STATE OF NEW JERSEY v. DAVID P. GIORDANO
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4080-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID P. GIORDANO,
Defendant-Appellant.
_______________________________________
Argued January 23, 2018 – Decided March 8, 2018
Before Judges Yannotti and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
13-03-0819.
Joshua D. Sanders, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Joshua D. Sanders, on the brief).
Nancy P. Scharff, Assistant Prosecutor, argued
the cause for respondent (Mary Eva Colalillo,
Camden County Prosecutor, attorney; Nancy P.
Scharff, of counsel and on the brief).
PER CURIAM
Defendant David P. Giordano was tried before a jury, which
found him guilty of aggravated manslaughter and possession of a
weapon for an unlawful purpose. Defendant appeals from the judgment
of conviction dated March 30, 2016. We affirm.
I.
A Camden County grand jury charged defendant with two offenses
arising from the death of Michael Taylor: first-degree murder,
contrary to
N.J.S.A. 2C:11-3(a)(1) and (2) (count one), and third-
degree possession of a weapon for an unlawful purpose, contrary
to
N.J.S.A. 2C:39-4(d) (count two). Defendant later was tried
before a jury.
At the trial, the State presented evidence, which established
that on June 5, 2012, defendant was residing in a multiple dwelling
in Voorhees that included four condominiums, two on the first
floor and two on the second floor. Defendant and B.K. were living
in condominiums on the second floor.1 Taylor was living in the
condominium directly beneath defendant's condominium.
The stairway from the first to the second floor extends
outward from the center of the front of the building. There is an
open, roofed landing at the top of the stairs, which extends from
1
We use initials to identify some of the individuals involved in
this matter to protect their privacy.
2 A-4080-15T2
the entry doors to the two condominiums, across the front of the
building.
L.M. testified that at around 1:00 p.m., she was visiting
B.K. in his condominium, when she heard banging outside and people
"yelling back and forth." She opened the door to see what was
happening and observed defendant on top of Taylor on the porch
"straight across" from B.K.'s condominium, "up against the
balcony." According to L.M., defendant was "straddled over"
Taylor. Taylor was laying on his back, but using both hands to get
defendant off him.
L.M. testified that defendant had a black-handled butcher
knife in his right hand. She did not see him stab Taylor, but she
saw blood on the floor on the landing in front of B.K.'s
condominium and on Taylor, who appeared to be injured. L.M. did
not think that Taylor was armed with any weapon. L.M. slammed the
door and screamed that they had to call 9-1-1.
L.M. made the call and as she was doing so, opened the door.
She observed Taylor laying on his stomach in front of the door to
B.K.'s condominium. Taylor was trying to bang on the door with his
hand. On the recording of the 9-1-1 call, B.K. is heard stating
that Taylor was "dying outside of my door." B.K. shut the door and
told L.M. to stay inside, but she went outside and saw that Taylor
was bleeding badly. She applied pressure to his wounds, following
3 A-4080-15T2
directions relayed to her by the person who answered the 9-1-1
call.
S.S. was also in B.K.'s condominium when the stabbing
occurred. He testified that he also heard a "big bang" outside the
door to the condominium and then saw defendant stab Taylor. He
said Taylor was on his back and defendant was on top of and
crouched over him. According to S.S., Taylor did not have a weapon,
and he was in a defensive position, trying to ward off the attack.
S.S. stated that at that time, the two men were directly in front
of the door to B.K.'s condominium.
S.S. testified that he saw defendant stab Taylor two times
in his abdomen using a knife, which he described as "fairly large."
He said the knife was about six to seven inches long. He commented
that Taylor's arm was "really cut bad" and he was bleeding
profusely.
S.S. acknowledged that in his initial statement to the police,
he indicated that he did not really see anyone when he opened the
door, but he said he thought the police were asking him about the
second time he opened the door. He also admitted that his second
statement, which he provided to the police in February 2015, was
the first time he said defendant had been the aggressor. He
testified that he did not tell the officers he had seen defendant
stab Taylor because he feared for his life and did not want to get
4 A-4080-15T2
involved. Later, after Taylor died, S.S. decided he had to tell
the truth about what he saw.
B.K. testified that on June 5, 2012, he was in his condominium
with L.M. and S.S. watching television, listening to music, and
drinking beer. Around 1:00 p.m., B.K. heard a loud "thump" outside
the door. He opened the door and saw defendant stab Taylor. Taylor
was on his backside, with his back against the front railing on
the landing, and defendant was "hunched over" him.
According to B.K., defendant had a knife and it did not appear
that Taylor had a weapon. Taylor was defending himself, using both
arms to try to push defendant off. B.K. described the knife as a
kind of kitchen knife with "the biggest butcher blade." He said
he saw defendant stab Taylor in the chest area. As this was
happening, B.K. slammed the door shut but he looked out the side
window and he could see blood gushing from Taylor's arm.
Taylor knocked on the door and asked for help, stating that
he was hurt and bleeding. B.K. would not let Taylor in because he
was afraid defendant still had the knife. He waited until the
police arrived, which was less than five minutes later. At this
point, Taylor had collapsed. He was laying on his back on the
stairs. B.K. passed towels and cloths to L.M., who was outside
attempting to aid Taylor. B.K. did not give a statement to the
5 A-4080-15T2
police until after he received a subpoena. He said he did not want
to get involved.
One of the Voorhees police officers testified that Taylor was
conscious when he responded to the scene. Taylor told the officer
defendant had stabbed him before he kicked in the door to
defendant's condominium. Taylor said he chased defendant after
defendant stabbed him. Taylor also pointed to defendant's
condominium and said "Dave stabbed me."
The trauma surgeon who treated Taylor testified that Taylor
was "awake and alert" but "very agitated." Taylor seemed to be
answering questions although he was "a little bit confused." The
doctor testified about what Taylor said to him. Taylor told the
doctor he lived on the bottom floor of the building and his
upstairs neighbor had a balcony.
Taylor said he had a birdcage and his upstairs neighbor had
been throwing water down onto the birds in the cage. This upset
Taylor and he yelled at the neighbor several times. At some point,
Taylor told the neighbor "he was coming." According to the doctor,
Taylor stated that
[h]e left his apartment, ran up the stairs
where he said he was met at the door by his
upstairs neighbor who came out with a pair of
knives in his hands. . . . He told me that
when he got to the landing, the neighbor came
to the doorway with the knives. His quote to
me was that "He said if you want to fight,
6 A-4080-15T2
we're going to fight." And that's all he
really said. At that point, he stopped
speaking . . . .
The doctor testified that Taylor died on June 24, 2012, noting
that he had been "incredibly ill" while in the hospital.
The Medical Examiner for Camden, Gloucester, and Salem
Counties performed Taylor's autopsy. The doctor stated that Taylor
had two stab wounds in the chest and one in his left arm above the
elbow. One of the stab wounds struck the heart and lung. The stab
wound in the arm was deep and could have caused moderate to
excessive blood loss. The doctor opined to a reasonable degree of
medical certainty that the cause of Taylor's death was multiple
stab wounds, and the manner of death was a homicide.
Defendant's videotaped statement was played for the jury
during the testimony of the detective from the Camden County
Prosecutor's Office, who interviewed defendant on the day of the
stabbing. Defendant said he came out of his condominium with a
knife and did so "before the fight started." He stated that he
confronted Taylor before he got to the door. The detective asked
if the incident started inside the condominium, and defendant
replied, "[n]o, we were outside, we weren't inside, we were
outside."
Defendant claimed that Taylor punched and kicked him, but
admitted that he first stabbed Taylor with the knife. He had been
7 A-4080-15T2
aiming for Taylor's hand. He also admitted that Taylor had his
arms up when he swung at him. The detective asked why defendant
had not called the police instead of grabbing the knife and going
outside, and defendant replied that he did so thinking that Taylor
"would go away." Defendant said he returned to his condominium
after he stabbed Taylor and Taylor tried to follow him. Defendant
shut the door, but Taylor "kicked the door in."
Defendant stated that at this point, the incident ended. He
did not go outside again, but went to the kitchen sink, washed the
knife and tried to clean up the blood. He denied that he saw Taylor
laying on the ground, or people trying to help him. A DNA test
indicated that Taylor was the source of a major DNA profile on the
blade of the butcher knife recovered from defendant's kitchen
drawer.
Defendant presented testimony from R.R., L.M.'s father, who
resides with L.M. in the condominium complex. He provided an
account that differed in part from the accounts of the other
witnesses. He stated that he heard hollering and cursing, and saw
Taylor following defendant up the stairs. According to R.R., Taylor
lunged at defendant when he reached the landing. However, R.R.
later said defendant was already at the top of the stairs when
Taylor threw him down. He stated that defendant suddenly got up
and ran away, and Taylor ran after him, pounding on his door.
8 A-4080-15T2
Defendant testified he had been confused when the detectives
questioned him after the incident. He stated that he told the
detectives the door had been kicked down, and then he and Taylor
had the confrontation, but "it was really we had the confrontation
and then the door was kicked down." Defendant acknowledged he
stabbed Taylor. He did not know whether he used the butcher knife.
Defendant admitted he could have locked his door when he heard
Taylor coming up the stairs, but he "never thought about" doing
that. He claimed he was upset and nervous and wanted to "calm the
situation down" so he "went and got the knife and went outside."
After observing a portion of his videotaped statement,
defendant testified he and Taylor wound up in front of B.K.'s
condominium because he grabbed Taylor's foot when Taylor allegedly
tried to kick him. He stated that after the stabbing, he returned
to his condominium. He acknowledged he confronted Taylor before
Taylor got to defendant's door, and when he saw Taylor coming up
the stairs, he went outside to confront him.
The jury found defendant not guilty of murder, but guilty of
the lesser-included offense of aggravated manslaughter.
N.J.S.A.
2C:11-4(a). The jury also found defendant guilty of possession of
a weapon for an unlawful purpose. The judge granted defendant's
motion to sentence him as a second-degree offender, and imposed
an eight-year prison term, with an eighty-five percent period of
9 A-4080-15T2
parole ineligibility, pursuant to the No Early Release Act,
N.J.S.A. 2C:43-7.2. The judge also imposed a concurrent three-year
term for the weapons offense. In addition, the judge imposed
appropriate penalties and assessments. This appeal followed.
II.
On appeal, defendant raises a single issue, which he did not
raise in the trial court:
THE JURY INSTRUCTIONS IMPROPERLY OMITTED AN
ENTIRE RELEVANT SUBSECTION OF THE APPLICABLE
STATUTE ON SELF-DEFENSE, TO WIT, THE USE OF
DEADLY FORCE AGAINST AN INTRUDER, WHICH WAS
CLEARLY INDICATED BY THE RECORD, IN A CASE
WHERE THE DEFENSE WAS SELF-DEFENSE.
We note that when, as here, a defendant does not request a
jury instruction or object to its omission from the charge, we
review the judgment for plain error. State v. Funderburg,
225 N.J.
66, 79 (2016). Thus, we will disregard the error "unless it is of
such a nature as to have been clearly capable of producing an
unjust result." Ibid. (citing R. 2:10-2; State v. Robinson,
165 N.J. 32, 47 (2000)). "The mere possibility of an unjust result is
not enough." Ibid. (quoting State v. Jordan,
147 N.J. 409, 422
(1997)). To warrant reversal of a conviction, the error "must be
sufficient to raise 'a reasonable doubt . . . as to whether the
error led the jury to a result it otherwise might not have
10 A-4080-15T2
reached.'" Ibid. (alteration in original) (quoting State v.
Jenkins,
178 N.J. 347, 361 (2004)).
Here, the trial judge instructed the jury on self-defense by
providing the jury with the model jury instruction. See Model Jury
Charge (Criminal), "Justification – Self Defense (
N.J.S.A. 2C:3-
4)" (rev. June 13, 2011). Among other things, the judge instructed
the jury that, "[w]hen a person is in imminent danger of bodily
harm, the person has a right to use force, or even deadly force,
when that force is necessary to pre[v]ent the use against him of
the unlawful force." The judge stated, "[t]he force used by the
defendant must not be significantly greater than and must be
proportionate to the unlawful force threatened or used against the
defendant."
The judge stated that there are "different levels of force
that a person may use in his own defense to prevent unlawful harm."
The judge said "[t]he defendant can only use that amount of force
. . . that he reasonably believes is necessary to protect himself
against harm." The judge said, "[i]f the defendant is attempting
to protect himself against exposure to death or substantial danger
of serious bodily harm, he may resort to the use of deadly force.
Otherwise, he may only resort to non-deadly force."
The judge explained the concepts of unlawful force, deadly
force, and serious bodily harm. The judge told the jury that it
11 A-4080-15T2
had to determine whether defendant used deadly force and if so,
whether defendant reasonably believed he had to use such force "to
defend against the unlawful conduct of another." The judge then
said that self-defense "exonerates a person who uses force in the
reasonable belief that such action was necessary to prevent his
or her death or serious injury even though his belief was later
proven mistaken." The judge noted that "the law only requires a
reasonable, not necessarily a correct[,] judgment."
The judge also explained that there are limitations on the
use of deadly force, and that the defense of self-defense was not
available to defendant if he knew he could "avoid the necessity
of using deadly force by retreating, provided the defendant knew
he could do so with complete safety." The judge added, however,
that there is an exception to the rule of retreat and a person
need not retreat from his own dwelling, including a porch, unless
he was the initial aggressor. The judge stated that "[a] dwelling
includ[es] the porch or other similar structure."
The judge further explained that the State had the burden of
proving beyond a reasonable doubt that the defense of self-defense
is "untrue." The judge noted that this defense "only applies if
all conditions or elements previously described exist." The
defense must be rejected "if the State disproves any of the
12 A-4080-15T2
conditions beyond a reasonable doubt." The same applies to the
issue of retreat.
The judge commented, "[t]he burden of proof is upon the State
to prove beyond a reasonable doubt that the defendant knew he
could have retreated with complete safety. If the State carries
its burden to you, you must disallow the defense." The judge
further explained that if the State does not meet this burden and
the jury has a reasonable doubt, "then it must be resolved in
favor of the defendant and you must allow the claim of self-defense
and acquit the defendant."
III.
On appeal, defendant argues that the judge should have
instructed the jury sua sponte on self-defense involving use of
force upon an intruder, pursuant to
N.J.S.A. 2C:3-4(c)(1), which
states:
notwithstanding the provisions of N.J.S.[A.]
2C:3-5, N.J.S.[A.] 2C:3-9, or this section,
the 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.
Defendant argues that the jury clearly had a basis to find
that he was confronted by an intruder, who was about to do him
13 A-4080-15T2
harm. He contends that he armed himself in self-defense from the
"approaching, menacing" Taylor. He contends the jury could have
determined that he was lawfully in his dwelling and reasonably
believed he was threatened by the "attacking" Taylor. He argues
that the jury was wrongly left to consider only the standard
version of self-defense.
We are not persuaded by these contentions. As defendant
recognizes, the trial judge is only required to instruct a jury
sua sponte on a defense "when the evidence clearly indicates the
appropriateness of such a charge." State v. Walker,
203 N.J. 73,
87 (2010). See also State v. Denofa,
187 N.J. 24, 42 (2006)
(requiring sua sponte instruction on lesser-included offense when
evidence "clearly indicates" the instruction is required). Here,
the evidence did not "clearly indicate" that when defendant used
deadly force, Taylor was an "intruder" unlawfully in defendant's
"dwelling."
As we have explained, the testimony at trial indicated that
defendant stabbed Taylor on the second-floor landing of the
building, outside of B.K.'s condominium. At that point in time,
Taylor could not be considered an intruder unlawfully within
defendant's "dwelling." As the judge explained, a dwelling
includes a porch or similar structure. Even if we consider the
landing a "porch," the evidence did not "clearly indicate" that
14 A-4080-15T2
the part of the landing in front of the door to B.K.'s condominium
was a part of defendant's "dwelling." Moreover, the evidence did
not "clearly indicate" that the jury could find that when defendant
used deadly force, it was "immediately necessary for the purpose
of protecting himself or other persons in the dwelling against the
use of unlawful force by" Taylor.
N.J.S.A. 2C:3-4(c).
We note that in instructing the jury on self-defense, the
judge stated that defendant did not have a duty to retreat "from
his own dwelling, including the porch, unless he . . . was the
initial aggressor." The judge explained that "[a] dwelling
includ[es] the porch or other similar structure." The judge
apparently thought that the jury should determine whether all or
part of the second-floor landing was defendant's "dwelling."
We need not decide whether the judge erred by including this
instruction in the charge. We hold only that the judge's failure
to charge the defense under
N.J.S.A. 2C:3-4(c) was not plain error.
As we have explained, the evidence did not "clearly indicate" that
such a charge was required and its omission was not "clearly
capable of producing an unjust result." R. 2:10-2.
Our decision in State v. Bilek,
308 N.J. Super. 1 (App. Div.
1998), does not support defendant's argument. In that case, the
defendant was found guilty of fourth-degree aggravated assault,
contrary to
N.J.S.A. 2C:12-1(b)(4). Id. at 3. The defendant was
15 A-4080-15T2
the part-time superintendent of an eighteen-unit apartment
complex, and he lived in one of the apartments on the third floor.
Id. at 5-6. There was one entrance into the apartment, which went
from the common hallway into the kitchen. Id. at 6. A neighbor was
told that defendant used profane language toward his sister and
he went to defendant's apartment. Ibid.
The defendant refused to answer the door, and the neighbor
returned to his apartment. Ibid. He told his father, who became
angry and went with his son to the defendant's apartment. Ibid.
When the defendant opened his door, the neighbors confronted him.
Ibid. Apparently, the dispute "became quite heated." Ibid. The
parties disagreed as to whether the neighbors were in the
defendant's kitchen at the time; however, it was "clear that they
were, at the least, in the doorway to the apartment." Ibid.
Defendant claimed he was terrified. Ibid. He went to his bedroom,
returned with a gun, "racked it," and pointed it at the neighbors.
Ibid.
We held that the judge erred by giving the jury the general
self-defense instruction and the charge for defense of one's home
against intruders, noting that only the latter charge was required.
Id. at 11-12. We observed that the concept of a "dwelling" should
have been "expressly defined to include the apartment's
entranceway." Id. at 12. We noted that "the trial judge referred
16 A-4080-15T2
to a porch as being part of a dwelling" but that would not
necessarily "be understood to include the doorway into a common
hallway in an apartment setting." Ibid.
Bilek thus provides no support for the conclusion that the
landing on the second floor of defendant's building where defendant
stabbed Taylor was part of his "dwelling." As we have explained,
Bilek dealt with an incident that occurred either within or in the
entranceway to the defendant's apartment.
The decision in State v. Bonano,
59 N.J. 515 (1971), also
does not support defendant's argument. There, the Court considered
the doctrine of retreat and expressly limited it to cases "where
the defendant is actually in his dwelling house." Id. at 520. In
Bonano, the defendant apparently struck his wife because she left
the house without his permission. Id. at 517.
The defendant's step-daughter informed defendant's brother-
in-law about what had happened. Ibid. The brother-in-law armed
himself with a knife and set out for his sister's home. Ibid. The
defendant was standing in the doorway of his house as his brother-
in-law began to mount the steps of the house. Ibid. The defendant
fired a revolver and shot his brother-in-law, who died shortly
thereafter. Ibid. The Supreme Court held that a person need not
retreat when attacked in his own dwelling house, and a dwelling
17 A-4080-15T2
includes "[a] porch or other similar physical appurtenance." Id.
at 519-20.
However, the facts of this case are significantly different
from those in Bonano, where the defendant was standing in the
doorway to his home. The duty to retreat did not apply because the
defendant was within his "dwelling home," which included his porch.
In this case, the evidence presented at trial did not "clearly
indicate" that the area of the second-floor landing outside of
B.K.'s condominium, where defendant used deadly force, was part
of defendant's "dwelling home." Thus, the judge had no obligation
to sua sponte charge the defense under
N.J.S.A. 2C:3-4(c).
Affirmed.
18 A-4080-15T2
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