State v. Bailey

176 A.3d 800, 231 N.J. 474
CourtSupreme Court of New Jersey
DecidedJanuary 22, 2018
Docket077141
StatusPublished
Cited by28 cases

This text of 176 A.3d 800 (State v. Bailey) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bailey, 176 A.3d 800, 231 N.J. 474 (N.J. 2018).

Opinion

JUSTICE TIMPONE

delivered the opinion of 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.

[477]*477The “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 hold, further, that the model jury charge on this issue must be revised.

I.

We derive the following facts from the pre-trial motion hearings and the trial record.

[478]*478On July 24, 2011, at approximately 6:00 a.m., Carlos Guerrero and Alex Mejia were walking in New Brunswick after a night of drinking. A video surveillance camera captured defendant approaching Guerrero from behind and putting his hand in Guerrero’s back pocket. Guerrero’s level of intoxication prevented him from reacting to the encounter and from identifying the assailant. Mejia, however, responded to the situation 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 did not relent. Instead, he followed Mejia into the street, struck him in the face, searched his pockets, and fled the scene.

Myma Ayala approached defendant just as he punched Mejia in the face. Defendant fled; Ayala called 911. When New Brunswick Police Officers Pedro Rodrigues and Joseph Nieves responded, they found Mejia on the curb, bleeding from the face. At the hospital, doctors treated Mejia for a nasal bone fracture, a broken nose, and a laceration. The officers uncovered surveillance footage that captured the encounters, including defendant wielding a gun. The officers tracked defendant to a house approximately two blocks from the crime scene.

On October 27, 2011, 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”), issued on September 5, 2012, charged defendant with first-degree robbery of Carlos Guerrero, N.J.S.A. 2C:15-1; first-degree robbery of Alex Mejia, N.J.S.A. 2C:15-1; third-degree aggravated assault of Alex Mejia, N.J.S.A. 2C:12-1(b)(2); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39^(a).

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 [479]*479stipulate 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 one witness, 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 (CDS) 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, 853 A.2d 260 (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. As a result, Investigator Carmen simply noted the dates and degrees of defendant’s predicate offenses. The State marked the redacted judgments of conviction for identification, but they were not admitted into evidence.

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.

The trial court sentenced defendant on Indictment 1317 to an aggregate term of incarceration of thirteen years, subject to eighty-five percent parole ineligibility in accordance with the No Early Release Act, N.J.S.A. 2C:43-7.2(a). The trial court additionally sentenced defendant on Indictment 1650 to a consecutive [480]*480seven-year term of incarceration, with a five-year period of parole ineligibility on the certain persons offense.

Defendant appealed, and the Appellate Division affirmed in an unpublished opinion. The panel found the procedure used and the trial court’s charge, based upon the model jury charge, disquieting. Defendant did not stipulate to the existence of a predicate offense, and “no proof of any predicate crime was admitted before the jury.” The panel questioned the continuing use of the model charge, but nonetheless determined that any error was invited.

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Cite This Page — Counsel Stack

Bluebook (online)
176 A.3d 800, 231 N.J. 474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bailey-nj-2018.