STATE OF NEW JERSEY v. DANTE C. GRANGER

Tried by a jury, defendant Dante C. Granger appeals from his

conviction for second-degree unlawful possession of a handgun,

N.J.S.A. 2C:39-5(b). The jury acquitted defendant of third-degree

resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). The trial court

sentenced defendant to a seven-year term of imprisonment with

forty-two months of parole ineligibility, pursuant to the Graves

Act, N.J.S.A. 2C:43-6(c).

This appeal followed, with defendant asserting the following

arguments warrant reversal:

POINT I



THE PROSECUTOR ENGAGED IN MISCONDUCT REQUIRING REVERSAL OF GRANGER'S CONVICTION WHEN, IN SUMMATION, HE REPEATEDLY STATED THAT THE POLICE DID NOT HAVE A MOTIVE TO LIE, ENCOURAGED THE JURY TO CONDUCT INDEPENDENT RESEARCH ON GRANGER'S ABILITY TO HIDE THE GUN UNDER HIS FOOT, ARGUED PREJUDICIAL FACTS OUTSIDE THE RECORD CONCERNING THE OFFICERS' ABILITY TO PLANT THE GUN, AND CHARACTERIZED THE DEFENSE AS AN UNREASONABLE STORY. (NOT RAISED BELOW)



A. The Prosecutor Engaged in Misconduct Requiring Reversal when He Repeatedly Told the Jury that the Police Had No Motive to Lie.



B. The Prosecutor Improperly Encouraged the Jury to Test Granger's Testimony by Conducting Independent Research Regarding Their Ability to Hide the Gun with Their Feet.



C. The Prosecutor Argued Facts Outside the Record and Inaccurately Suggested







3 A-2370-15T1





that the Gun Was Previously Involved in a Crime when He Told the Jury that the Police Would Have Had to Remove the Gun from Evidence to Plant It in the Durango.



D. The Prosecutor Unfairly Disparaged the Defense and Granger's Credibility when He Repeatedly Referred to the Defense Theory as an Unreasonable Story.



E. The Prosecutor's Improper Statements Require Reversal of Granger's Conviction Because They Deprived Granger of a Fair Trial and Were Clearly Capable of Influencing the Jury's Verdict, Particularly on the Issue of Credibility.



POINT II



GRANGER'S CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT APPLIED THE WRONG STANDARD AND ABUSED ITS DISCRETION IN ALLOWING THE STATE TO IMPEACH GRANGER WITH A NEARLY TEN-YEAR-OLD PRIOR CONVICTION THAT WAS NOT RELATED TO CREDIBILITY AND WAS NOT FOLLOWED BY ANY OTHER CONVICTIONS.



POINT III



THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED THE STATE TO ELICIT TESTIMONY THAT THE GUN WAS LOADED AND TO INTRODUCE BULLETS INTO EVIDENCE WHEN THEY WERE IRRELEVANT TO THE CASE AND HIGHLY PREJUDICIAL TO GRANGER. (NOT RAISED BELOW)



POINT IV



IF THE CONVICTION IS NOT REVERSED, THE MATTER MUST BE REMANDED FOR RESENTENCING BECAUSE THE COURT'S SENTENCING FACTORS WERE INCONSISTENT, UNEXPLAINED, AND UNSUPPORTED BY THE RECORD, AND THE SENTENCE WAS BASED ON THE INCORRECT BELIEF THAT A FORTY-TWO-MONTH PERIOD OF PAROLE INELIGIBILITY WAS REQUIRED.







4 A-2370-15T1







A. The Sentencing Court Did Not Explain How It Found Two Aggravating Factors that Were Inconsistent with the Mitigating Factor and Were Unsupported by the Record.



B. The Sentencing Court Applied Incorrect Legal Principles and Failed to Exercise Discretion when It Based the Sentence on the Mistaken Belief that a Mandatory Term of Forty-Two Months of Parole Ineligibility Applied.



We have considered these arguments in light of the record and

applicable legal standards. Because the prosecutor's summation

included improper arguments capable of producing an unjust result,

we reverse the convictions and remand for a new trial.

We begin by summarizing the most pertinent testimony and

evidence from the trial record. On January 5, 2013, police

discovered a handgun in defendant's vehicle after a motor vehicle

stop. The police contend they stopped defendant's vehicle because

it was traveling at a "high rate of speed." As one of the officers

approached defendant's vehicle, he saw defendant "nervously

looking through his rear-view mirror and bend over doing something

. . . ." The detective ordered defendant to stop moving and show

his hands, and defendant complied. At this time, another officer

viewed the interior of the car with his flashlight and saw

defendant's "left foot on top of an item." Further observation







5 A-2370-15T1





revealed "a silver trigger guard . . . underneath [defendant's]

left foot."

Upon making this observation, the officer shouted the police

code for a "man with a weapon," and another officer ordered

defendant to exit the vehicle. When defendant did not immediately

comply, they pulled him from the car and a wrestling match ensued.

In addition to the officers who made the stop and arrest, the

State presented expert testimony from an identification officer

and a ballistics expert. The identification expert testified he

did not recover any fingerprints on the gun, but stated it is

common not to find any fingerprints. The ballistics expert

identified the gun as a semiautomatic pistol, operable and capable

of firing live ammunition; however, testing revealed no connection

to any prior reported shootings. The parties further stipulated

defendant lacked a permit to carry or purchase a firearm.

Defendant testified to his version of the events, stating he

did not see the officer use his flashlight from his passenger

side. Instead, he heard the detective scream a police code, and

"the next thing [defendant knew his] door was open and the

detectives [were] grabbing [him] trying to snatch [him] out of the

truck . . . ." Defendant denied having the gun on the date of his

arrest, and claimed the police did not show him the gun during his

arrest; instead, he first learned of their discovery of a gun







6 A-2370-15T1





after they secured him in the patrol car. Defendant claimed he

did not know the gun was in his vehicle, and he would not have

driven the vehicle had he known the gun was inside.

I

We first address defendant's argument that the prosecutor

made improper statements during summation. "[P]rosecutorial

misconduct can be a ground for reversal where the prosecutor's

misconduct was so egregious that it deprived the defendant of a

fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citing State

v. Ramseur, 106 N.J. 123, 322 (1987)). "The prosecution in its

summation may suggest legitimate inferences to be drawn from the

record, but it commits misconduct when it goes beyond the facts

before the jury." State v. Harris, 156 N.J. 122, 194 (1998)

(citing State v. Roach, 146 N.J. 208, 219 (1996)). To warrant

reversal of a conviction, "the prosecutor's 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. Timmendequas, 161

N.J. 515, 575 (1999) (quoting Roach, 146 N.J. at 219).

Where defense counsel fails to object to the challenged

comments during summation, it "suggests that defense counsel did

not believe the remarks were prejudicial at the time they were

made." Frost, 158 N.J. at 84 (citing State v. Bauman, 298 N.J.







7 A-2370-15T1





Super. 176, 207 (App. Div. 1997)). "The failure to object also

deprives the court of an opportunity to take curative action."

Ibid. Under those circumstances, the comments should be deemed

harmless, unless the comments were "sufficient to raise a

reasonable doubt as to whether the error led the jury to a result

it otherwise might not have reached." State v. Bakka, 176 N.J.

533, 548 (2003) (quoting State v. Bankston, 63 N.J. 263, 273

(1973)).

Here, defendant contends the prosecutor made repeated

inappropriate remarks during summation, depriving him of a fair

trial. We agree. Defendant groups the alleged improper remarks

into four categories: 1) stating the police had no motive to lie;

2) encouraging the jurors to conduct independent research to test

defendant's testimony; 3) stating facts outside of the record; and

4) unfairly disparaging the credibility of the defense.

It is well recognized that prosecutors must not tell a jury

"police had no motive to lie." Frost, 158 N.J. at 85 (citing

State v. Goode, 278 N.J. Super. 85, 90 (App. Div. 1994)). Nor can

prosecutors suggest "police witnesses are believable because of

their status as policemen . . . ." State v. Staples, 263 N.J.

Super. 602, 606 (App. Div. 1993). Here, the prosecutor repeatedly

stated the police had no motive to lie, thereby acting improperly.







8 A-2370-15T1





Also, juries should not be permitted to conduct independent

research on the law or the facts of the case. See State v. Morgan,

217 N.J. 1, 14 (2013). Here, the prosecutor encouraged the jurors

to conduct their own test regarding covering up the gun with one

of their feet, which was also improper.

In addition, "prosecutors should not make inaccurate legal

or factual assertions during a trial . . . ." State v. Smith, 167

N.J. 158, 178 (2001) (citing Frost, 158 N.J. at 86). Rather,

"they must confine their comments to evidence revealed during

trial and reasonable inferences to be drawn from that evidence."

Ibid. Here, the prosecutor suggested the police would have had

to remove the gun from the evidence room in order to plant it in

defendant's car. That was an improper comment because the record

does not support that inference.

The combination of these multiple improper comments by the

prosecutor were clearly capable of unjustly influencing the jury.

This case depends mainly on the credibility of the police versus

the credibility of defendant, amplifying the impact of these

improper comments. Therefore, we reverse defendant's conviction

and remand for a new trial.

We note, however, that we discern nothing improper in the

prosecutor referring to defendant's "story" as "unreasonable." Of

course, prosecutors may not characterize the defense as







9 A-2370-15T1





"outrageous, remarkable, absolutely preposterous and absolutely

outrageous." State v. Atwater, 400 N.J. Super. 319, 335 (App.

Div. 2008) (quoting State v. Acker, 265 N.J. Super. 351, 356 (App.

Div. 1993)). However, here the use of the words "story" and

"unreasonable" did not constitute improper conduct.

II

We next address defendant's argument that the trial judge

improperly admitted evidence of defendant's prior conviction.

N.J.R.E. 609 governs impeachment by prior conviction. N.J.R.E.

609(a)(1) states: "For the purpose of affecting the credibility

of any witness, the witness's conviction of a crime, subject to

[N.J.R.E. 403], must be admitted unless excluded by the judge

pursuant to Section (b) of this rule." Where the prior conviction

is less than ten years old and the criminal defendant chooses to

testify, if the prior conviction is similar to the offense charged,

"the State may only introduce evidence of the defendant's prior

convictions limited to the degree of the crimes, the dates of the

convictions, and the sentences imposed, excluding any evidence of

the specific crimes of which defendant was convicted . . . ."

N.J.R.E. 609(a)(2). With limited exception, N.J.R.E. 609(b)

presumptively excludes evidence of a prior conviction, if the

conviction or defendant's release from confinement was more than

ten years before the trial date.







10 A-2370-15T1





"[T]he decision of whether a prior conviction may be admitted

to impeach a witness 'rests within the sound discretion of the

trial judge . . . .'" State v. Harris, 209 N.J. 431, 442 (2012)

(quoting State v. Whitehead, 104 N.J. 353, 358 (1986)).1

"[O]rdinarily evidence of prior convictions should be admitted and

the burden of proof to justify exclusion rests on the defendant."

Ibid. Our Supreme Court has consistently held "that prior

conviction evidence has probative value for impeachment purposes

. . . ." State v. T.J.M., 220 N.J. 220, 235 (2015).

Here, defendant's prior conviction, although close, did not

exceed the ten-year threshold at the time of trial. Moreover,

because the crime was similar to the offense charged, the trial

judge properly sanitized the information pursuant to N.J.R.E.

609(a)(2), so the jury only learned the date and degree of the

offense. This sanitized conviction is clearly admissible for

impeachment purposes. Therefore, we find the trial judge did not

abuse his discretion by admitting the date and degree of

defendant's prior conviction for impeachment purposes.





1 In 2014, in the wake of Harris, the Court amended N.J.R.E. 609 to favor the admissibility of prior convictions that are less than ten years old and create a presumption against admissibility of prior convictions that are more than ten years old.







11 A-2370-15T1





III

We next address defendant's argument that the trial judge

improperly permitted the State to introduce evidence and elicit

testimony regarding whether the gun recovered from defendant's car

was loaded. Defendant did not object to this evidence, but he now

argues it was irrelevant and prejudicial. We agree and find it

was improper for the trial court to admit evidence that the gun

was loaded.

Our review of a trial court's evidentiary ruling "is limited

to examining the decision for abuse of discretion." State v.

Kuropchak, 221 N.J. 368, 385 (2015) (quoting Hisenaj v. Kuehner,

194 N.J. 6, 12 (2008)). Where the defendant fails to object to

the admission of evidence at trial, we review the admission for

plain error. R. 2:10-2. Under this standard, we disregard the

error "unless it is of such a nature as to have been clearly

capable of producing an unjust result . . . ." Ibid. "The

possibility of an unjust result must be 'sufficient to raise a

reasonable doubt as to whether the error led the jury to a result

it otherwise might not have reached.'" State v. Williams, 168

N.J. 323, 336 (2001) (quoting State v. Macon, 57 N.J. 325, 336

(1971)).

We recently decided State v. Green, 447 N.J. Super. 317 (App.

Div. 2016), where we held evidence of bullet possession was







12 A-2370-15T1





improper regarding a drug offense. In Green, the defendant was

tried for marijuana offenses; he was also charged with possession

of bullets, but that charge was dismissed. Id. at 322 n.3. At

trial, a police officer briefly mentioned he found bullets in one

of the defendant's rooms. Ibid. Reversing on other grounds, we

noted in a footnote, "Although improperly elicited by the

prosecutor, this testimony was not sufficiently prejudicial by

itself to warrant a new trial, but should be avoided in any

retrial." Ibid.

Here, several State witnesses testified that the gun was

loaded, and the bullets themselves were admitted into evidence.

Testimony about the bullets may have supported the credibility of

the police; however, the fact that the gun was loaded had no

bearing on whether defendant was guilty of the gun possession

charge. While the evidence may not have risen to the level of

"clearly capable of producing an unjust result," it was

significantly prejudicial. R. 2:10-2. Therefore, on retrial, the

trial court should not allow evidence regarding whether the gun

was loaded.

IV

Finally, defendant argues the sentencing judge did not

sufficiently explain the facts supporting the aggravating and

mitigating factors and incorrectly applied a mandatory term of







13 A-2370-15T1





forty-two months of parole ineligibility. For completeness, we

address those issues, although we are reversing the conviction.

The State concedes the sentencing explanation was insufficient and

the trial court applied the incorrect version of the Graves Act.

We agree.

Our Supreme Court has emphasized, "[i]n fixing a sentence

within the statutory range, a judge must determine whether specific

aggravating or mitigating factors are grounded in credible

evidence in the record and then weigh those factors." State v.

Case, 220 N.J. 49, 54 (2014). The trial court must also explain

how it conducted the weighing process. Id. at 65. The Court has

also emphasized that "mitigating factors 'supported by credible

evidence' are required to 'be part of the deliberative process.'"

Case, 220 N.J. at 64 (quoting State v. Dalziel, 182 N.J. 494, 505

(2005)).

More specifically, the Court has held aggravating factors

three and nine "involve determinations that go beyond the simple

finding of a criminal history and include an evaluation and

judgment about the individual in light of his or her history."

State v. Thomas, 188 N.J. 137, 153 (2006). In addition, courts

have held mitigating factors eight, nine, and ten "essentially

negate" aggravating factor nine, State v. Briggs, 349 N.J. Super.

496, 505 (App. Div. 2002), and aggravating factor three and







14 A-2370-15T1





mitigating factor nine "overlap," State v. Baylass, 114 N.J. 169,

177 (1989). Also, although courts may find contradictory

aggravating and mitigating factors, the findings must be "grounded

in competent, credible evidence in the record." See Case, 220

N.J. at 67.

Here, the trial judge found aggravating factors three (risk

of reoffending) and nine (need for deterrence). The judge also

found mitigating factor nine (character and attitude of defendant

indicate he is unlikely to reoffend). At sentencing, the judge

briefly reviewed defendant's biographical history and noted he had

seven prior arrests and one prior indictable conviction. He then

simply stated, "I have considered and find the following factors:

aggravating factors three and nine . . . ." He found mitigating

factor nine and concluded the aggravating factors prevailed.

The trial judge failed to explain his basis for finding

aggravating factors three and nine, or mitigating factor nine,

beyond looking at defendant's criminal history. Furthermore,

while it is possible to find contradictory factors, the trial

judge failed to explain how he came to the conclusion that both

aggravating factor three and mitigating factor nine applied.

In addition, the trial judge applied the incorrect version

of the Graves Act. Under the current version of the Graves Act,

N.J.S.A. 2C:43-6(c), the minimum term of imprisonment for a person







15 A-2370-15T1





convicted of unlawful handgun possession "shall be fixed at one

half of the sentence imposed by the court or [forty-two] months,

whichever is greater . . . during which the defendant shall be

ineligible for parole." However, this version of the statute did

not become effective until August 8, 2013. L. 2013, c. 113, � 2.

At the time of defendant's January 2013 arrest, the Act set the

minimum term of imprisonment "at, or between, one-third and one

half of the sentence imposed by the court or three years, whichever

is greater." L. 2007, c. 341, � 5.

The sentencing record shows the judge erroneously applied the later version. Should defendant be found guilty on retrial, the court should apply the version of the Graves Act in effect at the time of defendant's arrest in

January 2013.



Reversed and remanded for retrial. We do not retain jurisdiction.