STATE OF NEW JERSEY v. JAMAL STRATTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5175-04T55175-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMAL STRATTON,

Defendant-Appellant.

____________________________________________________________

 

Argued May 23, 2006 - Decided August 30, 2006

Before Judges Lefelt and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 04-01-0037-I.

Scott E. Becker argued the cause for appellant.

Jack J. Lipari, Assistant Prosecutor, argued the cause for respondent (Jeffrey S. Blitz, Atlantic County Prosecutor, attorney; Mr. Lipari, on the brief).

PER CURIAM

Defendant, Jamal Monroe Stratton, appeals from his convictions, following a bench trial, for unlawful possession of a weapon, N.J.S.A. 2C:39-5f (count one) and possession of a weapon by a convicted person, N.J.S.A. 2C:39-7 (count two). Defendant was sentenced on count one to a term of five years with a five-year period of parole ineligibility pursuant to N.J.S.A. 2C:39-7, and, on count two, to a concurrent term of three years.

On this appeal, defendant makes the following assertions of error:

POINT I: INSUFFICIENT EVIDENCE EXISTED UPON WHICH THE TRIAL COURT COULD HAVE FOUND CONSTRUCTIVE POSSESSION OF A FIREARM.

POINT II: CONSIDERATION BY THE COURT OF A CO-DEFENDANT'S FAILURE TO INCRIMINATE HIMSELF TO EXONERATE THE DEFENDANT IN DETERMINING THE GUILT OF THE DEFENDANT WAS IMPROPER.

We agree with defendant's first assertion of error and reverse his conviction.

The following facts were adduced at trial. The weapon, a rifle, that defendant was convicted of possessing was found on November 3, 2003, following a search of the home of defendant's grandmother and step-grandfather, Alexander Rhone, pursuant to a search warrant. The warrant was issued following a three-week investigation of Rhone. The investigation consisted of surveillance of Rhone's home for about three weeks, information provided by a confidential informant and the purchase of a controlled dangerous substance (CDS) from Rhone both at his home and elsewhere. The information gathered through this investigation and information provided by a confidential informant also revealed that Rhone was known to possess firearms.

The investigation did not reveal any information about defendant. The investigation failed to show any participation by defendant in any illegal activity, nor did it show the defendant was present at Rhone's home during the three-week period of investigation.

Police officers entered Rhone's home and found him lying on a couch in a dining room area on the ground floor. The officers found illegal drugs and $2,000 in currency on the ground floor. When the officers reached the top landing of Rhone's home to continue their search, they encountered defendant coming out of a rear bedroom. He was wearing a t-shirt and boxer shorts. The officers told defendant to get down. Defendant told one of the officers that he did not live there, that he was present to help his grandfather.

Officers then entered the rear bedroom, the one which the defendant had been seen leaving, to conduct a search. The bed was unmade. The television was on. There were clean clothes and dirty clothes scattered about, as well as new shoes and old shoes. The officers found, inside a drawer in the room, defendant's birth certificate, as well as a letter addressed to him at the Rhone address several months prior.

A weapon was also found in a hollow in the rear base of a floor model television that was set on top of a dresser and pushed against a wall in that bedroom. The only access to the weapon would have been through the back of the hollow, which required that one pull the television away from the wall. The weapon was also wrapped in what appeared to be a pillowcase. Defendant's fingerprints were not found on the gun.

At trial, defendant testified on his own behalf. He related that he had resided at the Rhone residence prior to his incarceration and, when he was paroled, his approved parole address was Rhone's residence. He requested permission from his parole officer to move to Pleasantville to reside with his mother. Defendant testified that he had made that request because he thought Rhone was involved in drug activity and he wanted to remove himself from that situation. The request to relocate was granted. He testified that a Division of Motor Vehicle Identification Card reflecting the Rhone address had been reissued to him in October 2003 after he had lost his ID card on the job. It was stipulated this loss was reported to the Ocean City Police Department. Defendant had used his grandparents' address because of the points of identification now required by State law. It was easier to use his prior address, as it required fewer documents.

Defendant denied owning or knowing about the rifle found in the room. He testified that when he arrived at the Rhone household early on the morning of the search, he made himself comfortable in the bedroom in which he once resided and had been watching television on a second set located in the room.

Defendant's grandmother testified that defendant had moved in with his mother and did not stay overnight at her house after that. She stated that defendant was present at her house on the date of the search because she had asked him to stay with his sick grandfather while she took defendant's mother to a Philadelphia hospital for surgery. According to his grandmother, defendant could not drive his mother because he did not have a license. Defendant's grandmother also testified that at various times, other people used the room where the weapon was found, including her other grandchildren and Rhone. She stated that when defendant moved, he had left older clothing at her residence.

Defendant's mother testified that defendant moved in with her and the defendant's stepfather in Pleasantville some time in June 2003. Her testimony was consistent with defendant's grandmother's testimony, that defendant had gone to his grandmother's house to stay with Rhone while her mother took her to Philadelphia for surgery.

The judge found that defendant constructively possessed the weapon since he had previously resided in that room for a long period of time and "he had sufficient contacts there to equate him with a person who was in possession of the premises." According to the court, defendant "was able to come and go as he pleased, and had all indications of a residen[t] at a time before the date in question."

The court did acknowledge that "[w]hile an argument can be made that that it is not necessary to hide the gun where it was found, it would appear from Exhibit I in evidence that some kind of movement of the dresser and or television and or storage area of the gun would have to be done." According to the court, it was "more plausible . . . that the bedroom was this defendant's bedroom when he lived there and was his bedroom on the day in question. All of the personal items, clothes and other things found in the bedroom were his, or there with his knowledge and control."

The court also found defendant's mother's testimony "that she 'believed' that he was in her home on the night in question and that she 'believed' that he was there at 4:30 a.m. when she left to go to the hospital for the operation[,]" to be not credible. The court stated that "[i]f the defendant by his own admission was asked to go and take care of his grandfather, why would he sleep at his house until 6:00 a.m. and have a friend come to pick him up and drive him to his grandfather's house at 6:00 a.m. when, in fact, his grandmother and mother left for Philadelphia at 4:30 a.m. thereby defeating the purpose of him being continually with his sick grandfather."

To review the judge's factual determination in this case, we are guided by several well established principles of appellate review. Our scope of review is limited to determining whether the findings by the trial judge could reasonably have been reached on sufficient credible evidence in the record, considering the proofs as a whole and giving due deference to the trier of fact who had the opportunity to hear and see the witnesses and have the "feel" of the case. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964).

We first take note that at oral argument, defendant adequately explained that he could not leave his mother's house and go to his grandmother's house until after 6:00 a.m. because his parole restrictions included a 9:00 p.m. to 6:00 a.m. curfew. Therefore, we decline to defer to the court's credibility finding in that respect.

In State v. Spivey, 179 N.J. 229, 236-37 (2004), the Supreme Court held that "[a] person constructively possesses an object when, although he lacks 'physical or manual control,' the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." The Court observed that:

A person does not abandon legal possession of the items in his home every time he exits the front door. See State v. Merritt, 247 N.J. Super. 425, 430 (App. Div.) ("[A] person who stores firearms in his home would be considered to be in possession of the firearms when he is away from home[.]"), certif. denied, 126 N.J. 336 (1991). A person who leaves his tennis racket behind as he goes to work retains constructive possession of that racket so long as he has the intent and ability to exercise control over it some time in the future, say, to play tennis.

[Ibid. (first alteration in original).]

There was not sufficient credible evidence presented that, on the date in question, defendant was living in the room where the weapon was found nor that he was ever aware the weapon was in that bedroom. The gun was hidden in a hollow in the bottom of a floor model television set that was positioned on top of a dresser and pushed against the wall. To gain access to the weapon, the television would have to be moved away from the wall. The weapon was not visible to a person in the room. Neither defendant's presence in the room, nor the presence of certain of his personal items supports a reasonable inference that defendant knew of the weapon's presence in the hollow and that he "had the intention and capacity to exercise dominion over [it]." See Spivey, supra, 179 N.J. at 237. Thus, we reverse defendant's conviction and remand for entry of an order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 42, 102 S. Ct. 2211, 2218, 72 L. Ed. 2d 652, 661 (1982) (observing that the Fifth and Fourteenth Amendments prohibit retrial on conviction overturned on appeal for lack of sufficient evidence). See also State v. Reddish, 181 N.J. 553, 617 (2004).

We find it unnecessary to address defendant's Point II regarding the judge's loose statement regarding Rhone's failure to come forward to exonerate the defendant. We merely note that the court should refrain from placing information on the record that it is not relying on to make its decision.

Reversed and remanded for entry of an order of acquittal.

 

(continued)

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9

A-5175-04T5

 

August 30, 2006