On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 09-03-0217.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 21, 2011
Before Judges Cuff and Waugh.
Defendant Brian D. Aitken appeals his conviction for second-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(b) (count one), fourth-degree possession of a large capacity ammunition magazine, in violation of N.J.S.A. 2C:39-3(j) (count two), and fourth-degree possession of prohibited ammunition (hollow nose bullets), in violation of N.J.S.A. 2C:39-3(f)(1) (count three). We reverse the convictions on counts one and two, but affirm the conviction on count three.
We discern the following facts and procedural history from the record on appeal.
On January 2, 2009, Officer Michael Joy of the Mount Laurel Police Department responded to a dropped 9-1-1 call in Mount Laurel. The call had been made by Susan Aitken, Brian's mother.*fn1
She informed Joy that her son had recently left her apartment by car and expressed concern that he might be suicidal. She explained that he had threatened suicide before and that he owned guns, although she did not know whether he had any of them with him. She told Joy that Brian had recently moved back to New Jersey from Colorado.
Joy contacted Brian on his cell phone several times and convinced him to return to Mount Laurel. When Brian arrived, Joy asked if he was suicidal. Brian responded that he was not. Joy then asked whether he had any guns with him. Brian responded that he did not believe so.
After a pat down, Joy requested and received Brian's consent to search his car. Joy found three handguns, hollow nose bullets, and two large capacity ammunition magazines in the trunk.*fn2 Because Brian did not have a permit to carry the weapons, Joy arrested him. Brian was indicted on March 12, 2009.
Brian filed a motion to suppress the evidence resulting from the search of his car and the statements he made to Joy prior to and at the time of his formal arrest. He argued that "his initial detention amounted to an arrest and that he [had been] subjected to questioning prior to the administration of Miranda warnings."*fn3 With respect to the seized evidence, Brian argued that Joy was not justified in seeking his consent to search his vehicle, citing State v. Carty, 170 N.J. 632, 647 (2002) (a police officer must have "reasonable and articulable suspicion" to request a motorist's consent to search his or her vehicle).
The judge held an evidentiary hearing on June 22, 2009, and issued a written opinion denying the motion on June 30. The judge concluded that Joy had a "reasonable and articulable suspicion" under Carty to request consent to search Brian's vehicle, based on the information he received from Susan that she believed Brian was suicidal and that he owned guns. The judge also concluded that Brian made inculpatory statements only after he had orally acknowledged that he understood his Miranda rights.
Brian next filed a motion to dismiss the indictment. He argued that (1) the State failed to offer evidence concerning Brian's moves and then failed to instruct the grand jury that there were federal and state statutory exemptions applicable to the weapons charges, (2) the weapons statutes referred to in the indictment violated the Second Amendment of the United States Constitution under principles enunciated by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), and (3) the statute prohibiting possession of large capacity ammunition magazines violated the ex post facto clauses of the United States Constitution and the New Jersey Constitution.
The judge denied Brian's motion in an oral decision following oral argument on November 30, 2009. He held that "the State had no obligation to present information with regard to" the exemptions when it presented the case to the grand jury. He also held that Heller was not applicable because, unlike the District of Columbia, New Jersey did not ban all guns. Finally, he concluded that Brian lacked standing to challenge the constitutionality of New Jersey's weapons statutes under the ex post facto clause of the United States Constitution.
Brian was tried before a jury over three days, beginning on May 27, 2010. The following evidence was developed at trial.
In September 2007, Brian and his wife Lea moved from New Jersey to Colorado. While living in Colorado, Brian legally purchased the three handguns at issue.
In April 2008, Brian and Lea came to New Jersey with their infant son to visit Susan in Mount Laurel. During the visit, Lea took their son to her mother's home in Toms River. They remained in Toms River and did not return to Mount Laurel or Colorado.
Brian returned by himself to Colorado, where he was employed. Over the next several months, Brian traveled to New Jersey at least three times. He stayed with his parents in Mount Laurel during those visits.
In September 2008, Brian began staying with a friend, Michael Torrice, in an apartment in Hoboken. He was working in New York City. Brian paid Torrice a share of the rent on a month-to-month basis, but his name was not added to the lease. During September, Torrice assisted Brian in moving some of his belongings from his parents' home in Mount Laurel to the Hoboken apartment.
During this period, Brian took weekend trips to visit his parents in Mount Laurel and his son in Toms River. In addition, Brian traveled to his home in Colorado several times.
In November 2008, the Family Part entered an order concerning Brian's parenting time with his son. The order provided for Susan to supervise the parenting time. Consequently, Brian would either drive to Mount Laurel from Hoboken or fly from Colorado, and stay with Susan for the weekend when he had parenting time. Brian would bring clothes, toiletries, and other items with him.
In December 2008, Torrice traveled with Brian to Colorado and picked up some of Brian's belongings to bring back to New Jersey. During this visit, Torrice observed that most of Brian's Colorado belongings were "packed up." In mid-December, Brian told Torrice that he intended to move out of the Hoboken apartment and live in Mount Laurel because of his finances.
However, after he started the move from Hoboken to Mount Laurel, Brian decided that he could stay in the Hoboken apartment and began moving his belongings back there.
Torrice saw Brian's weapons only once, while Brian was living in Hoboken. He did not know the exact date or where Brian kept them in the apartment.
According to Torrice, Brian made four "separate moves": (1) Colorado to Mount Laurel; (2) Mount Laurel to Hoboken; (3) Hoboken to Mount Laurel; and (4) Mount Laurel to Hoboken. Each time he moved, Brian would transfer his belongings by car. Susan and Torrice were not sure where Brian would reside permanently because of his uncertain job prospects and his need to have parenting time with his son. According to Torrice and Susan, as of the beginning of January 2009, Brian had residences and spent time in Colorado, Hoboken, and Mount Laurel. He had personal belongings in all three locations.
On Thursday, January 1, 2009, Brian traveled to Mount Laurel to pack up some of his belongings to move them to his Hoboken apartment. On Friday, January 2, Brian returned to Mount Laurel in anticipation of parenting time in Toms River the following day. At some point that evening, Lea cancelled Brian's parenting time on Saturday.
After he learned about the cancellation, Brian made statements to Susan that caused her concern that he might harm himself. Susan made a call to 9-1-1, but dropped the call for reasons not reflected in the record. Brian left the Mount Laurel house "not long" after Susan placed the 9-1-1 call. According to Susan, Brian left because she had called 9-1-1 and he was "afraid."
Joy was dispatched to Susan's house to investigate the dropped call. He found Susan upset and worried about her son. He also learned that Brian owned guns, although Susan did not know whether he had them with him. Based upon their conversation, Joy issued a general radio bulletin to surrounding police departments about a possibly suicidal person.
Joy obtained Brian's cell phone number from Susan and contacted him. Brian, who told Joy he was in Philadelphia, assured him that he was not suicidal. At Joy's request, Brian agreed to return to the house in Mount Laurel.
After Brian returned to Mount Laurel, Joy asked him if he was suicidal and then asked whether he had any guns. According to Joy, Brian responded that he did not have any on his person and he did not believe he had any in the vehicle. When Joy searched the trunk with Brian's consent, he found the three handguns, ammunition, and magazines in a shoebox. The car was packed with other possessions, including clothes, a briefcase, one or two duffle bags, and a backpack.
Joy testified that Brian subsequently told him that he had forgotten the guns were in the trunk because he was in the process of moving from Colorado to Hoboken, but later said that he had wanted to get the guns out of Hoboken because Torrice was having a party at the apartment.
At trial, Joy identified some of the ammunition as hollow nose point bullets and two of the magazines as capable of containing sixteen rounds of ammunition. He testified that he had counted sixteen rounds as he emptied the two magazines when they were seized, and he filled one of them in the presence of the jury. Joy acknowledged, however, that he did not test fire the weapons or the hollow nose bullets, and that he did not test the sixteen-round magazines by using them in any weapon. It was stipulated at trial that the guns were legally purchased by Brian in Colorado, but that he did not have a permit to carry them in New Jersey.
At the close of the State's case, Brian moved for a judgment of acquittal on all counts. The trial judge denied the motion. Brian then presented testimony from Torrice and his father.
At the charge conference, the judge denied Brian's application that he charge the federal exemption because it was "duplicative" of the New Jersey exemption and unnecessary.*fn4
However, the judge subsequently denied Brian's application that he charge the New Jersey exemption, finding that it was factually inapplicable.
During deliberations, the jury asked about the exemptions, which had been mentioned during the trial despite the fact that they were not charged.*fn5 The judge responded that the evidence did not warrant consideration of the exceptions. The jury sent a second request: "When can you transport a weapon in your car without a permit?" The judge again instructed the jury that, although there are exemptions, he had determined, as a matter of law, that the exemption did not apply. When the jury asked about the exemptions a third time, the judge reiterated that the exemptions did not apply and that the jury should not consider counsel's arguments concerning them. The jury subsequently returned a verdict of guilty on all three counts of the indictment.
On August 27, 2010, Brian appeared before a different judge for sentencing. The sentencing judge found that aggravating factor nine applied, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant specifically and the public generally), but that it was offset by mitigating factors seven, N.J.S.A. 2C:44-1(b)(7) (no history of prior delinquency or criminal activity), eight, N.J.S.A. 2C:44-1(b)(8) (defendant's conduct was result of circumstances unlikely to recur), nine, N.J.S.A. 2C:44-1(b)(9) (defendant is unlikely to recidivate), and ten, N.J.S.A. 2C:44-1(b)(10) (defendant would respond affirmatively to probationary treatment).
The judge sentenced Brian to incarceration for seven years on count one, three years without the possibility of parole, as required by the Graves Act, N.J.S.A. 2C:43-6. On counts two and three, the judge sentenced Brian to nine months incarceration, both concurrent to the sentence on count one and to each other. He imposed the required fines and penalties. This appeal followed.
While the appeal was pending, Brian sought and was granted a gubernatorial commutation of his sentence, which was reduced to time served as of December 20, 2010.
Brian raises the following issues on appeal:
POINT 1: THE COURT BELOW ERRED BY FAILING TO PROVIDE JURY INSTRUCTIONS ON THE STATE AND FEDERAL EXEMPTIONS FOR THE LAWFUL ...