*1 JERSEY, PLAINTIFF-RESPONDENT, v. LARRY OF NEW STATE POWELL, DEFENDANT-APPELLANT. 27, 1979 July Argued Decided 1980. November *2 Defender, Deputy argued Public Kopelson, Edward Assistant Ness, Defender, appellant (Stanley C. Van Public the cause for attorney). General, Attorney argued the Lipstein, Deputy
Kenneth N. (John respondent Degnan, Attorney J. General of New cause for attorney). Jersey, by opinion was delivered Court
WILENTZ, C. J. m., 7, 1975, p. 9:50 and 10:10 Debbie September
On between Camden, New apartment killed in her in Couch was shot and Powell, police officer, was tried Jersey. Larry The defendant Division, 175 Appellate her murder. The and convicted for conviction, and its determination is N.J.Super. affirmed his now before us for review. of second mur- appeal
Defendant’s from his conviction voluntary judge’s in the trial failure to deliver' a der rooted jury, the which defendant claims instruction to in the record from by presence was mandated the of evidence killing reasonably which a could have concluded that passion resulting was from reasonable done heat of inculpatory provocation. particular, points In defendant State, statement, put by that he made to his into officers, Appellate fellow which summarized Division as follows: . . . statement indicates between defendant and
Essentially quarrel struggle gun them between in deceased, subsequent possession his waist him and an when she tried seize it from unexplained unexpected shooting standing gun chair.1 with the while she near a of deceased [At 411]. trial, judge jury, At that the suggested defense counsel statement, reasonably if it infer from it believed the could him, grab kill proof gun other tried to his deceased Powell, rage, away in a fit from her took the charge accordingly and killed her. The trial refused to subsequent repudiation because he felt that defendant’s denial of involvement all inculpatory statement and shooting precluded grounded issuance of a defend- the reason for this refusal Although ant’s intentional conduct. *3 error, Division affirmed because it Appellate was in the clearly support the (a) concluded that the statement did not disavowed provoca- delivery manslaughter instruction based on of a (b) charge appropriate, that were its tion/passion, and if such and therefore reverse. As disagree omission was harmless. We in record below could explained subsequently, the facts the However, support either a murder or conviction. degree only. second murder judge charged the trial first and homicide, accidental both of charged He also self-defense and acquittal. The convicted Powell of which lead to would potential penalty upof to 30 murder. It second carried manslaughter would prison, in whereas of have years conviction $1,000 prison or both. up years carried a of penalty 10. imprisonment, at years was least The actual sentence 28 to 30 imprisonment for than the maximum sentence of years longer of a manslaughter. Clearly, court’s omission the trial harmful error—it supported by in the record was lesser offense. a conviction of a possibility of eliminated claiming it was the trial, product that 1He this statement disavowed trial and the was denied coercion. His motion suppression by truth Powell denied the of the introduced the State. by statement was his claim of stand and renewed coercion. statement while on the Couch, deceased, Larry Debbie was defendant Powell’s had a who Together they daughter “common-law” wife. year Couch was killed. The almost a old at time Debbie shortly living together had after the birth of couple been since baby, apartment resided in the where the homicide relationship clear from the record that their occurred. It is unsteady, wavering from hate on various occasions. love to often, argued topics ranging couple variety about a from relationships problems to day-to-day housekeeping defendant’s They quarreled morning with other women. on the homicide, packed up his he left and defendant clothes when house, enough ostensibly give impression he had had leaving may and was This conduct have deceased. been by thinking provoked the fact the deceased herself was him, knowledge leaving although he denied of that fact at trial. it, put they “playing As he were cat and mouse.” Powell’s (a closely him) with “partner” police fellow officer who worked recalled a which Powell and the number occasions on deceased argued, so he gotten angry had at which times he had that made against her, partner threats threats which his “knew” Powell carrying had no intention of out. understanding
Our of the chain of events that led to Debbie Couch’s death is clouded the fact Powell offered two conflicting account, explanations transpired. of what The first given police early interrogation, a statement on in their stand, repeated in when court the defendant was on “pinned” shooting on acts of a retributive number of individ- thought According uals who it in for Powell “had him.” Powell, “visiting” he home evening returned after an *4 sitting City, Atlantic and found deceased in a chair. When statement, her, In he touched he realized she was dead. this he allegedly attributed her to those individuals who were death get “out to him.” statement, interroga-
Powell’s after second obtained hours of station, police shooting tion described an “accidental” quarrel occurred when he arrived home and had another with deceased, lunged at which his revolver: time she argument . and had an and she up place “. .1 went to the I was got grabbed it and I it and my pistol. went for She it went away I turned it from me and pulling it toward me and off. fell on the chair.” In this statement Powell described She discovering that Debbie was the one who alleged surprise on hit, having that she was in control of the had been determined going who was to shoot him. gun and that she was the one began driving out and to shooting, After the Powell walked he threw his City. way City, Atlantic On the to Atlantic know, car, realizing, you “I started it didn’t out of because know, just I happened. You ... really hit me what true, not I know this didn’t saying myself to I know this is happened what realize . You know I didn’t happen. merge and contain point, the two statements At this then.” house, to some trip to his mother’s single account of defendant’s house, etc., apart- bars, his eventual return to to a friend’s in the chair. lay ment where Debbie dead notified, police were appears It from the record that the cooperate in police Powell went back with them to the station to subjected ap- investigation death. He was of Debbie’s during which time he proximately questioning, nine hours of above, just statements described. As noted issued two sought to have the second statement unsuccessfully Powell product it was a of coercion and suppressed ground on the rights. his Miranda had been obtained in violation of denied, defense counsel suppression having motion been first, which defend- defenses: pursued four inconsistent trial, claiming an alibi denying involvement and ant testified at (was City); admitting involvement but in Atlantic second (an shooting); the third and claiming misadventure accidental claiming kill admitting and intent but fourth involvement respectively. All but the police. statement to the first arose from defendant’s second alibi, accident, but and self-defense charged The trial court charge provocation/passion. refused facts legal principles applied to the analysis An of the relevant that a instruc- in this case leads to the conclusion *5 provocation/passion required. Defendant Powell is tion on entitled to a new trial.2 therefore retried, ques- will we have considered the the case Since tion, suggested not raised below but first the briefs before Court, supports a further this whether the record imperfect instruction based on self-defense. We conclude that that such defense it does and was available pre-Code under law. retrial, Assuming substantially charge similar evidence on such given. pas- should be While our discussion hereafter treats together, we choose sion/provocation imperfect charge manslaughter to base our reversal on the failure to based passion/provocation. charge imperfect While failure to self- defense, though charge requested, might even such was not 316, 318), (see infra at proprie- a reversal require otherwise doubtful, ty of such reversal here is for not was there no self-defense) request (imperfect had not but doctrine itself pass we explicitly recognized been in this State. Thus need not question on this difficult here. opinion parts.
The balance of our
will be divided into two
Part
self-defense was
imperfect
I discusses whether
available
pre-Code
degree
under
law to reduce second
murder to man-
sufficiency
slaughter and Part II discusses the
of the evidence in
manslaughter charges
this ease to warrant
based either on
imperfect
or on
self-defense.
2There are other facts not mentioned above that
the second
support
evidence offered
murder
and verdict.
the ballistics
Specifically,
struggle
State could serve to discredit Powell’s
about
testimony
physical
finding
gun,
since that evidence could
was more
support
18 inches
from the deceased when it was fired. The same is true
than
away
angles
at which
bullets entered and exited
of the State’s
as to the
finding
that she was in fact
deceased’s
evidence could
body—such
support
sitting
noted, however,
and killed.
It should be
at the time she was shot
testifying for the State admitted
cross-examination
the ballistics
upon
expert
degree of
because of
certainty
that his conclusions could not be afforded
making
his
His disclaimer
analysis.
of evidence he received
sparsity
concerning
as well as
went both to his
an absence of
burns
testimony
powder
angle
about the
of the bullets.
testimony
entry
*6
I
Law
Manslaughter Under Pre-Code
Justice,
adoption
the
our new Code of
Before
of
Criminal
law of
was in a
seq.,
et
substantive
homicide
N.J.S.A. 2C:1-1
the
flux,
the
regard
interplay
with
between
particularly
state of
legislative
A
varying
culpability
grading.
levels of
and
the
categories
fit
intentionally
committed
could
within the
homicide
murder,
murder, voluntary man
degree
of first
second
homicide,
justifiable
depending
particular
the
slaughter
upon
or
kill, a
surrounding
killing.3 Given such intent
set of facts
killing
passion
in
heat
finding that
was committed
of
4
(reasonable) provocation was a
legally
resulting
adequate
from
to man
to reduction
the homicide from murder
prerequisite
of
narrowly
provision
slaughter.
Because the
was so
circumscribed,
fo
mitigation
with claims of
courts confronted
at the time
the emotional
of mind of
accused
cused on
state
surrounding the
circumstances
killing,
to see whether the
provocation/passion
into a
somehow
fitted
homicide could
when the
complicated
category.5
situation was
further
verdict;
2A:113-2,
murder, designation
degrees
2A:113-
in
3See N.J.S.A.
of
113-6,
misadventure,
killing
manslaughter; 2A:
self-defense
defense
or
of others.
art,
range
provocation
legal
encompassing
of
term of
4Reasonable
is a
way
reasonable
in such a
as to cause a
situations in which a victim behaves
provocative
categories
traditional
of
lose his normal self-control. The
man to
assault,
arrest, adultery
combat,
illegal
battery,
are:
mutual
behavior
Scott,
1972)
(1st
persons.
Lafave &
ed.
injuries
See
Criminal Law
to third
573.
similarly
complicated by
problem
reach of
narrow
5This
e.,
provision
justifiable (i.
non-criminal)
invocation
which limited
homicide
(a)
the initial
was not
where defendant
claim of self-defense
situation
danger
(b)
aggressor,
he was
imminent
in a
belief that
acted
reasonable
reasonably
harm,
(c)
bodily
force which he
used
that amount of
exposed
necessary
to.
the risk of harm he was
to overcome
believed
Fair,
(1965).
provision did
unreasonable
This
not cover
State v.
45 N.J.
applicable
Imperfect
(imperfect)
is
to a homicide
self-defense
self-defense.
where,
killing,
believes
at the time of the
the defendant
committed
killing,
justify
belief
but defendant’s
circumstances to
exonerate
(without any
to look to the record themselves
courts were forced
counsel)
provide
that could
for circumstances
request by
had taken
where an altercation
inference of
in cases
necessary,
example,
This
became
place.
sometimes
upon an exercise
sought acquittal
based
where
defense
claim that defendant
when there was no
perfect self-defense
acted “in
rage
being
attacked and
had flown into a
as a result
step
We took this
ourselves
State
the heat of the moment.”
Bonano,
(1971).
spite
In
of a record barren
v.
II Either on Charges Based Manslaughter Appropriateness of in the Instant Imperfect or Self-Defense Provocation/Passion Case should manslaughter instruction determining whether a
In first, the inferences involved are: given, have been the issues case, proofs in the from the properly can be drawn first), quantum, weight, to the closely related (very second first, charge. for the justify such a As of evidence needed to may inferences be drawn. legal rules as to what there are no As for the logic and common sense. question The is one of exist, the infer- second, we believe while different formulations this case are more than the record in ences that flow from test, sufficient, what the to warrant submission no matter We first with the jury. deal manslaughter charges to “quantum question. of evidence” imperfect self-de
Evidence of manslaughter support can be used not fense prove must the malice which State but also to rebut second murder. warrant conviction of first or theoretically required may quantum of evidence that is enough whether there is evi question The latter is different. imperfect self-de mitigation (provocation/passion or dence of jury that fense) in the mind of the to create a reasonable doubt malice, and, a reasonable doubt that consequently, there was e., there (i. requiring acquittal defendant committed murder ques from the of). quantum question implies That different mitigation support enough evidence of tion whether there e., evidence, (i. on the delivery instruction beyond a guilty manslaughter could the find defendant sepa- are not treated doubt?). questions these reasonable Often (Oct. 1971), I, Vol. 2C:ll-3 Criminal Law Revision Comm'n New Jersey through 82-87, 94-95 and Vol. 11-5, 2C:3-4, 2C:3-9, II, Commentary, Code”, the New Penal Jersey Knowlton, Upon “Comments See also 162-165. (1979); Code", 1 DeCicco, Rut.L.Rev. New Penal "Proposed Jersey (1973). 164, 169 Crim.Jus.Q.
315
clear, confusion.
It is not
can cause considerable
rately, given
to
any consideration
instance,
case
that in the instant
the effect
jury as to
instructing
necessity of
determining
guilt or
would have
mitigation
evidence of
parties
all
Apparently
murder.
degree
innocence of second
rele
to
mitigation due
assumed
charge should
whether a
only on the issue of
vant
warrant
is sufficient
to
the evidence
given. Whether or not
judge
make the
a trial
must
manslaughter,
an instruction on
find malice
to
by instructing
burden clear
State’s
accused
doubt that the
beyond a reasonable
it must be convinced
in the
self-defense or
imperfect
not kill in an exercise
did
unless there
provocation,10
by inadequate
passion
heat of
caused
im
or
(either provocation/passion
mitigation
is no evidence of
self-defense)
in the record.
perfect
here is
obligation
this
recognition of
judge’s partial
The trial
degree murder:
charge on second
from his
evident
which do not
second-degree
cases of murder
includes all
in the
Murder
first-degree.
distinguished
of one or more
the absence
It is
by
constitute
or
required
deliberateness
willfulness,
premeditation
mental operations
design
first-degree.
or
where
Thus,
plan
in the
law to constitute murder
being
killing
if the
grievous
to take life or
harm without
intent
do
bodily
where the act is
or
or
without deliberation
premeditation,
or
done,
intentionally
is murder
anger
the crime
without reasonable
in the heat of
or
provocation,
done
second-degree.
supplied]11
[Emphasis
1881,
After jury the on the effects of evidence of mitigation in prosecution, a second murder judge a trial must manslaughter decide whether a appropriate, instruction is given particular question the facts of the Usually, case. manslaughter arises when requests defendant instruction.12 situation, usually question “sufficiency 12In this there is no of of the conviction, support manslaughter evidence” to a since the trial has already supports charge. determined that the evidence a murder That evi- (of killing, intent, etc.), coupled any dence the accused’s with almost mitigation, justify manslaughter evidence of has been held to instruction. slightest . . [A]ll “. that needs to be shown is the of amount evidence e., self-defense, regarding underlying theory imperfect provoca- [f. Hall, tion/passion], People (5th Ill.App.3d v. 324 25 N.E.2d 50 Dist. 1975). interesting Pennsylvania, charged It is to note defendant with automatically manslaughter, a murder is entitled to an on instruction whether mitigation policy not evidence of in the exists record. The behind this jury’s mercy-dis- argument automatic rule from stems an historical that a power by pensing respected possibility leaving be must a reduced open verdict times. all We do not advocate of such an rule use automatic However, majority this State. we do think that case law in recent jurisdictions supports delivery “scintilla evidence” threshold for of a manslaughter prosecution. instruction in a murder argument We note also defendant’s that where a self-defense instruction is murder, appropriate prosecution imperfect in a self- instruction
317
is
in the record
if believed
which,
.
.
if there
cases,
homicide
[I]n
manslaughter,
jury,
an instruction
the crime
would reduce
voluntary
by
given,
defining
v.
Ill.2d
if
Joyner,
that crime should
[People
requested.
(1972) (citations omitted)].
N.E.2d 756, 759
302, 278
instruction whether or not
A
is entitled
such
defendant
theory
with
of his defense:
consistent
is
set;led
jury
is
if
It is a
where there
evidence which
believed
rule that
defining that
would reduce a
a lesser included
an instruction
offense,
crime to
given.
even if
should be
.
This
is
offense
.
rule
applicable
theory
guilty
that the defendant
defense is inconsistent with the possibility
in a
case is entitled to have the
lesser crime.
A defendant
criminal
...
legally recognized
which has some foundation
consider
defense
theory
slight
.
.
evidence on a
tenuous.
.
evidence,
Very
theory
however
giving
justify
v.
Dortch,
defense will
of an instruction.
[People
Ill.App.3d
(1st
1974)(citations omitted)]13
*11
325-26
Dist.
324,
314 N.E.2d
911,
requested
usually
by a
Although manslaughter
a
instruction is
defendant,
here,
as
it
conceivable
the State
was the case
is
instruction,
an
court could
party seeking
could be the
such
its own where neither
such an instruction on
delivery
consider
of
requests
Where the
party
request
has made
therefor.
State
instruction,
might oppose such an
a defendant
reasons, including
possibility
variety
instruction
of
verdict,
“compromise”
perhaps lessen-
provides a
for a
it
vehicle
defense/manslaughter
as well. While we are
is necessarily appropriate
unwilling
Illinois,
one
in
of a
rule like the
used
per
advocate
se
adoption
(2d
1972),
201
cf.
303,
v.
5
282 N.E.2d
Dist.
Zertuche,
see People
Ill.App.3d
(5th Dist.
785,
818,
18
ing
perceives
strong
what he
to be a
possibility of a verdict of
However,
acquittal.
problem
when faced with this
People
v.
Sykes,
674,
64,
Ill.App.3d
45
4
(5th
Ill.Dec.
Since is claimed here that no for a manslaugh charge (or, ter was made if withdrawn) made was thereafter we deem it appropriate to use this occasion to set forth our view of duty of a trial court in a murder charge case to applicable law to the upon based regardless facts requests what may counsel make. We express opinion no here effect, as to the appeal, of a failure so to where no request has been made. Rather we shall duty state the trial court when present similar circumstances themselves. assumed,
It is correctly, and almost necessity without the discussion, that where murder, the indictment is degree for first the trial court will charge degree second murder as well if the support tends to it regardless of the requests counsel may or may not make. That is not because there is something different about degree (other second murder than the fact that presumed it is the degree murder) but rather that it is so well known and so closely related to first murder that no particular special need for a request necessary. seems Similarly, *12 where the clearly facts indicate the possibility that the crime was manslaughter upon based either provocation/passion or imperfect self-defense, we see why no reason the judge trial should not obliged, made, also be any request being even without Furthermore, so to charge. we question whether it proper is for the trial court to charge omit such a simply because defense specifically counsel requests that it given, not be even where the prosecution concurs in request. that If that agreement between counsel reflects their belief that there is insufficient evidence to warrant such a charge, certainly trial court thing; that is one a seriously would consider counsel’s concurrence indicating as high degree of probability that there is indeed insufficient however, no Where, concurrence that such counsel’s evidence. support such given, in the face of obvious record charge be strategy optimum their as to charge, is on conclusions based believing charge impede the will what is (defense counsel that acquittal, prosecution the believed be a substantial chance it will what it to be substantial chance of impede that believes murder) the conviction of first or second party is a third charge given jury. the There should be itself, by the State on behalf of (represented jury): involved the important paramount, citizens. Their interest is even more its “purity” adversary system, especially preserving than system end that justifiable when there to be no served seems simply, the facts on the particular Very in this situation. where charge, people of a certain justify record would conviction that rendered to the of this State are entitled to have (even real) strategy, advantage jury, and or assumed no one’s It not precedence public take over interest. matters can that the belief that may be correct in that the defendant’s counsel likely charge, or that defendant acquittal is more without such chance; matter nor willing himself is to take that does manslaughter instruction forego prosecutor is content The is hope murder will result. that a conviction of is the law’s contestants. He more than a referee between of the is duty it is his to see that the will law representative, and adversary help is to him system The done. real function that duty. fulfill can of what inferences question
We come then to jury. presented to the drawn from the facts that are Bonano, v. go fairly well in will shown State distance court Court, sup- evaluating evidence introduced to supra, where this self-defense, manslaughter charge that a port a found claim of justified despite total on based angry. All defendant became any suggestion absence might case was that defendant that was before the in that him, and that thought trying to harm have that the victim made. Based victim been gesture part had some on victim; shot and killed the provocation, defendant *13 sole explanation offered was that he did inso self-defense. We that, evidence, there held on such defendant was entitled to an instruction on provoeation/passion as well as an instruction on self-defense. We did this because did not credit [i]f defendant’s that he believed he was in testimony danger being injured, rejected killed or and hence seriously plea but menacing self-defense, nevertheless did believe that made the [the victim] just gesture described drew his knife [victim and uttered some of a implication threatening might have nature], considered such conduct to properly to reduce adequate provocation what would otherwise have N.J. been murder. [59 523-24].
Obviously the Court concluded that provo- inference of cation/passion was a reasonable one to make where the defend- ant believed that the trying victim was to harm him. Since such an inference was found reasonable presented bare facts Bonano, we find no basis for concluding otherwise this case. The evidence available in regard this record with to the emotional state of both defendant and victim at the time the killing persuasive occurred is far more than Bonano that a provoeation/passion situation existed.
The State’s evidence alone in this case was sufficient justify delivery of a manslaughter instruction. The point focal of the State’s case is statement, Powell’s “disavowed” which the Appellate Division characterized as follows: In the following: disavowed statement defendant asserts the There was an argument between him and the deceased in the She “went for his” apartment. gun, “got which grabbed was on his and she it.” person, Defendant it, was pulling it toward himself and then “turned it from himself, at which time away” it went off. The During deceased then fell on a chair. the course of the she came at he quarrel, her she him, came back at him and pushed away, grabbed gun shirt “went She then for the up.” that was in his and she belt, “had it gun.” and that’s when there were shots from the When she had removed gun during struggle, “thought” from his belt their he it was in his pointed “figured gone I direction, was so when I first heard the I was shots, . . . like I was surprised to be hit but it was her” when the first supposed shot was fired. He removed the from her. “It was like in weapon both of our struggling hands” gun while were for the they When the went weapon. off, trying both of them had he it; possession “wrestle” it from her. He gun also stated that the went off “while it was in her possession.” weapon discharged standing more than once. She the chair” when this “by highway He leaving
happened. on the disposed after later go apartment to Atlantic He was asked whether City. he cared to add anything to thing the statement. He “the answered, is that it was an accident.” *14 (or When confronted with a witness’s) defendant’s other particular events, account of a jury chain of a must decide how much, any, if of the testimony given is accurate. The State attempted to convince jury that none of story Powell’s true except for his killing place admission that the took in his presence, involved, that he was lying and that he was protect she, he, “surprise” himself-the that not was shot allegedly being the clearest indication of its untruthfulness. The State claimed times, that the defendant shot the pointed victim three (lack powder its ballistics evidence burns and residue on victim) proof as physical proxim- defendant was not in close e., ity (i. with the victim struggling) shooting when the occurred. prosecution pointed The also to further ballistics evidence that the victim was shooting (angle seated before the ended of bullet chair) support embedded a claim of killing, intentional accompanied by an absence struggle necessitating of continuous Finally, presented self-defense. the State testimonial evidence unsteady nature relationship of defendant’s with the victim and of “flight” support defendant’s from the scene in its claim of willful and deliberate murder.
We conclude that the very same evidence could reasonably produced have passion an inference of muted between Powell erupted they argued Debbie Couch that when and she lunged gun, for his and caused Powell’s reason to crumble. Alternatively, produce the same evidence could an inference that when Powell struggled gun, and Couch for the he believed trying that she was to kill him and he shot and killed her in differentiating self-defense.14 We see no basis for between 14Note, cross-examination, regard, in this that on the State’s ballistics expert qualified testimony shooting admitting speculative his about the physical nature of his conclusions due to lack of more or testimonial evidence. jury (that testimony The could have decided to discount his the victim was result, greater inches) shot from a distance than 18 as a and chosen instead to physical struggle gun during believe defendant’s account of a for the which shooting place. Alternatively, jury took could have determined that at range during struggle, least one shot was fired at close and that once the chair, defendant, senses, dispossessed victim fell into the continued fire at the victim. in this situation-the same
perfect imperfect self-defense perfect to instruct on that caused trial exercise justifies an instruction on unreasonable use of thereof. It is essential to bear in mind defendant’s support manslaughter instruction need evidence to plausible, probable explanation. it need not be most jury is claims of the probability measure of once the the. parties passed possibility. have threshold considered, we
When all of the evidence before the scenario; supports believe that was different scenario *15 put jury not for due the erroneous before the its consideration to omission of a instruction. homicide, Larry the morning
On the Powell and Debbie argument, very upset. Couch which left both them had clothes, mouse,” packed-up trying Powell cat and to “playing moving apartment lead out the Debbie to believe he was they Perhaps that she had similar inten- shared. he knew up relationship. tions and the wanted to be first one to break the event, Perhaps stay. In he left he wanted her ask him to apartment in day, and came back much later in the immediately walked into and almost afternoon. He the house began quarrel he and Debbie over some minor household matter, up perhaps picking they where had left off that morn- ing. “It thing." Suddenly, lunged was an emotional Debbie gun, person. grabbed Powell’s which he on his Powell carried hand, gun, pull away her which she held in tried to her, from unlikely and it went off. While it seems that it went (although off three times the trial accidentally did homicide), it not find that accidental would be unreasonable to perhaps accidentally, slumped once Debbie into the it went off chair, Powell, possession gun, rage now in in a fit of him, attempt kept shooting, over either in fear Debbie’s kill get up again simply anger that she attack him or would thought thing. would that she that she do such a He knew gun had a apartment, of her own somewhere in the and believed fully capable shooting likely her someone. Most he fired all he rage thought shots total at the that the woman with whom lived, child-perhaps the mother of his the woman whom he killing firing shots, loved-would even think of him. After house, rage, taking he ran out of the still in a with him. jumped driving He in his ear and started in the direction of his way happened really mother’s house. On the what had didn’t first, did, it, “hit him” at but as it he believe he knew it couldn’t true, then, wasn’t as if it. perhaps someone else had done But finally beginning happened, to realize what had he threw the gun out of the car. After a of drinks and a number number friends, stops finally and visits with various he cooled off and gravity happened. realized the of what had He to the returned apartment lying in the baby found Debbie chair and their on the Frantically, began knocking floor next to her mother. he doors, help in an to find someone who could him get effort police. Eventually, police were called and came to the scene to sitting apartment waiting discover Mr. Powell for them.
Knowing relationship victim, between defendant and before, knowing argued many that they knowing had times anger Powell had been driven to on various occasions and had Debbie, physical to do harm to and that she in even threatened prepared return was to move out of the house because she was unhappy, easily have concluded that a lovers’ could *16 quarrel provoked by in which occurred Powell Ms. Couch’s life, senses, attempt deprived him attempt on his which of his rage. and caused him to kill her in a fit of Such a conclusion very could have been reached from the evidence on which the prosecution, State based its murder and could have been but- previous tressed circumstantial evidence in record about victim, arguments between the and the of which defendant might finally transpired have resulted in the turn of events that September 1975. record, course, might
One also conclude from the that the murder, premeditated, evidence of cold-blooded even if not overwhelming compared passion of a crime of suggestion to this instance, it be that provocation. may based on reasonable For reason decided to kill Powell walked into the home and for some shot three motive pulled gun her out his and her times. No anyone for behavior suggested by whatsoever has been such strongly much other those same circumstances which more than portray quarrel shooting rage. and a in a fit of No one a lovers’ presumably suggested why policeman, has a trained in the use carried, necessary, find at regularly of the firearm he would range, his three times rather than relatively close to shoot lover once, agree All just unless he had lost all reason. can Powell, contrary, to believed despite statement never to thought going went off he he was when the one shot, there not one of evidence to rebut his but shred they fight get she statement had a and that tried to gun from him first.
A accept suggestion court need not that these were two ordinary, beings get along, fallible who couldn’t who human other, argued, ultimately each and who drove loved hated tragedy arising argument themselves to a from a furious when other; each kill actually attempted threatened and that, might court passion find conclusion all this evidence of notwithstanding, contrary cold-blooded murder was more likely. however, deprive jury That is no reason of the right to find otherwise. Not even Powell’s own lies about alibi lies) shooting (assuming they or about accidental were should truth, deprive right of the find the and to base its that finding. verdict on foregoing reasons,
For we reverse defendant’s conviction opinion. and remand for new trial in accordance with this CLIFFORD, JJ., dissenting. SULLIVAN and We judgment substantially would affirm the the reasons expressed Division, opinion Appellate reported 175 N.J.Super. (1979).
For reversal remandment-Chief Justice WILENTZ and PASHMAN, SCHREIBER, Justices HANDLER and POL- LOCK-5.
For affirmance -Justice SULLIVAN and CLIFFORD-2.