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State v. D''Agostino

Decided: October 20, 1980.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK D'AGOSTINO, DEFENDANT-APPELLANT



On Appeal from Superior Court of New Jersey, Law Division, Monmouth County.

Matthews, Morgan and Morton I. Greenberg. The opinion of the court was delivered by Morgan, J.A.D.

Morgan

Defendant appeals his convictions by jury of first degree murder (felony murder), manslaughter, atrocious assault and battery, assault with an offensive weapon, threatening to take a life and unlawful possession of a pistol. He was sentenced to a term of life imprisonment followed by consecutive terms aggregating 13 to 19 years in custody.

The homicide occurred during defendant's attempt to recover property he thought had been stolen from him by the victim's brother. The supposed theft had taken place at defendant's home on January 14, 1978 when Randy Kittleson, the victim's brother, and one Paul Noreillie went there to purchase drugs. Testimony disclosed that defendant told his friends, the night of the visit, that he "had been ripped off for either drugs or money," and one of his friends suggested that Randy Kittleson, who had visited him earlier that day, may have been the thief.

Armed with a pistol, defendant with some of his friends decided to pay a visit to the Kittleson house. Much of what occurred thereafter is in sharp dispute. According to Randy Kittleson, defendant encountered him in his garage, attacked him with the pistol, and his brother Kitt was killed when he came to Randy's rescue with the shotgun with which he was shot. The evidence concerning who had possession of the shotgun and who pulled the trigger which resulted in Kitt's death was in conflict.

There was, however, no conflict concerning the reason defendant went to the Kittleson house. All witnesses agreed and the case proceeded on the entirely justified assumption that defendant sought the return of property he thought Randy Kittleson had stolen from him earlier that day. Indeed, it was this state of the proofs which generated the following portion of the jury charge on felony murder which we regard as critical to the disposition of this appeal:

Referring again now to the description of robbery, the Court advises you that intent to steal is present when one, at gunpoint or by force or threat of force, intends to take property or things of value from another, even though the person charged believed correctly or in error, that it was his property or the equivalent thereof, that he was attempting to take back.

The remaining portions of the charge explained the elements of murder (first and second degree) and involuntary manslaughter. Over defendant's objection, the trial judge thereafter explained felony murder and the essential elements for a conviction of first degree murder on that basis. Although defendant had not been charged with robbery, the felony murder option was premised on a possible jury finding that defendant had committed or was attempting to commit robbery during which the killing occurred. Included in this portion of the charge was a specification of the elements of robbery in connection with the above-quoted excerpt.

Before and after the jury charge defendant objected to the trial judge's definition of robbery which apparently dispensed with the necessity for an underlying larceny or attempted larceny. Under the judge's definition, a robbery would be committed by the forcible repossession of one's own property. Notwithstanding the objections registered during trial, defendant chose not to urge the matter on appeal. Nonetheless, we address ourselves to what we conceive to be plain error detrimentally affecting defendant's substantial rights.

Under ordinary circumstances a person does not commit theft by retaking possession of his own property. State v. Brighter, Haw. 608 P. 2d 855 (Sup.Ct. 1980); Moyers v. State , 186 Ga. 446,

197 S.E. 846 (Sup.Ct. 1938); State v. Hubbard , 126 Kan. 129, 266 P. 939 (Sup.Ct.App. 1928); Butts v. Commonwealth , 145 Va. 800, 133 S.E. 764 (Sup.Ct.App. 1926); Black v. State , 83 Ala. 81, 3 So. 814 (Sup.Ct. 1888); contra, Elliott v. ...


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