October 21, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STANLEY R. SAINTIUS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-04-00322.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 14, 2011
Before Judges Cuff and Lihotz.
A jury convicted defendant Stanley R. Saintius of second degree aggravated assault, serious bodily injury (SBI) (N.J.S.A. 2C:12-1b(1), and acquitted him of second degree burglary, third degree aggravated assault, and third degree possession of a weapon for an unlawful purpose. Judge Peim sentenced defendant as a third degree offender to a three-year term of imprisonment, subject to a No Early Release Act*fn1 85% parole ineligibility term. The appropriate fines, penalties and assessments were also imposed.
Cynthia Willis and defendant had been involved in a romantic relationship for six years as of November 30, 2008. They did not live together but defendant spent substantial amounts of time at Willis's house, kept some clothing and tools there, and had a key to her house. Defendant did, however, usually call to ask Willis for permission to enter the house.
The relationship was not uninterrupted. There were periods of time when they did not see each other, but they always resumed the relationship. In November 2008, they were not in the midst of a break in the relationship. According to Willis, defendant had no knowledge she was dating Miguel Moulton, the victim. She also testified that during the course of their six-year relationship there had been no issues regarding infidelity by either party. During cross-examination, defense counsel asked Willis directly if "you have ever provided Mr. Saintius with a reason to suspect that [she] might be cheating on him prior to November 30, 2008," and she responded "No."
Nevertheless, Willis admitted that in September 2007 she met Miguel Moulton on a dating website and they went on a couple of dates in February and March 2008. He never came to her house at that time. In Fall 2008, they renewed their relationship. Willis led Moulton to believe that she was not involved with another man. On November 29, 2008, Willis and Moulton had dinner at a local restaurant and went back to her house to watch a movie. Moulton parked his car between her house and her neighbor's driveway. Later in the evening they became intimate.
While Willis and Moulton were in her upstairs bedroom, Willis began to receive telephone calls from defendant. She tried to ignore them because she did not want to speak to defendant at that time. When the calls persisted, Moulton suggested she answer the phone because someone might need help. Then she heard a noise that could have been someone trying to enter the house or a problem with the heater. She left her bed to look out the bathroom window. She saw nothing but Moulton saw someone. Willis looked again and saw defendant standing in her front lawn.
Then, using her cell phone, she called defendant, who asked her if there was someone in the house. She responded that she was alone; he asked if he could enter the house to obtain his tools. Willis hung up, told Moulton she was going to let him out the back door and the caller in by the front door, and went downstairs to obtain Moulton's hat and coat. Willis testified that she also told Moulton that the caller was "a guy who likes me"; Moulton testified that Willis told him the caller was a stalker. Moulton called a friend, who lived nearby, and asked him to call the police because he thought there might be trouble. As Willis waited downstairs to escort Moulton out the front door, Moulton grabbed a stick he saw at the top of the stairs and started to descend the stairs.
Although Willis and Moulton offered varying accounts of what occurred next, the record permits the jury to have found that Willis went upstairs as Moulton descended the steps, defendant entered the house probably by the back door, and defendant and Moulton upon seeing each other started to throw punches. Moulton testified that he quickly dropped the stick he was carrying, the two men struggled, he fell to the ground, and then he felt a hard blow to his head. The struggle ceased and Moulton crawled from the house. The friend he called found Moulton lying in the middle of the street. Moulton suffered a broken ankle and an open depressed skull fracture requiring two surgical procedures.
On appeal, defendant raises the following argument:
THE JURY INSTRUCTIONS: (A) IMPROPERLY OMITTED AN ENTIRE RELEVANT SUBSECTION OF THE APPLICABLE STATUTE ON SELF-DEFENSE, AND (B)
ALSO SEPARATELY ERRED BY REPEATEDLY TELLING THE JURY TO RETURN A GUILTY VERDICT SOLELY IF THE JURORS FOUND DEFENDANT HAD CAUSED SERIOUS INJURY WITH THE REQUIS[I]TE MENS REA -- A POINT WHICH WAS NOT IN DISPUTE WHEN SELF-DEFENSE WAS THE SOLE DEFENSE IN THE CASE. (Not Raised Below).
Defendant requested the trial judge charge self-defense in accordance with N.J.S.A. 2C:3-4a and -4b(2)(a) and (b) over the objection of the State. It is also apparent from the record that the trial judge had prepared his proposed charge, circulated it to counsel, referred them to language at designated pages and lines, and elicited comments from both counsel about the charge. The proposed charge did not include application of self-defense when a person encounters an intruder in a dwelling, and defendant did not specifically request that aspect of the self-defense charge. On appeal, defendant argues the judge should have included the law governing the use of deadly force in a dwelling against a person reasonably believed to be an intruder set forth in N.J.S.A. 2C:3-4c. Defendant argues the evidence in support of this charge clearly indicated the need for this charge and its omission requires a new trial.
The State argues the record barely supported a self-defense charge. It further argues the evidence did not allow the trial judge to find that the record clearly indicated he should include the intruder provisions of N.J.S.A. 2C:3-4c in his jury instructions, and such a charge was contrary to the theory of defendant's defense. The State emphasizes that defense counsel acknowledged in the course of the charge conference that defendant encountered Moulton in the house and had the right to defend himself, and further acknowledged that defendant had a duty to retreat once the threat ceased. The duty to retreat is not a feature of the section 4c self-defense charge.
We review this argument pursuant to the plain error rule.
R. 2:10-2; State v. Feal, 194 N.J. 293, 312 (2008); State v. Macon, 57 N.J. 325, 333 (1971). Defendant must establish that the omitted charge raises a reasonable doubt that the jury reached a verdict it might not have reached if properly instructed. Feal, supra, 194 N.J. at 312.
When the alleged error is based on the omission in the jury instructions to which the defendant did not object, the standard governing our determination whether the trial judge should have sua sponte included the now requested charge is whether the evidence clearly indicated the need for the instruction. State v. Robinson, 136 N.J. 476, 491 (1994); State v. Perry, 124 N.J. 128, 158-59 (1991); State v. Choice, 98 N.J. 295, 299 (1985). This examination includes an analysis of the record as applied to the elements of the lesser-included offense or defense. Robinson, supra, 136 N.J. at 491. Evidence meets the clearly indicated standard only "if [it] is jumping off the page . . . ."
State v. Denofa, 187 N.J. 24, 42 (2006).
N.J.S.A. 2C:3-4 provides:
a. Use of force justifiable for protection of the person. Subject to the provisions of this section and of section 2C:3-9, the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
c.(1) . . . . [T]he use of force or deadly force upon or toward an intruder who is unlawfully in a dwelling is justifiable when the actor reasonably believes that the force is immediately necessary for the purpose of protecting himself or other persons in the dwelling against the use of unlawful force by the intruder on the present occasion.
(2) A reasonable belief exists when the actor, to protect himself or a third person, was in his own dwelling at the time of the offense or was privileged to be thereon and the encounter between the actor and intruder was sudden and unexpected, compelling the actor to act instantly and:
(a) The actor reasonably believed that the intruder would inflict personal injury upon the actor or others in the dwelling; or
(b) The actor demanded that the intruder disarm, surrender or withdraw, and the intruder refused to do so.
One of the central elements of this defense is that the actor was "in his own dwelling at the time of the offense or was privileged to be thereon . . . ." N.J.S.A. 2C:3-4c(2). Here, it is undisputed that the house in which defendant encountered Moulton was not his own. As to whether defendant was privileged to be in the house, defendant did have a key but rarely entered the house without permission to do so. In fact, defendant called that evening to ask Willis if he could come into the house. In response to his call, Willis told him she would let him in the back door.
While the evidence clearly indicated that Moulton believed defendant was an intruder, the record does not rise to that level as to defendant's belief of Moulton's status. Defendant was seen inspecting Moulton's car parked in the driveway and inquired of Willis whether someone was in the house with her. The record suggests he believed she might not be alone but is barren of any evidence to permit him to form the belief that the person he suspected might be in the house was an intruder. Of greater significance, however, is the absence of evidence "jumping off the page" to establish the foundational element that defendant was in his own dwelling or was privileged to be in Willis's dwelling.
We are also reluctant to hold that the trial judge erred in not including a use of force on an intruder self-defense instruction in a circumstance in which defendant had elected to defend according to a different theory. Perry, supra, 124 N.J. at 163. In addition, inclusion of the intruder charge is not simply a matter of tacking it on to the general self-defense charge. We have noted that "[t]he inclusion of the general self-defense charge, not tailored to the defense of one's dwelling, could only have been confusing at best, totally misleading at worst." State v. Bilek, 308 N.J. Super. 1, 11 (App. Div. 1998).
We hold that defendant cannot establish that the omission of the intruder charge from the jury instructions is error, much less error that leads this court to conclude that its omission caused the jury to return a verdict it might not have returned if provided the omitted instruction.
Defendant also argues that the structure of the charge in its entirety prevented the jury from fully and fairly considering defendant's position that he acted in self-defense. Having reviewed the jury instruction in its entirety, State v. Simon, 161 N.J. 416, 477 (1999), we hold that the jury could not have been misled about its need to consider whether defendant acted in self-defense before returning its verdict.