May 15, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CURTIS L. LEWIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-05-0485.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 23, 2008
Before Judges Cuff, Lihotz and Simonelli.
A jury found Curtis L. Lewis guilty of second degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7b. Judge Pereksta sentenced defendant to a five-year term of imprisonment with a mandatory five-year parole ineligibility term.
On appeal, defendant raises the following arguments:
REPEATED REFERENCES BY POLICE OFFICERS AND THE PROSECUTOR TO A TEMPORARY RESTRAINING ORDER DENIED THE DEFENDANT A FAIR TRIAL.
THE MOTIONS FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED BECAUSE THE STATE FAILED TO MAKE OUT A PRIMA FACIE CASE OF POSSESSION OF THE HANDGUN BY THE DEFENDANT.
On March 18, 2005, Trenton police officer Richard E. Williams was on patrol when he became involved in an investigation regarding a man with a gun. When first contacted by police, the victim, Cynthia Bell, was at the home of her daughter in Trenton. She reported that her ex-boyfriend, Curtis Lewis, had pulled a gun on her.
When she first spoke to police, Bell was crying and distraught. She explained that she and defendant were arguing in a car. Defendant had accused her of cheating on him. The victim stated that at some point she turned away to look out the window and when she looked back, defendant was pointing a gun at her head. According to the victim, Lewis got out of the car and walked into their apartment. The victim ran to her car, called her daughter and told her to call the police. She provided a description of Lewis with information about his vehicle. The police broadcasted an alert over the radio after a search of the area was unproductive.
Thereafter, the police went to the apartment outside of which the victim reported the incident occurred. When officers were unable to locate Lewis or his vehicle, they returned to police headquarters to complete related paperwork, including a complaint and temporary restraining order against defendant. Thereafter, pursuant to the restraining order and with the victim's consent, the police returned to the apartment which the victim shared with defendant and conducted a search for weapons -- specifically, a black handgun and a machete.
There, officers discovered a machete leaning against the wall in a corner of the apartment, and a black handgun in a kitchen cabinet. The police also found .45 caliber ammunition in a coat closet and recovered six .38 caliber bullets from a linen closet. During the search, the victim was within view of the officers. Neither the handgun nor the ammunition was disturbed pending the arrival of crime scene Detective Ivan Mendez who was called to the scene. Upon his arrival, Mendez was asked to photograph the scene and collect the evidence.
Mendez processed the evidence for fingerprints at headquarters but found none. Subsequently, the firearm was tested and found to be operable. Notably, the victim admitted seeing the gun approximately six months prior to the alleged incident when she had moved into the apartment.
At trial, the victim's story changed. There, she testified that she and defendant had been involved in a verbal argument on the morning of March 18, 2005, about a phone call or phone calls that she had received from a male caller. According to the victim, she and defendant were still arguing when they returned to their apartment at the end of the day. She explained that when she left the apartment to retrieve some laundry from her car, her foot kicked a black bag that was on the ground by the rear driver's side tire. Curious, she looked inside the bag and discovered bullets and a black handgun. The victim testified that she then used her cell phone to call defendant and told him that she had found something that she wanted him to see. According to the victim, defendant went downstairs to her car where she showed him the bag containing the bullets and the handgun. Defendant explained to the victim that he was not supposed to be around "that type of situation." The victim told defendant that she would call her niece, a police officer, to come and pick up the handgun. When she could not contact her niece, she placed the gun in a laundry bag, the bullets in another, and she and defendant carried the two bags into the apartment.
According to the victim, she again tried unsuccessfully to contact her niece, then called her daughter to see whether she could contact the niece. In the end, the victim was unable to get in touch with her niece and the gun remained in the apartment. At trial, the victim also reported that the argument between her and defendant continued the next morning, when the victim told police the story about defendant threatening her and holding the gun to her head. She claimed that she made up the story to get even with defendant.
Based on the victim's original statement and the subsequent search and investigation by police, defendant was charged with terroristic threats and certain persons not to possess a firearm.
On appeal, defendant argues that the trial court compromised his right to a fair trial by admitting testimony of a temporary restraining order against defendant. The State disagrees and submits that the facts of this case distinguish it from the cases cited by defendant in support of his position.
Because the trial court's determination concerns the admissibility of evidence, this court must gauge that action against the palpable abuse of discretion standard. State v. Carter, 91 N.J. 86, 106 (1982). We will not disturb an N.J.R.E. 403 evidential ruling unless "the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted." Ibid.
Here, Officer Williams testified that he had obtained a description of the suspect from the victim, after which the prosecutor pursued the following line of questioning:
Q: What did you do next?
A: We then went into headquarters and we filed the proper paperwork, we filed -- typed complaints and we got the victim a TRO, which is a temporary restraining order.
Q: When you say you filed the complaints and the proper paperwork, that's the paperwork that you filed is just the complaint and the TRO?
Q: At that point once you get the temporary restraining order, TRO, file the complaints, what did you do next?
A: We contact our sergeant and advised him of the incident and then he contacted a detective.
Defendant maintains that his testimony with regard to the temporary restraining order "had the obvious tendency to mislead the jury and prejudice . . . defendant." A review of the record suggests that such references fail to rise to such level.
In support of his position, defendant relies on three cases: State v. Chenique-Puey, 145 N.J. 334 (1996); State v. Marshall, 148 N.J. 89, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997); and State v. Milton, 255 N.J. Super. 514 (App. Div. 1992). None of the cases support his position.
In State v. Chenique-Puey, supra, the Court reviewed a conviction of contempt based on violation of a domestic violence order and terroristic threats. 145 N.J. at 337. The Court held that defendant's motion for severance of the two charges should have been granted because evidence of the restraining order was "an essential element of the State's proofs on the contempt charge," but that evidence was inadmissible to prove the terroristic threats charge because "[a]dmission of the order could have prejudiced unduly [the defendant] by bolstering the victim's testimony regarding [the defendant's prior bad acts" and "[a] jury could interpret the order as a judicial imprimatur on the victim's testimony." Id. at 342-43.
Here, there were no prior bad acts at issue. The sole issue before the jury was whether defendant "possessed" the firearm as charged. The limited testimony about the temporary restraining order simply explained to the jury the reason police proceeded to the apartment. Further, such testimony served to demonstrate the victim's trial testimony was a stark contradiction of her initial report.
Moreover, defendant failed to object to the State's line of questioning at any point during trial, and actually elicited testimony with regard to the issuance of the temporary restraining order on cross-examination. Thus, we review any error according to the plain error standard. R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005). We discern no error, and certainly not plain error, in the reference to the domestic violence temporary restraining order in the circumstances of this case.
Next, defendant attempts to draw an analogy to case law that purportedly bars admission of evidence of the search and arrest warrants. The State may not introduce evidence of a search warrant under circumstances that would allow the jury to infer that the State had presented undisclosed evidence to the issuing judge of defendant's guilt. Milton, supra, 255 N.J. Super. at 520. However, the Court squarely rejected defendant's argument in State v. Marshall, supra, 148 N.J. at 240, where it stated:
We find [the defendant's] claims to be without merit. They have in common the proposition that the jury should be shielded from knowledge that search warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt. We are aware of no authority in support of such a rule. We are satisfied that a properly instructed jury will not presume guilt based on the issuance of a search warrant. We note, moreover, that the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly. [Ibid.]
Nothing in this record suggests undisclosed evidence of guilt. The evidence simply explained the presence of police in the apartment. Moreover, the sole issue was whether defendant possessed a handgun as initially related by the victim.
We also reject defendant's contention that there was insufficient evidence to allow the case to proceed to the jury. The State was required to prove beyond a reasonable doubt that defendant had the requisite prior conviction and that he possessed a firearm, either actually or constructively. N.J.S.A. 2C:39-7. The parties stipulated that defendant had the requisite prior conviction; therefore, the only element to be proved by the State was defendant's possession of the handgun.
"Possession" is defined in N.J.S.A. 2C:2-1c as "an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession." Possession, moreover, can be actual or constructive. State v. McCoy, 116 N.J. 293, 299 (1989). "Physical or manual control of the proscribed item is not required as long as there is an intention to exercise control over it manifested in circumstances where it is reasonable to infer that the capacity to do so exists." State v. Brown, 80 N.J. 587, 597 (1979). Consequently, the question in this case was whether the facts adduced at trial were sufficient to permit a finding that defendant exercised control over the weapon.
According to police testimony, the victim, who was crying and distraught, explained that she and defendant were arguing in a car because defendant believed that she was cheating on him. The victim stated that at some point she turned away to look out the window and when she looked back, defendant was pointing a gun at her head. The victim also reported seeing the same gun approximately six months prior to the incident, when she had moved into the apartment.
Police accompanied the victim to the apartment she shared with defendant, searched it in her presence and recovered a handgun and ammunition -- both of which were introduced into evidence. In addition, Detective Mendez photographed the evidence, which was also later introduced. Based upon such testimony and the favorable inferences under the law to be drawn therefrom, the evidence was sufficient for the jury to find beyond a reasonable doubt that defendant constructively possessed the firearm as charged.
Defendant again moved for a judgment of acquittal pursuant to Rule 3:18-2 following the jury's guilty verdict. The trial court denied defendant's motion based on its determination that the issue was one of credibility for the jury to decide, and that there was sufficient evidence to support the jury's verdict. Specifically, the court stated:
Okay, with regard to the motion for judgment of acquittal, notwithstanding the verdict, while I understand the issues, the credibility issues regarding Miss Bell's testimony, that was an issue of credibility for the jury to determine as to whether or not they believed her first statement, her last statement or any statement in between. They have made their decision, there was other evidence, this was Mr. Lewis's apartment, there was evidence that the police officers found the gun in the apartment, photographs bore that out as well as the testimony, and I find that there was sufficient evidence to support the jury's verdict. So the motion is denied.
The trial court's assessment of the evidence is well-supported by the record.
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