On appeal from the Superior Court, Law Division, Burlington County.
Bilder, R.s. Cohen and A.m. Stein. The opinion of the court was delivered by R.s. Cohen, J.A.D.
Defendant John F. Grimes, a 64 year old retired railroad employee and, since 1962, a part-time constable, was indicted in 1985 for one count of official misconduct, contrary to N.J.S.A. 2C:30-2. Defendant was convicted and sentenced to two years' probation, a $750 fine, and 200 hours of community service. He appealed; we reverse and order the indictment dismissed.
Much of the evidence was not in dispute. Defendant was designated a constable of the Burlington County District Court, and of its successor, the Superior Court, Law Division, Special Civil Part. See N.J.S.A. 2A:4-3; 2A:18-1. He was assigned in 1985 to serve a Special Civil Part warrant to remove John and Sophie Libucki from a house they rented from Frank Capece. The warrant was issued after Capece obtained a judgment for possession for nonpayment of rent. Before serving the warrant, defendant arranged with a locksmith and a police officer to accompany him to the premises on February 6, the locksmith to lock the tenants out and the police officer to prevent physical confrontation. For this service, defendant charged Capece $30, the maximum fee set by a standing memo of the Presiding Judge of the Special Civil Part "for added services in an eviction." Defendant also advised Capece that he was available in a private capacity*fn1 to assist in keeping the peace when the Libuckis came back to retrieve their furniture and clothes. He warned Capece that problems could arise if Capece and the Libuckis went to the house by themselves.
Capece and the Libuckis agreed on the terms of removal of the Libuckis' goods, which the Libuckis required to be done on Saturday, February 9. Capece called defendant, who advised that the fee for his attendance was $150. Capece called the
Libuckis' son and told him they would have to pay the charge. They communicated with county prosecutor's detectives who furnished three marked $50 bills and stood by. Libucki tried to give the money to defendant, who protested that he was working for Capece. After defendant walked away, Libucki handed the money to Capece, who followed defendant and gave it to him. A few minutes later, defendant was arrested.
Defendant makes two arguments on appeal, one addressed to the conduct of the trial, the other to the sufficiency of the charges against him. We address them both.
Defendant first complains that the trial court should not have admitted the opinion testimony of one of the State's witnesses on the nature of the office of constable, its scope and responsibilities. The witness testified that defendant's charging $150 to oversee the removal of the tenant's goods was not an authorized act; that defendant used his official position for private profit; that defendant violated R. 1:17-4 by operating the private business without prior approval of the Assignment Judge, and that such approval would not have been granted.
Defendant's complaint has two aspects. First, he says that the expert opinion was on matters of New Jersey law, a subject on which no expert testimony should have been received. The second aspect is that the expert witness was the Assignment Judge of the vicinage in which the trial was conducted, and that he in particular should not have been permitted to give his opinion on the law and on defendant's guilt.
The nature of the office of constable, its duties and responsibilities, are matters of law. See State v. Maioranna, 225 N.J. Super. 365 (Law Div.1988). Where the statutory law is incomplete or unclear, as it is here, a court should take judicial notice of those duties which arise out of the nature of the office. State v. Weleck, 10 N.J. 355, 366 (1952); State v. Deegan, 126 N.J. Super. 475, 492 (App.Div.), certif. den. 65 N.J. 283 (1974); State v. Stevens, 203 N.J. Super. 59, 64-65 (Law
Div.1984). It is the court's function to ascertain the law and explain it to the jury.
Expert opinion testimony is not admissible concerning the domestic law of the forum. Marx & Co., Inc. v. Diners' Club, Inc., 550 F.2d 505 (2 Cir.), cert. den. 434 U.S. 861, 98 S. Ct. 188, 54 L. Ed. 2d 134 (1977); Loeb v. Hammond, 407 F.2d 779 (7 Cir.1969); VII Wigmore, Evidence, § 1952 (Chadbourn Rev.1978); McCormick, Evidence, § 12 (3d ed. 1984). The reason is that there is a judge presiding over the trial
whose exclusive province it is to instruct the jury on the law. The danger is that the jury may think that the "expert" in the particular branch of the law knows more than the judge -- surely an inadmissible inference in our system of law. [ Marx & Co., Inc. v. Diners' Club, Inc., 550 F.2d at 512].
Questions of law existing in the trial judge's mind may, of course, be resolved after considering briefs and arguments of counsel. Foreign law, on the other hand, is a proper subject for expert testimony. Title Guarantee & Trust Co. v. Trenton Potteries Co., 56 N.J. Eq. 441 (E. & A. 1897); Max v. Max, 123 N.J.L. 580 (Sup.Ct.), aff'd o.b. 125 N.J.L. 271 (E. & A.1940).
The Assignment Judge's testimony was not only inadmissible; it was tremendously harmful. The chief judge of the vicinage, who described himself to the jury as the person who is "charged with the responsibility for running the court system in the county," joined the prosecutor not only in proving to the jury the limits of defendant's duties and privileges, but also in sponsoring to them the conclusion that defendant had acted in an unlawful manner.*fn2 Even if the judge's testimony were in all respects accurate (as to which we do not comment), there would be no justification for placing the great weight of his judicial office on the prosecution's side of the scales.
A judge is prohibited by Canon 2B of the Code of Judicial Conduct to testify as a character witness. The Commentary explains:
The testimony of the judge as a character witness injects the prestige of the office into the proceeding in which the judge testifies and may be misunderstood to be an official testimonial.
The same considerations would bar a judge's appearing as an expert witness, if opinion testimony on local law were admissible. We can envision no circumstance that would justify creating the prejudice inherent in permitting the State to present a New Jersey judge to give opinion testimony on the law.*fn3 See Helmbrecht v. St. Paul Ins. Co., 117 Wis. 2d 74, 343 N.W. 2d 132 (Ct.App.1983), aff'd in part/rev'd in part on other grounds 122 Wis. 2d 94, 362 N.W. 2d 118 (1985); Merritt v. Reserve Ins. Co., 34 Cal.App. 3d 858, 110 Cal.Rptr. 511 (1973); Commonwealth v. Connolly, 217 Pa.Super. 201, 269 A.2d 390 (1970).
The conviction has to be reversed. We must also deal, however, with defendant's argument addressed to the indictment, which is that his actions were outside of the scope of his official functions; that he was therefore acting in a private capacity and was not subject to the official misconduct statute. N.J.S.A. 2C:30-2.
The indictment, consistent with N.J.S.A. 2C:30-2a, alleges that defendant
with purpose to obtain a benefit for himself did commit an act relating to his office but constituting an unauthorized exercise of his official functions to wit: solicited and accepted an unauthorized ...