Opinion
DOCKET NO. A-4495-13T3
05-27-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. QUAYSHAWN MACK, a/k/a DERRICK JOHNSON, Defendant-Appellant.
John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief). Stephanie Davis-Elson, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Jennifer J. Ljungberg, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and St. John. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-07-1337. John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief). Stephanie Davis-Elson, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Jennifer J. Ljungberg, Assistant Prosecutor, on the brief). PER CURIAM
Defendant was found guilty of unlawful possession of a weapon and sentenced to five years of incarceration, with three years of parole ineligibility. Defendant appeals from the judgment of conviction dated September 6, 2013. We affirm.
I.
We briefly summarize the pertinent facts. On September 23, 2011, at 11:40 p.m., Jersey City Police Department (JCPD) officers Michael Meade and Mark Hennessey responded to a "shots fired" call in the area of Rutgers Avenue in the city. Meade and Hennessey were monitoring the radio in high crime areas as part of their assignment to the Violent Crimes Unit. Both officers were dressed in plain clothes and were driving an unmarked police vehicle.
On the sidewalk in front of 75 Rutgers Avenue, the officers found a crashed, white sports utility vehicle (SUV) with the doors open and the engine running. The officers exited their vehicle. A woman in the area signaled to Meade and told him, "Two black males ran that way from the car. One was wearing a grey hooded sweatshirt and blue jeans." As she spoke with the officer, the woman pointed westbound on Warner Avenue.
The officers immediately returned to their vehicle and pursued the suspects. They drove northbound on Rutgers Avenue and turned left onto Warner Avenue. While driving along Warner Avenue, the officers spotted an individual, who was later identified as defendant. He matched the woman's description. Defendant saw the officers and began to run. The officers pursued defendant in their vehicle. Meade pulled out his flashlight. He pointed the light in defendant's direction and stated, "Stop, Police" multiple times. Defendant continued running.
Meade then observed defendant throw a black handgun into a curbside trash can on Warner Avenue. Meade said he had an unobstructed view of defendant and the area was lit by a street light and his flashlight. No one else was near the trash can. Meade did not stop to retrieve the handgun or secure the trash can. Meade noted that individuals often are in possession of multiple weapons.
Defendant kept running westbound on Warner Avenue and then crossed over Martin Luther King Drive. The officers continued to follow defendant in their vehicle. Meade again shouted to defendant to stop running. Meade then observed another individual run out of an apartment building on Warner Avenue and catch up with defendant near a bar on the corner of Warner Avenue and Martin Luther King Drive. Defendant and the other individual "stepped in and then stepped right out" of the bar. Immediately thereafter, the officers apprehended defendant and the other individual.
Meade arrested defendant and searched him. Meade recovered a black ski mask from the front pocket of defendant's hooded sweatshirt. Hennessey interviewed the other individual, verified his alibi, and allowed him to leave. The officers did not believe that the other individual was involved in the firing of the shots. Meade testified that the JCPD was unable to locate the other occupant of the SUV and could not identify the target of the shots fired.
By the time Meade and Hennessey apprehended defendant, other JCPD officers responded to the area, including Sergeant Timothy O'Brien, who was Meade's and Hennessey's supervisor. Meade told O'Brien about the handgun and the location of the trash can on Warner Avenue. O'Brien located the trash can and recovered the handgun.
Meade went to that location. He identified the trash can and the handgun. The trash can did not contain anything other than the gun. The handgun was a .38 special revolver with a black grip and was loaded with five spent shell casings. Meade testified that "a couple of minutes" had elapsed between the time he observed defendant discard the gun into the trash can and the time it was recovered.
Police Detective Antonio Badim, a ballistics expert, confirmed that the handgun was operable. Badim also confirmed that the five shell casings had been fired from the handgun. The handgun was not tested for DNA or fingerprints because Meade had seen defendant discard the weapon into the trash can. The officers determined that defendant did not have a license to carry the weapon, and he was a minor.
After the Family Part waived jurisdiction, a Hudson County grand jury charged defendant with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count one); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count two); and fourth-degree possession of a weapon by a minor, N.J.S.A. 2C:58-6.1 (count three).
The trial court thereafter dismissed count three, and defendant was tried before a jury on counts one and two. After both sides rested, the court dismissed count one. The jury found defendant guilty on count two, charging unlawful possession of a weapon.
Defendant appeals and argues:
POINT I
THE REMARK BY THE PROSECUTOR DURING OPENING STATEMENTS THAT THE VAN WAS STOLEN, REINFORCED BY MEADE'S TESTIMONY OF SAME, CONSTITUTED PROSECUTORIAL MISCONDUCT, THEREBY DENYING MR. MACK OF A FAIR TRIAL, U.S. CONST. Amend. XIV; N.J. Const. ART. I, PARA.
POINT II
THE PROSECUTORIAL MISCONDUCT OF INFORMING THE JURY THAT THE VAN WAS STOLEN AND THE JUDICIAL ERROR OF ADMITTING THE SKI MASK INTO EVIDENCE CONSTITUTED INADMISSIBLE OTHER-CRIMES EVIDENCE UNDER N.J.R.E. 404b, THEREBY DEPRIVING MR. MACK OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V. VI AND XIV; N.J. Const. ART I, PARS. 1, 9 AND 10.
POINT III
MEADE'S HEARSAY TESTIMONY, COMPOUNDED BY THE PROSECUTOR'S OPENING STATEMENT EXPRESSING THE SAME HEARSAY, AND THE HEARSAY OF THE WOMAN AT THE SCENE VIOLATED MR. MACK'S CONSTITUTIONAL RIGHTS TO CONFRONT WITNESSES AGAINST HIM. U.S. CONST. AMENDS. VI, XIV; N.J. Const. ART I, PARAS. 1, 10.
II.
As noted, defendant argues that the assistant prosecutor's remark in her opening statement, and Sergeant Meade's testimony that the SUV was stolen, constituted prosecutorial misconduct which denied defendant of his right to a fair trial. We disagree.
At trial, during her opening statement, the assistant prosecutor described the facts the State intended to prove. The assistant prosecutor stated the SUV had been stolen. The assistant prosecutor also referred to the female witness's statement to Meade. Defense counsel did not object to these remarks, request curative action, or move for a mistrial. Instead, during his own opening statement, defense counsel responded to the prosecutor's comments by directing the jury's attention to the gun charges, and stating that the female witness would not be testifying at trial.
Meade was the State's first witness. During his direct examination, Meade testified that, sometime after the incident, the JCPD determined the SUV had been stolen. Defense counsel did not object to this testimony, request a curative instruction, or move for a mistrial. However, when the State moved to admit the handgun into evidence, defense counsel asked to be heard at side bar.
At side bar, the judge noted that he had not been informed that the SUV was stolen. The judge suggested a curative instruction. Defense counsel agreed and stated that he had intended to request such an instruction before cross-examining Meade.
After Meade's direct examination ended, the judge excused the jury and again mentioned the need for a curative instruction. Defense counsel agreed. The judge summoned the jury back into the courtroom and issued the instruction. The judge told the jury:
Okay. Folks, one thing I want to just point out to you. During the testimony you heard or during the [p]rosecutor's opening statement, information came out that that car in the photograph, S-10 — information came out that the car was, in fact, stolen.
What . . . happens anytime a car is involved in any kind of incident, police run the plate and determine whether . . . it's stolen or not. This came back stolen. But, frankly, that's not proof or — or evidence of [any]thing. Okay?
There is no evidence before you whatsoever that [defendant] was responsible for that car being stolen, that [defendant] was responsible for its theft, that [defendant] even knew it was stolen. In fact, there was no indicia of . . . it being stolen [which is] typically found in a stolen car. For example, the window popped or the ignition popped. None of that was there. The keys were in the car. Okay?
So the fact that the car was stolen, frankly, should not enter into your deliberation or discussions at all, whatsoever, because simply it's not relevant to the case at hand. The case is about the gun, and the gun only. The car's got nothing to do with anything. Okay? Thank you very much.
Defense counsel did not object to the instruction or its timing. Instead, during his later cross-examination of Sergeant O'Brien, defense counsel elected testimony confirming that defendant did not have any criminal charges relating to the SUV. In his final instructions to the jury, the judge stated that any testimony or evidence that was stricken must be disregarded, and that the opening statements of counsel were not evidence.
Defendant argues that the judge's curative instruction was insufficient because it was issued sometime after the assistant prosecutor's comment and the officer's testimony regarding the SUV. Defendant asserts that when determining if he possessed the gun, the jury was likely to consider whether he unlawfully committed that offense during the course of committing a different and uncharged offense.
Prosecutorial misconduct, however wrongful, "is not grounds for reversal of a criminal conviction unless the conduct was so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437-38 (2007) (citation omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). To warrant reversal, the prosecutor's conduct must have been "clearly and unmistakably improper and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Id. at 438 (citation omitted).
In making this determination, we consider (1) "whether defense counsel made a timely and proper objection," (2) "whether the remark was withdrawn promptly," and (3) "whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ibid. (citation omitted).
As we have explained, defense counsel did not object to the assistant prosecutor's statement or Meade's testimony regarding the SUV. The issue was first raised by the judge. The judge questioned whether the evidence should have been admitted and suggested a curative instruction. Defense counsel agreed, and the judge provided the instruction, directing the jury to disregard the evidence. The judge emphasized that the testimony that the SUV was stolen had no bearing upon the issue the jury was to decide, which was whether defendant unlawfully possessed the gun.
We are convinced the judge correctly addressed the issue in a timely fashion, and the jury was properly instructed that the evidence that the vehicle was stolen should play no role in its deliberations. We must assume the jury understood and followed the court's instruction. State v. Feaster, 156 N.J. 1, 65 (1998) cert. denied sub nom., Kenney v. New Jersey, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).
III.
Next, defendant argues that he was denied his constitutional rights to due process and a fair trial by the trial court's refusal to exclude the ski mask, which defendant possessed when he was arrested. Defendant contends that the ski mask constituted inadmissible other-crimes evidence under N.J.R.E. 404(b). He argues that, along with the testimony that the SUV was stolen, the mask allowed the assistant prosecutor to suggest that defendant had used the gun and mask to steal the SUV.
We note that defendant was tried on two charges: unlawful possession of the gun, and possession of the gun for an unlawful purpose. In her opening statement, the assistant prosecutor asserted that the latter charge would be established by, among other things, evidence that defendant was in possession of a black ski mask when he was arrested and that the gun had been fired five times. After both sides rested, the judge dismissed the charge of possession of the weapon for an unlawful purpose. The judge found that the evidence presented by the State was insufficient to find defendant guilty of that offense beyond a reasonable doubt.
Defense counsel then asked the judge to exclude the ski mask, but the judge ruled that it was relevant to the remaining charge of unlawful possession of the weapon. The judge stated that the mask was evidence that defendant knowingly possessed the handgun and knew its possession was illegal. According to the judge, the evidence was relevant to defendant's state of mind. The judge also noted that the mask was on defendant's person at the time he was arrested.
A trial court's evidentiary decisions will be upheld unless shown to be abuse of discretion. State v. Burns, 192 N.J. 312, 332 (2007). "'[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted.'" State v. Goodman, 415 N.J. Super. 210, 224-25 (App. Div. 2010) (quoting State v. Carter, 91 N.J. 86, 106 (1982)), certif. denied, 205 N.J. 78 (2011).
Here, the trial judge did not mistakenly exercise his discretion when he refused to exclude the ski mask. The mask had been admitted into evidence earlier in the trial, and it was relevant to the charge that defendant possessed the weapon for an unlawful purpose. The evidence was not subject to a N.J.R.E. 404(b) analysis because it was evidence intrinsic to the charged offense. See State v. Brockington, 439 N.J. Super. 311, 332-33 (App. Div. 2015) (noting that evidence that directly proves elements of a charged offense is not subject to a N.J.R.E. 404(b) analysis).
Moreover, after the judge dismissed the charge of possession of the weapon for an unlawful purpose, the ski mask continued to have some relevance because defendant was found to be in possession of the mask when he was arrested. The judge also noted that the mask had some bearing upon whether defendant knew he possessed a weapon and its possession was unlawful. The judge thus suggested that defendant could have used the mask to avoid being identified, while he was unlawfully possessing the gun.
Even if the judge mistakenly exercised his discretion by refusing to exclude the mask, we are convinced the error was harmless. There was other significant, if not overwhelming, evidence that defendant knowingly and lawfully possessed the gun. As noted previously, Meade testified that he saw defendant in possession of the weapon, which he discarded in the trash can. The area where Meade made these observations was well lit, and Meade had an unobstructed view of defendant when he possessed and discarded the gun.
Thus, even if erroneous, the judge's refusal to exclude the ski mask was not likely to lead the jury to reach a conclusion that they would not otherwise have reached. See State v. Taffaro, 195 N.J. 442, 454 (2008) (citation and internal quotation marks omitted).
IV.
Defendant further argues that the trial judge erred by admitting out-of-court statements by the female witness and Officer Hennessey. Defendant contends that the admission of these statements violated his right to confront the witnesses against him, as guaranteed by the Sixth Amendment to the Constitution of the United States, and Article I, paragraph 10 of the New Jersey Constitution.
A. The Female Witness's Statement.
As noted, after Meade and Hennessey responded to the "shots fired" call, a female witness told Officer Meade that two black males had run from the crashed SUV, and she described one of the males. She also gestured, indicating the direction in which the two males had fled. Defendant contends the witness's statement was inadmissible hearsay.
"Hearsay is 'a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.'" State v. Branch, 182 N.J. 338, 357 (2005) (quoting N.J.R.E. 801(c)). Hearsay is inadmissible unless it falls within one of the exceptions to the hearsay rule. Ibid.
Two exceptions apply to the female witness's statements: (1) the exception for a present sense impression under N.J.R.E. 803(c)(1), and (2) the exception for an excited utterance in N.J.R.E. 803(c)(2). These exceptions apply whether or not the declarant is available to testify. N.J.R.E. 803(c).
The exception for a present sense impression applies to "[a] statement of observation, description or explanation made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(1). The exception for an excited utterance applies to statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(2).
Here, the judge correctly found that the female witness's statements were made contemporaneously with the event, not minutes later. She described the event as it was taking place. Moreover, the statements were an excited response to the event that was taking place, and there was no evidence that the witness had an "opportunity to deliberate or fabricate." The record supports the judge's determination that the statements fell within the hearsay exception for a present sense impression under N.J.R.E. 803(c)(1).
In addition, the record supports the judge's determination that the exception for an excited utterance under N.J.R.E. 803(c)(2) applied. Here, the female witness described a startling event, specifically, the SUV crashing into parked cars and two males running from the crashed vehicle. The witness pointed to the direction in which the two males had fled. Her statement and gesture were spontaneous responses to the event, and they were made "under the stress of excitement" arising from what she had just observed. N.J.R.E. 803(c)(2). Moreover, there is no evidence indicating the witness had the "opportunity to deliberate or fabricate." N.J.R.E. 803(c)(2).
Defendant further argues that the admission of the witness's statement violated his constitutional right to confront the witnesses against him. Again, we disagree.
The Confrontation Clause in the Sixth Amendment to the United States Constitution provides that in a criminal case, the accused has the right "to be confronted with the witnesses against him." The New Jersey Constitution guarantees the same right. State v. Branch, 182 N.J. 338, 348 (2005). The Confrontation Clause reflects "a preference for the in-court testimony of a witness, whose veracity can be tested by the rigors of cross-examination." State ex. rel. J.A., 195 N.J. 324, 342 (2008).
"Although the Sixth Amendment does not interdict all hearsay, it does prohibit the use of out-of-court testimonial hearsay, untested by cross-examination, as a substitute for in-court testimony." Ibid. Witnesses against the accused are persons "'who bear testimony.'" Ibid. (quoting Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 192 (2004)).
"Nontestimonial statements are those 'made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.'" Id. at 345 (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224, 237 (2006)).
In this case, the judge correctly determined that the witness's statements were not testimonial. The witness made her statements to the officers so they could meet an ongoing emergency. The officers had received a call indicating that shots had been fired in the area were the vehicle crashed. The witness provided her statement voluntarily, while the emergency situation was occurring. Thus, the admission of the witness's statement did not deprive defendant of his constitutional right to confront the witnesses against him.
B. Hennessey's Statement.
At trial, Meade testified that, while he was pursuing defendant, he observed an individual exit an apartment building near Warner Avenue. The individual caught up with defendant near a bar on the corner of Warner Avenue and Martin Luther King Drive. According to Meade, defendant and the other individual "stepped in and then stepped right out" of the bar. Immediately thereafter, Meade and Hennessey apprehended defendant and the other individual. According to Meade, Hennessey questioned the individual, who provided an alibi. Meade testified that Hennessey determined the alibi checked out and let the individual leave.
Defendant argues that Hennessey's out-of-court statement was inadmissible. He notes that at trial, his defense was that he never possessed the gun. He asserts Hennessey's out-of-court statement cast doubt upon that defense, and consequently he was denied the opportunity to cross-examine Hennessey about his statement. Because defendant did not raise this issue at trial, we consider his argument under the plain error standard. R. 2:10-2.
Here, defendant's conviction rested primarily upon Meade's testimony that he observed defendant running along Warner Avenue with a gun in his hand, and saw defendant discard the gun into a trash can. Meade testified that the area was well lit and he did not lose sight of defendant during the chase. Defendant never suggested that the individual who exited the apartment building and caught up with defendant, owned or possessed the weapon.
Furthermore, Hennessey's statement that the individual's alibi checked out did not corroborate Meade's testimony or inculpate defendant. Hennessey's statement merely explained why the officers did not arrest the other individual. Even if the court erred by not sua sponte striking the testimony, it does not rise to the level of plain error. The evidence was not likely to lead the jury to a result it would not have otherwise reached. Taffaro, supra, 195 N.J. at 454 (citation omitted).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION