On a rehearing of the judgment of this Court reported at 101 N.J. 33 (1985).
For reversal -- Chief Justice Wilentz, and Justices Clifford, Garibaldi, Stein, Handler, Pollock and O'Hern. For affirmance -- none. The Opinion of the Court was delivered by Wilentz, Chief Justice. Handler, J., concurring in part and dissenting in part. Justices Pollock and O'Hern join in this opinion. Handler, Pollock and O'Hern, JJ., concurring in result.
In this matter we reconsider, pursuant to the State's motion, our decision reversing the judgment of the Appellate Division and remanding the matter to the trial court for a new trial, State v. Ragland, 101 N.J. 33 (1985). Reconsideration has not persuaded us to change that decision.
Defendant, Gregory Ragland, was convicted by a jury of conspiracy to commit armed robbery, unlawful possession of a weapon, and unlawful possession of a weapon without a permit. Another charge against him, possession of a weapon by a convicted felon (N.J.S.A. 2C:39-7), was severed on defense counsel's motion in order to avoid the inevitable prejudice in the trial of the other charges that would be caused by introducing defendant's prior felony conviction, an essential element in the severed charge. The prior conviction was not admissible to impeach defendant's credibility, since he did not testify.
After the jury's guilty verdict, the severed charge was tried before the same jury. That jury had just convicted defendant of charges that necessarily included a finding that defendant was in "possession of a weapon." The severed charge, as noted above, was possession of a weapon by a convicted felon. Included in the trial court's instructions on the severed charge was the following:
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. . . 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. [Emphasis supplied.]
Defendant appealed, claiming that the foregoing portion of the instruction, in particular the emphasized part, deprived him of his right to a fair trial by jury since it amounted to an
instruction to the jury not to consider independently the question of possession but rather to abide by its prior determination of that fact. Defendant's claim was that in effect the court was charging collateral estoppel on that issue. The Appellate Division affirmed, 198 N.J. Super. 330 (1985), holding that the jury was free to make a new independent finding on the possession issue. We reversed and remanded the matter to the Appellate Division for reconsideration in light of State v. Collier, 90 N.J. 117 (1982), and State v. Ingram, 98 N.J. 489 (1985). 101 N.J. 251 (1985). On remand the Appellate Division again affirmed, holding that the jury instruction did not amount to a directed verdict on the possession element of the charge. 203 N.J. Super. 192 (1985). We again reversed, finding "that the unavoidable effect of the charge was to direct a guilty verdict" on the severed count, and remanded the matter for a new trial. 101 N.J. 33 (1985). It is this last mentioned decision that we now reconsider, on the State's motion.
This case presents the unique problem that arises when a defendant is charged at the same time with unlawful possession of a weapon and possession of a weapon by a convicted felon. The 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. If defendant is convicted of unlawful possession of the weapon, the trial of the latter charge (possession by a convicted felon), unless most carefully handled, can amount to a prohibited directed verdict in a criminal case. This, because the jury has already found by its initial conviction that the defendant possessed a weapon. If that same jury is told, in the immediately following trial of the charge of possession by a convicted felon, that it need not concern itself with the question of possession since it has already found that fact by its prior conviction, the defendant is, in effect, deprived of that trial by jury to which he is entitled, namely, one in which the jury must
find that the State has proved each and every material element of the crime beyond a reasonable doubt. See, e.g., State v. Grunow, 102 N.J. 133, 145 n. 5 (1986); State v. Toscano, 74 N.J. 421, 442-43 (1977). Absent careful instructions, the jury will have been told, in effect, that it need not find possession beyond a reasonable doubt because it has already found it in the prior trial.
Such a case, where conviction of unlawful possession is then followed, using the same jury, by a trial for possession by a convicted felon, is a charade in the absence of carefully limiting charges. Introduction of, or reference to, the same jury's unlawful possession conviction, coupled with admission of the prior felony conviction, leads to an almost guaranteed conviction of the crime of possession by a convicted felon. That such a conviction is clearly warranted is beside the point: the problem here is assuring that the defendant is given a fair trial.
The 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. In State v. Ingenito, 87 N.J. 204 (1981), a different jury tried the second charge (possession by a convicted felon). It was given evidence of the prior jury's conviction of unlawful possession in such a manner, we found, as to amount to a direction that it must find possession. We deemed it the equivalent of collateral estoppel in a criminal case and found it improper. Id. at 213-17. We held that the second jury must clearly be instructed that it remains the State's burden to prove beyond a reasonable doubt, regardless of the prior conviction, that defendant possessed a weapon and, again beyond a reasonable doubt, that at that time he was a convicted felon. It was not enough to produce the prior conviction of unlawful possession; indeed, it was improper to do so.
Noting the waste that results when the issue of possession must again be proved before a new jury, we referred to the
possibility of the same jury trying both counts sequentially, as suggested at that time by the Attorney General. Id. at 217 n. 6. That is what happened here. The same jury first found the defendant guilty of unlawful possession and thereafter, at a "new" trial, guilty of possession by a convicted felon. Obviously this same jury, having found possession beyond a reasonable doubt in the first trial, is strongly inclined to find it once again an hour later when the "new" trial starts on the charge of possession by a convicted felon. It becomes essential, therefore, that the jury be instructed in no uncertain terms to consider anew the evidence previously admitted but to disregard completely its prior verdict. That there is a certain make-believe quality in such an instruction must be conceded since it is most unlikely that the jury will indeed forget its prior verdict. Nevertheless, the defendant is entitled to that instruction for on the "new" trial, the defendant is entitled to the presumption of innocence and, as a consequence of that, to an instruction that each and every material fact that makes up the crime, including obviously the fact of possession, must be proven by the State beyond a reasonable doubt.
There is a cost, therefore, to this efficiency, for there is the possibility that the jury will not independently review the facts again on the issue of possession, since it has only recently found that to be a fact. That cost, however, seems preferable to the cost of trying the two charges together, with the wholly impermissible prejudice that the felony conviction can cause, or trying the two charges independently with two different juries, with the waste of everyone's time involved in re-introducing evidence that has already been admitted.
What is needed in such a matter is a strong instruction to the jury to disregard its prior verdict of possession (for nothing short of that will suffice -- unless defendant affirmatively requests that such charge not be given), advising the jury that it is the State's burden to prove that fact beyond a reasonable doubt, allowing the jury, however, to consider the
evidence that had previously been brought before it on the possession charge. In this case not only was no such charge given, but the judge affirmatively reminded the jury that it had already found that the defendant possessed the weapon ("if you find that the defendant . . . was in possession of a sawed-off shotgun, as you have indicated. . ." (emphasis supplied)). Such a charge is manifestly improper, and no amount of reminder to the jury that it remains the State's burden to prove each element beyond a reasonable doubt will cure it. We need not determine whether this error was harmless beyond a reasonable doubt, for when the constitutional deprivation consists of a directed verdict, preservation of the integrity of the right to trial by jury requires reversal. Cf. State v. Collier, supra, 90 N.J. at 123 (directed verdict, affirmative finding that error was harmful).
For that reason we remanded the case to the Appellate Division, citing Collier and Ingram, and for that reason we again reversed, after the Appellate Division again affirmed the conviction, remanding to the trial court for a new trial, which ruling we now decline to disturb on reconsideration.
We referred to Collier in our reversals because in that case there was an explicit direction of a verdict of guilty. We referred to Ingram since it was another instance where the risk of a result similar to a directed verdict required a clear charge concerning the State's burden of proving each element of the crime (statutory presumption of no weapons permit does not release State of burden of proof). We were also disturbed by the use of the word "must" in this context, when, immediately after advising the jury that it had "indicated" possession by its prior verdict, the trial judge said "then you must find him guilty as charged by this court." Since our opinion (101 N.J. 33) was followed by our request to our Committee on Model Criminal Jury Charges to conform those charges to that opinion, our opinion in the case was generally understood as prohibiting instructions in
any criminal case that "you must find him guilty as charged by this court." It was this reading of our opinion that caused the Attorney General (supported by the County Prosecutors Association) to request reconsideration, and it was this issue that was practically the exclusive subject of briefing and oral argument on the reconsideration motion. It is noteworthy that up until that time, defendant had never contended that the use of such language was improper. That is not surprising, for such language is often found in criminal charges in this state, and as far as we know, has always been found acceptable. See, e.g., State v. Grunow, supra, 102 N.J. at 145 (quoting model jury charge using clause "then you must find the defendant guilty of manslaughter"); State v. Headley, 113 N.J.L. 335, 337 (Sup.Ct.1934) (quoting with approval jury charge including clause "then you must find the defendants guilty as charged"); State v. Agnesi, 92 N.J.L. 638, 639-40 (E. & A.1919) (Walker, Chancellor, concurring) (approving charge instructing jury that " they could not under any circumstances acquit [defendant], but must find him guilty of manslaughter at least " (emphasis in original)). What was surprising was this Court's apparent intent to prohibit such language in the future.
We have considered this new issue and conclude that use of the word "must" is not erroneous in this charge and in other jury charges. The question has not often been clearly litigated. Nonetheless, federal and state courts have held, albeit sometimes in dicta, that the use of "must" in a jury charge is appropriate. See, e.g., Killian v. United States, 368 U.S. 231, 82 S. Ct. 302, 7 L. Ed. 2d 256 (1961) (noting instruction to jury that if it found "that the Government has sustained [its] burden . . . beyond a reasonable doubt . . . then you must find the defendant guilty"); Sparf v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343 (1894) (quoting with approval instruction to jury that "if you believe the evidence in the whole case, you must find the defendant guilty"); United States v. Cunningham, 423 F.2d 1269 (4th Cir.1970) (holding that instructing a jury "you must find the defendant guilty" was not reversible [105 NJ Page 198] error in light of the totality of the jury charge); Watts v. United States, 362 A.2d 706 (D.C.Ct.App.1975) (holding that "must find defendant guilty" did not improperly direct a verdict); Baker v. United States, 324 A.2d 194, 199-200 (D.C.Ct.App.1974) (Harris, J., concurring) ("must find defendant" guilty, held not to improperly direct a verdict); State v. Devoe, 301 A.2d 541 (Me.1973) (instruction that jury " must find that the assault was a high and aggravated assault," did not deprive jury of its function of determining the degree of the homicide (emphasis in original)); Straughter v. State, 247 A.2d 202 (Del.1968) (instruction to jury that it "must" return verdict of murder in second degree did not impinge on jury's function to determine gravity of the offense). But see United States v. Hayward, 420 F.2d 142 (D.C.Cir.1969) (holding that instruction that jury, if convinced beyond a reasonable doubt, "must find the defendant guilty" was improper even if it was "an honest oversight" by court; such instruction impinged on jury's function); Billeci v. United States, 184 F.2d 394 (D.C.Cir.1950) (holding inter alia that use of "must find the defendant guilty" was improper; proper instruction required "should"); People v. Gillespie, 54 Mich.App. 419, 221 N.W. 2d 246 (1974) (holding that instructing a jury that under Michigan law "you must find . . . the defendant . . . [guilty] . . . you have no discretion to reach a contrary decision" was reversible error).*fn1
What emerges from this authority is that the United States Constitution does not appear to invalidate such a charge;*fn2 that state authority is divided -- although, on balance, sustaining its propriety; and that New Jersey has never clearly decided the issue. We therefore examine what rule best serves the interests involved in the right to trial by jury.*fn3
It is conceded that the "must" charge is widely used in New Jersey and has been as long as anyone can remember. Defendant refers to the instructions as "commonly used in this jurisdiction" and acknowledges that the "must" charge is found in our model jury charges -- frequently, we might add. Defendant calls it "our current system of instructing jurors." We agree. While our review, for this purpose, of jury charges in criminal matters recently before us, as well as our recollection, indicates a great variety in the language used to instruct a jury concerning
its responsibilities, the "must find him guilty" format is there in abundance. And so are many other formulations.*fn4
The defendant would require a charge that states, in effect, that if the jury does not find a, b and c beyond a reasonable doubt, it must find defendant not guilty, but that if it does find a, b and c beyond a reasonable doubt, then it may find defendant guilty.*fn5 In support of this change in present practice, defendant contends that the jury's power of nullification -- the unquestioned power of the jury to acquit with finality no matter how overwhelming the proof of guilt -- is an essential attribute of a defendant's right to trial by jury; that use of the word "must" conflicts with that attribute, for it incorrectly advises the jury that if it finds the proof of guilt beyond a reasonable doubt it must convict, whereas the truth is that it need not do so, it may, in fact, acquit; that "must" convict, therefore, should never be used. While noting that the word "should" "is
better than 'must,'" defendant would also prohibit the use of that word in connection with the guilty charge since when the court says it "should" convict, the jury will believe that the court means it "must."
While defendant's arguments suggest that the ultimate object is to assure that the jury is not impeded by this coercive language from performing its proper role, the effect of the change is somewhat different. Its only effect, its only tendency, is to make it more likely that juries will nullify the law, more likely, in other words, that no matter how overwhelming the proof of guilt, no matter how convinced the jury is beyond any reasonable doubt of defendant's guilt, despite the law, it will acquit. Even without an explicit charge on the power of nullification, the jury must understand from this contrasting language (must acquit but may convict) that it is quite properly free, and quite legally free (since it is the court who is telling it "may") to acquit even if it is convinced beyond a reasonable doubt of defendant's guilt. Whether the contrast is as clear as "must" and "may," or is expressed in some other way (e.g., "you are authorized to find the defendant guilty," "a guilty verdict would be considered valid or proper," "you have the responsibility to return a guilty verdict," "the State is entitled to the return of a guilty verdict" -- all contrasting with "you must acquit"), the message, intended by the charge and so understood by the jury, is that you have the power to nullify and it is permissible for you to do so.
This change in our settled practice, this attempt to modify our present instructions to the jury in order to allow for the uninhibited, robust, exercise of its nullification power, is not commanded by the United States Constitution, the New Jersey Constitution, any statute, or by the common law. The implication of defendant's argument is that the use of the word "must" in this connection violates both his federal and state constitutional rights, since the protected right -- nullification -- is ...