State v. Balthrop

457 A.2d 1152, 92 N.J. 542, 1983 N.J. LEXIS 2362
CourtSupreme Court of New Jersey
DecidedMarch 31, 1983
StatusPublished
Cited by26 cases

This text of 457 A.2d 1152 (State v. Balthrop) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Balthrop, 457 A.2d 1152, 92 N.J. 542, 1983 N.J. LEXIS 2362 (N.J. 1983).

Opinions

PER CURIAM.

Tried to a jury, defendant was convicted, as an accomplice, of assault with intent to rob in violation of N.J.S.A. 2A:90-2, and of aiding and assisting in the escape of the perpetrators, contrary to N.J.S.A. 2A:85-2(a). The trial presented a sharply disputed fact issue as to whether defendant was' the driver of the getaway car. She was identified by three prosecution witnesses, two of whom had records of prior convictions for narcotics violations. The trial court, applying State v. Sands, 76 N.J. 127 (1978), refused to allow defendant to impeach the credibility of those two witnesses through the use of their criminal convictions. A divided panel of the Appellate Division reversed and remanded for a new trial, 179 N.J.Super. 14 (1981), with each judge writing separately. The State’s appeal is here as of right because of the dissent below. R. 2:2-l(a)(2).

I

The essential facts are adequately stated in Judge Polow’s opinion in the court below as follows:

Three prosecution witnesses, Gloria Larkin, Charles Sutton and Weldon Grady, identified defendant as the driver of the purported getaway vehicle, a gold or yellow Volkswagen, based upon observations from apartment windows at about four o’clock in the morning. On cross-examination Larkin conceded that she was unable to carefully observe the driver of the vehicle but positively identified the car as the vehicle she had seen defendant driving earlier in the day. Grady identified the scarf worn by the driver as similar to the one defendant had worn earlier in the evening. Sutton modified his direct testimony identifying defendant as the driver by his statement on cross-examination that he did not see defendant driving the vehicle although the driver was a young woman. Defendant denied her presence in the vehicle at the time of the offense and produced three corroborative witnesses. The testimony of each, including her mother and [544]*544brother, lent varying degrees of support to defendant’s claim that she was home in bed when the crime was committed.
Upon the State’s application the court excluded the use of prior convictions to attack the credibility of Larkin and Sutton. The trial judge, concluding that State v. Sands, 76 N.J. 127 (1978), vested him with such discretionary authority, ruled that the respective five- and eight-year-old narcotics convictions were too remote and thus inadmissible. Defendant disagreed and argued that the discretion authorized by Sands applies only to a defendant as a witness in a criminal trial and that in any event the trial judge erred in declaring the convictions too remote. She contends that had she been allowed to elicit testimony regarding the two witnesses’ prior convictions, their “credibility — weak as it was — would have been destroyed in the minds of the jurors.” Since the only evidence of her involvement was contained in the testimony of the three prosecution witnesses who identified her as the driver, and since Grady admitted on cross-examination that he “lied” to police in reporting that he had seen nothing, we conclude that if the excluded testimony had been introduced, the jury may have arrived at a result it otherwise might not have reached. [179 N.J.Super. at 17-18.]

It was on this basis that the Appellate Division, satisfied that the prior criminal convictions of Larkin and Sutton should not have been excluded, reversed and remanded for a new trial. We affirm, substantially on the basis of Judge Polow’s opinion stating the majority position below, with but’ slight differences as touched upon here.

II

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 * * Under Evid.R. 4, evidence may be excluded if “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.” Combining the force of these provisions with language from State v. Sands, 76 N.J. at 144 (“ * * * whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge”), the Appellate Division held that evidence of prior convictions to affect the credibility of any witness can be excluded only when the probative value of the [545]*545conviction “is outweighed by a substantial danger of prejudice, undue consumption of time or confusion.” 179 N.J.Super, at 19.

As Judge Polow observed, Sands instructed that “ ‘[ojrdinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the [party seeking exclusion].’ Id. [76 N.J.] at 144 (emphasis supplied).” 179 N.J.Super. at 20. He made the point that in balancing the probative value of a conviction against the prejudice to the party seeking to exclude the conviction, the prejudice considered could differ according to the party involved. It was on this point that the judges below appear to have divided.

The focus of that disagreement is sharpened by reference to Judge Joelson’s opinion, wherein he too emphasized that the degree of prejudice resulting from the admission of evidence of a prior conviction can vary. He departed from Judge Polow’s analysis, however, which discussed prejudice to the witness rather than to the party who calls that witness. Judge Joelson took the latter — and we think correct — approach, stating that “the prejudice to the State by reason of admission of evidence of a prior criminal conviction of a State’s witness pales into insignificance when contrasted with the prejudice to a defendant himself by reason of admission of evidence of his prior criminal conviction.” 179 N.J.Super. at 22-23. The point is that the suggestion of criminal propensity could put a defendant in prison, a risk not faced by a witness. Judge Joelson would apply the same balancing test to determine admissibility of prior convictions regardless of one’s status as defendant or witness, recognizing however that greater prejudice could result to a defendant than to a witness from proof of the same crime equally remote from the trial.

In dissent, Judge Fritz perceived his colleagues as having created for defendants a standard different from that used for other witnesses and insisted that the Evid.R. 4 weighing of probative value against prejudice should be done “under a legal blindfold respecting whether the person testifying is party or

[546]*546nonparty.” 179 N.J.Super. at 24 (emphasis in original). We think this criticism of the majority below springs from a misreading of the other two opinions. Whether the “blindfold” analogy be apt or no, the majority of the Appellate Division correctly suggested only that inasmuch as the potential prejudice to the criminal defendant is fraught with more serious consequences than those confronting a prosecution witness, what amounts to “undue prejudice” to the former might not to the latter. The standard, derived from Evid.R. 4, remains the same for all witnesses; but in applying that standard, the balance will necessarily be affected by whose credibility it is that is sought to be impeached by use of the prior conviction.

III

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Bluebook (online)
457 A.2d 1152, 92 N.J. 542, 1983 N.J. LEXIS 2362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-balthrop-nj-1983.