State v. Terry

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: PER CURIAM
• Decision Date: 08 May 2018
• Docket Number: DOCKET NO. A-4453-13T1
• Citation: State v. Terry, DOCKET NO. A-4453-13T1 (N.J. Super. App. Div. May 08, 2018)
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. ORNETTE M. TERRY, a/k/a KEITH TERRY, KEITH M. TERRY, ORHETTE TERRY, and RASHEIA TERRY, Defendant-Appellant.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. ORNETTE M. TERRY, a/k/a KEITH TERRY, KEITH M. TERRY,ORHETTE TERRY, and RASHEIA TERRY, Defendant-Appellant.

DOCKET NO. A-4453-13T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued May 25, 2016

Decided June 13, 2016

Remanded: March 16, 2018

Resubmitted April 24, 2018

May 8, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Argued May 25, 2016 - Decided June 13, 2016. Remanded by Supreme Court March 16, 2018. Resubmitted April 24, 2018 - Decided May 8, 2018.

Before Judges Ostrer, Haas and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-04-0466.

Tamar Y. Lerer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Tamar Y. Lerer, of counsel and on the brief).

Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Ann M. Luvera, Acting Union County Prosecutor, attorney; Kimberly L. Donnelly, of counsel; Amanda K. Dalton, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This matter returns to us upon remand, State v. Terry, ___ N.J. ___ (2018), for a determination of the arguments raised on appeal but not addressed in our prior opinion.

Defendant Keith Terry¹ appeals his conviction for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and fourth-degree possession of hollow-nose bullets, N.J.S.A. 2C:39-3(f) based upon purported trial errors. We affirm.

I.

We recite the facts from the record that are essential to our determination. On December 31, 2010, Union Township Police Officer Joseph Devlin was traveling east on Morris Avenue at approximately 6:50 p.m. during his patrol shift. Devlin observed a white GMC truck run a stop sign at Ingersoll Terrace and turn right onto Morris Avenue. He drove behind the truck and activated his lights and siren to effect a motor vehicle stop. The vehicle did not stop, switched lanes multiples times without signaling, andcontinued to travel for approximately one-half of a mile before stopping at a BP gas station.

Devlin notified dispatch of the situation and provided the license plate number and model of the truck. Dispatch informed Devlin that the truck was a rental from Hertz. There was no report that the truck was stolen.

Devlin and another Union police officer who responded to the gas station blocked defendant's truck, drew their weapons, and approached the vehicle. Devlin ordered defendant to show his hands multiple times but defendant did not comply. Devlin then opened the door and ordered defendant out of the truck. Defendant stepped out of the truck, leaned against it and placed his hands in his pockets. On multiple occasions, Devlin instructed defendant to take his hands out of his pockets. Devlin proceeded to pat defendant down, checking defendant's pants and jacket pockets. No weapons or contraband were found.

After an exchange between defendant and Devlin, Devlin proceeded to the passenger's side of the truck to search the glove compartment for the registration card and insurance for the purpose of issuing a motor vehicle summons. Devlin did not locate any credentials in the glove box. As he was exiting the vehicle, Devlin saw a reflection on the floor of the truck through use of his flashlight. The reflection was from a handgun located on thefloorboard protruding from under the seat. Defendant was placed under arrest and the truck was impounded at the Union police station. The handgun was later seized pursuant to a search warrant.

The first trial commenced on August 13, 2013. However, the judge granted a mistrial based on the State's failure to produce any evidence that defendant had misrepresented himself as "Ornette" Terry. Defendant filed a motion to bar retrial, which was denied. A second trial commenced on August 21, 2013, and concluded on August 28, 2013. Defendant was convicted on both counts. On November 22, 2013, defendant was sentenced on count one to five years in state prison subject to an eighty-five percent parole disqualifier and a concurrent one-year sentence on count two.

II.

The parties stipulated at trial that the handgun was an operable 6.35-millimeter semi-automatic pistol, with six .25-caliber hollow-nose bullets, and that defendant did not have a permit to carry a gun. Testimony was taken from Devlin; Union Township Detectives Odete Mirao and Donald Cook; and Monica Ghannam, a DNA expert.

No fingerprints were recovered from the gun, but Ghannam found usable DNA on two areas of the gun. DNA from two individualswas found. Comparing a buccal swab of defendant's DNA to the DNA found on the gun, Ghannam was unable to exclude defendant as a possible source of the DNA obtained from the gun. At trial, defendant argued that defendant's DNA might have been placed on the gun through transference.² In rebuttal, Cook and Mirao testified regarding the chain of custody of the weapon and how it was handled, as well as inconsistencies in their reports.

Prior to trial, the State represented that a Hertz employee would testify that the rental car was cleaned, vacuumed, and inspected prior to defendant's rental. However, no witness from Hertz testified. Rather, Mirao testified that he spoke to a Hertz representative, who confirmed that Hertz has a policy of thoroughly cleaning rental vehicles and reporting the discovery of contraband to the police, and that no gun was found prior to defendant's rental of the vehicle. Defendant's counsel sought to discredit that testimony by eliciting testimony from Mirao that the Hertz employee he spoke to does not work at the Newark branch and was not there on December 31, 2010 when Hertz cleaned the vehicle.

During summation, the prosecutor stated:

What [defense counsel] did not do is this. There are certain facts that she did not evendispute to you. Why is [defendant] driving for almost two minutes after the lights go on in that car? Why is he driving three-quarters of a mile shifting lanes back and forth?

She got up here just now and never even disputed those facts. She never once said in front of all of you just now, his lawyer, that he drove three-quarters of a mile switching lanes back and forth. She didn't dispute it at all, nothing.

The prosecutor continued this theme by stating "[w]hat are you doing? What are you doing for three-quarters of a mile, switching lanes back and forth? Two facts undisputed in this case." Defendant's counsel objected, arguing that the State was attempting to shift the burden of proof. The judge overruled the objection. The prosecutor also stated that defendant "drove three-quarters of a mile and weaved in and out of traffic for some unknown explanation . . . ."

The prosecutor further commented that defendant failed to pull over because he "is switching lanes, he is driving three-quarters of a mile because human beings have a reaction, it's fight or flight." The prosecutor further commented, "[h]e freaked out when he saw the lights because he just blew a stop sign and took three-quarters of a mile switching lanes to buy . . . time to drop and get rid of that gun and figure out what am I doing." Again, defendant's counsel objected. The judge overruled the objection. The prosecutor continued by posing the question, "isthe explanation for why I'm taking two minutes to pull over and drive three-quarters of a mile, I got a problem, I got a problem?"

During the jury charge, the judge instructed that in order to convict defendant of possessing a prohibited device, it must find that the handgun contained hollow-nosed bullets and that defendant "knowingly possessed" the bullets. The judge further explained that possession meant "knowing intentional control of a designated thing accompanied by a knowledge of its character."

During deliberations, the jury asked, by a note, "How do we know the defendant knew if [hollow-nose] bullets were prohibited?" Following a repetition of the full jury charge on possession of a prohibited weapon or device, the judge stated, "Thus, the defendant must know or be aware that he possessed the items. Here, the items alleged are the ammunition. The State is not required to prove that at the time that he knowingly possessed the ammunition, the defendant also knew that it was [hollow-nose] ammunition." There was no objection to the charge.

On appeal, among other arguments, defendant argued that the trial court erred in denying the motion to suppress. In an unpublished opinion, this court determined that the warrantless search of the truck violated both the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution. The Court granted the State's petition forcertification. 228 N.J. 448 (2016). As noted, the Court reversed this court's decision and remanded for a consideration of the issues not reached by us on direct appeal. This appeal followed.

We now determine the following arguments raised by defendant on appeal.

POINT [I]

BECAUSE THE ADMISSION OF EXTENSIVE HEARSAY TESTIMONY VIOLATED BOTH THE CONFRONTATION CLAUSE AND THE RULES OF EVIDENCE AND EVISCERATED . . . DEFENDANT'S MOST COMPELLING DEFENSE, HIS CONVICTIONS MUST BE REVERSED. [NOT RAISED BELOW]

. . . .

POINT [II]

THE PROSECUTION'S SUMMATION BOTH IMPROPERLY SHIFTED THE BURDEN OF PROOF TO THE DEFENSE AND INAPPROPRIATELY URGED THE JURY TO FIND THAT . . . DEFENDANT FLED THE POLICE DUE TO HIS GUILT WITHOUT A SUFFICIENT EVIDENTIARY BASIS. THE RESULTANT PREJUDICE REQUIRES REVERSAL OF . . . DEFENDANT'S CONVICTIONS. [PARTIALLY RAISED BELOW]

. . . .

POINT [III]

THE TRIAL COURT'S ERRONEOUS INSTRUCTION THAT THE STATE DID NOT HAVE TO PROVE THAT . . . DEFENDANT KNEW THE AMMUNITION

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