STATE OF NEW JERSEY VS. DEON L. BROWNE (15-08-0997, MERCER COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0371-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DEON L. BROWNE,
Defendant-Appellant.
___________________________
Submitted September 9, 2019 – Decided September 13, 2019
Before Judges Sabatino and Geiger.
On appeal from the Superior Court of New Jersey,
Law Division, Mercer County, Indictment No. 15-08-
0997.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michael Timothy Denny, Assistant Deputy
Public Defender, of counsel and on the briefs).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Laura C. Sunyak, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Tried to a jury, defendant Deon L. Browne was found guilty of the second-
degree offense that prohibits "certain persons" from possessing a firearm,
N.J.S.A. 2C:39-7(b). The trial judge sentenced defendant to a seven-year
custodial term, with a five-year period of parole ineligibility.
In this direct appeal, defendant argues the trial court erred in granting the
State's pretrial application to obtain a buccal swab from him to extract a sample
of his DNA. The State's laboratory analysis, which was admitted into evidence
at trial, showed defendant's DNA matched DNA found on a handgun he
discarded when he was seen fleeing from the police. Defendant contends the
incriminating DNA proof should have been excluded because the buccal swab
was obtained without a sufficient foundation, as prescribed by State v. Gathers,
234 N.J. 208 (2018). He further argues the jury charge on the certain -persons
offense was flawed, and he is thereby entitled to a new trial.
For the reasons that follow, we affirm defendant's conviction. 1 We
conclude he waived the right to appeal the trial court's admission of the DNA
evidence, by failing to move to suppress the buccal swab sample he claims was
illegally obtained. In addition, we discern no flaw in the jury charge requiring
appellate relief.
1
Defendant does not appeal his sentence.
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I.
According to the State's proofs at trial, at approximately 1:00 a.m. on
April 19, 2015, Trenton Police Detective Jose Gonzalez and his partner Antonio
Wilkie-Guiot were on patrol. They were dispatched to the intersection of
Phillips Avenue and Dexter Street in Trenton in response to a report o f a "light-
skinned black male, with blue jeans, black hooded sweatshirt, [and] with a gun
in his waist." Two other officers also responded to the report.
Detective Gonzalez testified he saw a group of five men on the sidewalk
at the specified location. The officers illuminated the group with a spotlight on
their marked police vehicle, causing the group to start dispersing. Defendant's
garb matched the clothing description provided by dispatch.
According to Gonzalez, when defendant saw his police car, he "bladed"
(meaning turned) his body away towards a wall, and grabbed his waistband as
if he were trying to conceal something. Gonzalez and Wilkie-Guiot got out of
their police car and pointed one or more flashlights at the men. The officers
ordered the men to show their hands. Everyone but defendant complied.
Defendant began running away from the officers, and Gonzalez and
another officer pursued him. Gonzalez noticed that defendant was holding a
silver handgun while he ran.
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Gonzalez ordered defendant to stop running, stating that he was under
arrest. Defendant nevertheless continued running, and, as described by
Gonzalez, flung the handgun "across his body" and into the "side of [a] house."
Gonzalez heard the "distinct sound" of "heavy metal . . . hitting concrete."
Defendant continued running, and hopped a fence. Gonzalez also hopped
the fence, tackled defendant to the ground, and placed him under arrest.
Wilkie-Guiot recovered the handgun. He similarly testified that he saw
defendant throw "a shining silver item."
Defendant subsequently was charged by a grand jury in a four-count
indictment with various offenses, including the certain-persons offense. The
State eventually dismissed all the charges, other than the certain-persons count.
In June 2016, the State applied to the court to obtain a buccal swab from
defendant. In support of that application, the State submitted a certification by
an acting assistant prosecutor explaining that the handgun the police observed
defendant discarding had been submitted to the State Police laboratory for
analysis and testing for the presence of DNA. The certification asserted that it
was "necessary to obtain a buccal swab reference from the defendant to
determine if his DNA was recovered from the handgun."
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Defendant's trial counsel advised the court that she was "not consenting"
to the buccal swab. She specifically expressed concerns about the trial date
being delayed to enable the DNA testing. Counsel did not, however, raise any
specific objection to the sufficiency of the State's certification.
The trial court granted the State's application for the buccal swab. The
court noted that the presence or absence of defendant's DNA on the discarded
handgun was likely to have "great relevance for both sides in this case."
The buccal swab was thereafter obtained from defendant, and the DNA
extracted from it was compared to the DNA found on the handgun. A forensic
scientist from the State Police who performed the comparison testified at trial
that defendant was the source of the DNA profile that had been obtained from
the gun.
Defendant presented no competing DNA expert testimony at trial.
However, his attorney did argue to the jury that the DNA taken from the gun
was suspect. The defense attorney noted the gun had been handled by multiple
persons, and questioned the reliability of the testing methods used by the State's
expert. The attorney maintained the State had failed to prove beyond a
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reasonable doubt that defendant had possessed the handgun, and thus he was not
guilty of the certain-persons offense. 2
As we have already noted, the jury returned a verdict in favor of the State,
and this appeal followed.
II.
On appeal, defendant presents two arguments for our consideration:
POINT I
THE TRIAL COURT ERRED IN GRANTING THE
MOTION FOR A DNA SWAB OF THE
DEFENDANT BECAUSE THE STATE HAD
FAILED TO SHOW THE NECESSARY PROBABLE
CAUSE FOR THE SEARCH.
POINT II
THE COURT'S CHARGE ON THE CERTAIN
PERSONS NOT TO HAVE ANY FIREARMS
COUNT WAS INCORRECT BECAUSE IT
EXPANDED THE SCOPE OF CERTAIN PERSONS
OFFENSES, ALLOWING THE JURY TO CONVICT
THE DEFENDANT WITHOUT PROOF BEYOND A
RE[A]SONABLE DOUBT AND WITHOUT
UNANIMITY AMONGST THE JURORS. (Not
Raised Below).
2
The parties did stipulate that defendant had previously committed a predicate
offense prohibiting him from possessing a firearm, and that he lacked a permit
to possess one.
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A.
We first consider defendant's contention that the trial court erroneously
permitted the State to extract a buccal swab from him, and that consequently the
DNA proof the prosecution presented against him at trial was inadmissible. In
particular, defendant argues the State's certification submitted in support of its
buccal swab application in 2016 was insufficient under the standards set forth
by the Supreme Court two years later in Gathers, 234 N.J. at 221-25.
In its responding brief on appeal, the State argues, as a threshold matter,
that defendant waived the ability to appeal the admission of the DNA evidence
from his buccal swab. Defendant did not file a reply brief countering this
argument. However, upon reviewing the State's contention of waiver, we invited
defendant to submit a supplemental brief on the subject, and have considered
that additional submission. 3 Having now done so, we agree with the State that
defendant failed to preserve his right to appeal the trial court's allowance of the
buccal swab evidence.
3
We also invited counsel to address whether the Supreme Court's recent grant
of leave to appeal in In re the Investigation of Burglary & Theft, 236 N.J. 629
(2019), a case that concerns DNA buccal swab applications, should affe ct our
consideration of this appeal. Both parties agreed that the issues before the
Court in that case are unlikely to affect the present case, and that we should
proceed to decide the appeal.
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Rule 3:5-7 prescribes the procedures that must be followed in the trial
court if a criminal defendant contends he has been aggrieved by an allegedly
unlawful search or seizure of evidence. Subsection (f) of that rule clearly
delineates the consequences of a defendant's failure to make an appropriate
timely motion to suppress such evidence:
If a timely motion [to suppress] is not made in
accordance with this rule, the defendant shall be
deemed to have waived any objection during trial to
the admission of evidence on the ground that such
evidence was unlawfully obtained.
[R. 3:5-7(f) (emphasis added).]
This provision sensibly requires that an orderly suppression proceeding should
occur before trial in instances where a defendant seeks to preclude the State from
presenting certain evidence to the jury on the grounds that it was illegally
obtained. The rule calls for such admissibility challenges to be resolved in
advance of the trial, so that both parties will know before a jury is empaneled
whether the evidence will be admissible. See R. 3:10-2(b) (concerning the
timing of pretrial motions). If the trial court decides to suppress the evidence,
the State would have the opportunity to pursue interlocutory appellate review of
that decision from this court. See R. 2:5-6(a).
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Our courts have repeatedly enforced the waiver provision set forth in Rule
3:5-7(f). See, e.g., State v. Martin, 87 N.J. 561, 566-67 (1981) (noting that "Rule
3:5-7 plainly requires a motion to suppress to be made before trial and in a timely
manner. Failure to make a timely motion results in a waiver of a defendant's
right to object to the evidence's admission at trial."); State v. Johnson, 365 N.J.
Super. 27, 33-34 (App. Div. 2003) (recognizing the same mandate, but noting
the procedural bar does not extend to claims of ineffective assistance of
counsel); State v. Cox, 114 N.J. Super. 556, 559-60 (App. Div. 1971) (enforcing
the rule's waiver requirement). We shall adhere to the rule in this case as well.
We recognize that defendant's trial attorney advised the court at the June
2016 hearing she did not consent to the buccal swab testing when the State
presented its application. Nonetheless, a lawyer's assertion of non-consent is
not an affirmative motion to suppress.
Even if we were to indulgently treat counsel's expression of non-consent
as an objection, there is no indication in the record that defendant voiced to the
trial court any specific challenges to the sufficiency of the State's application
and its supporting certification. Had defendant done so in a timely manner, the
State would have had the opportunity and the incentive to present any additional
supporting grounds that might have existed to justify the buccal swab.
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For instance, defendant now argues for the first time on appeal that the
supporting certification is inadequate because, among other things, it was not
based on the personal knowledge of the assistant prosecutor who signed it and
is not trustworthy. Had that argument been made below, the State potentially
could have amplified the prosecutor's certification with supporting
documentation from police records, or perhaps an additional certification from
one of the police officers. That process did not occur because defendant
presented no timely opposing arguments.
Moreover, there is no indication that defendant ever moved to suppress
the DNA evidence once the laboratory testing revealed an incriminating match.
Had such a pretrial motion to suppress been made, the State would have had a
fair opportunity to oppose the motion and marshal responsive proofs. Instead
of filing such a motion, defendant's counsel at trial simply attempted to attack
the chain of custody of the DNA samples and the testing methodology, but did
not argue the buccal swab had been illegally obtained.
In light of this clear non-compliance with Rule 3:5-7(f), we must reject
defendant's belated effort to resuscitate arguments that should have been duly
presented to the trial court. The issue has been waived. Consequently, we do
not reach the merits of defendant's present contentions of illegality of the buccal
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swab. In particular, we need not decide here whether the standards for such
applications delineated by the Supreme Court in Gathers in July 2018
retroactively apply to an application the State presented nearly two years earlier
in 2016.
B.
Defendant's other argument concerning the certain-persons jury charge is
also unavailing, and it requires little comment.
In its final charge to the jury, the trial court explained the discrete
elements that must be established to prove guilt of a certain-persons offense. As
part of that charge, the court appropriately instructed that, as the third listed
element, the jury would need to find that "defendant is a person who has
previously been convicted of a predicate offense." (Emphasis added). The court
then went on to advise the jury that the parties had "stipulated or agreed that the
defendant had previously been convinced [sic] of a crime or a predicate offense."
(Emphasis added). 4 The court went on to summarize this instruction, reiterating
that the State was obligated to prove defendant "is a person who was previously
convicted of a crime that is a predicate offense." (Emphasis added).
4
This wording also appears on the written draft charge.
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Defendant did not object to any of these jury instructions at trial. On
appeal, he now seizes upon the court's one-time reference to "a crime or a
predicate offense," instead of stating a crime that "is" a predicate offense.
(Emphasis added). Defendant hypothesizes that the jury must have been
confused by this phraseology, and possibly one or more jurors voted to convict
him by impermissibly finding that he previously had been guilty of a crime that
was not an enumerated predicate offense under N.J.S.A. 2C:39-7(b). He
contends the verdict might not have been unanimous, because one or more jurors
might have mistakenly thought he had not committed a predicate offense but
merely a "crime" that is not enumerated in the statute.
There is no merit to this semantic argument. Since defendant did not
object to the jury charge, he must demonstrate plain error on appeal to obtain
relief. State v. Walker, 203 N.J. 73, 89-90 (2010). The claimed error must be
so egregious that it "rais[es] a reasonable doubt as to whether the error [in the
charge] led the jury to a result it otherwise might not have reached." State v.
Tierney, 356 N.J. Super. 468, 477 (App. Div. 2003) (quoting State v. Macon, 57
N.J. 325, 336 (1971)). Moreover, in assessing whether such a plain error
occurred in connection with a jury charge, we must consider the charge as a
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whole, not just an isolated segment of it. State v. Torres, 183 N.J. 554, 564
(2005).
We discern no plain error here. At most, the trial court's singular reference
to "a crime or a predicate offense" appears to be a minor lapse, one that was
promptly cured by the court's reference moments later to the State's obligation
to prove defendant is a person who was previously convicted of a crime that " is
a predicate offense." (Emphasis added). Moreover, the verdict sheet supplied to
the jurors plainly set forth this element, accurately reflecting the parties'
stipulation:
How do you find as to the Count One of the
Indictment, which charges the Defendant, Deon
Browne, with Certain Persons not to Possess a Firearm,
in that on April 19, 2015, in the City of Trenton, he did,
having been convicted of a predicate offense, possess
and/or control a firearm, to wit: a Cobra Firearm .380
handgun?
[(Emphasis added).]
For these many reasons, defendant's request for a new trial on this basis
must fail.
Affirmed.
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