cdTOCtest

In State v. Carl White, 297 N.J. Super. 376 (App. Div.
1997), the Appellate Division reversed defendant’s
convictions for robbery and endangering the welfare of a
child because the trial court failed to sanitize defendant’s
prior conviction for receiving stolen property when it was
used to impeach his credibility as required by State v.
Brunson, 132 N.J. 377 (1993). The court ruled that the
theft conviction was similar to the robbery charge for
which defendant was on trial.

In State v. Farquharson, 321 N.J. Super. 117 (App.
Div. 1999), certif. denied, 162 N.J. 129 (1999), the
Appellate Division reversed defendant’s drug convictions
that resulted after a retrial following a 1995 reversal.
Defendant testified at his first trial, but did not at his
second; the State was permitted to read his prior
testimony to the second jury. As a general proposition,
defendant’s claim that admitting his prior testimony was
erroneous was without merit. But the trial court should
have redacted reference to his prior sanitized convictions,
which were admissible only to affect credibility. The
Appellate Division concluded that defendant was not a
witness at his retrial, and it was not he who had sought
admission of his prior testimony, and the issue would be
“quite different” if he had. Admitting prior crime
evidence for impeachment purposes absent defendant
taking the stand would be fatal no matter how strong the
evidence of guilt. At a subsequent retrial the State could
introduce that part of defendant’s testimony that would
be admissible as a prior voluntary statement. Finally, the
doctrine of completeness did not validate this use of
defendant’s prior convictions because they had nothing
to do with the crimes that were the subject of the trial.

N.J.R.E. 609 applies only to convictions of crimes.
State v. Jenkins, 299 N.J. Super. 61, 72 (App. Div. 1997).

In State v. Jenkins, 299 N.J. Super. 61, the Appellate
Division held that because a probation violation is not a
criminal conviction it cannot be used for impeachment.
The sentence received for a probation violation may,
however, be used. The Court found the admission of
such sentencing information particularly appropriate
where the prior conviction was sanitized under Brunson.

This sentiment was expressed earlier in State v. Hicks,
283 N.J. Super. 301 (App. Div. 1995), certif. denied, 143
N.J. 327 (1996), where the court observed that, post-
Brunson, sentencing information becomes more critical
so that the jury can measure the severity of the prior
conviction. Its severity is a negative measure of the
defendant’s credibility. 283 N.J. Super. at 309.

In State v. Blue, 129 N.J. Super. 8 (App. Div. 1974),

certif. denied, 66 N.J. 328 (1974), the Court held that a

conviction still on appeal cannot be used for

impeachment. The court found Blue unpersuasive in

State v. Anderson, 177 N.J. Super. 334 (App. Div. 1981),

where the challenge on appeal was solely on the ground

that the sentence was excessive.

The rule of Brunson applies only prospectively.

Brunson, supra; State v. Rush, 278 N.J. Super. 44 (App.

Div. 1994).

A defendant does not waive appellate review of this

issue by a refusal to take the stand at trial. State v.

Whitehead, 104 N.J. 353 (1986).

B. Impeachment by Religious Beliefs or Opinions

Evidence of a witness’ religious beliefs is not

admissible to show that because of the nature of such

beliefs the witness is or is not credible. N.J.R.E. 610.

C. Impeachment with Extrinsic Evidence

In State v. Harris, 316 N.J. Super. 384 (App. Div.

1998), the Appellate Division held that a defendant’s

confrontation rights require disclosure of police

personnel records if some factual predicate is advanced

making it reasonably likely that information in the

records could affect the officer’s credibility.

In State v. Wormley, 305 N.J. Super. 57 (App. Div.

1997), certif. denied, 154 N.J. 607 (1998), the Appellate

Division reversed defendants’ robbery and weapons

convictions. The court held that evidence of the robbery

victim’s past drug use, precluded at trial because the trial

court concluded after hearing the victim that he had not

used drugs when he was robbed, was admissible to

impeach the victim’s credibility. The Appellate Division

itself found the victim’s observations and conduct after

the “alleged” robbery “at best, questionable,” and went

on to explain why it saw him as not credible.

In State v. Gorrell, 297 N.J. Super. 142 (App. Div.

1996), the Appellate Division reversed defendant’s

convictions for aggravated assault and possession of a

knife for an unlawful purpose because the trial court ruled

that a witness proffered by defendant could not be

questioned regarding threats a key witness against

defendant had made because it would be hearsay. The

appellate court stated that bias against the defendant by

a witness may be shown by extrinsic evidence including