Passion/provocation manslaughter has four 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. The first two criteria are objective, the other two subjective. If a slaying does not include all of those elements, the offense of passion/provocation manslaughter cannot be demonstrated.
A jury convicted defendant of knowing and purposeful murder, in violation of N.J. Stat. Ann. § 2C:11-3(a)(1), (2), and of possession of a sawed-off shotgun, in violation of N.J. Stat. Ann. § 2C:39-3(b), after he killed a man he mistakenly believed to be a bouncer who had thrown him out of a bar earlier that night. Defendant contended that the trial court improperly refused to charge the jury on passion/provocation manslaughter. The court held that there was evidence to support a jury finding that a reasonable person might have been provoked by the two altercations defendant had with the much larger bouncer.
Is the defendant entitled to a jury charge on passion/provocation manslaughter?
The trial court properly refused to charge the jury on passion/provocation manslaughter because the evidence failed to provide a rational basis for that offense. The Appellate Division concluded that defendant's forcible ejection from the restaurant did not "constitute provocation as to 'arouse the passion of an ordinary man beyond the power of his control'" (quoting State v. King, 37 N.J. 285, 301-02 (1962)). Moreover, the court found that defendant's conduct after the second ejection did not indicate that he had committed the crime in the heat of passion. His behavior demonstrated "an absence of the 'transport of passion' necessary to reduce the crime from murder to passion/provocation manslaughter."