State v. Crisantos (Arriagas)

PLAINTIFF-RESPONDENT, JERSEY, v. JUAN OF NEW STATE CRISANTOS, RAMOS, JUAN CRISANTOS A/K/A RAMOS ARRIAGAS, A/K/A FLORENTINO DEFENDANT-APPELLANT. May 1986. Argued 1985 Decided October Espey, Designated Counsel, argued Lowell the cause for appellant (Thomas Smith, Jr., Defender, Acting S. Public attor- ney). Braun,

Steven Prosecutor, argued E. Assistant the cause for respondent Falcone, {Joseph County Prosecutor, A. Passaic attorney). opinion of the Court was delivered

STEIN, J. Appellant robbery was indicted for the murder and of Ramon Torres. offenses, Francisco Ruiz was also indicted those trial court declined apprehended. never After the

but was charge request manslaughter, N.J.S.A. defense counsel’s felony first- 2C:ll-4, appellant of murder and convicted robbery. The affirmed the convic degree Appellate Division tion, concluding entitled to the appellant was give charge was that the trial court’s failure to but manslaughter “is passion/provocation error harmless because accountability for murder not available to reduce a robber’s flight in the or immediate when someone is killed course of now We robbery.” N.J.Super. from the conviction, appellant’s but do so because evidence affirm convicting basis for have afforded the a rational would not 2C:1- N.J.S.A. declining to 8(e). Consequently, did not err in the trial court the with I mechanic, Torres, was 54-year-old unemployed auto Ramon way from a bar brutally on his home robbed and murdered He of April 1982. died during early morning the hours of multiple wounds to the chest. bleeding by internal caused stab first-degree armed Appellant Ruiz were indicted for and indictment robbery and murder. one of the two-count Count Ruiz Torres while armed alleged appellant that and robbed charged knife, count defend 2C:15-1. The second N.J.S.A. Torres, 2C:11-3(a)(2), killing “knowingly” N.J.S.A. ants with robbery, of a N.J.S.A. causing his death the course “and/or” 2C:11-3(a)(3). conflicting of sharply versions and defense offered by presented pertinent to crime. The evidence

the the events and Ruiz attacked the victim suggested that the State bar, by him walking from a disabled he was home alone while ankle, jewelry and then him his breaking his and robbed Santana, witness, principal Nicholas When the State’s wallet. scene, nearby. hid perpetrators Santana approached the conscious, found Torres beaten but with no serious wounds other than a broken ankle.1 Torres told Santana that men who him robbed were the same two men had him who robbed two weeks earlier. Santana left Torres in order call police phone from a booth across the street. When he re- turned, top Torres; saw they appeared he two men on to be stabbing repeatedly. him Santana threatened the two men with post they a broken fence police arrived, fled! When the they discovered that had stripped Torres been all valuables and identification and bleeding profusely was multiple from stab wounds of face and chest.2 The broken-off blade knife was found in Torres’ shortly overcoat. Torres died there- after at the hospital.3

The prosecutor upon theorized Santana had chanced tail robbery. end of the He suggested assailants, fearing them, identify that Torres could returned kill him while Santana telephone By verdict, was booth. its jury apparently accepted theory. the State’s presented

The defense entirely different version of the Appellant facts. being scene, admitted on the but denied either robbing killing Torres. He instigat- testified Torres had a fight by shouting ed “dirty epithets4 words” ethnic as he by. and Ruiz Arriagas walked testified he responded him, confronting Torres’ comments away. then walked 1 According to right the medical examiner’s ankle testimony, ”[t]he was right dislocated. The leg foot was sort of almost from the separated rest the gave jagged at the ankle and sort of where was it from appearance separated leg the rest of the ankle." 2 Themedical examiner testified that Torres had been stabbed at least eleven times. trial, 3 At counsel that Torres’ stipulated disclosed blood autopsy report alcohol content .207. 4 Arriagas claimed Torres called him a repeatedly “Mexican shit” and "moth erfucker." him, fight, Arriagas challenged Torres followed Torres to

When first Ac- attempted to land the blow. retaliating after Torres Arriagas leg kicked him the and cording Arriagas, Torres face, knocking him Then Ruiz eye down. hit Torres in the and Torres “three or four Arriagas and stabbed aside pushed only because Ruiz Arriagas he ran from the scene said times.” most, Arriagas guilty of, at as ran. The defense characterized simple assault. killing Torres acted alone

Arriagas’ claim that Ruiz had apart- with Ruiz an by four men who shared was corroborated testimony Their of the murder. overlooking ment the scene prior inconsistent by internal contradictions was weakened police.5 given each had statements appellant’s consider trial court instructed The murder, murder, and felony knowing purposeful or guilt of charge the request to counsel’s robbery, but refused defense manslaughter: jury on fight. stab died die from the He no evidence. He didn’t from

There’s such ** * right fight and, after the that he was all wounds. Your own client said stabbing. his from the activity client delineates fact, as matter of your no here. There’s consider instruction to In with the trial court's accordance only if it knowing murder or guilt purposeful appellant’s murder,6 found felony acquitted appellant robbery and did not first-degree felony murder and guilty of suggested 5 During story that the blame-it-on-Ruiz summation prosecutor Arriagas was witnesses, one of whom after the four was concocted protect fled to Mexico. confirmed that Ruiz had brother, Ruiz' n. noted, at 578 198 N.J.Super. 6 As the Division Appellate because the indictment in error murder was instruction on “purposeful’’ is included of charges "knowing" not an murder murder. only Purposeful 2C:1-8(d), must knowing murder murder, purposeful see N.J.S.A. fense of 3:7-3(b) (every charged indictment See R. be in the indictment. therefore (2), (3) 2C:11-3(a)(1), based on N.J.S.A. whether murder must specify murder)). knowing (establishing elements for mental purposeful separate having jury, found felony however, harmless because here, error was knowing murder. a verdict on murder, never returned purposeful purposeful knowing consider or murder. The trial court sen- appellant tenced fifty years an extended term of for felony-murder conviction, twenty-five-year period pa- with a of ineligibility, imposed role a twenty-year consecutive term robbery for the conviction.

Although Appellate conviction, Division affirmed appellant court, agreed with the trial under (1980), given have jury N.J. should a man slaughter jury given instruction because the had been option convicting purposeful knowing for or murder. 198 Super. 582. The court concluded error was harmless because the purposeful never considered murder, knowing murder, felony but convicted crime not mitigation provocation amenable to based on passion. However, Id. at 583-84. the Appellate re Division manded the resentencing, concluding case the trial court for that because the robbery necessarily merged conviction for felony-murder conviction, with the plain it was error trial court have imposed separate sentence for armed robbery. Id. at 579.

II Although disposition our appeal ultimate of this does require Appellate us to consider the Division’s conclusion charge passion/provocation failure to manslaughter was harm- case, less error in this we are constrained to comment on the issue because of its recently recurrence. most We considered question Grunow, (1986), this holding State v. 102 N.J. 133 instruction proof erroneous as to burden when passion/provocation manslaughter charged aas lesser-includ- ed offense is not harmless error acquitted where defendant of murder him aggravated and convicted man- slaughter. Vujosevic, 198 N.J.Super. 444-46 Cf. (failure (App.Div.1985) charge aggravated assault is harm- jury, charged murder, less error where aggravated man- manslaughter, aggravated slaughter, and convicts defendant of (App.Div. N.J.Super. manslaughter); Selby, v. State 1981) (failure charge degree murder and jury to with second jury is of first manslaughter not harmless error where convicts murder, abduction). kidnapping, degree and 316-19, 322, applying supra, 84 N.J. at v. State the effec- principles the offense antedated common-law because (Code), suggests of Criminal Justice tive date of Code a plausible support if evidence in the record to convic- there homicide, jury and instruc- degree tion a lesser of criminal of requested, it is error not to submit tion the lesser offense is “A entitled to such instruc- jury. that issue to the defendant is theory manslaughter is consistent with tion whether case, Appellate In this Division of defense.” Id. at 317. his determining appellant’s applied principle the Powell simply be- right manslaughter charge was not forfeited to a caused the victim’s death was appellant cause claimed that appellant’s testimony solely by Ruiz. The court reasoned that fight provocation that him to Torres could be as to the caused as that he killed Torres so with the State’s evidence combined passion/provoca- warranting charge of present jury to issue since the manslaughter. The then concluded that tion court murder, felony 2C:11- convicted of N.J.S.A. Torres, robbery 3(a)(3), in the of participation on his based because manslaughter was harmless error failure by proof mitigated manslaughter not be felony murder could passion/provocation.7 of provides when homicide which "[a] exists Code 7 The purposeful, includes [which under section 2C:11-3

would otherwise be murder resulting passion felony heat knowing, in the of murder] is committed 2C:11-4(b)(2). Although provi this provocation." N.J.S.A. from a reasonable being felony among capable literally those murders murder sion subsumes codify mitigated Legislature manslaughter, intended to it is that the clear enacting existing case-law definition drafted, 2C:11-4(b)(2). originally identical to the this section was As section “substantially enlarged” class of murders Penal Code 210.3 Model adequate recognition This conclusion does not accord the critical role of the in a criminal case. We have noted community conscience of that the serves as “the feelings the embodiment of the common sense and reflective of whole,” Ingenito, State v. 87 N.J. society 204, 212 as a jury may acquit charge although A on a lesser convict proven greater has its case on the satisfied State charge beyond a reasonable doubt. See v. United States Des mond, (3d Cir.1982); Ingenito, 2d 416-18 670 F. Simon, 212; supra, N.J. 207-08 (1979); Carpenters United Brotherhood & Joiners cf. States, 395, 408, 775, 782, America v. United 330 U.S. 67 S.Ct. 973, 91 L.Ed. (1947) (a judge may 985 never direct a verdict of 165, Spock, United States v. (1st guilty); 416 F. 2d 180-83 Cir.1969) (submitting special jury findings in criminal case is prejudicial special finding may jury’s ability error when inhibit logic”). jury may to “look at more A than criminal return “a overwhelming verdict of innocence in the face of evidence of supra, 212, Ingenito, State v. 87 N.J. at guilt,” may or it illogical return or inconsistent verdicts that would not be toler — -, civil trials. United States v. U.S. ated -, 471, 476-78, 461, 105 S.Ct. 83 L.Ed.2d (1984); 467-69 States, Dunn v. United 390, 393-94, 189, U.S. S.Ct. 284 52 190-91, Ingenito, supra, v. 356, (1932); L.Ed. State 76 358-59 Simon, 211-12; supra, 87 N.J. v. State N.J. 79 at 208. eligible mitigation manslaughter although enlarged for even under the — category, felony it is unclear whether murder could have been reduced to Report Jersey See Final the New Criminal Law Revision Commission, however, (1971) Commentary Legislature, Vol. II: at 159-62. The rejected proposed manslaugh section 2C:11-4 in favor of a more restrictive See, pre-Code understanding. e.g., King, ter definition that codifies the State v. 285, (1962) (pre-Code provocation manslaughter). 11 N.J. 299-302 definition of murder, provocation mitigated explained Since the ''malice" of willful State Bonano, 515, (1971), required felony v. 59 N.J. and no intent was murder Madden, 111, except underlying felony, the intent to commit the 61 N.J. (1972), accepted felony mitigated rule was that murder could not be Scott, manslaughter by proof provocation. W. LaFave & A. Handbook on 76, Criminal Law at 572 n. 3 convicted in this case Accordingly, the fact that mean that it necessarily felony murder does appellant of also if had the same verdict have returned would argu- example, to return power, for charged. It had been manslaughter or to robbery and verdicts of ably inconsistent for acquitted robbery and convicted have for what verdict a speculative to forecast general, In it is alone. if instructed on basis properly returned jury would have incomplete instruction. after an that a returned the verdict Grunow, 148. We have cautioned supra, 102 N.J. at v. State “ jury are essential proper charges to a ‘[appropriate and ” (1982) Collier, trial,’ v. 90 N.J. for a fair State (1981)), and erroneous Green, v. 86 N.J. (quoting State presumed to be reversible material issues are instructions beyond a reasonable error, only they if are harmless excusable “poor candidates errors are Id. at 122-23. Such doubt. philosophy.” error under the harmless rehabilitation Simon, supra, 79 at 206.

Ill Appellate Notwithstanding disagreement with our case, our rule in this application of the harmless-error Division’s was not convinces us review of the record As manslaughter instruction. entitled to a power noted, charged, has jury, properly once have we culpability and either overwhelming proof of disregard even How a lesser-included offense. entirely convict of acquit not, to, should instruct ever, obligated indeed a court is not by clearly unwarranted that would be return a verdict jury to 51, 101-02, 15 States, 156 U.S. Sparf v. United the record. See Sinclair, 49 343, (1895); 293, 361 State v. 273, 39 L.Ed. S.Ct. 563, Mussenden, 558, Y. (1967); 308 N. 525, People v. 540 N.J. 55, (1955); Christener, 71 N.J. 551, v. 554 State 127 N.E.2d cf. verdict, a compromise (to (1976) an unwarranted avoid 67-73 a more serious to consider not instruct trial court should supports). record than the offense 274 may

The standard that determines whether murder be re- manslaughter by passion duced to reason of resulting from provocation is well settled: manslaughter slaying is a committed in a Voluntary transport passion killing heat of blood induced occurs adequate provocation, provided passage before the of time sufficient for an in like circumstanc- ordinary person King, (37 300-01); v. es to cool off. supra N.J., State v. 21 Wynn, pp. (1956); (1957);

N.J. Criminal Law 270 Perkins, Homi- 264, 53 1 Warren, 43, (1938). cide 433 The 90-91, common law deemed such §§ p. circumstances negate the malice for murder. Involved is a concession required to the frailty recognition average man, can react person understandably wrong to a sufficient and hence some violently lesser punishment appropri- (1959). ate. See State v. 29 N.J. Williams, v. 42-43 [State Guido, N.J. 27, 40 (1963).] 209-10 191, generally-accepted alone, rule is that words no matter insulting, how offensive or do adequate provoca not constitute Torcia, tion to reduce murder manslaughter. 2 C. Wharton’s (14th ed.1979) (hereafter Criminal Law 245 Wharton’s Crimi Law)] Bilas, 1 nal O. Warren and B. Warren on Homicide (perm.ed.1938) (hereafter 473-76 Homicide); Warren on An not., 2 A.L.R. 3d 1292 We have followed this rule Jersey. Bonano, 515, (1971); New State v. 59 N.J. 285, (1962); King, State, 287, 60 N.J.L. Clifford affd, (E. 290-91 A.1897); (s4p.Ct.), N.J.L. & Warner v. State, (E. A.1894). 56 N.J.L. 691 &

Another common-law rule was that mutual combat under certain circumstances adequate provocation could constitute reduce murder manslaughter. Code, Model Penal 210.3 § (Official comment at 57 Comments, 1980) Draft and Revised (hereafter MPC); Note, cited as “Manslaughter and the Ade- quacy of Provocation: The Reasonableness of the Reasonable Man,” (1958); 106 U.Pa.L.Rev. 1031-32 2 Wharton’s Law, 252; supra, Criminal Homicide, 158 at 1 Warren on § supra, However, 110 at 522-28. “to reduce the offense from murder to the contest waged must have been * * equal terms and advantage no unfair taken of the deceased. The offense is not but murder where the defend- armed; ant alone was and took an advantage unfair Homicide, deceased.” 1 supra, Warren on 110 at 525-26. § authority expresses Another the same rule in these terms: terms, if person, fighting equal “But under color of kills deadly weapon the other with a which he used from the beginning person beginning, or concealed on his from the Law, homicide constitutes murder.” 2 Wharton’s Criminal supra, 110 at 254.8

Obviously, only guides defining abstract rules are parameters passion/provocation specific The carefully evidence in each case must be evaluated in the context of the entire record to passion/provocation determine whether manslaughter may properly jury. be considered passion/provocation

Because issue of can arise in an infinite settings, mitigation number of factual of homicide be cause of ordinarily question is for the jury, preclude unless the evidence is so weak as to consid Sinclair, eration. supra, applica at 540. The determining ble standard for whether the trial court should charge Code, with is that set forth in the 2C:1-8(e): N.J.S.A. shall not Court with included offense unless respect convicting

there is a rational basis for a verdict the defendant of the included offense. following: 8 Yet another formulation of the rule of mutual combat is the fight If the "mutual" in the sense that both enter into it really willingly, distinguished attacking as from the case in which one is clearly defending; great and the other if the intent to kill or to inflict merely injury than in encounter, is formed in the heat of the rather bodily advantage advance, and the does not take unfair slayer deliberately arming "just other himself to have by secretly weapon ready case”; and if the encounter reaches the of actual physical proportion dangerous contact, harm, threat of serious and immediate sufficient man, arouse the of a reasonable the law takes the that in passions position Perkins, such mutual Criminal [R. combat there is mutual provocation. (2d ed.1969).] Law, § 1 at 59 draft of the derived from an earlier language is The Code’s Code,9 in the Model Penal Code’s final amended Model Penal obligated to” after the phrase of the “be text the addition Commentary The to the Model shall not”. “The Court words amendment: explains purpose the of this Penal Code charge the “Court shall not originally the subsection drafted, As provided justify being jury,” “would not of the view that if the evidence the reporter or an it would be a conviction of that offense acquittal, other verdict any except might to included offenses” to instruct with respect improper or otherwise invitation to the to return constitute “an compromise obligated following “The shall words “be to” Court unwarranted verdict.” The illogical if an included offense added to allow a court to submit not” were recognizes jury's effect, to do so. This, court believes that is proper majority of the right a view verdict, to return a supported by compromise (footnotes Meeting. at 134 1.07 comment [MPC § at the 1956 Annual Institute omitted).] adopt the revised version of the Model did not Our Code to the reason Code, reflecting unwillingness to accede Penal Accordingly, under our ing support the revision. offered charge manslaughter, a trial court to improper it is for Code defendant, if evidence by the there is no requested when even conviction. support in the record to Cf. (pre-Code). n. 12 To warrant supra, 84 N.J. at 316 v. a “rational basis” for a charge, there must be (1973) Saulnier, 199, 206-07 63 N.J. verdict. State v. Cf. Draft, 1.07(5) (Proposed Official (pre-Code citing case MPC § charge 1962) not be a principle that “there need unless there is a rational respect to an included offense finding that the defendant was not for a basis the evidence charged guilty of the lesser guilty higher of the offense but Bohannan, offense.”); N.J.Super. 206 646 included (where in the evidence there a rational basis (App.Div.1986) second-degree robbery, it is “reversi support a conviction of second upon request court to refuse ble error for trial 290, Hogg, 365 Mass. degree robbery.”); Commonwealth 63, (1974) (“Where 294, there is no ‘rational 311 N.E.2d 1956). (Tent. 9 MPC 1.08 Draft No. § acquitting basis for a verdict the defendant offense offense,’ convicting no charged and him of the included instruc- offense.”) MPC (quoting given tion the lesser need be State, 1.07(5) Draft, Ross v. 1962)); (Proposed Official 160, 171, (1973) (“The question Wis.2d N.W.2d basically full jury giving is whether evidence credence lesser reasonably guilty could return a verdict of on the includ- offense.”). ed Commentary Report Jersey the New the Final

Law Revision Commission makes it that the “rational clear pre-Code to basis” standard was intended be consistent Sinclair, supra: State v. as in law articulated jury charge that shall not the on an included Subsection e states the Court acquitting a the of offense unless there is a rational basis for verdict defendant charged convicting in the and him of the included offense. This is offense Sinclair, Jersey is found v. 49 accord with the New rule which in State N.J. 525, (1967): 540 during robbery thesis murder a “When the State’s is that the occurred may only attempted robbery, the at trial such that sheer evidence be jury guilty speculation compromise return other than of could the a verdict so, proper degree guilty; to instruct first murder or not if it is not the verdict____ However, degree possible murder our cases that second is a have if on it would idle to the also establish that the evidence not be other than in the decide defendants committed an unlawful homicide whether rob, possibility attempt charge to of second course to it is error not of murder____” degree Davis, Mathis, 455, (1966); 50 16 also 47 466 v. N.J. See N.J. State 264, (1962); (1967); Pacheco, 120, Wynn, 21 38 131 v. N.J. v. State State N.J. 209, (1964).10 Report (1956); Sullivan, 245 270 v. 43 N.J. [Final State of (1971), Commission, Commentary Jersey II: Vol. 2C:1-7 New Law Revision at 26.] significance phraseology difference between 10 We no to the attribute (“rational acquitting the defendant of the basis for a verdict Model Penal Code offense”) charged convicting of the included our Code offense him offense”) ("rational convicting the included a the defendant of basis for verdict equivalent. Commentary’s especially of the two as treatment in view above, quoted as if read Commentary, to subsection it as refers charged acquitting offense the defendant of the "rational a verdict basis for convicting offense.” him of the included 278 Sinclair, determined that “if on the evidence

In Court to have decide” whether defendant would not be idle offense, it is error not had committed a lesser-included Sinclair, supra, offense. v. charge the lesser-included State concluding idle charge at 540. In that the would be 49 N.J. case, enough “it that the the Court observed is charge] leaves [supporting the lesser-included offense evidence * * * (citing Mathis, dispute .” Id. at 542 v. room for State 466-67, 455, (1966)). N.J. Powell, majority in a

In v. we noted that State necessary “a is all is jurisdictions, scintilla evidence” requested by the manslaughter charge when defend warrant at n. 12. To the extent that Powell is read as ant. 84 N.J. test, is supporting the “scintilla” the Code formulation some Nevertheless, the what more restrictive. rational-basis test threshold, law, imposes pre-Code a low as did the Code Sinclair, charge supra, permitting at v. N.J. State on a offense. When the lesser-included offense lesser-included case, defendant, requested by a as in this trial interest, obligated, in court is view defendant’s examine if the thoroughly record determine rational-basis stan supra, dard has been satisfied. See v. State N.J. 318-19; Choice, 298-99 view, in

In our this case would not have evidence appellant convicting afforded the a rational basis Appellant passion/provocation manslaughter.11 testified that charge judge manslaughter trial on 11 Defense counsel asked the to the basis that the could find that defendant killed victim in the course of the fight. charge Since the was not limited to passion/provocation requested aggravated manslaughter, manslaughter, it could have N.J.S.A. encompassed 2C:11-4(a) ("[A]ctor manifesting under causes death circumstances recklessly life."), manslaughter, extreme indifference to human or reckless N.J.S.A. 2C:11- 4(b) (“Criminal manslaughter homicide constitutes when it is committed reck lessly.”). manslaughter focus We on since failure to charge form of asserted as in that was error appellant’s petition However, for certification. we find no rational basis in this record for a by “dirty and provoked his encounter with Torres was words” Torres, He that he confronted ethnic slurs. further testified him, away, appellant then walked and when Torres followed According “I expressed willingness fight. appellant, his to to if fight. willing fight him if I to him asked he wanted to was young Ruiz Appellant that was what he and were wanted.” twenties, fifty-four in was early men their the victim inebriated, Appel- Ruiz armed with a knife. and at least was tried to testimony fight that a started after Torres lant’s was other,” him, point that at one they hit that hit each “both did,” very strong, but he Torres kicked him—“it wasn’t —after face, him,” in “really eye on the appellant which hit causing According appellant’s to testimo- Torres to fall down. ny, it was then that Ruiz Torres: stabbed What after that?

Q. happened I hit him that he fell. A. he fell after I hit him. It was when Well, really fighting waiting get on he fell down I moved back for him to up keep When right fighting. Fransisco Ruiz who was if he wanted to But then keep everything it fast. I saw when behind was fast. He did well, very very me— get in and went to but I didn’t see him, he his hand his the blade put pocket just anything. aside, I him. It was when he told move me, him unfold or saw going fight. I’m to teach how to He went to him and well —I Chicken, you hitting anything. thought think he him with a couldn’t do I I didn’t was well,— anything. just out because I didn’t see him unfold it or I saw him blade, pull go to him. I think it was then. ready enraged by he point appellant suggest At no did that was allegedly spoken by Appellant’s testimony Torres. ethnic slurs him responded by asking comments was he victim’s any I “why calling things, he was me those that didn’t know using language.” Nor was there why reason he should be Torres. any suggestion was hurt fear of clearly conveyed was appellant’s version of the evidence What mismatch, man gross the existence an older inebriated men, against younger one armed with a knife. two least aggravated and conclude the trial verdict of or reckless refusing court was correct form of any 280 “passion” in the or extreme

There is no evidence record very slight appellant’s evidence of emotional disturbance. provocation, consisting the “ethnic slurs” and the victim’s appellant, spurred by appel- attempt being to strike after fight, acknowledged by any witness lant’s invitation to was appellant participate Only to to in the homicide.12 have caused homicide, (Santana) witness linked to the the State’s point beating the but at a after victim had sustained a and Santana, passerby, that broken ankle. a disinterested testified conscious, that he first found the victim but and he saw beaten stabbing having he after the defendants Torres when returned telephoned police. the

Thus, passion/provocation verdict of defendant’s testimo- required would have disbelieve Torres, testimony ny accept Ruiz killed Santana’s that both Torres, testimony reject men killed Santana’s after but con- homicide occurred he found the victim beaten in Passion/provocation manslaughter this case is not scious. only testimony; is also inconsistent with the defendants’ and is inconsistent the State’s version of homicide with testimony the record. substantiated no Cf Powell, supra, trial denied (Although 84 N.J. 305. at defendant 309, alibi, involvement in crime and claimed an id. contradictory State introduced a statement from defendant 12 Moreover, murdered with at least of the homicide —Torres brutality foot was eleven stab wounds and his ankle broken so his badly nearly meager severed —is offered by inconsistent evidence provocation 249, 15, N.E.2d 19 Matthews, 253, v. 21 314 appellant. People Ill.App.3A Cf. ("A (App.Ct.1974) slight will not be since provocation provocation adequate must be the accused retaliated the manner which proportionate slight with violence therefore if accused on a attacked deceased provocation This him, out of to the the crime is murder. killed proportion provocation weapon.”); with a true if the homicide was committed deadly especially (7th Cir.1979) (response ex 402, United States rel. F.2d 405 Peery Sielaff, justify must be proportional provocation instruction), L.Ed.2d denied, U.S. S.Ct. t. cer Id. 320.) support manslaughter was held to instruction. Powell, Unlike in alleged no evidence this record connects the provocation to the homicide. disagreement dissenting colleagues

Our with our does apply application concern the rules that we rather their but O’Hern, the facts of this case. As does Justice we eschew approach determining formalistic whether charged, deciding obliged should be but in that issue we are adequacy provocation consider of the evidence of and the sufficiency linking provocation of the evidence to the homi- today cide. We reach reviewing our decision after all of the drawing “logic circumstances all inferences and com- supra, mon sense” will allow. at 314. punish We severely less those homicides committed “in a * * * transport passion of by adequate provocation” induced of a “recognition average person because can under- standably violently wrong react ato sufficient and hence some Guido, supra, punishment lesser appropriate.” is N.J. at 209-10.13 On this record, we hold that there was 13 Although upon passion/provocation the doctrine of based is justified ground sometimes on the demonstrates the absence of criminal intent, explanation a more accurate is homicides committed because of adequate provocation punished severely should be less than homicides commit provocation. adequate explana ted in the absence of The Model Penal Code's tion is instructive: provocation began logical early The doctrine of as a inference from the

meaning aforethought.” Apparently, phrase of "malice this was once require premeditation construed to actual in advance of the homicidal act. rage It therefore followed that one who killed in a the "heat sudden or in time, passion” required prior lacked the state of mind for murder. In disappeared aforethought,” deliberation from the definition of "malice kill, conceived, any suddenly it became clear that intent to hovtever could support liability for murder. Provocation nevertheless as a rule survived mitigation extenuating for intentional homicides committed in certain circumstances, many passion authorities continued to describe heat of negating aforethought.” may way as "malice This be a convenient to state provocation manslaughter, the conclusion that reduces murder to but the description analytically misleading. Intent to kill satisfies "malice provide a rational basis inadequate evidence to convicting appellant

IV Appellate Appellant contended for the first time summation, prosecutor, during im that the assistant Division credibility defense properly attacked the witnesses by Alleg in the record. arguing supported facts not evidence error, objects suggestion plain prosecutor’s to the ing during departed these from their summation that witnesses police testimony their trial statements to the coordinated in an was seated the courtroom with the aid of individual who Division, Appellate concluding the that there during trial. The prosecutor’s the to insinua support was evidence in record the tion, agree appellant’s found merit in contention. We with no Appellate disposition of this issue. the Division’s appellant’s do contentions as to the exces- We not consider Appellate has vacat- siveness the sentence since the Division resentencing by the and remanded the matter for ed sentence trial the court. stated, Appellate the the the Divi- judgment

For reasons is affirmed. sion engendered, aforethought." rage, A does not sudden however necessarily negate the even an to kill. More it reinforces likely intent probably At most, the of another.

firmness of the actor's resolve to take life mind an therefore, affects the of the actor’s state of as provocation quality regard thus indicator Provocation is of moral blameworthiness. properly recognition as a law into the reasons for actor’s ed inquiry kill reveal factors that should formulation of an intent to will sometimes significance grading. have in It is a concession to human weakness recognition who in fact one kills to perhaps non-deterability, demonstrating provoking regarded certain should be as events response significantly in one who kills their different character than deficiency § 210.3, 54-55.] absence. [MPC O’HERN, J., concurring part, in dissenting part. in agree I views stated in Part II majority opinion jury’s that the felony verdict of murder does not render harmless erroneous refusal to on available agree verdicts. I also generally princi- with the ples expressed of law in Part III of opinion. disagree I on the facts of this case the manslaughter issue should not jury. have been submitted Although sharp dispute, the versions of the incident are in together they weigh contain the facts that a will drawing the ultimate inferences whether defendant acted culpability purpose knowledge with a state of other than the kill the victim. question When we come to the of what inferences it, presented can draw from the facts the distance a court go fairly Bonano, will is shown well 59 N.J. (1971). There, 523-24 as this Court stated in (1980), evaluating this Court, evidence introduced to a claim of support self-defense, manslaughter found that a justified based on was provocation/passion suggestion the total absence of angry. that despite any defendant became All jury that was before the might was thought that defendant [Bonano] have trying that the victim gesture was to harm him, and that some on the of part the victim had been made. Based on that provocation, defendant shot and * * Powell, supra, [State N.J. at 319.] killed the *. victim; Powell follows in supporting Bonano the giving of the in- struction spite of a record barren of “[i]n any evidence of loss * * of self-control on the part of the defendant 84 N.J. at 312, and states that “there are no legal rules as to what jury inferences” a can properly draw proofs from given in a case, Thus, at id. 314. the defendant’s failure here to assert that he was by passionate overcome a rage is not determinative jury issue because the is free to draw the plausible

inferences it deems and credible.1 parts of the jury believed certain defendant’s version If victim, Torres, events, have concluded that used of could persist- coupled provocative and epithets and them with racial acts; ignored from he the first insults Torres Arriagas ent said fight came him. challenged only him to a when Torres at punch (or Torres the first It also could have believed that threw kick) noted, angered Arriagas. As the defendant and that this Arriagas “upset.” The fact that never testified he was provoked he he was so lost control killed said mean that the could not have reached that Torres does not on its own once it heard evidence of victim’s conclusion right alleged assaultive conduct. To condition the defendant’s on to a instruction based what he said at the (a contrary at trial to Powell. 84 N.J. defendant is regardless entitled to instruction of whether it is consistent defense). theory testimony with his inadequate provocation coupled be noted that even It should relevant a objectively may unreasonable reaction be with an case, one, may that it like this because the find creates (under “malice” our reasonable doubt about existence Code, knowledge purpose) required state of new mental murder, 314-15, warranting possible id. thus verdict on at offense murder. lesser-included always almost turn on the mental state of Murder eases will Deciding question jury’s is the function. the accused. (C. Torcia Law 14th ed. Criminal Wharton’s § 1979) (where dispute, questions should there is decide Institute, provocation); American Law Model adequate see also 210.3, (perm. ed. at 57-61 Code and Commentaries Penal categorical 1980) mitiga- limited value of rules (recognizing Arriagas indicate that testified event, the trial transcripts clearly 1 In any got “I and hit him.” him, and kicked really victim cursed upset after the law). alone,” developed tion common Even “words when slurs, they may particularly are racial be odious to our societal may, people, provoke in See, values some violent reactions. Sturdivant, e.g., (Tenn.1980) 2d S. W. (racial slurs provocation support could be sufficient man- slaughter though they conviction even sufficiently were not threatening support exoneration). self-defense required

All that is is that “the evidence leaves room for dispute” killing might that the have occurred other than as alleged. Sinclair, be,

Disconcerting may case, as it on the facts of this I believe enough the evidence leaves dispute room for that “it would not idle,” be (emphasis id. at 540 in original), to had have was, consider There clearly, some evidence of provocation. What effect that had on the state mental know, defendant we will never for by virtue of its verdict of felony murder, the jury never considered the defendant’s men- was, addition, tal state vis-a-vis homicide. There the added fact the defendant four witnesses testified Arria- gas part killing. took no together, Taken combina- tion of factors makes it if jury, conceivable that allowed to verdicts, consider the might available homicide have concluded Torres, Arriagas either that kill did not him but did killed him, rage intend to kill or intentionally killed him in a in the fight. of a In hindsight, midst none would is defense the been likely accept. have But not the The test is that is test. case, whether of this dispute. there was room for On the facts I would have left that jury. issue HANDLER, CLIFFORD,

For POL- affirmance —Justices LOCK, GARIBALDI and STEIN—5. WILENTZ

For remand new trial —CHIEF JUSTICE Justice O’HERN—2.

Case Details

Case Name: State v. Crisantos (Arriagas)

Court Name: Supreme Court of New Jersey

Date Published: May 6, 1986

Citation: 508 A.2d 167

Court Abbreviation: N.J.