On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-09-2266 and 05-09-2267.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2009
Before Judges Graves, Lyons and J. N. Harris.
Defendant, Tawan McGuire, appeals his convictions for third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5c(1); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; the disorderly persons offense of resisting arrest, contrary to N.J.S.A. 2C:29-2; and second-degree possession of a weapon by a convicted felon, contrary to N.J.S.A. 2C:39-7b. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
Al-Salik Bronson and a number of other people were sitting on the porch of a house located on 20th Avenue in Irvington at approximately 12:45 a.m. on April 22, 2005. At that time, Mr. Bronson heard gunshots hit the house behind him. Someone yelled out, "[w]atch out," and Mr. Bronson felt pellets hit his arm. As he got up to run, Mr. Bronson saw someone running towards Ellis Avenue, carrying what he stated appeared to be a black Mossberg shotgun. Before he could flee the scene, Mr. Bronson was struck again with pellets in his lower back.
At the same time, Detectives Michael Isselin and Ray Hoffman, who were in plain clothes and driving an unmarked vehicle, were about to make a motor vehicle stop on 22nd Street when they heard two or three gunshots coming from the area of 20th Avenue and 22nd Street. According to the testimony of Detective Isselin, they thought they heard gunshot blasts. The detectives immediately made a U-turn and began heading in the direction of the shots. Detective Isselin testified that he heard two or three more shots while they were in the car. In total, Detective Isselin said they heard six shots.
After the detectives had traveled approximately one block, they observed defendant running along 20th Avenue, crossing 22nd Street. He was wearing a black mask on his head and was holding a shotgun with both hands, swinging it back and forth as he ran. The officers followed him in their unmarked vehicle to the corner of Ellis and 20th Avenues and ordered him to stop running and to drop his weapon. Defendant, rather than doing so, attempted to enter the rear passenger seat of a black Ford Crown Victoria parked on the corner of Ellis and 20th Avenue. The car was idling with its engine running and headlights on. The detectives then exited their vehicle, drew their weapons, and ordered defendant to stop running and to drop the shotgun. The detectives, while in plain clothes, had their badges visible around their necks.
Defendant continued to hold on to the back door of the Ford Crown Victoria, trying to get into the rear passenger seat of the car. The car then began moving, which caused defendant to fall to the ground and drop the shotgun.
At that time, Detective Hoffman was able to grab the back of defendant's shirt. Defendant continued to swing his arms trying to break free. However, Detective Isselin tackled him. According to Detective Isselin, defendant resisted and would not allow the detectives to handcuff him. He fought and kicked for a minute or two, flailing his arms. Eventually, defendant was subdued after he was sprayed with pepper spray.
The detective testified that they recovered a black Mossberg twelve-gauge shotgun with a pistol grip at the scene. They also removed a black ski mask from defendant's face and recovered a black and blue glove from defendant's left hand. There were six live shotgun shells found in defendant's right front pant's pocket. Later in the evening, Detective Hoffman recovered six spent shotgun casings. He located them at the corner of 22nd Street and 20th Avenue. The detective also testified that defendant did not have a permit to carry the shotgun.
Following his arrest, defendant was placed in the back of the unmarked police car. A crowd of people began to gather. Some of the people advised the detectives that someone had been shot, and they pointed in the direction of 22nd Street and 20th Avenue. Detective Hoffman walked up the street to find out whether anyone had been injured. He discovered Mr. Bronson at that point.
Mr. Bronson was then taken to Beth Israel Hospital where he was treated and released. He had approximately twenty-five to thirty pellets underneath his skin. Mr. Bronson told the detectives he was unable to identify his shooter and refused to provide any information regarding the incident.
Detective Louis Alarcon testified that the Mossberg shotgun was operable and able to be discharged. He also testified that the six spent shell casings found at the scene were fired from the shotgun found in defendant's possession.
Mr. Bronson, the victim, who was incarcerated at the time of trial on an unrelated matter, testified that the weapon used was a Mossberg shotgun. He stated that he could see his assailant clearly, he knew defendant well, and it was not defendant who shot him. Mr. Bronson acknowledged that he spoke with defendant after the incident and he assured defendant he knew defendant was not the shooter.
Defendant elected to testify in his defense, notwithstanding that the State intended to cross-examine him regarding prior convictions. Defendant understood that if he did testify, the jury would be directed to consider the charge of possession of a weapon by a convicted felon, together with the other charges.
Defendant testified that on the night in question, he was celebrating the birthday of a dead friend at a local bar, and he decided to walk home because he was "getting too drunk." While walking toward his home on Springfield Avenue, he heard shots and began running. Defendant said that when he reached the corner, he collided with someone, and fell on the ground. Defendant stated that the person he collided with dropped the shotgun and entered a parked vehicle, which then took off.
According to defendant, at the same time, the detectives got out of their unmarked vehicle and then chased and tackled defendant when he tried to get up and run. Defendant stated the detectives threatened to kill him, placed a gun to his head, and pulled the trigger. During his testimony, defendant admitted he was gang affiliated and acknowledged speaking after his arrest to the victim, who he described as his friend, asking him to come down to the police station to confirm that he was not the shooter. Defendant stated that the victim declined because he could not leave his home since he was then on parole and wearing an electronic bracelet.
Following defendant's arrest, he was charged in Indictment No. 05-09-2266 with first-degree attempted murder; third-degree unlawful possession of a weapon; second-degree possession of a weapon for an unlawful purpose; and third-degree resisting arrest. In a separate indictment, Indictment No. 05-09-2267, defendant was charged with second-degree possession of a weapon by a convicted felon.
Following the trial by jury on Indictment No. 05-09-2266, the jury convicted defendant of third-degree unlawful possession of a weapon; second-degree possession of a weapon for an unlawful purpose; and the disorderly persons offense of resisting arrest. Defendant was acquitted of the attempted murder. The jury also convicted defendant on ...