Defendant is charged with a violation of N.J.S.A. 2C:39-7; Certain Persons Not to Have Weapons. The State alleged that he shot the victim with a .22 long-nose handgun. Defendant contends that he did not have a weapon, but that while he was in conversation with the victim, a carload of Haitians passed by firing weapons resulting in the wounding of the victim. A Sands hearing was held during which the State presented seven judgments of convictions. The last two convictions were for the same crime that defendant is presently charged with, namely Certain Persons Not to Have Weapons. The State chose not to exclude the two prior similar convictions from evidence.
To impeach the credibility of a testifying defendant, the State may introduce into evidence only the number, degree, and date of the defendant's prior similar convictions. When a defendant has multiple prior convictions, some of which are similar to the charged offense and some of which are dissimilar, the State may introduce evidence only of the date and degree of crime of all of the defendant's prior convictions, but cannot specify the nature of the offenses. Alternatively, the State may introduce without limitation evidence of only the dissimilar convictions.
Since the record in the case at bar must be sanitized with respect to defendant's prior convictions, both similar and dissimilar, the court must determine whether the sentences imposed upon the prior convictions can be used by the State to impeach the defendant's credibility. While the Court in Brunson does not specifically state that evidence of sentence may not be used to impeach a testifying defendant, in effect it does so by not including evidence of the sentence in the statement of inclusion.
The holding of the Supreme Court as quoted above is similar to the language proposed by the American Bar Association suggesting an amendment to Fed.R.Evid. 609 governing the use of prior convictions. Committee on Rules of Criminal Procedure and Evidence, A.B.A., Federal Rules of Evidence: A Fresh Review and Evaluation, 120 F.R.D. 299 (1988) (hereinafter Federal Rules of Evidence: A Fresh Review and Evaluation). While the A.B.A. proposal is broader in scope than the holding in Brunson since it extends sanitization to all witnesses, it is similar when dealing with party defendant witnesses.
The A.B.A. committee recommended the addition of section (d), Details of Conviction, to Fed.R.Evid. 609, which section reads:
Unless the right is waived by the party whose witness is being impeached, the only details of the crime which may be admitted for impeachment are the fact of the conviction, the name of the crime (but this may not be given if the witness is a defendant who is being tried for a similar offense), the time, place and number of times convicted, and whether the crime is a felony or misdemeanor. If any statement is made in mitigation, relevant rebutting details may be allowed to be inquired into.
[ Federal Rules of Evidence: A Fresh Review and Evaluation, supra, at 357.]
This rule makes it clear that the list of admissible data is all inclusive. Pursuant to the language found in the comment to the proposed rule, the committee contemplated the exclusion of evidence of the sentence imposed upon the conviction. The committee explained "[s]ince a few courts have allowed additional details, e.g., United States v. Bogers, 635 F. 2d 749, 751 (8th Cir.1980), the type of details which are admissible have been included in the Rule for clarification." Federal Rules of Evidence: A Fresh Review and Evaluation, supra, at 364.
A reading of Bogers reveals that one such "additional detail" intentionally excluded in the proposed rule was the sentence imposed upon a defendant's prior conviction. In the Bogers case, the defendant argued that evidence of the sentence should have been excluded. The Court held, "we . . . find no abuse of discretion in the Court's decision to allow inquiries ...