January 7, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES KIRKLAND, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, No. I-92-01-0422.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2009
Before Judges Wefing and Grall.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
A jury convicted defendant in 1992 of one count each of murder, N.J.S.A. 2C:11-3a(1),(2); attempted murder, N.J.S.A. 2C:5-1; unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The trial court sentenced defendant to thirty years in prison for murder, with a thirty-year period of parole ineligibility, and a consecutive eighteen years for attempted murder, with a seven-year period of parole ineligibility. It also sentenced defendant to a concurrent five years for unlawful possession of a weapon and merged his conviction for possession of a weapon for an unlawful purpose into his conviction for murder. Defendant appealed his convictions and sentence, and we affirmed. State v. Kirkland, No. A-748-92T4 (App. Div. Dec. 9, 1994). Defendant petitioned the Supreme Court for certification, but his petition was denied. State v. Kirkland, 139 N.J. 442 (1995).
In 2001 defendant began the process of filing a petition for post-conviction relief. It was not until 2003 that an order was signed directing that counsel be assigned to represent defendant in post-conviction proceedings, and it was not until 2006 that counsel prepared an amended verified petition. Oral argument was finally held in April 2008. After that argument, the trial court denied defendant's petition, and this appeal followed.
On appeal, defendant raises the following contention:
The Court should reverse the denial of defendant's petition for post-conviction relief.
1. Defendant's Petition is not barred
2. Failing to request a passion/provocation charge at trial constituted ineffective assistance of counsel Rule 3:22-12 provides that a petition for post-conviction relief must be filed within five years of a defendant being sentenced "unless [the petition] alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." This five-year period begins to run from the date the judgment of conviction is entered, which in defendant's case was July 27, 1992. Prior to September 2009, this five-year period could be relaxed pursuant to Rule 1:1-2. The Court Rules were amended in September 2009 to preclude a relaxation of this five-year bar. R. 1:3-4(c). Defendant, however, began to seek post-conviction relief before this rule change. It would, in our judgment, be fundamentally unfair to apply this change to defendant, particularly in light of the extraordinary length of time it took to have his petition heard. We are satisfied that the trial court correctly determined that the merits of defendant's petition should be reached.
Defendant presents one claim against his trial attorney, that he was ineffective for not requesting that the trial court give the jury a charge on passion/provocation manslaughter. We disagree.
A defendant who claims that he did not receive the effective assistance of counsel must establish two elements: that his attorney's performance was "deficient" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). There is, moreover, a presumption that the conduct of defense counsel "falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. New Jersey has expressly adopted this two-pronged test. State v. Fritz, 105 N.J. 42, 58 (1987).
There are four elements to the crime of passion/provocation manslaughter:
[T]he provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying.
[State v. Mauricio, 117 N.J. 402, 411 (1990).]
The four elements are equally essential; the absence of one is fatal to a claim of passion/provocation manslaughter. Ibid.
Because the test for the first element is purely objective, it is immaterial whether a defendant in fact was provoked; "[t]he question of whether the provocation is adequate essentially amounts to whether loss of self-control is a reasonable reaction." Id. at 412.
The test for the second element is also objective: whether the defendant had a reasonable amount of time to cool off before killing the victim. Ibid.
The test for the remaining two elements is subjective; that is, was the defendant in fact inflamed and did the defendant have a reasonable time within which to cool off. These two elements are almost always questions for the jury. Id. at 413.
In our earlier opinion, we summarized the underlying facts of this matter.
On December 31, 1991, Rhonda Hardy threw a New Year's Eve party at her home in Irvington, New Jersey. One of the guests was Taymiyah McClendon, Ms. Hardy's goddaughter. After Ms. McClendon arrived at the party, she called and invited her boyfriend, defendant James Kirkland. He agreed to come; when he arrived, Ms. McClendon noticed he appeared drunk and had a gun. The weapon frightened her and she asked him to put it away. The two went upstairs where defendant unloaded it and then asked her to check that he had removed all the bullets, which he put in his pants pocket. The two then went downstairs and joined the party.
Sometime after midnight, several individuals who were attending the party but who, in fact, had not been invited, were asked to leave. When they did not do so, a brawl developed among some of the guests which spilled onto the front lawn. A number of those present were involved in fisticuffs, and defendant ran out of the house and fired his gun into the air. He then aimed his pistol at one of the guests, George Tay, and although he fired from only seven to eight feet away, missed. Kirkland then ran toward the house, with Taymiyah following him. At the porch, he aimed his gun at another guest, Shaeed Beasley, and mortally wounded him in the chest.
At trial, defendant's attorney admitted the shooting, but contended that defendant was guilty of reckless manslaughter, not murder. Defendant ran out and first fired his gun, he argued, to break up the fight. The victim was shot, he asserted, when he and defendant struggled for control of the gun. By its verdict, the jury rejected that argument.
In his brief, defendant contends that there was evidence at the trial that his girlfriend's godfather was involved in the brawl which had broken out, that George Tay, the man at whom defendant first fired his gun had challenged defendant, and that Beasley, the victim, had tried to punch defendant immediately before defendant shot him. We agree with the trial court that these facts, even if true, fall well short of establishing the first element of passion/provocation manslaughter: adequate provocation. Even if the brawl that developed could be characterized as mutual combat for purposes of passion/ provocation manslaughter, defendant alone was armed; he was not entitled to a charge of passion/provocation manslaughter. State v. Ruscingno, 217 N.J. Super. 467, 473 (App. Div.), certif. denied, 108 N.J. 210 (1987). Further, as the trial court noted in its oral opinion, the record clearly established that defendant fired his weapon before there was any physical contact between himself and anyone involved in the fight, let alone any contact between himself and the victim.
Defendant has filed a pro se supplemental brief in which he makes the following contention:
P.C.R. Court Committed Plain Error When It Failed On It's [sic] Own Motion To Issue Ruling That Trial Court Committed Plain Error When It failed Sua Sponte To Charge Jury on Lesser Included Offense of Passion/Provocation Manslaughter In support of his argument, defendant cites to State v. Bishop, 225 N.J. Super. 596 (App. Div. 1988), in which we reversed defendant's conviction for murder and remanded for a new trial. The defendant in that case stabbed the victim to death in the midst of a large brawl involving fifteen to twenty people. Id. at 598. There was evidence that the defendant's nephew was involved in the brawl and getting the worst of it and that the defendant intervened to help him. Id. at 599. There was also contrary evidence to the effect that defendant was involved in the brawl himself and simply stabbed the victim. Ibid.
Defendant contends that our view that the defendant in that case may have been provoked by seeing his nephew attacked, thus justifying a passion/provocation charge, should lead us to conclude that because he knew his girlfriend's godfather was involved in this New Year's Eve brawl his attorney was ineffective for not requesting a charge on passion/provocation manslaughter. We do not agree. There was evidence in Bishop that to the extent the defendant acted to protect his nephew, his nephew was being beaten and kicked by a large number of people when the defendant ran to his aid. Id. at 599.
Here, defendant's then-girlfriend testified that she tried to restrain defendant from going outside because she knew he had a gun. She said that defendant said he wanted to talk to her godfather, not that he was going to help him.
Defendant also cites to State v. Powell, 84 N.J. 305 (1980). That case is also distinguishable. The trial court charged the jury on passion/provocation manslaughter but the Court reversed the defendant's conviction because of errors in the charge. It noted that it was appropriate to charge passion/provocation because there was evidence that the defendant shot the victim during a lovers' quarrel.
We perceive no basis to conclude that defendant's trial attorney provided ineffective assistance to him. The order under review is affirmed.
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