SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized).

State v. Lee Funderburg (a/k/a Lee E. Funderburg) (A-29-14) (074760)

Argued March 1, 2016 -- Decided May 5, 2016

FERNANDEZ-VINA, J., writing for a unanimous Court.

In this appeal concerning a jury trial for first-degree attempted murder, the Court considers whether a trial 

court erred by failing to charge the jury sua sponte on the lesser-included offense of attempted passion/provocation 

manslaughter.

Defendant Lee Funderburg had a romantic relationship with Terra Andrews, which resulted in the birth of a 

son. After the relationship ended, defendant and Andrews shared parenting responsibilities for their child. Later, 

Andrews began dating Leno Parham. After Andrews and Parham had been dating for about one year, Parham and 

defendant developed a somewhat tense relationship, and the two exchanged angry words. Defendant and Parham 

did not interact again until February 3, 2009, when Andrews and Parham arrived at defendant’s house to pick up the 

baby. As Parham buckled the baby into his car seat, defendant reached into Andrews’s parked car and took the keys 

out of the ignition. Andrews and defendant began arguing, and Parham intervened on Andrews’s behalf. Parham 

chased defendant for ten to fifteen minutes in an effort to reclaim Andrews’s keys. At some point, defendant

brandished a knife. After giving up the chase, Parham leaned against the car, at which point defendant lunged at 

him and punched him several times in the chest. Defendant’s father and brother, who were nearby, intervened to 

separate the men. When Parham stepped away, he realized he had been stabbed and immediately sought medical 

attention. He sustained life-threatening injuries and underwent major surgery but survived.

Defendant was arrested and charged with attempted murder and aggravated assault, as well as related 

weapons charges. At defendant’s trial, defense counsel’s theory of the case was that defendant pulled out a knife 

after Parham began chasing him because defendant was fearful and wanted the chase to stop. Defense counsel 

asserted that defendant did not intentionally stab Parham when he lunged at him; rather, he contended that Parham 

was accidentally stabbed during a chaotic struggle for control of the knife. 

After closing arguments, counsel for both parties met with the judge to discuss the final jury charges. All 

counsel agreed that it was necessary to instruct the jury on a number of lesser-included offenses to aggravated 

assault. However, neither party requested that a charge of attempted passion/provocation manslaughter be provided 

as a lesser-included offense of attempted murder. Accordingly, the judge instructed the jury on a number of lesserincluded offenses to aggravated assault, but did not deliver a charge for the lesser-included offense of attempted 

passion/provocation manslaughter. The jury found defendant guilty on all counts.

Defendant appealed and the Appellate Division reversed the trial court’s decision. The panel held that the 

trial court had failed to instruct the jury on the lesser-included offense of attempted passion/provocation 

manslaughter, and remanded the case for a new trial. The Court granted the State’s petition for certification. 220 

N.J. 268 (2015).

HELD: Defendant was not entitled to a jury instruction on attempted passion/provocation manslaughter because the 

facts before the trial court did not clearly indicate that the elements of attempted passion/provocation manslaughter 

were present. In particular, there was insufficient evidence before the jury to demonstrate that a reasonable person in 

defendant’s position would have been adequately provoked by the victim’s behavior.

1. The appropriate time to object to a jury charge is “before the jury retires to consider its verdict.” R. 1:7-2. When 

a defendant fails to object to an error or omission at trial, as in this case, appellate courts review for plain error. 

Under that standard, courts disregard any alleged error unless it is of such a nature as to have been clearly capable of 

producing an unjust result. To warrant reversal, an error must be sufficient to raise a reasonable doubt as to whether 

the error led the jury to a result it otherwise might not have reached. (pp. 16-17)
2

2. Attempted passion/provocation manslaughter is comprised of four elements: (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. The first two criteria are objective, and the latter two are subjective. To satisfy the first element 

of attempted passion/provocation manslaughter, a jury must conclude that a reasonable person in the defendant’s 

position would have been provoked sufficiently to arouse the passions of an ordinary man beyond the power of his 

control. The generally accepted rule is that words alone, no matter how offensive or insulting, do not constitute 

adequate provocation to reduce murder to manslaughter. (pp. 17-18). 

3. Although a trial court is vested with discretion in delivering jury instructions, some of the trial court’s decisions, 

such as the charging of lesser-included offenses, are governed by statute. To justify a lesser-included offense 

instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well 

as to convict the defendant of the lesser, unindicted offense. N.J.S.A. 2C:1-8(e). When the parties to a criminal 

proceeding do not request that a lesser-included offense be charged, the charge should be delivered to the jury only 

where the facts in evidence clearly indicate the appropriateness of that charge. For a trial court to be required to 

charge a jury sua sponte on attempted passion/provocation manslaughter, the court must find first that the two 

objective elements of the offense are clearly indicated by the evidence. (pp. 18-20)

4. Here, defendant was not entitled to a jury instruction on attempted passion/provocation manslaughter because 

there was insufficient evidence that a reasonable person in defendant’s position would have been adequately 

provoked by Parham’s behavior. Parham’s chase did not threaten defendant, and there was insufficient evidence to 

suggest that Parham wielded the knife. Even if the jury credited testimony by defendant’s father that Parham 

revealed the knife first, the statement would at most support the theory that defendant acted in self-defense; it would 

likely not support a theory that defendant was actually impassioned and intended to kill Parham. Since the first 

objective prong of attempted passion/provocation manslaughter cannot be satisfied by the testimony presented at 

defendant’s trial, there is no need to consider whether a reasonable person in defendant’s position would have had 

time to cool off between the provocation and the slaying. An instruction for the lesser-included offense would have 

been unwarranted. (pp. 20-22)

5. The Court’s holding reaffirms the principle that a trial court does not have “the obligation on its own 

meticulously to sift through the entire record in every murder trial to see if some combination of facts and inferences 

might rationally sustain a manslaughter charge.” State v. Choice, 98 N.J. 295, 299 (1985). It is only when the facts 

“clearly indicate” the appropriateness of an attempted passion/provocation manslaughter charge that the duty of the 

trial court arises. It is not improper for a trial court to withhold instruction on attempted passion/provocation 

manslaughter when there is no evidence that would clearly indicate the appropriateness of that charge. (pp. 22-23)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to reinstate 

defendant’s conviction.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON

join in JUSTICE FERNANDEZ-VINA’s opinion. JUDGE CUFF (temporarily assigned) did not participate.
1

SUPREME COURT OF NEW JERSEY

A-29 September Term 2014

074760

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

LEE FUNDERBURG (a/k/a LEE E. 

FUNDERBURG),

Defendant-Respondent.

Argued March 1, 2016 – Decided May 5, 2016

On certification to the Superior Court, 

Appellate Division.

William P. Fisher, Acting Assistant 

Prosecutor, argued the cause for appellant 

(Angelo J. Onofri, Acting Mercer County 

Prosecutor, attorney).

Stephen W. Kirsch, Assistant Deputy Public 

Defender, argued the cause for respondent 

(Joseph E. Krakora, Public Defender, 

attorney).

Jennifer E. Kmieciak, Deputy Attorney 

General, argued the cause for amicus curiae

Attorney General of New Jersey (John J. 

Hoffman, Acting Attorney General, attorney).

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

This appeal presents the question of whether, in the 

context of a jury trial for first-degree attempted murder, a 

trial court erred by failing to charge the jury sua sponte on 
2

the lesser-included offense of attempted passion/provocation 

manslaughter.

The facts in this appeal were established at trial. 

Defendant Lee Funderburg and Terra Andrews had previously been 

in a romantic relationship, and they continued to share 

parenting responsibilities for their two-year-old son even after 

they stopped dating. Funderburg had a tense relationship with 

Andrews’s new boyfriend, Leno Parham, and they had previously 

exchanged angry words. On February 3, 2009, an argument ensued 

between Funderburg and Parham when Andrews arrived with her 

boyfriend to pick up the baby from Funderburg’s house. 

Funderburg removed the keys from the ignition of Andrews’s car. 

Parham chased Funderburg for ten to fifteen minutes in an effort 

to reclaim the keys. Several eyewitnesses testified that, at 

some point before or during the chase, Funderburg brandished a 

knife. After giving up the chase, Parham leaned against the 

car, at which point Funderburg lunged at Parham and punched him 

several times in the chest. Funderburg’s father and brother, 

who were nearby, also got involved in the tussle, ostensibly in 

an effort to separate the men. When Parham stepped away, he 

realized he had been stabbed and immediately sought medical 

attention. He sustained life-threatening injuries and underwent 

major surgery but survived. 
3

Funderburg was arrested later that evening and charged with 

attempted murder and aggravated assault, as well as related

weapons charges. At Funderburg’s trial, the judge instructed 

the jury on a number of lesser-included offenses to aggravated 

assault. However, counsel did not request a charge for the 

lesser-included offense of attempted passion/provocation 

manslaughter, and the charge was not delivered to the jury.

We now address whether it was error for the trial judge to 

fail to charge the jury sua sponte on the lesser-included 

offense of attempted passion/provocation manslaughter. We hold 

that Funderburg was not entitled to a jury instruction on 

attempted passion/provocation manslaughter because the facts 

before the trial court did not clearly indicate that the 

elements of attempted passion/provocation manslaughter were 

present. In particular, there was insufficient evidence before 

the jury to demonstrate that a reasonable person in Funderburg’s 

position would have been adequately provoked by Parham’s 

behavior.

Our holding today reaffirms that a trial court does “not 

. . . have the obligation on its own meticulously to sift 

through the entire record in every murder trial to see if some 

combination of facts and inferences might rationally sustain a 

manslaughter charge.” State v. Choice, 98 N.J. 295, 299 (1985).

Because the Appellate Division here improperly sifted through 
4

the cold appellate record and constructed a hypothetical and 

factually unsupported scenario in which Funderburg might have 

conceivably been adequately provoked, we are compelled to 

reverse and remand with instructions to reinstate Funderburg’s 

conviction.

I.

Defendant Lee Funderburg had a romantic relationship with 

Terra Andrews, which resulted in the birth of a son. Shortly 

thereafter, Funderburg and Andrews stopped dating but continued 

to share parenting responsibilities. Later, Andrews began 

dating Leno Parham, the victim. Parham routinely accompanied 

Andrews to Funderburg’s residence to pick up the baby. However, 

after Andrews and Parham had been dating for about one year, 

Parham and Funderburg developed a somewhat tense relationship.

Several weeks before the altercation that resulted in 

Parham’s stabbing, Parham and Funderburg exchanged hostile words 

by telephone. Parham informed Funderburg that he was going to 

“come see him shortly” in person. On the way to Funderburg’s 

house, Parham spoke to Funderburg’s mother by telephone and

informed her that he was planning to fight her son. When Parham 

arrived at Funderburg’s house (which Funderburg shared with his 

mother, father, and brother), Funderburg came outside and 

exchanged angry words with Parham. Funderburg briefly retreated 
5

into the house and returned with a knife. The police arrived, 

and Parham left the scene.

Funderburg and Parham did not interact again until February 

3, 2009. In the late afternoon, Parham received a call from 

Andrews. Andrews asked Parham if he would accompany her to 

Funderburg’s house to pick up her son, who was then about two 

years old. Parham agreed, and Andrews picked him up in her car.

Both then drove to Funderburg’s house. Most of the trial 

witnesses testified that it was beginning to snow that 

afternoon.

Upon arriving, Andrews pulled her car into the driveway and

got out to pick up her son while Parham stayed behind in the 

passenger seat. Funderburg emerged from inside the house but 

did not bring the child with him. Shortly thereafter, 

Funderburg’s brother Jamaal Funderburg1 came out of the house, 

holding the baby. Andrews tried to retrieve her son from 

Jamaal, but was unable to do so. Parham then exited the car, 

took the baby from Jamaal, and began to place the baby into a 

car seat in the backseat.

As Parham buckled the baby into the car seat, Funderburg 

reached into the driver’s side of the parked car and took the 

 

1 Because the defendant and his family members share the same 

last name, we refer to the defendant’s family members by their

first names. We intend no disrespect by this practice.
6

keys out of the ignition. Andrews and Funderburg began arguing. 

Funderburg was upset that Andrews brought Parham over every time 

she came to pick up their son, and Andrews was upset that she 

was being prevented from leaving. Parham intervened on 

Andrews’s behalf and began to chase Funderburg around the car in 

an attempt to recover the car keys. The snow on the ground made 

pursuit more difficult. Funderburg evaded Parham for about ten 

to fifteen minutes. Andrews and Jamaal both stood nearby but 

did not participate in the chase.

Several eyewitnesses -- including Andrews, Parham, and 

Jamaal -- testified that Funderburg brandished a knife.

However, Parham gave conflicting statements as to when the knife 

appeared. Parham told police several days after the incident 

that Funderburg brandished the knife after Parham began chasing 

him to obtain the car keys. At trial, Parham indicated that 

Funderburg brandished the knife before the chase began.

Parham eventually stopped chasing Funderburg and knocked on 

Funderburg’s front door, hoping to persuade Funderburg’s mother 

to entreat Funderburg to return the car keys. Finding no one 

home, Parham walked into the street and asked Funderburg and 

Jamaal if they wanted to fight; they did not respond. Parham 

walked back to the car and leaned against it, and Funderburg and 

Jamaal both approached him. Parham and Funderburg continued to 

argue verbally for several minutes and the confrontation 
7

continued to escalate. Parham testified that Funderburg held 

the knife in his hand, but he did not believe Funderburg would 

use it. Meanwhile, Funderburg’s parents arrived at home by car

and parked in front of their house. Funderburg’s father Leroy

approached the men as they stood arguing next to Andrews’s car.

According to Parham, Funderburg then lunged at him and 

punched him several times in the chest. Jamaal and Leroy got 

involved, and both testified that they intervened to restrain 

Funderburg and Parham from one another. However, Parham 

testified that Jamaal and Leroy helped to pin Parham against the 

car as Funderburg assaulted him. Parham struggled with 

Funderburg for control of the knife, and it eventually was 

dropped onto the ground.

Parham testified that he stepped away from the car and

immediately began feeling “woozy.” He noticed two spots on his 

shirt and realized he had been hurt and was bleeding. He walked 

into the street and flagged down a passing motorist in a van, 

who immediately agreed to drive him to the hospital upon seeing 

his injuries. He was in critical condition when he arrived, but 

after emergency surgery and transfer to a trauma center, doctors 

were able to successfully treat him for two stab wounds to the 

chest, which had resulted in a laceration to the right ventricle 

of his heart and a perforated lung. Parham was discharged from 

the hospital one week later.
8

Funderburg left the scene of the altercation shortly before 

police arrived. He returned about two hours later, and was 

arrested after declaring to officers, “I’m the one you are 

looking for.” The officers read Funderburg his Miranda rights, 

and began to secure him in the police vehicle. As he was being 

secured, Funderburg was questioned about the knife. He told 

officers he had tossed the knife into a bush near the front 

porch of his home. However, officers were unable to locate the 

knife at the scene or in the vicinity afterwards.

The witnesses’ accounts differed as to the features of the 

knife that was used in the assault. Andrews stated the knife 

had a silver blade about four inches long, but she could not 

describe its handle. Parham stated that the knife’s handle was 

black with a silver blade about five inches long. Funderburg’s 

father Leroy stated that the knife looked like a “carpet knife” 

with a blue or green handle and a blade about one inch long. 

Funderburg’s brother Jamaal stated that he saw a box-cutter with 

a green handle about four inches long and a silver blade.

II.

Funderburg was indicted by a Mercer County grand jury on 

five counts: first-degree attempted murder, contrary to 

N.J.S.A. 2C:11-3(a)(1) and (2) and N.J.S.A. 2C:5-1 (Count One); 

second-degree aggravated assault, contrary to N.J.S.A. 2C:12-

1(b)(1) (Count Two); third-degree aggravated assault, contrary 
9

to N.J.S.A. 2C:12-1(b)(2) (Count Three); third-degree possession 

of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-

4(d) (Count Four); and fourth-degree unlawful possession of a 

weapon, contrary to N.J.S.A. 2C:39-5(d) (Count Five).

The State’s case against Funderburg proceeded to trial in 

January 2011. The State presented testimony from a number of

witnesses, including Parham, Andrews, the motorist who drove 

Parham to the hospital, a neighbor of the Funderburgs, two of 

Parham’s doctors, and officers who responded to the scene.

Funderburg’s brother, Jamaal, and his father, Leroy, both

testified in Funderburg’s defense. Jamaal testified that he did 

not know who had the weapon initially, but said that it 

eventually ended up in Parham’s hand during the struggle. 

Jamaal testified that Parham tossed the knife as he was walking 

away from the fight and into the street, where he flagged down 

the passing van and left.

Leroy was the only witness to testify that Parham held the 

knife first. Leroy testified that he saw Parham pull out a

knife as he was leaning against the car and before Funderburg 

lunged at Parham. Leroy explained that he got involved to 

separate Funderburg from Parham. He testified that he saw 

Parham toss a knife into the bushes after the scuffle, just 

before getting into the van that took him to the hospital. 

Leroy was also the only witness who denied that it was snowing 
10

on the afternoon of February 3, 2009; he stated that the weather 

was cold but dry that day.

In closing arguments, Funderburg’s defense counsel 

presented his theory of the case: Funderburg pulled out a knife 

after Parham began chasing him because he was fearful and wanted 

the chase to stop. Defense counsel asserted that Funderburg did 

not intentionally stab Parham when he lunged at him; rather, he 

contended that Parham was accidentally stabbed during a chaotic 

struggle for control of the knife.

After closing arguments, counsel for both parties met with 

the judge to discuss the final jury charges. All counsel agreed 

that it was necessary to instruct the jury on a number of 

lesser-included offenses to aggravated assault. The judge 

provided instructions on lesser-included offenses, including 

aggravated assault, attempted serious bodily injury aggravated 

assault, significant bodily injury aggravated assault, bodily 

injury with a deadly weapon aggravated assault purposely or 

knowingly caused, recklessly causing bodily injury with a deadly 

weapon, simple assault, simple assault without the use of a 

deadly weapon, and attempt to cause bodily injury. However, 

neither party requested that a charge of attempted 

passion/provocation manslaughter be provided to the jury as a 

lesser-included offense of attempted murder. After several days
11

of deliberations, the jury found Funderburg guilty on all 

counts.

In January 2012, Funderburg appeared for sentencing. After 

merging various charges,2 the court sentenced him to an aggregate 

term of thirteen years of incarceration.

Funderburg appealed his conviction in July 2012. After 

hearing oral argument in May 2014, the Appellate Division 

reversed the trial court’s decision in an unpublished per curiam 

opinion. The appellate court held that the trial court had 

failed to instruct the jury on the lesser-included offense of 

attempted passion/provocation manslaughter, and remanded the 

case for a new trial. The State thereafter filed a petition for 

certification, which we granted. State v. Funderburg, 220 N.J.

268 (2015).

III.

A.

Funderburg argues that the Appellate Division properly 

reversed and remanded his case for a new trial. He contends 

that a jury instruction on attempted passion/ provocation 

 

2 Funderburg’s sentence is not at issue in this appeal. We note 

briefly that the sentencing judge improperly merged some of 

Funderburg’s weapons charges in violation of our instructions in

State v. Diaz, 144 N.J. 628, 636 (1996). This was error but had 

no net effect on Funderburg’s sentence. The Appellate Division 

properly remanded for correction of the judgment of conviction

to address this error.
12

manslaughter should have been given by the trial judge sua 

sponte, and urges that the failure to do so constituted plain 

and reversible error. 

Funderburg relies on case law providing that the trial 

judge has a duty to instruct the jury on any lesser-included 

offense for which a rational basis is “clearly indicate[d]” by 

the record. See, e.g., State v. Jenkins, 178 N.J. 347, 361

(2004) (“[A] trial court has an independent obligation to 

instruct on lesser-included charges when the facts adduced at 

trial clearly indicate that a jury could convict on the lesser 

while acquitting on the greater offense.”); see State v. Powell, 

84 N.J. 305, 318 (1980) (holding that trial court has “duty . . 

. in a murder case to charge the applicable law to the jury 

based upon the facts regardless of what requests counsel may 

make”).3 He also cites State v. Robinson, 136 N.J. 476, 488-89 

(1994), in which we held that attempted passion/provocation 

manslaughter is a lesser-included offense of attempted murder. 

Funderburg contends that a trial judge must sua sponte 

instruct the jury on attempted passion/provocation manslaughter

whenever the objective evidence presented at trial clearly 

 

3 Funderburg argues that counsel requested that all lesserincluded offenses be charged to the jury. However, that 

statement was in the context of a discussion involving 

aggravated assault and cannot be read to include a request for 

an attempted passion/provocation manslaughter charge.
13

indicates both (1) reasonable and adequate provocation and (2) a 

lack of cooling-off time. See State v. Mauricio, 117 N.J. 402, 

411 (1980). He emphasizes that the jury could have found that a 

reasonable person in his position would have been adequately

provoked by Parham’s actions, and that such a person would have 

had insufficient time to “cool off” before the physical 

altercation took place.

B.

In opposition, the State urges us to reverse the Appellate 

Division decision and reinstate defendant’s convictions. The 

State first contends that there was no evidence in the record to

“clearly indicate” that an instruction on attempted

passion/provocation manslaughter was warranted. It contends 

that the Appellate Division improperly sifted through the record 

to find a combination of facts and inferences that would have 

supported a manslaughter charge at the trial level, even though 

the trial court was not required to perform such a timeintensive activity. 

Next, the State submits that neither of the two objective 

elements of attempted passion/provocation manslaughter 

articulated in Mauricio, supra, were present. The State argues

that the facts presented by Funderburg’s witnesses were not 

sufficient to support an inference that there was reasonable and 

adequate provocation, since Funderburg initiated both the 
14

confrontation in the driveway and the physical contact that 

resulted in Parham’s stabbing. The State urges that even the

foot chase initiated by Parham was not adequate provocation. It

notes that Parham’s chase was preceded by verbal negotiation, 

which Funderburg rejected. As such, the State asserts that 

there was no need for “cooling-off” time, since Parham’s actions 

would not have provoked a reasonable person in Funderburg’s 

situation.

Finally, the State notes that a jury instruction on 

attempted passion/provocation manslaughter would have 

contradicted defense counsel’s theory of the case that 

Funderburg pulled out his knife in fear when Parham began 

chasing him. The State points out that a jury instruction 

proposing that Funderburg acted out of passion or provocation 

would indicate that Funderburg in fact intended to injure Parham

-- not that Funderburg was trying to defend himself, as 

Funderburg’s counsel argued in his closing statement.

C.

The Attorney General (“AG”) participates in this appeal as 

amicus curiae and supports the State’s arguments. The AG 

submits that the Appellate Division improperly substituted its 

own judgment for that of the trial judge when it sifted through 

the record to find support for a lesser-included offense that 

defendant did not request. The AG cites State v. Denofa, 187 
15

N.J. 24, 42 (2006), for the proposition that trial courts are 

required to give sua sponte jury instructions only when the 

evidence presented in a case “jump[s] off the page.” Here, the 

AG argues that the Appellate Division cherry-picked several 

factual references from the record in support of a potential 

verdict on attempted passion/provocation manslaughter, thereby

focusing on the cold appellate record rather than the trial 

judge’s first-hand knowledge of the case. 

The AG also contends that no reversible error occurred at 

Funderburg’s trial. The AG submits that a presumption of 

reversible error for a trial court’s omission or incomplete 

instruction to the jury would produce needless extra work for 

the State, and would undermine the integrity of the judicial 

process by disrupting the finality of jury verdicts. The AG 

also urges that such a presumption could encourage defendants to

remain silent at trial and later seek a second bite at the 

proverbial apple when a judge fails to render a complete 

instruction.

Finally, the AG urges that the evidence adduced at 

Funderburg’s trial was not enough to warrant an instruction on 

attempted passion/provocation manslaughter, because none of the 

witnesses testified believably that Funderburg acted in selfdefense when he stabbed Parham. The AG contends that having 

insufficient evidence of self-defense is tantamount to having 
16

insufficient evidence to support a charge of manslaughter, since 

a manslaughter charge may be warranted when a defendant has an

“honest but unreasonable belief in the necessity to resort to 

force in self-defense.” See Model Jury Charges (Criminal), 

Justification - Self Defense in Self Protection 1 n.1 (revised 

June 13, 2011). The AG notes that defense counsel conceded to 

the judge that there was no basis upon which to charge the jury 

on self-defense, since Funderburg did not testify.4 

IV.

A.

The appropriate time to object to a jury charge is “before 

the jury retires to consider its verdict.” R. 1:7-2. Here, 

Funderburg did not object to the absence of the attempted 

passion/provocation manslaughter charge at any point prior to 

his appeal. When a defendant fails to object to an error or 

omission at trial, we review for plain error. Under that

standard, we disregard any alleged error “unless it is of such a 

nature as to have been clearly capable of producing an unjust 

result.” R. 2:10-2; see also State v. Robinson, 165 N.J. 32, 47

(2000) (citations omitted). The mere possibility of an unjust 

result is not enough. See State v. Jordan, 147 N.J. 409, 422

 

4 The record reflects that Funderburg unjustifiably absented 

himself from the last day of trial, and his defense counsel was 

therefore unable to call Funderburg as a witness in his own 

defense, although he had planned for Funderburg to testify.
17

(1997). To warrant reversal by this Court, an error at trial 

must be sufficient to raise “a reasonable doubt . . . as to 

whether the error led the jury to a result it otherwise might 

not have reached.” Jenkins, supra, 178 N.J. at 361 (citation 

omitted). 

B.

In Robinson, supra, we recognized for the first time that 

attempted passion/provocation manslaughter is a cognizable 

offense under the New Jersey Code of Criminal Justice codified 

in Title 2C. 136 N.J. at 486. Under that provision, an

intentional homicide that would otherwise be murder may be 

mitigated to manslaughter when it is “committed in the heat of 

passion resulting from a reasonable provocation.” N.J.S.A.

2C:11-4(b)(2); see Mauricio, supra, 117 N.J. at 411. However, 

in recognizing the crime, we predicted that it would likely 

“remain unfamiliar, because there are few instances in which a 

defendant charged with attempted homicide will want to raise 

before a jury the argument that he or she actually intended to 

kill.” Robinson, supra, 136 N.J. at 493.

In our jurisprudence, attempted passion/provocation 

manslaughter is comprised of four elements: “[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 
18

defendant; and [4] the defendant must not have actually cooled 

off before the slaying.” Mauricio, supra, 117 N.J. at 411 

(citation omitted). The first two criteria are objective, and 

the latter two are subjective. Ibid.

To satisfy the first element of attempted 

passion/provocation manslaughter, a jury must conclude that a 

reasonable person in the defendant’s position would have been

provoked sufficiently to “arouse the passions of an ordinary man 

beyond the power of his control.” State v. King, 37 N.J. 285, 

301-02 (1962). “The generally accepted rule is that words 

alone, no matter how offensive or insulting, do not constitute 

adequate provocation to reduce murder to manslaughter.” State 

v. Crisantos, 102 N.J. 265, 274 (1986) (citations omitted).

C.

A trial court is vested with discretion in delivering the

jury instructions that are most applicable to the criminal 

matter before it. See, e.g., State v. Ernst, 32 N.J. 567, 583-

84 (1960) (“[A] trial judge in his discretion may give [a jury] 

charge in any situation in which he reasonably believes a jury 

may find a basis for its application.” (citing Hargrave v. 

Stockloss, 127 N.J.L. 262, 266 (E. & A. 1941))), cert. denied, 

364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961).

However, some of the trial court’s decisions, such as the 

charging of lesser-included offenses, are governed by statute. 
19

N.J.S.A. 2C:1-8 provides that a trial court “shall not charge 

the jury with respect to an included offense unless there is a 

rational basis for a verdict convicting the defendant of the 

included offense.” N.J.S.A. 2C:1-8(e). Thus, “to justify a 

lesser included offense instruction, a rational basis must exist 

in the evidence for a jury to acquit the defendant of the 

greater offense as well as to convict the defendant of the 

lesser, unindicted offense.” State v. Savage, 172 N.J. 374, 396 

(2002) (citation omitted); see also Denofa, supra, 187 N.J. at 

41-42 (citations omitted).

When the parties to a criminal proceeding do not request 

that a lesser-included offense such as attempted 

passion/provocation manslaughter be charged, the charge should 

be delivered to the jury only when there is “obvious record 

support for such [a] charge . . . .” Powell, supra, 84 N.J. at

319. A trial court should deliver the instruction sua sponte

“only where the facts in evidence ‘clearly indicate’ the 

appropriateness of that charge.” Savage, supra, 172 N.J. at 397 

(citing Choice, supra, 98 N.J. at 298) (further citations 

omitted). A trial court need not “scour the statutes to 

determine if there are some uncharged offenses of which the 

defendant may be guilty.” State v. Brent, 137 N.J. 107, 118 

(1994) (quoting State v. Sloane, 111 N.J. 293, 302 (1988)) 

(further citations omitted). Nor does the trial court have “the 
20

obligation on its own meticulously to sift through the entire 

record in every murder trial to see if some combination of facts 

and inferences might rationally sustain” a lesser charge like

manslaughter. Choice, supra, 98 N.J. at 299. “Only if the 

record clearly indicates a lesser-included charge -- that is, if 

the evidence is jumping off the page -- must the court give the 

required instruction.” Denofa, supra, 187 N.J. at 42 (citations 

omitted).

For a trial court to be required to charge a jury sua 

sponte on attempted passion/provocation manslaughter, the court 

“must find first that the two objective elements of [the 

offense] are clearly indicated by the evidence.” Robinson, 

supra, 136 N.J. at 491. “If they are, the two subjective 

elements should ‘almost always be left for the jury.’” Id. at 

490 (citing Mauricio, supra, 117 N.J. at 413).

V.

Applying the law to the facts of this case, we conclude

that Funderburg was not entitled to a jury instruction on 

attempted passion/provocation manslaughter. We find that the 

facts before the trial court did not clearly indicate that the 

objective elements of attempted passion/provocation manslaughter 

were present. In particular, there was insufficient evidence 

before the jury that a reasonable person in Funderburg’s 
21

position would have been adequately provoked by Parham’s 

behavior. See Mauricio, supra, 117 N.J. at 411. Parham’s chase 

did not threaten Funderburg; it was simply an attempt to 

retrieve the car keys. The chase was preceded by verbal 

sparring, at which point Funderburg refused to return the keys. 

Thus, this interaction alone did not suggest adequate 

provocation. Beyond that, there was insufficient evidence to 

suggest that Parham had wielded the knife. At best, there was a 

disagreement among the witnesses about who first handled the 

knife that later stabbed Parham. Andrews and Parham both

testified that Funderburg was the first person to reveal a 

knife; Jamaal could not testify as to who revealed the knife. 

Only Funderburg’s father Leroy testified that Parham revealed 

the knife first. 

Even if the jury found Leroy’s testimony to be the most 

credible of all of the eyewitnesses, Leroy’s statement that 

Parham initially held the knife would at most support the theory 

that Funderburg acted in self-defense; it would likely not 

support a theory that Funderburg was actually impassioned and 

intended to kill Parham. Ultimately, there was insufficient 

evidence in the trial record to indicate that a reasonable 

person in Funderburg’s situation would have been adequately 

provoked.
22

Without sufficient evidence to suggest adequate 

provocation, there is no need to consider whether a reasonable 

person in Funderburg’s position would have had time to cool off 

between the provocation and the slaying. See ibid. Since the 

first objective prong of attempted passion/provocation 

manslaughter cannot be satisfied by the testimony presented at 

Funderburg’s trial, an instruction for the lesser-included 

offense would have been unwarranted. 

Our holding today reaffirms our earlier-stated principle 

that a trial court does not have “the obligation on its own 

meticulously to sift through the entire record in every murder 

trial to see if some combination of facts and inferences might 

rationally sustain a manslaughter charge.” Choice, supra, 98 

N.J. at 299. We decline to impose such a burdensome requirement 

on trial courts or suggest that every potential lesser-included 

offense must be charged to the jury. It is only when the facts 

“clearly indicate” the appropriateness of an attempted 

passion/provocation manslaughter charge that the duty of the 

trial court arises. See Robinson, supra, 136 N.J. at 489 

(citations omitted). “[U]nder our Code [of Criminal Justice,] 

it is improper for a trial court to charge manslaughter . . . if 

there is no evidence in the record to support a manslaughter 

conviction.” Crisantos, supra, 102 N.J. at 276 (citation 

omitted).
23

In reaching this conclusion, we emphasize that whether 

Funderburg instigated the fight that led to Parham’s stabbing is 

not relevant to the question before us. “The issue here is 

whether a reasonable person would have been provoked, not 

whether a reasonable person would have engaged in conduct that 

incited the alleged provocation.” Mauricio, supra, 117 N.J. at 

415. Since we conclude that a reasonable person in Funderburg’s 

position would not have been adequately provoked, the question 

of “who started it” does not affect our analysis.

Finally, we acknowledge that “correct jury charges are 

especially critical in guiding deliberations in criminal 

matters, [and] improper instructions on material issues are 

presumed to constitute reversible error.” Jenkins, supra, 178 

N.J. at 361 (citing Jordan, supra, 147 N.J. at 421-22). Our 

holding today is consistent with that pronouncement. It is not 

improper for a trial court to withhold instruction on attempted

passion/provocation manslaughter when there is no evidence that 

would clearly indicate the appropriateness of that charge. 

VI.

The judgment of the Appellate Division is reversed, and the 

matter is remanded to reinstate Funderburg’s conviction.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, 

PATTERSON, and SOLOMON join in JUSTICE FERNANDEZ-VINA’s opinion. 

JUDGE CUFF (temporarily assigned) did not participate.
SUPREME COURT OF NEW JERSEY

NO. A-29 SEPTEMBER TERM 2014

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

LEE FUNDERBURG (a/k/a LEE E. 

FUNDERBURG),

Defendant-Respondent.

DECIDED May 5, 2016

Chief Justice Rabner PRESIDING

OPINION BY Justice Fernandez-Vina

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY 

CHECKLIST REVERSE AND

REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUSTICE SOLOMON X

JUDGE CUFF (t/a) ------------------

TOTALS 6