STATE OF NEW JERSEY VS. BRANDON S. FLETCHER (17-04-0184, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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

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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

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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).
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 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

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 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

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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.

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 "[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

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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

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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

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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
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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

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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

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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

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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

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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

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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,

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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

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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

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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.

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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.

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