December 24, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DAVID L. CARR, a/k/a CEDRIC LAWHORN, MICHAEL B. CARR, DAVID STBENARD and DAVID WOODSTON, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 18, 2013.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 09-08-675.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).
Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Fisher and Grall.
Defendant David L. Carr appeals his conviction. In the first stage of a bifurcated trial, the jury found defendant not guilty of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); not guilty of possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(1); and not guilty of possessing a firearm while committing a drug offense, N.J.S.A. 2C:39-4.1a. In the second stage of the trial, the same jury found defendant guilty of possessing a firearm despite having a prior conviction, N.J.S.A. 2C:39-7. The court sentenced defendant to an eight-year term of imprisonment, five to be served without possibility of parole.
Other charges against defendant included in the same indictment were dismissed prior to trial. Those charges were for distribution of a controlled dangerous substance within 500 feet of public housing or a public park, N.J.S.A. 2C:35-7.1, and possession of a firearm without a purchaser identification card, N.J.S.A. 2C:39-5c(1).
The firearm at issue was an operable rifle that was found during a lawful search of an apartment in Glassboro. The apartment was leased to defendant and he resided there; his name was the only name on the lease. The rifle was found in the closet of the master bedroom, as were bullets. More bullets were found in the bureau in that bedroom. No drugs were located in the bedroom.
Defendant was not home when the apartment was searched. When the police entered, there were three adults in the apartment. They were in the bathroom, where drugs were being flushed down the toilet.
At the outset of the second stage of the trial, the defense stipulated that defendant had a conviction for a predicate offense. The prosecution and defense waived argument, and the judge directed that the jurors were required to "consider anew the evidence previously submitted on possession of a weapon." The judge then instructed the jury on the elements of the crime. With respect to possession, the judge directed:
To possess an item under the law, one must have a knowing, intentional control of that item, accompanied by a knowledge of its character; so, a person who possesses a firearm must know or be aware that he possesses it, and he must know what is that he possesses or controls; that is, that it is a firearm.
And, I have given you the instruction on possession twice. We've had some questions on it, and you have a copy of that with you; and I'll give you a copy of this instruction. Does anyone wish me to re-read the possession instruction? I don't see any takers on that either.
On appeal, defendant's attorney raises these issues:
I. THE DEFENDANT'S TRUNCATED TRIAL, DURING WHICH THE DEFENSE COUNSEL MADE NO ARGUMENT IN SUPPORT OF ACQUITTAL, THE PROSECUTOR DID NOT GIVE AN OPENING, AND THE JUDGE FAILED TO CHARGE THE JURY ON THE ONLY CONTESTED ISSUE OF POSSESSION, RESULTED IN A VIRTUAL GUILTY PLEA AND VIOLATED HIS RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL, A FAIR TRIAL AND DUE PROCESS. U.S. Const. [Amends.] VI, XIV; N.J. Const. Art. I, para. 10. (Not Raised Below).
A. The Trial Attorney's Performance was So Inadequate as to Amount to Ineffective Assistance of Counsel.
B. The Prosecutor Violated the Mandatory Court Rule Which Requires the Giving of an Opening Statement.
C. The Trial Judge's Failure to Define "Constructive Possession" in a Case Where Defendant's Alleged Constructive Possession of the Rifle Was the Only Issue in Dispute Deprived the Defendant of a Fair Trial.
In his pro se supplemental brief, defendant argues that the Double Jeopardy Clause of the Fifth Amendment barred his trial on the charge of possessing a firearm in violation of N.J.S.A. 2C:39-7 because the State dismissed the charge of possession of a firearm without a purchaser's identification card and the jury acquitted him of possessing a firearm in the course of committing a drug offense. He also contended that there was an inconsistency in the jury's verdicts on the two firearms charges presented to them
Following our general practice of preserving claims of ineffective assistance of counsel for disposition on a proper petition for post-conviction relief we decline to consider the claims based on counsel's performance State v Preciose 129 N.J. 451 476-78 (1992) Given the acquittals the jury returned after the first stage of the proceeding trial counsel may have had a tactical reason for refraining from presenting any argument and that is a matter that cannot be resolved on the trial record
We have considered the record in light of the remaining issues raised by appellate counsel and by defendant Based on that review we have concluded that defendant's arguments lack sufficient merit to warrant discussion in a written opinion R 2:11-3(e)(2)