SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5544-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY J. JAMES,

Defendant-Appellant.

________________________

Argued January 24, 2022 – Decided August 4, 2022

Before Judges Accurso, Rose and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 12-03-0210.

Stephen W. Kirsch, Designated Counsel, argued the 

cause for appellant (Joseph E. Krakora, Public 

Defender, attorney; Stephen W. Kirsch, on the brief).

Michele C. Buckley, Assistant Prosecutor, argued the

cause for respondent (William A. Daniel, Union County 

Prosecutor, attorney; Michele C. Buckley, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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A-5544-18

Around 5:10 p.m. on September 28, 2011, defendant Anthony J. James 

called 9-1-1 from his Plainfield home, reporting he had just killed his girlfriend 

and was waiting on the porch for police to arrive so he could turn himself in. 

Audrey Tanksley's lifeless body lay in the fetal position in the bathtub. She had 

been stabbed ninety-four times. 

The State contended defendant repeatedly stabbed Tanskley with three 

knives in "an act of rage." Rejecting his claims of diminished capacity and selfdefense, the jury convicted defendant of all three counts charged in Union 

County Indictment No. 12-03-2101: first-degree murder, N.J.S.A. 2C:11-

3(a)(1) and (2) (count one); third-degree possession of a weapon for an unlawful 

purpose, N.J.S.A. 2C:39-4(d) (count two); and fourth-degree unlawful 

possession of a weapon, N.J.S.A. 2C:39-5(d) (count three). After ordering 

appropriate mergers, the trial judge nonetheless imposed concurrent sentences 

on each count.1 Defendant was sentenced to an aggregate sixty-year prison term, 

subject to the periods of parole ineligibility and supervision required by the No 

Early Release Act, N.J.S.A. 2C:43-7.2, on the murder conviction. 

On appeal, defendant raises the following points for our consideration: 

1

 In addition to the sixty-year prison term on count one, defendant was sentenced 

to a four-year prison term, with a two-year parole disqualifier on count two, and 

a sixteen-month prison term on count three. 
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POINT I

THE JUDGE IMPROPERLY INSTRUCTED THE 

JURY ON THE DUTY TO RETREAT; A PERSON 

ATTACKED INSIDE THAT PERSON'S OWN 

DWELLING HAS NO SUCH DUTY. 

(Not raised below)

POINT II

THE JUDGE'S DECISION TO SEPARATELY ASK 

THE JURY TO RETURN A YES/NO VERDICT ON 

THE ISSUE OF SELF-DEFENSE AS THE FIRST 

QUESTION ON THE VERDICT SHEET DEPRIVED 

DEFENDANT OF PROPER JURY DELIBERATION 

ON THE ISSUE OF SELF-DEFENSE IN TWO 

RESPECTS: (1) BECAUSE THE JURY 

INSTRUCTION NEVER TIED THE STATE'S 

BURDEN OF PROOF TO THE ANSWER TO THIS 

QUESTION; I.E., JURORS WERE NEVER TOLD TO 

ANSWER "YES" IF THEY MERELY HAD A 

REASONABLE DOUBT ON THE ISSUE OF SELFDEFENSE; AND (2) BECAUSE SEPARATING THE 

SELF-DEFENSE DELIBERATIONS FROM THE 

OTHER DELIBERATIONS ON MURDER 

IMPROPERLY BIFURCATED THE JURY'S 

DELIBERATIONS ON THE MOST IMPORTANT 

ISSUE IN THE CASE: WHETHER HE SHOULD BE 

CONVICTED OF MURDER. 

(Not raised below)

POINT III

THE JUDGE IMPROPERLY OMITTED A "COURSE 

OF ABUSE" INSTRUCTION FROM THE JURY 

INSTRUCTION ON SELF-DEFENSE, STRANGELY 

LIMITING THAT CONCEPT ONLY TO 
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PASSION/PROVOCATION MANSLAUGHTER. 

(Not raised below)

POINT IV

THE SENTENCE IMPOSED IS MANIFESTLY 

EXCESSIVE AND THE JUDGE IMPROPERLY 

IMPOSED SENTENCE ON COUNTS THAT HE HAD 

ORDERED MERGED. 

We are persuaded by defendant's assertions in point I and conclude the 

flaws in the jury instruction on self-defense require reversal of defendant's 

convictions and remand for a new trial. We briefly address the contentions 

raised in points II and III for guidance in the event of a retrial. In view of our 

disposition, it is unnecessary to reach defendant's sentencing argument raised in 

point IV. 

I.

Over the course of two trial days in January 2019, the State presented the 

testimony of twelve witnesses in its case-in-chief, including defendant's mother 

and sisters, the medical examiner, and an expert in DNA analysis. The State 

also introduced in evidence more than 150 exhibits, including photographs of 

defendant's appearance after his arrest. We summarize the evidence that is 

relevant to the issues raised on appeal. 
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Before calling the police, defendant called his mother at 4:00 p.m., stating: 

"Ma, I think, I think [sic] I killed Audrey." Defendant "was upset, crying, and 

it was hard to understand him." Defendant also called his pastor. Defendant's 

sisters accompanied their mother to defendant's home. The mother remained 

outside while the sisters went upstairs. One of the sisters described the 

appearance of the kitchen: "Broken glass. The table was knocked over. Blood 

was all over the place, on the floor, the walls, the sink, the cabinet." She also 

saw a bloody knife in the sink and blood "[o]n the floor, the walls, [and] the 

toilet" in the bathroom. Tanksley was lying on her back in the tub. She had stab 

wounds "over her whole body." 

Police recovered three knives from defendant's kitchen sink – a large knife 

with an eight-inch blade and two knives with four-inch blades. The handle of 

each knife was broken. The State's DNA expert testified blood recovered from 

the tip of the blade on the larger knife and one of the smaller knives matched 

Tanksley's DNA profile. Although neither defendant nor Tanskley could be 

excluded as possible contributors of the mixture of blood found on the blade of 

the third knife, the blood on the handle matched Tanksley's DNA profile and 

defendant was excluded as the possible source of its DNA. 
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During Tanskley's autopsy, the medical examiner observed at least ninetyfour sharp force injuries and overlapping multiple blunt force injuries to 

Tanksley's head, neck, arms, hands, and torso. The doctor categorized the 

bruises on Tanksley's forearms and knees, as well as cuts on her forearms and 

hands, as defensive wounds. He opined the location of certain injuries was 

consistent with "straddl[ing] on someone's abdomen" while stabbing her. 

Tanksley's toxicology report revealed "evidence of recent use of alcohol." 

Defendant testified and called three witnesses on his behalf, including his 

expert, Gary Robert Collins, M.D, who diagnosed defendant with 

"schizoaffective disorder of the bipolar type." Dr. Collins opined defendant 

experienced "fixed delusions," and suffered from diminished capacity when he 

killed Tanskley. The State's case on rebuttal attacked those conclusions. The 

State's competing expert, Louis B. Schlesigner, Ph.D., opined defendant "had a 

severe personality disorder with antisocial and borderline traits." He "f[ound 

no] evidence that would support the defense of diminished capacity." 

By all accounts, the relationship between defendant and Tanskley was 

tumultuous. Defendant, who was an ordained pastor, dated Tanskley for about 

two to three years prior to her death. Because Tanskley struggled to find 

permanent housing, she and her son lived with defendant for most of the two 
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years prior to her death. The couple often argued. On several occasions, 

defendant told Tanskley and her son to leave, then invited them back when 

things cooled down. 

Testifying on defendant's behalf, the couple's mutual friend, Yvonne 

Richardson-Cooper, described two instances during which she saw Tanskley 

assault defendant. On one occasion, Tanskley slapped defendant during a verbal 

dispute; on the other, Tanksley swung at defendant and punched him after 

accusing him of cheating on her. Defendant's former neighbor, Nedinia Biaggi 

Callejas, never saw Tanskley strike defendant, but nearly "every other day" she 

heard Tanskley "screaming" at defendant over another woman. 

Defendant told the jury Tanskley was the aggressor and he acted in selfdefense on the day of the incident. He returned home from looking for a new 

job and saw Tanksley in the kitchen with an open beer can on the table. 

Defendant asked whether she had been drinking. Tanksley "snapped" and called 

him "a lying bastard" about his interactions with another woman. Tanksley told 

defendant: "'I kill you [sic]. You don't know me. I don't give a fuck.'" 

Tanksley then grabbed a knife from the kitchen counter and swung it at 

defendant, who "caught her by her arm." But "somehow," the couple wound up 

in the bathroom adjacent to the kitchen and "fell into the tub." Defendant could 
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not recall what happened next. He said Tanskley was "[n]othing but the devil." 

He claimed, "the Holy Spirit of God told [him] to call Pastor, [his] family and 

the police, and that's what [he] did." Repeating Tanskley "attacked [him]" and 

"wanted to kill [him]," defendant told the jury, she "put the fear of death in 

[him]." 

On cross-examination, the prosecutor inquired about defendant's selfdefense claim and his ability to leave his home during the incident: 

PROSECUTOR: [Y]ou could have just left on your 

own, correct?

DEFENDANT: No, I couldn't get out that house. She 

jumped on me swinging. I wasn't making it through no 

front door. She right there in the kitchen swinging that 

knife at me. [sic]

PROSECUTOR: You outweighed her by eighty-five 

pounds. You could have easily pushed her off you and 

walked out?

DEFENDANT: No, it didn't happen like that. If it 

could have happened like that, it would have happened.

PROSECUTOR: You ran away from her before, didn't 

you?

DEFENDANT: 'Cause I was out in the street.

PROSECUTOR: And you couldn't run away?

DEFENDANT: It didn't happen like that.
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PROSECUTOR: She's in the kitchen, correct, when 

you came home?

DEFENDANT: It didn't happen like that. 

PROSECUTOR: You said she was in the kitchen, 

correct?

DEFENDANT: Yes, she was.

PROSECUTOR: And, therefore, when you walked into 

the kitchen, you are the one closest to the front door, 

correct?

DEFENDANT: No, no, you got to go through my 

bedroom to get to the living room and through the front 

door.

PROSECUTOR: But still you were a lot closer than 

she was?

DEFENDANT: No, I was not. I was right next to the 

bathroom, where the bathroom is next to the kitchen.

PROSECUTOR: And you're claiming today that this 

was self-defense on your part at that point, correct?

. . . . 

DEFENDANT: No, I did not claim that at no 2011 

[sic].
10 A-5544-18

PROSECUTOR: You're claiming it now, though. In 

2016,[2] you were saying you had every right to defend 

yourself, right?

DEFENDANT: Five years later, looking at stuff 

through the law library, learning stuff through the law 

library, through the law. Inside my own home. 

On redirect examination, defendant explained he had access to the jail's 

law library and his research revealed the law on self-defense states: "[A] man 

have a right to defend himself in his own dwelling if he feels threatened, if 

somebody going to do bodily harm to him [sic]. Retreat is not necessary." 

(Emphasis added). Defendant stated: "I got the papers in my files and I looked 

it all up in the law library and asking God to help me to understand [sic]." 

In summation, the prosecutor outlined the law on self-defense and argued:

Self-defense: This is not self-defense; not even close 

to self-defense. 

Reasonably believes that the force is necessary to 

protect oneself: Well, ninety-four wounds is not [sic] 

reasonable. 

Deadly force: You cannot respond with deadly force 

from a minor attack, and you have to be able, if you 

could have retreated, to retreat. 

2

 Defendant testified at his July 2016 competency hearing. On December 20, 

2016, the motion judge, who was not the trial judge, determined defendant was 

not competent to stand trial. Pursuant to defendant's ensuing application, on 

July 12, 2017, the motion judge found defendant competent to proceed to trial. 
11 A-5544-18

None of that happened here. 

[(Emphasis added).] 

Comparing photographs depicting "scratches" to defendant's chest and arm with 

the medical examiner's testimony about the severity of Tanskley's wounds, the 

prosecutor asked the jurors whether they "th[ought] she really came at him with 

a knife." 

The trial judge instructed the jury on passion/provocation and selfdefense, based primarily on the model jury charges. The parties agreed to the 

jury charges. As to self-defense, the judge included the following portion of the 

model jury charge: 

If you find that the defendant knew that he could 

avoid the necessity of using deadly force by retreating, 

provided that the defendant knew he could do so with 

complete safety, then the defense is not available to 

him. 

In your inquiry as to whether a defendant who 

resorted to deadly force knew that an opportunity to 

retreat with complete safety was available, the total 

circumstances, including the attendant excitement 

accompanying the situation, must be considered. 

The State has the burden to prove to you beyond 

a reasonable doubt that the defense of self-defense is 

untrue. This defense only applies if all the conditions 

or elements previously described exist. The defense 

must be rejected if the State disproves any of the 

conditions beyond a reasonable doubt. 
12 A-5544-18

The same theory applies to the issue of retreat. 

The burden of proof is upon the State to prove beyond 

a reasonable doubt that the defendant knew he could 

have retreated with complete safety. If the State carries 

its burden, then you must disallow the defense. If the 

State does not satisfy this burden and you do have a 

reasonable doubt, then it must be resolved in favor of 

the defendant and you must allow the claim of selfdefense and acquit the defendant. 

[(Emphasis added).]

II.

Defendant's first three arguments on appeal belatedly challenge the trial 

judge's instructions and verdict sheet on defendant's self-defense claim. We 

therefore begin our review with well-settled principles applicable to all three 

points. 

"Jury instructions demand careful attention." State v. Montalvo, 229 N.J. 

300, 320 (2017). "The trial court must give 'a comprehensible explanation of 

the questions that the jury must determine, including the law of the case 

applicable to the facts that the jury may find.'" State v. Baum, 224 N.J. 147, 159 

(2016) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). "It is the 

independent duty of the court to ensure that the jurors receive accurate 

instructions on the law as it pertains to the facts and issues of each case, 

irrespective of the particular language suggested by either party." State v. 
13 A-5544-18

Reddish, 181 N.J. 553, 613 (2004). Essentially, the judge's instructions on the 

law are a road map for the jurors to follow. State v. Fowler, 239 N.J. 171, 192 

(2019). "[W]ithout an appropriate charge[,] a jury can take a wrong turn in its 

deliberations." State v. Martin, 119 N.J. 2, 15 (1990). Thus, "'[a]ppropriate and 

proper charges are essential for a fair trial.'" Baum, 224 N.J. at 158-59 (quoting 

Reddish, 181 N.J. at 613). 

As a corollary to those principles, "clear verdict sheet directions" are also 

important. State v. Nelson, 173 N.J. 417, 449 (2002). A jury's "efforts to answer 

questions that they may have about verbal instructions almost certainly [will] 

involve an examination of the verdict sheet directions." Ibid. "If verbal 

instructions are unclear, or if jurors do not fully comprehend verbal instructions, 

the typewritten verdict sheet is likely the primary road map they will use to 

direct their deliberative path." Ibid. 

Nonetheless, a jury verdict sheet "is intended for recordation of the jury's 

verdict and is not designed to supplement oral jury instructions." State v. 

Gandhi, 201 N.J. 161, 196 (2010). If an appellate court concludes "the oral 

instructions of a [trial] court were sufficient to convey an understanding of the 

elements to the jury, and where [the reviewing court] also find[s] that the verdict 

sheet was not misleading, any error in the verdict sheet can be regarded as 
14 A-5544-18

harmless." Id. at 197. This is so because "[t]he jury is presumed to have 

understood [the trial court's] instructions." State v. Vasquez, 265 N.J. Super. 

528, 547 (App. Div. 1993). 

A jury charge "must be read as a whole in determining whether there was 

any error." State v. Torres, 183 N.J. 554, 564 (2005). The appropriate test to 

apply "'is whether the charge as a whole is misleading, or sets forth accurately 

and fairly the controlling principles of law.'" State v. McKinney, 223 N.J. 475, 

496 (2015) (quoting State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 

1997)). "'Because proper jury instructions are essential to a fair trial, "erroneous 

instructions on material points are presumed to" possess the capacity to unfairly 

prejudice the defendant.'" Id. at 495 (quoting State v. Bunch, 180 N.J. 534, 541-

42 (2004)). 

When a defendant fails to object to an error regarding jury charges, we 

review for plain error. R. 1:7-2; see also State v. Funderburg, 225 N.J. 66, 79 

(2016). "Under that standard, we disregard any alleged error 'unless it is of such 

a nature as to have been clearly capable of producing an unjust result.'" Ibid. 

(quoting R. 2:10-2). "The mere possibility of an unjust result is not enough." 

Id. at 79. We will only reverse if the error is "sufficient to raise 'a reasonable 

doubt . . . as to whether the error led the jury to a result it otherwise might not 
15 A-5544-18

have reached.'" Ibid. (alteration in original) (quoting State v. Jenkins, 178 N.J. 

347, 361 (2004)). However, "[e]rroneous instructions are poor candidates for 

rehabilitation as harmless, and are ordinarily presumed to be reversible error." 

State v. Afanador, 151 N.J. 41, 54, 56 (1997) (concluding the absence of the jury 

instruction at issue constituted plain error). 

A.

In point I, defendant asserts because the incident occurred in his home, 

the trial judge improperly instructed the jury he had a duty to retreat, if he could 

do so safely, before using deadly force. Acknowledging trial counsel primarily 

emphasized defendant's passion/provocation argument in summation, defendant 

nonetheless contends the improper instruction constituted plain error. The State 

acknowledges the instruction was erroneous, but urges us to affirm, "given the 

overwhelming evidence that defendant did not act in self-defense." 

Prior to 1999, New Jersey courts held a resident of a dwelling had an 

obligation to retreat when attacked in the home by a cohabitant. See State v. 

Gartland, 149 N.J. 456, 467 (1997). The Legislature abolished that duty in 1999 

when it eliminated language in Title 2C mandating a duty to retreat in one's own 

home, as long as the victim was not the initial aggressor. See L. 1999, c. 73, § 

1. 
16 A-5544-18

The change in the law was largely prompted by concern for victims of 

domestic violence, who attempt to defend themselves from attacks within their 

own homes. See Gartland, 149 N.J. at 468-69 ("[The] loophole in the castle 

doctrine profoundly impacts battered women. If the attacker has as much right 

to be in the home where the attack occurs, the duty to retreat still applies." 

(alteration in original) (quoting Maryanne E. Kampmann, The Legal 

Victimization of Battered Women, 15 Women's Rights L. Rep. 101, 112-13 

(1993))). The New Jersey amendment parallels a similar provision within the 

Model Penal Code that applies the "home-is-one's-castle" exception to the duty 

to retreat. See Model Penal Code § 3.04 (Am. Law. Inst. 2021). 

Under current law, N.J.S.A. 2C:3-4(a) provides use of force is "justifiable 

for the protection of the person . . . when the actor reasonably believes that such 

force is immediately necessary for the purpose of protecting himself against the 

use of unlawful force by such other person on the present occasion." Pertinent 

to this appeal, the use of force is subject to certain limitations set forth in 

paragraph (b): 

(2) The use of deadly force is not justifiable 

under this section unless the actor reasonably believes 

that such force is necessary to protect himself against 

death or serious bodily harm; nor is it justifiable if: 
17 A-5544-18

(a) The actor, with the purpose of causing death 

or serious bodily harm, provoked the use of force 

against himself in the same encounter; or

(b) The actor knows that he can avoid the 

necessity of using such force with complete safety by 

retreating . . . , except that: 

 (i) The actor is not obliged to retreat from his 

dwelling, unless he was the initial aggressor . . . .

[(Emphasis added).]

To succeed on a self-defense claim where the defendant used deadly force, 

the jury must find: (1) the defendant had an honest and reasonable belief that 

deadly force was necessary to protect himself from serious bodily injury or 

death, and (2) the defendant did not provoke the attacker. N.J.S.A. 2C:3-4(a) 

and (b)(2)(a); State v. Kelly, 97 N.J. 178, 197 (1984); State v. Gentry, 439 N.J. 

Super. 57, 66-69 (App. Div. 2015). Whether the defendant's belief was 

reasonable is measured by what the jury, not the defendant, considers reasonable 

under an objective standard. State v. Bess, 53 N.J. 10, 16 (1968). Accord State 

v. Handy, 215 N.J. 334, 356-57 (2013). 

"The home is accorded special treatment within the justification of selfdefense." Montalvo, 229 N.J. at 319. If the alleged assault occurred in the 

defendant's dwelling, the duty to retreat does not exist as long as the defendant 

did not provoke the attacker. Id. at 320. Conversely, if the alleged assault 
18 A-5544-18

occurred outside the defendant's dwelling, the jury must also find that the 

defendant was unable to retreat with complete safety. N.J.S.A. 2C:3-4(b)(2)(b); 

see also State v. Rodriguez, 195 N.J. 165, 175 (2008). 

The pertinent model jury charges make clear the "castle" doctrine must 

guide jurors in their deliberations over a defendant's assertion of self-defense 

when the defendant had been attacked in his or her own dwelling. See Model 

Jury Charge (Criminal), "Justification - Self-Defense in Self Protection 

(N.J.S.A. 2C:3-4)" (rev. June 13, 2011). The model charge includes an 

important proviso in footnote four that cautions: "An exception to the rule of 

retreat, however, is that a person need not retreat from his or her own dwelling, 

including the porch, unless he or she was the initial aggressor. N.J.S.A. 2C:3-

4[(b)](2)(b)(i)." Model Jury Charge (Criminal), "Justification - Self-Defense in 

Self Protection (N.J.S.A. 2C:3-4)," at 3 n.4 (rev. June 13, 2011) (emphasis 

added).

In the present matter, the record does not reveal why the trial judge 

omitted this important principle and instead charged the jury defendant had an 

affirmative duty to retreat to safety from his own apartment. There is no 

discussion of this portion of the instruction in the transcript of the charge 
19 A-5544-18

conference. As noted, defense counsel did not raise an objection to its inclusion 

in the charge. 

While his appeal was pending, the Supreme Court decided State v. 

Hedgespeth, 249 N.J. 234 (2021), and defendant thereafter filed a letter, 

pursuant to Rule 2:6-11(d), arguing the case refutes the State's harmless error 

argument as to all three points on appeal. Defendant contends Hedgespeth

"reaffirms the rule of State v. Scott, 229 N.J. 469, 485 (2017), that it is the jury's

role, not this [c]ourt's, to determine the plausibility of a defendant's testimony." 

See Hedgespeth 249 N.J. at 252-53. 

Although the trial courts' errors in Hedgespeth and Scott impacted either 

the defendant's ability to testify in his own defense, Hedgespeth, 249 N.J. at 

252-53, or call a crucial witness, Scott, 229 N.J. at 484-85, the Court made clear 

the plausibility of a defense theory "is not reason to hold that the trial court's 

error was harmless." Hedgespeth, 249 N.J. at 253 (citing Scott, 229 N.J. at 484-

85). "Determining implausibility 'is in the sole province of the jury. Judges 

should not intrude as the thirteenth juror.'" Hedgespeth, 249 N.J. at 253 (quoting 

Scott, 229 N.J. at 485). 

Thus, while we acknowledge the sheer number of stab wounds inflicted 

on the victim is staggering, we express no opinion about the credibility of 
20 A-5544-18

defendant's self-defense claim. That is not our function. See id. at 253. We 

note, however, defendant's testimony placed his credibility squarely in issue. 

He told the jury his research demonstrated he had no duty to retreat because he 

was attacked in his own home. Referencing the layout of defendant's apartment, 

the prosecutor attempted to poke holes in that testimony, repeatedly asking why 

defendant could not leave. In summation, the prosecutor affirmatively told the 

jury defendant had a duty to retreat. The trial judge's instruction on self-defense 

endorsed that error, imposing a duty on defendant where none existed. The 

inaccurate instruction improperly impugned, albeit implicitly, defendant's 

credibility. 

Viewing the evidence in the light most favorable to defendant, Rodriguez, 

195 N.J. at 170, we conclude the error was "clearly capable of producing an 

unjust result," R. 2:10-2. Accordingly, we are compelled to vacate defendant's 

convictions on this basis and order a new trial. 

B.

In point II, defendant argues he is independently entitled to a new trial 

because the first question posed on the verdict sheet asked the jury to answer 

"Yes" or "No" as to whether defendant acted in self-defense. If the jury 

answered "Yes," the verdict sheet instructed the jury to proceed to the questions 
21 A-5544-18

concerning the weapons offenses. If the jury answered, "No," the jury would 

then consider whether defendant was guilty of murder or any lesser-included 

offenses. Defendant claims the self-defense question violated his constitutional 

rights to a fair trial and due process in two ways: (1) neither the jury instruction 

nor the verdict sheet indicated the jurors must determine the State disproved 

self-defense beyond a reasonable doubt; and (2) the jury's consideration of 

defendant's self-defense claim was "improperly bifurcate[d]" from its 

consideration of the substantive crimes that followed. We are unpersuaded that 

a new trial is required on either basis. 

Little need be said regarding defendant's first assertion. As stated, the 

trial judge's self-defense charge largely tracked the model jury instruction. 

Relevant here, the judge informed the jury: 

The State has the burden to prove to you beyond a 

reasonable doubt that the defense of self-defense is 

untrue. This defense only applies if all the conditions 

or elements previously described exist. The defense 

must be rejected if the State disproves any of the 

conditions beyond a reasonable doubt. 

In view of the instruction given, the verdict sheet's omission of the State's burden 

of proof on self-defense was not misleading. We presume the jury followed the 

trial judge's instructions. Vasquez, 265 N.J. Super. at 547; see also State v. 

Vega-Larregui, 246 N.J. 94, 126 (2021). 
22 A-5544-18

Nor are we persuaded by defendant's second claim of error concerning the 

self-defense question. Defendant's reliance on State v. Simon, 79 N.J. 191 

(1979), to support his bifurcation argument is misplaced. 

In Simon, the trial court employed a "'bifurcate[d]' verdict procedure" 

wherein jurors were instructed to first answer "special interrogatories dealing 

with the issues raised by [a] statute of limitations" issue. Id. at 196 (first 

alteration in original). If the jury found an overt action occurred within the 

period of limitations, then the judge "would submit the case to the jury for 

deliberations upon a general verdict." Ibid. The Supreme Court concluded the 

use of special interrogatories before the jury commenced its final deliberations 

was plain error, warranting reversal of the defendants' convictions and remand 

for a new trial. Id. at 198. Here, the jury was not required to answer special 

interrogatories before deliberating; the "yes-or-no" question regarding selfdefense was part of the verdict sheet. 

As the judge explained when reviewing the form with the jury: 

If your answer is "yes," you have found the 

defendant not guilty of killing Audrey Tanksley due to 

self-defense. If that is the case, you're going to go to 

the weapons questions which begin at Question No. 5, 

Possession of a Weapon For an Unlawful Purpose and 

Unlawful Possession of a Weapon and you'll address 

those questions. 
23 A-5544-18

If your answer is "no" to the question of did the 

Defendant act in self-defense, you will then go on to 

consider the charges relating to Murder, potentially, 

Aggravated Manslaughter, potentially, Reckless 

Manslaughter.

Because a valid claim of self-defense "would entitle [the defendant] to an 

exoneration of criminal liability on the murder, aggravated manslaughter, and 

manslaughter charges," Rodriguez, 195 N.J. at 171, any error in the inclusion of 

the yes-or-no question as the first question on the verdict sheet was harmless. 

Should the matter be retried on remand, the trial judge shall review with the 

parties whether the yes-or-no question should be included on the verdict sheet 

and, if so, whether the question should be reworded to include the prosecutor's 

burden of proof. 

C.

Lastly, we address defendant's "course of abuse" argument, raised in point 

III. Defendant contends, based on the evidence adduced at trial that Tanskley 

had "violently assaulted defendant on more than one occasion," the self-defense 

charge improperly omitted the following instruction: "A continued course of ill 

treatment by the decedent against the defendant can constitute adequate 

provocation to kill." Defendant claims the inclusion of this instruction in the 

passion/provocation charge – and its omission from the self-defense charge –
24 A-5544-18

highlighted the error. Again, defendant claims the omission independently 

warrants reversal of his convictions and remand for a new trial. 

When discussing how the jury should consider the testimony of defense 

witnesses Biaggi Callejas and Richardson-Cooper, the judge twice instructed the 

jurors they could consider Tanksley's prior acts of violence against defendant. 

Prior to their testimony, the judge issued the following limiting instruction, in 

pertinent part: "The testimony is being offered for the purpose of aiding your 

determination of: (1) the reasonableness of [defendant]'s use of force against 

Ms. Tanksley on September 28th, 2011; and (2) whether there was adequate 

provocation for [defendant]'s use of force on September 28th, 2011." In his final 

jury instructions, prior to explaining the substantive charges, the judge told the 

jurors the "testimony [of those witnesses wa]s being offered for the sole purpose 

of aiding [their] determination of the issues of self-defense and 

passion/provocation." 

While it would have been preferable for the trial judge to have included 

the course of conduct instruction in the self-defense charge, we are unable to 

conclude under the plain error standard that the failure to do so constitutes 

reversible error. Assuming on remand defendant interposes the same defense 
25 A-5544-18

through these or any other witnesses, the self-defense charge should include the 

course of abuse instruction. 

Reversed and remanded for a new trial, with a proper instruction on selfdefense in accordance with this opinion.