ADEL MIKHAEIL v. STEVEN WEST

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1844-07T31844-07T3

ADEL MIKHAEIL,

Plaintiff-Respondent,

v.

STEVEN WEST,

Defendant-Appellant.

________________________________________________________

 

Submitted January 7, 2009 - Decided

Before Judges Axelrad, Parrillo and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4023-04.

John T. Coyle, attorney for appellant.

Gold, Albanese & Barletti, attorneys for respondent (James N. Barletti, of counsel and on the brief).

PER CURIAM

Following a jury trial in the Law Division, judgment in favor of plaintiff Adel Mikhaeil was entered against defendant Steven West in the amount of $76,384.38. Defendant now raises the following points on appeal:

POINT I

Admission of the prior criminal case, contrary to rules of evidence and case law, unjustly prejudiced defendant's case and therefore constituted reversible error.

POINT II

Permitting the jury to consider life expectancy was reversible error as plaintiff produced no expert medical testimony to support the alleged permanency of his injuries.

POINT III

The submission of "punitive damages" interrogatories to the jury so tainted deliberations as to render the entire verdict reversible. (Not Raised Below)

POINT IV

To Advise the jury foreman when the case would end and discourage the jury in seeking a read-back of testimony resulted in a rush to judgment on a record about which the jury was confused.

We have considered these arguments in light of the record and applicable legal standards. We find merit in defendant's first point, and therefore reverse and remand the matter for a new trial.

I.

Plaintiff filed his complaint against defendant and several fictitious John Does alleging, among other things, assault and battery, and false imprisonment, and seeking compensatory and punitive damages. Defendant filed an answer denying any liability.

The essential conduct alleged in plaintiff's complaint was identical to that which had been the subject of an earlier criminal trial wherein defendant had been convicted of simple assault, N.J.S.A. 2C:12-1a, and third-degree criminal restraint, N.J.S.A. 2C:13-2. When the parties convened to commence the civil trial on January 2, 2007, defendant's appeal of his criminal conviction was pending.

Before trial, plaintiff requested that the judge (1) take judicial notice of defendant's criminal conviction as conclusive evidence of liability; and (2) limit the trial to damages only. The judge concluded that because the conviction was on appeal, she would not take judicial notice of it nor grant a directed verdict on liability. She also concluded that any references to the earlier criminal trial or the convictions were inappropriate. However, at the next hearing in the case, some two weeks later, the judge reversed her ruling. She explained,

[T]here should be at the very least, a factual background available to the jury . . . that there were charges of aggravated assault and false imprisonment and conspiracy and that on those criminal charges this defendant . . . was found to have been guilty of simple assault and false imprisonment. And that . . . both convictions were on appeal.

When defendant renewed his objection during jury selection, the judge expounded as follows:

[I]t is appropriate for the jury to be told that there was a criminal proceeding, there was a trial because as I've indicated, it's going to get too complicated and confused if they don't know that. There's going to be deposition testimony and other questioning related to who said what at what time.

Clearly [the jurors] should know the facts because otherwise I think it gives them this idea that there's some strange other information that is not known to them. However, beyond that, all that they can be told and this is my final decision . . . is that the defendant was found guilty of . . . one count of simple assault which is a disorderly persons offense and one count of criminal restraint which is a third degree offense. That's it.

When plaintiff's counsel asked if he could refer to defendant as a "convicted felon," the judge responded that it was up to him. Thereafter, in his opening statement, plaintiff's counsel immediately implored the jurors "not [to] allow a convicted felon to insult your intelligence." Telling the jurors they were "not the first jury to hear this case[,]" he noted defendant "was indicted, . . . convicted before a jury of twelve and his response to that is well they got it wrong the first time and that decision is now on appeal."

Plaintiff, a bounty hunter, testified that the events arose after the death of his colleague, David DeFranco, who was also defendant's closest friend. Plaintiff and DeFranco were attempting to apprehend a fugitive when DeFranco collapsed, the result of an apparent heart attack. At DeFranco's wake, plaintiff was confronted by "[m]aybe seven, eight" people, including someone named Marcos, DeFranco's sister's boyfriend. Apparently believing plaintiff knew more about his colleague's death, Marcos asked plaintiff to return to the DeFranco home after the wake because "[defendant] want[s] to talk to you." At the DeFranco home, plaintiff agreed to take defendant and Marcos to the scene of DeFranco's death and explain what had occurred. There, defendant, Marcos, and a third individual, Darnell Dickson, forced plaintiff at gunpoint to handcuff himself. Plaintiff testified that they took him in a car to a secluded area, punched and kicked him. He was ultimately able to escape, but as he ran off he heard defendant tell Marcos to "go get him." Marcos caught plaintiff and cut the back of his head and face with a knife, only stopping when bystanders began yelling. Defendant and the others fled, leaving plaintiff bleeding on the ground. Plaintiff suffered a black eye, a scar on his face, and the wounds to his head required suturing.

During cross-examination, plaintiff referred to defendant as a "convicted felon" who would be going to jail having already been "convicted by [a] jury." Plaintiff opined that defendant's conviction would not be overturned by a "better court," that the defense theory was the "same stuff [used] in [the] criminal trial," and that "[defendant] still got convicted and [was] still going to jail."

Plaintiff produced no other witnesses and defendant moved for a directed verdict, arguing that plaintiff had not proven causation or permanency with respect to his injuries. The judge denied the motion, noting that based upon plaintiff's testimony alone and without an expert, the jury could find his scar was caused by a knife and was permanent.

The trial continued with the presentation of defendant's case which we need not discuss at length. It suffices to say that defendant testified and admitted knowing plaintiff, seeing him at the wake, and going with him to the scene of DeFranco's death. However, defendant claimed he returned to the wake and did not participate in any way in the attack upon plaintiff.

At the charge conference, plaintiff conceded that the judge's instructions regarding damages should be limited to "pain and suffering," and not include any instructions on "disability, impairment or loss of enjoyment [of life]" because he had not produced any expert testimony. The judge agreed that the charge on "life expectancy" should be given because there was testimony by plaintiff that he continued to suffer pain from the incident. On the issue of punitive damages, defense counsel suggested that there "be a determination by this jury as to whether or not [plaintiff is] entitled to punitive damages but [that] another jury . . . [should] evaluate[] what those punitive damages are." The judge agreed.

During summation, plaintiff's counsel told the jurors that plaintiff "wants to be vindicated and he was vindicated once by a criminal jury . . . . The criminal jury has already spoken and whatever happens with [defendant's] appeal happens with the appeal. The bottom line is he was convicted by a jury of twelve."

In her final jury charge, the judge stated:

In regard to the criminal case, the defendant was charged with armed robbery, aggravated assault, a second count of aggravated assault, aggravated assault on a different basis, criminal restraint, conspiracy, possession of a weapon for an unlawful purpose and unlawful possession of a weapon.

He was found not guilty of the armed robbery, of both aggravated assaults but he was found guilty of one simple assault and I've defined assault for you. He was found . . . not guilty on the conspiracy charge. He was found not guilty on possession of a weapon for an unlawful purpose and he was found not guilty of . . . unlawful possession of a weapon.

He was however found guilty of criminal restraint. So he was found guilty of simple assault, not aggravated assault and criminal restraint. You've also heard the testimony that that conviction is on appeal.

The judge did not explain to the jury how it could consider this evidence. Defense counsel did not object to the charge.

Neither party objected to the interrogatories submitted to the jury on the verdict sheet. In sum, the jury was asked to decide if defendant "detain[ed] [p]laintiff [] against his will[,]" and if defendant "assault[ed] or cause[d] others to assault [p]laintiff[.]" The jury unanimously answered both questions in the affirmative. By a vote of five to one, the jury also concluded defendant's conduct, or the conduct of others "at his direction, was a proximate cause of [p]laintiff['s] injuries[.]" The jury determined that $70,000 would fairly compensate plaintiff for his injuries. The jury also found unanimously that defendant acted in "wanton and willful disregard of [p]laintiff['s] [] rights[,]" but that he had not acted "malicious[ly]." After calculating pre-judgment interest, the judge entered the order of judgment under review.

Defendant moved for a new trial arguing, in part, that the judge erred in allowing the jury to hear evidence regarding defendant's criminal conviction. In an oral decision placed on the record, the judge denied defendant's motion, reiterating that evidence regarding the prior criminal trial provided a "full view of the underlying proceedings." She noted that the jury was told on multiple occasions that the findings of the criminal jury were not binding upon it.

Defendant then moved for reconsideration, raising for the first time the impropriety of having two juries consider the issue of punitive damages. In a written decision, the judge denied the motion, finding it to be within her discretion whether a single jury necessarily was required to hear both the compensatory and punitive damage aspects of the case. She noted further that defendant had indeed agreed to the procedure at the time of trial. She set the punitive damage trial date for June 11, 2007.

What transpired thereafter is not explained by the record. On November 5, 2007, the judge entered an order "voluntarily, conditionally, dismiss[ing]" "plaintiff's claim for punitive damages" because plaintiff did "not want[] to re-live the events in question[.]" The order further provided that the "dismissal [wa]s conditional . . . [.] [I]n the event a higher court set[] aside the verdict previously entered in favor of the plaintiff and remand[ed] the matter for a new trial, the punitive claims [were] deemed preserved and [would] be presented to the trier of fact[.]" This appeal followed.

II.

Defendant filed his appeal on December 12, 2007, well in advance of our recent decision in Grow Co. v. Chokshi, 403 N.J. Super. 443 (App. Div. 2008). We noted there that the dismissal without prejudice of certain claims, and the additional proviso that those claims could be resurrected in a separate lawsuit depending on the outcome of appellate review, was an attempt to avoid Rule 2:2-3, which limits the right to appellate review to final orders and judgments only. Id. at 457-58. As we noted, "[t]o have the finality required to create appellate jurisdiction, an order must not only completely dispose of all pleaded claims as to all parties, but all its dispositions must also be final." Id. at 460 (citing Lawler v. Isaac, 249 N.J. Super. 11, 17 (App. Div. 1991)("holding that '[w]hile a voluntary dismissal may be a judgment, it is not necessarily a final judgment'")). Based upon equitable principles, we agreed to review the merits of the parties' appeal and cross-appeal despite this lack of finality, Grow Co, supra, 403 N.J. Super. at 462-63, but we referred to the Civil Practice Committee all issues regarding the obligation of counsel "to bring to our attention any uncertainties about the existence of appellate jurisdiction[.]" Id. at 463 n.7.

Here, by dismissing plaintiff's punitive damage claim without prejudice and permitting it to be resurrected depending upon the outcome of our review, the judge entered "an order that merely pretend[ed] to be final[.]" Id. at 460. "The methodology of dismissing unadjudicated claims without prejudice in order to create the appearance of a final order confounds the manner in which appellate jurisdiction was meant to arise in our judicial system[,]" id. at 461, and we do not condone the practice. However, the record is unclear as to how the November 5, 2007 order came about, and we cannot discern whether it was instigated by the parties or the judge. In any event, we conclude that the dismissal of defendant's appeal as interlocutory would "render meaningless the parties' efforts in this court[,]" id. at 463, and be particularly inequitable to defendant given our review of the appeal's merits. "Accordingly, we will grant leave to appeal out of time and rule on the merits of [defendant's] appeal[.]" Ibid.

A.

Defendant contends the judge committed reversible error by informing the jury of the results of the prior criminal trial, and thereafter permitting plaintiff to elaborate on the issue throughout the trial. First, defendant notes that his appeal of the convictions was still pending at the time of trial and, hence, the evidence was entirely inadmissible. Second, he argues that while N.J.R.E. 803(c)(22) permits the introduction of a previous judgment of conviction of a crime "to prove any fact essential to sustain the judgment," the rule does not apply to a conviction for a disorderly persons offense. We agree with both these contentions. Since the case turned essentially on the jury's assessment of plaintiff's and defendant's credibility--only one other defense witness testified--we conclude this error was clearly capable of bringing about an unjust result and requires our reversal of the judgment under review. R. 2:10-2.

Evidence of a party's prior conviction of a crime is admissible to impeach his credibility, N.J.R.E. 609, or, "in a civil proceeding," "to prove any fact essential to sustain the judgment" of conviction. N.J.R.E. 803(c)(22). However, a party's prior conviction is not admissible for either purpose if an appeal of the conviction is pending. Sassano v. BLT Discovery, Inc., 245 N.J. Super. 539, 544 (App. Div. 1991); State v. Blue, 129 N.J. Super. 8, 12 (App. Div.), certif. denied, 66 N.J. 328 (1974); Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 803(c)(22) (2008).

Here, the judge initially ruled that the evidence of defendant's conviction was inadmissible for this very reason; but, she ultimately concluded the evidence should be admitted because the jury needed to understand the factual context of the complaint. However, this evidence was hearsay, and its admissibility was subject to N.J.R.E. 802 (prohibiting the admission of hearsay "except as provided by [the Rules of Evidence] or by other law"); see also Sassano, supra, 245 N.J. Super. at 547 (holding "[b]ut for [N.J.R.E. 803(c)(22)], both a verdict of guilty and a judgment of conviction would be inadmissible hearsay"). Advising the jury that defendant had already been convicted of simple assault and criminal restraint by another jury, and permitting plaintiff thereafter to continue to highlight this fact, was grossly prejudicial and significantly outweighed any well-intentioned attempt to place the entire controversy in some "context." N.J.R.E. 403.

Since defendant's conviction was affirmed after the completion of the civil trial, we consider whether this error warrants reversal. We conclude that it does.

Defendant's conviction for simple assault is not admissible under N.J.R.E. 803(c)(22) because, by its terms, the Rule only permits evidence of a party's guilt of "an indictable offense." See State v. LaResca, 267 N.J. Super. 411, 418 n.4 (App. Div. 1993); Biunno, supra, comment on N.J.R.E. 803 (c)(22). Nor is the simple assault conviction admissible for impeachment purposes. N.J.R.E. 609; State v. Jenkins, 299 N.J. Super. 61, 72 (App. Div. 1997). Here, the jury was asked to determine whether plaintiff had proven defendant had "assault[ed] or cause[d] others to assault" him. We believe it obvious that the improper admission of defendant's conviction for simple assault, without any particular instruction from the judge, influenced the jury's answer to this specific interrogatory, and clearly had the capacity to bring about an unjust result.

Because of our affirmance of defendant's conviction for criminal restraint, N.J.S.A. 2C:13-2, whether reversal of the civil judgment is still necessary presents perhaps a closer question. Since that is an indictable offense, if defendant again testified in any re-trial, plaintiff could impeach him with this evidence much as he did in this trial. Additionally, pursuant to N.J.R.E. 803(c)(22), plaintiff could prove the essential elements of criminal restraint by admission of defendant's criminal conviction for that crime.

To be guilty of criminal restraint, one must "knowingly [] [r]estrain[] another unlawfully in circumstances exposing the other to risk of serious bodily injury; or [] [h]old[] another in a condition of involuntary servitude." N.J.S.A. 2C:13-2a and b. To be unlawful, the restraint must be accomplished by "force, threat, or deception." N.J.S.A. 2C:13-1d. Thus, pursuant to N.J.R.E. 803(c)(22), plaintiff could seek to admit defendant's conviction for criminal restraint to prove that he knowingly restrained plaintiff by force, threat, or deception, and exposed him to the risk of serious bodily injury. Notably however, the proof of defendant's prior criminal conviction would not be proof that defendant actually caused any of plaintiff's physical injuries.

More importantly, and the reason why reversal is still required, "[e]vidence offered under [N.J.R.E. 803(c)(22)] in tort and contract actions need not be regarded as conclusive proof of the facts underlying the conviction." Biunno, supra, comment on N.J.R.E. 803 (c)(22)(collecting cases). Thus, at the least, the jury must be carefully instructed as to the limited evidential purpose of the prior conviction and that it does not per force resolve all the factual disputes in the case or relieve plaintiff of his burden of proof. Since no such instruction was ever provided in this case, we are compelled to reverse and remand the matter for a new trial on all issues.

B.

Because the matter may be re-tried, we comment on the issues raised by defendant in Points II and III for purposes of further guidance. Defendant claims it was error for the judge to provide the life expectancy charge to the jury, and permit plaintiff's counsel to argue the "time-unit rule" in summation, Rule 1:7-1(b), because there was no medical evidence adduced that plaintiff's scars were permanent in nature.

Unless there is some evidence in the record that plaintiff sustained a permanent injury, a charge regarding life expectancy and future damages is prejudicially erroneous. Clifford v. Opdyke, 156 N.J. Super. 208, 212 (App. Div. 1978). The question of permanency is necessarily one "within the ambit of expert medical opinion[,]" unless permanency is apparent to a layman, as it would be if plaintiff suffered an amputated body member. Ibid.

In this case, the judge described in detail the scars plaintiff suffered allegedly at the hands of defendant and his cohorts. Plaintiff testified about those scars, showed them to the jury, and they were clearly evident almost five years after the events in question. Based on this evidence, a jury could reasonably find that plaintiff sustained a permanent injury without expert testimony. We find no error in this regard.

Defendant argues that it was improper for the judge to submit two interrogatories to the jury that asked whether defendant had acted with malice or with wanton and willful disregard of plaintiff's rights. He concedes he assented to this procedure which was intended to determine whether defendant would be exposed to liability for punitive damages in the second phase of a bifurcated trial. Although plaintiff's claim for punitive damages was dismissed without prejudice post-judgment, we anticipate that if the matter is retried, the issue may surface again because both parties, and the judge, anticipated its resurrection in that event.

The Punitive Damages Act, N.J.S.A. 2A:15-5.9 to -5.17, mandates bifurcation of compensatory and punitive damages only upon a defendant's request. N.J.S.A. 2A:15-5.13. However, bifurcation does not mean that a different jury must consider whether to award punitive damages. Indeed, the same jury should consider the claim. See Jadlowski v. Owens-Corning Fiberglas Corp., 283 N.J. Super. 199, 206 (App. Div. 1995)(noting that Herman v. Sunshine Chem. Specialties, Inc., 133 N.J. 329, 346 (1993) requires a single jury hear both the compensatory and punitive damages phases of a case), certif. denied, 143 N.J. 326 (1996); accord Baglini v. Lauletta, 338 N.J. Super. 282, 304 (App. Div.), certif. denied, 169 N.J. 607 (2001).

If defendant does request bifurcation, then the jury initially should only consider whether plaintiff has prevailed on liability and is entitled to an award of compensatory damages. N.J.S.A. 2A:15-5.13c ("[p]unitive damages may be awarded only if compensatory damages have been awarded in the first stage of the trial. An award of nominal damages cannot support an award of punitive damages"); and see Baglini, supra, 338 N.J. Super. at 305 (where we noted that "[e]vidence relevant only to punitive damages shall not be admissible in [the first] phase of the trial. After the compensatory damage issue is decided, the jury shall, in a separate proceeding, determine whether punitive damages are to be awarded"). Therefore, if defendant requests bifurcation, it is inappropriate in the first phase of the trial to submit interrogatories that ask the jury to consider liability under the Punitive Damages Act. Id. at 304.

We do not consider the issue raised by defendant in Point IV. In light of our previous discussion and remand for a new trial, it is moot.

Reversed and remanded for a new trial. We do not retain jurisdiction.

We affirmed those convictions in an unreported per curiam opinion issued April 18, 2007. Our opinion referenced the assault conviction as being for "fourth-degree assault, N.J.S.A. 2C:12-1a," and the criminal restraint conviction as being for "fourth-degree criminal restraint, N.J.S.A. 2C:13-2[.]" State v. West, No A-1375-05 (App. Div. April 18, 2007)(slip op. at 1). These were apparent errors because 1) the statutory citation is to "simple assault," and during the course of the civil trial, both parties referred to defendant's conviction at the criminal trial as having been for a "simple assault"; and 2) the parties both agreed that defendant had been convicted of third-degree criminal restraint consistent with the statutory citation we referenced.

We gather from the transcript of the proceedings that the judge was out due to illness in the interim.

Despite the judge's earlier ruling, the interrogatory included "Disability, Impairment, [and] Loss of Enjoyment of Life," as well as pain and suffering. The verdict sheet does not indicate the numerical vote on the damage question.

Such an instruction was not provided in the final jury charge, and our review of the record fails to reveal that the judge gave the instruction at all.

The order further provides that "reasons [were placed] on the record, 10-17-07." We have not been provided with a transcript of any proceedings from that date.

The record does not clarify whether defendant's conviction was for violating N.J.S.A. 2C:13-2a, or N.J.S.A. 2C:13-2b. In charging the jury, the judge used Model Civil Jury Charge 3.20A, "False Imprisonment (False Arrest)," which more closely tracks the language of subsection (a), and advises the jurors that "an unlawful restraint may result from actual force or threat consisting of words or conduct and it must include a reasonable apprehension of force and the means of coercion to carry out that threat."

We decline the opportunity to determine whether defendant is collaterally estopped from denying any of the elements of the crime of criminal restraint and whether those facts are res judicata in the context of plaintiff's civil cause of action. See Burd v. Sussex Mut. Ins. Co., 56 N.J. 383, 397 (1970)(noting "[s]ince the record on this appeal did not reveal the issues actually tried in the criminal case," the Court "could not be sure the jury found facts decisive with respect to the [present] controversy"). We note further that our courts have "cautiously" "approached the possible collateral estoppel consequences of prior adjudications." Biunno, supra, comment on N.J.R.E. 803 (c)(22).

We note further that in this case, the jury was not provided with proper instructions regarding the enhanced burden of proof plaintiff must bear--clear and convincing evidence--in establishing that defendant's acts or omissions were "actuated by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions." N.J.S.A. 2A:15-5.12(a).

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A-1844-07T3

February 4, 2009