NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4627-13T4

LEONIDES VELAZQUEZ,

Plaintiff-Appellant,

v.

CITY OF CAMDEN and OFFICER 

ALEXIS RAMOS,

Defendants-Respondents.

__________________________________

Argued October 5, 2015 – Decided

Before Judges Sabatino, Accurso and 

O'Connor.

On appeal from Superior Court of New Jersey, 

Law Division, Camden County, Docket No. L1350-10.

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).

APPROVED FOR PUBLICATION

September 14, 2016

APPELLATE DIVISION

September 14, 2016
2 A-4627-13T4

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 
3 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).
4 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.
5 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 
6 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.
7 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 fitnessfor-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 
8 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 
9 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:
10 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].
11 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?
12 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.
13 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.
14 A-4627-13T4

inadmissible if it [is] based on knowledge 

outside the individual's personal 

experience. 

. . . .

The inadmissibility of evidence of nonprosecution 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 
15 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, 
16 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.
17 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 
18 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. 
19 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 
20 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 
21 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 
22 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)
23 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)
24 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). 

 
25 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).
26 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 
27 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 
28 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 
29 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.
30 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 
31 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).