SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6687-96T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSE ALVAREZ,
Defendant-Appellant.
_________________________________________________________________
Submitted October 27, l998 - Decided February
5, 1999
Before Judges Long, Kestin and Carchman.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County.
Ivelisse Torres, Public Defender, attorney for
appellant (Stephen W. Kirsch, Assistant Deputy
Public Defender, of counsel and on the brief).
E. David Millard, Ocean County Prosecutor,
attorney for respondent (Andrew M. Megill,
Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
LONG, P.J.A.D.
On February 11, 1997, an Ocean County Grand Jury returned
Indictment No. 97-02-143 charging that, on April 6, 1996, defendant
Jose Alvarez committed the following indictable offenses: second-degree possession of a weapon (a firearm) for an unlawful purpose,
contrary to N.J.S.A. 2C:39-4a (Count One); fourth-degree possession
of a prohibited weapon (a dagger), contrary to N.J.S.A. 2C:39-3e
(Count Two); fourth-degree possession of a weapon (a dagger) by a
convicted person, contrary to N.J.S.A. 2C:39-7a (Count Three);
second-degree possession of a weapon (a firearm) by a convicted
person, contrary to N.J.S.A. 2C:39-7b (Count Four). Defendant was
tried in a bifurcated proceeding pursuant to State v. Ragland, l05
N.J. l89 (l986), to avoid the prejudice which could occur when a
single jury is called to try a case with several related indictable
offenses that have overlapping possessory elements.
Prior to the phase one trial on Counts One and Two, the
defendant moved, in limine, to preclude reference to a Parole Board
arrest warrant, the execution of which resulted in his arrest.
Defendant urged the prosecutor to tell the jurors that the police
were at his house to "serve legal papers." The prosecutor claimed
this was misleading and confusing, and was willing to delete only
the fact that the warrant "was issued by the Parole Board to avoid
any reference to prior convictions." He insisted upon reference
to an "arrest warrant" in order to justify the police presence at
defendant's residence.
The trial judge held:
I have considered the matter . . . . The applicable rule
is Rule 403 and the Court will handle it as follows: (1)
The State will not be permitted to refer to a parole
warrant. Any references to parole or the fact that Mr.
Alvarez may have a prior record or be on probation or
parole of any type will be avoided by the State in its
case. And the purpose is that the jury need not know
about the prior record of Mr. Alvarez and, in fact, the
prejudicial value of that clearly would outweigh its
probative value.
I will permit the State to refer to the fact that
the police were there pursuant to an arrest warrant and
reference will be limited to that alone . . . . It is
merely being introduced to explain their presence at the
scene and for that purpose alone.See footnote 1
In brief, the testimony at the phase one trial was as follows:
On April 6, l996, members of the Lakewood Police Department went to
l0l Coleman Avenue, Lakewood, to serve an arrest warrant on
defendant. Detective John Marshall knocked on the front door and
identified himself as a policeman. When the door was opened and
Detective Marshall saw defendant running up the stairs, he ordered
him to stop. Defendant was placed under arrest, handcuffed and was
read the Miranda warnings.See footnote 2 He was then turned over to Patrolman
Pugliese who transported defendant to police headquarters and
initiated the booking process.
The police secured the second floor of the premises for a
period of two to three hours, during which period they obtained a
search warrant for the house, which was executed that evening. In
a search, confined to defendant's bedroom, the police found a
loaded gun; a picture of defendant's fiancee; a box containing
ammunition, in the pocket of defendant's denim jacket; another box
of ammunition, in a dresser; a shoulder holster with instructions;
a dagger; a long double edged knife; and various mail addressed to
defendant.
The State called Guy Barney, the owner of l0l Coleman Avenue,
who lived there with defendant and Nigel Samaroo, in order to
establish that the room in which the weapons were found was
exclusively in defendant's control. Barney stated that although
many people were in and out of the house regularly, basically no
one else would go into defendant's room unless he was present.
Barney also testified that the clothing in the room belonged to
defendant. Barney acknowledged that Samaroo used to joke about
having a gun but stated that he did not take him seriously. Barney
also denied owning a gun or planting a gun in defendant's room.
Two statements by defendant were also admitted on the State's
case. According to Patrolman Pugliese, while being booked at
police headquarters, defendant told him that he had been
"surprised" by the sudden arrival of the police and, if given the
chance, would have gone for a weapon so that the police would
"shoot him rather than take him to jail." At the Ocean County Jail
following his arrest, according to Corrections Officer Kenneth
Marshall, Director of the Recreation Department and the brother of
Lakewood Detective John Marshall, defendant said, "if I had gotten
to my gun, I would have taken your brother out."
The defense theory, as developed in the testimony of various
witnesses, was that the premises in which defendant lived was a
house for transients; that the room where the police recovered the
guns and knives was not defendant's own bedroom, per se; that
numerous people had access to the room; that there was no
scientific evidence linking the guns and knives to defendant; and
that defendant's roommates were angry with him so they made an
"anonymous" call to the police and planted the gun in defendant's
room to get him arrested and out of the house.
At the end of this testimony, defendant was acquitted on Count
One (possession of firearm for an unlawful purpose) and convicted
on Count Two (possession of a dagger). Because no special verdict
form was used, it is impossible to tell whether the State failed to
prove possession or unlawful purpose on Count One.
Prior to the beginning of the phase two trial (Counts Three
and Four for possession of weapons by a convicted felon), defense
counsel made four requests of the trial judge. First, he asked for
an instruction making it clear that, pursuant to N.J.R.E. 404(b)
(formerly Evid. R. 55), the prior convictions are not to be used by
the jury to show that defendant is a bad person or otherwise
predisposed toward crime. Next, he asked to stipulate that
defendant had the requisite convictions under N.J.S.A. 2C:39-7b and
was not contesting that element, but, rather, was merely
challenging the "possession" element of the crimes. The purpose of
this request was to keep the details of defendant's prior
convictions from the jury. Alternatively, he asked the judge to
exclude any reference in the jury charge or otherwise to the armed
nature of the defendant's prior robbery conviction, because an
unarmed robbery is also a qualifying conviction under N.J.S.A.
2C:39-7. Finally, he requested that the jury not be told to
disregard its prior verdicts in the case and, thus, also not be
told to "deliberate anew." The judge denied all four applications
and ruled that to prove defendant's status, three Judgments of
Conviction (armed robbery, escape, distribution of CDS) would be
admitted. Thereafter, Detective Marshall and Patrolman Pugliese
were called to testify. Their testimony essentially replicated
that which was elicited in the phase one trial. The Judgments of
Conviction were admitted. Defendant was found guilty on both
counts.
After merging the conviction on Count Two with the conviction
on Count Three, the trial judge sentenced defendant as follows: on
Count Four, to an extended custodial term of 16 years, eight
without parole; and on Count Three, to a concurrent custodial term
of 18 months, nine without parole. Defendant was also ordered to
pay a $150 Violent Crimes Compensation Board penalty, and a $150
Safe Neighborhood Services Fund penalty.
Defendant appeals, contending that the following errors
warrant reversal:
POINT I:
THE JURY INSTRUCTIONS ON THE SECOND-DEGREE
CRIME OF POSSESSION OF A WEAPON BY A CONVICTED
PERSON, N.J.S.A. 2C:39-7b, WERE PLAGUED BY
NUMEROUS ERRORS, ALL BROUGHT TO THE ATTENTION
OF THE TRIAL JUDGE, BUT IGNORED BY HIM.
A. N.J.S.A. 2C:39-7 Should Not Be
Charged To A Jury Without A Standard
Instruction That The Evidence Of The
Defendant's Prior Convictions Is Admitted
Solely As It Bears On An Element Of The
Offense And Not To Show The Defendant's
Predisposition To Criminal Conduct.
B. Defense Counsel's Offer To Stipulate
To The Existence Of The Prior Convictions
And Then Sanitize Them Should Have Been
Accepted.
C. Defendant's Request To Have The Word
"Armed" Deleted From The Defendant's
Prior Robbery Conviction Should Have Been
Granted.
D. Defendant's Request, Pursuant To
State v. Ragland, To Forego The "Ignore
Your Prior Verdict And Deliberate Anew"
Language Of A Ragland Jury Instruction
Should Have Been Granted.
POINT II:
THE STATE IMPROPERLY REFERRED TO THE EXISTENCE
OF A SEARCH WARRANT PURSUANT TO STATE v.
MILTON. (Not Raised Below).
POINT III:
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
We have carefully reviewed this record in light of these
contentions and have concluded that a series of errors, alone and
in combination, infected these proceedings and denied defendant a
fair trial. We thus reverse and remand for a new trial. This
ruling makes it unnecessary to address the sentencing issue raised
in Point III of defendant's brief.
We begin our analysis with defendant's arguments addressed to the phase one trial. He contends that the reference to a search warrant in the police testimony violated State v. Milton, 255 N.J. Super. 514 (l992). We note that this issue was not raised below and thus must be evaluated under the standard of R. 2:l0-2, i.e., was it clearly capable of producing an unjust result. We think it was.
Two warrants were paraded before the jury in this case: a Parole Board arrest warrant and a search warrant for l0l Coleman Avenue. The judge agreed to eliminate references to the Parole Board because it would reveal that defendant had served jail time for a crime. He ruled however that the arrest warrant could be cited as the basis for the police presence at l0l Coleman Avenue.
As a result, the following statements were elicited by the State at trial:
Q. [to Detective Marshall] And what were you dispatched to 101 Coleman Avenue to do?
A. Serve an arrest warrant on Jose Alvarez.
. . . .
Q. [to Officer Pugliese] What was the purpose of your being dispatched there?
A. To assist in a warrant arrest.
. . . .
Q. [to Detective Mooney] What was the purpose of being dispatched to that address?
. . . .
Q. Who was that to be served upon?
A. Jose Alvarez.
Additionally, the following exchanges took place:
Q. [to Detective Marshall] Did there come a time a
little bit later in the evening when a search warrant was
obtained for the premises at 101 Coleman Avenue?
A. Yes.
. . . .
Q. Detective, this search conducted by yourself or the other detectives all took place in that one particular bedroom [belonging to defendant]?
A. That's correct.
This colloquy occurred between the prosecutor and Detective Dennis:
Q. Did you take any action to secure the premises:
A. Yes, I did.
Q. What was that?
A. Patrolman Hornak of Lakewood was called and was
placed outside of Mr. Alvarez' room.
Q. How did you know it was Mr. Alvarez' room?
A. Mr. Barney advised us that it was Mr. Alvarez' room.
Q. What was Patrolman Hornak's assignment?
A. Not to let anyone in or out of the room.
Q. Did there come a time when you left to go apply for
the search warrant?
A. Yes, there was.
Q. You left Patrolman Hornak there?
A. Yes, I did.
Q. How long were you gone?
A. Approximately two and a half, maybe three hours,
somewhere in that area.
Q. And when you returned, was Patrolman Hornak still at
his post.
A. Yes, he was.
Q. After you got back, who went into Mr. Alvarez'
bedroom?
A. Myself, Detective Marshall, Detective Mooney and also
Patrolman Hornak.
Q. What did you do?
A. We searched the room.
Further, the prosecutor had the following exchange with Officer
Hornack:
Q. What was taking place at l0l Coleman Avenue?
A. They had finished up with an arrest and they went to
get a search warrant, so I was supposed to sit at the
base of the steps and watch the room so that no one went
upstairs.
Q. They had finished the search. Who are you referring
to?
A. Lakewood detectives.
Q. Would that be Detectives Dennis, Mooney and Marshall?
A. Yes.
Q. When you arrived at l0l Coleman Avenue, were the
detectives still present at the location?
A. They were getting ready to leave.
Q. Did they give you a duty assignment?
A. Yes, they did.
Q. And that was what?
A. To watch the room so no one went upstairs.
Finally, on recall, Detective Dennis was asked the following:
Q. You conducted your search pursuant to a search
warrant. Is that correct?
A. That's correct.
. . . .
Q. And then if the judge issues a search warrant, what comes
out in the search warrant in terms of your-- what you are
authorized to search for?
As can be seen from these exchanges in addition to the three
references to an arrest warrant for defendant, six references to a
search warrant (described as being issued by a judge) came directly
out of the mouth of the prosecutor.
In Milton, we reversed a conviction due to an improper
reference to a search warrant for defendant's person:
The natural inference from the mention of the warrant
itself, confirmed by the cautionary instruction of the
trial judge, was that sufficient independent proof had
been presented to a neutral judge to believe that
defendant would be found in possession of drugs.
[Milton, supra, 255 N.J. Super. at 520.]
In so doing, we held that "[d]efendant was by the State's action
denied his right to a fair trial, and, if for no other reason, his
conviction would have to be reversed." Id. at 521. In Milton, we
distinguished between a search warrant for the person and one for
the premises, the latter not suffering the prejudicial impact of
the former. The State argues here that it abided by the letter of
Milton because it referred to a search warrant for l0l Coleman
Avenue, not for defendant's room. Not so. As the jury heard again
and again, while the search warrant was technically for the entire
premises, defendant's room was the sole focus of police interest;
it was the only room secured and the only room searched. As if
those references were not damaging enough, the prosecutor managed
to insert into his questions the fact that a judge issued the
search warrant, thus suggesting that a judicial officer with
knowledge of the law and the facts believed that evidence of
criminality would be found in defendant's room.
Further, the repetitive references to the arrest warrant for
defendant suffer the exact infirmities we condemned in Milton. The
only difference between this case and Milton is that the
prejudicial references here were more numerous and more injurious
than those we interdicted in that case.
We see no reason why either of these warrants needed to be
injected into this case. This is not a case like State v. Battle,
256 N.J. Super. 268 (App. Div.), certif. denied, l
30 N.J. 6 (l992),
in which the credibility of the officers' account was in issue thus
warranting revelation of the information. The trial judge could
have acceded to defendant's request that the police testify that
they were at l0l Coleman Avenue to "serve legal papers." He also
could have advised the jurors that the police were lawfully at the
premises or that they should not be concerned as to why the police
were there. Any one of these alternatives would have laid the
issue of police presence to rest without referring to an arrest
warrant. Likewise, after defendant was arrested, all that needed
to be said was that his room was searched. There was absolutely no
need to refer to a search warrant at all. In short, the references
to the arrest warrant (which were challenged below) and to the
search warrant (which were not raised below) violated Milton and
were clearly capable of producing an unjust result. R. 2:l0-2. As
a consequence, defendant did not receive a fair trial.
We turn next to the errors defendant contends occurred during the phase two trial. He first argues that the failure of the trial judge to give a limiting instruction on the use of his prior convictions was error.
It is "undeniable that the use of prior conviction evidence is fraught with a high risk of prejudice." State v. Brunson, l 32 N.J. 377, 385 (l993). Thus, whether the State seeks to use "other crimes" evidence for a purpose allowed under N.J.R.E. 404(b) (e.g. motive, intent, identity), or to impeach a testifying defendant, great care must be taken to instruct the jury that it is impermissible to use the prior convictions to demonstrate a predisposition to commit an offense. Brunson, supra, l32 N.J. at 390-91; State v. Cofield, l 27 N.J. 328, 34l-42 (l992); State v. Stevens, ll 5 N.J. 289, 309 (l989); State v. Sands, 76 N.J. l27, l42 n.3 (l978).
The defense here made a specific request of the trial judge to tailor his instructions to ameliorate the prejudice which could accrue from the necessary admission of evidence of defendant's prior record at the trial of the status offense:
[Defense Counsel]: I didn't review the charge with regard to possession of a weapon by a convicted felon, but if there is language in there that indicates they're not to use that to judge the defendant's character or whether he's a good or bad person, simply the fact that there were convictions, if that language is not in there, I would ask the Court to include something similar.
THE COURT: Specifically, what would you be asking the jury be advised?
[Defense Counsel]: Well, the fact that there is a conviction should not sway them one way or the other with regard to any other elements they're to consider for the same reason that we segregate this charge from the first part. We don't want the jury to think that he's a bad person because of convictions and therefore, perhaps taint other portions of the deliberations.
The trial judge responded:
THE COURT: I'm reluctant to begin making any references
to the defendant or his character. The fact that there
is a Judgment of Conviction is simply an element the
State must prove and the jury will be so instructed.
The charge given was as follows:
And thirdly, the State must prove, beyond a reasonable
doubt, that Mr. Alvarez is a person who has been
previously convicted of the crimes of armed robbery,
escape and distribution of CDS. And there are Judgments
of Conviction which have been admitted into evidence
which are submitted for your consideration as to that
third element.
For some reason, the trial judge here apparently believed that the
introduction of prior crimes evidence as an "element" of an offense
eliminated the need for a limiting instruction. We disagree.
Merely because it is allowable to introduce prior crimes evidence
to establish an element of N.J.S.A. 2C:39-7, does not mean that
this evidence could not be misused by the jury. Thus, just as
other permissible uses of prior crimes evidence requires careful
limiting instructions, so are such instructions required in a case
such as this.
This conclusion is not just theoretically sound. Here, the
issue of possession was at the heart of defendant's case before the
jury. He claimed that his housemates planted the weapon and set
him up. Without a limiting instruction, the jury might well have
concluded that defendant's defense was untrue solely because of his
prior drug distribution, escape and armed robbery convictions.
This is not to suggest that defendant's defense was true or that,
with a limiting instruction the jury would have accepted it. We
suggest only that without such an instruction, we cannot be sure
that the jury did not misuse the evidence. In sum, because the
jury was not instructed that the defendant's prior convictions had
no place in its deliberations on the issue of whether defendant
possessed the weapons in the first place, defendant did not receive
a fair trial.
We turn next to defendant's claims regarding the level of information conveyed to the jury about his prior record. N.J.S.A. 2C:39-7 provides in relevant part:
a. Except as provided in subsection b. of this section, any person, having been convicted in this State or elsewhere of the crime of aggravated assault, arson, burglary, escape, extortion, homicide, kidnapping, robbery, aggravated sexual assault, sexual assault or endangering the welfare of a child pursuant to N.J.S. 2C:24-4, whether or not armed with or having in his possession any weapon enumerated in subsection r. of N.J.S. 2C:39-l, or any person convicted of a crime pursuant to the provisions of N.J.S. 2C:39-3, N.J.S. 2C:39-4 or N.J.S. 2C:39-9, or any person who has ever been committed for a mental disorder to any hospital, mental institution or sanitarium unless he possesses a certificate of a medical doctor or psychiatrist licensed to practice in New Jersey or other satisfactory proof that he is no longer suffering from a mental disorder which interferes with or handicaps him in the handling of a firearm, or any person who has been convicted of other than a disorderly persons or petty disorderly persons offense for the unlawful use, possession or sale of a controlled dangerous substance as defined in N.J.S. 2C:35-2 who purchases, owns, possesses or controls any of the said weapons is guilty of a crime of the fourth degree.
b. A person having been convicted in this State or
elsewhere of the crime of aggravated assault, arson,
burglary, escape, extortion, homicide, kidnapping,
robbery, aggravated sexual assault or endangering the
welfare of a child pursuant to N.J.S. 2C:24-4, whether or
not armed with or having in his possession any weapon
enumerated in sub r. of N.J.S. 2C:39-l, or a person
having been convicted of a crime pursuant to the
provisions of N.J.S. 2C:35-3 through N.J.S. 2C:35-6,
inclusive; section 1 of P.L.l987, c. l0l (C.2C:35-7);
N.J.S. 2C:35-ll; N.J.S. 2C:39-3; N.J.S. 2C:39-4; or
N.J.S. 2C:39-9 who purchases, owns, possesses or controls
a firearm is guilty of a crime of the second degree.
Defendant was charged under N.J.S.A. 2C:39-7(a) with possession of
a dagger, a fourth degree offense and under N.J.S.A. 2C:39-7(b)
with possession of a firearm, a second degree offense. He
contends that the trial judge should have allowed him to stipulate
that his prior convictions met the status element of N.J.S.A.
2C:39-7 instead of naming the crimes for which he was convicted
(armed robbery, escape and distribution of CDS) to the jury. He
argues that the recent decision of the United States Supreme Court
in Old Chief v. U.S.,
519 U.S. 172, ll
7 S.Ct. 644,
136 L. Ed. 574
(l997)See footnote 3 is controlling.
In that case, Johnny Old Chief was involved in a fracas where
at least one shot was fired. He was charged, among other things,
with violation of
18 U.S.C. §922(g)(1) which provides that it is
unlawful for one "who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year" to
"possess [] any firearm." Id. at ___, 117 S.Ct. at 647,
136 L.Ed 2d at ___. Old Chief had previously been convicted of assault
causing serious bodily injury. He offered to admit that he was
"convicted of a crime punishable by imprisonment exceeding one (1)
year." This offer was rejected, and the "order of judgment and
commitment for Old Chief's prior conviction" was admitted before
the jury which convicted him. Id. at ___, 117 S.Ct. at 648,
136 L.Ed 2d at ___. The Court of Appeals affirmed Old Chief's
conviction, ruling that the admission of the name of his prior
crime was not an abuse of discretion. Old Chief was granted
certiorari. The United States Supreme Court held that the trial
judge abused his discretion, as a matter of law, when he turned
down Old Chief's offer to stipulate to the existence of prior
convictions in exchange for their sanitization. "The most the jury
needs to know is that the conviction admitted by the defendant
falls within the class of crimes that Congress thought should bar
a convict from possessing a gun, and this point may be readily made
in a defendant's admission and underscored in the court's jury
instructions." Id. at ___, 117 S.Ct. at 655,
136 L.Ed 2d at ___.
Given these peculiarities of the element of felony-convict status and of admissions and the like when used
to prove it, there is no cognizable difference between
the evidentiary significance of an admission and of the
legitimately probative component of the official record
the prosecution would prefer to place in evidence. For
purposes of the Rule 403 weighing of the probative
against the prejudicial, the functions of the competing
evidence are distinguishable only by the risk inherent in
the one and wholly absent from the other.
[Ibid.]
Like the prosecutor here, the United States Attorney in Old
Chief argued the primacy of the long recognized right of the State
to prove its case as it sees fit, without being precluded from
eliciting evidence by a defendant's stipulation. Old Chief
rejected this view, concluding that the standard legal maxim that
the prosecutor, and hence the court, need not accept any defense
stipulation which the prosecutor chooses to reject, see Parr v.
United States,
255 F.2d 86, 88 (5th Cir.), cert. den.,
358 U.S. 824,
79 S.Ct. 40,
3 L.Ed.2d 64 (l958), "has virtually no
application when the point at issue is a defendant's legal status,"
rather than a factual point which might suffer from a lack of
"evidentiary depth" if admitted by stipulation rather than
testimony or other evidence. Id. at ___, 117 S.Ct. at 647,
136 L.Ed 2d at ___.
The only issue therefore is whether the differences between
the federal convicted felon statute and N.J.S.A. 2C:39-7 cited by
the State, are such that the principles enunciated in Old Chief
should be viewed as inapplicable. Several other courts have
declined to adopt Old Chief solely because of such a distinction.
See Maibauer v. State,
968 S.W.2d 502 (Tex. Ct. App. l998); Sisson
v. State,
499 S.E.2d 422 (Ga. Ct. App. l998); State v. Hamilton,
486 S.E.2d 5l2 (S.C. Ct. App. l997). But see State v. Alexander,
57l N.W.2d 662 (Wisc. l997).
It is undeniable that the federal statute is generic in the
sense that it identifies qualifying prior convictions by penalty,
while N.J.S.A. 2C:39-7 specifies the qualifying convictions by
name. However, in our view, the statutes are not jurisprudentially
different. Regardless of whether a defendant's status is declared
by the class or the name of his prior offenses, the fundamental
inquiry is the same under Fed. R. Evid. 403 as it is under N.J.R.E.
403: whether the probative value of informing the jury of the
specifics of defendant's prior convictions is substantially
outweighed by the countervailing risk of undue prejudice. Like the
Court in Old Chief, we think it is. The specifics of defendant's
prior crimes have no evidentiary significance beyond a stipulation
that defendant falls within the class of offenders our Legislature
thought should be barred from possessing weapons. On the other
hand, as the Supreme Court in Old Chief noted, a high risk of
prejudice is "inherent" in detailing the prior convictions and
"wholly absent" in the stipulation. Old Chief, supra, 519 U.S. at
___, 117 S. Ct. at 650,
136 L.Ed 2d at ___.
Even without Old Chief, however, we would have reached the
same conclusion. In State v. Hardaway,
269 N.J. Super. 627 (App.
Div. l994), we addressed an analogous issue and held that it is the
court's obligation sua sponte to determine whether a fact which
other crimes evidence is offered to prove can be proved by some
other less prejudicial evidence. If so, it should be proved that
way. Id. at 629. That is exactly the situation before us.
Defendant's stipulation proves his status as a person who the
Legislature thought should not have weapons. Nothing, other than
prejudice to his right to fair trial on the issue of whether he
possessed weapons on April 6, l996, can be gained by marching the
names of his prior offenses before the jury.
Moreover, the reasoning of Brunson, supra, 132 N.J. at 377, is
equally applicable in these circumstances, and required
sanitization in this case in any event. The armed robbery was a
"similar" offense to the one with which defendant was charged.
Thus, only its date and sentence were admissible. At the very
least, the "armed" element needed to be eliminated as per
defendant's request. In sum, the trial judge erred in refusing to
allow defendant to stipulate that he had the required convictions
under N.J.S.A. 2C:39-7.
The foregoing errors in combination operated to deny defendant a fair trial. State v. Orecchio, 16 N.J. 125, 129 (1954). While there was evidence in this record which would support a jury verdict of guilt beyond a reasonable doubt, in light of the introduction of repetitive evidence of arrest and search warrants for defendant and the revelation of the labels of defendant's prior crimes to the jury without any limiting instruction, we cannot be sure the verdict is one which is free from taint. We thus reverse and remand the case for a new trial consonant with the principles to which we have adverted.
We add this final point. Defendant argues that it was error for the trial judge to refuse to waive the "deliberate anew" language of Ragland upon his request. Ragland addressed
the unique problem that arises when a defendant is charged at the same time with unlawful possession of a weapon and possession of a weapon by a convicted felon. The two charges must be tried separately since proof that defendant was a convicted felon (required in the trial of the latter charge) clearly tends to prejudice the jury in considering the former.
[Ragland, supra, l05 N.J. at l93.]
Thus severance is customary and "presumably automatic" where it is
requested. Id. at l94. An entirely different jury can be
empaneled to hear the second charge or the same jury may try both
counts sequentially. State v. Ingenito,
87 N.J. 204, 217 n.6
(l98l). Either way, Ragland requires that the second jury "be
instructed in no uncertain terms to consider anew the evidence
previously admitted but to disregard completely its prior verdict."
Ragland, supra, 105 N.J. at l95. Conceding the "make-believe"
quality of such an instruction where the same jury considers both
counts, Ragland nevertheless held that
the defendant is entitled to that instruction for on the
"new" trial, the defendant is entitled to the presumption
of innocence and, as a consequence of that, to an
instruction that each and every material fact that makes
up the crime, including obviously the fact of possession,
must be proven by the State beyond a reasonable doubt.
[Ibid.]
Ragland concluded that what is needed in such a matter is a
strong instruction to the jury
to disregard its prior verdict of possession (for nothing
short of that will suffice unless defendant affirmatively
requests that such a charge not be given), advising the
jury that it is the State's burden to prove that fact
beyond a reasonable doubt, allowing the jury, however, to
consider the evidence that had previously been brought
before it on the possession charge.
[Id. at l95-96.]
Here, because the prior verdict was not guilty of possession for an
unlawful purpose, and because it was unknown whether the jury found
no possession or no unlawful purpose, defendant asked that the jury
not be instructed to disregard it prior verdict. This seems to us
to be the exact kind of case Ragland must have had in mind in
providing defendants' fail-safe opportunity to avoid the
instruction. The denial of the request here appears to be a facial
violation of Ragland. Any other interpretation of that case will
have to come from the Supreme Court. We need not determine
whether, standing alone, this violation is harmful error because,
in this case, it is merely one of many errors, some of which we
have already declared to warrant reversal.
Reversed and remanded.
Footnote: 1
The trial judge gave the following limiting instruction
on the arrest warrant:
You recall that during the trial, the State
was permitted to introduce into evidence the
fact that the police officers went to l0l
Coleman to execute an arrest warrant and I
explained to you that the State was permitted
to introduce the fact of the arrest warrant to
explain their purpose or presence and you
shouldn't prejudice Mr. Alvarez by virtue of
the fact that there was an arrest warrant for
him. That shouldn't be viewed by you as
considering him a bad person or even that he
has a prior conviction, but was admitted for
the purpose of explaining why the police were
at l0l Coleman.
While this instruction was not challenged, we note that it raises sua sponte the issue of a prior conviction in a context in which a jury would not ordinarily have thought of it. As such this formulation should be avoided. Footnote: 2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). Footnote: 3 See also Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 1226, 140 L.Ed.2d 350 (1998) (citing with approval Old Chief's holding that evidence of the nature of prior crimes carries a high risk of prejudice to a defendant).