STATE OF NEW JERSEY v. BENJAMIN MORRISON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4945-07T44945-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BENJAMIN MORRISON,

Defendant-Appellant.

__________________________

 

Submitted January 4, 2010 - Decided

Before Judges Rodr guez and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-08-3448.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Maryann K. Lynch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Benjamin Morrison appeals from a July 26, 2007 order denying his petition for post-conviction relief (PCR). We affirm.

The facts can briefly be summarized as follows. Defendant, then age eighteen, had been drinking alcohol and was high on Ecstasy when he got into an argument with his close friend Tariq Nunnally over a cigarette lighter. Nunnally turned away from defendant and began taking off his jacket and shirt as though possibly intending to fight with defendant. Rather than leaving the scene or engaging in a fistfight with Nunnally, defendant pulled out a .25 caliber handgun and shot his friend in the face, killing him. Defendant initially fled, but later turned himself in to the police and confessed.

In his May 24, 2001 statement to the police, defendant admitted that he pulled out the gun, pointed it at Nunnally's face and fired. He also admitted that he intended to shoot the gun at Nunnally. An eyewitness likewise told police that defendant pulled out a gun, pointed it at Nunnally's face, and shot him.

Indicted for first degree murder and related weapons offenses, defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, in a plea bargain that allowed the State to argue for a thirty-year sentence. At sentencing, Judge Fullilove issued a long and thoughtful opinion taking into account defendant's difficult family circumstances, his youth, and the fact that he was high on drugs at the time of the crime. Finding that the mitigating factors outweighed the aggravating factors, Judge Fullilove sentenced defendant to an aggregate term of eighteen years in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We upheld the sentence on an excessive sentence oral argument calendar. State v. Morrison, No. A-0892-02 (App. Div. Feb. 11, 2003). Defendant subsequently filed the PCR petition giving rise to this appeal.

In his petition, defendant contended that his trial counsel was ineffective for failing to investigate a claim of self-defense; that defendant was high on drugs and alcohol at the time of the crime and might have "had a viable claim of intoxication"; that his counsel failed to investigate potential trial witnesses who "[p]erhaps . . . could have further exculpated Petitioner"; and that trial counsel should not have let defendant plead guilty to aggravated manslaughter "against the weight of the evidence." In that connection, he argued that his plea did not provide a factual basis for a conviction of aggravated manslaughter.

In an oral opinion placed on the record on July 26, 2007, Judge Fullilove rejected those claims. Based on the autopsy report (which was included in the pre-sentence report), he noted that the victim was shot in the side of the face, causing a gunshot wound to the brain. The judge reasoned that this evidence supported a charge of aggravated manslaughter as opposed to reckless manslaughter. He also rejected defendant's claim concerning the failure to interview witnesses, because the PCR petition provided no legally competent evidence of what if any information the witnesses might have provided to assist the defense. Therefore, defendant had not presented a prima facie case of ineffective assistance so as to warrant an evidentiary hearing on that issue.

The judge concluded there was no evidence to support a claim of self-defense, because the victim did not threaten defendant with deadly force and defendant had an opportunity to retreat. The judge also reasoned that intoxication would not be a defense to aggravated manslaughter as opposed to purposeful and knowing murder. He further considered that the plea was voluntary and that defendant received an eighteen-year sentence, which was far less than the thirty years that the plea agreement would have permitted.

On this appeal, defendant presents the following points for our consideration:

POINT I: TRIAL COUNSEL FELL BELOW A REASONABLE STANDARD OF PERFORMANCE WHEN HE FAILED TO PROPERLY INVESTIGATE THE LAW AND FACT ON THE VIABLE DEFENSES OF SELF-DEFENSE AND INTOXICATION WITH REGARD TO DEFENDANT'S ACTIONS.

POINT II: TRIAL COUNSEL'S PERFORMANCE FELL BELOW A STANDARD OF REASONABLE OBJECTIVENESS AND PREJUDICED THE DEFENDANT WHEN COUNSEL FAILED TO ADEQUATELY INVESTIGATE POTENTIAL WITNESSES IN ORDER TO ESTABLISH A CLAIM OF SELF-DEFENSE.

POINT III: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PROPERLY ANALYZE THE FACTS AND LAW OF THE CASE BEFORE ADVISING DEFENDANT TO ENTER A PLEA FOR AGGRAVATED MANSLAUGHTER.

POINT IV: DEFENDANT HAS PRESENTED PRIMA FACIE EVIDENCE ENTITLING HIM TO AN EVIDENTIARY HEARING.

Having reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge Fullilove's cogent opinion. We add the following comments.

We find no merit in defendant's arguments concerning self-defense and intoxication. Nothing in the record supports a claim of self-defense using deadly force. N.J.S.A. 2C:3-4b(2). In particular, the victim was not threatening defendant with deadly force, and defendant could either have retreated or handed over the lighter. See N.J.S.A. 2C:3-4b(2)(b); State v. Rodriguez, 392 N.J. Super. 101, 114 (App. Div. 2007), aff'd, 195 N.J. 165 (2008). While voluntary intoxication might provide a defense to first degree murder, it would not provide a defense to aggravated manslaughter. See State v. Warren, 104 N.J. 571, 576-77 (1986); N.J.S.A. 2C:2-8b. Moreover, after considering defense counsel's eloquent presentation at sentencing, the court took defendant's youth and intoxication into account in imposing a much lower sentence than the plea agreement would have permitted.

We agree with Judge Fullilove that an evidentiary hearing was not required because defendant did not present a prima facie case of ineffective assistance of counsel. See State v. Preciose, 129 N.J. 451, 462-64 (1992); Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

Affirmed.

 

Defendant also pled guilty to the weapons offenses, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:39-4a, for which he received a concurrent four-year sentence after merger. Those offenses are not at issue on this appeal.

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A-4945-07T4

January 14, 2010