STATE OF NEW JERSEY v. DARRELL J. BLOUNT
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1317-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARRELL J. BLOUNT, a/k/a REMY BETHEA,
DARRYL BLOUNT, DARRYL J. BLOUNT,
HERBER CASTILLO and JONATHAN STEWART,
Defendant-Appellant.
______________________________________
Submitted February 12, 2018 – Decided April 23, 2018
Before Judges Messano and DeAlmeida.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No.
07-07-0630.
Joseph E. Krakora, Public Defender, attorney
for appellant (Steven M. Gilson, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Sarah E. Ross, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
A jury convicted defendant Darrell J. Blount of first-degree
robbery and related offenses, and the judge sentenced him to life
imprisonment without parole under the "Three Strikes Law,"
N.J.S.A. 2C:43-7.1(a). State v. Blount, No. A-2466-11 (App. Div.
Nov. 7, 2014) (slip op. at 1-2).1 We rejected the two arguments
raised on direct appeal — admission of an out-of-court
identification and prosecutorial misconduct in summation required
reversal — and affirmed defendant's conviction. Id. at 2-3. The
Supreme Court denied defendant's petition for certification.
222 N.J. 18 (2015).
Defendant's pro se petition for post-conviction relief (PCR)
alleged the ineffective assistance of trial and appellate counsel
(IAC). The court appointed PCR counsel who also asserted IAC
claims, only two which defendant now reiterates on appeal. After
hearing oral argument, the judge denied the petition for reasons
stated in a comprehensive written opinion. This appeal followed.
We place defendant's arguments in context by relying upon our
prior opinion's summary of the evidence at trial.
[A] man entered a liquor store . . . shortly
before 10:00 a.m. After walking around the
store for a few minutes, he approached the
counter, asked the store cashier for a six-
pack of beer, then pulled out a handgun and
1
Although citing an unpublished opinion is generally forbidden,
we do so here to provide a full understanding of the issues
presented and pursuant to the exception in Rule 1:36-3 that permits
citation "to the extent required by res judicata, collateral
estoppel, the single controversy doctrine or any other similar
principle of law." See Badiali v. N.J. Mfrs. Ins. Grp.,
429 N.J.
Super. 121, 126 n.4 (App. Div. 2012), aff'd,
220 N.J. 544 (2015).
2 A-1317-16T4
demanded money from the register. The robbery
victim refused and hit the panic alarm button.
The robber immediately fled. The victim ran
after him and observed the robber get into a
silver Dodge Neon.
The Roselle Police arrived a few minutes
later. The victim told the police that the
robber was an African American man, between
30 and 40 years old, with a medium build, about
five-feet-eight to five-feet-ten, wearing a
green shirt, blue pants, a hat, and carrying
a blue bag. He also described the gun and
provided the robber's license plate number.
After determining that the suspect's car
was registered to an Edison resident, the
police contacted Edison police for assistance.
Within minutes, the Edison police located the
vehicle, unoccupied, in front of an apartment
complex. After about ten minutes, Edison
Police Officer Gerry Katula observed a man
enter the car and drive away; several other
officers immediately pulled over the vehicle.
Defendant was removed from the car and
arrested at 10:55 a.m. The police searched
the vehicle incident to the arrest and found
a green shirt on the front seat, a black skull-
cap hat in the rear passenger seat, and a blue
bag and a handgun on the back passenger-side
floor.2
Upon learning a suspect was apprehended,
Roselle Park Detective Richard Cocca told the
victim that the vehicle and suspect had been
located in Edison, and he needed to go to the
scene in order to make a positive
identification. . . . When the victim saw
defendant, he immediately responded, "that's
him." According to Cocca, the victim had
"absolutely no doubt" that defendant was the
robber, "there was no second-guessing and
2
The gun was a BB gun.
3 A-1317-16T4
there was no other communication other
than . . . that's him."
[D]efendant's sister and the owner of the
vehicle, testified that she lived in Edison
with defendant and her then eighteen-year-old
son James. According to her testimony, at
about 10 a.m., she noticed her car was not
parked where she left it and her spare key was
gone. She believed that her son James may
have taken the car without permission, as he
had previously done. Since she suspected
James might have driven it to the nearby
housing complex, his usual hang-out spot, she
asked defendant to walk over there and
retrieve the car.
Defendant's nephew James testified that
he borrowed his mother's car whenever his car
was not working. He could not recall if he
took the car on the day of the robbery but
denied any involvement in the robbery. At the
time of defendant's trial, James was serving
a prison sentence for a 2008 robbery he
committed using his mother's car.
[Id. at 3-5.]
Before us, defendant raises the following points for our
consideration:
DEFENDANT'S ROBBERY CONVICTION MUST BE
REVERSED DUE TO TRIAL AND APPELLATE COUNSELS'
INEFFECTIVENESS, AND THIS MATTER MUST BE
REMANDED FOR AN EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF
COUNSELS' INEFFECTIVENESS.
A. TRIAL AND APPELLATE COUNSEL
FAILED TO PURSUE THE TRIAL COURT'S
NOT INSTRUCTING THE JURY ON THE LAW
OF ATTEMPT AS AN ELEMENT OF ROBBERY.
4 A-1317-16T4
B. TRIAL COUNSEL FAILED TO REQUEST
A JURY CHARGE ON THIRD-PARTY GUILT
AND "REVERSE 404(B)" EVIDENCE
REGARDING THE TESTIMONY OF JAMES
BETHEA.
Having considered these arguments in light of the record and
applicable legal standards, we affirm.
To establish an IAC claim, a defendant must satisfy the two-
prong test formulated in Strickland v. Washington,
466 U.S. 668,
687 (1984), and adopted by our Supreme Court in State v. Fritz,
105 N.J. 42, 58 (1987). A defendant must show "that counsel made
errors so serious that counsel was not functioning as the 'counsel'
guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting
Strickland,
466 U.S. at 687).
Second, a defendant must prove he suffered prejudice due to
counsel's deficient performance. Strickland,
466 U.S. at 687. A
defendant must show by a "reasonable probability" that the
deficient performance affected the outcome. Fritz,
105 N.J. at
58. "A reasonable probability is a probability sufficient to
undermine confidence in the outcome." State v. Pierre,
223 N.J.
560, 583 (2015) (quoting Strickland,
466 U.S. at 694; Fritz,
105 N.J. at 52). We apply the same standard to a defendant's claims
of ineffective assistance by appellate counsel. State v. Gaither,
396 N.J. Super. 508, 513 (App. Div. 2007) (citing State v.
Morrison,
215 N.J. Super. 540, 546 (App. Div. 1987)).
5 A-1317-16T4
Although the judge provided the model jury charge on robbery,
he failed to heed its reminder that if the robbery were an attempt,
the judge should also charge the jury with the model jury charge
on attempt. Trial counsel did not object to this omission, and
appellate counsel did not raise the issue on direct appeal.
Trial counsel also did not request, and the judge did not
provide, two other charges: Model Jury Charges (Criminal), "Proof
of Other Crimes, Wrongs, or Acts – Defensive Use (N.J.R.E. 404(b))"
(May 22, 2000); and a charge on third party guilt (approved Mar.
9, 2015). The defense was not only the affirmative alibi supplied
by his sister, but also an effort to raise a reasonable doubt of
the robber's identity by implying his nephew committed the robbery.
In his written opinion, the PCR judge, who was also the trial
judge, rejected these arguments. He said he had "instructed the
jury in accordance with the Model Jury Charge for robbery" and
even if he had instructed the jury on "attempt, it would not have
led to a different verdict, as the jury had already determined
that [defendant] had attempted a theft." As to the other jury
instructions, the judge noted that defendant called James as a
witness and examined him at length about the 2008 robbery that led
to his incarceration. The judge determined that the jury had the
opportunity to consider James' credibility and compare his
physical appearance to that of the robber's description provided
6 A-1317-16T4
by the victim, and counsel's failure to request the charges did
not amount to ineffective assistance.
Citing our decisions in State v. Dehart,
430 N.J. Super. 108
(App. Div. 2013), and State v. Gonzalez,
318 N.J. Super. 527 (App.
Div. 1999), defendant argues trial and appellate counsel provided
ineffective assistance by failing to object to the omission of
instructions on criminal attempt during the charge on robbery and
by failing to raise that omission on direct appeal.
In Dehart, we reversed a conviction for reasons identical to
those in Gonzalez. Dehart,
430 N.J. Super. at 120. The defendant
was charged with a robbery that was alleged to have been committed
by a threat of force during an attempted theft. Id. at 116-17.
The court did not instruct the jury on attempt during its charge
on robbery or at any other time during its final instructions.
Id. at 118. Consistent with our holding in Gonzalez, we found
plain error because the jury instructions did not define the
elements of criminal attempt that were essential to the jury's
determination of defendant's guilt on the robbery charge. Id. at
120.
However, the Court has said that
[i]n the context of a jury charge, plain error
requires demonstration of "[l]egal
impropriety in the charge prejudicially
affecting the substantial rights of the
defendant sufficiently grievous to justify
7 A-1317-16T4
notice by the reviewing court and to convince
the court that of itself the error possessed
a clear capacity to bring about an unjust
result."
[State v. Burns,
192 N.J. 312, 341 (2007)
(second alteration in original) (emphasis
added) (quoting State v. Jordan,
147 N.J. 409,
422 (1997)).]
The allegation of error must be assessed in light of "the totality
of the entire charge, not in isolation." State v. Chapland,
187 N.J. 275, 289 (2006) (citing State v. DiFrisco,
137 N.J. 434, 491
(1994)). While an erroneous jury charge may be a "'poor
candidate[] for rehabilitation' under the plain error theory,"
Jordan,
147 N.J. at 422-23 (quoting State v. Simon,
79 N.J. 191,
206 (1979)), we nonetheless consider the effect of any error in
light "of the overall strength of the State's case." Chapland,
187 N.J. at 289.
Our colleagues in DeHart, 430 N.J. Super. at 120, and
Gonzalez,
318 N.J. Super. at 536-37, found plain error in the
failure to charge "attempt" despite the strength of the State's
cases. However, our colleagues in State v. Belliard,
415 N.J.
Super. 51 (App. Div. 2010), reached a different result, and we
subscribe to their reasoning.
In Belliard, the defendant was convicted of first-degree
robbery and felony murder. Id. at 60. In his appeal, the defendant
argued, among other things, the trial court failed to define
8 A-1317-16T4
"attempt" for the jury. Id. at 64. However, because there was
evidence the defendant had taken a substantial step toward
committing a robbery, we found the court's error to be harmless.
Id. at 72. "Therefore, while the judge's failure to charge the
jury with attempt was in error, this error was not sufficient to
lead the jury to a result it would not have otherwise reached."
Id. at 74.
Here, the judge clearly erred by not defining attempt during
the jury charge. See State v. R.B.,
183 N.J. 308, 325 (2005)
("[M]odel jury charges should be followed and read in their
entirety to the jury."). Assuming arguendo trial counsel's failure
to object to the charge was evidence of deficient performance,
defendant cannot meet the second prong of the Strickland/Fritz
standard.
The focus of the defense was not whether a robbery occurred,
but rather, whether defendant was the perpetrator. The victim
described the demand for money that was accompanied by the threat
of a handgun. Only the victim's decision to sound the panic alarm
thwarted the completion of the theft. There was no dispute that
the robber, whoever he was, "purposely" took "a substantial step
in a course of conduct planned to culminate in his commission of
the crime."
N.J.S.A. 2C:5-1(a)(3). Omitting a charge on attempt
did not "lead the jury to a result it would not have otherwise
9 A-1317-16T4
reached," Belliard,
415 N.J. Super. at 74, and therefore does not
"undermine [our] confidence in the outcome" the jury reach.
Pierre,
223 N.J. at 583. Since appellate counsel has no obligation
to raise issues on direct appeal that would not succeed, see State
v. Echols,
199 N.J. 344, 361 (2009), defendant's IAC claim as to
appellate counsel is unavailing.
We also reject defendant's IAC claim premised on trial
counsel's failure to request the reverse 404(b) evidence and third
party guilt instructions. Once again, the judge erred by not
providing the reverse 404(b) evidence charge to the jury. However,
assuming arguendo counsel's failure to ask for the charge evidences
deficient performance, defendant again fails to establish
prejudice under the second prong of the Strickland/Fritz standard.
As noted, defendant produced James as a witness to advance a
theory of third party guilt. See State v. Weaver,
219 N.J. 131,
150-51 (2014) (explaining the defensive use of "reverse 404(b)"
evidence). The model jury charge on the defensive use of 404(b)
evidence does little more than tell the jury it "should consider
this evidence, along with all the other evidence in the case, in
determining whether or not the State has proven beyond a reasonable
doubt that defendant is the person who committed" the crime. Model
Jury Charge (Criminal), "Proof of Other Crimes, Wrongs, or Acts –
Defensive Use (N.J.R.E. 404(b))." At other points in the jury
10 A-1317-16T4
charge, the judge repeatedly made clear that the State bore the
burden of proof on identification, that defendant had no burden
of proof and that the State had to prove beyond a reasonable doubt
that defendant committed the charged offenses. The omission of
this charge was not prejudicial.
The third party guilt charge provides more guidance to jurors.
It states:
The defendant contends that there is evidence
before you indicating that someone other than
he or she may have committed the crime or
crimes, and that evidence raises a reasonable
doubt with respect to the defendant's guilt.
In this regard, I charge you that a
defendant in a criminal case has the right to
rely on any evidence produced at trial that
has a rational tendency to raise a reasonable
doubt with respect to his/her own guilt.
I have previously charged you with regard
to the State's burden of proof, which never
shifts to the defendant. The defendant does
not have to produce evidence that proves the
guilt of another, but may rely on evidence
that creates a reasonable doubt. In other
words, there is no requirement that this
evidence proves or even raises a strong
probability that someone other than the
defendant committed the crime. You must
decide whether the State has proven the
defendant's guilt beyond a reasonable doubt,
not whether the other person or persons may
have committed the crime(s).
[(Emphasis added).]
11 A-1317-16T4
Defense counsel intended to raise a reasonable doubt in
jurors' minds as to the identity of the perpetrator through the
extensive direct examination of defendant's nephew James. James
admitted he was serving a sentence for a 2008 robbery of a liquor
store, committed less than one year after the instant offense,
while he was driving his mother's car and while his co-defendant
was armed with a BB gun. Certainly, the model charge would have
properly focused the jurors' attention not on whether James had
actually committed the robbery, but rather whether the evidence
raised a reasonable doubt that defendant committed the robbery.
However, the failure to request the model charge was not
evidence of deficient performance because the model charge was not
adopted until 2015, years after this trial. Our research reveals
no similar charge existed at the time of this trial. In addition,
defendant points to no decision predating the model charge that
required the court to provide a similar instruction. Therefore,
defendant's IAC claim must fail.
Moreover, while charging the jury on the State's burden to
prove identity, the judge specifically told jurors "[d]efendant
has neither the burden nor the duty to show that the crime, if
committed, was committed by someone else, or to prove the identity
of that other person." This instruction incorporated the most
12 A-1317-16T4
significant aspect of the model charge as it relates to burden of
proof.
Affirmed.
13 A-1317-16T4
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