Submitted January 22, 1998
On appeal from Superior Court of New Jersey, Law Division, Union County.
Before Judges Shebell, D'Annunzio and Coburn.
The opinion of the court was delivered by: Coburn, J.A.D.
Tried to a jury, the defendant was acquitted on two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3b (counts one and three) and convicted on two counts of fourth-degree criminal contempt, N.J.S.A. 2C:29-9b (counts two and four). The offenses charged in counts one and two were alleged to have occurred at the same time on March 22, 1993; and the offenses charged in counts three and four were alleged to have occurred at the same time on June 13, 1993. The defendant and the victim were married but separated, and all of the charges arose from the defendant's alleged violation of a final restraining order issued pursuant to the Prevention of Domestic Violence Act of 1990, N.J.S.A. 2C:25-17 to -33 (the Act). The Court sentenced the defendant to concurrent terms of probation for four years. Defendant appeals. We reverse the judgment of conviction and remand for a new trial.
The defendant, James Singleton, and the victim, Robyn Martin were married in 1988. Within three months of their marriage, Robyn obtained a final restraining order under the Act. They reconciled some time later, and in 1991 Robyn gave birth to their child. However, the relationship deteriorated, they separated on January 2, 1992, and on March 2, 1992, Robyn obtained and served upon the defendant another final restraining order issued pursuant to the Act. The order prohibited the defendant from going to Robyn's home on Waverly Place, Elizabeth, and from having contact with or making harassing communications to her.
On March 22, 1993, defendant placed "a few" telephone calls to Robyn at her place of employment. He told her to "drop the child support" and he threatened to kill her. Robyn described his voice as "extremely angry," "ery bitter," and "very desperate." The telephone calls lasted for approximately five minutes, during which time she repeatedly hung up on defendant and he called "right back."
On June 13, 1993, the defendant appeared at Robyn's home on Waverly Place. He rang the doorbell. She refused to open the door because she was afraid. The defendant was yelling and was acting "ery angry, crazy." Looking through the peephole of her front door, Robyn could see that the defendant was carrying a handgun in his left hand. He said he knew she was in there, and he wanted her to come outside so he could "just get things over with to end things." He threatened to kill her. Finally, after about ten minutes, he left. Robyn immediately called her mother, Lucille Martin, and told her what had just happened.
Apart from the evidence respecting the service on defendant or the final restraining order, the State's case was based solely on the testimony of Robyn Martin. The only other witness was Robyn's mother Lucille Martin. The defendant called her to establish that, contrary to Robyn's testimony, Robyn had failed to mention to her mother during the telephone conversation of June 13 that the defendant was armed.
After Lucille Martin testified, the defendant, who was appearing pro se, announced in front of the jury, as he had previously indicated in his opening statement, that he would testify. At that point, the prosecutor asked for a sidebar conference during which she advised the trial court and the defendant that if the defendant testified the State wanted to introduce indictable convictions as bearing on defendant's credibility. On October 19, 1984, the defendant was sentenced in the State of New York to concurrent terms of three to nine years of imprisonment on two counts of second-degree robbery. On March 31, 1989, the defendant was sentenced in New Jersey to probation for third-degree unlawful possession of a firearm in violation of N.J.S.A. 2C:39-5. The judgment does not indicate which subsection of this statute was violated other than by reference to the degree of the crime. The defendant objected to the admission of the robbery convictions as too remote. The trial court rejected that position in light of the more recent conviction. The Court then determined, sua sponte, that it would "sanitize" the possession of a firearm conviction but not the robbery convictions. The Court said:
I'll not allow the State to refer to the fact that it was a conviction for unlawful possession of a weapon, lest the jury think because you were convicted of it in 89, you may have had a gun in your possession in 93. So, I'll not allow that, but they will be allowed to ask you if you were convicted of a third-degree crime and [bring out the] sentence you received as to that, and the robbery conviction they would be allowed to go into anything about that . . . . * * * So, I'll permit it. If you get on the stand they will be allowed to bring it [the robbery judgment] up.
The defendant responded by asking, "To what extent?" The Court replied, "To the extent of on the robbery conviction what it was for, what the sentence was." As a result of these rulings, the defendant decided not to testify.
The defendant contends that he was severely prejudiced by the Court's decision to sanitize only one of his prior convictions. The State concedes that the Court erred in this respect. We agree. The decision unquestionably violated the law as set down in State v. Brunson, 132 N.J. 377 (1993):
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 ...