NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4627-13T4
LEONIDES VELAZQUEZ, APPROVED FOR PUBLICATION
Plaintiff-Appellant, September 14, 2016
v. APPELLATE DIVISION
CITY OF CAMDEN and OFFICER ALEXIS RAMOS,
Defendants-Respondents. __________________________________
Argued October 5, 2015 – Decided September 14, 2016
Before Judges Sabatino, Accurso and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L- 1350-10.
Mark B. Frost argued the cause for appellant (Mark B. Frost & Associates, attorneys; Ryan Lockman, on the brief).
John C. Eastlack, Jr. argued the cause for respondent City of Camden (Weir & Partners, LLP, attorneys; Mr. Eastlack, on the brief).
John C. Connell argued the cause for respondent Officer Alexis Ramos (Archer & Greiner, attorneys; Mr. Connell and Kate A. Sozio, on the brief). The opinion of the court was delivered by
ACCURSO, J.A.D.
Plaintiff Leonides Velazquez appeals from the jury's no
cause verdict in his New Jersey Civil Rights Act action against
defendant Alexis Ramos, a Camden police officer who shot
Velazquez twice in the torso outside his home in the course of
responding to a domestic disturbance call. Plaintiff also
appeals from the involuntary dismissal of his case against
Ramos' employer, co-defendant City of Camden, at the close of
plaintiff's case pursuant to Rule 4:37-2, and the court's order
denying his motion for new trial as to both defendants pursuant
to Rule 4:49-1.
Plaintiff raises three issues on appeal. He claims the
court erred in allowing an assistant prosecutor to testify he
determined, after reviewing the investigation conducted, not to
criminally prosecute Ramos, by excluding all references to
Ramos' mental health records and by excusing a juror before
deliberations. Because we agree the prosecutor should not have
been allowed to testify that Ramos was not criminally charged,
and conclude that Ramos' mental health records were relevant to
his perception of events on the night of the shooting, and thus
to both his credibility and the reasonableness of his
2 A-4627-13T4 perceptions and conduct, we reverse the verdicts in favor of
both defendants and remand for a new trial.1
Although the parties presented extensive testimony from the
several eyewitnesses, the essential facts are easily summarized.
The jury heard testimony that plaintiff was standing outside his
home in Camden with one of his sisters when his girlfriend's
mother and sister drove up in a van shortly after 1:00 a.m. on
January 2, 2009. The two women began yelling and cursing at
plaintiff, accusing him of hitting his girlfriend and breaking a
window at her home. The girlfriend's mother was standing half
in and half out of the driver's seat yelling at plaintiff, who
stood about ten feet away. Plaintiff was yelling back at both
women. The argument was apparently quite loud and conducted in
both English and Spanish.
Hearing the commotion, plaintiff's mother and another
sister came outside. Plaintiff testified that after threatening
to have someone beat him up, the girlfriend's sister got out of
the van and picked up a rock from a tree garden in plaintiff's
yard. According to plaintiff, his mother and two sisters, she
returned to the van and threw the rock at plaintiff. The rock
1 Plaintiff's third issue does not warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E). The court acted well within its discretion in excusing before deliberations, a juror who recognized a testifying witness. See R. 1:8-2(d)(1); State v. Jenkins, 182 N.J. 112, 123 (2004).
3 A-4627-13T4 did not hit plaintiff, as his mother deflected it with her hand.
Plaintiff testified he bent to pick up the rock thrown at him.
As he stood up, rock in hand, Ramos appeared and shot him.
Plaintiff acknowledged his blood alcohol content at the time of
the fight was .16, but testified he did not feel drunk.
Although neither the girlfriend's sister or mother could
remember the sister throwing a rock at plaintiff, both admit the
argument and recall seeing plaintiff with a rock in his hand
just before he was shot.
A neighbor testified she was sitting on her porch when the
argument broke out. Moving to the sidewalk to get a better
view, she saw one of the women bend down, grab a rock and walk
around the van and open the door. As that was happening,
"[c]ops was pulling up. They parked — he parked across the
street. The girl threw the rock. [Plaintiff] bent down to grab
the rock and as he came up, the police shot him like two or
three times."
Although describing the "rock" variously as a rock or a
brick,2 both plaintiff and his family as well as the girlfriend's
family all agreed with the neighbor that the rock fit into the
palm of plaintiff's hand. None of the witnesses testified that
plaintiff was holding the rock over his head.
2 The "rock" was apparently a broken piece of landscaping brick.
4 A-4627-13T4 Ramos testified he was on duty preparing to write parking
tickets when he heard the communications operator dispatch two
patrol units to a large fight nearby. Although he was not
dispatched to the scene, he drove on his own initiative to the
address where the fight was reported to be taking place. He was
in a marked patrol car, but had not activated his siren or
emergency lights. He was the first officer on the scene.
Ramos claimed he saw about ten people engaged in an
argument, but admitted no one was physically fighting. He shone
his spotlight on the group for a few seconds before getting out
of the car to get their attention but testified "[t]hey
continued arguing and screaming and hollering at each other as
if I wasn't there." Ramos claimed he drew his weapon as he
neared the group when he saw plaintiff, the only male present,
raise a large piece of cement, which Ramos estimated to be
between eighteen and twenty-nine inches across, over his head
with both hands.
He testified he "either told [plaintiff] to put it down,
drop it or something along those lines several times. He didn't
and I shot him twice in the torso. Then, when I shot him, he
turned and looked at me for the first time and then fell onto
the ground." One of the dispatched officers heard the shots as
his unit arrived on the scene. A security video from a nearby
5 A-4627-13T4 business documented that one minute and ten seconds elapsed
between the time Ramos arrived and the other police cars
appeared.
Defendants presented Emanuel Kapelsohn "as an expert in the
field of firearms, police training, crime scene reconstruction,
and use of force, including deadly force by police." Mr.
Kapelsohn, while opining that Ramos' use of force was
reasonable, also testified he did not "accept what [Ramos is]
saying, [about the size of the rock] because clearly [plaintiff]
didn't pick up a piece of concrete that was 18 to 24 inches
across." The expert testified that police officers in stressful
situations commonly experience tunnel vision, causing them to
misperceive the size of a weapon.
When asked specifically by defense counsel about Ramos'
testimony that plaintiff was holding a rock "estimated at 18 to
29 inches," and how the expert "could explain that perception
under these circumstances," the expert replied, "[t]unnel vision
and the stress effect of being involved in a deadly force
confrontation." The expert told the jury that "[a]s long as it
was objectively reasonable for Officer Ramos to perceive a rock
large enough to cause serious bodily injury to someone," the
actual size of the rock would have no bearing on his opinion
that Ramos' use of deadly force was justified.
6 A-4627-13T4 The jury did not hear other explanations for what
defendant's expert accepted as Ramos' clear misperception of the
size of the rock plaintiff was holding. Specifically, as a
result of an in limine ruling barring plaintiff from making any
reference to Ramos' psychological records, the jury did not
learn that Ramos had eighteen months before been placed on light
duty, relieved of his service weapon and discharged from the
SWAT team after experiencing nightmares following the shooting
of a fellow officer.
The psychologist the City referred Ramos to for a fitness-
for-duty exam in May 2007 expressed a "wide variety" of concerns
about Ramos including "anxiety and tension, sleep disturbance .
. . feelings of depression . . . [and] indications of
potentially problematic anger and alcohol use." The
psychologist concluded at that time that Ramos' "apparent
difficulties functioning could compromise the quality of his
judgments in risky or sensitive situations." Ramos was
dismissed from the SWAT team by the department's command staff
effective July 26, 2007 as "a preventative measure in the best
interest and well-being of yourself and other members of the
SWAT team."
Although returned to full duty in July 2007, Ramos
continued to treat with a social worker through the shooting in
7 A-4627-13T4 January 2009. The social worker's notes reflect that Ramos was
still suffering from nightmares in which he dreamed he was shot
by a citizen or in turn shot and killed an unarmed person, at
the time he shot plaintiff. In the month before the shooting,
Ramos crashed his patrol car into a tree in a parking lot,
leading the social worker to conclude, "[h]is concentration is
off. He hit a tree the other day in a police vehicle."
Unbeknownst to the jury, Ramos filed for a disability pension
two weeks before he shot plaintiff. He has not worked as a
police officer since his encounter with plaintiff.
The two issues we discuss both arose out of evidentiary
rulings at trial. We review a trial court's evidentiary rulings
for abuse of discretion, Hisenaj v. Kuehner, 194 N.J. 6, 12
(2008), and disregard any error we deem harmless. Higgins v.
Owens-Corning Fiberglas Corp., 282 N.J. Super. 600, 609 (App.
Div. 1995). Only those errors "clearly capable of producing an
unjust result," will result in a reversal of a jury verdict. R.
2:10-2.
At trial, the parties sparred over whether defendants would
be allowed to admit the testimony of the assistant prosecutor
who determined that Ramos would not be prosecuted. Plaintiff
made a mid-trial motion to bar the testimony, which was opposed
by defendants. After reviewing plaintiff's brief in support of
8 A-4627-13T4 the motion and hearing oral argument, the trial judge ruled that
Assistant Prosecutor Smith could not testify to his reasons for
not prosecuting, but could testify to his decision not to
prosecute:
The conclusion was Mr. Ramos is not going to be prosecuted. And as [plaintiff's counsel] said a few minutes ago, if you want to ask Mr. Ramos were you ever prosecuted for shooting Mr. Velazquez, he has no objection to that question. But that's a far cry from saying officer — or rather Assistant Prosecutor Smith can put before this jury four pages of opinions as to what happened, when those opinions are based on selected statements by others. Hearsay. He's not an expert witness.
Again, if he was qualified and called . . . as an expert witness, he'd be permitted to express opinions. But simply because he came to some opinions in deciding not to prosecute, that's not enough to get all those opinions before this jury.
The court then ruled, over plaintiff's objection, that,
"The only question I will permit to Greg Smith is: was Ramos
prosecuted for shooting Velazquez; yes or no? Period. No
further questions." The court rejected defense counsel's
request to "go over [Smith's] background," instead making clear
counsel was to elicit only the witness's name and job title and
nothing else.
Ramos' counsel's direct examination of the assistant
prosecutor proceeded in pertinent part as follows:
9 A-4627-13T4 Q. Mr. Smith, are you currently employed?
A. No, I'm presently retired.
Q. Okay. And where are you retired from?
A. Camden County Prosecutor's Office.
Q. When were you first employed by the Camden County Prosecutor's Office?
A. I was —
[Objection.]
COURT: Very, very, very briefly. Go ahead.
Q. How long did you work for the Prosecutor's Office? From when to when?
A. September 1st, 1983 to November 30th, 2009, 26 years and four months.
Q. Okay. What was your position?
A. From April of 1994 through . . . my retirement date, I was a supervising attorney in the Homicide Unit, first as a Deputy Section Chief, and then from January 2006 to my retirement at the end — the end of '09 I was a Section Chief.
Q. Okay. Does that unit become involved in police shootings?
A. Yes. If there is any kind of injury or death, our unit is called —
[Velazquez's Counsel]: Your Honor, this is completely different than we discussed yesterday.
COURT: You're cutting very close [counsel].
10 A-4627-13T4 [Ramos' Counsel]: Yes. And I'm very close to finish[ing].
COURT. Go ahead.
. . . .
Q. And what's your responsibility in the Homicide Unit?
[Objection overruled.]
A. The . . . as Assistant Prosecutor?
Q. As a Section Chief, yeah.
A. Okay. Well, I would review whatever investigation was done. And under the Attorney General Guidelines, I had to make a determination whether —
[Objection sustained; motion to strike granted; jury instructed to disregard last fragmentary comments.]
Q. Is it your responsibility to review the file?
A. Yes.
Q. Are you familiar with the shooting incident involving [plaintiff]?
[Velazquez's counsel]: Objection.
[Ramos' counsel]: Judge.
COURT: I'll allow it. But ask the question, [counsel].
Q. Yes. And you reviewed the investigation of the shooting?
11 A-4627-13T4 [Velazquez's counsel]: Objection.
COURT: No. Ask the question that I advised you I will permit you to ask.
Q. Okay. Upon — based upon that review what was your conclusion?
COURT: No.
[Velazquez's counsel]: Move to strike.
COURT: No. No. You can ask one question. I told you what the question was that I would permit. We went through this and spent several minutes on it yesterday.
[Ramos' counsel]: Judge, I -
[Ramos' counsel]: Can we [have] a sidebar on this?
[Ramos' counsel]: Please?
COURT: No, no.
[Ramos' counsel]: All right.
COURT: We've done it. We've already argued it out.
Q. Did you make a determination as to whether you would — Mr. Ramos would be criminally prosecuted?
12 A-4627-13T4 Q. And what was that determination?
A. We did not prosecute.
Plaintiff contends Smith's testimony should not have been
admitted as lay opinion under N.J.R.E. 7013 and whatever
relevance it had was substantially outweighed under N.J.R.E. 403
by its "severe and undue" prejudice to plaintiff. We agree.
In American Home Assurance Co. v. Sunshine Supermarket,
Inc., 753 F.2d 321, 323-25 (3d Cir. 1985), a declaratory
judgment case in which the insurer disclaimed coverage on the
basis of arson, the Third Circuit held that admitting "evidence
of non-prosecution for arson" was reversible error. The court
explained:
The evidence of non-prosecution is of very limited probative value in showing that there was no arson because of the higher burden of persuasion in a criminal case. . . . Further, prosecutorial discretion may take into account many other factors not relevant in a civil suit. At best, the evidence of non-prosecution is evidence of an opinion by the prosecutor. The opinion of a layperson, as the prosecutor was in this case, however, is
3 N.J.R.E. 701 provides:
If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.
13 A-4627-13T4 inadmissible if it [is] based on knowledge outside the individual's personal experience.
The inadmissibility of evidence of non- prosecution also comports with the general rule that evidence of an acquittal in a criminal arson case is inadmissible in a civil arson case.
[Id. at 325 (internal citations omitted).]
In reaching its conclusion, the American Home court relied
on Galbraith v. Hartford Fire Insurance Co., 464 F.2d 225, 227
(3d Cir. 1972), in which the circuit court had applied New
Jersey law to hold inadmissible, evidence that a litigant
accused of committing arson was not criminally charged.
Although finding no New Jersey case squarely on point, the
Galbraith court noted "New Jersey law indicates clearly that
evidence of an accused's acquittal in a criminal proceeding is
not admissible in a civil suit arising out of the event which
formed the basis of the criminal charge." Ibid. The court
The reasoning behind the exclusion of such proffered evidence is readily apparent. An acquittal in a criminal prosecution is not necessarily a judgment of innocence, but merely a negative statement that the quantum of proof necessary for conviction had not been presented.
Similarly, in the context of a civil action for malicious prosecution, New Jersey
14 A-4627-13T4 courts have consistently held that the grand jury's refusal to bring a bill of indictment is, as evidence, only res inter alios acta as to the question of whether probable cause existed to bring the complaint. Stein v. Schmitz, 137 N.J.L. 725 (E. & A. 1948); Shoemaker v. Shoemaker, 11 N.J. Super., 471 (App. Div. 1951). "The grand jury is not the proper tribunal to try the issues involved in the civil suit, and the issue [raised] by it in refusing to find a bill is not the real issue . . . presented in the civil action. . . . The general rule is that the record in a criminal proceeding is inadmissible in evidence in a civil suit." Stein, supra, 137 N.J.L. at 727 (quoting Apgar v. Woolston, 43 N.J.L. 57, 64 (Sup. Ct. 1881)).
[Ibid.]
Similarly, in Johnson v. Elk Lake School District, 283 F.3d
138, 147 (3d Cir. 2002), the Third Circuit explained that
defense counsel's comment in an opening statement that the
defendant had never been prosecuted for sexual assault, in a
civil suit seeking damages for sexual assault, was improper.
The court explained that evidence of "non-arrest, like evidence
of non-prosecution or acquittal of a crime, is generally
inadmissible in a civil trial concerning the same incident,"
because of the different burdens; and that the "decision not to
arrest may take into account many factors irrelevant to a civil
suit, such as the allocation of law enforcement resources and
other considerations of prosecutorial discretion." Ibid.
Because the probative value of such evidence is so limited,
15 A-4627-13T4 "courts exclude it in order to avoid the danger of the jury in a
civil trial exaggerating its worth."4 Ibid.
We agree with the Third Circuit's view of New Jersey law on
this point. The defense presented Assistant Prosecutor Smith's
testimony, as made obvious by the questions put to him, to tell
the jury that the chief of the homicide unit, who was
responsible to review the investigation of the shooting under
the Attorney General's Use of Force Policy, determined not to
criminally prosecute Ramos. The obvious import of that
testimony was that the prosecutor believed Ramos' shooting of
plaintiff was lawful as a justifiable use of force under the
circumstances.
Assistant Prosecutor Smith, however, did not witness the
shooting, and thus his opinion was clearly inadmissible under
the lay opinion rule, N.J.R.E. 701, because it was not based on
actual knowledge acquired through the use of his senses. See
State v. McLean, 205 N.J. 438, 456-57 (2011) (noting the
requirement of N.J.R.E. 701 that lay opinion be based on
perception of the witness "rests on the acquisition of knowledge
through use of one's sense of touch, taste, sight, smell or
4 Although finding the reference to the lack of arrest improper, the court deemed reversal unwarranted in Johnson because the comment was made in counsel's opening and thus " was never formally admitted into evidence," and the trial judge gave a prompt curative instruction. Id. at 147-48.
16 A-4627-13T4 hearing"); Gonzales v. Hugelmeyer, 441 N.J. Super. 451, 460
(App. Div.) (applying same principles in civil case), certif.
denied, 223 N.J. 356 (2015); see also Biunno, Weissbard & Zegas,
Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 701 (2016)
("The opinion of a county prosecutor that a suspect had not
committed arson is not admissible at a subsequent civil trial on
that issue because his opinion would not be based on personal
knowledge.").
Defendants do "not dispute the general proposition that
evidence of non-prosecution in a criminal matter is not
admissible to show 'innocence' or 'non-liability' in a civil
matter on account of the different burdens of proof." Instead
they argue that plaintiff's counsel "opened the door" to Smith's
testimony by remarking in his opening statement that this was
"an attempted homicide investigation."
The law is well settled, however, that "[o]pening
statements are not evidential and should not be responded to by
'rebuttal' evidence. If improper remarks are made by counsel,
the remedy lies in a curative instruction to the jury or, if
absolutely necessary, a mistrial." State v. Anastasia, 356 N.J.
Super. 534, 543 (App. Div. 2003). "[A]n improper or erroneous
statement made on opening is not properly corrected by allowing
the introduction of prejudicial evidence that would otherwise be
17 A-4627-13T4 inadmissible." Ibid. Because we reject defendants' argument
that the testimony, even if ordinarily inadmissible, was
properly admitted here as rebuttal evidence, we consider whether
the error was harmless.
At argument on plaintiff's motion for a new trial, the
trial judge acknowledged that Smith's testimony "went beyond the
limited scope that the court ordered." He nevertheless denied
the motion based on "corrective instructions to the jury." The
parties have not identified any curative instruction to the jury
on this point, and our own review has failed to identify one.5
We are not convinced, however, that a curative instruction,
even were one given, could have undone the damage to plaintiff's
case by Ramos' counsel's questioning of Smith, particularly in
light of the court's ruling disallowing reference to Ramos'
mental health records. In this we rely on the trial judge's
assessment of the evidence in the record in denying Ramos'
motion for dismissal at the close of plaintiff's case.
Carefully canvassing the facts in the record, the judge
described the two scenarios presented to the jury of the events
of the night of the shooting.
5 Counsel confirmed for us at oral argument that the court did not give a curative instruction, although obviously believing one was appropriate and that it had done so.
18 A-4627-13T4 One scenario would be that the officer, Officer Ramos, arrived at the scene, put his spotlight on, shined it on the participants in this melee, that that was ignored. He then got out of his vehicle, went toward the group – that's apparently consistent with five or six women and Mr. Velazquez – yelling at them or commanding them to stop, to let him know, tell him what was going on. That his commands were ignored. That he got to the vicinity of the left front fender of the motor vehicle that was parked there, when he observed Mr. Velazquez pick up a rock or stone, or let's call [it] a brick, since it's an artificially made landscaping ornament. They generally run 16, 18 inches long, maybe 8 or 10 inches high, scalloped. And there were several of them around the tree.
The officer saw Mr. Velazquez pick up one of these pavers, bricks – call them bricks – picked up one of these bricks, held it over his head, and appeared to start moving forward as if he were going to throw it at someone. His girlfriend's sister was in the vicinity near the van. She had apparently thrown a rock at him and, in retaliation, he picked up a large brick paver and started to throw it at her or looked like he was going to throw it at her or possibly the woman next to him, [who] as it turns out was his mother, but that would not have been known to the officer at the time.
And if that were the scenario, and the officer yelling and hollering stop, put it down, don't do it; his commands being ignored by Mr. Velazquez; a jury certainly could conclude and, indeed, if they were the only facts, a court could probably conclude as a matter of law that at that point in time it was objectively reasonable for Mr. Ramos or Officer Ramos to discharge his
19 A-4627-13T4 weapon to protect, if not himself, certainly the other people in the vicinity.
Another scenario, however, that this jury could come to, based on the facts that have already been testified to, is that the [girlfriend's sister] threw the rock – threw a rock at Mr. Velazquez. The rock was small in size, two to four inches; small enough to be held in the palm of a hand, certainly in the palm of a woman's hand. And then that was – that rock was thrown at him. That his mother, who was standing by his side, deflected the rock so that it didn't hit him. That he then bent down, sort of a natural reaction to having a rock thrown at him, bent down to pick up the rock without any clear intention as to what he was going to do with it. That, as he was straightening up with the rock either at his waist or perhaps chest high, but not in an overhead throwing motion, that he was simply standing up after having grasped the rock, that the officer without warning, drew his service revolver and shot Mr. Velazquez in two places, two times in the torso.
Under that scenario, which is a scenario that this jury could very well come to given the evidence before them, they could then make the determination that the conduct was not objectively reasonable. And if that conduct was not objectively reasonable, no matter what was in Officer Ramos' mind at the time, if they were – if that was the factual scenario, then he would lose any immunity and be liable for the injuries to Mr. Velazquez.
Having reviewed the record ourselves, we conclude the judge
very ably summed up the two different factual scenarios
confronting this jury. The case obviously presented a pitched
credibility battle regarding the events taking place over the
20 A-4627-13T4 course of the seventy seconds that elapsed between Officer
Ramos' arrival and plaintiff's shooting.
The decision for the jury was whether Officer Ramos' act of
shooting plaintiff was an objectively reasonable use of deadly
force to protect himself or others from an imminent threat of
serious bodily harm. Stated differently, they had to decide
whether they accepted the officer's version presented by the
first scenario or plaintiff's version presented by the second.
Having the head of the homicide unit in the prosecutor's officer
offer his opinion that Ramos should not face criminal charges
based on the investigation conducted, in our view impermissibly
risked tipping the scales on that very close question in
defendants' favor.
As the Supreme Court noted in analogous circumstances, "[a]
jury may be inclined to accord special respect to such a
witness." Neno v. Clinton, 167 N.J. 573, 586 (2001) (addressing
impropriety of having police officer offer his opinion on the
cause of an accident based on the hearsay statements of
witnesses testifying in the action). It could not have been
lost on this jury that had the prosecutor found the civilians'
account of the shooting credible, instead of Ramos', that Ramos
would have likely been criminally prosecuted. At the very
21 A-4627-13T4 least, it impermissibly bolstered the officer's version of
events. See State v. R.K., 220 N.J. 444, 458 (2015).
"For a hearsay error to mandate reversal, '[t]he
possibility [of an unjust verdict] must be real, one sufficient
to raise a reasonable doubt as to whether the error led the jury
to a result it otherwise might not have reached.'" Neno, supra,
167 N.J. at 586 (quoting State v. Hightower, 120 N.J. 378, 410
(1990) (quoting State v. Bankston, 63 N.J. 263, 273 (1973))).
Having reviewed the record of this trial, we are convinced that
admitting Assistant Prosecutor Smith's testimony was an error of
that magnitude.
Smith testified that as chief of the homicide unit he was
called upon to review any investigation of a police shooting
involving injury or death and, after reviewing the investigation
conducted in this matter, he determined not to criminally
prosecute defendant Ramos. The jury could very well "have
ascribed almost determinative significance to that
opinion, which went to the heart of the case."6 Id. at 587.
Because the improperly admitted testimony was "clearly capable of
6 As is obvious from the discussion, this testimony should not be repeated at any retrial. In addition, the trial judge should consider explaining to the jury that whether Ramos was criminally prosecuted is irrelevant to the issues in the civil trial. The judge may also wish to consider, in consultation with the parties, inquiring into potential jurors' views of the (continued)
22 A-4627-13T4 producing an unjust result," R. 2:10-2, especially when coupled
with the decision to preclude any reference to Ramos' mental
health records, to which we turn now, reversal is required.
Defendant Ramos made a motion before trial to bar any
mention of Ramos' state of mind, including psychological
counseling. Cf. N.J.R.E. 534 (effective July 1, 2016)
(codifying a new uniform mental health privilege affecting the
admissibility of patient communications with mental health
providers along with several exceptions). The trial judge
granted the motion finding that "Officer Ramos' private mental
health or his information is not necessary to determine whether
his use of force against the plaintiff was constitutional. . . .
His mental state has no bearing on whether his actions were
objectively reasonable under the circumstances."7
(continued) issue in voir dire in light of the recent national press coverage of such shootings. 7 Plaintiff makes much of the fact that when this case was first tried, a different judge denied a similar in limine motion to bar reference to Ramos' psychiatric records. That first trial ended in a mistrial after multiple weather-related court closures made it impossible for a sufficient number of jurors to continue. Because nothing prohibited the second judge from revisiting the issue, we do not address it further. See Lombardi v. Masso, 207 N.J. 517, 538-39 (2011) (noting "[a] hallmark of the law of the case doctrine is its discretionary nature, calling upon the deciding judge to balance the value of judicial deference for the rulings of a coordinate judge against those factors that bear on the pursuit of justice and, (continued)
23 A-4627-13T4 Defendants devote the greater part of their briefs to
defending the unassailable proposition that excessive force
claims are analyzed under the Fourth Amendment's "objective
reasonableness" standard, Graham v. Connor, 490 U.S. 386, 388,
109 S. Ct. 1865, 1867-68, 104 L. Ed. 2d 443, 450 (1989), and
thus that Officer Ramos' "subjective state of mind is irrelevant
to a proper assessment of the standard of objective
reasonableness under the Fourth Amendment."
We certainly agree that the substantive question in
excessive force cases "is whether the officers' actions are
'objectively reasonable' in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation." Id. at 397, 109 S. Ct. at 1872, 104 L. Ed. 2d at
456; see also Tumpson v. Farina, 218 N.J. 450, 474 (2014)
(noting interpretation given to parallel provisions of 42
U.S.C.A. § 1983 provides guidance in construing our Civil Rights
Act).
As the United States Supreme Court has explained, "[a]n
officer's evil intentions will not make a Fourth Amendment
(continued) particularly, the search for truth") (internal quotation omitted).
24 A-4627-13T4 violation out of an objectively reasonable use of force; nor
will an officer's good intentions make an objectively
unreasonable use of force constitutional." Graham, supra, 490
U.S. at 397, 109 S. Ct. at 1872, 104 L. Ed. 2d at 456.
But defendants' forceful defense of the trial court's
ruling prohibiting any reference to Ramos' mental health records
is a "straw man" argument,8 because plaintiff has never sought to
use the records to challenge Ramos' subjective motivation in
firing on him. Instead, plaintiff sought to use the records to
challenge Ramos' perceptions and his ability to make
observations, a classic use of extrinsic evidence to impugn a
witness's credibility under N.J.R.E. 607. See State v. Johnson,
216 N.J. Super. 588, 603 (App. Div. 1987) ("any deficiency of
the senses which would lessen the ability to perceive facts
testified to by the witness is an attack on the credibility of
the witness"), certif. denied, 157 N.J. 647 (1987).
8 See Kaye v. Rosefielde, 432 N.J. Super. 421, 478, n.30 (App. Div. 2013) (explaining that " the technique of setting up an argument that does not exist and then refuting that misrepresented argument is called the 'straw man' fallacy") (quoting Canesi v. Wilson, 158 N.J. 490, 518 (1999) (O'Hern, J., concurring)), rev'd on other grounds, 223 N.J. 218, 238 (2015).
25 A-4627-13T4 Our Supreme Court has recognized that an officer's account
of the facts is relevant in excessive force cases. Although an
officer's conduct
is to be evaluated through an objective lens that focuses on what a reasonable officer would have done under the circumstances . . . [,] [t]his is not to say that the law enforcement officer's version of events is irrelevant. On the contrary, the law enforcement officer of course may argue that the facts that existed at the time of the incident are different from the plaintiff's version.
[DelaCruz v. Borough of Hillsdale, 183 N.J. 149, 166 (2005).]
Conversely, plaintiff must be allowed to challenge the officer's
version of the facts, including through the use of extrinsic
evidence to impeach his credibility.
Our courts have held in a variety of other contexts
that evidence of a witness's mental state or condition is
relevant to assess credibility and explain the witness's
conduct. In State v. Burr, 195 N.J. 119, 123 (2008), the Court
found that evidence that a defendant charged with sexual assault
suffered from Asperger's Disorder should have been admitted
because it was material to his explanation of himself and his
conduct. The Court stated that "evidence of mental defect,
illness, or condition has been admitted . . . to assess
26 A-4627-13T4 credibility or otherwise evaluate the subjective perceptions of
an actor." Id. at 128.
In Johnson, supra, 216 N.J. Super. at 603, we explained
that "evidence of a witness' sensory or mental defects has
unquestionable relevance in attacking a witness' credibility."
We held mental abnormality, including being under the influence
of drugs or alcohol "at the time of observing the facts is
provable on cross-examination or by extrinsic evidence bearing
on credibility." Ibid.; see also Jaffee v. Redmond, 518 U.S. 1,
3-10, 116 S. Ct. 1923, 1925-28, 135 L. Ed. 2d 337, 341-45 (1996)
(acknowledging in adopting psychotherapist-patient privilege
that a police officer's mental health records in a civil rights
suit accusing the officer of excessive force in shooting
plaintiff's decedent would be probative of the officer's conduct
and perceptions at the scene).
In State v. Franklin, 52 N.J. 386, 399-400 (1968), the
Court held that the trial court's restriction of defense
counsel's cross-examination of a critical witness in a homicide
prosecution on her alcoholism was reversible error. The Court
held the error deprived the jury of "the benefit of what we now
know of [the witness's] drinking habits, the physical and mental
effects of alcohol upon her (including hallucinating), and her
27 A-4627-13T4 hospital admissions, so that it could reach an informed judgment
as to whether her testimony was to be believed." Id. at 399.
Similarly, in State v. Wormley, 305 N.J. Super. 57, 65-67
(App. Div. 1997), we held that it was reversible error to
prohibit the defendants from inquiring into a witness's drug use
to attack his credibility. We reiterated that a defendant in a
criminal trial "is entitled to fully test the State's proofs by
challenging a witness's perceptions and his ability to make
observations." Id. at 66. Because the witness's testimony was
inconsistent with other evidence, we acknowledged that the
"defendants were able to cast some question upon [the witness's]
credibility through these peculiarities in his testimony and his
prior convictions." Id. at 68. We noted, however, our
conviction "that whereas the jury might have had some question
as to his observations based upon all of that, cross-examination
of his drug use may well have tipped the scales." Ibid.
The clear import of all of these cases is that a witness is
always subject to cross-examination on his ability to accurately
perceive the facts to which he has testified. The accuracy of
the witness's observations and perceptions is central to an
assessment of the witness's credibility. Although the trial
court was correct that evidence of Ramos' nightmares, anxiety
and tension, sleep disturbance and lack of concentration would
28 A-4627-13T4 not be admissible to establish his subjective intent or
motivation, as such is not relevant to an excessive force claim,
see Graham, supra, 490 U.S. at 397, 109 S. Ct. at 1872, 104 L.
Ed. 2d at 456, that was not the purpose for which the evidence
was offered.
Ramos' nightmares, anxieties and tensions, sleep
disturbances and lack of concentration were relevant, and thus
admissible, to assess his credibility and evaluate his
subjective perceptions of the threat plaintiff posed. See Burr,
supra, 195 N.J. at 128. "A party may introduce extrinsic
evidence relevant to credibility, whether or not that extrinsic
evidence bears upon the subject matter of the action." Johnson,
supra, 216 N.J. Super. at 603.
Interpreting the "objective reasonableness" standard for
evaluating excessive force claims so expansively as to preclude
a cross-examiner from probing whether the officer's psychiatric
symptoms affected his ability to accurately perceive the events
giving rise to the claim, we are convinced was error. Such an
interpretation risks creating a special rule of credibility for
police officers defending against excessive force claims,
shielding them from the ordinary rules of cross-examination.
Nothing in our case law supports such an interpretation. See
DelaCruz, supra, 183 N.J. at 166-67.
29 A-4627-13T4 Whether Officer Ramos' act of shooting plaintiff twice in
the torso was objectively reasonable depends entirely on how a
reasonable officer would have perceived the threat plaintiff
posed. See id. at 166. That, in turn, likely depended on
whether the jury believed plaintiff simply picked up a small two
to four inch rock thrown at him in the course of a loud
argument, as plaintiff and the other witnesses testified, or
whether he was menacing the women with a large eighteen to
twenty-nine inch piece of cement he held in both hands over his
head, as Ramos claimed.
In deciding which scenario they accepted, the jurors should
have been informed that there were reasons other than the tunnel
vision offered by defendants' expert to explain why Ramos may
have seriously misperceived the size of the rock plaintiff was
holding and thus the magnitude of the threat he posed.
Plaintiff should have been permitted to tell the jury that Ramos
had eighteen months before been placed on light duty after
experiencing nightmares following the shooting of a fellow
officer and discharged from the SWAT team after a psychologist
concluded that Ramos' "apparent difficulties functioning could
compromise the quality of his judgments in risky or sensitive
situations." Plaintiff's counsel should have been able to
30 A-4627-13T4 cross-examine Ramos about his symptoms and their effect on his
perceptions and the performance of his duties.
Because the court's ruling barring any reference to Ramos'
mental health records severely prejudiced plaintiff in his
ability to prove his excessive force claim against Ramos and
gutted his Monell9 claim against the City, we reverse the
verdicts in defendants' favor and remand for a new trial as to
both defendants.
Reversed and remanded for a new trial. We do not retain
jurisdiction.
9 Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611, 636 (1978). Under Monell, "[a] municipality can only be held liable for constitutional violations committed by an employee when the violation resulted from an official municipal 'policy or custom.'" Stomel v. City of Camden, 383 N.J. Super. 615, 627 (App. Div. 2006) (quoting Schneider v. Simonini, 163 N.J. 336, 371 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001)), aff'd in part, rev'd in part on other grounds, 192 N.J. 137 (2007). Barring any reference to Ramos' mental health records prevented plaintiff from presenting evidence that the City's policies for evaluation and treatment of the mental health of its officers resulted in "deliberate indifference to the rights of persons with whom the police come into contact" and were the "moving force" behind Ramos' use of excessive force against plaintiff. City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 1204, 103 L. Ed. 2d 412, 426 (1989).
31 A-4627-13T4