The opinion
NOT FOR PUBLICATION WITHOUT THE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-0347-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ISAIH GORDON,
Defendant-Appellant.
_______________________________
Submitted October 17, 2017 – Decided October 27, 2017
Before Judges Fasciale and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
13-11-2914.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele E. Friedman, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Barbara
A. Rosenkrans, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the briefs).
PER CURIAM
Defendant appeals from his convictions for second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-
degree possession of hollow-point bullets, N.J.S.A. 2C:39-3(f);
and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). We
conclude that the failure to qualify two witnesses as experts,
give an expert witness charge, and properly charge the jury after
they were deadlocked resulted in plain error. We therefore reverse
and remand for a new trial.
At trial, the State produced lay testimony from Officer Edward
Pearce and Officer Bao Ho. The State offered expert opinion
testimony from Detective Robert Harris and Detective Kimiiko
Woods. Although it is clear that they rendered expert opinion
testimony in the field of fingerprint analysis and firearm
ballistics, the assistant prosecutor did not offer them as experts,
and the judge did not give an expert witness charge as to either
one. Defendant did not testify, but called his girlfriend as a
witness.
Officer Pearce testified that he noticed two males conversing
in a parking lot. He observed one of them, not defendant, place
what appeared to be drugs into his pocket. The officer exited his
police vehicle, approached the two individuals, and saw "the handle
of a handgun" in defendant's waistband. Defendant ran away from
the officer, who pursued him on foot. During the chase, the
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officer spotted the gun drop to the ground as defendant approached
a fence.
Officer Ho testified that he saw defendant "sprint" from
Officer Pearce. Officer Ho exited his police car, joined the foot
chase, and searched for a gun after he heard Officer Pearce yell
"gun." He found a gun on the ground. Officer Ho testified that
he waited "a half an hour or more" for another officer to provide
a camera, and then he photographed the gun before touching it.
Detective Harris testified as an employee in the crime-scene
unit of the prosecutor's office. On direct examination, and after
the assistant prosecutor established his professional credentials
and extensive experience, especially as to his "fingerprint
career," the detective explained that he tested the gun for
fingerprints. After explaining how that was done, he testified
that his examination of the gun showed no fingerprints.
Detective Harris opined that there is a low probability of
lifting fingerprints off weapons because of a variety of reasons,
such as the design of the weapon and the weather. The detective
opined that the gun found at the scene had no fingerprints because
the handle was plastic. According to the detective, the plastic
handle amounted to an "alligator-type surface," which in his
opinion was "made to grip and not to actually leave a fingerprint."
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Detective Woods worked for the police department as a
ballistics firearms examiner. On direct examination, she
testified that she generally conducts "operability tests on
handguns," and "performs microscopic examinations of bullets and
casings that are recovered from the shooting scenes." Detective
Woods tested the gun the police retrieved from the scene and
concluded it was operable. She opined further that ten bullets
accompanying the gun were "hollow[-]point [bullets]." The
detective explained that hollow-point bullets "enter a target and
mushroom open causing it to stop upon impact."
The girlfriend testified that defendant was at her home after
she attended church. According to the girlfriend, defendant then
left her house to get food. She testified that he did not have a
gun when he left her house.
At sentencing, the State moved for a discretionary extended
prison term. After denying that motion, the judge sentenced
defendant to an aggregate prison term of eight years, with four
years of parole ineligibility.
On appeal, defendant raises the following arguments:
POINT I
THE [JUDGE'S] FAILURE TO PROVIDE THE JURY WITH
AN EXPERT JURY INSTRUCTION WITH RESPECT TO
DETECTIVES HARRIS AND WOODS REQUIRES REVERSAL.
(Not Raised Below)[.]
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A. The Opinion Testimony of Detectives Harris
and Woods Required Specialized Knowledge
Beyond the Ken of the Average Juror.
B. The Absence of an Expert Jury Instruction
Had the Clear Capacity to Distort the Jury's
Deliberative Process.
POINT II
[DEFENDANT] WAS DEPRIVED EFFECTIVE ASSISTANCE
OF COUNSEL BECAUSE HIS ATTORNEY DID NOT RAISE
THE GUN-AMNESTY STATUTE ON HIS BEHALF. (Not
Raised Below)[.]
A. []L. 2013, c. 117 Created a 180-Day Amnesty
Period for Gun Possession.
B. Defendant's Trial Attorney Rendered
Ineffective Assistance of Counsel by Failing
to Raise a Gun-Amnesty Defense.
POINT III
THE [JUDGE'S] COERCIVE INSTRUCTION TO CONTINUE
DELIBERATIONS AFTER THE JURY INDICATED THAT
IT WAS AT AN IMPASSE ON TWO COUNTS DENIED THE
DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL.
(Not Raised Below)[.]
POINT IV
THE MATTER SHOULD BE REMANDED FOR RESENTENCING
BECAUSE THE SENTENCE IMPOSED BY THE [JUDGE]
IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
We review defendant's first three arguments for plain error because
defense counsel did not raise objections. Under this deferential
standard, we disregard any error or omission "unless it is of such
a nature as to have been clearly capable of producing an unjust
result." R. 2:10-2.
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We begin with defendant's argument that the judge failed to
give the appropriate expert witness charge as to Detectives Harris
and Woods. We conclude that the failure to give this charge
prevented the jury from placing these witnesses' testimony into
proper context. See Model Jury Charge (Criminal), "Expert
Testimony" (2003) (requiring the judge to identify to the jury
each testifying expert and such expert's area of expertise). Under
the circumstances of this case, such an error is clearly capable
of producing an unjust result.
Lay opinion testimony is governed by N.J.R.E. 701, which
permits lay witness "testimony in the form of opinions or
inferences . . . if it (a) is rationally based on the perception
of the witness and (b) will assist in understanding the witness'
testimony or in determining a fact in issue." Detectives Harris
and Woods did not render lay opinions. Rather, the State elicited
expert opinion testimony from them.
An expert witness may testify in the form of an opinion
provided it "will assist the trier of fact to understand the
evidence or to determine a fact in issue." N.J.R.E. 702. To be
admissible, expert testimony must be about a "subject that is
beyond the understanding of the average person of ordinary
experience, education, and knowledge." State v. Odom, 116 N.J.
65, 71 (1989). The testimony from the detectives concerned
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subjects that are beyond the ordinary intelligence of an average
person. The State concedes this point.
On direct examination, the assistant prosecutor elicited
testimony demonstrating that the detectives were qualified as
experts. Although it is undisputed that the detectives rendered
expert opinion testimony, the State failed to offer the witnesses
as experts. The judge did not qualify them as experts before the
witnesses provided their opinions.
Detective Harris testified that he has experience processing
crime scene evidence; investigating crimes; performing forensic
analysis; looking for fingerprints; and swabbing for DNA evidence.
He explained that he started his law enforcement career in 1994,
and started his fingerprint career in 1996. The detective stated
that he received training on how to extract fingerprints, including
reading literature, and attending symposiums and lectures; and he
has fingerprinted thousands of guns, including shell casings,
magazines, and bullets.
Detective Woods testified about her experience in processing
ballistic evidence for the police. She explained that the police
generally transport to her guns, casings, and bullets seized during
the commission of a crime and she performs various testing in the
ballistic lab. The detective stated she tests weapons and
determines whether they are operable, she measures bullets by
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looking at the "lands and grooves," which provide a bullet's unique
identification, and determines whether bullets are hollow-point.
The failure to qualify the detectives as experts in the field
of fingerprint analysis and ballistics firearm examinations, and
then give the appropriate jury charge, deprived the jury of fully
understanding how to consider their opinion testimony. The
required model jury charge on expert opinion testimony states in
part that
witnesses can testify only as to facts known
by them. This rule ordinarily does not permit
the opinion of a witness to be received as
evidence. However, an exception to this rule
exists in the case of an expert witness who
may give (his/her) opinion as to any matter
in which (he/she) is versed which is material
to the case. In legal terminology, an expert
witness is a witness who has some special
knowledge, skill, experience or training that
is not possessed by the ordinary juror and who
thus may be able to provide assistance to the
jury in understanding the evidence presented
and determine the facts in this case.
. . . .
You are not bound by such expert's opinion,
but you should consider each opinion and give
it the weight to which you deem it is entitled,
whether that be great or slight, or you may
reject it. In examining each opinion, you may
consider the reasons given for it, if any, and
you may also consider the qualifications and
credibility of the expert.
It is always within the special function of
the jury to determine whether the facts on
which the answer or testimony of an expert is
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based actually exist. The value or weight of
the opinion of the expert is dependent upon,
and is no stronger than, the facts on which
it is based. In other words, the probative
value of the opinion will depend upon whether
from all of the evidence in the case, you find
that those facts are true. You may, in fact,
determine from the evidence in the case that
the facts that form the basis of the opinion
are true, are not true, or are true in part
only, and, in light of such findings, you
should decide what affect such determination
has upon the weight to be given to the opinion
of the expert. Your acceptance or rejection
of the expert opinion will depend, therefore,
to some extent on your findings as to the truth
of the facts relied upon.
The ultimate determination of whether or not
the State has proven defendant's guilt beyond
a reasonable doubt is to be made only by the
jury.
[Model Jury Charge (Criminal), "Expert
Testimony" (2003).]
We reject the State's argument that the failure to give the
expert jury charge did not deprive defendant of a fair trial. The
State asserts that defense counsel defended the weapons charges
by arguing defendant had never seen the gun. According to the
State, the lack of fingerprints on the gun compliments defendant's
defense theory. In other words, the State asserts it is irrelevant
whether fingerprints were capable of residing on the plastic handle
of the gun. Defendant's girlfriend maintained that defendant left
her house without a gun. The jury could accept or reject that
testimony. If they rejected it, then whether fingerprints were
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on the plastic handle would be probative on the State's charge
that defendant unlawfully possessed the weapon. The detective
provided an expert reason for why fingerprints on the gun handle
were unlikely, but the jury did not know that they could reject
that testimony outright.
Defendant's purported theory of the case, therefore, does not
obviate the requirement for properly offering the witnesses as
experts, qualifying them as such, and instructing the jury on how
to consider their opinion, especially as to Detective Wood's
testimony on the operability of the weapon and hollow-point
bullets. Certainly, without expert testimony, the jury was unable
to comprehend what hollow-point bullets were.
We conclude that the failure to qualify and offer the
detectives as expert witnesses, and the jury's ignorance about the
role of forensic experts, how to consider expert testimony, and
their ability to reject the detectives' expert opinion testimony,
is clearly capable of producing an unjust result and therefore
deprived defendant of a fair trial. The judge exacerbated this
plain error when he coercively directed the jury to deliberate
after the jury reported it was deadlocked on two of the charges.
After deliberating for two hours on the first day, and the
entire second day until 5:00 p.m., the jury asked the judge if it
could continue deliberating for two additional hours. Some of the
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jurors were unable to return the next day, and apparently wanted
to continue deliberating that night. The judge granted that
request without objection.
At approximately 7:07 p.m. that night, the jury notified the
judge it was deadlocked on two of the charges. At approximately
7:26 p.m., the judge gave the following instructions to the jury,
which defendant argues deprived him of a fair trial:
I have received a note, which I have marked
as Court Exhibit [thirteen], which reads as
follows: "The jury has reached a verdict as
to one of the counts. The jury is unable to
reach a verdict as to two of the counts."
In light of your note, I am going to instruct
you as follows: Members of the jury, I am going
to ask that you continue your deliberations
in an effort to reach an agreement upon the
verdict and dispose of this case. And I would
like . . . for you to consider, as you do so,
the following: This is an important case.
The trial has been expensive in time, effort,
money, and emotional strain to both the
defense and the prosecution. If you should
fail to agree upon a verdict, the case will
be left open and may have to be tried again.
Obviously, another trial would only serve to
increase the cost of both sides. And there's
no reason to believe that the case can be tried
again by either side any better or more
exhaustively than it has been tried before
you.
Any future jury must be selected in the same
manner and from the same sources you were
chosen. And there's no reason to believe that
the case could ever be submitted to [twelve]
men and women more conscientious, more
impartial, or more competent to decide it or
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that more or clearer evidence could be
produced.
If a substantial majority of your number are
in favor of a conviction[,] those of you who
disagree should reconsider whether your doubt
is a reasonable one[,] since it appears to
make no effective impression upon the minds
of the others. On the other hand, if a
majority or even a lesser number of you are
in favor of acquittal[,] the rest of you
should ask yourselves again and most
thoughtfully whether you should accept the
weight and sufficiency of evidence which fails
to convince your fellow jurors beyond a
reasonable doubt.
Remember at all times that no juror is
expected to give up an honest belief he or she
may have as to the weight or effect of the
evidence. But after full deliberation and
consideration of the evidence in the case[,]
it is your duty to agree upon a verdict if you
can do so.
You must also remember that if the evidence
in the case fails to establish guilt beyond a
reasonable doubt[,] the defendant should have
your unanimous verdict of not guilty. You may
be as leisurely in your deliberations as the
occasion may require and should take all the
time which you feel is necessary. I will ask
you now that you retire once again and
continue your deliberations with these
additional comments in mind to be applied, of
course, in conjunction with all of the other
instructions I have previously given you.
And you have also indicated to the [c]ourt
that you have reached a partial verdict. I
must instruct you that your partial verdicts
will be final and not subject to
reconsideration even if you continue
deliberating on other counts. You have the
option of returning the partial verdicts now;
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which, as I have just instructed to you, will
be final; or continuing deliberations on all
the counts.
At approximately 8:13 p.m., the jury returned a guilty verdict on
all charges. Because we do not know on which of the two charges
the jury reached an impasse, we are unable to conclude that the
coercion infected only the weapons charges. In other words, the
entire verdict was infected.
In Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41
L. Ed. 528 (1896), the United States Supreme Court upheld a charge
in which "the court direct[s] the minority jurors to reconsider
their views in light of their disagreement with the majority."
United States v. E. Med. Billing, Inc., 230 F.3d 600, 602 n.1 (3d
Cir. 2000). In State v. Czachor, 82 N.J. 392, 398-99 (1980), the
New Jersey Supreme Court concluded the Allen charge was inherently
coercive because it urged jurors to reach a verdict, instead of
urging votes based on convictions. The model charge, based on
Czachor provides:
It is your duty, as jurors, to consult with
one another and to deliberate with a view to
reaching an agreement, if you can do so
without violence to individual judgment. Each
of you must decide the case for yourself, but
do so only after an impartial consideration
of the evidence with your fellow jurors. In
the course of your deliberations, do not
hesitate to re-examine your own views and
change your opinion if convinced it is
erroneous but do not surrender your honest
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conviction as to the weight or effect of
evidence solely because of the opinion of your
fellow jurors, or for the mere purpose of
returning a verdict. You are not partisans.
You are judges--judges of the facts.
[Model Jury Charge (Criminal), "Judge's
Instructions on Further Jury Deliberations"
(2013).]
The State concedes the judge erred by not giving the Czachor
charge, but argues the error was harmless.
"[N]o judge may coerce a jury into rendering a verdict that
does not represent the unfettered and unbiased judgment of each
juror." State v. Barasch, 372 N.J. Super. 355, 361 (App. Div.
2004). "It is of the very essence of the right of trial by jury
that the verdict be free and untrammeled . . . ." In re Stern,
11 N.J. 584, 588 (1953). "Urging a jury to an agreement contrary
to the individual opinion and judgment of one of the jurors on the
merits of the issue may be coercion." Ibid. Judges should not
use "any form of language that has a tendency to 'understate[]'
or 'trivialize the awesome duty of the jury.'" State v. Roberts,
163 N.J. 59, 59 (2000) (alteration in original) (quoting State v.
Biegenwald, 106 N.J. 13, 41 (1987)). Indeed, "[t]rial courts must
understand, as well, that nothing is more important than that they
set the atmosphere of calm, unhurried, and studied deliberation
that is the hallmark of a fair trial." Id. at 60.
14 A-0347-15T1
The defendant argues this charge served as the functional
equivalent of an Allen charge, because it stressed judicial economy
and stated minority jurors "'should' reconsider their views in
light of the majority jurors' beliefs." We disagree with the
State's contention that the error was not clearly capable of
producing an unjust result. We emphasize that plain error exists
under the unique circumstances of this case, especially because
of the cumulative failure to qualify the detectives as experts and
give the required expert jury charge.
Defendant argues his trial counsel rendered ineffective
assistance because he failed to argue his conviction for unlawfully
possessing a handgun violated L. 2013, c. 117, § 1, which states:
Any person who has in his possession a handgun
in violation of [N.J.S.A. 2C:39-5(b)] or a
rifle or shotgun in violation of [N.J.S.A.
2C:39-5(c)] on the effective date of this act
may retain possession of that handgun, rifle,
or shotgun for a period of not more than 180
days after the effective date of this act.
During that time period, the possessor of that
handgun, rifle, or shotgun shall:
(1) transfer that firearm to any person
lawfully entitled to own or possess it;
or
(2) voluntarily surrender that firearm
pursuant to the provisions of N.J.S.[A.]
2C:39-12.
Defendant contends this law created a 180-day amnesty period for
unlawful gun possession.
15 A-0347-15T1
"Our courts have expressed a general policy against
entertaining ineffective-assistance-of-counsel claims on direct
appeal because such claims involve allegations and evidence that
lie outside the trial record." State v. Preciose, 129 N.J. 451,
460 (1992). Ordinarily, a "defendant must develop a record at a
hearing at which counsel can explain the reasons for his conduct
and inaction and at which the trial judge can rule upon the claims
including the issue of prejudice." State v. Sparano, 249 N.J.
Super. 411, 419 (App. Div. 1991).
Nevertheless, and even though we are reversing the weapons
convictions, we conclude defendant's argument is "without
sufficient merit to warrant discussion in a written opinion." R.
2:11-3(e)(2). We add the following brief remarks. The New Jersey
Supreme Court recently stated:
We find that the amnesty law did not afford
defendants blanket immunity for the entire
amnesty period. Reading the law in that way
would lead to absurd results that the
Legislature did not intend. It would permit
violent criminals to carry weapons in public
with impunity, for almost 180 days, and remain
free from prosecution so long as they
transferred or voluntarily surrendered their
firearms just before the end of the amnesty
period.
[State v. Harper, 229 N.J. 228, 232 (2017).]
16 A-0347-15T1
The amnesty law did not create a 180-day period of blanket
immunity, but protected those who took steps to turn in illegal
firearms. Such is not the case here.
As to defendant's argument that the judge imposed an excessive
sentence, we are vacating his eight-year prison term because of
the cumulative errors in the jury charge and failure to properly
qualify the detectives as experts. We note, however, that the
judge had denied the State's motion for a discretionary extended
term, and there was nothing in the record suggesting that we should
second-guess the judge's sentencing findings. Nevertheless, as
to his resisting arrest conviction, we conclude that defendant's
sentence is not excessive.
We reverse and remand for a new trial. We do not retain
jurisdiction.
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