Opinion
DOCKET NO. A-4507-10T2
02-04-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAHEEM D. ROBERTSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Kenneth Burden, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-05-1825.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Kenneth Burden, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Following a bifurcated trial on charges of unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and possession of a handgun being a person disqualified by prior conviction, N.J.S.A. 2C:39-7, commonly known as a certain persons offense, the jury found defendant guilty as charged. Both are crimes of the second degree, subject to mandatory terms of parole ineligibility. N.J.S.A. 2C:39-5b & N.J.S.A. 2C:43-6c; N.J.S.A. 2C:39-7b(1). At sentencing, the judge imposed concurrent nine-year terms of imprisonment each with a five-year mandatory-minimum term. The judgment of conviction, however, states a different sentence for possession of a handgun without a permit — nine-years-and-five-months imprisonment with a mandatory-minimum term of four years and six months. Defendant raises four issues on appeal, none of which implicates defendant's conviction or sentence for the certain persons offense. As stated by defendant, they are:
I. THE TRIAL COURT'S INSTRUCTIONS TO THE JURY ON UNLAWFUL POSSESSION OF A HANDGUN DIRECTED THE JURY'S VERDICT ON AN ESSENTIAL ELEMENT OF THE CRIME AND THUS DENIED DEFENDANT THE RIGHT TO TRIAL BY JURY AND DUE PROCESS OF LAW. U.S. Const. Amend. V, VI, XIV, N.J. Const. (1947) Art. 1, Par. 1. (Partially Raised Below).
II. THE TESTIMONY OF BOTH DETECTIVE CASTANER AND OFFICER PINEIRO, THAT DEFENDANT DID NOT PRESENT THEM WITH A PERMIT TO CARRY THE HANDGUN EITHER AT THE TIME OF HIS ARREST OR AT ANY LATER TIME, IMPROPERLY SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT, AND ALSO VIOLATED HIS RIGHT TO REMAIN SILENT, DENYING HIM A FAIR TRIAL. U.S. CONST.
AMENDS. V, VI [sic], XIV; N.J. CONST. (1947) ART. 1, PARAS. 1, 9, 10.
III. THE ADMISSION OF TESTIMONY THAT DEFENDANT WAS ARRESTED BY MEMBERS OF THE "HIGH INTENSITY DRUG TRAFFICKING AREA" TASK FORCE, IN COMBINATION WITH THE STIPULATION THAT DEFENDANT CAME INTO CONTACT WITH THESE OFFICERS FOR REASONS NOT DIRECTLY RELATED TO THIS CASE, SUGGESTED THAT DEFENDANT WAS A BAD PERSON ASSOCIATED WITH CRIMINALITY, DENYING HIM A FAIR TRIAL. (Not Raised Below).
IV. THERE WAS NO STATUTORY BASIS UPON WHICH TO IMPOSE A FIVE YEAR MANDATORY MINIMUM PERIOD OF PAROLE INELIGIBILITY ON THE CONVICTION FOR POSSESSION OF A HANDGUN WITHOUT A PERMIT.
For the reasons stated below, we conclude that no claim of error warrants reversal of defendant's conviction for possession of a handgun without a permit. As discussed in Part IV of this opinion, however, the discrepancy between the sentence for that crime pronounced at sentencing and the sentence reflected on the judgment of conviction requires a remand for resentencing.
I
Before the first witness testified, the court read the jury a stipulation: "The parties agree and stipulate that the defendant . . . came into contact with the police for reasons not directly related to this case and the police conducted a lawful search of the defendant." The court explained its significance:
The jury was not told that the officers knew there was a warrant for defendant's arrest and upon observing him on a sidewalk near his home, arrested him, discovering the gun during a search incident to that arrest. That discovery provided the probable cause supporting the charges that led to these convictions.
Now . . . those are facts that the parties have agreed to and you should treat those facts as undisputed.
As with all evidence, even undisputed facts can be accepted or rejected by the jury in reaching a verdict. . . . You just need to weigh . . . that stipulation along with all the evidence that you hear in the case.
The evidence presented at trial can be summarized as follows. On November 14, 2008, members of Camden County's High Intensity Drug Trafficking Area Task Force (HIDTA) encountered defendant on a sidewalk running along the street on the side of his home, which is on a corner lot. He was on that sidewalk at a point perpendicular to the rear of his lot, and an officer acknowledged that defendant would not have needed a permit to carry the handgun if he were in his backyard. They searched him and found a Taurus Revolver tucked in the waistband of his pants. The handgun held six rounds of ammunition, and subsequent testing demonstrated that it was operable.
The location of the handgun uncovered in the search was in dispute. A document prepared following defendant's arrest indicated that the handgun was found during "a search of the area" and did not specify that it was tucked in defendant's waistband. Focusing on the reference to the "area," defense counsel probed the inconsistency. The officer who authored the document explained that in it he gave a "brief synopsis" that was not accurate on that detail. All of the officers who saw the handgun at the time testified that it was in defendant's waistband, and defendant did not testify or present any other evidence.
Three officers identified themselves as members of the HIDTA. The first to testify explained that the HIDTA investigates narcotics and weapons offenses. As the prosecutor questioned the officer about his training and experience, defense counsel objected on the ground that the officer's experience and training was irrelevant because he was not testifying as an expert. That objection was sustained, and there was no further discussion of the HIDTA's responsibilities.
Over the objection of defense counsel premised on an impermissible shift of a burden to defendant that implicated his right to remain silent and have the State prove his guilt beyond a reasonable doubt, the prosecutor was permitted to ask the officers whether defendant ever presented a permit to carry a handgun. Two officers testified that defendant did not present a permit to carry.
The court gave the following reasons for overruling that objection:
It wasn't an inquiry as to what defendant was asked. It was just a statement. Did in fact this defendant present you any information. It doesn't go to the — to any burden. He didn't have an — he wasn't asked a question to which he gave information or declined to give information which is being used against him. It's just merely a question of fact. Was anything presented to you? And the officer can simply say, no. He didn't have an obligation to present anything to him and nobody is saying he did.
In any event, defense counsel subsequently agreed to stipulate that defendant did not have a permit to carry the handgun. The court informed the jurors of the stipulation and instructed them that they were to "scrutinize that piece of evidence along with every other piece of evidence and give it the weight" they deemed appropriate.
During a conference held on the record to discuss the jury instructions, defense counsel objected to inclusion of a charge on the statutory inference relevant to firearms permits. The statute, N.J.S.A. 2C:39-2b, provides:
When the legality of a person's conduct under this chapter [addressing firearms and other dangerous weapons and instruments ofCounsel's objection to the court instructing the jurors on the statutory inference was the same as his reason for his objection to the prosecutor questioning the officers on whether defendant produced a permit. He explained: "I know [the inference is] in the statute, I know it's in the model charge, but for the record, I think it's an impermissible burden shift . . . ."
crime] depends on his possession of a license or permit or on his having registered with or given notice to a particular person or agency, it shall be presumed that he does not possess such a license or permit or has not registered or given the required notice, until he establishes the contrary.
The trial court indicated its inclination to give the charge on the permissive inference despite the objection. Nevertheless, the court did not mention the permissive inference in its final charge to the jury, and the defense counsel, consistent with his prior objection, did not ask the court to include that portion of the model jury instruction.
The trial court gave the following instruction on the State's obligation to prove the elements of possession of a handgun without a permit:
In order to convict a Defendant, the State must prove each of the following elements beyond a reasonable doubt, and those elements are: 1) that the [weapon] in evidence is a handgun, 2) that the Defendant knowingly possessed the handgun, and 3) thatThe court went on to explain what the State had to prove to establish defendant knowingly possessed the firearm. And, the court directed the jurors that if they found "the State has failed to prove any of the elements of the crime beyond a reasonable doubt," that their "verdict must be not guilty."
the Defendant did not have a permit to possess such a weapon.
The judge then gave the jury direction on the parties' stipulations.
Now in this case the parties have entered into some stipulations, they have agreed to certain facts. The jury should treat these facts as undisputed, and that means the parties agree that these facts are true. . . . The next fact is that the Defendant had no permit to carry a handgun. Now as with all evidence, undisputed facts can be accepted or rejected by the jury in reaching a verdict.
II
We consider together defendant's claims that the court directed a verdict and, by permitting the prosecutor to ask the officers whether defendant produced a permit, impermissibly shifted the burden of persuasion to him.
To the extent defendant argues that the Sixth Amendment addresses the allocation and standard of proof in a criminal case, he is mistaken. The right is a component of due process embodied in the Fifth Amendment and applicable to the states through the Fourteenth Amendment. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375 (1970).
Defendant's claim that the court directed the verdict is based on the absence of a charge on the permissive inference that defendant does not have a permit, which is available in the absence of any evidence that defendant had a permit. As noted above, defendant urged the trial court to omit that portion of the model jury instruction. Moreover, defense counsel, who raised another objection to the charge to which the trial court responded favorably, did not indicate that the defense had changed its position on the permissive inference or otherwise ask the court to supplement the charge after the court completed its final instructions to the jury.
We review "a late claim of error in a jury instruction" for plain error — legal error in the charge prejudicing defendant's substantial rights and clearly capable of leading to an unjust result. State v. Singleton, 211 N.J. 157, 182-83 (2012).
The omission of an instruction on the permissive inference was not the equivalent of directing a verdict. The charge the jurors were given plainly stated that the State had the burden of proving, beyond a reasonable doubt, that defendant did not have a permit. And, the jury was told that it was free to accept or reject the stipulation that defendant did not have a permit to carry. In light of that stipulation and the instruction on the State's obligation to prove the defendant did not have a permit, the model instruction on the permissive inference would have done nothing more than highlight reasons why the jurors should accept the stipulation.
The omitted instruction states:
The third element that the State must prove beyond a reasonable doubt is that the defendant did not have a permit to possess such a handgun. If you find that the defendant knowingly possessed the handgun, and that there is no evidence that defendant had a valid permit to carry such a handgun, then you may infer, if you think it appropriate to do so based upon the facts presented, that defendant had no such permit. Note, however, that as with all other elements, the State bears the burden of showing, beyond a reasonable doubt, the lack of a valid permit and that you may draw the inference only if you feel it appropriate to do so under all the facts and circumstances.
[Model Jury Charge (Criminal), "Unlawful Possession of a Handgun" (2001) (emphasis added) (footnote omitted).]
Accordingly, we conclude that the court did not err in omitting the charge on the permissive inference.
Defendant's objection to the prosecutor questioning the officers about whether he produced a permit did not have the effect of shifting the burden of persuasion on this element of the crime to defendant or impinge upon defendant's right to remain silent. The Supreme Court has held that "a jury may be permitted to infer, until the defendant comes forward with some evidence to the contrary, that the defendant does not possess the required license or permit to carry a dangerous weapon." State v. Ingram, 98 N.J. 489, 498 (1985). In effect, Ingram's approval of the inference entails a shift of the burden of production, not the burden of persuasion, to defendant on the ground that the inference it permits is rational and not burdensome.
Testimony of the sort elicited here, prior to defendant's agreement to stipulate that he did not have a permit, provides a foundation for the inference by indicating the absence of evidence that is essential to the inference. The questions posed here are consistent with well-settled law that permits, but does not require a jury to conclude, that a defendant found in possession of a handgun in a public place would produce a permit authorizing that conduct if he had one. See McCandless v. Beyer, 835 F.2d 58, 61-62 (3d Cir. 1987) (noting that the rationality of the inference that a defendant did not have a permit was clear in a case where the officer testified that the defendants had not produced a permit at the time of their arrest and that none was found in the search of their car); McCandless, supra, 835 F.2d at 60 n.2, 61 (discussing the permissible shift of a burden of production, but not persuasion, that is inherent when the absence of evidence on a point gives rise to a rational permissive inference).
For the foregoing reasons, we reject defendant's claimed constitutional violations. The arguments he presents to establish some impact on his right to remain silent and have his guilt proven by the State beyond a reasonable doubt are without sufficient merit to warrant any additional discussion in a written opinion. R. 2:11-3(e)(2).
III
Defendant also claims that the admission of the stipulation about his encounter with officers and their lawful search, coupled with the testimony about the role of the officers assigned to the HIDTA, amounted to evidence that would permit the jury to find him guilty because he is a bad person, contrary to N.J.R.E. 404(b). Because defendant did not raise any objection based on Rule 404(b) in the trial court, he must establish plain error — error clearly capable of producing an unjust result. R. 2:10-2.
As evidence of defendant's bad conduct on another occasion "has a 'unique tendency' to prejudice a jury against the defendant, it must be admitted cautiously." State v. Gillispie, 208 N.J. 59, 85 (2011) (quoting State v. Reddish, 181 N.J. 553, 608 (2004)). Rule 404(b) is designed to avoid that consequence. It prohibits use of evidence of defendant's bad conduct to "prove the disposition of a person in order to show that such person acted in conformity" with that disposition, but it permits use of such evidence for other limited purposes "relevant to a material issue in dispute." N.J.R.E. 404(b). The permissible uses include providing "necessary background" for other evidence and giving information "to avoid confusing the jury." State v. Rose, 206 N.J. 141, 181 (2011).
A preliminary question is whether the stipulation and testimony about the HIDTA, viewed alone or in combination, were subject to exclusion pursuant to N.J.R.E. 404(b). By its terms, the rule applies to "evidence of other crimes, wrongs or acts." Ibid. Nevertheless, evidence and arguments to the jury suggestive of a defendant's prior criminal activity — such as gang membership, mugshots, references to defendant being in jail or prison, and aliases suggesting membership in a criminal class — have been recognized to implicate Rule 404(b). See State v. Harris, 156 N.J. 122, 172-73 (1998); State v. Goodman, 415 N.J. Super. 210, 227-28 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011); State v. Salaam, 225 N.J. Super. 66, 72-76 (App. Div. 1998); State v. Childs, 204 N.J. Super. 639, 651-52 (App. Div. 1985). In light of those precedents, we agree with defendant that Rule 404(b) was implicated. Taken together, the evidence could be reasonably understood to indicate that defendant had prior contact with these officers assigned to investigate weapons offenses, crimes like the one for which defendant was on trial.
Under the Supreme Court's decision in Rose, the stipulation was admissible background information explaining how defendant was found in possession of the gun. 206 N.J. at 211. Thus, we see no error in the admission of the stipulation to which defendant agreed. In contrast, the information about the officers' assignment to this specialty task force cannot, in our view, be deemed permissible background information about this crime. Indeed, it appears to have no relevance at all, except for that prohibited by N.J.R.E. 404(b) — to suggest that defendant's prior contact warranting the search was related to the type of conduct for which he was on trial.
Where evidence suggesting a defendant's propensity for crime is admitted for a limited purpose, a limiting instruction is required. The instruction must "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. Barden, 195 N.J. 375, 394 (2008) (internal quotation marks omitted).
Where evidence suggesting a defendant's prior bad acts is not admissible for a limited purpose, it must be excluded. N.J.R.E. 404(b). But, an error of that sort may be deemed harmless if the reference is fleeting and an adequate curative instruction is given. Harris, supra, 156 N.J. at 172-73.
The limiting instruction given in this case was as follows:
[W]hen I instructed you earlier in the matter about the fact that the Defendant came into contact with the police for reasons not directly related to this case and that the police conducted a lawful search of the Defendant, I asked you at that point[] and I remind you again, you're not to speculate as to why the police were in contact with the Defendant at this time. It's completely unrelated to the case, has nothing to do with this case. I don't want you to speculate at all. It's not for your deliberations. It's just to know that they came into contact and the police conducted a lawful search. That's all that is stipulated to in the matter and you're not to consider or bring it to your deliberations any reason why anything took place, just to know that it did take place, okay?This direction to disregard the evidence in deliberations fairly encompassed the stipulation itself and the role of the officers. It is worth noting that the defense counsel, who requested an instruction foreclosing speculation about this stipulation, did not ask the court to provide any additional direction. See State v. Winder, 200 N.J. 231, 255-57 (2009) (finding the court's limiting instruction adequate when it addressed the impermissible testimony and the defendant did not object to the instruction).
The trial court did not in fact instruct the jury not to speculate as to the reasons behind the search when the stipulation was first introduced.
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It is apparent that this instruction does not expressly direct the jurors that they cannot consider the stipulation to conclude that defendant is predisposed to commit crimes. Nevertheless, it is a blanket prohibition against speculation as to why these officers, assigned to investigate weapons and drug offenses, were in contact with defendant and against the use of the stipulated facts during deliberations for any reason other than the fact that the event took place.
Under the circumstances of this case, we conclude that the limiting instruction was sufficient to preclude a finding of error clearly capable of producing an unjust result. The reference to the role of HIDTA was fleeting and the stipulation was admissible. The jury was directed that it could play no role in their deliberations beyond establishing the background facts it provided. Given this instruction and the largely undisputed evidence about where the gun was found and the stipulation that defendant did not have a permit to carry it, we cannot conclude that the veiled and subtle inferences of defendant's propensity had any role in the outcome.
Accordingly, we conclude that the admission of the Rule 404(b) evidence does not warrant reversal of defendant's conviction for possession of a handgun without a permit.
IV
As noted at the outset of this opinion, there is a discrepancy between defendant's sentence for possession of a handgun without a permit pronounced by the court at the time of sentencing and the sentence for that crime reflected on the judgment of conviction. It must be addressed on remand.
Defendant possessed this handgun without a permit in November 2008, which on that date, as it is now, was a crime of the second degree. N.J.S.A. 2C:39-5b. L. 2007, c. 284, § 1 (effective January 13, 2008). The sentence for a crime of the second degree is a term of five to ten years. N.J.S.A. 2C:43-6a(2). By force of an amendment to the Graves Act, N.J.S.A. 2C:43-6c, also in effect at the time of this crime, possession of a handgun without a permit is subject to a mandatory-minimum term "fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater." L. 2007, c. 341, § 5 (effective January 13, 2008).
At sentencing, for defendant's conviction of N.J.S.A. 2C:39-5b, the court imposed a nine-year term of imprisonment, subject to a five-year minimum term, which is inconsistent with N.J.S.A. 2C:43-6c. The judgment of conviction, however, reflects a lengthier term, nine years and five months, and a shorter minimum term, four years and six months, which would have been a permissible minimum term for a nine-year sentence subject to N.J.S.A. 2C:43-6c.
While it appears that the trial court intended to correct the judgment to eliminate the illegal minimum term pronounced at sentencing, that does not explain the increase in the nine-year sentence. The discrepancy requires a remand for re-sentencing, which should be done in open court and in the presence of defendant.
We recognize that the error with respect to the minimum term has limited significance. That is so because this sentence is concurrent with his sentence for the certain persons offense, which does carry a five-year mandatory-minimum term regardless of the sentence imposed. N.J.S.A. 2C:39-7b(1).
In contrast, the additional five months added to defendant's sentence for possession of a handgun without a permit is of consequence. It increases the maximum aggregate term for his concurrent sentences. We suspect the alteration may be a product of clerical error — a fact suggested by the fact that the judgment notes an aggregate term of nine years, not nine years and five months. But that is not clear.
In any event, there are limitations on increasing a sentence between pronouncement and entry of the judgment of conviction that the trial court should consider. See generally State v. Gilberti, 373 N.J. Super. 1, 7-8 (App. Div. 2004) (discussing grounds for alteration of a sentence after pronouncement of sentence); State v. Womack, 206 N.J. Super. 564, 569-72 (App. Div. 1985) (same), certif. denied, 103 N.J. 482 (1986).
Defendant's convictions are affirmed, and the case is remanded for re-sentencing in conformity with this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION