STATE OF NEW JERSEY VS. RALPH J. ROSS (15-02-0194, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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).
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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
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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.
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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.
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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,
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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.'"
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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 []
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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-
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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
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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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