Before Judges Long, Kestin and Carchman.
The opinion of the court was delivered by: Long, P.j.a.d.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, l998
On appeal from Superior Court of New Jersey, Law Division, Ocean County.
On February 11, 1997, an Ocean County Grand Jury returned Indictment No. 97-02-143 charging that, on April 6, 1996, defendant Jose Alvarez committed the following indictable offenses: second-degree possession of a weapon (a firearm) for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (Count One); fourth-degree possession of a prohibited weapon (a dagger), contrary to N.J.S.A. 2C:39-3e (Count Two); fourth-degree possession of a weapon (a dagger) by a convicted person, contrary to N.J.S.A. 2C:39-7a (Count Three); second-degree possession of a weapon (a firearm) by a convicted person, contrary to N.J.S.A. 2C:39-7b (Count Four). Defendant was tried in a bifurcated proceeding pursuant to State v. Ragland, l05 N.J. l89 (l986), to avoid the prejudice which could occur when a single jury is called to try a case with several related indictable offenses that have overlapping possessory elements.
Prior to the phase one trial on Counts One and Two, the defendant moved, in limine, to preclude reference to a Parole Board arrest warrant, the execution of which resulted in his arrest. Defendant urged the prosecutor to tell the jurors that the police were at his house to "serve legal papers." The prosecutor claimed this was misleading and confusing, and was willing to delete only the fact that the warrant "was issued by the Parole Board to avoid any reference to prior convictions." He insisted upon reference to an "arrest warrant" in order to justify the police presence at defendant's residence.
"I have considered the matter . . . . The applicable rule is Rule 403 and the Court will handle it as follows: (1) The State will not be permitted to refer to a parole warrant. Any references to parole or the fact that Mr. Alvarez may have a prior record or be on probation or parole of any type will be avoided by the State in its case. And the purpose is that the jury need not know about the prior record of Mr. Alvarez and, in fact, the prejudicial value of that clearly would outweigh its probative value.
I will permit the State to refer to the fact that the police were there pursuant to an arrest warrant and reference will be limited to that alone . . . . It is merely being introduced to explain their presence at the scene and for that purpose alone. *fn1"
In brief, the testimony at the phase one trial was as follows:
On April 6, l996, members of the Lakewood Police Department went to l0l Coleman Avenue, Lakewood, to serve an arrest warrant on defendant. Detective John Marshall knocked on the front door and identified himself as a policeman. When the door was opened and Detective Marshall saw defendant running up the stairs, he ordered him to stop. Defendant was placed under arrest, handcuffed and was read the Miranda warnings. *fn2 He was then turned over to Patrolman Pugliese who transported defendant to police headquarters and initiated the booking process.
The police secured the second floor of the premises for a period of two to three hours, during which period they obtained a search warrant for the house, which was executed that evening. In a search, confined to defendant's bedroom, the police found a loaded gun; a picture of defendant's fiancee; a box containing ammunition, in the pocket of defendant's denim jacket; another box of ammunition, in a dresser; a shoulder holster with instructions; a dagger; a long double edged knife; and various mail addressed to defendant.
The State called Guy Barney, the owner of l0l Coleman Avenue, who lived there with defendant and Nigel Samaroo, in order to establish that the room in which the weapons were found was exclusively in defendant's control. Barney stated that although many people were in and out of the house regularly, basically no one else would go into defendant's room unless he was present. Barney also testified that the clothing in the room belonged to defendant. Barney acknowledged that Samaroo used to joke about having a gun but stated that he did not take him seriously. Barney also denied owning a gun or planting a gun in defendant's room.
Two statements by defendant were also admitted on the State's case. According to Patrolman Pugliese, while being booked at police headquarters, defendant told him that he had been "surprised" by the sudden arrival of the police and, if given the chance, would have gone for a weapon so that the police would "shoot him rather than take him to jail." At the Ocean County Jail following his arrest, according to Corrections Officer Kenneth Marshall, Director of the Recreation Department and the brother of Lakewood Detective John Marshall, defendant said, "if I had gotten to my gun, I would have taken your brother out."
The defense theory, as developed in the testimony of various witnesses, was that the premises in which defendant lived was a house for transients; that the room where the police recovered the guns and knives was not defendant's own bedroom, per se; that numerous people had access to the room; that there was no scientific evidence linking the guns and knives to defendant; and that defendant's roommates were angry with him so they made an "anonymous" call to the police and planted the gun in defendant's room to get him arrested and out of the house.
At the end of this testimony, defendant was acquitted on Count One (possession of firearm for an unlawful purpose) and convicted on Count Two (possession of a dagger). Because no special verdict form was used, it is impossible to tell whether the State failed to prove possession or unlawful purpose on Count One.
Prior to the beginning of the phase two trial (Counts Three and Four for possession of weapons by a convicted felon), defense counsel made four requests of the trial Judge. First, he asked for an instruction making it clear that, pursuant to N.J.R.E. 404(b) (formerly Evid. R. 55), the prior convictions are not to be used by the jury to show that defendant is a bad person or otherwise predisposed toward crime. Next, he asked to stipulate that defendant had the requisite convictions under N.J.S.A. 2C:39-7b and was not contesting that element, but, rather, was merely challenging the "possession" element of the crimes. The purpose of this request was to keep the details of defendant's prior convictions from the jury. Alternatively, he asked the Judge to exclude any reference in the jury charge or otherwise to the armed nature of the defendant's prior robbery conviction, because an unarmed robbery is also a qualifying conviction under N.J.S.A. 2C:39-7. Finally, he requested that the jury not be told to disregard its prior verdicts in the case and, thus, also not be told to "deliberate anew." The Judge denied all four applications and ruled that to prove defendant's status, three Judgments of Conviction (armed robbery, escape, distribution of CDS) would be admitted. Thereafter, Detective Marshall and Patrolman Pugliese were called to testify. Their testimony essentially replicated that which was elicited in the phase one trial. The Judgments of Conviction were admitted. Defendant was found guilty on both counts.
After merging the conviction on Count Two with the conviction on Count Three, the trial Judge sentenced defendant as follows: on Count Four, to an extended custodial term of 16 years, eight without parole; and on Count Three, to a concurrent custodial term of 18 months, nine without parole. Defendant was also ordered to pay a $150 Violent Crimes Compensation Board penalty, and a $150 Safe Neighborhood Services Fund penalty.
Defendant appeals, contending that the following errors warrant reversal:
THE JURY INSTRUCTIONS ON THE SECOND-DEGREE CRIME OF POSSESSION OF A WEAPON BY A CONVICTED PERSON, N.J.S.A. 2C:39-7b, WERE PLAGUED BY NUMEROUS ERRORS, ALL BROUGHT TO THE ATTENTION OF THE TRIAL JUDGE, BUT IGNORED BY HIM.
A. N.J.S.A. 2C:39-7 Should Not Be Charged To A Jury Without A Standard Instruction That The Evidence Of The Defendant's Prior Convictions Is Admitted Solely As It Bears On An Element Of The Offense And Not To Show The Defendant's PreDisposition To Criminal Conduct.
B. Defense Counsel's Offer To Stipulate To The Existence Of The Prior Convictions And Then Sanitize Them Should Have Been Accepted.
C. Defendant's Request To Have The Word "Armed" Deleted From The Defendant's Prior Robbery Conviction Should Have Been Granted.
D. Defendant's Request, Pursuant To State v. Ragland, To Forego The "Ignore Your Prior Verdict And Deliberate Anew" Language Of A Ragland Jury Instruction Should Have Been Granted.
THE STATE IMPROPERLY REFERRED TO THE EXISTENCE OF A SEARCH WARRANT PURSUANT TO STATE v. MILTON. (Not Raised Below).
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
We have carefully reviewed this record in light of these contentions and have concluded that a series of errors, alone and in combination, infected these proceedings and denied defendant a fair trial. We thus reverse and remand for a new trial. This ruling makes it unnecessary to address the sentencing issue raised in Point III of defendant's brief.
We begin our analysis with defendant's arguments addressed to the phase one trial. He contends that the reference to a search warrant in the police testimony violated State v. Milton, 255 N.J. Super. 514 (l992). We note that this issue was not raised below and thus must be evaluated under the standard of R. 2:l0-2, i.e., was it clearly capable of producing an unjust result. We think it was.
Two warrants were paraded before the jury in this case: a Parole Board arrest warrant and a search warrant for l0l Coleman Avenue. The Judge agreed to eliminate references to the Parole Board because it would reveal that defendant had served jail time for a crime. He ruled however that the arrest warrant could be cited as the basis for the police presence at l0l Coleman Avenue. As a result, the following statements were elicited by the State at trial:
Q. [to Detective Marshall] And what were you dispatched to 101 Coleman Avenue to do?
A. Serve an arrest warrant on Jose Alvarez.
Q. [to Officer Pugliese] What was the purpose of your being dispatched there?
A. To assist in a warrant arrest.
Q. [to Detective Mooney] What was the purpose of being dispatched to that address? A. To ...