State v. Brunson

• Decision Date: 15 June 1993
• Citation: 625 A.2d 1085,132 N.J. 377
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Tyrone M. BRUNSON, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 377

132 N.J. 377

625 A.2d 1085

STATE of New Jersey, Plaintiff-Respondent, v. Tyrone M. BRUNSON, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Jan. 5, 1993.

Decided June 15, 1993.

Steven M. Gilson, Designated Counsel, for defendant-appellant (Zulima V. Farber, Public Defender, attorney).

Michael J. Williams, Deputy Atty. Gen., for plaintiff-respondent (Robert J. Del Tufo, Atty. Gen. of New Jersey, attorney).

The judgment of the Court was announced by

STEIN, J.

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, 386 A.2d 378.

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.

I

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, 611 A.2d 652 (1992).

II

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, 386 A.2d 378, 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, 386 A.2d 378. 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 [t]he 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...