State v. Whitehead

• Decision Date: 19 November 1986
• Citation: 104 N.J. 353,517 A.2d 373
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Richard WHITEHEAD, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 353

104 N.J. 353

517 A.2d 373

STATE of New Jersey, Plaintiff-Respondent, v. Richard WHITEHEAD, Defendant-Appellant.

Supreme Court of New Jersey.

Argued March 17, 1986.

Decided Nov. 19, 1986.

Peter B. Meadow, Asst. Deputy Public Defender, for defendant-appellant (Thomas S. Smith, Jr., Acting Public Defender, attorney).

Mark D. Imbriani, Asst. Prosecutor, for plaintiff-respondent (John H. Stamler, Union County Prosecutor, attorney).

John G. Holl, Deputy Atty. Gen., for amicus curiae, Atty. Gen. (W. Cary Edwards, Jr., Atty. Gen., attorney).

The opinion of the Court was delivered by

POLLOCK, J.

This case questions whether a defendant must testify at trial to preserve his right to appeal the trial court's determination that the defendant's prior convictions may be used to impeach him if he testifies. In the present case, the defendant requested the Law Division to conduct a hearing in accordance with State v. Sands, 76 N.J. 127, 386 A.2d 378 (1978), to determine whether two prior convictions could be used on cross-examination to impeach defendant's credibility. After conducting a "Sands hearing," the court ruled that the convictions could be so used. Defendant declined to testify, and was convicted of aggravated sexual assault. The Appellate Division affirmed the conviction, ruling that because defendant did not testify, the trial court's ruling was not reviewable on appeal. 203 N.J.Super. 509, 513, 497 A.2d 548 (1985). We granted certification, 102 N.J. 331, 508 A.2d 209 (1985), and now reverse the judgment of the Appellate Division.

-I-

In 1982, defendant was indicted for aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4), and possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4(d). According to the victim, defendant forced her at knifepoint to enter a garage and engage in various sexual acts with him. The defense was that the victim consented to those acts.

Defendant had been convicted of possession of a weapon in 1979 and again in 1981. In permitting the prosecutor to use those convictions for impeachment purposes, the trial court ruled that the prior convictions were not remote in time, and that an instruction "as to the limited use of those convictions" would cure any "problems" that might arise because of the similarity between the prior weapons convictions and the weapons offense for which defendant was on trial. Defendant decided not to testify, and the jury found him guilty of aggravated sexual assault, but not of the unlawful possession of a weapon. On appeal, defendant contends that the trial court abused its discretion in ruling that the prior convictions were admissible to impeach his credibility.

Until the decision of the Appellate Division under review, the standard appellate practice in this state had been to review a trial court's Sands ruling even if the defendant did not testify at trial. In refusing to follow that practice, the Appellate Division relied on Luce v. United States, 469 U.S. 38, 42, 105 S.Ct. 460, 464, 83 L.Ed.2d 443, 448 (1984), which held that "to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify." Looking to the Rules of Evidence, the Appellate Division ruled "that a trial court's discretionary ruling under Evid.R. 4 to permit use of a criminal conviction to attack credibility pursuant to N.J.S.A. 2A:81-12 is not reviewable on appeal unless the defendant testified at the trial." 203 N.J.Super. at 513, 497 A.2d 548. Because the defendant did not testify, the Appellate Division held that the trial court's ruling to permit use of the prior convictions was not reviewable. Id.

-II-

Before Luce, the federal circuit courts disagreed over the admissibility of prior convictions for impeachment purposes under Federal Rule of Evidence 609(a). ¹ The vast majority of the circuit courts allowed non-testifying defendants to appeal the trial court's determination that their prior convictions would be admissible for impeachment purposes. See, e.g., United States v. Kuecker, 740 F.2d 496, 499 n. 1 (7th Cir.1984); United States v. Lipscomb, 702 F.2d 1049, 1069 (D.C.Cir.1983); United States v. Kiendra, 663 F.2d 349, 352 (1st Cir.1981); United States v. Provenzano, 620 F.2d 985, 1002 n. 22 (3d Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 129 (1980); United States v. Toney, 615 F.2d 277, 279 (5th Cir.), cert. denied, 449 U.S. 985, 101 S.Ct. 403, 66 L.Ed.2d 248 (1980); United States v. Cavender, 578 F.2d 528 (4th Cir.1978). Other circuit courts that did not require defendants to testify established procedural requirements for preservation of the defendant's appeal. The Ninth Circuit Court of Appeals, for example, required:

a defendant must at least, by a statement of his attorney: (1) establish on the record that he will in fact take the stand and testify if his challenged prior convictions are excluded; and (2) sufficiently outline the nature of his testimony so that the trial court, and the reviewing court, can do the necessary balancing contemplated in Rule 609.

United States v. Cook, 608 F.2d 1175, 1186 (9th Cir.1979), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980); accord United States v. Washington, 746 F.2d 104, 106 (2d Cir.1984); United States v. Burkhead, 646 F.2d 1283, 1286 (8th Cir.), cert. denied, 454 U.S. 898, 102 S.Ct. 399, 70 L.Ed.2d 214 (1981). By comparison, the Tenth Circuit required merely that the defendant make a commitment to testify. United States v. Halbert, 668 F.2d 489, 493-94, (10th Cir.) cert. denied, 456 U.S. 934, 102 S.Ct. 1989, 72 L.Ed.2d 453 (1982). Only the Sixth Circuit had held that "the better rule is to require that the defendant testify and the impeaching conviction be admitted before an appellate court will review for reversible error." United States v. Luce, 713 F.2d 1236, 1239 (6th Cir.1983), aff'd, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984); State v. LeBlanc, 612 F.2d 1012 (6th Cir.1980), cert. denied, 449 U.S. 849, 101 S.Ct. 137, 66 L.Ed.2d 60 (1980).

In Luce, the United States Supreme Court initially noted that Rule 609(a)(1) directs trial courts "to weigh the probative value of a prior conviction against the prejudicial effect to the defendant" to determine whether the conviction may be used for impeachment purposes. 469 U.S. at 40, 105 S.Ct. at 463, 83 L.Ed.2d at 447. According to the Court, the absence of defendant's testimony deprives the trial court of information that is essential for weighing the probative value against the prejudicial effect of the use of the conviction and also handicaps an appellate court in reviewing the trial court's decision. Id. Without the defendant's testimony, the Court continued, harm to the defendant is speculative. Id. In addition, the Court found that the defendant's failure to testify prevented a reviewing court from determining whether the trial court's error was harmless. Hence, the Court concluded that a defendant must testify to preserve a claim of error under Rule 609(a). Id.

Although Luce controls federal appeals, state courts, in reliance on their own evidentiary rules and procedures, may adopt a different rule. See, e.g., People v. Burns, 184 Cal.App.3d 203, 212, 219 Cal.Rptr. 814, 819 (1985), review granted, --- Cal.3d ----, 223 Cal.Rptr. 266, 713 P.2d 1196 (1986); State v. Garza, 109 Idaho 40, 45, 704 P.2d 944, 949 (1985); People v. Contreras, 108 A.D.2d 627, 628, 485 N.Y.S.2d 261, 263 (1985); State v. McClure, 298 Or. 336, 342, 692 P.2d 579, 584 n. 4 (1984). Nonetheless, some state courts have adopted the Luce rule, holding that defendants must testify to preserve their right to appeal a trial court's determination that their prior convictions are admissible for impeachment purposes. See State v. Allie, 147 Ariz. 320, 327, 710 P.2d 430, 437 (1985); State v. Garza, supra, 109 Idaho at 45, 704 P.2d at 949; State v. Glenn, --- S.C. ----, ----, 330 S.E.2d 285, 286 (1985); State v. Means, 363 N.W.2d 565, 569 (S.D.1985).

Other state courts, however, have not imposed such a requirement. See People v. Contreras, supra, 108 A.D.2d at 628, 485 N.Y.S.2d at 263; State v. McClure, supra, 298 Or. at 342, 692 P.2d at 584 n. 4. For example, the Oregon Supreme Court declared that courts do not need the defendant's testimony to determine if the probative value of admitting evidence of a prior conviction outweighs its prejudicial effect on the defendant. State v. McClure, supra, 298 Or. at 355, 692 P.2d at 592. In most cases, the trial court should make the determination from an offer of proof in a pretrial motion without testimony from the defendant. Id. at 340, 692 P.2d at 583. The Oregon Court declined to require that defendants testify to preserve for review the claim of improper impeachment with a prior conviction. Id. at 342 n. 4, 692 P.2d at 584 n. 4.

In New Jersey, the admissibility of prior convictions for impeachment purposes is governed by the interplay between N.J.S.A. 2A:81-12 and Evidence Rule 4. N.J.S.A. 2A:81-12 provides that "[f]or the purpose of affecting the credibility of any witness, * * * his conviction of any crime may be shown by examination or otherwise, and his answer may be contradicted by other evidence." Although this Court has not adopted a Rule of Evidence that is comparable to the statute, Evidence Rule 4 prescribes that a "judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will either (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury." Thus, the determination "whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge." State v. Sands, supra, 76 N.J. at 144, 386 A.2d 378. We have instructed trial courts that, in exercising their discretion, "[o]rdinarily evidence of prior convictions...