On appeal, the Appellate Division reversed the conviction because the instructions to the jury impermissibly shifted the burden of proof to defendant to establish that the act was "committed in the heat of passion resulting from a reasonable provocation" (N.J.S.A. 2C:11-4(b)(2)) so as to reduce murder to manslaughter. 199 N.J. Super. 241, 246-49 (1985). (For convenience, hereafter we refer to this statutory element as "passion/provocation.")
The trial court instructed the jury not only on aggravated manslaughter, the first-degree offense for which defendant had been indicted, but also on reckless manslaughter (N.J.S.A. 2C:11-4b(1)) and passion/provocation manslaughter as lesser-included offenses of aggravated manslaughter. In submitting those latter charges to the jury the court relied on State v. Powell, 84 N.J. 305, 419 A.2d 406 (1980); State v. Choice, 98 N.J. 295, 486 A.2d 833 (1985); and State v. Grunow, 199 N.J. Super. 241, 488 A.2d 1098 (App.Div. 1985). This Court's opinion in Grunow, reported at 102 N.J. 133, 506 A.2d 708 (1986), disagreeing with the Appellate Division's analysis of the case but nevertheless affirming that court's judgment, had not yet been handed down at the time Ciuffreda's case was tried — a significant circumstance, as we shall demonstrate.
The Appellate Division in Grunow held that “[i]t would ... lead to [an] absurd result” if a defendant charged with murder could seek a reduction to passion/provocation manslaughter, but a defendant charged with aggravated manslaughter could not. State v. Grunow, 199 N.J.Super. 241, 251, 488 A.2d 1098 (App.Div.1985). Despite acknowledging that the panel's reasoning “ha[d] an inherent logic,” the Grunow Court felt constrained by the language of N.J.S.A. 2C:11–4(b)(2).
The State may also use demonstrative aids even if those aids are somewhat cumulative to other evidence it has previously presented. See State v. Grunow, 199 N.J. Super. 241, 253, 488 A.2d 1098 (App.Div. 1985), aff'd, 102 N.J. 133, 506 A.2d 708 (1986). Whether evidence is admissible turns on its relevance and whether its probative value is substantially outweighed by undue prejudice. N.J.R.E. 403; Carter, supra, 91 N.J. at 106, 449 A.2d 1280.
Statev. Grunow, 199 N.J. Super. 241, 250 (App.Div. 1975), aff'd, 102 N.J. 133 (1986). These considerations all point to one basic principle: the severest sanctions should be reserved for actors exhibiting the most culpable mental states.
Petition for certification granted. (See 199 N.J. Super. 241)
Even though identification of defendant as the seller to Dabal was a hotly contested issue and the jury may have acquitted defendant for that reason, "[i]t is equally possible that the jury, convinced of guilt, properly reached its conclusion on [Counts One and Two], and then through mistake, compromise or lenity, arrived at" an acquittal on the distribution counts. United States v. Powell, 469 U.S. 57, 65, 105 S.Ct. 471, 476, 83 L.Ed.2d 461, 468 (1984); accord State v. Grunow, 199 N.J. Super. 241, 249, 488 A.2d 1098 (App.Div. 1985), aff'd 102 N.J. 133, 148, 506 A.2d 708 (1986). Furthermore, because jurors are free to accept or reject, in part or in whole, any aspect of testimonial evidence based on credibility, State v. Coleman, 46 N.J. 16, 43, 214 A.2d 393 (1965), cert. den. 383 U.S. 950, 86 S.Ct. 1210, 16 L.Ed.2d 212 (1966), the jury may have had a reasonable doubt as to whether the State proved that defendant was the person who actually made the sale to Dabal.
In upholding the admission into evidence of a four-minute videotape depicting the recovery of the victim's body from a buried sealed barrel and the barrel itself, the Appellate Division held that the trial judge did not "abuse the broad discretion he had in admitting these items despite their `emotional stirring' quality." State v. Grunow, 199 N.J. Super. 241, 253, 488 A.2d 1098 (App.Div. 1985), aff'd 102 N.J. 133, 506 A.2d 708 (1986), citing State v. Thompson, supra. The Appellate Division has upheld the introduction into evidence of pictures of a murder victim which the court itself termed "ghastly."
This doctrine permeates our case law. N.J. Builders, Owners and Managers Association v. Blair 60 N.J. 330, 338 (1972) [ State v. Grunow 199 N.J. Super. 241, 252 (App.Div. 1985)] As stated in the statute's legislative history, the policy is one of protecting the public and their rights as well as the goals of the juvenile justice system and the rights of the juveniles.