NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1873-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRANDON S. FLETCHER,
Defendant-Appellant. __________________________
Argued May 13, 2019 – Decided June 11, 2019
Before Judges Sabatino, Sumners and Mitterhoff.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 17-04-0184.
Michele A. Adubato, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Michele A. Adubato, on the brief).
Randolph E. Mershon, III, Assistant Prosecutor, argued the cause for respondent (Angelo J. Onofri, Mercer County Prosecutor, attorney; Randolph E. Mershon, III, of counsel and on the brief).
PER CURIAM Tried by a jury, defendant Brandon Fletcher was found guilty of the
criminal offense of prohibiting "certain persons" from possessing firearms.
N.J.S.A. 2C:39-7(b)(1). The trial court sentenced defendant to a seven-year
prison term with a five-year period of parole ineligibility. Defendant appeals
his conviction and sentence. We affirm.
I.
At approximately 4:24 p.m. on January 24, 2017, Detective Sarai Cheek
of the Trenton Police Department responded to a report from a concerned
citizen. The report alleged that the citizen overheard a group of males arguing
and saying that they were "going to get guns." Police were accordingly
dispatched to a building on Cleveland Avenue in Trenton identified by the caller.
While en route to the location, Detective Cheek, aware that she was driving
through an area known for violence and drug activity, noticed two males on the
front porch of another Cleveland Avenue address, but not the address to which
the officers were dispatched. The location with the males was an abandoned
property.
Detective Cheek got out of her vehicle to investigate and potentially issue
summonses to the two males for occupying a condemned dwelling. One of the
two males was defendant. The other male has not been identified. As Detective
A-1873-17T2 2 Cheek approached, she observed defendant spot her, reach toward his waistband,
jump off the porch, and run down a footpath cluttered with trash. Detective
Cheek demanded that defendant stop, and chased him down the alley as he
disobeyed.
As defendant ran from Detective Cheek, she noticed that he threw a gun
into a yard and also dropped a glove. He eventually hopped fences, and escaped
from Detective Cheek. However, because she had been broadcasting the chase
over the radio, he was quickly spotted by other officers.
Detective Cheek's radio transmissions did not inform her co-officers of
the weapon, and they were apparently otherwise unaware of that fact. After a
brief chase and physical struggle, the officers apprehended defendant.
Shortly thereafter, Officer Cheek returned to the yard where she had seen
defendant dispose of his weapon. She located there a .9 millimeter luger caliber,
Ruger semiautomatic pistol with corresponding cartridges. Expert forensic
analysis was unable to positively link defendant to the weapon through DNA or
fingerprints. Hence, the State attempted to prove defendant's guilt by other
means.
On September 19, 2017, defendant's trial commenced and continued
through September 27, 2017. The State's witnesses at trial were Detective Cheek
A-1873-17T2 3 and Detective Brieer Doggett, who testified about the events on January 24,
2017 surrounding defendant's arrest. The State also presented testimony of a
firearms and tool mark examiner who provided expert testimony about the type
and operability of the gun Detective Cheek recovered; a police detective who
provided expert testimony about the lack of fingerprints evidence linking
defendant to the gun; and a forensic scientist who provided expert testimony
about the lack of DNA profile suitable for comparison in this case.
Defendant testified, but did not present any other witnesses. Jury
deliberations began on September 28, 2017, and lasted through October 3, 2017.
On Sunday, October 1, 2017, a gunman in Las Vegas, Nevada, aimlessly
opened fire upon a crowd of concertgoers from a hotel window, killing dozens
and injuring hundreds. 1
When the present trial resumed on Tuesday, October 3, 2017, Juror
Number Two brought to the trial court's attention concerns about the Las Vegas
incident. The juror stated that, in part due to the recent events in Las Vegas, she
was unable to be impartial in carrying out her duties on the jury. She claimed
to be suffering from severe anxiety, migraine headaches, and a lack of sleep.
1 See Las Vegas Shooting, CBS News, https://www.cbsnews.com/feature/las- vegas-shooting/ (last visited May 28, 2019) (a link providing access to a wide range of media coverage beginning the day of the events). A-1873-17T2 4 Based upon this information, the trial court questioned Juror Number Two
in counsel's presence regarding whether she had discussed the matter with any
other jurors. She asserted she had not. Juror Number Two was then excused
from service and replaced with an alternate juror. The trial court did not voir
dire any of the other jurors to determine if they had been affected by the events
or Juror Number Two's exposure. No such voir dire request was made by
counsel.
On the same day, October 3, 2017, the jury returned a verdict, finding
defendant guilty of violating N.J.S.A. 2C:39-7(b)(1), certain persons not to
possess a firearm, which was the only count of the indictment that the State
pursued at trial.
On November 17, 2017, the trial court sentenced defendant to a seven-
year prison term, with a five-year minimum parole ineligibility period. The
judge found that aggravating factors three, six, and nine applied, as well as
mitigating factor eleven.
II.
On appeal, defendant raises the following points for our consideration:
POINT I
THE FAILURE OF THE COURT TO VOIR DIRE THE JURY DURING DELIBERATIONS
A-1873-17T2 5 FOLLOWING THE LAS VEGAS SHOOTING MASSACRE WAS ERROR WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT II
TESTIMONY REGARDING STATEMENTS MADE BY A "CONCERNED CITIZEN" WAS INADMISSIBLE HEARSAY WHICH VIOLATED THE DEFENDANT'S RIGHT OF CONFRONTATION.
POINT III
THE INSTRUCTION TO THE JURY ON FLIGHT OVER DEFENDANT'S OBJECTION WAS ERROR.
POINT IV
THE SEVEN (7) YEAR SENTENCE WITH FIVE (5) YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED.
Having considered these points in light of the record and the applicable law, we
affirm both defendant's conviction and sentence.
A.
We first address defendant's argument that he was deprived of a fair trial
because of the trial judge's decision not to voir dire the entire jury following the
Las Vegas shooting incident and Juror Number Two's reaction to that event. We
review the trial court's handling of this juror issue under an abuse of discretion
A-1873-17T2 6 standard. State v. R.D., 169 N.J. 551, 560-61 (2001). "[T]he decision to voir
dire individually the other members of the jury best remains a matter for the
sound discretion of the trial court" and there is "[n]o per se rule." Id. at 561.
As we have noted, defense counsel did not request a voir dire of the entire
jury regarding the Las Vegas incident. Consequently, defendant must
demonstrate plain error, i.e., that the error was "clearly capable of producing an
unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336-37 (1971).
We find no such abuse of discretion or plain error under the circumstances
presented.
Certain general principles guide our analysis. "The Sixth Amendment of
the United States Constitution and Article I, paragraph 10 of the New Jersey
Constitution guarantee criminal defendants 'the right to . . . trial by an impartial
jury.'" R.D., 169 N.J at 557 (quoting U.S. Const. amends. VI, XIV; N.J. Const.
art. I, ¶ 10). "[T]he securing and preservation of an impartial jury goes to the
very essence of a fair trial." State v. Bey, 112 N.J. 45, 75 (1988) (quoting State
v. Williams, 93 N.J. 39, 60 (1983)). The guarantee of an impartial jury "includes
the right to have the jury decide the case based solely on the evidence presented
at trial, free from the taint of outside influences and extraneous matters." R.D.,
169 N.J. at 557.
A-1873-17T2 7 "[I]f during the course of the trial it becomes apparent that a juror may
have been exposed to extraneous information, the trial court must act swiftly to
overcome any potential bias and to expose factors impinging on the juror's
impartiality." Id. at 557-58. The trial court "is obliged to interrogate the juror,
in the presence of counsel, to determine if there is a taint; if so, the inquiry must
expand to determine whether any other jurors have been tainted thereby." Id. at
558 (emphasis added). The expanded inquiry may entail asking the tainted juror
if he or she discussed the subject with fellow jurors; depending on the juror's
response, the inquiry may extend to individual examination of other jurors.
In Bey, 112 N.J. at 83-84, the Supreme Court laid out a two-part inquiry
for trial courts to conduct when "presented with a post-impanelment motion to
question the jury about exposure to trial publicity." According to the Bey two-
part inquiry, "[t]he court should first examine the information disseminat ed to
determine if it has the capacity to prejudice the defendant." Id. at 84. If there
is such a capacity to prejudice the defendant, the trial court "should determine
if there is a realistic possibility that such information may have reached one or
more of the jurors." Id. at 86.
After reviewing the present record, we find no basis to second-guess the
trial court's handling of Juror Number Two raising concerns about her ability to
A-1873-17T2 8 be unbiased after the Las Vegas shooting. The trial judge questioned th e juror
as to the nature of her inability to continue as a juror. He also questioned
whether she discussed this with the other jurors; which she denied doing. See
R.D., 169 N.J. at 560 ("An appropriate voir dire of a juror allegedly in possession
of extraneous information mid-trial should inquire into the specific nature of the
extraneous information, and whether the juror intentionally or inadvertently has
imparted any of that information to other jurors."). Based on this information,
the judge appropriately excused Juror Number Two.
Following these developments, the trial judge instructed the jury that Juror
Number Two was being excused for "entirely personal" reasons having "nothing
to do with her views on this case or her relationship with the other members of
the deliberating jury" and asked them not to "speculate on the reason why that
juror was excused." Neither the State nor defendant's counsel objected to the
trial court's handling of this issue at the time of the trial.
Given this record, the trial judge reasonably exercised his discretion to
provide instructions to the jury regarding Juror Number Two's dismissal,
without, sua sponte, conducting an unrequested individual voir dire of the other
jurors about the Las Vegas incident. As the Supreme Court has noted, "In some
instances, the [trial] court may find that it would be more harmful to voir dire
A-1873-17T2 9 the remaining jurors because, in asking questions, inappropriate information
could be imparted." Id. at 561.
This case is unlike Bey, which involved a murder trial, where the
potentially tainting publicity was about the defendant and disclosed prejudicial
information including that the defendant was going to be tried for a second
murder. 112 N.J. at 90. Here, the potentially tainting news coverage was about
a separate incident, which was not substantially similar to the possessory crime
for which defendant was charged.
Defendant was charged with a certain persons offense that made it
unlawful for him to carry a firearm. The trial focused on whether or not he had
possessed that firearm. The trial did not involve a shooting incident or any act
of gun violence by defendant. The incident in Las Vegas, while tragic and
widely covered in the news media, was not comparable to the possessory charge
against defendant. We are not persuaded that the news reports about the Las
Vegas shooting had the capacity to prejudice the defendant, even assuming other
jurors were exposed to that publicity.
We find the trial judge properly utilized his discretion to question and
dismiss Juror Number Two, but not voir dire the entire jury. In making this
finding, we do not preclude the possibility that, in a future case, the prejudicial
A-1873-17T2 10 potential of a widely covered incident may rise to a level where voir dire of the
jury may be required. 2 See, e.g., State v. Jasuilewicz, 205 N.J. Super. 558, 567-
68 (App. Div. 1985) (finding the trial court should have conducted a voir dire
of the jury regarding possible taint in a homicide case where the defendant raised
an insanity defense at a time when there was extensive national discussion about
the acquittal, on the basis of insanity, of John Hinckley, Jr. for the attempted
assassination of President Reagan).
B.
The second issue raised by defendant concerns the testimony of Detectives
Cheek and Doggett regarding the concerned citizen's call they were responding
to when Detective Cheek observed defendant outside of the abandoned property.
Detective Cheek specifically testified on direct examination, "We received a call
from a concerned citizen stating that there was a group in the area and they were
talking about – basically, they were saying that they – she overheard a group of
2 For example, if the crime charged involved substantially similar allegations as the outside incident or the incident occurred in the same community, there may more compelling reasons for the trial court to voir dire the entire jury to ensure there is no taint. We do not express any opinion on what the proper course of action would be in these potential situations, but rather entrust these decisions to the future "sound discretion of the trial court." R.D., 169 N.J. at 561. A-1873-17T2 11 males arguing and saying that they were going to get guns and shooting someone
up."
Detective Doggett testified on direct examination that the call "was
[from] a concerned citizen. [The caller] said she overheard a group of males
saying that they were gonna shoot someone. And she said she heard a brief
argument."
Defendant argues that this testimony by Detectives Cheek and Doggett
about the citizen's call constituted inadmissible hearsay, and violated his rights
under the confrontation clauses of the United States and New Jersey
Constitutions. We disagree.
Notably, defense counsel did not object to any of this testimony at trial.
Consequently, defendant must demonstrate plain error to obtain relief. R. 2:10-
2; see also State v. Macon, 57 N.J. 325, 336-37 (1971). We find no error, let
alone plain error, in admitting the testimony of the two officers regarding the
concerned citizen call.
The United States and New Jersey Constitutions guarantee a criminal
defendant the right to confront "the witnesses against him." U.S. Const. amend.
VI; N.J. Const. art. I, ¶ 10. However, "[t]he Confrontation Clause does not
condemn all hearsay." State v. Branch, 182 N.J. 338, 349 (2005). Particularly
A-1873-17T2 12 applicable in this case, the Confrontation Clause "does not bar the use of
testimonial statements for purposes other than establishing the truth of the
matter asserted." Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) (citing
Tennessee v. Street, 471 U.S. 409, 414 (1985)).
It does not violate the hearsay rule for police officers to explain their
reasons for taking investigatory steps, such as arriving at a crime scene, by
stating this was done "upon information received." State v. Bankston, 63 N.J.
263, 268 (1973). Such testimony is admissible "to show that the officer was not
acting in an arbitrary manner or to explain his [or her] subsequent conduct."
Ibid. That said, the Court recognized in Bankston that the hearsay rule and
defendant's constitutional right to confront witnesses against him are violated if
an officer's testimony "becomes more specific by repeating what some other
person told [him or her] concerning a crime by the accused." Ibid. "The
common thread" running through Bankston and subsequent cases "is that a
police officer may not imply to the jury that he possesses superior knowledge,
outside the record, that incriminates the defendant." Branch, 182 N.J. at 351.
While the detectives' testimony in this case literally does go beyond
merely stating that they were in the area of Cleveland Avenue "upon information
received," the testimony does not rise to a level of insinuating any conduct by
A-1873-17T2 13 defendant or that the detectives possessed superior knowledge incriminating
him. Instead, the detectives' testimony served to explain why police officers
were responding to a different property on the same block where defendant was
located.
The concerned citizen call was for another address on Cleveland Avenue,
which Detective Cheek did not go to before seeing defendant. Rather, Detective
Cheek's testimony illuminates that she confronted defendant and the
unidentified man because they were outside of an abandoned building in a high
crime area, not because of the contents of the concerned citizen call. This was
not an instance where the "logical implication" of the detectives' testimony
would lead "the jury to believe that a non-testifying witness has given the police
evidence of the accused's guilt." Bankston, 63 N.J. at 271. The concerned
citizen call only provided the reason the officers were physically near where
defendant was located. The detectives' testimony did not insinuate that the
concerned citizen had identified the defendant, or that the call was the basis
upon which Detective Cheek stopped defendant.
Furthermore, this testimony from the detectives was invited by defense
counsel's opening statement. Cf. State v. James, 144 N.J. 538, 554 (1996) ("The
doctrine of opening the door allows a party to elicit otherwise inadmissible
A-1873-17T2 14 evidence when the opposing party has made unfair prejudicial use of related
evidence."). In his opening statement, defense counsel discussed the substance
of the concerned citizen call, including that "somebody is possibly threatening
with a gun" and further argued that the officers "react[ed] first" to defendant and
the unidentified man as the first suspicious people in the area.
Defense counsel also raised similar arguments in his cross-examination of
Detective Cheek and his summations. This is an instance where the testimony
was elicited to respond to an allegation by defense counsel that the police
officers acted irrationally in confronting defendant. See Branch, 182 N.J. at 352
("The exception would be the defendant who opens the door by flagrantly and
falsely suggesting that a police officer acted arbitrarily or with ill motive. In
such a circumstance, the officer might be permitted to dispel that false
impression, despite the invited prejudice the defendant would suffer.")
Furthermore, the prosecutor did not highlight this testimony in his closing
argument. Cf. State v. Thomas, 168 N.J. Super. 10, 16 (App. Div. 1979) (noting
it was contrary to Bankston for the prosecutor to assert, during his summation,
that police learned from an informant that defendant may have been involved in
a robbery). The prosecution's actual use of the concerned citizen testimony
further illustrates that the State did not misuse the testimony to show defendant's
A-1873-17T2 15 guilt, but rather to respond to arguments that the officers acted unreasonably in
confronting defendant on Cleveland Avenue.
Finally, defendant waived any Confrontation Clause argument by failing
to raise it in a timely manner at trial. See State v. Wilson, 227 N.J. 534, 543
(2017). This is not a case where the failure to object was "so patently
unreasonable and so clearly erroneous that no rational counsel acting within the
wide range of professional norms would pursue such a course." State v.
Williams, 219 N.J. 89, 99 (2014). Rather the testimony was used by defense
counsel to challenge the officers' decision to confront and arrest defendant.
For these many reasons, we do not find error in the admittance of the
testimony of the detectives regarding the concerned citizen call.
C.
Defendant next argues that the trial court should not have issued a flight
charge to the jury. Defendant's trial counsel initially objected to the flight
charge. However, defense counsel stated that he had no objection to the final
version of the jury charge, which the trial court amended to include defendant's
explanation for his departure from the location.
To be sure, "[a]ppropriate and proper charges to a jury are essential for a
fair trial." State v. Green, 86 N.J. 281, 287 (1981). Indeed, "[e]rroneous jury
A-1873-17T2 16 instructions on matters material to a jury's deliberations are ordinarily presumed
to be reversible error." State v. Jackmon, 305 N.J. Super. 274, 277-78 (App.
Div. 1997). Recognizing the importance of proper jury charges, particularly in
criminal cases, we do not find any error in the trial court's decision to charge the
jury on flight.
The Supreme Court has recognized that "[f]light of an accused is
admissible as evidence of consciousness of guilt, and therefore of guilt." State
v. Ingram, 196 N.J. 23, 46 (2008) (alternation in original) (quoting State v. Long,
119 N.J. 439, 499 (1990)). "A jury may infer that a defendant fled from the
scene of a crime by finding that he departed with an intent to avoid apprehension
for that crime." State v. Wilson, 57 N.J. 39, 49 (1970). "Mere departure,
however, does not imply guilt." Long, 119 N.J. at 499. Therefore, "[a] jury
must be able to draw reasonable inferences from the evidence; it may not be left
to speculate." State v. Randolph, 228 N.J. 566, 595 (2017). The "evidence of
flight must be 'intrinsically indicative of a consciousness of guilt.'" Id. at 595
(quoting State v. Randolph, 441 N.J. Super. 533, 562 (App. Div. 2015)).
The trial judge's flight instruction was not unduly prejudicial, or otherwise
inappropriate, given the evidence adduced at the trial. Defendant admitted to
running from police, providing an alternative explanation for his departure,
A-1873-17T2 17 namely that he supposedly ran because a police officer pointed a weapon at him.
According to Detective Cheek's testimony, while running from her, defendant
disposed of a firearm. This provided a basis for the jury to make a reasonable
inference that defendant had fled to avoid police finding him in possession of a
firearm. The jury was allowed to make such an inference if it found Detective
Cheek's testimony more credible than defendant's explanation.
Moreover, the trial court's jury instruction, which closely followed the
model jury instruction, properly included defendant's alternative explanation fo r
the flight and explained what inferences the jury could make from the
defendant's flight. See State v. Mann, 132 N.J. 410, 421 (1993) (articulating
requirements for jury instructions on flight, particularly when a defendant offers
a possible alternative explanation for the flight); see also Model Jury Charges
(Criminal), "Flight" (rev. May 10, 2010).
In sum, this issue is also unavailing for defendant.
D.
Finally, defendant argues his sentence of seven years, with a five-year
parole disqualifier, is manifestly excessive. At sentencing, defendant's counsel
requested a sentence of five years, with five years parole ineligibility, which is
the statutory minimum sentence for defendant's certain persons offense, because
A-1873-17T2 18 defendant previously had been convicted of aggravated assault. N.J.S.A. 2C:39-
7(b)(1). The State requested a nine-year sentence with five years of parole
ineligibility. The trial judge selected a custodial term in between these opposing
requests.
As our Supreme Court has reaffirmed, "when [trial judges] exercise
discretion in accordance with the principles set forth in the Code [of Criminal
Justice] and defined by [the Court] . . ., they need fear no second-guessing."
State v. Bieniek, 200 N.J. 601, 607-08 (2010) (quoting State v. Ghertler, 114
N.J. 383, 384-85 (1989)).
Once the trial court has balanced the aggravating and mitigating factors
set forth in N.J.S.A. 2C:44-1(a) and -1(b), it "may impose a term within the
permissible range for the offense." Id. at 608; see also State v. Case, 220 N.J.
49, 54 (2014) (remanding for resentencing because the trial court relied on
"unfounded assumptions rather than evidence in the record" in finding a
"critical" aggravating factor); State v. Fuentes, 217 N.J. 57, 63 (2014)
(remanding for resentencing because the trial court "did not adequately explain
its findings" for the aggravating factors).
Here, the trial court found the following aggravating factors applied:
three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant will commit another
A-1873-17T2 19 offense; six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior criminal
record and the seriousness of the offenses for which he has been convicted; and
nine, N.J.S.A. 2C:44-1(a)(9), the need for deterring the defendant and others
from violating the law. The judge also found mitigating factor eleven, N.J.S.A.
2C:44-1(b)(11), the imprisonment of defendant would entail excessive hardship
on himself or his dependents, applied because defendant has a child.
Although the trial judge found the aggravating factors outweighed the
mitigating factors, he still did not sentence defendant to the nine years requested
by the State. Instead, the trial judge found a seven-year sentence, with a five-
year parole ineligibility, "appropriate in this situation."
We are satisfied that the trial judge adhered to the sentencing guidelines,
and properly considered and explained his evaluation of the aggravating and
mitigating factors.
We also reject defendant's argument that the sentence amounts to a "trial
tax" because it is more stringent than the State's pretrial plea offer. When
defendant decided not to accept the State's plea offer, the trial court informed
him that he faced a maximum possible sentence of twenty years, with parole
ineligibility of ten years, if he went to trial. Defendant went to trial knowing he
would be exposed to the risk of a greater sentence than the plea offer.
A-1873-17T2 20 Furthermore, the plea offer was based on defendant pleading guilty plea to count
one of the indictment, unlawful possession of a handgun, N.J.S.A. 2C:39-
5(b)(1). At trial, the jury found defendant guilty on count five of the indictment,
the certain persons charge, which includes a five-year mandatory minimum with
a five-year parole disqualifier. N.J.S.A. 2C:39-7(b)(1). The trial court properly
sentenced defendant for the discrete crime the jury found him guilty of at the
trial.
On the whole, we discern no abuse of discretion or legal error in
defendant's sentence. The record supports the trial judge's findings, and the
sentence imposed is clearly reasonable and does not shock our judicial
conscience. See State v. Roth, 95 N.J. 334, 365 (1984) (appellate courts may
not substitute their judgment for that of the sentencing court, unless the
application of the sentencing guidelines to the facts makes the sentence "clearly
unreasonable so as to shock the judicial conscience").
Affirmed.
A-1873-17T2 21