On November 17, 1982 defendant was convicted by a jury of possession of a weapon in violation of N.J.S.A. 2C:39-7. His sentence was scheduled for January 7, 1983. Defendant was then tried before a different jury on severed counts of the same indictment which allege aggravated assault (N.J.S.A. 2C:12-1b.(4)) and possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a)).*fn1 The issue here is whether defendant can be confronted at this second trial with this jury verdict of guilty for which he has not yet been sentenced.
In New Jersey a conviction which is on appeal is not admissible under N.J.S.A. 2A:81-12*fn2 to impeach the credibility of a defendant witness. State v. Blue, 129 N.J. Super. 8 (App.Div.1974), certif. den. 66 N.J. 328 (1974). The Blue doctrine was later limited in application to those appeals which attack the integrity of the conviction, not those which only challenge excessiveness of the sentence. State v. Anderson, 177 N.J. Super. 334 (App.Div.1981).
Defendant has indicated an intention to appeal his guilty verdict regardless what sentence is imposed on January 7.*fn3 At hearings held prior to that first trial, issues involving suppression of evidence and admissibility of defendant's incriminatory statements to police had been decided adversely to defendant. The State could not have proven the guilt of defendant without use of the evidence which was authorized by those decisions. Without retreating from any of those previous decisions, I would characterize defendant's constitutional issues raised as being legitimate for appellate review.
An appeal can only be taken "from the final judgment of a court." R. 2:5-1(a). If a conviction is inadmissible where the defendant has been tried, convicted, sentenced and then filed a notice of appeal, then logic would dictate that a verdict of guilty which is not yet appealable should be treated no differently. The only opinion in New Jersey on this point, however, reached a contrary conclusion. See State v. Rios, 155 N.J. Super. 11 (Law Div.1977). In Rios defendant was found guilty of a drug offense. Prior to his sentencing, he was tried for an unrelated drug offense. The trial judge allowed the prosecutor to confront defendant with the prior jury verdict since there was no appeal pending. I disagree with that use of a verdict of guilty.
In reliance on State v. Hawthorne, 49 N.J. 130 (1967), the trial judge in Rios read N.J.S.A. 2A:81-12 to mandate the admission of any prior criminal conviction which was not then on appeal. Subsequent to the Rios opinion the Supreme Court handed down its opinion in State v. Sands, 76 N.J. 127 (1978). In overturning the Hawthorne rule the Supreme Court construed the statute to confer discretion upon the trial judge to exclude proof of a prior conviction. At a hearing out of the presence of a jury the court must consider the age of the prior conviction(s), the nature of the crimes for which the conviction resulted, whether defendant
had been represented by counsel, the presence or absence of intervening convictions, and other relevant factors. If the court determines, pursuant to Evid.R. 4, that the prejudicial impact of the prior conviction substantially outweighs its impeachment value, evidence of the conviction may be excluded. Sands, 76 N.J. at 144-145.
The Sands opinion does not indicate that a different standard should apply depending upon whether the witness is the defendant, a defense witness or a State's witness. The rationale for discretion to exclude proof of prior conviction in Sands was, however, the chilling effect such proof would have upon a defendant in deciding to testify. The Supreme Court indicated that a defendant may well be discouraged from testifying because evidence of prior conviction would be used by the State on cross-examination. Despite a limiting cautionary instruction from the trial judge pursuant to Evid.R. 6, the concern was that knowledge of the earlier conviction would increase the likelihood of another conviction because the jury would infer incorrectly that the defendant is criminally predisposed.
In the courtroom a defendant has a different legal status compared to a prosecution witness or to a defense witness. As suggested in State v. Balthrop, 179 N.J. Super. 14 (App.Div.1981), aff'd 92 N.J. 542 (March 31, 1983), that same conviction which should not be admissible to impeach a defendant could be used to discredit a prosecution witness. State v. Baker, 133 N.J. Super. 398 (App.Div.1975), points out that a state witness who has been convicted but not yet sentenced may be motivated by a hope for leniency in his testimony. To show his possible interest, bias or prejudice, that witness may properly be confronted by a conviction. Of course, the defendant also has a real interest in the outcome of the trial. However, his self-interest is obvious to everyone concerned and does not therefore require special emphasis.
Let us consider the potential prejudice to a defendant in permitting the introduction into evidence ...