State v. Middleton

• Decision Date: 07 July 1976
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Leo Lamont MIDDLETON, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 18

143 N.J.Super. 18

362 A.2d 602

STATE of New Jersey, Plaintiff-Respondent, v. Leo Lamont MIDDLETON, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Feb. 17, 1976.

Decided July 7, 1976.

Stanley C. Van Ness, Public Defender, for defendant-appellant (Thomas A. Pavics, Asst. Deputy Public Defender, of counsel).

William F. Hyland, Atty. Gen., for plaintiff-respondent (Robert A. Jacobson, Deputy Atty. Gen., of counsel).

Before Judges FRITZ, SEIDMAN and MILMED.

PER CURIAM.

Defendant was charged in a four-count indictment with: (count 1) unlawful possession of a pistol without first having obtained a permit to carry the same (N.J.S.A. 2A:151--41(a); (count 2) possession of a firearm, having been convicted of breaking and entering and larceny, atrocious assault and battery, and murder (N.J.S.A. 2A:151--8); (count 3) carrying a pistol with the intent to use it unlawfully against another (N.J.S.A. 2A:151--56), and (count 4) assaulting a patrolman with an offensive weapon (a pistol) (N.J.S.A. 2A:90--3).

Defendant sought pretrial dismissal of the first three counts on the ground that the pistol was inoperable. The first count was dismissed with the consent of the State. The second and third counts were retained. Defendant then moved for a severance of the second count from the third and fourth counts, his position being, in effect, that to allow the joinder to stand would prejudice him since the State would in the circumstances be allowed to place his prior criminal record before the jury whether or not he chose to take the stand. The motion was denied, the trial judge stating that he felt that as to evidence of the prior convictions a limiting instruction to the jury is sufficient. Continuing his claim of prejudice before a jury by the joinder, defendant then waived trial by jury. In the nonjury trial which followed he was found guilty on the second, third and fourth counts. On the second count he was sentenced to the State Prison for a term of two to three years. The third count was merged into the fourth count and defendant was sentenced on the fourth count to a concurrent two to three year term for the assault with a pistol.

On this appeal defendant contends that (1) 'the trial judge abused his discretion when he refused to sever from the trial, count two of the indictment, possession of a firearm by a felon, thereby forcing the defendant to waive his right to trial by jury, and depriving him of a fair trial' and (2) 'the motion for judgment of acquittal on count two, possession of firearm by a felon, should have been granted because the State stipulated that the pistol was inoperable.'

Defendant argues that

* * * conviction under N.J.S. 2A:151--8 cannot be had unless the State proves that the 'firearm' in question is either operable or capable of being rendered so by a 'minor adjustment' by the defendant.

We disagree. N.J.S.A. 2A:151--8 provides, in pertinent part, that

Any person, having been convicted in this State or elsewhere of any crime enumerated in section 2A:151--5, whether or not armed with or having in his possession any firearm or dangerous instrument enumerated in section 2A:151--5, * * * who purchases, owns, possesses or controls any firearm or any of the said dangerous instruments, is guilty of a misdemeanor.

Defendant's argument suggests a question in terms of ascertaining whether the Legislature meant, as it said, Any firearm, or meant rather, any Operable firearm. The dissent suggests that guidance is to be found by first reference to N.J.S.A. 2A:151--1(a) and then a synthesis which includes N.J.S.A. 2A:151--41 and State v. Morgan, 121 N.J.Super. 217, 296 A.2d 539 (App.Div.1972). No such tortuous reasoning or supplied intent is necessary, for in its interdiction in N.J.S.A. 2A:151--8 of possession of 'any firearms or any of the Said dangerous instruments,' the Legislature told us expressly that its intent was to prohibit possession Of the weapons enumerated in N.J.S.A. 2A:151--5. The weapons enumerated therein specifically include 'any firearm, whether or not capable of being discharged.'

In People v. Jiminez, 27 Mich.App. 633, 183 N.W.2d 853, 854 (1970), the Court of Appeals of Michigan, quoting from its opinion in People v. Bailey, 10 Mich.App. 636, 640, 160 N.W.2d 380, 382 (1968), pointed out:

Courts should look for reasonable rather than tortured interpretations of statutes, or exceptions thereto, so as to reflect the intent of the legislature. Sergeant v. Kennedy, (1958), 352 Mich. 494, 90 N.W.2d 447. 'Dangerous weapons', when used in the statute, should not be narrowly construed by us.'

And in Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976), the court said:

A criminal statute, to be sure, is to be strictly construed, but it is 'not to be construed so strictly as to defeat the obvious intention of the legislature.' American Fur Co. v. United States, 2 Pet. 358, 367, 7 L.Ed. 450 (1829); Huddleston v. United States, 415 U.S. at 831 (39 L.Ed.2d 782), 94 S.Ct. (1262) at 1271. (423 U.S. at 218, 96 S.Ct. at 502, 46 L.Ed.2d at 455.)

In seeking to discover legislative intent we must read the statute in the light of, among other things, the mischief sought to be eliminated. Brewer v. Porch, 53 N.J. 167, 174, 249 A.2d 388 (1969). From our review of these two interrelated sections of the Gun Control Law (N.J.S.A. 2A:151--1 Et seq.) We discern a clear legislative design in N.J.S.A. 2A:151--8 to proscribe the possession by (among other persons) convicted felons of any firearm, whether operable or not. It is obvious to us that one of the evils sought to be suppressed by the statute was the possibility of any show of force, real or apparent, by one who had already been proven a felon. Cf. State v. Times, 129 N.J.Super. 399, 324 A.2d 45 (App.Div.1974), certif. den. 66 N.J. 326, 331 A.2d 36 (1974). Defendant's motion to dismiss the second count of the indictment was properly denied.

We do, however, find substantial merit in defendant's claim that the second count should have been severed for trial. Any charge under N.J.S.A. 2A: 151--8 requiring, as it does, proof of defendant's prior conviction should not be tried together with other charges of crime despite the fact that such procedure does not offend due process of law. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), reh. den. 386 U.S. 969, 87 S.Ct. 1015, 1016, 18 L.Ed.2d 125 (1967).

A joint trial of a charge under N.J.S.A. 2A:151--8 with other charges of crime will invariably raise the problem encountered in this case--revelation of a prior conviction, necessary to convict on the N.J.S.A. 2A:151--8 charge of which such prior conviction is a necessary element, but inadmissible with respect to the other charges if defendant elects not to testify and if not justified on other gronnds. Evid.R. 55.

It was error for the trial court to deny the requested severance. The resulting prejudice to defendant is obvious. His subsequent waiver of a jury trial and decision to testify in his own behalf did not mitigate the harm. Neither could any 'limiting instruction' to the jury. A reversal is, accordingly, required.

Defendant's conviction on the three counts is reversed and new trials are ordered as follows: (a) on the third and fourth counts jointly, and (b) on the second count separately.

SEIDMAN, J.A.D. (dissenting in part).

I agree that defendant's conviction should be reversed, but I would limit the new trial to the third and fourth counts (as merged by the court below). The second count, in my view, should be dismissed.

The first and second counts of the indictment here involved charged defendant with, respectively, possession of a pistol without having first obtained a permit therefor, contrary to N.J.S.A. 2A:151--41(a); and, 'being a person having been convicted of Breaking and Entering and Larceny, Atrocious Assault and Battery, and Murder,' with 'own(ing), possess(ing) or control(ling) a firearm,' contrary to N.J.S.A. 2A:151--8.

At the opening of the trial defense counsel moved to dismiss these counts (as well as a third count for possessing a pistol with intent to use it unlawfully against another (N.J.S.A. 2A:151--56)), on the ground that the pistol in question, ¹ the possession of which was not denied, was 'totally inoperable.' The prosecutor acknowledged the inoperability of the weapon and consented to the dismissal of the first and second counts, but not the third. However, he later withdrew the consent insofar as it related to the second count. The first count was dismissed. The motion was denied as to the second and third counts, the trial judge holding, with respect to the former, that 'operability of the firearm is not an issue under this count of the indictment.'

Defendant argues on this appeal that 'the motion for judgment of acquittal' ² on the second count should have been granted 'because the State stipulated that the pistol was inoperable.'

The precise issue here, which seems to be one of novel impression in this State (at least my research has disclosed no reported case squarely in point), is whether possession of a concededly inoperable ³ firearm may constitute a violation of N.J.S.A. 2A:151--8, which, to the extent pertinent here, provides as follows:

Any person, having been convicted in this State or elsewhere of any crime enumerated in section 2A:151--5, whether or not armed with or having in his possession any firearm or dangerous instrument enumerated in section 2A:151--5, * * * who purchases, owns, possesses or controls any firearm or any of the said dangerous instruments is guilty of a misdemeanor. ⁴

There was competent evidence below, not controverted on this appeal, that defendant had previously been convicted of certain crimes encompassed within N.J.S.A. 2A:151--5, a statute which mandates an additional sentence for

(a)ny person who commits or attempts to commit an assault, robbery, larceny, burglary, breaking and...