STATE OF NEW JERSEY VS. BRAULIO A. LOPEZ (16-02-0436, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0900-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRAULIO A. LOPEZ,
Defendant-Appellant.
_____________________________
Submitted October 10, 2019 – Decided October 18, 2019
Before Judges Fuentes and Haas.
On appeal from the Superior Court of New Jersey,
Essex County, Law Division, Indictment No. 16-02-
0436.
Joseph E. Krakora, Public Defender, attorney for
appellant (Stephen P. Hunter, Assistant Deputy Public
Defender, of counsel and on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Caroline C. Galda,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
On February 8, 2016, an Essex County grand jury returned a one-count
indictment charging defendant Braulio Lopez with second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b). The trial judge thereafter granted
defendant's motion to suppress certain statements he made to the police at the
time of his arrest, but denied defendant's motion to suppress the handgun.
Following a trial, a jury convicted defendant of the offense charged, and the
judge sentenced him to five years in prison with a forty-two-month period of
parole ineligibility. This appeal followed.
On appeal, defendant presents the following contention:
THE JUDGE IMPROPERLY COMMENTED ON THE
EVIDENCE WHEN HE TOLD THE JURY THAT
THERE WAS NO EVIDENCE OF ANY KIND OF
ILLEGAL POLICE CONDUCT. THIS IMPROPER
INSTRUCTION DENIED DEFENDANT HIS RIGHT
TO PRESENT A DEFENSE BECAUSE THE
INSTRUCTION EFFECTIVELY TOLD THE JURY
TO DISREGARD DEFENDANT'S TESTIMONY.
U.S. Const. Amend. VI, XIV; N.J. Const. Art. I, ¶¶ 1,
10.
After reviewing the record in light of the argument advanced on appeal,
we affirm.
I.
On May 2, 2015, three members of the Newark Police Department's
Firearm Interdiction Team (FIT) were on duty in Newark. Officers assigned to
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the FIT are responsible for attempting to find illegal firearms. The two vehicles
used by the officers that night were not equipped with video cameras and,
therefore, they could not record any traffic stops they conducted.
At approximately 10:00 p.m., the officers noticed a car pulling out of a
fast-food restaurant without its lights on. The car made several turns without
activating its lights. Based on this clear traffic violation, the officers stopped
the car.
Defendant was sitting in the front passenger seat. One of the officers
approached the car and began speaking to defendant. The officer noticed
defendant looking around nervously as he moved his hands near his waistband,
which drew the officer's attention to that area. The officer saw a bulge under
defendant's shirt, and suspected it was a weapon. The officer then asked
defendant to get out of the car and as defendant was spreading his legs to be
frisked, a handgun fell out through his pant leg and struck the ground.
The officers arrested defendant and charged him with second-degree
unlawful possession of the handgun. The officers searched the two other
occupants of the car and, when no additional weapons were found, released
them.
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At trial, defendant testified that the officers approached the car with their
guns drawn and immediately ordered him to get out of the car. Defendant
claimed that the officers then searched the car, found the handgun, and blamed
him for it. Defendant asserted the gun did not belong to him and he did not
know who owned it.
Prior to the trial, the judge found that the traffic stop was lawful, and
denied defendant's motion to suppress the handgun. However, the judge
suppressed statements made by defendant at the scene claiming ownership of
the gun because he provided this information to the officers before they advised
him of his Miranda1 rights.
During his closing statement to the jury, defendant's attorney asserted that
the FIT's vehicles were not equipped with video cameras so that the officers
could take illegal actions without being detected. Defense counsel stated, "this
special unit in charge of taking weapons from people, they were not equipped
with this recording device. Why not? Do they want to be able to make illegal
stops, make up something so that they can search a car?"
Defendant's attorney quickly made a second statement in this same vein,
stating that the mission of the FIT was to
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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try[] to pull guns off the street. But they can't just do
it. They, they, they have to make up a story in order to
get into that car. And that's why they're not, they're not
using recordings. Because they, they don't want to
document what's happening. They could, but they don't
want to. They want to have a little leeway, a little
elbow room, to go through that car.
Defense counsel soon raised this assertion again, and told the jury that "in order
to make the [FIT] story work, they have to give certain facts that give them the
greenlight to take these people out of their car to do this little search of theirs."
At this point, the prosecutor objected and the judge conducted a sidebar
conference to address the matter. The State argued that defense counsel was
wrongfully asserting that the officers committed illegal acts by not having video
cameras on their cars to record the stops they made. Defense counsel stated that
he did not mean to state that the officers acted illegally and did not recall using
that term.
The judge sustained the State's objection, finding that defense counsel
could not make "references to illegality" in the absence of any evidence in the
record to support that claim. Instead, the judge instructed the attorney to limit
his remarks to the testimony presented by the witnesses.
The judge and the parties then discussed what instruction to give to the
jury to address the matter. The parties agreed that the judge should instruct the
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jury "that there is no evidence in the case with regards to police conduct[,]" and
"they are to disregard and not consider that. . . . Again, their recollection is what
counts."
When the sidebar discussion concluded, the judge instructed the jury as
follows:
Okay. Ladies and gentlemen, just very briefly.
There was a legal matter at sidebar, which I just heard.
I just want to instruct you that if there's any reference
that you may have heard with regards to any kind of
illegal police conduct that there's no evidence of that in
this case. Okay? So, if any reference to that was made,
that is for you to disregard.
However, again, it is your recollection as to the
evidence. You heard all the testimony here today.
Whatever counsel says, both the State and the Defense
say in their summations i[s] their recollection of the
evidence. But it's your recollection that controls. All
right? You understand that. That's their commentary.
And what they're saying is not evidence in the case.
Okay?
Defense counsel did not object to this instruction and then completed his
summation.
During his final charge to the jury, the judge provided the jury with these
additional instructions:
During the course of the trial, I was required to
make certain ruling on the admissibility of evidence,
either in or outside of your presence. These rulings
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involve questions of law. The comments of the
attorneys on these matters were not evidence. In ruling,
I decided questions of law, and whatever that ruling
may have been in a particular instance, you should
understand that it was not an expression of my, or any
opinion by me on the merits of the case.
Neither should my other rulings on any aspect of
the trial be taken as favoring one side or the other. Each
matter was decided on its own merits. Now, I may have
sustained an objection to some questions asked by
counsel, which may have contained statements of
certain facts. The mere fact that an attorney asks a
question and inserts facts or comments or opinions in
that question i[n] no way proves the existence of those
facts. You will only consider such facts which, in your
judgment, have been proven by the testimony of the
witnesses or from the exhibits that have been admitted
into evidence.
The judge also told the jury:
Regardless of what counsel said or I may have
said, recalling the evidence in this case, it is your
recollection of the evidence that should guide you as
judges of the facts. Arguments, statements, remarks,
openings, and summations of counsel are not evidence
and must not be treated as evidence. Although the
attorneys may point out what they think is important in
this case, you must rely solely upon your understanding
and recollection of the evidence that was admitted
during the trial.
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II.
On appeal, defendant argues that the judge erred by preventing his
attorney from asserting in his summation that the officers acted "illegally" in not
having video cameras available to record the traffic stop. We disagree.
It is well established that a trial judge has the discretion to control the
summations of counsel, including the ability to limit their remarks "to fair
comment on the evidence before the jury." State v. Reynolds, 41 N.J. 163, 176
(1963). Accordingly, "[t]he scope of [a] defendant's summation argument must
not exceed the 'four corners of the evidence.'" State v. Loftin, 146 N.J. 295, 347
(1996) (quoting Reynolds, 41 N.J. at 176). "Thus, it is proper for a trial court
to preclude references in closing arguments to matters that have no basis in the
evidence." State v. Jones, 308 N.J. Super. 174, 185 (App. Div. 1998).
This court's decision in State v. Royal, 386 N.J. Super. 162, (App. Div.
2006) provides an apt example of the application of these settled principles. In
Royal, we found reversible error in the trial court's inclusion of a curative
instruction that effectively neutralized a defense attorney's closing argument,
which had asserted that the State's unexplained failure to present fingerprint
evidence linking the defendant to the murder weapon gave rise to a reasonable
doubt that the defendant had committed a murder. Id. at 167-68. Noting that
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the issue was one of first impression in New Jersey, the court chose to adopt a
rule from a case decided in the Maryland Court of Appeals. Id. at 173 (citing
Eley v. State, 419 A.2d 384, 386 (Md. 1980) ("[W]here there is unexplained
silence concerning a routine and reliable method of identification especially in
a case where the identification testimony is at least subject to some question, it
is within the scope of permissible argument to comment on this gap in the proof
offered.")).
However, the court also recognized that "[t]he right to comment on
fingerprint evidence is, of course, not without limits." Id. at 173. In particular,
the court noted that comments in summation must be based on evidence deduced
at trial, stating "without evidence to support the contention, [the] defendant
cannot argue that the failure to obtain fingerprints did not comply with good
police practice, or that if fingerprints had been obtained, they would have
exculpated [the] defendant." Ibid.
Applying these principles here, we conclude that the judge properly
exercised his discretion by directing defense counsel to refrain from asserting
that the FIT officers acted "illegally" because they did not have video cameras
on their cars to record the traffic stop, and instructing the jury to disregard those
comments. Defendant did not present any evidence that the Newark Police
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Department was required by law to equip all police vehicles with cameras, or
that it was illegal not to record a traffic stop. Because defense counsel's
assertions clearly exceeded the "four corners of the evidence," the judge
correctly granted the State's objection.
At the same time, the judge carefully instructed the jury that the arguments
of counsel did not constitute evidence in the case, and that it was their
recollection of the testimony that should control their deliberations. The judge
provided the jury with further detailed instructions on these issues at the
conclusion of the trial.
Under these circumstances, we are satisfied that the judge's ruling was
proper and did not amount to an abuse of discretion.
Affirmed.
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