For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None.
On remand from this Court, the Appellate Division reaffirmed the defendant's conviction for possession of a weapon by a convicted felon, contrary to N.J.S.A. 2C:39-7. In its original decision, the Appellate Division summarized the relevant facts:
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 them 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.
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. * * *
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 ...