STATE OF NEW JERSEY VS. BERNARD JONES(14-01-0220 AND 14-01-0222, 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NOT FOR PUBLICATION WITHOUT THE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-4211-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BERNARD JONES, a/k/a JAMES
BERNARD,
Defendant-Appellant.
________________________________________________________________
Submitted September 14, 2017 – Decided November 20, 2017
Before Judges Alvarez and Nugent.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
Nos. 14-01-0220 and 14-01-0222.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele E. Friedman, Assistant
Deputy Public Defender, of counsel and on the
brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Lucille
M. Rosano, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Tried by a jury, defendant Bernard Jones was convicted of
second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-
5(b), and fourth-degree certain persons not to have a weapon,
N.J.S.A. 2C:39-7(a). On January 19, 2016, he was sentenced on the
possession offense to nine years imprisonment subject to fifty-
four months of parole ineligibility, and a concurrent eighteen
months on the certain persons charge. He now appeals, contending
that trial errors warrant reversal. Defendant also contends that
the judge's failure to expand on his reasons for the sentence, and
to order a mental health evaluation before imposing the sentence,
warrant a remand. We do not agree and thus affirm.
We derive the following circumstances from the trial record.
On September 18, 2013, at about 10:50 p.m., Newark Police
Department Sergeant Joseph Frost was told by a guard stationed at
the security gate of an apartment complex that there was a
suspicious vehicle in the rear. Frost also testified that as he
and his partner approached the area, they saw a black Pontiac with
the interior and exterior lights on, windows partially rolled
down. They left their patrol car and began to walk towards the
Pontiac from both sides. Frost smelled marijuana and noticed an
open can of beer in the front seat console. When defendant saw
the officers, he raised his hands up in the air and said, "Oh
shit, I'm caught. I'm going to jail." Frost immediately directed
his flashlight into the car and saw a handgun on the floor between
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defendant's legs. Detective Jesus Rivas patted defendant down
once he was removed from the car, and recovered four rounds of
ammunition from defendant's front right-hand pocket.
Defendant testified, and denied having been in possession of
a gun, claiming he saw it for the first time when it was shown to
him at the police station after his arrest. He also testified,
contrary to the officers, that the ammunition was found in a baby's
sock located in the pouch behind the passenger seat.
The vehicle's other occupants included defendant's sister,
her best friend, and a cousin. Although he did not accuse anyone
of being in possession of the gun, defendant implied that the
officers "put it on him," despite the fact that the weapon and
ammunition may have belonged to others in the car. When arrested,
defendant had a box cutter in his pocket that he used at work.
In her closing argument, defendant's attorney noted that the
handgun had no fingerprints. She reiterated defendant's statement
that he had never seen the gun in the vehicle and knew nothing
about it until he heard the officers say "gun" at the scene.
Counsel focused on the conflicts in the testimony, suggesting to
the jury that the gun was located elsewhere in the car and that
because three of the four occupants of the vehicle were women, the
officers charged defendant, the only man.
In response, the prosecutor said:
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At the end of the day, though, the point that
[defendant] wanted to make was clear he wanted
to make it a point that all of the police
pinned the gun on him; that the gun was pinned
on him. They had it. They got it from somewhere
else, they pinned it on him.
If the police wanted to pin this gun on this
defendant don’t you think they would have been
done [sic] a better job of it? Let’s start
with everything that the police could have
done if they were really out to pin it on this
defendant.
He said that there was a blunt in the car.
Well, drugs are against the law and [] Frost
said he definitely smelled the smell of smoke.
The defendant said they searched the car.
Well, they searched the car and if they’re out
to pin things on the defendant where is the
drug charge?
He said he had a box cutter on him. That’s a
weapon, ladies and gentlemen. Where is the
weapon charge for the box cutter? The judge
is going to tell you about the law and when
you get the definitions for actual possession
and joint possession and constructive
possession, you're going of learn that under
the facts, the police could have charged
everybody in that car with possession of the
gun.
Now, they didn't do that. They charged just
the driver with the open container ticket
because she had a Bud Ice in the center
console. And then they charged the defendant
with a gun.
[] Frost said the reason why he was charged
with a gun was because it was in his
possession. He had it, within arm's reach
fully loaded ready to go. He also had the
bullets in his pocket. That is indicative of
possession [ ] in and of itself. When you look
at the picture together that's compelling.
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The defendant's own words, "Aw, shit. I'm
caught. Hands up. I surrender." He was
compliant. If the police were out to get him
they could have said he resisted and charged
him with something else. They didn't do that.
They exercised their discretion. They charged
appropriately and they arrested the one
defendant, this man, for the gun.
During his presentence interview, defendant told the
probation officer that at times he heard voices. He had never
received treatment for a mental health condition, previously told
anyone about this, was not on any medication, and was never
diagnosed as having a mental illness.
On appeal, defendant raises the following points:
POINT I
THE PROSECUTOR COMMITTED MISCONDUCT BY
BOLSTERING THE CREDIBILITY OF THE STATE'S
WITNESSES AND BY MISCHARACTERIZING FROST'S
TESTIMONY.
POINT II
THE STATE'S INTRODUCTION OF HEARSAY TESTIMONY
FROM AN UNNAMED DECLARANT REGARDING THE SO-
CALLED SUSPICIOUS NATURE OF THE VEHICLE
WARRANTS REVERSAL.
POINT III
THE MATTER SHOULD BE REMANDED FOR
RESENTENCING, BECAUSE THE SENTENCING COURT
FAILED TO ADEQUATELY EXPLAIN THE BASIS FOR THE
SENTENCE, AND THE NINE-YEAR TERM OF
IMPRISONMENT WITH A 54-MONTH PAROLE
DISQUALIFIER IS MANIFESTLY EXCESSIVE AND
UNDULY PUNITIVE.
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Neither of the first two points were raised during the trial.
Accordingly, they do not warrant reversal unless the alleged error
was "of such a nature as to have been clearly capable of producing
an unjust result," or if it is in the interests of justice to do
so. See R. 2:10-2.
I.
We only reverse based on improper remarks made during
summation when the conduct "was so egregious that it deprive[s]
the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83
(1999). Remarks are ordinarily not deemed prejudicial if no
objection is raised at trial. Counsel's failure to object suggests
that defense counsel "did not believe the remarks were prejudicial
at the time they were made," and it also "deprives the court of
an opportunity to take curative action." Id. at 84.
In this case, the prosecutor's remarks are unobjectionable
and intended to refute defendant's testimony that the police "put
it on him[,]" or that he was arbitrarily selected to be the person
who would be charged with possession due to some unidentified
animus. The prosecutor's comments merely pointed out that if
falsely incriminating defendant had been the officers' purpose,
they would have done a "better job of it[.]" Defendant was not
charged with a marijuana offense, nor with possession of the box
cutter. Only the driver was charged with an open container. The
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prosecutor was merely arguing that charging defendant with only
the gun offenses supported the credibility of the officer's
testimony. This was fair comment on the evidence, and the
reasonable inferences which could be drawn therefrom. See id. at
82-83. It was an appropriate response to defendant's summation.
The prosecutor's theme had to be witness credibility, because
defendant contradicted the officers in essential respects. If
defendant was believed, he would have been acquitted. Thus,
pointing out the limited charges against defendant was not improper
bolstering. Nor was it a mischaracterization of Frost's testimony.
II.
Defendant next contends that the officer's statement that
police were directed to the rear of the apartment complex because
a suspicious vehicle was parked in that area, violated his right
of confrontation, and exceeded the permissible boundaries outlined
in State v. Bankston, 63 N.J. 263 (1973), and State v. Branch, 182
N.J. 338 (2005). In Branch, an officer "testified that he included
defendant's picture in a photographic array because he had
developed defendant as a suspect 'based on information received.'"
Id. at 342. He also testified to the out-of-court descriptions
of a burglar given by "non-testifying child victims." Ibid.The Court found the testimony to be "inadmissible hearsay
that violated defendant's right of confrontation." Ibid. The
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source of the information was not called as a witness, and
defendant had no opportunity to cross-examine. Thus, the testimony
violated defendant's constitutional rights. Id. at 348. The
upshot of Bankston and Branch is that a police officer may not
suggest to the jury that he has incriminating information about
defendant, which information is not being shared with the jury.
A defendant has a constitutional right to confront his
accusers. U.S. Const. art. VI; N.J. Const. art. I, ¶ 10; Branch,
supra, 182 N.J. at 348. "The right of confrontation is an essential
attribute of the right to a fair trial, requiring that a defendant
have a 'fair opportunity to defend against the [s]tate['s]
accusations.'" Branch, supra, 182 N.J. at 348 (quoting State v.
Garron, 177 N.J. 147, 169 (2003), cert. denied, 540 U.S. 1160, 124
S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)). Accordingly, statements
made by non-testifying persons suggesting defendant is involved
in unlawful conduct are excluded unless admissible on some other
basis, and unless defendant had the opportunity for cross-
examination. State v. Cabbell, 207 N.J. 311, 329-30 (2011) (citing
Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369,
158 L. Ed. 2d 177, 197 (2004)). They must be excluded if they
connect in some improper manner to the criminal prosecution being
tried. Id. at 329.
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These principles are not violated, however, when an officer
explains, without excessive detail, the reason he approaches a
suspect or goes to the scene of a crime. Bankston, supra, 63 N.J.
at 268; see also State v. Luna, 193 N.J. 202, 217 (2007). As a
result, an officer's explanation for his presence at the scene of
a crime based on "information received" is not improper.
Thus the officer's explanation for going to the rear of the
apartment complex did not violate defendant's right to
confrontation. The guard's characterization of the vehicle did
not implicate defendant in the crime. The officer's testimony
merely explained his presence. His statement did not suggest that
police had superior knowledge outside the record which would
incriminate defendant, nor did it imply that he was the perpetrator
of a crime. Hence, the admission of the testimony is not
reversible error.
III.
During the sentencing hearing, the prosecutor stated that the
weapon recovered was loaded with six live rounds, and that in
addition to a round in the gun's chamber, four live rounds were
found in defendant's front right pants pocket. In addition to a
juvenile record and disorderly persons convictions, defendant was
convicted of third-degree unlawful possession of a handgun in
2007. Defendant was eligible for an extended term of twenty years
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with ten years of parole supervision but because the issue was not
raised when the matter was placed on the trial list, the State
limited its request to a ten-year sentence of imprisonment subject
to five years of parole ineligibility.
The judge found defendant was subject to the Graves Act,
N.J.S.A. 2C:43-6(c). He also found that defendant had been given
the benefit of probation, and had previously failed to complete
it. In light of his criminal history, the judge found aggravating
factors 3, 6, and 9 and no factors in mitigation. See N.J.S.A.
2C:44-1(a)(3), (6), and (9). After weighing the factors, the
judge sentenced defendant to nine years subject to fifty-four
months of parole ineligibility. The sentence does not shock our
conscience. See State v. Roth, 95 N.J. 334, 363-64 (1984).
Finally, defendant's claim that his mention to the
presentence report author that he heard voices should have resulted
in a mental health evaluation lacks merit. It does not warrant
discussion in a written decision. R. 2:11-3(e)(2).
Affirmed.
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