Opinion
DOCKET NO. A-4249-14T2
04-12-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. JAVAR NAIL, Defendant-Respondent.
Andrew C. Carey, Middlesex County Prosecutor, attorney for appellant (Deborah Hay, Assistant Prosecutor, of counsel and on the brief). Mazraani & Liguori, LLP, attorneys for respondent (Joseph M. Mazraani, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, St. John, and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-04-0559. Andrew C. Carey, Middlesex County Prosecutor, attorney for appellant (Deborah Hay, Assistant Prosecutor, of counsel and on the brief). Mazraani & Liguori, LLP, attorneys for respondent (Joseph M. Mazraani, of counsel and on the brief). PER CURIAM
By our leave granted, the State appeals from the March 26, 2015 order of the Law Division excluding evidence of telephone calls made by defendant while he was an inmate at the Middlesex County Adult Corrections Center (MCACC) from defendant's trial. For the reasons that follow, we reverse.
On November 12, 2012, Joshua Negron was shot and killed on the corner of Remsen and Hale Streets in New Brunswick. After a joint investigation by the New Brunswick Police and the Middlesex County Prosecutor's Office, defendant, Javar Nail, was arrested and charged with Negron's murder.
On November 14, 2012, a warrant was obtained and a search was conducted of defendant's residence. At the time, defendant was living with his aunt and his cousin. A Remington 12-gauge shotgun was located in a crawl space which extended the length of the second floor of the home, accessible from two second-floor bedrooms. One bedroom was occupied by defendant and the other by his cousin. The shotgun, which was not the weapon used in the murder, was located approximately ten feet from the access door in defendant's bedroom.
A grand jury sitting in Middlesex County returned an indictment charging defendant with first-degree murder, illegal possession of a weapon, possession of a weapon for an unlawful purpose, tampering with evidence, hindering his own prosecution, and possession of hollow point bullets. In a separate two-count indictment, defendant was charged as a certain person not to possess a firearm, one count of which pertained to the alleged murder weapon, which was never recovered, the other pertaining to the shotgun seized during law enforcement's search of defendant's residence.
Defendant was tried to a jury on the first indictment. On January 29, 2015, defendant was found guilty of fourth-degree tampering with evidence and acquitted of all other charges.
The second indictment was set to be tried before the same jury, but was adjourned. On March 23, 2015, the trial court denied defendant's motion to dismiss the indictment on double jeopardy grounds, but granted his motion to dismiss the first count, which charged possession of the murder weapon. The judge also denied defendant's motion to suppress telephone calls between defendant and various persons, which were made while defendant was an inmate at the MCACC.
Apparently, some or all of these calls were played during the first trial.
On March 24, 2015, defendant renewed his motion to exclude all or parts of the phone calls. Defendant's counsel argued that evidence that defendant was incarcerated at the time the calls were intercepted was prejudicial. The judge suggested that the jury not be told that defendant was incarcerated and be instructed not to speculate as to how the interceptions occurred. Counsel rejected this suggestion and claimed that he might introduce evidence of defendant's incarceration as part of his "theory of the case." Counsel did not elaborate on this theory, stating that he was not going to "sit here and tip my hand." When the judge asked counsel how he proposed to explain the intercepts to the jury, counsel suggested telling them, "these are legally obtained intercepts between Mr. Nail and whoever . . . the State identified that he's talking to."
The judge then reviewed transcripts of the four calls the State intended to introduce and noted that the participants in one conversation suggested the shotgun belonged to defendant's cousin, and did not bolster the State's case. The judge also noted that just by listening to the conversations, the jury would know that defendant was incarcerated. Given the marginal probative value and the high risk of prejudice, the judge excluded all of the calls.
On appeal, the State argues:
POINT I
THE TRIAL COURT ERRED IN EXCLUDING RELEVANT EVIDENCE THAT IS NOT UNDULY PREJUDICIAL AND THAT COULD HAVE BEEN SANITIZED.
POINT II
THE STATE WILL SUFFER IRREPARABLE INJURY IF THIS COURT DOES NOT INTERVENE IN THIS CASE.
The State provided an audio recording and a transcript of a phone call between defendant and his mother on November 19, 2012 at 3:09 p.m. This call appears to be a continuation of a previous call, which is also included as a written call transcript, but is not included in the audio recording. In the first part of the phone call, defendant and his mother are discussing what was found in his aunt Tanya's (Tan) house during the search:
[Defendant]: They ain't find; they ain't find nothing at Tan house.
[Defendant's mother]: (Inaudible)
[Defendant]: Cause uh, Freddie had a shot gun in there.
[Defendant's mother]: Perfect.
[Defendant]: (Laughing) the whole time, the whole time I'm like man Tan gonna be so mad at me, they gonna find that shot gun and she gonna think it was mine. (Inaudible).
[Defendant's mother]: (Inaudible).
[Defendant]: No cause, I don't know, I ain't know that they found um Freddie um shot gun or not. But I guess not.
[Defendant's mother]: No they did.
[Defendant]: Oh they found it?
[Defendant's mother]: They found it that, yeah.
[Defendant]: What they, what they say about that?
[Defendant's mother]: Nothing they ain't saying nothing.
[Defendant]: Ma, ma they gonna say something about the shot gun mom.
[Defendant's mother]: They gonna say something Buda but that's not yours.
[Defendant]: I know that, I know it ain't mine so they ain't charge Freddie with it?
. . . .
[Defendant's mother]: No.
[Defendant]: So nobody got charged with the shotgun?
[Defendant's mother]: No.
In the second part of the call, defendant's mother is heard telling defendant that officers seized two cell phones, two pairs of jeans, a hoodie, a clip or bullet that defendant's mother cannot specifically identify, and the "shotgun that [defendant] found in Tan['s] house."
The State acknowledges that during the homicide trial, where the recording of this call was played, defendant proposed an alternative transcription of this statement as the "shotgun that they found" instead of the "shotgun that you found." --------
In a call between defendant and an unidentified female, defendant stated that the shotgun belongs to his "dumb ass" cousin and that he believes his aunt is paying for his lawyer so that he will take the charge for the gun.
In a fourth call, defendant speaks with his aunt and briefly references the shotgun while discussing what was seized from the house.
We review a ruling under N.J.R.E. 403 for abuse of discretion. State v. Rose, 206 N.J. 141, 157 (2011). A trial court's determination will be upheld unless it is "'so wide of the mark' as to result in a manifest injustice." State v. J.D., 211 N.J. 344, 354 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). However, deference will not be afforded if the trial court has misapplied the law to the evidence in question. Rose, supra, 206 N.J. at 158.
The State argues that the phone calls should not have been excluded because they are relevant to the issue of whether defendant had knowledge and possession of the shotgun, and they are not unduly prejudicial.
N.J.R.E. 401 provides that evidence is relevant if it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." The test for relevancy is a broad test, and favors admissibility. State v. Deatore, 70 N.J. 100, 116 (1976). "In determining whether evidence is relevant, the inquiry should focus upon the logical connection between the proffered evidence and a fact in issue." State v. Swint, 328 N.J. Super. 236, 252 (App. Div.), certif. denied, 165 N.J. 492 (2000).
N.J.R.E. 402 provides that all relevant evidence is admissible unless it is excludable under another evidence rule. N.J.R.E. 403 allows for exclusion if the probative value of the evidence is substantially outweighed by the risk of undue prejudice. "The mere possibility that evidence could be prejudicial does not justify its exclusion." Swint, supra, 328 N.J. Super. at 253 (citing State v. Morton, 155 N.J. 383, 453-54 (1998)). It must be determined that the risk of undue prejudice is too high. State v. Bowens, 219 N.J. Super. 290, 297 (App. Div. 1987).
To obtain a conviction, the State must prove that defendant "possesse[d] or control[ed]" a weapon. N.J.S.A. 2C:39-7(b)(1). "Possession . . . signifies 'a knowing, intentional control of a designated thing, accompanied by a knowledge of its character.'" State v. Pena, 301 N.J. Super 158, 162 (App. Div.) (quoting State v. Montesano, 298 N.J. Super. 597, 612 (App. Div. 1997)), certif. denied, 151 N.J. 465 (1997).
Possession may be actual or constructive. Model Jury Charge (Criminal), "Possession" (2014). A person who, "with knowledge of its character, knowingly has direct physical control over an item at a given time is in actual possession of it." Ibid. "Constructive possession means possession in which the possessor does not physically have the item on his or her person but is aware that the item is present and is able to and has the intention to exercise control over it." Ibid.
The State claims that the phone calls defendant made from prison tend to prove that defendant had knowledge of the shotgun located in the crawl space that connected his bedroom to his cousin's. Further, the State contends that the shotgun's location in the crawl space, in close proximity to and easily accessible by defendant, indicates that he was able to exercise dominion and control over it, and therefore he had constructive possession.
The trial judge noted that his N.J.R.E. 403 analysis might have been different if defendant made an unequivocal expression of possession in the phone calls. However, because there was no "logical link in the chain" connecting defendant's knowledge to his alleged control over the gun, the court rejected the State's argument that "knowledge was enough to give rise to constructive possession under the law."
The judge determined that because the calls would need to be put into context for the jury, necessitating an instruction either that defendant was incarcerated or that the recording was a legal intercept, there was a risk of prejudice that outweighed the minimal probative value of the calls, and that the prejudice could not be purged by a limiting instruction.
N.J.R.E. 105 provides that, where necessary, a judge "shall restrict [] evidence to its proper scope and shall instruct the jury accordingly . . . ." The instruction "should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." State v. Stevens, 115 N.J. 289, 304 (1989).
In Rose, supra, the Court determined that the jury was provided with a proper limiting instruction as to testimony about discussions between the defendant and the witness that took place while both were in jail. 206 N.J. at 166. The jury was instructed that it could not rely on the fact that defendant was incarcerated as evidence that he "has a tendency to commit crimes or that he is a bad person." Ibid. The trial judge told the jury they "may not decide that just because [the defendant] was in jail, he must be guilty of the present crime." Ibid.
The jury was further instructed that the evidence was being admitted solely "to provide [them] with the location of the discussions, to assist [them] in [their] understanding of the context and background of them." Ibid. The Court concluded that the jury was properly instructed and that the "defendant suffered no error." Id. at 167.
Here, defendant's references in the phone calls to the shotgun were relevant to the question of whether defendant was "aware that the item is present . . . ." Model Jury Charge (Criminal), "Possession" (2014). Defendant mentions the shotgun at least once in each of the four phone calls. To his mother, defendant states his cousin "had a shot gun in [the house]," and then later, "the whole time I'm like man [Aunt] Tan gonna be so mad at me, they gonna find that shot gun and she gonna think it was mine." In a second call with his mother, which appears to be a continuation of the first call on the same day, the shotgun is mentioned in a list of what was seized from defendant's aunt's house.
Then, in a conversation with an unidentified woman, defendant says "[t]hey found a shot a house [sic], not mines . . . it ain't my aunt's it [sic] my dumb ass, well cousin['s], but I know I'm getting charged with that. . . . I think that's why my aunt [is] paying for my lawyer and shit cause she want me to take that charge and shit." Finally, in a conversation with his aunt, defendant is told that "they got the shotgun[.]"
The trial judge's emphasis on the inaudible portions of the recording is misplaced, and his suggestion that they could have been defendant's mother prompting the conversation about the shotgun is conjecture. At no point during any of the calls does defendant seem surprised to learn about the existence of the shotgun. In fact, in the first call with his mother, he is the one to first mention it. Indeed, the only expression of surprise by the defendant was in response to his brief mistaken understanding that the shotgun was not found.
Given the breadth of the relevancy test, and the fact that it favors admissibility, the phone calls should have been considered admissible under N.J.R.E. 401 because they have a tendency to prove that defendant had knowledge of the shotgun. Under N.J.R.E. 403, the probative value of the phone calls is established by its relevance to the element of knowledge. Whether the comments made during the calls actually prove defendant had constructive possession is a question for the jury.
In assessing the probative value of the evidence and the risk of prejudice to defendant, the trial judge should have given greater consideration to the possibility of instructing the jury that the calls were recorded pursuant to a legal intercept, and that the jury was not to draw any inferences from that fact. The risk that the jury would perceive defendant in a certain way could have been sanitized by an appropriate instruction, as well as by redaction of any parts of the recording which indicate that defendant was incarcerated, neutralizing the risk of undue prejudice. Defendant's counsel actually proposed an instruction that would have informed the jury the calls were "legally obtained intercepts," and would not specifically mention that defendant was incarcerated.
Furthermore, as the trial judge acknowledged, the jury would already be aware of defendant's prior criminal conviction; "they have to be told that, because that's a predicate for this offense[.]" While the judge reasoned that it would be unduly prejudicial "to have the jury pound it into their head that he's in jail," the fact that the jury would already be aware of defendant's criminal history dilutes any prejudicial effect of the phone calls.
The question of whether the phone calls, along with other proffered evidence of the location of the shotgun in the house, in fact prove defendant had the ability to exercise dominion and control over the gun is for the jury to determine. But the trial judge's ruling, based predominantly on the fact that he was unconvinced of the State's case, was improper. His failure to consider the availability of a limiting instruction resulted in the erroneous removal of the evidence from the jury's province.
Given our decision, we find that defendant's arguments that sanctions should be imposed against the State for filing this appeal in bad faith, and that he should be awarded counsel fees, are without sufficient merit to warrant further discussion in our opinion. R. 2:11-3(e)(2).
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION