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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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' ...