Decided: May 12, 1986.
STATE OF NEW JERSEY, PLAINTIFF,
ROBERT CAMPBELL, SR., DEFENDANT
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A Morris County Grand Jury returned an indictment charging defendant with aggravated sexual assault (two counts) in violation of N.J.S.A. 2C:14-2a.(2)(a), with sexual assault in violation of N.J.S.A. 2C:14-2c.(4), and with aggravated criminal sexual contact in violation of N.J.S.A. 2C:14-3a. The victim in each instance was his teenage daughter. A petit jury found him guilty as charged on all four counts.
At the trial, the court excluded evidence of defendant's two prior criminal convictions because of their remoteness. See State v. Sands, 76 N.J. 127, 144-145 (1978).*fn1 The records [212 NJSuper Page 324] showed that defendant had pleaded guilty in 1964 to carnal abuse in violation of N.J.S.A. 2A:138-1 and in 1969 to receiving stolen property in violation of N.J.S.A. 2A:139-1. In considering the lapse of time, 22 years and 17 years respectively, his youthfulness, the nature of the prior sexual offense particularly, and that his crimes did not involve a lack of veracity, dishonesty or fraud, the court determined that the prejudicial effect upon the defendant substantially outweighed the relevance with respect to credibility of defendant. Defendant then sought a ruling that the State could not use either conviction in questioning any character witnesses defendant might call. This opinion is written to expand the reasons given at trial to bar this form of cross-examination.
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Defendant offered to call Barbara White to attest to defendant's reputation in the community as a "good family man." See Evid.R. 47.*fn2 At a hearing conducted under Evid.R. 8(1), White demonstrated to the court an adequate factual basis for her knowledge of his present reputation in the community. See Evid.R. 63(28). Her knowledge of Campbell's reputation as a "good family man" was, however, limited to the period of time that she knew him, approximately the last five or six years. If her reputation testimony was accepted by the jury, the jury could infer that such a "good family man" would not be involved in an incestuous relationship with his daughter and thus negate the substantive elements of the crimes charged.
In situations when the propriety of such cross-examination of a character witness is in doubt, counsel should seek and the court should conduct a preliminary inquiry out of the presence of the jury at which a proffer should be made. The proffer will enable the court to weigh the probative value of any conviction as well as its potential prejudicial effect. Before allowing such cross-examination, the court should not only be satisfied that the conviction was of defendant, but also that the conviction was not too remote in time, place, or character. State v. Williams, 16 N.J. Super. 372, 376 (App.Div.1951). The court should further be satisfied that the information would
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ordinarily be discussed in the community and thereby known to the witness. State v. Steensen, 35 N.J. Super. 103, 109 (App.Div.1955). Lastly, the convictions must be relevant to the character trait defendant has put in issue. Ibid.; State v. Williams, 16 N.J. Super. at 376. See also Rules of Evidence, Comment 8 to Evid.R. 47 (Anno.1986).
The court precluded the State from examining White about defendant's convictions. As pointed out in State v. Steensen, the court always may exercise discretion to limit the scope of cross-examination of any witness to ensure that it does not exceed proper bounds. 35 N.J. Super. at 109. The trial judge has the duty to protect reputation testimony from abuse. State v. Raymond, 46 N.J. Super. 463, 468 (App.Div.1957), certif. den. 25 N.J. 490 (1957). The prosecutor has a correlative obligation to display a high degree of care in cross-examination. State v. Steensen, 35 N.J. Super. at 109.
Ordinarily, it would be improper to confront a reputation character witness with remote convictions, particularly when defendant's evidence of a good character has been confined to a time reasonably near the time of the offense for which he is on trial. Cf. State v. Williams, 16 N.J. Super. at 376; State v. Steensen, 35 N.J. Super. at 108-109. The concept of remoteness with respect to credibility, then, serves a link that connects the Sands rule limiting cross-examination of a defendant to a similar exclusionary rule respecting a reputation character witness. Evid.R. 47. Convictions which are too remote to have any bearing on defendant's credibility are unlikely to have any probative effect on the credibility of such a character witness.*fn3
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The impeachment value of the questions concerning the convictions 22 years and 17 years earlier would have negligible bearing on the credibility of the character witness. This would apply particularly in the instance of White who had known defendant for only the prior five or six years. Accordingly, this court concluded that the convictions were too remote in time to be material on the issue of the witness' knowledge of defendant's reputation. Expressed another way, the prejudicial effect of putting defendant's convictions before the jury far outweighed their probative relevance as to the credibility of White. See Evid.R. 4.*fn4
State v. Whittle, 52 N.J. 407 (1968) does not compel a contrary result. There, defendant's 1944 conviction for counterfeiting in the State of Washington was utilized at a 1961 trial in an attempt to impeach his character witnesses. Defendant himself had testified before the character witnesses and was confronted with that conviction. Whittle is distinguishable on two bases, one factual, the other legal. Since the jury already knew of Whittle's conviction by the time the character witnesses testified, the conviction could not have taken on fresh, prejudicial significance. Two of the character witnesses dated their acquaintance with defendant prior to 1944, and thus could have expected to have known of his conviction. Further, Whittle was decided before Sands. At trials held before Sands, all convictions were available for impeachment purposes. See
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State v. Hawthorne, 49 N.J. 130 (1967). With a directional change in decisional law by virtue of Sands, the precedential value of Whittle is diminished. The policy reasons which are the Sands underpinnings are equally pertinent to this situation.
For these reasons, the court ruled that Evid.R. 4 barred use of the convictions, even though they would otherwise be admissible under Evid.R. 47.