On January 6, 2026, the New Jersey Supreme Court decided the Mercer County case of State v. Michael Owens. The principal issue under N.J.S.A. 2C:11-4 concerned whether the trial court was required to instruct the jury on the lesser-included offense of passion provocation manslaughter in the absence of a request by the defense.
In a “per curiam” opinion, the Supreme Court reversed the Appellate Division majority for the reasons expressed in the Appellate Division’s dissenting opinion. The Supreme Court held in relevant part: If the defendant requests a lesser-included offense charge at trial, including passion/provocation manslaughter, “the trial court must include it if, viewing the evidence in the light most favorable to the defendant, there is a rational basis in the record for doing so.
If, on the other hand, the defendant does not request that the jury be charged on the lesser-included offense at trial, or, as in this case, explicitly states that no lesser-included offenses should be charged, an appellate court reviews only whether the evidence in the record “clearly indicates” that the charge was nonetheless required, “that is, if the evidence” supporting the charge “is jumping off the page.”
This “jump-off-the-page review is at odds with the notion that the trial evidence should be viewed in the light most favorable to the defendant.” Therefore, “the most-favorable-to-the-defendant standard is reserved for cases where a defendant affirmatively requests a trial court to instruct on passion/provocation manslaughter, and does not apply when, as in this case, the issue is raised as plain error.”
Presiding Judge Gilson filed the dissent in the Appellate Division. He wrote in relevant part: Gonzalez did not provoke defendant. Instead, defendant became outraged when he looked at his girlfriend’s text messages at her apartment in Hamilton. Gonzalez was not present; rather, the evidence demonstrated that Gonzalez was in the neighboring city of Trenton, at least a mile away.
The majority points out that the New Jersey Supreme Court has “acknowledged and embraced the ‘trend away from the usual practice of placing the various types of provocatory conduct into pigeon-holes.'” The majority also points out that in determining whether to instruct a jury on passion/provocation manslaughter, the trial judge must view the evidence in the light most favorable to the defendant. Nevertheless, the facts of this case do not fall within the ambit of what an ordinary person would consider reasonable provocation. Gonzalez did not take any direct actions against defendant. Instead, defendant saw text messages between his girlfriend and Gonzalez. It is well-established that “words alone” do not “constitute adequate provocation to reduce murder to manslaughter.” In this case, there was no evidence that the text messages defendant saw were intended to or would reasonably provoke an ordinary person into a passionate rage to kill another person. There is a difference between becoming angry and being passionately provoked. See State v. Copling (App. Div. 1999) (reasoning that there was insufficient provocation when the defendant killed the victim “in retaliation” after learning that the victim had attacked the defendant’s younger brother the previous day).
The majority reasons that defendant “swiftly” reacted to seeing text messages concerning drug sales and assumes that the messages “struck at the core” of “his romantic relationship and the continuance of their family structure.” That assumption ignores the fact that defendant assaulted his girlfriend just after she received a call from an unknown male and before he saw any text messages from Gonzalez. Moreover, defendant’s assault of his girlfriend belies any assumption that he was passionately enraged because of the potential that the girlfriend might overdose on heroin. Instead, the evidence of the assault and defendant’s systematic tracking down of Gonzalez demonstrate a calculated but controlled anger–not passionate provocation.
The majority also reasons that seeing text messages about drug sales is analogous to “the surprise discovery of one’s romantic partner in a sexual liaison.” I suggest that analogy does not work. Defendant did not walk in and find his girlfriend using drugs that Gonzalez had sold to her. Instead, they were alone together, she received a call, he got angry, he assaulted her, he took her cell phone, and then he saw the text messages from Gonzalez.
The issue before us is not whether text messages to a loved one can ever constitute passion/provocation. Instead, the issue is whether those facts clearly indicated the need to charge the jury because the passion/provocation jumped off the page, such that the trial judge should have sua sponte given the charge. Because there are no cases directly on point and because an ordinary person would not be provoked into a homicidal rage by looking at text messages, I do not see clear evidence of a reasonable provocation of defendant.
The evidence also does not clearly indicate that defendant remained enraged between the time that he saw the text messages and the time that he shot Gonzalez. Defendant saw the text messages at approximately 8:00 p.m. He first assaulted his girlfriend, then took her cell phone and car keys, then drove around for approximately forty minutes. During the time he was driving, he stopped at a gas station and a housing complex, repeatedly called Gonzalez using the girlfriend’s cell phone, and apparently spoke to Gonzalez at least twice. That evidence demonstrates that defendant had time to cool off before he twice shot Gonzalez. At a minimum, that evidence does not clearly show that he did not have time to cool off and that the trial court should have sua sponte given a passion/provocation charge. See State v. Mujahid, (App. Div. 1991) (holding that the proofs did not rationally support a passion/provocation charge when the defendant had a physical altercation with two residents of a rooming house, went home and talked to his brother-in-law, and returned to the rooming house approximately thirty minutes later with an “angry look on his face”).
As noted, we review whether the jury charge of passion/provocation should have been given for plain error. Defendant did not ask for a passion/provocation charge. Instead, his counsel agreed with the State that there was no evidence of a lesser-included charge of murder, or any other charge against defendant. Critically, the decision not to request a passion/provocation charge was not an oversight. As the majority concedes, defendant’s defense was based on a claim that he was not the shooter; that is, he claimed someone else shot Gonzalez. It would have been highly inconsistent to rely on that defense and then ask for a passion/provocation charge. In other words, the jury would have seen the obvious inconsistency in claiming that defendant was not the shooter but, if he was the shooter, he acted because of reasonable provocation.
The Appellate Division majority may have been motivated to give the defendant a break since the victim was a heroin dealer. The unanimous Supreme Court and Appellate dissent’s rationale is more logical. A point in support of their rationale is that before evidence should be viewed in the light most favorable to the defendant, the evidence should be helpful to the defendant overall. Here, evidence of passion provocation was not helpful to the defendant overall since it strongly implied that he was the shooter. His defense centered around someone else being the shooter.
There is an automatic right to appeal to the New Jersey Supreme Court whenever and Appellate Division decisions contains a dissent. It would be fascinating to be present for any conversations between the Appellate Division judges before their decision is published. There is a potential for significant consequences whenever a judge is reversed on appeal. Since the Supreme Court is required to consider their appeal, it is guaranteed that at least one judge is going to be reversed when they cannot reach an agreement.
