August 17, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT C. WOODWARD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-05-0058.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 28, 2010
Before Judges Graves, Sabatino and J.N. Harris.
In a five-count indictment, defendant Robert Woodward was charged with third-degree possession of a controlled dangerous substance (clonazepam) in violation of N.J.S.A. 2C:35-10(a)(1) (count one), and four counts of second-degree possession of a weapon (two handguns and two shotguns) by a prohibited person, in violation of N.J.S.A. 2C:39-7(b)(1) (counts two, three, four, and five). Prior to trial, count one was dismissed. A jury acquitted defendant of count four (possession of a twelve-gauge Mossberg pump-action shotgun), but he was convicted of unlawful possession of a .44 caliber Belgian revolver (count two), a .38 caliber Smith and Wesson revolver (count three), and a twelve-gauge single-barrel shotgun (count five). On June 20, 2008, the court sentenced defendant to three concurrent five-year prison terms, with a mandatory five-year period of parole ineligibility pursuant to N.J.S.A. 2C:39-7(b)(1). Appropriate statutory penalties and assessments were also imposed. Defendant appeals and we affirm.
The facts are not complicated. The parties stipulated that defendant had previously been convicted of a predicate offense that "makes him ineligible to purchase, own or possess or control a firearm." Thus, the primary issue before the jury was whether defendant owned or possessed the firearms that were seized by the police.
In October 2005, Deborah Woodward (Deborah), defendant's wife, informed Detective Brian Duross (Duross) of the New Jersey State Police that defendant kept guns in their residence on South Wade Boulevard in Millville, New Jersey. Deborah subsequently agreed to wear a small recording device in an attempt to obtain incriminating statements from defendant regarding his possession of the weapons.
On November 4, 2005, after receiving authorization from the New Jersey Division of Criminal Justice to record conversations between Deborah and defendant, Duross met with Deborah to provide her with a recording device, which she placed in her pocket. Deborah then returned to the residence she shared with defendant. The detectives followed Deborah to the home in unmarked cars and watched her pull into the driveway at about 4:45 p.m.
Once inside the house, Deborah spoke with defendant regarding the firearms he kept at their home. Her conversations with defendant were recorded, and the State played portions of those recorded conversations at trial. Deborah asked defendant to move his guns to a safer place in the home because her grandchildren would be visiting soon. Defendant responded that he would put the guns out of the reach of the children:*fn1
DW: . . . the girls want to know if they can come up here and spend the night.
DW: But the thing of it is I can't have [the children] coming up here with these guns in this house. You gotta promise me.
RW: Then . . . I'll put em up. DW: What do you mean?
RW: I said I'll put them up.
The device Deborah carried in her pocket also recorded statements by defendant referring to "a .38" that was "in the pocket." When Deborah continued to discuss with defendant the presence of weapons in their home, the following conversation took place:
RW: Well . . . there's stuff here that you can protect yourself with.
DW: You ain't even never showed me how to use em.
RW: All you do is pull the trigger. . . . that one shotgun, you put a shell in it. Click it. Pull the trigger back. Bang. This here, all you gotta do is pow, pow, pow, pow.
DW: How do you load that one in there? RW: The . . . shotgun?
DW: That's not in there, that's a[n] antique in there.
RW: Oh, you know that thing ain't no good. It's . . . just for show.
DW: The sawed-off. RW: Yeah.
In later conversations, defendant continued to explain to Deborah how to use the firearms in the home, and at one point stated, "that's a .44 Magnum[,] Debbie." Finally, when Deborah again raised the issue of ensuring that the guns in the home would be moved to a safe place away from her grandchildren's reach, the following conversation occurred:
DW: What is so hard to put them somewhere else so they're not in the house?
RW: Yeah, I'll put them up, I'll put them out in the garage.
DW: You know how you hear everyday how kids get a hold of em.
RW: Debbie, I just said, what did I just say[.] Why do you gotta keep at it?
DW: Because they scare me that's why[,] with kids around.
Deborah remained in the home with defendant until approximately 6:24 p.m., then left to meet the detectives at a prearranged location. The detectives obtained the recording device from her at that time.
Based on the recorded conversations between Deborah and defendant, Duross obtained a search warrant for the residence on South Wade Boulevard, which was executed on November 11, 2005. The search resulted in the seizure of four guns: (1) a .44 caliber Belgian revolver; (2) a .38 caliber Smith and Wesson revolver; (3) a twelve-gauge New England Firearms single-barrel shotgun; and (4) a twelve-gauge Mossberg pump-action shotgun. The police also recovered numerous shotgun shells and ammunition from the home.
At trial, Deborah testified that defendant owned the two handguns and the twelve-gauge New England Firearms single-barrel shotgun, and she had observed defendant handling each of them on numerous occasions. However, she testified she could not identify the twelve-gauge Mossberg pump-action shotgun because she had never seen it before.
Deborah acknowledged that her marriage to defendant "was over" and "had totally collapsed" by the time she agreed to record defendant's incriminating statements. She stated she was "ready to move out" by November 2005, partly because defendant "was dating others." In addition, Deborah testified that she and defendant often engaged in confrontations involving screaming, which sometimes became physical. She further testified that she "didn't scream that much at [defendant] because [she] didn't want to get hurt all the time."
Following Deborah's testimony, Detective Sergeant William Wheatley of the New Jersey State Police Ballistics Unit testified as a firearms expert. Wheatley testified he tested each of the firearms and all four were found to be operable.
Defendant chose to testify on his own behalf. He denied owning or possessing the guns at any time. According to defendant, the guns belonged to Deborah, and he never touched the guns on November 4, 2005, "or any other day."
Defendant testified that "Debbie carried a .32 pistol in her pocketbook," and he stated the guns seized by the police "were her guns":
Q: She'd already indicated to you that she didn't want her grand-babies around because of guns in the house?
A: But they were her guns.
Q: I'm just asking –
A: Well, I'm just telling you, they were her guns.
Q: Okay. But she had already said that?
A: So? They were her guns.
Q: But she had said that?
A: She wanted me to touch those guns. All night long, she was wanting me to put those guns up. Put them up, put them up, put them up.
Because she wanted me to get my fingerprints on them guns and that's all I can think of why she kept wanting me to put them up. And I never touched those guns and my fingerprints were never on those guns.
Defendant also testified that his marriage to Deborah was "combative":
Q: What was the marriage like to [Deborah] Woodward?
A: Very combative.
Q: Okay. Was it always like that or did it just happen that way at the end or --
A: No, it was always like that.
Q: What do you mean combative?
A: Arguments all the time. Accusements [sic]. Just a lot of arguments, a lot of accusing.
Q: Okay. How did -- when an argument would occur, how would you react to that with Deborah?
A: I would just try to please her and just, you know, and move on and just try to get out of the situation, you know, as quick as possible.
Q: Okay. The tone of voice that we heard Deborah assume during the playing of the tape, was that something that was typical with her?
A: That was constant.
Q: Okay. During the course of the marriage, Bob, did you separate?
A: Yes, many -- a few times.
Q: How many times did you separate?
A: Four or five times.
Q: Okay. And were there reconciliations?
Q: Okay. Now, when there were separations, would you leave the home or did she leave the home or both of you?
A: I'd leave. I would leave.
Q: You would leave? For how long a period of time, typically?
A: Sometimes a few weeks. Sometimes a month.
Q: Now, during the course of the marriage, did you start seeing and dating other women?
A: Yes, I did.
Q: Okay. And did that occur on a number of occasions?
A: A few times, yes.
Q: Okay. Did Deborah Woodward find out about it?
A: Yes, she did.
Q: How did she react?
Q: Okay. What do you mean by that?
A: Well, she attacked the other women.
She attacked me.
Defendant further testified that he did not live at the couple's home at the time because he had moved out when he and Deborah decided to separate in September 2005. He explained that he did not change his mailing address because he had planned to move back into the home after Deborah obtained separate living arrangements. Finally, defendant testified on cross-examination, "I never moved them, for the 20th time I told you. I never touched those guns. I never moved those guns. I never had possession nor control of those guns anytime in that house."
The defense also presented testimony from Jill Barbour (Barbour), a former friend of Deborah and defendant. She claimed Deborah admitted to purposely implicating defendant in the offenses charged. According to Barbour, Deborah stated she needed to obtain firearms to "set Bob up," referring to defendant. Barbour claimed Deborah "knew that [Barbour's] uncle had a lot of guns." However, Barbour testified she did not take Deborah seriously at the time because Deborah had "done that before. Like, said crazy things out of anger."
Barbour further claimed that Deborah was "always very angry" with defendant, and that she was "persistent" about her plans to incriminate defendant, testifying that "it wasn't just one conversation. She kept at it." Barbour also testified that she was "friendly" with defendant and still talked to him during the trial and that she had not spoken to Deborah in "years."
On appeal, defendant presents the following arguments:
THE TRIAL PROCESS WAS IMPROPERLY SKEWED BY SEVERAL RULINGS BELOW, RESULTING IN AN UNFAIR TRIAL FOR DEFENDANT AND WARRANTING A NEW TRIAL.
A. THE TRIAL COURT IMPROPERLY LIMITED DEFENDANT'S ATTACKS ON THE PRIMARY STATE WITNESS'S MOTIVE AND INTEREST TO TESTIFY AGAINST DEFENDANT, INFRINGING DEFENDANT'S CONSTITUTIONAL RIGHTS TO CONFRONT THE STATE'S WITNESSES AND ADVANCE EVIDENCE TENDING TO REFUTE HIS GUILT.
B. THE TRIAL COURT PERMITTED A "SHOW OF FORCE" BY STATE TROOPERS INSIDE AND OUTSIDE THE COURTROOM DURING TRIAL THAT UNFAIRLY PREJUDICED DEFENDANT IN THE JURY'S EYES.
C. THE TRIAL COURT PERMITTED THE JURY TO HEAR OF PRIOR BAD ACTS THAT DEFENDANT ALLEGEDLY COMMITTED AGAINST MRS. WOODWARD, ISSUING NO CAUTIONARY INSTRUCTIONS.
D. DISCOVERY VIOLATIONS AND EVIDENCE NOT DISCLOSED TO THE DEFENSE BEFORE TRIAL LIMITED DEFENDANT'S ABILITY TO TEST THE VERACITY OF THE STATE'S PROOFS AT TRIAL.
DEFENDANT'S SENTENCE IS EXCESSIVE AND IMPROPER.
After considering these arguments in light of the record, the briefs, and the applicable law, we are satisfied they do not warrant extended discussion in a written decision. R. 2:11-3(e)(2). Nevertheless, we add these comments.
In his first point, defendant claims he is entitled to a new trial because his attorney was not allowed to cross-examine Deborah about specific instances when she allegedly assaulted or harassed three other women. At trial, defendant's attorney argued the specific instances of misconduct were relevant to show that Deborah was an "angry individual" and a "vindictive person" because defendant had a number of girlfriends during the marriage. In response, the State noted Deborah had not been convicted of a crime as a result of her prior conduct and the proposed testimony involved collateral matters.
The court refused to admit testimony about the three alleged incidents because the prior conduct by Deborah involved "third parties," two of the "prior bad acts" were "ancient history," and there was an insufficient "nexus" between the allegations of prior conduct and the theory that Deborah was motivated to fabricate criminal charges against defendant. The court also ruled the proposed testimony involved "collateral issues."
In our review of a trial court's determination on the admissibility of evidence of other crimes, wrongs, or bad acts under N.J.R.E. 404(b), "we give great deference to the decision of the trial court." State v. Barden, 195 N.J. 375, 390 (2008). We may reverse an evidentiary ruling only if the trial court committed a clear error of judgment. State v. Harvey, 151 N.J. 117, 184 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed. 2d 683 (2000). In the present matter, we agree the proposed testimony involved collateral issues. Moreover, the parties both testified their marriage was effectively over when Deborah contacted the State Police regarding the guns in the house. Under these circumstances, the proposed evidence did not address a disputed issue, and we find neither error nor abuse of discretion by the trial court.
Defendant also contends his ability to test the veracity of Deborah's testimony was compromised because he was never told she would testify that he received two of the guns from two people named "Eric Caso" and "Steve." We recognize, of course, that "an unconstitutional deprivation of due process exists where the State, even in good faith, suppresses evidence favorable to an accused." State v. Laganella, 144 N.J. Super. 268, 282 (App. Div.), (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963)), appeal dismissed, 74 N.J. 256 (1976). In this case, however, the prosecutor did not ask Deborah any questions that prompted this testimony from her and there is no evidence in the record to suggest the State was aware Deborah possessed this information. Rather, as noted by the State, Deborah simply "blurted out" her statement about "Eric Caso" and "Steve." Thus, any error was inadvertent, and in light of the State's proofs, which were substantial, we are satisfied the jury would have reached the same result even if the State had divulged the names of the two individuals who allegedly gave the guns to defendant prior to trial. See State v. Koedatich, 112 N.J. 225, 319 (1988) ("[E]ven if we were to assume arguendo that the trial court erred in admitting the testimony, we would be compelled to disregard such error as harmless.") (citing State v. Macon, 57 N.J. 325, 337-38 (1971)).
In Point II of his brief, defendant argues the trial court imposed an excessive and improper sentence. The court determined that four aggravating factors applied in defendant's case: the nature and circumstances of the offense (because defendant possessed three separate firearms), N.J.S.A. 2C:44-1(a)(1); the risk that he would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of his prior criminal record, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9). The court also found mitigating factor eight, the circumstances were unlikely to recur because defendant was "capable of getting the message," N.J.S.A. 2C:44-1(b)(8).
These findings regarding the aggravating and mitigating factors are supported by the record. Moreover, as the State notes, "the imposition of the mandatory minimum sentence can best be described as lenient."