March 25, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FREDERICK L. HUNT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-06-2082.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 9, 2010
Before Judges Parrillo, Lihotz and Ashrafi.
Defendant Frederick Hunt appeals his conviction by a jury on a single charge of possession of a handgun without a permit. At trial, defendant asserted that he was arrested within one minute of picking up a handgun he found on the sidewalk to prevent danger to children and others, he never intended to keep the gun, and he had no opportunity to turn it in to the police before his arrest. Because two trial errors may have affected the jury's verdict in this close case, we reverse and remand for a new trial.
The only witness for the State was a police officer who accidentally dropped his weapon during a foot chase of a car thief. At about 9:00 a.m. on February 10, 2006, Officer John Kelly of the City of Camden Police Department was on patrol in his police vehicle when he spotted a car reported stolen. He notified headquarters and then stopped the stolen car near the intersection of Grand and Eutaw Streets. As Officer Kelly stepped out of his vehicle with his weapon drawn, two occupants jumped out of the stolen car and ran in different directions.
Kelly pursued the driver on foot. In returning his gun to its holster while in pursuit, Kelly did not engage both safety locks of the holster. After chasing the driver for approximately 200 yards, Kelly realized that his gun was not in its holster. He immediately retraced his steps to look for his gun, leaving the chase to other officers who had arrived.
Near the location of the motor vehicle stop, two elderly men called to Officer Kelly. At this point, Kelly estimated, approximately forty seconds to a minute had elapsed from the start of the foot chase. He testified:
Q: Okay. And based on what they told you, what did you do next.
A: Based on what they told me, I followed an individual that was on Eutaw Street.
The individual was defendant, who, according to Kelly, was walking away from the scene at a "casual, steady pace." Kelly caught up to defendant and yelled to him. As defendant turned, Kelly ordered him to get on the ground. Defendant raised his arms and said he did not do anything wrong.
Within seconds, a Camden police van came into the area and two officers confronted defendant with their weapons drawn. Defendant told the police that he had the officer's gun and sat down at the curb. Kelly grabbed defendant by his jacket, forced him to the ground, and handcuffed him. From defendant's waistband, according to Kelly, under his jacket and a sweatshirt, Kelly removed his missing handgun.
Defendant was the only witness for the defense. He informed the jury he was twenty-eight years old and employed with a mortgage company. On the morning of the incident, he was on his way to work, having stopped at a store to get a paper, and he was walking to his bus stop when he saw a handgun on the ground. At first he thought it was a toy and picked it up.
Feeling the weight, he realized it was a real gun. He put the gun in his pocket because he did not want anybody else, especially children in the area, to take the gun. He testified that he used his cell phone to "chirp"*fn1 his uncle, who was a sheriff's officer, to get advice on what to do with the gun. When he could not make contact with his uncle, he started to walk toward "police activity" in the area to turn in the gun.
He first looked toward Officer Kelly's police car, which was only ten feet away, but he saw that the vehicle was not occupied. As he began walking toward other "police activity," he heard Officer Kelly approaching, yelling, and cursing at him to get on the ground. Defendant testified that he was scared of getting shot by the officer, and so, he did not immediately reveal that he had a gun. He described his confrontation with Kelly as a brief argument, after which he sat on the ground and was arrested.
Defendant also testified that he had never owned or fired a gun but that he was fascinated with guns as a child. He estimated he had the officer's gun for about sixty seconds before his arrest.
On cross-examination, defendant admitted a number of things he might have done in those sixty seconds, such as wait for a police officer near the police car that was unoccupied, call the police on his cell phone, ask other people in the area such as the two elderly men to call the police, or go back to the store or to a nearby home and have someone call the police. Defendant described these alternatives as possibilities that, in "20-20 hindsight," were available to him but he did not think of at the time.
The statute under which defendant was charged, N.J.S.A. 2C:39-5b, provides in relevant part:
Any person who knowingly has in his possession any handgun... without first having obtained a permit to carry the same... is guilty of a crime of the third degree.
To prove a violation of this statute in the typical case, the State must prove only the following essential elements:
1. The item alleged to have been possessed was in fact a handgun;
2. Defendant knowingly possessed the handgun; and
3. Defendant did not have a permit to possess the handgun. [Model Jury Charge (Criminal), "Unlawful Possession of a Handgun" (2001).]
Defendant contested none of these elements. Rather, his defense was that he had no intent to keep the handgun and was justified in picking it up to prevent danger to children and others.
Defense counsel requested and the trial court agreed to charge the jury: "If you believe the defendant was attempting to terminate the possession of the handgun at the time he was arrested, there must have been sufficient time for the defendant to terminate that possession." Defense counsel made no further request regarding justification for defendant's possession of the gun.
In charging the jury, the trial court stated:
[T]o "possess"... within the meaning of the law, the defendant must knowingly procure or receive a handgun possessed or be aware of his control thereof for a sufficient period of time to have been able to relinquish control if he chose to do so.
The law requires a sufficient period [of] time to allow termination of possession of the weapon. If there was not a sufficient period of time to relinquish possession, it is a defense to the... offense charged.
Temporary possession of a handgun by a person carrying a weapon shall not be considered unlawful possession under this provision of the statute.
The fact that the defendant only possessed or carried the handgun for a short period of time does not preclude you from finding the possession was unlawful if you decide that the defendant had no intent to surrender it.
[Y]ou must find... that he had the time and opportunity to surrender the handgun to the proper authority.
After deliberating for forty-five minutes, the jury returned a verdict of guilty. At sentencing, the court considered the absence of a prior criminal record, defendant having only two minor, non-violent municipal court convictions, and found that mitigating factors outweighed the one aggravating factor of needing to deter unlawful conduct. The court sentenced defendant to three years' probation, 100 hours of community service, and money penalties. Defendant filed a timely notice of appeal.
In his first point on appeal, defendant argues:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE FAILURE TO INSTRUCT THE JURY ON THE DEFENSE OF JUSTIFICATION (NOT RAISED BELOW).
In the factual circumstances of this case, we agree. A common law defense of justification was presented by the evidence, and it was relevant to opposing arguments regarding the one disputed issue in the case, defendant's intent. Justification as a defense required instruction to the jury, even in the absence of a request by counsel.
Justification for engaging in an otherwise criminal act is an affirmative defense under the New Jersey Code of Criminal Justice. N.J.S.A. 2C:3-1. Necessity is recognized as one form of justification in N.J.S.A. 2C:3-2a, which states:
Necessity. Conduct which would otherwise be an offense is justifiable by reason of necessity to the extent permitted by law and as to which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
In State v. Tate, 102 N.J. 64, 70 (1986), the Court paraphrased the three "limiting criteria" of a defense of necessity under this statutory provision: (1) defendant's conduct must be permitted by law;*fn2 (2) it must not be specifically addressed in another Code section or statute; and (3) it must not be contrary to legislative purpose. In Tate, the majority held that, under the Code, medical necessity was not a defense to possession of marijuana. Id. at 72-73.
The dissenting opinions in Tate would have allowed such a defense under the common law of justification, which is explicitly recognized by the Code under subsection b of N.J.S.A. 2C:3-2. Id. at 76-81, 88 (Handler, J. dissenting) and 95 (Garibaldi, J. dissenting). That subsection states:
b. Other justifications in general. Conduct which would otherwise be an offense is justifiable by reason of any defense of justification provided by law for which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
The dissenting justices discussed "the breadth and diversity" of the common law defense of justification, and described one of its "common threads" as a balancing between "a choice of evils." Id. at 78-79 (Handler, J. dissenting). Subsection b of the statute preserved common law defenses of justification provided that the asserted justification is "not inconsistent with a deliberate legislative choice." 1971 Commentary to Model Penal Code, quoted in John M. Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:3-2b (2005). Such defenses must be considered on a case-by-case basis within the limitations set forth in the statute. Cannel, supra, comments 3 and 4; see examples of common law defenses of justification discussed in Tate, supra, 102 N.J. at 78 (Handler, J. dissenting).
In past weapons prosecutions, self-defense as justification has required that defendant show "spontaneous and compelling" or "imminent" or "immediate" danger. See State v. Kelly, 118 N.J. 370, 386 (1990); State v. Harmon, 104 N.J. 189, 208-09 (1986); cf. Polk v. State, 947 S.W.2d 758, 760 (Ark. 1997) (elements necessary to establish self-defense or defense of necessity to unlawful possession of a firearm); State v. Crawford, 521 A.2d 1193, 1200-01 (Md. 1987) (same).
In State v. Romano, 355 N.J. Super. 21 (App. Div. 2002), which involved a charge of driving while intoxicated, we held that to establish a defense of justification:
(1) There must be a situation of emergency arising without fault on the part of the actor concerned;
(2) This emergency must be so imminent and compelling as to raise a reasonable expectation of harm, either directly to the actor or upon those he was protecting;
(3) This emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; and
(4) The injury impending from the emergency must be of sufficient seriousness to outmeasure the criminal wrong. [Id. at 29.]
In this case, the State argues that danger to nearby children and others was not imminent and compelling. See People v. Pepper, 48 Cal. Rptr. 2d 877, 880 (Ct. App. 1996) (rejecting defendant's justification defense to unlawful possession of a firearm because evidence did not show imminent and compelling danger to children in the house). Although there was no specific evidence of children or others who might have picked up the gun, other than the two elderly men, the immediacy of danger presented by a loaded handgun on a city sidewalk was a factual issue for the jury to determine. Defendant was entitled to the jury's consideration of a provision of the Code that recognizes a defense of justification to protect against a greater harm than his own allegedly temporary possession of the handgun without a permit.
As quoted previously, the trial court instructed the jury about temporary possession in conformity with cases from other jurisdictions where defenses of "transitory" or "momentary" possession were presented to charges of illegal possession of weapons or drugs. See, e.g., People v. Martin, 25 P.3d 1081, 1082 (Cal. 2000); Pepper, supra, 48 Cal. Rptr. 2d at 882; Bieder v. United States, 707 A.2d 781, 783 (D.C. 1998); People v. Ternaku, 564 N.Y.S.2d 5 (App. Div.), appeal denied, 565 N.E.2d 529 (N.Y. 1990); State v. Miller, 193 P.3d 92, 97 (Utah 2008). The court also instructed the jury on defendant's intent and opportunity to relinquish possession. But focusing the jury only on "the time and opportunity to surrender the handgun," and on whether defendant intended to do so, did not fully apprise the jury of the law regarding alleged justification for defendant's conduct. Charges on temporary possession and intent, combined with a charge on justification, would have fully informed the jury about the law applicable to the factual issues raised by the defense.
Defense counsel did not request a charge on justification and did not object to its omission. Therefore, the plain error standard of review applies. See State v. Torres, 183 N.J. 554, 564 (2005); State v. Johnson, 309 N.J. Super. 237, 266 (App. Div.), certif. denied, 156 N.J. 387 (1998); R. 2:10-2. In the context of 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. Jordan, 147 N.J. 409, 422 (1997) (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)).]
The law is well-settled in this State that the primary responsibility for ensuring correct and complete jury instructions lies with the trial court. See State v. Grunow, 102 N.J. 133, 148 (1986); State v. Green, 86 N.J. 281, 287-89 (1981); State v. Powell, 84 N.J. 305, 318-19 (1980). We conclude that because justification was the heart of the defense, the trial court should have instructed the jury on the law pertaining to common law justification and necessity under N.J.S.A. 2C:3-2.*fn3
In his second point, defendant argues:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION AND RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE IMPROPER ADMISSION OF HEARSAY EVIDENCE ALLEGING THE COMMISSION OF OTHER CRIMES.
A. The Trial Court Improperly Admitted Other-Crime Evidence Without a Proper Limiting Instruction.
B. The State Improperly Relied on the Out-Of-Court Statements of Absentee Witnesses to Implicate the Defendant in the Commission of the Crimes.
C. The State Failed to Show That Its Absentee Witnesses Had First-Hand Knowledge of the Facts.
The prosecution presented the disputed evidence in response to defense cross-examination of Officer Kelly about the absence of addresses or phone numbers in his police report for the two elderly men to whom he spoke immediately before apprehending defendant. After pointing out that the police report contained the men's names, the cross-examination continued as follows:
Q: Now, there's another box next to there for an address and a phone number. What's in those boxes?
A: None given, sir.....
Q: Now, you indicate you've been a police officer for four years doing this?
A: Nine years, sir.
Q: Nine years? If there's a homicide or any other serious case and two witnesses are there and you get their names, is it a normal police practice to also get their addresses and phone numbers whether they want to give it or not?
A: Yes, it is, sir.
Q: But in this case you didn't do that?
A: No, sir.
Q: But you spoke with them long enough to get their names, correct?
A: Yes, sir.
On redirect examination of Kelly, the prosecutor sought explanation for the absence of the witnesses' addresses:
Q: Okay. Now, the two individuals that you spoke with, did you ask them for their address?
A: Yes, I did, sir.
Q: And did they give it to you?
A: No, they did not sir.
Q: And why did they not want to give you the address?
A: They didn't know the suspect's background, they were afraid of retaliation or retribution -- (emphasis added).
DEFENSE COUNSEL: Judge, I'm going to object at this point to speculation.
PROSECUTOR: Well, it's not speculation if that's what they -- can we approach, Judge?
THE COURT: Sure.
DEFENSE COUNSEL: At this point, it is speculation because no foundation has been laid. I didn't know what he's focusing on and what detail he's working on (away from recording microphone).
PROSECUTOR: Well, this was asked on cross-examination, Judge. I think the question was why there was no address provided. [Defense counsel] got into that. So the officer should be able to explain.
THE COURT:... I'm going to allow it.
Q: Officer, did these two individuals explain to you why they did not want to provide their address?
A: Yes, they did, sir.
Q: And why?
A: They were in fear for retaliation. They didn't know if the individual was involved in a gang or a drug deal or any -- of the such. (Emphasis added).
DEFENSE COUNSEL: I don't like the way this is hanging whether he's in a gang or anything else. I think we need to get a curative. There's nothing to indicate -- my client has no record, there's nothing to indicate gang membership. There was no --
PROSECUTOR: Judge, that's fine.....
THE COURT (to the jury): I just want to give you an instruction that -- there's no evidence in this case that Mr. Hunt is a member of a gang or ever has been. There's no evidence that he was involved in the incident with the stolen vehicle and that's not part of this case and you should not consider that.
In summation, defense counsel argued that Officer Kelly's report was deficient. His failure to get addresses for the two men at the scene deprived the defense of an opportunity to find and interview those witnesses.
Defendant now argues on appeal that the redirect testimony of the officer contained prejudicial hearsay that attributed criminal conduct to him, namely, it implied that defendant was involved in gang or drug dealing activity and might retaliate against the two men.
"A trial court's determination on the admissibility of evidence in general... is entitled to great deference and ordinarily should not be disturbed unless it is 'wide of the mark.'" State v. Fortin, 189 N.J. 579, 597 (2007) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)); accord State v. Morton, 155 N.J. 383, 453 (1998); State v. Carter, 91 N.J. 86, 106 (1982).
We find no merit in much of defendant's argument. The testimony objected to was neither hearsay nor evidence of other crimes that should have been excluded under N.J.R.E. 404(b). It was not hearsay because it was not offered for the truth of the matter asserted by the two witnesses. See N.J.R.E. 801(c). It was offered to prove the reason that Officer Kelly did not get their addresses for his police report, not whether the men truthfully feared retaliation or believed defendant may be involved with a gang or drug dealing. Because the men's statements were not presented to prove their truth, defendant's right of confrontation under the Sixth Amendment was not violated. See Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S.Ct. 1354, 1369 n.9, 158 L.Ed. 2d 177, 197-98 n.9 (2004); Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 2081-82, 158 L.Ed. 2d 425, 431 (1985); State v. Buda, 195 N.J. 278, 301 (2008).
Furthermore, the officer did not testify that defendant was involved in other criminal activity, or that the two men made such an allegation. The provisions of N.J.R.E. 404(b) were simply inapplicable.
Nevertheless, reference to retaliation and gang or drug dealing activity should have been excluded because its probative value was substantially outweighed by the potential that it would unfairly prejudice defendant. N.J.R.E. 403.
The State does not dispute that the two elderly witnesses' fears were not relevant in themselves to defendant's guilt, and the prosecutor did not elicit that evidence on direct examination of Officer Kelly. The State argues, however, that defense counsel's cross-examination opened the door to Kelly's redirect testimony explaining why his report did not contain addresses or phone numbers for the two witnesses.
The "opening the door" doctrine is essentially a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible... [and] allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence....
The "opening the door" rule has its limitations. For example, evidence is still subject to exclusion where a court finds that the probative value of the otherwise inadmissible responsive evidence "is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury...." [State v. James, 144 N.J. 538, 554 (1996) (quoting N.J.R.E. 403) (citations omitted).]
The abuse of discretion standard of review applies to evidentiary rulings under N.J.R.E. 403. See State v. Nelson, 173 N.J. 417, 470 (2002); State v. Ramseur, 106 N.J. 123, 266 (1987); Benevenga v. DiGregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000).
Here, defense counsel's objection and argument at sidebar made no explicit reference to N.J.R.E. 403, but the court was nevertheless alerted to the potential for prejudice that the testimony entailed. If the trial court considered excluding the testimony under N.J.R.E. 403, it made no record of the balancing required by that rule. See Ramseur, supra, 106 N.J. at 266. We cannot defer to the trial court's exercise of permitted discretion when the record does not reveal that discretion was in fact exercised.
Defendant was not accused of any criminal activity other than the alleged unlawful possession of the gun. Injecting the specter of possible retaliation and gang or drug dealing activity into the trial was highly prejudicial to defendant. At the same time, the probative value of the two men's statements was limited to collateral issues regarding the Officer Kelly's credibility and competency, but those issues were not particularly relevant to defendant's guilt or innocence.
The prosecution's explanation for a deficiency in Officer Kelly's report could have been fairly presented to the jury without revealing the witnesses' fear of gangs or drug dealers. In State v. Long, 173 N.J. 138 (2002), the Court said:
In deciding whether to exclude evidence based on its potential for prejudice, "a court must consider the availability of other evidence that can be used to prove the same point." Probative value is enhanced by the absence of such other evidence. On the other hand, relevant evidence loses some of its probative value if there is other less inflammatory evidence available to prove that point. [Id. at 164 (quoting State v. Covell, 157 N.J. 554, 569 (1999) (citations omitted).]
Here, the State's need to explain the absence of addresses for the two men could have been satisfied by simply stating that the men would not give their addresses, without adding their reasons. See State v. Stevens, 115 N.J. 289, 303 (1989) (trial court should consider whether other evidence can serve the same purpose).*fn4
Cumulatively, the two trial errors were not harmless. See State v. Wakefield, 190 N.J. 397, 538 (2007) ("where 'legal errors... in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial'") (quoting State v. Orecchio, 16 N.J. 125, 129 (1954), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008).
Reversed and remanded for a new trial.