NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 11, 2013
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-08-0654.
Kevin G. Roe argued the cause for appellant/cross-respondent.
Frank J. Ducoat, Deputy Attorney General, argued the cause for respondent/cross-appellant (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Ducoat, of counsel and on the brief).
Before Judges Graves, Espinosa, and Guadagno.
Following a jury trial, defendant David Romeo, a former sergeant with the Wildwood Police Department, was convicted of official misconduct for kicking two suspects in the head while they lay handcuffed on the ground. Defendant was sentenced to five years in prison, although the trial court denied the State's request to sentence defendant to any period of parole ineligibility.
Defendant challenges comments made by the prosecutor during summation, the admission of evidence related to allegations of prior misconduct, and several other evidentiary rulings. In a cross-appeal, which we have consolidated for purposes of this opinion, the State challenges the trial court's decision to waive the mandatory term for official misconduct and claims the trial court applied the wrong standard. Following our review, we affirm defendant's conviction but remand for resentencing.
Defendant joined the Wildwood Police Department in 1994 and was promoted to sergeant in April 2007. The incident which resulted in this prosecution occurred on July 24, 2007. We glean the following facts from the record.
Wildwood Detectives Walter Cubernot and Edward Ramsey, and Patrolman Roger Lillo had spent the day investigating two males suspected of committing a series of car burglaries near the Wildwood boardwalk. Ramsey was the lead investigator on the case.
While following the suspects, Ramsey retrieved a portable compact disc player that one of them discarded into a trash can on the boardwalk. At approximately 3:00 p.m., Lillo saw the suspects go into a parking lot and attempt to open the doors of several cars.
After briefly losing sight of the suspects, Lillo and Ramsey saw them inside a green van with one of the doors ajar. Believing the suspects had broken into the van, Ramsey dropped the compact disc player, ran up to the open door and identified himself as a police officer. Lillo stepped away from the van and called for backup.
Ramsey saw one of the suspects, later identified as Louis McCullough, seated inside the van. When Ramsey tried to place McCullough under arrest and remove him from the van, McCullough resisted, first striking Ramsey in the arm and then slamming him into the doorjamb of the van. Ramsey hit McCullough several times and was able to get one handcuff on him and pull him out of the van.
Meanwhile, Cubernot approached the van and drew his weapon. While observing Ramsey and McCullough engaged in a struggle, Cubernot saw the second suspect, later identified as Gilbert Haege, crouched down behind the driver's seat. After Ramsey removed McCullough from the van, he handcuffed him and, with the assistance of Lillo, placed him on the ground in the parking lot. Ramsey then assisted Cubernot in forcefully removing Haege. Haege resisted and refused to take his right arm from underneath his body. Ramsey pinned Haege to the ground and handcuffed him.
Eventually, both McCullough and Haege were subdued. Both were lying on their stomachs with their hands cuffed behind them, five to ten feet apart. Cubernot described Haege's demeanor after he was handcuffed:
Q: When you say secured, could you describe how he was on the ground?
[CUBERNOT]: He was lying face-down with his arms behind his back and had handcuffs on.
Q: Would you describe his demeanor at that time?
[CUBERNOT]: He just laid there. The fight was over. He gave up. I mean, he was done.
Q: Was he subdued?
What happened next formed the basis for the charge against defendant. That day, defendant was the supervisor on the 3:00 p.m. to 11:00 p.m. shift. After hearing Lillo's radio call for backup, defendant left the Wildwood Police Station and drove to the scene, arriving within a few minutes of Lillo's call. Cubernot testified that just before defendant arrived, he was trying to help McCullough stand up in order to get him to a police car. As Cubernot explained:
When you're handcuffed like that, sometimes you need help. . . . You're handcuffed behind your back. It's a little hard to move. You're kind of restricted. So any arrest I've ever made where someone was handcuffed behind their back, I would roll them over, sit them up and assist them by picking them up.
As Cubernot was preparing to sit McCullough up, he saw defendant walking quickly in his direction. Defendant was dressed in full police uniform, wearing "boot-type shoes" and began to yell when he approached Haege, but Cubernot could not hear what he was saying. Defendant then walked to where Haege was lying, still face-down on the ground, handcuffed behind his back, and kicked him once in the head. Cubernot was "stunned" by what defendant did.
Defendant then walked to where Cubernot had placed McCullough in a seated position. As Cubernot reached under McCullough's armpits to pick him up, defendant yelled at Cubernot, "put him down." In response to this order by his sergeant, Cubernot "set McCullough back down on his rear." Cubernot then observed:
Sergeant Romeo takes the palm of his hand and pushes [McCullough] in the side of the head which causes him to roll over because he's handcuffed behind his back like a weeble-wobble. He can't stay up. He rolls over, now he's back face-down . . . .
Cubernot testified defendant "cocked his right leg back and wind [sic] up kicking McCullough in the face two times." Defendant then walked away. Cubernot saw no weapon on the ground and never saw defendant point to or pick up anything from the ground.
Lillo testified the two suspects were lying on the ground on their stomachs with McCullough's head "facing southbound" and Haege's head "facing northbound." "The next thing that happened was basically Sergeant Romeo pulls up, exits his patrol vehicle, walks up to Haege, kicks him in the head." Lillo explained that McCullough was "kind of up on his knees sitting on his butt." Defendant then "stepped over" Haege, "grabbed the back of [McCullough], threw him to the ground, and proceeded to kick McCullough in the head twice." Defendant was yelling at the suspects but Lillo was unable to "say specifically what he was saying."
Lillo said the whole incident "happened within seconds" and he was "basically in shock" at what he saw. Lillo "was staring right at" the two suspects and saw no shiny metal objects or anything else between them, did not see defendant pick up anything, and was unaware whether any objects were found during the pat-down searches of the suspects.
Ramsey testified that Haege was handcuffed on the ground, McCullough was seated with his feet out in front, and Lillo was "standing over top" of the suspects "yelling" down at them. Defendant came from somewhere behind Ramsey "yelling something, " but Ramsey "ha[d] no idea what it was." He did not hear defendant yell "weapon." Defendant then walked up and gave Haege "a sweeping kick . . . in the face." Ramsey said the kick "wasn't an accident" and "was done intentionally." Ramsey "was shocked" at what he saw. Defendant then stepped over Haege and yelled for Cubernot to "put him down, " referring to McCullough. Cubernot "kind of stood up straight" and "just let go of him." Defendant "was yelling at McCullough, " but Ramsey had "no idea" what he said.
Ramsey said defendant then "with an open hand, just kind of palmed the side of his head and pushed him over, pushed McCullough over to the ground." The handcuffed McCullough "just kind of dumped over, just fell over on to his right side." Then defendant "kicked him twice right in his face" and "just walked away." Ramsey described defendant's shoes as "trooper boots." Ramsey never saw a weapon or any type of "shiny object" on the ground near the suspects.
Haege's face was bleeding and Ramsey told Lillo to contact the rescue squad to come to the police station and "clean . . . up" Haege. Ramsey called Sergeant Gallagher to inform him they had the men in custody and to request a camera.
Haege testified that he was handcuffed and lying on the ground "waiting" when he heard a car pull up and he saw "a black boot right at [his] head." He was kicked in the right side of his head, but he did not know who kicked him or whether it was a police officer. Haege denied he was trying to use force, threaten anyone or reach for a weapon when he was kicked. Haege admitted that he and McCullough had committed "many, many car burglaries." At the time of his arrest, Haege admitted he was under the influence of heroin. He pled guilty to two charges of burglary and received concurrent three-year sentences with no parole disqualifier.
McCullough also pled guilty to two burglaries and received a sentence of nine months. He testified the prosecutor dismissed "75 or 80" charges that were pending, but claimed the prosecutor made no promises in exchange for his testimony against defendant.
McCullough admitted he had initially been resisting Ramsey, but said he had stopped, and was handcuffed and lying on the ground with his hands behind him. He observed another officer getting ready to pick Haege up, and saw defendant "kick [Haege] in the face."
McCullough testified he was lying face-down when defendant walked over and kicked him in the face three times. After kicking him, defendant called him "motherfucker, " and told him "you got what you deserve." McCullough admitted he was carrying "a Gerber tool" in the pocket of his cargo shorts and explained the tool "was for burglary" and he regularly used it to break into cars.
Defendant testified that when he arrived at the crime scene he believed it was still active because no one had canceled the call for backup or stated the scene was secure. Defendant spotted Lillo and Ramsey and after parking his car, he ran at "a full sprint" over to Lillo. When he reached Lillo, defendant testified he saw a "knife on the ground and two subjects laying on the ground." Defendant claimed the knife was "opened up" and he "yelled knife the same time as I gave [Haege] a distracting kick" in his head and "stepped over him."
Defendant testified McCullough "was laying [sic] flat on the ground" and he stepped "in between the two subjects and I reached down for the knife and at the same time I gave [McCullough] a kick to his head and I said look away and I picked up the knife." Defendant claimed the suspects were laying parallel to each other and the "knife" was approximately a foot and a half away from McCullough. He admitted that neither Haege nor McCullough reached for the knife.
Defendant conceded that McCullough was handcuffed, but claimed the knife was a threat and McCullough was "part of the threat if he can get to that knife before I can safely secure it." Defendant denied that he had stopped to "wind up and kick" Haege or McCullough as Ramsey had testified. He said he "didn't use full force" but "used enough force . . . to distract them." Defendant claims he saw no injuries to either suspect from the kicks.
Defendant testified he picked up the knife, walked over to Cubernot to hand the knife to him, but Cubernot told him to give the knife to Officer John Flanigan. Defendant claimed he handed the knife to Flanigan and told him and Officer Elias Aboud to transport the prisoners.
Cubernot testified he had picked up McCullough and escorted him to another officer's patrol car where he searched McCullough for weapons. It was during that search that Cubernot first found the closed Leatherman utility tool in McCullough's right front pocket. He described the tool as containing pliers, knife blades, scissors, a nail file, a small serrated saw, and screwdrivers.
Cubernot denied giving the tool to Flanigan or defendant at the scene. He placed it in his front pocket for security, took it to the police station where he placed the tool in a paper evidence bag. Cubernot filled out the form that was stamped on the paper bag, logged it into the computer and placed it in the detectives' temporary evidence safe, which was located in the detective division on the second floor. The evidence form indicated the Leatherman had been found in McCullough's right front pants pocket, but it did not say who had recovered it.
Flanigan testified that he responded to Lillo's request for backup and arrived at the scene before defendant. Cubernot asked Flanigan for his handcuffs to secure one of the suspects. When Flanigan arrived, both suspects were secured and handcuffed behind their backs. After the suspects were secured, Flanigan returned to his car and waited to help transport them to the police station. He testified that he heard the sound of someone getting punched but did not turn around when he heard the sound. Flanigan stated he "would assume, but didn't know for a fact, " that one of the suspects was being assaulted.
Flanigan also took some of the items from the scene including a portable CD player with headphones, a black case and a hat and completed a report dated July 28, 2007, indicating he transported those items. Flanigan testified he saw nothing on the ground between the suspects, but after he walked back to his patrol car, he claimed defendant handed him a Leatherman tool. Flanigan's report made no mention of the Leatherman tool.
Ramsey testified that after he returned to the police station, he and defendant had a "heated conversation":
I looked at Sergeant Romeo and I said what the fuck is your problem?
He responded by saying what, and at that point I was, like, what? What? Are you out of your mind? And he said those guys didn't deserve that? And I was kind of taken aback by the comment he made.
[H]e was basically asking me, like, what, you didn't agree with what I did. That's the way I took it.
At that point, I said how do you think I'm going to write this up?
I can't justify what you did, and he said I'll write it up, and I said how are you going to write it up, you weren't even there, and at that point he told me to relax.
I said, well, you know, I'm not going to lose my job or my house because you lost your head, and at that point he got more commanding with me and was, like, you need to relax now. And at that point, I just --I said fuck you, Dave, and I walked out, and that was it. That was the last contact I had with him.
Defendant admitted that Ramsey approached him after they returned to the station and asked him, "[W]hat the hell was that, Romeo?" Defendant claimed he didn't know what Ramsey was talking about. When Ramsey asked defendant how he was going to write up the incident, defendant told Ramsey not to "worry about writing it up, I'll write it up." Defendant then directed Ramsey to talk to the suspects and obtain their confessions. Defendant testified there was "no reason" for Ramsey to write up a report on what he did. Defendant denied he ever told Ramsey the suspects "deserved that" and claimed Cubernot did not approach him that night.
Defendant admitted he was required to do a "use of force" report as a result of the force used on Haege and McCullough, but claimed he "never got around to it." He testified he was working alone that night and the next, and was off the following two days, and he was suspended on July 27, 2007. After his suspension, defendant testified his attorney advised him not to complete the report.
Cubernot testified he placed the Leatherman into a paper evidence bag and entered information about the seized item on a computer. He then printed out the form he had just completed and stapled the form to the evidence bag. Cubernot then "sealed" the bag containing the Leatherman with more staples and placed the bag into the detectives' safe. At trial, Cubernot identified the evidence bag containing his handwriting indicating he placed the bag containing the Leatherman into the detectives' safe at 6:30 p.m. on July 24, 2007. Cubernot completed a supplemental report fourteen months after the incident, indicating he found the Leatherman during his search of McCullough.
Ramsey was the evidence officer. Approximately one week after the arrests, he removed the evidence bag containing the Leatherman from the detectives' safe, logged it into the computer, and secured the bag in the evidence room.
On August 26, 2008, a grand jury sitting in Cape May County returned a one-count indictment charging defendant with official misconduct, N.J.S.A. 2C:30-2.
The trial court conducted a pretrial hearing over the course of five days to determine the admissibility of evidence the State sought to introduce pursuant to N.J.R.E. 404(b), of prior incidents involving acts of excessive force committed by defendant while on duty as a police officer. In a thorough oral opinion, the trial court made credibility findings and granted the State's motion to admit evidence of three of the four incidents. The 404(b) testimony at trial can be summarized as follows:
The Hruska/Baker Incident
Jason Baker testified that in 2002 he was at a car show in Wildwood with his two brothers, John Hruska and Joshua Baker, and Hruska's girlfriend. Jason observed defendant, who was on duty and in uniform, approach Joshua and ask him what he had in his pocket. Joshua replied he had a pack of cigarettes, a lighter and a bandanna. Hruska then asked defendant what his brother had done. Jason testified, "[defendant] snapped, grabbed my brother by his throat, had one hand on his throat, one hand on his side, took him approximately 15 feet, [and] slammed him on the back of his car." As this was happening, Jason testified that Hruska's "[a]rms were at his side the whole time." Jason then observed defendant spray mace from a can into Hruska's face. After he sprayed the mace, Jason observed defendant "took [Hruska] down to the ground, slammed him on the ground." Jason did not observe Hruska resist or fight back at all.
John Hruska testified and provided some additional details surrounding the incident. Hruska was nineteen at the time of the incident and his brothers were fifteen and seventeen. He felt responsible for his brothers to "[m]ake sure nothing happened." Hruska observed defendant ask for identification from someone who was drinking. Hruska then observed defendant tell Joshua to empty his pockets. Joshua complied and pulled out "[a] few CD cases, [a] CD player, and an empty bottle of soda."
Hruska then testified defendant peeled off his gloves and asked "if he still needed his bitch-smacking gloves." Hruska stepped beside his brother and asked defendant what he had done wrong. Hruska testified defendant grabbed him by the throat, carried him to the car, slammed him on the trunk and kneed him in the groin. ...