STATE OF NEW JERSEY v. CORNELL T. BROWN

NOT FOR PUBLICATION WITHOUT THE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.

CORNELL T. BROWN,

Defendant-Appellant.

_____________________________________________________

March 24, 2014

 

Submitted February 25, 2014 Decided

 

Before Judges Fisher, Espinosa and O'Connor.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indict-ment No. 08-12-1154.

 

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

 

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Kimberly L. Donnelly, Legal Intern, on the brief).

 

PER CURIAM

This is a twice-told tale. In considering co-defendant Darius Bass's appeal last Term, we described the facts and circumstances that led to his and defendant Cornell T. Brown's conviction for various offenses, in the following way:

[O]n September 30, 2008, at approximately 3:00 p.m., John Soriano and his sister, Mary Soriano, were in John's black Audi, stopped at a traffic light on Hillside Avenue in Springfield, when what John described as a silver or gray four-door Nissan or Toyota (later determined to be a Toyota) approached the Audi's left side. A man wearing a black "hood[ie]" and "mask" exited the Toyota's rear right-side door and pointed a "pearlish" white-handled revolver at John's head, demanding that he exit the vehicle. John pushed Mary out the passenger door and then also exited, walking toward the back of the Audi. Another man wearing a "gray hood[ie]" exited the Toyota's rear left-side door and entered the Audi's driver side, while the other culprit entered the Audi's front passenger side. John described the first man as "a dark skinned male," but he was only able to see part of his face due to the ski mask the man was wearing; John described the second culprit as lighter skinned, about five foot eight or nine inches tall, but he also could not see any facial features because the culprit's face was covered.

 

John and Mary ran down South Springfield Avenue to a convenience store where John called the police. While speaking with the dispatcher, John noticed a police vehicle enter the store's parking lot while at the same time he saw the Toyota "going in the opposite direction," and alerted the officer. John also observed that his Audi had not moved, apparently because John had retained the key and the vehicle was immovable without it.

 

The police officer who had appeared at the convenience store turned his vehicle around and chased the Toyota on South Springfield Avenue. Although he activated his emergency lights, the vehicle did not stop. Other officers joined in the chase as the Toyota weaved in and out of traffic on Springfield Avenue at a high rate of speed. The Toyota eventually rammed into another vehicle, at the intersection of Morris and Maple Avenues, and its two occupants ran from the scene. Two of the officers identified [Bass] as one of the two occupants of the Toyota and saw [Bass] throw a handgun onto a nearby roof as he fled. The weapon was retrieved and found to be fully loaded with one hollow point bullet and other regular rounds.

 

[Bass and Brown] were eventually caught and arrested in Irvington.

 

[State v. Bass, No. A-5000-10 (App. Div. June 20, 2013) (slip op. at 2-4).]

 

Evidence suggested that, at the time of his arrest, defendant Brown was wearing a black "hoodie"; when searched, he was found to be in possession of a bag of marijuana.

Based on these circumstances, defendant Brown was charged with and went to trial on the following: first-degree carjacking, N.J.S.A. 2C:15-2 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (count four); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count five); third-degree receiving stolen property, a firearm, N.J.S.A. 2C:20-7 (count six); fourth-degree possession of a hollow point bullet, N.J.S.A. 2C:39-3(f) (count seven); third-degree receiving stolen property, a motor vehicle, N.J.S.A. 2C:20-7 (count nine); fourth-degree possession of a controlled dangerous substance (CDS), marijuana, with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(12) (count thirteen); second-degree possession of a weapon while committing a CDS offense, N.J.S.A. 2C:39-4.1(a) (count fourteen); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count fifteen); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4) (count sixteen); and fourth-degree hindering apprehension, N.J.S.A. 2C:39(b)(4) (count seventeen).1

A three-day pretrial hearing took place to determine the admissibility of a statement made by Bass to Springfield Police Officer John Cook. As we described in our opinion regarding Bass's appeal, the judge heard testimony regarding the following circumstances:

The record reveals that Officer Cook approached [Bass] as he was being led into the police station because Officer Cook was concerned there was an unaccounted for firearm. That is, Officer Cook testified at the suppression hearing that "there were children in the area and [he] was concerned for their safety"; as a result, he asked [Bass] if he knew "where the second handgun might be because I don't want someone to come across it and pick it up and get hurt." [Bass] responded that "[t]he gun you found is the gun I had." The State conceded at the suppression hearing that it could not sustain its burden of proving that [Bass] had been properly Mirandized.[2]

 

[Bass, supra, slip op. at 20-21.]

 

After sifting through and weighing the evidence, the trial judge found the public safety exception applied and permitted admission of the statement. We affirmed that disposition. Id. at 21-23.

Defendant Brown sought preclusion of Bass's admissions from their joint trial or, in the alternative, for a severance. The judge granted defendant's application with respect to one of Bass's statements but found admissible Bass's statement that the gun the police found was the gun Bass "had" and denied severance. Specifically, the judge held at that time:

I don't believe and I don't find that the right of confrontation is violated [by admission of Bass's statement]. The State needs, obviously, to proceed cautiously and I would not permit an argument to be made that would otherwise implicate . . . defendant Brown, as being the other guy belonging to a gun through any statement made by [Bass], but if the State is looking somehow to tie in that other gun, they're going to have to do it by other means . . . than this statement. This statement I'm going to allow is only going to come in for the sole purpose and the limited window as an admission against interest of what . . . defendant Bass told the police officer as to [it being] his gun. Are we all clear?

 

A nine-day jury trial took place in June and July 2010. The jury could not reach a verdict as to either defendant on counts one (carjacking), two (robbery) and five (aggravated assault). The jury, however, convicted Brown on counts three, four, six, seven, nine, thirteen, fourteen and fifteen. Bass was convicted on those counts, as well as count eight (eluding) and count ten (possession of a weapon, a motor vehicle, for an unlawful purpose). The trial judge denied Brown's motion for a directed verdict and granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:44-3(a).

Defendant was sentenced on count fourteen (second-degree possession of a weapon while committing a CDS offense) to a fourteen-year prison term with a seven-year parole bar, and on count thirteen (fourth-degree CDS possession with the intent to distribute) to a consecutive three-year prison term, subject to an eighteen-month parole bar. The judge also imposed lesser concurrent prison terms on the other convictions.3

Defendant appeals, presenting the following arguments for our consideration:

I. THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE ON THE CHARGE OF POSSESSION OF A GUN DURING A CDS CRIME, AS WELL AS DEFENDANT'S MOTION FOR A DIRECTED VERDICT ON THAT CHARGE AFTER THE VERDICT, BECAUSE THE STATE FAILED TO PROVE THAT DEFENDANT HAD THE ABILITY OR INTENT TO CONTROL THE GUN THE POLICE OBSERVED CO-DEFENDANT BASS REMOVE FROM HIS WAISTBAND AND TOSS ONTO THE [GARAGE] DURING THEIR PURSUIT OF THE DEFENDANTS.

 

II. THE TRIAL COURT'S FAILURE TO CHARGE THAT IF THE HANDGUN WAS FOUND ON THE PERSON OF CO-DEFENDANT BASS, THE JURY MAY INFER THAT IT WAS POSSESSED BY HIM ALONE, CONSTITUTED REVERSIBLE ERROR AND DEPRIVED DEFENDANT OF A FAIR TRIAL (Not Raised Below).

 

III. EVIDENCE INTRODUCED THROUGH SGT. JOHN COOK THAT CO-DEFENDANT BASS ADMITTED, "THE GUN YOU FOUND IS THE GUN I HAD," IN LIGHT OF THE STATE'S THEORY THAT DEFENDANT WAS CULPABLE FOR POSSESSION OF THAT GUN WHILE COMMITTING A DRUG OFFENSE, VIOLATED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV, N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

 

IV. THE JURY INSTRUCTION ON POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WAS DEFICIENT BECAUSE IT DID NOT SPECIFY THE UNLAWFUL PURPOSE THUS DEPRIVING DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL (Not Raised Below).

 

V. THE TRIAL COURT'S FAILURE TO CONDUCT A SEARCHING VOIR DIRE WHEN A JUROR COMPLAINED THAT SHE WAS FEELING PHYSICALLY ILL, IN PART DUE TO WHAT WAS GOING ON IN THE JURY ROOM DURING DELIBERATIONS, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL BY AN IMPARTIAL JURY (Partially Raised Below).

 

[VI4]. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

 

We conclude that defendant is entitled to a new trial on counts three, four, six, seven and fourteen, but not on counts nine, thirteen and fifteen. And, regardless of what occurs on these charges, as well as those upon which the jury could not agree, defendant must be resentenced.

As noted earlier, co-defendant Bass's appeal was considered by this court last term. At that time, we reversed Bass's convictions on counts three (possession of a weapon, a handgun, for an unlawful purpose), eight (eluding) and ten (possession of a weapon, a motor vehicle, for an unlawful purpose), and remanded for a new trial. Bass, supra, slip op. at 24. We held with respect to the weapon possession convictions that the trial judge had failed to properly instruct the jury as to the unlawful purposes the jury could find from the evidence presented. Id. at 14 (citing State v. Villar, 150 N.J. 503, 511 (1997)). Defendant Brown's Point IV poses the same argument; the State concedes, and we agree, that Brown is entitled to a new trial on count three in light of our decision to grant Bass a new trial on that same count. The State concedes nothing more, but, in considering Brown's Points II and III, we conclude, for the reasons that follow, that defendant is also entitled to a new trial on counts four, six, seven and fourteen,5 all of which were dependent on a jury finding that defendant was in possession of a handgun.

The matter was initially complicated by testimony that suggested the involvement of more than one handgun in the series of events restated at this opinion's outset. That is, there was testimony from John Soriano that the man with the black hoodie alleged to be Brown was in possession of a pearl-handled handgun, and there was also evidence that when police chased defendants on foot, Bass threw a black handgun onto a garage roof. Added to these factual complications was the fact that, based on his application of the principles established in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) and its progeny, the judge had previously ruled that Bass's statement that Bass told Officer Cook that the gun police found was the gun he (Bass) had could be admitted with regard to the charges lodged against Bass but not against Brown because, with Bass's decision not to testify, Brown would be unable to cross-examine the declarant. See State v. Roach, 146 N.J. 208, 224, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). The confluence of these circumstances demanded carefully crafted jury instructions.

We conclude that the jury was not given sufficient guidance as to how the separate legal theories regarding possession related to the evidence, and how the jury was required to disregard in considering Brown's guilt Officer Cook's testimony about what Bass admitted. Indeed, despite the judge's direction to the prosecutor in the pretrial ruling to "proceed cautiously" with regard to Bass's statement, the prosecutor's summation highlighted the prohibited inference of Brown's guilt that could have been drawn from Bass's statement; that is, the prosecutor argued:

didn't Mr. Bass say the gun [police] found is the gun that I had? Didn't [the police] . . . see him throw the gun on the roof?

 

And, then, after briefly describing what John Soriano and his sister described about the armed "man with the black hoodie," the prosecutor argued:

The State submits to you that Cornell Brown was just as much in possession of that weapon as was Darius Bass. They were in a car together and similarly that they were just [Brown] was just in possession as much as Darius Bass.

 

[Emphasis added.]

 

In other words, the prosecutor appeared to suggest there was only one gun and asked the jury, in that context, to infer that Bass's actual possession of that one gun based on Bass's statement to Officer Cook meant that Brown was at least in constructive possession of that gun. The very thing the judge cautioned against in his pretrial ruling in light of the concerns highlighted in a plethora of case law, including Bruton and Roach was used by the State against Brown and may very well have generated his conviction on the weapons offenses in question.

At the new trial, the judge should carefully explain the legal principles in light of the evidence. If similar proofs are offered at the new trial, a jury will again hear evidence suggesting Brown's actual possession of a weapon when he allegedly attempted to steal the Audi and his constructive possession of the handgun Bass was alleged to have thrown on a roof when chased by police. The judge should carefully instruct the jury and tailor the evidence to those theories of possession i.e., actual, constructive or joint as their application may be suggested by the proofs that unfold at the new trial. And, at the same time and in the same context, the jury will need to be instructed that the statement attributed to Bass cannot be used as evidence against Brown. The charge the trial judge gave did not provide the type of guidance demanded by the facts and, further, created the potential that Brown was convicted because of inferences "irresistibly," Roach, supra, 146 N.J. at 225 (quoting State v. Thomas, 168 N.J. Super. 10, 15 (App. Div. 1979)), and "inescapabl[y]," State v. Bankston, 63 N.J. 263, 271 (1973), drawn from Bass's admission. Accordingly, we reverse defendant Brown's convictions on counts four, six, seven and fourteen, with directions that, when retried, the judge carefully instruct the jury not only with regard to Bass's statement but also about the theories of possession that might apply to Brown in the circumstances.

To the extent not already discussed in our examination of the arguments in Points II and III, we find insufficient merit in Brown's Point I to warrant further discussion in a written opinion. R. 2:11-3(e)(2). We also find insufficient merit in Brown's Point V, the same lack of merit we found in Bass's similar argument, Bass, supra, slip op. at 23-24, to warrant discussion in a written opinion. R. 2:11-3(e)(2). And we need not reach Brown's last argument that the sentence imposed was excessive because Brown will have to be resentenced whether or not he is retried or convicted on those counts that we have reversed or that did not previously result in a jury verdict.

We affirm defendant Brown's convictions on counts nine, thirteen and fifteen, reverse the other convictions, and remand for resentencing following the retrial or disposition of the other counts. We do not retain jurisdiction.

1The indictment also charged Brown with: third-degree burglary, N.J.S.A. 2C:18-2 (count eighteen); and fourth-degree unlawful theft or receipt of a credit card, N.J.S.A. 2C:21-6(c)(1) (count nineteen). These counts were dismissed prior to trial.

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

3Namely: eight-year prison terms, with four-year parole bars, on counts three and four; five-year prison terms on counts six and nine; and eighteen-month terms on counts seven and fifteen.

4Defendant mistakenly numbered this as Point V.

5Namely, the convictions for unlawful possession of a firearm, receiving stolen property, possession of a hollow point bullet, and possession of a weapon while committing a CDS offense.