On appeal from Superior Court, Law Division, Hudson County.
Botter, King and McElroy. The opinion of the court was delivered by Botter, P.J.A.D.
The principal issue on this appeal is whether the rule of State v. Sands , 76 N.J. 127 (1978), that a trial judge has discretion to exclude evidence of prior convictions offered to impeach the credibility of a defendant, applies only to criminal defendants who testify or to other witnesses as well. The only related reported opinion on this subject is by Judge Morton I. Greenberg, then sitting in the Law Division, who held that the State v. Sands rule does not apply to a defendant in a civil case but should be limited to the situation where a criminal defendant takes the stand. American Paint & Flooring Covering v. Public Service Electric & Gas Co. , 163 N.J. Super. 210 (Law Div.1978). Thus, Judge Greenberg eschewed the exercise of discretion to determine whether the convictions of a witness in a civil case should be excluded because of remoteness in time, although he noted that the logic of State v. Sands "could be extended to any witness since the court cited Evid.R. 4 as the source of the discretion to exclude the evidence. 76 N.J. at 144." Id. at 212.
On the basis of the reasoning of the court in State v. Sands , we conclude that a trial judge has discretion pursuant to Evid.R. 4 to exclude proof of prior convictions offered to affect the credibility of any witness. Therefore, we must consider the application of this rule to the case at hand.
In the case before us defendant was convicted by a jury of resisting arrest and possession of a dangerous weapon, an axe. He was not found guilty of assault and battery on a police officer. The factual background can be set out briefly. The State introduced evidence to show that at about 11:15 p.m. on July 13, 1977 defendant and a companion were observed by a police officer in a park known as Pershing Field in Jersey City. Defendant was wielding an axe above his head while shouting threats to a group of men at the basketball court. As the police officer put his motorcycle in gear to approach defendant and his companion, both fled, and the officer pursued them. When defendant and his companion reached a black Chevrolet parked
beyond the wall of the park, defendant opened the trunk of the car with his key, deposited the axe in the trunk, and closed the lid. A number of officers arrived simultaneously. Defendant was seized and frisked for weapons, his key was used to open the trunk, and the axe was retrieved. There was evidence that when he was placed under arrest defendant physically resisted and a struggle ensued. Another individual intervened in the scuffle and he too was placed under arrest.
Defendant testified that he and four friends were merely standing by his automobile when he was approached by police officers who ordered him to open the trunk of his vehicle and started to manhandle him. The police used his key to open the trunk and found a long-handled axe and other tools in the trunk of his car. Defendant was arrested, handcuffed behind his back, and placed in a squad car. Defendant claims that he did not resist arrest but that, while in the car with another individual who was also arrested, an argument ensued and defendant was attacked and violently beaten by several police officers, resulting in injuries which required medical treatment (these were corroborated by photographs at the trial). He testified that he had loaned his car previously to his brother who apparently put the axe in the trunk, but he knew it was there before the police opened the trunk. He also testified that he used axes for his "scrap metal" work.
Willie John Hall was called by defendant to corroborate his version of the incident. Hall was present when defendant was arrested. Hall had asked defendant and three other friends to accompany him that night when he went to see someone in the park who had previously given Hall some trouble and who owed him money. Before Hall testified, defense counsel asked the court to rule that Hall's prior criminal convictions could not be used to impeach him. He had previously been convicted in 1966 for assault with intent to rob and in 1969 for breaking and entering and malicious damage to property. Defense counsel urged that these convictions were remote and were irrelevant to
this incident which occurred years later. The trial in question was held on March 27, 1979.
The trial judge ruled that the holding in State v. Sands, supra , applied only to a case where a defendant "takes the stand" and that defendant would not be unduly prejudiced if convictions were used to affect the credibility of a witness other than himself. Nevertheless, the trial judge also suggested that he might preclude the use of a very old conviction of a mere witness. He stated:
If it was about twenty years or so ago, I would say yes. But I don't see any great problem with a conviction ten years ago for a witness, witness only, not ...