On appeal from Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication July 25, 1997. As Corrected August 5, 1997.
Before Judges Long, Skillman and Cuff. The opinion of the court was delivered by Long, P.j.a.d.
The opinion of the court was delivered by: Long
The opinion of the court was delivered by
Defendant, Roy Carswell, was charged under Essex County Indictment No. 2431-5-90 with the following offenses: (1) fourth degree aggravated assault, contrary to the provisions of N.J.S.A. 2C:12-1(b)(4) (Count One); (2) third degree unlawful possession of a firearm, contrary to the provisions of N.J.S.A. 2C:39-5(b) (Count Two); (3) second degree possession of a weapon for an unlawful purpose, contrary to the provisions of N.J.S.A. 2C:39-4(a) (Count Three).
Tried by a jury, he was convicted on all three counts. After merging the conviction on Count One into the conviction on Count Three, *fn1 the trial Judge sentenced defendant to a seven year custodial term with three years of parole ineligibility on Count Three and to a concurrent four year custodial term on Count Two. Appropriate Violent Crimes Compensation Board penalties were also imposed.
Defendant appeals, contending that the following errors warrant reversal:
THE ADMISSION OF EVIDENCE THAT DEFENDANT WAS KNOWN TO CARRY A GUN AND HAD CARRIED A GUN PRIOR TO THE INCIDENT FOR WHICH HE WAS BEING TRIED WAS A CLEAR VIOLATION OF EVID. R. 55 BECAUSE THE JURY WAS THEREBY LED TO BELIEVE THAT DEFENDANT WAS A PERSON WHO WAS PREDISPOSED TO COMMIT CRIME. (Partially Raised Below).
THE TRIAL COURT DIRECTED A VERDICT OF GUILTY WHEN IT INSTRUCTED THE JURY THAT IF DEFENDANT IS FOUND GUILTY, THE OFFENSES WILL ULTIMATELY BE MERGED. (Raised As Plain Error).
A. The Trial Court's Instruction On Merger Improperly Suggested To The Jury That Defendant Would Not Be Punished For All Three Offenses Even If He Were Found Guilty Of Them; Thereby Allowing The Jury To Improperly Speculate About Punishment.
B. The Trial Court's Instruction Improperly Directed A Verdict Against Defendant On Count Three Because It Suggested That The Jury Need Not Reconsider Elements It Already Found Existed With Regard To Counts One and Two.
C. The Trial Court Should Have Accepted The Jury's Partial Verdict On Counts One and Two, Instead Of Coercing Them to Reach A Unanimous Verdict On All Three Counts.
D. The Trial Court Should Have Declared A Mistrial With Regard To Count Three After The Jury Indicated It Could Not Reach A Verdict On That Count.
DEFENDANT'S SENTENCE IS EXCESSIVE AND SHOULD BE REDUCED ON APPEAL.
We have carefully reviewed this record in light of these contentions and have concluded that a reversal is in order.
The facts adduced at trial are as follows: In 1992, defendant lived with his girlfriend, Delisa Bullock, her son, Amire, and her sister, LaToya Bullock, in Delisa's Newark apartment. Delisa was Latoya's legal guardian. On May 22, 1992, an argument between defendant and Delisa took place in the apartment, which was witnessed by LaToya. According to LaToya, during the argument Delisa asked defendant to leave but defendant refused to do so. An argument between defendant and LaToya ensued after which she also asked defendant to leave. The argument then moved into the hallway of the apartment building, at which time defendant allegedly pulled a gun from the waistband of his pants, implied that he was going to hit LaToya with it, and also pointed it at her. Delisa and LaToya left the building at this time and, pursuant to Delisa's instruction, LaToya called the police from a pay phone in front of the building and waited there until their arrival.
When the police arrived, LaToya told them she was threatened by a man with an uzi. The two women accompanied the police to their apartment where they found defendant sitting on a table in front of a bed. The police began to search the apartment, and thereafter, Latoya testified that the police recovered the gun from the roof of the building after defendant told them where it was located. LaToya subsequently identified the .44 caliber gun as the one which had been pointed at her by defendant and defendant was later arrested.
Delisa did not paint the same picture as LaToya. Particularly, Delisa testified that she and defendant were arguing about her son (who defendant treated as a step child), when LaToya entered the apartment. LaToya "jumped in between the argument" by arguing with defendant and subsequently, was asked by both defendant and her sister to stay out of it. Allegedly LaToya then became upset and left the room, indicating that she was going to get a "hammer or something." Thereafter, Delisa states that she and defendant attempted to settle the argument. Approximately twenty minutes later, LaToya returned with the police and defendant was arrested. Delisa indicated that she did not instruct LaToya to call the police, as LaToya testified. Delisa also stated that, prior to seeing the gun shown by the police after it was found on the roof, she had never seen the gun before, nor were any guns kept in the apartment. The State presented LaToya's brother, Stewart Bullock, as a rebuttal witness who testified that he had seen defendant with the gun on prior occasions. The jury apparently accepted LaToya's version of the events and convicted defendant on all counts. This appeal followed.
Defendant contends that the State's witnesses, LaToya and Stewart Bullock, should not have been permitted to testify that defendant was known to carry a gun and had been seen carrying the gun in question on other occasions. More particularly, defendant asserts that such testimony allowed the jury to infer that defendant had not only committed the assault and weapons possession offenses for which he was being tried, but also that he was a generally violent and assaultive person. Thus, defendant contends, this testimony was a violation of former Evid. R. 55 *fn2 which addressed the admission of evidence of other crimes or civil wrongs.
During LaToya's direct examination by the State, the following exchange took place:
Q. I show you what is marked S-1 (the gun) for identification, could you just take a look at that and tell me if you recognize that?
Q. And where do you recognize that from?
Q. And when was the first time you saw that?
At this point, defense counsel objected, arguing at sidebar that other crimes evidence was not relevant to this matter and that there had not been a hearing regarding such evidence. The trial Judge overruled the objection, ...