State v. Blanks

Page 55

313 N.J.Super. 55

712 A.2d 698

STATE of New Jersey, Plaintiff-Respondent, v. Benjamin BLANKS, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued March 4, 1998.

Decided June 24, 1998.

Stephen W. Kirsch, Assistant Deputy Public Defender, for defendant-appellant (Ivelisse Torres, Public Defender, attorney; Mr. Kirsch, of counsel and on the brief).

Bennett A. Barlyn, Deputy Attorney General, for plaintiff-respondent (Peter Verniero, Attorney General, attorney; Mr. Barlyn, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

Before Judges KING, KESTIN and CUFF.

The opinion of the court was delivered by

CUFF, J.A.D.

This appeal requires us to determine whether a defendant must admit using a weapon to intentionally kill the aggressor in the act of defending himself in order to be entitled to a self-defense instruction. We hold that, under the circumstances of this case, defendant was entitled to a self-defense charge even though he did not admit using his handgun in self-defense and intentionally killing the aggressor. Because of errors in the self-defense charge, as well as the charge concerning unlawful possession of the handgun and the omission of a charge on passion/provocation manslaughter, a new trial is required.

A jury convicted defendant Benjamin Blanks of the knowing or purposeful murder in violation of N.J.S.A. 2C:11-3a(1),(2) of Ronald Massey, the boyfriend of the daughter of his long-term paramour, and possession of a weapon (a handgun) for an unlawful purpose in violation of N.J.S.A. 2C:39-4a. The trial judge merged the weapons conviction with the murder conviction and imposed a life term with a thirty-year period of parole ineligibility. The usual penalties and assessments were also imposed.

On appeal, defendant raises the following points:

POINT I

SINCE DEFENDANT WAS IN HIS OWN DWELLING AT THE TIME OF THE ENCOUNTER WITH THE DECEDENT, THE JUDGE SHOULD NOT HAVE CHARGED THE JURY THAT DEFENDANT HAD A DUTY TO RETREAT BEFORE USING DEADLY FORCE. (Not Raised Below).

POINT II

A JURY INSTRUCTION ON PASSION/PROVOCATION MANSLAUGHTER SHOULD HAVE BEEN GIVEN. (Not Raised Below).

POINT III

NO HARMON INSTRUCTION WAS GIVEN TO THE JURY ON POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE. (Not Raised Below).

In his supplemental pro se submission, the following points are argued:

POINT I

THE TESTIMONY OF ANDREA EFFINGER WHEREIN SHE STATED THAT DEFENDANT DID NOT LIKE THE VICT[I]M WAS OPINED TESTIMONY THAT LACK[S] FOUNDATION AND SHOULD HAVE BEEN STRICKEN FROM THE RECORD TO AVOID POSSIBLE PREJUDICE TO THE JURY AND DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL TRIAL.

POINT II

APPELLANT'S SIXTH AMENDMENT RIGHTS UNDER THE UNITED STATE[S] AND NEW JERSEY CONSTITUTION W[ERE] VIOLATED BY TRIAL COUNSEL.

Due to errors in the jury instructions which had the clear capacity to produce an unjust result, we reverse the convictions and remand for a new trial. In light of this disposition, we need not reach defendant's pro se supplemental arguments.

On September 24, 1994, twenty-four year old Massey was killed by a single gunshot wound to his head. At the time he was killed, Massey was visiting his girlfriend Andrea Effinger (Andrea), and their child, Rahmael. Andrea and Rahmael lived in a four-bedroom apartment in Hoboken with Andrea's mother, Rinda Effinger (Rinda); Andrea's sisters, Latoya and Shauntee Effinger; defendant; Rinda's son, Anthony Effinger; and Rinda and defendant's son, Jason. Defendant and Rinda had lived together for many years and shared a bedroom in the apartment.

At the time of the shooting, Andrea had dated Massey for a year and a half; their son was five months old. Massey visited her every day at the apartment. According to Andrea, defendant did not like Massey. Andrea drew this conclusion from "[t]he way [defendant] used to act towards [Massey]."

According to Andrea, Massey arrived at the apartment at approximately 10 p.m. Everyone, except defendant, was home at the time. Soon after his arrival, Massey went into the kitchen to make himself something to eat. At approximately 10:30 p.m., Andrea went into the kitchen where she observed Massey cooking eggs. While Andrea was in the kitchen talking to Massey, defendant came home, looked into the kitchen, walked down the hallway to his room and slammed the door. Defendant said nothing to anyone, and Andrea expressed surprise to Massey that defendant "didn't start tonight."

Andrea then went to check her son. After about a minute, Andrea saw defendant walk past her room on his way to the kitchen. A few seconds later, Andrea heard a "pow." Her mother and sister screamed, "Oh my God, Ben shot Ron." Andrea ran to the kitchen and saw Massey lying on the kitchen floor.

When Andrea got to the kitchen, defendant was in the hallway, walking back to the bedroom. Defendant had a gun in his hand and was waving it around. Andrea jumped on defendant. Anthony, who had been asleep in his bedroom, was awakened by the sound of the shot. He came out of his room and joined in the scuffle in an attempt to get the gun away from defendant. Eventually, defendant freed himself from Anthony and Andrea, walked into his room, put the gun away and returned to the hallway. Shortly thereafter, a housing authority police officer entered the apartment and arrested defendant.

According to Andrea, Anthony and Shauntee, defendant was intoxicated at the time of the incident. Shauntee saw defendant enter the kitchen and say to Massey, "I told you that I didn't want you here." She heard Massey say "all right" and she heard a bang "[r]ight after Ron said 'all right.' " Shauntee went into the kitchen and saw Massey lying on the floor. Shauntee did not witness the actual shooting. She does not know whether Massey moved toward defendant or punched defendant.

Defendant testified in his defense. According to defendant, he had the loaded gun with him all day, although he never carried the gun on his person at any other time except when he went fishing. The gun was not registered and defendant did not have a permit for the gun, even though he knew it was illegal to carry a gun without a permit.

Defendant testified that he carried the gun with him that day because someone broke the lock on the cabinet where he kept the gun and he was afraid the children would find it. Although he stored the gun unloaded, defendant loaded the gun that day because Anthony had been robbed just two days before, and defendant was to pick up receipts from a social club on that date.

Defendant carried the gun in the front right pocket of his denim pants. He testified that the gun could not be seen while inside his pants and that the pants fit comfortably with the gun in the pocket.

Defendant related that he attended the funeral of a friend that day and arrived at a social club after 3:30 p.m. While there, he consumed "three or four" beers and "[m]aybe a half-pint" of brandy. Defendant is a diabetic; therefore, when he arrived home, he went directly to his room to inject himself with insulin. Defendant did not remember looking into the kitchen when he got home that night. However, he did recall seeing Andrea, Latoya, Shauntee and Rinda.

When he entered the kitchen, defendant recalled that he saw Massey and said to him something like, "I thought I told you not to come here." According to defendant, Massey was belligerent, stepped close to defendant and punched him in the face. Defendant testified that he has had "four bypass surgeries" and that one punch could kill him. Defendant testified that he reacted immediately to Massey's blow. He remembered trying to hit Massey back, but everything else "went blank." Defendant stated that he heard the shot and then noticed that he had the gun in his hand.

Defendant admitted that he had the gun in his hand after the shooting. However, he did not remember putting his hand into his pocket, taking the gun out of his pocket, cocking the gun or aiming the gun at Massey. He did not remember pulling the trigger. He could not explain how the gun discharged. He did recall that he walked to his bedroom and put the gun in the cabinet after the shooting.

According to defendant, he had no hard feelings for Massey. He admitted, however, that he did not want Massey in the apartment on the night of the incident. Defendant explained that he had the police put Massey out of the apartment on a prior occasion because Massey always smelled of marijuana, and defendant did not want drugs in his home.

I

Defendant requested and received a self-defense charge. He argues, however, that the charge was erroneous because the jury was informed that defendant had a duty to retreat. The State concedes that the trial judge should not have instructed the jury that defendant had a duty to retreat. Nevertheless, it argues that the error is harmless. First, the State emphasizes that defendant failed to object at trial and the error does not constitute plain error. Second, the State contends that the self-defense charge was wholly unwarranted because defendant never admitted that he shot Massey.

The erroneous segment of the self-defense instruction is the following statement:

If you find that the defendant knew that he could avoid the necessity of using deadly force by retreating, provided that the defendant knew he could do so with complete safety, then the defense is not available to him.

A person need not retreat if the person is attacked in his or her home by someone who is not a cohabitant. N.J.S.A. 2C:3-4b(2)(b)(i); State v. Gartland, 149 N.J. 456, 467, 694 A.2d 564 (1997). Massey did not reside in the apartment. We need not decide whether Massey's status as a frequent visitor altered his status to that of a cohabitant for purpose of the retreat doctrine. See State v. Felton, 180 N.J.Super. 361, 365, 434 A.2d 1131 (App.Div.1981).

Rule 2:10-2 permits an appellate court to consider a previously unchallenged jury instruction only if any error...