State v. Kille
| Decision Date | 29 April 2022 |
| Docket Number | DOCKET NO. A-1049-19 |
| Citation | 471 N.J.Super. 633,274 A.3d 704 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Anthony D. KILLE, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).
Christine A. Hoffman, Acting Gloucester County Prosecutor, attorney for respondent (Dana R. Anton, Special Deputy Attorney General/Acting Sr. Assistant Prosecutor, on the brief).
Before Judges Messano, Accurso and Enright.
The opinion of the court was delivered by
MESSANO, P.J.A.D.
A jury convicted defendant Anthony D. Kille of the lesser-included offense of first-degree aggravated manslaughter in the death of Davontae Randall, N.J.S.A. 2C:11-4(a)(1), second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1), and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1). After merging the weapons offenses into the aggravated manslaughter conviction, the judge sentenced defendant to a twenty-four-year term of imprisonment with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Before us, defendant raises the following arguments:
Having considered these arguments in light of the record and applicable legal standards, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
At trial, Davontae Randall's girlfriend, Felicia Marie Daniels, testified that she knew defendant because they "grew up together." On August 15, 2018, Davontae was driving her and two friends from visiting a friend in the hospital when there was a near accident with another car in which defendant was a passenger.2 A verbal argument ensued between Davontae and defendant.
Ten days later, Felicia and Davontae were at his mother's home. Danielle Davis had just moved into the house with her daughter, Dayshena Davis, and was hosting a party. While decorating the yard for the party, Felicia, Dayshena and Davontae saw defendant standing across the street from Danielle's home. Danielle and Dayshena overheard Davontae and Felicia recounting the earlier car incident, and Danielle decided to approach defendant.
As Danielle's and defendant's voices escalated, Davontae ran across the street to confront defendant, and, according to Felicia, he and defendant "were squaring up to fight." The jury saw a short video from a nearby surveillance camera showing the two circling each other. Felicia said when defendant dropped his cell phone, Davontae picked it up and said, "[T]his is mine now." Defendant said, "I'm gonna be right back," and left the scene. Davontae handed the phone to his mother.
Defendant returned shortly, cutting through a neighboring yard to the side of Danielle's yard to confront Davontae. Defendant had a gun and asked, "Now what, pussy?" Felicia begged defendant not to shoot, but, as Davontae "charged" him, defendant fired. The two men "began fighting," and Felicia heard three more shots before Davontae fell to the ground fatally wounded.
Dayshena testified that Davontae knocked defendant to the ground as he fell, landing on top of defendant. As defendant "swiggle[d] his way from ... underneath [Davontae] to get up" and run away, Dayshena chased after him. The surveillance video did not capture the shooting but included defendant's flight from the scene with Dayshena in fruitless pursuit.
Felicia and Danielle, both acknowledged that defendant was backing up when Davontae first confronted him across the street from Danielle's house. Danielle told her son, She confirmed that Davontae picked up the cell phone defendant dropped and said, "[I]t's now mine, pussy." Danielle said when defendant returned, he had a gun and shot twice before Davontae "went to grab him."
When police arrived, they secured two shell casings and a 9mm. handgun lying nearby in the street. The gun's extended magazine had nineteen more bullets in it, and, according to the State's ballistics expert, the gun "appear[ed] jammed [with] a misfeed from one of the projectiles." The medical examiner testified Davontae suffered two gunshot wounds to the torso. One, to his shoulder area, was a "contact wound"; the second, to Davontae's chest, was "more rapidly fatal," and showed "no evidence of [having been fired at] close range."
Investigators attempted to locate defendant for several days, checking various addresses where they thought he could be. On August 28, 2018, defendant turned himself in to Atlantic City police, and, after waiving his Miranda 3 rights, gave a statement to investigators from the Gloucester County Prosecutor's Office. The jury heard the audio recording of the statement.
Defendant acknowledged the earlier near accident with Davontae's vehicle. He said Davontae reacted violently by getting out of his car and throwing things at defendant's friend's vehicle. Defendant said on August 25, he visited friends who lived on the same street as Danielle. He did not know Danielle had just moved there, and defendant was "just chillin'." Danielle, however, confronted him "all rude and nasty" and threatened to "get [her] son." Defendant saw Davontae, a much larger man, coming at him, but defendant kept "backing up." When defendant dropped his phone, Davontae picked it up and said, "[T]his mine now."
Defendant admitted leaving to get a gun and returning to Danielle's home. As he pointed the gun at Davontae, he said, "Bro, give me my fucking phone and I'm not playing with you." Davontae "thought [he] was playing" and "charged ... [him]." Defendant said:
Without objection, the State introduced an affidavit from a New Jersey State Police detective stating a search of their database failed to reveal defendant made any application for, or was ever issued, a permit to purchase or carry a handgun. The State rested after its ballistics expert linked the two spent shells and the bullet recovered from Davontae's body at autopsy to the gun found at the scene. Additional DNA evidence is insignificant and irrelevant to our decision. Defendant elected not to testify or call any witnesses.
Before conducting an extended charge conference on the record, the judge provided counsel with proposed written jury instructions. The judge provided the jury with a written copy of his instructions for use during their deliberations, and the appellate record contains those written instructions. Defendant now raises four specific objections to the judge's final charge, two of which were never raised, even partially, before.
The failure to object to the charge at trial forecloses any argument on appeal, Rule 1:7-2, subject only to our review for plain error, i.e., error "clearly capable of producing an unjust result," Rule 2:10-2.
The Court has said:
While "erroneous instructions in a criminal case are ‘poor candidates for rehabilitation under the plain error theory,’ " State v. Adams, 194 N.J. 186, 207, 943 A.2d 851 (2008) (quoting Jordan, 147 N.J. at 422, 688 A.2d 97 ), "[t]he error must be considered in light of the entire charge and must be evaluated in light ‘of the overall strength of the State's case,’ " State v. Walker, 203 N.J. 73, 90, 999 A.2d 450 (2010) (quoting State v. Chapland, 187 N.J. 275, 289, 901 A.2d 351 (2006) ). We first consider the alleged errors never raised at trial.
Defendant contends the judge should have provided a limiting instruction regarding evidence of the traffic confrontation ten days before the homicide because it was "other-bad-act[ ]" evidence admitted under N.J.R.E. 404(b). However, following a pre-trial hearing, the judge prohibited the State from introducing evidence defendant threatened Davontae at the time of the near accident, and both attorneys agreed to refer to the encounter simply as an argument. In his statement to police, defendant portrayed Davontae as the aggressor. Evidence of an "argument," as opposed to a threat of violence or actual violence, is not bad act evidence subject to the strictures of N.J.R.E. 404(b). The contention requires no further discussion in a written opinion. R. 2:11-3(e)(2).
Defendant's remaining arguments apply to the jury instructions on the two weapons offenses. In his final jury...
To continue reading
Request your trial
-
State v. Life
...of a weapon for an unlawful purpose that deals with the lawful use of a weapon for a protective purpose. See State v. Kille, 471 N.J.Super. 633, 274 A.3d 704 (App. Div. 2022) (reversing conviction for possession of a firearm for an unlawful purpose because judge failed to provide instructio......