                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                          SUPERIOR COURT OF NEW JERSEY
                                                          APPELLATE DIVISION
                                                          DOCKET NO. A-2430-16T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

RALPH J. ROSS,

           Defendant-Appellant.


                    Submitted December 12, 2018 – Decided March 6, 2019

                    Before Judges Alvarez and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No.
                    15-02-0194.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Molly O'Donnell Meng, Assistant Deputy
                    Public Defender, of counsel and on the brief).

                    Andrew C. Carey, Middlesex County Prosecutor,
                    attorney for respondent (Nancy A. Hulett, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
       Tried to a jury, defendant Ralph J. Ross was convicted of second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(2); third-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(d).1 After appropriate merger, the Law Division

judge sentenced defendant to an aggregate five years subject to the No Early

Release Act's eighty-five percent parole ineligibility. N.J.S.A. 2C:43-7.2. We

now reverse because defendant's statement, suppressed at a pretrial Miranda2

hearing, was used for impeachment without the benefit of a preliminary fi nding

as to trustworthiness.   Additionally, the jury was not instructed as to the

evidence's permissible uses.

       The victim of defendant's assault was Bryan Quiroz, the father of

defendant's grandson.    He and defendant had an acrimonious relationship,

including two incidents that defendant alleged made him fearful of Quiroz. The

first incident took place in Quiroz's mother's apartment in Old Bridge (the Old



1
    The remaining counts of the indictment were dismissed: third-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(7); fourth-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(3); third-degree hindering, N.J.S.A. 2C:29-3(b)(4); and
fourth-degree obstruction, N.J.S.A. 2C:29-1(b).
2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                       A-2430-16T4
                                       2
Bridge incident).    On that occasion, Quiroz is alleged to have assaulted

defendant's daughter, who told defendant about it afterwards.         The second

occurred in November 2008, in defendant's home, when his daughter and Quiroz

were arguing over the ownership of a PlayStation. As the argument escalated,

defendant jumped between the couple and told Quiroz to leave. According to

defendant's daughter, he and Quiroz began to push and shove each other until

Quiroz punched defendant in the face, knocking him to the floor. At a pretrial

hearing, the judge ruled defendant, whose sole defense was self-defense, could

proffer testimony regarding the second incident, but not the first.

      The State conceded during the course of the pretrial motions that the

Miranda warnings given defendant three days after the assault were inadequate.

The reason the State made the concession is unclear from the record, although

it is clear that police interviewed defendant while he was a patient at a neurology

intensive care unit because of injuries he suffered during the confrontation with

Quiroz. The prosecutor, defense counsel, and the judge agreed in abbreviated

fashion that defendant's statement could be used for impeachment, however, no

further proceedings were conducted on that subject. See State v. Burris, 145

N.J. 509, 529 (1996). During the trial, presided by a second judge, no Burris




                                                                           A-2430-16T4
                                        3
hearing took place. Nor were instructions given to the jury limiting their use of

the statement as relevant to credibility only.

      On appeal, defendant raises the following points:

            POINT I
            THE JUDGE DEPRIVED DEFENDANT OF HIS
            RIGHTS TO PRESENT A DEFENSE, TO DUE
            PROCESS, AND TO A FAIR TRIAL BY
            IMPROPERLY PRECLUDING DEFENSE COUNSEL
            FROM INTRODUCING EVIDENCE THAT THE
            VICTIM HAD PREVIOUSLY BEEN PHYSICALLY
            ABUSIVE TOWARD DEFENDANT'S DAUGHTER,
            AND THAT DEFENDANT WAS AWARE OF THAT
            ABUSE.

            POINT II
            THE TRIAL COURT FURTHER ERRED BY
            ADMITTING,     WITHOUT     A    LIMITING
            INSTRUCTION, BAD-CHARACTER EVIDENCE
            THAT     DEFENDANT   WAS    AN   ANGRY,
            EMOTIONALLY UNSTABLE PERSON WHO KEPT
            A COLLECTION OF KNIVES IN THE HOME WITH
            A YOUNG CHILD.

            POINT III
            THE TRIAL COURT IMPROPERLY ADMITTED
            DEFENDANT'S SUPPRESSED STATEMENT FOR
            IMPEACHMENT     WITHOUT   MAKING    THE
            REQUISITE FINDINGS UNDER STATE V. BURRIS
            AND PERMITTED THE STATE TO EXCEED THE
            SCOPE OF DIRECT EXAMINATION IN ORDER TO
            INTRODUCE THE SUPPRESSED STATEMENT.




                                                                         A-2430-16T4
                                        4
            POINT IV
            THE    CUMULATIVE    EFFECT                  OF   THE
            AFOREMENTIONED       ERRORS                    DENIED
            DEFENDANT A FAIR TRIAL.

            POINT V
            ESPECIALLY IN LIGHT OF THE STRONG
            MITIGATING FACTORS, THE TRIAL COURT
            ERRED BY DENYING DEFENDANT'S MOTION TO
            BE SENTENCED IN THE THIRD-DEGREE RANGE
            BASED ON AN ERRONEOUS FINDING OF
            AGGRAVATING FACTOR TWO.

            a.     The Sentencing Court           Erroneously   Found
                   Aggravating Factor Two.

            b.     Defendant Should Have Been Sentenced In The
                   Third-Degree Range.

      We address only two contentions: that the court erred regarding the use

of the suppressed statement for impeachment purposes, and that the court erred

in precluding the use of the Old Bridge incident. We do not reach defendant's

remaining issues as the matter will be retried.

                                        I.

      Defendant neither requested a voluntariness hearing, nor a limiting

instruction, as to the use to which the jury could put his statement. Thus we

review the trial court's failure to conduct such a hearing, and to charge the jury,

under the plain error standard. See R. 2:10-2.



                                                                           A-2430-16T4
                                        5
      Under the plain error standard, the trial court's decisions will not be

disturbed unless defendant shows plain error that is "of such a nature as to have

been clearly capable of producing an unjust result," or it is in the interest of

justice to do so. R. 2:10-2.

      A statement taken in violation of Miranda's strictures is nonetheless

admissible for impeachment of a defendant's testimony. Burris, 145 N.J. at 529.

Before admission for that purpose, the statement must be found to be

trustworthy. Id. at 533-34. "Trustworthiness entails an examination of the

voluntariness of the statement. Voluntariness, in turn, depends on whether the

suspect's will was overborne and whether the confession was the product of a

rational intellect and a free will." Id. at 534. "The State shoulders the burden

of proving voluntariness beyond a reasonable doubt in light of all surrounding

circumstances." Ibid.

      Because the State conceded that the statement violated Miranda, the issue

of voluntariness was not discussed. We note that defendant's statement was

taken while he was in a neurological intensive care unit, having been arrested

three days prior. Determining the legal question of voluntariness requires a fact-

sensitive analysis. Burris, 145 N.J. at 534. In this case, the issue can be decided

based on proofs establishing defendant's demeanor, physical condition,


                                                                           A-2430-16T4
                                        6
appearance at the time the statement was taken, his medical status, and the

conduct of the police. We do not have available either a transcript or audio

recording of defendant's statements, although their existence is suggested by the

record of the State's cross-examination of defendant during trial.

      The State used significant portions of defendant's prior statement not only

to impeach his credibility, but to present to the jury far more damning evidence

than his trial testimony regarding his possession of the knife at the moment of

the assault, his ownership of it, and similar details. Self-defense was defendant's

only defense. He claimed from the moment police arrived at his door after he

stabbed Quiroz to his trial testimony that he only acted in self-defense. Thus,

in our view the trial court's failure to conduct a voluntariness hearing is

reversible error.

      Furthermore, reversal is appropriate in light of the court's failure to give

a limiting instruction. Where a defendant fails to object to an instruction in the

trial court, Rule 1:7-2 provides that a showing of plain error must be made.

"[P]lain error requires demonstration of '[l]egal impropriety in the charge

prejudicially affecting the substantial rights of the defendant sufficiently

grievous to justify notice by the reviewing court and to convince the court that

of itself the error possessed a clear capacity to bring about an unjust result.'"


                                                                           A-2430-16T4
                                        7
State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409,

422 (1997)); see also State v. Chapland, 187 N.J. 275, 288-89 (2006).

       It has been long-established, however, that a jury must be told that

impeachment material is introduced solely to impact credibility. Burris, 145

N.J. at 535-36 (citing State v. Manley, 54 N.J. 259 (1969)). The jury must be

told that it cannot be used as substantive evidence of defendant's guilt. Id. at

535.

       "[T]he importance of the privilege [against self-incrimination] to our

accusatory system of justice requires us to guard carefully against its

infringement. . . . [T]he improper use of incriminating statements made by a

criminal defendant has great potential for prejudice." State v. McCloskey, 90

N.J. 18, 31 (1982). Given the importance historically placed on the privilege

against self-incrimination, and the great potential for the jury to have improperly

used details they heard taken from the suppressed statement as substantive proof

of guilt, the failure to give a limiting instruction was plain error. The potential

for prejudice went right to the heart of defendant's only defense—that he acted

in self-defense.

       Furthermore, "[t]he jurors should be instructed that they may, although

they need not, consider the previously suppressed statement as affecting []


                                                                           A-2430-16T4
                                        8
defendant's credibility." Burns, 145 N.J. at 535 (emphasis added) (citing State

v. Knight, 63 N.J. 187 (1973). Thus, the trial court erred by failing to give a

limiting instruction. Failure to have done so may have led to an unjust result.

                                       II.

      The judge who decided the pretrial motions did not fully explain his

reasons for denying defendant the ability to introduce evidence regarding the

Old Bridge incident. Prior to ruling, the judge asked counsel to expound on the

reason presenting the Old Bridge incident was not cumulative under N.J.R.E.

403, in light of his ruling that the 2008 incident was admissible. N.J.R.E. 403

excludes relevant evidence if its probative value is substantially outweighed by

the risk of needlessly presenting cumulative evidence. Apparently dissatisfied

with defense counsel's response, the judge said, "All right. I'm not going to let

you do the Old Bridge [incident]."

      Defendant asserts that the Old Bridge incident was relevant under N.J.R.E.

401, and admissible pursuant to N.J.R.E. 404(a) (character evidence generally)

and 404(b) (other bad acts). A brief discussion pursuant to State v. Jenewicz,

193 N.J. 440 (2008), suffices. In that case, the court applied the two rules in

determining whether testimony concerning a victim's violent behavior in a self-




                                                                         A-2430-16T4
                                       9
defense case was admissible. The Court began with a discussion of the principle

that in a self-defense case,

             evidence of the victim's violent character . . .
             demonstrates the victim's propensity for violence,
             which tends to support an inference that the victim was
             the initial aggressor[.] [W]here the accused has
             knowledge of the victim's prior violent acts, it tends to
             show the reasonableness of the accused's belief that the
             use of self-defense . . . was necessary.

             [Id. at 457.]

       N.J.R.E. 405 prohibits specific instances of conduct from being presented

"unless a trait of character is an essential element to a claim or defense." Id. at

459.   Generally, however, a defendant asserting self-defense may adduce

evidence of the victim's violent character, including specific instances of violent

conduct in which the victim is the aggressor, because it is probative on the issue

of the reasonableness of defendant's belief. Id. at 463-64. These type of events

are admissible under N.J.R.E. 404(b). The Jenewicz Court said that specific

prior bad acts "speak[] to the issue of the reasonableness of the defendant's belief

that deadly force was necessary." Id. at 462. However, "[o]nly when the

defendant has actual knowledge of the specific acts to which a witness testifies

is specific-acts testimony probative of the defendant's reasonable belief." Id. at

463. Therefore, pursuant to N.J.R.E. 404(b), evidence about the Old Bridge


                                                                            A-2430-16T4
                                        10
incident, with which defendant was familiar, should have been admitted.

Defendant was entitled to proffer this second event in support of his self-defense

claim.

      We disagree that under N.J.R.E. 403 the evidence was cumulative. Two

incidents, in light of the serious nature of these charges, are not excessive.

      Our scope of review in addressing these issues is "relatively narrow."

State v. Krivacska, 341 N.J. Super. 1, 40 (App. Div. 2001). A trial judge's

discretion is broad in deciding whether to admit such evidence.           Biunno,

Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 2 on N.J.R.E. 403

(2018) (quoting State v. Sands, 76 N.J. 127, 144 (1978)).          But on retrial,

defendant should be allowed to move into evidence the first incident as well as

the second.

                                        III.

      We do not reach defendant's other arguments as they become moot in light

of our decision that the conviction should be reversed.

      Reversed.




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                                       11
