                 NOT FOR PUBLICATION WITHOUT THE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.

[Objection overruled.]

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].

A.   Yes.

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?

[Velazquez's counsel]:     Objection.

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 -

COURT:   No.

[Ramos' counsel]:   Can we [have] a sidebar
on this?

COURT:   No.

[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?

A.   Yes.




                      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

explained:

              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).



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