State v. Ragland

• Decision Date: 21 November 1986
• Citation: 105 N.J. 189,519 A.2d 1361
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Gregory RAGLAND, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 189

105 N.J. 189

519 A.2d 1361

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

Supreme Court of New Jersey.

Argued Feb. 19, 1986.

Decided Nov. 21, 1986.

Matthew Astore, Asst. Deputy Public Defender, for defendant-appellant (Thomas S. Smith, Jr., Acting Public Defender, attorney).

Catherine A. Foddai, Deputy Atty. Gen., for plaintiff-respondent (W. Cary Edwards, Jr., Atty. Gen., attorney).

Gary H. Schlyen, Sr. Asst. Prosecutor, submitted a letter brief on behalf of amicus curiae, County Prosecutors Ass'n (Joseph A. Falcone, Passaic County Prosecutor, President, attorney).

The opinion of the Court was delivered by

WILENTZ, C.J.

In this matter we reconsider, pursuant to the State's motion, our decision reversing the judgment of the Appellate Division and remanding the matter to the trial court for a new trial, State v. Ragland, 101 N.J. 33, 499 A.2d 1366 (1985). Reconsideration has not persuaded us to change that decision.

Defendant, Gregory Ragland, was convicted by a jury of conspiracy to commit armed robbery, unlawful possession of a weapon, and unlawful possession of a weapon without a permit. Another charge against him, possession of a weapon by a convicted felon ( N.J.S.A. 2C:39-7), was severed on defense counsel's motion in order to avoid the inevitable prejudice in the trial of the other charges that would be caused by introducing defendant's prior felony conviction, an essential element in the severed charge. The prior conviction was not admissible to impeach defendant's credibility, since he did not testify.

After the jury's guilty verdict, the severed charge was tried before the same jury. That jury had just convicted defendant of charges that necessarily included a finding that defendant was in "possession of a weapon." The severed charge, as noted above, was possession of a weapon by a convicted felon. Included in the trial court's instructions on the severed charge was the following:

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 ... 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. [Emphasis supplied.]

Defendant appealed, claiming that the foregoing portion of the instruction, in particular the emphasized part, deprived him of his right to a fair trial by jury since it amounted to an instruction to the jury not to consider independently the question of possession but rather to abide by its prior determination of that fact. Defendant's claim was that in effect the court was charging collateral estoppel on that issue. The Appellate Division affirmed, 198 N.J.Super. 330, 486 A.2d 1305 (1985), holding that the jury was free to make a new independent finding on the possession issue. We reversed and remanded the matter to the Appellate Division for reconsideration in light of State v. Collier, 90 N.J. 117, 447 A.2d 168 (1982), and State v. Ingram, 98 N.J. 489, 488 A.2d 545 (1985). 101 N.J. 251, 501 A.2d 923 (1985). On remand the Appellate Division again affirmed, holding that the jury instruction did not amount to a directed verdict on the possession element of the charge. 203 N.J.Super. 192, 496 A.2d 383 (1985). We again reversed, finding "that the unavoidable effect of the charge was to direct a guilty verdict" on the severed count, and remanded the matter for a new trial. 101 N.J. 33, 499 A.2d 1366 (1985). It is this last mentioned decision that we now reconsider, on the State's motion.

I.

This case presents 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. If defendant is convicted of unlawful possession of the weapon, the trial of the latter charge (possession by a convicted felon), unless most carefully handled, can amount to a prohibited directed verdict in a criminal case. This, because the jury has already found by its initial conviction that the defendant possessed a weapon. If that same jury is told, in the immediately following trial of the charge of possession by a convicted felon, that it need not concern itself with the question of possession since it has already found that fact by its prior conviction, the defendant is, in effect, deprived of that trial by jury to which he is entitled, namely, one in which the jury must find that the State has proved each and every material element of the crime beyond a reasonable doubt. See, e.g., State v. Grunow, 102 N.J. 133, 145 n. 5, 506 A.2d 708 (1986); State v. Toscano, 74 N.J. 421, 442-43, 378 A.2d 755 (1977). Absent careful instructions, the jury will have been told, in effect, that it need not find possession beyond a reasonable doubt because it has already found it in the prior trial.

Such a case, where conviction of unlawful possession is then followed, using the same jury, by a trial for possession by a convicted felon, is a charade in the absence of carefully limiting charges. Introduction of, or reference to, the same jury's unlawful possession conviction, coupled with admission of the prior felony conviction, leads to an almost guaranteed conviction of the crime of possession by a convicted felon. That such a conviction is clearly warranted is beside the point: the problem here is assuring that the defendant is given a fair trial.

The charges are severed for the protection of the defendant. Severance is customary and presumably automatic where it is requested because of the clear tendency of the proof of the felony conviction to prejudice trial of the separate charge of unlawful possession of a weapon. In State v. Ingenito, 87 N.J. 204, 432 A.2d 912 (1981), a different jury tried the second charge (possession by a convicted felon). It was given evidence of the prior jury's conviction of unlawful possession in such a manner, we found, as to amount to a direction that it must find possession. We deemed it the equivalent of collateral estoppel in a criminal case and found it improper. Id. at 213-17, 432 A.2d 912. We held that the second jury must clearly be instructed that it remains the State's burden to prove beyond a reasonable doubt, regardless of the prior conviction, that defendant possessed a weapon and, again beyond a reasonable doubt, that at that time he was a convicted felon. It was not enough to produce the prior conviction of unlawful possession; indeed, it was improper to do so.

Noting the waste that results when the issue of possession must again be proved before a new jury, we referred to the possibility of the same jury trying both counts sequentially, as suggested at that time by the Attorney General. Id. at 217 n. 6, 432 A.2d 912. That is what happened here. The same jury first found the defendant guilty of unlawful possession and thereafter, at a "new" trial, guilty of possession by a convicted felon. Obviously this same jury, having found possession beyond a reasonable doubt in the first trial, is strongly inclined to find it once again an hour later when the "new" trial starts on the charge of possession by a convicted felon. It becomes essential, therefore, that the jury be instructed in no uncertain terms to consider anew the evidence previously admitted but to disregard completely its prior verdict. That there is a certain make-believe quality in such an instruction must be conceded since it is most unlikely that the jury will indeed forget its prior verdict. Nevertheless, 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.

There is a cost, therefore, to this efficiency, for there is the possibility that the jury will not independently review the facts again on the issue of possession, since it has only recently found that to be a fact. That cost, however, seems preferable to the cost of trying the two charges together, with the wholly impermissible prejudice that the felony conviction can cause, or trying the two charges independently with two different juries, with the waste of everyone's time involved in re-introducing evidence that has already been admitted.

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 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. In this case not only was no such charge given, but the judge affirmatively reminded the jury that it had already found that the defendant possessed the weapon ("if you find that the defendant ... was in possession of a sawed-off shotgun, as you have indicated ..." (emphasis supplied)). Such a charge is manifestly improper, and no amount of reminder to the jury that it remains the State's burden to prove each element beyond a reasonable doubt will cure it. We need not determine whether this error was harmless beyond a reasonable doubt, for when the constitutional deprivation consists of a directed verdict, preservation of the integrity of the right to trial by jury requires reversal. Cf. State v. Collier, supra, 90 N.J. at 123, 447 A.2d 168 (directed verdict, affirmative finding that error was harmful).

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