STATE OF NEW JERSEY v. SHANNAYA STHURTHERS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1404-04T41404-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHANNAYA STHURTHERS, A/K/A

LATISHA HARRIS,

Defendant-Appellant.

_________________________________

 

Submitted October 24, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County, Indictment

No. 03-08-2671.

Yvonne Smith Segars, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy

Public Defender I, of counsel, and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor,

of counsel, and on the brief).

PER CURIAM

Following a bench trial, defendant, Latisha Harris, was found guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count 1); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count 2); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count 3). The court merged the count three weapons conviction with the conviction of aggravated assault, imposing for that crime a five-year term subject to an 85% mandatory minimum period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed a concurrent eighteen-month term on the conviction of unlawful possession of a weapon. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.

In challenging the judgment of conviction, defendant raises the following issues:

I. THE TRIAL COURT'S FAILURE TO CORRECTLY CONSIDER AND APPLY SELF-DEFENSE CONSTITUTES A DENIAL OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL AND REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.

II. THE CONVICTION MUST BE REVERSED AS UNSUPPORTED BY PROOF OF ALL ELEMENTS OF THE OFFENSES. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Not Raised Below)

III. DEFENDANT'S CONVICTION FOR UNLAWFUL POSSESSION OF A WEAPON MUST BE MERGED AND VACATED. (Not Raised Below)

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

This criminal episode arises out of an altercation that ensued while the victim, Raheeda Rollins, was visiting her former lover, Tia Pratt, with whom defendant was presently having a sexual relationship. According to the State's proofs, on February 1, 2003, at about 10:00 p.m., Raheeda, who was about to leave town for North Carolina, arrived at Tia's East Orange residence to ask her to go to a club in an apparent attempt to seduce her later that night. When Raheeda arrived, Tia and defendant emerged from another room in the front of the house, and Tia introduced defendant to Raheeda as her cousin when, in fact, the two had known each other for eight years and previously had been involved in a sexual relationship for six to eight months. Following some casual conversation, Raheeda and Tia left the residence to visit another friend, but returned shortly thereafter.

Upon their return, Raheeda sensed some tension and asked Tia to walk her out to the porch. In the meantime, defendant, who was becoming suspicious of Raheeda, had changed from boxers and a t-shirt to a long sleeve shirt and jeans. After about fifteen minutes, defendant emerged from the house onto the porch and questioned Raheeda about her identity. When Raheeda responded "Peaches", defendant, realizing that Raheeda was Tia's former lover, turned to Tia and said, accusatorily, "So, bitch, so you lied." Evidently feeling angry and betrayed, defendant rolled up her sleeves and "took a swing" at Raheeda, hitting her in the face. A fight ensued, during which Raheeda battled defendant to her knees where, it can be inferred, defendant came from underneath and stabbed Raheeda three times with a knife in the abdomen.

Although she did not see the knife during the attack, Raheeda saw the weapon in defendant's hand as defendant chased her off the porch. Wounded and bleeding, Raheeda drove to her sister's house and then to the hospital where she was admitted at 10:50 p.m. and underwent emergency surgery. As a result of the stabbing, Raheeda was unable to eat for one week or walk for one month. After moving to North Carolina, she underwent a second surgery due to complications from her injuries that left her hospitalized for another week and one-half.

We consider the issues raised in light of this background. First, we reject defendant's argument that the trial court wrongly rejected the defense of self-defense. Having determined, based on substantial credible evidence, that defendant was the aggressor, the trial judge relied on the relevant limitation on the use of deadly force for self-defense:

If you find that the defendant, with the purpose of causing death or serious bodily injury to another person, provoked or incited the use of force against herself in the same encounter, then the defense is not available to her.

The judge continued:

(T)he amount of force used by the defendant was not immediately necessary for her protection in the case, that the force used was disproportionate in its intensity compared to the force used by Peaches. So, I find that the use of deadly force here by the defendant was not justified. The self-defense claim fails.

The judge predicated this ruling on the finding that:

the defendant did arm herself with that knife in preparation of causing a problem on that porch and that she threw the first punch, got the victim in such - so close to her that she was able to utilize the knife

. . . . manifesting extreme indifference to the value of human life.

We agree that the judge properly rejected the defense of self-defense.

The self-defense doctrine exonerates a person from criminal liability for using deadly force where the person had a reasonable belief that such force was immediately necessary for self-protection against death or serious bodily harm. See State v. Moore, 158 N.J. 292, 308-09 (1999); State v. Bryant, 288 N.J. Super. 27, 34 (App. Div.), certif. denied, 144 N.J. 589 (1996). There are, however, well-recognized limitations specifically on the use of deadly force by the actor. Thus, N.J.S.A. 2C:3-4b(2) provides in relevant part:

The use of deadly force is not justifiable under this section unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm; nor is it justifiable if:

(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter[] . . .

As a general proposition, a person may not use more force than that which she reasonably believes is necessary to repel the attack. See Bryant, supra, 288 N.J. Super. at 36-37; see also State v. Villanueva, 373 N.J. Super. 588, 596-601 (App. Div. 2004); State v. Simms, 369 N.J. Super. 466, 472 (App. Div. 2004). Consequently, the actor may resort to the use of deadly force - that which she knows to create a substantial risk of death or serious bodily harm - only if she "reasonably believes . . . such force is necessary to protect h[er]self against death or serious bodily harm." N.J.S.A. 2C:3-4b(2). Otherwise, she may only resort to non-deadly force. Bryant, supra, 288 N.J. Super. at 37. In other words, deadly force is not necessary if lesser force will repel the attack. Ibid. And even in that event, the amount and degree of force need be proportionate to what the actor reasonably judges necessary. Cannel, New Jersey Criminal Code Annotated, comment 9 on N.J.S.A. 2C:3-4 (2005).

Finally, for present purposes, paragraph b(2)(a) of N.J.S.A. 2C:3-4 creates another limitation on the use of deadly force in that an actor who, "with [a] purpose of causing death or serious bodily harm provoke[s]" the attack to which he then responds may not respond with deadly force and call it self-defense. (emphasis added). See also Cannel, supra, comment 11. Stated somewhat differently, deadly force may not be used where a defendant, with the intent to "caus[e] death or serious bodily harm . . . provoked . . . the use of force against h[er]self in the same encounter." Bryant, supra, 288 N.J. Super. at 37. In Moore, supra, 158 N.J. at 311-12, the Court found that deadly force was in fact used and the defendant had initiated the confrontation at issue by yelling something along the lines of "what are you looking at?" and then brandishing a gun. This action could be seen as a deliberate attempt to start a fight in which someone would be killed or seriously injured. Therefore, the Court determined that the defendant was an aggressor barred from the defense. Ibid.

We are satisfied that in rejecting the defense of self-defense in this case, the trial court was properly governed by these guiding principles. Indeed, sufficient credible evidence demonstrates that defendant was the aggressor, initiating the confrontation; emerging from the house armed with a weapon concealed in a change of clothes and "ready for action"; and throwing the first punch. In contrast, Raheeda had exhibited no aggressive behavior toward either Tia or defendant prior to defendant attacking her on the front porch. As the trial judge aptly observed, Raheeda was not looking for a fight when she visited Tia's residence that evening, rather she was looking to "spend an evening with a former lover before she left."

Moreover, Raheeda only used non-deadly force against defendant sufficient to repel defendant's sudden attack and proportionate to the amount of force initially exerted by defendant. However, faced with neither the threat of death nor serious bodily harm, defendant responded with a weapon that was capable of causing death and did, in fact, inflict serious bodily harm upon Raheeda. Thus, even assuming mutual combat, there was no reason for defendant to believe that the use of deadly force against her victim was necessary to protect herself against death or serious bodily harm, and thus the defense of self-defense was not available under the circumstances to exonerate her from criminal liability.

Contrary to defendant's next contention, her conviction was supported by sufficient credible evidence. In this regard, our review of non-jury convictions is exceedingly narrow and intervention only appropriate when "the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand . . . correction." State v. Johnson, 42 N.J. 146, 162 (1964). "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997); see also State v. Locurto, 157 N.J. 463, 472 (1999). Rather, we simply determine "whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record." Barone, supra, 147 N.J. at 615 (quoting Johnson, supra, 42 N.J. at 162.

Defendant specifically argues there was insufficient evidence to prove she was the person who actually inflicted the stab wounds upon Raheeda. We disagree. Raheeda arrived at Tia's residence at 10:00 p.m., engaged in a fight with defendant, and at 10:50 p.m., was admitted to the emergency room for treatment of serious abdominal injuries. The wounds suffered by Raheeda were consistent with knife wounds inflicted in a manner in which Raheeda described being stabbed by defendant. The wounds were also consistent with slices in the jacket that Raheeda was wearing during the fight, and also with blood on the jacket she used to apply pressure to her wounds. Although Raheeda never saw the knife during the fight, defendant clearly "had the opportunity and had [Raheeda] in the position where she could easily come in with the knife from underneath and stab her three times." Defendant also had the opportunity to arm herself with the weapon that she used to stab Raheeda and, in fact, began preparing for the fight when she realized that her lover was being less than honest about Raheeda's true identity. In sum, there was sufficient evidence to find defendant guilty beyond a reasonable doubt of all charges.

We also reject defendant's final contention that her conviction for unlawful possession of a weapon merges with her aggravated assault conviction. There is no merger "'[i]f each statute [under which a defendant has been convicted] requires proof of a fact which is not required by the other . . . .'" State v. Jones, 213 N.J. Super. 562, 567 (App. Div. 1986) (quoting State v. Johnson, 203 N.J. Super. 127, 135 (App. Div.), certif. denied, 102 N.J. 312 (1985)) (alterations in original).

Consequently, to determine the merger issue, we consider the offenses of which defendant stands convicted. N.J.S.A. 2C:39-5d, the unlawful possession statute, provides:

Any person who knowingly has in his possession any . . . weapon [other than a machine gun, handgun, rifle or shotgun] under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree.

Under N.J.S.A. 2C:12-1b(1), aggravated assault, the State is required to show that a person "[a]ttempt[ed] to cause [or caused] serious bodily injury . . . purposely or knowingly[,] or under circumstances manifesting extreme indifference to the value of human life[,] recklessly cause[d] [serious bodily] injury".

In Johnson, supra, 203 N.J. Super. 127, the defendant was convicted of aggravated assault, possession of a handgun without a permit, and possession of a weapon for an unlawful purpose. After enumerating the constituent elements of the unlawful possession offenses set forth in N.J.S.A. 2C:39-5b and N.J.S.A. 2C:39-4, we concluded that "[t]he two possession offenses have no elements in common with aggravated assault. It is clear that . . . the crimes are completely separate and distinct." Id. at 135. Consequently, we hold here, as we did in Johnson, that the merger doctrine is inapplicable because "[a] guilty verdict on the possession charge[s] could be reached without proof of the assault, and proof of the illegality of possession was not necessary for the aggravated assault charge." Id. at 135.

Even under the more flexible concept espoused in State v. Davis, 68 N.J. 69, 77-82 (1975), we find no merger of the relevant offenses, separated as they are not only by proof, but also in time. See State v. Bull, 268 N.J. Super. 504, 514-15 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994). Here, defendant obtained a sharp object and concealed it on her person before she went onto the porch to confront Raheeda. Thus, she possessed the weapon on her person for a period of time before actually instigating a fight with Raheeda, and the aggravated assault upon the victim occurred subsequent thereto. Under the circumstances, these separate and distinct convictions do not merge.

 
Affirmed.

(continued)

(continued)

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A-1404-04T4

November 7, 2005