STATE OF NEW JERSEY VS. MIKHAIL GOULDSON Â Â (13-10-0971, PASSAIC COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3666-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MIKHAIL GOULDSON, a/k/a
MICHAEL MARTIN,
Defendant-Appellant.
______________________________
Submitted May 16, 2017 – Decided August 10, 2017
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Passaic County,
Indictment No. 13-10-0971.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele E. Friedman, Assistant
Deputy Public Defender, of counsel and on the
brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Robert J. Wisse,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Mikhail Gouldson appeals his conviction following
a jury trial of possessory weapons offenses. He also appeals his
sentence. More particularly, he argues the court erred by denying
his motion to suppress evidence obtained during the search of a
motor vehicle, admitting evidence at trial concerning an email
address, and refusing his request for a limiting instruction about
the email. We affirm the court's denial of defendant's suppression
motion, find the court erred in denying his motions for the
redaction of the email address and for a limiting instruction, and
reverse defendant's convictions and remand for further
proceedings.
I.
The criminal charges at issue here arose as a result of a
stop of a motor vehicle driven by defendant. The vehicle was
searched and a bag containing guns, ammunition, gun accessories
and a receipt were found in the truck. Defendant was subsequently
charged in an indictment with two counts of second-degree unlawful
possession of an assault firearm, N.J.S.A. 2C:39-5(f) (counts one
and two),1 two counts of third-degree possession of a sawed-off
shotgun, N.J.S.A. 2C:39-3(b) (counts three and four), and one
count of fourth-degree possession of large capacity ammunition
1
Defendant was originally charged in counts one and two with
third-degree unlawful possession of a firearm, but the charges
were amended to second-degree offenses.
2 A-3666-14T2
magazines, N.J.S.A. 2C:39-3(j) (count five). Count four was
dismissed at trial.
Defendant's Motion to Suppress Evidence
Defendant moved to suppress the evidence seized from the
vehicle. At the evidentiary hearing on the motion, Paterson police
officer Miguel Cruz testified that at around 7:00 p.m. on February
7, 2013, he was on patrol in a high crime area, and received a
dispatch report that a "heavy set black male" had "brandished a
shotgun in the area of 12th Ave and East 32nd." It was reported
the perpetrator was in a "[d]ark colored sedan" which had a license
plate number starting with "F-1-5." Cruz drove to the area in
response to the report.
Thirty minutes later, Cruz saw a blue vehicle with a license
plate number beginning with "F-1-5." He followed the vehicle for
a short distance and saw it make an abrupt stop and turn into a
parking spot without signaling. Cruz effectuated a motor vehicle
stop of the vehicle. Cruz also observed another vehicle make an
abrupt stop about three car lengths in front of the blue vehicle.
Cruz approached the driver's side window of the blue vehicle
and saw that the driver matched the description of the individual
reported to have brandished the weapon. The driver, who was later
identified as defendant, was alone in the vehicle. Cruz observed
that defendant appeared nervous and was wearing what Cruz
3 A-3666-14T2
recognized as a "quick-release rifle sling" over his shoulder and
across his torso. Cruz asked defendant about the sling and
defendant said, "he always [drove] with [it] on."
Cruz observed about five individuals exit the vehicle that
had abruptly stopped in front of defendant's vehicle. According
to Cruz, the individuals were larger in stature than him, and
"appeared to be approaching [his] location." They stood
approximately fifteen to twenty feet away from defendant's vehicle
and looked toward Cruz. He concluded the individuals "seemed to
have some type of interest or know [] defendant."
Cruz asked defendant for his driver's license and the
paperwork for the vehicle but, after looking through the vehicle
for a minute or two, defendant was unable to provide them. Cruz
asked defendant to turn off the car and take out the keys, and
defendant placed the keys on the dashboard. Cruz then secured
defendant by placing him in handcuffs as defendant sat in the
driver's seat. Cruz requested backup, and officer James DiPiazza
responded.
Cruz asked defendant his name, date of birth, and address.
Defendant told Cruz to contact Detective Stoltz at the Passaic
County Prosecutor's Office. DiPiazza stayed with defendant, while
Cruz contacted Stoltz, who said that defendant "[was] a known gang
member" and "[was] known to have weapons in his possession."
4 A-3666-14T2
Cruz returned to defendant's vehicle, shined a flashlight
into the car, and saw two spent rifle shell casings in the back
seat area. Based on Cruz's observations and the information
provided by Stoltz, Cruz believed there was a weapon in the
vehicle, and required that defendant exit the vehicle.
Cruz testified he did not believe it was safe to secure the
vehicle and have it towed. Cruz did not observe any weapons in the
vehicle but testified rifles are "big guns" that would normally
be kept in a vehicle's trunk. Cruz used the vehicle's keys or the
remote access to open the trunk. He saw what he recognized as a
weapons bag, looked inside of the bag, and found a black and tan
rifle loaded with a thirty-round ammunition magazine and modified
with a "brass catcher"2 attached to the weapon.
Cruz arrested defendant and placed him in a police car. At
that point, the individuals who had exited the other vehicle left
the scene. Following defendant's arrest, the vehicle was towed to
a secure area. At police headquarters, Cruz found a second rifle
in another compartment of the bag, as well as nine thirty-round
magazines, 205 rounds of .223 caliber bullets and a speed loader.
The bag also contained a receipt from a weapons parts company.
2
Cruz described a "brass catcher" as a bag that is attached to a
weapon to "catch" and collect the brass shell casings ejected from
the weapon when it is fired.
5 A-3666-14T2
After hearing argument, the motion judge found Cruz was a
credible witness, and determined that defendant's failure to
signal provided justification for the motor vehicle stop. The
court also found the anonymous tip about the individual who
brandished the gun, Cruz's observations of the vehicle and its
license plate, and the vehicle's abrupt stop independently
provided a reasonable and articulable suspicion for the motor
vehicle stop.
Further, the court found that Cruz's observations that
defendant matched the description of the individual reported in
the anonymous tip, and that defendant wore an empty rifle sling
and appeared nervous heightened Cruz's concern for his own safety.
The court determined that Cruz's concern for his safety was also
supported by Stoltz's report that defendant was a known gang member
who was known to carry weapons, and by the presence of the
approximately five individuals who had exited their vehicle and
stood nearby. The court found the motor vehicle stop occurred in
a high crime area while it was dark, and that Cruz also observed
two shell casings in the area of the rear seat of the vehicle.
The court determined that the search of the vehicle's trunk
was proper due to the exigent circumstances presented. The court
noted that a warrantless search of an automobile is permitted
where the motor vehicle stop is unexpected, probable cause for the
6 A-3666-14T2
search exists, and exigent circumstances are present making it
impracticable to obtain a warrant.
The court reasoned that the stop of defendant's vehicle was
unexpected because it was the result of quickly unfolding events
with no advance planning by the police. The court found the
anonymous tip, defendant's failure to produce any paperwork for
the vehicle, the empty rifle sling worn by defendant, the
information supplied by Stoltz, and Cruz's observation of the two
spent shell casings provided probable cause there was a weapon in
the vehicle's trunk.
Last, the court determined that the totality of the
circumstances presented made it impracticable and unreasonable for
Cruz to obtain a telephonic search warrant or wait for a tow truck
before searching the vehicle. The court found Cruz's search of the
vehicle was objectively reasonable under the circumstances and
denied defendant's suppression motion.
Defendant's Pretrial Motion on the Admission of the Receipt
Prior to trial, defendant sought leave to admit the receipt
found in the weapons bag seized from the vehicle's trunk. The
receipt was issued to A.H.,3 and appeared to be a February 2, 2013
shipping invoice from "bravocompanyusa.com." The receipt was not
3
We use initials, rather than the full name on the receipt, to
avoid the misidentification of anyone sharing the name.
7 A-3666-14T2
for the guns or any of the other items found in the trunk, but
instead was only for two gun parts. In addition to A.H.'s name,
the receipt included his purported street address, phone number
and an email address of "RU_Blood_Gang@Yahoo.com."
Defendant sought to introduce the receipt at trial to show
that because it was found in the weapons bag, the guns, ammunition
and accessories belonged to A.H., and not defendant. Defendant
requested that the court admit the receipt with the email address
redacted. Defendant argued the email address was prejudicial
because it suggested gang membership, and had no probative value
because the other information on the receipt showed it was issued
to A.H.
The court denied defendant's request, noting it had
previously barred the State from introducing testimony that Stoltz
said defendant was a gang member. The court found that because
A.H. used a "blood gang personal email" address, it was reasonable
to assume A.H. "may be a gang member," and that "based upon the
information from [] Stoltz" it was reasonable to assume "defendant
may also be a gang member and there may be a sharing or interchange
of weapons." The court found it would be unfair to the State to
redact the email address because defendant intended to rely on the
receipt to "cast blame" on A.H., and therefore the receipt should
be admitted in its entirety. The court also found that because it
8 A-3666-14T2
barred the State from introducing Stoltz's report that defendant
was a gang member, it would be "unfair to further diminish the
State's case" by permitting defendant to introduce a redacted
receipt concerning A.H. The court denied defendant's motion.
Defendant's Trial
At trial, defendant did not dispute that the guns, ammunition
and other accessories were in the vehicle's trunk. He argued the
State did not sustain its burden of proving that he knowingly
possessed the items and that, contrary to the officers' testimony,
he was not wearing the rifle sling when the vehicle was stopped.
Defendant argued the rifle sling had actually been recovered from
the trunk with the other items. In support of his argument,
defendant relied on the fact that Cruz's police report did not
state that defendant said he always wore the sling while driving,
and that if defendant had been wearing the rifle sling, Cruz would
not have permitted defendant to look through the vehicle for his
license and the vehicle's paperwork.
Cruz's trial testimony was consistent with his testimony at
the suppression hearing, but he did not testify at trial about the
anonymous tip or Stoltz's report about defendant's alleged gang
membership and proclivity to possess weapons. Cruz also testified
9 A-3666-14T2
that the receipt was from Bravo Company USA for gun accessories4
and that A.H.'s name and an address were listed on the receipt for
the billing and shipping information. There was also evidence that
it was not defendant's name, address, and telephone number on the
receipt, and that the police never investigated A.H. or the
information on the receipt.
Cruz first described the email address in response to a
question posed by defense counsel during cross-examination. He
mentioned the email address a second time in response to a question
from the prosecutor on redirect examination. The receipt was
admitted into evidence. Cruz also testified the vehicle was
registered to M.G.5 and that her pocketbook, driver's license, and
a utility bill in her name were found in the vehicle.
Detective Todd Pearl testified that a search of defendant's
apartment occurred at around 12:30 a.m. on the morning following
defendant's arrest. M.G. answered the door to the apartment. No
items were recovered during the search.6
4
The receipt was for "a [f]ront site base and a spring rifle M-
16 Action."
5
We employ initials to protect M.G.'s privacy and to avoid any
misidentification of the M.G. in this matter with others sharing
the same name.
6
Detective Antonio Urena testified concerning the firearms,
ammunition and accessories recovered. At trial, the parties
10 A-3666-14T2
After the presentation of the evidence, defendant requested
that the court provide a limiting instruction that the jury could
not use the email address on the receipt to infer the vehicle was
a "gang car" or that defendant was a gang member. The judge denied
the request, noting her prior ruling denying the request to redact
the email address. The judge reasoned that because defendant moved
the receipt into evidence, redaction of the email address could
leave the impression that A.H. may be a "perfectly law-abiding
citizen . . . and the defendant unluckily use[d] the car with the
weapons in it." The court reiterated that on balance, it would be
unfair to permit defendant to cast doubt on his alleged possession
of the guns and ammunition by arguing that A.H. was the owner,
without presenting all of the information about A.H. the receipt
contained. The court noted the State had indicated it would not
argue defendant was a gang member, concluded the jury should
consider the evidence as presented, and rejected defendant's
request for a limiting instruction.
The jury found defendant guilty of all of the charges in the
indictment. Defendant filed a motion for a new trial, claiming the
court's denial of his request to redact the receipt and for a
stipulated there was no evidence defendant had a permit to carry
or purchase a handgun or an assault weapon.
11 A-3666-14T2
limiting instruction was erroneous and deprived him of a fair
trial. The judge denied the motion.
The court subsequently sentenced defendant to an aggregate
custodial term of eleven years with a seven-year period of parole
ineligibility.7 This appeal followed.
Defendant makes the following arguments on appeal:
POINT I
THE SEARCH OF THE VEHICLE WAS
UNCONSTITUTIONAL, AND THEREFORE, THE EVIDENCE
DISCOVERED SHOULD HAVE BEEN SUPPRESSED.
POINT II
THE TRIAL COURT'S REFUSAL TO SANITIZE THE
HIGHLY PREJUDICIAL EMAIL ADDRESS - "RU-BLOOD-
GANG@YAHOO.COM" – ON THE RECEIPT, COUPLED WITH
ITS FAILURE TO ISSUE A LIMITING INSTRUCTION
REGARDING THIS EVIDENCE DEPRIVED [DEFENDANT]
OF A FAIR TRIAL.
A. The Trial Court Erred in Denying the
Defense's Request to Redact the Email
Address from the Receipt.
7
The sentence imposed on count two, charging second-degree
unlawful possession of an assault weapon, N.J.S.A. 2C:39-5(f), was
three years with a three-year period of parole ineligibility. A
three-year sentence on a second-degree offense is not an authorized
sentence absent a determination pursuant to N.J.S.A. 2C:44-1(f)(2)
that it was appropriate to sentence defendant in the range for a
crime one degree lower than the offense for which defendant was
convicted. The court made no findings supporting a reduction in
the sentencing range under N.J.S.A. 2C:44-1(f)(2). Neither the
State nor defendant raised the issue concerning the legality of
the sentence on appeal. Because we reverse defendant's
convictions, it is unnecessary to address the issue further.
12 A-3666-14T2
B. The Trial Court's Refusal to Issue a
Limiting Instruction Constitutes
Reversible Error.
II.
Defendant first argues the court erred by denying his motion
to suppress the warrantless search of the motor vehicle. Defendant
does not dispute there was probable cause to search the vehicle,
but instead contends the evidence did not support the court's
determination that the vehicle stop was unexpected and that the
search was justified because there were exigent circumstances.
In our review of a trial court's ruling on a motion to
suppress, we "must uphold the factual findings underlying the
trial court's decision so long as those findings are 'supported
by sufficient credible evidence in the record.'" State v. Elders,
192 N.J. 224, 243 (2007) (quoting State v. Elders, 386 N.J. Super.
208, 228 (App. Div. 2006)); State v. Handy, 206 N.J. 39, 44 (2011).
An appellate court should "not disturb the trial court's findings
merely because '[we] might have reached a different conclusion.'"
Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J.
146, 162 (1964)).
It is only where the court is "thoroughly satisfied that the
finding is clearly a mistaken one and so plainly unwarranted that
the interests of justice demand intervention and correction [that
we will] appraise the record as if [we] were deciding the matter
13 A-3666-14T2
at inception and make [our] own findings and conclusions." Johnson,
supra, 42 N.J. at 162. However, "[a] trial court's interpretation
of the law . . . and the consequences that flow from established
facts are not entitled to any special deference." State v. Lamb,
218 N.J. 300, 313 (2014). Accordingly, "[w]hen, as here, we
consider a ruling that applies legal principles to the factual
findings of the trial court, we defer to those findings but review
de novo the application of those principles to the factual
findings." State v. Hinton, 216 N.J. 211, 228 (2013).
The United States and New Jersey Constitutions guarantee the
right "of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures." U.S.
Const. amend. IV; N.J. Const. art. I, ¶ 7. The Fourth Amendment
and Article 1, paragraph 7 of the New Jersey Constitution both
"require[] the approval of an impartial judicial officer based on
probable cause before most searches may be undertaken." State v.
Patino, 83 N.J. 1, 7 (1980).
Warrantless searches are presumed invalid, State v. Gamble,
218 N.J. 412, 425 (2014), "and the invalidity may be overcome only
if the search falls within one of the specific exceptions created
by the United States Supreme Court," State v. Hill, 115 N.J. 169,
173 (1989). "Because no warrant was sought for the search
and arrest of defendant, the State bears the burden of showing
14 A-3666-14T2
that the warrantless seizure 'falls within one of the few well-
delineated exceptions to the warrant requirement.'" State v.
O'Neal, 190 N.J. 601, 611 (2007) (quoting State v. Maryland, 167
N.J. 471, 482 (2001)). "The State has the burden of proof to
demonstrate by a preponderance of the evidence that the warrantless
seizure was valid." Ibid.
Here, defendant challenges the warrantless search of an
automobile. In State v. Pena-Flores, 198 N.J. 6, 28 (2009),8 our
Supreme Court established that a "warrantless search of an
automobile in New Jersey is permissible where (1) the stop is
unexpected; (2) the police have probable cause to believe that the
vehicle contains contraband or evidence of a crime; and (3) exigent
circumstances exist under which it is impracticable to obtain a
warrant." The motion court applied that standard here.
As noted, defendant does not claim that there was insufficient
probable cause to search the vehicle. He instead argues the search
was unlawful because the motor vehicle stop was not unexpected
because the officer was looking for a car matching the vehicle
defendant was driving. An unexpected motor vehicle stop occurs
when it is "unplanned and unforeseen; the police must 'have no
8
The parties agree that the Pena-Flores standard applies here.
The Court modified the standard in State v. Witt, 223 N.J. 409
(2015), but Witt was decided after defendant's arrest and therefore
is inapplicable to the search of the vehicle here.
15 A-3666-14T2
advance knowledge of the events to unfold.'" State v. Minitee,
210 N.J. 307, 320 (2012) (quoting State v. Colvin, 123 N.J. 428,
437 (1991)). "[T]he police cannot, by their actions, create the
exigency they later use to justify the search." Ibid.
The record supports the court's finding the motor vehicle
stop was unexpected. Although Cruz responded to an anonymous tip,
Cruz had no advance knowledge of whether he would find an
individual or vehicle matching the description provided, and if
so, what he might encounter. He pulled over the vehicle in response
to an unanticipated motor vehicle violation, and it was not until
he stopped the vehicle that he observed that defendant fit the
description provided in the anonymous tip and made other
observations providing probable cause for the search. Thus,
although Cruz had been looking for a vehicle in response to an
anonymous tip providing a description of a car and a partial
license plate, he had "no advance knowledge of the events to
unfold." Ibid.
Defendant also contends the court erred in finding exigent
circumstances permitted the warrantless search. He contends that
defendant was in handcuffs prior to the search, the car's trunk
was locked, and the individuals in the other car had not become
involved. He argues that the officers had sufficient time to obtain
a telephonic warrant.
16 A-3666-14T2
Exigency is determined on a case-by-case basis after a
consideration of the totality of the circumstances. Pena-Flores,
supra, 198 N.J. at 28. The fundamental inquiry is how the
circumstances presented "bear on the issues of officer safety and
the preservation of evidence." Id. at 28-29. "[I]t is the
compendium of facts that make it impracticable to secure a
warrant." Id. at 29. Factors the court may consider in determining
whether exigency exists include, for example,
the time of day; the location of the stop; the
nature of the neighborhood; the unfolding of
the events establishing probable cause; the
ratio of officers to suspects; the existence
of confederates who know the location of the
car and could remove it or its contents;
whether the arrest was observed by passersby
who could tamper with the car or its contents;
whether it would be safe to leave the car
unguarded and, if not, whether the delay that
would be caused by obtaining a warrant would
place the officers or the evidence at risk.
[Ibid.]
However, these are not "an exhaustive list of the factors that
must come into play." Minitee, supra, 210 N.J. at 321.
Here, the court carefully and thoroughly reviewed the
totality of the circumstances and determined it was objectively
reasonable for the officers to conclude that their own safety and
interest in preserving the evidence presented exigent
circumstances permitting the warrantless search of the vehicle.
17 A-3666-14T2
The evidence supports the court's determination. The search
occurred at night in a high crime area. Cruz believed weapons
might be in the vehicle based on: the anonymous tip, Stoltz's
statement that defendant was in a gang and known to possess
weapons, the shell casings in the vehicle compartment, and because
defendant was wearing an empty rifle sling across his chest. See
e.g., State v. Hammer, 346 N.J. Super. 359, 367-71 (App. Div.
2001) (finding exigent circumstances permitting search of
vehicle's trunk for weapons where the driver was unable to produce
his license, the officer observed hollow bullets fall from the
driver's coat, and the officer found a bag of a white powder
substance in the car).9
There also were approximately five individuals who had been
traveling in a car ahead of defendant and who abruptly stopped
their car, exited, walked toward Cruz and defendant, and stood
9
Defendant argues Hammer does not support the court's finding of
exigency here because in Hammer we noted that the trunk was
unlocked, thereby increasing the potential for the removal of the
evidence and risk to the officers if others had access to the
weapons in the trunk. The fact that the trunk was unlocked in
Hammer was not dispositive of the issue of exigency, and similarly,
the fact that the trunk here was locked is also not dispositive.
That a trunk may be locked or unlocked is only one factor to be
considered as part of the totality of circumstances in assessing
whether exigent circumstances permit a warrantless search. "There
is no magic formula" to determine exigency; "it is merely the
compendium of facts that make it impracticable to secure a
warrant." Pena-Flores, supra, 198 N.J. at 29.
18 A-3666-14T2
close by watching Cruz interact with defendant. Thus, in addition
to being in a high crime area, there were others present who may
have been able to remove the evidence or jeopardize the officers'
safety, and thus a delay may have placed the officers or the
evidence at risk. See, e.g., State v. Lewis, 411 N.J. Super. 483,
489-91 (App. Div. 2010) (finding sufficient exigency to justify a
warrantless search where the stop occurred at night in a high-
crime area in a place where the stop "could be readily observed
by persons in the neighborhood, such as the five or six people who
congregated in the area after the stop"); cf. State v. Dunlap,
185 N.J. 543, 550-51 (2006) (finding no exigency where the vehicle
was not in an area known for drug trafficking, there was no basis
to conclude a third person might come and destroy or remove
evidence, there were at least ten officers present, the officers
had time to obtain verbal authorization to record defendant's
conversation with another individual, and noting a stop by only
one or two officers "would likely have changed the calculus").
Accordingly, we affirm the court's order denying defendant's
motion to suppress the evidence found in the trunk of the vehicle.
The record supports the court's findings of fact and its legal
conclusion that the warrantless search of vehicle was justified
based on the exigent circumstances presented. See Pena-Flores,
supra, 198 N.J. at 28.
19 A-3666-14T2
III.
Defendant also claims the court erred by denying its request
to redact the email address from the receipt and by refusing to
provide a limiting instruction concerning the email. Defendant
argues the email address was irrelevant and unduly prejudicial
because it referred to the Bloods gang and may have been used by
the jury to infer he was a gang member. He contends the receipt
should have been excluded by the court under N.J.R.E. 401 and 403.
He also asserts that even assuming the email address was relevant
and admissible, the court should have granted his request for a
limiting instruction prohibiting the jury from inferring he was a
gang member.
A trial court is vested with considerable latitude in
determining whether to admit evidence, and that determination will
only be reversed on appeal if it constitutes an abuse of
discretion. State v. Kuropchak, 221 N.J. 368, 385 (2015); State
v. Rose, 206 N.J. 141, 157 (2011); State v. Marrero, 148 N.J. 469,
484 (1997). We will "not substitute [our] judgment for that of the
trial court, unless 'the trial court's ruling "was so wide of the
mark that a manifest denial of justice resulted."'" Kuropchak,
supra, 221 N.J. at 385 (quoting Marrero, supra, 148 N.J. at 484).
Defendant argues the court erred by finding the email address
on the receipt was relevant. Relevant evidence must have "a
20 A-3666-14T2
tendency in reason to prove or disprove any fact of consequence
to the determination of the action." N.J.R.E. 401. "When a court
decides whether evidence is relevant, 'the inquiry should focus
on the logical connection between the proffered evidence and a
fact in issue.'" State v. Cole, ___ N.J. ___ (2017) (slip op. at
17) (quoting State v. Bakka, 176 N.J. 533, 545 (2003)). To be
relevant, evidence must "be probative of a fact that is 'really
in issue in the case,' as determined by reference to the applicable
substantive law." Ibid. (quoting State v. Buckley, 216 N.J. 249,
261 (2013)). "Once a logical relevancy can be found to bridge the
evidence offered and a consequential issue in the case, the
evidence is admissible, unless exclusion is warranted under a
specific evidence rule." State v. Burr, 195 N.J. 119, 127 (2008).
All relevant evidence is admissible "[e]xcept as otherwise
provided in [the] rules or by law." N.J.R.E. 402. Under N.J.R.E.
403, "relevant evidence may be excluded if its probative value is
substantially outweighed by the risk of (a) undue prejudice,
confusion of issues, or misleading the jury or (b) undue delay,
waste of time, or needless presentation of cumulative evidence."
N.J.R.E. 403.
Based on our careful review of the record, we are constrained
to conclude that the court missed the mark in finding the email
address tended to prove or disprove a fact of consequence in this
21 A-3666-14T2
matter. Prior to making its decision on defendant's redaction
request, the court ruled the State could not introduce any evidence
concerning defendant's purported gang membership and the State
advised it would not attempt to introduce such evidence or argue
that defendant was a gang member.
Defendant sought admission of the receipt for the sole purpose
of establishing that the guns and ammunition found in the bag
belonged to someone other than himself. However, establishing the
receipt pertained to A.H., and not defendant, could only be
logically accomplished by comparing the information on it with
defendant's personal information. That is, to the extent the
information on the receipt could be shown to be different than any
known information for defendant, the information demonstrated that
the receipt was issued to a person, A.H., who was not the
defendant. The fact that the name, address and telephone number
on the receipt were different than defendant's tended to prove the
receipt was not issued to defendant but instead was issued to A.H.
If evidence had been presented showing that the email address
was either different or the same as defendant's email address, it
would have tended to prove the receipt was issued to defendant or
A.H. But there was no evidence introduced concerning defendant's
email address. Therefore, unlike the name, address and telephone
number listed on the receipt, there was no evidential basis upon
22 A-3666-14T2
which the jury could have used the email address to determine if
the receipt had any connection to defendant. Thus, the email
address had no tendency to establish whether the receipt was issued
to A.H. or defendant, and no logical connection to any facts
related to the issues at trial.
The court denied the request to redact the email address
because it had "sanitized" the State's case by barring evidence
that Stoltz reported defendant was a gang member. The court
reasoned it would be unfair to the State to permit defendant to
introduce the receipt without the jury being able to consider the
email address as evidence that A.H. was a gang member and therefore
not a "law-abiding citizen." However, the jury was unlikely to
consider A.H. a law-abiding citizen in any event, if it concluded
that A.H. owned the small arsenal of weapons, including assault
firearms, found in the bag.
We reject the court's rationale because, based on the evidence
presented at trial, A.H.'s status as a putative gang member or
law-abiding citizen did not have a tendency to prove any fact of
consequence. The receipt was admitted for the sole purpose of
showing it was issued to someone other than defendant and, as a
result, the guns found with the receipt belonged to A.H. In our
view, the fact that A.H. was a gang member, a law-abiding citizen,
or something else lacks any logical connection to whether the
23 A-3666-14T2
receipt was issued to A.H. instead of defendant. The email address
would have been relevant if the State presented competent evidence
that defendant was a gang member or otherwise connected to A.H.
or his purported gang. However, the court barred the State from
directly introducing such evidence, the record is otherwise devoid
of it, and the State never claimed that gang membership by either
A.H. or defendant tended to prove any element of the crimes
charged. We recognize the court's broad discretion in making
evidentiary rulings on the relevancy of evidence but where, as
here, the evidence does not satisfy the standard, the evidence
should have been excluded. See State v. Muhammed, 366 N.J. Super.
185, 202-03, 205 (App. Div. 2004), aff'd in part, rev'd in part,
182 N.J. 551 (2005).
We also find the court erred by denying defendant's request
to redact the email address under N.J.R.E. 403. "Evidence claimed
to be unduly prejudicial is excluded only when its probative value
is so significantly outweighed by its inherently inflammatory
potential as to have a probable capacity to divert the minds of
the jurors from a reasonable and fair evaluation of the issues in
the case." State v. Wakefield, 190 N.J. 397, 429 (2007) (quoting
State v. Koskovich, 168 N.J. 448, 486 (2001)), cert. denied, 522
U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). "[T]he mere
24 A-3666-14T2
possibility that evidence could be prejudicial does not justify
its exclusion." Ibid. (quoting Koskovich, supra, 168 N.J. at 486).
Here, the lack of any relevance of the email address was
substantially outweighed by its potential for prejudice. The court
denied the motion to exclude the evidence in part to permit the
jury to infer that A.H. was a gang member, expressly finding that
the email address supported a reasonable assumption that A.H. was
a gang member. The court, however, overlooked the risk of potential
prejudice to defendant because the email address also supported
an inference defendant was a gang member; after all, if defendant
was in possession of the contents of the weapons bag, he was also
in possession of a receipt, guns and ammunition from a putative
gang member.10
10
In its denial of the defendant's motion to redact the email
address, the court found the address made it "reasonable to assume
that [A.H.] may be a gang member." Relying on the email address
and the information provided by Stoltz, the court also found it
was reasonable to assume "defendant may . . . be a gang member and
that there may be a sharing or interchange of weapons." However,
Stoltz's report that defendant was a gang member was not required
to support such an inference. As noted, if the jury inferred that
A.H. was a gang member based on the email address, it may have
reasonably assumed that defendant was a gang member as well.
Indeed, the court denied the redaction motion finding that because
it prevented the State from introducing direct evidence concerning
defendant's putative gang membership, it would be unfair to permit
defendant to introduce the receipt without the email address. The
court said it was "trying not to have introduction of gang
membership, unless . . . defendant seeks to put in the receipt."
The court found that the receipt "may suggest that [A.H.] may be
25 A-3666-14T2
"[T]he mere fact, or even allegation, of gang membership
carries a strong taint of criminality." State v. Goodman, 415 N.J.
Super. 210, 227 (App. Div. 2010) (quoting United States v. Acosta,
110 F. Supp. 2d 918, 931 (E.D. Wis. 2000)), certif. denied, 205
N.J. 78 (2011). "The average juror would likely conclude that a
gang member has engaged in criminal activity," which "has the
potential to 'taint' a defendant in much the same way as evidence
of actual criminal conduct." Id. at 228; see also United States
v. Abel, 469 U.S. 45, 48, 105 S. Ct. 465, 467, 83 L. Ed. 2d 450,
455 (1984) ("It is settled law that the government may not convict
an individual merely for belonging to an organization that
advocates illegal activity."); State v. Nelson, 155 N.J. 487, 508
(1998) (finding evidence surrounding defendant's membership in a
gang was irrelevant to sentencing), cert. denied, 525 U.S. 1114,
119 S. Ct. 890, 142 L. Ed. 2d 788 (1999). But see State v. Torres,
183 N.J. 554, 573 (2005) (finding evidence of the defendant's gang
involvement admissible "to show the connection between defendant's
actions as the leader of the gang and the actions of the other
gang members who actually committed the murder").
a gang member and may be sharing it." Thus, the court permitted
introduction of the email address to support the reasonable
inference that A.H. and defendant were gang members sharing the
items found in the trunk.
26 A-3666-14T2
Evidence permitting the inference defendant was a gang member
had "the potential to 'taint' defendant in much the same way as
evidence of actual criminal conduct," and the evidence should have
only been admitted if the requirements of N.J.R.E. 404(b) and the
standard established in State v. Cofield, 127 N.J. 328, 338 (1992),
were met. Goodman, supra, 415 N.J. Super. at 228.11 The court
recognized that any suggestion defendant was a gang member was
prejudicial to defendant. In denying defendant's motion to redact
the email address, the court noted that it "sanitized" the State's
case of any mention of defendant's putative gang affiliation
because it was "highly prejudicial information."
In its earnest effort to be fair to the State, the court
allowed the result it sought to avoid. Although it barred the
State from introducing any evidence of defendant's alleged gang
membership, the court permitted the admission of otherwise
irrelevant evidence supporting an inference that A.H. and, by
11
We do not consider whether the email address should have been
excluded under N.J.R.E. 404(b) because defendant has neither
raised nor briefed the issue on appeal. See Jefferson Loan Co. v.
Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008); Zavodnick
v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001). However, our
case law concerning the admission of gang membership evidence
under N.J.R.E. 404(b) informs our analysis of defendant's N.J.R.E.
403 argument because it concerns the potential for undue prejudice
presented by such evidence. See Goodman, supra, 415 N.J. Super.
at 226-27.
27 A-3666-14T2
extension, defendant were gang members. We agree with the court
that evidence supporting the inference that defendant was a gang
member posed substantial risk of undue prejudice. For that reason,
the email address should have been redacted. See N.J.R.E. 403. The
court erred in ruling otherwise.12
We next consider whether admission of the email address
constituted harmless error, R. 2:10-2, and must determine if its
admission was clearly capable of producing an unjust result. State
v. Randolph, 228 N.J. 566, 592 (2017). "The harmless error
standard . . . requires that there be 'some degree of possibility
that [the error] led to an unjust [verdict]. The possibility must
be real, one sufficient to raise a reasonable doubt as to whether
[it] led the jury to a verdict it otherwise might not have
reached.'" State v. R.B., 183 N.J. 308, 330 (2005) (second and
fourth alterations in original) (quoting State v. Bankston, 63
N.J. 263, 273 (1973)); see also State v. Macon, 57 N.J. 325, 338
(1971) (finding error is harmless unless there is a reasonable
doubt that the error contributed to the verdict). Our determination
12
Because we conclude the evidence should not have been admitted
under N.J.R.E. 401 and should have been excluded under N.J.R.E.
403, it is unnecessary to address defendant's contention that the
court erred by failing to provide a limiting instruction, other
than to note that an appropriate limiting instruction may have
ameliorated the prejudice to defendant from the erroneous
admission of the evidence.
28 A-3666-14T2
of whether an error is clearly capable of producing an unjust
result "depends on an evaluation of the overall strength of the
State's case." State v. Nero, 195 N.J. 397, 407 (2008) (quoting
State v. Chapland, 187 N.J. 275, 289 (2006)); see also State v.
Sowell, 213 N.J. 89, 107-08 (2013) (affirming conviction given
strength of evidence against defendant despite admission of
improper expert testimony); State v. Soto, 340 N.J. Super. 47, 65
(App. Div.) (holding that erroneous admission of hearsay testimony
that the defendant was involved in a robbery was harmless error
in view of the other proofs establishing guilt), certif. denied,
170 N.J. 209 (2001).
Here, defendant did not dispute that he was driving the
vehicle or that the guns and ammunition were found in the trunk.
Defendant argued only that the State failed to prove beyond a
reasonable doubt an essential element of the possessory offenses
charged in the indictment: that he knowingly possessed the guns
and ammunition in the trunk. N.J.S.A. 2C:2-1. We therefore measure
the impact of the introduction of the email address on the State's
burden of proving such knowledge to determine if the email address
was clearly capable of producing an unjust result.
It is not a simple task to prove beyond a reasonable doubt
that a person driving a car borrowed from another has knowledge
of the contents of a bag in the car's locked trunk. Here, essential
29 A-3666-14T2
to the State's proof that defendant had knowledge of the contents
of the bag was the evidence that defendant was wearing a quick
release rifle sling which accommodated one of the rifles found in
the trunk. But the State's case was not without credibility issues
concerning that evidence.
The credibility of the State's evidence was challenged by
testimony showing defendant was permitted to rummage through the
vehicle immediately following the stop, the police inventoried the
rifle sling with items taken solely from the bag found in the
trunk, and the police report about the stop did not mention
defendant's purported statement that he always wore a rifle sling
when he drove. Defendant argued the evidence showed that contrary
to the officers' testimony, he was not wearing the rifle sling and
that it was actually found in the bag in the trunk. He also argued
that without the evidence he was wearing the sling and made the
statement about wearing it, the State could not have proven beyond
a reasonable doubt he knew about the guns and ammunition in the
trunk.
Against this backdrop, we conclude that the admission of the
email address was clearly capable of producing an unjust result.
R. 2:10-2. The email address supported an inference that A.H. and
defendant were gang members. The email address therefore permitted
the jury to assume defendant "engaged in criminal activity,"
30 A-3666-14T2
Goodman, supra, 415 N.J. Super. at 227, in its assessment of the
credibility of the State's evidence. This was improper, raises a
reasonable doubt as to whether it caused the jury to reach a
verdict it may not have otherwise reached, and constitutes an
error that we do not consider harmless. See R.B., supra, 183 N.J.
at 330.
We affirm the court's order denying defendant's motion to
suppress evidence, reverse defendant's convictions, and remand for
further proceedings in accordance with this decision. We do not
retain jurisdiction.
31 A-3666-14T2