On certification to the Superior Court, Appellate Division
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Pollock, J.
This case questions whether a defendant must testify at trial to preserve his right to appeal the trial court's determination that the defendant's prior convictions may be used to impeach him if he testifies. In the present case, the defendant requested the Law Division to conduct a hearing in accordance with State v. Sands, 76 N.J. 127 (1978), to determine whether two prior convictions could be used on cross-examination to impeach defendant's credibility. After conducting a "Sands hearing," the court ruled that the convictions could be so used. Defendant declined to testify, and was convicted of aggravated sexual assault. The Appellate Division affirmed the conviction, ruling that because defendant did not testify, the trial court's ruling was not reviewable on appeal. 203 N.J. Super. 509, 513 (1985). We granted certification, 102 N.J. 331 (1985), and now reverse the judgment of the Appellate Division.
In 1982, defendant was indicted for aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4), and possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4(d). According to the victim, defendant forced her at knifepoint to enter a garage and engage in various sexual acts with him. The defense was that the victim consented to those acts.
Defendant had been convicted of possession of a weapon in 1979 and again in 1981. In permitting the prosecutor to use those convictions for impeachment purposes, the trial court ruled that the prior convictions were not remote in time, and that an instruction "as to the limited use of those convictions" would cure any "problems" that might arise because of the similarity between the prior weapons convictions and the weapons offense for which defendant was on trial. Defendant decided not to testify, and the jury found him guilty of aggravated sexual assault, but not of the unlawful possession of a weapon. On appeal, defendant contends that the trial court
abused its discretion in ruling that the prior convictions were admissible to impeach his credibility.
Until the decision of the Appellate Division under review, the standard appellate practice in this state had been to review a trial court's Sands ruling even if the defendant did not testify at trial. In refusing to follow that practice, the Appellate Division relied on Luce v. United States, 469 U.S. 38, 42, 105 S. Ct. 460, 464, 83 L. Ed. 2d 443, 448 (1984), which held that "to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify." Looking to the Rules of Evidence, the Appellate Division ruled "that a trial court's discretionary ruling under Evid.R. 4 to permit use of a criminal conviction to attack credibility pursuant to N.J.S.A. 2A:81-12 is not reviewable on appeal unless the defendant testified at the trial." 203 N.J. Super. at 513. Because the defendant did not testify, the Appellate Division held that the trial court's ruling to permit use of the prior convictions was not reviewable. Id.
Before Luce, the federal circuit courts disagreed over the admissibility of prior convictions for impeachment purposes under Federal Rule of Evidence 609(a).*fn1 The vast majority of the circuit courts allowed non-testifying defendants to appeal the trial court's determination that their prior convictions would be admissible for impeachment purposes. See, e.g., United States v. Kuecker, 740 F.2d 496, 499 n. 1 (7th Cir.1984); United
States v. Lipscomb, 702 F.2d 1049, 1069 (D.C.Cir.1983); United States v. Kiendra, 663 F.2d 349, 352 (1st Cir.1981); United States v. Provenzano, 620 F.2d 985, 1002 n. 22 (3d Cir.), cert. denied, 449 U.S. 899, 101 S. Ct. 267, 66 L. Ed. 2d 129 (1980); United States v. Toney, 615 F.2d 277, 279 (5th Cir.), cert. denied, 449 U.S. 985, 101 S. Ct. 403, 66 L. Ed. 2d 248 (1980); United States v. Cavender, 578 F.2d 528 (4th Cir.1978). Other circuit courts that did not require defendants to testify ...