SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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STATE OF NEW JERSEY,

Plaintiff

- Respondent,

v.

TERRANCE BARKER
, a/k/a TERRENCE BARKER,

Defendant

- Appellant.

_________________________

Argued May 22, 2019

– Decided July 29, 2019

Before Judges Accurso, Vernoia and Moynihan.

On appeal from the Superior Court of New Jerse y, Law Division, Somerset Count y, Indictment Nos. 14

- 12

- 0793 and 14

- 12

- 0794.

Stephen W. Kirsch, Assistant Deputy Public Defender
, argued the cause for appellant (Joseph E. Krakora, Public Defend er, attorney; Stephen W. Kirsch, of counsel and on the brief).

Lauren E. Bland, Assistant Prosecutor
, argued the cause for respondent (Michael H. Robertson, Somerset County Prosecutor, attorney; Lauren E. Bland, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet
, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36

- 3.2 A

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PER CURIAM

Following a bif

urcated trial
, see State v. Ragland , 105 N.J. 189, 193

- 95

(1986), before a single jury, d efendant Terrance B arker appeals from his

convictions of one count of fourth

- degree possession of a defaced firearm,

N.J.S.A. 2C:39

- 3(d), under Indictme nt 14

- 12

- 0793
, and two counts of second

degree certain persons not to have weapons, N.J.S.A. 2C:39

- 7(b)(1) , under

Indictment 14

- 12

- 0794

. He argues:

POINT I

IN TWO SIGNIFICANT RESPECTS, THE JURY INSTRUCTION ON THE CERTAIN

- PERSONS OFFENSES FAILED TO MEET THE STANDARD REQUIREMENTS OF STATE V. RAGLAND AND ITS PROGENY REGARDING A "SECOND TRIAL" FOR CERTAIN PERSONS NOT TO HAVE WEAPONS.

A. THE ALVAREZ

- BASED JURY INSTRUCTION ON NON

- PROPENSITY THAT IS PART OF THE MODEL JURY INSTRUCTION WAS IMPROPERLY AND INEXPLICABLY OMITTED FROM THE JURY INSTRUCTION AT THE SECOND TRIAL.

B. THE JUDGE IM PROPERLY TOLD THE JURORS THREE TIMES THAT TH EY COULD SKIP MAKING A FINDING ON ONE OF THE ELEMENTS OF THE OFFENSE

-- A FUNDAMENTAL VIOLATION OF DEFENDANT'S RIGHT TO A JURY3 A

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POINT II

AT THE TRIAL FOR POSSESSION OF A DEFACED GUN, THE STATE IMPROPERLY USED AN EXPERT WITNESS TO OFFER AN OP INION THAT THE GUN WAS DEFACED

-- PART OF THE ULTIMATE ISSUE FOR THE JURY TO DECIDE, AND A MATTER CLEARLY NOT BEYOND THE KEN OF THE AVERAGE JUROR.

We agree that the admission of expert testimony and improper jury instructions

warrant reversal.

In its eff ort to prove the elements of the defaced firearm charge
, 1 the State

introduced the testimony of a detective who was qualified in the first trial as a

firearms and ballistics expert . Although the expert properly testified about his

testing of the weapon an d his analysis of firearms and ballistics evidence seized

by the police, he

– without objection from defense counsel

– stated on several

occasions during his direct testimony that the firearm a llegedly possessed by

defendant was defaced. While explaining to the jury the nature of a cartridge,

1 The state must prove three elements, beyond a reasonable doubt: (1) there was a firearm, (2) the firearm was defaced, and (3) defendant knowingly possessed that firearm. N.J.S.A. 2C:39

- 3(d ) ; see Model Jury Charge (Criminal)
,
" Possession Of A Defaced Firearm (N.J.S.A. 2C:39

- 3d)" (rev. February 9, 2009).4 A

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and a nswering the trial judge's interjected question about the location of

cartridges when the expert received them, the judge instructed the exp ert to
continue his testimony. The expert offered the non sequitur, "So i t had a defaced

serial number." The assistant prosecutor later followed

- up:

[ The assistant prosecutor :] Okay. Now you indicated when that came in that the serial number was defaced. What do you mean by defaced?

[ The expert :] Meaning that

– I have h ad a chance to look at the pictures. Um, serial number should be

– there is minimum heights and depths for serial numbers. Um, after 1968 there was the Gun Control Act which required serial numbers on weapons. However, this one here the location that it had was defaced, meaning that you could not read the number at all. It was taken away and it appeared

– it appears that some kind of either grinding device, sanding device

– some kind of device but I can see parallel scratches

– is the best way I can des cribe it, and it does not appear that a pointed hand tool

– somebody could have sat there and done that. Because there are two well in line here.

At the end of direct examination, further testimony was elicited :

[ The assistant prosecutor :] And when you r eceived that gun that number we see at the bottom was not visible. Is that accurate?

[ The expert :] That's correct.

Q. And the portion that covers that hidden serial number is that designed to be removed or did you have5 A

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– for lack of a better term, di d you have to pry that off?

A. I had to cut and peel and/or pry to get it off.

Q. And based on your observation of that gun and your testing of that gun, is it your opinion that that is an operable firearm?

A. Yes, sir.

Q. And that it had a defaced serial number?

A. Yes, sir.

Expert testimony is admissible pursuant to Rule 702 only if the proponent

establishes "the subject matter of the testimony [is] 'beyond the ken of the

average juror

. . . . [ 2 ] '" J.L.G. , 234 N.J. at 280 (quoting Kelly , 97 N.J. at 208) ;

see N.J.R.E. 702

. Matters " wi thin the competence of the jury " are for the

collective wisdom of the jury to assess. See State v. Sowell , 213 N.J. 89, 99

(2013). By contrast, issues that are " beyond the understanding of the average "

juror ma y call for expert evidence. Ibid.

2 Proponents must also show " the [expert's] field of inquiry ' must be at a state of the art such that an expert's testimony could be sufficiently reliable'; and . . .

' the witness must have sufficient expertise to offer the' testimony. " State v. J.L.G. , 234 N.J. 265, 280, reconsideration denied , 235 N.J. 316 (2018) (quoting State v. Kelly , 97 N.J. 178, 208 (1984) ).6 A

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Opining about a factual issue that is not outside the understanding of the

average juror is improper. See Id

. at 100, 104 (noting "the case law makes clear

that it is not proper to present expert testimony about straightforward but

disputed facts" and that, "even if a defendant does not object, the trial judge has

the responsibility both to exclude unnecessary, inadmissib le expert testimony

and to monitor the use of hypothetical questions when the testimony is

warranted"). When such testimony is erroneously admitted, a conviction based

upon it should not stand, even under the plain or harmless error standards, unless

ther e is "overwhelming evidence" of guilt. See Id. at 107

- 08. As the Court

explained in State v. Cain
, 224 N.J. 410, 426 (2016):

The jury brings a breadth of collective experience, knowledge, and wisdom to the task. Expert testimony is not necessary to expl ain to jurors the obvious. It is
not a substitute for jurors performing their traditional function of sorting through all of the evidence and using their common sense to make simple logical deductions.

Here, the expert 's testimony intruded on the provinc e of the jury which

had to determine if the State proved that the firearm was defaced, an issue no

juror needed an expert's assistance to understand. "Defaced" has a simple

definition: "to remove, deface, cover, alter or destroy the name of the maker,

mo del designation, manufacturer’s serial number or any other distinguishing

identificatio n mark or number on any firearm." N.J.S.A. 2C:39

- 1(b) ; see also7 A

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Model Jury Charges (Criminal) , "Possession Of A Defaced Firearm (N.J.S.A.

2C:39

- 3(d)). " Although the expert properly explained what a serial number was

and where it is normally located, he could not offer an opinion about an ultimate

issue in the case.

The expert's testimony was clearly capable of influencing the jury and

producing an unjust result , requi ring reversal. R. 2:10

- 2. "[E]xpert testimony

coming from a law enforcement officer claiming to have superior knowledge

and experience likely will have a profound influence on the deliberations of the

jury." Cain , 224 N.J. at 427. We note the assistant prosecutor touted the expert's

opinion on the specific issue of defacement during his summation:

Well, you heard from [the expert]. He's an expert in firearms. He's an expert in forensic ballistics. And he told you he is familiar with that type of gun and when he got it he saw that it was defaced. He saw that the serial number on that gun had been removed.

The possibility of injustice engendered by the expert testimony and highlighted

by the assistant prosecutor 's closing remarks was "sufficient to raise a reasonable

doubt as to whether the error led the jury to a result it otherwise might not have

reached." State v. Mac on , 57 N.J. 325, 336 (1971).

The t rial judge's jury

- instruction errors regarding the predicate

- act
element of the certain persons charges in the second trial also compel reversal

.8 A

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That element, one of three the State is required to prove to obtain a certain

person s conviction, 3 requires the production of evidence that defendant was

convicted for one of the crimes enumerated in the statute

. See N.J.S.A. 2C:39

-
7(b).

It has long been recognized that "proof that defendant was a convicted

felon (required in the trial of the [certain persons] charge) clearly tends to

prejudice the jury in consideration of" not only the gun possession ch arge which

was tried first, Ragland , 105 N.J. at 193, but also the certain persons charge
, State v. Bailey , 231 N.J. 474, 484 (2018)

. In order to ameliorate that prejudice

in certain persons trials, a defendant may "stipulate to the prior

- conviction

eleme nt to prevent the government from presenting evidence concerning the

nature and type of prior conviction." State v. Brown , 180 N.J. 572, 583 (2004)

.
Defendant followed that course in the second trial. After the return of the

jury's guilty verdict on the defaced firearm charge but before the judge addressed

the jury at the start of the bifurcated trial, defense counsel at a requested sidebar

3 The other elements the S tate is required to prove are that
, after a defendant was convicted for one of the crimes enumerated in the sta tute , the defendant subsequently purchased, own ed, possessed or controlled a firearm. N.J.S.A. 2C:39

- 7(b)

.9 A

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informed the court that defendant decided to stipulate "that he is g uilty of the

predicate offenses " ; the State agreed

. When such a stipulation is entered, " the jury need be instructed only that

defendant was convicted of a predicate offense." Id. at 585. The pertinent part

of the model jury charge in effect at the time of defendant's trial 4 provided:

The third element the State must prove beyond a reasonable doubt is that defendant is a person who previously has been convicted of . . . the predicate offense. In this matter, the parties have stipulated, or agreed, that defendant has previously been convicted of . . . a predicate offense. You are instructed as follows with regard to the stipulation that you should treat these facts as being undisputed, that is, the parties agree that these facts are true. As with all evidence, undisputed facts can be accepted or rejected by the jury in reaching a verdict

.
[ Model Jury Charges (Criminal) , “Certain Persons Not To Have Any Weapons (N.J.S.A. 2C:39

- 7(a ))” (rev. June 13, 2005 ) (emphas is added) .]

Instead of instructing the jury in accordance with the model charge, the

trial judge told the jury in what he descr ibed as "my preliminary charge" :

[C]ounsel have just advised me that the defendant is willing to enter into a stipulation, which has been accepted by the State. And a stipulation means that

4 We note that the model jury charge has been updated since defe ndant's trial, but those alterations do not affect the portions discussed in this opinion

. See Model Jury Charges (Criminal) , “Certain Persons Not To Have Any Weapons (N.J.S.A. 2C:39

- 7(a))” (rev. Feb. 12, 2018).10 A

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– that he was someone who is not allowed to possess a firearm.

Continuing the " preliminary " instruction prior to the start of the second trial, the

judge, in reviewing the three elements of the certain persons crime, told the jury

the third element, "which you will not have to make a determination on, is that

[defendant is] a person wh o had this predicate offense." Fini shing his

"preliminary charge," the judge again recapped the elements and, as to the third

element, instructed:

And, third, is the final element that has been stipulated. That there was a predicate conviction. If you find after hearing this additional te stimony or proofs that the State has proven beyond a reasonable doubt each of these elements

– and you need not find that as to element three. That has been stipulated. Then you must find the defendant guilty.

In his final inst ructions, the judge remind ed the jury the third element was

that "the defendant is a person who has previously been convicted of one of

those predicate offenses and that has been stipulated," and " that defendant is a11 A

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person who has been convicted of a predicate offense, agai n, whic h has been

stipulated."

Because defendant did not object to the instructions , our review is for

plain error. R. 2: 10

- 2. The judge's repeated instructions demonstrated a "legal

impropriety in the [jury] charge prejudicially affecting the substantial righ ts of

the defendant and sufficiently grievous to justify notice by the reviewing court

and to convince the court that of itself the error possessed a clear capacity to

bring about an unjust result." State v. Hock , 54 N.J. 526, 538 (1969).

As made cle ar by the model jury charge, "in a criminal case, the jury is

not bound by stipulated facts." State v. Wesner , 372 N.J. Super. 489, 494 (App.

Div. 2004). "A jury is free to reject any evidence, including that which is

uncontroverted." Ibid. "[I]f facts are stipulated, the judge should not tell the

jurors that they are 'bound' by such stipulated facts, if to do so would result in a

directed verdict of any element of an offense charged." Id. at 491.

We are unconvinced by the State's argumen t that the jury charge, viewed

as a whole, "was proper and had no ca pacity to prejudice defendant." The jury

received numerous instructions that they need not consider the third element of

the certain persons offense because of the entered stipulation

– w hich it had the

right to accept or reject. Since a predicate offense is a material element, see12 A

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N.J.S.A. 2C:1

- 14 (i) , and "'" erroneous instructions on material points are
presumed to " possess the capacity to unfairly prejudice the defendant.'" State v.

Ba um , 224 N.J. 147, 159 (2016) (quoting State v. Bunch , 180 N.J. 534, 541

- 42

(2004 )) ; see also Ragland , 105 N.J. at 193

- 95 (noting the State must prove "each

and every material element of the crime beyond a reasonable doubt" in a

N.J.S.A. 2C:39

- 7 prosecution ), reversal of defendant's conviction in the second

trial is warranted

. Reversal is also required b ecause the trial judge did not instruct the jury

on its proper con sideration of the predicate act. We previously held the failure

of a trial court to i nstruct the jury that a "defendant's prior convictions had no

place in its deliberations" on the possession element of the certain person s crime

deprived the defendant of a fair trial. State v. Alvarez , 318 N.J. Super. 137, 150

(App. Div. 1999). Our Supr eme Court viewed a limiting instruction
, "emphasizing that the jury could not use [a] defendant's prior conviction to infer

that he more than likely possessed the weapon in the current offense" in a certain

persons trial, as an "appropriate measure[] to en sure [a] defendant would receive

a fair trial

. [ 5 ] " Brown , 180 N.J. at 585.

5 The trial in Brown was not bifurcated. The State dismissed the underlying unlawful possession of a weapon count and proceeded only on the certain persons charge. Brown 180 N.J. at 575.13 A

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The trial judge omitted that portion of the certain persons model jury

charge that provides:

Normally evidence

. . . of the predicate offense(s) is not permitted under our rules of evidence. This is because our rules specifically exclude evidence that a defendant has committed prior crimes when it is offered only to show that he/she has a disposition or tendency to do w rong and therefore must be guilty of the present offense. However, our rules do permit evidence of prior crimes when the evidence is used for some other purpose.

In this case, the evidence has been introduced for the specific purpose of establishing an element of the present offense. You may not use this evidence to decide that defendant has a tendency to commit crimes or that he/she is a bad person. That is, you may not decide that, just because the defendant has committed

. . . prior crime[s] , he/sh e must be guilty of the present crime[s]. The evidence prod uced by the State concerning . . . prior conviction[s] is to be considered in determining whether the State has established its burden of proof beyond a reasonable doubt.

[ Model Jury Charges (Cr iminal) , “Certain Persons Not To Have Any Weapons (N.J.S.A. 2C:39

- 7(a))” (rev. June 13, 2005) (footnotes omitted) .]

Proper limiting instructions in certain persons trial s are essential safeguards of

a defendant's right to a fair trial. See Brown , 180 N.J. at 583 (requiring limiting

instructions in bifurcated trials since it was "mindful of the obvious potential for

prejudice that the evidence of a prior felony conviction might have in any case").14 A

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We reject the State's argument that the judge's referen ces to the jury

instructions in the first trial sufficiently alerted the jury to the proper use of the

predicate act in its deliberations. During his final instructions in the second trial,

the judge stated:

As I told you up front, an indictment is not

ev idence of the defendant's guilt on the charge. You may recall that I had gone through all of the principles that apply to you. The general principles of presumption of innocence, burden of proof, reasonable doubt. I told you about the function of the co urt. My questions, the function of you, the jury. I have explained several times direct and circumstantial evidence. The difference between the two. Credibility of witnesses. False in one, false in all. Does anyone need any of those repeated? Becau se if you do, you still have the charge from the last trial in chambers or in the jury deliberation room with you and you can refer to that. But by all means if you do need further explanation or me to read it again, just send out a note and we can do tha t. But those very same principles apply here.

None of those referenced prior jury charges related to the elements of the certain

persons offense, particularly the third

- element limiting instruction on the use of

the predicate act. And none of the instructions given during the first trial

provided the required guidance for such prejudicial evidence.

We also see no merit in the State's argument that there was no need for a

limiting instruction because the predicate act was intrinsi c evidence of the15 A

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certain persons offense. We need not decide if that evidence is intrinsic. As we

held in Alvarez :

It is "undeniable that the use of prior conviction evidence is fraught with a high risk of prejudice." State v. Brunson , 132 N.J. 377, 38 5 (1993). Thus, whether the State seeks to use "other crimes" evidence for a purpose allowed under N.J.R.E. 404(b) ( e.g. motive, intent, identity), or to impeach a testifying defendant, great care must be taken to instruct the jury that it is impermissibl e to use the prior convictions to demonstrate a predisposition to commit an offense. Brunson , 132 N.J. at 390

- 91; State v. Cofield , 127 N.J. 328, 341

- 42 (1992); State v. Stevens , 115 N.J. 289, 309 ( 1989); State v. Sands
, 76 N.J. 127, 142 n.3 (1978).

[318 N.J. Super. at 149.]

The same caveat would apply to intrinsic evidence.

The failure to provide the jury with the required limiting instruction

– like

the judge's repeated instructions about the stipulation

– was plain error, a "legal

impropriety in the [jury] charge prejudicially affecting the substantial rights of

the defendant and sufficiently grievous to justify notice by the reviewing court

and to convince the court that of itself the error possessed a clear capacity to

bring about an unjust result." Hock , 54 N.J. at 538.

Reversed and remanded to the Law Division for a new trial on both

indictments. We do not retain jurisdiction.