STATE OF NEW JERSEY v. MARK A. MCDONALD
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4771-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK A. MCDONALD,
Defendant-Appellant.
Submitted May 1, 2018 – Decided May 24, 2018
Before Judges Hoffman and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
Nos. 13-08-1062 and 15-06-0762.
Joseph E. Krakora, Public Defender, attorney
for appellant (Rochelle Watson, Assistant
Deputy Public Defender, of counsel and on the
brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (David M. Liston,
Assistant Prosecutor, of counsel and on the
briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Mark A. McDonald was charged in two separate
indictments related to a May 30, 2013 incident. On the 2013
indictment, defendant was convicted of two counts of third-degree
possession of a controlled dangerous substance (CDS),
N.J.S.A.
2C:35-10(a)(1); two counts of second-degree unlawful possession
of a weapon,
N.J.S.A. 2C:39-5(b); and one count of fourth-degree
prohibited devices,
N.J.S.A. 2C:39-3(f). In a bifurcated trial
on the 2015 indictment, the same jury convicted defendant of two
counts of second-degree certain persons not to have weapons,
N.J.S.A. 2C:39-7(b). Defendant's appeal focuses on denial of his
motion to suppress evidence of CDS, the State's failure to prove
defendant was convicted of a predicate act on the certain persons
offenses, and the sentencing judge's imposition of consecutive
sentences. We affirm in part and vacate in part.
For the convictions related to the 2013 indictment, defendant
was sentenced to a ten-year term with a five-year period of parole
ineligibility. For the convictions related to the 2015 indictment,
defendant was sentenced to a consecutive ten-year term with a
five-year period of parole ineligibility.
On May 30, 2013, three Edison Township Police officers were
conducting surveillance of a hotel room where defendant was
staying. The officers received a tip from a confidential
informant, who told them that a man matching defendant's
2 A-4771-15T1
description was selling drugs from his hotel room, and would be
driving a green GMC Yukon to New York on May 30 to acquire more
drugs.
The officers saw defendant leave his room, meet with someone
in the hallway of the hotel, and then return to his room. The
officers believed defendant was conducting a hand-to-hand drug
transaction, although they did not see an exchange of money or
drugs.
Around midday, the officers saw defendant leave his room, get
into a green GMC Yukon, and drive away. The officers followed the
car to the George Washington Bridge. After defendant drove across
the bridge, the officers returned to the hotel and continued their
surveillance of defendant's room.
Defendant returned to the hotel around 9:00 p.m. and parked
the green GMC Yukon in front of his room. An officer in an
unmarked car pulled up and blocked the vehicle. The other officers
instructed defendant to turn off the car, show his hands, and exit
the vehicle. Defendant complied.
Detective Robert Duffy and fellow officers detained
defendant. Duffy asked defendant for identification and defendant
provided a New Jersey identification card. While the officers
were checking defendant's information, defendant asked to use the
bathroom. Duffy declined to let defendant use the bathroom based
3 A-4771-15T1
on his concern that defendant might destroy drug evidence. After
checking defendant's identification card, the officers discovered
defendant's license was suspended and he had an open warrant.
Defendant was then arrested. Duffy asked if there was
anything in the vehicle and defendant acknowledged there was
marijuana in the car. The detective also asked if defendant would
consent to a search of the car and defendant consented. While
Duffy was preparing the consent paperwork for defendant's review
and signature, the detective learned the car was registered to
defendant's wife.1 Duffy then sought to obtain consent to search
the car from defendant's wife.
While Duffy continued speaking with defendant, Detective
Sergeant Jeff Abrams knocked on the door to defendant's room.
Defendant's wife answered and Abrams explained the police were
conducting an investigation, and that the officers wanted to speak
with her. Defendant's wife told Abrams that both the car and
hotel room were registered in her name.
Duffy told defendant's wife that defendant was under arrest,
and asked her for consent to search the car and the room. The
1
The record is unclear whether the female who owned the car was
defendant's wife or girlfriend. We refer to her as defendant's
wife.
4 A-4771-15T1
wife agreed and signed the consent-to-search forms for the car and
the hotel room.
In the search of the car, the police found marijuana, a
handgun, and a loaded magazine containing hollow-point bullets.
In the search of the hotel room, the police found another handgun,
ammunition, digital scales, plastic bags, heroin, marijuana, crack
cocaine, and $5000 in cash.
Defendant was taken to the police station, where he was given
his Miranda2 rights. Defendant agreed to waive his rights, and
gave a recorded statement, taking responsibility for the items
found in the car and hotel room. Defendant was indicted in 2013
and 2015 for charges in connection with the events of May 30,
2013.
Defendant moved to suppress all evidence, arguing he was
arrested without probable cause when he entered the hotel parking
lot and was surrounded by an unmarked police car and police
officers. Defendant further argued that even if there was probable
cause for arrest, the officer's inquiry whether there was anything
in the car was a violation of his Miranda rights.
The officers involved in the events of May 30, 2013 testified
during the suppression hearing. They testified that defendant
2
Miranda v. Arizona,
384 U.S. 436 (1966).
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consented to the searches. The State also provided defendant's
recorded statement as part of the evidentiary hearing on
defendant's motion. In the recorded statement, defendant
expressly stated he consented to the search of the vehicle and the
hotel room.
After considering the evidence and testimony, the motion
judge denied defendant's suppression motion. The judge concluded
that the tip from the confidential informant was corroborated by
the officers' observations of defendant's activities on May 30,
2013. The judge found the officers properly conducted an
investigative stop of the defendant upon his return to the hotel.
With regard to the consent issue, the judge found:
In the course of the encounter with
[defendant] he was asked to provide consent.
He provided consent. He provided
consent. . . . He was asked about anything
being in the car that they should know about.
He admitted to there being some marijuana in
the car. It then turns out that the person
he was staying with may have had a proprietary
interest in the property and the police then
proceeded thereafter to address that
situation.
The [c]ourt does not find that the stop
here was pretextual, that the law enforcement
testimony was evidence of fabrication. The
[c]ourt finds the officer[s] credible under
these circumstances, having had a chance view
their demeanor. . . . The motion to suppress
will be denied at this time.
6 A-4771-15T1
A bifurcated trial was held on the 2013 indictment and the
2015 indictment. Defendant does not raise any appeal arguments
related to the convictions on the 2013 indictment except the denial
of his motion to suppress evidence of CDS. Thus, we focus on
defendant's convictions on the 2015 indictment on the certain
persons not to have weapons charges. At trial, Suzanne Kowalski,
a detective assigned to the Middlesex County Prosecutor's Office,
testified on behalf of the State. Kowalski stated she located two
certified judgments of conviction in New York, indicating prior
convictions of defendant in 1986 and 1991 for crimes of the third
degree under New York law. While she testified that the New York
offenses were "substantially similar or comparable to crimes of
the third degree in New Jersey," on cross-examination, Kowalski
acknowledged that she had "no particular expertise in the New York
statutes."
During summation, defense counsel argued the State failed to
prove the New York convictions bore any relation to the predicate
offenses identified in the certain persons not to have weapons
statute. The judge sustained an objection by the prosecutor,
advising defense counsel: "[I]f you persist in this I'm going to
instruct [the jury] that the crime, without getting into the
specifics of what the crime was, is the equivalent of a crime of
third degree." Although defense counsel argued such an instruction
7 A-4771-15T1
would be improper, the judge maintained his position and defense
counsel abandoned the argument.
The judge instructed the jury regarding the certain persons
charges as follows:
[T]he State must prove beyond a reasonable
doubt . . . that the defendant is a person who
previously has been convicted of a crime of
the third degree. The term convicted of a
crime of [sic] means a judgment of conviction
entered by a [c]ourt of competent jurisdiction
in this state, New Jersey, or elsewhere. If
the defendant has been convicted in another
state, territory, commonwealth or other
jurisdiction of the United States, or any
country in the world in a court of competent
jurisdiction, of a crime which in said other
jurisdiction is comparable to a crime of the
third degree.
On appeal, in his counseled brief, defendant argues:
POINT I
THE MOTION TO SUPPRESS SHOULD HAVE BEEN
GRANTED BECAUSE, INSTEAD OF SEEKING THE
CONSENT OF A THIRD-PARTY UNCONNECTED TO THE
INVESTIGATION, THE POLICE SHOULD HAVE SOUGHT
CONSENT FROM MCDONALD WHO WAS THE TARGET OF
THEIR INVESTIGATION AND WAS PRESENT ON THE
SCENE.
POINT II
THE CERTAIN PERSONS CONVICTIONS MUST BE
REVERSED BECAUSE THE STATE FAILED TO PROVE
THAT MCDONALD HAD BEEN CONVICTED OF AN
ENUMERATED OFFENSE AND THE MODEL JURY
INSTRUCTION PERMITS A CONVICTION WITHOUT PROOF
OF THAT ESSENTIAL ELEMENT (NOT RAISED BELOW).
8 A-4771-15T1
POINT III
BECAUSE THE SENTENCING COURT FAILED TO COMPLY
WITH THE YARBOUGH GUIDELINES, A REMAND FOR
RESENTENCING IS REQUIRED.
In his supplemental pro se brief, defendant argues:
POINT I
THE STATE'S PRESENTATION OF HEARSAY, TO THE
EFFECT THAT THE [REASON] DETECTIVES SET UP
SURVEILLANCE AT THE RED ROOF INN, WAS BECAUSE
DEFENDANT HAD BEEN IMPLICATED IN HAND TO HAND
DRUG SALES BY A CONFIDENTIAL INFORMANT,
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. 1, PAR[A]S. 1,
9, AND 10.
POINT II
THE PROSECUTOR'S SUMMATION CONSTITUTED AN
INAPPROPRIATE COMMENT ON DEFENDANT'S FAILURE
TO TESTIFY.
POINT III
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. 1[]
PAR[A]. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE TRIAL COURT'S FAILURE TO
INSTRUCT THE JURY THAT IT SHOULD CONSIDER
WHETHER INCRIMINATING STATEMENTS PURPORTEDLY
MADE BY THE DEFENDANT WERE TRUE, AND IF NOT,
TO DISREGARD THEM (NOT RAISED BELOW).
9 A-4771-15T1
POINT IV
DEFENDANT'S CONVICTION SHOULD BE REVERSED
BECAUSE OF THE CUMULATIVE EFFECTS OF THE
ERRORS WHICH OCCURRED DURING HIS TRIAL.
I.
We first consider defendant's arguments related to denial of
his motion to suppress evidence. We afford "considerable latitude
. . . [to] a trial court in determining whether to admit evidence,
and that determination will be reversed only if it constitutes an
abuse of discretion." State v. Kuropchak,
221 N.J. 368, 385 (2015)
(quoting State v. Feaster,
156 N.J. 1, 82 (1998)). In reviewing
a motion to suppress, we "uphold the factual findings underlying
the trial court's decision so long as those findings are supported
by sufficient credible evidence in the record." State v. Elders,
192 N.J. 224, 243 (2007) (citation omitted). This is true
especially when the findings of the trial court are "substantially
influenced by [its] opportunity to hear and see the witnesses and
to have the 'feel' of the case." Id. at 244 (quoting State v.
Johnson,
42 N.J. 146, 161 (1964)). The trial court's legal
conclusions are entitled to no special deference, and are reviewed
de novo. State v. Gandhi,
201 N.J. 161, 176 (2010).
Defendant argues the motion judge erroneously denied his
motion to suppress, because the police improperly sought consent
10 A-4771-15T1
to search from his wife. Defendant concedes this argument was not
raised before the motion judge.
"Generally, an appellate court will not consider issues, even
constitutional ones, which were not raised below." State v.
Galicia,
210 N.J. 364, 383 (2012). "'[T]he points of divergence
developed in proceedings before a trial court define the metes and
bounds of appellate review.' Parties must make known their
positions at the suppression hearing so that the trial court can
rule on the issues before it." State v. Witt,
223 N.J. 409, 419
(2015) (quoting State v. Robinson,
200 N.J. 1, 19 (2009)). "For
sound jurisprudential reasons, with few exceptions, our appellate
courts will decline to consider questions or issues not properly
presented to the trial court when an opportunity for such a
presentation is available." Ibid. (quoting Nieder v. Royal Indem.
Ins. Co.,
62 N.J. 229, 234 (1973)).
Arguments not raised in the trial court are reviewed under
plain error. R. 2:10-2. Such an error must be "sufficient to
raise a reasonable doubt as to whether the error led the jury to
a result it otherwise might not have reached." State v. Chavies,
345 N.J. Super. 254, 265 (App. Div. 2001) (quoting State v. Macon,
57 N.J. 325, 336 (1971)). "Appellate courts ordinarily decline
to consider issues not presented to the trial court unless they
'go to the jurisdiction of the trial court or concern matters of
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great public interest.'" Kvaerner Process, Inc. v. Barham-McBride
Joint Venture,
368 N.J. Super. 190, 196 (App. Div. 2004) (quoting
Nieder,
62 N.J. at 234); see also U.S. Bank Nat'l Ass'n v.
Guillaume,
209 N.J. 449, 483 (2012) (declining to consider argument
raised for the first time on appeal).
We reject defendant's arguments related to the denial of his
motion to suppress for two reasons. First, defendant ignores the
record reflecting his explicit consent to search the car and the
hotel room. Second, defendant never raised the third-party consent
issue to the motion judge. As our Supreme Court has held, the
State is not required to "disprove issues not raised by the defense
at a suppression hearing." Witt,
223 N.J. at 418 (declining to
address lawfulness of vehicle stop where defendant initially only
contested the vehicle search).
II.
We next examine defendant's appeal from the certain persons
convictions on the 2015 indictment. When a defendant does not
object to a jury charge at trial, we review the matter under the
plain error doctrine. State v. Noble,
398 N.J. Super. 574, 593-
94 (App. Div. 2008); see also R. 1:7-2; R. 2:10-2. A plain error
is one that is "clearly capable of producing an unjust result."
R. 2:10-2. In the context of a jury charge, plain error is
"[l]egal impropriety in the charge prejudicially affecting the
12 A-4771-15T1
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." Noble,
398 N.J. Super. at 593 (alteration in
original) (quoting State v. Brown,
190 N.J. 144, 160 (2007)).
"[T]rial courts must instruct juries in a manner consistent
with the intent of the Legislature." State v. Afanador,
151 N.J.
41, 48 (1997). "[E]rroneous [jury] instructions are almost
invariably regarded as prejudicial. Such errors are 'poor
candidates for rehabilitation under the harmless error
philosophy.'" State v. Vick,
117 N.J. 288, 289 (1989) (quoting
State v. Crisantos (Arriagas),
102 N.J. 265, 273 (1986)). "[T]he
tenets of due process and the right to a jury trial mandate that
. . . [each] element of the offense . . . must be found beyond a
reasonable doubt by the jury." State v. Anderson,
127 N.J. 191,
201 (1992). If the jury is told "that it need not concern itself"
with an element of the offense, "the defendant is, in effect,
deprived of that trial by jury to which he is entitled, namely,
one in which the jury must find that the State has proved each and
every material element of the crime beyond a reasonable doubt."
State v. Ragland,
105 N.J. 189, 193–94 (1986).
Defendant argues the trial court erroneously instructed the
jury regarding the predicate offenses related to the certain
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persons charges, and therefore, these convictions must be vacated.
The State counters that any error in the jury charge was invited
by defense counsel based on counsel's failure to object to the
charge during the trial.
N.J.S.A. 2C:39-7(b) precludes persons previously convicted
of certain enumerated offenses (known as predicate offenses) from
possessing firearms. In this case, defendant did not stipulate
to a prior conviction within the enumerated predicate offenses
that prohibited him from possessing a firearm. As such, the State
was required to prove this element of the charge beyond a
reasonable doubt. See
N.J.S.A. 2C:39-7(b); U.S. Const. amend.
XIV, N.J. Const. art. I, ¶ 9; see also Vick,
117 N.J. at 291.
Here, the State produced evidence that defendant was
previously convicted of crimes of the third degree under New York
law, without specifying the nature of the offenses or offering any
testimony that defendant's prior convictions in New York were for
offenses enumerated in
N.J.S.A. 2C:39-7(b) as predicate offenses.
The judge instructed the jury that they only needed to find
defendant was previously "convicted of a crime of the
third degree." The certain persons offense does not include every
third degree offense, only the specifically listed predicate
offenses. See
N.J.S.A. 2C:39-7(b).
14 A-4771-15T1
In State v. Bailey,
231 N.J. 474 (2017), decided after
defendant's convictions on the certain persons charges in this
case, the defendant was charged pursuant to
N.J.S.A. 2C:39-7 and
refused to stipulate that his previous convictions were predicate
offenses. Id. at 477. At trial in that case, the State presented
sanitized judgments of conviction showing only the date of the
prior conviction and degree of the offense. Ibid. The jury was
instructed in accordance with the model jury charge that they must
find defendant "previously has been convicted of third-degree
crimes," thus the jury found defendant guilty of the certain
persons offense. Id. at 479. We affirmed, holding any error was
invited, but noted the jury charge was "disquieting." Id. at 480.
The Supreme Court reversed, finding that "[t]he over-
sanitization called for in the model charge injects a
constitutional defect into any trial on a certain persons offense
where a defendant declines to stipulate." Id. at 488. The
sanitization of the convictions treats the essential element of
the certain persons charge as proven, denying the defendant a fair
trial. Id. at 481. The Court rejected the State's claim that
defense counsel in Bailey invited the error because he asked the
judge to give the model jury charge despite any constitutional
infirmity in the jury instruction. Id. at 490. The Court held
even invited errors should be reviewed when they "cut mortally
15 A-4771-15T1
into the defendant's substantive rights." Id. at 481 (citing
State v. Corsaro,
107 N.J. 339, 345–46 (1987)).
The Bailey decision was not a new rule of law. Rather, the
decision enforced a fundamental constitutional principle that "in
a criminal prosecution in which the accused has a constitutional
right to a trial by jury, each element of the crime must be decided
by the jury and none of those elements may be withheld from the
jury and decided by the judge as a matter of law." Bailey
231 N.J. at 483–84 (quoting Anderson,
127 N.J. at 208–09).
Here, the State had the burden of proving defendant committed
a predicate offense to obtain a conviction on the certain persons
charges. The State failed to demonstrate defendant's prior
convictions in New York were the equivalent of predicate offenses
under the New Jersey statute sufficient to allow the jury to
convict defendant of the certain persons charges. Thus,
defendant's convictions on the certain persons offenses must be
vacated. The error in this case "cut mortally into the defendant's
substantive right[]" to be found guilty beyond a reasonable doubt
of all elements of the offense. Id. at 481.
III.
Because defendant's convictions on the certain persons
charges must be vacated, the sentence imposed must be vacated as
well. We need not remand for resentencing, because the sentence
16 A-4771-15T1
and judgment of conviction for the CDS and weapons charges were
independent from the sentence and judgment of conviction imposed
for the certain persons charges. See State v. Rodriguez,
97 N.J.
263, 273 (1984) ("[The] trial court cannot increase [a] valid
sentence on [a] conviction of one count of an indictment to
compensate for the reversal on appeal of another conviction with
a separate sentence[.]" (citing State v. Vaccaro,
150 N.J. Super.
410 (App. Div. 1977))).
We have considered defendant's pro se appellate arguments and
conclude they are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2).
Affirmed as to denial of defendant's motion to suppress.
Vacated as to defendant's convictions on the certain persons
offenses and the resultant sentence imposed.
17 A-4771-15T1
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