 That is, if defendants actions set in motion (insert victims name) need for life support, without which death would result naturally, then the causal link between defendants action and the death of (insert victims name) was not broken by an unforeseen, extraordinary act when (insert victims name) was removed from life support and then expired, unless there MURDER, PASSION/PROVOCATION AND AGGRAVATED/RECKLESS MANSLAUGHTER N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2) Page 9 of 13 MURDER, PASSION/PROVOCATION AND AGGRAVATED/RECKLESS MANSLAUGHTER N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2) Page 10 of 13 MURDER, PASSION/PROVOCATION AND AGGRAVATED/RECKLESS MANSLAUGHTER N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2) Page 11 of 13

that defendant recklessly caused (insert victims name) death, then your verdict must be guilty of reckless manslaughter.

If, however, after consideration of all the evidence you are not convinced beyond a reasonable doubt that defendant recklessly caused (insert victims name) death, you must find defendant not guilty of reckless manslaughter.MURDER, PASSION/PROVOCATION AND AGGRAVATED/RECKLESS MANSLAUGHTER N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2) Page 12 of 13

SAMPLE VERDICT SHEET

(Murder, Passion/Provocation and Aggravated/Reckless Manslaughter)

[TO BE USED WHERE PASSION-PROVOCATION IS SUBMITTED TO JURY]

STATE OF NEW JERSEY : SUPERIOR COURT OF NEW JERSEY

LAW DIVISION _______ COUNTY

v. :

_____________, INDICTMENT No. _________

Defendant. :

This form is only to be used to report your verdict.

QUESTION NUMBER ONE

On the charge of Murder, we find the defendant:

1a. Not Guilty of Murder ----

1b. Guilty of Passion/Provocation Manslaughter ----

1c. Guilty of Murder ----

If you have found the defendant Not Guilty of Murder, go to question number two.

(INSERT IF ADDITIONAL CHARGES: If you have found the defendant guilty on question number 1b or question number 1c, go to Question Four.)

QUESTION NUMBER TWO

On the charge of Aggravated Manslaughter, we find the defendant:

2a. Not Guilty of Aggravated Manslaughter ----

2b. Guilty of Aggravated Manslaughter ----

If you have found the defendant Not Guilty of Aggravated Manslaughter, go to question number three.MURDER, PASSION/PROVOCATION AND AGGRAVATED/RECKLESS MANSLAUGHTER N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2) Page 13 of 13

(INSERT IF ADDITIONAL CHARGES: If you have found the defendant guilty of question number 2b, go to Question Four.)

QUESTION NUMBER THREE

On the charge of Reckless Manslaughter, we find the defendant:

3a. Not Guilty of Reckless Manslaughter ----

3b. Guilty of Reckless Manslaughter ----

[INSERT ADDITIONAL CHARGES IF APPROPRIATE]

PLEASE ADVISE THE SHERIFFS OFFICER THAT YOU HAVE REACHED A VERDICT.


Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year

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Ken Vercammen articles

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