State v. Karlton L. Bailey (A-96-15; 077141)

          Because the State never proved an essential element of
          the certain persons charge to the jury, defendant’s
          conviction cannot stand.  State v. Karlton L. Bailey (A-96-15) (077141)

Argued September 12, 2017 -- Decided January 22, 2018

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
 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.