State v. Moore

429 A.2d 397, 178 N.J. Super. 417
CourtNew Jersey Superior Court Appellate Division
DecidedApril 3, 1981
StatusPublished
Cited by15 cases

This text of 429 A.2d 397 (State v. Moore) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Moore, 429 A.2d 397, 178 N.J. Super. 417 (N.J. Ct. App. 1981).

Opinion

178 N.J. Super. 417 (1981)
429 A.2d 397

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THERESA MOORE, DEFENDANT-APPELLANT.

Superior Court of New Jersey, Appellate Division.

Submitted March 17, 1981.
Decided April 3, 1981.

*420 Before Judges MATTHEWS, MORTON I. GREENBERG and J.H. COLEMAN.

Stanley C. Van Ness, Public Defender, attorney for appellant (Randall W. Westreich, designated counsel, of counsel, and on the brief).

John J. Degnan, Attorney General, attorney for respondent (John A. Covino, Deputy Attorney General, of counsel, and on the brief).

*421 PER CURIAM.

This is an appeal from a murder conviction in which defendant and her cofelon agreed to murder their mutual lover. Defendant's trial was severed from that of her cofelon. On May 10, 1979 defendant was convicted of murder of Arthur W. Ivery, conspiracy to commit murder and forgery of Ivery's signature on a credit card slip. On the same day the jury verdict was received, the judge imposed a life sentence to the Correctional Institution for Women at Clinton on the murder charge. The judge fixed May 25, 1979 as the sentencing date on the other convictions. After defendant had left the courtroom, her counsel informed the judge that defendant was already serving a sentence for parole violation. The judge immediately ordered defendant, her attorney, and the prosecutor be brought back to court. Upon the reconvening of court, defendant was advised that the court was reserving decision on whether to make the life sentence concurrent or consecutive to the sentence she was then serving. This appeal followed.

Defendant cites five errors:

I. The trial court's failure to charge the jury that the use of alcohol can operate to reduce the degree of culpability from first to second degree murder constitutes reversible error. (Not raised below.)
II. Defendant was denied her right to effective assistance of counsel.
III. The trial judge erred in instructing the jury with regard to defense of another.
IV. The court impermissibly gave defendant a consecutive sentence to her present sentence.
V. Defendant's sentence was excessive and manifestly should be reduced.

The evidence at trial revealed that on December 30, 1978 codefendant Albirtha Johnson picked up defendant at a bus station in Freehold. They drove to Johnson's home in Long Branch. Defendant and Johnson were lovers. Both Johnson and defendant also engaged in sexual relations with decedent. Johnson and decedent shared the same residence. Apparently this tempestuous arrangement often led to frequent physical fights between Ivery and the two women. Since defendant was a woman of no ordinary size — weighing approximately 250 *422 pounds and somewhat resembling a male, she was apparently able to overwhelm Ivery when they fought.

During the ride from Freehold to Johnson's house in Long Branch, Johnson told defendant that she wanted Ivery dead because "she didn't want him in her life any more." Defendant apparently did not reply to this statement.

Thereafter Johnson and defendant left to pick up Ivery from his job in Freehold. On the way, they stopped at a liquor store and bought a pint of vodka. They parked in a parking lot at about 1:30 p.m. and drank half the bottle. Then they drove to the nursing home where Ivery was employed and picked him up at about 1:55 p.m. Johnson told Ivery that she wanted to go to the Freehold Pond area.

Once they arrived at the pond, all three stood talking idly in front of a field. Johnson then drove all three to the bank of the pond. Ivery got out and said he was going to change a tire on the car. As he jacked up the car to change the tire Johnson got behind him and plunged a knife she had secreted in her purse, into the middle of his back. Apparently this caused only superficial wounds as Ivery was thereafter able to fight with Johnson for about five minutes. Before she stabbed him, and thereafter while they were fighting, Johnson kept motioning for defendant to join the fight. Defendant hesitated to join in and "had to go back to the car and get another drink to get my nerves back up." According to defendant, she joined in the fight because Ivery had Johnson on her back and was about to punch her, and defendant thought she had to act to protect Johnson from getting hurt. After taking the drink, defendant grabbed Ivery by the throat. Although she testified that she only intended to knock him out, she maintained her grip on Ivery's throat for about five to ten minutes until he was dead. Apparently Johnson was able to get off the ground at some point and thereafter attempted to stuff a wool hat into Ivery's month to keep him quiet.

*423 Defendant and Johnson put Ivery's body into the car and drove to Long Branch. They stopped at Bell Liquors in Long Branch between two and three o'clock, whereupon Johnson went into the store and attempted to use Ivery's Master Charge card. Martin Becker, the owner of the store, refused to allow her to use it because it was a man's card. Johnson left the store but reappeared a few minutes later with defendant who, Johnson told the store owner, was Arthur Ivery. Defendant displayed Ivery's credit card and signed his name on the credit card slip for goods having a total value of a little less than $50.

After leaving the liquor store defendant and Johnson took the body to a site near Ocean and Chelsea Avenues in Long Branch and dumped it behind an eight-foot tall fence located next to a water-slide amusement ride. Thereafter the two women returned to Johnson's house were defendant stayed a few days before returning to her parent's house in Englishtown.

Defendant first contends that under the facts of this case reversible error occurred due to the trial judge's failure to instruct the jury that if it believed defendant was sufficiently intoxicated at the time of the murder, to the extent that it rendered her incapable of deliberation and premeditation, they should find defendant guilty of second degree rather than first degree murder. We find defendant's argument is not persuasive.

Defendant did not request the judge to instruct the jury on intoxication and no objection was made on the failure to so instruct. The question before us, therefore, is whether the failure to so instruct constitutes plain error. R. 2:10-2. State v. Polk, 164 N.J. Super. 457, 462-463 (App.Div. 1977), aff'd o.b. 78 N.J. 539 (1979). The courts have generally held that a trial judge should charge intoxication, whether or not it is raised as a defense, if the evidence indicates that the issue should be presented for jury determination. See State v. Frankland, 51 N.J. 221, 223-224 (1968); State v. Ghaul, 132 N.J. Super. 438, 440-441 (App.Div. 1975). Failure to instruct in the proper circumstances *424 can result in reversible error. State v. Frankland, supra, 51 N.J. at 224. However, where the evidence of alcohol consumption does not rise to the level where a reasonable jury might find that defendant was sufficiently intoxicated to render him incapable of premeditation, a trial court should not mention this defense in its instructions. State v. Stasio, 78 N.J. 467, 483 (1979).

In State v. Ghaul, supra,

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429 A.2d 397, 178 N.J. Super. 417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moore-njsuperctappdiv-1981.