A-13-16 State v. Fernando Carrero, Jr. (078071) (Bergen County and Statewide)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5304-12T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FERNANDO CARRERO, JR.,
a/k/a FIPO,

Defendant-Appellant.
_____________________________________________

Argued December 15, 2015 – Decided June 10, 2016

Before Judges Yannotti, St. John and
Guadagno (Judge Guadagno dissenting).

On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
08-10-1706.

Marcia Blum, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Ms. Blum, of counsel and on the
brief).

Catherine A. Foddai, Senior Assistant
Prosecutor, argued the cause for respondent
(John L. Molinelli, Bergen County
Prosecutor, attorney; Ms. Foddai, of counsel
and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM
 Defendant Fernando Carrero appeals from his conviction

after a jury trial for, among other counts, first-degree murder.

Defendant challenges his conviction on numerous grounds,

including: (1) the denial of his request for a passion/

provocation jury charge; (2) the admission of other-bad-acts

evidence under N.J.R.E. 404(b); (3) the admission of double-

hearsay testimony regarding an alleged conversation between the

victim and defendant more than a week before the shooting; (4)

the admission of defendant's physical and spoken responses to

police inquiries regarding whether any weapons were present at

the site of his arrest; and (5) the life sentence with a sixty-

three-year parole disqualifier.

I.

The record discloses the following facts and procedural

history. On December 6, 2007, upon motion by the State, the

Chancery Division agreed that defendant, a juvenile, would be

tried as an adult, and waived jurisdiction in favor of the Law

Division. Subsequently, in late 2008, defendant was charged

with the first-degree murder of Jose Hall, N.J.S.A. 2C:11-

3(a)(1), (2); second-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree possession

of a handgun without the requisite permit, N.J.S.A. 2C:39-5(b);

and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1).

Between 2009 and 2012, pretrial hearings were conducted,

2 A-5304-12T3
resulting in the admission of (1) the revolver used to murder

Hall, (2) N.J.R.E. 404(b) evidence regarding defendant's abusive

and controlling behavior toward his girlfriend, (3) defendant's

statements to police, (4) defendant's letters written to his

sister while in custody, and (5) a statement by Hall. A jury

trial ensued during January and February 2013, and defendant

testified to his version of the events.

The trial record discloses the following testimony. K.

Lowenstein dated C. Hicks for several years, and thereafter

dated defendant. Hicks had a close friend named Jose Hall and,

through Hicks, Lowenstein met Hall, with whom she became good

friends. In 2003, after Lowenstein and Hicks broke up, Hicks

moved into the basement of the three-story house that Lowenstein

shared with her parents. Though Lowenstein was originally in

favor of Hicks moving in, hoping that their romantic

relationship would resume, that relationship did not ensue and

they frequently came into conflict. Her relationship with Hall,

however, did not change. He was a frequent visitor to the

Lowenstein home, and was often included in family celebrations.

Lowenstein met defendant in 2005, and began dating him in

May 2006. At first, the two were happy together, however

defendant became more and more controlling. He forbade her from

using her phone unless on speaker, seeing her friends, looking

at other males, or doing anything that he did not say she could

3 A-5304-12T3
do. Five or six months into their relationship, defendant

struck Lowenstein.

In mid-July 2007, after a date, Lowenstein dropped

defendant off at his parents' home in Newark. The next day,

while driving in Newark with Lowenstein, defendant told her that

he thought he "saw a car full of guys wearing red bandanas

waiting outside his house to kill him." Defendant believed that

both Hicks and Hall were in the car and that Lowenstein had set

him up. Lowenstein informed defendant that Hall and Hicks were

in Delaware working at a carnival, noting that the car the two

had used the night before belonged to Hall. Defendant

subsequently drove to a side street, parked, and told Lowenstein

that he was going to ask her if she "set him up."

Because, as Lowenstein testified, "he knew the answer was

yes," defendant told her that every time Lowenstein "lied," he

would punch her. Defendant punched her "about 11 or 12 times"

on the left side of her temple until a bloodied Lowenstein

finally answered, "yes it was them."

In late October 2007, defendant and Lowenstein drove to her

house to pick up a movie. Hall was at the house that day.

While Lowenstein went inside, Hall went outside to attempt to

initiate conversation with defendant. Accounts differ as to the

conversation. Lowenstein (who did not witness the conversation)

testified that defendant remained in the car because her mother

4 A-5304-12T3
"didn't want him and [Hicks] getting into any arguments." Hall

told her that he offered defendant a sort of "peace treaty,"

telling him that as both he and Hicks had girlfriends, and since

defendant and Lowenstein loved one another, defendant had

"nothing to worry about." Hall told Lowenstein that the two

shook hands and agreed that "everything was going to be okay."

Defendant offered a different account. He agreed that Hall

approached him while he was sitting in the car, but denied the

two had a rapprochement. Instead, he claimed Hall simply told

him to "step out of the car, I want to talk." Defendant replied

that he did not trust Hall, and rolled up the window. Hall

persisted until, moments later, Lowenstein came out of the house

to the car. Hall then smiled at defendant, turned around, and

left.

Lowenstein recalled that during her relationship with

defendant, she usually stayed at his parents' home overnight.

During the week leading up to the shooting, however, defendant

had been staying with Lowenstein at her parents' home.

Lowenstein nevertheless had hoped that the situation would soon

resolve itself, as Hicks, who planned on joining the Army, would

soon be leaving for basic training. Then Hall would not come as

frequently to her home.

On the night of the incident, November 6, 2007, Lowenstein

returned home at about 4:30 p.m. Defendant was already there.

5 A-5304-12T3
Between 6:00 and 6:30 p.m., defendant drove Lowenstein to her

job in the Willowbrook Mall. Around 11:00 p.m., defendant

picked Lowenstein up from the mall; at 11:15, they dropped off

her co-worker and drove to Lyndhurst. During the trip,

Lowenstein's mother called to say that, because Hicks and Hall

were at the house, she did not want defendant to stay over.

Defendant called his sister to ask if he could spend the night

with her. When he could not reach his sister, Lowenstein told

him to continue to her house and try again later. They arrived

at the Lowenstein home shortly before midnight, and sat down

together in the living room.

Hall, Hicks, and Hicks' girlfriend were in the basement

watching a movie. A few minutes after defendant and Lowenstein

entered the house, Hicks walked upstairs to get a drink from the

kitchen refrigerator. According to Lowenstein, Hicks pointedly

stared at her and defendant before entering the kitchen. When

he returned to the basement, he informed Hall that defendant and

Lowenstein were upstairs. Hall did not react, and the three

continued watching the movie.

At some point, defendant and Lowenstein moved to the

kitchen to prepare food. Lowenstein testified that they were

"kissing and hugging," and she had her hands around his waist.

Several minutes later, Hall walked upstairs to the kitchen to

look for food in the refrigerator. Hall asked Lowenstein why

6 A-5304-12T3
she had not told him that she started working at Victoria's

Secret. Hall's girlfriend was employed at Victoria's Secret,

and had previously informed Lowenstein of a job opening at the

store. Lowenstein responded sarcastically, in an attempt to cut

their conversation short. She testified, "[she] knew that if

[she] got in a conversation with him, [defendant] would get

upset." She also testified that "[Hall] is a ball buster. . . .

I think he came upstairs to . . . test the waters and see how

[defendant] felt . . . ."

In an effort to separate Hall and defendant, Lowenstein

asked defendant to go upstairs with her. Meanwhile, Hall

persisted in his questioning. Defendant ordered Hall to stop

speaking to Lowenstein. Hall said he was just asking her a

question, but defendant stood up from the table and insisted

that Hall was not allowed to speak with her.

Lowenstein, afraid of a fight between them, left the

kitchen to find her parents. As she walked toward the stairs,

she heard Hall yell, "whoa, whoa, whoa," and then the sound of a

gunshot. She ran back to the kitchen to find Hall on his back

on the floor, with defendant pointing a gun at him. Lowenstein

attempted to convince defendant to leave and tried to pull

defendant's arm away, but defendant fought off her grip. He

then shot Hall in the head. Lowenstein ran to get her parents.

Defendant gave a different account at trial. He admitted

7 A-5304-12T3
that he had hit Lowenstein in the past, but said he had not done

so since they broke up and got back together during the summer

of 2007. Defendant testified that when Lowenstein initially

left the kitchen to find her parents on the night of the

incident, Hall said, "this is the last time you're going to come

in this house. And stop talking to [Lowenstein]," then pulled a

gun from his waistband. Defendant said he grabbed Hall's hand

and pointed the gun toward Hall, and the gun fired during the

struggle. According to defendant, Hall fell to his knees, but

continued to struggle. He testified that Lowenstein then

reentered the room, screaming, and jumped on his back. During

the subsequent three-way struggle, the gun again fired, causing

the wound to Hall's head. On cross-examination, defendant said

he was afraid of Hicks and Hall for starting trouble whenever

they were around.

During the incident, Hicks was in the basement and heard

yelling and "thumping" noises, then Lowenstein's scream. Hicks

went to the kitchen and found Hall on the floor bleeding, and

saw defendant run out the back door, gun in hand.

Police responded and found Hall still alive. EMTs arrived

but were unable to stop the bleeding. Hall was transported to

the hospital, where doctors determined the initial gun-shot

wound to his bladder was non-fatal if treated, but the gun-shot

wound to his head was fatal, and therefore surgery was not a

8 A-5304-12T3
realistic option. Hall died several days later and an autopsy

was performed.

The Newark Police Fugitive Apprehension Team found

defendant at a house in Orange. An officer asked him if there

were weapons in the house. Defendant motioned with his head

toward a black duffel bag to the right of the couch he was

sitting on, and the officers discovered a revolver inside the

bag but left it there after securing defendant and the area.

The officers received written consent to search the area from

the person renting the apartment, and secured the revolver and

four rounds of ammunition. When asked by the officers "if

anything else in the bag was his," defendant responded, "nothing

but the gun," and a cell phone on the couch. Ballistics

confirmed the revolver was the weapon used to kill Hall.

Defendant had no permit for the gun.

The jury convicted defendant of all counts. After

appropriate mergers, the sentencing judge sentenced defendant to

life imprisonment, subject to an eighty-five-percent parole

disqualifier on the first-degree murder charge. Lesser

concurrent sentences were imposed on the other counts. This

appeal ensued.

On appeal, defendant presents the following issues for our

consideration:

9 A-5304-12T3
POINT I

BECAUSE THE COURT REFUSED TO ALLOW FOR
INCONSISTENT THEORIES AND TO CONSIDER
EVIDENCE OTHER THAN THAT ADDUCED IN THE
DEFENSE CASE, IT IMPROPERLY DENIED AN
INSTRUCTION ON PASSION/PROVOCATION
MANSLAUGHTER.

POINT II

THE COURT ERRED IN ADMITTING EVIDENCE, ON
THE GROUND THAT IT WAS AN EXCEPTION TO
N.J.R.E. 404(b), THAT CARRERO FREQUENTLY
BEAT UP HIS GIRLFRIEND, WHICH HAD NO BEARING
ON ANY MATTER AT ISSUE AND SERVED NO PURPOSE
OTHER THAN TO INVITE THE JURY TO INFER THAT
HE HAS AN AGGRESSIVE DISPOSITION SO AS TO
UNDERMINE HIS CLAIM THAT HE ACTED IN SELF-
DEFENSE.

POINT III

THE DOUBLE-HEARSAY TESTIMONY ABOUT WHAT THE
VICTIM TOLD A WITNESS ABOUT HIS CONVERSATION
WITH CARRERO CONSTITUTED UNRELIABLE DOUBLE
HEARSAY AND DID NOT MEET ANY EXCEPTION TO
THE RULE EXCLUDING HEARSAY.

POINT IV

CARRERO'S STATEMENT ABOUT OWNERSHIP OF THE
GUN, AND THE GUN ITSELF, SHOULD HAVE BEEN
EXCLUDED BECAUSE THEY WERE OBTAINED IN
VIOLATION OF HIS RIGHT TO REMAIN SILENT.

POINT V

SENTENCING A JUVENILE UNDER THE AGE OF 18 TO
A LIFE TERM, WITH A MINIMUM PAROLE
DISQUALIFIER OF 63 YEARS AND NINE MONTHS,
CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT,
PARTICULARLY BECAUSE IT WAS IMPOSED WITHOUT
ANY CONSIDERATION OF HIS YOUTH. (Not Raised
Below).

10 A-5304-12T3
 Additionally, defendant has filed a pro se brief, in which

he argues:

POINT I

DEFENDANT WAS DEPRIVED OF A FAIR TRIAL DUE
TO PROSECUTOR'S INAPPROPRIATE AND LEGALLY
INCORRECT STATEMENT MADE DURING CLOSING
ARGUMENTS WHICH ATTRIBUTED TO PROSECUTORS
MISCONDUCT, AS SUCH MISTRIAL SHOULD HAVE
BEEN GRANTED. (Partially Raised Below).

POINT II

THE TRIAL COURT DENIED DEFENDANT HIS
CONSTITUTION [SIC] RIGHT TO CONFRONT THE
WITNESS AGAINST HIM IN VIOLATION OF THE VI
AMENDMENT RIGHT OF THE UNITED STATES
CONSTITUTION AND IMPEDED DEFENDANT FROM
REVEALING AN AFFIRMATIVE DEFENSE FOR PASSION
PROVOCATION.

POINT III

DEFENDANT'S CONVICTION IS ILLEGAL DUE TO THE
WAIVER HEARING AT FAMILY COURT NOT PERFORMED
IN ACCORDANCE WITH LAW AND DEFENSE
ATTORNEY'S INEFFECIVE ASSISTANCE IN
REPRESENTING THE YOUTHFUL DEFENDANT AT SAID
HEARING WHICH MUST BE CORRECTED. (Not
Raised Below).

POINT IV

DEFENDANT INCORPORATES BY REFERENCE ALL
ISSUES RAISED ON DIRECT APPEAL BY BOTH
DEFENDANT AND COUNSEL AND ASSERTS THAT THE
CUMULATIVE ERRORS DENIED DEFENDANT A FAIR
TRIAL.

II.

As noted, defendant argues that the judge erred by refusing

to instruct the jury on passion/provocation manslaughter,

N.J.S.A. 2C:11-4(b)(2).

11 A-5304-12T3
 "Appropriate and proper charges to a jury are essential for

a fair trial." State v. Daniels, 224 N.J. 168, 180 (2016).

Where, as here, defense counsel requests a lesser-included

offense instruction, the standard of review regarding the denial

of that request requires a plenary consideration of whether "the

evidence presents a rational basis on which the jury could

acquit the defendant of the greater charge and convict the

defendant of the lesser." State v. Brent, 137 N.J. 107, 117

(1994). The question is not whether the jury is likely to

accept the defendant's theory, but whether it would have a

rational basis on which to do so. State v. Mejia, 141 N.J. 475,

489 (1995). The failure to instruct the jury on a lesser-

included offense that a defendant has requested, and for which

the evidence provides a rational basis, warrants reversal of a

defendant's conviction. Brent, supra, 137 N.J. at 118.

Our Supreme Court has held, "[a] defendant is entitled to

an instruction on a lesser offense supported by the evidence

regardless of whether that charge is consistent with the theory

of the defendant's defense." Ibid. (citations omitted). So

long as the evidence supporting a lesser-included offense

"leaves room for dispute," the charge is appropriate. State v.

Crisantos, 102 N.J. 265, 278 (1986) (quoting State v. Sinclair,

49 N.J. 525, 542 (1967)). Conversely, if there is not a

rational basis to support the charge, it should not be given

12 A-5304-12T3
because it "invites a jury verdict based on sheer speculation or

compromise." State v. Bishop, 225 N.J. Super. 596, 602 (App.

Div. 1988).

In State v. Castagna, we noted, "[t]his 'rational basis'

test has been construed as a low threshold, especially for the

passion/provocation manslaughter charge. Indeed, if the

evidence in the record supports an instruction on

passion/provocation manslaughter, the charge should be given

whether or not it is consistent with the defense's theory."

376 N.J. Super. 323, 356 (App. Div. 2005), rev'd on other

grounds, 187 N.J. 293 (2006) (citations omitted). Moreover, the

trial judge, when deciding whether to instruct a jury on

passion/provocation manslaughter, should view the situation in a

light most favorable to the defendant. State v. Mauricio, 117

N.J. 402, 412 (1990). Thus, a passion/provocation charge is

required where "a version, or combination of versions, of the

evidence, considered in the light most favorable to defendant,"

provides a rational basis upon which a juror might conclude that

the elements of passion/provocation are met. State v. Taylor,

350 N.J. Super. 20, 40-41 (App. Div. 2002).

Furthermore, when a defendant requests a lesser-included

offense charge, strict adherence to the definition of "included"

under N.J.S.A. 2C:1-8(d) "is less important . . . than whether

the evidence presents a rational basis on which the jury could

13 A-5304-12T3
acquit the defendant of the greater charge and convict the

defendant of the lesser." Brent, supra, 137 N.J. at 117. Thus,

"[w]hen a lesser-included offense charge is requested by a

defendant, . . . the trial court is obligated, in view of

defendant's interest, to examine the record thoroughly to

determine if the rational-basis standard has been satisfied."

Crisantos, supra, 102 N.J. at 278 (citing State v. Powell, 84

N.J. 305, 318-19 (1980)).

Passion/provocation manslaughter is defined as a "homicide

which would otherwise be murder . . . [but] is committed in the

heat of passion resulting from a reasonable provocation."

N.J.S.A. 2C:11-4(b)(2). It has four essential elements: "the

provocation must be adequate; the defendant must not have had

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

provocation must have actually impassioned the defendant; and

the defendant must not have actually cooled off before the

slaying." Mauricio, supra, 117 N.J. at 411. "The first two

elements constitute the objective standard[.]" State v.

Robinson, 136 N.J. 476, 490 (1994). "The third and fourth

elements are more subjective because they relate to the

defendant's actual response." Ibid. "[A] trial court in

charging a jury . . . must find first that the two objective

elements of passion/provocation manslaughter are clearly

indicated by the evidence." Id. at 491. "If they are, the two

14 A-5304-12T3
subjective elements 'should almost always be left for the

jury.'" Ibid. (quoting Mauricio, supra, 117 N.J. at 413).

"[T]he judge must determine whether a reasonable fact-

finder could conclude that the [defendant's] loss of self-

control was a reasonable reaction" to the victim's provocation.

State v. Viera, 346 N.J. Super. 198, 212 (App. Div. 2001),

certif. denied, 174 N.J. 38 (2002). The charge should only be

withheld when "no jury could rationally conclude that the State

had not proven beyond a reasonable doubt that the asserted

provocation was insufficient to inflame the passions of a

reasonable person." Mauricio, supra, 117 N.J. at 412.

In this case, defense counsel requested a passion/

provocation manslaughter charge despite the inconsistency of

that charge with his assertion that defendant acted in self-

defense, and that the shooting was accidental. Defense counsel

argued that defendant's own testimony, as well as the testimony

of other witnesses, supported the charge. In requesting the

charge, defense counsel reviewed with the court each of the four

prongs of the passion/provocation model charge and supported his

argument for inclusion with the testimony of the defendant and

other witnesses.

In particular, defendant contended the charge was warranted

based on the adversarial history between himself and Hall, his

own testimony that, just prior to the shooting, Hall said to him

15 A-5304-12T3
"this is the last time you're going to come in this house. And

stop talking to [Lowenstein,]" and his testimony that Hall

initially drew the gun.

Furthermore, defendant was charged with knowingly or

purposely causing the death of Hall, which was factually

supported by Lowenstein's testimony. Although defendant

testified to the contrary, the jury believed the State's

witnesses and convicted defendant of that charge. As the Court

recently stated, "by asserting the justification of self-

defense, defendant placed the events immediately before the

shooting squarely before the jury." State v. Bass, N.J.

___, ___ (2016) (slip op. at 39). Here, the trial court agreed

to charge self-defense, aggravated, and reckless manslaughter.

The prosecutor argued that the record did not support

adequate provocation, stating the law "contemplates an

acknowledgement by the defendant that there was purposeful

conduct on his part[,]" and "[b]ecause this defendant clearly

testified he never had his finger on the trigger[,]" the

passion/provocation charge was not warranted. The prosecutor

also contended that, "if we give passion/provocation on these

facts, it would be hugely misleading to the jury."

The trial court reviewed the facts to determine if there

was a rational basis for a passion/provocation manslaughter

instruction. The court concluded, "[i]t's one thing to have

16 A-5304-12T3
self-defense. It's another to have an accidental shooting.

It's another thing to say that someone else is responsible";

they're "inconsistent." The court noted the inconsistencies in

the testimony could lead to jury confusion if the passion/

provocation charge was given, and denied the requested charge.

We disagree with the trial court's conclusion that the

evidence did not provide a rational basis to support the

elements necessary for a passion/provocation charge. We

recognize "[a]dequate provocation is not satisfied by 'words

alone, no matter how offensive or insulting.'" State v. Docaj,

407 N.J. Super. 352, 368 (App. Div.), certif. denied, 200 N.J.

370 (2009) (quoting Crisantos, supra, 102 N.J. at 274).

However, a threat with a gun or a knife may constitute adequate

provocation. Powell, supra, 84 N.J. at 320. Furthermore, a

battery, except for a light blow, has traditionally been

considered "almost as a matter of law," to constitute adequate

provocation. Mauricio, supra, 117 N.J. at 414. In Mauricio,

the Court concluded that, where defendant had an altercation

with a bouncer, was later forcibly evicted from a tavern, and

then shot and killed a person he erroneously believed to be the

bouncer some fifteen minutes later, a jury could reasonably find

passion/provocation manslaughter. Id. at 415.

17 A-5304-12T3
 In Crisantos, supra, 102 N.J. at 274, the Court noted the

common law rule that "mutual combat" can, in certain

circumstances, give rise to passion/provocation mitigation.

However, that combat "must have been waged on equal terms and no

unfair advantage taken of the deceased," unlike a setting in

which the defendant uses a deadly weapon against an unarmed

victim. Ibid. (internal quotation marks omitted).

We recognize that, "if a person, under color of fighting on

equal terms, kills the other with a deadly weapon which he used

from the beginning or concealed on his person from the

beginning, the homicide constitutes murder." Id. at 274-275

(citations omitted). However, in this case, the only testimony

concerning the origin of the weapon used to kill the victim was

defendant's version, and he stated that the victim brought a

concealed and loaded handgun to the incident at the home that

night.

For provocation to be adequate, it "must be 'sufficient to

arouse the passions of an ordinary [person] beyond the power of

his [or her] control.'" Robinson, supra, 136 N.J. at 491

(quoting Mauricio, supra, 117 N.J. at 412). On this score, it

has been held "that a threat with a gun or knife might

constitute adequate provocation." Mauricio, supra, 117 N.J. at

414. See State v. Pasterick, 285 N.J. Super. 607, 614 (App.

Div. 1995); see also Powell, supra, 84 N.J. at 321-22

18 A-5304-12T3
(defendant's statement that the victim attempted to wrestle the

defendant's gun away from him during an argument sufficiently

established adequate provocation, even though the defendant had

previously given a different story to the authorities); State v.

Bonano, 59 N.J. 515, 523-24 (1971) (holding that a verbal threat

alone insufficient to reduce the degree of the crime, however, a

menacing gesture with the weapon could properly be considered

adequate provocation); State v. Blanks, 313 N.J. Super. 55, 72

(App. Div. 1998) (holding history of belligerence and discovery

of a long-handled cooking fork on the floor at the victim's

side, sufficient to suggest that the victim may have brandished

the fork and further provoke defendant); State v. Vigilante, 257

N.J. Super. 296, 301-02, 305-06 (App. Div. 1992) (holding prior

history of abuse, threats to kill, and the fact that the victim

"bent down to pick up a pipe wrench" all indicated presence of

reasonable provocation); State v. Pridgen, 245 N.J. Super. 239,

242-43, 247-48 (App. Div.), certif. denied, 126 N.J. 327 (1991).

Applying these principles to the case at hand, we are

satisfied that "a version, or combination of versions, of the

evidence adduced at trial, considered in the light most

favorable to defendant," provides a rational basis upon which a

reasonable jury might make a finding of passion/provocation.

See Taylor, supra, 350 N.J. Super. at 40. Both defendant and

Lowenstein testified to the history of conflict between

19 A-5304-12T3
defendant and the victim and Hicks. By all accounts, a verbal

dispute took place, followed by a physical struggle between the

defendant and the victim involving a handgun. The only direct

testimony regarding the origin of the handgun came from

defendant, who maintained that Hall brought it upstairs with

him.

Our dissenting colleague interprets our opinion as relying

in large part on the acrimonious history between defendant and

victim, and the verbal dispute preceding the shooting. We

acknowledge that mere animosity or verbal sparring alone cannot

support a finding of passion/provocation. We view those facts

as secondary to the central issue supporting a passion/

provocation charge here: defendant's uncontroverted testimony

that Hall withdrew the weapon from his waistband and pointed it

at him, thereby threatening him.

We are cognizant of the Court's recent opinion in State v.

Funderburg, reaffirming the principle that in considering a sua

sponte instruction, appellate courts may not "sift[] through the

cold appellate record and construct[] a hypothetical and

factually unsupported scenario" in which a jury charge might

conceivably be appropriate. State v. Funderburg, ___ N.J. ___,

___ (slip op. at 10) (2016). However, this case differs from

Funderburg in two important respects. First, in Funderburg, the

defendant argued the trial judge erred by not sua sponte

20 A-5304-12T3
delivering the jury charge in question. Ibid. Here, the judge

denied defense counsel's explicit and well-reasoned request for

the charge. Second, unlike in Funderburg, there is factual

support in the record for a passion/provocation charge based on

"a version, or combination of versions," of the evidence adduced

at trial, considered in the light most favorable to defendant.

See Taylor, supra, 350 N.J. Super. at 40.

The facts supporting passion/provocation in this case are

neither "hypothetical" nor "unsupported." It is undisputed

that, when Hall entered the kitchen, Lowenstein was "[k]issing

and hugging" defendant, with her hands "[a]round his waist." A

verbal dispute ensued between defendant and Hall. At some

point, a gun was produced, escalating the confrontation.

According to defendant's uncontroverted testimony, it was Hall

who produced the gun.

The trial judge's task is merely to determine whether the

provocation was adequate as a matter of law, and whether, as a

matter of law, there was time for the defendant to "cool off."

Viera, supra, 346 N.J. Super. at 212. If the court determines

that the provocation was adequate, and the intervening time was

not too long, then it should provide a passion/provocation jury

instruction upon request. Ibid.

The combination of testimony in this case compels the

conclusion that the alleged provocation was adequate, and that

21 A-5304-12T3
the intervening time was short enough that defendant could still

have been acting under the influence of that provocation when,

moments later, he shot Hall as he lay wounded on the kitchen

floor. It is then for the jury to decide whether defendant was

in fact provoked, and whether his passion in fact cooled before

he committed the underlying offense.

In sum, we conclude that the evidence adduced at trial

provided a rational basis upon which a reasonable jury might

make a finding of passion/provocation, and the trial judge was

therefore required to give the requested instruction to the

jury. Given our determination that it was error to deny

defendant's request to instruct the jury on the lesser-included

offense of passion/provocation manslaughter, we need not address

the remaining arguments raised.

Reversed and remanded for a new trial consistent with this

opinion.

22 A-5304-12T3
_________________________________________
GUADAGNO, J.A.D. dissenting

Little more than a "scintilla of evidence" supporting a

charge of passion/provocation manslaughter is required before a

jury will be given the option of reducing a murder charge to

that lesser-included offense. State v. Crisantos, 102 N.J. 265,

278 (1986). Not even a scintilla of evidence supported

defendant's claim that he was entitled to such a charge.

Because I believe there was no rational basis to support a

passion/provocation charge, I respectfully dissent from the

majority decision, which reverses defendant's conviction.

The State and defendant presented two totally antithetical

versions of how Jose Hall died on November 7, 2007. The State

relied on the testimony of K. Lowenstein, who was sitting at her

parents' kitchen table with defendant when Hall entered the room

and began a conversation with her. Defendant ordered Lowenstein

not to talk with Hall, which prompted an argument between

defendant and Hall. Fearing the argument would escalate,

Lowenstein left the kitchen to get her parents, who were

upstairs. As she walked through the living room, but before she

reached the stairs, Lowenstein heard Hall yell "whoa" three

times, followed by a gunshot. She turned immediately and ran

back to the kitchen to find Hall on the floor curled up in a

ball with his legs and arms up in a defensive position, and
defendant standing over him pointing a gun at his head.

Ignoring Lowenstein's pleas to let go of the gun and leave the

house, defendant aimed the gun at Hall, who was writhing on the

floor, and fired a second shot into his head. No reasonable

interpretation of the State's version of Hall's killing will

support a passion/provocation charge.

Defendant's version is equally bereft of either passion or

provocation and asserts unequivocally that he acted solely in

self-defense. Defendant claimed that he was kissing Lowenstein

in the kitchen when Hall entered the room, went to the

refrigerator for food, and began speaking with Lowenstein.

Defendant then got up from the table and walked over to Hall.

Significantly, neither defendant nor Lowenstein testified that

Hall directed any of his remarks to defendant before defendant

got up from the table and walked over to Hall. As the majority

relies on defendant's version to conclude that he was provoked

by passion, I repeat his testimony:

Q: All right. Now, when you got up, where
did you go?

[Defendant]: I got up and I walked over
there to [Hall]. And he walked — he just
turned around a little bit, about to like
step towards me. So, we was face to face
talking to each other.

Q: And how were you talking with each
other?

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[Defendant]: I was talking low. He — he
had a little attitude.

Q: Okay. And when he had that little
attitude, how did you feel about it.

[Defendant]: We never had a conversation,
so I felt it — it - there wasn't no need for
that. I was just letting him know, you
could tell she didn't want to talk to him.
So, I was just letting him know, don't talk
to her.

Q: All right. Where did you see [Lowenstein]
go?

[Defendant]: When I — when, I got up and I
was walking [I] seen her, because she was
cleaning a little place right there. And
when she — I just seen her from the corner
of my eye, she was like, "Well, I'm going to
go get my parents." And she just walked and
walked out the kitchen.

Q: Okay. And did she leave the room?

[Defendant]: Yeah, I seen her leave the
room.

Q: Okay. What, if anything, happened when
she left that room?

[Defendant]: She left the room. José
looked at me and told me, "[this] is the
last time you're going to come in this
house. And stop talking to [Lowenstein]."
And he pulled out a gun on me.

Q: Where did he pull the gun from?

[Defendant]: From his waistband.

Q: And what did you do?

[Defendant]: I immediately went for it and
grabbed his hand.

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 . . . .

Q: When you say, "He pulled it out." What
did you see him do?

[Defendant]: He just — he reached under
his shirt and pulled out a gun. I seen the
gun coming out. And I just went for his
hand.

Q: When you saw that gun come out, what
did you do?

[Defendant]: I grabbed his hand.

Q: And what else.

[Defendant]: I tried to — tried to make
sure he doing point it at me. I was
pointing it at him, he was trying to point
it at me.

Q: What happened?

[Defendant]: The gun went off. We were
struggling — we were struggling and the gun
went off.

Defendant testified that Lowenstein re-entered the room

after the first shot and joined the struggle, during which time

the second shot went off. Defendant's assertion is pure self-

defense. Nothing in defendant's version suggests that he was

provoked or motivated by passion or emotion. Indeed, there was

no time for provocation, as defendant claimed he grabbed Hall's

arm immediately after Hall drew the gun.

Passion/provocation manslaughter in this case is not only

inconsistent with defendant's testimony, it is also inconsistent

with the State's version of the homicide, and is unmoored to any

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record evidence. As in Crisantos, supra, a jury verdict of

passion/provocation manslaughter would have required the jury to

reject both defendant's and the State's versions. 102 N.J. at

280. Neither version of the shooting supports a theory that

defendant acted "in a transport of passion . . . induced by an

adequate provocation." Id. at 281 (alteration in original)

(quoting State v. Guido, 40 N.J. 191, 209-10 (1963)).

Four elements must be shown to justify a passion/

provocation charge. State v. Mauricio, 117 N.J. 402, 411

(1990). First, and most importantly, there must be adequate

provocation. Ibid. The majority relies on Mauricio for the

proposition that a threat with a gun or knife might constitute

adequate provocation. In Mauricio, the defendant was thrown out

of a bar by a bouncer on two occasions before he shot an

innocent third party, perhaps mistaking the victim for the

bouncer who had forcibly ejected him earlier that night. Id. at

408-09. The Court held that the provocation produced by the two

physical confrontations with the bouncer may have been

sufficient to cause the passions of a reasonable person to

become so aroused as to result in loss of self-control. Id. at

414.

Nowhere in this record is there anything approaching the

"humiliation at being ejected," which served as the provocation

in Mauricio. Id. at 415. Accepting defendant's version, the

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only possible provocation preceding the shooting came after Hall

entered the room and began to speak with Lowenstein. It is

fundamental that words alone do not constitute adequate

provocation. Crisantos, supra, 102 N.J. at 274. Even if Hall's

alleged "last time" statement to defendant can be seen as

"insulting or reproachful," it occurred simultaneously as Hall

was drawing the gun and does not constitute provocation. See

State v. King, 37 N.J. 285, 301 (1962) (suggesting there must be

a "time lapse between the utterance of [the alleged insulting

remarks] and the commission of the homicide").

The second factor requires that the defendant must not have

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

This would negate the effect of the "adversarial history"

between Hall and defendant, upon which the majority places great

reliance.

The third element is that the provocation must have

actually impassioned the defendant. Even accepting defendant's

version, he grabbed Hall instinctively attempting to defend

himself. He was not motivated by passion. This is precisely

the situation where a self-defense instruction is warranted. To

require a passion/provocation instruction here would be to blur

the line between provocation and fear, render the self-defense

instruction superfluous, and confuse the jury. Even under

defendant's version, there is no basis for a jury to rationally

6 A-5304-12T3
conclude that he had been provoked to the point of loss of

control.

While this appeal was pending, the Court decided State v.

Funderburg, ___ N.J. ___ (2016). Although the majority attempts

to distinguish Funderburg, the facts are similar. A romantic

triangle involving a woman, Andrews; her current boyfriend,

Parham; and her former boyfriend, Funderburg, sparked a

confrontation which ended with Funderburg stabbing Parham. Id.

at ___ (slip op. at 2). The stabbing was preceded by a "tense

relationship" between the two men who had "previously exchanged

angry words." Ibid. After Funderburg took Andrews' car keys,

he argued with her until Parham intervened. Parham then chased

Funderburg, who drew a knife and stabbed Parham. Ibid.

A jury found Funderburg guilty, but we reversed because the

trial judge failed to instruct the jury on the lesser-included

offense of attempted passion/provocation manslaughter. Id. at

___ (slip op. at 3). On appeal, Funderburg claimed he was

entitled to a passion/provocation charge, which he did not

request at trial. Id. at ___ (slip op. at 3). The Court

reversed and reinstated Funderburg's conviction, finding "there

was insufficient evidence in the trial record to indicate that a

reasonable person in Funderburg's situation would have been

adequately provoked." Id. at ___ (slip op. at 21).

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 The majority attempts to distinguish Funderburg by noting

that defendant, here, requested the passion/provocation charge,

while Funderburg argued the trial judge erred by not delivering

it sua sponte. However, if Funderburg had been entitled to a

passion/provocation charge, the Court would not have affirmed

his conviction under any standard of appellate review. In

addition, the Court noted that the verbal sparring between

Funderburg and Parham, which was far more extensive than the

brief exchange in the kitchen between defendant and Hall, did

not suggest adequate provocation. Ibid. Significantly, the

Court noted that even if the jury found the defendant's

testimony that Parham initially held the knife to be the most

credible, that "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." Ibid.

Because there was no rational basis to justify a

passion/provocation charge under the State's proofs or

defendant's version of the shooting, I respectfully dissent.

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