On appeal from Superior Court of New Jersey, Law Division, Warren County, No. 02-12-0472.
The opinion of the court was delivered by: Wefing, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker, and R. B. Coleman.
Tried to a jury, defendant was convicted of murder, N.J.S.A. 2C:11-3(a)(1),(2) and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The trial court sentenced defendant to forty years in prison, thirty of which had to be served before defendant could be eligible for parole. The trial court specifically directed that the eighty-five percent parole disqualification provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, would attach to the ten years remaining on defendant's sentence after he had served the initial thirty-year mandatory minimum period. Defendant has appealed his conviction and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction but remand for re-sentencing.
The victim was defendant's wife, to whom he had been married for nearly thirty years. Defendant did not deny that he shot and killed her but maintained that he acted in self-defense. By its verdict, the jury rejected that assertion.
The couple had had a contentious relationship for some time. They had been separated for nearly eighteen months at the time of the shooting, which took place in the late afternoon of August 16, 2002. That, however, was not their first separation. In 1996 they separated for approximately a year. During that separation, defendant lived at the farm with his then-girlfriend. After about one year, defendant and his wife decided to live together again, but defendant testified that it was not a complete reconciliation. He explained that it was more aimed at providing time to get their financial affairs in order so that they could eventually divorce with fewer problems. He said that he understood they had an agreement that they were free to date other people during this period. He freely availed himself of that understanding and had several intimate relationships, including one with a member of his office staff.
In April 2001 they again separated. Despite that separation, the couple continued their professional relationship, which they had maintained for many years. Defendant is a dentist, and had his office on the lower level of a split-level house located at 409 Ohio Avenue in Pohatcong. Mrs. Rambo continued to work in the office, as she had for many years, working both as a dental assistant and handling patient billing and paying the bills received. When they separated for the second time, defendant moved into the main floor of 409 Ohio Avenue while Mrs. Rambo remained at the marital residence, a farm in Alpha. Defendant acknowledged that even after their final separation they continued to attend certain social occasions as a couple and that many people did not know that, in fact, they were separated.
Defendant testified that his relationships with other women bothered Mrs. Rambo. He said that from the time of their "reconciliation" in 1996, she made constant threats against him.
He testified that after he moved to the Ohio Street building, she would enter at all hours of the day or night, that he would awaken during the night to find her standing over his bed gesturing as if she had a gun. He said that she made constant threats to pour gasoline over him as he slept and ignite a fire.
He testified about the events of the week of the shooting. He said that on the afternoon of August 12, he had been in the break room with one of the hygienists with whom he admitted he had an intimate relationship. He said Mrs. Rambo burst into the room and punched the hygienist in the head. He tried to restrain Mrs. Rambo, but she was kicking him and shouting.
He testified that based upon that incident, he wanted to obtain a restraining order against his wife but that when he mentioned that the next day, the other members of the staff persuaded him not to do so, saying it would be bad for business.
He said that on the night of August 15, she silently entered his room while he was at the computer. She held a metal object in her hand and made a click as if pulling a trigger. She laughed and turned and left.
He testified that on the afternoon of August 16, she stormed upstairs with a letter she had come across, which indicated he was seeking to practice elsewhere. He said that she was very angry, and told him she was going to take care of him and this would be the last day he left the house alive. She then returned downstairs.
He continued that after the office closed for the day, she again came upstairs, demanding money. He said she was very angry and continued to threaten to kill him. He testified that he did not really respond, other than refusing to give her the money. He said he remained at his computer, letting her, in his words, "vent." He said that when she turned to leave she again said she was going to burn the house down and that he was not getting out alive. He explained he kept a gun in his room because of her constant threats and retrieved the gun from where he kept it. Putting it behind his back, he followed her down the hall. He said she walked down the stairs to the office area, turned and began screaming at him again and said this would be his last night. She turned and headed to the door to the office and he shot her in the back. He testified he was "very scared" by her constant threats and by the fact that when she got to the bottom of the stairs, she did not go out of the house but turned as if to go to the office. He said he was afraid that she had hidden a weapon in the office area. He also knew there were many flammable substances in the office.
In response to a question as to his intent when he shot her, defendant responded:
I just needed her to stop threatening me and threatening everybody else, threatening to kill me and my feeling was is that she had a weapon right then and there, or readily accessible and I just didn't want to die.
Asked if he intended to kill her, he said:
No. It was just to stop her. Just to stop, stop the threats, and stop her from doing harm to me and everybody else.
He said the fact that she walked into the office area made him fear that she was going for a weapon. He entered the room and found her standing there. He continued,
I really can't tell you what exactly she was doing, but she was kind of like coming at me. She had some things in her hand. I didn't know what they were. She also was coming at me that was -- it wasn't fast, but it gave me the impression that she had something in her hand. And all I did was, was try to block her from coming at me. I thought she was lunging at me. It wasn't as if she was coming, really fast, but she was just kind of like leaning towards me. And so what I did was I did the only thing that I could think of, was just, I tapped her on the top of the head with the gun.
He admitted that after he retrieved the gun and followed her down the hall, he never told her to stop or warned her that he had a gun. He simply took aim and fired, shooting her in the back.
Immediately after the shooting, defendant placed a call to 911 to report it and advised the 911 operator that he had shot his wife. Police responded immediately to the scene. They found defendant sitting on the outside front steps awaiting their arrival. He was immediately advised of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), and said, "She's been harassing me, harassing me, harassing me over and over."
Defendant was fully cooperative with the police. He answered all their questions and later that evening, reenacted the shooting for them at the house. He told them that their relationship had become highly acrimonious and that Mrs. Rambo had made repeated threats to burn the house down and to kill him. He said that her repeated threats had made him fear for his safety and that he had purchased a semiautomatic handgun for protection, which he kept in his bed. He said that she had come to him after the office had closed for the day, demanding $200. He said she repeatedly screamed at him that this was the last time he was going to treat her like that.
He said that she continued walking after being shot, and he fired again, but the gun jammed. He followed her into the office area and struck her in the head with the gun, fracturing her skull. At that point, the gun discharged a bullet, which entered the wall. Dr. Rambo pointed out where he had been standing when he shot his wife; a shell casing was found there.
As we noted, there was testimony that earlier in the day Mrs. Rambo became agitated when she found a letter which indicated that defendant was seeking positions with another dental practice in a different area. There was also testimony that defendant was very quiet and distant during the day, which was not his usual demeanor in the office. Defendant agreed that Mrs. Rambo had come up demanding money, saying she wanted $200 to get him arrested. He understood this to be in reference to the altercation in the office earlier that week and declined to give her the money.
Defendant raises the following arguments on appeal:
THE COURT'S REFUSAL TO CHARGE PASSION-PROVOCATION MANSLAUGHTER AS A LESSER OFFENSE OF MURDER VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL
DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO COUNSEL OF CHOICE AND DUE PROCESS OF LAW
THE INADEQUATE CHARGE ON THE DUTY TO RETREAT RENDERED THE SELF-DEFENSE INSTRUCTION FATALLY FLAWED, VIOLATING DEFENDANT'S ...