Date: 04-12-2016

Case Style: STATE OF NEW JERSEY VS. JAVAR NAIL

Case Number: A-4249-14T2

Judge: Joseph L. Yannotti

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Andrew C. Carey, Deborah Hay

Defendant's Attorney: Joseph M. Mazraani

Description: On November 12, 2012, Joshua Negron was shot and killed on
the corner of Remsen and Hale Streets in New Brunswick. After a
joint investigation by the New Brunswick Police and the
Middlesex County Prosecutor's Office, defendant, Javar Nail, was
arrested and charged with Negron's murder.
On November 14, 2012, a warrant was obtained and a search
was conducted of defendant's residence. At the time, defendant
was living with his aunt and his cousin. A Remington 12-gauge
shotgun was located in a crawl space which extended the length
of the second floor of the home, accessible from two second
floor bedrooms. One bedroom was occupied by defendant and the
other by his cousin. The shotgun, which was not the weapon used
in the murder, was located approximately ten feet from the
access door in defendant's bedroom.
A grand jury sitting in Middlesex County returned an
indictment charging defendant with first-degree murder, illegal
possession of a weapon, possession of a weapon for an unlawful
purpose, tampering with evidence, hindering his own prosecution,
and possession of hollow point bullets. In a separate two-count
indictment, defendant was charged as a certain person not to
possess a firearm, one count of which pertained to the alleged
A-4249-14T2 3
murder weapon, which was never recovered, the other pertaining
to the shotgun seized during law enforcement's search of
defendant's residence.
Defendant was tried to a jury on the first indictment. On
January 29, 2015, defendant was found guilty of fourth-degree
tampering with evidence and acquitted of all other charges.
The second indictment was set to be tried before the same
jury, but was adjourned. On March 23, 2015, the trial court
denied defendant's motion to dismiss the indictment on double
jeopardy grounds, but granted his motion to dismiss the first
count, which charged possession of the murder weapon. The judge
also denied defendant's motion to suppress telephone calls
between defendant and various persons, which were made while
defendant was an inmate at the MCACC.1
On March 24, 2015, defendant renewed his motion to exclude
all or parts of the phone calls. Defendant's counsel argued
that evidence that defendant was incarcerated at the time the
calls were intercepted was prejudicial. The judge suggested
that the jury not be told that defendant was incarcerated and be
instructed not to speculate as to how the interceptions
occurred. Counsel rejected this suggestion and claimed that he
1 Apparently, some or all of these calls were played during the first trial.
A-4249-14T2 4
might introduce evidence of defendant's incarceration as part of
his "theory of the case." Counsel did not elaborate on this
theory, stating that he was not going to "sit here and tip my
hand." When the judge asked counsel how he proposed to explain
the intercepts to the jury, counsel suggested telling them,
"these are legally obtained intercepts between Mr. Nail and
whoever . . . the State identified that he's talking to."
The judge then reviewed transcripts of the four calls the
State intended to introduce and noted that the participants in
one conversation suggested the shotgun belonged to defendant's
cousin, and did not bolster the State's case. The judge also
noted that just by listening to the conversations, the jury
would know that defendant was incarcerated. Given the marginal
probative value and the high risk of prejudice, the judge
excluded all of the calls.
On appeal, the State argues:
POINT I
THE TRIAL COURT ERRED IN EXCLUDING RELEVANT EVIDENCE THAT IS NOT UNDULY PREJUDICIAL AND THAT COULD HAVE BEEN SANITIZED.
POINT II
THE STATE WILL SUFFER IRREPARABLE INJURY IF THIS COURT DOES NOT INTERVENE IN THIS CASE.
The State provided an audio recording and a transcript of a
phone call between defendant and his mother on November 19, 2012
A-4249-14T2 5
at 3:09 p.m. This call appears to be a continuation of a
previous call, which is also included as a written call
transcript, but is not included in the audio recording. In the
first part of the phone call, defendant and his mother are
discussing what was found in his aunt Tanya's (Tan) house during
the search:
[Defendant]: They ain't find; they ain't find nothing at Tan house.
[Defendant's mother]: (Inaudible)
[Defendant]: Cause uh, Freddie had a shot gun in there.
[Defendant's mother]: Perfect.
[Defendant]: (Laughing) the whole time, the whole time I'm like man Tan gonna be so mad at me, they gonna find that shot gun and she gonna think it was mine. (Inaudible).
[Defendant's mother]: (Inaudible).
[Defendant]: No cause, I don't know, I ain't know that they found um Freddie um shot gun or not. But I guess not.
[Defendant's mother]: No they did.
[Defendant]: Oh they found it?
[Defendant's mother]: They found it that, yeah.
[Defendant]: What they, what they say about that?
[Defendant's mother]: Nothing they ain't saying nothing.
A-4249-14T2 6
[Defendant]: Ma, ma they gonna say something about the shot gun mom.
[Defendant's mother]: They gonna say something Buda but that's not yours.
[Defendant]: I know that, I know it ain't mine so they ain't charge Freddie with it?
. . . .
[Defendant's mother]: No.
[Defendant]: So nobody got charged with the shotgun?
[Defendant's mother]: No.
In the second part of the call, defendant's mother is heard
telling defendant that officers seized two cell phones, two
pairs of jeans, a hoodie, a clip or bullet that defendant's
mother cannot specifically identify, and the "shotgun that
[defendant] found in Tan['s] house."2
In a call between defendant and an unidentified female,
defendant stated that the shotgun belongs to his "dumb ass"
cousin and that he believes his aunt is paying for his lawyer so
that he will take the charge for the gun.
2 The State acknowledges that during the homicide trial, where the recording of this call was played, defendant proposed an alternative transcription of this statement as the "shotgun that they found" instead of the "shotgun that you found."
A-4249-14T2 7
In a fourth call, defendant speaks with his aunt and
briefly references the shotgun while discussing what was seized
from the house.
We review a ruling under N.J.R.E. 403 for abuse of
discretion. State v. Rose, 206 N.J. 141, 157 (2011). A trial
court's determination will be upheld unless it is "'so wide of
the mark' as to result in a manifest injustice." State v. J.D.,
211 N.J. 344, 354 (2012) (quoting State v. Brown, 170 N.J. 138,
147 (2001)). However, deference will not be afforded if the
trial court has misapplied the law to the evidence in question.
Rose, supra, 206 N.J. at 158.
The State argues that the phone calls should not have been
excluded because they are relevant to the issue of whether
defendant had knowledge and possession of the shotgun, and they
are not unduly prejudicial.
N.J.R.E. 401 provides that evidence is relevant if it has
"a tendency in reason to prove or disprove any fact of
consequence to the determination of the action." The test for
relevancy is a broad test, and favors admissibility. State v.
Deatore, 70 N.J. 100, 116 (1976). "In determining whether
evidence is relevant, the inquiry should focus upon the logical
connection between the proffered evidence and a fact in issue."
A-4249-14T2 8
State v. Swint, 328 N.J. Super. 236, 252 (App. Div.), certif.
denied, 165 N.J. 492 (2000).
N.J.R.E. 402 provides that all relevant evidence is
admissible unless it is excludable under another evidence rule.
N.J.R.E. 403 allows for exclusion if the probative value of the
evidence is substantially outweighed by the risk of undue
prejudice. "The mere possibility that evidence could be
prejudicial does not justify its exclusion." Swint, supra, 328
N.J. Super. at 253 (citing State v. Morton, 155 N.J. 383, 453-54
(1998)). It must be determined that the risk of undue prejudice
is too high. State v. Bowens, 219 N.J. Super. 290, 297 (App.
Div. 1987).
To obtain a conviction, the State must prove that defendant
"possesse[d] or control[ed]" a weapon. N.J.S.A. 2C:39-7(b)(1).
"Possession . . . signifies 'a knowing, intentional control of a
designated thing, accompanied by a knowledge of its character.'"
State v. Pena, 301 N.J. Super 158, 162 (App. Div.) (quoting
State v. Montesano, 298 N.J. Super. 597, 612 (App. Div. 1997)),
certif. denied, 151 N.J. 465 (1997).
Possession may be actual or constructive. Model Jury Charge
(Criminal), "Possession" (2014). A person who, "with knowledge
of its character, knowingly has direct physical control over an
item at a given time is in actual possession of it." Ibid.
A-4249-14T2 9
"Constructive possession means possession in which the possessor
does not physically have the item on his or her person but is
aware that the item is present and is able to and has the
intention to exercise control over it." Ibid.
The State claims that the phone calls defendant made from
prison tend to prove that defendant had knowledge of the shotgun
located in the crawl space that connected his bedroom to his
cousin's. Further, the State contends that the shotgun's
location in the crawl space, in close proximity to and easily
accessible by defendant, indicates that he was able to exercise
dominion and control over it, and therefore he had constructive
possession.
The trial judge noted that his N.J.R.E. 403 analysis might
have been different if defendant made an unequivocal expression
of possession in the phone calls. However, because there was no
"logical link in the chain" connecting defendant's knowledge to
his alleged control over the gun, the court rejected the State's
argument that "knowledge was enough to give rise to constructive
possession under the law."
The judge determined that because the calls would need to
be put into context for the jury, necessitating an instruction
either that defendant was incarcerated or that the recording was
a legal intercept, there was a risk of prejudice that outweighed
A-4249-14T2 10
the minimal probative value of the calls, and that the prejudice
could not be purged by a limiting instruction.
N.J.R.E. 105 provides that, where necessary, a judge "shall
restrict [] evidence to its proper scope and shall instruct the
jury accordingly . . . ." The instruction "should be formulated
carefully to explain precisely the permitted and prohibited
purposes of the evidence, with sufficient reference to the
factual context of the case to enable the jury to comprehend and
appreciate the fine distinction to which it is required to
adhere." State v. Stevens, 115 N.J. 289, 304 (1989).
In Rose, supra, the Court determined that the jury was
provided with a proper limiting instruction as to testimony
about discussions between the defendant and the witness that
took place while both were in jail. 206 N.J. at 166. The jury
was instructed that it could not rely on the fact that defendant
was incarcerated as evidence that he "has a tendency to commit
crimes or that he is a bad person." Ibid. The trial judge told
the jury they "may not decide that just because [the defendant]
was in jail, he must be guilty of the present crime." Ibid.
The jury was further instructed that the evidence was being
admitted solely "to provide [them] with the location of the
discussions, to assist [them] in [their] understanding of the
context and background of them." Ibid. The Court concluded that
A-4249-14T2 11
the jury was properly instructed and that the "defendant
suffered no error." Id. at 167.
Here, defendant's references in the phone calls to the
shotgun were relevant to the question of whether defendant was
"aware that the item is present . . . ." Model Jury Charge
(Criminal), "Possession" (2014). Defendant mentions the shotgun
at least once in each of the four phone calls. To his mother,
defendant states his cousin "had a shot gun in [the house]," and
then later, "the whole time I'm like man [Aunt] Tan gonna be so
mad at me, they gonna find that shot gun and she gonna think it
was mine." In a second call with his mother, which appears to
be a continuation of the first call on the same day, the shotgun
is mentioned in a list of what was seized from defendant's
aunt's house.
Then, in a conversation with an unidentified woman,
defendant says "[t]hey found a shot a house [sic], not
mines . . . it ain't my aunt's it [sic] my dumb ass, well
cousin['s], but I know I'm getting charged with that. . . . I
think that's why my aunt [is] paying for my lawyer and shit
cause she want me to take that charge and shit." Finally, in a
conversation with his aunt, defendant is told that "they got the
shotgun[.]"
A-4249-14T2 12
The trial judge's emphasis on the inaudible portions of the
recording is misplaced, and his suggestion that they could have
been defendant's mother prompting the conversation about the
shotgun is conjecture. At no point during any of the calls does
defendant seem surprised to learn about the existence of the
shotgun. In fact, in the first call with his mother, he is the
one to first mention it. Indeed, the only expression of
surprise by the defendant was in response to his brief mistaken
understanding that the shotgun was not found.
Given the breadth of the relevancy test, and the fact that
it favors admissibility, the phone calls should have been
considered admissible under N.J.R.E. 401 because they have a
tendency to prove that defendant had knowledge of the shotgun.
Under N.J.R.E. 403, the probative value of the phone calls is
established by its relevance to the element of knowledge.
Whether the comments made during the calls actually prove
defendant had constructive possession is a question for the
jury.
In assessing the probative value of the evidence and the
risk of prejudice to defendant, the trial judge should have
given greater consideration to the possibility of instructing
the jury that the calls were recorded pursuant to a legal
intercept, and that the jury was not to draw any inferences from
A-4249-14T2 13
that fact. The risk that the jury would perceive defendant in a
certain way could have been sanitized by an appropriate
instruction, as well as by redaction of any parts of the
recording which indicate that defendant was incarcerated,
neutralizing the risk of undue prejudice. Defendant's counsel
actually proposed an instruction that would have informed the
jury the calls were "legally obtained intercepts," and would not
specifically mention that defendant was incarcerated.
Furthermore, as the trial judge acknowledged, the jury
would already be aware of defendant's prior criminal conviction;
"they have to be told that, because that's a predicate for this
offense[.]" While the judge reasoned that it would be unduly
prejudicial "to have the jury pound it into their head that he's
in jail," the fact that the jury would already be aware of
defendant's criminal history dilutes any prejudicial effect of
the phone calls.
The question of whether the phone calls, along with other
proffered evidence of the location of the shotgun in the house,
in fact prove defendant had the ability to exercise dominion and
control over the gun is for the jury to determine. But the
trial judge's ruling, based predominantly on the fact that he
was unconvinced of the State's case, was improper. His failure
to consider the availability of a limiting instruction resulted
A-4249-14T2 14
in the erroneous removal of the evidence from the jury's
province.

Outcome: we find that defendant's arguments that sanctions should be imposed against the State for filing this appeal in bad faith, and that he should be awarded counsel fees, are without sufficient merit to warrant further discussion in
our opinion. Reversed and remanded. We do not retain jurisdiction.

Plaintiff's Experts:

Defendant's Experts:

Comments: