June 26, 2008
NEW JERSEY INSURANCE UNDERWRITING ASSOCIATION, AS SUBROGEE OF UPSCALE DEVELOPMENT, INC., PLAINTIFF-APPELLANT,
ARWILL LAWSON A/K/A SELINE JAMAL, INDIVIDUALLY AND T/A BRICK CITY HOME IMPROVEMENT, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2295-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 13, 2008
Before Judges Coburn, Fuentes and Grall.
This appeals concerns a subrogation action in which plaintiff, New Jersey Insurance Underwriting Association ("NJIUA"), sought to recover proceeds paid under a fire insurance policy from defendant, Arwill Lawson, individually and trading as Brick City Home Improvement. NJIUA alleged that Lawson or his workers negligently used a torch to install plumbing pipes and fixtures, causing a fire that damaged the property in the insured's home. The jury found in favor of defendant by a vote of six to two.
Plaintiff now appeals seeking a new trial. It argues that the jury verdict was irreparably tainted by the trial judge's numerous erroneous evidentiary rulings. NJIUA also argues that the judge exhibited an unwarranted hostility and bias against its trial counsel. After carefully considering the record developed before the Law Division, we reverse.
Viewed in the context of this hotly contested trial, we are satisfied that the trial court committed reversible error when it: (1) precluded plaintiff from introducing evidence of defendant's prior inconsistent statements; and (2) improperly exhibited an unwarranted hostility and disapproval of plaintiff's counsel in the presence of the jury.
The trial judge's aggressive management style and demeanor improperly interfered with plaintiff's right to present its case to the jury. In particular, the judge's repeated admonitions to counsel, made in the presence of the jury, and threats to cut off his examination of a witness were unwarranted, and manifested an undue hostility against plaintiff. This persistent judicial disapprobation of counsel, exhibited in the presence of the jury, cast a shadow of illegitimacy over plaintiff's claims, and had the capacity to improperly divert the jury's focus away from its obligation to consider the evidence impartially, without prejudice.
Leroy Williams is the president of Upscale Development, Inc. ("Upscale"). In this capacity, he purchases and renovates homes, for the purpose of reselling them to new homebuyers. Upscale acquired a three-family home located at 34 Elmwood Terrace, Irvington, New Jersey; it procured insurance coverage for the property, including fire insurance, from plaintiff NJIUA. Williams hired defendant, Arwill Lawson, trading as Brick City Home Improvement, to renovate the site. Although not friends, he had known Lawson for approximately fifteen years. At the time, Lawson had been a contractor for just a little over a year.
The renovation contract included that Lawson would "[f]ully remodel the bathroom, [install] new ceramic floor, tub, toilet and sink with vanity and paint [as needed]; [the] electrical & plumbing [systems would also be] brought up to code." According to Williams, the contract required that every inch of pipe and wire would be removed and replaced. In contrast, Lawson testified that the renovations did not include the plumbing and the electric. He believed he was hired to replace the roof, floors, windows and sheetrock and renovate the bathrooms and the kitchen.
On September 17, 2004, Lawson applied to the Township of Irvington for a construction permit. The contract price for the renovations was $48,500. However, when he submitted a permit application to the municipal construction official, Lawson represented that the cost of the renovations was $6000, thus reducing the amount of the application fee, which is calculated, in part, on the cost of the project. Lawson also misrepresented the extent of the work to be performed, stating that the job would be limited to painting, replacing windows, and installing sheetrock.
The renovations began near October 2004. Brick City personnel did not directly perform any of the physical labor; instead, Lawson, along with his partner Tim Winn, hired and supervised subcontractors, who performed the actual work. The property had two entry points, a front door and a back door. While the construction work was taking place, the back door was boarded up with plywood; the front door was secured with a padlock.
Williams had a limited role in the renovations. In fact, he testified that he did not even have a key to the home while the renovations were in progress. By contrast, Lawson, his partner Tim Winn, and the subcontractors all had keys. On October 20, 2004, materials for replacing sheetrock, including twenty buckets of compound, were delivered to the worksite. On the same date, the subcontractors began installing the sheetrock; although the tub, toilet, and sink had been previously removed, no one performed any plumbing work. The laborers left the worksite near 6 p.m. At 10:30 p.m. on October 20, 2004, the fire department received notice of a fire at the home.
According to Irvington Fire Department Lieutenant John Durish, when the firefighters arrived at the scene, the front door of the house was locked, requiring a forced entry by the police. Durish did not know whether the backdoors were still secured with the plywood. Most of the fire damage occurred inside the second floor bathroom, at the floor level. The remainder of the home sustained minimal smoke and water damage.
The day after the fire, Lawson returned to the property to board up the windows. While there, he noticed that most of the twenty buckets of compound he had previously purchased were missing. According to Williams, the back doors were still in place, and there were no signs that anyone had tried to "hack at them or cut them or burn them or do anything to damage them."
On October 22, 2004, less than two days after the fire, John Decker, an insurance adjuster for NJIUA, inspected the site. On direct examination, Decker testified that he did not find any evidence of recent plumbing work. On cross examination, however, when shown a photograph of the second floor bathroom, Decker agreed that there appeared to be a piece of copper pipe on the floor. He also testified that Lawson told him that some of his buckets of joint compound were missing.
Under the property's fire insurance policy, NJIUA paid Upscale $117,239 representing the actual cash value of the fire loss. Based on his investigation, Decker wrote to Lawson explaining that NJIUA believed that his contracting company was responsible for inadvertently starting the fire. At trial, Decker testified that Lawson stated that he had not been at the worksite on the day of the fire; and he was not sure if his plumbers had been there that day. Later on, Lawson called Decker back to confirm that, to his knowledge, there had not been any plumbers present that day.
At trial, the parties stipulated that the amount of damages was $117,239, the amount NJIUA paid to Upscale pursuant to its fire insurance policy. Therefore, the jury was only asked to determine the question of liability. Both sides also stipulated that the cause of the fire was the application of a heat source to piping. Therefore, the only disputed issue concerned who applied the heat source to the pipe.
Plaintiff's theory of liability emphasized that defendant and his employees were the only ones with access to the house. According to plaintiff, the fire was caused by these employees as they soldered a pipe. The lack of evidence showing a forceful entry into the property corroborated this claim. In response, defendant argued that his employees had not performed any soldering, because plumbing replacement was not a part of the contract. Thus, the lack of direct evidence showing who applied the heat source to the pipes, and the evidence of a possible intrusion, based on the missing constructions supplies and forceful removal of pipes from the wall, were sufficient to sustain a finding of vandalism, as the probable cause of the fire.
NJIUA called four witnesses at trial. Fire Department Lieutenant John Durish, insurance adjuster John Decker, and Upscale president Leroy Williams testified as fact witnesses. Jonathon LeBow, testified as an expert in determining the origin and cause of fire. Defendant called himself a fact witness and Darren Redsicker testified as an expert in determining the origin and cause of fire. We will limit the discussion of the testimony presented by these witnesses, in order to provide a concise factual basis from which to review the evidential rulings made by the trial judge which are one of the bases of plaintiff's appeal.
Defendant's Out-of-Court Statements
Plaintiff argues that the trial court improperly excluded several pieces of evidence impeaching Lawson's credibility. We will commence our discussion by identifying and examining two pieces of evidence: (1) the verbatim record of John Decker's telephone interview with the defendant; and (2) the verbatim record of Lawson's telephone conversation with a representative of his insurance carrier, Selective Insurance.
The Decker Interview
On November 17, 2004, NJIUA adjuster John Decker sent Lawson a letter notifying him that the carrier considered him responsible for the fire. This prompted Lawson to call Decker. While on the telephone, Decker explained to Lawson that NJIUA's investigation led them to believe that his contracting company was responsible for inadvertently starting the fire. On November 22, 2004, Decker interviewed Lawson over the telephone; with Lawson's permission, Decker recorded their conversation.
During Lawson's cross examination, plaintiff's counsel attempted to use the transcript of this telephone conversation to impeach his testimony. Specifically, in response to Lawson's statement that his partner's wife typed the contract for him, plaintiff's counsel sought to confront the witness, in the presence of the jury, with the following colloquy:
[Decker]: Did you prepare this [contract]?
[Lawson]: Oh yes.
[Lawson]: I should say I have an outside person who does it.
[Decker]: An estimator?
[Lawson]: Yes, something like that, yes.
The trial judge limited counsel's use of this evidence, by directing the witness to read the transcript to himself as a tool in "assist[ing] him in his recollection." Lawson denied ever making the statements reflected in this transcript.
The Selective Insurance Interview
In response to plaintiff's interrogatories, Lawson had produced a transcript of a recorded interview of himself and his business partner, Tim Winn, conducted by a representative of Selective Insurance Company, the carrier insuring defendant's business. After a brief sidebar colloquy with counsel, the trial judge addressed plaintiff's counsel and made the following sua sponte ruling:
If you want to ask [Lawson] does it refresh your recollection? Did you ever tell anybody that you had used the torch or that your people had used the torch? Does this document -- don't tell him what it is -- help you refresh your recollection whether or not you ever said that to anybody? If [Lawson] says no, you're stuck with the answer. [(Emphasis added).]
Despite these restrictions, however, the judge permitted counsel to read aloud the part of the interview he believed contradicted Lawson's testimony concerning whether plumbing work was performed at the site of the fire. Specifically, plaintiff read the following exchange between the Selective Insurance representative and Lawson or Winn:
Question: [W]hat about the rough, the plumbing?
Answer: The plumbing was already there. A lot of plumbing was already there. We just was time stuck in. We did a little light plumbing. That was on the second -- that was only on the second floor.
Question: On the second floor where the fire started?
Answer: Yes. No, excuse me, on the first floor. I meant to say nothing on the second, on[ ] the first floor I meant to say.
Question: Okay, so on the first floor you did light plumbing. What does that mean?
Answer: Like all we did was put a diverter on for the shower. Yeah, a shower diverter in one shower divert. We didn't even do the second or the third.
Question: What is a shower diverter?
Answer: That is a pipe that comes from the tub all the way up where they cut the water on for the shower.
Question: Okay, and is that a copper-type piping?
Question: Okay, and did you have to do any soldering for that?
Answer: Yeah, they soldered that.
Question: And did you have to use a torch?
After plaintiff's counsel completed reading these transcribed pages from the interview, the following exchange took place:
THE COURT: [Addressing Lawson while on the witness stand before the jury] Did you say those things?
MR. LAWSON: I don't think - I don't think I said - no, I don't believe I said that.
THE COURT: Okay.
MR. LAWSON: 'Cause we didn't put no diverters in. That's what I'm talking -
THE COURT: Alright. That's not the question. Did you say those things?
MR. LAWSON: No, I don't - no, I didn't say them things.
THE COURT: Let's have the next question, counsel.
[PLAINTIFF'S COUNSEL]: Okay.
[DEFENSE COUNSEL]: Your Honor, I mean just because he read that portion, I'd ask that he reads the next question.
THE COURT: Well, since he says it's not him, anyway, and he didn't say any of it, counsel, I don't understand why we've had 20 minutes of this. So, ladies and gentlemen, disregard the questions, alright? There's - the witness has said he never said it. So let's have the next area of questioning, counsel. [(Emphasis added).]
The question of the admissibility of this document resurfaced the following day during the pre-summation conference. While the court reviewed and determined the admissibility of the trial exhibits produced by both sides, plaintiff's counsel made the following application:
[PLAINTIFF'S COUNSEL]: Okay. Judge, Exhibit-29 was the interrogatory attachment, which we discussed yesterday.
THE COURT: I let you cross-examine him on it. It's not appropriate to introduce the interrogatory - to put the physical interrogatory answer itself into evidence. You cross-examined him on it. You read it to the jury, the parts you wanted to read. The document itself does not go to the jury.
[PLAINTIFF'S COUNSEL]: Judge, I think it's evidential and I think it should get in under the rules of evidence because it was attached as Exhibit-13 when it would - question 13 -
THE COURT: That's not the problem. The problem is it's a statement by the defendant to hand the jury a written statement by the defendant given in discovery. The only fair way to do that would also be to get a transcript of his testimony here at trial and give them that written statement, as well. It's - it creates an unfair advantage by giving them one written statement or one memorialized statement without giving them all statements in memorialized fashion. What's your next exhibit counsel?
[PLAINTIFF'S COUNSEL]: Please, I just need to state this on the record for the sake of, you know, a possible appeal. I'm not arguing with Your Honor's determination, but I do want to point out that this was a tape recorded verbatim statement that was taken by a representative named -
THE COURT: No, Let's for the record, so the record is clear, no one testified that the statement was verbatim. No one swore the transcription was accurate. It clearly was not under oath. There was no testimony that it was under oath. You confronted the witness as a prior inconsistent statement. I allowed you to do that.
[PLAINTIFF'S COUNSEL]: Alright, Judge, I have a witness under subpoena, Simone (phonetic) Laraia - L-A-R-A-I-A - from Selective Insurance and -
THE COURT: When did you speak to them to have them come testify?
[PLAINTIFF'S COUNSEL]: I talked to [defense counsel] yesterday and asked him to bring her in today on my rebuttal case so that she could authenticate it. And she's been subpoenaed. She's been properly served a week or two ago with a subpoena in this matter requiring her to come to court and testify at trial or any hearings. Obviously, because she's from Selective Insurance, she would have to testify either outside the presence of the jury or in some other way -
THE COURT: Does she have the -
[PLAINTIFF'S COUNSEL]: - so as not to mention the insurance issue.
THE COURT: - the tape recording?
[DEFENSE COUNSEL]: I'm sorry, what?
THE COURT: Does she have the tape recording?
[DEFENSE COUNSEL]: Not that I know of. She was subpoenaed on the issue of the November 17th letter from Mr. Decker on the whole issue of whether or not I was going to argue that they lost the pipe or they didn't retain the pipe. I never got to that because Mr. Decker on direct-exam said he didn't see any new pipe. So that kind of shot down my asking him why didn't you preserve the pipe?
THE COURT: Well, more importantly, this is an issue of credibility. It wasn't sought to be introduced in plaintiff's case-in-chief. Again, he was confronted with the statement. It carries an unfair advantage to introduce, to give the jury the typed statement when we're not giving them a typed version of the plaintiff's other statements. [(Emphasis added).]
Against this backdrop, we will review the court's rulings affecting the admissibility of these two documents.
"[A] trial court's evidentiary rulings are entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. Wakefield, 190 N.J. 397, 491 (2007) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). Even if the court errs in making an evidentiary ruling, a reviewing court should disregard the error, unless it is "clearly capable of producing an unjust result." R. 2:10-2.
Under N.J.R.E. 803(b), out of court admissions made by a party to the litigation are an exception to the hearsay rule. McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 529 (2003). This includes "the party's own statement, made either in an individual or in a representative capacity." N.J.R.E. 803(b)(1).
A statement made by a defendant to a testifying witness over the telephone is admissible, as long as there has been proper prima facie authentication that the defendant is the caller. State v. Mays, 321 N.J. Super. 619, 628-29 (App. Div.), certif. denied, 162 N.J. 132 (1999). "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." Id. at 628 (citing N.J.R.E. 901). "The rule does not require absolute certainty or conclusive proof. The proponent of the evidence is only required to make a prima facie showing of authenticity." Ibid. (citing McCormick on Evidence, Fourth Edition, § 222; In Re Blau 4 N.J. Super. 343, 351 (App. Div. 1949); United States v. Tellier, 255 F.2d 441 (2d Cir. 1958), cert. denied, 358 U.S. 821, 79 S.Ct. 33, 3 L.Ed. 2d 62 (1958)).
A recipient of a telephone call can authenticate the call indirectly by testimony that the call was received in response to his request. Id. at 629 (citing State v. Lynes, 401 N.E. 2d 405 (1980)). Although the statement is hearsay, once properly authenticated the content of the conversation is admissible as a statement offered against a party under N.J.R.E. 803(b). Ibid.
We turn now to the transcript of the telephone interview between Lawson and NJIUA representative Decker. The inconsistent statements made by Lawson in the course of this conversation were clearly admissible as a party admission under N.J.R.E. 803(b). Further, Decker's testimony attesting to the nature of the encounter satisfied the authentication requirement.
The exclusion of this statement was also prejudicial. Although the substance of this conversation did not directly address a material issue in contention, the statement exposed an inconsistency in the manner Lawson allegedly managed his business affairs. Plaintiff's counsel was legally entitled to explore this inconsistency, and highlight its significance to the jury, as it touched upon the question of the witness's overall credibility.
We reach the same legal conclusion with respect to statements made by Lawson, as reflected in the transcript of the conversation he and his business partner had with the representative of Selective Insurance. The exclusion of this evidence was particularly prejudicial to plaintiff, because the subject matter of Lawson's statements went to the heart of plaintiff's theory of liability. Specifically, in this document, Lawson admits that employees under his direction performed plumbing work at the construction site, including the soldering of pipes with a torch.
We recognize that under Rule 4:17-8(a), "[i]nterrogatories shall not be marked into evidence without good cause." Here, plaintiff did not seek to admit the interrogatories themselves into evidence. Rather, plaintiff sought to have the transcript of this important conversation admitted into evidence, and be available for the jury to examine in the course of its deliberations. Given the document's otherwise clear admissibility as a statement of party, we are at loss to comprehend the trial judge's concern about an alleged "unfairness" created by its admission.
The document was produced by defendant in response to plaintiff's interrogatory. As such, defendant had the responsibility to point out any deficiencies affecting its authenticity long before the commencement of the trial. Despite the trial court's characterization, there is no "unfairness" created by the fact that the document here is a transcript of a conversation in which defendant willingly participated, after being apprised by his own insurance company's representative that it was being electronically recorded.
Finally, the court's concern that the document carried "an unfair advantage because "we're not giving [the jury] a typed version of the plaintiff's other statements," is manifestly unfounded. When a jury hears live testimony, it is able to personally assess a witness' words and overall demeanor. This obviously obviates the need to provide it with a memorialized version of this event. Further, a jury retains the prerogative of requesting a read-back of any testimony presented in open court. Stated differently, there is no rational basis for a court to condition the admissibility of otherwise competent documentary evidence upon the securing of a transcription of the witness' conflicting in-court testimony. This self-evident proposition requires no further elaboration.
Construction Permit Application
Plaintiff's counsel sought to admit into evidence a copy of a construction permit application executed by Lawson and presented to the municipal construction official. Lawson candidly admitted that he misrepresented the cost of the project on the application. When plaintiff's counsel moved to admit the application permit into evidence, defense counsel objected, stating that the document did not "go to the issues in this case." The trial court sustained the objection, noting the document only affected the credibility of the witness, and it was therefore "tangential."
In light of the conflicting accounts of events given by each side in this case, we find no support for the trial court's characterization of credibility as a "tangential" matter. Indeed, this case is primarily, if not entirely based on whose version of events a jury may find worthy of belief. Thus, evidence offered by a party to undermine or impeach the credibility of the other party is central to the case, and should have been admitted.
Here, the construction permit application squarely satisfies the criteria for admissibility. The document was completed by Lawson and it describes the construction project as "minor work." Most importantly, the application contains an attestation clause requiring the signatory (Lawson) to confirm that all of the statements made therein are true; it states that if any statements are "willfully false, I am subject to punishment."
"[F]or the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility." N.J.R.E. 607. "Cross-examination relating to a witness's credibility need not be based on evidence adduced at trial." State v. Martini, 131 N.J. 176, 255 (1993) (citing State v. Crudup, 176 N.J. Super. 215 (App. Div. 1980)). Rather, "a party may introduce extrinsic evidence relevant to credibility, whether or not that extrinsic evidence bears upon the subject matter of the action." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 607 (2008) (citing Martini, supra, 131 N.J. at 255).
Testimony of Municipal Inspector
In the course of cross-examination, plaintiff's counsel asked Lawson several questions concerning the plumbing code.
Lawson responded that he did not know anything about the code, because he did not do any plumbing work at the site. The work performed was limited to the removal of pre-existing plumbing fixtures. This prompted the trial judge to conduct the following sidebar discussion with counsel.
THE COURT: Where are we going with this?
[PLAINTIFF'S COUNSEL]: Judge, (inaudible)
THE COURT: Do you know the name of the code or are you stabbing in the dark?
[PLAINTIFF'S COUNSEL]: What's that?
THE COURT: Do you know the name of the code? What if he said oh, yeah, it's the U.C.C. Chapter 367 Code? What would you do then?
[PLAINTIFF'S COUNSEL]: Then I'd say he knows the plumbing code, whatever it is, it's not that citation.
THE COURT: So, whatever he says, you're going to just accept that answer?
[PLAINTIFF'S COUNSEL]: No.
THE COURT: Well, how are you going to challenge what he says?
[PLAINTIFF'S COUNSEL]: I have the building inspector from Irvington on subpoena.
THE COURT: When's he coming?
[PLAINTIFF'S COUNSEL]: Judge, I don't know if he is coming or not.
THE COURT: Well, is he coming?
[PLAINTIFF'S COUNSEL]: (Indiscernible) my case.
THE COURT: Well, counsel, but you're either wasting time or you're not. The fact that the man doesn't know the name of the code, do you know the name of the case that established proximate cause as a requirement in property damage cases? Do you know the name of the case? (Pause) No. Do you know what it provides or what is required?
That's the proper question.
It must be emphasized, this disruption to plaintiff's counsel's presentation was initiated by the trial judge; it was not in response to any objection raised by defense counsel. When Lawson testified that the kind of work he performed, the removal of plumbing fixtures, is not required to be done by a licensed plumber, the trial judge again interrupted counsel, making the following comments in the presence of the jury:
THE COURT: I'm sorry counsel. Is there a proffer or is someone going to testify that a license is required to remove a toilet? (Pause). Counsel if --
[PLAINTIFF'S COUNSEL]: Judge this witness is testifying about the plumbing code --
THE COURT: No, no. Are you going to be presenting testimony that a license is required to shut the water off and pull a toilet off the floor?
[PLAINTIFF'S COUNSEL]: Yes, I will, Judge. I'll call --
THE COURT: When is that person scheduled to come?
[PLAINTIFF'S COUNSEL]: I'll bring him in tomorrow morning.
THE COURT: Thank you. You're required to do that or I strike that question. [(Emphasis added).]
Once again, the court's actions were entirely self-initiated, and not in response to an objection or application to strike by defense counsel.
Defense counsel concluded his case the following morning, near 10 a.m. At this point, the court asked plaintiff's counsel if he had any rebuttal witnesses. In response, counsel advised the court that he planned to call the municipal building inspector, as the trial court had instructed the previous day. Counsel advised the court that the witness would be available shortly, at around eleven that morning.
When the court inquired as to why the witness was not present, counsel indicated that he did not know that the testimony would be needed until 4 p.m. the day before, when the court made its ruling. This prompted the following ruling from the court:
THE COURT: You asked a question unprepared to deal with either answer you got. And by saying unprepared, I mean you didn't have the witness waiting to be able to testify as to whatever it is you want to testify.
And more importantly, that's not then rebuttal. That's something -- let me -- let me do the following. It goes to credibility only. It obviously doesn't go to any of the substantive issues. If it went to a substantive issue, I'm -- we -- we dealt with the issue of whether the presence or absence of a permit was at the heart of this case. And, basically, plaintiff agreed that, you know, his expert wasn't going to testify [ ] about whether they were or weren't required permits because that's not really the issue in this case.
The issue in this case is: Who applied the heat source to the wood that caused the fire? And, so, this witness, the building person who's going to come in and basically say to unscrew a toilet and replace it with another one requires a permit, it's a peripheral and tangential issue. It goes only to credibility. I am not willing to have this jury wait an [hour] for this man to show up.
As I indicated to both counsel at the close yesterday, this jury is very annoyed.*fn1 They have -- and -- and I'll be candid. I believe that part of what they're annoyed about is they have spent an awful lot of time listening to the same questions being asked over and over again, people looking for pictures, et cetera, et cetera.
So, in my view, given the authority that I have and the responsibility that I have to make efficient use of the court's time and the jury's time, we're not waiting for him.
This discussion took place between 10 a.m. and 10:15. The court held the charge conference immediately thereafter; it was completed at 10:58 a.m. The witness was present and ready to testify at that time. The court did not permit him to testify. Given these facts, there is no justification for the judge's unwillingness to permit this witness to testify. Judicial management of cases must be guided by the driving principle underpinning all trials: to strive to achieve a just and fair result under law. In this context, rigid adherence to scheduling objectives must yield to the greater good of presenting all of the competent evidence before the trier of fact.
IV. Judicial Bias
Plaintiff argues that the trial court repeatedly imposed its own view of the merits of the case, by expressing doubt as to the merits of substantive issues being advanced by plaintiff, by demeaning comments to witnesses, and by inappropriate "editorial" commentary in front of the jury. Defendant argues that the court appropriately intervened and exercised its discretion under N.J.R.E. 611(a).
We are mindful that the trial court is vested with great discretion over the conduct of the trial. Persley v. New Jersey Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003) (citing Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 492 (App. Div.), certif. denied, 165 N.J. 607 (2000); N.J.R.E. 611(b)). "Exercise of that discretion is ordinarily not interfered with unless there is a clear abuse of discretion which has deprived a party of a fair trial." Ibid. (citing Daisey v. Keene Corp., 268 N.J. Super. 325, 334 (App. Div. 1993)).
Under N.J.R.E. 611(a) "[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." Trial judges are not merely moderators, rather they "are vested with the authority to propound questions to qualify a witness's testimony and to elicit material facts on their own initiative and within their sound discretion." State v. Medina, 349 N.J. Super. 108, 131 (App. Div. 2002) (citing State v. Ross, 80 N.J. 239, 248-49 (1979)); see also N.J.R.E. 614 (a judge "may call a witness and may interrogate any witness").
"The intervention of a trial judge is a 'desirable procedure,' but it must be exercised with restraint." Medina, supra, 349 N.J. Super. at 131 (citing Village of Ridgewood v. Sreel Inv. Corp., 28 N.J. 121, 132 (1958)). "A judge must conduct a trial in a fair and impartial manner, refraining from remarks that might prejudice a party or might influence the minds of the jury." Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 297-98 (App. Div. 1999) (citing Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff'd, 57 N.J. 497 (1971)).
To avoid any prejudice a judge can not express his opinion on the evidence; throw his "judicial weight" to one side; indicate belief or disbelief of a witness; or criticize or humiliate a witness or counsel. Id. at 298 (quoting State v. Zwillman, 112 N.J. Super. 6, 20-22 (App. Div. 1970), certif. denied, 57 N.J. 603 (1971)).
In reviewing prejudicial conduct by a trial judge, the appellate court must consider the entire transcript. Ibid. (citing Zwillman, supra, 112 N.J. Super. at 20). Even if no single instance is sufficient to warrant a reversal, the trial judge's actions in the aggregate may deprive the party of a fair trial. Id. at 299 (citing Zwillman, supra, 112 N.J. Super. at 20).
Here, we are satisfied that the trial judge's conduct exhibited an untenable hostility against plaintiff's counsel.
The judge's repeated insertion into the trial process, consistently and openly criticizing counsel in the presence of the jury, irreparably prejudiced plaintiff's right to a fair trial. Such conduct sent the jury an unmistakable message that the judge, the personification of authority and impartiality, did not think plaintiff had a legitimate claim.
The judge's demeanor, showing impatience, indeed outright frustration with counsel's behavior was unwarranted. The record is replete with evidence demonstrating that counsel was consistently respectful to the court; counsel tried, under very difficult circumstances, to accommodate and respond to the court's rulings in a prompt and professional manner. Despite these efforts, the court's consistently rebuked his performance, in the presence of the jury, and in open court. The following exchange encapsulates our concern in this respect.
In the course of presenting the testimony of NJIUA's investigator, John Decker, plaintiff's counsel made reference to a letter the witness had sent to Lawson. This prompted the following exchange, in the presence of the jury:
THE COURT: We have the letter. Let's not paraphrase it.
MR. DECKER: Yes - yes, ma'am.
THE COURT: Show him the letter. Let's get -
[PLAINTIFF'S COUNSEL]: Yeah, if the court please, yeah.
THE COURT: Don't you have the letter, counsel, marked as an exhibit.
[PLAINTIFF'S COUNSEL]: Judge, I did not mark it as an exhibit.
THE COURT: Well, then I assume it's not all that important. But anyway he called you back, right? You sent a letter, he called you back?
MR. DECKER: Yes, ma'am.
THE COURT: What did he say to you? What did you say to him when he called you back. Just keep the letter. It doesn't matter. It's not on the list. What did you say to him? What did he say to you when he called you back?
MR. DECKER: Okay. I explained to - Mr. Lawson was quite concerned when he called me. I explained to him that our investigation revealed that he was responsible for inadvertently starting this fire - he or his company, his contracting company. And- and then I outlined our - our theory of liability so to speak, what - what the fire department had advised -
THE COURT: No, no. No, no, no, no, no, no, no.*fn2 You're not going to get in - you can't - you can't tell this jury what the fire department did, et cetera. That's - your lawyer would have to call those witnesses. What did Mr. Lawson say to you? You sent him a letter. You said we think you're responsible. He called you up. What did he say to you?
MR. DECKER: Well, after I explained the theory of liability, -
THE COURT: Yeah, what did he say to you?
MR. DECKER: Okay. His response was . . . may I say the theory of liability?
THE COURT: Tell me what words he used. What did he say?
MR. DECKER: Okay. He said gee, I'm not sure if my plumbers were in there today or not.
THE COURT: Okay. Next question. [(Emphasis added).]
We begin our review of this colloquy by emphasizing a number of factors: (1) this occurred on the first day of trial; (2) this was plaintiff's second witness; (3) the entire exchange was not initiated by a defense objection; and (4) it took place in the presence of the jury. A review of the record as a whole reveals that the trial judge engaged in this overly aggressive, needlessly intrusive conduct consistently throughout the trial.
A judge's trial management style cannot be so overbearing and intrusive that it operates to deprive one or both parties of their right to a fair and impartial trial. If this occurs, the only adequate remedy is to vacate any verdict tainted by such a legally unwholesome environment.
Given the conclusions reached here, we are compelled to direct that this matter be retried before a different judge, "[t]o guard against any further appearance of unfairness." James v. City East Orange, 246 N.J. Super. 554, 564 (App. Div. 1991).
Reversed and remanded.