December 18, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHARIF GILLARD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-09-3275.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2007
Before Judges Sapp-Peterson and Messano.
Defendant Sharif Gillard appeals from a judgment of conviction entered after a jury found him guilty of the unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). He raises four arguments for our consideration.
THE VERDICT WAS AGAINST THE WEIGHT OF [THE] EVIDENCE
THE POLICE LACKED PROBABLE CAUSE TO JUSTIFY [THE] INVESTIGATIVE DETENTION [OF THE DEFENDANT]
THE VERDICT MUST BE SET ASIDE FOR FAILURE TO GIVE THE DEFENDANT A FAIR TRIAL
IT WAS PLAIN ERROR FOR THE COURT TO FAIL TO CHARGE THE JURY ABOUT THE DEFENDANT'S UNEXPLAINED ABSENCE
We have considered these contentions in light of the record and applicable legal standards. We affirm.
The Essex County grand jury returned a single count indictment charging defendant with the unlawful possession of a handgun. His first trial resulted in a mistrial because the jury could not reach a verdict.*fn1 Defendant's retrial commenced on March 2, 2004, before a different judge.
After the jury was selected, but before opening statements, the judge inquired of counsel whether any preliminary matters needed to be resolved outside of the presence of the jurors. The prosecutor requested that the judge prohibit any cross-examination of the police witnesses regarding whether any fingerprints were found on the gun. Although defense counsel objected, the judge agreed that since the gun was allegedly found on defendant's person, and since defendant proffered no expert testimony, cross-examination on the issue was not permitted.
The judge also asked the prosecutor to summarize the State's case. She responded
The officers from the Newark Police Department Safe City Task Force went to the Felix Fuld Housing Complex in an effort to gain (sic) gang related activity . . . .
[T]hree officers entered . . . [and] notice[d] the defendant standing in the courtyard. The defendant noticed them as well. As he did so, he made a move to get away. He walked away at a fast pace.
The defendant was noticed by  other officers . . . . He turned around abruptly . . . . As he did so, one of the officers observed him discard from his right hand an object.
The officer . . . retrieved the object, turned out to be a bag of marijuana. He alerted the other officers to that fact. The other officers placed [defendant] under arrest. As a result of . . . the search incident to arrest, the protective pat down . . ., one of the officers felt what he believed to be the butt of a gun. He retrieved a weapon[,] [a] fully loaded .380 caliber semi-automatic . . . .
Although defense counsel made no specific request, the judge instructed the prosecutor, "You may not address in this court . . . the fact that they went there for gang related activity . . . . It's not part of this case."
He continued, "Second of all, if you expect to introduce evidence that marijuana was involved, I want a brief with respect to that. This case is about [a] gun and not about drugs." The judge noted, "There was no [N.J.R.E.] 404b application here . . . and although one might argue that the marijuana is part of the arrest, it may suffer under [N.J.R.E.] 403[,] [b]ecause it certainly would have a tendency to prejudice this jury." The prosecutor objected, noting the marijuana was "the basis for the arrest." Nonetheless, the judge ruled, "[J]ust because it was the basis for the arrest, doesn't mean you get to introduce it . . . . It's prejudicial. You don't get it in."
The next morning, the State pursued the argument further by supplying a brief for the judge's consideration; however, the judge again determined that any evidence regarding the recovery of marijuana at the scene was more prejudicial than probative and ordered the prosecutor not to elicit any such information from the police witnesses. The judge explained the limits of his ruling as follows:
What the officers can't say . . . is that . . . they observed [defendant] commit another offense, which is the possession and discarding of what later turned out to be marijuana. They can say that they saw him discard something or an article, whatever their observations were, short of identifying it as what they believe to have been marijuana, upon their subsequent observations.
When the prosecutor indicated that she intended to ask the police officers if they placed defendant under arrest after they recovered the item, defense counsel objected.
He noted, "[T]hat just uses the back door to get [to] the exact place of the front door[.]" Noting that "the sequence of events" was "an issue in the motion to suppress" before the first judge, defense counsel indicated he would not raise "the issue" "for purposes of the presentation for this jury." He made the following suggestion:
If the State wants to proceed with the fact that [defendant] was observed to drop an item, that the officer went over and picked up the item and that the other officers followed my client and that they then detained him, and that . . . they patted him down, skipping the point of the arrest, it then does not refer to anything [dealing] with what the item was. It simply says that they saw, they saw (sic), they did.
The judge agreed and addressing the prosecutor he noted, "[T]here's no reason to suggest an arrest . . . . [F]or you to suggest that they arrested him is  to suggest that there was some offense on his part that is not relevant here."
After opening statements, a stipulation was read to the jury in which defendant acknowledged that that he did not possess a permit to carry a gun on the day in question.*fn2 The State then called three Newark police officers to describe the events leading to the discovery of a loaded firearm in defendant's waistband and his arrest on the night in question. We need not recite their testimony at length because it is not relevant to the issues presented on appeal. It suffices to say that the officers' testimony was generally consistent with the version of events proffered by the State before the trial commenced, molded to the limitations that resulted from the judge's rulings. After the officers' testimony, the State rested subject to the admission of certain items into evidence and the reading of further stipulations to the jury.
As the proceedings began the next morning, the judge observed that defendant was absent. Defense counsel advised the judge that defendant's mother had contacted him at approximately 1:50 a.m. and told him that defendant "had cut off the bracelet . . . that was put on by parole, and that he was no longer in [his] [mother's] house." Defense counsel indicated he was unsuccessful in trying to locate defendant in the courthouse. The judge noted, "It appears that [defendant's] absence is a voluntary and willful absence on his part[.]"
After denying defendant's motion to dismiss, the judge concluded, based upon defendant's failure to appear at the trial, that defendant's "election [not to testify on his own behalf] [was] a voluntary or willful election by virtue of his voluntary and willful absence." A charge conference followed during which the judge denied the State's request to charge "flight," and asked defense counsel whether he wished the jury to be given the model jury instruction regarding defendant's election not to testify. Defense counsel responded, "I would not ask for the charge because of my client's absence and I do not wish to underscore the absence of my client by indicating he does not want to testify." Defense counsel requested no other instructions, and did not object to the balance of the court's proposed instructions. The judge decided to proceed with summations despite defendant's continued absence from the courtroom, finding that absence to have been "voluntary and willful."
After summations, defendant moved for a mistrial alleging the prosecutor's summation comments were improper. This was denied and the judge then charged the jury. Defense counsel lodged no objection to the charge as given. The record reflects that within approximately eleven minutes, the jury returned its verdict of guilty on the single count in the indictment. Defendant was sentenced on October 22, 2004, to five years imprisonment.*fn3 This appeal ensued.
Defendant's first argument, that the verdict was against the weight of the evidence, is without sufficient merit to warrant any discussion in this opinion. R. 2:11-3(e)(2). Since defendant never moved for a new trial, this argument is not cognizable on appeal. R. 2:10-1.
Defendant next argues that the police lacked sufficient reason to justify any investigative detention or arrest and therefore the seizure of the gun from his waistband was unlawful. However, it is unclear whether defendant ever moved to suppress the evidence before trial. Although defense counsel implied that a motion to suppress was filed and adjudicated prior to the first trial, we have noted above that defendant has not relied upon anything contained in those proceedings to support the arguments he now raises on appeal. In fact, appellate counsel has advised that only the transcripts from the second trial were relevant to the issues raised on appeal.
What is clear is that defendant failed to move prior to the second trial to suppress the evidence based upon an allegedly unlawful detention or arrest. Therefore, we must conclude that defendant waived any objection to the admission of the gun into evidence on these grounds. R. 3:5-7(f); State v. McKnight, 52 N.J. 35, 48 (1968).
We have some difficulty understanding the thrust of defendant's third argument. He contends that by forbidding the State to elicit two facts--that the object defendant discarded was marijuana and that defendant was placed under arrest at that point and prior to the discovery of the gun--the judge effectively denied defendant a fair trial. As set forth in his brief, defendant contends that because of these rulings, he "was precluded from presenting his defense that the officers did not have any probable cause to arrest him based upon the way he walked."
This argument lacks sufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(2). We only add that defense counsel never objected to the judge's instructions which were clearly intended to inure to defendant's benefit. By not allowing the State to introduce evidence that the item defendant discarded was marijuana, the judge sought to shield defendant from any possible prejudicial effect that fact might have upon the jury. As for the ruling regarding the arrest of defendant, as we pointed out above, this came about as a result of defense counsel's specific objection to the prosecutor's proffered intention to elicit that information from the police.
In any event, since there was no objection made at the time, in order to warrant the reversal of defendant's conviction, these two rulings must amount to plain error, that is error "clearly capable of bringing about an unjust result."
R. 2:10-2. In light of the overwhelming evidence of defendant's guilt, we are convinced the rulings, even if erroneous, were not prejudicial to defendant.
Lastly, defendant argues that the judge erred in failing to instruct the jury that defendant's absence from the proceedings on the final day of trial was irrelevant to their determination of the issues in the case. Since defense counsel did not request any instruction, we must assess whether the judge's failure to give such a charge was plain error.
"As applied to a jury instruction, plain error requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Chapland, 187 N.J. 275, 289 (2006) (quoting 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 consider the claim of error in light of the entire charge, State v. DiFrisco, 137 N.J. 434, 491 (1994), and after "an evaluation of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289.
Here, defense counsel did not request that any instruction be given to the jury. In fact, he asked the judge not to provide the model instruction on defendant's election not to testify because it would "underscore" defendant's absence. Counsel's decision not to request any other charge is consistent with that strategy and any explanation of defendant's absence given to the jury would clearly have focused the jury's attention on the issue. In sum, the judge's decision not to instruct the jury sua sponte on the issue was not error and certainly not plain error.