STATE OF NEW JERSEY VS. VIRGINIA A. VERTETIS (14-08-0797, MORRIS COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1687-17T2
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
VIRGINIA A. VERTETIS,
Defendant-Respondent.
Argued February 24, 2020 – Decided March 18, 2020
Before Judges Sabatino, Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 14-08-0797.
James K. Smith, Jr., Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; James K. Smith, Jr., of
counsel and on the briefs).
Paula Cristina Jordao, Assistant Prosecutor, argued the
cause for respondent (Frederic M. Knapp, Morris
County Prosecutor, attorney; Paula Cristina Jordao, on
the brief).
PER CURIAM
This case involves the shooting death of Patrick Gilhuley, a private
security worker and retired New York City police officer, by his estranged
significant other, defendant Virginia Vertetis.
The State contended defendant shot Gilhuley out of jealousy because he
dated multiple women. It further contended she acted out of anger because her
attempts to maintain their relationship through sex and threats had failed.
Defendant claimed she shot Gilhuley in self-defense after he had assaulted and
threatened to kill her in her home. After a month-long trial, the jury rejected
defendant's self-defense claim and convicted her of first-degree murder and
unlawful possession of a weapon.
On appeal, defendant challenges her conviction on the grounds that: (1)
the trial court failed to instruct the jury that she had no duty to retreat in her own
home (the "castle" doctrine) and instead told the jurors that she had a duty to
retreat that could nullify her claim of self-defense; (2) the court provided a
factually imbalanced N.J.R.E. 404(b) charge that unfairly favored the State; (3)
the court erroneously allowed hearsay testimony under N.J.R.E. 803(c)(3) and
provided an improper charge on the use of that evidence; (4) the prosecutor's
summation denied her a fair trial; and (5) she is entitled to a new trial on the
basis of cumulative error.
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For the reasons that follow, we reverse and remand for a new trial because
of critical flaws in the jury instructions on the central issue of self-defense.
I.
To provide context, especially for the key issues of intent and self-
defense, we discuss the evidence in considerable detail.
A.
The Couple's Relationship
Defendant, who was an elementary school teacher, and decedent began
dating in the spring of 2008. According to defendant, the relationship had its
"ups and downs" and the couple broke up and reconciled several times.
In early January 2014, after the couple took a short vacation to Las Vegas,
the relationship "plummeted." Defendant believed they were broken up, though
she hoped they could work through their problems. The couple continued to
communicate from January to February 2014. Defendant spent an extended
weekend at decedent's apartment in Staten Island in early February 2014. They
did not see each other again until March 3, 2014, the night that defendant shot
and killed him.
Decedent's Calls to His Daughter Jennifer on the Night of the Shooting
Just before 10:00 p.m. on March 3, 2014, police responded to a 9-1-1 call
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from decedent's adult daughter, Jennifer Gilhuley ("Jennifer").1 Her call was
prompted by a series of three brief calls that decedent had made to her while she
was at home in Staten Island. The first call came in at 9:38 p.m., the second at
9:40 p.m., and the third at 9:42 p.m.
When Jennifer answered the 9:38 p.m. call, she heard her father
"screaming 'She is hitting me. She is hitting me.'" Then he repeatedly yelled
"stop" before the call ended. Jennifer believed that he was referring to defendant
because he had told Jennifer in February 2014 that he was breaking up with
defendant and that she was not handling it well. Jennifer said that it was not
uncommon for her father and defendant to break up and get back together, but
this time he said it was "different."
Jennifer assumed her father was calling from his Staten Island apartment,
and she intended to quickly change her clothes and go there to help him. At
9:39 p.m. she sent him a text message saying: "I'm coming." Before Jennifer
had time to change, she received the 9:40 call. Decedent did not say anything
when Jennifer answered, but she heard yelling that sounded far away. This
second call lasted forty-four seconds before ending.
1
We use first names to make clear the references to the various family members
with common surnames and intend no disrespect.
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Two minutes later, at 9:42 p.m., Jennifer answered the third call. She
testified that it "sounded like he [decedent] was running, because he was out of
breath." According to Jennifer, she said: "Dad, I'm coming," and he said: "You
won't get here in time," which led her to believe he was not at his apartment.
She asked him if he was in New Jersey where defendant lived, and he said yes.
As she started to ask what he was doing there, she heard "three loud shots" and
her father say: "Holy shit. She is shooting." Then the call ended.
Jennifer's Actions After the Calls
Jennifer called 9-1-1 and reported that her father was having a dispute
with his girlfriend and that his girlfriend was shooting at him. She tried to call
her father, but he did not answer. At 10:01 p.m., she sent him a text message:
"The police are on their way." He did not respond.
Police Respond to Defendant's House
Several members of the Mount Olive Police Department, including
Sergeant Amy Clymer, Detective Hunter Guiles, and then-Officer (now
Detective) Eric Krouse arrived at defendant's house shortly after 10:00 p.m. As
they approached the front door, they saw a small black bag or briefcase, later
identified as decedent's, outside on the front step. There was a gunshot hole in
the front door and shattered glass on the step. Lights were on in an upstairs
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bedroom, the front foyer, and the kitchen, which was located behind the dining
room on the left side of the house. Detective Krouse saw someone walk past a
window in an upstairs bedroom. Seconds later, he and Sergeant Clymer saw a
female walk by the dining room window towards the kitchen. She appeared to
be holding a phone.
The officers forced open the front door and announced their presence.
Decedent's body was lying in the foyer between the door and the stairs to the
second floor. He was on his back, with his arms to his sides and his feet facing
the front door. The officers pushed him slightly to the side so they could enter.
His eyes were open, and he was fully clothed. On the stairs behind him was a
revolver, later identified as the service weapon he received when he first became
a police officer. Decedent had blood that was beginning to dry around his nose
and mouth, and his heart was not beating. According to Detective Guiles, it
"[f]elt like he had been there for a while." Sergeant Clymer attempted to
administer CPR and then called for paramedics.
As Detectives Krouse and Guiles secured the house, they found defendant
kneeling in a fetal position in the kitchen, holding a cordless telephone and
crying. They yelled for her to show her hands, but she did not respond. Guiles
physically restrained her on the ground and placed her in handcuffs .
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Unbeknownst to the officers, defendant had called 9-1-1 as they were entering
her home, and the 9-1-1 operator had answered the call as police arrested
defendant. The 9-1-1 recording captured defendant saying to police:
"Somebody was breaking into my (inaudible) . . . "
Guiles said: "Cuffs. Cuffs. Cuffs" as he placed defendant in handcuffs.
Then defendant said: "I didn't know he was coming into my house. I was . . ."
The recording ended, but defendant continued to say that she lived alone and
that she was upstairs asleep when someone broke into her house.
Paramedics arrived shortly after defendant was arrested. They were
unsuccessful in their attempt to revive decedent.
Defendant's Conduct at the Police Station
At 10:30 p.m., police placed defendant in a patrol car and transported her
to the police station. She wore pajama pants that were on backwards, a sports
bra and a sweater. She repeatedly asked about decedent and whether he was
okay, but no one gave her any information.
Defendant was initially held in the police station processing area where
she was handcuffed to a chair. A nurse examined her, and according to the
nurse's record, defendant did not say that she had been assaulted or that she was
in any pain. Defendant signed the nurse's report confirming it was accurate.
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At approximately 1:00 a.m., defendant was placed in an interview room
that had a table and chair with a video camera, which allowed police to watch
and record her movements and statements. She was not handcuffed while in this
room. She repeatedly asked about decedent and at one point said: "I just want
to die. That gun was meant for me . . . I loved [him] so much."
At another point, defendant sat in the chair and placed her hands and lower
arms under the table, out of the camera's view, and appeared to rub her lower
arms or the top of her legs. She also dipped a paper towel into a glass of water
and onto her tongue and rubbed the paper towel against her lower back as if to
wipe something away. Police asked her to stop rubbing her arms and wiping her
back, and she complied. Later testing showed decedent's blood on the paper
towel. Decedent's blood was also found on the waistband of defendant's pajama
pants, in the area where she had wiped the paper towel.
After defendant rubbed her arms or legs under the table, she asked police
to photograph her arms. At about 5:00 a.m., Detective Rosemary Cicerone-
Brown of the Morris County Sheriff's Office photographed various parts of
defendant's body, and the photos were shown to the jury. According to Detective
Cicerone-Brown, defendant had a few scratches on her face and back, scratches
on her arms, and slightly discolored skin under her chin.
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Defendant Taken to a Hospital and Then the County Jail
At approximately 2:00 p.m., police transported defendant to a hospital
because she requested her medication, and the police were not authorized to
administer it. Hospital staff asked defendant if she had been subjected to any
domestic violence, and she answered no. They asked if she was in any pain and
whether she had experienced pain in the last twenty-four hours, and she
answered no to both queries. Staff examined her neck and back and noted no
tenderness or complaints of soreness.
Thereafter, defendant was taken to the jail. Dolores Mann, defendant's
attorney at the time, requested permission to photograph her body as evidence
of her alleged injuries. Mann was not immediately granted permission, and it
was not until March 11, 2014, that her investigator was able to take the
photographs. All of them were shown to the jury and admitted as evidence.
Investigation of the House
Detective Supervisor Michael Gomez of the Morris County Prosecutor's
Office entered defendant's home shortly after the shooting. According to
Detective Gomez, the house was orderly, and nothing was broken except the
glass of the front storm door and a "car remote" or "key fob for a car," which
was on the floor next to decedent. Inside the right front pocket of decedent's
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jeans was his cellular phone. There was a blood stain above the pocket that held
the phone.
Inside the briefcase left outside the front door, police found two loaded
semi-automatic guns that belonged to decedent, along with condoms, Viagra,
and personal toiletry items. These two guns and the revolver on the step inside
the house were the only weapons found on the property that night. Defendant
and the State stipulated that all recovered shell casings came from the revolver.
Defendant testified that she did not know that decedent had brought his briefcase
with the guns to her house or that he had left them outside.
In the laundry room near the kitchen, the washing machine was running
and there was a spilled bottle of laundry detergent. Inside the washing machine
was a pair of pink pajama pants that matched the sports bra defendant had been
wearing. The pants had a yellow stain that was later examined for blood, but
the test was inconclusive.
In the kitchen, defendant's coat was hanging over a chair with her cellular
phone inside a pocket. Her pocketbook was on the kitchen table. Two empty
and four full beer bottles were on the counter.
In the master bedroom, which was directly to the left of the stairs on the
second floor, the bed was made but someone had pulled down one corner of the
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blankets. On the nightstand were various sex toys.
In the master bathroom, which was connected to the master bedroom,
police found a piece of chipped wood from the vanity on the floor, along with
one bullet. The shower and tub were wet, as if someone had recently run the
water.
Investigator Ryan's Findings
Howard Ryan, a Morris County Forensic Operations Specialist, testified
as the State's expert in crime scene and shooting reconstruction. According to
Ryan, on the sloped ceiling of the stairs that led to the second floor, there was
an "impact mark" that was consistent with a bullet hole. Police enlarged the
hole and determined that the bullet found in the bathroom had caused this hole
in the ceiling.
Gunpowder residue was found at the top of the stairs against the wall
closest to the master bedroom. Ryan believed that the gun that caused the
residue was shot in "close proximity" to the wall, because, he said that
gunpowder does not travel more than six-to-seven feet. There were also marks
on the lower part of the stairwell ceiling, apparently caused by a bullet that was
shot from the top of the stairs.
The wall of the foyer near the front door had a small hole where police
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recovered a bullet lodged in the drywall. Based on the shape of the entry hole,
Ryan determined that this bullet was "tumbling" when it entered the wall, which
meant that it had struck something before it entered the wall. Given the path the
bullet had traveled, Ryan believed that it, too, had been shot from the top of the
stairs.
Police also found a bullet hole in the front door. Ryan believed that bullet
traveled from the top of the stairs, through the front door, and out the storm
door, shattering the glass.
The Medical Examiner's Findings
The State's Medical Examiner, Ronald Suarez, M.D., examined decedent
on the day after the shooting. Dr. Suarez reported that decedent weighed 250
pounds and was six feet two inches tall. Decedent's eyes appeared normal, and
he had no bruises or injuries to his head or face. The toxicology report
concluded that decedent's blood alcohol level was .28 and that he had taken
Viagra.
Dr. Suarez recorded the following minor injuries he found on decedent's
body: a purple and yellow bruise on the right side of decedent's chest; a purple
bruise on the inside of his left arm; a red bruise on the ball of his lef t hand; an
abrasion on the ball of his right thumb; "little red bruises . . . on the back of the
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tips of the index and middle fingers of the left hand"; a "scrape with some
bruising" on the "back of the right elbow"; "questionable" bruising to the top of
his right shoulder; and a small red bruise above his right knee. Photos of his
injuries were shown to the jury as evidence.
Notably, decedent had four gunshot wounds on the upper part of his body.
Dr. Suarez could not determine the order in which those four bullets were shot,
or in which they had hit decedent. He designated them "Bullets A through D"
for the sake of identification, not based on order of entry.
According to Dr. Suarez, Bullet "A" entered the back of decedent's right
arm in the tricep region "a little bit above the elbow," traveled horizontally
through his bicep and exited the front bicep. This bullet completely shattered
decedent's elbow. According to Dr. Suarez, the injury would have rendered him
unable to use his right arm to hold a phone to his ear or place it into his pocket.
Bullet "B" entered decedent's back, five inches below the top of his right
shoulder and exited the front of his shoulder. It did not hit bone and stopped in
the chest cavity. The injuries it caused were not fatal, because soft tissue within
the chest cavity closed around the bullet and stopped it from causing serious
damage.
Bullet "C," however, caused what Dr. Suarez termed "immediate life[-
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]threatening injuries," which would have been "difficult to survive." This bullet
entered decedent's back five-and-one-half inches below the top of the right
shoulder. It exited the front of his body to the left at a downward angle. The
bullet fractured a rib, tore the top of the right lung, tore a main vein attached to
the heart and "one of the main air passages" to the left lung, "passed through the
main artery," which transports blood to and from the lung and heart, and traveled
through the space between the third and fourth ribs before exiting the front of
the body.
Lastly, bullet "D" grazed the middle of decedent's neck horizontally
without penetrating or perforating the skin. The bullet traveled from right to left
and back to front. Dr. Suarez testified on cross-examination that he could not
determine whether decedent was turning when this bullet grazed his neck. He
noted the shooting was "dynamic," in that decedent, defendant and the gun were
all moving in a very short period of time.
Decedent also had what appeared to be an abrasion that tore off part of the
top layer of skin on the thumb of his right hand. Dr. Suarez testified that this
wound "could be consistent with a graze wound" from a bullet, but he did not
opine in his report that it was so caused. He described it in his report only as an
"abrasion." If it was caused by a bullet, Dr. Suarez believed the bullet would
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have traveled from the front to the back of the hand.
Based upon all of this forensic evidence, Dr. Suarez concluded that
decedent died as a result of homicide caused by four gunshot wounds.
Ryan's Expert Opinions About the Bullets
Ryan testified that no bullet residue or "stippling" was found around the
bullet holes on decedent's jacket or on his skin, which led Ryan to believe the
gun that killed him was not fired at close range. Based on the nature of
decedent's injuries, Jennifer's testimony regarding his phone calls to her, and
phone records that corroborated her testimony, Ryan opined that the injuries
occurred while decedent was traveling down the stairs, holding his phone to his
ear.
Using string, Ryan plotted the flight path of the bullets fired from the top
of the stairs. He agreed with Dr. Suarez that one could not determine the exact
sequence of the shots, based on the evidence. A photograph of the strings
demonstrating the supposed flight path was shown to the jury.
Ryan saw no evidence that defendant was "on the defensive" when the
shooting occurred. In his opinion, the photographs of defendant taken shortly
after the shooting showed no "glaring injuries."
Ryan believed the graze wound to decedent's right hand was caused by a
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bullet. Using his own cell phone, Ryan demonstrated for the jury how the
injuries to the hand and neck would have occurred.2 Ryan testified that he could
not determine definitively which hand decedent had used to hold the phone.
However, he opined that the bullet flight path "line[d] up almost perfectly" if
decedent had held it with his right hand as he descended the stairs.
Ryan did not believe it plausible "at all" that decedent, as defendant
contended, was traveling up the stairs, holding the railing with his left hand and
reaching up towards defendant with his right hand when the bullet grazed his
thumb. If that were the case, decedent would have had to stretch his arm "all of
the way over here in front of him, in a very awkward position on a very confined
space on the stairwell." Ryan also did not believe that decedent was the person
who had placed the phone in his right pocket during or after the shooting, noting
that defendant "had a lot of time alone with the deceased" before police arrived.
Text Messages and Other Phone Call Evidence
Anthony Mauceri, a lieutenant from the Morris County Prosecutor's
Office, testified that between February 1, 2014 and March 4, 2014, defendant
and decedent had communicated many times by phone, and exchanged 384 text
2
We cannot tell from the transcripts exactly what movements Ryan
demonstrated.
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messages. The relevant voicemails and text messages were read into the record.
Many of these communications followed a pattern in which defendant was
professing her love for decedent while pleading with him to see her and talk to
her, decedent's refusing to reconcile while accusing defendant of "snooping" on
his phone and "harass[ing] everyone," and defendant insisting that she loved him
and accusing him of "killing" her, "crush[ing]" her and "constantly cheating" on
her. Defendant discussed with decedent the good times they had shared, and
television shows they had liked to watch together, sometimes sending a text to
remind him that certain shows were on the air.
About three weeks before the shooting, on February 10, 2014, defendant
asked decedent if everything was okay because he did not text her the night
before to let her know that he had gotten home safely. He responded with a
simple "yes." She then told him that she was leaving for a doctor's appointment
in the city and wrote: "Wish I was going to see your hotness along the way!
. . . Love you." That afternoon she texted a photograph with the following
message: "This was one of the top two best times I had with you! . . . The play
was amazing and dinner was an alcohol happy good time!" He responded, "Very
nice." She then wrote: "Oh I forgot the rocking outstanding sex after. That's
really why I want to keep you around. Nobody but nobody gives it like you do!
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LOL!"
The following day, on February 11, the couple exchanged a number of
acrimonious messages in which decedent threatened to contact defendant's
mother and school, and defendant accused him of never really loving her. The
communication ended with defendant writing: "You are [sic] bad luck is just
beginning for how you've treated me." The following day, she sent decedent an
unprompted message telling him that she forgave him for the way he had treated
her the night before and requesting that he talk to her.
On February 16, defendant asked decedent to come over to her house and
said they could be "friends with benefits." The next day she asked: "Can I
interest you in coming out Sat[.] to go drink and dancing at the barn. And then
a fashion show after." Decedent called her shortly after that.
On February 19, defendant urged him to come see her. She wrote at 8:39
p.m.:
Hey you, . . . Stop pretending you are an old man. I'm
sure you have been using your V and having crazy,
kinky sex with toys, slutty outfits, . . . I know you. That
is one of the things I love about you. With that being
said, bring the toys and the V with you Sat. I want the
multi-hour, all over the house, fuck marathon. . . . No
ties and no commitments. Like I told you in the
restaurant five years ago, I just want your sex.
The following day, on February 20, defendant asked decedent if he wanted
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to go to a basketball game "before the fashion show." He responded that he did
not know if he would be out of work in time to make the game. On Friday
February 21, she wrote: "Please try to get here as fast as you can tomorrow.
Coors Light still believes." She attached a photograph of a Coors Light
advertisement and a photograph of herself naked. On February 22, she wrote:
"I'm getting happy feet! . . . Want to look at jet skis with me tomorrow?" and
attached a photograph of sex beads. She then tried to reach him repeatedly and
asked whether he wanted to get dinner and watch a movie.
On February 23, defendant left decedent a voicemail saying: "Please
Patrick call me back. Please don't do this to me again. You know what? If you
are dating Colleen and you guys are a couple, then just tell me that, but if you
don't have anything going with anybody, then what is the difference?" They
spoke on the phone after that. A couple of hours later she sent him a text
reminding him about a television show that he should watch. The
communications from this point until March 3 were similar; defendant
repeatedly requested that he see her and speak to her while sending him
provocative photographs of herself and referencing the "special activities [she]
had planned for [him]."
Decedent's Expressions of Fear to his Friend Luongo
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According to John Luongo, decedent's friend and employer for ten years,
decedent and defendant had a "very rocky" relationship. As a result, decedent
sometimes stayed at a hotel in New York City instead of going home after work
because he feared that defendant would be waiting for him. When decedent
spoke to Luongo about defendant, Luongo always told him to end the
relationship.
On the day of the shooting, decedent showed Luongo and coworkers text
messages that he was receiving from defendant, and said, "she is going to kill
me someday." Again, Luongo told him to break up with her. According to
Luongo, decedent "laughed" it off as he usually did; "[n]othing bothered him."
On cross-examination defense counsel established that defendant had made
no calls nor written any texts to decedent on the afternoon of the shooting and
questioned whether decedent was referring to defendant when he said: "[S]he is
going to kill me someday." Luongo responded:
You know, Counselor, he told me -- if he told me once,
he told me a hundred times that she is going to kill me
someday. That is over the course of the relationship. I
don't know if it was during that year, two years before,
three years. But I told him a number of times to end it.
And he got to a point where I would argue with him so
much about it he didn't bring it up with me anymore.
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Luongo also testified that on the night of the shooting, decedent left a
voicemail message on his telephone at 9:28 p.m., ten minutes before decedent
made the first call to Jennifer. Luongo was in bed at the time and did not listen
to the message until 4:00 a.m. when he woke. Luongo could not understand the
message, as "[i]t was kind of garbled." He thought decedent "was in a bad area."
He planned to return decedent's call in a couple of hours, but then learned that
decedent had been killed.
Decedent's Call to Defendant's Mother
Also at 9:28 p.m., presumably after leaving a message for Luongo,
decedent called defendant's mother, Cranie Koellhoffer, who lived in Florida.
Koellhoffer testified that the call surprised her because she had not sp oken to
decedent for at least a year. Koellhoffer and decedent did not have a good
relationship because he drank excessively, and she did not like his behavior
when he was intoxicated. When she answered the phone, he told her that she
needed to talk to her daughter because he needed to go home. He sounded
intoxicated and "gruff" or "stern." Koellhoffer heard defendant crying in the
background and she asked decedent to hand the phone to defendant, but the call
ended.
Koellhoffer testified that she had been concerned about defendant earlier
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that day because the school board had denied defendant's request to return to
work part-time. According to her mother, defendant was also struggling with
depression and issues with her teenage son, who had recently moved out of
defendant's house to live with his father.
Later in the trial, defendant explained that she had been on medical leave
from her teaching job since November 2013 for illnesses that compromised her
immune system, and she was upset that the school denied her request to work
part-time. She also suffered from a major depressive disorder, which she treated
with medication and intensive outpatient therapy.
Koellhoffer testified that she had tried to talk to defendant a number of
times on March 3 and had left her a voice message asking if she was okay, but
defendant did not return her call. Defendant sent her a text message saying that
she was "feeling down" and was unable to talk.
Decedent's Discussions with Other Co-Workers
John Denora was another coworker and friend of decedent who testified
that decedent often confided in him and other coworkers regarding his
tumultuous relationship with defendant. At various times decedent showed
Denora text messages from defendant, and Denora thought many of them were
"a bit off and a bit much." He was also aware that decedent dated other women,
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including Colleen Roper, who was a union carpenter he and decedent had met
at a worksite in New York City.
On March 3, 2014, decedent told Denora that "he felt like things were
getting crazy" with defendant. He planned to go to her house that night "to do
the right thing and end the relationship properly," which meant in person.
Denora agreed that it was time to do that.
That night, Denora had a couple of missed calls from decedent between
9:38 and 9:39 p.m. One call resulted in a brief voicemail. Denora could not
understand any words in the message, but he heard a female yelling in the
background. He assumed it was defendant.
Raymond Stein, another coworker and friend of decedent's, testified that
between February and March 2014 decedent told him that his relationship with
defendant "was strained" and that she "needed help." Decedent feared that
"defendant was going to do something stupid and he wanted to move on from
the relationship." At 5:22 p.m. on March 3, 2014, decedent called Stein and said
that he was driving to defendant's house to break up with her because "he wanted
to move on," and defendant "was not acting right. There was something about
her that wasn't right."
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Other Witnesses
Decedent's brother Paul Gilhuley ("Paul") testified that at approximately
4:00 p.m. on March 3, 2014, he spoke with decedent on the phone, and decedent
told him that he was going to break up with defendant in person th at night
because the relationship was "just getting crazy." Defendant contacted him
"constantly" and repeatedly asked him to work with her through their problems.
Paul warned him against going to her house, but decedent said he wanted to see
her and make sure she was okay. Decedent was concerned about her behavior
and her physical and mental health. He also said that he wanted to talk to her
about "some tax situation." Paul was not familiar with the tax issue, but on
cross-examination he said that within the year preceding decedent's death,
decedent had expressed concern that defendant would turn him in to the IRS.
Decedent's ex-wife and friend, Theresa Higgins Gilhuley ("Theresa"),
testified that decedent had told her his relationship with defendant had become
too stressful, and he wanted to end it. In mid-February 2014, he said that
defendant was threatening to report him to the IRS for unpaid taxes. Theresa
asked him why he would want to be with someone who was blackmailing him.
At some point after the shooting, Koellhoffer contacted Theresa and asked
her to retrieve some of decedent's belongings from defendant's house. Theresa
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24
went to defendant's house and found an IRS whistleblower form on top of a box
that contained memorabilia decedent had collected.
Colleen Roper testified that she and decedent began dating in the fall of
2013, and, at the time of his death, she considered him her boyfriend. Roper did
not know that he was also in a relationship with defendant until she learned of
defendant in February 2014 after receiving prank calls in January 2014. One of
the prank calls sounded like a young boy who said that decedent had a girlfriend
who he had taken to Las Vegas. Not long after that, Roper received a "friend
request" on Facebook from a schoolteacher from Mount Olive.
On February 4, 2014, Roper sent a private Facebook message to the person
asking who it was and how he or she knew her. She received the following in
response: "Do you think sleeping with my boyfriend of six years isn't doing
anything to me? . . . If the tables were turned, how would you feel?" Roper
figured out that the person was defendant, and she responded that she believed
decedent had broken up with her. Defendant's response was that they had just
"slept together this morning." Roper told her to stop harassing and
communicating with her.
A search of defendant's computer revealed that on February 4, 2014,
someone used the computer to search "Colleen Roper," "New York Colleen
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25
Roper," "New York carpenter Colleen Roper" and Roper's telephone number.
Also, on February 4, 2014, decedent's home address was searched. On February
4, 12, 13, 16, 26 and 27, 2014, someone visited a website on reporting suspected
tax fraud. On February 26, 2014, someone searched "tax whistleblower."
Defendant's Trial Testimony
Defendant testified in her own defense. She admitted to prank calling
Roper and to sending her messages on Facebook. She said she reached out to
Roper because she wanted to let Roper know that decedent was still involved
with her. Defendant claimed that she and another one of decedent's girlfriends,
Susan Jermyn, had many friendly conversations about his cheating, and she had
hoped that she and Roper could have the same sort of discussions.
Although defendant claimed that she and Jermyn had developed a friendly
relationship, defendant admitted that when she first learned that decedent was
dating Jermyn in January 2013, she sent Jermyn a text message that said: "[T]his
is Patrick's girlfriend. Leave him alone or I would hunt you down." Defendant
testified that decedent was lying in bed with her when she wrote the text, and he
told her to send it. She said he laughed about it, as it was only a joke.
Defendant testified that she had learned about decedent's debt to the IRS
in 2012 and that she had encouraged him to turn himself in. She had grown tired
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26
of his threats to contact her mother and school, so she completed an anonymous
IRS whistleblower form, but she did not submit it. She claimed that the form
was on her desk in her home office on March 3, 2014. On the question that
asked whether the taxpayer was dangerous, defendant answered "yes."
Defendant claimed that at various times throughout their relationship
decedent had abused her, primarily by pushing and degrading her, particularly
when he drank too much alcohol, which she said was often. She claimed she
shot him on March 3, 2014 because he had placed her in fear for her life.
In support of her claim that decedent had abused her in the past, defendant
described one incident early in their relationship on December 28, 2008, when
she attempted to buy a hat from a street vendor after a Giants football game.
Decedent had drunk an excessive amount of beers at the game and smacked the
money out of her hand while scolding her about buying from a street vendor.
She ran away to her car because she felt "humiliated" and "embarrassed." When
decedent got to the car, he was angry because she had left him alone with the
vendor.
In August 2009, the couple vacationed in Las Vegas and decedent became
jealous when he saw her at the pool talking to two men. He told her to gather
her belongings and go to the room with him. In the room, he pushed her onto
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27
the bed, told her that the men only wanted sex from her, and then he ripped off
her bathing suit.
Defendant testified that decedent became jealous and abusive on another
occasion when she hired a man to put new floors in her house. Decedent told
her that the man wanted sex from her, then he pushed her against the wall, and
she fell down the steps. Decedent told her that if she called the police, they
would not believe that he had assaulted her.
On another occasion, decedent got jealous when a friend of hers drove his
new sportscar to her house to show it to her. Decedent came home intoxicated,
asked her if she had had sex with the man, then broke her bedroom door and the
lock on it.
Defendant also recalled that in 2011 decedent threw a cellular phone at
her twice because she had met a male high school friend for drinks one evening.
The first time the phone hit her face and then the sheetrock, leaving a hole in the
wall. The second time, defendant blocked her face with her arms and the phone
hit the wall. She said that she did not call the police because she did not believe
they would help her.
Defendant further testified that on New Year's Eve 2011 or 2012, decedent
came home from work between 1:30 and 2:00 a.m. intoxicated and angry that
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28
she had fallen asleep. He ripped the sheet off the bed and pushed her onto the
floor.
Sometime in 2012, the couple had an argument about his parents, and he
choked her, pushed her against the wall and onto the floor and tried to suffocate
her with a pillow. At various times in 2012, he got angry while drinking at the
Corner Pub and he took her car keys so that she had to walk home, which was a
mile away. On one occasion he pushed her against the car because she had
talked to another man.
Defendant's Version of the March 3, 2014 Events
According to defendant, on March 3, 2014, decedent went to her house to
retrieve some of his belongings and to return some things of hers. He had
planned to go to her house on March 1 and 2 but had canceled both days. At
about 6:00 p.m. on March 3, she sent him a text message saying that she assumed
he was not coming again because she had not heard from him. She showered,
then they had a brief phone conversation where he told her that he would be
there in about thirty minutes.
Defendant put on a pair of pajama pants and a sports bra and began to dry
her hair in the upstairs master bathroom. At about 6:30 p.m., she went
downstairs to get a beer. Unbeknownst to her, decedent had arrived and was in
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29
her kitchen. He was making himself a drink while talking on the phone. She
gave him a kiss, got a beer for herself, and went back upstairs to finish drying
her hair.
According to defendant, when she came back down, they went into the
living room and she performed oral sex on him, hoping to give him an erection.
He became frustrated because he could not maintain an erection and "kind of
pushed" her away and complained that it was cold in the house. She put on her
coat, grabbed her pocketbook and told him that she was going to the nearby 7-
11 for firewood.
When defendant returned home, decedent's car was gone, and she had a
number of missed calls on her cellular phone from him. She began to text him:
"Get back here right now I only went to get F-I" when a call came in from him.
He sounded angry. She told him that she had gone out for firewood but
apparently, he had not heard her. Decedent returned and parked in front of her
house. He sat in his car for about ten minutes while she started a fire inside.
When he came inside, he slammed the storm door breaking the glass and yelled
at her for leaving him alone. He slurred his words, and she believed he was
"really drunk."
After he calmed down, the two of them sat by the fire. She told him about
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30
her health issues and the problems with her son, but he did not appear interested
and began kissing her neck "a little bit." He got frustrated with her crying and
told her his daughter Jennifer thought she was "psycho." This frustrated
defendant and she said something sarcastic about Jennifer's lack of compassion.
The comment angered decedent, and defendant walked away from him while
saying "and you can't even pay your taxes," which angered him more. According
to defendant, decedent then "grabbed" her, "slammed" her against the door, and
began "choking" her with his right hand as he said: "I'm going to fucking kill
you, you fucking cunt."
As she described it, defendant managed to get away by "dropp[ing] down"
onto the floor. But then decedent picked her up by her forearms and "threw
[her] down towards the dining room." Referring to his tax issue, he said "I know
you turned me in," then picked her up and "threw" her towards the living room.
She landed on her back. She said it felt "like electricity was shooting down [her]
legs." He picked her up again and "threw" her onto the stairs, where she again
landed on her back. She said: "His eyes looked, uhmm, maliciously vicious
and, like, pure evil. . . . I never saw his eyes look like that before." She "was
scared to death" and thought that he was going to kill her.
According to defendant, she then grabbed onto a spindle on the stairs and
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31
flipped herself over. Decedent grabbed her right foot, and she fell onto her chest.
Kicking him, she freed herself and ran up the stairs into the master bedroom,
which was to the left of the stairs. She waited a few seconds and heard him
coming up the steps. Believing that he was going to kill her, she reached under
her mattress for a revolver that she said he had left there when he lived with her
from 2010 to 2012. Without looking down the steps, defendant held the gun and
reached around the railing to shoot down the steps. She fired a few shots then
"quickly looked" around the banister and saw a silhouette, so she continued to
blindly pull the trigger. Defendant testified that there were no lights on in the
stairway or upstairs when she shot.
After she fired all six shots, defendant sat at the top of the stairs "crying
hysterically" for about five minutes while decedent laid at the bottom of the
steps on his right side. She "creeped down the stairs on [her] rear end because
[she] was afraid that he was trying to trick [her]." She reached around him to
turn on a light and pleaded "Patrick, please wake up." He rolled onto his back,
and she tried to feel for a pulse.
Defendant knew she had to call 9-1-1, but she allegedly could not find her
cell phone. She looked throughout the house to no avail. Then she looked for
her portable house phone and "finally found" it in the master bedroom. She
A-1687-17T2
32
tried to call 9-1-1 but the battery was dying. She called her cell phone about
three times and when she still could not find it, she began crying hysterically
again. Phone records showed that from 10:07 to 10:09 p.m., defendant used her
house phone to call her cell phone two times. She did not recall how many times
she walked up and down the stairs looking for her phone, but she testified that
each time she passed decedent, his appearance was the same.
At 10:09 p.m., approximately twenty-five minutes after Jennifer had
called 9-1-1, defendant dialed "0911" with her house phone. She testified that
she could not see the numbers because her eyes were filled with tears. About
twenty seconds later she dialed "811." Less than a minute later she called 9-1-
1. By this time police were outside her house, but defendant did not know that.
Defendant's Version of Her Interrogation with the Police
Defendant admitted that when police entered her house, she lied to them
and said that someone had broken in while she was asleep. She denied thinking
of this lie in advance, claiming that she said it "instantaneously."
Defendant recalled being transported to the police station but said her
memory after that was "very blurry." She claimed that she had told police and
the nurse at the police station that her body was very sore because decedent had
assaulted her. There were no records of these alleged complaints, however.
A-1687-17T2
33
Defendant claimed that when she placed her arms under the table in the
interview room, she was rubbing the top of her legs because they hurt. She
denied scratching her arms to create injuries and claimed that she asked police
to photograph her arms because they were the part of her body that hurt the most
at the time. Defendant said that she had dipped a paper towel into a cup of water
to wipe away blood that she had found on her lower back because "it was
grossing [her] out."
Defendant admitted that she did not report any injury or pain to hospital
personnel. She testified that she did that because police were guarding her, and
she did not want to speak in their presences.
Defendant denied taking a shower, putting pajama bottoms in the washing
machine and changing into clean pajama pants after the shooting. She said she
had put a pair of pajama pants in the washing machine on delicate cycle before
decedent came to her house and she did not take them out of the machine. She
also said that after she freed herself from decedent, she did not hide in her
bedroom with the door closed because decedent had broken her door and the
lock, so she did not believe that she could safely hide from him.
Defendant also denied that she had taken the revolver from decedent's
apartment in February 2014. She admitted to driving to his apartment on
A-1687-17T2
34
February 19, 2014, while he was working, but claimed that she went there to
retrieve a pair of glasses that she had left in early February when she had spent
the long weekend with him.
Defendant admitted that she tried to entice decedent with sex, but she
claimed that sex was not all that she wanted from him. She claimed that when
they were broken up in the past, they still had sex with each other. She denied
threatening decedent when she wrote that his luck was about to change for the
way he had treated her, explaining that he had called her his lucky charm, and
her text was in refence to that.
Defendant's Forensic Pathology Expert Dr. Wecht
Defendant's expert in forensic pathology, Dr. Cyril Wecht, testified that
the photographs of defendant's injuries were "consistent with a struggle." He
added that "based upon the facts" he received from defense counsel, "[i]t was a
significant struggle." Dr. Wecht agreed with most of Dr. Suarez's conclusions
regarding decedent's injuries but opined that the injury to decedent's right thumb
was a grazing wound from a bullet. He disagreed that one could not sequence
the bullets and decedent's positioning when they struck him.
Dr. Wecht opined that after defendant ran up the stairs and retrieved the
gun from under her mattress, she fired the first shot in decedent's direction as he
A-1687-17T2
35
was following her up the stairs. This first bullet went into the sloped ceiling and
stopped in the master bathroom. Decedent then reached up for defendant with
his right hand, and the second bullet grazed his thumb. He then turned to
descend the stairs, and defendant fired the third bullet, which grazed decedent's
neck (Suarez's Bullet D). Defendant fired the fourth bullet, striking decedent's
arm and shattering his elbow, as he continued to turn away from her (Suarez's
Bullet A). The fifth bullet (Suarez's Bullet C), which caused the fatal injury,
struck him in the back near his shoulder as he was descending the stairs. The
sixth and final bullet (Suarez's Bullet B) struck him in the back.
Dr. Wecht testified that the gunpowder residue on the wall at the top of
the stairs coincided with the first shots being blindly fired by defendant as she
reached around the wall with the gun. That bullet traveled straight ahead to the
sloped ceiling and stopped in the bathroom. Contrary to defendant's testimony,
Dr. Wecht believed that after firing the first shot, defendant moved to the top of
the stairs where she could see decedent and fired the remaining five shots. Dr.
Wecht did not believe that she remained behind the wall during all six shots
because the last five bullets struck decedent and only the first bullet missed him.
Dr. Wecht also estimated that when defendant fired the gun, decedent was
no more than halfway up the stairs on about the seventh step. After the first
A-1687-17T2
36
shot, decedent immediately turned to flee.
Dr. Wecht could not explain how decedent's phone ended up in the right
front pocket of his jeans but said that he could have held the phone with his left
hand while talking with Jennifer, and then placed the phone in his right pocket
with his left hand.
Dr. Wecht conceded that his version of how the shooting occurred was not
the only possible scenario. He also testified that he based his opinion on f acts
provided by defense counsel, as well as defendant's theory of the case, the
autopsy report, and photos of defendant's and decedent's injuries.
B.
Defendant was indicted on charges of murder, N.J.S.A. 2C:11-3(a)(1) and
(2), and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).
The State filed a pretrial motion seeking to admit defendant's statements
while in police custody, as well as a number of items of evidence under N.J.R.E.
404(b) and 803(c)(3). The only pretrial decision challenged on appeal is the
trial court's ruling under Rule 803(c)(3) to admit decedent's statement to his
friend Luongo on the afternoon of the shooting that "she [i.e., defendant] is
going to kill me someday." The court found that statement admissible under
Rule 803(c)(3) as relevant to decedent's mental state and his fear of defendant
A-1687-17T2
37
or concern for her behavior.
After a month-long trial in March 2016, a jury found defendant guilty of
both counts. She moved for a new trial on various grounds, including challenges
to part of the self-defense charge, the Rule 404(b) charge and the Rule 803(c)(3).
The court denied the motion in all respects.
At sentencing, the court merged the weapons offense with the murder
conviction. It sentenced defendant to thirty years' imprisonment with a thirty-
year parole bar.
On appeal, the following issues (in slightly reorganized and reworded
fashion) are raised for our consideration:
I. DID THE COURT ERR IN CHARGING THE
JURY ON SELF-DEFENSE (Defendant's Point I
and Point II, in part)?
A. DID THE CHARGE ON SELF-DEFENSE
DENY DEFENDANT A FAIR TRIAL
BECAUSE IT DID NOT INCLUDE
INSTRUCTION ON THE CASTLE
DOCTRINE (Defendant's Point I)?
B. DID THE CHARGE ON SELF-DEFENSE
CONTAIN INSUFFICIENT FACTS ON
THE PRIOR DOMESTIC ABUSE AND
THE ASSAULT JUST BEFORE THE
SHOOTING (Defendant's Point II, in
part)?
A-1687-17T2
38
II. DID THE COURT RECITE FACTS IN THE
404(b) BAD ACTS JURY CHARGE THAT
IMPROPERLY FAVORED THE STATE
(Defendant's Point II, in part)?
A. DID THE CHARGE ON DEFENDANT'S
BAD ACTS EVIDENCE IMPROPERLY
FAVOR THE STATE?
B. DID THE CHARGE ON THE
CONSCIOUSNESS OF GUILT
EVIDENCE IMPROPERLY FAVOR
THE STATE?
C. DID THE CHARGE ON THE PROPER
USE OF PATRICK'S PRIOR BAD ACTS
IMPROPERLY FAVOR THE STATE?
III. DID THE COURT ERR BY ADMITTING
UNDER EVIDENCE RULE 803(c)(3) A
STATEMENT PATRICK MADE TO A FRIEND
AND BY FAILING TO PROPERLY CHARGE
THE JURY ON THE PROPER USE OF THE
STATEMENT (Defendant's Point III)?
IV. DID THE PROSECUTOR MAKE
STATEMENTS IN SUMMATION THAT
DENIED DEFENDANT A FAIR TRIAL
(Defendant's Point IV)?
V. IS DEFENDANT ENTITLED TO A NEW
TRIAL ON THE BASIS OF CUMULATIVE
ERROR (Defendant's Point V)?
II.
We first address defendant's primary argument that she is entitled to a new
A-1687-17T2
39
trial because the trial court committed plain error by instructing the jury that she
had a duty to retreat from her own house when decedent allegedly came after
her, and that her claim of self-defense was not legally tenable if she could have
retreated to safety. As we have already noted, defendant's case hinged upon her
contention that she shot defendant in self-defense.3
During the charge conference, counsel and the court discussed numerous
aspects of the charge. Among other things, the prosecutor advised the court that
aggravated manslaughter and reckless manslaughter had to be charged as lesser-
included offenses to murder. Defense counsel objected to charging those lesser-
included offenses, but the court overruled that objection and found the evidence
could reasonably support such alternative lesser crimes. The court and counsel
did agree that defendant's argument of self-defense would potentially apply to
both the murder charge and the alternative manslaughter charges.4
The court also acknowledged that, in summations, defendant was free to
argue "imperfect self-defense", i.e., that she had an honest but unreasonable
3
In fact, the first twelve words of defense counsel's opening to the jury were:
"Kill or be killed. Kill or be killed. Kill or be killed."
4
For reasons that are not entirely clear, the parties and the court agreed that no
jury charge on passion/provocation manslaughter was appropriate. On retrial,
the court and the parties are free to reconsider this omission.
A-1687-17T2
40
belief to use deadly force to defend herself. As the court further recognized,
such a belief could affect whether she acted with "extreme indifference" to
decedent's life (i.e., indicative of murder) or "just regular recklessness" (i.e.,
manslaughter).5 In any event, defendant's claim of self-defense was
undoubtedly at the heart of the parties' competing theories.
A.
During the jury charge, the court gave a lengthy instruction on self-
defense. It began as follows:
The defendant contends that if the State proves she used
deathly force upon the victim, Patrick Gilhuley, that
such force [was] justifiably used for her self-protection.
The relevant statute reads generally as follows: Quote,
"the use of force upon or toward another person is
justifiable when the actor reasonably believes that such
force is immediately necessary for the purpose of
protecting himself"—in this case herself—"against the
use of unlawful force by such person—by such other
person on the present occasion," end quote.
In other words, self-defense is the right of a person to
defend against any unlawful force.
Self-defense is also the right of a person to defend
against seriously threatened unlawful force that is
actually pending or reasonably anticipated. When a
person is in imminent danger of bodily harm, the person
5
The judge's comment is consistent with footnote 1 of the self-defense charge.
See Model Jury Charge (Criminal), "Justification - Self-Defense in Self
Protection (N.J.S.A. 2C:3-4)" (rev. June 13, 2011).
A-1687-17T2
41
has the right to use force or even deadly force when that
force is necessary to prevent the use against her of
unlawful force.
The force used by the defendant must not be
significantly greater than and must be proportionate to
the unlawful force threatened or used against the
defendant.
Unlawful force is defined as force used against a person
without the person's consent in such a way that the
action would be a civil wrong or a criminal offense. If
the force used by the defendant was not immediately
necessary for the defendant's protection or if the force
used by the defendant was disproportionate in its
intensity, then the use of such force by the defendant
was not justified and the self-defense claim fails.
[(Emphasis added).]
After explaining that there were different types of force that a person
could use in self-defense and that this case involved deadly force, the court
continued:
The use of deadly force may be justified only to defend
against force or the threat of force of nearly equal
severity and is not justifiable unless the defendant
reasonably believes that such force is necessary to
protect herself against death or serious bodily harm.
[(Emphasis added).]
After defining deadly force, serious bodily harm, and reasonable belief,
the court then explained:
A-1687-17T2
42
Even if you find that the use of deadly force was
reasonable, there are limitations on the use of deadly
force.
If you find that the defendant, with the purpose of
causing death or serious bodily harm to another person,
provoked or incited the use of force against her in the
same encounter, then the defense is not available to her.
The court then instructed the jury that defendant had an obligation to
retreat, if it could be done with complete safety:
If you find that the defendant knew that she could avoid
the necessity of using deadly force by retreating,
provided that the defendant knew that she could do so
with complete safety, then the defense is not available
to her.
In your inquiry as to whether a defendant who resorted
to deadly force knew that an opportunity to retreat with
complete safety was available, the total circumstances,
including the attended excitement accompanying the
situation, must be considered.
[(Emphasis added).]
The court then explained that the State had the burden of disproving
the elements of self-defense:
The State has a burden to prove to you beyond a
reasonable doubt that the defense of self-defense is
untrue. This defense only applies if all of the conditions
or elements previously described exist. The defense
must be rejected if the State disproves any of the
conditions beyond a reasonable doubt.
A-1687-17T2
43
The same theory applies to the issue of retreat.
Remember that the obligation of the defendant to
retreat only arises if you find that the defendant resorts
to the use of deadly force. If the defendant does not
resort to the use of deadly force, one who is unlawfully
attacked may hold her position and not retreat whether
the attack upon her is by deadly force or some lesser
force.
The burden of proof is upon the State to prove beyond
a reasonable doubt that the defendant knew she could
have retreated with complete safety. If the State carries
its burden, then you must disallow the defense. If the
State does not satisfy this burden and you do have a
reasonable doubt, then it must be resolved in favor of
the defendant and you must allow the claim of self-
defense and acquit the defendant.
A valid claim of self-defense entitles defendant to
exoneration on criminal liability on all charges related
to her alleged aggressor including aggravated or
[reckless] manslaughter [sic] since a person who kills
in the honest and reasonable belief that the protection
of her own life requires the use of deadly force does not
kill recklessly.
[(Emphasis added).]
Defendant contends that the court's failure to instruct that she had no duty
to retreat in her home constituted plain error. She stresses that during the course
of the trial, the State repeatedly insinuated to the jury that she could have
retreated safely and avoided the use of deadly force. Because decedent
threatened to kill her in her own home, defendant contends that she had no duty
A-1687-17T2
44
to retreat, and the court's failure to so instruct the jurors was plain error.
B.
The State does not dispute that the trial court erred in instructing the jury
that defendant had a duty to retreat to safety in or from her own dwelling, and
that her justification of self-defense would be nullified if she failed to discharge
that obligation. The applicable law and the model jury charge make clear that a
person has no such duty to retreat within or from the person's own dwelling.
Before 1999 in New Jersey, our courts held that a resident of a dwelling
had an obligation to retreat when attacked in the dwelling by a cohabitant. See
State v. Gartland, 149 N.J. 456, 467 (1997). The Legislature abolished that duty
in 1999 when it eliminated language in Title 2C mandating such a duty to retreat
in one's own home, so long as the decedent was not the initial aggressor. See L.
1999, c. 73 § 1.
The change in the law was largely prompted out of concern for victims of
domestic violence who attempt to defend themselves from attacks within their
own homes. See Gartland, 149 N.J. at 468–69 (quoting Maryanne E. Kampmann,
The Legal Victimization of Battered Women, 15 Women's Rights L. Rep. 101,
112-13 (1993)) ("[The] loophole in the castle doctrine profoundly impacts
battered women. If the attacker has as much right to be in the home where the
A-1687-17T2
45
attack occurs, the duty to retreat still applies."). The New Jersey amendment
parallels a similar provision within the Model Penal Code that applies the
“castle” exception to the duty to retreat. See Model Penal Code § 3.04 (Am.
Law. Inst. 2019).
Under current law, N.J.S.A. 2C:3-4 provides the following guidance on
self-defense:
a. Use of force justifiable for protection of the
person. Subject to the provisions of this section and of
section 2C:3-9, the use of force upon or toward another
person is justifiable when the actor reasonably believes
that such force is immediately necessary for the
purpose of protecting himself against the use of
unlawful force by such other person on the present
occasion.
b. Limitations on justifying necessity for use of
force.
....
(2) The use of deadly force is not justifiable
under this section unless the actor reasonably believes
that such force is necessary to protect himself against
death or serious bodily harm; nor is it justifiable if:
(a) The actor, with the purpose of causing death
or serious bodily harm, provoked the use of force
against himself in the same encounter; or
(b) The actor knows that he can avoid the
necessity of using such force with complete safety by
retreating . . . , except that:
A-1687-17T2
46
(i) The actor is not obliged to retreat from his
dwelling, unless he was the initial aggressor . . . .
[(emphasis added).]
Case law, including opinions since the 1999 amendment, has consistently
applied these principles of self-defense. In order to succeed on a self-defense
claim where the defendant used deadly force, the jury must find that: (1) the
defendant had an honest and reasonable belief that deadly force was necessary
to protect herself from serious bodily injury or death, and (2) the defendant did
not provoke the attacker. N.J.S.A. 2C:3-4(a) and (b)(2)(a). State v. Kelly, 97
N.J. 178, 197 (1984). Whether the defendant's belief was reasonable is
measured by what the jury, not the defendant, considers reasonable under an
objective standard. State v. Bess, 53 N.J. 10, 15-17 (1968). Accord State v.
Handy, 215 N.J. 334, 356-57 (2013).
If the alleged assault occurred outside the defendant's dwelling, the jury
must also find that the defendant was unable to retreat with complete safety.
N.J.S.A. 2C:3-4(b)(2)(b); State v. Rodriguez, 195 N.J. 165, 175 (2008);
Gartland, 149 N.J. at 467. But, importantly, if the alleged assault occurred in
the defendant's dwelling, the duty to retreat does not exist, so long as the
defendant did not provoke the attacker. State v. Montalvo, 229 N.J. 300, 320
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(2017).
Hence, in Montalvo, the Court ruled that a trial court committed reversible
error in instructing a jury in a murder case that self-defense does not justify the
possession of a machete in one's own home unless the defendant armed himself
spontaneously to repel an immediate threat. Id. at 321-24. Among other things,
the Court noted "[t]he home is afforded special treatment within the justificat ion
of self-defense." Id. at 319.
As the Court further noted in Montalvo, "jury instructions demand careful
attention." Id. at 320. "They 'must provide comprehensible explanation of the
questions that the jury must determine, including the law of the case applicable
to the facts that the jury may find.'" Ibid. (quoting State v. Singleton, 211 N.J.
157, 181-82 (2012) (internal citations omitted)). In essence, the court's
instructions on the law are a "roadmap" for the jurors. State v. Fowler, 239 N.J.
171, 192 (2019); State v. Savage, 172 N.J. 374, 387 (2002). "[W]ithout an
appropriate charge a jury can take a wrong turn in its deliberations." State v.
Martin, 119 N.J. 2, 15 (1990).
The pertinent model jury charges make clear that the "castle" doctrine
must guide jurors in their deliberations over a defendant's assertion of self-
defense when the defendant had been attacked in his or her own dwelling. See
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Model Jury Charge (Criminal), "Justification - Self-Defense in Self Protection
(N.J.S.A. 2C:3-4)" (rev. June 13, 2011). The model charge includes an
important proviso in footnote 4 that cautions that: "An exception to the rule of
retreat, however, is that a person need not retreat from his or her own dwelling,
including the porch, unless he or she was the initial aggressor. N.J.S.A. 2C:3-
4b(2)(b)(i)." (Emphasis added).
We cannot tell from the briefs and the record why the trial court omitted
this important principle and instead charged the jury that defendant had an
affirmative duty to retreat to safety from her own dwelling. There is no
discussion of this portion of the charge in the transcript of the lengthy charge
conference. We recognize that defense counsel did not raise an objection to this
critical portion of the charge. Accordingly, we must assess on appeal whether
this flaw in the charge was "plain error" or instead was merely harmless. State
v. Daniels, 182 N.J. 80, 95 (2004). We conclude the error was indeed plain
error, and that it was sufficiently harmful to defendant to undermine the integrity
of the jury's guilty verdict on the murder count.
"Plain error refers to any error 'clearly capable of producing an unjust
result.' R. 2:10-2." Montalvo, 229 N.J. at 320-21. When a defendant asserts
plain error arising from a flawed jury instruction that was not objected to below,
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he or she must establish: (1) "legal impropriety in the charge prejudicially
affecting [his or her] substantial rights" and (2) an error "suffici ently grievous
to justify notice by the reviewing court and to convince the court that of itself
the error possessed a clear capacity to bring about an unjust result." State v.
Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538
(1969)).
The first part of this two-part test—legal impropriety in the charge—is
conceded by the State. The jury should have been advised that, unless the State
proved she was the initial aggressor, defendant had no duty to retreat in her own
home. The second part of the test concerns whether the error was harmful or
harmless. In that vein, we must heed the well-settled maxim that errors in a jury
charge in a criminal case are generally, if not invariably, regarded as "poor
candidates" for the application of the harmless error doctrine and are "ordinarily
presumed to be reversible error." State v. Afanador, 151 N.J. 41, 54 (1997); see
also State v. McKinney, 223 N.J. 475, 496 (2019) (reaffirming this long-
standing principle).
C.
During the course of the trial, the subject of whether defendant could have
safely retreated before she fired the gun at her perceived attacker arose several
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times, particularly through efforts by the prosecutor.
In her direct examination recounting decedent's past violent conduct and
threats against her, defendant described an incident in 2011 in which she fled
upstairs to her bedroom after decedent jealously accused her of inappropriately
having a male friend visit to show her his new car. After the friend left her
house, defendant went upstairs to her bedroom and locked the door to the
bedroom "because she was afraid of what [decedent] was going to do[.]" She
recounted that decedent, who was "very drunk," broke through the locked door
and forced his way into the bedroom. Decedent cursed at her and threw her on
the floor. She did not call the police.
On cross-examination of defendant, the prosecution probed into whether
she had repaired the lock on the bedroom door. Defendant testified she had not
fixed the lock because she was focused on other things. The prosecutor pressed
further, showing defendant three photographs, Exhibits S-620, S-621 and S-622,
showing the door lock in a condition missing the lock plate and screws.
Later in the cross-examination, the prosecutor moved into evidence
Exhibit S-622, depicting the damaged lock, and asked the court to publish it to
the jury. Then the prosecutor confronted defendant with a different photo,
Exhibit S-54, which apparently showed the lock plate in an intact position,
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suggesting that either defendant had lied about the damage or had altered the
lock. Defendant explained on redirect that she had put the plate back into
position without securing it with screws as a stopgap measure so she could close
the bedroom door when her children were home. Through colloquy with the
court and further questioning, it was revealed that the photo in S-54 was
apparently taken in March 2014, shortly after the shooting, whereas S-620, S-
621, and S-622 were among three photos apparently taken on behalf of
defendant in April 2015. 6
In summation, defense counsel argued that defendant could not have
retreated safely into her bedroom on the night of the shooting, because the door
lock was broken and thus the bedroom was "no safe haven." The prosecutor
countered that point in summation by showing the jurors again the photos of the
door lock, intimating that defendant's claim the door was broken was false.
Regardless of the actual condition of the bedroom door lock, the parties'
extended back-and-forth on this point clearly shows that the question of whether
defendant could have retreated into the bedroom with safety was a significant
issue presented for the jury's consideration. That retreat issue was litigated
6
The parties have not supplied this court with the photo exhibits in their
submissions. Nonetheless, the content of the photos is reasonably inferable from
the briefs and trial transcripts.
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without a proper instruction concerning a non-aggressor's lack of a legal
obligation to retreat within his or her own home.
Additionally, the prosecution further injected the retreat issue into the case
by posing the following line of multiple questions to defendant on cross-
examination:
Q. And you were concerned that he would trick
you, but it is your testimony that at no point did you
run into your bedroom?
A. No.
Q. No point did you try to barricade yourself
into your bedroom?
A. No.
Q. At no point did you go to a window and
scream out the window and beg for help?
A. I, I didn't think about it. My -- it was, like I
said, it was devastating. I didn't know what to do
next.
Q. At no point during that 4 or 5 minutes did
you grab a phone and call 911?
A. No.
[(Emphasis added).]
Taking into account these queries and the other evidence, the record shows
the State insinuated to the jury that defendant could have and should have
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retreated on the night of the shooting, by locking or "barricading" herself into
the bedroom, or by calling for help, or doing both. Given these repeated
insinuations, the absence of an appropriate jury charge on the "castle" doctrine
was therefore harmful.
To be sure, we appreciate the parties' hotly disputed contentions as to
whether defendant or decedent was the initial aggressor that night. And we are
also mindful the prosecution did not expressly use the word "retreat" or mention
its burden of proof concerning safe retreat during its closing argument. Even
so, the retreat issue was sufficiently implicated and insinuated to raise
reasonable doubts about whether the jury was misled by the flawed instruction.
The charge not only omitted the "castle" exception, but expressly told the
jurors—in no uncertain terms—that self-defense was not available to defendant
if she could have safely retreated or was the initial aggressor. That mistake
easily could have permeated the jury's consideration of self-defense, not only
with respect to the murder count but also the lesser-included homicide offenses.
That said, we reject defendant's contention that, apart from the critical
duty-to-retreat flaw in the charge, she is entitled to a new trial because the court
should have specified in the charge the alleged previous instances of domestic
violence by decedent. Those alleged prior acts were sufficiently detailed in the
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defense's case and in defense counsel's vociferous summation. However, the
charge as a whole adequately conveyed the pertinent concepts. See, e.g.,
Gartland, 149 N.J. at 473 (although the trial court did not tell the jury it could
consider prior spousal abuse in assessing defendant's belief about the need to
use deadly force, the charge as a whole adequately conveyed the notion).
We appreciate that the State presented strong evidence of defendant’s
guilt of a purposeful intent to kill decedent, particularly the proof that she fired
multiple gunshots into his back (apart from the shot that apparently grazed his
hand) and decedent's three panicked calls to his daughter. We also appreciate
that it is possible the jury did find on the facts that defendant had no safe way
to retreat before firing the gun, but nonetheless concluded that she was the initial
aggressor or that she acted unreasonably in using lethal force, or both.
Nonetheless, the court’s flawed self-defense charge could have materially
affected the jury’s assessment of her conduct. Among other things, the flawed
guidance to the jurors on self-defense principles could have affected whether
she was guilty of a lesser included homicide offense, such as reckless
manslaughter, rather than murder. The erroneous charge could easily have
nullified the self-defense claim that was the heart of defendant's case. It
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unfortunately invited the jurors to "take a wrong turn" in their deliberations.
Martin, 119 N.J. at 15.
Because there was plain error "clearly capable of producing an unjust
result," R. 2:10-2, we are constrained to vacate defendant's murder conviction
on this basis and order a new trial.
III.
Having ordered a new trial because of the flawed jury charge on self-
defense, we are not required to reach the remaining issues raised on appeal. We
discuss them succinctly, for sake of completeness.
A.
Defendant argues she is independently entitled to a new trial because the
court gave the jurors "unbalanced" instructions on the use of N.J.R.E. 404(b)
"prior bad acts" evidence. We are unpersuaded that a new trial is required on
this basis.
The Rule 404(b) instructions appropriately informed the jurors they could
consider defendant's various acts preceding the night of the shooting (such as
her harassing calls to other women with whom decedent was dating) probative
of her state of mind. See Rule 404(b) (stating that prior bad acts may be
admissible to show, among other things, motive or intent). The court also
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appropriately told the jurors they could consider defendant's post-shooting
conduct (such as her apparent attempts to clean blood off her pajamas, her delay
in calling 9-1-1, and her possibly self-inflicted scratches of her arms) as possible
evidence of a consciousness of guilt. State v. Williams, 190 N.J. 114, 134-35
(2007). As to both categories of Rule 404(b) proof used against defendant, the
court fairly cautioned the jurors, consistent with the model charge, that they
must not draw inferences that she was a bad person with a disposition to commit
wrongdoing, and only could use the evidence for the specified limited purposes.
See State v. Cofield, 127 N.J. 328, 341 (1992); See also Model Jury Charges
(Criminal), "Proof of Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))" (rev.
September 12, 2016).
The court appropriately issued reciprocal Rule 404(b) instructions about
decedent's alleged prior bad acts, such as his assaultive conduct, excessive
drinking, and failure to pay taxes. Although those instructions about decedent's
own behavior could have been more detailed (and indeed should be amplified at
a future new trial for sake of descriptive balance) we discern no error occurred
that was clearly capable of producing the jury's guilty verdict. R. 2:10-2.
B.
The court did not misapply its discretion or stray from the governing law
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in admitting Luongo's testimony about decedent's statement of fear. The
statement was clearly probative of decedent's own state of mind concerning
defendant. It went to the critical disputed issues of who was the aggressor and
defendant's assertion of self-defense. The Supreme Court has held such
expressions of fear may be admitted to establish the identity of the aggressor or
perpetrator. See, e.g., State v. Scharf, 225 N.J. 547, 570 (2016); State v.
Machado, 111 N.J. 480, 485 (1988). We recognize decedent did not refer to
defendant by her name when he spoke with Luongo, but there was sufficient
circumstantial evidence in the context to reasonably indicate that he meant her
and was not necessarily joking about the subject. Defendant's theory that
decedent was referring to a different woman or was merely speaking in jest was
a factual dispute for the jury to resolve.
In addition, the court provided adequate limiting instructions on the use
of this evidence, both at the end of Luongo's testimony and in the final charge.
We reject defendant's argument that the court was obligated to advise the jurors
that Luongo's testimony had to be false because of phone records reflecting that
defendant did not send decedent a text on March 3 before 6:00 p.m. The weight
and veracity of Luongo's testimony was for the jury to evaluate. The jury
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logically could have found his testimony credible, even if defendant had not sent
decedent a text earlier in the day of the shooting.
In sum, this evidence of fear was plainly admissible and probative, and
the court did not misapply its discretion under N.J.R.E. 401 and 403 in declining
to exclude it. See Scharf, 225 N.J. at 572 (reiterating the well-settled principle
that appellate courts generally review evidentiary rulings under a deferential
abuse of discretion standard).
C.
Defendant singles out several portions of the prosecutor's summation,
which she contends were so improper and prejudicial as to mandate a new trial.
Having reviewed those passages—in the full context of the vigorous closing
arguments of both parties—we reject defendant's claim of reversible error.
Significantly, defendant did not object to these remarks during or after the
State's closing. "Generally, if counsel did not object, the remarks will not be
deemed prejudicial." State v. Josephs, 174 N.J. 44, 124 (2002). We are
therefore guided by a plain error scope of review concerning the remarks.
Applying that standard, we discern no reason to set aside the verdict on this
basis.
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More specifically, the prosecutor's comments about the integrity of the
State's investigation into the shooting, and the integrity of those involved in the
case were responsive to the attacks made upon law enforcement during defense
counsel's own summation. See, e.g., State v. Engel, 249 N.J. Super. 336, 379
(App. Div. 1991) (explaining that a prosecutor may respond in summation to
defense counsel's insinuation that the State's witnesses had lied and framed the
defendant). Although the prosecutor's specific inference to not risking his own
pension was better left unsaid, that misplaced comment made in the heat of
adversarial combat did not deprive defendant of a fair trial.
The prosecutor also did not deprive defendant of a fair trial by criticizing
Dr. Wecht's expert testimony and his credibility as a witness. While those
comments were surely pointed, they were not unfair or unduly prejudicial but
rather a permissible attempt to argue the witness was biased. See State v. Scott,
229 N.J. 469, 481 (2017) (recognizing a trial attorney's general right to impeach
an opposing witness as biased).
Lastly, we agree with defendant that the prosecutor inaccurately stated the
law in arguing that defendant's assertion of self-defense "does not apply" if the
jury found that decedent was moving down the steps when she fired the gun.
The prosecutor's assertion is an overstatement, because the law of self-defense
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does allow the reasonable use of lethal force to repel an attacker for a continued
period of time so long as the threat of immediate harm is reasonably perceived
to persist. See, e.g., State v. Rambo, 401 N.J. Super. 506, 513-14, 521-22 (2008)
(noting that the court appropriately charged self-defense in a case where the
defendant had shot the decedent in the back after she had turned away from him
and reached the bottom of a staircase, because the defendant asserted he was
fearful the decedent might have killed him).
Although decedent's apparent ultimate positioning towards the bottom of
the stairs was strong evidence used by the State to rebut defendant's self-defense
claim, it was incorrect for the prosecutor to suggest that the law of self-defense
immediately ceases to apply to a person the instant that his or her perceived
attacker turns in the other direction. See, e.g., id. at 512, 521. For example, it
is conceivable that an attacker might be trying to retrieve a gun or other weapon,
ibid., or might not be sufficiently wounded by an initial shot to be rendered
incapable of inflicting grievous bodily harm.
In any event, the trial court appropriately instructed the jurors on this
particular aspect of the self-defense charge, despite its flaw about the "castle"
doctrine, and also appropriately advised that the arguments of counsel about the
law were not binding. There was no plain error.
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D.
Finally, we reject defendant's argument of cumulative error. The sole
basis for our reversal in this case is the critical error in the self-defense charge
telling the jurors defendant had an obligation to retreat in her own dwelling.
Notwithstanding that one reversible error, we discern no other basis to set aside
the verdict.
Other than this one unfortunate flaw in the charge that was not called to
his attention, the judge displayed commendable patience and expertise in
presiding over this hard-fought murder trial. We are mindful of the burdens
associated with a retrial, but necessarily conclude that one is required under the
circumstances, for the reasons we have detailed in Part II of this opinion.
All other points raised by defendant on the appeal, to the extent we have
not addressed them, lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Reversed and remanded for a new trial, with a proper instruction on self -
defense in accordance with this opinion.
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