State v. Johnson

• Decision Date: 09 July 1974
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Ronald JOHNSON, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 388

65 N.J. 388

323 A.2d 450

STATE of New Jersey, Plaintiff-Appellant, v. Ronald JOHNSON, Defendant-Respondent.

Supreme Court of New Jersey.

Argued May 7, 1974.

Decided July 9, 1974.

R. Benjamin Cohen, Asst. Prosecutor for plaintiff-appellant (Joseph P. Lordi, Essex County Prosecutor, attorney).

James J. Lee, Asst. Deputy Public Defender, for defendant-respondent (Stanley C. Van Ness, Public Defender, attorney).

The opinion of the Court was delivered by

SULLIVAN, J.

Defendant was convicted of unlawful possession of heroin, a violation of N.J.S.A. 24:21--20, and unlawful possession of a revolver, a violation of N.J.S.A. 2A:151--41. He was sentenced to a term of 3 to 5 years in State Prison for each offense, the sentences to run concurrently.

On appeal, 125 N.J.Super. 344, 311 A.2d 14, the Appellate Division unanimously: (1) upheld the trial court's interpretation of N.J.S.A. 2A:151--41 as prohibiting possession of a firearm without a permit in any place, public or private, subject to the exceptions specified in N.J.S.A. 2A:151--42; (2) rejected defendant's contention that he was prejudiced by the trial court's statement to the jury that 'an indictment, far from being a mere allegation, constitutes a finding by a Grand Jury that a basis exists for subjecting the accused to a trial, to a trial before a jury such as you.'; (3) found that the prosecutor's remarks during summation, referring to defendant's prior criminal convictions, did not constitute prejudicial error; (4) affirmed the conviction of unlawful possession of heroin; and (5) held that the sentences imposed were not manifestly excessive.

However, a majority of the court concluded that the conviction of unlawful possession of a revolver must be reversed because the trial court, in its charge to the jury, made unnecessary and improper reference to N.J.S.A. 2A:151--5 which provides for additional sentence for armed criminals, and N.J.S.A. 2A:151--8 which makes it a misdemeanor for specified persons to purchase, own, possess or control any firearm. On defendant's objection to these references and motion for a mistrial, the court denied the motion but told the jury to disregard the court's prior reference to these statutory provisions as they had no bearing on the case and might be confusing. A majority of the court held that reference to these irrelevant statutes had a reasonable possibility of contributing to the conviction on the gun count.

The dissenting judge noted that when the matter was called to the trial court's attention, it had instructed the jury to disregard the improper reference to the irrelevant statutory provisions and that no objection had been made to this supplemental charge on the ground it was unclear or confusing. Consequently, he found no basis for invoking the plain error rule.

The State had appealed the reversal of the conviction of possession of a revolver. R. 2:2--1(a)(2). Defendant's petition for certification of the judgment of the Appellate Division affirming his conviction of unlawful possession of heroin was granted by this Court. 64 N.J. 322, 315 A.2d 410 (1974).

We are in full agreement with the unanimous ruling of the Appellate Division which interpreted N.J.S.A. 2A:151--41 as prohibiting possession of a firearm without a permit in any place, public or private, subject to the exceptions specified in N.J.S.A. 2A:151--42. We also agree with the majority holding of the Appellate Division that the unnecessary and improper references to statutory provisions wholly irrelevant to the case had a reasonable probability of contributing to the conviction on the gun count and prejudiced defendant's right to a fair trial on that count.

However, we conclude that the trial court's instructions to the jury as to the import and force of an indictment, which the Appellate Division held did not constitute reversible error, were not only improper but possessed the clear capacity to prejudice defendant by suggesting to the jury that an indictment of itself constitutes a Prima facie finding by a Grand Jury as to defendant's guilt.

We also conclude that the prosecutor exceeded the bounds of fair play in his dealing with defendant's prior criminal record both on cross-examination and during summation. Evidence of prior criminal convictions is admissible to affect the credibility of a defendant as a witness and for no other purpose. On his direct examination defendant had disclosed all of his prior criminal convictions. On cross-examination the prosecutor did not ask defendant a single question about his involvement in the crimes for which defendant was on trial, but limited his questioning to a review of defendant's criminal record. During summation the prosecutor kept harping on this record to a point where it appears that his purpose was to show defendant was a hardened criminal and to have the jury infer guilt from that fact.

We have emphasized many times that the prosecutor's function in appearing for the State is to see to it that justice is done. His comments and conduct carry the authority of the State. Prosecutorial excesses cannot and will not be tolerated. State v. Spano, 64 N.J. 566, 319 A.2d 217 (1974); Cf. State v. Perry, 65 N.J. 45, 319 A.2d 474 (1974). Defendant was entitled to a fair trial and did not receive it by virtue of the prosecutor's improper conduct and the trial court's erroneous instructions as to the import and force of an indictment.

The judgment of the Appellate Division is modified to the end that defendant's conviction on both counts is reversed and a new trial ordered.

PASHMAN, J., concurs in result.

For modification:

Chief Justice HUGHES and Justices JACOBS, MOUNTAIN, SULLIVAN, PASHMAN and CLIFFORD--6.

Opposed: None.

PASHMAN, J. (concurring).

I agree with the majority that the trial court's interpretation of N.J.S.A. 2A:151--41 was correct. The statute was properly construed as prohibiting possession of a firearm without a permit in any place, public or private, subject to the exceptions specified in N.J.S.A. 2A:151--42. I further believe the errors at the trial level were numerous and much too prejudicial to the defendant. While not considered individually as reversible error, they acquire an ominously devastating potential when viewed in combination. State v. Orecchio, 16 N.J. 125, 134, 106 A.2d 541 (1954). See R. 1:7--5.

Most of the problems involved in the instant matter stem from the inaccurate and prejudicial charge to the jury and the court's inadequate and seemingly grudging supplemental curative charge. Initially, the judge explained to and charged the jury on the one relevant statute, N.J.S.A. 2A:151--41, ¹ and then on three irrelevant statutes for which defendant had not even been indicted, namely, N.J.S.A. 2A:151--42, 2A:151--5 and 2A:151--8. ² the State concedes that this was an obvious error under State v. Begyn, 58 N.J.Super. 185, 201, 156 A.2d 15 (App.Div.1959), aff'd 34 N.J. 35, 167 A.2d 161 (1961), but maintains that the error was remedied by the judge's curative supplemental instruction.

This Court has, in a number of instances, stated that if a judge clarifies the confusion created by an improper jury charge and subsequently limits its determination to the appropriate problem, no prejudice will be found. State v. Lucas, 30 N.J. 37, 75--76, 152 A.2d 50 (1959); State v. Smith, 21 N.J. 326, 334, 121 A.2d 729 (1956); State v. Provoid, 110 N.J.Super. 547, 558--559, 266 A.2d 307 (App.Div.1970). In other instances, if the harm complained of is identified as simply an irrelevant matter, there will be no potential jury confusion.

However, in this case, the prejudice went much deeper. The trial judge charged the jury one way and then instructed them in a contradictory fashion a few minutes later. Initially, in his charge, he instructed the jury to consider defendant's prior record substantively for the purposes of N.J.S..A 2A:151--8. Defense counsel vigorously objected, and after some discussion, the judge acquiesced and deleted the three superfluous statutes from his charge. He then told the jury:

Now, the other items with respect to being--that I cited to you, that is, New Jersey Statute 2A:151--42, 2A:151--8 and 2A:151--5--Just disregard those * * * (Emphasis added).

Not only might the jury have forgotten the substance of these three irrelevant statutes and become confused about what they could or could not consider, but they might also have misconstrued or misunderstood the judge's instruction concerning the limited legal effect of the defendant's prior record and considered it in coming to their determination on the substantive crime, instead of properly restricting its use.

For the judge to attempt to change the purpose for which defendant's prior record had been admitted at trial at this late date, I.e. the time of the supplemental charge, would be futile. By then the jury had already allowed their decision to be persuaded and tainted by this nonsubstantive evidence.

I might add that I doubt whether a jury does ever truly limit evidence of defendant's prior criminal propensity and record to only affect his credibility. More than likely, they consciously or unconsciously permit limited evidence to run over and affect the substantive crime itself. The same concern was expressed by Judge Conford in State v. Von Atzinger, 81 N.J.Super. 509, 196 A.2d 241 (App.Div.1963):

It is dubious enough under the best of circumstances whether the average jury confines its consideration of a defendant's past criminal record to its effect upon his credibility, as is the evidential limitation. See Report of the New Jersey Supreme Court Committee on Evidence (1963), pp. 102--103. (81 N.J.Super. at 516, 196 A.2d at 245).

The identical proposition was reiterated in State v. Manley, 54 N.J. 259, 255 A.2d 193 (1969), where this Court said:

* * * We recognize the almost unavoidable psychological impact on the layman-juror of evidence of a defendant's conviction of similar...