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 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.” 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. The doctrine prevents litigants from ‘playing fast and loose’ with, or otherwise manipulating, the judicial process.”
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 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, 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. 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.
On remand, the prosecution often extends a more favorable plea deal to avoid having to expend resources to relitigate an old case. The deal often involves a “time served” sentence because the defendant will have accumulated years of jai credits while waiting for a favorable decision for our appellate courts. Here, however, the basis for reversal was arguably tenuous and the underlying conviction requires a mandatory minimum of five years of parole ineligibility, Thus, this might be the rare case where the prosecution seeks a new trial to maximize the defendant’s length of incarceration.
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