ROBYN KLEINHANS v. RALPH CLAYTON AND SONS, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2318-06T52318-06T5

ROBYN KLEINHANS,

Plaintiff-Appellant,

v.

RALPH CLAYTON AND SONS, INC.,

and BRUCE S. DAVIDSON,

Defendants-Respondents,

and

MICHAEL J. MACIEJCZYK,

Defendant.

______________________________

 

Argued December 10, 2007 - Decided

Before Judges S. L. Reisner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3238-05.

Gregg D. Trautmann argued the cause for appellant (Trautmann & Associates, attorneys; Gregg D. Trautmann and Robert T. Trautmann, on the brief).

Ronald E. Prusek argued the cause for respondents (Carluccio, Leone, Dimon, Doyle & Sacks, attorneys; Mr. Prusek, of counsel and on the brief).

PER CURIAM

This is a personal injury automobile negligence action. Plaintiff Robyn Kleinhans appeals from the November 13, 2006, order of the Law Division, dismissing her personal injury complaint against defendants Ralph Clayton and Sons, Inc., and
Bruce S. Davison, based on a jury verdict of no cause for action. We affirm.

Plaintiff does not challenge the verdict on the grounds that it was against the weight of the evidence. Accordingly, we set forth the following brief synopsis of the liability testimony adduced at trial to set this appeal in context. We will discuss additional facts as necessary, when addressing the issues raised on appeal.

On November 3, 2004, at approximately 11:25 a.m., plaintiff was a passenger in a motor vehicle operated by defendant Michael J. Maciejczyk. Maciejczyk's vehicle was traveling southbound on Route 18 in Tinton Falls in the right-hand lane, just north of the intersection of Route 18 and State Highway 36, when plaintiff and Maciejczyk observed a cement truck entering onto Route 18 from an onramp on the right side of the highway. The cement truck was owned by defendant Ralph Clayton and Sons, Inc., and was operated by its employee, defendant Bruce S. Davidson. After plaintiff and Maciejczyk observed the truck enter onto Route 18 at an approximate speed of 20 m.p.h., Maciejczyk pulled his vehicle into the left-hand lane, intending to bear left onto State Highway 36, when he and plaintiff suddenly felt an impact on the right side of their motor vehicle, causing the vehicle to flip over.

Contrary to plaintiff and Maciejzcyk's version of events, Davidson testified that he proceeded onto Route 18, traveling at a speed of approximately 25 m.p.h.; moved from the entrance ramp onto the right-hand lane on Route 18, having made observations in his rear view mirror and having used his directional signals; and thereafter, proceeded into the left-hand lane of Route 18. As Route 18 approaches the intersection of State Highway 36, the left-hand lane becomes a middle lane, with the roadway widening on the left via a third lane of travel. Individuals, traveling in the middle lane, can bear left onto State Highway 36, or proceed straight in a southerly direction on Route 18. Davidson remained in the middle lane, intending to proceed southbound on Route 18. Davidson testified that after he traveled a short distance in the middle lane, his truck was struck in the left rear by plaintiff's vehicle, which was in the process of passing him in the far left-hand lane, intending to proceed eastbound onto Route 36.

On appeal, plaintiff argues:

POINT I.

THE TRIAL COURT'S DENIAL OF PLAINTIFF'S REQUEST TO INTRODUCE EVIDENCE OF DEFENDANT DAVIDSON'S PRIOR CRIMINAL CONVICTIONS WAS A MISTAKEN EXERCISE OF DISCRETION AND SHOULD BE REVERSED.

POINT II.

THE TRIAL COURT'S ALLOWING OF KENNETH ERICKSON TO TESTIFY OVER THE OBJECTION OF PLAINTIFF'S COUNSEL WAS A MISTAKEN EXERCISE OF DISCRETION AND SHOULD BE REVERSED.

I.

Plaintiff argues that the trial court erred in prohibiting plaintiff from introducing "evidence of defendant Bruce Davidson's criminal history in order to call his credibility into question." Plaintiff contends that the trial judge failed to put the reasons for his ruling on the record. Plaintiff asserts that the trial judge simply applied a bright-line, ten-year rule in excluding the conviction, rather than weighing the remoteness and relevancy of the conviction as required by N.J.R.E. 609.

We defer to a trial judge's evidentiary rulings absent an abuse of discretion. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999); Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991), certif. denied, 140 N.J. 329 (1995). "As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter, supra, 252 N.J. Super. at 92; see also Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982). Our role is not to substitute our judgment for that of the trial judge, but to decide whether the judge pursued a manifestly unjust course. Green, supra, 160 N.J. at 492.

Introduction of prior convictions for impeachment purposes is governed by N.J.R.E. 609, which provides: "[f]or the purpose of affecting the credibility of any witness, the witness's conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proven by examination, production of the record thereof, or by other competent evidence." The rule governs the use of prior convictions to impeach a witness's credibility in both criminal and civil trials. State v. Kelly, 97 N.J. 178, 217 (1984); Tonsberg v. VIP Coach Lines, Inc., 216 N.J. Super. 522, 529 (App. Div. 1987).

As restricted by the rule itself, "it is only convictions of crimes which may be used to affect credibility." Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 609 (2007). Accordingly, evidence that a witness has been indicted or previously convicted of a disorderly persons offense or a municipal ordinance violation cannot be introduced to impeach the witness's credibility.

The rule permits the party, seeking to impeach a witness's testimony, to provide evidence of the prior conviction by "examination, production of the record thereof, or by other competent evidence." N.J.R.E. 609. "Where the prior conviction was in New Jersey, a certified copy of the conviction or the production of the actual minutes of the court is adequate proof of the conviction." Biunno, supra, comment 3 on N.J.R.E. 609 (2007). Moreover, if a certified copy of the conviction is not available, the party seeking to impeach may prove the conviction through an admission of the witness "even if made at a voir dire examination." Ibid.

If a question exists whether the witness has been convicted of a crime, the court should conduct a preliminary examination of the issue outside the jury's presence, pursuant to N.J.R.E. 104(a). Ibid. The decision whether to admit a prior conviction rests with the sound discretion of the trial judge, and will not be reversed absent a finding of abuse of discretion. State v. Hutson, 211 N.J. Super. 49, 53 (App. Div. 1986), aff'd, 107 N.J. 222 (1987).

Here, Davidson testified on direct examination that subsequent to the date of the accident he had a conversation with Maciejczyk in plaintiff's presence, in which Maciejczyk said "he was sorry and he wanted to know if I was okay, and that he was sorry for running into me." After Maciejczyk and plaintiff denied that Maciejczyk made the statement, plaintiff attempted to introduce evidence of Davidson's prior conviction in an attempt to impeach his credibility.

In anticipation of Davidson's testimony, plaintiff's counsel had advised the court, prior to presenting testimony, that he may attempt to impeach Davidson's credibility through the introduction of Davidson's prior criminal conviction. In discussing the matter with the trial judge, counsel stated: "[m]y recollection from the deposition of Mr. Davidson was that it was in the year 2000. I'm having my office staff attempt to get a copy of a judgment of convictions. I understand there were three, and I now understand that it was Monmouth County. So we're looking into that." After the commencement of the trial, the judge asked plaintiff's counsel about the status of his inquiry into Davidson's criminal history. Counsel informed the judge:

Your Honor, it appears that in 1989, he was convicted. There was a 2000 indictment; at his deposition, [Davidson] indicated that he had been convicted of something in 2000, but what appears is that in the year 2000, he had an indictment but it was dismissed. It currently shows as an open indictment in the system, the state system, but we reviewed it with the prosecutor's office and it appears that [it] was dismissed.

He had a 1993 conviction [-] that's the one I believe he was testifying to at his deposition when he said that he spent time in prison.

When questioned by the judge as to what the crimes were that Davidson had been convicted of, plaintiff's counsel stated: "All of them were for unlawful possession of . . . weapons, one was for unlawful possession of a weapon in an assault." He had it as an aggregated assault in his answers to interrogatories, I believe, but that's what they were."

After Davidson testified to Maciejczyk's admission, plaintiff's counsel informed the judge that he intended to renew his request to introduce Davidson's conviction "because I think it impacts on [Davidson's] credibility because my client . . . was there and she said that [the admission] never happened, and Mr. Maciejczyk says it never happened, and . . . it goes to [Davidson's] veracity." Relevant to the issue, the following colloquy occurred between trial judge and counsel.

Plaintiff's Counsel:

Well, Your Honor, I think it's Rule 609, by any competent evidence. Now . . . we have the judgment for the 1989 weapons charge, and then Mr. Davidson testified in his deposition that there were at least three, and then he indicated at one point that he had spent time in prison, as I recall, for that.

So I would intend to elicit . . . both by way of the judgment of conviction and Mr. Davidson's own testimony.

Defendant's Counsel:

The evidence does not reflect that there is any conviction after 1994, and I represent to the [c]ourt that that was the last conviction, 1994. So 1989 . . . precedes that.

[C]ertainly, any information concerning that which was not a criminal conviction would be on its face inadmissible . . . .

The Judge:

I don't even know what the other convictions are.

Defendant's Counsel:

There are three, Your Honor. One -- two for weapons possession, and one for a drug-related charge, all having nothing to do with this case, all having nothing to do with credibility, all having nothing to do with veracity to testify, and all being at least -- the most recent of which conviction is at least twelve years ago.

The Judge:

Well, a conviction runs for -- the operation of the ten-year rule, I understand the conviction runs from the time that either probation ends or incarceration ends, whichever is later.

So I don't have any evidence indicating that that went on beyond [19]94, that being twelve years ago.

I don't really see any particular reason to utilize -- to admit those convictions. So, I mean, if there's some other evidence that somebody has, I'm happy to consider it. If there's nothing, then I would say the convictions are out.

A review of the record discloses that plaintiff had obtained a copy of defendant's judgment of conviction of the fourth-degree crime of possession of a weapon for unlawful purposes, for which defendant was sentenced to two years of probation. The judgment of conviction was entered on August 4, 1989, and filed on August 10, 1989; however, the record does not contain any other judgments of conviction or minutes from court proceedings, evidencing any other prior convictions.

Plaintiff is correct that N.J.R.E. 609 does not contain a bright-line, ten-year rule excluding the introduction of criminal convictions for the purpose of impeaching a witness's testimony. We also agree that the trial judge should have made a more thorough analysis under N.J.R.E. 609 and determined the actual number of Davidson's prior criminal convictions, the nature of each conviction as related to veracity or dishonesty, and the remoteness of each conviction to the trial. See State v. Sands, 76 N.J. 127, 144-45 (1978) ("The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the [witness]."). However, we do not conclude that the judge's evidentiary ruling rises to reversible error.

Here, plaintiff's counsel only had a copy of the 1989 judgment of conviction. The judge accepted defense counsel's representation that Davidson had been convicted in 1994, a date closer to trial than the 1989 conviction. The record does not contain evidence of any other convictions closer in time to the trial. Although the judge mistakenly referred to a ten-year bright-line rule when making his decision, we are satisfied that implicit in his decision was the finding that the 1994 conviction, having occurred twelve years prior to trial, was too remote in time to use for impeachment purposes, bright-line or no bright-line rule. We do not determine that the trial judge abused his discretion in barring evidence of the convictions, particularly where the convictions were for crimes that did not involve "the lack of veracity, dishonesty, or fraud." Sands, supra, 176 N.J. at 144. "[A] lapse of the same time period might justify exclusion of evidence of one conviction, and not another." Ibid.

Plaintiff argues next that the trial judge erred in permitting Kenneth Erickson, an employee of defendant Ralph Clayton and Sons, Inc., to testify concerning the "nature and cause of the damage to the vehicle as a result of the collision" because Erickson was not qualified as a reconstruction expert. We disagree.

Erickson is the manager of Ralph Clayton and Sons, Inc, who had responded to the motor vehicle accident scene and had taken photographs of both the scene and the motor vehicles. Defendants called Erickson to testify, not as an expert, but as to the matters that he had observed at the accident scene as evidenced by his photographs. Without objection, Erickson testified that he observed road repairs being made to the cement truck in order to make it movable. A "come-along" was used to pull back the rear lower fender assembly from the drum assembly because it "had been shoved forward over the top of the tires and then against the drum." In response to a question as to whether the come-along was used to pull out the side of the fender, Erickson replied: "It didn't need to be pulled out sideways. All the damage was forward."

Because plaintiff did not object to Erickson's testimony concerning the use of the come-along at trial, we review for plain error, that is, whether the testimony was "clearly capable of producing an unjust result." R. 2:10-2. We are satisfied that permitting Erickson to testify to his observations was not error, much less plain error. Erickson did not testify as a reconstruction expert, rather he testified only as a lay witness to the observations he made at the accident scene, and to the photographs that he had taken shortly after the accident. Erickson was entitled to testify concerning the placement of the damage on the vehicle, for the jury to conclude how the accident happened.

Moreover, Erickson's testimony that the damage was pushed forward was consistent with other evidence. Maciejczyk testified that he informed the police immediately after the accident that the accident occurred when he was "[t]raveling 18 southbound in [the] middle lane, moving to the left lane to get onto Route 36. Truck in front of me, went to pass him, and our front bumper caught the truck's back bumper. Don't know if the truck moved over the lane." Also, in closing, plaintiff's counsel argued to the jury: "It's clear from the photographs that you've seen that the [K]leinhans' vehicle impacted pretty much straight on with that catwalk area, straight onto that tire."

Affirmed.

At the time of the accident, plaintiff and Maciejczyk were in a dating relationship. Plaintiff settled with Maciejczyk shortly after service of the summons and complaint. Plaintiff and Maciejczyk were married approximately three months prior to the trial.

On appeal, plaintiff argues that "[t]he trial judge failed to consider the fact that, at his deposition, Mr. Davidson admitted to being convicted of assault with a dangerous weapon in the year 2000. For that crime, Mr. Davidson admitted to serving a two-year prison term, ending sometime in the year 2002." Because the deposition was neither introduced into evidence, nor presented to the trial court during argument, we decline plaintiff's invitation to consider any statements made by Davidson during his deposition.

Erickson described a come-along as "a hand tool that has a[n] assembly of pulleys on two sides with cables in between, works like a ratchet. You can free spool it out and then hook it on one end, hook the other end, and then you can ratchet and pull pieces of parts of materials."

(continued)

(continued)

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A-2318-06T5

April 2, 2008