STATE OF NEW JERSEY v. DARYL NORMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2925-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARYL NORMAN, a/k/a DARYL VENEY,

DARRYL NORMAN, WILLIAM BRYANT,

Defendant-Appellant.

___________________________________

January 17, 2014

 

Argued May 31, 2012 - Decided

Before Judges Fuentes, Harris and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Gloucester County, Indictment No.

08-12-1074.

Daniel V. Gautieri, Assistant Deputy Public

Defender, argued the cause for appellant (Joseph E.

Krakora, Public Defender, attorney; Mr. Gautieri,

of counsel and on the brief).

Hillary Horton, Deputy Attorney General, argued

the cause for respondent (Jeffrey S. Chiesa, Attorney

General, attorney; Ms. Horton of counsel and on the

brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

Defendant Daryl Norman was tried before a jury and convicted of second degree possession of a weapon with purpose to use it unlawfully, N.J.S.A. 2C:39-4(a), and second degree possession of a weapon by a person previously convicted of one of the crimes listed in N.J.S.A. 2C:39-7(b). On the State's motion, the trial court thereafter dismissed the second degree conviction based on N.J.S.A. 2C:39-7(b) because the predicate offense upon which the conviction rested was not one of the offenses that trigger the applicability of the statute. The trial court sentenced defendant on the remaining second degree offense of possession of a firearm for an unlawful purpose to an extended term of twelve years with six years of parole ineligibility1 as a persistent offender under N.J.S.A. 2C:44-3(a). We affirm.

I

We gather the following facts from the evidence presented to the jury at trial. At all times relevant to this case, Township of East Greenwich Police Officer Sergeant Charles Barone was part of a task force charged to investigate "a rash of armed robberies that occurred throughout Gloucester County." Many of these robberies appeared to target Heritage Stores, a chain of convenience stores primarily located in Gloucester County. The assailant was described as "a tall, black male, wearing a bandana and a hoodie."

At approximately nine in the evening on March 26, 2008, Barone drove his unmarked police car to the Heritage Store in East Greenwich Township. He parked his car in a lot across from the store, in a shadowy area that partially concealed the car. This vantage point gave Barone a clear view into the store's well-lit customer area.

Barone planned to observe the activities in the store, with the hope of spotting the individual who matched the description of the assailant. As Barone explained: "I situated myself in front of the store dressed in plain clothes to monitor the activity of the store, because all the robberies occurred right around the same time, shortly before closing, between 9:00 and 10:00 o'clock [in the evening]." At approximately 9:00 p.m., Barone noticed a car's headlights directly in front of him shut off. About one minute later, he saw an African American man, approximately six feet, five inches tall, "come from [the] side of the street and walk . . . south along Kings Highway directly towards me."

According to Barone, the man, who was subsequently identified as defendant, was wearing a gray hooded sweat shirt, a baseball cap, and a bandana around his neck that partially covered the lower part of his face; he was engaged in a conversation on his cell phone as he walked past Barone's car and headed into the Heritage's parking lot towards the back of the building. Barone soon lost sight of him.

Convinced that defendant was the person who had committed the string of armed robberies, Barone called for back-up police officers "to respond to the area of the Heritage to assist me in setting up a perimeter around the area." Barone testified that he did not want the responding officers to come with overhead lights flashing or sirens sounding because he did not know "what the defendant was doing or where he had gone." East Greenwich Police Sergeant Francesco and Patrolmen Seas, Mesick, and Robestello responded to Barone's call for backup.

After strategically deploying the back-up officers around the area of the Heritage Store, Barone saw defendant "running very quickly from the same side of the building that I had lost sight of him. He now appeared to be running very quickly in my direction." Barone testified that defendant ran out of the parking lot and across Kings Highway "without even looking for traffic, just darted out." Defendant ran past Barone at an angle, continued to run across a lawn at the corner of Weatherby Avenue and Kings Highway, and eventually slowed down to a fast walk as he reached the middle of the yard.

Barone followed defendant in his unmarked police car.2 At one point, Barone saw defendant lean down into a brush area near a tree for a few seconds; he soon stood up and continued to walk parallel to Weatherby Avenue. Patrolman John Seas detained defendant as the latter attempted to walk away. When asked to characterize or clarify the nature of defendant's status at this point, Barone indicated that he was being detained to facilitate an investigation. Thus, although defendant was not under arrest at this point, he was nevertheless not free to leave until the police officers completed their investigation "to ascertain some information as to what was happening."

At this point, Barone "retraced the footsteps that I saw the defendant go from the back of the store to the side yard and to where he was finally detained." According to Barone, the weather conditions at the time were not a factor and did not in any way affect the investigation. When Barone reached "the brush area around the tree that I saw [defendant] lean into, and I looked and I saw the silver and black gun setting in the brush, facing outward." Barone used a flashlight to help him see the entire gun. To protect the integrity of the crime scene, Barone instructed one of the officers to tape off the area and thereafter stationed one of the officers to prevent any contamination or alteration of the area.

Barone directed a patrolman to arrest and search defendant. No incriminating evidence was found on defendant's person. Barone also apprised defendant of his constitutional rights under Miranda.3 Defendant claimed he had just stepped out of the car to stretch his legs when he was abruptly arrested without cause. According to Barone, when he told defendant that he had found what he placed under the tree, defendant responded: "You didn't see me with no gun." The State emphasized this statement was a significant implicit admission of culpability by defendant because, at this point, Barone had not said anything to defendant about finding a handgun or any other weapon. When Barone finally informed defendant of the reasons for his arrest, defendant denied any knowledge of the weapon and claimed he was in the area to meet a woman.4

The State called Detective Nicholas Danze as an expert witness in the field of forensic evidence and fingerprinting. Danze did not find any latent fingerprints on the weapon. Danze also testified as the State's expert on firearms. He tested the operability of the weapon recovered by the police at the scene. Danze concluded the pistol was not operable. Specifically, the weapon could not fire projectiles, the magazine spring was missing, and the trigger connection was broken. However, if operable, Danze opined the pistol had the capacity of shooting six millimeter projectiles at a velocity capable of penetrating cardboard and causing serious injury to the human eye.

Defendant testified in his own defense. He claimed he was on a cell phone with an associate of a record company at the time, shortly before he was arrested. He stepped out of the car he was driving, which was owned by his girlfriend at the time, only to stretch his legs. He ran across Kings Highway because it was a street busy with traffic, not to elude or evade detection after having discarded an illegal handgun. He also told the police he was in the area to meet a paramour. According to defendant, the bandana and general style of clothing he was wearing the day of his arrest reflected only his association with the hip hop music industry. He denied having any intention to rob the Heritage Store. He admitted to having been convicted of committing third degree offenses in August 1993, February 1997, and March 1998; a second degree offense in March 1998; and a fourth degree offense in February 1997.

II

Against this record, defendant now appeals raising the following arguments.

POINT I

 

THE INSTRUCTIONS REGARDING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WERE DEFICIENT BECAUSE THE COURT NEVER ASKED THE JURORS TO CONSIDER WHETHER THE AIRSOFT GUN WAS A TOY OR WHETHER IT WAS SO BROKEN AS TO NO LONGER RETAIN THE CHARACTERISTICS OF A WEAPON. THE COURT ALSO ERRED IN FAILING TO INSTRUCT ON THE LESSER-INCLUDED OFFENSE OF POSSESSION OF AN IMITATION FIREARM FOR AN UNLAWFUL PURPOSE. (Not Raised Below)

 

POINT II

 

THE PROSECUTOR COMMITTED MISCONDUCT BY ATTACKING NORMAN'S CREDIBILITY ON THE BASIS THAT HE WAS UNFAITHFUL TO HIS GIRLFRIEND. THE COURT ERRED IN FAILING TO LIMIT THE PROSECUTOR'S CROSS-EXAMINATION AND IN FAILING TO INSTRUCT THAT NORMAN'S BAD ACTS WERE NOT TO BE CONSIDERED IN DETERMINING GUILT, AND DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT. (Not Raised Below)

 

POINT III

 

BECAUSE THE AIRSOFT GUN WAS A TOY, THE JUDGE ERRED IN IMPOSING A TWELVE-YEAR EXTENDED-TERM SENTENCE UNDER THE GRAVES ACT.

None of the arguments raised by defendant have merit. As a threshold issue, we note defendant did not object to the jury instructions at the time the trial judge conducted the charge conference required by Rule 1:8-7(b). We thus review any argument attacking the propriety of the jury charges under the plain error doctrine. Under this standard of review, we are obligated to disregard any alleged error or omission in the jury charge "unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. Stated differently, defendant must "demonstrate that the jury instruction was clearly erroneous, and that it caused the jury to reach a verdict it otherwise would not have reached." State v. Simon, 161 N.J. 416, 477 (1999).

The only time defendant questioned the propriety of the jury charges was at the sentencing hearing. Defendant moved to set aside the jury verdict arguing that the trial judge committed reversible error when he failed to instruct the jury to determine: (1) whether the weapon found by Barone was a toy gun, and thus not a firearm as a matter of law; or (2) whether the gun was so damaged and mutilated that it had lost the characteristics of a firearm because it was no longer capable of being fired.

In rejecting defendant's argument, the trial judge first focused on the Criminal Code, which defines "firearm" as

any handgun, rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances. It shall also include, without limitation, any firearm which is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person.

 

[N.J.S.A. 2C:39-1(f).]

 

Relying on the guiding principles established by the Court in State v. Grant, 101 N.J. 573 (1986), the trial judge ruled that the State was not obligated to establish that the weapon was operable to convict defendant of possession of a firearm for an unlawful purpose under the Graves Act. As the Court explained in Grant:

[T]he Graves Act requirement that the State prove that the weapon involved was a "firearm" requires neither proof nor a court finding that the weapon was operable. The court need be satisfied only that the device was originally designed to deliver a potentially-lethal projectile and hence "real." The conclusion regarding the design of the instrument may be based on the variety of forms of proof listed in the Graves Act, N.J.S.A. 2C:43-6(d). In addition, we note in particular that an object's authentic design may be inferred from appearance or based on lay testimony, but in no case is it dependent upon empirical examination of the weapon.

 

[Id. at 589.]

 

The weapon at issue here was not converted into a toy gun merely because it was rendered temporarily incapable of being used in the way for which it was originally designed. Cf. State v. Orlando, 269 N.J. Super. 116, 129-30 (App. Div. 1993), certif. denied, 136 N.J. 30 (1994).

Here, the State's expert witness on firearms testified that the weapon was an airsoft spring loaded gun, modeled to mimic the visual features of firearms that use traditional gunpowder. When the trigger of the airsoft gun is pulled, a pellet, about the size of a BB, is discharged or emitted out of the gun by the force of air. According to the State's expert, the airsoft gun contained pellets six millimeters in diameter, or approximately .2367 inches. The expert also opined that these airsoft guns are capable of causing physical injury to humans, especially if the pellets hit the victim in the eyes. Even an inoperable BB gun is a "firearm" within the meaning of N.J.S.A. 2C:39-1(f). State v. Austin, 335 N.J. Super. 486, 490 (App. Div. 2000), certif. denied, 168 N.J. 294 (2001). Because we are satisfied that the trial court's jury instructions were correct, we need not address the remaining collateral issues raised by defendant in Point One of his argument.

We turn next to defendant's argument concerning the propriety of the prosecutor's questions to defendant on cross-examination. Specifically, the prosecutor asked defendant a series of questions concerning the reasons he was in the area at the time of his arrest. According to Sergeant Barone, defendant told him he was in the area to meet with a woman with the intent of having sexual relations with her. The prosecutor sought to highlight defendant's personal misconduct in this regard. The prosecutor wanted to use defendant's infidelity to his girlfriend (the person whose car he used to drive to the area of his arrest) as indicative of his lack of moral fitness and as a factor to be considered by the jury in determining defendant's credibility.5 The prosecutor crystalized this point by asking defendant "[do] you consider driving . . . a car owned by Christine Morris who, at least at some point was your girlfriend according to you, over to New Jersey . . . for the purpose of meeting a married woman . . . to have sex with her . . . acting in an honest way."

Despite his failure to raise this issue with the court at the time of the charge conference, defendant now argues on appeal that the trial court committed reversible error by failing to instruct the jury on how to consider this evidence in determining his credibility. Defendant also argues the court should have sua sponte excluded this evidence under N.J.R.E. 404(b), as constituting "prior bad acts." "Whether reviewed as plain error or not . . . the question is whether the evidence as a whole 'raises[s] a reasonable doubt as to whether . . . [it] led the jury to a result it otherwise might not have reached.'" State v. Foglia, 415 N.J. Super. 106, 127 (App. Div.), certif. denied, 205 N.J. 115 (2010) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)). A prosecutor is obligated to refrain from improper methods calculated to produce a wrongful conviction and equally bound "to use every legitimate means to bring about a just one." State v. Frost, 158 N.J. 76, 83 (1999).

In reviewing the trial record to determine whether the conduct of the prosecutor exceeded these bounds, we consider whether "timely and proper objections" were raised; whether the offending remarks "were withdrawn promptly;" and whether the trial court struck the remarks and provided appropriate instructions to the jury. Id. at 83. If the remarks at issue were sufficiently egregious, we must reverse the conviction and remand the matter for a new trial, even in the face of overwhelming evidence that a defendant may, in fact, be guilty. Id. at 87. Here, although this line of questioning was arguably improper, we are satisfied that this prosecutorial misstep did not meet the "sufficiently egregious" standard under Frost. Stated differently, this line of questioning did not have the capacity to lead the jury to a result it otherwise would not have reached. Foglia, supra, 415 N.J. Super. at 106. Any claims concerning the performance of trial counsel in this respect are not suited for review on direct appeal. State v. Preciose, 129 N.J. 451, 462 (1992). Defendant retains the right to raise this issue in the context of a post-conviction relief petition filed under Rule 3:22-2.

F

inally, defendant's arguments concerning the sentence imposed by the court lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The court found aggravating factors 3, 6, and 9, N.J.S.A. 2C:44-1(a), and imposed a discretionary extended term authorized by N.J.S.A. 2C:44-3(a). Because the jury found the airsoft gun was a firearm under N.J.S.A. 2C:39-1(f), the firearm requirement for a Graves Act sentence is satisfied. Orlando, supra, 269 N.J. Super. at 133. The ultimate sentence imposed by the court was well within the trial judge's discretionary authority and supported by the record. State v. Dalziel, 182 N.J. 494, 500 (2005).

Affirmed.

1 The court imposed the period of parole ineligibility under the provisions commonly known as the Graves Act, N.J.S.A. 2C:43-6(c).

2 Barone did not definitively recall whether he activated the car's emergency lights or sirens.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 Although not directly germane to the issues raised here, Barone testified defendant told him he was in the area to meet with two separate women. Barone indicated that defendant could only give the full name of one of these two women, referring to the other one simply as "Ms. Jones" or "Mrs. Jones."

5 This alleged moral gaffe was compounded by the fact that the woman whom defendant intended to rendezvous with for a sexual encounter was married.