On certification to the Superior Court, Appellate Division.
SYLLABUS (This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The opinion of the court was delivered by: Judge Wefing
State v. Derrick Harris, Sr.
Argued October 25, 2011 - Decided February 27, 2012
WEFING, P.J.A.D. (temporarily assigned), writing for a majority of the Court.
In this appeal, the Court considers whether defendant's prior convictions for disorderly persons offenses, which are themselves inadmissible because they are not crimes, could be used to find that earlier criminal convictions were not too remote and were thus admissible to impeach the defendant's credibility if he testified.
In August 9, 2006, Cynthia Davis was awakened by an intruder in her home. She saw the man rifle through her purse and she called 9-1-1. After he left, the police responded and Cynthia described the intruder to them. She later identified defendant in a photographic array. Defendant was indicted for second-degree robbery and burglary.
Prior to trial, the court conducted a hearing pursuant to State v. Sands, 76 N.J. 127 (1978), to determine whether defendant's prior convictions would be admissible to impeach his credibility if he testified. Thirteen years earlier, in May 1994, defendant was convicted two counts of third-degree possession of a controlled dangerous substance and, after violating the terms of his original sentence of probation, was re-sentenced to concurrent four-year prison terms. At the Sands hearing, defendant argued that his 1994 convictions were so remote in time that they should not be admissible. The prosecution responded that defendant had many convictions for disorderly persons offenses in the intervening years, including convictions for shoplifting entered in 1994, 1996, 2005, and 2007; possession of burglar tools in 1996; defiant trespass in 2004; and possession of drug paraphernalia in 2005. The trial court was persuaded that although the disorderly persons convictions were not admissible, they could serve to "bridge the gap" of remoteness in time between defendant's earlier criminal convictions and his trial in this case. Thus, the court held that the prior convictions could be used to impeach defendant if he decided to testify at trial.
Defendant did not testify at trial. He was convicted of second-degree robbery and third-degree burglary and received concurrent six-year and four-year prison terms. The Appellate Division affirmed. The Court granted certification, limited to the issue of admissibility of evidence of defendant's prior convictions. 205 N.J. 519 (2011).
HELD: The trial court did not abuse its discretion when it viewed defendant's intervening convictions for disorderly persons offenses as removing the bar to admission of defendant's prior criminal convictions as too remote and, thus, determined that defendant's prior criminal convictions would be admissible if he testified at trial.
1. A review of the historical progression of the relevant law of evidence informs the Court's analysis. New Jersey originally prohibited certain convicted criminals from testifying unless they were pardoned. In 1874, defendants were permitted to testify, however, prior criminal convictions were admissible to test their credibility. That law, which later became N.J.S.A. 2A:81-12 and the framework for N.J.R.E. 609, did not limit admissibility of prior convictions. Reviewing the statute, the Court in State v. Hawthorne, 49 N.J. 130 (1967), held that a witness's prior conviction, no matter how remote, could be admitted to impeach credibility. When New Jersey adopted evidence rules in 1967, based on the Uniform Rules of Evidence, the statute remained unchanged. (pp. 9-11)
2. In 1978, the Court revisited the issue in State v. Sands, and determined that "whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge" and the defendant bears the burden of proof to justify exclusion. The Court explained that the "key to exclusion is remoteness"; and to determine whether relevance to credibility outweighs the prejudicial effect to defendant, the trial court must balance the lapse of time and the nature of the crime. This involves considering intervening convictions between the past conviction and the crime for which a defendant is being tried. (pp. 11-14)
3. The final evolutionary step was the 1993 revision of the evidence rules, which followed the Federal Rules of Evidence in many instances. One exception is N.J.R.E. 609, which provides that for credibility purposes, a witness's conviction of a crime "shall be admitted unless excluded by the judge as remote or for other causes." Whether a prior conviction may be admitted is a decision that rests within the trial judge's discretion, and the defendant bears the burden of proof to justify exclusion. (pp. 14-15)
4. The Court has not previously considered whether prior convictions, themselves inadmissible because they are not convictions of crimes, may be used to deem as proximate and admissible convictions for crimes that might otherwise be ruled remote and inadmissible. InState v. McBride, 213 N.J. Super. 255 (App. Div. 1986), the Appellate Division affirmed a trial court ruling that prior convictions could be used to impeach a defendant's credibility if he testified. The defendant had a 1964 conviction for assault and battery, a 1971 conviction for negligent manslaughter, and a 1978 municipal court conviction for marijuana possession. The McBride court noted that although the last criminal conviction was fourteen years prior to trial, the marijuana conviction was only six years earlier. The Court infers that the McBride court used the latter conviction as a bridge; the defendant did not argue on appeal that the marijuana conviction was inadmissible because it was not a conviction for a crime. Although Federal Rule of Evidence 609 directly addresses remote convictions, providing that evidence of a conviction that is more than ten years old is admissible only if its probative value "substantially outweighs its prejudicial effect," New Jersey declined to adopt this model when it revised its evidence rules in 1993. The approach outlined in McBride is appropriate. (pp. 15-18)
5. The trial court in this case did not abuse its discretion when it viewed defendant's intervening convictions for disorderly persons offenses as removing the bar to admission of his prior criminal convictions as too remote. Defendant has not presented persuasive reasons to abandon longstanding New Jersey practice under N.J.R.E. 609 in favor of the approach used in Federal Rule of Evidence 609. (p. 18)
6. The Court asks the Committee onthe Rules of Evidence to consider whether to modify N.J.R.E. 609. (p. 19)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE LONG, DISSENTING,joined by CHIEF JUSTICE RABNER and JUSTICE ALBIN, expresses the views that using disorderly persons offenses to "bridge the gap" of remoteness is contrary to the statute that bars their use for impeachment purposes, the evidence rule, and prior cases; that no deference is owed to the trial court ruling because the issue is a purely legal one; and that the majority's ruling will adversely effect the truth-seeking function because many defendants will not take the risk of testifying.
JUSTICES LaVECCHIA, HOENS and PATTERSON join in JUDGE WEFING's opinion.
JUSTICE LONG filed a separate, dissenting opinion in which CHIEF JUSTICE RABNER and JUSTICE ALBIN join.
JUDGE WEFING (temporarily assigned) delivered the opinion of the Court.
Defendant was indicted for second-degree robbery, N.J.S.A. 2C:15-1, and second-degree burglary, N.J.S.A. 2C:18-2. Defendant's first trial, at which he did not testify, resulted in a hung jury. At defendant's second trial, at which he again did not testify, defendant was convicted of second-degree robbery and third-degree burglary. The trial court sentenced defendant to six years in prison for the robbery conviction, subject to the provisions of N.J.S.A. 2C:43-7.2, the No Early Release Act, and a concurrent four years in prison for the burglary conviction. Defendant appealed his convictions and sentence, and the Appellate Division affirmed in an unpublished opinion.
We granted defendant's petition for certification, State v. Harris, 205 N.J. 519 (2011), to consider whether the trial court abused its discretion when it ruled that defendant's prior convictions were not too remote and were thus admissible for purposes of impeachment in light of the fact that defendant had incurred convictions for disorderly persons offenses in the period between the prior criminal convictions and the instant offense. We granted permission to the Attorney General to appear as amicus curiae. We now hold that there was no abuse of discretion on the part of the trial court and thus affirm defendant's convictions.
In August 2006, Cynthia Davies and her husband Glen Davies*fn1
lived with their son and daughter in Neptune, New Jersey. On the evening of August 9, their son's girlfriend was visiting. Shortly before midnight, Glen, accompanied by his son, drove his son's girlfriend to the train station. Glen did not lock the exterior door when they left the house. Cynthia remained at home, where their daughter was already asleep. Cynthia went to bed and fell asleep; in accordance with the family's regular practice, she left on several lamps with low-wattage bulbs.
Cynthia was awakened by an intruder, who had one hand over her mouth and the other over her throat. He asked where her money was, and she responded that it was in her purse, which was in the kitchen. When the man headed toward the kitchen, Cynthia grabbed the cordless telephone and locked herself in the bedroom. She called 9-1-1 and watched through the glass panes of the bedroom door as the man rifled through her purse. He returned to the bedroom and jiggled the door as he tried to re-enter the room. When he could not, he left the house. The police responded, and Cynthia provided a description of the intruder to them.
Based upon that description, the police put together a photo array, but Cynthia was unable to identify the perpetrator. A few days later, the police assembled another array. According to the detective who displayed these photos to her, she looked at defendant's photograph for approximately one second ...