New Jersey v. Bailey

Annotate this Case

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 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. A second indictment (Indictment 1317) charged defendant with robbery, assault, and weapons offenses. 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 issue this case presented for the New Jersey Supreme Court’s review centered on the sanitization and model jury charge, and whether that clean-up infringed on defendant’s constitutional right to be tried by a jury on all necessary elements of each charged offense. Over-sanitization here rendered the proof insufficient to demonstrate that the defendant previously violated a predicate offense enumerated within the certain persons statute. The New Jersey Court reversed and remanded, holding that 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. Furthermore, the model jury charge on this issue had to be revised.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

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.

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. (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.
2
SUPREME COURT OF NEW JERSEY
A-
96 September Term 2015
077141

STATE OF NEW JERSEY,

Plaintiff-Respondent,

KARLTON L. BAILEY, a/k/a
CARLTON L. BAILEY,

Defendant-Appellant.

Argued September 12, 2017 – Decided January 22, 2018

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).

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

1
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.

2
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.

We derive the following facts from the pre-trial motion

hearings and the trial record.

On 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.

3
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.

Myrna 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,

4 N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon

for an unlawful purpose,
N.J.S.A. 2C:39-4(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 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 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 (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

5
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 seven-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

6
admitted before the jury.” 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.

On August 4, 2016, we granted defendant’s petition for

certification.
227 N.J. 144 (2016). We also granted the

Attorney General of New Jersey leave to appear as amicus curiae.

II.

Defendant argues that the State failed to prove beyond a

reasonable doubt that he had been previously convicted of an

enumerated predicate offense under
N.J.S.A. 2C:39-7(b).

Defendant contends that the State’s proofs showed only that he

had been convicted of “third-degree offenses” but not whether

those offenses were specifically enumerated in the certain

persons statute. Defendant emphasizes that constitutional

principles should encourage the Court to revisit the portion of

Brown requiring sanitization of a non-stipulating defendant’s

prior conviction in a certain persons case.

In regard to his certain persons challenge, defendant

contends that certain language in Brown,
180 N.J. at 585 -- “If

the defendant does not stipulate, then the trial court should

7
sanitize the offense or offenses and limit the evidence to the

date of the judgment” -- has effectively removed the State’s

burden of proving that a defendant has been convicted of an

enumerated offense under
N.J.S.A. 2C:39-7(b). Defendant argues

that the Brown standard, which was incorporated into the model

jury charge, effectively denied him the right to a fair trial

because an essential element of the offense charged was

presented as concluded or settled. (citing State v. Ingenito,

87 N.J. 204, 213 (1981)). According to defendant, the jury here

was prevented from finding that he had been convicted of a

predicate offense because the sanitization of his convictions

treated the element as proven. Defendant asserts that the

practice presently employed is constitutionally invalid because

it undermines the factfinder’s responsibility at trial to find

the ultimate facts beyond a reasonable doubt. (citing Cty.

Court of Ulster Cty. v. Allen,
442 U.S. 140, 156 (1979)).

Defendant contends that the Appellate Division compounded

the error in applying the invited error standard to his certain

persons challenge. His premise is that he did not invite the

error because the judge, aware of the sanitization requirement,

was obligated to sanitize no matter the position of defense

counsel on the issue. As a fallback position, defendant

maintains that even if the error was invited, the invited error

standard should not apply because appellate courts may consider

8
invited errors on appeal if the error cut mortally into the

defendant’s substantive rights. (citing State v. Corsaro,
107 N.J. 339, 345-46 (1987)).

The State argues that defendant’s failure to object to the

sanitization of the prior-convictions evidence effectively

conceded to the jury that the prior convictions were for

predicate crimes under the certain persons statute. The State

concludes that any error in sanitizing the nature of defendant’s

prior convictions was invited by defense counsel’s failure to

object to the charge.

The State nevertheless recommends an adjustment to the

sanitization requirement, suggesting that trial courts sanitize

the judgment of conviction to shield the trier of fact from the

nature of the crime but reveal the statutory citation, degree,

and date of the crime. The State maintains that any error was

the result of an excess of caution to protect defendant, which

led to an “over-sanitization” of defendant’s prior convictions.

The State urges the Court to apply that rule prospectively.

The State represents that countless certain persons convictions

have been tried using the current model jury charge and that

retroactive application of a new rule of law would serve no

purpose other than to disrupt thousands of sound convictions.

9
The Attorney General urges this Court to modify Brown’s

holding to provide that a prior conviction should not be

sanitized in a certain persons prosecution unless a defendant

stipulates that it is for a predicate offense. Instead, the

Attorney General proposes that if a defendant chooses not to

stipulate, the State is entitled to present the nature of the

prior conviction to establish that the defendant was previously

convicted of an enumerated predicate offense.

The Attorney General argues that its approach is in line

with the United States Supreme Court’s decision in Old Chief v.

United States,
519 U.S. 172, 191-92 (1997), which held that when

a defendant is charged with possession of a weapon by a felon,

and he or she offers to stipulate the fact of the qualifying

conviction, it is an abuse of discretion to spurn the

defendant’s stipulation offer and admit the full record of the

judgment of conviction. The Attorney General notes that Old

Chief permits the State to offer a redacted judgment of

conviction when a defendant does not stipulate to the predicate

offense, provided the defendant consents to the redacted

conviction and agrees to a jury instruction that makes “clear

that the redacted judgment was enough to satisfy the status

element remaining in the case.” (quoting Old Chief,
519 U.S. at
191 n.10). The Attorney General argues that it is the

10
defendant, then, who dictates the way a prior predicate offense

is proven in a certain persons trial.

Moreover, the Attorney General contends that the

sanitization of defendant’s prior conviction in this case did

not lead to the State’s failure to meet its burden of proof.

The Attorney General submits that defendant implicitly

acknowledged that the convictions were predicate offenses under

the certain persons statute by insisting that the records be

redacted and by failing to object to testimony about the

convictions. In that regard, the Attorney General argues that

the Appellate Division correctly applied the invited error

doctrine as “any error was induced by defendant counsel and was

not grounds for reversal.”

III.

The Fifth Amendment to the United States Constitution

guarantees that no one will be deprived of liberty “without due

process of law.” U.S. Const. amend. V. The Sixth Amendment

guarantees that “[i]n all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an

impartial jury.” U.S. Const. amend. VI. Those cherished,

fundamental rights have been made applicable to the States

through the Fourteenth Amendment. See U.S. Const. amend. XIV;

State v. Koedatich,
112 N.J. 225, 267 (1988).

11
The United States Supreme Court has held that “these

provisions require criminal convictions to rest upon a jury

determination that the defendant is guilty of every element of

the crime with which he is charged, beyond a reasonable doubt.”

United States v. Gaudin,
515 U.S. 506, 510 (1995) (emphasis

added) (citing Sullivan v. Louisiana,
508 U.S. 275, 277-78

(1993)). This Court has likewise stressed that “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 and none of those elements may be withheld from the jury

and decided by the judge as a matter of law.” State v.

Anderson,
127 N.J. 191, 208-09 (1992).

N.J.S.A. 2C:39-7(b)(1) provides that

[a] person having been convicted in this State
or elsewhere of the crime of aggravated
assault, arson, burglary, escape, extortion,
homicide, kidnapping, robbery, aggravated
sexual assault, sexual assault, bias
intimidation in violation of [
N.J.S.A.] 2C:16-
1, endangering the welfare of a child pursuant
to [
N.J.S.A.] 2C:24-4, stalking pursuant to
[L. 1992, c. 209 (N.J.S.A. 2C:12-10)] or a
crime involving domestic violence as defined
in section 3 of [L. 1991, c. 261 (N.J.S.A.
2C:25-19)], . . . or a person having been
convicted of a crime pursuant to the
provisions of [
N.J.S.A.] 2C:35-3 through
[
N.J.S.A.] 2C:35-6, inclusive; section 1 of
[L. 1987, c. 101 (N.J.S.A. 2C:35-7)];
[
N.J.S.A.] 2C:35-11; [
N.J.S.A.] 2C:39-3;
[
N.J.S.A.] 2C:39-4; or [
N.J.S.A.] 2C:39-9 who
purchases, owns, possesses or controls a
firearm is guilty of a crime of the second
degree and upon conviction thereof, the person

12
shall be sentenced to a term of imprisonment
by the court.

Because the offense requires proof of a specific prior

conviction, a certain persons charge automatically entails a

risk of prejudice to a defendant in a jury trial. Our rules of

evidence recognize, circumscribe, and regulate the introduction

of prior-offense evidence in a jury trial to forestall the

potential for juries to find guilt on the impermissible basis of

perceived criminal propensity rather than on the facts of the

case alone. See N.J.R.E. 403(a), 404(b), 608(b). This Court

has, in several decisions, set out the procedural path that

certain persons trials must follow to avoid the creation of

undue prejudice in establishing the essential element of a

predicate conviction.

In State v. Ragland, this 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. For efficiency,

the same jury may try both charges in succession and may decide

the certain persons charge based on the same evidence presented

as part of the State’s proofs for the unlawful possession

13
charge. Id. at 195-96. Because efficiency must be subsumed to

due process, we mandated that a strong jury instruction be given

to ensure that the jury “consider anew the evidence previously

admitted but to disregard completely its prior verdict.” Id. at

195. Critically, we explained that

the defendant is entitled to that instruction
for on the “new” trial, 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, including obviously the fact of
possession, must be proven by the State beyond
a reasonable doubt.

[Ibid.]

The United States Supreme Court addressed the issue in Old

Chief,
519 U.S. at 174. Old Chief involved a defendant charged

with assault with a dangerous weapon and possession of a firearm

by someone with a prior felony conviction, in violation of 18

U.S.C. § 922(g)(1). Id. at 174-75. To prevent his prior

conviction from being admitted at trial, the defendant offered

“to solve the problem . . . by stipulating, agreeing and

requesting the Court to instruct the jury that he has been

convicted of a crime punishable by imprisonment exceeding one

(1) year.” Id. at 175. The trial court rejected the

defendant’s offer and allowed the government to admit the

judgment order containing the defendant’s prior conviction. Id.

14
at 177. A jury found the defendant guilty on all counts. Ibid.

The Ninth Circuit affirmed the convictions. Ibid.

The United States Supreme Court reversed, holding that the

trial court should have accepted the defendant’s offer to

stipulate. See id. at 190-92. The Court acknowledged that

“there can be no question that evidence of the name or nature of

the prior offense generally carries a risk of unfair prejudice

to the defendant . . . [that] will vary from case to case.” Id.

at 185. The Court noted that the defendant’s offer to stipulate

to the predicate offense would eliminate some of that prejudice

and would “have been not merely relevant but seemingly

conclusive evidence of the element.” Id. at 186.

Despite the general principle that “the prosecution is

entitled to prove its case free from any defendant’s option to

stipulate the evidence away,” id. at 189, the Court determined

that the State’s right to present its case as it sees fit did

not apply because that right has “virtually no application when

the point at issue is a defendant’s legal status, dependent on

some judgment rendered wholly independently of the concrete

events of later criminal behavior charged against him,” id. at

190. The Court then held that when a defendant stipulates to a

predicate conviction,

[t]he most the jury needs to know is that the
conviction admitted by the defendant falls
within the class of crimes that Congress

15
thought should bar a convict from possessing
a gun, and this point may be made readily in
a defendant’s admission and underscored in the
court’s jury instructions.

[Id. at 190-91.]

In Brown, this Court declined to extend Ragland to cases in

which the State proceeds only on a certain persons offense.
180 N.J. at 582. Brown involved a defendant charged with unlawful

possession of a weapon and possession of a weapon by certain

persons not to have a weapon. Id. at 575. The trial on the

indictment was to be bifurcated, as required under Ragland, but

the State moved to dismiss the unlawful possession charge after

jury selection. Ibid. A single trial was then held on the

certain persons charge and the jury entered a guilty verdict.

Id. at 576.

On appeal, the Appellate Division reversed the conviction

because “when the 'State elects . . . to proceed solely on [a]

possession by a convicted felon charge, the issue of

'possession’ must be tried first, absent any knowledge by the

trier of fact of the defendant’s prior conviction.’” Ibid.

(alterations in original) (quoting State v. Brown,
362 N.J.

Super. 62, 64 (App. Div. 2003)).

We reversed, deciding that a bifurcated proceeding was not

required, and instead held “that the elements of an offense

should be tried in a unitary trial in which prejudice is

16
minimized by appropriate curative jury instructions.” Id. at

582. The State does not have to first prove the element of

possession in one proceeding and then prove the element of the

defendant’s conviction of a predicate offense in a separate

proceeding; it may prove both in a single proceeding. Mindful

of the prejudice that introduction of a defendant’s criminal

convictions may create, this Court required a strong limiting

instruction and sanitization of the predicate-offense evidence.

Id. at 583-84.

Then, in dicta, this 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. Specifically, the model charge

instructs that:

In order for you to find defendant guilty, the
State must prove each of the following
elements beyond a reasonable doubt:

1. Exhibit _____ is a firearm [or that there
was a firearm].

17
2. Defendant purchased, owned, possessed,
or controlled the firearm [on the date
alleged in the indictment].

3. Defendant is a person who previously has
been convicted of [a crime of the _______
degree] OR [a predicate offense].

[Model Jury Charges (Criminal), “Certain
Persons Not to Have Any Firearms (N.J.S.A.
2C:39-7(b)(1))” 1-2 (rev. June 13, 2005).]

In explaining what crimes are set forth as predicate

offenses in
N.J.S.A. 2C:39-7(b), the model jury charge further

explains how to sanitize the record of a defendant’s predicate

offense. Specifically, the charge notes:

Unless the defendant stipulates, the prior
crimes should be sanitized. Thus, the trial
court should refer to them as crime(s) of the
appropriate degree. For example, if the
offense were aggravated sexual assault, the
court would indicate that defendant previously
was convicted of a crime of the first degree.
Nothing prevents a defendant, however, from
choosing to inform the jury of the name of the
prior crime of which he/she was convicted.

[Id. at 1 n.4 (citations omitted).]

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.” Id.

at 4.

18
We now consider the adequacy of that model charge and the

appropriate level of sanitization when a defendant does not

stipulate to a predicate conviction.

If a defendant chooses to stipulate, evidence of the

predicate offense is extremely limited: “[t]he most the jury

needs to know is that the conviction admitted by the defendant

falls within the class of crimes that . . . bar a convict from

possessing a gun[.]” Old Chief,
519 U.S. at 190-91. A

defendant who stipulates can therefore prevent the State from

presenting evidence of the name and nature of the offense.

Provided that the stipulation is a knowing and voluntary waiver

of rights, placed on the record in defendant’s presence, the

prosecution is limited to announcing to the jury that the

defendant has committed an offense that satisfies the statutory

predicate-offense element.

The dicta in Brown, as incorporated into the model jury

charge for certain persons offenses, essentially 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.

The over-sanitization called for in the model charge

injects a constitutional defect into any trial on a certain

persons offense where a defendant declines to stipulate. The

elements of the certain persons offense are straightforward:

19
conviction of a predicate offense and possession of a firearm.

See
N.J.S.A. 2C:39-7(b)(1). 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 actually prevents a jury from finding beyond a

reasonable doubt a required element of the certain persons

offense –- a clear constitutional infirmity.

Returning to the circumstances before us, defendant

highlights that the State’s proofs at trial consisted of

testimony only that defendant was convicted of third-degree

offenses. Defendant adds that when the trial court instructed

the jury as to the elements of the certain persons charge, the

court told the jury that it had to find defendant had been

convicted of a third-degree offense, not an enumerated offense

in the statute. The jury thus found defendant guilty on the

strength of his prior conviction of a third-degree offense.

Many third-degree offenses are not among the predicate

offenses for a certain persons conviction. An essential element

of the certain persons offense -- prior conviction of an

20
enumerated predicate offense –- could not be and was not found

by the jury beyond a reasonable doubt.

All parties involved -- defendant, defense counsel, the

prosecutor, and the trial court -- 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. For that reason, the jury

could not have made a finding on that issue.

A major strand of the right to a jury trial resides in the

“nondelegable and nonremovable responsibility of the jury to

decide the facts.” Ingenito,
87 N.J. at 211; see also United

States v. McClain,
545 F.2d 988, 1003 (5th Cir. 1977) (quoting

United States v. Casale Car Leasing, Inc.,
385 F.2d 707, 712 (2d

Cir. 1967) (“When the jury is not given an opportunity to decide

a relevant factual question, it is not sufficient 'to urge that

the record contains evidence that would support a finding of

guilt even under a correct view of the law.’”)). In this case,

the jury could not satisfy that obligation.

Because the State never proved an essential element of the

certain persons charge to the jury, we find that defendant’s

conviction cannot stand.

In so holding, we decline to apply the doctrine of invited

error on which the appellate panel relied. “Under that settled

21
principle of law, trial errors that 'were induced, encouraged or

acquiesced in or consented to by defense counsel ordinarily are

not a basis for reversal on appeal. . . .’” State v. A.R.,
213 N.J. 542, 561 (2013) (quoting Corsaro,
107 N.J. at 345

(alteration in original)). 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.’” Id. at 561 (quoting

Corsaro,
107 N.J. at 340). “The doctrine prevents litigants

from 'playing fast and loose’ with, or otherwise manipulating,

the judicial process.” State v. Jenkins,
178 N.J. 347, 359

(2004) (quoting State v. Gonzalez,
142 N.J. 618, 632 (1995)).

Here, defendant asked the trial court to comply with the

model jury charge based on this Court’s dicta in Brown. This is

not the sort of gamesmanship-driven scenario to which the

invited error doctrine is traditionally applied. We do 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.

In sum, we hold that a certain persons conviction cannot

stand without proof that a defendant has been previously

convicted of an offense specifically enumerated in the certain

22
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, we now clarify that

point. We refer this case to the Committee on Model Criminal

Jury Charges so that it may revise the certain persons charge

accordingly.

IV.

The judgment of the Appellate Division, affirming

defendant’s conviction, 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.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.