On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Brody, Stern and Keefe. The opinion of the court was delivered by Brody, P.J.A.D.
[270 NJSuper Page 671] Following a jury trial (first trial), defendant was convicted of fourth-degree possession of a weapon, a machete, under circumstances not manifestly appropriate for such lawful uses as it may have, a violation of N.J.S.A. 2C:39-5d. After the verdict was returned, defendant was immediately tried before the same jury (second trial) for fourth-degree possession of the machete, made a separate crime by N.J.S.A. 2C:39-7 because previously he had been convicted of an aggravated assault. The jury was unable to agree on a verdict as to that charge.*fn1 Defendant was sentenced to
a probationary term of five years, conditioned on serving 364 days in jail. He was also found guilty of violating the terms of a prior probationary sentence imposed for a drug offense, for which the Judge imposed a concurrent five-year probationary term, conditioned on serving 364 days in jail. The violation of probation was the weapon offense conviction. We now reverse the conviction and the violation of probation because at the first trial the assistant prosecutor improperly commented on defendant's failure to testify.
The arresting officer was the only witness at the first trial. He testified that he was patrolling Trenton streets after dark in a police wagon about 5:30 p.m. when he saw defendant standing on the sidewalk talking to someone. Defendant was holding a machete in his right hand. The officer demonstrated how he was holding the machete, but no one described the demonstration for the record while the witness was testifying. It does not appear in the record that defendant was holding the machete in a threatening manner. The officer and his partner stopped their vehicle, left it with guns drawn, and ordered defendant to "freeze." Defendant thereupon fled down an alley, tossing away the machete as he ran. The officer chased defendant on foot, caught him and made the arrest.*fn2
The nature of the crime contributed to a misunderstanding that led the assistant prosecutor to make the improper comments in his summation. After rendering it unlawful in particular circumstances to possess machine guns, handguns, rifles and shotguns, N.J.S.A. 2C:39-5 provides:
d. Other weapons. Any person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree.
The provision deals with weapons, such as knives and machetes, that have both lawful and unlawful uses. The focus is not on the defendant's intent; his purpose is not an element of the crime.*fn3 State v. Lee, 96 N.J. 156, 163, 475 A.2d 31 (1984) ("[T]he Legislature did not require proof of an intent to use a weapon for an unlawful purpose as an element of a violation of 2C:39-5d.") Rather, the focus is on the circumstances under which the defendant possessed the weapon; to be guilty of the crime the State must prove that one cannot easily understand or recognize that those circumstances were appropriate for such lawful uses as the weapon may have. State v. Wright, 96 N.J. 170, 172, 475 A.2d 38 (1984), appeal dismissed Wright v. New Jersey, 469 U.S. 1146, 105 S. Ct. 890, 83 L. Ed. 2d 906 (1985).
In her summation, defendant's attorney correctly kept her focus on the circumstances of defendant's possession of the machete, not on defendant's actual intent. The assistant prosecutor, however, misconstrued the argument as focusing on defendant's purpose in possessing the machete.
Defendant's attorney suggested to the jury the lawful uses a machete may have that were appropriate to the circumstances:
In any event, what circumstances do we have? The police officer simply turned the corner and saw [defendant] with a machete. Saw him, quote, "engaged in conversation." That's how he wrote in his report. He didn't say there was a fight going on . . . . No voices being raised, no visual hand movements, and nobody looking angry, nobody shouting . . . . The testimony was simply two men are facing each other, and one has the weapon in this fashion, not pointed at him in that fashion.
What does that all mean in that? We know the most singular and most important question that I asked, it's kind of mixed in ...