STATE OF NEW JERSEY v. RAPHAEL EDWARDS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAPHAEL EDWARDS, a/k/a JAMAL THOMAS,

RAPHAEL D. EDWARDS, and JAMAL D. THOMPSON,

Defendant-Appellant.

_______________________________________________

April 20, 2016

Submitted February 29, 2016 Decided

Before Judges Messano and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-04-0577.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Rockoff, Assistant Deputy Public Defender, of counsel and on the brief).

AndrewC. Carey,Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A Middlesex County grand jury returned Indictment No. 13-04-0577, charging defendant Raphael Edwards in count one with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Co-defendant Ryan Rinker was also charged in count one and was additionally charged with third-degree theft of the handgun, N.J.S.A. 2C:20-3(a) (count two), and third-degree unlawful sale or transfer of the handgun, N.J.S.A. 2C:39-10(e) (count three). Tried separately from Rinker, a jury found defendant guilty.1 The judge sentenced him to a seven-year term of imprisonment, with a three-year period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).

Defendant raises the following points on appeal

POINT I

THE COURT ERRED IN FAILING TO INSTRUCT THE JURY, PURSUANT TO N.J.S.A. 2C:39-6e, THAT IT IS NOT ILLEGAL TO POSSESS A FIREARM IN ONE'S OWN HOME. (Not Raised Below)

POINT II

ALTHOUGH THE STATE ALLEGED THAT [DEFENDANT] MADE WRITTEN, RECORDED, AND ORAL STATEMENTS, THE COURT FAILED TO INSTRUCT THE JURY TO CONSIDER WHETHER [DEFENDANT] ACTUALLY MADE WRITTEN AND ORAL STATEMENTS, AND, IF SO, WHETHER THE WITNESS WHO TESTIFIED ABOUT THE ORAL STATEMENT WAS CREDIBLE. (Not Raised Below)

POINT III

THE PROSECUTOR IMPROPERLY INVITED THE JURY TO INFER GUILT FROM [DEFENDANT'S] DECISION TO REMAIN SILENT AND NOT APPROACH THE POLICE AFTER HIS ARREST. (Not Raised Below)

POINT IV

THE CUMULATIVE EFFECT OF THE AFOREMENTIONED ERRORS DENIED [DEFENDANT] A FAIR TRIAL.

We have considered these arguments in light of the record and applicable legal principles. We reverse.

I.

The State contended that Rinker stole his father's gun and arranged to sell it to defendant. Rinker's father testified that he legally owned a .38 caliber revolver and discovered it was missing after his son had been in the home for a few days. On cross-examination, it was revealed that Ryan Rinker was enrolled at an inpatient substance abuse program and admitted stealing his father's gun. The elder Rinker reported the theft to police on January 20, 2013, and police thereafter interviewed Ryan Rinker and ultimately obtained his cell phone records. The parties stipulated to the accuracy of the records reflecting incoming and outgoing phone calls and text messages from Rinker's phone.

By March 5, 2013, an arrest warrant had been issued for defendant, who voluntarily came to police headquarters. South Brunswick Police Department Detective Kenneth Herman recorded a video statement defendant made after waiving his Miranda rights.2 The recording was shown to the jury.

Defendant told Herman that Rinker sent him a photo of the gun on his phone, and defendant arranged for the sale of the gun to another person. Defendant only knew this person as "Jack," who used the street name "Rakz" or "Raks." Defendant claimed that he went with Raks to meet Rinker after Rinker texted him an address. Raks drove, and the three met on a street, although defendant was unfamiliar with the area and did not know the exact location. Defendant waited in front of the car while Raks and Rinker consummated the sale in the back. Raks paid defendant thirty dollars for arranging the sale.

Defendant told Herman that he would "try [his] best to get that gun back," and suggested police allow him to meet with Raks because defendant saw "him all the time." Near the conclusion of the statement, Herman told defendant: "what's really important . . . paramount to any arrest or any investigation . . . is recovering that gun. If . . . you should think of a way we could . . . recover that gun, can you please contact myself or Detective Seaman?" Defendant responded in the affirmative.

Early in the statement, defendant provided Herman with his cellphone number and later surrendered his phones, which he claimed were not the phones he had in January 2013. Herman testified that a search of the confiscated phones yielded nothing of evidentiary value. However, Herman read extensively from a summary prepared from Rinker's phone records that included the call history and contents of sent and received text messages.3 The phone number defendant provided during his statement appeared in Rinker's records, but, without further explanation, Herman testified that number "became another number that had contact with Rinker." The import of the messages was that Rinker and defendant negotiated the sale of a gun, and that after the exchange, Rinker was upset because defendant owed him drugs.

Defendant was arrested after the interview. Defense counsel questioned Herman extensively about defendant's willingness to assist in locating Raks and the gun, and whether police had any "follow[]up conversations with him about the information" defendant had given to police. Herman answered in the negative.

On re-direct examination, the detective acknowledged that once a person charged with a crime retained an attorney, police could no longer question him without counsel present. The prosecutor then asked: "[D]id [defendant] or his attorney ever reach out to you?" Detective Herman responded, "No." The re-direct examination ended with the detective repeating that defendant never again contacted police. On re-cross-examination, defense counsel questioned the detective about his decision not to speak to defendant again, including, while he was incarcerated at the county correctional facility.

The State introduced evidence that neither Rinker nor defendant had permits to carry a firearm. The State's final two

witnesses testified after the judge conducted a hearing outside the presence of the jury pursuant to N.J.R.E. 104.4

Before the jury, the first witness testified that he saw defendant with a gun "over a year ago," when he was in the bedroom of defendant's house with another friend.5 The witness claimed that defendant told him "he had traded Ryan Rinker bags and money for the gun." The witness, who admitted buying heroin and cocaine more than two hundred times, explained "bags" meant "heroin bags." Without specifically mentioning the text message summary, the prosecutor asked the witness to interpret a number of slang terms used in the drug trade which appeared therein.6

On cross-examination, the witness was unable to be more specific about when these events occurred, acknowledging it happened "between a year and two years" prior. He also admitted that police came to his house about a week after the gun was reported stolen, and he "lied" by telling "them [he] hadn't seen it." The witness revealed that Rinker first told police that he had sold the gun to him (the witness), and that the witness first came forward about two weeks before trial after being served with a subpoena.

The State's last witness testified that he was also in the bedroom of defendant's house with the prior witness, his lifelong friend, when defendant showed both a gun. He estimated that occurred "[a]bout a year and a half ago." The prosecutor elicited the number of times the witness had used heroin and cocaine, and again, without specifically referencing the text messages, questioned the witness about drug slang. The witness admitted on cross-examination that he first provided information about the gun to law enforcement one week prior to testifying.

Defendant elected not to testify, but called two defense investigators as witnesses. One described her unsuccessful efforts to obtain statements from the last two State's witnesses. A second identified photographs taken of defendant's home, which ostensibly impeached the description given by the State's witnesses. Of particular note, however, is an extended discussion, which took place outside the presence of the jury, occasioned by the prosecutor's objection to the photographs and testimony. He argued that neither witness had testified that they were in defendant's home when they saw the gun. After playing back the first witness's testimony, the judge overruled the objection, finding that the witness had testified the events occurred in defendant's home.

Based on this evidence, the jury found defendant guilty of the unlawful possession of a handgun.

II.

We consider the arguments raised in Points I and II of defendant's brief that deal with instructions omitted from the jury charge. Since the issues were not raised at trial, we must consider whether the failure to include the charges was plain error. See R. 2:10-2 (permitting an appellate court to consider "in the interests of justice" whether any error not brought to the trial court's attention was "clearly capable of producing an unjust result").

The Court has said that

[i]n the context of a jury charge, plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."

[State v. Burns, 192 N.J. 312, 341 (2007) (second alteration in original) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]

The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to object signifies that "'in the context of the trial[,] the [alleged] error was actually of no moment.'" State v. Ingram, 196 N.J.23, 42 (2008) (quoting State v. Nelson, 173 N.J.417, 471 (2002)).

Defendant argues that, since the State produced two witnesses who claimed to have seen defendant with a gun in the bedroom of his home, it was plain error not to instruct the jury that possession of an unlicensed firearm in one's home is not a crime. See, e.g., State v. Petties, 139 N.J.310, 315 (1995). We agree it was error not to provide any instructions on the issue.

N.J.S.A.2C:39-6(e) provides in relevant part, "[n]othing in . . . [N.J.S.A.2C:39-5(b)] shall be construed to prevent a person keeping or carrying about his place of business, residence, premises or other land owned or possessed by him, any firearm[.]" (Emphasis added). In the context of an affirmative defense, the Court has made clear that "'if counsel does not request the instruction, it is only when the evidence clearly indicates the appropriateness of such a charge that the court should give it.'" State v. Singleton, 211 N.J.157, 183 (2012) (quoting State v. Walker, 203 N.J.73, 87 (2010)).

The State contends the evidence did not clearly indicate that the place where defendant showed the firearm to the State's witnesses "was defendant's in fact residence." However, this ignores the trial record, where the judge, after replaying testimony, concluded there was in fact evidence that defendant displayed the gun to the witnesses while in the bedroom of his home.

The State also argues that there was sufficient evidence to demonstrate that defendant "purchased the firearm outside of his home and possessed it at the time of the purchase." That may be true, but, in his statement, defendant denied that he ever physically possessed the gun. The trial prosecutor clearly recognized that the jury might give credence to defendant's version of events, because he spent an extensive portion of his closing statement describing how defendant could be criminally responsible as an accomplice or co-conspirator to both Rinker and Raks for arranging the sale.

Evidence that defendant displayed the gun to two other people was clearly relevant, if for no other reason than to corroborate the text messages and impeach defendant's version of events. But the jury necessarily needed to understand that convicting defendant for the unlawful possession of the handgun could not be based solely on the testimony of two alleged eyewitnesses who saw him with the gun in his home. The failure to explain this to the jury had the "clear capacity to bring about an unjust result," Burns, supra, 192 N.J.at 341 (quoting Jordan, supra, 147 N.J.at 422), and compels reversal.

Even if this omission was not in and of itself plain error, we are convinced that the argument defendant raises in Point II has merit, and, combined, the two omissions compel reversal. At the charge conference, the judge indicated he would provide Model Jury Charge (Criminal), "Statements of Defendant," (Revised June 14, 2010). He told the attorneys he would change it to the singular statement, "because there's only one statement." There was no objection. As a result, in his final instructions the judge provided the jury with the language of the model charge, but only as to the "recorded statement allegedly made by the defendant."

As defendant correctly points out, the State introduced three different sets of statements allegedly made by defendant: written statements contained in text messages allegedly sent to Rinker; defendant's videotaped statement to Herman; and his statement made to the lay witnesses while displaying the gun that he allegedly bought from Rinker for money and drugs. Yet, the jury was only provided with instructions as to the videotaped statement.

The model charge specifically provides

In considering whether or not an oral statement was actually made by the defendant, and, if made, whether it is credible, you should receive, weigh and consider this evidence with caution based on the generally recognized risk of misunderstanding by the hearer, or the ability of the hearer to recall accurately the words used by the defendant. The specific words used and the ability to remember them are important to the correct understanding of any oral communication because the presence, or absence, or change of a single word may substantially change the true meaning of even the shortest sentence.

You should, therefore, receive, weigh and consider such evidence with caution.

(HERE DISCUSS THE STATEMENT)

In considering whether or not the statement is credible, you should take into consideration the circumstances and facts as to how the statement was made, as well as all other evidence in this case relating to this issue.

[Model Jury Charge (Criminal), supra, at 1 (emphasis added).]

In this case, the two witnesses differed as to when the alleged oral statement was made. Only one of them actually testified to the statement, although both were supposedly there at the same time. Both acknowledged serious drug abuse in the past around the time they were "hanging out" in defendant's home. Neither witness came forward with the information until shortly before trial. The jury should have been told that it must view this evidence of defendant's alleged oral confession with "caution," but it was not.

As to the text message statements, the jury was never told that it must first decide whether defendant made the statements. As noted, the evidence authenticating the phone number attributed to defendant was scant, although defendant admitted in his taped statement that he used one phone number that apparently appeared on the summary, and one of the text messages to Rinker explicitly told him to use that number. Nonetheless, the jury needed to understand that it must conclude that the text messages were statements made by defendant, and that they were credible.

As a result, the failure to provide these instructions, coupled with the failure to provide instructions on the provisions of N.J.S.A. 2C:39-6(e), was plain error. We reverse defendant's conviction and remand for a new trial.

We need not address defendant's remaining points. We only add that in the event of a re-trial, comments about defendant's failure to cooperate with law enforcement after his arrest should be avoided. See, e.g., State v. Sas, 212 N.J. 37, 57 (2012) (noting that evidence of the defendant's silence at or near his time of arrest or thereafter is inadmissible). We recognize that in this case, defense counsel's questioning of Herman might have been viewed as "opening the door" to the State. However, defense counsel's interrogation of Herman assailed the detective's failure to further question defendant or use him to regain the handgun; the prosecutor's questions about defendant's failure to provide further information to law enforcement after his arrest stand on different footing. If the line of cross-examination were to re-occur, we are confident that the judge can properly advise the jury as to the circumstances that might prohibit law enforcement's continued contact with a defendant after arrest.

Reversed.

1 Rinker was also convicted after his trial, and his appeal is the subject of a separate opinion.

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

3 Although defense counsel objected to some of the terms used in the text messages, she never argued that the statements attributed to Rinker were hearsay. We assume they may have been admitted as an exception to the hearsay rule for statements made by co-conspirators in furtherance of a conspiracy. See N.J.R.E. 803(b)(5). To qualify under the exception, the statement "must have been made in furtherance of the conspiracy," "must have been made during the course of the conspiracy," and "there must be evidence, independent of the hearsay, of the existence of the conspiracy and defendant's relationship to it." State v. Phelps, 96 N.J. 500, 510 (1984). However, the issue was never directly addressed, though the judge did provide the jury with Model Jury Charge (Criminal), "Conspiracy Vicarious Liability" (1988). The summary was later admitted into evidence and is not part of the appellate record.

4 After the first witness testified at the hearing, the prosecutor advised the judge that during the luncheon recess, defendant, who was walking with his girlfriend within earshot of the two witnesses, threatened to "f*** those mother***ers up." Without conducting any testimonial hearing, the judge increased defendant's bail. By the end of the day's proceedings, a new criminal complaint had been lodged against defendant, and bail was set by another judge. Defendant was remanded to the county correctional facility for the balance of the trial, which concluded the next day.

5 The indictment charged defendant with possession of the handgun "on or about January 17, 2013." These witnesses testified on April 15, 2014.

6 Defense counsel had objected to this testimony after the Rule 104 hearing, noting the witness was not a party to the text messages. The judge ruled at that time that the testimony was admissible, subject to the prosecutor laying an adequate foundation as to the witnesses' personal knowledge of the terms.