State v. Ragland

• Decision Date: 08 January 1985
• Citation: 486 A.2d 1305,198 N.J.Super. 330
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Gregory RAGLAND, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 330

198 N.J.Super. 330

486 A.2d 1305

STATE of New Jersey, Plaintiff-Respondent, v. Gregory RAGLAND, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Nov. 28, 1984.

Decided Jan. 8, 1985.

Joseph H. Rodriguez, Public Defender, Trenton, for defendant-appellant (Maurice J. Molyneaux, Asst. Deputy Public Defender, East Orange, of counsel and on brief).

Irwin I. Kimmelman, Atty. Gen., Trenton, for plaintiff-respondent (Catherine A. Foddai, Deputy Atty. Gen., Princeton, of counsel and on brief).

Before Judges MATTHEWS, FURMAN and COHEN.

The opinion of the court was delivered by

MATTHEWS, P.J.A.D.

Defendant was charged in a five-count indictment, handed up by an Essex County Grand Jury on August 27, 1981. The indictment charged him with conspiracy to commit armed robbery, second degree ( N.J.S.A. 2C:5-2, Count One), unlawful possession of a weapon, third degree ( N.J.S.A. 2C:39-3b, Count Two), unlawful possession of a weapon without a permit, third degree ( N.J.S.A. 2C:39-5c(1), Count Three), unlawful possession of a weapon, third degree ( N.J.S.A. 2C:39-5c(2), Count Four), and possession of a weapon by a convicted felon, fourth degree ( N.J.S.A. 2C:39-7, Count Five).

On defense counsel's motion, Count Five was severed before trial so as not to prejudice defendant with respect to the other charges. See, State v. Middleton, 143 N.J.Super. 18, 23, 362 A.2d 602 (App.Div.1976), aff'd o.b. 75 N.J. 47, 379 A.2d 453 (1977).

A trial on the matter was held before a jury. Defendant exercised his constitutional right not to testify. At the close of its case, the State moved to dismiss Count Four as duplicative of Count Three. The motion was granted. Defense counsel then moved for judgments of acquittal on the remaining counts but his motion was denied. Defendant was subsequently convicted on Counts One, Two and Three.

The trial judge then stated that the same jury would try defendant on the Fifth Count. Defense counsel objected, arguing that defendant was entitled to a new trial with a new jury. He stated that use of the same jury would violate defendant's constitutional right to a trial by jury since defendant would be collaterally estopped from challenging the possession element of the offense.

The judge was not persuaded by defense counsel's argument. Finding the use of the same jury constitutionally permissible, he stated:

It would be ludicrous in this Court's opinion to have the issue presented again when there has already been a finding by the jury, and when the defendant has had full opportunity to participate in the jury trial of that issue wherein he was adequately represented and confronted with the witnesses against him.

Before the Fifth Count was tried, the court gave the jury the following instruction:

[E]ven at this stage as to that count the defendant is still presumed to be innocent until proven guilty, and all of the other instructions that I have given regarding the presumption of innocence as in the other case apply to this count as well, and it is still the State's burden to prove the defendant guilty of the offense beyond a reasonable doubt.

The State was then allowed to present its case on the Fifth Count, which consisted solely of the introduction of a certified copy of defendant's prior record into evidence. At side bar, the judge had overruled defense counsel's general objection that, because the record contained a violation of probation, it should not be offered for jury consideration.

The judge then gave the jury its full instructions. In pertinent part, he charged them as follows:

If you find that the defendant, Gregory Ragland, was previously convicted for the crime of robbery and that he was in possession of a sawed-off shotgun, as you have indicated on June 22, 1981, then you must find him guilty as charged by this Court.

If, on the other hand, you have any reasonable doubt concerning any essential element of this crime, then you will find him not guilty.

All of the instructions that you have previously received apply as well to this finding.

Shortly thereafter, the jury returned with a verdict of guilty on the Fifth Count.

When defendant appeared before the sentencing judge on March 11, 1983, he was committed to the custody of the Commissioner of the Department of Corrections as follows:

Count One--Conspiracy to commit robbery: ten (10) years and a penalty of $500 payable to the Violent Crimes Compensation Board (VCCB);

Count Two--Unlawful possession of a weapon: five (5) years concurrent with Count One and a penalty of $25 payable to VCCB;

Count Three--Unlawful possession of weapon without a permit: five (5) years concurrent with sentence imposed on Count One and a penalty of $25 payable to VCCB, and

Count Five--Possession of weapon by a convicted felon: eighteen (18) months consecutive to Count One and a penalty of $25 payable to VCCB.

In addition, the court imposed a parole disqualifier of five (5) years. The judge did not specifically state upon which count the parole disqualifier was to be imposed. However, the sentence imposed on Count One was 10 years and the other convictions resulted in sentences of five years or less. Thus, it is clear that the court imposed the disqualifier on Count One.

I.

The right to a trial by an impartial jury is guaranteed under both the state and federal constitutions. N.J. Const. (1947) Art. 1, § 9; U.S. Const. Art. 3, § 2, Cl. 3; U.S. Const. amend. VI and XIV. The essence of the jury function has been found to "include determining the facts in the case, considering all of the relevant admissible evidence bearing upon the charges, evaluating the credibility of witnesses, assessing the weight and worth of evidence, and deciding the ultimate guilt or innocence of a defendant in light of the underlying evidence. State v. Ingenito, 87 N.J. 204, 212, 432 A.2d 912 (1981).

Defendant contends that his right to a jury trial was violated by the judge's refusal to empanel a new jury to sit for the trial on Count Five, possession of a weapon by a convicted felon. His argument appears to rest on these premises: (a) the failure of the State to meet its burden with respect to the possession element; (b) the unconstitutional use of collateral estoppel, and (c) an improper jury instruction by the court which diluted the presumption of innocence.

(a) Failure of State to Meet its Burden of Proof

Defendant argues that in order for a defendant be found guilty of an offense, each essential element must be proved beyond a reasonable doubt. There are two essential elements in the offense under review: possession of a weapon, and a prior felony conviction. Defendant claims that the only evidence introduced by the State on Count Five was a certified copy of a prior conviction record and that no evidence was introduced regarding possession, other than the testimony that had previously been given in the first part of the bifurcated trial. He argues that the jury should not have been permitted to consider this prior evidence, since the defendant was constitutionally entitled to have each element of an offense proved anew. We disagree.

The State's failure to introduce evidence with respect to possession in Count Five did not prevent jury consideration of evidence tending to prove possession introduced earlier. The State was still obligated to prove all of the elements of the crime beyond a reasonable doubt and the jury, as fact-finder, had to determine whether the State met its burden. The mere fact that the State satisfied its burden sequentially did not lessen that burden.

(b) Unconstitutional Use of Collateral Estoppel

Defendant argues that use of the same jury in both parts of the bifurcated trial precluded defendant from relitigating possession in Count Five and constituted an impermissible collateral estoppel. Thus, he claims, the jury was not able properly to fulfill its responsibility of determining all of the facts and weighing all of the evidence related to the offense. Because of this, defendant says that he was denied his constitutional right to a jury trial.

The procedure used did not constitute a collateral estoppel. Under the definition cited by defendant, collateral estoppel is "that branch of the law of res judicata which bars relitigation of any issue which was actually determined in a prior action, generally between the same parties involving a different claim or cause of action." State v. Gonzalez, 75 N.J. 181, 186, 380 A.2d 1128 (1977) (emphasis added). The first part of a bifurcated trial is not "a prior action" with respect to the second part of the trial, given that the same jury sits throughout both parts.

In State v. Ingenito, 169 N.J.Super. 524, 405 A.2d 418 (App.Div.1979), rev'd 87 N.J. 204, 432 A.2d 912 (1981), defendant was charged, in multiple counts with the unlicensed transfer of weapons, receipt of stolen property and possession of a firearm by a previously convicted felon. As in this case, the trial judge granted a motion to sever the latter charge from the others so as not to prejudice defendant. After a jury trial, defendant was convicted of the unlicensed transfer of weapons. One week later, a different jury convicted him of the severed charge. In so doing, it did not consider any new evidence as to possession, but relied solely on the finding of the first jury.

In reversing this court, the Supreme Court found that collateral estoppel was impermissibly applied against defendant, thereby invading the factfinding and ultimate decisional functions of the jury:

If an essential element of a case is presented as concluded or settled, effectively withholding from the jury crucial underlying facts, the jury's...