State v. Lee Funderburg (074760)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

State v. Lee Funderburg (a/k/a Lee E. Funderburg) (A-29-14) (074760)

Argued March 1, 2016 -- Decided May 5, 2016

FERNANDEZ-VINA, J., writing for a unanimous Court.

In this appeal concerning a jury trial for first-degree attempted murder, the Court considers whether a trial
court erred by failing to charge the jury sua sponte on the lesser-included offense of attempted passion/provocation
manslaughter.

Defendant Lee Funderburg had a romantic relationship with Terra Andrews, which resulted in the birth of a
son. After the relationship ended, defendant and Andrews shared parenting responsibilities for their child. Later,
Andrews began dating Leno Parham. After Andrews and Parham had been dating for about one year, Parham and
defendant developed a somewhat tense relationship, and the two exchanged angry words. Defendant and Parham
did not interact again until February 3, 2009, when Andrews and Parham arrived at defendant’s house to pick up the
baby. As Parham buckled the baby into his car seat, defendant reached into Andrews’s parked car and took the keys
out of the ignition. Andrews and defendant began arguing, and Parham intervened on Andrews’s behalf. Parham
chased defendant for ten to fifteen minutes in an effort to reclaim Andrews’s keys. At some point, defendant
brandished a knife. After giving up the chase, Parham leaned against the car, at which point defendant lunged at
him and punched him several times in the chest. Defendant’s father and brother, who were nearby, intervened to
separate the men. When Parham stepped away, he realized he had been stabbed and immediately sought medical
attention. He sustained life-threatening injuries and underwent major surgery but survived.

Defendant was arrested and charged with attempted murder and aggravated assault, as well as related
weapons charges. At defendant’s trial, defense counsel’s theory of the case was that defendant pulled out a knife
after Parham began chasing him because defendant was fearful and wanted the chase to stop. Defense counsel
asserted that defendant did not intentionally stab Parham when he lunged at him; rather, he contended that Parham
was accidentally stabbed during a chaotic struggle for control of the knife.

After closing arguments, counsel for both parties met with the judge to discuss the final jury charges. All
counsel agreed that it was necessary to instruct the jury on a number of lesser-included offenses to aggravated
assault. However, neither party requested that a charge of attempted passion/provocation manslaughter be provided
as a lesser-included offense of attempted murder. Accordingly, the judge instructed the jury on a number of lesser-
included offenses to aggravated assault, but did not deliver a charge for the lesser-included offense of attempted
passion/provocation manslaughter. The jury found defendant guilty on all counts.

Defendant appealed and the Appellate Division reversed the trial court’s decision. The panel held that the
trial court had failed to instruct the jury on the lesser-included offense of attempted passion/provocation
manslaughter, and remanded the case for a new trial. The Court granted the State’s petition for certification. 220
N.J. 268 (2015).

HELD: Defendant was not entitled to a jury instruction on attempted passion/provocation manslaughter because the
facts before the trial court did not clearly indicate that the elements of attempted passion/provocation manslaughter
were present. In particular, there was insufficient evidence before the jury to demonstrate that a reasonable person in
defendant’s position would have been adequately provoked by the victim’s behavior.

1. The appropriate time to object to a jury charge is “before the jury retires to consider its verdict.” R. 1:7-2. When
a defendant fails to object to an error or omission at trial, as in this case, appellate courts review for plain error.
Under that standard, courts disregard any alleged error unless it is of such a nature as to have been clearly capable of
producing an unjust result. To warrant reversal, an error must be sufficient to raise a reasonable doubt as to whether
the error led the jury to a result it otherwise might not have reached. (pp. 16-17)
2. Attempted passion/provocation manslaughter is comprised of four elements: (1) the provocation must be
adequate; (2) the defendant must not have had time to cool off between the provocation and the slaying; (3) the
provocation must have actually impassioned the defendant; and (4) the defendant must not have actually cooled off
before the slaying. The first two criteria are objective, and the latter two are subjective. To satisfy the first element
of attempted passion/provocation manslaughter, a jury must conclude that a reasonable person in the defendant’s
position would have been provoked sufficiently to arouse the passions of an ordinary man beyond the power of his
control. The generally accepted rule is that words alone, no matter how offensive or insulting, do not constitute
adequate provocation to reduce murder to manslaughter. (pp. 17-18).

3. Although a trial court is vested with discretion in delivering jury instructions, some of the trial court’s decisions,
such as the charging of lesser-included offenses, are governed by statute. To justify a lesser-included offense
instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well
as to convict the defendant of the lesser, unindicted offense. N.J.S.A. 2C:1-8(e). When the parties to a criminal
proceeding do not request that a lesser-included offense be charged, the charge should be delivered to the jury only
where the facts in evidence clearly indicate the appropriateness of that charge. For a trial court to be required to
charge a jury sua sponte on attempted passion/provocation manslaughter, the court must find first that the two
objective elements of the offense are clearly indicated by the evidence. (pp. 18-20)

4. Here, defendant was not entitled to a jury instruction on attempted passion/provocation manslaughter because
there was insufficient evidence that a reasonable person in defendant’s position would have been adequately
provoked by Parham’s behavior. Parham’s chase did not threaten defendant, and there was insufficient evidence to
suggest that Parham wielded the knife. Even if the jury credited testimony by defendant’s father that Parham
revealed the knife first, the statement would at most support the theory that defendant acted in self-defense; it would
likely not support a theory that defendant was actually impassioned and intended to kill Parham. Since the first
objective prong of attempted passion/provocation manslaughter cannot be satisfied by the testimony presented at
defendant’s trial, there is no need to consider whether a reasonable person in defendant’s position would have had
time to cool off between the provocation and the slaying. An instruction for the lesser-included offense would have
been unwarranted. (pp. 20-22)

5. The Court’s holding reaffirms the principle that a trial court does not have “the obligation on its own
meticulously to sift through the entire record in every murder trial to see if some combination of facts and inferences
might rationally sustain a manslaughter charge.” State v. Choice, 98 N.J. 295, 299 (1985). It is only when the facts
“clearly indicate” the appropriateness of an attempted passion/provocation manslaughter charge that the duty of the
trial court arises. It is not improper for a trial court to withhold instruction on attempted passion/provocation
manslaughter when there is no evidence that would clearly indicate the appropriateness of that charge. (pp. 22-23)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to reinstate
defendant’s conviction.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON
join in JUSTICE FERNANDEZ-VINA’s opinion. JUDGE CUFF (temporarily assigned) did not participate.

2
 SUPREME COURT OF NEW JERSEY
A-29 September Term 2014
074760

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

LEE FUNDERBURG (a/k/a LEE E.
FUNDERBURG),

Defendant-Respondent.

Argued March 1, 2016 – Decided May 5, 2016

On certification to the Superior Court,
Appellate Division.

William P. Fisher, Acting Assistant
Prosecutor, argued the cause for appellant
(Angelo J. Onofri, Acting Mercer County
Prosecutor, attorney).

Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney).

Jennifer E. Kmieciak, Deputy Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (John J.
Hoffman, Acting Attorney General, attorney).

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

This appeal presents the question of whether, in the

context of a jury trial for first-degree attempted murder, a

trial court erred by failing to charge the jury sua sponte on

1
the lesser-included offense of attempted passion/provocation

manslaughter.

The facts in this appeal were established at trial.

Defendant Lee Funderburg and Terra Andrews had previously been

in a romantic relationship, and they continued to share

parenting responsibilities for their two-year-old son even after

they stopped dating. Funderburg had a tense relationship with

Andrews’s new boyfriend, Leno Parham, and they had previously

exchanged angry words. On February 3, 2009, an argument ensued

between Funderburg and Parham when Andrews arrived with her

boyfriend to pick up the baby from Funderburg’s house.

Funderburg removed the keys from the ignition of Andrews’s car.

Parham chased Funderburg for ten to fifteen minutes in an effort

to reclaim the keys. Several eyewitnesses testified that, at

some point before or during the chase, Funderburg brandished a

knife. After giving up the chase, Parham leaned against the

car, at which point Funderburg lunged at Parham and punched him

several times in the chest. Funderburg’s father and brother,

who were nearby, also got involved in the tussle, ostensibly in

an effort to separate the men. When Parham stepped away, he

realized he had been stabbed and immediately sought medical

attention. He sustained life-threatening injuries and underwent

major surgery but survived.

2
 Funderburg was arrested later that evening and charged with

attempted murder and aggravated assault, as well as related

weapons charges. At Funderburg’s trial, the judge instructed

the jury on a number of lesser-included offenses to aggravated

assault. However, counsel did not request a charge for the

lesser-included offense of attempted passion/provocation

manslaughter, and the charge was not delivered to the jury.

We now address whether it was error for the trial judge to

fail to charge the jury sua sponte on the lesser-included

offense of attempted passion/provocation manslaughter. We hold

that Funderburg was not entitled to a jury instruction on

attempted passion/provocation manslaughter because the facts

before the trial court did not clearly indicate that the

elements of attempted passion/provocation manslaughter were

present. In particular, there was insufficient evidence before

the jury to demonstrate that a reasonable person in Funderburg’s

position would have been adequately provoked by Parham’s

behavior.

Our holding today reaffirms that a trial court does “not

. . . have the obligation on its own meticulously to sift

through the entire record in every murder trial to see if some

combination of facts and inferences might rationally sustain a

manslaughter charge.” State v. Choice, 98 N.J. 295, 299 (1985).

Because the Appellate Division here improperly sifted through

3
the cold appellate record and constructed a hypothetical and

factually unsupported scenario in which Funderburg might have

conceivably been adequately provoked, we are compelled to

reverse and remand with instructions to reinstate Funderburg’s

conviction.

I.

Defendant Lee Funderburg had a romantic relationship with

Terra Andrews, which resulted in the birth of a son. Shortly

thereafter, Funderburg and Andrews stopped dating but continued

to share parenting responsibilities. Later, Andrews began

dating Leno Parham, the victim. Parham routinely accompanied

Andrews to Funderburg’s residence to pick up the baby. However,

after Andrews and Parham had been dating for about one year,

Parham and Funderburg developed a somewhat tense relationship.

Several weeks before the altercation that resulted in

Parham’s stabbing, Parham and Funderburg exchanged hostile words

by telephone. Parham informed Funderburg that he was going to

“come see him shortly” in person. On the way to Funderburg’s

house, Parham spoke to Funderburg’s mother by telephone and

informed her that he was planning to fight her son. When Parham

arrived at Funderburg’s house (which Funderburg shared with his

mother, father, and brother), Funderburg came outside and

exchanged angry words with Parham. Funderburg briefly retreated

4
into the house and returned with a knife. The police arrived,

and Parham left the scene.

Funderburg and Parham did not interact again until February

3, 2009. In the late afternoon, Parham received a call from

Andrews. Andrews asked Parham if he would accompany her to

Funderburg’s house to pick up her son, who was then about two

years old. Parham agreed, and Andrews picked him up in her car.

Both then drove to Funderburg’s house. Most of the trial

witnesses testified that it was beginning to snow that

afternoon.

Upon arriving, Andrews pulled her car into the driveway and

got out to pick up her son while Parham stayed behind in the

passenger seat. Funderburg emerged from inside the house but

did not bring the child with him. Shortly thereafter,

Funderburg’s brother Jamaal Funderburg1 came out of the house,

holding the baby. Andrews tried to retrieve her son from

Jamaal, but was unable to do so. Parham then exited the car,

took the baby from Jamaal, and began to place the baby into a

car seat in the backseat.

As Parham buckled the baby into the car seat, Funderburg

reached into the driver’s side of the parked car and took the

1 Because the defendant and his family members share the same
last name, we refer to the defendant’s family members by their
first names. We intend no disrespect by this practice.

5
keys out of the ignition. Andrews and Funderburg began arguing.

Funderburg was upset that Andrews brought Parham over every time

she came to pick up their son, and Andrews was upset that she

was being prevented from leaving. Parham intervened on

Andrews’s behalf and began to chase Funderburg around the car in

an attempt to recover the car keys. The snow on the ground made

pursuit more difficult. Funderburg evaded Parham for about ten

to fifteen minutes. Andrews and Jamaal both stood nearby but

did not participate in the chase.

Several eyewitnesses -- including Andrews, Parham, and

Jamaal -- testified that Funderburg brandished a knife.

However, Parham gave conflicting statements as to when the knife

appeared. Parham told police several days after the incident

that Funderburg brandished the knife after Parham began chasing

him to obtain the car keys. At trial, Parham indicated that

Funderburg brandished the knife before the chase began.

Parham eventually stopped chasing Funderburg and knocked on

Funderburg’s front door, hoping to persuade Funderburg’s mother

to entreat Funderburg to return the car keys. Finding no one

home, Parham walked into the street and asked Funderburg and

Jamaal if they wanted to fight; they did not respond. Parham

walked back to the car and leaned against it, and Funderburg and

Jamaal both approached him. Parham and Funderburg continued to

argue verbally for several minutes and the confrontation

6
continued to escalate. Parham testified that Funderburg held

the knife in his hand, but he did not believe Funderburg would

use it. Meanwhile, Funderburg’s parents arrived at home by car

and parked in front of their house. Funderburg’s father Leroy

approached the men as they stood arguing next to Andrews’s car.

According to Parham, Funderburg then lunged at him and

punched him several times in the chest. Jamaal and Leroy got

involved, and both testified that they intervened to restrain

Funderburg and Parham from one another. However, Parham

testified that Jamaal and Leroy helped to pin Parham against the

car as Funderburg assaulted him. Parham struggled with

Funderburg for control of the knife, and it eventually was

dropped onto the ground.

Parham testified that he stepped away from the car and

immediately began feeling “woozy.” He noticed two spots on his

shirt and realized he had been hurt and was bleeding. He walked

into the street and flagged down a passing motorist in a van,

who immediately agreed to drive him to the hospital upon seeing

his injuries. He was in critical condition when he arrived, but

after emergency surgery and transfer to a trauma center, doctors

were able to successfully treat him for two stab wounds to the

chest, which had resulted in a laceration to the right ventricle

of his heart and a perforated lung. Parham was discharged from

the hospital one week later.

7
 Funderburg left the scene of the altercation shortly before

police arrived. He returned about two hours later, and was

arrested after declaring to officers, “I’m the one you are

looking for.” The officers read Funderburg his Miranda rights,

and began to secure him in the police vehicle. As he was being

secured, Funderburg was questioned about the knife. He told

officers he had tossed the knife into a bush near the front

porch of his home. However, officers were unable to locate the

knife at the scene or in the vicinity afterwards.

The witnesses’ accounts differed as to the features of the

knife that was used in the assault. Andrews stated the knife

had a silver blade about four inches long, but she could not

describe its handle. Parham stated that the knife’s handle was

black with a silver blade about five inches long. Funderburg’s

father Leroy stated that the knife looked like a “carpet knife”

with a blue or green handle and a blade about one inch long.

Funderburg’s brother Jamaal stated that he saw a box-cutter with

a green handle about four inches long and a silver blade.

II.

Funderburg was indicted by a Mercer County grand jury on

five counts: first-degree attempted murder, contrary to

N.J.S.A. 2C:11-3(a)(1) and (2) and N.J.S.A. 2C:5-1 (Count One);

second-degree aggravated assault, contrary to N.J.S.A. 2C:12-

1(b)(1) (Count Two); third-degree aggravated assault, contrary

8
to N.J.S.A. 2C:12-1(b)(2) (Count Three); third-degree possession

of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-

4(d) (Count Four); and fourth-degree unlawful possession of a

weapon, contrary to N.J.S.A. 2C:39-5(d) (Count Five).

The State’s case against Funderburg proceeded to trial in

January 2011. The State presented testimony from a number of

witnesses, including Parham, Andrews, the motorist who drove

Parham to the hospital, a neighbor of the Funderburgs, two of

Parham’s doctors, and officers who responded to the scene.

Funderburg’s brother, Jamaal, and his father, Leroy, both

testified in Funderburg’s defense. Jamaal testified that he did

not know who had the weapon initially, but said that it

eventually ended up in Parham’s hand during the struggle.

Jamaal testified that Parham tossed the knife as he was walking

away from the fight and into the street, where he flagged down

the passing van and left.

Leroy was the only witness to testify that Parham held the

knife first. Leroy testified that he saw Parham pull out a

knife as he was leaning against the car and before Funderburg

lunged at Parham. Leroy explained that he got involved to

separate Funderburg from Parham. He testified that he saw

Parham toss a knife into the bushes after the scuffle, just

before getting into the van that took him to the hospital.

Leroy was also the only witness who denied that it was snowing

9
on the afternoon of February 3, 2009; he stated that the weather

was cold but dry that day.

In closing arguments, Funderburg’s defense counsel

presented his theory of the case: Funderburg pulled out a knife

after Parham began chasing him because he was fearful and wanted

the chase to stop. Defense counsel asserted that Funderburg did

not intentionally stab Parham when he lunged at him; rather, he

contended that Parham was accidentally stabbed during a chaotic

struggle for control of the knife.

After closing arguments, counsel for both parties met with

the judge to discuss the final jury charges. All counsel agreed

that it was necessary to instruct the jury on a number of

lesser-included offenses to aggravated assault. The judge

provided instructions on lesser-included offenses, including

aggravated assault, attempted serious bodily injury aggravated

assault, significant bodily injury aggravated assault, bodily

injury with a deadly weapon aggravated assault purposely or

knowingly caused, recklessly causing bodily injury with a deadly

weapon, simple assault, simple assault without the use of a

deadly weapon, and attempt to cause bodily injury. However,

neither party requested that a charge of attempted

passion/provocation manslaughter be provided to the jury as a

lesser-included offense of attempted murder. After several days

10
of deliberations, the jury found Funderburg guilty on all

counts.

In January 2012, Funderburg appeared for sentencing. After

merging various charges,2 the court sentenced him to an aggregate

term of thirteen years of incarceration.

Funderburg appealed his conviction in July 2012. After

hearing oral argument in May 2014, the Appellate Division

reversed the trial court’s decision in an unpublished per curiam

opinion. The appellate court held that the trial court had

failed to instruct the jury on the lesser-included offense of

attempted passion/provocation manslaughter, and remanded the

case for a new trial. The State thereafter filed a petition for

certification, which we granted. State v. Funderburg, 220 N.J.

268 (2015).

III.

A.

Funderburg argues that the Appellate Division properly

reversed and remanded his case for a new trial. He contends

that a jury instruction on attempted passion/ provocation

2 Funderburg’s sentence is not at issue in this appeal. We note
briefly that the sentencing judge improperly merged some of
Funderburg’s weapons charges in violation of our instructions in
State v. Diaz, 144 N.J. 628, 636 (1996). This was error but had
no net effect on Funderburg’s sentence. The Appellate Division
properly remanded for correction of the judgment of conviction
to address this error.

11
manslaughter should have been given by the trial judge sua

sponte, and urges that the failure to do so constituted plain

and reversible error.

Funderburg relies on case law providing that the trial

judge has a duty to instruct the jury on any lesser-included

offense for which a rational basis is “clearly indicate[d]” by

the record. See, e.g., State v. Jenkins, 178 N.J. 347, 361

(2004) (“[A] trial court has an independent obligation to

instruct on lesser-included charges when the facts adduced at

trial clearly indicate that a jury could convict on the lesser

while acquitting on the greater offense.”); see State v. Powell,

84 N.J. 305, 318 (1980) (holding that trial court has “duty . .

. in a murder case to charge the applicable law to the jury

based upon the facts regardless of what requests counsel may

make”).3 He also cites State v. Robinson, 136 N.J. 476, 488-89

(1994), in which we held that attempted passion/provocation

manslaughter is a lesser-included offense of attempted murder.

Funderburg contends that a trial judge must sua sponte

instruct the jury on attempted passion/provocation manslaughter

whenever the objective evidence presented at trial clearly

3Funderburg argues that counsel requested that all lesser-
included offenses be charged to the jury. However, that
statement was in the context of a discussion involving
aggravated assault and cannot be read to include a request for
an attempted passion/provocation manslaughter charge.

12
indicates both (1) reasonable and adequate provocation and (2) a

lack of cooling-off time. See State v. Mauricio, 117 N.J. 402,

411 (1980). He emphasizes that the jury could have found that a

reasonable person in his position would have been adequately

provoked by Parham’s actions, and that such a person would have

had insufficient time to “cool off” before the physical

altercation took place.

B.

In opposition, the State urges us to reverse the Appellate

Division decision and reinstate defendant’s convictions. The

State first contends that there was no evidence in the record to

“clearly indicate” that an instruction on attempted

passion/provocation manslaughter was warranted. It contends

that the Appellate Division improperly sifted through the record

to find a combination of facts and inferences that would have

supported a manslaughter charge at the trial level, even though

the trial court was not required to perform such a time-

intensive activity.

Next, the State submits that neither of the two objective

elements of attempted passion/provocation manslaughter

articulated in Mauricio, supra, were present. The State argues

that the facts presented by Funderburg’s witnesses were not

sufficient to support an inference that there was reasonable and

adequate provocation, since Funderburg initiated both the

13
confrontation in the driveway and the physical contact that

resulted in Parham’s stabbing. The State urges that even the

foot chase initiated by Parham was not adequate provocation. It

notes that Parham’s chase was preceded by verbal negotiation,

which Funderburg rejected. As such, the State asserts that

there was no need for “cooling-off” time, since Parham’s actions

would not have provoked a reasonable person in Funderburg’s

situation.

Finally, the State notes that a jury instruction on

attempted passion/provocation manslaughter would have

contradicted defense counsel’s theory of the case that

Funderburg pulled out his knife in fear when Parham began

chasing him. The State points out that a jury instruction

proposing that Funderburg acted out of passion or provocation

would indicate that Funderburg in fact intended to injure Parham

-- not that Funderburg was trying to defend himself, as

Funderburg’s counsel argued in his closing statement.

C.

The Attorney General (“AG”) participates in this appeal as

amicus curiae and supports the State’s arguments. The AG

submits that the Appellate Division improperly substituted its

own judgment for that of the trial judge when it sifted through

the record to find support for a lesser-included offense that

defendant did not request. The AG cites State v. Denofa, 187

14
N.J. 24, 42 (2006), for the proposition that trial courts are

required to give sua sponte jury instructions only when the

evidence presented in a case “jump[s] off the page.” Here, the

AG argues that the Appellate Division cherry-picked several

factual references from the record in support of a potential

verdict on attempted passion/provocation manslaughter, thereby

focusing on the cold appellate record rather than the trial

judge’s first-hand knowledge of the case.

The AG also contends that no reversible error occurred at

Funderburg’s trial. The AG submits that a presumption of

reversible error for a trial court’s omission or incomplete

instruction to the jury would produce needless extra work for

the State, and would undermine the integrity of the judicial

process by disrupting the finality of jury verdicts. The AG

also urges that such a presumption could encourage defendants to

remain silent at trial and later seek a second bite at the

proverbial apple when a judge fails to render a complete

instruction.

Finally, the AG urges that the evidence adduced at

Funderburg’s trial was not enough to warrant an instruction on

attempted passion/provocation manslaughter, because none of the

witnesses testified believably that Funderburg acted in self-

defense when he stabbed Parham. The AG contends that having

insufficient evidence of self-defense is tantamount to having

15
insufficient evidence to support a charge of manslaughter, since

a manslaughter charge may be warranted when a defendant has an

“honest but unreasonable belief in the necessity to resort to

force in self-defense.” See Model Jury Charges (Criminal),

Justification - Self Defense in Self Protection 1 n.1 (revised

June 13, 2011). The AG notes that defense counsel conceded to

the judge that there was no basis upon which to charge the jury

on self-defense, since Funderburg did not testify.4

IV.

A.

The appropriate time to object to a jury charge is “before

the jury retires to consider its verdict.” R. 1:7-2. Here,

Funderburg did not object to the absence of the attempted

passion/provocation manslaughter charge at any point prior to

his appeal. When a defendant fails to object to an error or

omission at trial, we review for plain error. Under that

standard, we disregard any alleged error “unless it is of such a

nature as to have been clearly capable of producing an unjust

result.” R. 2:10-2; see also State v. Robinson, 165 N.J. 32, 47

(2000) (citations omitted). The mere possibility of an unjust

result is not enough. See State v. Jordan, 147 N.J. 409, 422

4 The record reflects that Funderburg unjustifiably absented
himself from the last day of trial, and his defense counsel was
therefore unable to call Funderburg as a witness in his own
defense, although he had planned for Funderburg to testify.

16
(1997). To warrant reversal by this Court, an error at trial

must be sufficient to raise “a reasonable doubt . . . as to

whether the error led the jury to a result it otherwise might

not have reached.” Jenkins, supra, 178 N.J. at 361 (citation

omitted).

B.

In Robinson, supra, we recognized for the first time that

attempted passion/provocation manslaughter is a cognizable

offense under the New Jersey Code of Criminal Justice codified

in Title 2C. 136 N.J. at 486. Under that provision, an

intentional homicide that would otherwise be murder may be

mitigated to manslaughter when it is “committed in the heat of

passion resulting from a reasonable provocation.” N.J.S.A.

2C:11-4(b)(2); see Mauricio, supra, 117 N.J. at 411. However,

in recognizing the crime, we predicted that it would likely

“remain unfamiliar, because there are few instances in which a

defendant charged with attempted homicide will want to raise

before a jury the argument that he or she actually intended to

kill.” Robinson, supra, 136 N.J. at 493.

In our jurisprudence, attempted passion/provocation

manslaughter is comprised of four elements: “[1] the

provocation must be adequate; [2] the defendant must not have

had time to cool off between the provocation and the slaying;

[3] the provocation must have actually impassioned the

17
defendant; and [4] the defendant must not have actually cooled

off before the slaying.” Mauricio, supra, 117 N.J. at 411

(citation omitted). The first two criteria are objective, and

the latter two are subjective. Ibid.

To satisfy the first element of attempted

passion/provocation manslaughter, a jury must conclude that a

reasonable person in the defendant’s position would have been

provoked sufficiently to “arouse the passions of an ordinary man

beyond the power of his control.” State v. King, 37 N.J. 285,

301-02 (1962). “The generally accepted rule is that words

alone, no matter how offensive or insulting, do not constitute

adequate provocation to reduce murder to manslaughter.” State

v. Crisantos, 102 N.J. 265, 274 (1986) (citations omitted).

C.

A trial court is vested with discretion in delivering the

jury instructions that are most applicable to the criminal

matter before it. See, e.g., State v. Ernst, 32 N.J. 567, 583-

84 (1960) (“[A] trial judge in his discretion may give [a jury]

charge in any situation in which he reasonably believes a jury

may find a basis for its application.” (citing Hargrave v.

Stockloss, 127 N.J.L. 262, 266 (E. & A. 1941))), cert. denied,

364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961).

However, some of the trial court’s decisions, such as the

charging of lesser-included offenses, are governed by statute.

18
N.J.S.A. 2C:1-8 provides that a trial court “shall not charge

the jury with respect to an included offense unless there is a

rational basis for a verdict convicting the defendant of the

included offense.” N.J.S.A. 2C:1-8(e). Thus, “to justify a

lesser included offense instruction, a rational basis must exist

in the evidence for a jury to acquit the defendant of the

greater offense as well as to convict the defendant of the

lesser, unindicted offense.” State v. Savage, 172 N.J. 374, 396

(2002) (citation omitted); see also Denofa, supra, 187 N.J. at

41-42 (citations omitted).

When the parties to a criminal proceeding do not request

that a lesser-included offense such as attempted

passion/provocation manslaughter be charged, the charge should

be delivered to the jury only when there is “obvious record

support for such [a] charge . . . .” Powell, supra, 84 N.J. at

319. A trial court should deliver the instruction sua sponte

“only where the facts in evidence ‘clearly indicate’ the

appropriateness of that charge.” Savage, supra, 172 N.J. at 397

(citing Choice, supra, 98 N.J. at 298) (further citations

omitted). A trial court need not “scour the statutes to

determine if there are some uncharged offenses of which the

defendant may be guilty.” State v. Brent, 137 N.J. 107, 118

(1994) (quoting State v. Sloane, 111 N.J. 293, 302 (1988))

(further citations omitted). Nor does the trial court have “the

19
obligation on its own meticulously to sift through the entire

record in every murder trial to see if some combination of facts

and inferences might rationally sustain” a lesser charge like

manslaughter. Choice, supra, 98 N.J. at 299. “Only if the

record clearly indicates a lesser-included charge -- that is, if

the evidence is jumping off the page -- must the court give the

required instruction.” Denofa, supra, 187 N.J. at 42 (citations

omitted).

For a trial court to be required to charge a jury sua

sponte on attempted passion/provocation manslaughter, the court

“must find first that the two objective elements of [the

offense] are clearly indicated by the evidence.” Robinson,

supra, 136 N.J. at 491. “If they are, the two subjective

elements should ‘almost always be left for the jury.’” Id. at

490 (citing Mauricio, supra, 117 N.J. at 413).

V.

Applying the law to the facts of this case, we conclude

that Funderburg was not entitled to a jury instruction on

attempted passion/provocation manslaughter. We find that the

facts before the trial court did not clearly indicate that the

objective elements of attempted passion/provocation manslaughter

were present. In particular, there was insufficient evidence

before the jury that a reasonable person in Funderburg’s

20
position would have been adequately provoked by Parham’s

behavior. See Mauricio, supra, 117 N.J. at 411. Parham’s chase

did not threaten Funderburg; it was simply an attempt to

retrieve the car keys. The chase was preceded by verbal

sparring, at which point Funderburg refused to return the keys.

Thus, this interaction alone did not suggest adequate

provocation. Beyond that, there was insufficient evidence to

suggest that Parham had wielded the knife. At best, there was a

disagreement among the witnesses about who first handled the

knife that later stabbed Parham. Andrews and Parham both

testified that Funderburg was the first person to reveal a

knife; Jamaal could not testify as to who revealed the knife.

Only Funderburg’s father Leroy testified that Parham revealed

the knife first.

Even if the jury found Leroy’s testimony to be the most

credible of all of the eyewitnesses, Leroy’s statement that

Parham initially held the knife would at most support the theory

that Funderburg acted in self-defense; it would likely not

support a theory that Funderburg was actually impassioned and

intended to kill Parham. Ultimately, there was insufficient

evidence in the trial record to indicate that a reasonable

person in Funderburg’s situation would have been adequately

provoked.

21
 Without sufficient evidence to suggest adequate

provocation, there is no need to consider whether a reasonable

person in Funderburg’s position would have had time to cool off

between the provocation and the slaying. See ibid. Since the

first objective prong of attempted passion/provocation

manslaughter cannot be satisfied by the testimony presented at

Funderburg’s trial, an instruction for the lesser-included

offense would have been unwarranted.

Our holding today reaffirms our earlier-stated principle

that a trial court does not have “the obligation on its own

meticulously to sift through the entire record in every murder

trial to see if some combination of facts and inferences might

rationally sustain a manslaughter charge.” Choice, supra, 98

N.J. at 299. We decline to impose such a burdensome requirement

on trial courts or suggest that every potential lesser-included

offense must be charged to the jury. It is only when the facts

“clearly indicate” the appropriateness of an attempted

passion/provocation manslaughter charge that the duty of the

trial court arises. See Robinson, supra, 136 N.J. at 489

(citations omitted). “[U]nder our Code [of Criminal Justice,]

it is improper for a trial court to charge manslaughter . . . if

there is no evidence in the record to support a manslaughter

conviction.” Crisantos, supra, 102 N.J. at 276 (citation

omitted).

22
 In reaching this conclusion, we emphasize that whether

Funderburg instigated the fight that led to Parham’s stabbing is

not relevant to the question before us. “The issue here is

whether a reasonable person would have been provoked, not

whether a reasonable person would have engaged in conduct that

incited the alleged provocation.” Mauricio, supra, 117 N.J. at

415. Since we conclude that a reasonable person in Funderburg’s

position would not have been adequately provoked, the question

of “who started it” does not affect our analysis.

Finally, we acknowledge that “correct jury charges are

especially critical in guiding deliberations in criminal

matters, [and] improper instructions on material issues are

presumed to constitute reversible error.” Jenkins, supra, 178

N.J. at 361 (citing Jordan, supra, 147 N.J. at 421-22). Our

holding today is consistent with that pronouncement. It is not

improper for a trial court to withhold instruction on attempted

passion/provocation manslaughter when there is no evidence that

would clearly indicate the appropriateness of that charge.

VI.

The judgment of the Appellate Division is reversed, and the

matter is remanded to reinstate Funderburg’s conviction.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, and SOLOMON join in JUSTICE FERNANDEZ-VINA’s opinion.
JUDGE CUFF (temporarily assigned) did not participate.

23
 SUPREME COURT OF NEW JERSEY

NO. A-29 SEPTEMBER TERM 2014

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

LEE FUNDERBURG (a/k/a LEE E.
FUNDERBURG),

Defendant-Respondent.

DECIDED May 5, 2016
Chief Justice Rabner PRESIDING
OPINION BY Justice Fernandez-Vina
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) ------------------
TOTALS 6