State v. Powell

• Decision Date: 10 April 1979
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Larry POWELL, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 407

175 N.J.Super. 407

419 A.2d 427

STATE of New Jersey, Plaintiff-Respondent, v. Larry POWELL, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued March 27, 1979.

Decided April 10, 1979.

Edward Kopelson, Asst. Deputy Public Defender, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney).

Kenneth N. Lipstein, Deputy Atty. Gen., for plaintiff-respondent (John J. Degnan, Atty. Gen., attorney).

Before Judges MATTHEWS, KOLE and MILMED.

PER CURIAM.

Defendant, a police officer, was convicted by a jury of second degree murder of the woman with whom he lived. The murder occurred in their apartment. He was also convicted of the murder while armed with a gun. He appeals.

Defendant contends that it was reversible error for the trial judge to have denied his request to charge manslaughter, notwithstanding his disavowal on the stand of the statement which he made to police and introduced by the State, which "would support a manslaughter conviction." We disagree.

At trial defendant's counsel suggested that the jury, if it believed that statement, could reasonably infer therefrom that defendant committed what appears to be voluntary manslaughter. He stated that

. . . there was an argument (with the deceased) wherein there was a grabbing for the gun, there may have been that feeling by him that she was going to shoot in a fit of rage. Justifiably provoked and attempted to kill him. He may have reacted in anger and without the benefit of . . . time to cool off and committed the act. . . . It's something for them (the jury) to consider that (the deceased) tried to grab his gun and kill him, and he in a fit of rage took the gun away from her and killed her . . . (and it is a jury question as to whether her trying to kill him constituted) . . . justifiable provocation.

The crime thus described is voluntary manslaughter-an intentional homicide done in sudden heat of passion resulting from a reasonable provocation, a passion which effectively deprived the killer of the mastery of his understanding and was acted upon before a time to permit reason to resume its sway had passed. State v. Bonano, 59 N.J. 515, 523, 284 A.2d 345 (1971).

Apart from the foregoing suggestion, we find in the record no other defense request for a manslaughter instruction or an objection by defendant to the judge's failure to charge any form of manslaughter.

Involuntary manslaughter generally is an unintentional homicide, committed without excuse or justification, under circumstances not manifesting or implying malice, such as causing death as a result of the reckless handling of a loaded firearm. State v. Bonano, supra. It also includes a killing accompanied by an intent to inflict less than serious bodily injury. State v. Madden, 61 N.J. 377, 385, 294 A.2d 609 (1972); State v. Robinson, 139 N.J.Super. 475, 488, 354 A.2d 374 (App.Div.1976).

From our review of the disavowed statement, we are satisfied that it would not support the kind of voluntary manslaughter suggested by defense counsel at the trial-i. e., an intentional killing committed in a sudden transport of passion induced by provocation; and that it would also not support an involuntary manslaughter charge predicated on an intent by defendant to inflict less than serious injury.

Conceivably, if at all, it might support a charge of involuntary manslaughter involving an unintentional killing by the reckless handling of a firearm, a matter not suggested below by defendant as an issue to be presented to the jury.

In the disavowed statement defendant asserts the following: There was an argument between him and the deceased in the apartment. She "went for" his gun, which was on his person, and she "got it." Defendant grabbed it, was pulling it toward himself and then "turned it away" from himself, at which time it went off. The deceased then fell on a chair. During the course of the quarrel she came at him, he pushed her away, she came back at him and his shirt "went up." She then grabbed for the gun that was in his belt and she "had it and that's when there were shots from the gun." When she had removed the gun from his belt during their struggle, he "thought" it was pointed in his direction and "figured I was gone so when I first heard the shots, I was surprised . . . like I was supposed to be hit but it was her" when the first shot was fired. He removed the weapon from her. "It was like in both of our hands" while they were struggling for the weapon. When the gun went off, both of them had possession of it; he was trying to "wrestle" it from her. He also stated that the gun went off "while it was in her possession." The weapon discharged more than once. She was standing "by the chair" when this happened. He later disposed of the gun on the highway after leaving the apartment to go to Atlantic City. He was asked whether he...