King, J.c.c., Temporarily Assigned.
Defendant here is charged in a seven-count indictment and moves prior to trial for a severance of the final count on the grounds of prejudicial joinder. The relevant rules state:
Rule 3:7-6 -- Joinder of Offenses
Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged, whether high misdemeanors or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.
Rule 3:15-2 -- Relief from Prejudicial Joinder
(b) Motion by defendant and State.
If for any other reason it appears that a defendant or the State is prejudiced by a joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief.
Counts one through six charge defendant with various criminal acts alleged to have occurred on March 1, 1975 in Pennsauken Township, Camden County. The charges are possession of a revolver in a public place (N.J.S.A. 2A:151-41(a); possession of a revolver while on a school premises (N.J.S.A. 2A:151-41.1); possession of a deadly weapon with intent to use same unlawfully against another (N.J.S.A. 2A:151-56); assault with intent to kill (N.J.S.A. 2A:90-2); assault while armed (N.J.S.A. 2A:151-5), and atrocious assault and battery (N.J.S.A. 2A:90-1). The final count charges defendant with being a person in possession of a firearm after having previously been convicted of a crime (N.J.S.A. 2A:151-8).
The shooting is asserted to have occurred on the parking lot of the Bishop Eustace High School in Pennsauken following a closely played and important basketball game between Atlantic City High School and Camden High School. The game was played at Bishop Eustace, a neutral court,
because of anticipated disruptive conduct were the game to have been played on one of the contestant's home courts. A firearm was discharged from a chartered bus filled with Atlantic City rooters into the body of Calvin Cook, a student of Camden High School. Cook is a popular and well known member of the Camden High School community who was recently honored as an All South Jersey football player. The accused is a resident of Atlantic City. Defendant here stresses that in light of the entire atmosphere of the case, including trial in the home county of the victim, joinder of the final count generates a probability of undue prejudice. The prior conviction of this defendant involved possession of cocaine.
The federal due process clause does not presently appear to require severance here as a matter of federal constitutional right. Spencer v. Texas , 385 U.S. 554, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967). In Spencer the United States Supreme Court considered appeals from three unrelated Texas state court convictions. Petitioners had been convicted of various primary charges and were subjected to enhanced punishment on the basis of Texas' habitual criminal statutes. Through allegations in the indictments and introduction of evidence of prior convictions the jurors were fully informed of defendant's past records of crime but were instructed to disregard such information in adjudicating guilt or innocence on the primary charges.
In Spencer (No. 68) petitioner was indicted for murdering with malice his common law wife. The indictment charged, and the state proved, that petitioner had previously been convicted of murder with malice. The proof of the prior murder entitled the jury to sentence defendant to death or to prison for not less than life. If a prior malicious murder conviction were not proven, ...