On appeal from Superior Court, Law Division, Cumberland County.
Fritz, Bischoff and Morgan. The opinion of the court was delivered by Morgan, J.A.D.
Defendant was charged in two separate indictments with possession of a firearm by a person convicted of a crime (N.J.S.A. 2A:151-8) and with homicide while armed (N.J.S.A. 2A:112-1, 2A:113-2, 2A:151-5). Upon the State's motion, without defendant's objection, the two indictments were consolidated for trial before a jury. Defendant was thereafter convicted of manslaughter and of being a convicted felon in possession of a gun. Subsequently, he was convicted of being an habitual offender, an accusation to which he had pleaded guilty.
At all times defendant admitted that he had shot the victim, Richard Cervini, but contended that the killing resulted from an accidental discharge of his pistol. The State contended, on the other hand, that the killing was premeditated and deliberate, and as proof of motive adduced evidence suggesting animosity between defendant and the deceased. On the issue of whether the homicide was accidental, as defendant contended, or at least the result of reckless and criminally negligent conduct constituting manslaughter, as the State contended, the parties introduced conflicting experts' testimony concerning the characteristics of the murder weapon. The jury, however, rejecting the contention that the homicide was intentional in nature, acquitted defendant of both first and second degree murder. By their verdict of involuntary manslaughter, they evidenced their conclusion beyond a reasonable doubt that the homicide was the results of defendant's reckless and criminally negligent conduct.
Fundamental to this appeal is defendant's contention that plain error occurred when the trial judge granted the State's motion for a joint trial of the charges of murder and possession of a weapon by a convicted felon.*fn1 That such a joint trial
was error is clear. State v. Middleton , 143 N.J. Super. 18 (App. Div. 1976), aff'd o.b. 75 N.J. 47 (1977), decided after trial of this case, so holds. Our concern then is merely with the determination as to whether or not this error was of such magnitude as to constitute plain error.
Resolution of this issue is a matter not free from difficulty. On the one hand, one could conclude, with some justification, that jury knowledge of defendant's prior record, in this case possession of marijuana and two convictions for breaking and entry, played no role in the jury's choice between involuntary manslaughter and homicide by misadventure because both options lack the element of intentional conduct. Knowledge of prior convictions, interdicted as the basis of an inference of criminal predisposition, would logically have little influence in the choice between unintentional acts.
We need not, however, decide whether jury knowledge of defendant's prior convictions by itself constituted plain error because the record discloses that the jury was actually invited to consider defendant's status as a "convicted felon" in determining the credibility of his statement to the police despite his election not to testify at trial and as bearing on his guilt or innocence of the murder charge. Our review of the State's summation discloses three instances in which the prosecutor unprofessionally and inexcusably referred to defendant's prior convictions which had been admitted solely with respect to the weapons charge, in order to support defendant's guilt of murder.
The prosecutor used defendant's prior criminal record to portray defendant as a man with a propensity toward crime and hence dangerous:
Now, Meredith Foden got on the witness box, and believe me she was scared when the police first talked to her, wasn't she? She was scared to death. And she was afraid of being arrested and she said
she was afraid of Mr. Williams, and from what you have heard in this case, wouldn't you ladies and gentlemen be afraid of Mr. Williams? A man who has a reputation for brandishing a loaded gun at all times, who fires them ...