State v. Johnson , 65 N.J. 388 ( 1974 )

The opinion of the Court was delivered by

Sullivan, J.

Defendant was convicted of unlawful possession of heroin, a violation of N. J. S. A. 24:21-20, and unlawful possession of a revolver, a violation of N. J. S. A. 2A:151-41. He was sentenced to a term of 3 to 5 years in State Prison for each offense, the sentences to run concurrently.

On appeal, 125 N. J. Super. 344, the Appellate Division unanimously: (1) upheld the trial court’s interpretation of N. J. S. A. 2A:151-41 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; (2) rejected defendant’s contention that he was prejudiced by the trial court’s statement to the jury that “an 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, to a trial before a jury such as you.”; (3) found that the prosecutor’s remarks during summation, referring to defendant’s prior criminal convictions, did not constitute prejudicial error; (4) affirmed the conviction of unlawful possession of heroin; and (5) held that the sentences imposed were not manifestly excessive.

However, a majority of the court concluded that the conviction of unlawful possession of a revolver must be reversed because the trial court, in its charge to the jury, made unnecessary and improper reference to N. J. S. A. 2A:151-5 which provides for additional sentence for armed criminals, and N. J. S. A. 2A:151-8 which makes it a misdemeanor for specified persons to purchase, own, possess or control any firearm. On defendant’s objection to these references and motion for a mistrial, the court denied the motion but told the jury to disregard the court’s prior reference to these statutory provisions as they had no bearing on the case and might be confusing. A majority of the court held that reference to these irrelevant statutes had a reasonable possibility of contributing to the conviction on the gun count.

The dissenting judge noted that when the matter was called to the trial court’s attention, it had instructed the jury to disregard the improper reference to the irrelevant statutory provisions and that no objection had been made to this supplemental charge on the ground it was unclear or confusing. Consequently, he found no basis for invoking the plain error rule.

The State had appealed the reversal of the conviction of possession of a revolver. R. 2:2-1 (a) (2). Defendant’s petition for certification of the judgment of the Appellate Division affirming his conviction of unlawful possession of heroin was granted by this Court. 64 N. J. 322 (1974).

We are in full agreement with the unanimous ruling of the Appellate Division which interpreted N. J. S. A. 2A :151-41 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. We also agree with the majority holding of the Appellate Division that the unnecessary and improper references to statutory provisions wholly irrelevant to the case had a reasonable probability of contributing to the conviction on the gun count and prejudiced defendant’s right to a fair trial on that count.

However, we conclude that the trial court’s instructions to the jury as to the import and force of an indictment, which the Appellate Division held did not constitute reversible error, were not only improper but possessed the clear capacity to prejudice defendant by suggesting to the jury that an indictment of itself constitutes a prima facie finding by a Grand Jury as to defendant’s guilt.

We also conclude that the prosecutor exceeded the bounds of fair play in his dealing with defendant’s prior criminal record both on cross-examination and during summation. Evidence of prior criminal convictions is admissible to affect the credibility of a defendant as a witness and for no other purpose. On his direct examination defendant had disclosed all of his prior criminal convictions. On cross-examination the prosecutor did not ask defendant a single question about his involvement in the crimes for which defendant was on trial, but limited his questioning to a review of defendant’s criminal record. During summation the prosecutor kept harping on this record to a point where it appears that his purpose was to show defendant was a hardened criminal and to have the jury infer guilt from that fact.

We have emphasized many times that the prosecutor’s function in appearing for the State is to see to it that justice is done. His comments and conduct carry the authority of the State. Prosecutorial excesses cannot and will not be tolerated. State v. Spano, 64 N. J. 566 (1974); cf. State v. Perry, 65 N. J. 45 (1974). Defendant was entitled to a fair trial and did not receive it by virtue of the prosecutor’s improper conduct and the trial court’s erroneous instructions as to the import and force of an indictment.

The judgment of the Appellate Division is modified to the end that defendant’s conviction on both counts is reversed and a new trial ordered.