holding that the trial court should have exercised its discretion to sanitize evidence to avoid prejudicing defendant
How later courts described this case
- holding that the trial court should have exercised its discretion to sanitize evidence to avoid prejudicing defendant
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE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-2693-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSHUA M. GRAHAM,
Defendant-Appellant.
_______________________
Submitted February 1, 2021 – Decided June 8, 2021
Before Judges Hoffman, Suter and Smith.
On appeal from the Superior Court of New Jersey,
Law Division, Cumberland County, Indictment No.
17-05-0496.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kevin Walker, First Assistant Public
Defender, of counsel and on the briefs).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Stephen C. Sayer,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
After a trial, defendant Joshua Graham was convicted of third-degree
aggravated assault of a law enforcement officer, in violation of N.J.S.A.
2C:12-1(b)(5)(a), and third-degree resisting arrest, in violation of N.J.S.A.
2C:29-2(a)(3)(a). The trial court sentenced him to a six-year term of
incarceration with a three-year term of parole ineligibility on the aggravated
assault conviction, and to a concurrent four-year term on the resisting arrest
conviction.
Defendant raises the following issues on appeal:
POINT I:
THE COURT DENIED DEFENDANT A FAIR
TRIAL BY MATERIALLY ALTERING THE
MODEL JURY CHARGE'S DEFINITION OF A
"LAW ENFORCEMENT OFFICER."
POINT II:
THE TRIAL JUDGE COMMITTED PLAIN ERROR
WHEN HE FAILED TO CHARGE THE JURY ON
SELF DEFENSE, DESPITE EVIDENCE THAT
SUCH AN INSTRUCTION WAS NOT
WARRANTED. (NOT RAISED BELOW)
POINT III:
THE TRIAL JUDGE, IN VIOLATION OF THE
RULES OF EVIDENCE, PERMITTED
TESTIMONY ABOUT A DOMESTIC VIOLENCE
RESTRAINING ORDER, THEREBY DEPRIVING
DEFENDANT OF A FAIR TRIAL.
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POINT IV:
DEFENDANT'S SENTENCE IS EXCESSIVE.
We reverse and remand for the reasons set forth below.
I.
On March 21, 2017 defendant and his girlfriend Lashonda Evans sat in
the back of the Vineland municipal court, awaiting Evans' court case.
Defendant was wearing a hooded sweatshirt, or "hoodie," in the courtroom.
Officer Mark Rowe, a Vineland Police Department Class II special law
enforcement officer, was assigned courtroom security duty that day. Officer
Rowe motioned for defendant to remove the hoodie and defendant followed
the officer's instructions.
After defendant removed the hoodie, Officer Rowe saw defendant
wearing a red head covering and he asked defendant to remove it. Officer
Rowe and defendant exchanged words, apparently in open court, regarding the
red head covering, but defendant refused to remove it.
After defendant and Officer Rowe exchanged words, defendant stood in
the courtroom and put his hands behind his back. At that moment, the
municipal court judge asked defendant "to go outside." Officer Rowe escorted
defendant and his girlfriend into the courtroom vestibule, between the court
and the outer hallway. Officer Rowe testified defendant turned around and
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3
chest bumped him. Officer Rowe then told defendant he was under arrest, and
a struggle ensued.
Evans testified that defendant never bumped Officer Rowe and that
Officer Rowe "continuously" punched defendant in the face in the vestibule.
She testified that while Officer Rowe threw punches at defendant, defendant
used his arms to cover his head. As they struggled, defendant and Officer
Rowe burst through double doors leading out of the vestibule, into a hallway
outside the courtroom where they slammed into a wall simultaneously. After
both men hit the wall, Officer Rowe slipped and fell on his back. Defendant
remained standing and turned away, extending his arms behind his back with
his wrists close together towards Officer Rowe. Officer Rowe leapt to his feet,
grabbed defendant and continued the altercation.
Officer James Sharpless, another Vineland Class II special law
enforcement officer, came to Officer Rowe's aid. Officer Sharpless testified
that when he entered the fray, Officer Rowe was wrestling with defendant and
together the officers forced defendant to the ground, telling defendant not to
resist arrest while handcuffing him. Officers Rowe and Sharpless got
defendant onto his feet and began walking him from the end of the hall to the
lobby. Officers Rowe and Sharpless testified that defendant kept struggling
and finally head-butted Officer Rowe, resulting in a bruise to his face. After
A-2693-18
4
the head-butt, Officer Rowe testified he punched defendant in the face.
Defendant was taken into police custody and received medical treatment for
injuries he sustained during the fight.
Before trial, defendant moved to dismiss the indictment, arguing
Officers Rowe and Sharpless were not law enforcement officers for purposes
of N.J.S.A. 2C:12-1(b)(5)(a). The court denied the application, finding the
record established that both Officers Rowe and Sharpless were on duty and
working in a law enforcement capacity on the date of the incident.
II.
At the motion to dismiss and at trial, the State called Captain Thomas
Austino of the Vineland Police Department to explain the responsibilities of a
Class II special law enforcement officer, the position held by Officer Rowe.
He testified that a Class II officer was a part-time position which had the "full
powers of being a police officer while they are on duty." Such officers were
assigned a maximum of twenty to twenty-eight hours of work per week. As
Class II officers, they wore the same police uniform,1 were issued service
weapons, and had the same arrest powers as full-time officers.
1
State-mandated patches identifying the wearer as a Class II officer are
affixed to the shoulder of the part-time Vineland police officers' uniforms.
A-2693-18
5
Defendant's theory of the case at trial was that he did not commit an
aggravated assault or resist arrest. Defendant testified at trial that he never
chest-bumped Officer Rowe, and that Officer Rowe punched him in the
vestibule before they tumbled into the courthouse hallway where the remainder
of the encounter was captured on security video. He testified that, while in the
vestibule, he "covered up" and that Officer Rowe "just kept punching" him.
Defendant did not testify to any facts that would constitute self-defense. He
testified that he swung his head to avoid a chokehold Officer Rowe placed on
him once Officers Rowe and Sharpless subdued him.
Evans, the girlfriend, also testified at trial. The State cross-examined
her about certain conditions in a domestic violence restraining order 2
defendant previously obtained against her. The State asked Evans if she was
barred from contact with her children 3 as a condition of the restraining order.
This question was premised on the State's misreading of the restraining order.
2
The record does not contain the domestic violence restraining order,
although the trial transcript reveals extensive colloquy between counsel and
the witnesses, as well as counsel and the court, on the order's existence. The
record is undisputed that defendant obtained a restraining order against Evans,
and that the order and the restraints were dismissed by a judge at the request of
defendant prior to defendant's trial on these charges.
3
Evans had two biological children with defendant at the time the restraining
order was issued against her. She was pregnant with their third child at the
time she testified at trial.
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There was no condition in the restraining order barring Evans from seeing her
children. Evans testified that she was not barred from seeing her children, but
the State and the trial court mistakenly believed the restraining order included
such a condition, and that Evans' testimony was wrong. During sidebar, the
court overruled defendant's N.J.R.E. 403 objection to the State's line of
questioning. After Evans' testimony, but before defendant took the stand, the
court instructed the jury they were "not to consider the fact that there may have
been anything referenced in [the order] about restraining Mr. Graham from
anything[,]" and "not [to] consider [the order's] existence as any evidence that
Mr. Graham was restrained for any reason."
Defendant testified next. After lengthy cross-examination, the following
exchange occurred:
PROSECUTOR: And when you say the situation that
I brought up, you mean when you were filed [sic]
restraining order against her?
DEFENSE COUNSEL: Objection, judge.
DEFENDANT: The restraining order was filed
because, you know–-
THE COURT: What’s the objection?
DEFENDANT: — her being pregnant.
THE COURT: Hold on a second, sir.
A-2693-18
7
DEFENSE COUNSEL: Talk — talking about matters
that aren’t relevant to this case.
THE COURT: Overruled. Go on.
DEFENDANT: I mean the reason why I filed a
restraining order is because I got a baby on the way, I
got two sons and I got a trial that I’m looking at. So I
was like stressed out, you know what I mean. It’s not
that she did anything wrong.
DEFENSE COUNSEL: Objection.
THE COURT: All right. Sustained.
DEFENDANT: It’s — it’s not that she did anything
wrong.
THE COURT: Move on. This — this is not relevant.
Ladies and gentlemen, the reason for the restraining
order, whatever those reasons may be, is not relevant
to what you need to determine here.
After this exchange, the trial court gave two more curative
instructions to the jury. First:
THE COURT: Ladies and gentlemen, and there’s
other ones, right? Whatever did or didn’t happen with
regard to a restraining order one way or another that’s
not this case either, right?
After a brief exchange between the court and counsel off the record, the
judge provided a second curative instruction:
THE COURT: — now, okay. You do know of the
existence of a restraining order and you can may [sic]
consider that only to the extent that it may affect the
credibility of a witness with regard to the testimony
A-2693-18
8
here in the courtroom. Do you understand that?
Either the [sic] existence of the restraining order itself.
I don’t think it was even this witness that it was
actually relevant to. But the reasons for the
restraining order are not your concern, and I’m
striking that, okay.
At the charge conference, the defense argued Officer Rowe's part-time
status as a police officer was inconsistent with the definition of law
enforcement officer contained in the model jury charge corresponding to
N.J.S.A. 2C:12-1(b)(5)(a), which includes full-time employment status as part
of its definition. The trial court disagreed, finding the definition of law
enforcement officer used in the aggravated assault model jury charge was
derived from N.J.S.A. 40A:14-152.2. The court looked to N.J.S.A. 2C:25-
19(c) to modify the model jury charge and chose not to be limited by the
verbatim language in the original model charge. The statutory definition of
"law enforcement officer" the court adopted reads as follows: "[A] person
whose public duties include the power to act as an officer for the detection,
apprehension, arrest and conviction of offenders against the laws of this state."
Ibid.
On self-defense, defendant informed the court he would not request a
charge. After summations and the charge, the jury found defendant guilty on
both counts. After sentencing, defendant appealed.
A-2693-18
9
III.
The Jury Charges
A. Aggravated Assault of a Law Enforcement Officer
The court must not look at portions of the charge alleged to be erroneous
in isolation; rather, "the charge should be examined as a whole to determine its
overall effect," State v. McKinney, 223 N.J. 475, 494 (2015) (citing State v.
Jordan, 147 N.J. 409, 422 (1997)), and "whether the challenged language was
misleading or ambiguous." State v. Nelson, 173 N.J. 417, 447 (2002) (citing
State v. Simon, 161 N.J. 416, 477 (1999)); see also State v. Torres, 183 N.J.
554, 564 (2005). No party is entitled to have the jury charged in his or her
own words. All that is necessary is that the charge as a whole be accurate.
State v. Outland, 458 N.J. Super. 357, 372 (App. Div. 2019) (citing State v.
Thompson, 59 N.J. 396, 411 (1971)).
The trial court gave the jury a modified aggravated assault charge using
the N.J.S.A. 2C:25-19(c) definition. Defendant did not object to the charge as
given; therefore, we apply a plain error standard to review the trial court's
modification of the model jury charge.
N.J.S.A. 2C:12-1(b)(5)(a), the aggravated assault statute, does not define
the term, "law enforcement officer." The statute provides, in relevant part: "A
person is guilty of aggravated assault if the person [c]ommits a simple assault
A-2693-18
10
upon any law enforcement officer acting in the performance of the officer's
duties while in uniform or exhibiting evidence of authority or because of the
officer's status as a law enforcement officer . . . ." Ibid.
Defendant argues that while N.J.S.A. 2C:12-1(b)(5)(a) does not have a
definition of "law enforcement officer," the model jury charge corresponding
to N.J.S.A. 2C:12-1(b)(5)(a) has one. As written, the model charge defines the
term this way:
A law-enforcement officer is any person who is
employed as a permanent full-time member of any
State, county or municipal law-enforcement agency,
department or division of those governments and who
is statutorily empowered to act for the detection,
investigation, arrest, conviction, detention or
rehabilitation of persons violating the criminal laws of
this state.
[Model Jury Charges (Criminal), "Aggravated Assault
Upon Law Enforcement Officer Attempting to Cause
or Purposely, Knowingly or Recklessly Causing Body
Injury (N.J.S.A. 2C:12-1(b)(5)(a), (b), (c), (d), (e), (f),
(g))" (rev. Dec. 3, 2001).]
Defendant argues Officer Rowe's status as a part-time Class II officer
excludes him from the class of protected persons in the aggravated assault
statute, rendering the charge against defendant inapplicable. We disagree.
The question is how to interpret the term law enforcement officer in the
context of this section of the Criminal Code. We review matters of statutory
interpretation de novo. Verry v. Franklin Fire Dist. No. 1, 230 N.J. 285, 294
A-2693-18
11
(2017). Courts "look first to the plain language of the statute, seeking further
guidance only to the extent that the Legislature's intent cannot be derived from
the words that it has chosen." McGovern v. Rutgers, 211 N.J. 94, 108 (2012)
(quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009)). "The
Legislature's intent is the paramount goal when interpreting a statute and,
generally, the best indicator of that intent is the statutory language."
DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citing Frugis v. Bracigliano,
177 N.J. 250, 282 (2003)). Thus, any analysis to determine legislative intent
begins with the statute's plain language. Ibid. Our authority is bound by
clearly defined statutory terms. Febbi v. Bd. of Rev., 35 N.J. 601, 606 (1961).
Where a specific definition is absent, "[w]e must presume that the Legislature
intended the words it chose and the plain and ordinary meaning ascribed to
those words." Paff v. Galloway Twp., 229 N.J. 340, 353 (2017) (citing
DiProspero, 183 N.J. at 492).
However, our review "is not limited to the words in a challenged
provision." State v. Twiggs, 233 N.J. 513, 532 (2018). A court "'can also
draw inferences based on the statute's overall structure and composition,' and
may consider 'the entire legislative scheme of which [the statute] is a part.'"
Ibid. (alteration in original) (citations omitted). "We do not view [statutory]
words and phrases in isolation but rather in their proper context and in
A-2693-18
12
relationship to other parts of [the] statute, so that meaning can be given to the
whole of [the] enactment." Id. at 533 (alterations in original) (quoting State v.
Rangel, 213 N.J. 500, 509 (2013)).
Furthermore, "[t]he Legislature is presumed to be familiar with its own
enactments, with judicial declarations relating to them, and to have passed or
preserved cognate laws with the intention that they be construed to serve a
useful and consistent purpose." State v. Federanko, 26 N.J. 119, 129 (1958)
(citing Appeal of N.Y. State Realty & Term. Co., 21 N.J. 90 (1956)).
N.J.S.A. 2C:12-1(b)(5) expressly protects an extensive class of public
and private employees, including, but not limited to: law enforcement officers,
paid or volunteer fire personnel, medical first responders, Department of
Corrections employees, sheriff's deputies, and even select private sector
employees such as utilities workers. Two qualifications common to this
protected class of workers are that they can be identified as uniformed
personnel or otherwise "be clearly identifiable as being engaged in the
performance of" their official duties. N.J.S.A. 2C:12-1(b)(5)(a) to (k). There
is no full or part-time qualification for protected class members in the express
language of the statute.
The record shows Officer Rowe, in uniform and clearly exhibiting
evidence of his authority, instructing defendant to remove his hoodie. After
A-2693-18
13
finding no definition of "law enforcement officer" in N.J.S.A. 2C:12-1(b), the
trial judge looked to a cognate section of the criminal code, the Prevention of
Domestic Violence Act,4 to find a relevant definition, N.J.S.A. 2C:25-19(c).
The trial court next drew "'inferences based on [N.J.S.A. 2C:12-1(b)(5)'s]
overall structure and composition,' and…consider[ed] 'the entire legislative
scheme of which [N.J.S.A. 2C:12-1(b)(5)] is a part….'" Twiggs, 233 N.J. at
532. (citations omitted).
The court's consideration of Captain Austino's testimony and use of
N.J.S.A. 2C:25-19(c) ensured "that the charge as a whole [was] accurate."
Outland, 458 N.J. Super. at 372. We conclude that the trial court properly
searched the New Jersey Criminal Code to find an appropriate definition of
law enforcement officer from a cognate statute and applied that definition to
modify the applicable jury charge consistent with the facts of this case. We
are mindful that "[t]he Model Jury Charges are only guidelines, and a trial
judge must modify the Model Charge when necessary so that it conforms with
the facts, circumstances, and law that apply to the facts being tried." State v.
Green, 318 N.J. Super. 361, 376 (App. Div. 1999) (citing State v. Concepcion,
111 N.J. 373, 379 (1988)), aff'd, 163 N.J. 140 (2000). The trial court's
4
N.J.S.A. 2C:25-17 to -35.
A-2693-18
14
resourceful modification of the model charge5 under these facts did not lead to
an unjust result.
B. Self-Defense
Defendant never sought a self-defense instruction, and specifically
advised the court that no charge request on self-defense was forthcoming.
Appellate courts will not consider questions or issues not properly presented to
the trial court, unless the question raised on appeal goes to the jurisdiction of
the trial court or concerns matters of great public concern. State v. Robinson,
200 N.J. 1, 20 (2009) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
(1973)). However, in the interest of justice, the appellate court may "'notice
plain error not brought to the attention of trial court[,]' provided it is 'in the
interests of justice' to do so." Ibid. (quoting R. 2:10-2). Given defendant's
express disclaimer of self-defense before the trial court, there is no need for
protracted analysis.
5
We note that the N.J.S.A. 2C:12-1(b)(5)(a) Criminal Model Jury Charge
definition of law enforcement officer cites as its source a definition drawn
from N.J.S.A. 40A:14-152.2, "Immunities and benefit of police officer in
lawful exercise of statewide police powers." The definition, cited above,
limits itself to "any person who is employed as a permanent full-time member
of a municipal law enforcement agency." Because the trial court properly
modified the charge consistent with the facts of the case, we need not decide
whether the model charge's use of the qualified immunity statute's definition of
a law enforcement officer, which distinguishes between full and part -time law
enforcement officers, is appropriate.
A-2693-18
15
For completeness' sake, we note the use of a self-defense jury instruction
here would run counter to defendant's theory of the case. The record reveals
defendant's strategy to persuade the jury that he did not make offensive contact
with Officer Rowe. In State v. Vasquez, 265 N.J. Super. 528 (App. Div.
1993), we held a trial court's failure to charge self-defense was not plain error
where the charge was not requested and would have been prejudicial to the
defendant's strategy of the case. Id. at 552. "Defendant never claimed that he
had to use force," and thus "no plain error resulted from the judge's failure to
charge imperfect self-defense." Ibid. Consistent with Vasquez, we find no
plain error on these facts.
C. The Domestic Violence Restraining Order
A trial court's evidentiary rulings are entitled to deference absent a
showing of an abuse of discretion. State v. Singh, 245 N.J. 1, 12 (2021)
(quoting State v. Nantambu, 221 N.J. 390, 402 (2015)). Under this standard, a
trial court's decision to admit evidence should not be overturned "unless it can
be shown that the trial court palpably abused its discretion, that is, t hat its
finding was so wide [of] the mark that a manifest denial of justice resulted."
State v. Lykes, 192 N.J. 519, 534 (2007) (quoting Verdicchio v. Ricca, 179
N.J. 1, 34 (2004)).
A-2693-18
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After the trial court permitted, over defendant's objections, Evans'
testimony about the conditions in her restraining order, it gave a limiting
instruction to the jury:
You heard some testimony about the existence of the
restraining order here and you also heard some
testimony about what was or was not contained within
the restraining order. You're not to consider the fact
that there may have been anything referenced in there
about restraining Mr. Graham from anything. Okay?
Second of all, you can only consider the restraining
order itself as evidence as it may affect the credibility
of the witness. So that's the only reason you can
consider whether or not there was or was not a
restraining order and whether it had any effect on her
credibility. You're not to consider the fact that there
may have been anything referenced in there about
restraining Mr. Graham from anything.
As to the State bringing up the order during defendant's cross-
examination, the State argues it was defendant who first raised the restraining
order, thus opening the door and undercutting his argument on appeal. In turn,
defendant says his case was "irreparably harmed" when the trial court
permitted the State to cross-examine both he and Evans about the restraining
order.
State v. Vallejo, 198 N.J. 122 (2009) provides a proper framework for
reviewing the potential prejudicial impact of domestic violence restraining
order testimony on a criminal trial. We first address whether the restraining
A-2693-18
17
order testimony was properly before the jury during the testimony of either
Evans or defendant.
The first category of challenged evidence is Evans' restraining order
testimony. The State argues that its cross-examination of Evans regarding
conditions of the restraining order was permissible to show her motivation in
testifying at trial for the defense, citing N.J.R.E. 607 in support.
The record reveals the State was inartful in its execution of this strategy
by posing questions to Evans premised on its mistaken understanding of the
conditions of the restraining order. When Evans testified correctly that she
was not barred from seeing her children, the State pursued follow-up questions
about the restraining order during cross.
The trial court, misled by the State's confusion about the order's
contents, overruled repeated defense objections. It was only after Evans left
the witness stand that the State conceded it had misread the restraining orde r.
There was no condition barring Evans from seeing her children, hence there
was no factual or legal basis for the State to pose follow-up questions on cross,
nor was there any basis for the court to overrule defendant's objections on
impeachment grounds.
"Although extrinsic evidence may be admitted to impeach a witness,
under N.J.R.E. 607, its probative value as impeachment evidence must be
A-2693-18
18
assessed independently of its potential value as substantive evidence." Green
v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 494 (1999). "Irrelevant evidence which
might improperly affect a witness' credibility may not be admitted into
evidence." State v. Hutchins, 241 N.J. Super. 353, 361 (App. Div. 1990).
If the facts had been as the State mistakenly believed them to be, very
limited questioning of Evans would arguably have been appropriate regarding
the existence of an order that prevented her from seeing children; however, if
permitted, that line of questioning should have been sanitized to refer to a
court order, not a domestic violence restraining order. See State v. Hamilton,
193 N.J. 255, 265-66 (2008) (holding that the trial court should have exercised
its discretion to sanitize evidence to avoid prejudicing defendant). To make
matters worse, the colloquy regarding the restraining order generated a
curative instruction from the trial court which negatively impacted defendant's
ability to have a fair trial.
The second category of challenged evidence is defendant's testimony
about the restraining order elicited during his cross-examination. Defendant
argues that he was compelled to answer the State's questions about an
unrelated domestic violence incident which biased the jury and denied him a
fair trial. We agree. The domestic violence restraining order defendant sought
and obtained as a victim was unrelated to the charges for which he was on
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trial. The restraining order references during defendant's cross had no
relevance to the criminal trial, and "had a real potential to prejudice
defendant." Vallejo, 198 N.J. at 134. This irrelevant and inadmissible
evidence seeped into the trial. Ibid. The prejudicial impact on the defendant
was real and unmistakable.
We now "turn to the efforts of the [trial court] to neutralize the negative
effects of what transpired." Ibid. Generally, for a curative instruction to pass
muster in such circumstances, the instruction given to a jury must be firm,
clear, and accomplished without delay. Ibid. (citations omitted). Our Supreme
Court has "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 (citing State v. Wakefield, 190 N.J. 397, 440, 452 (2007)).
The trial court's first curative instruction, given during Evans' testimony,
raises concerns. The trial court sent the jury out and heard argument about
Evans' restraining order testimony. It was at this juncture the State first
conceded it misread the order and that Evans' recollection of the order's
contents was correct. The court brought the jury back and gave conflicting
curative instructions. First, it instructed the jury "not to consider the fact that
there may have been anything referenced in [the order] about restraining Mr.
A-2693-18
20
Graham from anything." This unclear instruction left the jury to speculate that
there may have been some restraint against defendant. Counsel and the court
had just completed their lengthy sidebar. They knew unequivocally there was
no such restraint. The court's second instruction, given at the same time, was
as follows: "[y]ou're not to consider the fact that there may have been anything
referenced in [the order] about restraining Mr. Graham from anything." Again,
this curative instruction is not clear. Once more, the jury was left to speculate
about the contents of the restraining order.
We conclude Evans' restraining order testimony was permissible if
properly sanitized; however, its corresponding curative instruction tainted the
jury in advance of the prejudicial restraining order exchange between the State
and defendant.
We now review the trial court's curative instructions given to the jury
after the State's prejudicial cross-examination of defendant. In this instance,
the instructions do not meet the Vallejo standard. They were not firm or clear.
Even at this trial stage the court remained equivocal as to the existence of a
restraining order against defendant when the record was clear there was none.
Importantly, the jury was already tainted by the Evans curative instruction.
The mere mention of the restraining order during defendant's testimony
compounded the harm. By the time the court finally instructed the jury that it
A-2693-18
21
was effectively striking any restraining order testimony, the damage had been
done.
We conclude the trial court's failure to sustain the relevance objection
during the State's cross-examination of defendant was a mistaken exercise of
discretion which permitted inadmissible testimony before the jury and thereby
prejudiced defendant. The instructions fell short of the Vallejo standard in that
they were not firm, clear, or timely. This prejudice was actual, not potential,
and the limiting instructions were not sufficient. Cf. State v. Rose, 206 N.J.
141, 166 (2011). Defendant was charged with a crime of violence. The State
alleged that he had assaulted a police officer. The State introduced into
evidence, through the testimony of two defense witnesses, a domestic violence
restraining order. The jury received multiple curative instructions from the
trial court from which they may have concluded that defendant had a
propensity for violent conduct. On this record, the mere mention of the
restraining order during defendant's testimony resulted in a manifest denial of
justice. Lykes, 192 N.J. at 534 (quoting Verdicchio, 179 N.J. at 34 (2004)).
The error here is not harmless. State v. Gillispie, 208 N.J. 59, 93 (2011).
Based upon our finding that harmful error occurred in this case, we
vacate defendant's conviction and remand for a new trial. Given our decision
to vacate defendant's conviction and order a new trial, we need not address
A-2693-18
22
defendant's excessive sentence contentions. Furthermore, any argument not
addressed here lacks sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Reversed and remanded for a new trial as to both counts. We do not
retain jurisdiction.
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