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107.2 Exfelon In Possession Of Firearm: Miscellaneous Issues

    107.2.1 Exfelon In Possession Of Firearm: Possession Issues
    107.2.2 Exfelon In Possession Of Firearm: Juror Unanimity
    107.2.3 Multiple Possessions Of Firearm By Exfelon
    107.2.4 Refusal Of Stipulation To Exfelon/Misdemeanant Status As Due Process Violation
    107.2.5 Exfelon In Possession Of Firearm: No Speculation About Nature Of Prior Felony Where Stipulated
    107.2.6 Stipulation Removing Prior Felony From Jury
    107.2.7 Exfelon In Possession Of Firearm: Due Process Requires Sua Sponte Instruction Regarding Stipulation Of Underlying Felony
    107.2.8 Exfelon In Possession Of Firearm: Definition Of "Control"
    107.2.9 Pinkerton Theory Insufficient To Support Ex-Felon In Possession Of Firearm Charge

    107.2.1 Exfelon In Possession Of Firearm: Possession Issues

PRACTICE NOTE:  For issues relating to possession, see NCJIC Chapter 56 [Possession].

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    See NCJIC 273.10.11.4 [Jury Unanimity: Firearm/Weapon Possession Offenses].

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    107.2.3    Multiple Possessions Of Firearm By Exfelon

PRACTICE NOTE:  As to the permissibility of multiple conviction for the possession of multiple units of contraband, see NCJIC 274.4.1 [Whether Multiple Possessions May Result In Multiple Convictions].

See 1st Circuit Pattern Jury Instructions - Criminal 4.06.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.47.

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    107.2.4    Refusal Of Stipulation To Exfelon/Misdemeanant Status As Due Process Violation

    See also NCJIC 39.1.1 [Does Offer To Stipulate To Prior Conviction Remove It From The Case?].

See 1st Circuit Pattern Jury Instructions - Criminal 4.06.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.47.

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RATIONALE: In some situations the jury is informed as to the existence, but not the nature of, the underlying felony when the defendant is charged with being an exfelon in possession of a firearm. If this is the case, a cautionary/limiting instruction may be necessary to limit prejudicial speculation by the jury.

POINTS AND AUTHORITIES: Some jurisdictions allow the jury to be informed as to the fact of the prior felony, but not its nature. (See e.g., People v. Valentine (CA 1986) 42 C3d 170, 173 [228 CR 25].)

    The presentation of an unspecified prior felony conviction to the jury invites prejudicial speculation. (See People v. Rollo (CA 1977) 20 C3d 109, 115-20 [141 CR 177]; see also People v. Barrick (CA 1982) 33 C3d 115, 126-28 [187 CR 716].) But, the prejudicial impact of the unspecified felony can be diminished if the jury is told in clear terms not to utilize the prior conviction for any purpose other than establishment of the status element of the offense. (Valentine, 42 C3d at 182, fn 7.)

    Thus, a limiting instruction may be appropriate upon the defendant's request. (Valentine, 42 C3d at 182, fn 7; see also State v. Green (LA 1986) 493 So2d 588, 590-92 [jury should be admonished not to consider the prior conviction in assessing whether the prosecution proved that the defendant possessed the firearm at the time of the charged offense].)

    See also NCJIC 107.2.6 [Exfelon In Possession Of Firearm: Stipulation Removing Prior Felony From Jury -- Jury Should Not Be Concerned With Why Possession Is Illegal].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

USE NOTE: As to whether this sort of limiting instruction should be given sua sponte see NCJIC 107.2.7 [Exfelon In Possession Of Firearm: Due Process Requires Sua Sponte Instruction Regarding Stipulation Of Underlying Felony].

See 1st Circuit Pattern Jury Instructions - Criminal 4.06.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.47.

    You must not consider the previous felony conviction for any purpose other than establishment of the previous felony conviction element of the charge. Neither the fact that the defendant has been previously convicted nor the nature of the prior conviction has any bearing on defendant's credibility or guilt on any charge. You must not speculate on the nature of the prior conviction.

[Source: People v. Valentine (CA 1986) 42 C3d 170, 182 [228 CR 25].]

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RATIONALE: If there is a stipulation that entirely removes the prior felony conviction issue from the jury, the jury may wonder why the defendant is being prosecuted simply for possession of a firearm which many jurors would know is not normally illegal. Hence, an instruction admonishing the jury not to speculate in this regard may be appropriate upon request.

POINTS AND AUTHORITIES: When the defendant charged with being a convicted felon in possession of firearm stipulates that he is a convicted felon, the court may, on request of defendant, instruct the jury that the law deems possession of firearm illegal in certain circumstances and that the parties have agreed that such circumstances exist. (See U.S. v. Orena (E.D. N.Y. 1992) 811 FSupp 819, 823; but see People v. Valentine (CA 1986) 42 C3d 170, 182 [228 CR 25] [jury informed about lack of prior felony but specific felony is not named].) Furthermore, the jury may be told of its duty to apply the law as instructed and that it need not concern itself with why the possession was illegal in case at hand. (Orena, 811 FSupp at 823.)

    See also NCJIC Chapter 39 [Defense Strategies As To Charged Prior Offense: Bifurcation and Stipulation].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See 1st Circuit Pattern Jury Instructions - Criminal 4.06.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.47.

    In certain circumstances possession of a firearm is illegal. In this case, the parties have agreed that such circumstances exist. Therefore, you need not concern yourself with why the possession was illegal. Your only concern is to apply the law as you are instructed to determine whether the prosecution has proven all necessary elements of the charge beyond a reasonable doubt.

[Source: NCJIC.]

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    107.2.7    Exfelon In Possession Of Firearm: Due Process Requires Sua Sponte Instruction Regarding Stipulation Of Underlying Felony

PRACTICE NOTE: The due process clause of the federal constitution (5th and 14th Amendments) prohibits a conviction from being based on "evidence which is utterly irrelevant or unduly prejudicial." (People v. Valentine (CA 1986) 42 C3d 170, 180 [228 CR 25]; Bruton v. United States (1968) 391 US 123, 131, fn 6 [88 SCt 1620; 20 LEd2d 476].) Accordingly, notwithstanding the fact that a limiting instruction regarding prior felony convictions must normally be requested (see Valentine, 482 C3d at 182 fn 7), due process may require that the instruction be given sua sponte in certain circumstances.

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 4.06.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.47.

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    107.2.8    Exfelon In Possession Of/In Control Of Firearm: Definition Of "Control"

    See generally NCJIC Chapter 56 [Possession].

RESEARCH NOTES:

Annotation, What Amounts To "Control" Under State Statute Making It Illegal For Felon To Have Possession Or Control Of Firearm Or Other Dangerous Weapon, 66 ALR4th 1240.

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   See NCJIC 63.1.7 [Pinkerton Theory Insufficient To Support Ex-Felon In Possession Of Firearm Charge].