STATE OF NEW JERSEY v. RUSSELL B. STEVENS (18-10-1329, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-1883-20
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RUSSELL B. STEVENS, a/k/a
RUSSELL B. STEVENS, 4TH,
and RUSSELL B. STEVENS IV,
Defendant-Respondent.
___________________________
Argued June 2, 2022 – Decided August 1, 2022
Before Judges Gilson and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 18-10-
1329.
Michael Denny, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Michael Denny, of counsel
and on the brief).
Alexis R. Agre, Special Deputy Attorney General/
Acting Assistant Prosecutor, argued the cause for
respondent (LaChia L. Bradshaw, Acting Burlington
County Prosecutor, attorney for respondent; Alexis R.
Agre, of counsel and on the brief).
PER CURIAM
On October 11, 2018, a Burlington County grand jury returned a three-
count indictment charging defendant with second-degree disarming a law
enforcement officer, N.J.S.A. 2C:12-11(a) (count one); fourth-degree
aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a)
(count two); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) (count
three). The charges stemmed from an encounter during which police responded
to defendant's home after a 9-1-1 call reporting defendant's attempted suicide.
In November 2019, defendant proceeded to trial before a jury. At the
close of the State's case, the trial judge granted defendant's motion for judgment
of acquittal on count three pursuant to Rule 3:18-1. Thereafter, the jury
convicted defendant of counts one and two. At sentencing, the judge found that
the presumption of imprisonment for a second-degree crime was overcome, see
N.J.S.A. 2C:44-1(d), due, in large part, to defendant's mental health history. As
a result, the judge sentenced defendant to two years' probation on count one, and
a concurrent two-year probationary term on count two. Defendant now appeals
his convictions memorialized in an amended judgment of conviction entered on
June 9, 2020. For the reasons that follow, we reverse.
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I.
We summarize the salient facts elicited during a three-day trial conducted
on November 14, 19, and 20, 2019. At the trial, the State produced two
witnesses, Maple Shade Police Department Sergeants William Turner, III, and
Brian Weiss.
Sergeant Turner testified that just before midnight on August 17, 2017, he
responded to a 9-1-1 call from a residence in Maple Shade Township reporting
an "intoxicated" male, later identified as defendant, "covered . . . in gasoline"
and "threatening to set himself on fire." When Turner arrived on the scene, he
encountered defendant's sister, Rosemarie Nye, outside the residence. Nye
informed Turner that earlier that evening, she and defendant "had been at a
Jimmy Buffet concert," and there had been "an altercation . . . where [defendant]
had pulled a knife . . . on one of his friends and was ejected from the concert."
"The knife was taken away" and defendant and his sister left the concert.
Nye explained that on the drive home, defendant "thr[e]w himself from
the moving vehicle" but Nye was able to coax defendant back into the vehicle.
Once they arrived home, defendant, in an agitated state, "emptied his belongings
from the car, . . . dumped a container of gasoline on himself and said . . . I'm
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going to burn in [H]ell." According to Nye, at some point, defendant changed
his mind and went inside the residence to take a shower.
Turner testified that after he had confirmed that defendant was still inside
taking a shower, Turner went into the house "to check on [defendant's] well-
being." Turner intended to ascertain whether defendant was "suicidal" and in
need of "crisis intervention." Upon entering the home, Turner went to the
bathroom where "[t]he door was open[]" and "announced [him]self." Because
Turner lived on the same street, he said to defendant, "hey Rusty, it's BJ, your
neighbor." Turner asked defendant if he was "okay" and indicated that he
"need[ed] to talk to [him]." According to Turner, defendant was agitated and
ordered Turner to leave his house, essentially asserting that Turner was violating
his constitutional rights by being in his home and questioning him. Defendant
"yell[ed] in a loud voice" that he was not going to talk to Turner.
Turner remained "[i]n the threshold of the doorway in the bathroom" and
could see defendant's "shape behind the [frosted shower] glass," which also had
a "shower curtain" in front of it. Turner stated he was unsure if defendant had
a weapon. Turner repeated that he "need[ed] to talk to [defendant]" and would
"wait for [him] to be done," but defendant refused and became "irate" and
"belligerent," yelling that Turner "had to leave" and "had to get a warrant."
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Defendant also declared to Turner that "he was a sovereign citizen" and
"had . . . constitutional right[s]."
When Sergeant Weiss arrived as backup, both officers tried to convince
defendant to exit the shower. However, defendant refused and "eventually said
the only way [they were] getting [him] out of the shower [was] if [they] . . .
sho[]t [him]." Weiss testified that in a "last[-]ditch effort" to reason with
defendant, he "tr[ied] to open the [shower] door" but defendant "slam[med] the
shower door shut." Weiss then reached over the "shower curtain rail" and
deployed pepper spray towards defendant. Defendant responded by opening the
shower door and "charging out" of the shower at the officers. After defendant
disregarded all verbal commands, Weiss deployed pepper spray a second time
and a struggle ensued between defendant and Turner. The struggle began on the
"bathroom floor and . . . wound up in the hallway of the residence."
During the struggle, defendant removed Turner's taser from the holster
and discharged it into the wall behind Turner. Ultimately, the officers were able
to subdue defendant, secure him in handcuffs, and take him outside where an
ambulance was waiting. Defendant was then transported with a police escort to
a hospital for a mental health evaluation and treatment for injuries sustained
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from the gasoline. The entire encounter was captured on the officers' body-worn
cameras and played for the jury during the trial.
Prior to the trial, defendant had moved to compel discovery of all
documentation regarding prior interactions between defendant and members of
the Maple Shade Police Department. The State had opposed the motion, arguing
it had "turned over everything in [its] possession." The State asserted that
defendant's request "for all prior unrelated bad acts that have anything to do
with . . . defendant" was "a fishing expedition," and "not relevant" to the case.
The judge denied defendant's motion, finding that "the State ha[d] turned over
all relevant discovery within its possession" and "[e]vidence of prior contact
between the Maple Shade Police Department and . . . defendant [was] not, by
itself, relevant."
During the trial, towards the end of Turner's direct examination, the
prosecuting attorney asked Turner if he had known defendant from prior
encounters. The following questioning ensued:
[PROSECUTOR]: And based on your work experience
do you know [defendant] to have ever used or
threatened violence in the past? And we know the
suicide attempt, he threatened violence against himself,
but what about against others in the past?
[TURNER]: So, [defendant] is somebody that we use
as an example for new officers for somebody that could
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be suicidal or violent. There's two instances that come
to mind that we share with other officers.
One in which he had pulled a knife on other
officers and his father had to intervene and then they
were to take him into custody at that point.
And another situation was a domestic violence
situation. His sister had injuries as a result. He was
going to be arrested for the domestic violence incident.
He ingested pills when the police said, hey, you're
under arrest and he ate a bunch of pulls in an attempt to
kill himself. And in the report it said something to the
effect of I'd rather die than go to jail.
Defense counsel did not object to the testimony when it was elicited.
However, after direct examination of Turner concluded but before cross-
examination commenced, out of the presence of the jury, defense counsel
requested a mistrial, arguing to the judge:
On direct examination the prosecutor . . . talked
about other acts on the part of [defendant]. There have
been no [N.J.R.E.] 404(b) motions made to adduce
those acts. Those acts as stated by the officer had to do
with a knife that he pulled on other officers and there
was a domestic violence incident. . . .
. . . These are issues that should have been . . .
decided before trial. And now we're in the midst of trial
and these things are coming forward. The prejudice to
my client as a result of that is extraordinary.
....
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This is prosecution by sabotage. We don't bring
the things up properly before trial and now we bring
them up . . . while the witness is on the stand.
The State countered that the testimony was "not prejudicial" and was
"directly relevant" to establish "the officer's state of mind" and to "explain[] the
officer's actions" when he entered defendant's residence.
The judge denied the application for a mistrial. The judge expressed
surprise that defense counsel did not object immediately when the testimony
was elicited but indicated that the issue could "be addressed in a less extreme or
radical manner" by "instruct[ing] the jury to not consider th[e] testimony." To
support his ruling, the judge explained:
The [S]ergeant's state of mind was set once he
heard that a knife had been pulled at the Jimmy Buffet
concert; that there was a fight at the Jimmy Buffet
concert; that the defendant tried to jump out of the car;
and that he was drunk and that he doused himself with
fire.
I think any reasonable person would conclude
that this officer was justified in having a state of mind
that he was going to stay there until he found out what
the real situation was. He wasn't going to leave. And
the officer testified we didn't know what was behind the
shower curtain, whether he had a weapon when he was
in there. We know he had a weapon earlier in the day.
I think that's enough to show state of mind. I
think this extra testimony is unduly prejudicial. I would
have preferred a 404(b) hearing to look further into it.
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That didn't happen. I think that it unduly prejudices the
jury against [defendant]. I'm going to instruct them not
to consider it.
Thereafter, when the jury returned to the courtroom, the judge issued the
following instruction:
During the direct examination by the State of
Sergeant Turner you may recall there was a question
and I will read it to you.
"Question: And based on your work experience
do you know him to have ever used or threatened
violence in the past? And we know the suicide attempt
he threatened violence against himself, but what about
against others in the past?" And there was an answer to
that.
I'm going to instruct you to disregard the question
and the answer. You are not to consider it in your
deliberations. The answer -- and I'll make it clear to
you what you are not to consider.
Answer: "So, [defendant]" -- this is the answer
of Sergeant Turner -- "So, [defendant] is somebody that
we use as an example for new officers for somebody
that could be suicidal or violent. There's two instances
that came to mind that we share with other officers.
One in which he had pulled a knife on other officers
and his father had to intervene and then they were taken
to -- they took him into custody at that point. And
another situation was a domestic violence situation.
His sister had injuries as a result. He was going to be
arrested for the domestic violence incident. He
ingested pills when the police said, hey, you're under
arrest and he ate a bunch of pills in an attempt to kill
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himself. And in the report it said something to the
effect of I'd rather die than go to jail."
Again, that is the answer that I'm instructing you
to disregard and not to consider in your deliberations as
well as the question that preceded it.
In this ensuing appeal, defendant raises the following points for our
consideration:
POINT I
[DEFENDANT] WAS DENIED A FAIR TRIAL
BECAUSE THE JURY HEARD TESTIMONY THAT
HE HAD PREVIOUSLY PULLED A KNIFE ON
OTHER POLICE OFFICERS, THAT HE HAD BEEN
ARRESTED FOR A DOMESTIC VIOLENCE
INCIDENT WHERE IT WAS IMPLIED THAT HE
HAD INJURED HIS SISTER, AND THAT HE WAS
"SOMEBODY THAT WE USE AS AN EXAMPLE
FOR NEW OFFICERS FOR SOMEBODY THAT
COULD BE SUICIDAL OR VIOLENT."
A. The Trial Court Failed To Conduct The
Required Analysis Before Admitting The
Prior Bad Acts Testimony.
B. The Court Erred By Instructing The
Jury To Disregard The Testimony Instead
Of Granting The Mistrial Motion.
POINT II
THE FAILURE TO INSTRUCT THE JURY THAT
[DEFENDANT] HAD THE RIGHT TO RESIST THE
OFFICERS'[] USE OF UNLAWFUL FORCE
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REQUIRES REVERSAL OF HIS CONVICTIONS.
(NOT RAISED BELOW).
II.
In his first point, defendant argues the judge's "failure to analyze the
testimony under the applicable legal framework found in State v. Cofield, 127
N.J. 328 (1992)" deprived him of "a fair trial" and the judge's "failure to grant
the mistrial resulted in extraordinarily unfair prejudice to [defendant]."
N.J.R.E. 404(b) provides that "[e]vidence of other crimes, wrongs or acts
is not admissible to prove the disposition of a person in order to show that such
person acted in conformity therewith." "However, if that evidence is offered to
prove other facts in issue such as motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident, it may be admissible
subject to a weighing of the probative value against its apparent prejudice."
State v. Barden, 195 N.J. 375, 388 (2008).
In Cofield, the Court articulated a four-part test
designed to guide the determination of when to admit
such evidence. The Court defined the four-part test as
follows:
1. The evidence of the other crime must be
admissible as relevant to a material issue;
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2. It must be similar in kind and reasonably
close in time to the offense charged; [1]
3. The evidence of the other crime must be
clear and convincing; and
4. The probative value of the evidence
must not be outweighed by its apparent
prejudice.
[Barden, 195 N.J. at 389 (citations omitted) (quoting
Cofield, 127 N.J. at 338).]
This analysis is intended to reduce the underlying danger that the
factfinder may convict a defendant because "he or she is a 'bad person' who must
be guilty of the crime charged." State v. Castagna, 400 N.J. Super. 164, 175
(App. Div. 2008). "Because of the damaging nature of such evidence, the trial
court must engage in a 'careful and pragmatic evaluation' of the evidence to
determine whether the probative worth of the evidence is outweighed by its
potential for undue prejudice." Barden, 195 N.J. at 389 (quoting State v.
Stevens, 115 N.J. 289, 303 (1989)). "In the weighing process, the court should
also 'consider the availability of other evidence that can be used to prove the
same point.'" Ibid. (quoting State v. Jenkins, 178 N.J. 347, 365 (2004)).
1
"[T]he second prong may be eliminated where it 'serves no beneficial
purpose.'" Barden, 195 N.J. at 389 (quoting State v. Williams, 190 N.J. 114,
131 (2007)).
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"[U]nder N.J.R.E. 404(b), the party seeking to admit other-crimes
evidence bears the burden of establishing that the probative value of the
evidence is not outweighed by its apparent prejudice." State v. Reddish, 181
N.J. 553, 608-09 (2004). "In our review of a trial court's determination on the
admissibility of the evidence of other crimes under N.J.R.E. 404(b), we give
great deference to the decision of the trial court." Barden, 195 N.J. at 390.
"However, when a trial court does not analyze the admissibility of other-crimes
evidence under Cofield, we may conduct a plenary review to determine its
admissibility." Id. at 391.
Here, there can be no question that Turner's serial references to
defendant's threats of violence against others in the past, threats that informed
law enforcement's view of defendant as "suicidal or violent," fell within the
purview of N.J.R.E. 404(b). Because the judge did not analyze the admissibility
of the testimony under Cofield, we must conduct a plenary review to determine
its admissibility. Based on our review, we conclude the evidence was
inadmissible. We reach this conclusion largely because the probative value of
the evidence was outweighed by its potential for undue prejudice. "The risk
involved with such evidence is 'that it will distract a jury from an independent
consideration of the evidence that bears directly on guilt itself.'" State v.
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Vallejo, 198 N.J. 122, 133 (2009) (quoting State v. G.S., 145 N.J. 460, 468
(1996)). Indeed, although the judge did not employ a Cofield analysis, in his
ruling, he found that the testimony "unduly prejudice[d] the jury against
[defendant]."
While we acknowledge that an immediate objection by defense counsel
would have been preferable, had the State been more forthcoming when
defendant moved prior to the trial to compel discovery of all prior interactions
between defendant and members of the Maple Shade Police Department,
undoubtedly, the evidence would have been properly vetted and the error
avoided entirely. Critically, it was the State's, not defendant's, burden to
establish that the probative value of the evidence was not outweighed by its
apparent prejudice. Because the State failed to move to admit the evidence in a
N.J.R.E. 104 hearing prior to eliciting the objectionable testimony from
Sergeant Turner during the trial, the fault lies squarely on the State.
Having determined that the testimony was inadmissible, we must decide
whether a mistrial was warranted. "A mistrial is an extraordinary remedy" that
should be employed "[o]nly when there has been an obvious failure of justice."
State v. Mance, 300 N.J. Super. 37, 57 (App. Div. 1997). "Whether an event at
trial justifies a mistrial is a decision 'entrusted to the sound discretion of the trial
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court.'" State v. Smith, 224 N.J. 36, 47 (2016) (quoting State v. Harvey, 151
N.J. 117, 205 (1997)). We "will not disturb a trial court's ruling on a motion for
a mistrial, absent an abuse of discretion that results in a manifest injustice."
State v. Jackson, 211 N.J. 394, 407 (2012) (quoting Harvey, 151 N.J. at 205).
"To address a motion for a mistrial, trial courts must consider the unique
circumstances of the case." Smith, 224 N.J. at 47. "If there is 'an appropriate
alternative course of action,' a mistrial is not a proper exercise of discretion."
Ibid. (quoting State v. Allah, 170 N.J. 269, 281 (2002)). "For example, a
curative instruction, a short adjournment or continuance, or some other remedy,
may provide a viable alternative to a mistrial, depending on the facts of the
case." Ibid.To be sure, "inadmissible evidence frequently, often unavoidably, comes
to the attention of the jury, and the record cannot be purged of all extraneous
influence." State v. Winter, 96 N.J. 640, 646 (1984).
The decision on whether inadmissible evidence is
of such a nature as to be susceptible of being cured by
a cautionary or limiting instruction, or instead requires
the more severe response of a mistrial, is one that is
peculiarly within the competence of the trial judge, who
has the feel of the case and is best equipped to gauge
the effect of a prejudicial comment on the jury in the
overall setting.
[Id. at 646-47.]
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When the trial judge determines that a curative instruction, rather than a
mistrial, will suffice to rectify the error, generally, the instruction "must be firm,
clear, and accomplished without delay." Vallejo, 198 N.J. at 134. "The same
deferential standard that applies to the mistrial-or-no-mistrial decision applies
to review of the curative instruction itself." State v. Herbert, 457 N.J. Super.
490, 503 (App. Div. 2019).
Our Supreme Court "has consistently stressed the importance of
immediacy and specificity when trial judges provide curative instructions to
alleviate potential prejudice to a defendant from inadmissible evidence that has
seeped into a trial." Vallejo, 198 N.J. at 135; see State v. Wakefield, 190 N.J.
397, 440 (2007) (noting trial court issued "immediate" curative instructions
"promptly and effectively"); State v. Papasavvas, 163 N.J. 565, 614 (2000)
(explaining that State expert's testimony regarding defendant's guilt was
improper but "the trial court's curative instructions given immediately after [the]
statements . . . were sufficient to remedy [the] improper testimony"); Winter, 96
N.J. at 649 (holding instruction sufficient because "[b]efore defense counsel
even objected, the court struck the offending remark" and, after brief recess,
issued "sharp and complete curative instruction"); State v. La Porte, 62 N.J. 312,
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318 (1973) ("The trial judge immediately instructed the jury in the strongest
terms to disregard the offending remark.").
In Herbert, we provided guidance in assessing the adequacy of a curative
or limiting instruction. "First, a court should consider the nature of the
inadmissible evidence the jury heard, and its prejudicial effect." 457 N.J. Super.
at 505. In that regard, "[t]he adequacy of a curative instruction necessarily
focuses on the capacity of the offending evidence to lead to a verdict that could
not otherwise be justly reached." Ibid. (quoting Winter, 96 N.J. at 647). We
pointed out that "while a general charge may suffice to cure 'only slightly
improper' remarks, 'a single curative instruction may not be sufficient to cure
the prejudice resulting from cumulative errors at trial,'" and "[e]vidence that
bears directly on the ultimate issue before the jury may be less suitable to
curative or limiting instructions than evidence that is indirect and that requires
additional logical linkages." Ibid. (quoting Vallejo, 198 N.J. at 136).
"Second, an instruction's timing and substance affect its likelihood of
success." Ibid. "As for timing, . . . a swift and firm instruction is better than a
delayed one," and "[a]s for substance, a specific and explanatory instruction is
often more effective than a general, conclusory one." Id. at 505-06. We noted
that an instruction can be more effective when the judge "'explains the reason
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for the underlying rule'" and "[a]lthough trial judges may understandably try to
avoid repeating and thereby reinforcing an offending remark, a court must
describe it with enough specificity to enable the jury to follow the instruction."
Id. at 506-07 (quoting David A. Sklansky, Evidentiary Instructions and the Jury
as Other, 65 Stan. L. Rev. 407, 452 (2013)).
"Third, a court must ultimately consider its tolerance for the risk of
imperfect compliance." Id. at 507. "Yet, even in criminal cases involving errors
of constitutional dimension, 'not "any" possibility [of an unjust result] can be
enough for a rerun of the trial.'" Ibid. (alteration in original) (quoting Winter,
96 N.J. at 647). "The possibility 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." Ibid. (quoting State v. Macon, 57 N.J. 325, 336 (1971)). "By contrast,
a non-constitutional error 'shall be disregarded by the appellate court "unless it
is of a nature as to have been clearly capable of producing an unjust result."'"
Id. at 507-08 (quoting Winter, 96 N.J. at 648).
Guided by these principles, we are persuaded that the judge's curative
instructions did not cure the prejudicial impact of Turner's inadmissible
testimony describing defendant's prior violent acts. Although the judge issued
swift and firm curative instructions, the instructions did not fully and clearly
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address the prejudicial aspects of the testimony. We acknowledge that the
State's proofs, which included the officers' body-worn cameras depicting the
entire encounter, were strong. However, the charges defendant was convicted
of both required knowing conduct, while the defense theory was that defendant's
conduct was accidental and defendant lacked the requisite mental state. See
N.J.S.A. 2C:12-11(a) (providing a person is guilty of second-degree disarming
a law enforcement officer when that person "knowingly takes or attempts to
exercise unlawful control over a firearm or other weapon in the possession of a
law enforcement . . . officer when that officer is acting in the performance of his
duties"); N.J.S.A. 2C:12-1(b)(5)(a) (providing a person commits fourth-degree
aggravated assault if he "[a]ttempts to cause or purposely, knowingly or
recklessly causes bodily injury" to a "law enforcement officer acting in the
performance of the officer's duties while in uniform").
That said, the references to defendant's prior bad acts and history of
violence with the police and his sister had a real potential to prejudice the
defense and reinforce the notion that defendant was predisposed to the acts with
which he was charged. In that regard, the references "may not be minimized as
'fleeting comments' that likely escaped the jury's notice." Herbert, 457 N.J.
Super. at 508; cf. Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009)
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("Fleeting comments, even if improper, may not warrant a new trial, particularly
when the verdict is fair."). Rather, Turner's testimony gave the distinct
impression that defendant was known to the police and repeatedly threatened
violence to himself and others, prompting a police response. It was a relatively
short trial and Turner was one of the only two witnesses who testified at the
trial. His testimony could "not [be] missed." Herbert, 457 N.J. Super. at 509.
We would be remiss if we did not express our displeasure with the position
taken by the State when defendant moved to compel disclosure of the very same
information disclosed during Sergeant Turner's objectionable testimony. The
State took the position that it neither possessed such information nor deemed
such information relevant to the charges. Even if the information did not come
to light until after the discovery motion was adjudicated, it did not absolve the
State of its obligation to disclose the information prior to Turner's testimony.
Under Rule 3:13-3(b)(1), the State has an affirmative duty to make timely
disclosure of "relevant material" to defendant. Moreover, it has "a continuing
duty to provide discovery." Rule 3:13-3(f).
Under these circumstances, we have no confidence that defendant's
convictions were based on only admissible evidence. Instead, we are convinced
that the inadmissible evidence was of "a nature as to have been clearly capable
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of producing an unjust result," Winter, 96 N.J. at 648, and the judge's curative
instructions were insufficient to cure the prejudice. For this reason, we are
constrained to reverse the convictions and remand for a new trial. Given our
decision on this point, we need not address defendant's second point that the
judge's failure to instruct the jury that he was entitled to use force "in self-
defense" constituted plain error.
Reversed and remanded for a new trial. We do not retain jurisdiction.
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