On appeal from Superior Court, Law Division, Ocean County.
King, Francis and Furman. The opinion of the court was delivered by Furman, J.A.D.
[180 NJSuper Page 362] Defendant was convicted of manslaughter following a jury trial and sentenced to a State Prison term of one to three years. Her defense was self-defense. At issue on appeal is whether the trial judge erred in his jury charge defining defendant's duty to retreat when attacked within her own dwelling.
Defendant and William Williams, the victim, were parents, although never married, of a three-year-old daughter Precious. Precious lived with defendant. Williams paid support for Precious and visited her at defendant's apartment, both irregularly. He had not visited Precious for two months prior to the evening when he was fatally stabbed. According to defendant, Williams had slashed and struck her several times previously, and she had filed municipal complaints against him for beatings.
On the evening of the homicide Williams arrived at defendant's apartment without prearrangement. He knocked at the door. When asked by defendant's current boyfriend who was there, he responded with his nickname. He was admitted, whether by the boyfriend or by Precious is not clear. Williams asked defendant if he could take Precious outside the apartment. A loud argument broke out between them. Defendant's boyfriend, at her request, left the apartment to call the police. The argument intensified.
There were no other eyewitnesses. Defendant's narrative of the ensuing altercation is as follows. Williams brandished a knife. She ran to the kitchen for a knife and returned with it. Williams came at her. She pushed Williams as hard as she could against the door. He dropped his knife but charged at her again. Defendant ran towards Williams, closed her eyes and remembers nothing further until Williams stumbled into the kitchen and threw up blood. Defendant admitted in a statement to the police that she had stabbed Williams. She made no claim that she had retreated or attempted to retreat.
The trial judge charged the jury on the duty to retreat when attacked, then added as an exception:
Now, one who is attacked or assaulted in his or her dwelling house need not retreat or leave, but can stand their ground and use reasonable force to compel [repel?] the attack, even though this may result in the death of the assailant, or in this case the decedent . . . . However, if the assailant, in this case Mr. Williams, the decedent, is not what we call an intruder, but you find that he himself was entitled, at least at that time and under those circumstances, to be on the premises, then the obligation to retreat still exists.
According to the jury charge, defendant in her own dwelling had a duty to retreat before Williams if the jury found that he was not an intruder but, under the circumstances, was entitled to be on the premises. The word "intruder" would exclude someone present on the premises by invitation or with permission.
Under these instructions the jury may have understood that it was required to reject the defense of self-defense if it found that the defendant had failed to retreat in the face of an attack by someone who had been freely admitted to her apartment. That finding would have been consistent with the testimony.
The prevailing common law rule was that the duty to retreat does not arise upon an attack by force within one's dwelling and that, without exceptions, a person attacked there has no duty to retreat but may stand at bay and defend himself. People v. Tomlins , 213 N.Y. 240, 107 N.E. 496 (1914); Annotation, "Homicide: Duty to Retreat Where Assailant and Assailed Share the Same Living Quarters," 26 A.L.R. 3d 1296 (1969); 40 Am.Jur. 2d, Homicide , § 168 at 454-455; 2 Wharton, Criminal Law (14 ed. 1979), § 126 at 133-135.
New Jersey recognizes an exception to the common law rule when the assailant is someone who resides in the same dwelling or, because of co-ownership, is equally entitled to reside there. Under this exception a duty is imposed even within one's dwelling to retreat, if practicable, before resorting to counterforce. State v. Lamb , 71 N.J. 545 (1976); ...