Decided As Amended June 13 1989.: April 21, 1989.
On appeal from Superior Court, Law Division, Passaic County.
Michels, Muir, Jr., and Keefe. The opinion of the court was delivered by Muir, Jr., J.A.D.
On September 6, 1984, William Pegeese, a 62-year-old man with a badly diseased heart, died shortly after defendant burglarized his bedroom. Tried to a jury for felony murder (N.J.S.A. 2C:11-3a(3)), third-degree burglary (N.J.S.A. 2C:18-2), and third-degree theft (N.J.S.A. 2C:20-3), defendant admitted the burglary and theft, but vigorously contested the felony murder on grounds of causation. Defendant offered evidence through medical experts that the victim died of natural causes and not as the result of the burglary. The State offered evidence through medical experts that the victim would have been alive the next day had the burglary not occurred. On the issue of felony-murder causation, the State requested a charge that the jury be instructed it had to find that but for the burglary the victim would not have died and that his death was the probable consequence of the burglary. The trial judge elected not to charge on probable consequence. The jury found defendant guilty on all charges. Defendant's primary challenge on this appeal is the judge's decision not to charge probable consequence. We hold the judge's election constituted reversible error. Accordingly, we reverse and remand for a new trial. In doing so, however, we reject defendant's contention there was insufficient evidence to justify a conviction for felony murder, had there been a correct charge.
Defendant testified to the essential facts of the burglary and theft. He learned in the early evening of September 5, 1984, that Pegeese (victim) had a sizeable amount of cash on his person. Around 1 a.m. the next morning, defendant entered
the victim's bedroom through a window as the victim lay asleep in bed. Defendant relieved the victim of approximately $1000. While defendant claimed he took the money from the pocket of a coat hanging on a chair, the State offered contrary evidence; specifically, it presented witnesses who testified the victim said, "[Defendant] got me. He flipped me over and took my money."
The victim's sister testified he was upset by the burglary. She described him as normally very calm. But after the robbery, he exhibited anger. A police officer who interviewed the victim about twenty minutes after the crime, as the victim lay in bed, stated he was calm at that time. The victim died twenty minutes later.
State medical experts, a pathologist and cardiologist, concluded that despite the victim's very diseased heart, he would have been alive the next morning had the burglary not occurred. They reasoned that the burglary caused the victim to be stressed and excited. The stress and excitement caused a more rapid heart beat. Given the victim's severe coronary artery disease (85 to 90% occluded), the rapid heart beat created a demand for oxygen in the heart. The coronary artery disease prevented the heart from getting the oxygen. This led to tachycardia, arrhythmia and an embolus (plaque clot) breaking off from an existing arteriosclerotic area of the heart. The embolus went into the left circumflex coronary artery and occluded it, cutting off the blood supply and causing the death.
Defense experts, a pathologist and an internist specializing in cardiovascular disease, agreed the occlusion of the left circumflex coronary artery caused the death. However, they disagreed that an embolus caused the fatal blockage. They contended that since it was a fresh clot and there was no source within the heart to show where an embolus broke away, the occlusion occurred as the result of a thrombus -- an eruption of the arteriosclerotic plaque at the site of the blockage. They maintained that a thrombus, unlike an embolus, is generated by natural causes, not by stress or excitement.
All experts agreed that in light of the severely diseased coronary arteries and vessels, the 62-year-old victim lived a day-by-day existence. Indeed, his treating physician testified that though the victim was susceptible to stress, the kind of attack he suffered was not necessarily stress related.
We turn first to defendant's contention the trial judge erred in his charge on causation when he failed to instruct the jury that it had to find the victim's death was the probable consequence of the burglary, as well as the antecedent but-for cause. In doing so, defendant relies on State v. Smith, 210 N.J. Super. 43 (App.Div.), certif. den. 105 N.J. 582 (1986), decided after the jury verdict here. In Smith, we held the requisite causation in felony murder encompassed both the antecedent but-for and probable consequence. Id. 210 N.J. Super. at 54-56.
N.J.S.A. 2C:2-3 provides, in pertinent part:
a. Conduct is the cause of a ...