On January 10, 2022, a three-judge appellate panel decided the Camden County case of State v. Timothy Canfield. The principal issues concerned the Use of Force in Self-Protection under N.J.S.A. 2C:3-4.
Judge Susswein wrote for the panel in relevant part: The passion/provocation jury charge issue defendant raises on appeal as plain error arises often enough to warrant a new practice and procedure to safeguard a defendant’s right to a fair trial and to avoid whenever possible the need to reverse an otherwise valid jury verdict. As our Supreme Court stressed in Funderburg, “the appropriate time to object to a jury charge is ‘before the jury retires to consider its verdict.'” It follows that trial judges, not appellate courts, should decide in the first instance what jury instructions should be delivered. In making those decisions, moreover, trial courts should be aided and informed by the arguments of the parties. Indeed, that is one of the principal reasons for the Court Rule that requires the trial court to hold a charge conference. Trial courts should not be dissuaded from considering whether to instruct on passion/provocation mitigation by what the Court in Garron characterized as “partisan strategic maneuvering of both the State and defendant,” which in this case may have been expressed by the parties’ silence.
History shows that counsel in murder cases often determine that their client’s interests would best be served by an “all-or-nothing” verdict. A defendant “might oppose a lesser included manslaughter instruction for a variety of reasons” including the possibility of “perhaps lessening what he or she perceives to be a strong possibility of a verdict of acquittal.” Indeed, both parties may prefer to take their chances on an all-or-nothing verdict, in which event they may choose not to raise the passion/provocation manslaughter issue with the trial judge.
Underlying the court’s rationale is an unspoken recognition that jurors often disregard the courts’ instructions. Such is the case with compromise verdicts that reflect a desire to dispose of a case as opposed to a desire to carefully apply legal instructions.