(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 21, 1997 -- Decided June 19, 1997
PER CURIAM
Ellen Gartland was convicted of reckless manslaughter for killing her husband in a bedroom of their
home. In this criminal appeal, the Court addresses several issues: (1) whether the death of Ellen Gartland
following the filing of her petition for certification renders her appeal moot; (2) whether the trial court erred
in instructing the jury that Ellen Gartland had a duty to retreat from her separate bedroom before using
deadly force; and (3) whether the trial court should have specifically instructed the jury that it could consider
the history of spousal abuse to determine the reasonableness of Ellen Gartland's belief that deadly force was
necessary to protect herself against death or serious bodily injury.
Ellen Gartland had been the victim of long-standing physical and emotional abuse by her husband,
John Gartland, the victim. On February 8, 1993, the two became involved in an argument in their home,
during the course of which neighbors heard John threaten Ellen. At some point during the argument, Ellen
left the room and went upstairs to her bedroom. The two had occupied separate bedrooms for over ten
years. On previous occasions, John had left Ellen alone in this room. On this occasion, however, he
followed her into the bedroom. Although Ellen told John to leave her alone, he approached her, threatening
to strike her. Ellen took her son's hunting shotgun from her bedroom closet and pointed it at John, telling
him to stop. John then threatened to kill her and lunged at her with his fists clenched. Ellen pulled the
trigger and John stepped into the hallway and fell. He ultimately died from the gunshot.
Immediately following the shooting, Ellen telephoned the operator, and asked for an ambulance,
advising that she had just shot her husband. She also told the responding officers that, when she shot her
husband, she had feared for her life.
At trial, the jury had twice asked for clarification of the court's charge on self-defense. On both
occasions, the trial court repeated its initial instructions using the Model Jury Charge, which never
specifically apprised the jury that it could consider the seventeen years of spousal abuse suffered by Ellen in
determining whether she honestly and reasonably believed that deadly force was necessary to protect herself
against her husband.
Prior to the charge, defense counsel objected to the court's intent to charge that Ellen had a duty to
retreat before resorting to deadly force, arguing that, because Ellen had been in her own room, which her
husband had never before occupied, he was not a cohabitant and under the law Ellen had no duty to retreat
from her own separate dwelling. The trial court again used the Model Jury Charge in its instruction.
The jury convicted Ellen Gartland of reckless manslaughter and she was sentenced to a five-year
term with a mandatory three-years imprisonment under the Graves Act. She was freed on bail pending
appeal.
The Appellate Division affirmed the conviction, finding that the trial court had correctly charged the
jury on the statutory duty to retreat before the use of deadly force. The Appellate Division further found
that the jury instructions had made it clear that the court was not limiting the jury to the actions and words
John Gartland on the date of the shooting, and that the trial court had given the jury sufficient latitude to
consider John's prior mistreatment and physical and psychological abuse of Ellen.
Ellen Gartland died after she filed a petition for certification. The Supreme Court subsequently
granted her petition for certification and reserved decision on the State's motion to dismiss the appeal.
HELD: Even though this case may be rendered moot by Ellen Gartland's death, the issues presented are
of significant public importance and are likely to recur, thus justifying their further consideration; although
the trial court did not commit error in charging the jury that Ellen Gartland had a duty to retreat from her
bedroom before resorting to deadly force or in omitting from its instruction a specific charge that the jury
could consider the history of spousal abuse in assessing the reasonableness of Ellen Gartland's belief that
deadly force was necessary to protect herself, the trial court's failure to specifically tailor the Model Jury
Charges to the particular circumstances of this case could only serve to confuse the jury.
1. Although our courts will entertain a case that has become moot when the issue is of significant public
importance and is likely to recur, the power to review a criminal appeal of a dead defendant is rarely exercised.
(pp. 5-9)
2. New Jersey is among the minority of jurisdictions that impose a duty of retreat on a woman attacked by
her cohabitant spouse. (pp. 10-12)
3. Although the Code of Criminal Justice requires a cohabitant who can safely leave the home to avoid
violence before resorting to deadly force, the Court invites the Legislature to reconsider the application of
the retreat doctrine in the case of a spouse battered in her own home. (pp. 12-16)
4. The upstairs bedroom in which Ellen Gartland slept did not constitute a separate dwelling under the
Code of Criminal Justice, and she was thus not absolved of her duty to retreat before resorting to deadly
force. (pp. 16-18)
5. Although a better charge would have specifically instructed the jury to consider the history of prior abuse
in assessing the honesty and reasonableness of Ellen's belief in the need to use deadly force, the instruction,
taken as a whole, could not be understood to foreclose the jury's full and appropriate consideration of the
prior abuse in assessing the honesty and reasonableness of her belief. (pp. 18-22)
6. Courts must give content to statutory language in their charges to juries and an abstract charge on the
duty to retreat could only have been confusing in the circumstances of this case. (pp. 22-24)
7. The trial court's charge on self-defense should also have been tailored to the circumstances of this case.
(pp. 24-25)
Judgment of the Appellate Division is REVERSED and the conviction of manslaughter is SET
ASIDE.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI,
STEIN and COLEMAN join in this opinion.
SUPREME COURT OF NEW JERSEY
A-
80 September Term 1996
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELLEN GARTLAND,
Defendant-Appellant.
Argued January 21, 1997 -- Decided June 19, 1997
On certification to the Superior Court,
Appellate Division.
Jacqueline E. Turner, Assistant Deputy Public
Defender, argued the cause for appellant
(Susan L. Reisner, Public Defender,
attorney).
Catherine A. Foddai, Deputy Attorney General,
argued the cause for respondent (Peter
Verniero, Attorney General of New Jersey,
attorney).
Lawrence S. Lustberg argued the cause for
amicus curiae, New Jersey Coalition for
Battered Women (Crummy, Del Deo, Dolan,
Griffinger & Vecchione, attorneys; Mr.
Lustberg, Lenora M. Lapidus and James E.
Ryan, on the brief).
PER CURIAM
This appeal concerns the statutory duty to retreat before
resorting to the use of deadly force in self-defense. In this
case a woman killed her husband in a bedroom of their home. The
jury convicted her of reckless manslaughter. She died while her
appeal was pending. Three issues were argued in the case: (1)
whether her appeal should be dismissed because it became moot
upon her death; (2) whether the trial court erred in instructing
the jury under the circumstances that she had a duty to retreat
from her separate bedroom before using deadly force; and (3)
whether the trial court should have specifically instructed the
jury that it could consider the history of spousal abuse to
determine (in addition to whether she might have killed in the
heat of passion arising from a reasonable provocation) whether
she honestly and reasonably believed that deadly force was
necessary to protect herself against death or serious bodily
injury. From the evidence in the case, a jury could have found
the following facts.
The killing occurred on February 8, 1993. The jury heard evidence of long-standing physical and emotional abuse inflicted by the victim on defendant. Witnesses portrayed John Gartland as a violent and threatening husband obsessed with jealousy.
On the afternoon of the killing, the Gartlands stopped at a tavern in Newark. There, they began to argue. When the Gartlands returned home at about 5:00 p.m., a neighbor heard Mr. Gartland (John) threaten his wife. Other neighbors heard similar abuse and threats.
The argument continued when John could not find the remote control for the television and accused Ellen of hiding it.
Angered, he left the home. When he returned, he renewed the
argument about the remote control. Ellen asked him to leave her
alone and went upstairs to her bedroom. For over ten years, she
and her husband had had separate bedrooms.
Previously, John had left her alone in this room. On this
evening, he followed her into her bedroom. She told him to go to
bed and to leave her alone. He approached her, threatening to
strike her. One of them, the parties dispute which, said "I'm
going to hurt you" as he approached her.
Ellen took her son's hunting shotgun from her bedroom
closet. She pointed it at her husband and told him to stop. He
said, "You're not going to do [anything] to me because you,
bitch, I'm going to kill you." He lunged at her with his fists
clenched. She pulled the trigger. The shotgun blast hit her
husband. He stepped into the hallway and fell.
Ellen dropped the gun, called an operator, and asked for an
ambulance, saying that she had just shot her husband. She then
called her son as well as John Gartland's son. She told the
responding officers that she had feared for her life. She said
that she would never forget the look on his face and that he
approached her looking "like a devil."
At trial, the jury had asked twice during its deliberations
for clarification of the court's charge on self-defense. On both
occasions the trial court repeated its initial instructions. The
instruction never specifically apprised the jury that it could
consider the seventeen years of spousal abuse suffered by Mrs.
Gartland in determining whether she honestly and reasonably
believed that deadly force was necessary to protect herself
against her husband. The trial court used the Model Jury Charge
and told the jury that "[a] reasonable belief is one which is to
be held by a person of ordinary prudence and intelligence
situated as Mrs. Gartland was on February 8, 1993."
Prior to the charge, defense counsel objected to the court's
intent to charge that Ellen had a duty to retreat before
resorting to deadly force. Counsel renewed his objection
immediately after the charge. Before the first recharge on self-defense, defense counsel again objected. He noted that because
Ellen had been in her own room, one that her husband never
occupied, he was not a cohabitant and under the law she had no
duty to retreat from her own separate dwelling. The trial court
ruled that “under the statute, there was a duty to retreat." The
court gave the Model Jury Charge:
And even if you find the use of deadly force
was reasonable, there are limitations on the
use of deadly force . . . . If you find that
Mrs. Gartland knew that she could avoid the
necessity of using deadly force by retreating
from that house, providing Mrs. Gartland knew
that she could do so with complete safety,
then the defense is not available to her.
The jury convicted Mrs. Gartland of reckless manslaughter.
Two jurors later contacted the court describing confusion and
indecision in their deliberations. After denying a motion for a
new trial, the court sentenced Mrs. Gartland to a five-year term
with a mandatory three-years imprisonment under the Graves Act.
She was freed on bail pending appeal.
The Appellate Division affirmed the conviction. It found
that the instructions had made it clear that the court was not
limiting the jury to the actions and words of the decedent on
February 8, 1993, and that the court had given the jury
sufficient latitude to consider the decedent's prior mistreatment
and physical and psychological abuse of defendant. It also found
that the court correctly charged on the statutory duty to retreat
before the use of deadly force. Defendant died after her
petition for certification was filed. We granted the petition,
146 N.J. 499 (1996), and reserved decision on the State's motion
to dismiss the appeal.
Should the appeal be dismissed because defendant died before her appeal could be heard by this Court?
In State v. McDonald, a dissenting justice reasoned that to
continue the appeal of a deceased defendant would extend a
"court's jurisdiction over criminal defendants beyond the grave.
Its appellate grasp [would reach] `from here to eternity'!"
424 N.W.2d 411, 415-16 (Wis. 1988) (Day, J., dissenting).
Chief Justice Heffernan, concurring in the majority's
decision to permit the appeal to continue, wrote:
It may well be, as the dissent suggests,
that the defendant in this case is in the
hands of God. However, the responsibility
for resolving the legal uncertainties left
behind is squarely in the hands of this
court.
. . . It is not [the decedent's] appeal which
is moot, as the dissent would have it, but
rather [the decedent's] death which is moot,
because [the decedent] did not take the
potential errors of our justice system into
the grave . . . . These potential errors
remain behind to perplex and confound [the
decedent's] relatives, friends, reputation,
and the legal system.
[McDonald, supra, 424 N.W.
2d at 415
(Heffernan, C.J., concurring).]
In State v. McDonald: Death Of a Criminal Defendant Pending
Appeal in Wisconsin -- The Appeal Survives, 1
989 Wis. L. Rev.
811, Lynne J. Splitek sets forth the prevailing American rule on
the subject:
When a criminal defendant dies after a
conviction and while an appeal of right is
pending, most state and federal courts abate
the proceedings ab initio. Typically, courts
dismiss the appeal, vacate the judgment of
conviction, and remand the case to the trial
court with instructions to dismiss the
indictment against the defendant.
In Dove v. United States, 423 U.S. 325, 96 S. Ct. 579, 46 L. Ed.2d 531 (1976), the United States Supreme Court dismissed a petition for certiorari when the petitioner died while the application was pending. Lower courts have interpreted Dove as distinguishing between a defendant who dies pending an appeal of right (in which proceedings are abated) and one who dies pending a discretionary appeal (in which only the appeal is dismissed). See United States v. Moehlenkamp, 557 F.2d 126 (7th Cir. 1977) (holding that proceedings should abate when defendant dies before conclusion of appeal of right). Courts in some jurisdictions
simply dismiss the appeal of a deceased defendant and refuse to
abate the conviction. Splitek, supra, at 817 (citing Whitehouse
v. State,
364 N.E 2d, 1015, 1016 (Ind. 1977)).
New Jersey has followed a middle course. Newark v.
Pulverman,
12 N.J. 105 (1953), held that the executrix of one
found guilty in a municipal court proceeding had status to
prosecute an appeal before this Court. Recalling that Bower v.
State,
135 N.J.L. 564, 568 (S. Ct. 1947), had held that "[t]he
stigma of arrest, conviction and jail sentence does not become
moot simply because . . . the sentence has been served and
completed," the Pulverman court held that "there is likewise no
mootness insofar as the family of a deceased defendant is
concerned and that his legal representative should have the
opportunity to establish on appeal that the conviction was
wrongful." 12 N.J. at 116. Our Court Rules provided then as now
that "[i]n any criminal action, any defendant, the defendant's
legal representative, or other person aggrieved by the final
judgment of conviction entered by the Superior Court . . . may
appeal." R. 2:3-2.
Unlike the federal constitution, the New Jersey Constitution
does not confine the exercise of the judicial power to actual
cases and controversies. Compare U.S. Const. art. 3, sec. 2,
cl. 1 with N.J. Const. art. 6, sec. 1, par. 1. Nevertheless,
this Court will not render advisory opinions or exercise its
jurisdiction in the abstract. See In re J.I.S. Indus. Serv. Co.
Landfill,
110 N.J. 101, 104 (1988). Our courts will entertain a
case that has become moot when the issue is of significant public
importance and is likely to recur. We decided the right of one
to die even though her death had occurred before we could decide
her appeal. In re Farrell,
108 N.J. 335 (1987).
The power to review a criminal appeal of a dead defendant is
rarely exercised. In State v. DeBellis,
174 N.J. Super. 195
(App. Div. 1980), the defendant had filed and perfected an appeal
from a criminal conviction. Citing Pulverman, supra, the court
wrote: "We are advised that [the defendant] subsequently died.
But nevertheless we decide the appeal . . . . Since no
application has been made for a substitution of parties we will
consider the appeal as though still being prosecuted by
DeBellis." 174 N.J. Super. at 198.
There is concern that the Public Defender should have
explored more fully the availability of assets and resources in
defendant's estate before continuing the appeal. Because of the
significant public importance of the issues and the likelihood
that they will recur, we cannot say that the Public Defender
abused her statutory discretion in prosecuting this appeal in her
institutional capacity. The problem of domestic violence is
widespread. In State v. Kelly,
97 N.J. 178, 190-91 (1984), Chief
Justice Wilentz observed:
What has been revealed is that [family
violence] affects many more people than had
been thought and that the victims of the
violence are not only the battered family
members (almost always either the wife or the
children). There are also many other
strangers to the family who feel the
devastating impact, often in the form of
violence, of the psychological damage
suffered by the victims.
Our Legislature has made a strong commitment to the
eradication of domestic violence. See Prevention of Domestic
Violence Act, N.J.S.A. 2C:25-17 to -33. The Legislature has an
equally strong commitment to eradicating murder and other
offenses committed with guns. To the extent that this decision
addresses concerns in this area, it is worth the judicial effort.
The power to entertain a criminal appeal even after death
should be sparingly exercised. A conviction should not be set
aside unless the record shows palpably that there has been a
fundamental miscarriage of justice, an error that "cut mortally
into the substantive rights of the defendant . . . [or impaired]
a defendant's ability to maintain a defense on the merits."
State v. Harper,
128 N.J. Super. 270, 277 (App. Div.) (Handler,
J.A.D.) (discussing standard for review of invited error),
certif. denied,
65 N.J. 574 (1974). Such caution is required
because there is an intrinsic imbalance in the conduct of a
criminal appeal on behalf of a deceased defendant. The contest
is one-sided. The defendant can no longer be retried for the
crime. The State and the victims of the crime cannot win. If
the conviction is set aside, the State is realistically deprived
of the opportunity to vindicate the public interest in
enforcement of the law. On the other hand, important interests
of the defendant or society at large may be at stake if an
erroneous conviction is left standing. We find those important
interests present here.
Did the trial court err in failing to instruct the jury that defendant had no duty to retreat if defendant's bedroom functioned as a separate dwelling and that her husband was an intruder into that separate room within the house that they shared?
As noted, this was the principal objection raised at trial:
Traditionally self-defense claims
require that a person who can safely retreat
from the confrontation avail themselves of
that means of escape. However, this
requirement has since been modified, and
today most courts recognize exceptions to the
general retreat principle. The most notable
and expansive exception has been the "castle
doctrine." The castle doctrine states that
if the confrontation takes place in one's
home or "castle" then the requirement is
suspended. This exception was established to
allow individuals to defend their place of
habitation. Application of this exception,
however, becomes more challenging when the
aggressor intruder is a co-occupant of the
structure or when both parties have a legal
right to occupy the dwelling. Currently,
jurisdictions vary as to their willingness to
extend the castle doctrine to self-defense
situations where both parties legally occupy
the home, but the majority of these
jurisdictions extend the privilege of non-retreat to apply in these types of
situations.
[Beth Bjerregaard & Anita N. Blowers,
Chartering a New Frontier for Self-Defense
Claims: The Applicability of the Battered
Person Syndrome as a Defense for Parricide
Offenders, 33 U. Louisville J. Fam. L. 843,
870-71 (1995).]
New Jersey is among the minority of jurisdictions that
impose a duty of retreat on a woman attacked by her cohabitant
spouse. The New Jersey Code of Criminal Justice contains
carefully articulated standards for determining when the use of
force against another is justified. The drafters of our Code
originally approached the concept of justification in terms of
the subjective attitudes of the criminal actor. However, in the
course of legislative modifications the self-defense provisions
of the Code were altered to reestablish objective standards of
self-defense:
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 [the
actor] against the use of unlawful force by
such other person on the present occasion.
Those general provisions are qualified in the case of the
use of deadly force as that is defined in N.J.S.A. 2C:3-11.
Concerning deadly force, the Code provides: "The use of deadly
force is not justifiable under this section unless the actor
reasonably believes that such force is necessary to protect [the
actor] against death or serious bodily harm . . . ."
N.J.S.A. 2C:3-4b(2). Even if deadly force is permissible, the
actor still has the duty to retreat from the scene if the actor
can do so safely. N.J.S.A. 2C:3-4b(2)(b). One exception to this
duty to retreat is if the actor is in his or her own home at the
time of the attack (the so-called "castle doctrine"), unless the
attacker is a cohabitant. N.J.S.A. 2C:3-4b(2)(b)(i) states that
"[t]he actor is not obliged to retreat from [the] dwelling,
unless [the actor] was the initial aggressor or is assailed in
[the actor's own] dwelling by another person whose dwelling the
actor knows it to be . . . ." N.J.S.A. 2C:3-4c provides special
rules for the use of deadly force on an intruder into one's
dwelling. For example, under this provision, deadly force may be
used against an intruder to counter any level of unlawful force
threatened by the intruder.
The Public Defender argues that it is ironic that Ellen
Gartland could have used the shotgun against a burglar who
intended to do her no serious harm but was precluded from using
the same force against the true threat in her life, her husband.
Instead, the law requires her to flee from her bedroom, which
she had described as the only sanctuary in her chaos-filled home.
The retreat doctrine is one of several related legal doctrines affecting battered women as criminal defendants. See generally Holly Maguigan, Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals, 140 U. Pa. L. Rev. 379 (1991). The male pronouns used in the Code reflect a
history of self-defense that is derived from a male model.See footnote 1
Under the common law regime, even if
faced with immediate danger of death or great
bodily harm, an individual could use only
equal force to repel the danger. The
doctrine of equal force, developed on a
prototype of two males of equal size and
strength, held that, if attacked without a
deadly weapon, one could not respond with a
deadly weapon. This doctrine obviously
disadvantaged women, who are generally
smaller and lack the same upper-body strength
as men.
Traditional common law self-defense
imposes no duty to retreat, except for co-occupants of the same house. Given that most
men are assaulted and killed outside their
homes by strangers, while most women are
assaulted and killed within their homes by
male intimates, this doctrine also
disadvantaged women.
[Marina Angel, Criminal Law And Women:
Giving The Abused Woman Who Kills A Jury Of
Her Peers Who Appreciate Trifles,
33 Am.
Crim. L. Rev. 229, 320 (1996).]
Advocates of women's rights seek change.
Imposition of the duty to retreat on a
battered women who finds herself the target
of a unilateral, unprovoked attack in her own
home is inherently unfair. During repeated
instances of past abuse, she has "retreated,"
only to be caught, dragged back inside, and
severely beaten again. If she manages to
escape, other hurdles confront her. Where
will she go if she has no money, no
transportation, and if her children are left
behind in the "care" of an enraged man?
One commentator points out the injustice
and absurdity of expecting a battered woman
to retreat and "just walk away."
Indeed, battered women seem to be
expected to escape from situations in which
escape, for anyone else, would clearly be
seen to be impossible. In case after case,
in which the obligation to retreat was an
issue at the trial or on appeal, women have
been convicted for killing men who were
holding them with one hand and beating them
with the other or who had them pinned down on
the floor or trapped in a corner or were
menacing them with a knife or with a loaded
gun . . . [The] loophole in the castle
doctrine profoundly impacts battered women.
If the attacker has as much right to be in
the home where the attack occurs, the duty to
retreat still applies.
What this exception means for a battered
woman is that as long as it is a stranger who
attacks her in her home, she has a right to
fight back and labors under no duty to
retreat. If the attacker is her husband or
live-in partner, however, she must retreat.
The threat of death or serious bodily injury
may be just as real (and, statistically, is
more real) when her husband or partner
attacks her in her home, but still she must
retreat.
[Maryanne E. Kampmann, The Legal
Victimization Of Battered Women, 15 Women's
Rts. L. Rep. 101, 112-13 (1993).]
These are grave concerns. When the drafters of our Code of Criminal Justice commenced their work in 1971, the public was not fully aware of the epidemic of domestic violence. Knowledge of the problem, however, was more widespread at the time of the adoption of the Code in 1979. Legislative activity in the field of domestic abuse was already underway. For example, New Jersey
had adopted the Prevention of Domestic Violence Act, L. 1981, c.
426 (codified at N.J.S.A. 2C:25-1 to -16) (repealed 1991) and the
Shelters for Victims of Domestic Violence Act, L. 1979, c. 337
(codified at N.J.S.A. 30:14-1 to -14). However, there is no
evidence that the Legislature specifically considered the
loophole in the castle doctrine. As presently structured, the
Code of Criminal Justice requires that a cohabitant who can
safely leave the home to avoid violence should do so before
resorting to deadly force. We have invariably adhered to the
Code's concepts of self-defense. We have insisted, as the Code
requires, that the belief of the person wielding deadly force
must be a reasonable belief, not simply an honest belief. Kelly,
supra, 97 N.J. at 204. Moreover, we have declined to create new
justifications for criminal conduct. See State v. Bowens,
108 N.J. 622 (1987) (holding that Code did not provide independent
category of imperfect self-defense); State v. Tate,
102 N.J. 64
(1986) (holding that Code did not provide defense of medical
necessity to illegal possession of drugs). Only when we have
been satisfied that the structure of the Code makes a defense
available have we allowed it to be asserted. See State v.
Robinson,
136 N.J. 476 (1994) (concluding that Code contemplates
offense of attempted passion-provocation manslaughter).
There is no comparable basis for departing from the language
of the Code, specifically, from the Code requirement that an
actor may not use deadly force against a cohabitant if an actor
may safely retreat. "The Legislature and the Executive do not
decide cases . . . the judiciary does not pass laws. One of the
categories of legislation that the judiciary has no power to
adopt is that [of] defining crimes and providing for their
punishment." State v. Cannon,
128 N.J. 546, 560 (1992).
Although we find present the statutory duty to retreat, we
commend to the Legislature consideration of the application of
the retreat doctrine in the case of a spouse battered in her own
home. There are arguments to be made on each side of the issue.
See majority and dissenting opinions in State v. Thomas,
673 N.E.2d 1339 (holding that domestic partner assaulted in her own
home has no duty to retreat before using deadly force in self
defense).
That leaves for resolution whether John Gartland could be considered a cohabitant of Ellen's bedroom. Put the other way, the question is whether the upstairs bedroom in which Ellen slept was a separate dwelling. It is a close question on this record but we agree with the courts below that the bedroom was not a separate dwelling.
N.J.S.A. 2C:3-11c defines "dwelling" as "any building or structure, though movable or temporary, or a portion thereof, which is for the time being the actor's home or place of lodging except that, as used in 2C:3-7 [concerning arrest for burglary of a dwelling], the building or structure need not be the actor's own home or place of lodging." (Emphasis added.) The Commentary
to this section concludes that cases such as State v. Bonano,
59 N.J. 515, 520 (1971) (holding porches and thresholds within the
definition of dwelling), "leave open [the question] how much
further the term `dwelling' might be extended." Cannel, New
Jersey Criminal Code Annotated, Comment 3 on N.J.S.A. 2C:3-11c
(1996-97).
Defendant emphasizes that the Prevention of Domestic
Violence Act implicitly recognizes the concept of a private
dwelling within a larger home by authorizing the issuance of in-house restraining orders in its attempt to prevent spousal
attacks. She also cites State v. Coyle,
119 N.J. 194 (1990)
(holding landlord could not consent to search of room defendant
occupied).
It is true that one building may have separate apartments.
However, the idea of a dwelling is that one has an "exclusive
right to occupy" a portion of a building. State v. Silva,
684 A.2d 725, 728 (Conn. App. Ct. 1996), certif. denied,
688 A.2d 329
(Conn. 1997). In State v. Pontery,
19 N.J. 457 (1955), an
estranged couple jointly owned a summer home. The wife went
there to be away from her husband. When he and other family
members joined her over the weekend, she could not claim that she
was under no duty to retreat from the jointly-owned dwelling
before inflicting deadly force. In contrast, in State v. Lamb,
71 N.J. 545 (1976), the Court exempted a wife from a duty to
retreat from her husband's attack within an apartment that she
exclusively occupied. He had burst in uninvited through an
unlocked door. The Court stated: "In the circumstances of this
case [the] defendant's estranged husband did not have as much
right to be in the apartment as [the] defendant. It was her
home. [The husband] was in fact an intruder and [the] defendant
was under no duty to retreat." 71 N.J. at 549. See also H.J.
Alperin, Annotation, Homicide: Duty to Retreat Where Assailant
and Assailed Share the Same Living Quarters,
26 A.L.R.3d 1296
(1969) (discussing homicide prosecution cases involving duty to
retreat before using deadly force where persons are attacked in
homes shared with assailant). In this case, there is simply no
evidence that the door to the bedroom had normally been kept
locked or that John Gartland did not generally have access to the
room. Defendant merely testified that because of sexual
dysfunction, the couple slept in separate rooms. We cannot say
that Ellen had the exclusive right to occupy this room. Hence,
we agree, on this record, that the court correctly charged the
statutory duty to retreat.
Did the trial court err in failing specifically to instruct the jury that the evidence that defendant was abused by the decedent could be considered in assessing her claim of self-defense?
In Kelly, supra, 97 N.J. 197, this Court held that evidence of domestic abuse is relevant to a claim of self-defense. Specifically, the Court held that expert testimony concerning the battered women syndrome is relevant to the jury's determination
of subjective honesty and the objective reasonableness of a
defendant's belief that deadly force was necessary to protect
herself against death or serious bodily harm. Kelly, supra, 97
N.J. at 202-04. The Court recognized that evidence of prior
abuse has the potential to confuse the jury and that expert
testimony is useful to clarify and refute common myths and
misconceptions about battered women. The history of prior abuse
was plainly relevant to the self-defense charges. In order to
acquit anyone of homicide committed in self-defense, the jury
must find the defendant's belief in the need to use deadly force
reasonable and honest. Kelly, supra, 97 N.J. at 198. Like the
elements of passion-provocation manslaughter, the elements of
self-defense contain subjective and objective factors that focus,
respectively, on the sincerity and reasonableness of the
defendant's beliefs. Thus, defendant argues that because
evidence of prior abuse is relevant to the issue of self-defense
and because evidence of prior abuse is potentially confusing, it
follows that the jury must be properly instructed concerning how
to consider and give effect to such evidence in assessing a claim
of self-defense. The trial court specifically instructed the
jury to consider the evidence of prior abuse in determining the
question of provocation. However, it did not specifically
instruct the jury to consider evidence of prior abuse in
determining the question of self-defense.
We agree that a better charge would have instructed the jury
to consider the history of prior abuse in assessing the honesty
and reasonableness of defendant's belief in the need to use
deadly force. Our courts have always admitted evidence of a
victim's violent character as relevant to a claim of self-defense
so long as the defendant had knowledge of the dangerous and
violent character of the victim. State v. Carter,
278 N.J.
Super. 629 (Law Div. 1994) (citations omitted).
The issue arises in this case as one of plain error and the
question is whether the absence of the specific instruction was
such that it was clearly capable of producing an unjust result.
R. 2:2-9. We have often emphasized that instructions to a jury
are to be examined as a whole. "[P]ortions of a charge alleged
to be erroneous cannot be dealt with in isolation but the charge
should be examined as a whole to determine its overall effect."
State v. Wilbely,
63 N.J. 420, 422 (1973). A consideration of
the entire jury instruction leads to the conclusion that the
omission specifically to tell the jury that it should consider
the history of prior abuse in connection with self-defense was
largely overcome by the entirety of the instruction. Taken as a
whole, the instruction could not be understood to foreclose the
jury's full and appropriate consideration of the prior abuse in
assessing the honesty and reasonableness of defendant's belief.
The possibility that the jury might not have considered the
prior abuse in assessing the self-defense claim appears highly
attenuated in this case. A major focus of the opening and
closing remarks of defense counsel was that the jury could and
should consider the long-standing abuse of defendant by her
husband in assessing her claim of self-defense. In his opening
remarks defense counsel said:
Now this is not a case, ladies and gentlemen,
where a woman who claimed to have been abused
for years walked into the bedroom one night
and shot her sleeping husband or set the bed
on fire when he was sleeping because she
couldn't take it anymore, that is not this
case. This is self-defense. If Mrs.
Gartland hadn't acted to defend herself that
night Johnny Gartland would be on trial for
murder right now, that is what the case is
all about.
So, yes, there are always many dynamics
at work in a case like this and you're going
to have to try to understand some of them,
but in the end what is the single most
important reason that the evidence in this
case will show as to why it's important that
Johnny Gartland beat up Ellen Gartland and
abused her for so many years? You know why?
Because on February 8, 1993, she knew what
type of violence he was capable of inflicting
against her and that's why it's important.
She had every reason in the world to be
afraid of him because she knew what he had
done to her before. She knew what he was
capable of doing and she knew the imminency
of the threats, and she saw the look when he
came in the bedroom to hit her.
In his summation, he repeated this theme:
You see what is important, ladies and gentlemen, about the history and the context of this case is that she knew he was capable of doing serious injury to her because he had done it before. She knew he was capable of beating the hell out of her . . . . Ladies and gentlemen, in the end the history is important because that it why Ellen knew that she had a good reason to be afraid. She knew that he was capable of hurting her very badly . . . . He was known to be violent and abusive when he was drunk, that he had beaten
his wife on occasions over a seventeen-year
marriage . . . .
The court's instructions did not foreclose the jury's
consideration of that prior abuse; nor were its instructions so
erroneous as to confuse or mislead the jury in its consideration
of self-defense. The instructions gave the members of the jury
an opportunity to consider fully whether an honest and reasonable
belief in the necessity to use deadly force was present. The
trial court explicitly told the jurors to consider passion-provocation in the context of knowing or purposeful murder. It
also told the jurors that they could not find the defendant
guilty of murder or any of the lesser-included offenses if they
had a reasonable doubt as to whether or not the defendant had
killed her victim in the honest and reasonable belief that the
use of deadly force was necessary on the occasion.
We now turn to consider other aspects of this case that have been neither raised nor argued by the parties, that would have been grounds for retrial in the case of a living defendant.
In a long series of cases, we have held that an essential ingredient to a fair trial is that adequate and understandable instructions be given to the jury. The "charge is a road map to guide the jury and without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Martin, 119 N.J. 2, 15 (1990). We have regularly insisted that courts give content
to statutory language in their charges to juries. "[A]n
instruction solely in the terms of the language of the statute
will [sometimes] not give sufficient guidance to the jury."
State v. Olivio,
123 N.J. 550, 567 (1991).
Model jury charges are often helpful to
trial courts performing this important
[charging] function. However, it is not
always enough simply to read the applicable
provision of the Criminal Code, define the
terminology, and set forth the elements of
the crime. An instruction that is
appropriate in one case may not be sufficient
for another case. Ordinarily, the better
practice is to mold the instruction in a
manner that explains the law to the jury in
the context of the material facts of the
case.
[State v. Concepcion,
111 N.J. 373, 379
(1988).]
The instructions in this case were largely devoid of
reference to the specific circumstances of the case. As noted,
the trial court instructed the jury that if Mrs. Gartland "knew
that she could avoid the necessity of using deadly force by
retreating from that house, providing . . . [that] she could do
so with complete safety, then the defense is not available to
her." We intend no criticism of the trial court because neither
party requested a charge tailored to the facts. However, an
abstract charge on the duty to retreat could only have been
confusing in the circumstances of this case. Exactly where could
she retreat? As we understand the record, there was no other way
out of the bedroom other than the doorway where her assailant
stood. The charge should have asked whether, armed with a
weapon, she could have safely made her way out of the bedroom
door without threat of serious bodily injury to herself. In the
similar circumstances of Thomas, supra,
673 N.E.2d 1339, a woman
trapped in her trailer retreated to the bathroom. Unable to
escape, she ran to a closet and took out a gun. She fired two
warning shots and even after being shot her assailant continued
to threaten her. The concurring judge asked, "[h]ad the
defendant gotten around [her cohabitant] to the door of the small
trailer, would her attempt to escape the altercation have
increased the risk of her death? Would [the cohabitant] have
become further enraged and tried to kill her?" 673 N.E.
2d at
1346 (Stratton, J., concurring). These are the circumstances
that a jury must evaluate. One of the problems in applying the
retreat doctrine to the case of a battered woman is that the
jurors may confuse the question of leaving the abusive partner
with the duty to retreat on the occasion. See Maguigan, supra,
140 U. Pa. L. Rev. at 419 (noting "there is a tendency to blur
the definition of the retreat rule with the question of whether
the woman could have escaped the relationship"). Among the many
myths concerning battered women is the belief "that they are
masochistic and actually enjoy their beatings, that they
purposely provoke their husbands into violent behavior, and, most
critically . . . that women who remain in battering relationships
are free to leave their abusers at any time." Kelly, supra, 97
N.J. at 192.
The charge on self-defense should also have been tailored to
the circumstances of the case. In State v. Wanrow,
559 P.2d 548
(Wash. 1977), the Washington Supreme Court recognized that its
traditional self-defense standard failed to account for the
perspective of abused women. Any limitation of the jury's
consideration of the surrounding acts and circumstances to those
occurring at or immediately before the killing would be an
erroneous statement of the applicable law. Id. at 556. The
Washington court held that a battered woman was entitled to have
the jury consider her actions in the light of her own perceptions
of the situation, including those perceptions that were the
product of our nation's unfortunate history of sex
discrimination. Id. at 559. At a minimum, the jury in Ellen
Gartland's case should have been asked to consider whether, if it
found such to be the case, a reasonable woman who had been the
victim of years of domestic violence would have reasonably
perceived on this occasion that the use of deadly force was
necessary to protect herself from serious bodily injury.
In another context, the failure to relate to the facts of
the case the duty to retreat and right of self-defense might not
have cut so mortally into a defendant's ability to maintain a
defense on the merits. However, the persistent stereotyping of
the victims of domestic violence requires special concern. Both
partners to the domestic tragedy are now deceased. Although we
cannot fully right past wrongs, we can correct errors in the
charge that were clearly capable of producing an unjust result.
The judgment of the Appellate Division is reversed and the
conviction of manslaughter is set aside.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, STEIN and COLEMAN join in this opinion.
NO. A-80 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELLEN GARTLAND,
Defendant-Appellant.
DECIDED June 19, 1997
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1For example, the "true man" doctrine basically provides that “an individual need not retreat, even if he can do so safely, where he has a reasonable belief that he is in imminent danger of death or great bodily harm, is without fault, and is in a place that he has a right to be. The rationale behind this rule comes from a policy against making a person act in a cowardly or humiliating manner.” State v. Renner, 1 994 WL 501778, at *7 (Tenn. Crim. App., Sept. 12, 1994) (quoting 1 W. LaFave & A. Scott, Substantive Criminal Law, s 5.7(f), at 659 (1986)), aff'd, State v. Renner, 912 S.W.2d 701 (Tenn. 1995).