For reversal and remandment -- Chief Justice Wilentz, and Justices Handler, Pollock, O'Hern and Garibaldi. For affirmance -- Justices Clifford and Stein. Clifford and Stein, JJ., dissenting.
This is a pesky case that strains judicial tolerance. The case would undoubtedly not have arisen had it not preceded our decision in State v. Ingram, 98 N.J. 489 (1985), which held that Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), requires the State to prove beyond a reasonable doubt all elements of its handgun control offense, N.J.S.A. 2C:39-5b, including the absence of a permit. The question will probably never arise again after Ingram. The case is before us on an appeal as of right because of a dissent in the Appellate Division. The single issue that divided the panel is whether the concededly erroneous instruction of the trial court with respect to the State's burden to prove the absence of a gun permit should be regarded as harmless error in what the majority below characterized as the "peculiar circumstances" of this case.
Everyone agrees that erroneous instructions are almost invariably regarded as prejudicial. Such errors are "poor candidates for rehabilitation under the harmless error philosophy." State v. Crisantos (Arriagas), 102 N.J. 265, 273 (1986) (quoting State v. Simon, 79 N.J. 191, 206 (1979)). The disagreement, then, is not over legal principles, but over application of the principles to the facts of this case.
The defendant was a bystander who became involved in a tavern brawl. The responding police officer lost his service revolver in the fracas. After taking one suspect to the station house, the police officer returned to the tavern to claim his revolver. He suspected that defendant, who had intervened in the brawl, might have it in his possession. He patted down the defendant, discovered the weapon, and arrested defendant for the theft of his service revolver.
The State indicted defendant for resisting arrest (in connection with the earlier fracas), second-degree robbery (the revolver), and possession of a firearm without a permit (the officer's service revolver). The jury convicted the defendant only of the illegal possession charge. The point on appeal here is that the trial court refused defense counsel's request to charge the jury that the State bore the burden of proving that the gun was unlicensed. The court instructed the jury that the State had the burden of proving only that the instrument was a handgun and that Vick possessed the handgun knowingly. Counsel objected to the comments of the court concerning the lack of evidence that Vick had a permit, and the court responded that absent defendant's showing that he had a permit, the State had no burden to prove the absence of a permit.
As noted, the case was tried before publication of our opinion in State v. Ingram, supra, 98 N.J. at 494-95, which held that the absence of a permit was an essential element of the offense.
On appeal, the Appellate Division, in an unpublished opinion, recognized that failure to charge with respect to the State's burden of proof on an essential element of a crime would be presumed to be reversible error. However, it found the error to be harmless beyond a reasonable doubt because the theory of the defense was that without any criminal intent, Vick had merely held the gun in safekeeping, intending to return it to the officer. The court concluded: "The distinctive fact is that the absence of a permit was inherent in the defense. Based upon the defense offered at trial, defendant could not possibly have
had a permit for the weapon." Consequently, it ruled that none of the defendant's rights could have been compromised. The dissenting member of the panel concluded that "when the constitutional deprivation consists of a directed verdict, preservation of the integrity of the right to trial by jury requires reversal" (quoting State v. Ragland, 105 N.J. 189, 196 (1986)). Cf. State v. Collier, 90 N.J. 117, 123 (1982) (directed verdict, affirmative finding that error was harmful). We disagree that this was a directed verdict in the same sense as in State v. Collier, in which the court actually directed the jury to find the defendant guilty. Rather, here we have a case in which the court erroneously failed to charge the jury with respect to the State's burden concerning one essential element of the offense.
We realize that it is difficult to explain why juries should be required to make a finding of what seems to be the obvious. The short answer is that there is simply no substitute for a jury verdict. The long answer is that the defense posed in this case did not inescapably posit guilt of the offense. Recall that in State v. Collier, supra, 90 N.J. 117, defendant had candidly admitted to having sexual relations with a minor child, contending only that it was consensual. Here the defendant consistently denied that the underlying possessory act was criminal. The defendant contested the quality of his possession as being within the scope of the regulatory act in that his possession was not an exercise of dominion over the gun, but merely a custodial attempt to return it to its owner. An example will suffice. What if the bartender had picked up the gun and held on to it until the officer returned? Would a jury be entitled to conclude that the Legislature did not intend to penalize such possession? The defendant claims that his possession was like the bartender's in that situation. It may seem specious and illogical that the jury would acquit the defendant of the regulatory offense when his theory of defense is that he possessed the weapon, but it is no more illogical than that a jury might acquit of statutory rape one who has asserted the defense of consent. See State v. Collier, supra, 90 N.J. 117.
We recently revisited the issue in State v. Crisantos ...