STATE OF NEW JERSEY v. FREDERICK T. HAMILTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0337-04T40337-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FREDERICK T. HAMILTON,

Defendant-Appellant.

__________________________________________

 

Submitted October 26, 2005 - Decided

Before Judges Conley and Weissbard.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

03-10-1788.

Yvonne Smith Segars, Public Defender, attorney

for appellant (David A. Gies, Designated

Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for

respondent (Karen Fiorelli, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Defendant Frederick T. Hamilton appeals from his conviction after a one day jury trial, of third-degree possession of heroin, a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). Defendant was sentenced to five years imprisonment with two and one-half years of parole ineligibility.

The facts are briefly stated. On June 26, 2003, defendant agreed to cooperate with Detectives Joseph Rauch and Keith Bennett, both veteran officers of the Atlantic City Police Department, regarding their investigation of a homicide. Defendant was transported to headquarters in an unmarked police vehicle. According to Rauch, they did not search defendant's person before getting into the vehicle because he was not a suspect. According to defendant, a police officer other than Rauch and Bennett searched his person when he arrived at headquarters. There, he was escorted to a small interrogation room, which consisted of four cinder block walls, a table and four chairs, a tape recorder, a trash can and a one-way mirror. Defendant waited in the interrogation room without talking to anyone from the time he arrived at headquarters at 5:30 p.m. until 10:30 p.m., except for going to the restroom on one occasion and for having a cigarette on another.

Around 10:30 p.m., the detectives entered the interrogation room and started questioning defendant. The detectives testified that defendant got upset for no reason at all. According to the detectives, defendant reached into the pocket of his pants, took out seven bags of heroin and threw them to the ground. Defendant explained that he got upset because they began their interrogation by asking about a prior homicide conviction. He testified that the detectives placed the bags of heroin on the ground and accused him of possession.

Defendant argues that his prior homicide conviction should have been "sanitized" before being used to impeach him. Defendant does not argue that the conviction, for which he was sentenced in January 1986 and released in April 2001, was inadmissible for impeachment. Clearly, it was. State v. Sands, 76 N.J. 127, 144-47 (1978). However, in State v. Brunson, 132 N.J. 377, 391 (1993), the Court held that when a conviction available for impeachment is "the same or similar to the offense charged, the State may introduce evidence of the defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted." The Court referred to this process as sanitization. Id. at 392.

Defendant moved in limine to sanitize his prior convictions, arguing that he would be prejudiced by virtue of the fact that the charged drug offense arose out of his questioning by the police concerning the death of a woman under what was initially considered suspicious circumstances. Defendant had been identified "as the last person to be in the company of the deceased . . . prior to her being found dead." The trial judge rejected defendant's argument on the basis that Brunson, which was itself an exception to the general rule of Sands, did not allow for an exception to cover the circumstances presented. However, the judge indicated that he would give a cautionary instruction and, just before defendant took the stand, did instruct the jury as follows:

I do want to give you a cautionary instruction because you did hear testimony in the State's case with regard to the police desire to question the defendant, Mr. Hamilton, about a time proximity to when he had last seen Diana Butler, who is the decedent.

I want to explain to you that -- and as firmly as I can that as to the death of Diana Butler, Mr. Hamilton never was, never has been a suspect nor a defendant in that case. In fact, the case was never ruled or found to be a homicide. So, no one has been charged in that matter nor is anyone likely to be charged in that matter.

So, you cannot, in any way, shape or form speculate or infer either against the defendant or in the defendant's favor either for the State or against the State or for the defendant or against him in deciding whether or not he is guilty of possessing the drugs in the case. Okay?

Defendant's attorney thereupon elicited defendant's manslaughter/weapons conviction at the start of defendant's testimony. The Prosecutor did not touch on the convictions in cross-examination of defendant nor did she mention the convictions in summation. In his charge, the judge gave the standard instruction on the use of prior convictions to affect credibility.

Although defendant's argument is not without merit, we are constrained to reject it. The holding of Brunson was clear and any modification of that rule must come from the Supreme Court. See Brunson, supra, 132 N.J. at 395-408 (Handler, J., concurring in part, dissenting in part) (proposing that all prior crimes used for impeachment be sanitized). It is true that the judge did his best to ameliorate the prejudice flowing from the circumstances that led to defendant's questioning, and defendant's prior conviction was not mentioned, much less emphasized, by the State in questioning defendant or in summation. Nevertheless, if we were free to enlarge Brunson and to apply such a revision to this case, we would conclude that the potential for prejudice from the use of the unsanitized conviction was, in these circumstances, reversible error. Defendant placed his credibility before the jury and the unsanitized conviction was used to impeach him. If the jury's view of defendant was colored, as we believe it may have been, by the apparent linkage between his prior conviction and the death about which he was being questioned, the error cannot be viewed as harmless, despite the State's assertion that defendant's testimony "was unbelievable, filled with far-fetched allegations of a police conspiracy, planted evidence, and extreme physical abuse, none of which were corroborated in any way."

Defendant argues that his sentence, the maximum for a third-degree crime, violated the precepts of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In sentencing defendant, the judge found aggravating factors 3, 6, and 9, N.J.S.A. 2C:44-1a(3), (6), (9), and mitigating factor 2, N.J.S.A. 2C:44-1b(2). He found that the aggravating factors "so substantially outweigh the mitigating factors" as to warrant the maximum sentence. Since defendant's above-presumptive sentence was based on factors other than just his prior record, there must be a resentencing in accordance with the dictates of State v. Natale, 184 N.J. 458 (2005).

Conviction affirmed; remanded for a new sentencing.

 

Two other counts charging possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and possession with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7, were voluntarily dismissed by the State prior to trial.

The conviction was for aggravated manslaughter and unlawful possession of a weapon. Defendant was sentenced to twenty years with a ten-year parole ineligibility on the manslaughter and a consecutive five-year sentence with one year parole ineligibility on the weapon charge.

We reject the State's argument that defendant abandoned his objection. Defense counsel simply acknowledged existing law but continued to press for an expansion to cover this case.

(continued)

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A-0337-04T4

December 9, 2005