State v. Brown

Justice ALBIN,

dissenting.

In exercising our supervisory responsibilities over the practice and procedure of the courts, our goal must be to design rules that make trials not only efficient, but also fair. The Court’s ruling forbidding the bifurcation of issues in a ease involving possession of a weapon by a convicted person sacrifices fairness without any measurable increase in efficiency, and renders toothless our decision in State v. Ragland, 105 N.J. 189 , 519 A2d 1361 (1986). For that reason, I dissent and add these words to the well-reasoned opinion of the Appellate Division, which the Court today overrules.

A Monmouth County Grand Jury indicted Kevin Brown with possession of a handgun without having a carrying permit, N.J.S.A. 2C:39-5b (a third-degree crime), and possession of a firearm by a person previously convicted of a crime, N.J.S.A. 2C:39-7b (a second-degree crime). The only contested issue was whether Brown, in fact, possessed the weapon. Brown did not deny that he had a prior criminal conviction. Over the State’s objection, the trial court ordered that the possession charge be tried first to keep Brown’s prior conviction from prejudicing the jury’s fair consideration of that issue. Displeased with that ruling, the State moved to dismiss the possession charge and, in granting that motion, the court bowed to the State’s authority to decide which charges to prosecute. The State then successfully resisted Brown’s motion to bifurcate the trial on the charge of possession of a weapon by a convicted person, which would have allowed the *587 possession element to be resolved before the jury learned of Brown’s criminal conviction.

The State must have concluded that its chance of securing a conviction increased exponentially if the jury heard that Brown was a convict. The State apparently understood the prejudicial impact that such evidence would have on the minds of the jurors. It apparently understood that no juror would consider the issue of possession free of the taint of the conviction.

In our jurisprudence we must indulge the notion that limiting instructions can be followed in certain circumstances. However, as Justice Brennan recognized in Bruton v. United States, “there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” 391 U.S. 123, 135 , 88 S.Ct. 1620, 1627 , 20 L.Ed.2d 476, 485 (1968). This is one such case in which the trial court’s limiting instruction simply was ineffectual. The use of limiting instructions is a necessary device to cushion the impact of evidence that is relevant and admissible, but also highly prejudicial. Id. at 135 , 88 S.Ct. at 1627 , 20 L.Ed.2d at 484-85 . Clearly, the better way, whenever possible, is to remove the prejudice entirely. Id. at 133-34 , 88 S.Ct. at 1626-27 , 20 L.Ed.2d at 483-84 . That simple end could have been achieved by a bifurcated trial — by having the State prove possession of the gun first and, if the jury found that element beyond a reasonable doubt, then having the State prove that Brown had a criminal— conviction a point he did not dispute.

The Appellate Division reversed Brown’s conviction because the trial court did not bifurcate the issues at trial, resting its decision on our opinion in Ragland . The panel realized the futility of the limiting instruction, which told the jury that, on the one hand, Brown was convicted of a crime and, on the other hand, that it should not infer from that fact that he is “a bad person” or “that he must have committed [the present offense].” The mental gymnastics required of jurors in this case to regard only for some *588 limited purpose the most inflammatory piece of evidence burned in their memory — strains the power of human reason and the good faith of the best-intentioned juror. Id. at 134 n. 8, 88 S.Ct. at 1627 n. 8, 20 L.Ed.2d at 483 n. 8 (quoting Nash v. United States, 54 F.2d 1006, 1007 (2nd Cir.) (Hand, J.), cert. denied, 285 U.S. 556 , 52 S.Ct. 457 , 76 L.Ed. 945 (1932)). The panel also realized that there was a more equitable way to try the case that would have vindicated both the State’s and defendant’s right to a fair trial. That fair-minded approach was articulated by Chief Justice Wilentz in Ragland .

In Ragland, supra, this Court stated that when a defendant is charged with both unlawful possession of a weapon without a permit and possession of a weapon by a convicted person, “[t]he 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.” 105 N.J. at 193 , 519 A.2d at 1363 . The Court noted that “[t]he 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.” Id. at 194 , 519 A.2d at 1363 .

There is no reason not to apply the Ragland rationale to this case. All that distinguishes the above formulation in Ragland from the present case is that here the possession of the weapon and the prior criminal conviction are elements of the same offense. This Court did not find it acceptable to allow a prior criminal conviction to prejudice consideration of a gun possession charge in Ragland . I do not see any reason why the Court should do so here. The practical effect of the Courts decision is that in a close ease, in order to elude the requirements of Ragland , the State will never again charge a defendant in a two-count indictment with possession of a firearm and possession of a firearm by a convicted person.

*589 The trial court could have proceeded in two steps with the use of special interrogatories, a device that is not foreign to our jurisprudence. The trial court could have advised the jury that Brown was charged with unlawfully possessing a handgun and that there were two issues for its consideration. The Court could have explained that the jury would first determine whether Brown actually or constructively possessed the handgun and, if it found that he did, then the second issue would be presented for its consideration. I fail to see the unfairness to the State if it first had to prove that Brown possessed the handgun, without introduction of the criminal conviction. Brown’s criminal conviction was not relevant to the question whether he possessed the weapon, but it had the clear capacity to prejudice a fair answer to that question.

The Court states that a shortcoming in this approach is that the trial court cannot voir dire the jury on the prior criminal conviction. However, that was a choice for defendant and not a difficult one at that because he was willing to stipulate to the conviction.

The Court takes the beaten path, the path followed by a number of other jurisdictions. It is not, in my estimation, a path that leads to a fair resolution of the issues in this case. The out-of-state cases cited by the Court are entitled to our thoughtful consideration, but nothing more, unless they persuade. I am not persuaded that trying the issue of possession separately from the prior conviction however — novel it may be when applied to a single charge — is impractical or inconsistent with our jurisprudence. I am persuaded — particularly in a case in which the evidence is closely poised, as here — that a two-step trial is the approach most in keeping with the fair administration of justice. For that reason, I respectfully dissent.