Opinion
DOCKET NO. A-5204-10T1
11-08-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM HAIRSTON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-10-1473.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant William Hairston appeals his January 12, 2010 conviction of second-degree possession of a handgun by a convicted felon, N.J.S.A. 2C:39-7b. The trial court imposed an eight-year custodial sentence, with a five-year period of parole ineligibility. On appeal, defendant contests the denial of his pretrial suppression motion, the trial court's flight charge, and impermissible statements by the prosecutor during closing arguments. Defendant also argues that his sentence is excessive. We affirm.
I.
We derive the following pertinent facts from the record.
On the night of June 27, 2006, Lieutenant Paul Commodore of the New Brunswick Housing Authority was patrolling the Robeson Village housing complex. At about 11:56 p.m. that evening, Lieutenant Commodore drove past 12 Jennings Court, a unit within the housing complex, where he observed two men sitting on the front stoop of that building. The lieutenant considered the vicinity to be a high-crime area.
Lieutenant Commodore recognized defendant as one of the two men on the stoop, based upon his prior history with defendant. He was generally familiar with the residents of the complex, whose leases were on file in his department. In particular, the lieutenant knew that defendant's mother had previously lived at 12 Jennings Court and was now living in another unit on that same street. The lieutenant also knew that defendant was not a co-tenant on his mother's lease.
According to Lieutenant Commodore, he had twice in the past told defendant not to loiter on the property. The lieutenant had advised defendant that if he was visiting his mother, he should confine himself to that purpose.
Prior to spotting defendant and the other man on the night in question, Lieutenant Commodore had received a tip from a reliable confidential informant, who reported that defendant was carrying a handgun in the neighborhood. The informant indicated that defendant had recently been involved in an altercation with a group of other persons, and that he was carrying the gun for his protection.
Given the prior tip and the knowledge that defendant was not permitted to loiter within the housing complex, Lieutenant Commodore decided to approach defendant. As he stepped out of his squad car, the lieutenant placed himself between 12 Jennings Court and the separate unit where defendant's mother lived. Upon seeing the lieutenant, defendant and the other man left the stoop. The other man walked away, while defendant began walking towards the lieutenant, in the same direction of his mother's unit.
The lieutenant observed that defendant was wearing a short-sleeved, button-down shirt and seemed to be "fumbling" with an object inside his waistband as he was walking towards the officer. When defendant neared the lieutenant at about an arm's-length distance, the lieutenant noticed the butt of a small-caliber handgun protruding from defendant's pants waist. An opening in the bottom tail of defendant's shirt allowed the lieutenant to see the handle of the weapon clearly. Immediately recognizing the protruding item as a weapon, the lieutenant asked defendant to turn around. According to the lieutenant, he considered defendant at this point to not be free to leave.
As defendant was turned around and facing away from him, the lieutenant lifted up defendant's shirt, removed a .38 caliber Smith & Wesson revolver, and secured it in the front seat of his squad car. Lieutenant Commodore then placed defendant under arrest.
After making the arrest, Lieutenant Commodore called the New Brunswick City Police Department for back-up assistance. Police Officer Dean Dakin responded to the call and arrived on the scene within five to ten minutes. Officer Dakin took custody of defendant, and also took possession of the gun, along with five rounds of bullets.
Detective Gary Mayer of the Somerset County Prosecutor's Office, an expert in forensic ballistics, performed a field test of the seized weapon and confirmed that it was in working order. A grand jury thereafter issued the present indictment.
In his trial testimony, defendant explained that around midnight of June 27, 2006, he was smoking a cigarette outside of 12 Jennings Court. According to defendant, he then saw a reflection beneath a nearby car. Upon closer inspection, he recognized the object to be a gun. Defendant testified that he was concerned about the weapon because it was located in an area where children were often around. Consequently, he picked up the gun, allegedly intending to hand it over to authorities. Shortly thereafter, Lieutenant Commodore, who was on patrol, came upon defendant. Defendant testified that when the lieutenant stopped and got out of his patrol car, defendant began walking toward the officer, allegedly so that he could "hand [the gun] over to [Lieutenant Commodore]." According to defendant, at that point, the lieutenant "tackled" and arrested him, before he had an opportunity to explain that he was intending to return the gun.
The jury found defendant guilty of the second-degree offense charged in the indictment. The trial court thereafter imposed the sentence on March 19, 2010. This appeal followed, in which defendant raises the following arguments:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.
POINT II
THE TRIAL COURT'S JURY INSTRUCTIONS ON FLIGHT PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL BECAUSE THERE WAS NO BASIS TO
SUPPORT AN INFERENCE OF A CONSCIOUSNESS OF GUILT SOLELY ON THIS CHARGE.
POINT III
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION. (NOT RAISED BELOW)
POINT IV
THE 8 YEAR BASE CUSTODIAL TERM IS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF THE TRIAL COURT'S SENTENCING DISCRETION.
II.
A.
Defendant first argues that the trial court erred in denying his motion to suppress the warrantless seizure of the handgun. We disagree.
In assessing defendant's argument, we bear in mind that the trial judge at the suppression hearing found Lieutenant Commodore's narrative of events to be credible. We owe substantial deference to that credibility finding, particularly given that the lieutenant's testimony at the hearing was not countered by any other witness. State v. Locurto, 157 N.J. 463, 474 (1999).
Assuming the credibility of the lieutenant's narrative, the circumstances here clearly satisfy the necessary exceptions to the constitutional warrant requirement. First, the lieutenant had ample grounds to perform a field inquiry, having observed defendant at a place where he had been previously told not to loiter and also recalling the informant's tip that defendant was carrying a gun. State v. Nishina, 175 N.J. 502, 510-12 (2003); State v. Stovall 170 N.J. 346, 356 (2002). As the lieutenant got out of his vehicle and initially approached defendant, he did not unreasonably intrude upon defendant's freedom of movement. Cf. State v. Sheffield, 62 N.J 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973). In fact, defendant chose to move in the direction of the officer as he approached.
We reject defendant's argument that under State v. Privott, the lieutenant was required in these circumstances to conduct an independent corroborative effort to verify the truth of the tip. State v. Privott, 203 N.J. 16, 26 (2010) ("When an anonymous tip is involved, additional factors must be considered to generate the requisite level of reasonable and articulable suspicion." (citing Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415-16, 110 L. Ed. 2d 301, 308 (1990))). Here, however, this matter does not involve a police encounter with a defendant based solely upon a tip. The lieutenant knew that defendant had previously been warned to avoid loitering in the housing complex. This was also not an anonymous informant situation, as the informant had provided the lieutenant with reliable information in the past.
As the trial judge correctly found, the officer's ensuing seizure of the handgun was justified under the plain view doctrine. "It is well established that under certain circumstances the police may seize evidence in plain view without a warrant." Coolidge v. New Hampshire 403 U.S. 443, 465, 91 S. Ct. 2022, 2037, 29 L. Ed. 2d 564, 582 (1971). Traditionally, courts have expressed three elements of the plain view doctrine: (1) the officer must lawfully be in the viewing area; (2) the officer must discern the evidence inadvertently, i.e., without knowing in advance where it was located nor intending beforehand to seize it; and (3) it was immediately apparent to the officer that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure. Johnson, supra, 171 N.J. at 206-07.
We recognize that the United States Supreme Court has indicated that the inadvertence element is not required under the Fourth Amendment, although that element may still be required under the New Jersey Constitution. See Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). Cf. State v. Johnson, 171 N.J. 192, 222-23 (2002) (Long, J., dissenting). We shall assume in our analysis that the element still applies.
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These elements are all present here. Lieutenant Commodore, a Housing Authority officer then on patrol, certainly was authorized to be in the location. His observation of the protruding butt of a handgun from defendant's waistband was spontaneous and not planned. Defendant's possession of what seemed to be a gun was immediately apparent. The officer had the right to order defendant to stop, pat him down, and remove the gun, both as contraband and for the officer's own safety. No warrant was constitutionally necessary under these circumstances. Hence, the trial court did not err in denying the suppression motion.
B.
Defendant next contends that the trial judge should not have issued a flight instruction during the jury charge. The pertinent background is as follows.
On direct examination, defendant acknowledged that he had been arrested twice in the past, once on September 26, 2002, and another time on April 22, 2005. Both arrests were for possession of a controlled dangerous substance ("CDS"). The court date set for the second CDS charge stemming from the April 2005 arrest was July 24, 2006. However, following defendant's third arrest — the present June 27, 2006 arrest for the possession of a handgun — defendant fled the jurisdiction and did not appear for that court date.
During defendant's cross-examination at trial, the prosecutor explored his failure to appear in court:
PROSECUTOR:
During the course of those proceedings [following the April 22, 2005 arrest], were you [defendant] ordered, given a Court Order, to come to court; correct?DEFENDANT: Correct.
Q: And were you ordered to come to court on July 24th of 2006, correct, sir?
A: Correct.
Q: Speaking of less than one month after your arrest on this case?
A: Yes. It's pretty much — After the incident with the handgun, I pretty much panicked. So, I didn't show up to anything.
Q? Okay. That's my question. Based upon your arrest, in June of 2006, you panicked; correct?
A: Yes.
Q: And you left the jurisdiction?
A: Yes.
Q: You fled the jurisdiction?
A: Yes.
Q: Based upon that arrest; correct, sir?
A: Correct.
Q: And it wasn't until such time, as you were arrested, for lack of a better phrase, or picked up, found the hard way, in Manhattan; correct?
A: No. I wasn't found in Manhattan. I was in the Bronx. My uncle — Well, I turned myself in. My uncle called the police for me.
Q: Your uncle called the police?
A: Yes.
. . . .
Q: So, based upon your arrest, in this particular case, you fled the jurisdiction for nearly two years?
A: Yes.
[(Emphasis added).]
Based upon this testimony, the State requested the trial judge to issue to the jury the model charge on flight, allowing the jury to consider defendant's prior absence as evidence of consciousness of guilt. Over defense counsel's objection, the judge issued that instruction, tracking the language of the model charge.
Defendant maintains that a flight charge was not warranted in this case. He submits that because he had been facing charges on two other indictments, it cannot necessarily be inferred that his flight to New York was initiated by this particular arrest on July 27, 2006.
We are satisfied that the trial judge properly exercised her authority under State v. Ingram, 196 N.J. 23, 45-50 (2008), and other applicable case law, in administering the flight charge. See, e.g.. State v. Long, 119 N.J. 439, 499 (1990) (explaining that flight of an accused may be "admissible as evidence of consciousness of guilt, and therefore of guilt" (citations omitted)). Defendant's sworn responses on cross-examination provide ample reasonable support for an inference that he fled the jurisdiction because of his arrest in the present case. The jury was entitled to evaluate that potential inference and determine defendant's actual motivation for fleeing. The judge did not abuse her discretion in providing the requested charge. Long, supra, 119 N.J. at 499-500.
C.
During the prosecutor's closing arguments at trial, he made certain comments that defendant now contests for the first time on appeal. The contested passage is as follows:
Prosecutor: [L]ogic dictates, at any given time, [defendant] could, in fact, have relinquished that possession and control of the [revolver]. And, under our law, members of the jury, and based upon the oaths that you folks took, the State has satisfied each and every element, of the offense charged, of the single count of the Indictment. Again, I thank you very much for your time.Defendant argues that these comments were unduly prejudicial and deprived him of a fair trial.
[(Emphasis added).]
To determine whether a prosecutor's allegedly improper comments during summation warrant reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In making this assessment, we must consider the summation as a whole, taking into consideration "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citation omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); Ingram, supra, 196 N.J. at 43 (evaluating the propriety of a prosecutor's summation when "[t]aken as a whole"). We also recognize that the State's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (citation omitted), cert. denied sub nom., Ramseur v. Beyer, 503 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993).
A prosecutor should not advocate to jurors that they would not be "doing [their] job" if they vote to acquit a defendant. United States v. Young, 470 U.S. 1, 29, 105 S. Ct. 1038, 1053, 84 L. Ed. 2d 1, 22 (1985) (Brennan, J., concurring in part and dissenting in part); accord State v. Pennington, 119 N.J. 547, 576 (1988) ("[R]emarks implying that jurors will violate their oaths if they fail to convict or return a death sentence are improper." (citation omitted)). In this regard, we express our disapproval of the prosecutor's improvident reference to the jurors' oaths in the midst of arguing that the State had proven all elements of the crime.
Even so, there is no need to set aside defendant's conviction on this basis. First of all, the prosecutor's improper reference was brief and fleeting. Second, defendant's trial counsel did not object to the remark when it was made. See State v. Vasquez, 265 N.J. Super. 528, 560 (App. Div.), certif. denied, 134 N.J. 480 (1993) (noting that when defense counsel has failed to object to a prosecutor's remarks at trial, "[a] reviewing court may infer that counsel did not consider the remarks to be inappropriate"). Third, the judge issued, as part of the jury charge, the customary instruction advising the jurors that it was their sworn duty, not to convict, but instead to weigh the evidence fairly and to reach a just conclusion based upon all of the evidence. We are satisfied that no serious prejudice could have flowed from the prosecutor's brief verbal mistake.
D.
We need not comment at length about the severity of defendant's sentence. In imposing sentence, the trial judge considered aggravating factors three, six, and nine. See N.J.S.A. 2C:44-1a(3) (the risk that defendant would commit another offense); N.J.S.A. 2C:44-1a(6) (the extent of defendant's record and seriousness of the charge); N.J.S.A. 2C:44-1a(9) (the need to deter defendant and others from violating the law). We agree that all of these aggravating factors appropriately pertain here.
The judge also discussed the mitigating factors the case possibly presented, including a consideration of factors one, eleven, and twelve. See N.J.S.A. 2C:44-1b(1) (the extent that defendant's conduct neither caused nor threatened serious harm); N.J.S.A. 2C:44-1b(11) (the extent that imprisonment of defendant would entail excessive hardship to himself or his dependents); N.J.S.A. 2C:44-1b(12) (the willingness of the defendant to cooperate with law enforcement authorities). The judge rejected all three mitigating factors. In particular, she rejected factor one because the arrest involved a gun that occurred in a housing complex. She explained that she believed this was "a recipe for harm." On the whole, we are satisfied that the judge's analysis was sound.
We discern no error in the trial judge's overall sentencing analysis. Nor do we find that the eight-year custodial sentence with a five-year parole disqualifier was so harsh "as to shock the conscience." State v. Ghertler, 114 N.J. 383, 393 (1989); see also State v. Bieniek, 200 N.J. 601, 612 (2010) (cautioning reviewing courts not to "second[-]guess[]" the sentencing discretion exercised by trial judges); State v. Roth, 95 N.J. 334, 363-64 (1984) (same).
The judgment of conviction and sentence are affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION