SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5337-95T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WARDELL HARVEY,
Defendant-Appellant.
__________________________________________________
Argued January 20, 1999 - Decided February 9,
1999
Before Judges Muir, Jr., Keefe and Bilder.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County.
Mordecai Garelick, Assistant Deputy Public
Defender, argued the cause for appellant
(Ivelisse Torres, Public Defender, attorney;
Mr. Garelick of counsel and on the brief).
Henry L. Warner, Assistant County Prosecutor,
argued the cause for respondent (Jeffrey S.
Blitz, Atlantic County Prosecutor, attorney;
Mr. Warner of counsel and on the brief).
The opinion of the court was delivered by
BILDER, J.A.D. (retired and temporarily assigned on recall).
Following a jury trial, defendant Wardell Harvey was found
guilty of possession of a firearm after having been previously
convicted of aggravated assault. N.J.S.A. 2C:39-7b. On motion of
the State he was sentenced to an extended term of fifteen years
with a minimum of seven years. Appropriate fines and penalties
were also imposed.
When Officer Rauch of the Atlantic City Police Department
approached an illegally parked car to issue a summons, he
observed the driver, later identified as defendant Harvey,
counting small white folds of paper to the passenger. In the
belief this was a narcotics transaction, Rauch knocked on the
window, at which point defendant dropped the papers in his hand
and brushed additional paper folds in his lap to the floor.
Rauch informed the occupants they were under arrest and ordered
them to place their hands on the dash board. According to Rauch,
defendant, after initially complying, began reaching toward the
floor, causing the officer to fear for his safety. He drew his
service revolver and called for back-up. At this point,
defendant started the car. Rauch opened the driver's side door
and saw defendant had a revolver gripped in his left hand. A
struggle ensued in which Rauch put his foot on defendant's left
hand and attempted to pull him from the car. Defendant put the
car into drive and caused it to move forward a short distance
before it was stopped by responding back-up officers. The gun
was seized from the floor of the car. The State's evidence, if
accepted by the jury, established defendant's possession of a
firearm beyond a reasonable doubt. Defendant does not challenge
his status as a prior offender.
In his brief on appeal defendant makes the following
contentions:
POINT I:
THE TESTIMONY THAT THE DEFENDANT
HAD BEEN CONVICTED OF A PRIOR
OFFENSE OF AGGRAVATED ASSAULT
DEPRIVED HIM OF A FAIR TRIAL.
POINT II:
SINCE THE JUROR EXCUSED DURING
DELIBERATIONS WAS NEITHER ILL NOR
UNABLE TO CONTINUE UNDER R. 1:8-2(d), AND THE JURORS HAD ALREADY
REACHED AN ADVANCED STAGE OF
DELIBERATIONS, HIS REMOVAL AND
REPLACEMENT WITH AN ALTERNATE JUROR
VIOLATED DEFENDANT'S RIGHT TO DUE
PROCESS OF LAW AND A FAIR TRIAL BY
AN IMPARTIAL JURY. U.S. CONST.
AMENDS. V, VI, XIV; N.J. CONST.
(1947) ART. I, PARS. 1, 9, 10.
Admission of evidence of the assaultive
nature of the prior conviction.
Essential to a conviction of violating N.J.S.A. 2C:39-7b is
a showing by the State that defendant has been previously
convicted of one of the enumerated crimes. In this case, the
basis of the charge was a prior conviction of aggravated assault.
The conviction itself but not its nature was a critical element
of the State's case.
At the start of the trial defendant moved to bar the
introduction of evidence of the nature of the prior conviction.
He offered to stipulate that element of the charged offense,
i.e., that defendant was a convicted felon under the predicate
statute. He contended the offered stipulation rendered any
evidence of the nature of the prior conviction evidentially
unnecessary and unfairly prejudicial. The trial judge denied the
motion, holding the prior conviction was an element of the
charged offense and the State was entitled to prove all the
elements.
On appeal defendant contends the denial of his motion was an
abuse of discretion and the unnecessary introduction of the
nature of the prior offense tainted the deliberative process and
denied him a fair trial. Although novel in New Jersey, the issue
has been considered by the United States Supreme Court as well as
the highest courts of Florida, Colorado and Wisconsin and
appellate courts in Arizona, Michigan and Washington. Old Chief
v. United States,
519 U.S. 172,
117 S. Ct. 644,
136 L. Ed.2d 574
(1997); Brown v. State,
719 So.2d 882, 889 (Fla. 1998); State v.
Alexander,
571 N.W.2d 662, 668-672 (Wis. 1997); State v. Root,
No. 1CA-CR97-0737, 1
998 WL 849790 at *2 to *5, (Ariz. Ct. App.
Dec. 15, 1998); State v. Johnson,
950 P.2d 981, 985-986 (Wash.
Ct. App. 1998); People v. District Court,
953 P.2d 184, 190-191
(Colo. 1998)(dicta); People v. Swint,
572 N.W.2d 666, 677 (Mich.
Ct. App. 1997)(dicta). All of these courts concluded, in light
of an offer to stipulate the status element of the charged
offense, the prejudicial effect of the disclosure of the nature
of the prior conviction substantially outweighed its probative
value.
Old Chief involved a federal offense similar to that for
which defendant was charged and implicated Federal Evidence Rule
403, a rule which is essentially the same as N.J.R.E. 403. See
Biunno, Current N.J. Rules of Evidence, 1991 Supreme Court
Committee Comment to N.J.R.E. 403 (1998-1999). After examining
the risks of prejudice which inhere in evidence of past
convictions and considering the alternative means of proof, the
United States Supreme Court concluded that stipulations are the
proper method of proving the felony-convict status of a
defendant:
In this case, as in any other in which the prior
conviction is for an offense likely to support
conviction on some improper ground, the only reasonable
conclusion was that the risk of unfair prejudice did
substantially outweigh the discounted probative value
of the record of conviction, and it was an abuse of
discretion to admit the record when an admission was
available. What we have said shows why this will be
the general rule when proof of convict status is at
issue, just as the prosector's choice will generally
survive a Rule 403 analysis when a defendant seeks to
force the substitution of an admission for evidence
creating a coherent narrative of his thought and
actions in perpetrating the offense for which he is
being tried.
[519 U.S. at ___, 117 U.S. at 655-656, 136 L.Ed.
2d at 594-595 (footnote ommitted).]
Although this question has not been dealt with by our own
Supreme Court, we are not without guidance. We are satisfied
that the philosophy underlying the decision in State v. Brunson,
132 N.J. 377 (1993), can be fairly taken to presage an acceptance
of the Old Chief view. In Brunson the Court considered the same
prejudice which the United States Supreme Court considered in Old
Chief, the prejudice which inheres in evidence of past
convictions. The issue was viewed in the context of a challenge
to the credibility of a defendant-witness but nonetheless raised
the same specter of misuse by the fact finder. "Although prior-conviction evidence is effective in impeaching a defendant's
credibility, concern frequently is raised about the extent to
which juries consider that evidence as proof of guilt." Id. at
385. Weighing the competing right of the State to impeach the
defendant's credibility and the need to avoid the impermissible
use of prior-conviction evidence to assess the likelihood of
guilt, our Supreme Court concluded evidence of a prior conviction
of an offense the same as or similar to the offense charged
should be sanitized. Id. at 391. The State may introduce
evidence of the defendant's prior conviction limited to the
degree of the crime and the date of the offense but excluding any
evidence of the specific crime of which defendant was convicted.
Ibid.
When the sole purpose of introducing evidence of a prior
conviction is to prove defendant's status as an element of the
offense and the defendant admits to that element, the probative
value of the nature of the underlying offense is far outweighed
by the danger of unfair prejudice. Here, the failure to bar
disclosure of the nature of the defendant's past crime was an
abuse of discretion which deprived defendant of a fair trial and
requires that the conviction be reversed.
After the jury had commenced its deliberations, the State brought two matters to the trial court's attention in an on-the-record in-camera proceeding. First, during the testimony of the State's rebuttal witness, juror number nine had been making facial gestures and the Assistant Prosecutor's detective "indicated to [him] it looked like he was mouthing the word liar." Second, as a result of these observations, the State ran a "RAP sheet" on juror number nine and learned he might be an individual with a conviction for receiving stolen property in 1963.
The Assistant Prosecutor took the position he would have challenged the juror if he had known about the conviction and now wanted him to be excused and replaced with an alternate. Over the objections of defense counsel and after it was reported the jury was deadlocked at 11-1, juror number nine was brought in and questioned. His answers revealed that he had indeed been convicted of an offense in North Carolina and been placed on probation when he was 15 years old, some 33 years earlier. Concluding the juror had deliberately falsified his responses to the court's voir dire, the trial judge excused and discharged him from the panel and substituted an alternate, stating:
I think he is deliberately and has deliberately falsified his responses to the Court. I think he did that right here before us a few minutes ago, and accordingly, I'm going to rule that he should be excused, discharged from this panel.
Defendant's motion for a mistrial was denied and an alternate
seated. The reconstituted jury later returned the guilty
verdict.
On appeal defendant contends this action violated R. 1:8-2(d)(1) and deprived him of a fair trial.
After a jury has commenced deliberations, R. 1:8-2(d)(1)
permits the seating of an alternate "if ... a juror dies or is
discharged by the court because of illness or other inability to
continue." It is a Rule which is to be employed sparingly. State
v. Valenzuela,
136 N.J. 458, 468 (1994). In State v. Trent, 157
N.J. Super. 231 (App. Div. 1978), rev'd on other grounds,
79 N.J. 251 (1979), Judge Pressler said:
[T]he "unable to continue" language of the rule must be
strictly construed and must ordinarily be limited to
compelling circumstances which are exclusively personal
to the juror in question, and hence which do not and
which by their nature cannot raise the specter of
either a jury taint or a substantive interference with
the ultimate course of the deliberations beyond that
necessarily implicit in the effect of new personalities
on group dynamics.
[Trent, supra 157 N.J. Super. at 240. See Valenzuela, supra
136 N.J. Super. at 468.]
In the instant case, not only was there neither illness nor
inability to continue, but the removal was triggered by the
State's perception that he might be an unfavorable juror and the
removal took place during the second day of deliberations after
the jury had reported an 11-1 deadlock. As Justice Stein said in
Valenzuela,
The record on which a court may excuse a deliberating
juror must reveal with greater clarity that a juror
cannot proceed with deliberations and fulfill the
function of a juror, particularly when the record
contains any suggestion that the problems regarding the
juror stem from interactions with the other jurors and
not from circumstances "exclusively personal to the
juror in question * * *."
[Id. at 472 (quoting Trent, supra, 157 N.J. Super. at 240).]
Although our conclusion as to the failure to bar disclosure
of the nature of defendant's past crime makes consideration of
this issue unnecessary, we feel constrained to indicate our
agreement with defendant that the substitution of the new juror
was error. Any defect in the integrity of the jury selection
process would have been fully and effectively cured by granting
defendant's motion for a mistrial.
Reversed.