NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1441-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HECTOR A. GUEVARA,
Defendant-Appellant. ______________________________
Submitted April 17, 2018 – Decided August 28, 2018
Before Judges Fasciale and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 16-01-0057.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Stephen C. Sayer, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM Defendant Hector A. Guevara appeals from his conviction for
first-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(j)
and his sentence. He presents the following points of arguments:
POINT I
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. [I], PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S INSTRUCTION EXPRESSLY AUTHORIZING THE JURY TO FIND THAT THE DEFENDANT POSSESSED THE FIREARM SOLELY ON THE BASIS OF HIS PRESENCE IN THE CAR. (Not Raised Below).
POINT II
THE PROSECUTOR VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION BY PERSUADING THE JURY WITH HIS PERSONAL BELIEF BASED ON HIS LAW ENFORCEMENT EXPERIENCE THAT THE DEFENDANT IS GUILTY. (Not Raised Below).
POINT III
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1, OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF HIGHLY PREJUDICIAL EVIDENCE PERTAINING TO A REMOTE CONVICTION TO IMPEACH THE DEFENDANT'S CREDIBILITY.
POINT IV
THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
2 A-1441-16T1 POINT V
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.
A. The Police Seizure Under Threat of Deadly Force Was Unreasonable.
B. The Police Acted Illegally by Searching the Vehicle and Seizing Evidence without a Warrant, Which Was Required at the Time of the Search and Seizure.
POINT VI
THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
In defendant's pro se supplemental brief, he argues the
following point:
THE DEFENDANT HECTOR A. GUEVARA'S RIGHTS(S) TO DUE PROCESS OF LAW WERE CLEARLY VIOLATED BY THE TRIAL COURT'S JURY INSTRUCTION
He also argues the prosecutor used inflammatory language to
convince the jury and that trial counsel failed to raise several
issues.
For the reasons that follow, we affirm.
I
We first address defendant's contention in Point V that the
trial judge erred in denying his pretrial motion to suppress the
search of a black FJ cruiser (the vehicle), in which defendant was
3 A-1441-16T1 a passenger, along with the seizure of guns found in the vehicle
and shotgun shells found in defendant's pants pockets. Because
the weapons and shotgun shells were seized without a warrant, the
burden was upon the State to prove that the search and seizure did
not violate the constitutional rights of defendant as well as his
co-defendant Bruce Jackson. State v. Pineiro, 181 N.J. 13, 19
(2004).
The State's case was presented through the testimony of three
Millville Police officers. A few weeks prior to defendant's
arrest, Millville police responded to a call regarding shots fired
at a local garden apartment complex from a black FJ cruiser with
a white top that had been subsequently seen at a local convenience
store. After an investigating officer obtained a photo of the
vehicle from the store's surveillance video system, and was able
to identify Jackson as the driver, members of the police force
were alerted about the incident.
On the night in question, about nineteen minutes after
midnight, there was a report of shots fired from a vehicle at the
same garden apartment complex, matching the description of the
vehicle from the earlier shooting. While investigating the
shooting at the complex, the police found shell casings and bullet
holes in the building, and an informant relayed that a black FJ
cruiser had been involved in the shooting. Police also observed
4 A-1441-16T1 the vehicle enter the complex with its headlights on, and then saw
the vehicle immediately turn around to exit the complex with its
lights off in violation of N.J.S.A. 39:3-47(a). Later that
evening, the vehicle was seen at the same convenience store where
it was depicted on the surveillance video a few weeks earlier.
After the occupants, including defendant and Jackson, were ordered
out of the vehicle by police with their firearms drawn, the police,
without entering the vehicle, observed a handgun in the pouch
behind the passenger-side front seat and the butt of another
handgun was seen protruding from underneath a towel. A subsequent
search revealed another handgun and a shotgun in the vehicle's
cargo area. All of the firearms were loaded. A search incident
to arrest discovered shotgun ammunition in defendant's pants
pocket. The stop and search of the vehicle was depicted on a
police vehicle's mobile vehicle recording device.
The judge denied the motion to suppress. Finding the police
officers' gave credible testimony, the court determined that they
had a right to stop the vehicle due to the motor vehicle violation
and that under State v. Pena-Flores, 198 N.J. 6, 11 (2009),1 there
were exigent circumstances of a felony investigation – its presence
1 We are mindful that State v. Witt, 223 N.J. 409, 450 (2015), overturned Pena-Flores prospectively for searches occurring after September 24, 2015, which is after the search in this case.
5 A-1441-16T1 at the second shooting at garden apartment complex within weeks
of the initial shooting – and their concern over safety due to two
other individuals who had left the vehicle and were not in police
custody. The judge further found that the police officers' plain
view observation of two handguns inside the vehicle's passenger
area and another handgun and a shotgun in the vehicle's cargo area
were discovered inadvertently.
We begin by noting our standard of review. It is well
understood that when considering a trial judge's ruling on a motion
to suppress evidence, "[w]e conduct [our] review with substantial
deference to the trial [judge]'s factual findings, which we 'must
uphold . . . so long as those findings are supported by sufficient
credible evidence in the record.'" State v. Hinton, 216 N.J. 211,
228 (2013) (fourth alteration in original) (quoting State v. Handy,
206 N.J. 39, 44 (2011)). "Those findings warrant particular
deference when they are substantially influenced by [the trial
judge's] opportunity to hear and see the witnesses and to have the
'feel' of the case, which a reviewing court cannot enjoy." State
v. Rockford, 213 N.J. 424, 440 (2013) (alteration in original)
(citation omitted). We review de novo the judge's pure
determinations of law, State v. Mann, 203 N.J. 328, 337 (2010)
(citation omitted), as well as the application of legal principles
6 A-1441-16T1 to such factual findings, State v. Harris, 181 N.J. 391, 416 (2004)
(citation omitted).
In accordance with the Fourth Amendment to the United States
Constitution and Article I, paragraph 7 of the New Jersey
Constitution, "police officers must obtain a warrant . . . before
searching a person's property, unless the search 'falls within one
of the recognized exceptions to the warrant requirement.'" State
v. DeLuca, 168 N.J. 626, 631 (2001) (quoting State v. Cooke, 163
N.J. 657, 664 (2000)). An investigatory stop, commonly referred
to as a Terry stop, is a valid exception "if it is based on
'specific and articulable facts which, taken together with
rational inferences from those facts,' give rise to a reasonable
suspicion of criminal activity." State v. Rodriguez, 172 N.J.
117, 126-27 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).
The State need not prove the defendant actually committed the
offense involved. State v. Williamson, 138 N.J. 302, 304 (1994).
When an investigatory stop is based on a confidential
informant's tip, the State must establish the reliability of the
tip under the totality of the circumstances. State v. Smith, 155
N.J. 83, 92 (1998) (citing Illinois v. Gates, 462 U.S. 213, 238
(1983)). The informant's veracity and basis of knowledge for the
tip are two highly relevant factors. State v. Caldwell, 158 N.J.
452, 460 (1999) (citations omitted). A sufficient basis of
7 A-1441-16T1 knowledge may be established "if the tip itself relates expressly
or clearly how the informant knows of the criminal activity."
Smith, 155 N.J. at 94. "Even in the absence of a disclosure that
expressly indicates the source of the informant's knowledge, the
nature and details revealed in the tip may imply that the
informant's knowledge of the alleged criminal activity is derived
from a trustworthy source." Ibid.
In situations involving an investigatory stop of a motor
vehicle, if authorities have a reasonable and articulable
suspicion that violations of motor vehicle or other laws have been
or are being committed, the stop is legitimate. State v. Carty,
170 N.J. 632, 639-40, modified on other grounds, 174 N.J. 351
(2002). Although our State through the enactment of N.J.S.A.
39:5-252 authorizes both issuance of a summons and arrest for a
motor vehicle violation, such a violation does not authorize a
vehicular search incident to all traffic stops absent probable
cause of some other criminal conduct or the occupants posed a
safety threat. State v. Pierce, 136 N.J. 184, 190-93 (1994).
Another exception to the warrant requirement is the plain
view doctrine, which allows law enforcement to seize contraband
2 A law enforcement officer is authorized by statute to arrest, without a warrant, a person "violating in his presence any provision of chapter 3" or "chapter 4" of Title 39. N.J.S.A. 39:5-25.
8 A-1441-16T1 without a warrant. To apply, three prongs must be satisfied.
"First, the police officer must be lawfully in the viewing area."
Mann, 203 N.J. at 341 (quoting State v. Bruzzese, 94 N.J. 210, 236
(1983)). Second, the officer's discovery of the evidence must be
"inadvertent[], meaning that he did not know in advance where
evidence was located nor intend[ed] beforehand to seize it." Ibid.
(quoting Bruzzese, 94 N.J. at 236). Finally, "it has to be
immediately apparent to the police that the items in plain view
were evidence of a crime, contraband, or otherwise subject to
seizure." Ibid. (quoting Bruzzese, 94 N.J. at 236). Our court
has also held that there is no reasonable expectation of privacy
in those areas of a vehicle viewable through the windows by a
police officer located outside the vehicle. State v. Reininger,
430 N.J. Super. 517, 534 (App. Div. 2013) (citation omitted).
Thus, the automobile exception under Pena-Flores does not apply
where there is a firearm seizure under the plain view doctrine.
Id. at 537.
Looking at the totality of the circumstances, we have no
reason to disturb the judge's findings or conclusions that the
vehicle stop and warrantless search were justified. The court
found the police officers' testimony credible regarding: the motor
vehicle violation by the vehicle's operation without its
headlights on in an apparent attempt to conceal itself when leaving
9 A-1441-16T1 the crime scene; the reasonable belief from the informant that the
vehicle was involved in the shooting for the second time within a
month at the same location; the safety concerns with the two
occupants who left the vehicle and were not located; and the plain
view observations of weapons. Through our review of the record,
the court's findings are supported by sufficient credible evidence
and proper application of the law.
II
During the trial, the State's witnesses essentially
reiterated the testimony they gave at the suppression hearing.
Defendant, who did not testify at the hearing, did so at the trial.
Prior to defendant's testimony, the court determined in a
Sands3 hearing that a sanitized version of his prior conviction –
a second-degree robbery when he was a fourteen-year-old juvenile4
– limited to the degree of the offense and his eight-year sentence
was admissible. The court reasoned that because he was released
within ten years of this new offense, the conviction was
sufficiently probative of his credibility should he testify.
Defendant testified that he was merely in the wrong place at
the wrong time. While he was going to the convenience store, the
3 State v. Sands, 76 N.J. 127 (1978). 4 The charge of second-degree robbery was waived up to an adult offense.
10 A-1441-16T1 vehicle pulled up to him and he was offered a ride to the store
by an acquaintance of his stepdaughter who was a front-seat
passenger. Not wanting to drive his girlfriend's vehicle without
a license, he accepted the offer. He did not know the driver, but
had seen the two-backseat passengers in Bridgeton. After they
arrived at the store, the backseat passengers got out of the
vehicle, and he never saw them again. A police officer then pulled
up and ordered defendant, and the remaining two occupants out of
the vehicle. A vehicle search resulted in the seizure of four
weapons, which defendant stated he had never seen before. A search
of defendant's pants pockets revealed shotgun shells that he
claimed he picked up off the vehicle's floor so that he could sell
them to his friends who were hunters.
The jury found defendant guilty of possession of the shotgun,
but not guilty of possession of the handguns. After finding
aggravating factors three, six and nine applied, but no mitigating
factors applied, the judge imposed a sentence of sixteen years
with eight years of parole ineligibility. N.J.S.A. 2C:44-1(a)(3)
(the risk of re-offense); -1(a)(6) (prior record and seriousness
of offense); -1(a)(9) (the need to deter).
In Point III, defendant contends the admission of his prior
conviction was error because it improperly discredited his
testimony. We disagree.
11 A-1441-16T1 The decision as to whether a prior conviction may be admitted
"rests within the sound discretion of the trial judge." Sands,
76 N.J. at 144. "[A] trial [judge]'s evidentiary rulings are
'entitled to deference absent a showing of an abuse of discretion,
i.e., there has been a clear error of judgment.'" State v. Brown,
170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469,
484 (1997)). As for the remoteness of the prior conviction,
N.J.R.E. 609(b)(1) states:
If, on the date the trial begins, more than ten years have passed since the witness's conviction for a crime or release from confinement for it, whichever is later, then evidence of the conviction is admissible only if the [judge] determines that its probative value outweighs its prejudicial effect. . . .
Under these guidelines, the judge properly considered the date of
defendant's release and the date of the current trial. And, we
are satisfied that he did not abuse his discretion in admitting
defendant's prior conviction.
III
In Point II, defendant argues for the first time that the
prosecutor denied him a fair trial in his closing argument:
But I'm here at this point, ladies and gentlemen, to tell you that I believe that the evidence in this case, when you combine it with the law, as given to you by the [c]ourt[,] [i]s more than enough to prove [defendant's] guilt beyond a reasonable doubt as to both counts.
12 A-1441-16T1 Defendant now argues that the prosecutor's statement improperly
persuaded the jury with his expertise, law enforcement experience
and personal opinion of defendant's guilt.
To warrant a new trial for prosecutorial misconduct, the
conduct must have been "'clearly and unmistakably improper,' and
must have substantially prejudiced defendant's fundamental right
to have a jury fairly evaluate the merits of his defense." State
v. Smith, 167 N.J. 158, 181-82 (2001) (quoting State v.
Timmendequas, 161 N.J. 515, 575 (1999)). In determining whether
a prosecutor's actions were sufficiently egregious, we consider:
(1) whether defense counsel made a timely and proper objection;
(2) whether the remarks were promptly withdrawn; and (3) whether
the judge struck the remarks from the record and issued a curative
instruction. Id. at 182. In our review, we "consider the tenor
of the trial and the responsiveness of counsel and the court to
the improprieties when they occurred." Timmendequas, 161 N.J. at
575.
If no objection was made, the prosecutor's conduct generally
will not be deemed prejudicial, as the failure to object indicates
counsel did not consider the conduct improper and deprives the
trial judge of the opportunity to take curative action. State v.
Echols, 199 N.J. 344, 360 (2009). Absent an objection, defendant
must establish the conduct constitutes plain error, State v. Feal,
13 A-1441-16T1 194 N.J. 293, 312 (2008), meaning that our inquiry is to determine
whether this was an error that was "clearly capable of producing
an unjust result," R. 2:10-2. Under that standard, reversal is
required if there was error "sufficient to raise a reasonable
doubt as to whether [it] led the jury to a result it otherwise
might not have reached." State v. Green, 447 N.J. Super. 317, 325
(App. Div. 2016) (citation omitted).
We find insufficient merit in defendant's argument to warrant
extensive discussion here. R. 2:11-3(e)(2). The prosecutor was
allowed to draw legitimate inferences from the facts presented at
trial, namely that he used his common sense to think about the
evidence. The prosecutor did not allude to his opinion as being
the correct choice that the jury should abide by, and did not
prejudice defendant's right to have the jury objectively weigh the
evidence so as to require reversal. See State v. Land, 435 N.J.
Super. 249, 269 (App. Div. 2014). We thus conclude there was no
plain error.
IV
In Point I, defendant contends for the first time that the
court's jury instruction erroneously authorized the jury to find
defendant had constructive possession of a firearm based solely
on his presence in the vehicle. We thus must determine whether
there was plain error.
14 A-1441-16T1 "[A]ppropriate and proper [jury] charges are essential for a
fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting
State v. Reddish, 181 N.J. 533, 613 (2004)). We consider the
charge as a whole in determining whether it was prejudicial. State
v. Figueroa, 190 N.J. 219, 246 (2007). Model jury charges are
often helpful to trial courts performing this important function.
See Mogull v. CB Commercial Real Estate Grp., 162 N.J. 449, 466
(2000) (holding that instructions given in accordance with model
charges, or which closely track model charges, are generally not
considered erroneous).
There was nothing prejudicial about the judge's charge to the
jury in this case. The portion of the charge at issue tracked the
model charge for N.J.S.A. 2C:39-2. See Model Jury Charges
(Criminal), "Possession Of Firearms, Weapons, Destructive Devices,
Silencers or Explosives In A Vehicle (N.J.S.A. 2C:39-2)" (approved
Mar. 1993). The charge was an accurate reflection of the law and
it did not misinform or mislead the jury, and therefore did not
constitute plain error.
V
In Point IV, defendant argues that the court erred in denying
his motion to dismiss the verdict as against the weight of the
evidence. He contends there was "woefully insufficient evidence"
to show he "had ever seen the shotgun, let alone possessed it."
15 A-1441-16T1 In support, defendant cites his testimony, the lack of forensic
evidence linking him to the shotgun, and his lack of connection
with the vehicle other than being a momentary passenger.
A motion for a new trial is only granted when a trial judge
sets aside a jury's verdict as "against the weight of the
evidence," if "having given due regard to the opportunity of the
jury to pass upon the credibility of the witnesses, it clearly and
convincingly appears that there was a manifest denial of justice
under the law." R. 3:20-1.
In his oral decision, the judge found that the jury's verdict
was "completely consistent with evidence presented at trial." He
cited defendant's possession of shotgun shells similar to the
shell found inside the shotgun in the vehicle's cargo area, and
the jury's obvious exercise of its prerogative in rejecting
defendant's version of the events.
Defendant's contentions are without sufficient merit to
warrant discussion, R. 2:11-3(e)(2), and we affirm substantially
for the reasons stated by the judge.
VI
In Point VI, defendant contends that his sentence was
excessive because there was no support for aggravating factor nine
and to do so was double-counting aggravating factor six.
16 A-1441-16T1 Review of a criminal sentence is limited; a reviewing court
must decide, "whether there is a 'clear showing of abuse of
discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting
State v. Whitaker, 79 N.J. 503, 512 (1979)). Under this standard,
a criminal sentence must be affirmed unless "(1) the sentencing
guidelines were violated; (2) the findings of aggravating and
mitigating factors were not 'based upon competent credible
evidence in the record;' or (3) 'the application of the guidelines
to the facts' of the case 'shock[s] the judicial conscience.'"
Ibid. (alteration in original) (quoting State v. Roth, 95 N.J.
334, 364-65 (1984)). If a sentencing court properly identifies
and balances the factors and their existence is supported by
sufficient credible evidence in the record, this court will affirm
the sentence. See State v. Carey, 168 N.J. 413, 426-27 (2001);
State v. Megargel, 143 N.J. 484, 493-94 (1996).
warrant discussion, R. 2:11-3(e)(2), and we affirm substantially
for the reasons stated by the judge expressed at sentencing. We
only add that we find support in the record for the judge's
findings, and the sentence does not shock our judicial conscience.
VII
Finally, in considering defendant's pro se supplemental
brief, we conclude it is procedurally deficient under Rule 2:6-
17 A-1441-16T1 2(a)(6) because it fails to cite any law with appropriate reference
to the record to support his arguments. See State v. Hild, 148
N.J. Super. 294, 296 (App. Div. 1977). In addition, from what we
can glean from his arguments, they are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
18 A-1441-16T1