NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. 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 c ause 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, 2016A - 4627
- 13T4 2 The opinion of the court was delivered by ACCURSO, J.A.D. Plainti ff Leonides Velazquez appeals from the jury's no

cause verdict in his New Jersey Civil Rights Act action against defendant Alexis Ramos, a Camden p olice 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 d ismissal 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 th ree issues on appeal. He claims the court erred in allowing an assistant prosecutor to testify he determined, after reviewing the investigation conducted , no t to criminally prosecute Ramos , by excluding all references to
Ramos' mental health records and b y 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 hisA - 4627
- 13T4 3 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 e ye witnesses, the essential facts are easily summarized. The jury heard testimony that p laintiff 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 cur sing at plaintiff , accusing him of hitting his girlfri en d and breaking a window at her home. The girlf riend's mother was standing half in and half out of the driver's sea t yelling at plaintiff, who
stoo d about t en feet away. Plain tiff 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 gar den in plaintiff's yard. According to plaintiff, his mother and two sisters, s he
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).A - 4627
- 13T4 4 did not hit plaintiff, as his mother deflected it with her hand. Plaintiff testified he bent to pick up the rock thrown at him.

A s 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 jus t 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

aro und the van and open the door. As that was hap pening, "[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 r ock 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.A - 4627
- 13T4 5 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 f ight 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 phys ically 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 eac h 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 an d 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 nearbyA - 4627
- 13T4 6 business documented that one minute and ten seconds elapsed between the time Ramos arrived and the other police cars
appear ed . 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, [a bout 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 th e size of a weapon. When asked specifically by defense couns el about Ramos' testimony that plaintiff was holding a rock " estimated at 18 to 29 inches," and how the expert " could explain that perce ption under these circumstances, " t he 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.A - 4627
- 13T4 7 The jury did not hear other explanations for what defendant's expert accepted as Ramos' clear misperception of the size of th e rock plaintiff wa s holding. Specifically, a s a result of an in limine ruling barring plaintiff from making any reference to Ramos' psychological records, th e 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 co ncluded at that time that Ramos' " apparent difficulties f unctioning could compromise the quality of his judgments in risky or sensitive situations." Ramos was dismissed from the SWAT t eam by the department's command staff effective July 26, 2007 as "a preventative measur e in the best interest and well

- being of yourself and ot her members of the
SWAT team." Although returned to full duty in July 2007, Ramos continued to treat with a social worker through the shooting inA - 4627
- 13T4 8 January 2009. The social worker's notes reflect that R amos was still suffering from nightmare s in which he dreamed he was s hot 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.

T he 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 defendan ts. After reviewing plaintiff's brief in support ofA - 4627
- 13T4 9 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 c onclusion 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 a nd 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
pro secuted for shooting Velazquez ; yes or no? Period. No further questions." The court rejected defense counsel's
req uest to "go over [Smith's] background, " instead making cl ear counsel was to elicit only t he witness's name and job title and nothing else. Ramos' counsel's direct examination of the a ssistant
p rosecutor proceeded in pertinent part as follows :A - 4627
- 13T4 10 Q. Mr. Smith, are you currently employed?

A. No, I'm presently retire d. 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 uni t 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].A - 4627
- 13T4 11 [ 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 Guideline s, I had to make a determination whether

— [Object ion 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 wi th the shooting incident involving [plaintiff]? [Velazquez's counsel ] : Objection. [Ramos' counsel]: Judge.
COURT: I'll allow it. B ut ask the question, [counsel].

A. Yes. Q. Yes. And you reviewed the investigation of the shooting?A - 4627
- 13T4 12 [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 prosecu ted?

A. Yes.A - 4627
- 13T4 13 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. 701 3 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 Am erican 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 explain ed: The evidence of non

- prosecution is of very

limited probative value in showing t hat 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.A - 4627
- 13T4 14 inadmissible if it [is] based on knowledge outside the individual's personal experience.

. . . . The inadmissibility of evidence of non

prosecuti on 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. Ha rtford 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 arso n was not criminally charged. Although finding no New Jersey case squarely on point, t he
Ga lbraith 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:

T he 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 necessa ry for conviction had not been presented. Similarly, in the context of a civil action for malicious prosecution, New JerseyA - 4627
- 13T4 15 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. 194 8); Shoemaker v. Shoemaker , 11 N.J. Super . , 471 ( App. Div. 1951). " The grand jury is not the pro per 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 Dist rict , 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 co ncerning 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,A - 4627
- 13T4 16 " 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 u nit, who was
respo nsible to review the investigation of the shooting under
the Attorney General 's U se of Force Policy, determined not to criminally prosecute Ramos . The obvi ous 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 know ledge 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, t aste, sight, smell or

4 Although finding the re ference 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. a t 147
- 48 .A - 4627
- 13T4 17 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) ; s ee 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." I nstead they argue that plaintiff's counsel "o pened 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' e vidence. I f 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 o n opening is not properly corrected by allowing the introduction of prejudicial evidence that would otherwise beA - 4627
- 13T4 18 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.

A t argument on plaintiff's m otion for a new trial, the trial judge acknowledged that Smith' s testimony " went beyond the limited scope that the court ordere d. " He nevertheless denied
the mot ion 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 th e evidence in the record in denying Ramos' motion for dismissal at the close of plaintiff's case. Carefully canvassing the facts in the record, t he judge described the two sce narios 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.A - 4627
- 13T4 19 One scen ario 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 o r 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. Vela z quez 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 t ree. The officer saw Mr. Velaz quez 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 wa s 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 turn s 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 c onclude 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 hisA - 4627
- 13T4 20 weapon to protect, if not himself, certainly the o ther 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. T hat he then bent down, sort of a n atural 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 straighten ing up with the rock either at his waist or perhaps chest high, but not in an overhe ad 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 p lace over theA - 4627
- 13T4 21 course of the seventy seconds that elapsed between Officer Ramos' arrival and pl aintiff'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 ver sion 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 ou r 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 s pecial respect to such a witness. " Neno v. Clinton , 167 N.J. 57 3, 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 be en 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 veryA - 4627
- 13T4 22 least, it impermissibly bolstered the officer's version of
events. See State v. R.K. , 220 N.J. 444, 458 (2015).

"Fo r 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 test ified that as chief of the homicide u nit 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 "clearl y capable of

6 As is obvious from the discussion, this testimony should not be repeated at any retrial. In addition, the trial judge should con sider explaining to the jury that whether Ramos was criminally prosecute d is irrelevant to the issues in the civil trial. The judge may also wish to consider, in consultation with the parties, inquir ing into potential jurors' views of the (continued)A - 4627
- 13T4 23 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 a ny 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 wit h 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 plaint iff was constitutional. . . . His mental state has no bearing on whether his actions were

o bjectively 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 m ade 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 t he 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)A - 4627
- 13T4 24 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 assess ment of the standard of obje ctive
reasonableness under the F ourth 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
4 56; s ee also Tumpson v. Farina , 218 N.J. 450, 474 (2014) (noting interpretation given to parallel provisions o f 42
U.S.C.A. § 1983 provide s 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) par ticularly, the search for trut h " ) (internal quotation omitted).A - 4627
- 13T4 25 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 abilit y 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 e xist and then refuting that misrepresented argument is called the ' straw man ' fallacy") (quoting Canesi v. Wilson , 158 N.J. 490, 518 (1999) (O'He rn , J., concurring ) ) , rev'd on other grounds , 223 N.J. 218, 238 (2015) .A - 4627
- 13T4 26 Our Supreme Court has recognized that an officer' s account of the facts is relevant in excessive force case s. 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 differen t from the plaintiff's version. [ DelaCruz v. Borough of Hillsdale , 183 N.J. 149, 166 (2005). ] Conversely, plaintiff must be allowed to chal lenge 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 witn ess' s mental state or condition is

re levant 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 hi s explanation of himself and his conduct. The Court stated that "evidence of mental defect, illness, or condition has been admitted . . . to assessA - 4627
- 13T4 27 credibility or otherwise evaluate the subje ctive 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 m ental abnormality , including being under the influence of drugs or alcohol " at the ti me of observing the facts is provable on cross
- examination or by extrinsic evidence bearing on credibility ." Ibid. ; s ee 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 psychot herapist

- 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

co unsel's cross
- examination of a critical witness in a homicide prosecution o n her alcoholism was reversible error . The C ourt held the error deprived t he j ury 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 herA - 4627
- 13T4 28 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, 6 5
- 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. B ecause the witness' s testimony was inconsistent with other evidence, we acknowle dged 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 qu estion 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 tensio n, sleep disturbance and lack of concentration wouldA - 4627
- 13T4 29 not be admissible to establish his subjective intent or motivation, as such is not relev ant to an excessive force claim,

s ee Graham , supra , 490 U.S. at 397, 109 S. Ct. at 1872, 104 L. Ed. 2d at 456, t hat was not the purpose for which the evidence
was offered.

Ramos' nightmares, anxieties and tension s , sleep disturbances and lack of concentration were relevant , and thus admissible , to assess his credibility and evaluate his subjective perceptions of t he 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 givi ng 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 ou r case law supports such an interpretation. See DelaCruz , supra , 183 N.J. at 166
- 67.A - 4627
- 13T4 30 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 threa t plaintiff posed . See i d. 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 de fendants' 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. Plaint iff 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 psyc hologist
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 toA - 4627
- 13T4 31 cross - examine Ramos about his symptoms and their effect on his perceptions and the performance of his duties.
Because the court's rul ing 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 Monell 9 claim against the City, we reverse the verdicts in defendants' favor and remand f or 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 custo m.'" 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 who m 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).