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In charging a jury on passion/provocation manslaughter, Bergen County Superior Court Judge Patrick Roma got it right the other three times — good enough for the Appellate Division.
At the same time, the panel did agree that Gjelosh Do
Gjelosh Docajcaj should be resentenced for the crime for a separate error.
Roma apparently had used the word “inadequate” to describe the time it would take for return of self-control following provocation. Although he was wrong, the appeals judges called it a harmless error that didn’t affect the verdict.
However, they did say the judge erred in how he applied the No Early Release Act to Docaj.
Docaj and his wife of 20 years were in the middle of a divorce when he went to their former home and pleaded with her to change her mind.
At some point, he got her alone in a bedroom and shot her with a .38-caliber pistols while their children were in another room. The youngsters found her dead on the floor, shot once in the head.
“She was cheating on me….,” Docaj can be heard shouting during the 911 call. “She was cheating on me for one year.”
He later told police that things “went dark” after they argued and she slapped him. He said he couldn’t remember pulling the trigger.
During Docaj’s trial, Roma instructed the jury charges involving passion/provocation manslaughter which requires that prosecutors prove at least one of four factors were absent: The provocation was adequate, the defendant was actually impassioned, there was no time for the defendant to cool off and the defendant had not cooled off.
“In other words,” Roma said of the third action, “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 word should have been “adequate,” but the appeals judges said Roma noted three other times that the state had to prove that Docaj had “reasonable time” to cool off.
“Therefore, of the four references to the third factor and the State’s burden, one was erroneous and three were correct,” Marianne Espinosa wrote in the decision.
“This was, then, an error that was isolated rather than pervasive in this charge. …[T]he error here was but one iteration imbedded in a charge that contained three entirely correct articulations of the State’s burden regarding the third factor,” she wrote.
Espinosa also found a “critical” lack of proof that Docaj was provoked enough to satisfy the burden of meeting the four required standards.
For one thing, he was carrying a loaded gun. “His response to his wife’s refusal to abandon divorce proceedings, and even her slap, were wholly disproportionate to any provocation,” she wrote.
Bergen County Prosecutor John Molinelli agreed that a single word couldn’t have affected the verdict.
However, Public Defender Yvonne Smith Segars said her office plans to appeal to the state Supreme Court, insisting Docag was denied a fair trial.
“An untutored jury cannot make the correct decision regarding the standard for passion/provocation” when such an error is made, she said in a statement.
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