PAUL GODLEY and EICHEN LEVINSON & CRUTCHLOW, LLP, Plaintiffs-Appellants/ Cross-Respondents,
CITY OF NEWARK and NEWARK POLICE DEPARTMENT, Defendants-Respondents/ Cross-Appellants. DAVID LAMARR, Plaintiff-Appellant/ Cross-Respondent,
CITY OF NEWARK and NEWARK POLICE DEPARTMENT, Defendants-Respondents/ Cross-Appellants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 26, 2012
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-5963-07 and L-10579-06.
William O. Crutchlow argued the cause for appellants/cross-respondents Paul Godley and Eichen Levinson & Crutchlow, LLP (Eichen Crutchlow Zaslow & McElroy, LLP, attorneys; Mr. Crutchlow, on the brief).
Peter W. Till argued the cause for appellant/ cross-respondent David Lamarr (Law Offices of Peter W. Till, attorneys; Mr. Till, on the brief).
Victor A. Afanador argued the cause for respondents/cross-appellants City of Newark and Newark Police Department (Lite DePalma Greenberg, LLC, attorneys; Mr. Afanador, of counsel; Bruce D. Greenberg, Susana Cruz Hodge, and Danielle Y. Alvarez, on the brief).
Before Judges Graves, Espinosa, and Guadagno.
These consolidated appeals involve indemnification issues arising from the shooting of plaintiff Paul Godley by plaintiff David Lamarr, an off-duty Newark police officer, on July 27, 2003. Godley was seriously injured. The only question presented to the jury was whether Lamarr was acting within the scope of his duties as a police officer when he shot Godley. Following a week-long trial, the jury concluded the shooting did not arise out of and in the course of Lamarr's duties as a police officer.
On appeal, Godley and Lamarr primarily argue that the trial court erred in making certain evidentiary rulings. In addition, the City of Newark (the City) has filed a protective cross-appeal in the event we overturn the jury verdict. For the reasons that follow, we affirm the consolidated appeals and dismiss the cross-appeal.
At the time of the shooting, the Newark Police Department's manual of rules and regulations stated: "Police officers shall always be subject to duty even when periodically relieved from regularly scheduled duty." Additionally, the collective bargaining agreement between the City and the Newark Fraternal Order of the Police (FOP) stated:
Whenever any civil action is brought against any employee covered by this Agreement for any act or omission arising out of and in the course of his/her employment, the City shall defray all costs of defending such action, if any, and shall pay any adverse judgment, save harmless, and protect such person from any financial loss resulting therefrom.
On July 27, 2003, at 4:00 a.m., Lamarr ended his shift and left his precinct station in his personal vehicle. He drove to the Stephen Crane Housing Complex in Newark to visit Aida Vasquez. Lamarr was not in full uniform. He was wearing a baseball cap, a New York Yankees jersey, and his police-issued pants and shoes. He carried his weapon but no other police-issued equipment. Lamarr parked his vehicle in front of the complex and walked through the front door.
Vasquez worked the front desk of the complex as a security guard from midnight to 8:00 a.m. Lamarr previously had a romantic relationship with Vasquez. At the time of the incident, Lamarr claimed they were still friends, but Vasquez testified their relationship "was over, " and she was dating Felicia Moens, who lived at the complex. When Moens testified, she confirmed she was dating Vasquez in 2003. However, they were no longer dating at the time of trial.
While Lamarr and Vasquez were talking, Godley entered the building through a side door and came down the hallway singing. Godley knew Vasquez since they were children and they were close friends, but they were never romantically involved. Vasquez introduced Godley to Lamarr by his nickname, "Nut." After Godley and Vasquez spoke to each other, Godley told Lamarr, "Before you leave, I need to holler at you." Godley then left the building through the side door.
A few minutes later, Lamarr went out the side door to see what Godley wanted, and Godley was sitting on a bench with Moens. Lamarr testified Godley approached him and told him to leave Vasquez alone because she did not "want to be bothered with [him]." Lamarr responded by telling Godley he should "consult with [Vasquez] because she invited me here." Godley replied, "I don't give a damn about that, I'm telling you you're going to leave her alone." Lamarr testified he attempted to walk to his vehicle but Godley was blocking him, and he had "his hands raised" as if he wanted to fight. At that point, Lamarr told Godley he was "a cop and if [Godley] didn't leave, he was going to get locked up." Lamarr also testified that at some point Godley said, "I don't give a fuck about you being a cop, I'll kill your punk ass."
When Godley testified, he admitted telling Lamarr there would be "problems for him" if he did not leave Vasquez alone. Godley also admitted he was "hot" that night, and told Lamarr, "You are the one who raped my dog." However, according to Godley, he was not "violent that night" and did not try to stop Lamarr from going to his car.
Vasquez testified the two men "were arguing back and forth, " and she tried to stop the argument by grabbing Lamarr and walking him towards his car, which was parked in front of the building. Nevertheless, the two men continued to argue, and Lamarr again told Godley that if he did not leave, he would be arrested. Lamarr and Godley both testified Godley replied, "I don't give a fuck."
Lamarr testified Moens was "laughing and egging [Godley] on, " and Godley agreed that Moens was "basically fanning the flames." According to Lamarr, when he reached his vehicle, Godley was "yelling from the sidewalk" and challenging him to fight. Lamarr said he drew his weapon because he felt threatened, and he told Godley, "Don't move." Lamarr testified he "saw a bulge under [Godley's] shirt" and thought Godley was reaching for a gun, so he fired one round hitting Godley in the abdomen. Lamarr said he was concerned for his safety and believed he "was acting in the capacity of [his] job."
Godley, on the other hand, testified he was wearing a tee-shirt that "was completely out of [his] pants, " there was nothing under his shirt, and he "never made a threatening movement" towards his waist. In addition, Vasquez and Moens testified they did not see a bulge in Godley's shirt. Godley maintained that when he saw the gun, he tried to raise his hands above his head, but Lamarr shot him before he was able to raise his hands past his waist.
According to Godley, Lamarr was agitated and stated: "I'm the motherfucking police, nigger. I'll kill your motherfucking ass straight out." In addition, Vasquez testified that right before the shooting, Lamarr said, "You want to be a bad motherfucker, I'll show you how to be a bad motherfucker."
After Godley was shot, Lamarr called for assistance, and Godley was transported to the hospital. Lamarr and other police officers searched the area for a weapon, but none was found.
Lamarr was subsequently arrested and indicted for attempted murder, aggravated assault, and unlawful use of a weapon. The criminal case proceeded to trial, and a jury found Lamarr not guilty on all counts. The City also filed disciplinary charges against Lamarr that resulted in a twenty-eight-day suspension. He was then reinstated to his position as a patrolman.
In November 2004, Godley filed a civil complaint in the Law Division against Lamarr, the City, the Newark Police Department, and the Newark Housing Authority. The complaint alleged negligent and excessive use of force by Lamarr; negligent supervision, control, and training of Lamarr; and negligence by the Housing Authority for failing to provide proper security. In February 2005, the City ...