State v. Kelly

• Decision Date: 04 April 1990
• Citation: 571 A.2d 1286,118 N.J. 370
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Rochelle Dineene KELLY, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 370

118 N.J. 370

571 A.2d 1286

STATE of New Jersey, Plaintiff-Respondent, v. Rochelle Dineene KELLY, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Nov. 28, 1989.

Decided April 4, 1990.

Claire Drugach, Asst. Deputy Public Defender, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney).

Timothy J. McNamara, Asst. Prosecutor, for plaintiff-respondent (Paul T. Koenig, Jr., Mercer County Prosecutor, attorney).

Tanya Y. Justice, Deputy Atty. Gen., for amicus curiae Atty. Gen. (Peter N. Perretti, Jr., Atty. Gen., attorney).

The opinion of the Court was delivered by

GARIBALDI, J.

Defendant, Rochelle Kelly, repeatedly slashed Randolph Boone on a street corner in Trenton, with a carpet-cutting razor. She had recently broken off her tumultous relationship with Boone because on many occasions he had beaten her severely. Approximately four hours before defendant slashed him, Boone had warned defendant in a threatening manner not to walk around the corner where he usually spent his free time. Defendant armed herself with a razor before she went outside, in case she needed to defend herself against Boone. When she crossed the corner in question, Boone allegedly began to punch her, whereupon she slashed him with the razor.

The jury acquitted defendant of aggravated assault, N.J.S.A. 2C:12-1, and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, but convicted defendant of possession of a weapon "under circumstances not manifestly appropriate for such lawful uses as it may have," N.J.S.A. 2C:39-5d (hereinafter section 5d). The narrow issue presented is whether the trial court erred in refusing to instruct on self-defense as a justification to the section 5d offense. We hold that the trial court did not err in refusing to give the self-defense instruction. Self-defense does not excuse possession of a weapon in violation of section 5d except in "those rare and momentary circumstances where an individual arms himself spontaneously to meet an immediate danger." State v. Harmon, 104 N.J. 189, 208-09, 516 A.2d 1047 (1986).

I

The testimony established that Boone had been Kelly's live-in companion and the father of her daughter. She had broken off her relationship with him because he physically abused her. Kelly testified that in the ten months they lived together, Boone had fractured her nose three times, knocked out her teeth and punched her face, eyes, and back causing bruises and abrasions. She had gone to the hospital at least once because of a broken nose. Kelly stated that Boone kept guns in the house and also threatened her with knives. She alleged that the abuse frequently occurred after Boone had smoked marijuana laced with phencyclidine.

Boone did not dispute that he beat Kelly during their relationship or that he caused the injuries she described. He stated, however, that Kelly had also hit him numerous times.

After Kelly ceased living with Boone, she moved with her baby to an apartment shared by other women who also knew Boone. Boone began to visit Kelly's household on the pretext that he wished to communicate with her roommates. In reality, however, he used his visits in an attempt to regain Kelly's affections. When he realized the futility of his efforts, he allegedly began to harass her. On July 18, 1984, Boone came to Kelly's apartment at about 4:30 p.m. Kelly testified that when she asked Boone to leave, he started calling her names and threw her against the wall. She then picked up a box-cutter-type razor that she had been using to cut carpet and brandished it in an effort to ward him off. When one of Kelly's roommates entered the room, she asked Boone to leave. Before leaving, Boone warned defendant not to "come around the corner."

Kelly explained that Boone was referring to the corner of Walnut and Monmouth Streets in Trenton where he usually "hung out." The "corner" was approximately a block away from defendant's apartment, and Kelly interpreted Boone's statement as a threat that he would assault her if she went there. Because prior attempts to gain the assistance of police had proven ineffective, she did not notify the police. Because Boone lived only a few blocks away, Kelly believed that she could not avoid encountering him.

Denying that his visit was unexpected, Boone claimed that Kelly had asked him to the house. He admitted he threw her against the wall, but only after Kelly had threatened him with the carpet cutter during the course of the argument.

At approximately 6:30 p.m., Kelly and her roommate took Kelly's daughter to a neighborhood park. They had dressed the child in a little sailor suit and wanted to take pictures of her playing. Due to Boone's threat, prior to leaving her apartment Kelly deliberately armed herself with the cutter to protect herself in the event that she met Boone. At 8:30 p.m., Kelly, her daughter and a friend headed home from the park. To get there, they crossed the intersection of Monmouth and Walnut Streets. For approximately five minutes, Kelly remained at the corner talking with a man she knew, and having her picture taken with her daughter in front of a store. Boone appeared and accosted Kelly, but there are conflicting versions of the ensuing events.

Boone testified that he had stopped Kelly in order to ask her to take their daughter home because the hour was late, but that defendant refused his request. He further alleged that they began to argue and that Kelly then cut him with a razor. Boone contended that he had neither touched nor threatened Kelly prior to the time that she started slashing at him, and that he was "already cut when [he] put his hands on her."

Thurman Jennings, an acquaintance of Boone's, provided a different account. He stated that the fight started when Boone began hitting Kelly with his fists. Jennings testified that Kelly could not ward off Boone's blows. Boone hit Kelly for approximately ten minutes, then Kelly took out the carpet cutter When she took out the razor at the time [Boone] saw it but look, like, look like to me he ain't care whether she had it or not. So, still throwing punches at her and so that's where he grabbed her, she just started swinging and cut.

Jennings also testified that Boone had told him earlier that evening that he was waiting for Kelly to come around the corner, in order to "beat her up." Mr. Jennings also reported that at least three or four men tried to pull Boone off Kelly, but were unsuccessful until Boone was injured.

According to Kelly, when Boone asked her to take her daughter home, she replied that "she'll stay here as long as I'm here," whereupon Boone started swearing at her. He took a swing at her, but missed, and then punched her at least three times. He was aiming for her face, but hit her primarily on the arms. She backpedaled to retreat, but Boone continued to swing at her. She turned to run away and Boone hit her in the ear. She explained that at this point she "saw stars" and that

[a]ll I could hear was ringing and I just turned around and I had the razor in my hand and I--I don't know if I was cutting him or not, I just, you know, [kept] swinging.

She remembered "tussling" and swinging the razor at Boone, merely to "get him off me and keep him away from me." She did not initially realize that she had cut him. She also recalled that several people had unsuccessfully attempted to intervene and that she had screamed "get him off me."

The fight ended when Boone realized that he was injured. Boone was taken to the hospital where he received 128 stitches for superficial wounds to his head, face, and back.

Approximately one hour later, Kelly voluntarily informed the police that she had cut Boone with a piece of glass because she could not get the carpet cutter open. On direct examination, Kelly admitted that she had lied because "I knew I wasn't supposed to carry a razor. That was the reason that I said glass." On cross-examination, she again contended that she did not intend to hurt Boone, but only used the razor in self-defense as she "didn't want to get hurt by him anymore." Defense counsel stipulated that the razor was not being used as a carpet cutter at the time of the altercation and that it was not an instrument defendant used in her employment.

The trial court charged the jury on section 5d as follows:

Concerning the phases "under the circumstances not manifestly appropriate for such lawful uses as it may have," I instruct you that phrase means that the State has the burden of proving beyond a reasonable doubt that the possession of the weapon in question by the defendant at the time in place in question and under all of the circumstances presented clearly demonstrated that the defendant's possession of that weapon was not for any lawful use or lawful purpose which that razor would otherwise normally have had.

Without objection from the State defense counsel requested the trial court to instruct the jury on self-defense with respect to the section 5d count. Relying on State v. Harmon, supra, 104 N.J. at 189, 516 A.2d 1047, the trial court refused, holding that a self-defense instruction applied to a section 5d charge only when a factual question exists about whether the possession occurred in a situation of immediate or imminent danger. Because Kelly admittedly had armed herself in anticipation of future harm, the trial court concluded that as a matter of law, no such imminent danger existed. Specifically, the court instructed the jury that the concept of "self-protection" could be used as a defense to aggravated assault, but could not be used as a defense to both weapon charges:

The defense of self protection as I have outlined that defense ... is only applicable to the charge of aggravated assault under the first count of this Indictment and does not apply to either count two or three involving the charge of possession of a weapon for unlawful purpose and unlawful possession of a weapon since one may not arm himself...