STATE OF NEW JERSEY VS. MICHAEL A. MALTESE (09-02-0184, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-0795-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL A. MALTESE,
Defendant-Appellant.
___________________________
Argued September 29, 2020 – Decided October 13, 2020
Before Judges Fasciale and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 09-02-
0184.
Elizabeth C. Jarit, Deputy Public Defender, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Elizabeth C. Jarit, of counsel and
on the briefs).
David M. Liston, Assistant Prosecutor, argued the
cause for respondent (Yolanda Ciccone, Middlesex
County Prosecutor, attorney; David M. Liston, of
counsel and on the brief).
PER CURIAM
This case returns to us after a second trial on remand. Defendant appeals
from his convictions for two counts of second-degree passion/provocation
manslaughter, N.J.S.A. 2C:11-4(b)(1), (2). Defendant primarily argues—and
the State agrees—that the judge's final charge on self-defense included language
that the judge and counsel agreed would be omitted. The parties and judge
agreed not to include in the charge that defendant had a duty to retreat because,
as the judge admitted, defendant's defense was that he was not the initial
aggressor. We conclude the self-defense charge constituted plain error and
reverse for a new trial. 1
A fight ensued between defendant, then nineteen-years-old, and his father
at defendant's parents' residence, where defendant and his girlfriend
(codefendant) lived. The father threw something at defendant and yelled, "I
wish you were never born . . . you mean absolutely nothing to me." Defendant
jumped on his father and started squeezing his neck. His mother attempted to
pull the two apart, but codefendant restrained her. After the father stopped
1
In a separate opinion also released today, we upheld an order denying
defendant's petition for post-conviction relief (PCR). See State v. Maltese, No.
A-0795-18T4 (App. Div. ____). Defendant had filed that petition contending
his trial and appellate counsel rendered ineffective assistance in the first trial
and direct appeal.
A-0795-18T4
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moving, codefendant released the mother, who defendant strangled to death after
she smacked him.
Defendant and codefendant dragged the bodies to the bathroom and placed
them into the bathtub. They put garbage bags over the victims' heads, soaked
the bodies in bleach and water, wrapped the victims' bodies with blankets,
garbage bags, and tape, and then placed them into the trunk of defendant's
father's vehicle. Defendant and codefendant buried the victims in a shallow
grave at a nearby park.
They returned to defendant's parent's mobile home and switched cars.
Defendant and codefendant spent three nights at a nearby Red Roof Inn and
withdrew cash on multiple occasions using a bank card shared by defendant's
mother and sister. They also used the same card for other expenses related to a
music festival in upstate New York.
Eleven days later, defendant and his sister reported their parents missing
to police. Defendant's other sister also informed police that someone had used
the bank card to withdraw cash from their shared account. Police uncovered a
surveillance video of defendant using the card. The next day, defendant
consented to a search of his father's vehicle, and police discovered two shovels
and a flashlight. Defendant then agreed to go to headquarters for questioning.
A-0795-18T4
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Two grand juries returned separate indictments against defendant. In the
first, defendant was charged with two counts of first-degree murder, N.J.S.A.
2C:11-3(a)(1) and (2) (counts one and two); third-degree hindering
apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (count three); two counts
of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3 (counts five and
seven); two counts of third-degree fraudulent use of a credit card, N.J.S.A.
2C:21-6(h) (counts six and eight); third-degree attempted theft, N.J.S.A. 2C:5-
1 and N.J.S.A. 2C:20-3 (count nine); fourth-degree tampering with physical
evidence, N.J.S.A. 2C:28-6(1) (count ten); fourth-degree false swearing,
N.J.S.A. 2C:28-2(a) (count eleven); and third-degree hindering investigation,
N.J.S.A. 2C:29-3(b)(4) (count twelve). 2 In the second, defendant was charged
with second-degree unlawfully disturbing, moving, or concealing human
remains, N.J.S.A. 2C:22-1(a)(1), and third-degree failing to dispose of human
remains in a manner prescribed by law, N.J.S.A. 2C:22-1(b).
Following the first jury trial, defendant was convicted of the lesser -
included offense of second-degree passion/provocation manslaughter on count
2
The grand jury also charged codefendant with committing crimes set forth in
counts one, two, five, six, seven, eight, nine, ten, and twelve. Additionally, she
was charged with third-degree hindering apprehension, N.J.S.A. 2C:29-3(a)(3)
(count four).
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one; first-degree murder on count two; and counts three, five, six, ten, eleven,
and twelve. Defendant received an aggregate prison sentence of sixty-four years
subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
In defendant's first appeal, he argued that certain statements should have
been suppressed as fruit of the poisonous tree. We rejected those contentions
and affirmed. State v. Maltese, No. A-5323-10 (App. Div. Nov. 8, 2013). The
Supreme Court granted certification. State v. Maltese, 217 N.J. 623 (2014). The
Court affirmed defendant's convictions as to second-degree disturbing, moving,
or concealing human remains, and counts three, five, six, ten, eleven, and
twelve. State v. Maltese, 222 N.J. 525, 553 (2015). The Court reversed and
remanded for the retrial of counts one and two to determine whether the physical
evidence obtained as a result of defendant's suppressed statements would be
admissible under the inevitable discovery exception to the exclusionary rule.
Ibid. The State filed a petition for certiorari, which was denied on February 29,
2016. New Jersey v. Maltese, ___ U.S. ___, 136 S. Ct. 1187 (2016).
On remand, the judge conducted an inevitable discovery hearing and
granted the State's motion to admit physical evidence. Defendant requested to
proceed pro se but later withdrew that request. He did so after the judge held a
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5
hearing to ensure that defendant understood "everything that's involved in
proceeding pro se."
The judge conducted the retrial on counts one and two—
passion/provocation manslaughter—and the jury found defendant guilty on both
counts. The judge sentenced defendant to an aggregate prison term of fourteen
years subject to NERA.
On appeal, defendant argues:
POINT I
DEFENDANT'S CONVICTION ON COUNT ONE
MUST BE REVERSED BECAUSE THE JURY WAS
ERRONEOUSLY INSTRUCTED THAT THERE
WAS A DUTY TO RETREAT AS PART OF THE
SELF-DEFENSE CHARGE.
POINT II
DEFENDANT'S CONSTITUTIONAL RIGHT TO
REPRESENT HIMSELF WAS VIOLATED WHEN
THE [JUDGE] FAILED TO CONDUCT THE
PROPER INQUIRY AND PROVIDED MATERIAL
MISREPRESENTATIONS ABOUT . . .
DEFENDANT'S LEGAL RESOURCES SHOULD HE
PROCEED PRO SE.
I.
A-0795-18T4
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We begin by addressing defendant's argument on the jury charge. He
primarily contends that we must reverse because the judge instructed the jury —
contrary to an agreement by counsel and the judge—that defendant had a duty
to retreat. He maintains that the agreement was reached because defendant
presented evidence that he strangled his father in self-defense and that his father
was the initial aggressor.
Defendant testified that he could remember his father habitually
physically abusing him, his mother, and his sisters. Defendant recalled his
father verbally and sexually abusing him since he was just four or five years old.
He stated that his father would frequently throw things⸺such as a gla ss ashtray
or unopened beer can⸺at defendant, and that his father would slam his head
against a wall or kick him.
Defendant testified that on the night of his parents' deaths, his father began
to argue with him. Defendant confronted his father, for the first time, about his
previous sexual abuse. Defendant stated that he was walking away from his
father when his father threw something at his head and tackled defendant to the
ground. He testified that his father pinned him to the ground, was trying to
choke him, and told defendant, "I'm going to kill you." Believing his father was
trying to kill him, defendant began to push back on his father, which resulted in
A-0795-18T4
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his father biting his finger. Defendant testified that he was able to get up and
started to move away from his father when his father tackled him again. He
stated that he was able to get on top of his father at one point, but that his father
continued punching him and trying to choke him. At some point, defendant's
father lost consciousness.
Indeed, in discussing the charge with counsel, the judge stated that "[t]he
duty to retreat . . . needed to come out [of the jury instructions]. Because there's
no duty to retreat in this case." The prosecutor agreed, and defendant did not
object.3 However, when it came time for the final charge on self-defense, the
judge addressed the jury and gave the following instruction:
The State has the burden to prove to [the jury]
beyond a reasonable doubt that the defense of self-
defense is untrue. This defense only applies if all the
conditions or elements previously described exist. The
defense must be rejected if the State disproves any of
the conditions beyond a reasonable doubt.
If the State carries [its] burden, then [the jury]
must disallow the defense. If the State does not satisfy
this burden, and [the jury has] a reasonable doubt, then
it must be resolved in favor of the defendant, and [the
jury] must allow the claim of self-defense[] and acquit
the defendant.
3
Neither the assistant prosecutor nor defense counsel mentioned—in their
opening statements and closing arguments—defendant's purported duty to
retreat, which corroborates counsels' agreement that it was not relevant to
defendant's self-defense defense.
A-0795-18T4
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The same theory applies to the issue of retreat.
Remember that the obligation of the defendant to
retreat only arises if [the jury] find[s] 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 his/her position and not
retreat whether the attack upon him/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
he/she could have retreated with complete safety. If the
State carries its burden then [the jury] must disallow the
defense. If the State does not satisfy this burden and
[the jury has] a reasonable doubt, then it must be
resolved in favor of the defendant and [the jury] must
allow the claim of self-defense and acquit the
defendant.
[(Emphasis added).]
When the judge instructed the jury on self-defense, he properly omitted the first
reference to retreat. See Model Jury Charge (Criminal), "Justification – Self
Defense: In Self Protection (N.J.S.A. 2C:3-4)" (rev. June 13, 2011). However,
he failed to remove the second reference to retreat from the jury charge, contrary
to the agreement. See ibid.
"[C]lear and correct jury instructions are essential for a fair trial[.]" State
v. Martini, 187 N.J. 469, 477 (2006) (first alteration in original) (quoting State
v. Koskovich, 168 N.J. 448, 507 (2001)). We must give "careful attention" to
A-0795-18T4
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jury instructions. State v. Montalvo, 229 N.J. 300, 320 (2017). "They 'must
provide a "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)).
Essentially, the judge's instructions on the law are a "roadmap" for the jurors to
follow. State v. Fowler, 239 N.J. 171, 192 (2019); State v. Martin, 119 N.J. 2,
15 (1990). "[W]ithout an appropriate charge[,] a jury can take a wrong turn in
its deliberations." Martin, 119 N.J. at 15.
"Because defendant did not object to [this] jury charge, we review the
instruction for plain error." State v. Munafo, 222 N.J. 480, 488 (2015). Plain
error refers to whether the claim of error was "clearly capable of producing an
unjust result." R. 2:10-2. Defendant must establish "legal impropriety in the
charge prejudicially affecting the substantial rights of the defendant and
sufficiently 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)). It is well settled that "[e]rroneous instructions
are poor candidates for rehabilitation as harmless, and are ordinarily presumed
to be reversible error." State v. Afanador, 151 N.J. 41, 54 (1997); see also State
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v. Vick, 117 N.J. 288, 289 (1989) (emphasizing that "erroneous instructions are
almost invariably regarded as prejudicial").
The applicable law and model jury charge make clear that a person has no
duty to retreat within or from his own dwelling. See N.J.S.A. 2C:3-4(b)(2)(b)(i)
(codifying that defendant "is not obliged to retreat from his dwelling, unless he
is the initial aggressor"); Montalvo, 229 N.J. at 319-20; State v. Gartland, 149
N.J. 456, 467 (1997); Model Jury Charge (Criminal), "Justification – Self
Defense in Self Protection (N.J.S.A. 2C:3-4)" n.4. The State agrees the judge
erred.
Precedent addressing the consequence of no duty to retreat exists,
particularly on the removal of unfavorable doubts associated with a defendant's
conduct. For example, in State v. Bonano, 59 N.J. 515, 521 (1971), the Supreme
Court reversed the defendant's conviction, noting that if the jury was aware that
the defendant had no duty to retreat, "this knowledge would almost certainly
have eradicated any doubt unfavorable to [the] defendant" that the prosecutor's
statement might have provoked.
Our Supreme Court has routinely held that an erroneous instruction on the
duty to retreat requires reversal. In Montalvo, the Court found that a trial judge
committed reversible error by instructing a jury that self-defense does not justify
A-0795-18T4
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the possession of a machete in one's own home unless the defendant armed
himself spontaneously to repel an immediate threat. 229 N.J. at 321-24; see also
State v. Abbott, 36 N.J. 63, 72-74 (1961) (reversing a conviction where the jury
was improperly instructed on the defendant's duty to retreat); State v. Blanks,
313 N.J. Super. 55, 70-71 (App. Div. 1998) (reversing a conviction on plain
error where the judge improperly charged defendant with a duty to retreat); State
v. Brown, 131 N.J. Super. 228, 234-35 (App. Div.) (reversing a conviction where
the judge correctly charged the jury on the duty to retreat but failed to mention
the State had the burden to disprove the defendant's defense), aff'd o.b., 66 N.J.
146 (1974).
This jury charge was clearly capable of bringing about an unjust result. If
the jury found that the State proved beyond a reasonable doubt that defendant
met the factors as to passion/provocation manslaughter, and did not do so in
self-defense, it was required to find him guilty of passion/provocation
manslaughter. The trial judge's failure to remove the duty to retreat language
from the jury instructions undermined defendant's defense of self-defense
because the jury considered that defense after it had been erroneously instructed
that defendant had a duty to retreat. For that reason alone, the flawed jury charge
constituted plain error, which was not harmless. Had the jury heard the proper
A-0795-18T4
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instruction—without any theory of defendant's purported duty to retreat—it
would have correctly considered his defense of self-defense. But as the charge
was given, that was not the case.
II.
We now turn to defendant's argument as to his request to proceed pro se.
The United States Constitution and the New Jersey Constitution grant
defendants, who are charged with a criminal offense, the right to have the
assistance of counsel. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. "The
corollary to the right of a criminal defendant to be represented by an attorney is
the defendant's right to represent himself." State v. King, 210 N.J. 2, 16 (2012)
(citing Faretta v. California, 422 U.S. 806, 814 (1975)). The Faretta Court
recognized that a defendant's decision to proceed pro se may ultimately be
detrimental to the defendant, but the defendant still has the right to make this
decision. 422 U.S. at 834.
Before invoking the right to self-representation, a trial judge has the duty
to assure that a defendant's waiver of counsel is done "knowingly and
intelligently." State v. Crisafi, 128 N.J. 499, 509 (1992). There are certain areas
that a trial judge must discuss with a defendant before accepting a defendant's
waiver, such as "the nature of the charges against [him], the statutory defenses
A-0795-18T4
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to those charges, and the possible range of punishment." Id. at 511. The judge
must also inform the defendant of any risks or technical problems of self-
representation. Id. at 511-12. The judge must explain that the defendant is
obligated to follow the applicable rules of criminal procedure and evidence, as
would a licensed attorney. Id. at 512. The judge must explain the difficulties
associated with acting as one's own counsel and should "specifically advise the
defendant[] that it would be unwise not to accept the assistance of counsel."
Ibid. In State v. Reddish, 181 N.J. 553, 594 (2004), the Court expanded on these
areas:
[The]se additional areas would include whether
defendant will experience difficulty in separating his
roles as defendant and counsel; whether defendant
understands that he not only has the right not to testify,
but also the right not to incriminate himself in any
manner; whether he understands that he could make
comments as counsel from which the jury might infer
that he had knowledge of incriminating evidence (and
the difficulty in avoiding such comments); and whether
he fully understands that if he crosses the line
separating counsel from witness, he may forfeit his
right to remain silent and subject himself to cross-
examination by the State.
A trial judge must also ensure the defendant knows that, in the event of a
conviction, he cannot seek post-conviction relief (PCR) claiming ineffective
assistance of counsel. Ibid. A trial judge is not required to confirm that the
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defendant understands "technical legal knowledge," but rather must "ascertain
whether [the defendant] actually understands the nature and consequences of his
waiver." Id. at 594-95.
Here, the judge held a Crisafi hearing to determine whether defendant's
waiver of counsel was knowing and intelligent. Defendant stated he wished to
proceed pro se because of the "repeated delays" in his case. The judge informed
defendant of the risks involved if he chose to represent himself but reminded
defendant that he had the right to represent himself. The judge told defendant
that he would be expected to follow the applicable court rules and rules of
evidence. He warned defendant of the risk of incriminating himself to a jury
and being too emotionally invested in the case. The judge informed defendant
of his absolute right to testify and reviewed the PCR implications if he
represented himself.
The judge found defendant competent to make this decision. Defendant
complained about his lack of resources while incarcerated, to which the judge
responded, "[w]ell, that's the hand you're holding." He reminded defendant that
the delays in his case were a result of court delays and were not within his
counsel's control. After this lengthy discussion, defendant stated that he wished
to remain with his counsel.
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Defendant contends the judge erred by failing to inform him of his option
for standby counsel. Standby counsel may be appointed by the judge to aid the
defendant if and when he asks for assistance. Id. at 597. However, standby
counsel would not have resolved defendant's issue regarding access to legal-
research resources, which are limited and shared with other inmates. Defendant
asserts that his standby counsel could have helped him increase his access to the
jail's legal-research resources, but he failed to cite to any authority indicating
that to be true.
Defendant claimed that he "could not have been expected [to] have known
about the possibility of standby counsel." However, defendant affirmatively
testified that he read Crisafi and State v. DuBois, 189 N.J. 454 (2007), which
largely focus on the appointment of standby counsel. Therefore, defendant was
aware that standby counsel was an option. Moreover, even if defendant had
been informed of the availability of standby counsel, considering that
defendant's court-appointed counsel could not improve his access to legal-
research resources, there is nothing indicating that standby counsel could have
done so either.
The record makes clear that defendant was aware of his right to represent
himself, that he intentionally relinquished it, and that he instead chose to
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exercise his right to counsel. See Crisafi, 128 N.J. at 511-12. The judge did not
err in allowing defendant to make that choice.
Reversed and remanded for a new trial. We do not retain jurisdiction.
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