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State v. Bass

Superior Court of New Jersey, Appellate Division

June 20, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
DARIUS FRAD BASS, Defendant-Appellant.


Submitted June 4, 2013

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 08-12-1153 and 08-12-1154.

Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Jeremiah E. Lenihan, Assistant Prosecutor, of counsel and on the brief).

Before Judges Fisher and Waugh.


In this appeal, we consider defendant's arguments concerning, among other things, the judge's jury instructions and the form of the verdict sheet. We are satisfied that defendant was prejudiced by the judge's failure to identify for the jury the possible unlawful purpose or purposes on the two counts of possessing a weapon for an unlawful purpose and by the failure of the verdict sheet to allow for a clear expression of the jury's finding on the eluding charge. Finding no error with respect to the other convictions, we affirm in part, reverse in part, vacate the sentence imposed, and remand for further proceedings.

The jury heard evidence that, on September 30, 2008, at approximately 3:00 p.m., John Soriano and his sister, Mary Soriano, were in John's black Audi, stopped at a traffic light on Hillside Avenue in Springfield, when what John described as a silver or gray four-door Nissan or Toyota (later determined to be a Toyota) approached the Audi's left side. A man wearing a black "hoody" and "mask" exited the Toyota's rear right-side door and pointed a "pearlish" white-handled revolver at John's head, demanding that he exit the vehicle. John pushed Mary out the passenger door and then also exited, walking toward the back of the Audi. Another man wearing a "gray hoody" exited the Toyota's rear left-side door and entered the Audi's driver side, while the other culprit entered the Audi's front passenger side. John described the first man as "a dark skinned male, " but he was only able to see part of his face due to the ski mask the man was wearing; John described the second culprit as lighter skinned, about five foot eight or nine inches tall, but he also could not see any facial features because the culprit's face was covered.

John and Mary ran down South Springfield Avenue to a convenience store where John called the police. While speaking with the dispatcher, John noticed a police vehicle enter the store's parking lot while at the same time he saw the Toyota "going in the opposite direction, " and alerted the officer. John also observed that his Audi had not moved, apparently because John had retained the key and the vehicle was immovable without it.

The police officer who had appeared at the convenience store turned his vehicle around and chased the Toyota on South Springfield Avenue. Although he activated his emergency lights, the vehicle did not stop. Other officers joined in the chase as the Toyota weaved in and out of traffic on Springfield Avenue at a high rate of speed. The Toyota eventually rammed into another vehicle, at the intersection of Morris and Maple Avenues, and its two occupants ran from the scene. Two of the officers identified defendant as one of the two occupants of the Toyota and saw defendant throw a handgun onto a nearby roof as he fled. The weapon was retrieved and found to be fully loaded with one hollow point bullet and other regular rounds.

Defendant and Cornell T. Brown were eventually caught and arrested in Irvington. At the time of his arrest, defendant was wearing a white tank top, blue jeans and sneakers. A search of his person uncovered a small bag of marijuana.

Defendant was charged with: first-degree carjacking, N.J.S.A. 2C:15-2 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (count four); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count five); third-degree receiving stolen property, a firearm, N.J.S.A. 2C:20-7 (count six); fourth-degree possession of a hollow point bullet, N.J.S.A. 2C:39-3(f) (count seven); second-degree eluding, N.J.S.A. 2C:29-2(b) (count eight); third-degree receiving stolen property, a motor vehicle, N.J.S.A. 2C:20-7 (count nine); third-degree possession of a weapon, a motor vehicle, for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count ten); fourth-degree possession of a controlled dangerous substance (CDS), marijuana, with the intent to distribute, N.J.S.A. 2C:35-5(a)(1)(b)(12) (count thirteen); second-degree possession of a weapon while committing a CDS offense, N.J.S.A. 2C:39-4.1(a) (count fourteen); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count fifteen).[1] In a separate indictment, defendant was charged with second-degree possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7(b).

A three-day pretrial hearing took place to determine the admissibility of a statement made by defendant to a police officer prior to defendant being fully informed of his Miranda[2]rights. The judge denied defendant's motion to exclude the statement.

A nine-day jury trial regarding the charges lodged against defendant and co-defendant Brown in the first indictment took place in June and July 2010. The jury could not reach a verdict on counts one, two and five (first-degree carjacking, first-degree robbery and fourth-degree aggravated assault), but found defendant guilty on the remaining counts. Defendant thereafter entered a guilty plea to the separate indictment, which charged him with being a person not entitled to possess a weapon, N.J.S.A. 2C:39-7(b).

On October 22, 2010, the trial judge denied defendant's motion for a directed verdict and sentenced him to an aggregate twenty-six-year prison term with a thirteen-year period of parole ineligibility. Specifically, defendant was sentenced to: an extended fifteen-year term, with a seven-and-one-half-year parole ineligibility period, on the eluding conviction; a consecutive three-year term, with an eighteen-month period of parole ineligibility, on the CDS distribution conviction; and a consecutive eight-year prison term, with a four-year period of parole ineligibility, on the conviction for being a person not entitled to be in possession of a firearm. The judge imposed concurrent terms on the other convictions.[3]

Defendant appeals, arguing:

We affirm in part and reverse in part.


Defendant's first point, which argues the judge provided the jury with erroneous instructions, actually presents six particular issues: (a) the shifting of the burden of proof from the State to defendant on the eluding and hollow-point-bullet charges; (b) the judge's failure to identify the unlawful purpose or purposes suggested by the evidence for which the jury could convict defendant of possession of a weapon for an unlawful purpose; (c) the inadequacy of the instructions on direct and circumstantial evidence; (d) the judge's failure at times during the lengthy charge to specifically identify whether a particular charge related to both defendants or only one of the two and, if only one, which one; (e) the confusion resulting from the judge's instruction regarding the simulated use of a gun when he described the elements of armed robbery; and (f) the inadequacy of the instruction that the jurors were not to discuss the matter until so directed.

Defendant made none of these arguments at trial. That circumstance warrants application of Rule 2:10-2, which requires our disregarding of any of these alleged errors "unless . . . of such a nature as to have been clearly capable of producing an unjust result, " although the Rule also recognizes that we "may, in the interests of justice, notice plain error not brought to the attention of" the trial court.

Appropriate and proper jury instructions "are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). A judge is required to "explain to the jury in an understandable fashion its function in relation to the legal issues involved." Ibid. In attempting to demonstrate that a faulty jury instruction constitutes plain error, a defendant must show, as our Supreme Court has said, "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed.2d 797 (1970); see also State v. Chapland, 187 N.J. 275, 288-89 (2006).

Notwithstanding this rigorous standard of review, we are convinced defendant was prejudiced by the judge's faulty instructions regarding the unlawful purpose for which the jury could convict defendant in the charge that he possessed a weapon for an unlawful purpose; we do not reach that same conclusion with regard to defendant's other arguments concerning the jury instructions.


Twice – when charging the jury about the hollow-point-bullet count and later when charging on eluding – the judge misspoke and suggested to the jury that defendant possessed the burden of proof:

If you find that the State had proven all these elements beyond a reasonable doubt, then you must return a verdict of guilty. If on the other hand you find that the defendant has failed to prove any of these elements beyond a reasonable doubt, then you must return a verdict of not guilty.
Finally, if you find that the defendant has failed to prove any of the first six elements beyond a reasonable doubt, then you must find the defendant not guilty of either crime.
[Emphasis added]

The appearance of the emphasized statements in the charge – even in an extremely lengthy charge well in excess of a hundred transcript pages – gives great pause. The Supreme Court of the United States has recognized that the Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged, " In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). The Court explained that this constitutionally "indispensable" standard, id. at 364, 90 S.Ct. at 1072-73, 25 L.Ed.2d at 375, is of

immense importance, both because of the possibility that [the accused] may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.
[Id. at 363-64, 90 S.Ct. at 1072, 25 L.Ed.2d at 375]

The State suggests the judge's misstatements are harmless given the many other instances in the lengthy charge in which the judge correctly instructed the jury that the burden of proof rests always on the State. We are not satisfied that this is a legitimate basis for rejecting defendant's argument even though, as the State argues, the judge correctly stated that the State had the burden of proof beyond a reasonable doubt over twenty times throughout the charge. The accused is constitutionally entitled to have the judge be correct one hundred percent of the time regarding the State's burden of proof beyond a reasonable doubt.

Nevertheless, we reject defendant's argument because the record reveals that the judge provided each juror with a copy of his written instructions, which did not contain the errors cited above, with which to read along as he verbally instructed them. In addition, the jury was given a copy of these written instructions for use during their deliberations. We think it unlikely in the extreme that any juror was misled by the judge misspeaking on two occasions in this lengthy charge when the jury was following along with the correct written charge. Indeed, the fact that neither the prosecutor nor defense counsel recognized that the judge misspoke is further evidence that the judge's error was not capable of producing an unjust result.


Defendant was charged with two counts of possession of a weapon for an unlawful purpose – in one count the weapon was a handgun, in the other it was the Toyota. As for the handgun, the judge charged the jury that:

the State contends that the defendant's unlawful purpose in possessing the firearm was to use it unlawfully against the person or property of another.
You must not rely upon your own notions of the unlawfulness of some other undescribed purpose of the defendant. Rather, you must consider whether the State has proven the specific unlawful purpose charged. The unlawful purpose alleged by the State may be inferred from all that was said or done and from all of the surrounding circumstances of this case. However, the State need not prove that defendant accomplished his unlawful purpose of using the firearm.

And, as to the count involving the Toyota, the judge instructed the jury:

The fourth element that the State must prove beyond a reasonable doubt is that the defendant had a purpose to use the weapon in a manner that was prohibited by law. I have already defined purpose to you. This element requires that you find that the State has proven beyond a reasonable doubt that defendant possessed a weapon with the conscious objective, design, or specific intent to use it against the person or property of another in an unlawful manner as charged in the indictment and not for some other purpose.

[Emphasis added]

In the former instruction, the judge did not specifically identify the unlawful purpose or purposes that the jury could have found was that which defendant possessed; in the latter, the judge merely referred the jury to the indictment. These instructions were inadequate; they require reversal of defendant's convictions and a remand for a new trial on these two counts.

Certainly, the Toyota is an item that may be benignly possessed, and, indeed, possession of a handgun is not always unlawful. N.J.S.A. 2C:39-4 was enacted not to criminalize possession of a weapon but to criminalize possession of a weapon for an unlawful purpose. Specifically, N.J.S.A. 2C:39-4(a) makes it a crime of the second degree to possess a firearm for an unlawful purpose, and N.J.S.A. 2C:39-4(d) makes it a crime of the third degree to possess "any weapon, except a firearm, " here a motor vehicle, for an unlawful purpose. As a result, to obtain a conviction, the State must prove not just possession and the defendant's knowledge or awareness of his control over the object, but also that defendant's "purpose or conscious objective was to use the weapon against the person or property of another" and that defendant "intended to use the weapon in a manner proscribed by law." State v. Villar, 150 N.J. 503, 510 (1997).

The judge here correctly instructed the jury that it might infer an unlawful purpose from the circumstances. State v. Petties, 139 N.J. 310, 316 (1995). And he correctly advised the jurors that they could not rely on their "own notions of the unlawfulness of some other undescribed purpose of the defendant." See State v. Jenkins, 234 N.J.Super. 311, 316 (App. Div. 1989). But, contrary to the Court's holding in Villar, the judge did not identify for the jury the unlawful purpose or purposes that the jury could find from the evidence presented.

In Villar, the Court held that
A jury is not qualified to say without guidance which purposes for possessing a weapon are unlawful and which are not. Therefore, a jury instruction on a charge of possession of a weapon for an unlawful purpose must include an identification of the unlawful purpose or purposes suggested by the evidence and an instruction that the jury "may not convict based on their own notion of the unlawfulness of some other undescribed purpose."

[Id. at 511 (emphasis added) (quoting Jenkins, supra, 234 N.J.Super. at 316)]

Indeed, the failure to provide specificity for the jury was particularly problematic here, where there were a number of possible unlawful purposes for possessing both the handgun and the Toyota among other lawful purposes, and the jury was unable to agree whether two possible unlawful purposes – carjacking and robbery – had occurred. Moreover, there is no way of knowing, due to the inadequate instructions, whether the jury may have convicted defendant of possession of either item for an entirely lawful purpose. As a result, these convictions cannot stand.


Defendant also argues that the judge's instructions on direct and circumstantial evidence were erroneous. Defendant does not argue that what was charged was erroneous, only that the instructions were inadequate because the judge did not give examples to illustrate the meaning of direct and circumstantial evidence. Although examples are always helpful to a jury in ensuring its understanding of the legal concepts charged, we find insufficient merit in the judge's omission of examples in the already lengthy charge to warrant discussion in a written opinion. R. 2:11-3(e)(2). We are also mindful that the judge did provide the jury with an example of circumstantial evidence in his preliminary instructions at the start of the trial.


Defendant additionally argues that, at times, the judge did not distinguish between him and his co-defendant, usually referring only to either "defendant" or "defendants, " and, also, that in discussing some of the counts, the judge used the singular pronoun "he" while referring to both "defendants." We agree that the judge could have been more precise, but we do not agree this in any way prejudiced defendant since, by the time the jury was charged, he was a target of all the remaining counts. That is, if the jury was confused and believed that in using "defendant" the judge was referring to only one of the two defendants, that confusion could inure in defendant's favor because the jury might have thought the judge was referring only to co-defendant Brown when he undoubtedly would have intended to include defendant. This argument is without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).


Defendant further argues that the judge gave the jury an irrelevant instruction regarding the simulated use of a handgun. Even if defendant is correct that this instruction was irrelevant and disconnected from the evidence adduced at trial, the instruction was very brief and could not possibly have prejudiced defendant. Indeed, the simulation instruction was given with respect to the robbery charge for which the jury was unable to convict defendant.


Lastly, defendant argues that the judge failed to advise the jury, when the matter was adjourned for a holiday weekend following the jury charge but prior to the commencement of deliberations, that the jurors were not to yet discuss the case among themselves. It is true that the judge did not give this instruction on that occasion, but he had given that same instruction at the end of each prior trial day and, overall, as many as ten times. It is not likely that the jurors did not understand, after so many warnings and instructions, that they were not to discuss the case among themselves until they returned after the weekend to begin deliberations.


In his second point, defendant contends his right to a fair trial on the eluding charge was prejudiced by the form of the jury verdict sheet. Specifically, defendant argues that the verdict sheet did not provide the jury with the opportunity to define whether it had found defendant guilty of lesser-included offenses. We find reversible error with regard to the form of the verdict sheet, but only as it relates to the eluding conviction.

That is, the judge instructed the jury on the seven elements it was required to find beyond a reasonable doubt to convict defendant of second-degree eluding; he also instructed the jury that if it found proven the first six elements, but not seventh – that defendant created a risk of death or injury to any person – then it could convict defendant of third-degree eluding, N.J.S.A. 2C:29-2(a). The verdict sheet, however, posed only one question: "How do you find defendant . . . as to the charge of [e]luding?" The jury responded, "Guilty." That response was ambiguous because the verdict sheet did not present both second-degree and third-degree eluding and there is no way of knowing – because the matter was not clarified when the verdict was delivered in open court – whether the jury found defendant guilty of second-degree or third-degree eluding.

Defendant was sentenced as if he was convicted of second-degree eluding. Defendant argues, and we agree, that there is no assurance that he was convicted of that offense rather than third-degree eluding. That is, if the jury had concluded that defendant was guilty only of third-degree eluding, it would have expressed itself in no different way.

The State argues that this was harmless error because the evidence supported a finding of second-degree eluding. That there was evidence in the record to support a guilty verdict on second-degree eluding is undoubtedly true. But that is not the question. The question is whether the jury found second-degree or third-degree eluding, and we have no way of knowing – due to the ambiguous form of the jury verdict – which of these offenses the jury found occurred.

The ambiguous verdict cannot form the basis for defendant's conviction of second-degree eluding. State v. Reed, 249 N.J.Super. 41, 50-51 (App. Div. 1991), aff'd in part, rev'd in part, 133 N.J. 237 (1993).[4] We, thus, reverse and remand for a new trial on that count.

Defendant argues that this same problem exists with regard to the jury's findings of guilt on count thirteen (possession of marijuana with the intent to distribute) and counts six and nine (the receiving-stolen-property convictions). We disagree. Although the judge charged lesser-included offenses with regard to those counts, the verdict sheet did not create the same ambiguity as occurred with the eluding conviction. With regard to the CDS conviction, the jury was asked how it found defendant "as to the charge of [p]ossession of a [c]ontrolled [d]angerous [s]ubstance with [i]ntent to [d]istribute"; the jury concluded that defendant was guilty of that offense. That expression cannot be mistaken as possibly referring to a conviction for mere possession of marijuana.

Defendant's similar argument regarding the possibility that the jury found defendant guilty of receiving stolen property in a lesser degree than third degree is also without merit. Defendant argues that the verdict sheet does not make it clear whether the jury made a finding regarding the value of the two stolen items – the Toyota and the handgun. Such a finding, however, is unnecessary. See N.J.S.A. 2C:20-2(b)(2)(b) (declaring that it is a crime of the third degree if "[t]he property stolen is a firearm [or] motor vehicle . . .").


Defendant argues that the trial judge erred in denying his motion to suppress a statement he gave to Springfield Police Officer John Cook shortly after he was arrested but before he was fully or properly Mirandized. The record reveals that Officer Cook approached defendant as he was being led into the police station because Officer Cook was concerned there was an unaccounted for firearm. That is, Officer Cook testified at the suppression hearing that "there were children in the area and [he] was concerned for their safety"; as a result, he asked defendant if he knew "where the second handgun might be because I don't want someone to come across it and pick it up and get hurt." Defendant responded that "[t]he gun you found is the gun I had." The State conceded at the suppression hearing that it could not sustain its burden of proving that defendant had been properly Mirandized.

At the suppression hearing, the judge heard Officer Cook's testimony, as well as other witnesses, on the question of whether defendant's response to Officer Cook fell within the "public safety" exception to Miranda. After sifting through the evidence, the judge found that the public safety exception applied and permitted admission of the statement.

Miranda requires that the "Fifth and Fourteenth Amendments' prohibition against compelled self-incrimination require[] that custodial interrogation be preceded by advice" regarding "the right to the presence of an attorney, " Edwards v. Arizona, 451 U.S. 477, 481-82, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378, 384 (1981), and a waiver of those rights is only valid if it is made "voluntarily, knowingly and intelligently, " Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 707. In New York v. Quarles, 467 U.S. 649, 659 n.8, 104 S.Ct. 2626, 2633 n.8, 81 L.Ed.2d 550, 559 n.8 (1984), the Court recognized a public safety exception, based on the "objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon." "It is a narrow exception, " State v. O'Neal, 190 N.J. 601, 617 (2007), that "will be circumscribed by the exigency which justifies it, " Quarles, supra, 467 U.S. at 658, 104 S.Ct. at 2633, 81 L.Ed.2d at 559.

The judge found Officer Cook was "very credible" in testifying that "he believed he heard Miranda rights being given, although he did not pay attention completely" because "he was performing another task at the time." The judge also found Officer Cook was credible in that he reasonably believed from the various radio communications and other information, which he gathered during the police chase of the Toyota, that more than one firearm was involved. In addition, the record demonstrated that the chase took place through a "heavily residential neighborhood" and many pedestrians, including children, were in the vicinity. Concerned by the safety of the public in light of the potential for a loaded weapon having been discarded – as was the one firearm that was recovered from a roof – the judge found Officer Cook was justified in asking defendant, albeit without certainty as to whether Miranda rights had been given, "where the second handgun might be."

The judge found from this evidence and other testimony he found credible that the public safety exception permitted the admission of defendant's response to Officer Cook. The judge's findings are entitled to our deference because they are fully supported by evidence in the record that the judge found credible. State v. Robinson, 200 N.J. 1, 15 (2009); State v. Locurto, 157 N.J. 463, 470-71 (1999). The judge also applied the correct legal standards in determining that the statement was admissible despite the State's inability to prove that defendant had been fully advised of his constitutional rights before he uttered the statement.

We affirm the order denying the suppression motion substantially for the reasons set forth by the trial judge in his comprehensive and thoughtful oral decision.


We lastly briefly dispense with defendant's Points IV, V and VI.

In his fourth point defendant argues that, because at the time of his arrest he was only in possession of a small quantity of marijuana, his convictions for CDS possession with the intent to distribute and for possession of a weapon in the course of committing a CDS offense were contrary to the weight of the evidence. The jury was entitled to determine from the evidence – particularly that co-defendant Brown was in possession of a large quantity of CDS – that the two were either in joint possession or defendant was in constructive possession of the CDS that was in Brown's actual possession. The point requires no further discussion. R. 2:11-3(e)(2). We also find insufficient merit in Point V to warrant discussion in a written opinion. Ibid.

In Point VI, defendant contends that his sentence was excessive. We need not reach this argument because defendant will have to be resentenced upon the completion of any further proceedings following today's judgment.

To summarize, the order denying defendant's suppression motion is affirmed. Defendant's conviction for second-degree eluding (count eight), second-degree possession of a weapon, a firearm, for an unlawful purpose (count three), and third-degree possession of a weapon, a motor vehicle, for an unlawful purpose (count ten) are reversed and the matter remanded for a new trial. In light of the impact on the overall sentence caused by our rulings, we remand for resentencing on all counts following any further proceedings that occur with respect to those convictions that have been reversed.

Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.

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