January 8, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MAURICE A. PRATT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, 99-12-0691.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 12, 2006
Before Judges Lisa and Holston, Jr.
Defendant was charged in an eight-count indictment as follows*fn1 : (1) first-degree armed robbery, N.J.S.A. 2C:15-1a(2); (2) second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; (3) third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; (4) fourth-degree possession of a prohibited weapon (defaced handgun), N.J.S.A. 2C:39-3d; (5) third-degree receiving stolen property (a 1991 Mazda), N.J.S.A. 2C:20-7a; (6) third-degree theft by unlawful taking (a Chevy Camaro), N.J.S.A. 2C:20-3a; (7) fourth-degree obstructing administration of law, N.J.S.A. 2C:29-1a; and (8) second-degree certain person not to have weapons, N.J.S.A. 2C:39-7b. Defendant was tried, along with his two co-defendants, Orlando Irizarry and Thomas Dawkins.*fn2
At the end of the State's case, the judge granted motions to enter judgments of acquittal on counts five and seven. On the remaining counts, the jury acquitted all defendants of the two remaining substantive charges, robbery (count one) and theft of the Chevy Camaro (count six). Defendant was found guilty of the possessory offenses (counts two, three, four and eight). He was sentenced on count two to an extended term as a persistent offender, see N.J.S.A. 2C:44-3a, of twenty years imprisonment with a ten-year parole disqualifier. He received concurrent sentences on the remaining counts as follows: on count three, four years with a two-year parole disqualifier; on count four, nine months; and on count eight, nine years with a four-and-one-half-year parole disqualifier.
On appeal, defendant argues:
THE TRIAL COURT'S INSTRUCTION ON POSSESSION, PERMITTING THE JURORS TO INFER THAT THE PASSENGERS OF THE TAXI JOINTLY POSSESSED THE GUN FOUND THEREIN, OMITTED ESSENTIAL PORTIONS OF THE MODEL CHARGE ON N.J.S.A. 2C:39-2, AND UNCONSTITUTIONALLY RELIEVED THE STATE OF ITS BURDEN OF PROVING GUILT OF THE FOUR WEAPONS OFFENSES BEYOND A REASONABLE DOUBT. CONSEQUENTLY, PRATT'S CONVICTIONS ON THE WEAPONS POSSESSION COUNTS MUST BE REVERSED. (Not Raised Below).
THE JURY CHARGE ON POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE CONSTRAINED THE JURORS TO CONSIDER ONLY THE UNLAWFUL PURPOSE OF POINTING THE FIREARM AT CALHOUN TO INTIMIDATE HIM, AN ELEMENT OF ROBBERY. SINCE MR. PRATT'S ACQUITTAL OF THE SUBSTANTIVE ROBBERY CHARGE ELIMINATED THE SOLE UNLAWFUL PURPOSE SET OUT IN THE JURY INSTRUCTION ON POSSESSION FOR AN UNLAWFUL PURPOSE, HIS CONVICTION ON THAT POSSESSION CHARGE MUST BE REVERSED.
We agree with Point II and reverse defendant's conviction for possession of a weapon for an unlawful purpose. We reject Point I and affirm defendant's convictions on counts three, four and eight, but remand for reconsideration of sentence on those counts.
On the evening of September 4, 1999, Timothy Calhoun called the Burlington City police and reported that he had been robbed at gunpoint by three men. Calhoun gave this version of the incident. He was walking alone in an area near his residence, when three men pulled up in a Mazda automobile and inquired of him regarding the availability of drugs in the area. One of the passengers, later identified as defendant, got out of the automobile and urinated in an alley. When defendant returned, he pointed a handgun at Calhoun and demanded that Calhoun give up his valuables. The other passenger got out of the vehicle, and the two assailants took from Calhoun his gold chain and medallion, cell phone and some cash. The three men attempted to leave the scene in the Mazda. However, when the car would not start, they left on foot.
When reporting the incident, Calhoun informed the police of the direction in which the three men had left and gave descriptions of the assailants. After a series of police broadcasts, about an hour later, three men matching the descriptions given by Calhoun were seen on foot along Route 130, about one-and-one-half miles from where the robbery allegedly occurred. There was also a report of an accident involving a Camaro automobile in that area. The unoccupied Camaro, which had been reported stolen, was found in that area, partly off the roadway with its headlights on.
By the time the police arrived, two of the men, defendant and Irizarry, had gotten into a taxicab. Dawkins was walking along Route 130 and was apprehended on foot. The taxicab was in a stationary position in a parking lot. Irizarry was seated behind the driver, and defendant was seated in the right rear passenger seat. The two men were attempting to negotiate a fare with the driver to take them to Trenton. The police first directed the driver to get out of the car, and then ordered defendant and Irizarry out at gunpoint and handcuffed them.
The police searched defendant and Irizarry. They found no gun, but their search of defendant yielded $56 in currency. The police recovered a loaded .380 handgun from the floor on the right side of the taxicab's rear passenger compartment. The gun was partially concealed under the front seat. The gun's serial number had been scratched off.
The taxicab driver testified that he drove the same cab every day. It was not his practice to check the cab after each shift for articles that passengers might have left behind. He typically picked up at least fifteen fares per shift, and that evening he had already picked up four or five fares before defendant and Irizarry entered his cab. No fingerprint evidence linked any of the three men to the handgun, the Mazda or the Camaro.
At the police station, a gold chain with a medallion was recovered when it was allegedly discarded by defendant, although it had not been found on his person when he was searched. The police gave the chain and medallion to Calhoun. However, in his trial testimony, Calhoun said the medallion given to him by the police differed from the one he had reported stolen. He had told the police the medallion contained a gold scorpion, yet he described the medallion returned to him as bearing the likenesses of Jesus and Mary. Calhoun's testimony included this exchange:
Q: You told the police you had a scorpion.
Q: Okay. A gold scorpion.
Q: Did they return that to you?
Q: Which is it you had out there that night? Was it a Jesus and Mary medallion?
A: I said the Jesus and Mary, that was returned back to me. That was returned back to me. That's what I said, returned. I didn't say it was mine. I said it was returned back to me.
Q: Oh, okay. My mistake. So Detective Dickerson returned a piece of gold jewelry to you that wasn't yours.
Four days after the incident three photo arrays were prepared, each containing a photograph of one of the defendants. Calhoun identified defendant, Irizarry and Dawkins from the photo arrays, and he identified defendant as the one wielding the gun. At trial, however, Calhoun said he knew most of the other individuals depicted in two of the photo arrays. He then denied that. When asked why he didn't tell the police that earlier, he responded that they never asked. Of course, this testimony seriously undermined the reliability of Calhoun's identification.
No cell phone was ever recovered. As we have stated, the evidence regarding the gold chain and medallion was seriously compromised by Calhoun's testimony. There was also uncertainty about the amount of cash stolen from him, and there was no meaningful correlation with the amount of cash possessed by defendants.
Calhoun's credibility was further called into question by evidence of his criminal record and pending criminal charges. Although he equivocated on the subject, he gave some indication that he was promised favorable treatment with respect to pending charges in exchange for his testimony. He made it clear in the presence of the jury that he did not want to be in court, never thought he would have to testify, thought his rights were being violated by compelling him to testify, and that he had lied on various occasions in his trial testimony and on previous occasions in connection with this case.
None of the defendants testified or presented any witnesses. In their summations, defense counsel argued that Calhoun's description of the incident was a complete fabrication and that no robbery ever happened. Defendant's counsel argued, "It's a story. It's a tale." The prosecutor began his summation by acknowledging that "it would be absurd for me to say to you that Mr. Calhoun came in here and told you the whole truth and nothing but the truth[,]" but that "it's just as absurd to say that nothing happened out there." That is how the issue was framed.
We first address defendant's second argument, that his acquittal of the robbery count requires acquittal of the count charging him with possession of a weapon for an unlawful purpose. In instructing a jury on N.J.S.A. 2C:39-4a, the judge must identify the specific unlawful purpose the jury is permitted to consider and must be told they cannot convict based upon their own notion of the unlawfulness of some other undescribed purpose. State v. Petties, 139 N.J. 310, 319-20 (1995). Observing this requirement and following the model jury charge, the judge instructed the jury:
In this case, the State contends that it was the defendants' unlawful purpose in possessing the firearm was to use it unlawfully against a person or property of another, to wit, Timothy Calhoun.
You must not rely upon your notions of the unlawfulness of some other undescribed purpose of the defendants. Rather, you must consider whether the state has proven the specific unlawful purpose charged. That purpose is the displaying of the firearm to intimidate Mr. Calhoun. [Emphasis added.]
The asserted unlawful purpose was narrowly limited in time and scope. A violation of N.J.S.A. 2C:39-4a may be supported by a criminal purpose or state of mind that exists at whatever time the State claims the possessory offense took place. Id. at 321. Further, the scope of the unlawful purpose can, if the evidence permits, be broader than the conduct required for commission of the corresponding substantive offense charged in the indictment. Id. at 316-21. In this case, however, the time and scope of the unlawful purpose the jury was permitted to consider was limited to the moment defendant allegedly pointed the gun at Calhoun to allegedly "intimidate" him. The record in this case suggests no purpose for any such intimidation other than to commit a robbery. By its verdict, the jury found that the State failed to prove that a robbery occurred.
Acquittal of the corresponding substantive offense does not automatically erase the possession for an unlawful purpose charge. Id. at 317. In this case, however, because the only unlawful purpose alleged was intimidating Mr. Calhoun, and because the evidence would support, if believed by the jury, intimidation only for the purpose of robbery, acquittal of the robbery charge "erases the identification of the unlawful purpose." State v. Jenkins, 234 N.J. Super. 311, 315 (App. Div. 1989). To allow the verdict to stand on this record would allow a conviction based on "speculation as to what possible purposes qualify as unlawful." Ibid.
Although not essential to our determination, we make one further observation on this issue. During the charge conference, the prosecutor urged the judge to allow the jury to consider a much broader unlawful purpose. He argued:
And the evidence could possibly show in this case that when you have a loaded, defaced firearm possessed by people who are on the run from another crime, that do not have enough money to pay a cab driver, that they may possess it for another purpose, and that's perfectly legitimate and that's perfectly allowed under the law. To limit it to simply to Timothy Calhoun is creating another element.
In his summation, although the prosecutor did not convince the judge to charge a broader purpose as he requested, the prosecutor nevertheless made the argument of a broader unlawful purpose to the jury:
The possession of a weapon for unlawful purpose. Pretty self-explanatory. You know this is a defaced firearm. You know that. And it's not [sic] loaded, okay? Guns are supposed to have serial numbers on them, okay? That's where that serial number is supposed to be. As you'll see, it's scraped off, okay? Now, who among us hasn't had, you know, a defaced firearm, just casually walking around with it. . . .
When you talk about possession of a weapon for an unlawful purpose, you take a look at all the surrounding circumstances to show what the purpose was. Now, why is it significant that a firearm is defaced? Well, because if it's used to kill someone and it has a serial number on it and the gun is found, you can trace it to who is supposed to have it. Or if it was used to commit a robbery, you can use it, the serial number, to trace who may have committed the robbery, or whether the person is supposed to have the gun in the first place.
So, under the circumstances of this case, ladies and gentlemen, that weapon was possessed for an unlawful purpose, when you look at all the facts and evidence in this case. What lawful purpose could there possibly be?
Thus the jury may have been misled or confused into believing that the possession of a defaced firearm in the taxicab, more than an hour after the alleged robbery, could provide the basis for finding possession for an unlawful purpose.
We are satisfied that, in light of the evidence in this case and the instruction to the jury, defendant's conviction of possession of a weapon for an unlawful purpose cannot be sustained. We therefore reverse defendant's conviction on count two and direct the entry of a judgment of acquittal on that count.
We now address defendant's first point of argument, that the jury charge with regard to the inference of possession by occupants of a vehicle, pursuant to N.J.S.A. 2C:39-2a(3), was fatally defective because the judge did not carefully explain to the jury the permissive nature of the inference.
The statute provides in relevant part:
When a firearm . . . is found in a vehicle, it is presumed to be in the possession of the occupant if there is but one. If there is more than one occupant in the vehicle, it shall be presumed to be in the possession of all, except under the following circumstances:
(3) When the vehicle is a taxicab and a weapon . . . is found in the passenger's portion of the vehicle, it shall be presumed to be in the possession of all the passengers, if there are any, and if not, in the possession of the driver. [N.J.S.A. 2C:39-2a(3).]
To save the statute from unconstitutionality for shifting the burden of proof to a defendant on an element of the offense (possession), the statutory "presumption" can be deemed no more than an inference which the jury may be permitted to draw if it is more likely than not that the facts proven point to the fact inferred. State v. Humphreys, 54 N.J. 406, 412 (1969). And, "[a] statute which purports to permit an inference of one essential fact from proof of another can have no probative force independent of the factual context in which it is applied." Id. at 412-13. When a statute establishes a presumption with respect to any fact which is an element of an offense, it has the meaning accorded to it by the law of evidence. N.J.S.A. 2C:1-13e; State v. Bolton, 230 N.J. Super. 476, 479 (App. Div. 1989). See N.J.R.E. 303. Thus, in Humphreys, the Court instructed: "The jury must be carefully informed that an inference of one fact from another is never binding; the use of the term 'presumptive evidence' could have been misleading in the present case." Humphreys, supra, 54 N.J. at 415.
The model jury charge has been tailored to meet the requirements laid down by Humprheys. It provides in pertinent part:
I have previously instructed you concerning your consideration of circumstantial evidence presented in this case. That is, you may infer a fact from other facts in the case if you find it more probable than not that the inferred fact is true.
Evidence has been presented that a _______________ was found in a vehicle.
[Charge which ever inference(s) is/are appropriate.]
[Inference #5] If you find that the vehicle was a taxicab which had passengers and the ______________ was found in the passengers' portion of the vehicle, you may infer that the __________ was possessed by all of the passengers. If you find that the taxicab had no passengers, you may infer that the _____________ was possessed by the driver.
You are never required or compelled to draw any inference. It is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inferences and you are always free to accept or reject them if you wish. [Model Jury Charge (Criminal), Final Charge: Possession of Firearms, Weapons, Destructive Devices, Silencers or Explosives in a Vehicle (N.J.S.A. 2C:39-2) (Approved 3/30/93).]
The judge charged the inference, designated as "Inference #5" as prescribed by the model charge. However, he did not preface that instruction with the introductory paragraph in the model charge, nor did he follow it with the concluding paragraph in the model charge. There was no objection to the charge from the defense. Now, for the first time on appeal, defendant argues that the charge was fatally flawed, entitling him to a new trial. He argues that in the judge's preceding general instruction on circumstantial evidence, the judge did not specifically inform the jury that they could find the existence of an inferred fact only if they found it more probable than not that the inferred fact is true. Defendant further argues that failure to include the final paragraph from the model charge violated the Humphreys requirement that "[t]he jury must be carefully informed that an inference of one fact from another is never binding." Humphreys, supra, 54 N.J. at 415.
Because there was no objection to the charge at trial, we will not reverse based upon any error in the charge unless defendant demonstrates plain error, namely that which is "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice. The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). In the context of alleged error in a jury charge, plain error is: legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result. [State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970).]
We are not persuaded by defendant's argument. The gravamen of the error in Humphreys rested upon inclusion in the jury instruction of the "presumption" in the statute. The judge charged: "The presence of a firearm . . . in a vehicle is presumptive evidence of possession by all persons occupying the vehicle at the time." Humphreys, supra, 54 N.J. at 411 (emphasis in the original). Likewise, in Bolton, the judge charged: "When a weapon is found in a vehicle it is presumed to be in the possession of the occupant if there is but one. If there is more than one occupant in the vehicle it shall be presumed to be in the possession of all of the occupants." Bolton, supra, 230 N.J. Super. at 478 (emphasis added).
Defendant relies heavily upon the statement in Humphreys that "[t]he jury must be carefully informed that an inference of one fact from another is never binding." Humphreys, supra, 54 N.J. at 415. However, the full text of that sentence, as we have previously quoted, continues by pointing out that "the use of the term 'presumptive evidence' could have been misleading in the present case." Ibid. We do not read Humphreys or Bolton to require an automatic finding of reversible error in any case in which the jury is not expressly told that a potential inference is not binding. In this case, the judge never used the term "presumption." Had the judge used that term, reversible error would likely be required under the Humphreys rule. However, because the term was not used, and because the jury was properly informed that the presence of the gun in the car merely created an inference of possession by the passengers, we look to the charge in its entirety to evaluate whether the jury was adequately informed that the inference was permissive. See State v. Wilbely, 63 N.J. 420, 422 (1973).
In the general instruction on circumstantial evidence, the judge explained:
[C]ircumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be d[r]awn.
An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence. Whether or not inferences should be drawn is for you to decide using your common sense, knowledge and everyday experience. Ask yourselves, is it probable, logically and reasonable. [Emphasis added.]
In the charge specifically dealing with the inference under N.J.S.A. 2C:39-2a(3), the judge instructed the jury that because of the presence of the gun in the passengers' portion of the vehicle, they "may infer that the weapon was in the possession of all passengers . . . ." (emphasis added).
The judge never gave a contrary instruction stating or in any way suggesting that the jurors were bound to find the inference or to view it favorably. We are satisfied from the jury instructions as a whole that the jury was adequately informed that the inference was permissive and that they were not bound to find it. Our conclusion is bolstered by the failure of three defense attorneys to object to the charge. That failure by three separate attorneys constitutes an indication that counsel did not consider the incompleteness the taxicab inference charge to be significant in the overall context of the trial and within the context of the charge as a whole. Macon, supra, 57 N.J. at 333.
The judge should have given the complete taxicab inference charge as set forth in the model charge. "The process by which model jury charges are adopted in this State is comprehensive and thorough; our model jury charges are reviewed and refined by experienced jurists and lawyers." State v. R.B., 183 N.J. 308, 325 (2005). However, failure to follow a model jury charge does not necessarily constitute reversible error. The jurors were not misled or confused by the instructions regarding the inference they were permitted to draw, based upon all of the surrounding circumstances, using their own common sense, knowledge and everyday experiences, and considering whether or not the inferred fact was probable.
We therefore conclude that any error in the charge on this issue was not sufficient to raise in our minds a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached. Therefore, any such error was harmless and does not entitle defendant to a reversal and retrial on counts three, four and eight.
Because we have reversed defendant's conviction on count two and ordered the entry of a judgment of acquittal, defendant's sentence on count two will be vacated. The sentence on that count was the "lead" sentence, with the sentences on all other counts for lesser terms imposed concurrently. Accordingly, we remand for reconsideration of sentence on counts three, four and eight. See State v. Young, 379 N.J. Super. 498 (App. Div. 2005).
Defendant's conviction on count two is reversed. Defendant's convictions on counts three, four and eight are affirmed, but the matter is remanded for reconsideration of sentence on those counts.