STATEOF NEW JERSEY v. DEVON R. HAILE-JONES
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5581-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DEVON R. HAILE-JONES,
Defendant-Appellant.
__________________________
Argued January 18, 2018 – Decided February 23, 2018
Before Judges Nugent and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
14-04-0506.
Rebecca Gindi, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Rebecca Gindi, of counsel and on the brief).
Timothy P. McCann, Assistant Prosecutor,
argued the cause for respondent (Angelo J.
Onofri, Mercer County Prosecutor, attorney;
Timothy P. McCann, of counsel and on the
brief).
PER CURIAM
Defendant Devon R. Hallie-Jones appeals from his June 8, 2016
conviction and sentence. For the following reasons, we affirm.
I.
We derive the following facts from the evidence presented at
trial. During the evening of February 5, 2014, Detective Sarai
Cheek of the Trenton Police Department was on duty as a member of
the Street Crimes Unit. Cheek was patrolling the Donnelly Homes
housing project with her partner, Detective Sam Johnson, in an
unmarked police car. In addition to Cheek and Johnson, a second
Street Crimes Unit was also patrolling Donnelly Homes.
At approximately 11:13 p.m., Cheek and Johnson observed a tan
Buick drive in front of their vehicle. As the car passed, Cheek
noticed the driver, later identified as defendant, was not wearing
a seatbelt. Cheek also noticed there was a passenger in the
vehicle, later identified as co-defendant, Raymond Porter Jr.1
After driving past Cheek and Johnson, the car stopped in the
middle of the parking lot. The detectives observed Porter exit
the vehicle, stop and look back into the vehicle, then close the
door before quickly proceeding to the steps of one of the row
homes. After defendant parked, Cheek initiated a motor-vehicle
1
Porter is not a party to this appeal but was a co-defendant at
trial. Unless otherwise stated, references to defendant refer
only to Devon R. Hallie-Jones.
2 A-5581-15T1
stop, at which time Porter took off running from the steps of the
row home.
As the detectives approached the vehicle, Cheek immediately
saw a large silver revolver with a black handle in plain view on
the passenger's seat. At this time, Cheek notified Johnson there
was a gun in the car, Johnson removed defendant from the vehicle,
and Cheek removed the handgun. During the stop, defendant remained
in the driver's seat until removed from the car and made no
gestures toward the gun. Defendant was then arrested. Co-
defendant, Porter, was arrested by the other Street Crimes Unit
patrolling Donnelly Homes.
On April 29, 2014, a Mercer County Grand Jury charged
defendant and Porter with second-degree unlawful possession of a
handgun,
N.J.S.A. 2C:39-5(b)(1). Defendant does not contest he
did not have a permit for the handgun.
Defendant and Porter jointly moved to suppress the handgun.
On March 10, 2015, the trial court denied their motion, finding
the traffic stop lawful, and the seizure of the handgun permitted
under the plain view doctrine. Defendant does not appeal that
ruling.
Defendant and Porter were tried jointly. The jury heard
testimony from: Cheek, who testified regarding the facts leading
to defendant's arrest; Detective Edward J. Burek, Jr., who is
3 A-5581-15T1
assigned to the Ballistics Unit of the Trenton Police Department
and testified regarding the evidence intake process and his finding
that the gun was operable; Detective William Salhanick, who was
assigned to the Street Crimes Unit the evening of the incident and
testified regarding Porter's arrest; and Detective Robert J.
Paccillo, who testified regarding the detection, collection, and
identification of fingerprints. Notably, Paccillo found no
identifiable fingerprints on the gun.
Cheek testified the area of the stop was "really well lit,"
and upon walking up to the car, she "immediately saw a large
handgun sitting on the passenger seat." She further testified
that although she had a flashlight, she believed she would have
been able to see the gun without it. When describing defendant's
proximity to the handgun, Cheek noted, "[i]t wasn't far from him.
It was within arm's reach, directly next to him in the passenger
seat." Cheek also stated defendant made no attempt to move toward
the weapon or control it at any point during the stop. The handgun
was admitted into evidence.
Defendant and Porter elected not to testify during the trial.
After the parties rested, defendant's attorney moved for
acquittal, arguing the State did not prove defendant possessed the
gun because he made no moves toward it, did not exercise any
control over it, and there were no fingerprints on the gun linking
4 A-5581-15T1
it to him. After considering the evidence presented by the State,
the inferences the jury could reach from the evidence, the elements
of the offense, and the law regarding constructive possession, the
trial judge denied the motion, concluding a reasonable jury could
find all three elements of the charge were satisfied by the State
beyond a reasonable doubt.
At the conclusion of testimony, the judge provided counsel
with proposed jury instructions, giving counsel an opportunity to
review the instructions prior to the charge conference. The
proposed instructions included interchangeable use of the words
"defendant or defendants." During the charge conference, the
judge provided his reasoning for this language, stating: "it
says, the [d]efendant or [d]efendants because I want the jury,
obviously, to understand that they have to decide the evidence as
to each of the [d]efendants, individually, so I wanted to, you
know, clarify that." Notably, neither attorney objected to the
proposed jury charges during the conference.
Because there was more than one defendant, the trial judge
instructed the jury:
Ladies and gentlemen, obviously, we have
more than one defendant as to each of the
charges being tried.
You must return separate verdicts for
each defendant as to each of the charges being
tried.
5 A-5581-15T1
In other words, you will have to decide
each case individually. Whether the verdicts
as to each defendant are the same depends on
the evidence and your determination as judges
of the facts.
With only minor modifications, the judge used the applicable
portions of Model Jury Charge (Criminal), "Unlawful Possession of
a Handgun (N.J.S.A. 2C:39-5b)" (rev. Feb. 26, 2001) (the Model
Charge), which included the following:
The word "possess" as used in criminal
statutes signifies a knowing, intentional
control of a designated thing, accompanied by
a knowledge of its character. Thus, a
defendant or defendants must know or be aware
that he possessed the handgun and a defendant
must know what it is that he/they possess or
control is a handgun. This possession cannot
merely be a passing control that is fleeting
or uncertain in its nature.
In other words, to "possess" within the
meaning of the law, a defendant or defendants
must knowingly procure or receive the handgun
possessed or be aware of his/their control
thereof for a sufficient period of time to
have been able to relinquish control if
he/they chose to do so. A person may possess
a handgun, even though it is not physically
on his person at the time of arrest, if a
person had, in fact, at some time prior to his
arrest, had control over it.
. . . .
The law recognizes that possession may
be constructive or actual. Constructive
possession means possession in which the
person does not physically have the handgun,
but though not physically on one's person, he
6 A-5581-15T1
is aware of the presence of the handgun and
is able to and has the intention to exercise
control over it.
The judge modified the last paragraph of the Model Charge by
adding the phrase, "as to one or both defendants" as indicated
below:
If you find that the State has failed to
prove any of the elements of a crime charged
beyond a reasonable doubt, your verdict must
be not guilty as to one or both defendants.
On the other hand, if you are satisfied
that the State has proven all of the elements
of the crime beyond a reasonable doubt, your
verdict must be guilty as to one or both
defendants.
[(Emphasis added).]
During their deliberations, the jury presented two questions
to the court simultaneously. The first asked, "How long
constitutes possession?" The second asked, "What is fleeting?"
The judge responded, "Unfortunately, ladies and gentleman, there
is nothing more I can add, other than what that paragraph states."
On April 12, 2016, the jury returned a verdict, finding
defendant and Porter guilty of second-degree unlawful possession
of a handgun. At defendant's sentencing, the State argued for a
seven-year term of imprisonment with a three-and-a-half year
period of parole ineligibility. Defendant argued the court should
impose the lowest sentence possible because this was his first
7 A-5581-15T1
Superior Court conviction, he had two dependent children, he was
unaware of the presence of the gun, and he cooperated fully with
the justice system. Defendant contended he should be sentenced
below the statutory requirement to a term of probation. The State
would not consent to a Graves Act waiver under
N.J.S.A. 2C:43-6.2.
The trial judge asked the prosecutor, "had he pled guilty before
trial, . . . would that have been appropriate to ask for some type
of Graves Act waiver from the criminal presiding judge?" The
prosecutor responded, "[i]t certainly would have been a
possibility." The court replied, "we're way beyond that stage."
Defendant had not led a law-abiding life. He was adjudicated
delinquent, placed on probation, and then violated probation. As
an adult, he was convicted of an ordinance violation and contempt
of court for violating a domestic violence restraining order,
N.J.S.A. 2C:29-9(b), for which he was placed on probation.
The judge found aggravating factors three,
N.J.S.A. 2C:44-
1(a)(3) (risk defendant will commit another offense); six,
N.J.S.A. 2C:44-1(a)(6) (extent of prior criminal record and
seriousness of offense of which he has been convicted); and nine,
N.J.S.A. 2C:44-1(a)(9) (need for deterrence) applied. The judge
also assigned slight weight to mitigating factor seven,
N.J.S.A.
2C:44-1(b)(7) (lack of prior delinquency or criminal activity or
has led a law-abiding life for a substantial period of time) and
8 A-5581-15T1
"some weight" to mitigating factor eleven,
N.J.S.A. 2C:44-1(b)(11)
(imprisonment would entail excessive hardship to defendant or his
dependents).2 The judge concluded "the aggravating factors
slightly outweigh the mitigating factors because of the great
weight" he assigned to aggravating factor nine.3
The judge sentenced defendant to a five-year prison term,
subject to a forty-two-month period of parole ineligibility
pursuant to
N.J.S.A. 2C:43-6(c). In reaching that result, the
judge stated:
Now, obviously the [c]ourt has discretion
but it must be based upon the statute and the
statute, I believe, does not give the [c]ourt
discretion to give home probation despite his
lack of [a superior] court [conviction]. As
I said earlier, with the second degree gun
charge there's a presumption of imprisonment.
I think the prosecutor's request for seven
years, three-and-a-half-period [of parole
ineligibility] is too harsh given the lack of
a[] [superior] court [conviction].
. . . .
2
The judgment of conviction (JOC) incorrectly indicates the judge
found no mitigating factors. "In the event of a discrepancy
between the court's oral pronouncement of sentence and the sentence
described in the judgment of conviction, the sentencing transcript
controls[.]" State v. Abril,
444 N.J. Super. 553, 564 (App. Div.),
certif. denied,
226 N.J. 213 (2016).
3
The JOC is also incorrect to the extent it states, "the
aggravating factors outweigh and preponderate over the non-
existent mitigating factors."
9 A-5581-15T1
I think this sentence is in keeping with
justice and the dictates of the statutes which
control this matter.
On appeal, defendant raises the following arguments:
POINT ONE
THE TRIAL COURT ERRED BY DENYING HAILE-JONES'
MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THERE
WAS NO EVIDENCE THAT HAILE-JONES POSSESSED THE
GUN.
POINT TWO
THE TRIAL COURT'S CHARGE ON POSSESSION OF THE
HANDGUN WAS MANIFESTLY CONFUSING, AND
IMPROPERLY INSTRUCTED THE JURY THAT IT COULD
CONVICT HAILE-JONES IF IT FOUND THAT ONLY
PORTER POSSESSED THE GUN, DENYING HAILE-JONES
HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)
POINT THREE
THE TRIAL COURT'S FAILURE TO TAILOR THE JURY
CHARGES TO INCLUDE A "MERE PRESENCE"
INSTRUCTION DENIED HAILE-JONES A FAIR TRIAL
(Not Raised Below)
POINT FOUR
A REMAND FOR RESENTENCING IS PROPER BECAUSE
THE COURT ERRONEOUSLY BELIEVED THAT IT COULD
NOT RECOMMEND A SENTENCE WITH A ONE YEAR
PAROLE-DISQUALIFIER OR PROBATION, PURSUANT TO
N.J.S.A. 2C:43-6.2
II.
We first address defendant's claim that the court erred in
denying his motion for acquittal at the close of the State's case,
pursuant to Rule 3:18-1. In his motion, defendant argues there
10 A-5581-15T1
was no evidence he possessed the gun. When reviewing the denial
of a motion for judgment of acquittal, "[w]e apply the same
standards used by the trial court in its determination of
defendant's motion." State v. Tindell,
417 N.J. Super. 530, 549
(App. Div. 2011). Thus, "[w]e must determine whether, based on
the entirety of the evidence and after giving the State the benefit
of all its favorable testimony and all favorable inferences drawn
from that testimony, a reasonable jury could find guilt beyond a
reasonable doubt." State v. Williams,
218 N.J. 576, 594 (2014).
"We review the record de novo in assessing whether the State
presented sufficient evidence to defeat an acquittal motion."
State v. Dekowski,
218 N.J. 596, 608 (2014).
Defendant argues the State failed to present evidence he
possessed the handgun. His argument is belied, however, by the
record. Possession may be actual or constructive. "'Possession'
does not necessarily mean actual physical possession; it is enough
that defendant have 'intentional control and dominion' over the
object." State v. Humphreys,
54 N.J. 406, 413-14 (1969) (quoting
State v. DiRienzo,
53 N.J. 360, 369 (1969)). "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
11 A-5581-15T1
dominion over it during a span of time." State v. Spivey,
179 N.J.
229, 236-37 (2004). However, "[t]here must 'be circumstances
beyond mere presence' that permit a reasonable inference of the
defendant's intention and capacity to exercise control over the
object and the defendant's knowledge of what the object is." State
v. Randolph,
441 N.J. Super. 553, 559 (App. Div. 2015) (citing
State v. Whyte,
265 N.J. 518, 523 (App. Div. 1992)).
Here, the handgun was not concealed or in a remote location
but, rather, sat in plain view on the adjacent passenger seat
within arm's reach of defendant, after Porter exited the vehicle,
in a car that had been occupied by only defendant and Porter. A
reasonable jury could infer defendant was in constructive
possession of the handgun. Defendant does not contest he did not
have a permit for the handgun.
Viewed in its entirety and in a light most favorable to the
State, the testimony was sufficient to warrant the denial of
defendant's motion for acquittal.
III.
Defendant argues the jury instruction on unlawful possession
of a handgun was "inherently confusing," and deprived him of his
right to a fair trial. First, defendant contends the court
arbitrarily replaced the term "the defendant" with "defendants,"
"defendant," or "defendant or defendants." He argues the court
12 A-5581-15T1
should have instructed the jury that unlawful possession of a
handgun and joint possession charges should be applied to each
defendant individually. Second, defendant argues the court should
have included a "mere presence" instruction.
"An essential ingredient of a fair trial is that a jury
receive adequate and understandable instructions." State v.
McKinney,
223 N.J. 475, 495 (2015) (quoting State v. Afanador,
151 N.J. 41, 54 (1997)). "A [jury] charge is a road map to guide the
jury, and without an appropriate charge, a jury can take a wrong
turn in its deliberations." State v. Nelson,
173 N.J. 417, 446
(2002) (alteration in original) (quoting State v. Koskovich,
168 N.J. 448, 508 (1999)).
Defendant did not object to the jury charges at trial and
raised the claim of error for the first time on appeal.
"Consequently, we must consider this issue under the plain error
rule." State v. Walker,
203 N.J. 73, 89 (2010) (citing R. 2:10-
2); see also State v. Burns,
192 N.J. 312, 341 (2007). Our Supreme
Court has established that
[i]n the context of jury instructions, plain
error is "[l]egal impropriety in the charge
prejudicially affecting the substantial
rights of the defendant and 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."
13 A-5581-15T1
[State v. Camacho,
218 N.J. 533, 554 (2014)
(second alteration in original) (quoting State
v. Adams,
194 N.J. 186, 207 (2008)).]
"Therefore, we may reverse only if the unchallenged error was
'clearly capable of producing an unjust result.'" Ibid. (quoting
R. 2:10-2). "We consider alleged error in light of 'the totality
of the entire charge, not in isolation.'" Burns,
192 N.J. at 341
(quoting State v. Chapland,
187 N.J. 275, 289 (2006)).
"[T]he test to be applied . . . is whether the charge as a
whole is misleading, or sets forth accurately and fairly the
controlling principles of law." McKinney,
223 N.J. at 496 (quoting
State v. Jackmon,
305 N.J. Super. 274, 299 (App. Div. 1997)).
However, where there is no objection to the jury charges, "it may
be presumed that the instructions were adequate." State v.
Belliard,
415 N.J. Super. 51, 66 (App. Div. 2010) (quoting State
v. Morais,
359 N.J. Super. 123, 134-35 (App. Div. 2003)).
In the present case, largely consistent with the model jury
charges, the judge instructed the jury:
Ladies and gentlemen, obviously, we have
more than one defendant as to each of the
charges being tried.
You must return separate verdicts for
each defendant as to each of the charges being
tried.
In other words, you will have to decide
each case individually. Whether the verdicts
as to each defendant are the same depends on
14 A-5581-15T1
the evidence and your determination as judges
of the facts.
The judge further instructed the jury:
If you find that the State has failed to
prove any of the elements of a crime charged
beyond a reasonable doubt, your verdict must
be not guilty as to one or both defendants.
On the other hand, if you are satisfied
that the State has proven all of the elements
of the crime beyond a reasonable doubt, your
verdict must be not guilty as to one or both
defendants.
[(Emphasis added).]
The jury verdict sheet reflected these instructions, requiring the
jury to answer a separate question as to each of the two
defendants. Although defendant contends the interchangeable use
of "defendant" or "defendants" was confusing, the judge made clear
several times that the jurors must consider each defendant
individually.
Next, defendant argues that in light of the questions posed
by the jury during deliberations, the trial court should have
tailored the jury charge on constructive possession to inform the
jury that defendant's presence in the car, without more, was a
legally insufficient basis to support a finding of constructive
possession and that all of the circumstances must be considered
in evaluating whether the State met its burden of proving defendant
constructively possessed the gun.
15 A-5581-15T1
Courts are encouraged to "mold the [jury] instruction in a
manner that explains the law to the jury in the context of the
material facts of the case." State v. Concepcion,
111 N.J. 373,
379 (1988); see also State v. Robinson,
165 N.J. 32, 42-43 (2000)
(explaining jury instructions should be "'molded' or 'tailored'
to the facts adduced at trial . . . in various contexts in which
the statement of relevant law, when divorced from the facts, [are]
potentially confusing or misleading to the jury").
The jury asked the court "How long constitutes possession?"
and "What is fleeting?" The judge directed the jury to page
twenty-two of the written jury instructions which defined
"possession." He indicated there was nothing more he could add
to his earlier instructions. In that regard, we note the earlier
instructions included:
The word "possess" as used in criminal
statutes signifies a knowing, intentional
control of a designated thing, accompanied by
a knowledge of its character. Thus, a
defendant or defendants must know or be aware
that he possessed the handgun and a defendant
must know what it is that he/they possess or
control is a handgun. This possession cannot
merely be a passing control that is fleeting
or uncertain in its nature.
In other words, to "possess" within the
meaning of the law, a defendant or defendants
must knowingly procure or receive the handgun
possessed or be aware of his/their control
thereof for a sufficient period of time to
have been able to relinquish control if
16 A-5581-15T1
he/they chose to do so. A person may possess
a handgun, even though it is not physically
on his person at the time of arrest, if a
person had, in fact, at some time prior to his
arrest, had control over it.
. . . .
The law recognizes that possession may
be constructive or actual. Constructive
possession means possession in which the
person does not physically have the handgun,
but though not physically on one's person, he
is aware of the presence of the handgun and
is able to and has the intention to exercise
control over it.
[(Emphasis added).]
This instruction, considered in the context of the entire
charge and the evidence in this case, sufficiently advised the
jury that mere presence in the vehicle was insufficient for it to
find defendant guilty of possession of the handgun. See State v.
Montesano,
298 N.J. Super. 597, 615 (App. Div. 1997). The charge
provided "an accurate statement of the law and was sufficient for
the jury to consider the defendant's guilt based on the correct
legal standards." Ibid.
We, therefore, conclude the jury instructions did not possess
a clear capacity to bring about an unjust result. Accordingly,
we find no plain error.
17 A-5581-15T1
IV.
Finally, we address defendant's argument that the trial court
erred by not considering a Graves Act waiver pursuant to
N.J.S.A.
2C:43-6.2, which provides:
On a motion by the prosecutor made to the
assignment judge that the imposition of a
mandatory minimum term of imprisonment under
[the Act] for a defendant who has not
previously been convicted of an offense under
[the Act], does not serve the interests of
justice, the assignment judge shall place the
defendant on probation pursuant to paragraph
(2) of subsection b. of N.J.S. 2C:43-2 or
reduce to one year the mandatory minimum term
of imprisonment during which the defendant
will be ineligible for parole. The sentencing
court may also refer a case of a defendant who
has not previously been convicted of an
offence under that subsection to the
assignment judge, with the approval of the
prosecutor, if the sentencing court believes
that the interest of justice would not be
served by the imposition of a mandatory
minimum term.
[(Emphasis added).]
A defendant may also request the sentencing judge to refer
the matter to the assignment judge for leniency. State v. Alvarez,
246 N.J. Super. 137, 140 (App. Div. 1991). "In order to be granted
a hearing before the assignment judge to challenge the prosecutor's
decision, the defendant must establish a prima facie case either
of arbitrary action or denial of equal protection." Cannel, N.J.
Criminal Code Annotated, cmt. 2 on
N.J.S.A. 2C:43-6.2 (2017)
18 A-5581-15T1
(citing Alvarez,
246 N.J. Super. at 148-49; State v. Miller,
321 N.J. Super. 550, 555 (Law Div. 1999)). A prosecutor's decision
not to pursue or endorse a waiver application "will not be
disturbed on appeal unless arbitrary, capricious, or unduly
discriminatory." Ibid. (citing State v. Mastapeter,
290 N.J.
Super. 56, 64-65 (App. Div. 1996); Miller,
321 N.J. Super. at
555).
In his sentencing memorandum, defense counsel requested the
prosecutor petition the assignment judge pursuant to
N.J.S.A.
2C:43-6.2 for imposition of a term of probation. The prosecutor
would not consent to a post-verdict Graves Act waiver. Relying
on the reasoning in State v. Mello, defendant contends the case
should be remanded for resentencing to allow consideration of a
waiver under
N.J.S.A. 2C:43-6.2 in light of defendant's prior law
abiding life.
297 N.J. Super. 452, 468 (App. Div. 1997). We
disagree.
In Mello, the defendant had led a previously law abiding
life. Id. at 467. At oral argument, "the prosecutor observed
that this was [the] defendant's first brush with the law and, the
crimes committed, while very serious, appeared aberrational." Id.
at 467-68. Under those circumstances, we found "the interests of
justice militate in favor of remanding the matter to the Law
Division to afford defendant the opportunity to seek the
19 A-5581-15T1
prosecutor's consent and move for leniency under
N.J.S.A. 2C:43-
6.2." Id. at 468.
Defendant was twenty-two years old at the time of sentencing.
Unlike the defendant in Mello, who had previously led a law abiding
life, defendant had been adjudicated delinquent, violated juvenile
probation, violated a municipal ordinance, and committed a
contempt of court for which he was placed on probation. In
imposing the sentence, the judge stated the five-year prison term
subject to a forty-two-month period of parole ineligibility "is
in keeping with justice." This finding is in stark contrast to a
finding by a sentencing court that it "believes that the interest
of justice would not be served by the imposition of a mandatory
minimum term."
N.J.S.A. 2C:43-6.2.
We find no basis for concluding the prosecutor's decision not
to endorse an application for a waiver under
N.J.S.A. 2C:43-6.2
was arbitrary, capricious, or discriminatory.
Affirmed.
20 A-5581-15T1
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