The judge also allowed introduction of Goodman's letter to Jones, once redacted to eliminate parts of the letter he found unduly prejudicial. Citing State v. Buhl, 269 N.J.Super. 344, 635 A.2d 562 (App.Div.), certif. denied, 135 N.J. 468, 640 A.2d 850 (1994), and State v. Johnson, 216 N.J.Super. 588, 524 A.2d 826 (App.Div. 1987), the judge found that the letter was relevant to consciousness of guilt and determined that the prejudicial effect could be addressed by a limiting instruction. He gave the following limiting instruction to the jury.
Citing State v. Buhl, 269 N.J. Super. 344, 635 A.2d 562 (App. Div.), certif. denied, 135 N.J. 468, 640 A.2d 850 (1994), and State v. Johnson, 216 N.J. Super. 588, 524 A.2d 826 (App. Div. 1987), the judge found that the letter was relevant to consciousness of guilt and determined that the prejudicial effect could be addressed by a limiting instruction.He gave the following limiting instruction to the jury.
At the conclusion of the case, the jury should again be instructed on this point.[330 N.J. Super. 545, 559 (2000) (first citing State v. Gallicchio, 44 N.J. 540 (1965); and then citing State v. Johnson, 216 N.J. Super. 588, 608-09 (App. Div. 1987)) (internal citations omitted).]
But defendants' forceful defense of the trial court's ruling prohibiting any reference to Ramos' mental health records is a “straw man” argument, because plaintiff has never sought to use the records to challenge Ramos' subjective motivation in firing on him. Instead, plaintiff sought to use the records to challenge Ramos' perceptions and his ability to make observations, a classic use of extrinsic evidence to impugn a witness's credibility under N.J.R.E. 607. SeeState v. Johnson , 216 N.J.Super. 588, 603, 524 A. 2d 826 (App.Div.1987) (“any deficiency of the senses which would lessen the ability to perceive facts testified to by the witness is an attack on the credibility of the witness”), certif. denied , 107 N.J. 647, 527 A. 2d 467 (1987).SeeKaye v. Rosefielde , 432 N.J.Super. 421, 478, n. 30, 75 A. 3d 1168 (App.Div.2013) (explaining that “ the technique of setting up an argument that does not exist and then refuting that misrepresented argument is called the ‘straw man’ fallacy”) (quoting Canesi v. Wilson , 158 N.J. 490, 518, 730 A. 2d 805 (1999) (O'Hern, J., concurring)), rev'd on other grounds , 223 N.J. 218, 238, 121 A. 3d 862 (2015).
We impose strictly the requirement of surprise because, in this context, "the prior statement was not written, recorded or given under oath." State v. Johnson, 216 N.J.Super. 588, 608, 524 A.2d 826 (App.Div. 1987). If neutralization is administered loosely, then under the banner of impeachment prior contradictory evidence that is otherwise inadmissible under N.J.R.E. 803(c)(1) is placed before the jury by a witness's own proponent.See generally, Caccavale, supra, 58 N.J.Super. at 573, 157 A.2d 21, and see also N.J.R.E. 803(a)(1) (adopted after Caccavale). The Rule expanded the means for witness impeachment to include use of a prior sworn statement, or those that are sound recorded or written and signed by the witness under circumstances supporting the statement's reliability.
This issue involves another discretionary ruling. Flight of an accused is admissible as evidence of consciousness of guilt, and therefore of guilt. State v. Johnson, 216 N.J. Super. 588, 612, 524 A.2d 826 (App.Div. 1987) (quoting United States v.Ballard, 423 F.2d 127 (5th Cir. 1970)). Mere departure, however, does not imply guilt.
There can be no question that the OSHA citations were hearsay. Evid.R. 63; State v. Johnson, 216 N.J. Super. 588, 600 (App.Div. 1987), and were improperly admitted under Evid.R. 63(15), which provides:. . . [A] statement is admissible if in the form of (a) a written statement of an act done, or an act, condition or event observed by a public official if it was within the scope of his duty either to perform the act reported or to observe the act, condition or event reported and to make the written statement, or (b) statistical findings made by a public official whose duty it was to investigate the facts concerning the act, condition or event and to make statistical findings.
“We have stated that evidence of threats to witnesses was “not subject to the restriction of [former] Evid. R. 55.” State v.. Johnson, 216 N.J.Super. 588, 611 (App. Div.), certif. denied, 107 N.J. 647 (1987). However, such evidence is more properly viewed as “admissible to demonstrate consciousness of guilt under N.J.R.E. 404(b).”
Certainly, not every departure from this requirement mandates reversal. State v. Johnson, 216 N.J.Super. 588, 614 (App.Div.1987). Prosecutorial misconduct is not a basis for reversal unless the conduct was so egregious that it deprived defendant of a fair trial.
It is clear that "[f]light of an accused is admissible as evidence of consciousness of guilt, and therefore of guilt." State v. Long, 119 N.J., 499,575 A.2d 435 (1990) (citing State v. Johnson,216 N.J.Super. 588, 612, 524 A.2d 826 (App.Div. 1987)). That said, "[m]ere departure, however, does not imply guilt" as "[f]light requires departure from a crime scene under circumstances that imply consciousness of guilt."