On certification to the Superior Court, Appellate Division.
Stein, Wilentz, O'Hern, Handler, Pollock, Clifford, Garibaldi
The judgment of the Court was announced by
N.J.S.A. 2A:81-12 permits the introduction into evidence of a witness's prior convictions for the purpose of affecting the credibility of that witness. We interpreted that statute in State v. Sands, 76 N.J. 127, 386 A.2d 378 (1978), and concluded that whether a prior conviction may be admitted to impeach a testifying criminal defendant is a decision that rests within the sound discretion of the trial court. In Sands, we set forth broad guidelines for trial courts to follow in deciding whether the probative value of a prior conviction with respect to credibility outweighs the likelihood that its admission will create undue prejudice. Id. at 147.
In this case we consider whether admission into evidence of defendant's prior convictions for offenses similar to the charged offenses unfairly prejudiced defendant. We also consider whether evidence of prior convictions similar to charged offenses generally should be "sanitized" by limiting the evidence of prior similar-crime convictions so that the jury is not informed of the substantial similarity of the prior crime to the charged crime. Finally, we address defendant's claim that the State failed to establish an uninterrupted chain of custody sufficient to permit the introduction into evidence of cocaine found at the crime scene.
In October 1988, while investigating reports of narcotics activity, Elizabeth Police Department plainclothes detectives Koczur, Shields, and Owsiany observed defendant and an unidentified man in front of a telephone booth. According to Detective Koczur's testimony, defendant gave the other man a small item in exchange for an amount of money. Detective Shields stopped his unmarked police vehicle, and as Detective Koczur alighted from the vehicle, the unidentified man fled. He was not apprehended.
Detective Koczur approached defendant in what Koczur described as a "casual manner." Defendant reached into his right pants pocket, turned towards the telephone and, without depositing any money, began dialing. Detective Koczur testified that as he had approached defendant, he had observed that the telephone receiver was "on the hook." As Koczur continued to approach him, defendant reached into his waistband and removed several glass vials containing a white powdery substance. He dropped the vials to the ground. Detective Koczur immediately informed defendant that he was under arrest. According to Koczur's testimony, defendant attempted to break away from the detective, and as the two struggled, defendant stepped on the vials, "crushing them and kicking them in all directions." Detectives Shields and Owsiany intervened, and defendant was eventually handcuffed.
Detective Koczur put defendant in the police car while Detectives Shields and Owsiany attempted to scrape off the ground the white powdery substance they believed to be cocaine. The powder was mixed with crushed glass and colored plastic caps. Detective Shields testified that he had used a cigarette box and cellophane tape to collect the remnants of the powder. At police headquarters Detective Koczur completed a property slip for the cigarette box and put his name, the case number, and his initials on the property bag before sealing it. The bag was then placed in the police department safe. Detective Koczur also searched defendant and found in his jacket pocket $160 in twenty-dollar denominations; in his front right pants pocket, a crushed twenty-dollar bill; and in his front left pants pocket another six dollars. Detective Koczur did not find any evidence of narcotics on defendant's person.
Defendant was indicted for third-degree possession of a controlled dangerous substance, cocaine; third-degree possession of a controlled dangerous substance, cocaine, with intent to distribute; fourth-degree resisting arrest; and fourth-degree hindering apprehension or prosecution.
At a pre-trial hearing, the State indicated that if defendant were to testify, it would offer defendant's prior convictions to impeach his credibility. In 1987, defendant had pleaded guilty to possession of a controlled dangerous substance, possession of a controlled dangerous substance with intent to distribute, and theft. The trial court, in accordance with our decision in Sands, considered the remoteness and seriousness of the prior convictions. Noting that the predominant criterion of Sands is remoteness, the court stated:
In this particular matter I find that when we look at the main criteria of remoteness, we are talking about a very short period of time. * * *
These particular crimes that the defendant pleaded guilty to involve possession of a controlled dangerous substance as well as a theft charge and they certainly, in my opinion are the types of evidence matters that could very well affect credibility * * * .
Over defendant's objection, the trial court ruled that defendant's prior convictions would be admissible to impeach defendant's credibility if he were to testify.
At trial, Detective Koczur testified to the alleged drug transaction and defendant's subsequent struggle with the detectives. Investigator Jose Martinez of the Union County Narcotics Strike Force, qualified as an expert in drug distribution, testified that the plastic caps retrieved from the sidewalk fit into glass vials that, when filled with cocaine, would sell for twenty dollars. Martinez testified that in his opinion defendant had possessed cocaine with the intent to distribute.
Defendant did not testify at trial. He was advised by counsel that he had a right to testify and that the State could introduce his prior convictions to affect his credibility. He was also informed that he was entitled to have the jury instructed that it could not draw any adverse inference from his silence. Defendant declined such a charge. The sole witness for the defense was defendant's former girlfriend, Robin Johnson. Ms. Johnson testified that at the time of the alleged transaction, defendant had called her from a pay telephone to discuss their plans to go to the movies that evening. She testified that they had been on the telephone for approximately twenty minutes and that their conversation had ended when the phone had disconnected because defendant was not there to deposit more money.
The jury returned a "guilty" verdict on all counts. For sentencing purposes, the trial court merged the possession and possession-with-intent-to-distribute counts. Pursuant to the State's motion, the court sentenced defendant to an extended term of six-years imprisonment with a mandatory minimum of three years. N.J.S.A. 2C:43-6f. The court also imposed fines and penalties totaling $1,300.
Defendant appealed, arguing that the trial court should have sanitized the evidence of his prior controlled-dangerous-substance convictions or, in the alternative, should have excluded them because they were not a reflection of defendant's lack of veracity. Defendant also contended that if the Appellate Division were to reject those two alternatives, it should conclude that the trial court had abused its discretion by failing to distinguish the prior convictions in respect of their relevance to credibility, observing that the theft conviction alone would have impeached his credibility sufficiently. Defendant also alleged error in the trial court's admission into evidence of the cocaine that had been scraped from the sidewalk, contending that the State had failed to establish an uninterrupted chain of custody.
In an unpublished opinion, the Appellate Division rejected defendant's contentions and affirmed the convictions. We granted defendant's petition for certification raising substantially the same arguments, 130 N.J. 13 (1992).
N.J.S.A. 2A:81-12 states:
For the purpose of affecting the credibility of any witness, his interest in the result of the action, proceeding or matter or his conviction of any crime may be shown by examination or otherwise, and his answers may be contradicted by other evidence. Conviction of crime may be proved by the production of the record thereof, but no conviction of an offender shall be received in evidence against him in a civil action to prove the truth of the facts upon which the conviction was based.
In Sands, supra, 76 N.J. 127, we reviewed the history of the statute and determined that N.J.S.A. 2A:81-12 does not mandate the admission of every prior conviction of a testifying defendant. Id. at 147. We recognized that Evidence Rule 4 embodies a reservoir of judicial discretion. That Rule provides:
The Judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will * * * (b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury.
Recognizing the competing values underlying N.J.S.A. 2A:81-12 and Rule 4, we held in Sands that
the trial Judge shall admit evidence of criminal convictions to affect credibility of a criminal defendant unless in his discretion he finds that its probative force because of its remoteness, giving due consideration to relevant circumstances such as the nature of the crime, and intervening incarcerations and convictions, is substantially outweighed so that its admission will create undue prejudice. By recognizing this discretionary power in the trial Judges, we shall have removed an obstacle "in their conscientious efforts to insure fair trial and do Justice."
N.J.S.A. 2A:81-12 is based on the widespread belief that a criminal conviction is probative of a witness' credibility. Hawthorne, supra, 49 N.J. at 145:
"There is a basis in reason and experience why one may place more credence in the testimony of one who has lived within the rules of society and the discipline of the law than in that of one who has so demonstrated antisocial tendency as to be involved in and convicted of serious crime."
[Sands, supra, 76 N.J. at 143 (quoting State v. Harless, 23 Utah 2d 128, 459 P.2d 210, 211 (Utah 1969)).]
The Sands holding also is predicated on the assumption that one who previously has been convicted of a crime may evade the truth to avoid a subsequent conviction.
Nevertheless, we have recognized in the context of Evidence Rule 55 that other-crimes evidence may be simultaneously probative and prejudicial. State v. Stevens, 115 N.J. 289, 300, 558 A.2d 833 (1989). Evidence Rule 55 bars the introduction into evidence of other crimes to prove a defendant's criminal nature but permits introduction of other-crimes evidence to prove a fact in issue at trial. In Stevens, supra, we noted the tendency of other-crimes evidence to turn a jury against a defendant. Id. at 302-03. The prejudice inherent in other-crimes evidence, even when it is probative of a fact in issue, is that a jury, on hearing that evidence, may be influenced to return a guilty verdict because it considers the defendant to be a criminal. See State v. Cofield, 127 N.J. 328, 336, 605 A.2d 230 (1992). The inflammatory nature of other-crimes evidence also may influence juries unduly when that evidence is admitted for impeachment purposes under N.J.S.A. 2A:81-12.
In an effort to mitigate the prejudice of a prior conviction introduced to impeach the credibility of a testifying defendant, we have held that the trial court must explain carefully to the jury the limited purpose of prior-conviction evidence. Sands, supra, 76 N.J. at 142 n.3 (citing State v. Sinclair, 57 N.J. 56, 63, 269 A.2d 161 (1970)). Despite a trial court's efforts to limit the prejudicial impact of prior convictions, criminal defendants often choose not to testify in order to keep the prior-conviction evidence from the jury. See Harry Kalven, Jr. & Hans Zeisel, The American Jury 146 (1966) (reporting that 74% of defendants with a criminal record testified as compared to 91% of those defendants without a record). A defendant who fails to testify, however, also withholds his or her version of the facts from the jury. In addition, silence may suggest to the jury that the defendant has something to hide, a concern that may be tempered by the trial court's instruction to the jury that it should not draw an adverse inference from a defendant's silence. Carter v. Kentucky, 450 U.S. 288, 302, 101 S. Ct. 1112, , 67 L. Ed. 2d 241, 252 (1981); State v. Bogus, 223 N.J. Super. 409, 422, 538 A.2d 1278 (App. Div.), certif. denied, 111 N.J. 567 (1988).
Although prior-conviction evidence is effective in impeaching a defendant's credibility, concern frequently is raised about the extent to which juries consider that evidence as proof of guilt. Commentators generally agree that the use of prior-conviction evidence is fraught with a high risk of prejudice, and they express skepticism about the effectiveness of an instruction to the jury to limit its use of the evidence to an assessment of defendant's credibility. See James E. Beaver & Steven L. Marques, A Proposal to Modify the Rule on Criminal Conviction Impeachment, 58 Temp. L.Q. 585 (1985); James H. Gold, Sanitizing Prior Conviction Impeachment Evidence to Reduce Its Prejudicial Effects, 27 Ariz. L. Rev. 691 (1985); Robert G. Spector, Impeaching the Defendant by his Prior Convictions and the Proposed Federal Rules of Evidence: A Half Step Forward and Three Steps Backward, 1 Loy. U. Chi. L.J. 247 (1970); Ed Gainor, Note, Character Evidence by Any Other Name * * * : A Proposal to Limit Impeachment by Prior Conviction Under Rule 609, 58 Geo. Wash. L. Rev. 762 (1990); Note, To Take the Stand or Not to Take the Stand: The Dilemma of the Defendant with a Criminal Record, 4 Colum. J.L. & Soc. Probs. 215 (1968). Critics of prior-conviction impeachment evidence are concerned with a jury's tendency to convict a defendant if it knows the defendant previously has committed a crime. As one commentator explains, "The theory of 'limited use' under which such explosive evidence is put before the jury fails to correspond to the actual effect of the evidence even in the minds of the most sober and conscientious jurors." H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and InJustice in the Courtroom, 130 U. Pa. L. Rev., 845, 882 (1982). The risk that juries will use such evidence for an impermissible purpose is particularly high if the prior conviction is for a similar crime. Gold, supra, 27 Ariz. L. Rev. at 692. Nevertheless, the rationale for admitting prior-conviction evidence is that a jury is able to follow a trial court's limiting instruction and consider evidence of a prior conviction only to assess a defendant's credibility and not consider such evidence in assessing the likelihood of his or her guilt.
Professors Wissler and Saks conducted a study of jurors' use of prior-conviction evidence, predicting that "if the law's rationale is correct, more convictions would result when the prior conviction is for perjury; but if jurors are misusing the information, more convictions would result from a prior conviction for the same crime * * * ." Roselle L. Wissler & Michael J. Saks, On the Inefficacy of Limiting Instructions, 9 J.L. & Hum. Behav. 37, 39 (1985). They concluded that prior-conviction evidence did not affect significantly the preDisposition of jurors to doubt the credibility of criminal defendants. However, their study determined that the rate of conviction varied depending on the type of crime previously committed, the highest conviction rate resulting when the prior crime was the same as the charged offense. Id. at 43. Those results corroborated the findings of several earlier studies. See Anthony N. Doob & H.M. Kirshenbaum, Some Empirical ...