June 24, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TORRENCE THOMPSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-07-1819.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 24, 2011
Before Judges Yannotti, Espinosa and Skillman.
Defendant Torrence Thompson was tried before a jury and found guilty of second-degree unlawful possession by certain persons not authorized to have a firearm, in violation of N.J.S.A. 2C:39-7(b)(1). Defendant appeals from the judgment of conviction entered on October 23, 2009. For the reasons that follow, we affirm.
I. On July 30, 2008, defendant was charged in Atlantic County Indictment No. 08-07-1819, with second-degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b) (count one); second-degree certain persons not authorized to have a firearm, in violation of N.J.S.A. 2C:39-7(b)(1) (count two); third-degree hindering apprehension, in violation of N.J.S.A. 2C:29-3(b)(1) (count three); and fourth-degree obstructing the administration of the law, in violation of N.J.S.A. 2C:29-1 (count four). Prior to trial, the State agreed to dismiss counts one, three and four. Defendant was thereafter tried before a jury on the remaining charge.
At the trial, Officer George Adams (Adams) of the Atlantic City Police Department testified that at approximately 2:23 a.m. on June 12, 2008, he was dispatched to investigate suspected criminal activity in the City. Adams observed defendant walking on Grant Avenue. Adams said that when defendant saw the lights on his police vehicle, he "froze for a minute and grabbed his waistband and ran." Adams called out to defendant and told him to stop. Defendant continued running, and Adams followed him in his patrol car down Grant Avenue into a driveway on North Ohio Avenue.
Adams testified that he saw defendant "thr[o]w the gun and jump the fence" which was about twelve feet in height. Adams sent a radio transmission indicating that defendant "took off" and he provided defendant's physical description. Adams retrieved the gun, which he said was a .357 Magnum caliber Smith & Wesson revolver. Defendant was not apprehended. Defendant left the State the following day and went to Texas.
Adams further testified that he had known defendant for six years through his step-father, Dwayne Martin, Sr. (Dwayne Sr.). According to Adams, Dwayne Sr. is a friend of his former brother-in-law, Harold Coursey (Coursey). From time to time, Adams visited the firehouse where Coursey worked and, over the years, came to know defendant. Adams identified the handgun that he recovered from the driveway on North Ohio Avenue.
Lieutenant James Storey (Storey) of the New Jersey State Police Ballistics Unit was qualified as an expert in the operation of firearms. He testified that on June 20, 2008, he examined the handgun that Adams had recovered. Storey stated that the gun he tested had the same make, model and serial number as indicated on the evidence receipt received by the laboratory.
Storey further testified that the gun had been disassembled into three pieces: the firearm, the mainspring and the monogrip. Storey explained that the mainspring provides the force for the gun's hammer. He noted that the gun could have been disassembled for any number of reasons. Storey reassembled the handgun, loaded it with two rounds and discharged them both. Storey testified that the gun functioned properly.
Defendant's mother, Yvonne Martin (Yvonne), Dwayne Sr. and Dwayne Martin, Jr. (Dwayne Jr.) testified as defendant's alibi witnesses. The family had moved out of their house on June 4, 2008, after a series of shootings. On June 12, 2008, they were living with defendant in a hotel room.
Yvonne testified that defendant never left the hotel room at night. Dwayne Sr. stated that defendant was in the hotel room "every night." Dwayne Jr. testified that defendant never left the room at night. Dwayne Sr. also testified that he met Coursey at the firehouse on occasion with his son Dwayne Jr. but not with defendant. He did not recall seeing Adams at the firehouse.
Defendant testified on his own behalf. He stated that he does not "carry weapons[,]" "never had [a] gun," had never seen Adams, and was not in Atlantic City at the time Adams claimed to have seen him. He stated that he had never been introduced to Adams.
In addition, defendant said that he went to Texas on June 13, 2008, because his family had been "in fear of [his] life." He was "scared" because on March 11, 2008, he had been shot. Defendant stated that a gun was fired at his mother's truck, and his family's house "got shot up bad."
Defendant further testified that he had no knowledge of the charges pending against him until he was in Texas. His mother contacted him and told him that she had received a letter from his probation officer, which stated that he had violated the conditions of probation because he had a new charge. Defendant asserted he could not have jumped the fence to run away from the police on June 12, 1008, because of the injuries he had sustained when he was shot.
The parties stipulated that on July 23, 2007, defendant pled guilty to possession of a controlled dangerous substance (CDS) with intent to distribute. The parties also stipulated that on October 5, 2007, the court sentenced defendant to three years of probation, conditioned on his service of 364 days in the county jail.
As we noted previously, the jury found defendant guilty of second-degree certain persons not to possess a firearm, contrary to N.J.S.A. 2C:34-7(b)(1). The court later sentenced defendant to seven years of incarceration, with a five-year period of parole ineligibility. This appeal followed. Defendant raises the following arguments for our consideration:
THE TRIAL COURT ERRED IN FAILING TO SET ASIDE THE VERDICT OF THE JURY AS AGAINST THE WEIGHT OF THE EVIDENCE, VIOLATING DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10) (Not Raised Below.)
THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF N.J.S.A. 2C:39-7[A] (POSSESSION OF A WEAPON BY CERTAIN PERSONS), VIOLATING DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. (Not Raised Below).
THE TRIAL COURT ERRED IN ADMITTING THE GUN INTO EVIDENCE IN A DISASSEMBLED STATE WITHOUT A SUFFICIENT EVIDENTIARY FOUNDATION. (Partially Raised Below).
THE TRIAL COURT ERRED BY EXCEEDING THE LIMITATIONS SET BY STATE V. SILVA [131 N.J. 438 (1993)] IN ALLOWING THE PROSECUTOR TO CROSS-EXAMINE DEFENDANT'S MOTHER, BROTHER AND STEPFATHER AS TO THE DATE ON WHICH THEY PROVIDED STATEMENTS SUPPORTING DEFENDANT'S ALIBI. (Partially Raised Below).
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED BY THE PROSECUTOR'S IMPROPER COMMENTS IN SUMMATION VOUCHING FOR THE CREDIBILITY OF OFFICER ADAMS, THE STATE'S PRINCIPAL WITNESS, AND APPEALING TO HIS TRUSTWORTHINESS AS A POLICE OFFICER. (Not Raised Below).
DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW WAS VIOLATED BY THE CUMULATIVE WEIGHT OF THE ERRORS COMMITTED BY THE TRIAL COURT. (Not Raised Below).
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT WITHOUT CONSIDERATION OF APPLICABLE MITIGATING FACTORS AND ITS SENTENCE SHOULD BE REDUCED AS MANIFESTLY EXCESSIVE.
II. Defendant argues that the trial court should have set aside the jury's verdict as against the weight of the evidence. Defendant did not file a motion for a new trial on this ground. Thus, his argument that the jury's verdict is against the weight of the evidence is not cognizable on appeal. R. 2:10-1. In any event, this argument is entirely without merit.
A court may not set aside a jury verdict as against the weight of the evidence unless, considering the jury's opportunity to assess the credibility of the witnesses, it clearly and convincingly appears that there has been a manifest denial of justice. State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997). "On a motion for a new trial, the objective is not to second-guess the jury but to correct the injustice that would result from an obvious jury error." Ibid.
We must respect the jury's determination unless a reasonable jury could not have reached such a verdict. State v. Afanador, 134 N.J. 162, 178 (1993). When considering a motion to set aside the verdict, the court must review the evidence to determine "whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." Ibid. (quoting State v. Carter, 91 N.J. 86, 96 (1982)).
Here, defendant was convicted of second-degree unlawful possession by certain persons not authorized to have a firearm, specifically a handgun, contrary to N.J.S.A. 2C:39-7(b)(1). The parties stipulated that defendant had a prior conviction for one of the predicate crimes enumerated in the statute. Therefore, the key issue for the jury was whether defendant was the person who possessed the firearm on June 12, 2008.
Defendant argues that no reasonable jury could have found beyond a reasonable doubt that he possessed the firearm because Adams's identification of him was "highly suspect." However, Adams testified that he saw defendant with the gun and he positively identified him in court. The jury obviously found Adams's testimony more credible than the testimony of defendant and his alibi witnesses.
Where, as here, a jury's verdict is based on its assessment of the witnesses' credibility, the verdict cannot be set aside unless there is clear evidence of "a mistake, partiality, passion or prejudice." State v. Haines, 20 N.J. 438, 447 (1956). We are satisfied that there is no such evidence in this record. We therefore conclude that the trial court did not err by failing sua sponte to set aside the jury's verdict as against the weight of the evidence.
III. Next, defendant argues that the trial court erred by failing to charge fourth-degree certain persons not permitted to possess a weapon, contrary to N.J.S.A. 2C:39-7(a). This argument was not raised in the trial court. We therefore consider whether the absence of the instruction was erroneous and, if so, whether it was an error "clearly capable of producing an unjust result." R. 2:10-2.
If, as in this case, a defendant does not request the instruction, the "trial court has an independent obligation to instruct on [a] lesser-included charge when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). "[C]learly indicate[d]" means that "the evidence is jumping off the page[.]" State v. Denofa, 187 N.J. 24, 442 (2006).
N.J.S.A. 2C:39-7(b)(1) provides in pertinent part that a person who has been convicted of a drug offense pursuant to N.J.S.A. 2C:35-3 through N.J.S.A. 2C:35-6 is guilty of a second-degree offense if he purchases, owns, possesses or controls a "firearm." Here, the parties stipulated that defendant had previously been convicted of possession of CDS with intent to distribute in violation of N.J.S.A. 2C:35-5. Moreover, the State presented evidence from which a rational jury could find beyond a reasonable doubt that on June 12, 2008, defendant was in possession of a handgun, specifically a .357 Magnum caliber Smith & Wesson revolver.
Defendant argues that the trial court erred by failing to instruct the jury that, in lieu of finding defendant guilty of violating N.J.S.A. 2C:39-7(b), it could find defendant guilty of violating N.J.S.A. 2C:39-7(a). N.J.S.A. 2C:39-7(a) provides in pertinent part that:
Except as provided in subsection b. of [N.J.S.A. 2C:39-7], . . . any person who has been convicted of other than a disorderly persons or petty disorderly persons offense for the unlawful use, possession or sale of a controlled dangerous substance as defined in N.J.S.A. 2C:35-2 who purchases, owns, possesses or controls any of the said weapons is guilty of a crime of the fourth degree. [(Emphasis added).]
A violation of N.J.S.A. 2C:39-7(a) is not a lesser included offense of N.J.S.A. 2C:39-7(b) because N.J.S.A. 2C:39-7(a) exempts from its coverage those persons who satisfy the elements of N.J.S.A. 2C:39-7(b). Therefore, persons who have been convicted of the offenses enumerated in N.J.S.A. 2C:39-7(b) may not be convicted of violating N.J.S.A. 2C:39-7(a).
Defendant nevertheless argues that the trial court should have charged the jury under N.J.S.A. 2C:39-7(a) because the State failed to present sufficient evidence to establish that the handgun presented at trial was operable as a "firearm," as that term is defined in N.J.S.A. 2C:39-1(f). We disagree.
The State presented sufficient evidence which established that the handgun Adams recovered met the definition of a "firearm" under N.J.S.A. 2C:39-1(f). Although Storey testified that the gun was operable, such evidence was not required. An object is considered a "firearm" based on its original design, not its operability. State v. Gantt, 101 N.J. 573, 584 (1986). Therefore, the evidence did not "clearly indicate" that the jury could find the handgun was not a "firearm" as defined in N.J.S.A. 2C:39-1(f). Even if it did, the evidence would not warrant a charge under N.J.S.A. 2C:39-7(a) because, as we have explained, that statute does not establish a lesser-included offense to the offense established by N.J.S.A. 2C:39-7(b).
IV. Defendant also argues that the trial court erred in certain of its evidentiary rulings.
Defendant contends that the court erroneously admitted the handgun into evidence because the State failed to establish an uninterrupted chain of custody for all three components of the gun. He concedes that the "body of the firearm" was properly admitted into evidence but asserts that the State failed to establish that the mainspring was part of the gun that Adams recovered.
"A party introducing tangible evidence has the burden of laying a proper foundation for its admission." State v. Brunson, 132 N.J. 377, 393 (1993). "That foundation should include a showing of an uninterrupted chain of possession." Ibid. The evidence should be admitted if the court "'finds in reasonable probability that [it] has not been changed in important respects or is in substantially the same condition as when the crime was committed.'" Id. at 393-94 (quoting State v. Brown, 99 N.J. Super. 22, 28 (App. Div.), certif. denied, 51 N.J. 468 (1968)).
At the trial, Adams identified the gun as the one he recovered from the scene. Furthermore, Storey testified that all three pieces of the gun were part of the handgun he previously tested for operability. In our view, the State laid a sufficient foundation for admission of the gun into evidence.
Defendant also contends that the trial court erred by allowing the assistant prosecutor to cross-examine his alibi witnesses regarding their delay in providing the police with evidence that might exculpate defendant.
"[I]f a witness appears to know of the charges and would naturally be expected to have come forward with the alibi testimony, the witness may be cross-examined about those circumstances of non-disclosure." State v. Silva, 131 N.J. 438, 442 (1993). The State must lay a foundation for such questioning by establishing that the witness was aware of the nature of the charges pending against the defendant, had reason to know that he or she had exculpatory information, and had a reasonable motive for providing such information to law enforcement. Id. at 446-47.
Defendant contends that the State failed to lay the foundation required by Silva. We do not agree. Here, the trial court conducted a N.J.R.E. 104 hearing and the testimony presented during the hearing established that: 1) the alibi witnesses knew in June or July of 2008 that charges had been filed against defendant; 2) they knew that they had information that might exculpate defendant; and 3) they had a reasonable motive to provide that information to the police. We are satisfied that, in light of that evidence, the trial court correctly found that the State could cross-examine the witnesses as to why they did not provide the police with the exculpatory information earlier than January 2009, when they provided their statements to the police.
V. Defendant additionally argues he was denied a fair trial because of certain statements made by the assistant prosecutor in his summation. Defendant contends that the following remarks were improper:
And that's what this case is about as I told you from the beginning. It's about two people. This defendant, with a prior conviction, being caught with a gun and Officer George Adams. A lifelong resident of Atlantic City, a 14-year veteran of the Atlantic City Police Department, [who] swore an oath 14 years ago to serve and protect the public. That's who he is.
The prosecutor added that "Officer Adams is an officer that you can trust. His credibility is solid."
In our view, the first part of the prosecutor's remarks was not improper. It was simply an argument that Adams's testimony was more worthy of belief that defendant's testimony. However, the prosecutor improperly implied that Adams's testimony should be believed because he is a policeman who had sworn an oath fourteen years earlier "to serve and protect the public." In addition, the assistant prosecutor improperly vouched for Adams's credibility.
We note that defendant's attorney did not object to the prosecutor's remarks when they were made, thereby indicating that the remarks were not unduly prejudicial. State v. Echols, 199 N.J. 344, 361 (2009). Moreover, we must consider the fact that the prosecutor' remarks were in response to the defense counsel's summation, which was a direct attack upon Adams's credibility. State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied sub. nom., State v. Pantoja, 169 N.J. 610 (2001).
We are satisfied that the prosecutor's errant comments, when viewed in the context of both closing arguments and the trial record as a whole, were not so egregious as to deprive defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 435-38 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
VI. We turn to defendant's contention that the trial court imposed an excessive sentence because it failed to consider and give weight to certain mitigating factors.
The trial court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court noted that, in addition to his prior convictions as an adult, defendant had an extensive juvenile record, which included twenty-two arrests and several adjudications. The court found no mitigating factors and determined that the aggravating factors outweighed the mitigating factors.
Defendant contends that the trial court should have found mitigating factor two, N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his conduct would cause serious harm to any person); and four, N.J.S.A. 2C:44-1(b)(4) (circumstances tending to justify and excuse the offense, although not rising to the level of a defense). Defendant maintains that the trial court erroneously failed to consider the fact that he was shot and seriously wounded several months before he committed the instant offense, and the fact that bullets had been shot at his family's home and his mother's truck. Defendant also points out that he was charged only with possession of the handgun, not its use.
We find no merit in these contentions. Defendant's prior conviction for possession of CDS with intent to distribute placed him within the class of persons who are not permitted to purchase, possess, use or own a firearm. Defendant nevertheless possessed a loaded handgun. Furthermore, defendant discarded the loaded firearm and ran away. His conduct could have caused serious harm.
Moreover, while defendant may have been fearful as a result of the recent shootings, this did not justify or excuse the offense. On the date of the incident, defendant and his family had moved from their residence to another location, with the assistance of the police. Thus, defendant appeared to be out of harm's way at the time he committed the offense.
We are accordingly satisfied that defendant's sentence is not manifestly excessive or unduly punitive, is not an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
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