The Jersey Lawyer

On May 27, 2009, in the case of State v. Docaj, the Appellate Division held that a one-word error in the Model Jury Charge for manslaughter was harmless in the context of the entire charge and the statements of counsel during trial and upheld defendant’s conviction for murder.  This case shows that even model jury charges can contain potentially harmful errors and should be carefully reviewed.  Anyone charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for assistance in their defense.

Defendant Jerry Docaj was wed to his wife Kathy Docaj in an arranged wedding.  In 2002, Kathy met and formed a relationship with  Robert Narciso.  Later that year, Kathy told her husband that she no longer loved him.  In January 2003, defendant moved out of the marital home and was advised in February 2003 that his wife had consulted a lawyer to prepare divorce papers.  On Saturday, February 22, 2003, defendant spent the night with his kids in the marital home and did not leave until the early morning.  His wife did not come home that night and did not answer defendant’s calls until later that day. 

That same day, defendant brought a .38 caliber pistol with him to work and left the pistol in his locker.  Defendant phoned his wife and told her that he would be  coming over that night to talk.  After leaving work, defendant took the pistol out of his book bag and put it in his waistband before going to the marital home.   At first, defendant and his wife sat in the kitchen and talked.  When their son, Christopher, walked into the kitchen, defendant asked his wife to follow him to the bedroom so that they could continue the discussion in private.  After going into the bedroom and locking the door, defendant and his wife were heard yelling and swearing at one another.  Christopher then heard his mother scream and a shot.  After making his way to the bedroom, Christopher saw his mother lying, bloody, on the floor.  Defendant’s daughter called 911 and operators could hear defendant yelling, “She was f–cking cheating on me, she was cheating on me for one year” in the background.

Defendant gave a statement to police in which he admitted that he had the gun with him when he went to the bedroom, but that he had no intent to kill Kathy.   In the bedroom, he begged his wife to stay with him, but his wife’s only response was that he would be getting his walking papers.  Kathy then struck defendant on the face with a single blow.  Defendant stated that he did not remember withdrawing the gun from his waistband, pulling the trigger, or what he did with the handgun after shooting his wife. 

The main issue on appeal concerned an incorrect instruction given to the jury on passion/provocation manslaughter.  In New Jersey, for a murder to be reduced to manslaughter on account of passion or provocation, four factors must be present: (1) the provocation must be adequate; (2) the defendant must not have had time to cool off between the provocation and the slaying; (3) the provocation must have actually impassioned the defendant; and (4) the defendant must not have actually cooled off before the slaying.  If the prosecution can prove, beyond a reasonable doubt, the absence of any one of these factors in a homicide that was done with purpose or intent, the defendant should be found guilty of murder.  In the present case, reading the model jury charge in effect at the time, with respect to the third factor, the judge charged the jury: “In other words, you must determine whether the State has proven that the time between the provoking event and the acts which caused death was inadequate for the return of a reasonable person’s self-control.”  The State’s burden is actually to prove that the period of time was adequate for the return of a reasonable person’s self-control, not inadequate. 

The question for the Court was whether, within the context of the trial, the error had the clear capacity to lead the jury to convict the defendant of murder, a result it might not have otherwise reached.  The Court first noted that an isolated error in a jury charge must be viewed in the context of the entire jury charge.  In this case, the third passion/provocation factor was explained to the jury four times.  Out of the four times, it was only stated incorrectly once and was stated correctly the other three times. 

The Court also looked at several other factors to determine whether the error was capable of harm.  First, the Court noted that there is no presumption of reversible error in this case because the deliberation regarding the third passion/provocation factor was not crucial to the jury’s deliberation.  The factor that both the prosecution and the defense focused most on in trying to determine whether this case was murder or manslaughter was the factor of whether there was adequate provocation.  Defense conceded to the jury that a slap did not constitute adequate provocation.  Therefore, the question of whether an adequate time to cool off had passed between the slap and the gunshot was irrelevant to the jury’s deliberation.  The prosecutor, during her summation, also argued that “there is no adequate provocation in this case,” indicating that as the factor targeted by the prosecution for taking this case out of manslaughter and into murder.

Another factor the Court looked at was the relative strength of the evidence of passion/provocation manslaughter.  The Court noted that in this case lack of proof of passion/provocation posed a critical weakness in the passion/provocation evidence.  The Court noted that adequate provocation is never satisfied by words alone.   Similarly, a single slap to the face is inadequate to constitute an adequate provocation.  On the contrary, the defendant brought a loaded gun to the house that night and his response to his wife’s threats to divorce him was disproportional.

Next, the Court looked at whether any of the jury’s questions revealed an indication that the jury was misled by the error.  None of the jury’s questions in this case suggested any confusion as to what the State had to prove beyond a reasonable doubt regarding passion/provocation manslaughter in order to secure a conviction of murder.  Finally, the Court noted that counsel’s failure to object to the charge at trial was a further indication that the charge lacked any prejudicial effect.  Accordingly, the Court held that the error in the jury charge was harmless and upheld Mr. Docaj’s conviction for murder.

Anyone charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for a consultation.  Criminal charges usually have serious consequences and should not be taken lightly.  The guidance of a New Jersey criminal defense lawyer can be crucial during this difficult time.