State v. Michael Coppola, unpublished opinion, App. Div. Docket No. A-0256-08T4 (September 7, 2010) – Convictions reversed.
“Defendant requested that the trial court give the use of force against an intruder instruction. See Model Jury Charge Criminal, ‘Justification – Use of Force Upon an Intruder’ (1991). He objected to the judge giving the general self-defense charge. See Model Jury Charge Criminal, ‘Justification – Self Defense – In Self Protection’ (2006)….
We agree that the use of force against an intruder instruction was necessary and that the general self-defense charge should not have been given…. [T]he jury was not provided with a legal basis to determine whether or not Vogel should have been considered an intruder. The jury was told only that an intruder is someone ‘who is unlawfully in the dwelling’ and ‘was not licensed or privileged to be in the dwelling.’… [T]he jury was not provided with any guidance as to the definition of the term ‘intruder.’ Even if it had been, as a matter of law, the State could not prove beyond a reasonable doubt that Vogel was not an intruder…. [I]t is undisputed that Vogel’s return to defendant’s home was solely for the purpose of confrontation…. He asked to be driven there because his stated intent was to confront defendant…. [T]he only reasonable inference that can be drawn from the testimony, and the condition of the home as depicted on the DVD, was that Vogel acted immediately once defendant opened the door. The entire sequence of events took place over very few minutes. If Vogel was an intruder, defendant was justified in using deadly force to counter any unlawful force Vogel threatened to inflict…. The disproportionality of the force employed by defendant should not have played a role in the jury’s consideration. Despite this key difference between the two theories of self-defense — that in general self-defense, the proportionality of an actor’s response is considered by a jury, and that in self-defense against an intruder, disproportionality is not a consideration — the disproportionality concept was introduced in the general self-defense instruction…. Vogel’s entry to confront defendant makes him an intruder. The jury’s sole focus should have been whether the circumstances otherwise met the relevant standards for self-defense against an intruder. The jury should have been focused on, as spelled out in the instruction, whether Vogel’s attack was ‘sudden and unexpected’ and whether defendant’s belief that he needed to protect himself was reasonable.”