October 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID FRANKLIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 08-03-00874 and 08-03-00875.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2011
Before Judges Parrillo, Alvarez and Skillman.
Tried by a jury on a multi-count indictment, defendant David Franklin was convicted of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). He was acquitted of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and a host of lesser offenses. Defendant was also charged in a separate indictment with second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(b), to which he pled guilty. After merging the weapon possession convictions of the first indictment, the judge sentenced defendant to a fourteen-year term with a seven-year period of parole ineligibility as a second-time Graves Act offender, N.J.S.A. 2C:43-6c, to run concurrent with an eight-year term imposed on the other indictment. Defendant appeals and we affirm.
According to the State's proofs, on December 5, 2007, at around 1:45 p.m., Newark Police Officers Aisha Carroll and Janeth Murillo were on patrol in a marked police car. Their attention was drawn to a group of four individuals, including defendant, standing in Lincoln Park. As the officers approached the park in their vehicle, Officer Carroll saw an exchange between defendant and another member of the group. When the officers exited their car, the group began to disperse. Both officers repeatedly yelled to defendant to stop; however, defendant ignored their commands and ran towards Clinton Avenue.
The officers reentered their vehicle and pursued defendant with lights and sirens. When defendant failed to stop, Officer Carroll again exited the vehicle and chased defendant on foot into a vacant lot off of Clinton Avenue, where she again ordered defendant to stop. Instead, according to Officer Carroll, defendant turned around, with a weapon in his hands, and fired a shot at the officer, the bullet passing right by her shoulder. Officer Carroll immediately dropped to her knees and returned two or three shots from a distance of about sixteen feet. A pedestrian, Corey Ferdinand, who was just three or four feet away from Carroll at the time, witnessed the chase as well as defendant turning and firing a bullet that passed between him and Carroll.
After Officer Carroll fired back, defendant fled towards Brunswick Street. The officers pursued defendant and eventually positioned themselves at a nearby occupied six-story apartment complex, separated from an abandoned apartment building by a very narrow alley. Backup arrived quickly, consisting of members of two precincts and several special operations and emergency units. The area was cordoned off, a nearby school was evacuated, and a helicopter eventually arrived.
Over the next several hours, police attempted to apprehend defendant. During this time, Officer Carroll saw defendant jump from the rooftop of the occupied building onto the roof of the vacant structure with a weapon in his hand. Other officers, including Sergeant Anthony Venancio, who took command of the scene, and Officer Joseph Soares, who acted as a sniper, observed defendant on the roof of the vacant building, walking back and forth, and holding a black gun. Detective Anthony Lima saw defendant on the rooftop of one of the buildings with a gun in his hand while the officer himself was on top of the adjacent building a few yards away. Detective Angel Perez also saw defendant on the rooftop waving a gun, as did the bystander Ferdinand.
The police began searching the interior of the buildings, clearing the roofs and making their way downward. They searched the entirety of the occupied building and did not find defendant. On the fourth floor of the vacant building, a locked gate that led to the roof was shot open. As police began searching the vacant building, defendant appeared with a gun on a fire escape on the third-floor level, visible to Lieutenant Kirk Rubel and Officer Soares, the latter from his vantage point, as the sharpshooter, on the roof of the taller building. Even though it was dark outside, the scene was illuminated by street lights and lights from the occupied apartment building. Once the helicopter over the structure spotted defendant with a very bright light, the police ordered him to drop his weapon, which he did. Defendant was then taken into custody. Following his arrest, police examined the scene and located a .40 caliber Glock 27 handgun, identified by Officer Soares as the gun carried by defendant, along with six rounds of ammunition, with one in the chamber, and a magazine that had been inside the gun.
As noted, the jury returned a verdict of not guilty on all counts except for unlawful possession of a weapon and possession of a weapon for an unlawful purpose. On appeal, defendant raises the following issues for our consideration:
I. THE TRIAL COURT'S FAILURE TO PROPERLY INSTRUCT THE JURY ON POSSESSION OF A FIREARM FOR AN UNLAWFUL PURPOSE DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. IV, PARS. 1, 9, 10. (Not Raised Below).
II. THE PROSECUTOR'S FAILURE TO PROVIDE DEFENSE COUNSEL WITH THE DISCOVERY OF AN IDENTIFICATION WITNESS WAS A DISCOVERY VIOLATION AND THE COURT'S REFUSAL TO BAR SAID TESTIMONY DEPRIVED DEFENDANT OF A FAIR TRIAL.
III. THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.
We now address these issues in the order raised.
Defendant contends that the jury instruction did not adequately explain the unlawful purpose suggested by the specific facts of the case and, in any event, the jury's acquittal on the underlying charges of attempted murder and aggravated assault necessarily negated that element of the weapon possession offense. We disagree.
The crime of possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a), consists of four elements:
(1) the object possessed was a 'firearm' within the meaning of N.J.S.A. 2C:39-1(f);
(2) the firearm was possessed by defendant as defined in N.J.S.A. 2C:2-1c; (3) the defendant's purpose in possessing the firearm was to use it against the person or property of another; and (4) the defendant intended to use the firearm in a manner that was unlawful. [State v. Diaz, 144 N.J. 628, 635 (1996).]
Commonly, the State seeks to establish the unlawful purpose on the basis of conduct that is charged as a separate underlying offense such as a robbery or an assault. Id. at 636.
However, acquittal of the underlying crime that ostensibly establishes the purpose does not necessitate reversal of any conviction for possession with an unlawful purpose. State v. Banko, 182 N.J. 44, 53, 56 (2004). Rather, the key consideration is whether the jury instruction adequately explains and identifies the unlawful purpose charged and suggested by the evidence. Banko, supra, 182 N.J. at 58; State v. Petties, 139 N.J. 310, 319-21 (1995).
For instance, in State v. Jenkins, 234 N.J. Super. 311 (App. Div. 1989), we reversed the possession conviction where the defendant was acquitted of aggravated assault because the evidence did not suggest the unlawful purpose charged and the court's instruction allowed the jury to convict "based on their own notion of the unlawfulness of some other undescribed purpose." Id. at 316. In that case, no gun was found and the only evidence of either aggravated assault or possession of a weapon with an unlawful purpose was testimony describing potentially gunshot-like popping sounds from the vicinity of the defendant and alleged victim. Id. at 314. Therefore, if the jury did not convict on aggravated assault, it must not have believed the testimony in fact indicated shots were fired, and thus the only evidence that could support the possession charge was discounted. Id. at 315. To compound the problem, the court's charge improperly allowed the jury to determine on its own what is or is not an unlawful purpose by instructing: "If you feel, for whatever reason, that [the defendant] possessed that gun for an unlawful purpose, be it just to show somebody and scare somebody with, wave it around, then you must find him guilty of that charge." Ibid. (emphasis in original). See also State v. Williams, 168 N.J. 323, 339-41 (2001) (deeming inadequate a charge stating that the alleged unlawful purpose "was to use it unlawfully against the person of [the alleged victim]"; the court held the charge should have specifically referenced the defendant allegedly firing at the alleged victim's car and explained that the defendant's noncompliance with his employer's rules was not an unlawful purpose).
Of course, the court's jury instructions must tie the facts of the case to the alleged unlawful purpose. Petties, supra, 139 N.J. at 319-21.*fn1 In contrast to Jenkins, supra, the evidence in Banko, supra, provided substantiation for the possession with an unlawful purpose conviction in the face of an acquittal on the underlying crime charged. 182 N.J. at 56-57. There, the alleged victim testified that she accompanied the defendant to his apartment and, after some time, he produced a gun and ordered her to submit to sex; after complying with some preliminaries, the victim got the defendant to leave the room momentarily, at which point she fled the apartment. Id. at 47-48. The jury convicted on possession with an unlawful purpose but acquitted on kidnapping, aggravated assault, and attempted aggravated sexual assault. Id. at 52. The Court, in upholding the conviction, explained that the victim's testimony supported a conclusion that the defendant had a gun and had the purpose of confining and assaulting the victim. Id. at 56-57. Recognizing that there was no need to inquire into the precise reasons for the jury's conclusions, the Court nevertheless noted that the jury could have believed only part of the victim's testimony, could have believed the defendant's actions did not fully mature into an attempt at aggravated sexual assault before the victim escaped, could have exercised lenity, or could have come to a compromise among themselves on the several charges. Id. at 57-58.
In other words, verdicts are not truly inconsistent if a jury could have reasonably found the defendant had possessed the weapon for a particular, identified unlawful purpose but failed to actually follow through on that purpose. See State v. Brims, 168 N.J. 297, 304-05 (2001) (finding the evidence sufficient to support jury's conclusion of unlawful purpose where the purpose alleged was commission of either robbery or burglary and evidence showed the defendant and another man were rummaging through a car near stores with a sawed-off rifle and extra clothing suggestive of potential for disguise); Petties, supra, 139 N.J. at 318 (explaining that, where witnesses claimed the defendant went to the home of a man who may have been having an affair with his wife, said he was there "to resolve the situation," told the man he was a "marked" man, pointed a handgun and rifle at several people, and then left, the jury could have concluded that although the defendant, indisputably found by police with the two guns in his car, did not indeed point the guns at anyone, he did go to the house with the purpose of using the guns to threaten them).
In any event, inconsistent verdicts are acceptable in criminal cases as long as there is evidence to support whatever convictions the jury returns. Petties, supra, 139 N.J. at 319. "Review of the sufficiency of the evidence on the guilty verdict is independent of the jury's determination that evidence on another count was insufficient." Ibid.; see also State v. Muhammad, 182 N.J. 551, 578 (2005) ("In reviewing a jury finding, we do not attempt to reconcile the counts on which the jury returned a verdict of guilty and not guilty. Instead, we determine whether the evidence in the record was sufficient to support a conviction on any count on which the jury found the defendant guilty." (citations omitted)); Banko, supra, 182 N.J. at 56 ("We must accept the arguably inconsistent verdicts, and decline to speculate on the reasons for the jury's determination. The only factual assessment required is to ensure that there was sufficient evidence to support the charge for which defendant was convicted."); State v. Gray, 147 N.J. 4, 10 (1996) (A "criminal jury may return illogical or inconsistent verdicts that would not be tolerated in civil trials.").
Here, in its charge to the jury, the court related the unlawful purpose charged by the State to the evidence adduced at trial. Specifically, the judge told the jury that in order to convict on the possession charge, they must find defendant possessed the firearm "in an unlawful manner as charged in the Indictment, and not for some other purpose." The court then went on to explain that "[i]n this case, the State contends that the Defendant's unlawful purpose in possessing the firearm was to shoot Officer Carroll," thus informing them of the specific purpose that they could find. Conversely, the judge instructed the jury that they could not simply use their own sense of unlawful purpose, and reiterated that they must find the particular purpose charged by the State in order to convict on the possession count.
Moreover, the unlawful purpose charged was well supported in the evidence. The proof demonstrated that defendant dropped a gun when eventually spotted by the helicopter. Before that, at least five police officers witnessed defendant waving a handgun during their pursuit of him and one of them, Officer Carroll, testified that defendant fired a shot at her. This testimony was corroborated by a civilian bystander. The proof therefore was more than sufficient for a jury to reasonably find that defendant possessed a firearm with the purpose of shooting at Officer Carroll.
The fact that the jury acquitted defendant of the underlying crimes does not render the possession conviction vulnerable. Indeed, the jury may have believed that defendant turned toward the officer with a gun in hand, intending to shoot at her, but never discharged the weapon. Indeed, defense counsel even suggested that the bullet evidence was planted. Or the verdict may simply have been the result of compromise or lenity. Either way, the court's charge on unlawful purpose was proper and the evidence sufficient to support the possession conviction.
Defendant next argues that the court committed reversible error in allowing Officer Soares to testify because the State failed to disclose his identity and the substance of his testimony. We disagree.
By way of background, when Officer Soares was called to testify, defense counsel objected that he had not been informed in discovery that Officer Soares would testify as an identification witness. The prosecutor responded that all the police officers' names were on the potential witness list. The defense had submitted a discovery request for "reports concerning any and all identifications made of [defendant], [by] either or both police officers listed in the counts." While Officer Soares did not write a report of the incident, he was listed in the written report of Lieutenant Rubel as one of the officers present at the scene, and this report was provided in discovery. Finding no discovery violation, the judge gave defense counsel an opportunity to speak to Officer Soares, and then allowed him to testify over defense counsel's continuing objection. We discern no abuse of discretion in this ruling.
Rule 3:13-3 governs the materials subject to compulsory discovery on both sides. The prosecution must make available to the defense, among other things, "names, addresses, and birthdates of any persons whom the prosecutor knows to have relevant evidence or information including a designation by the prosecutor as to which of those persons may be called as witnesses" and "record of statements, signed or unsigned, by such persons or by co-defendants which are within the possession, custody or control of the prosecutor. . . ." R. 3:13-3(c)(6) and (7). Unlike the case with expert witnesses, where each party must produce a statement of the expert's testimony if no report is otherwise made, Rule 3:13-3(c)(9) and (d)(5), the discovery rules impose no affirmative obligation on the prosecution to make written summaries of potential witness' testimony where no "report" otherwise exists, and provide them to the defense.
Even if there were such an obligation, barring a witness's testimony is the ultimate sanction for a discovery violation, Rule 3:13-3(g), not to be invoked where less drastic remedies exist. State v. Dimitrov, 325 N.J. Super. 506, 511 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Here, there is no suggestion that any discovery lapse by the prosecution was other than inadvertent or that the defense was truly surprised thereby. Indeed, Officer Soares's name was listed in the police incident and continuation reports provided in discovery. Moreover, the court allowed defense counsel a short recess to interview the police officer before he testified and although counsel continued to object, he never indicated he needed more time.
Just as significant, any discovery violation was harmless in light of the totality of the circumstances. Officer Soares was not a witness to the alleged predicate offenses against Officer Carroll, only to defendant's possession of the firearm while he attempted thereafter to evade police pursuit. Moreover, Officer Soares was one of five witnesses who identified defendant as the person with a gun on the roof and then the fire escape of the vacant building, his testimony largely corroborative of that of the other officers. In any event, defendant was in possession of the firearm when ultimately apprehended. For all these reasons then, we conclude there was no abuse of the court's discretion in allowing Officer Soares to testify.
Lastly, defendant argues his sentence was excessive as he would have responded well to probation, a mitigating factor ignored by the trial judge. This argument is without merit.
Here, the judge properly found as aggravating factors: the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of his prior 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). These findings, well supported in the record, are simply incompatible with defendant's contention that he is a good candidate for probation. State v. Briggs, 349 N.J. Super. 496, 505 (App. Div. 2002).
More important, this mitigating factor has no application to a defendant, as here, ineligible for probation because his crime carries a mandatory period of imprisonment. Defendant has two prior weapons convictions and presently stands convicted of two weapons offenses, albeit merged, and the additional offense of possession of a firearm by a convicted felon. He was therefore properly sentenced under the Graves Act, N.J.S.A. 2C:43-6(c), and, because the instant offense was a second Graves Act offense, was subject to a mandatory extended period of incarceration as a first-degree offender. Accordingly, we perceive no warrant to interfere with defendant's sentence.