On appeal from the Superior Court of New Jersey, Law Division, Essex County.
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 (App.Div.1976), aff'd o.b. 75 N.J. 47 (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 ...