April 30, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FO-01-135-09B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 14, 2010
Before Judges Axelrad and Fisher.
Defendant R.B. appeals from an order of forfeiture of weapons seized pursuant to a domestic violence restraining order. He argues that a mistrial was warranted because the judge questioned his wife, utilizing photographs of injuries not produced during discovery, that the judge's decision on the merits was unfounded, and that the statute authorizing forfeiture is unconstitutional. We reject these arguments and affirm.
The record reveals that on August 16, 2008, C.B. (hereafter, Carolyn, a fictional name) obtained a temporary restraining order (TRO) against her husband, defendant R.B., pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act). As permitted by the Act, the TRO authorized a search of the home. N.J.S.A. 2C:25-28(j). Acting pursuant to the TRO, police seized fourteen firearms, two hunting bows, a K-bar knife, two swords, and ammunition. On September 17, 2008, the domestic violence action was dismissed at Carolyn's request and the TRO vacated. At the same time, the judge entered a consent order in a pending matrimonial action in which defendant agreed: (1) not to consume any alcohol for five months; (2) to continue treatment for post traumatic stress disorder and alcohol dependence; (3) to continue attending Alcoholics Anonymous meetings; and (4) to participate in marital therapy.
The State thereafter moved for forfeiture of the weapons. During the four-day trial, the judge heard the testimony of defendant and Carolyn; they presented competing versions of the events that led to Carolyn's filing of the domestic violence action and testimony about past conduct and their marital difficulties. The judge also heard the testimony of Gary Michael Glass, M.D., a licensed psychiatrist, who testified on defendant's behalf that there was no evidence of alcoholism or habitual drunkenness, that defendant's post-traumatic stress disorder was "mild and resolving," and that defendant was suffering from moderate stress related to the unhappy and dissolving marriage. He concluded defendant had no personality disorders or indicators for alcoholism and, in his view, there was "no reason whatsoever that [defendant] should have to forfeit or be denied the use of his private weapons as an orderly citizen."
Defendant also called character witnesses and others who had witnessed past interactions between him and Carolyn.
At the conclusion of the trial, the judge rendered an oral decision and entered judgment forfeiting the weapons. Defendant unsuccessfully moved for reconsideration and thereafter filed this appeal, arguing that: (1) his motion for a mistrial should have been granted due to "the unfair surprise involved" in the trial judge's "use of photographs not supplied to counsel and the surprise allegation of physical injury"; (2) the evidence does not support the judge's finding that defendant is a danger to the public safety*fn1; and (3) the order under review infringes on defendant's Second Amendment rights.
During the trial, the prosecutor briefly elicited from Carolyn that, in the aftermath of the act of domestic violence that led to the TRO, she went to an attorney, who advised that she have photographs taken of her injuries. Following this testimony, the trial judge showed Carolyn photographs, apparently removed from the court's file regarding her domestic violence action, which Carolyn was asked to authenticate.*fn2
Defense counsel objected, without providing any specific basis for that objection. Counsel also was given the opportunity to question Carolyn about the photographs but chose not to.
The next day, defendant moved for a mistrial on the basis that the photographs were not produced by the prosecutor during discovery; he also moved for recusal. Specifically, defendant argued that the judge "took over the [p]rosecutor's case and essentially tried the case for the prosecutor" when the judge questioned Carolyn about the photographs.
This argument is entirely without merit. The judge's brief examination of Carolyn merely sought her authentication of photographs that were apparently in the court's domestic violence file. After the photographs were identified, the judge then asked the following few questions:
Q: When were those photographs taken?
A: The day after the incident, so it would have been –
Q: Do those photographs show certain bruises on your arms?
Q: How did those bruises get there?
A: From my husband.
Q: And what did your husband do to cause those bruises?
A: He grabbed my arm to pull me from the door to get in the door.
THE COURT: Show them to [defense counsel].
Q: Ma'am, who took those photographs?
A: My daughter.
The judge then asked defense counsel and the prosecutor whether they had any questions about the photographs; they both declined the opportunity.
Carolyn's testimony, during the examination of both the prosecutor and defense counsel, spanned ninety-seven transcript pages; the judge's examination of the witness consumed less than one. Accordingly, we find defendant's claim that the judge "took over the prosecution" to be utterly frivolous, as was his motion to recuse the judge. We, thus, reject the arguments in Point I that defendant was treated unfairly at trial and that the trial judge should have ordered a mistrial.
Defendant additionally contends he was deprived of due process and fundamental fairness because the prosecutor did not notify him in advance of trial that the photographs would be used. We find insufficient merit in that argument, or any other argument that may be found in Point I, to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).*fn3 Defendant was aware of the existence of the photographs before the trial ever began and he was given a full and fair opportunity to cross-examine regarding their content or to present other evidence or testimony to rebut or question what those photographs depicted.*fn4
Defendant also contends the evidence was inadequate to support a finding on any of the statutory grounds for forfeiture of his weapons. Specifically, defendant argues that the trial judge's decision that he presented a danger to the general public was unfounded and based on speculation. We disagree.
N.J.S.A. 2C:58-3(c)(5) provides that "[n]o handgun purchase permit or firearms purchaser identification card shall be issued:... (5) [t]o any person where the issuance would not be in the interest of the public health, safety or welfare." The State's burden of proof is by preponderance of the evidence. N.J.S.A. 2C:1-13(f); State v. Masculin, 355 N.J. Super. 250, 255 (Ch. Div. 2002).
N.J.S.A. 2C:58-3(c)(5) (hereafter subsection (5)) "was intended to relate to cases of individual unfitness, where, though not dealt with in the specific statutory enumerations, the issuance of the permit or identification card would nonetheless be contrary to the public interest." Burton v. Sills, 53 N.J. 86, 91 (1968), appeal dismissed, 394 U.S. 812, 89 S.Ct. 1486, 22 L.Ed. 2d 748 (1969); see also State v. Cunningham, 186 N.J. Super. 502, 507 (App. Div. 1982). It requires "a judicial declaration that a defendant poses a threat to the public health, safety or welfare," which "involves, by necessity, a fact-sensitive analysis." State v. Cordoma, 372 N.J. Super. 524, 535 (App. Div. 2004). That is, the analysis necessitates "a careful consideration of both the individual history of defendant's interaction with the former plaintiff in the domestic violence matter, as well as an assessment of the threat a defendant may impose to the general public." Ibid.
The scope of what may be in the interest of "public health, safety or welfare" is not easily defined, but it is not limited, as suggested by defendant, to applicants who have engaged in past acts of actual violence or lawlessness. For example, we upheld a denial based on subsection (5) where the applicant failed to disclose an arrest on a weapons charge despite the absence of a conviction on that charge; we focused instead on the applicant's willing disregard of the gun laws in affirming the rejection of his application. In re Osworth, 365 N.J. Super. 72, 80-81 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004).
The judge's findings here resulted from his "opportunity to make first-hand credibility judgments about the witnesses who appear[ed] on the stand...." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). In deferring to the judge's credibility findings, we conclude the decision was well-supported by "competent, relevant and reasonably credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).
Carolyn's testimony, which the judge was entitled to credit, In re Return of Weapons to J.W.D., 149 N.J. 108, 116-17 (1997), reveals that defendant was both verbally and physically abusive to the point where police assistance was required; the extent of that abuse was supported by Carolyn's testimony and revealed by the photographs referred to above. Further, defendant invoked his Fifth Amendment right to remain silent regarding whether he had gone hunting during the pendency of the forfeiture hearing, in violation of N.J.S.A. 2C:39-7(b)(3).*fn5 The judge was entitled to draw an adverse inference from defendant's silence and conclude that defendant had, in fact, gone hunting during that period of time.*fn6 Moreover, the judge was entitled to rely upon this evidence to conclude that defendant had an inadequate respect for the gun laws of this State. Indeed, in considering this evidence, the judge focused on what he viewed as a more significant consequence of this conduct; in the judge's words, this conduct is "an indication to me and [supports] a concern of mine that [defendant] is going to do what he wants to do... no matter what the effect it would have upon his family." In other words, we discern from the judge's comments that defendant presented a danger because he was unwilling to recognize any parameters on his conduct, even those imposed by law with regard to the use of firearms.*fn7
Ultimately, the judge's determination was based upon his view of the parties' continued relationship in the same household. He found that defendant's anger, which has "been able to fester and continue for an extended period of time," coupled with "the unhappiness and anger that's inside this household" rendered defendant's possession of weapons "a recipe for disaster," and contrary to the interest of public safety, health or welfare. The judge viewed the parties as "sitting on a powder keg," which is subject to being further fueled by what the judge referred to as defendant's occasional "need to go out and get drunk." Thus, even though the judge said in his decision that he "d[id] not think [defendant] is an alcoholic," he concluded there was enough anger in this "powder keg" of a household that it would not be in the interest of the public health, safety or welfare to have the weapons returned to defendant. After careful review, we conclude that the judge's findings and conclusions were supported by sufficient credible evidence and well-founded on accepted legal principles.
Defendant lastly argues that the order under review infringes his constitutional right to keep arms, as defined by District of Columbia v. Heller, U.S., 128 S.Ct. 2783, 171 L.Ed. 2d 637 (2008). Defendant did not raise this argument in the trial court, and for that reason alone, we could decline to consider it. Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Notwithstanding, we find the argument has no merit because the right announced in Heller is not immune from "reasonable limitations," Crespo v. Crespo, 201 N.J. 207, 210 (2010), as the Heller majority, in fact, acknowledged, Heller, supra, __ U.S. at __, 128 S.Ct. at 2816-17, 2819, 171 L.Ed. 2d at 678, 680-81. As a result, we have held that Heller "has no impact upon the constitutionality of N.J.S.A. 2C:58-3(c)(5)." In re Dubov, 410 N.J. Super. 190, 197 (App. Div. 2009).