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State v. Brown

August 05, 2004

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
KEVIN BROWN, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 362 N.J. Super. 62 (2003).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue presented here is whether the trial court followed proper procedures in trying defendant, Kevin Brown, on the sole offense of possession of a weapon by a convicted felon. Previously, in State v. Ragland, this Court held that when a defendant is charged simultaneously with unlawful possession of a weapon and possession of a weapon by a convicted felon, the two charges must be tried separately because 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.

This appeal stems from an incident in Asbury Park, New Jersey. In responding to a request for assistance at 304 Fourth Avenue, Sergeant Terrence Fellenz observed a man, later identified as Kevin Brown, who matched the description of the subject of the dispatch. Mr. Brown was straddling a bicycle and talking to two other men. As Sergeant Fellenz approached, Mr. Brown placed his hands on the handlebars of the bicycle as if to leave. Sergeant Fellenz instructed him to stop. Mr. Brown dropped the bike, turned, walked away, reached under his sweatshirt, and extended his right hand toward a pillar. Sergeant Fellenz drew his weapon and ordered Mr. Brown to show his hands but not to turn around. Mr. Brown raised his hands, turned around, and began to approach Sergeant Fellenz. A search of Mr. Brown disclosed no weapon but a search of the area revealed a loaded handgun in a grassy area behind one of the pillars.

Mr. Brown was indicted for third-degree unlawful possession of a weapon (count one) and second-degree possession of a weapon by a convicted person (count two). The latter charge resulted from his prior convictions, which included a manslaughter conviction. Prior to trial, the State informed the court that although the two counts had to be severed for trial pursuant to our decision in State v. Ragland, it intended to try count two first because it was the more serious charge. The trial court ordered the State to proceed first on count one. The prospective jurors were informed that Mr. Brown was charged with unlawful possession of a weapon. After the jury was selected and excused for the day, the State moved to dismiss count one, leaving only the possession-of-a-weapon-by-a-convictedperson count for trial. The trial court granted the State's motion. Before trial commenced, the court explained to the jury that although it had previously stated that the charge was possession of a weapon, in fact it was possession of a weapon by someone who has been previously convicted of a crime. The trial court asked the jury whether the fact of Mr. Brown's prior record would affect the jurors' ability to be fair and impartial on the possession issue. All the jurors answered that they still could be fair.

The jury found Mr. Brown guilty of possession of a weapon by a convicted person. Thereafter, the trial court sentenced Mr. Brown to an extended term as a persistent offender and imposed a ten-year prison term with five years of parole ineligibility.

The Appellate Division reversed the conviction, holding that when the State elects to proceed solely on a possession by a convicted felon charge, the issue of possession must be tried first, absent any knowledge by the jury of the defendant's prior conviction. We granted certification.

HELD: The trial court properly tried the sole count of possession of a weapon by a convicted person without bifurcation of the elements of that offense.

1. The overwhelming majority of other jurisdictions conclude that a convicted person is not entitled to a bifurcated jury trial and that the jury should be presented with evidence on each element of the offense during one undivided trial. The holdings in the two federal court decisions discussed in this opinion and their supporting analyses undergird other federal decisions concluding that trial courts should not bifurcate felon-in-possession charges. Several state courts have echoed the holdings of the above federal decisions. We are in accord with the majority view that the elements of an offense should be tried in a unitary trial in which prejudice is minimized by appropriate curative instructions. (Pp. 8-14)

2. We are mindful of the obvious potential for prejudice that the evidence of a prior felony conviction might have in any case. However, since Ragland, our case law has continued to reinforce the principle that appropriate limiting instructions balance the State's efforts to present relevant evidence against a defendant's right to a fair trial. Rather than expand Ragland to include the sole charge circumstance, we are satisfied that strong limiting instructions regarding prior-crimes evidence will protect a defendant against unfair prejudice at trial. (Pp.15-16)

3. Parsing the elements of the offense here to remove entirely the element of a prior conviction in the first stage of a bifurcated trial would give jurors a stilted picture contrary to what our case law requires. The better approach, and an approach more in keeping with the Legislature's design of the statute, is to keep prosecution of the possession of a weapon by a convicted felon offense intact in a unitary proceeding so long as an appropriate limiting instruction is given to reduce the risk of undue prejudice tainting the jury's work. (P. 16)

4. Any potential for prejudice can be ameliorated by the sanitization of the felony conviction underlying the weapons offense. In Old Chief v. United States, the United States Supreme Court held that when the prosecution must prove felony-convict status as an element of a crime charged, the most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that bar a convict from possessing a gun, and this point may be readily made in a defendant's admission and underscored in the court's jury instructions. If a defendant stipulates to the offense, the jury need be instructed only that defendant was convicted of a predicate offense. If the defendant does not stipulate, then the trial court should sanitize the offense or offenses and limit the evidence to the date of the judgment. (Pp.16-18)

5. The trial court took appropriate measures to ensure Mr. Brown would receive a fair trial. First, the court inquired of the prospective jurors whether Mr. Brown's status as a convicted felon would affect their ability to be fair and impartial in determining the possession of a weapon offense. Second, Mr. Brown's prior conviction was sanitized by his stipulation that he fell within the class of persons not permitted to possess a weapon under the statute. Thus, the jury was not informed of any specifics regarding the prior conviction. Moreover, during summation both defense counsel and the prosecutor focused on the issue of possession rather than the prior conviction. Lastly, the trial court gave limiting instructions, emphasizing that the jury could not use the prior conviction to infer that Mr. Brown more than likely possessed the weapon in the current offense. The trial court properly tried the sole count of possession of a weapon by a convicted person without bifurcation of the elements of that offense. (Pp. 18-19)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Appellate Division to consider defendant's arguments that were not considered on direct appeal.

JUSTICE ALBIN filed a separate dissenting opinion in which JUSTICE ZAZZALI joins. He is of the view that forbidding the bifurcation of issues in a case involving possession of a weapon by a convicted person sacrifices fairness without any measurable increase in efficiency and renders the Ragland decision toothless.

CHIEF JUSTICE PORITZ and JUSTICES VERNIERO and LaVECCHIA join in JUSTICE WALLACE'S opinion. JUSTICE ALBIN filed a separate dissenting opinion in which JUSTICE ZAZZALI joins. JUSTICE LONG did not participate.

The opinion of the court was delivered by: Justice Wallace

Argued April 26, 2004

The issue presented is whether a defendant tried before a jury on the sole charge of second-degree possession of a weapon by a convicted person must be tried in a bifurcated trial, wherein the possession of a weapon element would be tried during the first stage of trial without reference to defendant's prior criminal history, and the previous conviction element would be tried during the second stage. Here, the Law Division did not bifurcate the trial and the jury found defendant guilty. The Appellate Division reversed and remanded for a bifurcated trial. State v. Brown, 362 N.J. Super. 62 (2003). We granted certification, 178 N.J. 251 (2003), and now reverse. We hold that the trial court appropriately did not bifurcate the single count of possession of a weapon by a convicted person.

I.

The arrest and conviction of defendant Kevin Brown stems from an incident in Asbury Park, New Jersey. Sergeant Terrence Fellenz responded to a request for assistance at 304 Fourth Avenue. Upon arrival, Sergeant Fellenz observed defendant, who matched the description of the subject of the dispatch, straddling a bicycle and talking to two other men. As Sergeant Fellenz approached the three men, defendant placed his hands on the handlebars of the bicycle as if to leave, so Sergeant Fellenz instructed him to stop. Defendant dropped the bike, turned away, and walked towards pillars at the entrance to a nearby apartment. Defendant reached under his sweatshirt and extended his right hand toward a pillar. Sergeant Fellenz drew his weapon and ordered defendant to show his hands, but not to turn around. Defendant raised his hands, turned around, and began to approach Sergeant Fellenz, who ordered him to stop.

Defendant moved within four feet of Sergeant Fellenz, put his hands down, and removed his sweatshirt.

By that time, three other police officers had arrived at the scene. A search of defendant disclosed no weapon, but a search of the area revealed a nine-millimeter semi-automatic loaded handgun and holster in a grassy area behind one of the pillars. Sergeant Fellenz had not heard anything hit the ground after defendant extended his right arm, but the officer believed defendant discarded the weapon at that juncture. No identifiable fingerprints were found on the weapon.

Defendant was indicted for third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count one), and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7b (count two). The latter charge resulted from defendant's prior convictions, which included manslaughter.

Prior to trial, the State informed the court that although the counts in the indictment must be severed for trial pursuant to State v. Ragland, 105 N.J. 189 (1986), it intended to try count two first because it was the more serious of the charges. The trial court disagreed and ordered the State to proceed on count one.

During jury selection, the prospective jurors were informed that defendant was charged with unlawful possession of a weapon. After the jury was selected and excused for the day, the State moved to dismiss count one, leaving only count two for trial. Defendant objected. He argued that pursuant to Rule 3:25-1(b), his consent was needed to dismiss a count on motion by the State, and he would not consent. The court deferred ruling until the next ...


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