State v. Johnson

¶1(concurring). I agree with the majority that the trial court’s interpretation of N. J. S. A. 2A:151-41 was correct. The statute was properly construed as prohibiting possession of a firearm without a permit in any place, public or private, subject to the exceptions specified in N. J. S. A. 2A:151-42. I further believe the errors at the trial level were numerous and much too prejudicial to the defendant. While not considered individually as reversible error, they acquire an ominously devastating potential when viewed in combination. State v. Orecchio, 16 N. J. 125, 134 (1954). See R. 1:7-5.

¶2Most of the problems involved in the instant matter stem from the inaccurate and prejudicial charge to the jury and the court’s inadequate and seemingly grudging supplemental curative charge. Initially, the judge explained to and charged the jury on the one relevant statute, N. J. S. A. 2A:151-411, *393and then on three irrelevant statutes for which defendant had not even been indicted, namely, N. J. S. A. 2A:151-42, 2A:151-5 and 2A.151-82. The State concedes that this was an obvious error under State v. Begyn, 58 N. J. Super. 185, 201 (App. Div. 1959), aff’d 34 N. J. 35 (1961), but maintains that the error was remedied by the judge’s curative supplemental instruction.

¶3This Court has, in a number of instances, stated that if a judge clarifies the confusion created by an improper jury charge and subsequently limits its determination to the ap*394propriate problem, no prejudice will be found. State v. Lucas, 30 N. J. 37, 75-76 (1959); State v. Smith, 21 N. J. 326, 334 (1956); State v. Provoid, 110 N. J. Super. 547, 558-559 (App. Div. 1970). In. other instances, if the 'harm complained of is identified as simply an irrelevant matter, there will be no potential jury confusion.

¶4However, in this case, the prejudice went much deeper. The trial judge charged the jury one way and then instructed them in a contradictory fashion a few minutes later. Initially, in his charge, he instructed the jury to consider defendant’s prior record substantively for the purposes of N. J. S. A. 2A:151-8. Defense counsel vigorously objected, and after some discussion, the judge acquiesced and deleted the three superfluous statutes from his charge. He then told the jury:

Now, the other items with respect to being — that I cited to you, that is, New Jersey Statute 2A:151-42, 2A:151-8 and 2A:151-5— just disregard those * … [Emphasis added].

¶5Hot only might the jury have forgotten the substance of these three irrelevant statutes and become confused about what they could or could not consider, but they might also have misconstrued or misunderstood the judge’s instruction concerning the limited legal effect of the defendant’s prior record and considered it in coming to their determination on the substantive crime, instead of properly restricting its use.

¶6Por the judge to attempt to change the purpose for which defendant’s prior record had been admitted at trial at this late date, i. e., the time of the supplemental charge, would be futile. By then the jury had already allowed their decision to be persuaded and tainted by this nonsubstantive evidence.

¶7I might add that I doubt whether a jury does ever truly limit evidence of defendant’s prior criminal propensity and record to only affect his credibility. More than likely, they consciously or unconsciously permit limited evidence to run *395over and affect the substantive crime itself. The same concern was expressed by Judge Conford in State v. Von Atzinger, 81 N. J. Super. 509 (App. Div. 1963):

It is dubious enough under the best oí circumstances whether the average jury confines its consideration of a defendant’s past criminal record to its effect upon his credibility, as is the evidential limitation. See Report of the New Jersey Supreme Court Committee on Evidence (1963), pp. 102-103. [81 N. J. Super, at 516].

¶8The identical proposition was reiterated in State v. Manley, 54 N. J. 259 (1969), where this Court said:

… * IVe recognize the almost unavoidable psychological impact on the layman-juror of evidence of a defendant’s conviction of similar crimes. It may be a lot to ask of him that he put aside an almost common impulse to regard earlier proven proclivity toward commission of similar crimes as some indication of guilt of the offense presently charged against him. [54 N. J. at 269-270].

¶9See also “Procedural Protections of the Criminal Defendant — A Reevaluation of the Privilege Against Self-Incrimination and the Rule Excluding Evidence of Propensity to Commit Crime,” 78 Harv. L. Rev., 426, 440 (1964). I am cognizant of the fact that New Jersey courts have consistently upheld the use of prior convictions to attack credibility against constitutional challenge. State v. Mustacchio, 57 N. J. 265 (1970); State v. Sinclair, 57 N. J. 56 (1970); State v. Hawthorne, 49 N. J. 130 (1967); State v. Garvin, 44 N. J. 268 (1965); State v. Brown, 41 N. J. 590 (1964), cert. denied 377 U. S. 981, 84 S. Ct. 1888, 12 L. Ed. 2d 749 (1964). Nevertheless, I believe that the use of a defendant’s prior criminal record for impeachment purposes has been abused and misunderstood so frequently that I question whether its usefulness has not come to an end.

¶10The statute governing this area is N. J. S. A. 2A:81-12.3*396Perhaps this statute should be reviewed and revised and a subsequent rule adopted following closely the Federal Buies of Evidence B. 6094 or the proposed Rules of Evidence R. 21, *397which were not adopted by this State in 1963, or the Uniform Rules of Evidence R. 21.5 These rules restrict the use of prior convictions to only those crimes involving fraud, lack of veracity or false statement. I do not perceive how justice is served when a defendant can possibly, even though mistakenly, be convicted for"crimes for-which he has already been punished.

¶11Remoteness of convictions is an additional facet of 'the problem as Justice Francis succinctly stated in State v. Hawthorne, supra 49 N. J. at 141:

* * * In proper cases where the element of remoteness is involved, the trial judge in his charge should in fairness call attention to the fact and caution the jurors against giving the conviction any more weight in passing upon the witness’s veracity than reasonable and sensible people ought to give it.

¶12*398In the present matter, the assistant prosecutor reverted to August 1959 in an attempt to impeach the accused. Convictions which are so remote in time and space bear very little relation to the present. They border on simply being irrelevant and distinctly disconnected matters.

¶13Consistent with my previous observations, I believe that N. J. S. A. 2A:81-12 should be reevaluated, and in this instance, a definite time limitation fixed to prevent a prosecutor from resorting to convictions which are too remote in time. This is precisely what the Federal Rules of Evidence R. 609(b) has done.

¶14Regardless of the present evidentiary rule, it is my opinion that in the ease under consideration, the trial court seriously erred in failing to clearly and accurately instruct the jury as to the pertinent statutes involved. Instead, he incorrectly charged the jury on one relevant statute and three irrelevant statutes. The charge on N. J. S. A. 2A:151-8 was by far the most damaging because it permitted the jury to consider the defendant’s prior record for the substance of the crime rather than correctly limiting its use solely to the issue of credibility. State v. Sinclair, 57 N. J. 56, 63-67 (1970); State v. DeMarco, 76 N. J. Super. 318, 323-324 (App. Div. 1962). The judge’s weak supplemental instruction certainly did not overcome this error. Therefore, it is my belief that the judge’s improper charge on N. J. S. A. 2A:151-8 substantially influenced the jury’s decision on both counts. State v. Bankston, 63 N. J. 263, 273 (1973); State v. Macon, 57 N. J. 325, 335-336, 340 (1971); State v. Samurine, 47 N. J. Super. 172, 181-182 (App. Div. 1957), rev’d on other grounds, 27 N. J. 322 (1958).

¶15The aforementioned was the most serious error at trial; however, additional factors compounded the prejudice. The trial judge, in explaining to the jury the import and force of an indictment, said:

… [A]n indictment far from being a mere allegation, constitutes a finding by a Grand Jury that a basis exists for subjecting the accused to a trial.

¶16*399Naturally, defense counsel objected to this statement which might have been taken by the jury as an indication that defendant would not have been indicted if the grand jury did not think he was guilty. This is certainly an improper and impermissible inference, but it is still not entirely improbable that the jury inferred just that conclusion from the judge’s explanation. While the judge had previously stated that an indictment was a formal charge and was not evidence of guilt, later contradictory instructions were given which would again augment and perpetuate jury confusion.

¶17The defendant’s conviction stands upon the critical determination of whom the jury chose to believe. Throughout the trial, the opposing sides pieced together conflicting stories of what actually transpired. In other words, it was the police officer’s narrative of events standing against that of the defendant. The assistant prosecutor was most acutely aware of this situation, which fact was vividly demonstrated during his cross-examination of defendant. The assistant prosecutor totally failed to cross-examine defendant on any specifies of the indicted crime and exclusively dealt with defendant’s previous criminal convictions. At this point in the trial, the judge should have instructed the jury under New Jersey Rules of Evidence R. 6 as to the limited effect necessarily given prior convictions and that they, as jurors, were forbidden to consider the conviction as evidence of defendant’s guilt. See State v. Manley, supra. In addition, the judge should have admonished the jury that they were under no compulsion to lower their estimate of defendant’s credibility because of the conviction. See State v. Harris, 105 N. J. Super. 319 (App. Div. 1969); State v. Christie, 91 N. J. Super. 420 (App. Div. 1966). The trial judge failed to give the jury these limiting instructions when defendant was being cross-examined, and, without a doubt, the jurors must have been confused as to the use and import of such evidence.

¶18*400The assistant prosecutor then proceeded to sum up by again placing great emphasis upon defendant’s prior record. The assistant prosecutor remarked:.

I’m not saying that Mr. Johnson isn’t an interior decorator, but he has been busy doing a lot of other stuff in the last ten years or so, based on the number of convictions he’s had for assault and battery on police officers, robbery, possession of a stolen auto, receiving a stolen auto — about a half a dozen crimes he has been convicted of.

¶19And, a few minutes later, mimicked the defendant’s testimony:

■ No, I don’t know nothing. I’m just an interior decorator while I’m not robbing autos or whatever.

¶20Defense counsel quickly objected to the assistant prosecutor’s improper dramatization of previous testimony and the distorted characterization of defendant to which the trial judge reluctantly responded:

All right, let’s not compound it by — that’s right, just watch it a little, Mr. Fagan.

¶21And, a moment later the judge said, without explanation:

That last phrase may be stricken from the record.

¶22This is hardly an “immediate intervention” and “vigorous instruction” deemed necessary by this Court to counteract the prejudicial effect of a prosecutor’s improper reference to a defendant’s prior record. State v. Driver, 38 N. J. 255, 292 (1962); State v. Thornton, 38 N. J. 380, 400 (1962), cert. denied 374 U. S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963); State v. Kociolek, 23 N. J. 400, 418-420 (1957).

¶23These judicial exhortations are for the benefit of the lay-jurors and not the attorneys present. ' That is precisely .why clear advice and immediate explanation must be given and *401understood by the jurors themselves. There can be no greater injustice than a defendant being convicted for the wrong reasons. Yet, the trial judge made no explanation of his comments and merely felt it sufficient to say “strike it,” the importance of which could easily be misunderstood.

¶24In regard to the assistant prosecutor’s involvement, this Court has recently admonished prosecuting attorneys in State v. Spano, 64 N. J. 567 (1974), to guard against excesses. This was the outgrowth of a long line of cases which contained prosecutorial improprieties. State v. Farrell, 61 N. J. 99, 105 (1972); State v. Bogen, 13 N. J. 137, 139 (1953); State v. West, 29 N. J. 327, 338 (1959); State v. D’Ippolito, 19 N. J. 540, 549 (1955).

¶25While the present prosecutorial remarks might not have reached the level of Spano, our courts have been particularly responsive to and watchful for comments which might psychologically aggravate the prejudices of the jury. In this regard, the Court has attempted to rigidly contain evidence of prior convictions within its proper and sanctioned bounds. State v. Driver, supra; State v. D’Ippolito, supra. See State v. Thornton, supra; State v. Buffa, 31 N. J. 378, 379, cert. denied 364 U. S. 916, 81 S. Ct. 279, 5 L. Ed. 2d 228 (1960). The prosecutorial excesses condemned in these cases relate to the present instance only in being excesses in like kind, but not degree. The excess here, however, further injured defendant by lending more wood to the fire of jury confusion.

¶26Evidence of defendant’s guilt cannot be fairly described as overwhelming. Any chance for lingering juror doubt was, however, removed by the combined and erroneous efforts of the trial judge and the assistant prosecutor. While a reader of the trial transcript might consider these problems just so many small, insignificant and unrelated improprieties or even oversights, when they are viewed in combination, these errors pyramid upward at a deadly speed, quickly rising to the level of plain and prejudicial error and injustice. I would, therefore, affirm the Appellate Division on the weapons count *402and reverse on the narcotics charge and grant a new trial on both counts.

¶27Pashman, J., concurs in result.

¶28For modification — Chief Justice Hughes and Justices Jacobs, Mountain, Sullivan, Pashman and Clieeokd — 6.

¶29Opposed — Hone.