Opinion
DOCKET NO. A-4451-13T1
05-09-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES J. FENTRESS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-09-1752. Joseph E. Krakora, Public Defender, attorney for appellant (James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant was tried and convicted by a jury of six counts of being a person not permitted to possess weapons as a result of prior convictions, N.J.S.A. 2C:39-7(b)(1), and later sentenced to concurrent eight-year prison terms on these second-degree offenses, subject to a five-year period of parole ineligibility.
Defendant had a 1972 conviction for conspiracy to commit murder and a 1975 robbery conviction.
The evidence adduced at trial revealed that, as part of an investigation, police obtained search warrants for defendant's Asbury Park residence, a nearby Neptune self-storage unit, which defendant had rented, and defendant's pick-up truck. A search of the storage unit uncovered a barrel containing: a .22 Western Field rifle, a Glenfield .22 bolt action rifle, a Mosin Nagant .762 Russian military rifle, a Hubert five-shot revolver, and a Harrington and Richardson sawed-off 16 gauge shotgun. Other boxes in the storage unit contained various types of ammunition, including 30-round banana clips loaded with .223 ammunition, a magazine with .22 caliber ammunition, a box of .762 ammunition, and other "high caliber military type ammunition." Another team of officers searched defendant's residence and found boxes of various ammunition in different locations and, under the seat cushions of a couch, a Model AR-7 Explorer .22 semiautomatic rifle, sometimes referred to as a "survival rifle" because the entire rifle can be folded into the stock.
The seventy-five-year-old defendant testified on his own behalf about medical limitations; he claimed a 2005 accident left him unable to walk for eighteen months and that he suffered a stroke and several heart attacks thereafter. In addition, defendant testified others had access to the storage unit. And he denied knowledge of the weapons in the storage unit, as well as the survival rifle in the couch in his residence; he also disclaimed knowledge of most of the ammunition found in his residence. The jury found him guilty as charged.
The State voluntarily dismissed other charges prior to trial. --------
In this appeal, defendant argues:
I. THE JUDGE ERRED IN REPEATEDLY INSTRUCTING THE JURY, OVER COUNSEL'S OBJECTION, THAT THE SEARCH WARRANTS HAD BEEN ISSUED BY A JUDGE UPON A FINDING OF PROBABLE CAUSE.We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
II. THE JUDGE ERRED IN REFUSING TO TELL THE JURY THAT POSSESSION OF AMMUNITION, EVEN BY A PERSON PREVIOUSLY CONVICTED OF A CRIME, IS NOT A CRIME (Partially Raised Below).
The parties recognized prior to trial that the jury would necessarily hear that the physical evidence was uncovered via search warrants issued for defendant's rented storage unit and residence. Consequently, in preliminary instructions, the judge advised the jury that:
You may hear from the State's witnesses in this case that a search warrant was issued for the [d]efendant's] house . . . and a storage unit. Search warrants were issued by another judge as a result of an application by . . . the Monmouth County's Prosecutor's Office.
The standard of proof for issuance of a search warrant is called probable cause. That's a lower standard of proof than you are bound to follow in this trial, which is . . . beyond a reasonable doubt. You . . . should not speculate as to the reasons why search warrants were requested.
This instruction was repeated, nearly verbatim, at the end of the first day of testimony, and again the next morning as the jury heard additional testimony about the searches. The following day, when the judge repeated this admonishment for the fourth time during his charge, defense counsel objected and argued the judge should not have referred to "probable cause," which had not been defined elsewhere in the charge, and the judge should have only told the jury that search warrants are issued on "a much lower standard of proof than" beyond a reasonable doubt. The judge noted counsel's objection but chose not to amend his instructions.
As the Supreme Court recently clarified, testimony regarding the issuance of a search warrant is admissible, but courts should remain vigilant because the presentation of such evidence may tend to "lead the jury to draw the forbidden inference that the issuance of a warrant by a judge supports the rendering of a guilty verdict." State v. Cain, ___ N.J. ___, ___ (Mar. 15, 2016). Accordingly, even though it might have been better had the judge advised the jury that the mere issuance of a search warrant is not evidence of guilt — an argument defendant did not make at trial and has not made here — we are satisfied the judge's repeated admonishments and his final charge — all of which emphasized the lesser burden required for issuance of a search warrant — implicitly dissuaded the jury from inferring guilt because search warrants were issued.
In his second and last point, defendant contends that, in light of testimony that ammunition was found both in the storage unit and the residence, the judge should have sua sponte instructed the jury that it is not a crime to possess ammunition. The closest defense counsel ever came to seeking such an instruction occurred during the following cross-examination of a law enforcement officer:
Q. It is not illegal to possess bullets, is that correct?
[THE PROSECUTOR]: Objection, Your Honor.
THE COURT: Sustained. It's a legal conclusion. He's a fact witness.
[DEFENSE COUNSEL]: Well, your Honor, maybe we can take judicial notice of the fact that it's not illegal.The issue did not again surface.
THE COURT: Sustained.
[DEFENSE COUNSEL]: No further questions. Thank you.
Evidence that ammunition was found in defendant's residence and storage unit was relevant because it bolstered what the State was attempting to prove beyond a reasonable doubt — that defendant possessed the weapons found in his residence and the storage unit. There was, however, no suggestion during the trial that possession of the ammunition was wrongful in and of itself and, therefore, no likelihood the jury might have convicted defendant on the charged offenses merely because it may have concluded defendant was in possession of ammunition. Consequently, we find that the absence of a jury instruction that it is not unlawful to possess ammunition was not capable of producing an unjust result. See R. 2:10-2; State v. Singleton, 211 N.J. 157, 182-83 (2012).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION