On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.
King, Shebell and Baime. The opinion of the court was delivered by Shebell, J.A.D.
Defendant Harry D. Sugar appeals from his 1989 jury conviction on the lesser-included offense of voluntary manslaughter based upon an imperfect or unreasonable self-defense following his trial on a charge of second degree murder in violation of N.J.S.A. 2A:113-2. Defendant was sentenced to a term of not less than 6 years nor more than 8 years. Defendant's arguments on appeal are as follows:
POINT I: IT WAS IMPROPER TO CHARGE MANSLAUGHTER BY IMPERFECT SELF-DEFENSE;
POINT II: THE CHARGE ON RETREAT WAS NOT SUPPORTED BY THE EVIDENCE AND SHOULD NOT HAVE BEEN GIVEN.
The victim, Joan Sugar, married the defendant, a general medical practitioner, in April of 1978. Thereafter, the parties resided in a home owned by defendant on Walnut Road in Vineland. Defendant's wife died late on the night of Sunday, July 8, 1979, or early on the morning of July 9, 1979, following an altercation between the couple. Defendant buried his wife
under a picnic table in the backyard of their home on the morning she died. He then drove his wife's car a distance of less than a mile from the house, parked it and ran home. When contacted by police concerning the presence of the vehicle in an uninhabited area, defendant advised the police of the argument with his wife, but claimed that she left in the car and had been missing ever since. Joan's body was found by the police on August 6, 1979. Defendant was arrested the next day and charged with her murder.
Any offense related to Joan's death on July 8 or 9, 1979, would have been committed prior to the effective date of the New Jersey Code of Criminal Justice, September 1, 1979. N.J.S.A. 2C:1-1 et seq. The Code therefore does not apply to this offense. N.J.S.A. 2C:1-1(b). A review of the legal history of this case from 1979 to the commencement of the present trial in 1989 would not further this court's inquiry into the issues presented in the present appeal. See State v. Sugar, 84 N.J. 1, 417 A.2d 474 (1980); State v. Sugar, 100 N.J. 214, 495 A.2d 90 (1985); State v. Sugar, 108 N.J. 151, 527 A.2d 1377 (1987) (in order of chronology).
The most recent trial presentation of the State's case on the second degree murder charge against defendant proceeded on the theory that defendant killed his wife by injecting her with toxic drugs. Autopsy results revealed no external or internal signs of trauma to the decedent. Although the jaw was decomposed to the point of revealing the bone, there was no sign of trauma or hemorrhage. A toxicological analysis of organ tissue revealed Fentanyl and Droperidol in both kidney and liver specimens, causing the medical examiner to conclude that death resulted from the toxic effects of Innovar.
By way of defense, defendant asserted that the victim, who was taller and heavier than he, attacked him with a hammer after an argument over finances. Defendant testified at trial that: "I ducked the [second] blow and then, I mean -- I pulled my fist back and I thought to myself I'm going to hit her with
every ounce of strength that I have. . . ." Defendant contended that he was dazed by a forearm blow from the decedent, and that when his head cleared, he found his wife lying on the floor, very pale. He denied any recollection of hitting her, but stated he began treating her for a concussion after finding that she was not breathing and had no blood ...