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State v. Bailey

Supreme Court of New Jersey

January 22, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
KARLTON L. BAILEY, a/k/a CARLTON L. BAILEY, Defendant-Appellant.

          Argued September 12, 2017

         On certification to the Superior Court, Appellate Division.

          Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Daniel V. Gautieri, of counsel and on the briefs).

          Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Joie Piderit, of counsel and on the briefs).

          Carol M. Henderson, Assistant Attorney General, argued the cause for amicus curiae Office of Attorney General (Christopher S. Porrino, Attorney General of New Jersey, attorney; and Carol M. Henderson, of counsel and on the brief).

          TIMPONE, J., writing for the Court.

         The Court considers the propriety of defendant's conviction under the Certain Persons Not to Have Weapons Statute, N.J.S.A. 2C:39-7, when the redacted evidence prevented the jury from confirming that defendant's prior conviction was indeed an enumerated offense under the statute.

         Carlos Guerrero and Alex Mejia were walking in New Brunswick after a night of drinking. A video surveillance camera captured defendant Karlton Bailey approaching Guerrero from behind and putting his hand in Guerrero's back pocket. Mejia responded by running across the street to confront defendant. The conflict quickly turned violent. Upon seeing defendant draw a gun, Mejia held his hands up in the air and backed away. Defendant followed Mejia into the street, struck him in the face, searched his pockets, and fled the scene.

         A Middlesex County Grand Jury returned an indictment (Indictment 1650) against defendant, charging him with second-degree possession of a firearm by certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b). A second indictment (Indictment 1317) charged defendant with robbery, assault, and weapons offenses.

         In February 2013, a jury found defendant guilty on all counts of Indictment 1317. A separate jury trial on the certain persons indictment immediately followed. At that trial, defendant did not stipulate to the predicate convictions that prohibited him from possessing a firearm. The parties agreed that evidence of defendant's prior convictions would be sanitized, that is, "redacted except for the date and the degree of the offense." The trial court properly advised the jury that they "must disregard [their] prior verdict, and consider anew the evidence previously admitted on possession of a weapon."

         The State produced testimony from Investigator David Carmen, who identified two separate judgments of conviction. The predicate offenses were a 1994 conviction for third-degree possession of a controlled dangerous substance with the intent to distribute and a 2006 conviction for third-degree aggravated assault. The trial court, relying on State v. Brown. 180 N.J. 572, 585 (2004), and footnote five of the model jury charge for certain persons offenses, determined that the judgments of conviction needed to be redacted so as to include only the date and degree of each offense.

         The trial court instructed the jury on the elements of the certain persons offense. The judge explained that to convict defendant, the jury must find that defendant possessed a firearm and that "defendant is the person who . .. previously has been convicted of third-degree crimes." The trial court further advised the jury that it could use the evidence of defendant's prior crimes only for the limited purpose of establishing the prior-conviction element of the certain persons offense, not to decide that defendant has a propensity to commit crime. The jury convicted defendant of the certain persons charge.

         Defendant appealed, and the Appellate Division affirmed. The panel found the procedure used and the trial court's charge, based upon the model jury charge, disquieting. The panel questioned the continuing use of the model charge, but nonetheless determined that any error was invited. The panel concluded that no injustice occurred as the State was ready and able to introduce evidence of defendant's prior convictions but redacted them on defense counsel's request. The Court granted defendant's petition for certification. 227 N.J. 144 (2016).

         HELD: Because the State never proved an essential element of the certain persons charge to the jury, defendant's conviction cannot stand.

         1. In a criminal prosecution in which the accused has a constitutional right to a trial by jury, each element of the crime must be decided by the jury. Because N.J.S. A. 2C:39-7(b)(1) requires proof of a specific prior conviction, a certain persons charge entails a risk of prejudice to a defendant in a jury trial. In State v. Ragland, the Court held that when a defendant is charged with an additional crime beyond the certain persons offense, the trial must be bifurcated. 105 N.J. 189, 193 (1986). A bifurcated proceeding is necessary "since proof that defendant was a convicted felon (required in the trial of the [certain persons] charge) clearly tends to prejudice the jury in considering the [additional charge]." Ibid. Critically, "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 . . . must be proven. . . beyond a reasonable doubt." Id. at 195. In Old Chief v. United States, the United States Supreme Court held that when a defendant stipulates to a predicate conviction, "[t]he most the jury needs to know is that the conviction. . . falls within the class of crimes that Congress thought should bar a convict from possessing a gun." 519 U.S. 172, 190-91(1997). (pp. 11-16)

         2. In Brown, the Court declined to extend Ragland to cases in which the State proceeds only on a certain persons offense. 180 N.J. at 582. The Court held "that the elements of an offense should be tried in a unitary trial in which prejudice is minimized by appropriate curative jury instructions." Ibid. In dicta, the Court added that "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." Id. at 585. In the wake of Brown, the model jury charge for Certain Persons Not to Have a Weapon was modified to reflect the Court's statement about sanitization. The portion of the model jury charge pertaining to a defendant who does not stipulate to a predicate offense instructs that "[t]he third element the State must prove beyond a reasonable doubt is that defendant is a person who previously has been convicted of the crime(s) of the ___degree." (pp. 16-18)

         3. The dicta in Brown, as incorporated into the model jury charge, requires that the predicate-conviction evidence be sanitized to such degree that the evidence be no more informative than a stipulation. Such over-sanitization is problematic. In a certain persons trial, the State must prove that the defendant was convicted of an enumerated predicate offense and later possessed a firearm. Each element must be proved beyond a reasonable doubt. By preventing the State from providing the jury with evidence that the prior conviction was for a predicate offense-as opposed to another offense that does not lead to a weapons bar-the model charge prevents a jury from finding beyond a reasonable doubt a required element of the certain persons offense-a constitutional infirmity, (pp. 19-20)

         4. Here, the State's proofs at trial consisted of testimony only that defendant was convicted of third-degree offenses. Many third-degree offenses are not among the predicate offenses for a certain persons conviction. All parties knew that the predicate conviction on which the State sought to rely was for a crime sufficient to trigger criminal liability under the certain persons statute. The jury did not and could not have made a finding on that issue, (pp. 20-21)

         5. The invited error doctrine acknowledges the common-sense notion that a disappointed litigant cannot argue on appeal that a prior ruling was erroneous when that party urged the lower court to adopt the proposition now alleged to be error. Here, defendant asked the trial court to comply with the model jury charge based on the Court's dicta in Brown. This is not the sort of gamesmanship-driven scenario to which the invited error doctrine is traditionally applied. The Court does not apply it here because the error cut mortally into defendant's due process right to have the jury decide each element beyond a reasonable doubt, (pp. 21 -22)

         6. A certain persons conviction cannot stand without proof that a defendant has been previously convicted of an offense specifically enumerated in the certain persons statute. When a defendant refuses to stipulate to a predicate offense under the certain persons statute, the State shall produce evidence of the predicate offense: the judgment of conviction with the unredacted nature of the offense, the degree of offense, and the date of conviction. To the extent that Brown mentioned in dicta that, in cases where the defendant does not stipulate, all that is required is the date of the judgment, 180 N.J. at 585, the Court now clarifies that point. The Court refers this case to the Committee on Model Criminal Jury Charges so that it may revise the certain persons charge accordingly, (pp. 22-23)

         The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for proceedings consistent with this opinion.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE's opinion.

          OPINION

          TIMPONE JUSTICE.

         The Court considers the propriety of defendant's conviction under the Certain Persons Not to Have Weapons Statute, N.J.S.A. 2C:39-7, when the redacted evidence prevented the jury from confirming that defendant's prior conviction was indeed an enumerated offense under the statute.

         The "certain persons" subject to prosecution under N.J.S.A. 2C:39-7 are those who previously have been convicted of a particular offense identified within that statute. Proof of a prior conviction for an enumerated offense is a necessary predicate to prove a certain persons charge. In the majority of cases, that evidence is proffered through stipulation. When a defendant declines to stipulate to a predicate offense, the State is put to its proofs. The trial court's role in such cases is to take steps to "sanitize" the State's evidence to avoid jury prejudice while the State attempts to prove the elements of the certain persons statute to that defendant.

         Here, we deal with a trial in which the defendant, Karlton Bailey, declined to stipulate. The trial court duly sanitized the State's evidence of his previous convictions. The Court did so to such an extent that the jury heard only the degree of the offense and date of the judgment but nothing else. In other words, the jury did not learn how the offense related to any of the predicates listed in the certain persons statute. The court instructed the jury in keeping with the companion model charge. The jury convicted defendant. The Appellate Division affirmed but observed the "troublesome" nature of the sanitization requirements.

         The heart of the concern is that the prescribed sanitization and model jury charge infringe a defendant's constitutional right to be tried by a jury on all necessary elements of each charged offense because over-sanitization renders the proof insufficient to demonstrate that the defendant previously violated a predicate offense enumerated within the certain persons statute.

         For the reasons that follow, we reverse and remand the judgment of the Appellate Division. Any future sanitized version of defendant's prior record must have sufficient proof that defendant previously has been convicted of one of the "certain persons" predicates. We ...


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