NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4143-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDGAR MARTINEZ,
a/k/a EDGAR A. MARTINEZ,
Defendant-Appellant.
____________________________
Submitted July 14, 2020 – Decided September 2, 2020
Before Judges Sabatino and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 16-01-
0025.
Joseph E. Krakora, Public Defender, attorney for
appellant (Parampreet Singh, Designated Counsel, on
the brief).
Christopher L.C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for respondent (Nancy Anne
Hulett, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant, Edgar Martinez, appeals from a jury verdict convicting him of
first-degree murder and two related weapons offenses. The evidence presented
at trial established that defendant was part of a group of men who fought with
the victim, J.G.-E.,1 and then chased after him when he fled into a restaurant.
There, defendant stabbed the unarmed victim to death. Defendant at trial did
not dispute that he killed J.G.-E. Rather, defense counsel argued that defendant
did not commit knowing/purposeful murder but rather the lesser offense of
passion/provocation manslaughter or, in the alternative, reckless or aggravated
manslaughter based on defendant's intoxication. The jury was instructed on the
law governing those defense theories and rejected them.
On appeal, defendant presents several contentions, none of which were
raised below. Defendant's appellate counsel argues the murder verdict was
against the weight of the evidence. Counsel also contends the prosecutor
committed misconduct during summation. Defendant filed a pro se brief
contending the trial court failed to sua sponte charge the jury on the law
1
Out of respect for the privacy of the homicide victim and his survivors, we
use initials to refer to the decedent in this opinion.
A-4143-17T4
2
pertaining to the defense of others and failed to instruct the jury that the defense
of intoxication applies to the weapons offenses and not just the homicide. After
reviewing the trial record in light of the applicable legal principles, we reject all
these contentions and affirm defendant's convictions.
I.
Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1),
(2); unlawful possession of a knife, N.J.S.A. 2C:39-5(d); and possession of a
knife for an unlawful purpose, N.J.S.A. 2C:39-4(d). After a ten-day trial, the
jury returned a guilty verdict on all counts as charged in the indictment. The
court sentenced defendant on the murder conviction to the statutory minimum
thirty-year term of imprisonment and parole ineligibility. The court merged the
two weapons convictions and imposed an eighteen-month prison term to be
served concurrently to the sentence imposed on the murder conviction.
The State presented evidence at trial from several witnesses who testified
that in the early morning hours on July 4, 2015, defendant stabbed the victim to
death in the kitchen of a restaurant in New Brunswick. As noted, defendant does
not dispute he fatally stabbed J.G.-E. The factual and legal issues contested at
trial focused on defendant's level of intoxication and whether the stabbing was
provoked by the victim.
A-4143-17T4
3
To provide context for defendant's weight-of-the evidence contentions, we
summarize the events that led up to the fatal encounter. J.G.-E. and Jacqueline
Martinez2 were enjoying a night out together in New Brunswick. At around 2:00
a.m., the pair left a local bar and traveled to a restaurant to get something to eat.
During their meal, J.G.-E. called his former girlfriend, Benigna Reyes, and
invited her to come to the restaurant.
When Reyes arrived, she first approached a table where several men,
including defendant, were drinking. After speaking with them, Reyes came over
to the table at which J.G.-E. and Jacqueline were seated. Jacqueline prepared to
leave so that J.G.-E. and Reyes could discuss the status of their relationship, but
J.G.-E. told her to wait for him so that he could take her home.
Reyes confronted Jacqueline outside the restaurant. Reyes insulted
Jacqueline and then struck her on the eyebrow, knocking her to the ground. J.G.-
E. and a waitress had followed Reyes outside. J.G.-E. attempted to break up the
fight between Reyes and Jacqueline.
The men who Reyes had talked to in the restaurant also went outside and
confronted J.G.-E. Defendant was the first in the group to intervene. Reyes
2
Because Jacqueline Martinez and defendant coincidentally share the same
surname, we refer to Ms. Martinez as Jacqueline to avoid confusion. We intend
no disrespect by this informality.
A-4143-17T4
4
yelled to the group, "beat the shit out of him," and quickly left the scene in her
car. The men began to pummel J.G.-E.
J.G.-E. was able to break away and fled into the restaurant. Defendant
pursued him. Defendant forced his way into the restaurant and chased J.G.-E.
into the kitchen. J.G.-E. attempted to flee through a back door, but defendant
punched him, knocking him to the ground and preventing his escape. When
J.G.-E. stood up, he defensively placed his arms across his body to protect
himself as defendant stabbed him multiple times with a small folding knife.
Defendant then ran out of the restaurant while holding the bloody knife in his
left hand.
New Brunswick Police Officers Bellafronte and Berrios received a report
of a stabbing at a local restaurant and were dispatched to investigate. Relying
on a description of the stabbing suspect provided by the police dispatcher, the
officers spotted defendant on Suydam Street. The officers blocked defendant's
path with their police vehicle and approached him on foot. They observed that
defendant had blood on his shirt. The officers located a small folding knife
roughly five to ten feet from where defendant was standing. The knife appeared
to have blood on it. Defendant was arrested and transported to police
headquarters.
A-4143-17T4
5
There, Sergeant Thierry Lemmerling and Detective Gregory Morris
conducted a stationhouse interrogation that began at 6:56 a.m., roughly three
hours after the stabbing, and lasted for approximately an hour. 3 Sergeant
Lemmerling described defendant as "pretty calm" and "cooperative," although
he was "obviously upset." Sergeant Adrian Villegas, who asked defendant prior
to the interrogation whether he wished to speak Spanish or English, testified that
"there was some indication that [defendant] may have been intoxicated. But
. . . his intoxication did not appear to be in [any] way, shape or form an
impairment of his [faculties]."
An electronic recording of the stationhouse interrogation was played for
the jury. Defendant explained to the interrogating officers that he had met two
friends around 7:00 or 8:00 p.m. at a local restaurant. Around 2:00 a.m.,
defendant and his friends left that restaurant and went to the restaurant where
3
The trial court denied defendant's motion to suppress his video-recorded
statement, ruling that defendant knowingly and voluntarily waived his rights
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). The admissibility of
defendant's statement to police is not challenged on appeal. We note that in
concluding defendant made a knowing and voluntary waiver of his Miranda
rights, the court found "[d]efendant . . . appeare[ed] somewhat tired. But, he
appeared . . . on the video to be sober, coherent. He was responsive to . . .
questions. He seemed to have his wits about him."
A-4143-17T4
6
the violent incident occurred. Defendant stated he was already "drunk." They
continued drinking beer there.
About two hours after arriving at the restaurant, defendant saw a man and
woman walk out of the restaurant "and then the . . . waitress, . . . came in, saying
that the guy was beating up [the] girl." He had never met the woman who exited
the restaurant with J.G.-E. Defendant and his friends walked outside. Defendant
admitted that he initiated a fight with J.G.-E. He acknowledged he did not see
J.G.-E. hitting the woman before he started the fight. He also did not see J.G.-
E. holding any weapons. Defendant stated his friends told him not to fight J.G.-
E., but when he "saw the girl beaten . . . [he] lost it." The group carried the fight
across the street before J.G.-E. ran back into the restaurant.
During the course of the interrogation, defendant provided different
accounts of the conclusion of the violent encounter with J.G.-E. At certain
points, defendant told Detective Morris that he did not remember going back
inside of the restaurant. Although he admitted that he was in possession of a
knife while he was out drinking, he claimed he did not remember stabbing the
victim. At other points in the interrogation, however, defendant told the
detectives he did remember chasing the victim into the restaurant and pulling
out his knife.
A-4143-17T4
7
Furthermore, Detective Morris questioned defendant whether "the first
time you stabbed him was . . . inside the restaurant?" Defendant responded,
"yeah, it was." Defendant stated he did not know how many times he stabbed
J.G.-E. or where he stabbed him. He stated he "was so drunk" that he could not
remember.
Defendant told the officers that after leaving the restaurant, he tried to run
to his home. He remembered being stopped by the police. He acknowledged he
knew why the police were looking for him but did not know how badly he had
injured J.G.-E. He admitted that everything was his "fault."
The State presented exterior surveillance video recordings that showed the
altercation involving Jacqueline, Reyes, and J.G.-E., and the fight defendant
initiated with J.G.-E. when defendant exited the restaurant. Surveillance video
also showed the victim fleeing into the restaurant and defendant forcing his way
into the restaurant in pursuit of the victim.
The medical examiner's autopsy determined J.G.-E. was five feet, two
inches in height and weighed between 112 and 122 pounds. The autopsy
revealed five stab wounds, one of which was lethal. There were two penetrating
stab wounds on the left side of the victim's chest. J.G.-E. had two stab wounds
to his left arm, one in the upper arm and one to his wrist. The fifth stab wound
A-4143-17T4
8
was in the left clavicle area. The medical examiner reported this wound cut the
subclavian artery, causing a fatal loss of blood.
Defendant presented one witness at trial, Marco Gonzalez, who was one
of the men who accompanied defendant on the night of the stabbing. Gonzalez
testified that he began drinking beer with defendant and one other person at a
bar around 7:00 or 8:00 p.m. Around 10:00 p.m., the group left that bar and
traveled to a different bar. There, they continued drinking beer until 2:00 a.m.,
at which time they went to the restaurant where the incident occurred and
continued drinking.
Gonzalez testified that at some point, "one of the waitresses yelled that
[they] should go out and help a lady outside." The group went outside and
defendant began fighting with J.G.-E. Gonzalez testified defendant "was a little
drunk" at that point. Gonzalez kept Reyes and Martinez separated from one
another while defendant, the victim, and the other member of the group fought.
Eventually, Gonzalez saw the victim run back into the restaurant.
Gonzalez testified that J.G.-E. screamed at his pursuers that "he was going
to hit [them] later." That prompted defendant to pull out a knife. Gonzalez
testified he attempted to stop defendant at the restaurant door but was
A-4143-17T4
9
unsuccessful. Defendant chased the victim into the kitchen. Gonzalez testified
that shortly thereafter, he and defendant fled from the restaurant.
II.
Defendant's appellate counsel presents the following contentions for our
consideration:
POINT I
APPELLANT'S CONVICTION MUST BE
REVERSED BECAUSE APPELLANT WAS
DEPRIVED OF A FAIR TRIAL DUE TO
PROSECUTORIAL MISCONDUCT.
POINT II
APPELLANT'S CONVICTION MUST BE
REVERSED BECAUSE IT WAS AGAINST THE
WEIGHT OF THE EVIDENCE.
A. THE RECORD ESTABLISHES
APPELLANT WAS ADEQUATELY
PROVOKED BY [J.G.-E.].
B. THE RECORD ESTABLISHES
APPELLANT WAS INTOXICATED
AND UNABLE TO FORM THE
REQUISITE INTENT TO COMMIT
FIRST-DEGREE MURDER.
Defendant also submitted a pro se brief raising the following additional
contentions:
A-4143-17T4
10
SUPPLEMENTAL POINT I
APPELLANT'S CONVICTION MUST BE VACATED
BECAUSE THE TRIAL COURT SHOULD HAVE
SUA SPONTE CHARGED THE JURY WITH THE
LESSER-INCLUDED OFFENSE OF DEFENSE OF
OTHERS, AS AN AFFIRMATIVE DEFENSE,
BECAUSE THERE WAS A RATIONAL BASIS, AND
MORE THAN AMPLE EVIDENCE TO SUPPORT
SUCH A DEFENSE AT THE CONCLUSION OF
TRIAL.
SUPPLEMENTAL POINT II
THE LOWER COURT'S INSTRUCTION ON
VOLUNTARY INTOXICATION CONTAINED
REVERSIBLE ERROR BECAUSE IT FAILED TO
INFORM THE JURY THAT THE DEFENSE
APPLIED TO THE CHARGE OF POSSESSION OF
THE MURDER WEAPON FOR AN UNLAWFUL
PURPOSE, AS MANDATED IN STATE V.
WARREN, 104 N.J. 571 (1986).
III.
We first address defendant's contention, raised for the first time on appeal,
that the prosecutor committed misconduct during his summation. Defendant
argues the prosecutor made two distinct improper comments during his closing
arguments to the jury: (1) the prosecutor inappropriately urged the jury to assess
the effect of defendant's intoxication on his culpable mental state by considering
the volitional decisions defendant made leading up to the fatal attack; and (2)
A-4143-17T4
11
the prosecutor inappropriately referred to J.G.-E. as a "kid." We address each
of these contentions in turn.
We first acknowledge the legal principles that apply to our review of a
prosecutor's arguments to the jury. "Consistent with their obligation to seek
justice, prosecutors may not advance improper arguments." State v. Lazo, 209
N.J. 9, 29 (2012). That said, we expect prosecutors "to make vigorous and
forceful closing arguments to juries," and we therefore afford them
"considerable leeway in closing arguments as long as their comments are
reasonably related to the scope of the evidence presented." State v. Frost, 158
N.J. 76, 82 (1999).
An impropriety in a prosecutor's summation is not a ground for reversal
"unless the conduct was so egregious as to deprive the defendant of a fair trial."
State v. Papasavvas (I), 163 N.J. 565, 625 (2000) (quoting State v.
Timmendequas (I), 161 N.J. 515, 575–76 (1999)). A reviewing court will find
grounds for overturning a guilty verdict only if the prosecutor's conduct was
"clearly and unmistakably improper" and had the effect of "substantially
prejudic[ing] defendant's fundamental right to have a jury evaluate the merits of
his defense." Ibid.
A-4143-17T4
12
The propriety of a prosecutor's remarks, moreover, must be judged in the
context of the entire trial record and defense counsel's summation. See State v.
Morton, 155 N.J. 383, 457 (1998) (assessing a prosecutor's remarks in
summation in light of the trial record and permitting a prosecutor to refer to the
defendant as a "cold-blooded killer" in response to defense counsel's closing
remarks). So long as the prosecutor's response is "based on reasonable
inferences drawn from the evidence presented during trial," we will not find the
prosecutor to have deprived defendant of the right to a fair trial. Id. at 458.
Furthermore, our assessment of a claim of prosecutorial misconduct "must
take into account the tenor of the trial and the degree of responsiveness of both
counsel and the court to improprieties when they occurred." State v. Marshall,
123 N.J. 1, 153 (1991). Specifically, even when an appellate court determines
that a prosecutor's remarks were improper, we must consider whether defense
counsel made a timely and proper objection. Frost, 158 N.J. at 83 (citing State
v. Marshall, 123 N.J. 1, 153 (1991)). "Generally, if no objection was made to
the improper remarks, the remarks will not be deemed prejudicial." Ibid. (citing
State v. Ramseur, 106 N.J. 123, 323 (1987)). The failure to object suggests that
defense counsel did not believe the remarks were prejudicial at the time they
were made. Ibid.; see also State v. Nelson, 173 N.J. 417, 471 (2002) (noting the
A-4143-17T4
13
absence of a contemporaneous objection suggests that "in the context of the trial
the error was actually of no moment" (quoting State v. Macon, 57 N.J. 325, 333
(1971))). "The failure to object also deprives the court of an opportunity to take
curative action." Frost, 158 N.J. at 84 (citing State v. Bauman, 298 N.J. Super.
176, 207 (App. Div. 1997)).
Having identified the operative principles guiding our review of the
prosecutor's closing arguments, we turn to their application in view of
defendant's specific contentions.
A.
Defendant first challenges the prosecutor's comment that, "[defendant]
made that choice and if he's making choices, ladies and gentleman, then you
have to believe that he is cognizant, that his drinking is not impairing him to the
point where he doesn't know what he's doing."
As noted in our recitation of the governing legal principles, we do not
review a prosecutor's remarks in isolation. Rather, the portion of the
prosecutor's summation defendant now challenges must be viewed in context
with the prosecutor's entire summation. Mindful of the disputed issues at trial,
the prosecutor focused on whether defendant had reasonably been provoked to
use lethal force and whether, considering his level of intoxication, defendant
A-4143-17T4
14
harbored the required mental culpability state for the crime of murder at the
moment he fatally stabbed the victim.
In essence, the prosecutor asked the jury to infer that defendant acted
knowingly or purposely4 from the decisions he made in response to events as
they unfolded just before and during his confrontation with J.G.-E. The
prosecutor noted, for example, that defendant made a choice to try to be a "Good
Samaritan"5 and intercede in the physical altercation involving Reyes,
Jacqueline, and the victim. That choice, the prosecutor argued, demonstrated an
4
Although first-degree murder often is referred to as "knowing/purposeful"
murder, the State need only prove a "knowing" culpable mental state. See
N.J.S.A. 2C:11-3(a)(2) ("criminal homicide constitutes murder when . . . the
actor knowingly causes death or serious bodily injury resulting in death."); see
also N.J.S.A. 2C:2-2(c)(2) ("When the law provides that a particular kind of
culpability suffices to establish an element of an offense such element is also
established if a person acts with a higher kind of culpability."). N.J.S.A. 2C:2 -
2(b)(2), which defines the "knowing" kind of culpability, provides:
[a] person acts knowingly with respect to the nature of
his conduct or the attendant circumstances if he is
aware that his conduct is of that nature, or that such
circumstances exist, or he is aware of a high probability
of their existence. A person acts knowingly with
respect to a result of his conduct if he is aware that it is
practically certain that his conduct will cause such a
result.
5
Defense counsel in his summation had described defendant as a "Good
Samaritan" who, "through a series of unfortunate events," made the fateful error
of killing J.G.-E.
A-4143-17T4
15
awareness of the circumstances. The prosecutor also argued that by responding
to the threat of future retaliation the victim purportedly made while fleeing,
defendant demonstrated he was cognizant of the fast-moving situation so that
when he pulled out the concealed knife in response to the threat, defendant
formed an intent to stab J.G.-E.
Viewed in light of the trial record, Morton, 155 N.J. at 457, we conclude
the prosecutor's argument to the jury, connecting defendant's cognizance and
decision-making with his ability to harbor the culpable mental state for
knowing/purposeful murder, was reasonable and entirely consistent with the
instructions the trial judge provided to the jury, see Model Jury Charges
(Criminal), "State of Mind" (approved Jan. 11, 1993) (instructing that "state of
mind . . . must ordinarily be inferred from the facts," and that it is within the
jury's power to find proof of state of mind "from the nature of [a defendant's]
acts and . . . conduct, and from all [a defendant] said and did at the particular
time and place, and from all of the surrounding circumstances").
The prosecutor's remarks also were an appropriate response to defense
counsel's opening statement and summation. Counsel criticized the police
investigation, noting that police failed to test defendant's blood alcohol content
even though defendant at the interrogation claimed to be too intoxicated t o
A-4143-17T4
16
remember certain details of the stabbing episode. In the absence of scientific
evidence of defendant's blood alcohol content, counsel told the jury in his
opening remarks to infer the impact of defendant's level of intoxication on his
state of mind by "pay[ing] very close attention to the date of this offense, the
time of the offense, the location, the presence of alcohol. Pay attention to what
happened outside the restaurant because there is a video." During his
summation, counsel returned to the topic of defendant's state of intoxication by
arguing defendant was clearly "drunk" and "falling asleep" during the
interrogation. The prosecutor's argument now claimed to be misconduct is
consistent with the process of inferential reasoning defense counsel u rged the
jury to employ, albeit the prosecutor, of course, suggested a different conclusion
from the trial evidence than the one defense counsel proposed.
In sum, viewed in the context of the disputed issues in this case, the
prosecutor's comments concerning defendant's volitional decisions were
reasonably related to the evidence presented at trial, Frost, 158 N.J. at 82, and
were a fair response to the defense summation. So long as prosecutors stay
"within the evidence and the legitimate inferences therefrom," State v. R.B., 183
N.J. 308, 330 (2005) (quoting State v. Mayberry, 52 N.J. 413, 437 (1968)), we
leave it "for the jury to decide whether to draw the inferences the prosecutor
A-4143-17T4
17
urged," State v. Carter, 91 N.J. 86, 125 (1982). We add the jury was properly
instructed that they "are the sole and exclusive judges of the evidence, of the
credibility of the witnesses and the weight to be attached to the testimony of
each witness." The court also properly charged the jury that the arguments of
counsel are not evidence.
We therefore conclude the portion of the prosecutor's summation
defendant now challenges was not error, much less plain error. See R. 2:10-2
(disregarding "[a]ny error or omissions" not raised below "unless it is of such a
nature as to have been clearly capable of producing an unjust result").
B.
We next consider defendant's contention the prosecutor inappropriately
characterized J.G.-E. as "a kid" who "was only twenty years old at the time."
Defendant maintains it was prejudicial and an inappropriate appeal to sympathy
for the prosecutor to describe the victim in this manner given that the victim was
an adult. We disagree. Although the prosecutor referred to the victim as a "kid,"
he did not misrepresent the victim's age or otherwise suggest the victim was a
child under the age of majority. To the contrary, the prosecutor in the same
breath reminded the jury that J.G.-E. was twenty years old. We view the
prosecutor's fleeting description of J.G.-E. as a "kid" to be a nonprejudicial
A-4143-17T4
18
colloquial way to describe a young adult victim who was attacked and chased
by a group of older, larger males.
The prosecutor also noted the victim's small stature, arguing to the jury
J.G.-E. was "five-foot-two, 116 pounds" and not "much of an opponent." The
prosecutor's comments on the victim's age and stature were reasonably related
to his ability to provoke defendant to use lethal force—a critical issue in dispute.
Frost, 158 N.J. at 82.
We therefore conclude in the circumstances of this case the prosecutor's
characterization of the victim was not prosecutorial misconduct. Even were we
to accept defendant's argument the term "kid" was inappropriate as a nuanced
appeal to sympathy, the prosecutor's comment would not warrant reversal of the
murder conviction. The absence of a timely objection to the prosecutor's
characterization of the victim is telling and supports our determination that the
fleeting remark was "of no moment." Nelson, 173 N.J. at 471 (quoting Macon,
57 N.J. at 333).
IV.
We turn next to defendant's contention the murder verdict was not
supported by the evidence presented at trial. We note preliminarily that
defendant failed to move for a new trial before the trial court pursuant to Rule
A-4143-17T4
19
3:20-1. We therefore may refuse to consider his contention the jury verdict is
against the weight of the evidence. State v. Smith, 262 N.J. Super. 487, 511
(App. Div. 1993) (interpreting Rule 2:10-1). We nonetheless choose to consider
defendant's contention in the interests of justice. Ibid. In doing so, we apply
the plain error standard of review. R. 2:10-2.
We begin our analysis by noting we will reverse a jury verdict on these
grounds only if "it clearly appears that there was a miscarriage of justice under
the law." R. 2:10-1. There is no miscarriage of justice, moreover, unless we
determine that no "trier of fact could rationally have found beyond a reasonable
doubt that the essential elements of the crime were present." State v. Afanador,
134 N.J. 162, 178 (1993) (quoting State v. Carter, 91 N.J. 86, 96 (1982)). This
has been described as an "extraordinarily lenient standard of review." State v.
Jackson, 211 N.J. 394, 414 (2012).
We may not overturn the verdict, for example, "because [we] might have
found otherwise upon the same evidence." State v. Johnson, 203 N.J. Super.
127, 134 (App. Div. 1985). Nor will we disturb the jury's credibility
determinations that are based on live-witness testimony. State v. Saunders, 302
N.J. Super. 509, 524 (App. Div. 1997) ("The jury is free to believe or disbelieve
a witness's testimony."). In sum, appellate intervention is warranted only where
A-4143-17T4
20
it is apparent that "an injustice result[ed] from a plain and obvious failure of the
jury to perform its function." Ibid.
Defendant makes two analytically distinct claims regarding the weight of
the trial evidence. First, defendant asserts that the evidence can only support
the conclusion that defendant killed the victim in the heat of passion and upon
adequate provocation. Second, defendant maintains a reasonable jury could
only find that he was so intoxicated during the killing that he lacked the requisite
mental capacity to commit a knowing or purposeful murder.
We reject both arguments. The trial court properly instructed the jury with
regard to passion/provocation manslaughter, reckless manslaughter, aggravated
manslaughter, and voluntary intoxication. Importantly, defendant does not
challenge those instructions on appeal, at least with respect to the homicide. 6
The jury thus was properly entrusted to decide which type of homicide defendant
committed. We conclude the jury reached a verdict that was amply supported
by the trial evidence.
6
As we will address in section VI, defendant unpersuasively contends in his
pro se brief the trial court failed to explain to the jury that the into xication
defense applies to the weapons possession charges.
A-4143-17T4
21
A.
Passion/Provocation Manslaughter
After a jury determines the State has proved the material elements of
murder under N.J.S.A. 2C:11-3, it may consider whether the homicide should
be reduced to the lesser-included offense of passion/provocation manslaughter
under N.J.S.A. 2C:11-4(b)(2). 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." Ibid. This downgrade
option allows a jury to account for "the presence of reasonable provocation,
coupled with [a] defendant's impassioned actions, [which] establish[es] a lesser
culpability." State v. Robinson, 136 N.J. 476, 482 (1994). There are four critical
elements of passion/provocation manslaughter: "(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." State v. Carrero, 229 N.J. 118, 129 (2017) (quoting State v.
Mauricio, 117 N.J. 402, 411 (1990)).
We focus our attention on the first element. The adequacy of the
provocation depends upon "whether loss of self-control is a reasonable
reaction." State v. Foglia, 415 N.J. Super. 106, 126 (App. Div. 2010) (quoting
A-4143-17T4
22
Mauricio, 117 N.J. at 412). Loss of self-control is reasonable if the provocation
is "sufficient to arouse the passions of an ordinary [person] beyond the power of
his [or her] control." Ibid. (alterations in original) (quoting Maurico, 117 N.J.
at 409). Furthermore, "the defendant's response must be proportionate to the
provocation." State v. Docaj, 407 N.J. Super. 352, 369 (App. Div. 2009)
(citations omitted).
Defendant contends he was reasonably provoked to kill when he perceived
that J.G.-E. had assaulted Jacqueline. Defendant acknowledges that Jacqueline
was a stranger to him. He nonetheless argues that a male seeking to defend a
female from physical assault by another man can be an adequate provocation for
purposes of the first element of passion/provocation manslaughter. We need not
decide whether, as a matter of law, such conduct to protect a stranger is
sufficient to satisfy the first element. Cf. State v. Coyle, 119 N.J. 194, 225–26
(1990) (noting a person may be provoked by conduct that causes injury to a
relative or close friend) (citations omitted). The jury in this case was duly
instructed as to passion/provocation manslaughter, and the State does not
contend that the trial court erred in giving the jury the option to reduce the crime
of murder to the lesser offense of manslaughter.
A-4143-17T4
23
The fact the passion/provocation mitigation defense was put before the
jury, however, does not mean the jury was required in these circumstances to
find that there was adequate provocation to chase down and kill an unarmed
victim. The jury in its role as trier-of-fact was, of course, free to reject
defendant's argument he was reasonably provoked to kill J.G.-E. because he
believed the victim had assaulted a female.
Defendant also asserts that J.G.-E.'s threat to "hit" him at some future
time, made while fleeing, provided adequate provocation for defendant to pursue
and kill the victim. Compare Crisantos, 102 N.J. 265, 274 (1986) (noting that
words alone generally do not provide adequate provocation) with Mauricio, 117
N.J. at 414 ("[A] threat with a gun or knife might constitute adequate
provocation."). Once again, the question before us is not whether the jury should
have been presented the option to reduce the homicide to passion/provocation
manslaughter. Rather, the issue is whether the jury was required to reduce the
level of homicide based on the trial evidence. Clearly, it was not.
For one thing, the evidence that the victim threatened to retaliate came
only from defendant's witness, Gonzalez. None of the State's witnesses testified
the victim threatened future retaliation. The jury was free, of course, to conclude
the threat was never made. See Saunders, 302 N.J. Super. at 524 ("The jury is
A-4143-17T4
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free to believe or disbelieve a witness's testimony."). But even assuming the
jury found the fleeing victim did threaten to "hit" his pursuers "later," it was free
to conclude that threat was insufficient to reasonably provoke defendant to pull
out a knife, chase down the fleeing victim, prevent him from escaping through
the back door, corner the unarmed victim in the kitchen, and stab him repeatedly.
The point simply is that considering the evidence presented at trial, a
reasonable jury could have found that defendant's loss of control was
unreasonable and that J.G.-E. did not adequately or actually provoke defendant
to kill.
B.
Intoxication Defense
We turn next to defendant's contention the trial evidence irrefutably
established that he was so intoxicated that he was not able to form the culpable
mental state for murder. Voluntary intoxication can be a defense if it negates
an element of an offense. N.J.S.A. 2C:2-8(a). In the case of purposeful or
knowing murder, voluntary intoxication can reduce the offense from murder to
manslaughter or aggravated manslaughter. 7 Mauricio, 117 N.J. at 418. To
7
Manslaughter and aggravated manslaughter require proof of the reckless
culpable mental state defined in N.J.S.A. 2C:2-2(b)(3). The defense of
involuntary intoxication does not apply to an offense that carries a reckless
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establish intoxication as a defense, evidence must show that "defendant's
faculties were so prostrated that he could not have formed an intent to purposely
or knowingly kill." Mauricio, 117 N.J. at 410.
Defendant acknowledges the jury was properly instructed with respect to
self-induced intoxication. We conclude a reasonable jury could conclude from
the evidence presented at trial that defendant's level of intoxication did not
prevent him from purposefully or knowingly killing the victim. Defendant's
conduct demonstrated his awareness of the situation and a conscious decision to
engage in a fight with J.G.-E., believing he had assaulted a female. The defense
argument he was acting as a Good Samaritan is in tension with the notion that
he was too intoxicated to be aware of the nature of his conduct or the attendant
circumstances. See N.J.S.A. 2C:2-2(b) (defining the "knowing" culpable mental
state in terms of awareness of one's conduct and the attendant circumstances).
The jury also had the benefit of viewing surveillance videos from which it could
culpable mental state. See N.J.S.A. 2C:2-8(b) ("When recklessness establishes
an element of the offense, if the actor, due to self-induced intoxication, is
unaware of a risk of which he would have been aware had he been sober, such
unawareness is immaterial."); see also State v. Baum, 224 N.J. 147, 162 (2016)
(noting "a defendant claiming to have been voluntarily intoxicated at the time
of the commission of a crime for which the requisite mental state is recklessness,
such as aggravated manslaughter[,] may nonetheless be found guilty" (citing
Warren, 104 N.J. at 575–76)).
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have drawn the inference that defendant's physical and mental faculties were not
so prostrated by his level of intoxication that he could not act purposefully or
knowingly. The jury also viewed the electronic recording of the stationhouse
interrogation during which defendant was able to answer questions, recall
significant details of what transpired, and acknowledge that the incident was his
fault. Defendant's own trial witness, Gonzalez, described him as being only "a
little drunk." All these facts and circumstances provide an evidential basis from
which the jury could reasonably reject defendant's argument that he was too
inebriate to harbor the state of mind needed to commit murder.
In sum, the jury, fully instructed on these mitigation defenses, acted within
the ambit of its discretion in rejecting defendant's arguments on both
passion/provocation and intoxication. We do not hesitate to conclude from our
review of the record that the State presented sufficient evidence from which a
reasonable jury could conclude beyond a reasonable doubt that defendant was
guilty of murder as charged. Afanador, 134 N.J. at 178. Accordingly, defendant
has failed to show it is clearly apparent that a manifest denial of justice resulted
from the jury's verdict. R. 2:10-1.
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V.
Defendant in his pro se brief claims the court erred by not sua sponte
charging the jury concerning defense of others, N.J.S.A. 2C:3-5.8 Specifically,
defendant argues the evidence presented at trial established a rational basis for
a jury to acquit defendant based upon a finding that the killing was justified by
the defense of either Reyes or Jacqueline. See State v. Bryant, 288 N.J. Super.
27, 35 (App. Div. 1996) ("The trial court must charge the jury on . . . defense of
another if there exists evidence in either the State's or the defendant's case
8
N.J.S.A. 2C:3-5(a) provides the use of force in the defense of others is justified
when:
(1) The actor would be justified under [N.J.S.A.] 2C:3-
4 in using such force to protect himself against the
injury he believes to be threatened to the person whom
he seeks to protect; and
(2) Under the circumstances as the actor reasonably
believes them to be, the person whom he seeks to
protect would be justified in using such protective
force; and
(3) The actor reasonably believes that his intervention
is necessary for the protection of such other person.
Furthermore, N.J.S.A. 2C:3-4(b)(2) provides the use of deadly force is
authorized only if the "the actor reasonably believes that such force is
[immediately] necessary to protect himself [or another under N.J.S.A. 2C:3-
5(a)(1)] against death or serious bodily harm."
A-4143-17T4
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sufficient to provide a 'rational basis' for its applicability." (quoting State v.
Martinez, 229 N.J. Super. 593, 600 (App. Div. 1989))).
This contention lacks sufficient merit to warrant extensive discussion. R.
2:11-3(e)(2). The trial court, defense counsel, and prosecutor expended
considerable effort discussing and fashioning appropriate jury instructions.
Defendant never requested a defense of another charge, and for good reason. A
trial court's obligation to instruct the jury on the court's own motion, it bears
noting, arises "only when the evidence clearly indicates the appropriateness of
such a charge[.]" State v. Rivera, 205 N.J. 472, 489 (2011) (quoting State v.
Walker, 203 N.J. 73, 87 (2010)). A trial court need not on its own initiative
scour the record for some conceivable combination of facts and inferences that
would form a rational basis to sustain an unrequested jury instruction. Id. at 490
(citing State v. Thomas, 187 N.J. 119, 134 (2006)).
Our review of the record convinces us there was no rational basis to
instruct the jury on defense of another. J.G.-E. had fled the street and retreated
into the restaurant kitchen before defendant stabbed him. Neither Reyes nor
Jacqueline were in the kitchen when defendant unleashed lethal force. Thus,
any conceivable threat of death or serious bodily harm to either Reyes or
Jacqueline—illusory in any event—had dissipated and was not imminent by the
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time defendant cornered the victim in the kitchen. Accordingly, the use of lethal
force against the victim inside the restaurant was not immediately necessary to
protect Reyes or Jacqueline, as required by N.J.S.A. 2C:3-4(a) and N.J.S.A.
2C:3-5(a). Cf. State v. Harmon, 104 N.J. 189, 208 (1986) (finding inapplicable
the defense of self-defense to a charge of unlawful possession of a firearm "when
a person arms himself prior to a danger becoming imminent"). It strains
credulity to suggest defendant was somehow reasonably protecting these women
at the moment he repeatedly stabbed J.G.-E. in the chest.
VI.
Finally, we address defendant's pro se contention the trial court failed to
instruct the jury that the defense of voluntary intoxication applied to the charged
offense of possession of a weapon for an unlawful purpose. The record belies
defendant's contention. The court did in fact instruct the jury that the defense
of voluntary intoxication applies to all charged offenses with a purposeful or
knowing mental state, including the weapons offenses.
Specifically, the trial transcript reveals the court first explained to the
jury how the intoxication defense applies to the murder charge. The court then
explained, "evidence that the defendant ingested intoxicants may be consi dered
by you in determining whether the State has proven beyond a reasonable doubt
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that the defendant acted purposely or knowingly with respect to . . . unlawful
possession of a weapon and possession of a weapon for an unlawful purpose."
To the extent we have not addressed them, any additional arguments
raised by defendant or his counsel lack sufficient merit to warrant discussion in
this opinion. R. 2:11-3(e)(2).
Affirmed.
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