Opinion
DOCKET NO. A-1589-14T1
04-11-2016
EDWIN WILLIAMS, Plaintiff-Respondent/Cross-Appellant, v. THE CITY OF NEWARK; NEWARK POLICE DEPARTMENT; THE COUNTY OF ESSEX OF THE STATE OF NEW JERSEY; ESSEX COUNTY PROSECUTOR'S OFFICE; THE STATE OF NEW JERSEY; ESSEX COUNTY CORRECTIONAL FACILITY; DETECTIVE KEVIN LASSITER, individually and in his official capacity as Newark Police Officer; GARY MCCARTHY, individually and in his official capacity as Newark Police Director; CHRISTOPHER IU, individually and in his official capacity as Essex County Prosecutor; and WARDEN HENDRICKS, individually and in his official capacity as an employee of Essex County Correctional Facility, Defendants, and DETECTIVE ROBERT PRACHAR, individually and in his official capacity as Detective of Essex County Prosecutor's Office, Defendant-Appellant/Cross-Respondent.
John M. Bowens argued the cause for appellant/cross-respondent (Schenck, Price, Smith & King, LLP, attorneys; Mr. Bowens and James A. Kassis, on the briefs). Jennifer Harwood Ruhl argued the cause for respondent/cross-appellant (Keefe Bartels, LLC, attorneys; Mr. Ruhl and Patrick J. Bartels, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Carroll, and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1745-11. John M. Bowens argued the cause for appellant/cross-respondent (Schenck, Price, Smith & King, LLP, attorneys; Mr. Bowens and James A. Kassis, on the briefs). Jennifer Harwood Ruhl argued the cause for respondent/cross-appellant (Keefe Bartels, LLC, attorneys; Mr. Ruhl and Patrick J. Bartels, on the brief). PER CURIAM
This matter arises out of a joint investigation by the Newark Police Department (Newark PD) and the Essex County Prosecutor's Office (ECPO) into the January 4, 2009 aggravated assault and attempted murder of Jean Walker, and the February 8, 2009 murder of Darsail Crooks. Both victims worked as prostitutes in the City of Newark. Defendants Robert Prachar of the ECPO and Kevin Lassiter of the Newark PD were the lead detectives assigned to the joint investigation.
Plaintiff, Edwin Williams, was arrested for the crimes, which police believed were committed by the same person. Walker and another Newark prostitute, Aisha Anderson, provided information and identified plaintiff from a photo array. Anderson later testified before the grand jury, but Walker did not. Plaintiff was indicted for various crimes, including the murder of Crooks. However, the indictment was dismissed by the court on June 30, 2010, when the prosecution did not produce Anderson and Walker for a Wade hearing. Plaintiff was released from the Essex County Jail several days later, after being incarcerated for 490 days.
On February 28, 2011, plaintiff filed suit against Prachar, Lassiter, and a number of other individuals and agencies for false arrest, false imprisonment, deprivation of rights, and malicious prosecution. He alleged that Lassiter and Prachar had coerced Walker and Anderson to falsely identify him as the last person seen with Crooks, and as the person who assaulted Walker. Both Walker and Anderson signed sworn statements that they were influenced or coerced to pick out plaintiff in photo arrays.
On June 26, 2014, following a two-week trial, a jury found Prachar liable, but not Lassiter, and awarded plaintiff $785,000 in compensatory damages. On October 10, the court entered final judgment for $850,794.83, which included $65,794.83 in prejudgment interest. Additionally, the court awarded plaintiff attorney's fees and costs of $553,588.77, consisting of $429,075 in attorney's fees, a twenty percent contingency enhancement of $85,815, and $38,698.77 in costs. On November 12, the court increased the fee award by $15,176.50, for the attorney's fees and costs expended by plaintiff's prior attorney.
Prachar appeals from the denial of his pre-trial motions to dismiss and for summary judgment, the denial of his motions for judgment notwithstanding the verdict (JNOV) or for a new trial, and the denial of reconsideration. He also appeals the award of attorney's fees. Plaintiff cross-appeals, challenging the amount of attorney's fees awarded. Having considered the parties' arguments in light of the record and applicable legal standards, we affirm.
I.
We recount the factual history in detail to provide context to the parties' arguments on appeal.
Pre-Trial Evidence
Prachar stated in his investigation report that on February 8, 2009, Walker voluntarily approached a police officer and asked to speak to the detectives investigating the Crooks murder. Walker was transported to the Newark PD's Homicide Squad where she spoke to Prachar and Lassiter. She told the detectives that in January 2009, while she was working as a prostitute, she had been assaulted and shot at by one of her customers, but did not report it. "[S]he thought the person that did this to her may be the one who killed [Crooks]." She described her attacker as "a black male with dark brown skin, short hair and some facial hair," who weighed between "210 to 235 pounds."
Lassiter took Walker to view photographs in an attempt to identify the suspect. At his deposition, Lassiter testified that Walker did not identify anyone at that time and there was no way to determine if she viewed plaintiff's photograph that night. The next day, on February 9, 2009, Prachar and Lassiter took Walker to the location where she had been assaulted. A 9-millimeter bullet shell casing was discovered, which ballistics testing later confirmed was fired from the same gun that was used in the Crooks homicide.
On February 12, Prachar and Lassiter took a recorded statement from Walker. Walker described the details of the January 4 assault and described her attacker as an "African-American male, stocky . . . weighing . . . about 220 pounds," with a "small beard," "short hair," and dark brown skin. She also recalled that he drove a silver four-door car that night. She did not know him and had never seen him before.
On February 13, Walker participated in a photo display that was audio recorded. Prachar testified at his deposition that he selected the six photos used in the array, which included plaintiff's photograph. ECPO Detective Phillip Gregory then conducted the photo display. At his deposition, Gregory testified that Walker viewed the six photos several times over a twenty-minute period, but she did not identify plaintiff as her attacker.
Gregory conducted a second photo display with Walker about an hour-and-a-half later. This time, Walker identified plaintiff as the person that attacked her on January 4, 2009. Gregory described the events leading up to the second photo display as follows:
To the best of my recollection after I showed her the photo display I came out of the room and informed Detective Prachar that she wasn't able to make an identification and I'm not sure exactly the period, the timeframe that he spent with her, but at some point in time he came to my desk and requested that I transport her home with him or to whatever location she wanted to go to. We proceeded to go on the elevator from the fourth floor to the first floor. Once we reached the first floor, we got off the elevator and, you know, they stopped and had a conversation, unknown to me exactly what was stated or said in that conversation. At some point in time [Prachar] turned to me and said we're going to go back upstairs and I want you to show her another photo display and we went back upstairs and we showed her another photo display.
Prachar admitted that he had a private, unrecorded conversation with Walker after the first photo display. He stated:
[W]e were going to take her home and she had a concerned look. She -- she was nervous. She looked scared. I asked her what was wrong and she basically told me that the person that shot at her was in the pictures, but she was afraid to pick him out. I spoke to her for a couple of minutes and she said, you know, that she'd like to look at them again and she'd like to pick him out.Prachar did not mention that conversation in any of his reports.
Walker testified at her deposition that she did not recall having any such conversation with Prachar. Rather, after the first display, while she was on the elevator getting ready to leave, Gregory told her that "the person was there," and she responded "I didn't see him." Gregory then made the decision to go back upstairs and review the photos again. This time, Gregory pushed plaintiff's photograph towards her and said "that was the guy."
Walker stated she did not remember picking photograph number four, even though she admitted that the photograph identification form had her handwriting on it stating: "I have examined the photographs carefully until I identified photograph number four as being the man who raped and shot at me." She did not remember signing that form, and she stated that the person in the picture that Gregory pointed out was not the same person that attacked her. She did not see the individual that had attacked her in any of the photographs. She also stated that she never told any of the detectives that she had seen the person that attacked her in the first photo display but was too scared to pick him out.
Prachar, not Lassiter, signed the affidavit in support of the arrest warrant charging plaintiff with the aggravated assault of Walker. Paragraph 9 of the affidavit averred:
On February 13, 2009, [] Walker was shown a six person photo array in an attempt[] to identify the "customer" she was with on January 4, 2009. During the display of the six person photo array [] Walker viewed [] William's [sic] photograph, stated the photograph "looked like him," but did not formally select any photographs. About an hour later [] Walker spoke with detectives again and informed them that she did see her assailant's photograph in the array; however, she was scared to pick him out due to the fact that he previously shot at her and knew the area where she worked. [] Walker again gave an audio statement to detectives stating her reasons for not initially identifying her assailant. [] Walker was shown a six person photo array again and selected the photograph of Edwin Williams [] as her assailant.
On February 14, 2009, Lassiter and Prachar took a recorded statement of Anderson, the other key witness in the investigation. Anderson testified at her deposition that she was working as a prostitute with Crooks the night she was murdered. A silver Infiniti pulled up next to them, so Anderson went over to the car and asked "what's up?" Crooks got into the car, which then drove off, and that was the last time Anderson saw her.
Anderson said she told the detectives that she did not recognize the man driving the car, and at no time did she say it was plaintiff. She described the driver as "brown-skinned," "kind[] of heavy," with a "low 'fro," and "he wore glasses." She specifically stated he was driving a silver Infiniti, because she saw the word "Infiniti" on the trunk of the car.
Prachar testified that on February 23, 2009, Anderson gave another recorded statement and looked at two photo displays. Prachar selected the photos used in the arrays, which included plaintiff's photograph, and requested that ECPO Detective Michael Recktenwald conduct the photo display. Anderson selected photograph number three because Lassiter had held up three fingers before the display, which she took to mean that she should select photograph number three.
After the first photo display was over, Prachar and Lassiter entered the room and told her she had not picked the right person. They showed her some more pictures and asked her if she recognized anybody. She noticed plaintiff's picture, which she had not noticed during the photo display. Anderson explained:
[W]hen [the officer] came in the second time, he did ask me, out of the six people,
is there anybody there that I know. And I seen Edwin and I said yes. Then we started talking about, like I said well, I know he didn't do it because he's not that type of person that would do something like that. So the officer said well, he's a dangerous person and we've been trying to get him for so long and if he did it, just help us to get him.Anderson said she picked out plaintiff only because both Lassiter and Prachar told her that "Edwin Williams is a bad man," and "they needed help to get him."
Prachar admitted that he went into the room and spoke with Anderson after the first photo display. According to Prachar, Anderson looked scared and would not make eye contact. He asked her if she was alright and she said she was scared. She picked the wrong photo because she was scared, and told him: "I know the guy. I know him as Ed" and he was in the pictures.
Prachar did not reference Anderson's February 14, 2009, statement in any of his reports, and the statement was not provided to the defense in the underlying criminal case. In fact, Prachar testified at his deposition and at the Wade hearing that he did not recall taking Anderson's statement on February 14, 2009, believing that the first time he spoke to her was on February 23, 2009. At the Wade hearing, he testified that the first time he spoke with Anderson she told him "right off the bat" that she knew the guy driving the car that night and that his name was "Ed." However, on cross-examination, he stated that the first time she identified the driver as "Ed" was at the second photo display.
Prachar also admitted that he "accidently" deleted the recording of everything that transpired on February 23, 2009. He took the recording device home with him that evening and, either through human error or technical malfunction, the entire recording was deleted. He further admitted that he threw the recording device away, and that nothing about the deleted recording or the malfunctioning recording device was mentioned in any of his reports.
On February 24, 2009, Anderson provided another recorded statement, during which she reviewed the photo display that occurred the day before. Recktenwald testified that he did not know why Prachar asked him to conduct a second photo display the previous day, or why, on February 24, 2009, Prachar asked him to review what had happened the day before.
In Paragraph 11 of the affidavit Prachar signed in support of plaintiff's arrest warrant, he stated:
On February 24, 2009, a female witness, who wishes to remain anonymous at this time, was interviewed by detectives. The female witness stated that she was with the victim Darsail Crooks, whom is known to her as Lisa Crooks, in the early morning hours of February 8, 2009. The female witness was . . . with the victim [] Crooks, when a
black male pulled up in a silver motor vehicle and spoke with both the victim and witness. [] Crooks entered the black male's vehicle and drove off . . . . The witness stated she could identify the black male whose car the victim entered into. The witness was shown a six person photo array where she selected the photograph of a black male who she claimed drove the vehicle [] Crooks entered. Moments later the witness stated to detectives that she purposefully selected the wrong photograph in the photo array because she was afraid of the male [] Crooks was with on February 8, 2009. The witness went on to state that she knew the male as "Ed" and was previously in a relationship with him for approximately two to three years. Due to the intimate relationship the witness had with "Ed" and her past experiences with him, she was in fear for her safety. The witness subsequently selected the photograph of Edwin Williams [] from a six person photo array and identified him as the black male driving the silver car [] Crooks entered into in the early morning hours of February 8, 2009.
The Grand Jury Testimony and Indictment
Prachar testified before the grand jury. In addition to testifying about his interactions with Walker and Anderson, the statements they provided, and their photo identifications of plaintiff, he also presented certain potentially exculpatory evidence. He explained that he had interviewed plaintiff; that although plaintiff knew Crooks and had plans to meet with her that night, he denied shooting her, because he was working that night in Orange. Plaintiff identified his brother, James Williams, and Darren Harps, who were both working with him that night, as possible alibi witnesses. Prachar interviewed both Williams and Harps, and both told him that they could not account for plaintiff's time the entire night.
Prachar also explained that the handgun used in the Crooks homicide was recovered during the arrest of another individual, Ricky James. Prachar interviewed James, who told him that he had purchased the gun from his cousin's boyfriend sometime after the Crooks homicide.
Anderson told the grand jury that she recognized plaintiff as the driver of the silver Infiniti that Crooks entered and drove away in on the night of the murder. She also testified that she was truthful in the statements she gave to Prachar and Lassiter, and in her photo identification of plaintiff. She explained that she did not pick out plaintiff in the first photo display because she was afraid of him.
On November 16, 2009, the grand jury indicted plaintiff for several crimes, including the aggravated assault of Walker and the murder of Crooks. Plaintiff thereafter moved for a Wade hearing to test the reliability of the witness identifications, which the court granted.
The Wade hearing was conducted over four days between March 19, 2010, and June 4, 2010. After hearing testimony regarding the photo displays, the court advised the prosecution that the case against plaintiff could not proceed without the testimony of Walker and Anderson. Thereafter, because it could not locate either Walker or Anderson, the prosecution moved to dismiss all charges against plaintiff without prejudice, which the court granted on June 30, 2010.
Walker's and Anderson's Allegations of Coercion
On November 17, 2010, Walker signed a sworn certification for plaintiff's trial counsel stating that she was coerced by Lassiter and Prachar into identifying plaintiff as the man who assaulted her on January 4, 2009. She stated that, as a result of her cooperation, she received preferential treatment on criminal charges she faced. She also certified that: plaintiff was not the man who assaulted her on January 4, 2009; she was not aware that the prosecution was trying to locate her to testify at any proceeding; and she was not contacted by the prosecution to testify at the Wade hearing.
On October 5, 2010, Anderson signed a sworn affidavit for plaintiff's trial counsel stating plaintiff was not the man driving the silver Infiniti that Crooks entered on the night of the murder, but that she was essentially coerced by Lassiter and Prachar into identifying plaintiff as the driver. She too affirmed that: as a result of her cooperation, she received preferential treatment on criminal charges; she was not aware that the prosecution was trying to locate her so that she could testify at some proceeding; and she was not contacted by the prosecution to testify at the Wade hearing.
Anderson testified at her deposition that she believed she was testifying truthfully when she appeared before the grand jury. She explained that Lassiter and Prachar had convinced her that they had conclusive evidence against plaintiff and that he was actually the person that killed her friend Crooks.
Trial Testimony
Lassiter testified that he and Prachar interviewed Walker on February 9, 2009, notwithstanding that the interview was not mentioned in his report. Walker described the person that attacked her on January 4, as follows: "He's a black male. Dark brown skin. Husky. About 210 to 235 pounds with some hair on his head, but it was short. He had some facial hair and he was dressed casual as if he had just left a nightclub." He was driving "a silver four-door vehicle with tinted windows." The man robbed her and fired a gun at her. According to Walker, she believed "the same guy that shot [at] me did that to [Crooks] and that's why I'm telling you."
Lassiter took Walker to police headquarters to view some photographs, to see if she could identify the individual that had attacked her. He believed that Walker might have looked at 500 photos over the course of approximately one hour, but she did not identify anyone.
The next day, he and Prachar picked up Walker and took her to the location where she had been assaulted. They found a 9-millimeter bullet shell casing. On February 10, 2009, ballistics testing of the shell casing confirmed that it was fired from the same gun that was used in the Crooks homicide.
On February 12, 2009, he and Prachar took a recorded statement from Walker. Walker described her attacker: "He was a[n] African American male, stocky . . . he weighed . . . about 220 pounds. He had . . . [a] small beard." "And short hair. . . . Dark skinned" and he was driving a silver four-door car. At the conclusion of her statement, she advised the detectives that she would be willing to testify and look at photographs to help identify her attacker.
The investigators identified the phone numbers coming in and out of Crooks's phone on the night she was shot, one of which was plaintiff's number. They knew before Walker participated in any photo display that plaintiff was a "person of interest" because his number was on the victim's phone.
According to Prachar, Walker viewed photo arrays twice on February 13, 2009. The photo display report stated that the first display took place between 2:30 p.m. and 2:50 p.m. However, the recorded transcript stated that the first photo display started at 3:25 p.m. and ended at 3:36 p.m. Gregory could not explain the discrepancy. Walker did not identify anyone during the first photo display. After completing the first display, Gregory gave the photos and the photo display reports to Prachar. He told Prachar that Walker was not able to make a positive identification. After Gregory left, Prachar went into the interview room with Walker.
Gregory testified that Prachar later asked him to take a ride to transport Walker home. While riding down on the elevator, Prachar had a conversation with Walker, but Gregory was uncertain what was said between the two. By the time they got to the first floor, Prachar told him that they would do a second photo display.
Prachar acknowledged that there was about an hour-and-a-half between the first and second photo displays. He could not remember what he was doing during that time, but he may have talked to Gregory. However, at the Wade hearing, Prachar testified that after Gregory told him that Walker did not identify anyone during the first photo display, he, Gregory, and another detective discussed the case and how they were going to proceed.
Prachar testified he did not have any discussion with Walker after the first photo display until he was walking her out of the building. He then noticed that she looked concerned, nervous, and scared in the elevator, so he asked her "what was the matter?" Walker responded that she was scared, and later said the guy that did this was in the photographs, but she was afraid to pick him. He asked her to reconsider and look at the photos again, which she did.
Walker testified that when she was on the elevator she thought that she was leaving for the day. However, while on the elevator, Gregory said: "[H]e was there, [you] just didn't pick him out." They went back upstairs and Gregory conducted another photo display, during which Gregory "took [plaintiff's picture] and slid that picture over and said that that was him." Although Walker "knew that that wasn't the man that attacked [her]," she took Gregory's gesture to mean that that was the man and that she should pick him, so she did. She did not really look at the pictures the second time and picked plaintiff's picture only because Gregory slid it over to her. She never told any of the detectives that she saw the man who attacked her in the first photo display but was too afraid to pick him.
Anderson testified that she had worked as a prostitute in 2009 and 2010 to support her heroin and cocaine habit, but that she had been clean for about four years. She was with Crooks the night of the murder. They had gotten high that night and then they were talking when a silver car drove up and Crooks got in. Anderson saw the driver and described him as "a brown-skinned male, short haircut, wearing glasses." She had never seen the man before, but she knew plaintiff prior to the night of the murder, and plaintiff was not the person driving the car. She had never seen plaintiff with hair on his head, wearing glasses, or driving a car.
On February 14, 2009, Anderson gave a formal statement to Prachar and Lassiter. She essentially provided the same description of the driver that she had given to Lassiter on February 11: "brown-skinned male with short haircut wearing glasses." She also told the detectives that the man was driving a silver Infiniti.
Both Prachar and Lassiter testified that they had forgotten about Anderson's February 14, 2009 recorded statement, and admitted that they had failed to mention it in any of their reports. Lassiter, while acknowledging that the statement was important and should have been included in his report, claimed its omission was merely an oversight. Prachar admitted the statement was never mentioned in plaintiff's criminal investigation, and was never produced or provided to defense counsel in the criminal case. Assistant Prosecutor Christopher Iu, who prosecuted the criminal case, testified that he was unaware of the statement and only learned about it later during the civil action.
Anderson testified that Prachar brought her to the prosecutor's office on February 23, 2009, to look at a photo display in an attempt to identify the man she saw in the car the night of the murder. Anderson gave a recorded statement and participated in two separate photo displays that day.
Recktenwald testified that he conducted the displays at the request of Prachar, who assembled the photo arrays. During the first display, Anderson picked out photograph number three, which was not plaintiff.
Anderson testified that both Prachar and Lassiter were in the room with her prior to the first photo display. As Lassiter was leaving the room, "he put up three fingers." "I took that as to pick picture No. 3, and that's what I did. I picked picture number three." She did not know if plaintiff's picture was in the first photo display nor did she recognize anyone in the six photographs shown to her.
Prachar and Lassiter then reentered the room and told her that she had picked the wrong person. "The officers said that Edwin Williams was a bad person and they needed my help to try to catch him. That they had all this evidence against him stating that he was related to this murder . . . ." She was in the room with both detectives for a while after the first photo display. She wanted to help her friend, Crooks, so after she had that discussion with the detectives, she agreed to a second photo display.
Prachar testified that after the first photo display he went into the room and spoke with Anderson. He claimed she looked "troubled" and she would not make eye contact. He asked her what was wrong, because it was obvious she was afraid. She said she picked out the wrong person, and when he asked her why, she said because she was scared. She knew the guy driving the car and that his name was "Ed." As a result, Prachar arranged for Recktenwald to show her the photos again.
Recktenwald testified that Prachar asked him to conduct a second photo display, but did not say why. While he was unsure if the first display was audiotaped, the second was. This time, Anderson picked photo number five, which was plaintiff. Recktenwald collected everything and gave it to Prachar. He had no idea what happened to Anderson during the one-and-a-half hours between the two photo displays. Anderson testified that she saw plaintiff's picture in the second photo display and picked it out because of what Prachar and Lassiter had told her and because she was trying to help the police and her friend, Crooks.
Prachar testified that there was an audio recorder in the room recording Anderson's February 23, 2009 statement and the two photo displays, as well as all of the discussion that took place in the room between the two displays. He claimed that he took the audio recorder home with him and somehow, whether through malfunction or his error, the whole recording was deleted. Notwithstanding the fact that the audio recorder was county property, he threw it away. He never made a formal report about what happened to the audio recorder, and did not make any reference to the events of February 23, 2009, in any of his reports.
Prachar testified that, as a result of the deleted recording, he brought Anderson back on February 24 to "recreate" what happened the previous day. Recktenwald testified that Prachar told him that there was some type of equipment failure, but he was not sure what had actually happened. Recktenwald reviewed with Anderson what occurred the day before. He asked Anderson if she had picked out photograph number five, and she said she had. That was basically the extent of the review; he would not classify it as a photo display. Prachar was in the room at the time of the review, which was videotaped.
Anderson testified that she was asked to return to the ECPO because something had happened to the tape and she had to do it over. She did not actually look at any photos again, but instead signed a form stating that she had looked at the photos the previous day. She told Recktenwald that plaintiff was the person driving the car the night Crooks was murdered. However, plaintiff was not driving the car that night and she only said that because she wanted to help the police and her friend. She also never told the police that she saw plaintiff's photo in the first photo display but was too afraid to pick him out. She has never been afraid of plaintiff. In fact, she stated she was actually afraid of the police.
Anderson further testified that she lied before the grand jury. She wanted to tell the truth, that plaintiff was not the person she saw driving the silver Infiniti on the night of the murder, but Prachar had told her that she had to "stick to her story," and that it was too late to change it. She stated that both Prachar and Lassiter helped her with some other criminal charges she was facing, and that Prachar had given her some money to buy clothes for her appearance before the grand jury.
Anderson admitted that back in February 2009, she was a heavy drug user, with heroin her drug of choice. She also said that she had gotten high right before she participated in the photo displays, "so, I really wasn't in my right state of mind" when she identified plaintiff.
Iu, the Assistant Prosecutor, testified that he and Prachar met with Ricky James during the criminal investigation. Notwithstanding James's possession of the murder weapon, Iu said "Edwin Williams was our suspect," and nobody from the ECPO was actively looking for any other suspect in the Crooks homicide. Iu also explained that a partial sample of male-only DNA had been discovered under Crooks's fingernails. Plaintiff had allowed the ECPO to take his DNA, and after testing, plaintiff was excluded as a possible contributor of that particular sample.
Plaintiff testified that he knew Crooks since they were kids; they grew up together and he knew the Crooks family. Prior to February 2009, he knew Anderson but did not know Walker. He did not own a car at that time, nor have access to a silver four-door sedan with tinted windows. He did not have a driver's license since 2006. He had been bald since 1990 and he never wore glasses.
Plaintiff stated he was working on the night of the murder with his brother, James Williams, and Darren Harps. They arrived at the job at approximately 8:30 p.m. The job was to strip and wax the floors, which took them approximately twelve hours. They worked the entire time, and did not leave until about 8:30 the next morning.
Plaintiff admitted that Crooks called him that evening and that he spoke to her sometime after midnight. Although they were supposed to get together, he had not realized that the job would take all night, so he told her he could not make it.
According to plaintiff, he was arrested without knowing the charges against him, which caused him great stress. It was only in March 2009, after he wrote to a prison liaison to find out the charges against him, that he learned he was charged with the aggravated assault and rape of Walker and the murder of Crooks. He testified that he did not know Walker, never had sex with her, never raped her, and never shot at her or attempted to murder her.
Plaintiff was incarcerated on the charges for sixteen months from February 2009 until July 2010. In November 2009, while he was in prison, his "common law wife," Darlene, passed away. They had been together for twenty-five years. When she passed away, he lost everything; he was homeless.
Plaintiff explained that he was stressed because he was being wrongly charged with murder, and he did not know what was going to happen. He sought treatment for major depression, and saw a counselor about seven or eight times. When Darlene passed away, he had to be placed on suicide watch.
The charges against plaintiff were dismissed on June 30, 2010, but he was not released from prison until July 2. After being released, he asked Walker and Anderson to go see his lawyer and tell the truth. At no time did he threaten or coerce either of them to come forward and give a statement.
II.
On appeal, Prachar first contends that the motion judge erred by failing to grant him summary judgment prior to trial. He argues that because neither Walker nor Anderson "implicated [him] in any untoward conduct" in their depositions, and "admitted to being under the influence of drugs at the time they executed statements for [plaintiff's] first lawyer," he was entitled to summary judgment at that stage. Additionally, he claims entitlement to: (a) tort claims immunity; (b) absolute immunity; and (c) qualified immunity. We address each of these arguments in turn.
A.
"An appellate court reviews an order granting summary judgment in accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012); Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). We "identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Ibid. (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c)).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
[Brill, supra, 142 N.J. at 540.]
We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 231 (App. Div.), certif. denied, 189 N.J. 104 (2006). In this regard, "the legal conclusions undergirding the summary judgment motion itself" are reviewed "on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).
In denying summary judgment, the motion judge explained:
Where the facts presented "are not controverted" the question of probable cause is one of law to be determined by the [c]ourt and not the jury. See Shoemaker v. Shoemaker, 11 N.J. Super. 471, 475 (App. Div. 1951). The probable c[]ause standard requires that we look at the totality of
circumstances. Maryland v. Pringle, 540 U.S. 366, 371[, 124 S. Ct. 795, 800, 157 L. Ed. 2d 769, 775] (2003).
. . . .
[] Defendants . . . primarily rely on the identifications provided by Walker and Anderson to argue that they had probable cause to arrest Williams. However, there are genuine material factual issues in dispute as to whether [] [d]efendants had probable cause at the time of [p]laintiff's arrest.
. . . .
. . . Here, both Anderson and Walker certified, before the filing of any motions for summary judgment, that they had been coerced by [] [d]efendant Detectives in selecting [] [p]laintiff out of a photo-array. Furthermore, [p]laintiff alleges that Walker's February 8, 2009 interview was not recorded. There are also allegations that the Detectives should have been aware that Walker was under the influence of narcotics.
. . . There are also issues with Detective Prachar's testimony at the Wade [h]earing in which he agrees he gave the impression that he only took one statement of Anderson, when he had in fact taken three separate statements: February 14, 2009; February 23, 2009; and February 24, 2009. Specifically, Detective Prachar[] testified that at the March 19, 2010 Wade [h]earing that the first time he interviewed Anderson was on February 23, 2009. Moreover, at [Prachar's] deposition he testified that he had no recollection of interviewing Anderson on February 14, 2009. This presents additional credibility issues, that cannot be resolved as [a] matter of law. There are
also discrepancies in what photos Walker reviewed at the first photo array . . . .
This [c]ourt is required to afford the non-moving party all favorable inferences. There are numerous factual disputes that raise issues as to whether the witness statements relied upon by [d]efendants were credible and as to whether an ordinarily prudent individual would have believed that an offense had been committed by [p]laintiff.
The court's findings and conclusions are supported by the record and it correctly determined that there were genuine issues of fact precluding summary judgment. The question of whether Prachar had reasonable or probable cause to arrest plaintiff was based on disputed facts, and even though plaintiff was indicted, the facts underlying the indictment were disputed. The case was therefore properly presented to the jury to determine whether or not reasonable or probable cause was shown. See Shoemaker, supra, 11 N.J. Super. at 475; Zalewski v. Gallagher, 150 N.J. Super. 360, 367-68 (App. Div. 1977).
First, contrary to Prachar's contention, both Walker's and Anderson's depositions implicated him in improper conduct. Walker's deposition testimony contradicted Prachar's testimony. Prachar testified he had a conversation with Walker after the first photo display and that she told him that she had seen her attacker in the photos but did not pick him because she was scared. Walker disputed having any such conversation with Prachar, and testified that she did not see her attacker in any of the photos. She also testified that she never told any of the detectives that she saw her attacker but she was too scared to pick him out. Additionally, she testified that she did not recall picking plaintiff's picture in the second photo display.
Similarly, Anderson's deposition testimony also contradicted Prachar's testimony. Anderson stated that she was never afraid of plaintiff and that she never told any of the detectives that she did not pick out plaintiff's picture in the first photo display because she was scared. Furthermore, Anderson specifically testified that she only picked plaintiff's picture in the second photo display because both Prachar and Lassiter told her that she had picked the wrong person in the first photo display, that plaintiff was a bad man, that they had sufficient evidence that he committed the murder, and that they needed her help.
Second, both Walker's and Anderson's sworn statements implicate defendant in wrongdoing. They both claim that defendant improperly influenced and/or coerced them; Walker into identifying plaintiff as the person who attacked her on January 4, 2009, and Anderson into identifying him as the person driving the car Crooks entered the night she was murdered.
Third, credibility issues existed that precluded summary judgment. Prachar claims that both Walker and Anderson are not credible because they admitted to being under the influence of drugs at the time they gave their sworn statements. However, Prachar's argument overlooks the fact that both women also admitted being under the influence of drugs when they gave their statements to the detectives and when they participated in the photo displays and identified plaintiff. Accordingly, because Walker and Anderson were under the influence of drugs when they testified for and against plaintiff, the jury needed to assess their credibility, and that of Prachar, since his testimony contradicted both women's testimony. See Alves v. Rosenberg, 400 N.J. Super. 553, 566 (App. Div. 2008) (citing Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 494, 498 (1956)) (recognizing that credibility is for the factfinder to determine when the testimony provided is contradicted).
B.
The motion judge also found that Prachar was not entitled to summary judgment on his various immunity claims. The judge explained:
[Under] N.J.S.A. 59:3-3 a public employee is not immune from liability for false arrest or false imprisonment. Government officials are not shielded from conduct outside the scope of employment such as fraud, actual malice, willful misconduct or criminal
activity. See e.g., Cashen v. Spann, 66 N.J. 541 (1975); DeGroot v. Muccio, 115 N.J. Super. 15 (Law Div. 1971). As discussed earlier there are genuine issues of material facts as to whether [d]efendants' conduct was outside the scope of employment and consisted of fraud, actual malice, willful misconduct, or criminal activity.On appeal, Prachar renews his argument that he is entitled to various forms of immunity, each of which we now address.
(i) Tort Claims Immunity
Prachar contends that he is entitled to immunity under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. He relies primarily on N.J.S.A. 59:3-2(b) and N.J.S.A. 59:3-8. N.J.S.A. 59:3-2(b) provides that "[a] public employee is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature." N.J.S.A. 59:3-8 provides that "[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment."
Prachar argues that because Iu's decision to prosecute plaintiff was in furtherance of "instituting or prosecuting any judicial or administrative proceeding within the scope of his employment," he, like Iu, as an employee of the ECPO, "is similarly entitled to a dismissal of the [c]omplaint on immunity grounds for the same reasons." We do not find this argument persuasive.
N.J.S.A. 59:3-1(a) provides that "[e]xcept as otherwise provided by this act, a public employee is liable for injury caused by this act or omission to the same extent as a private person." N.J.S.A. 59:3-3, cited by the motion judge, provides "[a] public employee is not liable if he acts in good faith in the execution or enforcement of any law. Nothing in this section exonerates a public employee from liability for false arrest or false imprisonment." Furthermore, N.J.S.A. 59:3-14(a) provides that "[n]othing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct." See also Hayes v. Mercer Cty., 217 N.J. Super. 614, 622 (App. Div.) ("The [TCA] immunity [] is not so absolute as the federal immunity because all [TCA] immunities are subject to N.J.S.A. 59:3-14a . . . ."), certif. denied, 108 N.J. 643 (1987).
Thus, Prachar, as a public employee, is not entitled to immunity for conduct outside the scope of his employment or conduct that constituted a crime, actual fraud, actual malice or willful misconduct. N.J.S.A. 59:3-14(a); Hayes, supra, 217 N.J. Super. at 622. Here, plaintiff alleged that Prachar acted outside the scope of his employment and that his actions constituted fraud and/or willful misconduct. He supported his allegations with evidence that, if accepted by the jury, was sufficient to defeat Prachar's TCA immunity defense. Hence, Prachar was not entitled to summary judgment on this basis.
(ii) Absolute Immunity
In advancing his absolute immunity claim, Prachar relies on his function as an investigator engaged in law enforcement activities. He argues that "to the extent the allegations against [him] relate to his duties, through the [ECPO], to coerce false Grand Jury testimony in connection with a criminal prosecution, he is entitled to absolute immunity." We disagree.
In Imbler v. Pachtman, 424 U.S. 409, 420, 96 S. Ct. 984, 990, 47 L. Ed. 2d 128, 137 (1976), the United States Supreme Court determined that prosecutors enjoy the same absolute immunity for claims brought under 42 U.S.C.A. § 1983 as they do at common law. Id. at 422, 427, 96 S. Ct. at 991-93, 47 L. Ed. 2d at 140-42. Absolute prosecutorial immunity is granted out of "concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust." Id. at 423, 96 S. Ct. at 991, 47 L. Ed. 2d at 139. While the Court acknowledged that absolute immunity "does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty," it found that was a necessary sacrifice to advance the broader public interest of not preventing a prosecutor's "vigorous and fearless performance" of the office's duties. Id. at 427, 96 S. Ct. at 993-94, 47 L. Ed. 2d at 142.
The Court determined that prosecutorial immunity protects activities that are an "integral part of the judicial process" when the prosecutor acts as an "advocate," but left open the "boundaries" of its decision, and declined to decide whether absolute immunity extends to "those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer." Id. at 430-31, 96 S. Ct. at 994, 47 L. Ed. 2d at 143-44. Subsequently, in Burns v. Reed, 500 U.S. 478, 494-96, 111 S. Ct. 1934, 1943-44, 114 L. Ed. 2d 547, 563-65 (1991), the Court held that a prosecutor's administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.
When determining whether particular actions of government officials are entitled to absolute immunity, courts should apply a "functional approach," see id. at 486, 111 S. Ct. at 1939, 114 L. Ed. 2d at 558, which considers "the nature of the function performed, not the identity of the actor who performed it . . . ." Forrester v. White, 484 U.S. 219, 229, 108 S. Ct. 538, 545, 98 L. Ed. 2d 555, 566 (1988); Michaels v. New Jersey, 50 F. Supp. 2d 353, 359 (D.N.J. 1999). When a prosecutor functions as an administrator rather than an officer of the court, the prosecutor is entitled only to qualified immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct. 2606, 2616, 125 L. Ed. 2d 209, 226 (1993). The official seeking immunity has the burden to show that immunity is justified for the function in question. Burns, supra, 500 U.S. at 486, 111 S. Ct. at 1939, 114 L. Ed. 2d at 558.
In Hayes, supra, 217 N.J. Super. at 622, we adopted an objective good faith standard, derived from the Court's decision in Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S. Ct. 2727, 2733, 73 L. Ed. 2d 396, 403-04 (1982), in determining the applicability of the qualified immunity granted by N.J.S.A. 59:3-3. In Hayes, the plaintiff was the subject of extradition proceedings initiated by, among others, a Mercer County Assistant Prosecutor and an investigator in the prosecutor's office. The plaintiff brought an action for false arrest and related torts under 42 U.S.C.A. § 1983 and the TCA. The trial court granted summary judgment on the ground that all defendants were absolutely immune under Federal and New Jersey law. On appeal, we held that the Mercer County Prosecutor was entitled to absolute immunity from suit, but the investigator was only "entitled to a qualified immunity for official actions taken in good faith." Hayes, supra, 217 N.J. Super. at 621 (quoting Ross v. Meagan, 638 F.2d 646, 649 (3d. Cir. 1981); Cleary v. Andersen, 423 F. Supp. 745, 749-50 (D. Neb. 1976)).
We find this reasoning persuasive, if not controlling. Prachar, in his investigative role, has failed to establish that he is entitled to absolute immunity. Accordingly, summary judgment on this basis was properly denied.
(iii) Qualified Immunity
Lastly, Prachar contends that he was entitled to qualified prosecutorial immunity. He argues that "[p]laintiff failed to establish that [Prachar's] actions constituted a violation of his rights, or that [Prachar] acted in any way unreasonably."
Qualified immunity shields government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, supra, 457 U.S. at 818, 102 S. Ct. at 2738, 73 L. Ed. 2d at 410. Qualified immunity, however, is not available if the unlawfulness of the official's act is objectively apparent given the pre-existing law at the time of the alleged deprivation of rights. Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523, 531 (1987). In other words, "whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action, assessed in light of the legal rules that were 'clearly established' at the time it was taken." Id. at 639, 107 S. Ct. at 3038, 97 L. Ed. 2d at 531 (quoting Harlow, supra, 457 U.S. at 818-19, 102 S. Ct. at 2738, 73 L. Ed. 2d at 410). See also Hayes, supra, 217 N.J. Super. at 621-23. Defendant's claim of qualified immunity is further subject to N.J.S.A. 59:3-14, which provides that a public employee is not entitled to immunity for conduct outside the scope of his employment or conduct that constituted a crime, actual fraud, actual malice or willful misconduct. See Hayes, supra, 217 N.J. Super. at 621; Brayshaw v. Gelber, 232 N.J. Super. 99, 110 (App. Div. 1989).
Here, plaintiff's complaint alleges violations of the New Jersey Constitution, the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, and relevant State statutes. Plaintiff claimed deprivation of rights of which Prachar was, or should have been, aware. Because genuine issues of fact existed as to whether Prachar acted outside the scope of his employment, and whether he knowingly deprived plaintiff of rights that he was or should have been aware of, summary judgment based on qualified immunity was properly denied.
III.
Prachar next contends that the trial court erred in failing to set aside the verdict and order a new trial because the jury's verdict was against the weight of evidence. He argues that "[n]o evidence was presented to the jury that the decisions made by [him] were motivated by actual malice." He further asserts that "the trial court's most significant error was failing to properly analyze the testimony of Anderson." Essentially, Prachar argues that the trial court failed to properly assess Anderson's credibility, and that the contradictions between her various versions of events "necessitated a finding that she perjured herself" and rendered her totally unworthy of belief.
A motion for JNOV or a new trial should not be granted unless the jury's verdict was a manifest denial of justice. See R. 4:40-2; 4:49-1. In deciding a JNOV motion, a court must consider whether the evidence, together with any legitimate inferences, could sustain a judgment in the prevailing party's favor. Riley v. Keenan, 409 N.J. Super 281, 298 (App. Div.), certif. denied, 200 N.J. 207 (2009).
Our review of an order denying a new trial motion is limited to consideration of whether it clearly results in a miscarriage of justice under the law. R. 2:10-1; Dolson v. Anastasia, 55 N.J. 2, 5-7 (1969). We must accord "'due deference' to the trial court's 'feel of the case.'" Jastram v. Kruse, 197 N.J. 216, 230 (2008) (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)). We view the evidence in the light most favorable to the party opposing the motion. Caldwell v. Haynes, 136 N.J. 422, 432 (1994). We do not substitute our judgment for that of the jury, but instead grant the motion "only where to do otherwise would result in a miscarriage of justice shocking to the conscience of the court." Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 456 (1962)).
In denying defendant's motion for JNOV or a new trial, the trial judge noted that the descriptions given by both Walker and Anderson "don't particularly match the plaintiff," and that Anderson knew plaintiff prior to the murder but did not initially identify him as the perpetrator. Also, plaintiff was never linked to any car fitting the description of the car Crooks entered on the night of the murder.
Second, the judge found "of great significance" the fact that substantial time elapsed between both Walker's and Anderson's first photo display, where they failed to identify anyone as the perpetrator, and their second photo display, where both then did so. The judge explained:
What occurred during that significant period of time was never explained by Prachar or by any other witness. However, it is clear that Prachar had contact with both witnesses during that period of time, and the jury is certainly free to conclude that conversations occurred [] that led to the [] mis-identification of plaintiff as the guilty party.
Third, both Prachar's and Gregory's claim that Walker failed to identify plaintiff in the first photo display because she was afraid was not corroborated by any other evidence. Fourth, the judge found that, with respect to Anderson, the jury could have drawn the conclusion that Prachar destroyed the audio recording of her February 23 statement because it was different or contained material that would have incriminated him with respect to the legitimacy of her identification of plaintiff.
Further, the February 24 photo display was not conducted in accordance with the Attorney General's Guidelines. It was not even a complete re-creation of the photo identification and, therefore, the jury could have concluded that it did not accurately convey what occurred the day before. Similarly, the jury could have found it significant that Prachar did not document the events of the previous day.
Fifth, the judge pointed out that the jury was entitled to credit Anderson's testimony that Prachar told her that plaintiff was a bad person and that the police had evidence that he murdered Crooks. Also, the jury was permitted to consider Anderson's testimony that Prachar cleared certain charges against her and gave her money for clothes, and told her to lie to the grand jury, "which suggests an inducement to testify to facts other than those that may have actually existed." While Anderson's trial testimony differed from her grand jury and her deposition testimony, "the jury was entitled to regard [her trial] testimony as credible."
Finally, the judge pointed out that:
[T]here was testimony that Ricky James could have been a potential perpetrator but was never investigated, that he owned a white Acura with tinted windows, which comes pretty close to the . . . silver Infiniti with tinted windows that was alleged to have been seen. He physically resembled the description given by Anderson and Walker, and he had the gun that was used in the attack and murder. Under those circumstances the jury could have concluded that, in fact, it was Ricky James, and not plaintiff, who was the perpetrator of the murder and the [aggravated assault], and that plaintiff had been wrongly-identified in that regard.
The judge's recitation of the evidence supports the jury's findings, and the inferences cited by the judge that the jury could have drawn were reasonable in light of the evidence presented. The jury's verdict was largely dependent on its assessment of the credibility of the various witnesses, and reasonable minds could differ as to the evidence presented. R. 4:49-1(a). Applying our deferential standard of review, we discern no basis to disturb the jury's verdict or the trial judge's decision denying plaintiff's motion for JNOV or a new trial.
IV.
We next address Prachar's contention that the trial court erred by failing to order a new trial or enter a JNOV in his favor because plaintiff failed to establish the essential elements of malicious prosecution and false arrest. Specifically, he argues that plaintiff failed to prove: (a) actual malice; (b) the absence of probable cause; and (c) a favorable termination of his action. Additionally, for the first time on appeal, Prachar contends that plaintiff produced no evidence showing he had met the verbal threshold of the TCA.
To prove malicious prosecution, plaintiff was required to prove: (1) that defendant(s) instituted the criminal action against him; (2) that defendant(s) acted with malice; (3) that there was an absence of probable cause for the criminal action; and (4) that the criminal action terminated in his favor. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 393-94 (2009); Helmy v. City of Jersey City, 178 N.J. 183, 190 (2003); Lind v. Schmid, 67 N.J. 255, 262 (1975). The existence of probable cause is an absolute defense to claims of false arrest, false imprisonment, and malicious prosecution. Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000).
Prachar concedes the first element, as it is undisputed that a criminal action was instituted against plaintiff, but contends that plaintiff failed to establish the remaining elements. Prachar asserts that plaintiff failed to prove that he acted with malice, arguing that "there was no extrinsic evidence from which it can be inferred that [his] actions were motivated by anything other than the fulfillment of his duties as a law enforcement officer." We disagree.
Proof of malice does not require proof that defendant(s) acted with malevolence or personal ill will toward plaintiff. Epperson v. Wal-Mart Stores, Inc., 373 N.J. Super. 522, 532 (App. Div. 2004). Rather, malice is defined as "the intentional doing of a wrongful act without just cause or excuse." Brunson, supra, 199 N.J. at 395 (quoting McFadden v. Lane, 71 N.J.L. 624, 630 (E. & A. 1905)).
Here, plaintiff presented sufficient evidence to allow the jury to properly infer that Prachar's intentional conduct was wrongful without just cause or excuse. For example, Prachar concedes that he signed the affidavit in support of the first arrest warrant relating to the aggravated assault of Walker. The information contained in that affidavit is directly contradicted by Gregory's and Walker's testimony. Thus, if the jury found Gregory's or Walker's testimony more credible than Prachar's, then it could have justifiably concluded that Prachar purposely misrepresented the facts in an attempt to secure an arrest warrant. Such conduct supports a finding of malice. See Brunson, supra, 199 N.J. at 395.
Defendant also conceded that the affidavit in support of the second arrest warrant, related to the murder charge, relied largely upon the information contained in the first affidavit and the information obtained from Anderson. Again, however, if the jury found Anderson's testimony credible, or if it believed that inaccuracies in the affidavit were intentional or made with reckless disregard for the truth, then it could have justifiably concluded that Prachar purposely misrepresented the facts in an attempt to secure that warrant. Such conduct similarly supports a finding of malice.
Finally, there was sufficient circumstantial evidence of Prachar's misconduct to permit the jury to infer that he acted with malice. Prachar testified that he did not recall certain interviews with central witnesses of the investigation and that he failed to document those interviews in any of his reports or in the affidavits in support of the arrest warrants. He admitted: (1) deleting the recording of Anderson's statement and photo display wherein she allegedly identified plaintiff; (2) discarding both his notes and the tape recorder used to record the statement and photo display; (3) discarding the tape recorder even though it did not belong to him and he was unsure if it was broken; and (4) failing to document any of the foregoing in any of his reports or in the affidavits in support of the arrest warrants.
Prachar next argues that probable cause was established by the grand jury indictment. This, he asserts, constituted prima facie evidence to prosecute, which could only be rebutted by a showing that it was procured by fraud, perjury, or other corrupt means. He contends that plaintiff failed to make such a showing here.
Probable cause exists if at the time of the arrest "the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142, 145 (1964). See also State v. Waltz, 61 N.J. 83, 87 (1972) (describing probable cause as a "well-grounded" suspicion that a crime has been or is being committed). Where the facts are undisputed, the existence or nonexistence of probable cause is a question of law. "Factual disputes are to be resolved by the jury, but the finding of probable cause must be made on adequate instructions by the court." Lind, supra, 67 N.J. at 266.
Viewing the facts most favorably to plaintiff, there was sufficient evidence to prove a lack of probable cause. Walker testified that she told the police that plaintiff was not the person who assaulted her on January 4, 2009, and Anderson testified she told the police that plaintiff was not the person driving the car that Crooks entered on the night of the murder. Further, both testified that they initially failed to identify plaintiff, and only did so at second photo displays because they were influenced or coerced to do so by the police: Walker by Gregory, and Anderson by both Prachar and Lassiter. Since Prachar acknowledged speaking to both Walker and Anderson between their respective photo displays, the jury was permitted to credit their testimony, and reasonably infer that Prachar influenced them to identify plaintiff.
Furthermore, both Walker and Anderson testified that they were under the influence of drugs in 2009 and 2010, when they gave their statements to the police and identifications of plaintiff, and when Anderson testified before the grand jury. Thus, the jury could reasonably have inferred that their 2009 and 2010 statements, identifications, and Anderson's grand jury testimony were not reliable or credible, and that Prachar should not have reasonably relied on such evidence.
Finally, as we have noted, there was sufficient evidence for the jury to conclude that Prachar purposely misrepresented the facts in an attempt to secure the arrest warrants. Accordingly, plaintiff provided sufficient evidence to permit the jury to conclude that Prachar knowingly and deliberately, or with reckless disregard for the truth, made false statements or omissions that created a falsehood in applying for the arrest warrants, and therefore, there was no probable cause to institute the criminal action against plaintiff. See Brunson, supra, 199 N.J. at 395.
Prachar also contends that plaintiff failed to establish the final element necessary for his malicious prosecution claim - that the criminal action terminated in plaintiff's favor. Relying on Rubin v. Nowak, 248 N.J. Super. 80 (App. Div. 1991) and Fleming v. United Parcel Services, Inc., 273 N.J. Super. 526 (App. Div.), certif. denied, 138 N.J. 264 (1994), cert. denied, 516 U.S. 847, 116 S. Ct. 139, 133 L. Ed. 2d 85 (1995), he argues that the dismissal, without prejudice, of plaintiff's action was not a favorable termination because it was not dispositive as to plaintiff's innocence of the crime for which he was charged.
The cases cited by Prachar do not support his argument. In fact, Rubin supports plaintiff's position that there was a favorable termination. In Rubin, supra, 248 N.J. Super. at 84, the court held that "an administrative dismissal is a favorable termination of a criminal proceeding for purposes of a malicious prosecution action." It explained:
[T]here is no favorable termination where the complaint was withdrawn pursuant to an agreement of compromise with the accused, or where the criminal proceeding was dismissed because of the accused's insanity, or because the accused was accepted in a pretrial intervention program. The inquiry thus focuses on whether the termination was or was not dispositive as to the accused's innocence of the crime for which he was charged. In the latter cases termination of the prosecution did not dispose of that cardinal issue.
Restatement, Second, Torts, § 659 states that "[c]riminal proceedings are terminated in favor of the accused by . . . the formal abandonment of the proceedings by the public prosecutor . . . ." This is subject, however, to the conditions stated in § 660 that the prosecution not be abandoned "pursuant to an agreement of compromise with the accused; or . . . because of misconduct on the part of the accused or in his behalf for the purpose of preventing proper trial," that it not be "abandoned out of mercy requested or accepted by the accused," and that new proceedings for the same offense are not pending. These standards are compatible with the principles underlying
New Jersey precedents as to what constitutes a favorable termination.
[Id. at 83 (citations omitted) (second alteration in original).]
Fleming is also distinguishable because that case dealt with an actual acquittal rather than a voluntary dismissal. In Fleming, supra, 273 N.J. Super. at 530-31, the court held that an acquittal by a judge rather than a jury, based on a constitutional violation, did not preclude a finding that there had been a favorable termination as required to maintain a malicious prosecution action. We explained that an "acquittal, whether by judge or jury, is always a favorable termination." Id. at 530.
Moreover, in Piper v. Scher, 221 N.J. Super. 54, 56 (App. Div. 1987), we held that, in a malicious prosecution action, "defendant's voluntary termination or abandonment of the underlying criminal action, without any agreement with or other prejudicial misconduct by the plaintiff, may constitute a favorable termination of the criminal proceedings, one of the elements of such a cause of action." Here, as in Piper, the criminal action was voluntarily terminated or abandoned without any agreement with or other prejudicial misconduct by plaintiff. Although the indictment was dismissed "without prejudice," more than five years has elapsed and plaintiff has not been recharged with those crimes. The failure to recharge plaintiff clearly indicates that those charges have been abandoned. Accordingly, plaintiff has presented sufficient evidence that the voluntary dismissal of the criminal charges against him constituted a favorable termination for purposes of his malicious prosecution claim.
Prachar next argues that plaintiff is not entitled to damages because he failed to meet the verbal threshold of the TCA, N.J.S.A. 59:9-2. Specifically, he contends that although plaintiff claimed he suffered "emotional distress," he "produced no evidence showing that he had met the verbal threshold of the [TCA]."
In conformity with general principles of appellate practice, because this argument was not presented to the trial court, we decline to consider it. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (discussing the limited circumstances in which an appellate court will consider an argument first raised on appeal). Moreover, we conclude that the argument lacks merit. See Toto v. Ensuar, 196 N.J. 134, 148 (2008) (holding that "if the jury finds that the public employee in a false arrest/false imprisonment claim committed willful misconduct, the plaintiff is entitled to recover damages without regard to the limitations of the verbal threshold").
V.
Prachar contends that the inconsistency between his and Lassiter's verdicts warrants reversal of the judgment. Also, both parties challenge the trial court's counsel fee award. We conclude that these arguments lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). We add only the following comments.
"[I]nconsistent and irreconcilable verdicts are fatally defective and should normally be set aside." Mercedes-Benz Credit Corp. v. Lotito, 328 N.J. Super. 491, 508 (App. Div.) (alteration omitted) (quoting Brendel v. Pub. Serv. Elec. & Gas Co., 28 N.J. Super. 500, 507 (App. Div. 1953)), certif. denied, 165 N.J. 137 (2000). "[T]he underlying reason for vacating the verdict in such circumstances is that the jury failed to comprehend the issues involved in the trial and, by their verdicts, demonstrated their unfitness to determine the rights and obligations of the respective parties." Ibid. See also JMB Enters. v. Atl. Emp'rs Ins. Co., 228 N.J. Super. 610, 616 (App. Div. 1988) (inconsistency indicates jury mistake or confusion).
Contrary to Prachar's argument, we find no fatal inconsistency in the jury's verdict holding him liable but not Lassiter. Prachar, not Lassiter, initiated the criminal proceedings against plaintiff. Lassiter did not sign the affidavits in support of the arrest warrants, nor appear before the grand jury. He testified that he was not involved in the photo displays: he did not prepare the photo arrays, he did not display the photos to Walker or Anderson, nor did he discuss the displays with either of them.
In contrast, Prachar was significantly involved in initiating the criminal proceedings against plaintiff. He was involved in all of the photo displays: he assembled the photo arrays, and he admitted having unrecorded conversations with both Walker and Anderson between the first and second photo displays. He took the tape recording of Anderson's statement home and erased it. He also testified before the grand jury against plaintiff, and Anderson testified that he influenced or coerced her to testify against plaintiff at that proceeding. In short, the record supports a conclusion that the jury's verdict was not the product of confusion, mistake, or irreconcilable inconsistency. Accordingly, we find no basis to disturb it.
Finally, both sides raise various challenges to the counsel fee award. Prachar argues that: (a) plaintiff is not a prevailing party as against defendants Iu and Lassiter, and therefore, the award should be reduced; (b) the amount of the fee award is disproportionate to the judgment; and (c) plaintiff was not entitled to a contingency enhancement. In his cross- appeal, plaintiff contends that although the trial judge properly determined he was entitled to a contingency enhancement, she erred by reducing the enhancement sought from forty percent to twenty percent. He also argues that the court erred by reducing his counsel's hourly rates.
"[I]f a successful [prevailing party] has achieved only limited relief in comparison to all of the relief sought, the [trial] court must determine whether the expenditure of counsel's time on the entire litigation was reasonable in relation to the actual relief obtained, and, if not, reduce the award proportionately." Singer v. State, 95 N.J. 487, 500 (citation omitted), cert. denied, 469 U.S. 832, 105 S. Ct. 121, 83 L. Ed. 2d 64 (1984). However, "[w]hen the 'unsuccessful claims are related to the successful claims, either by a common core of facts or related legal theories, the court must consider the significance of the overall relief obtained to determine whether those hours devoted to the unsuccessful claims should be compensated.'" Kluczyk v. Tropicana Prods., Inc., 368 N.J. Super. 479, 500 (App. Div. 2004) (quoting Singer, supra, 95 N.J. at 500).
In awarding counsel fees to plaintiff, the court explained: "I place no significance on the fact that the verdict was returned against just one of the defendants, since in my view, plaintiff received full value for his case, and the time expended in discovery would have been the same, regardless of the number of defendants." Having reviewed the record, we similarly conclude that plaintiff's claims against Prachar are based on the same "common core of facts" and "related legal theories" as the claims against the ECPO, Iu, and Lassiter. Kluczyk, supra, 368 N.J. Super. at 500. Hence, the fact that the verdict was returned solely against Prachar does not warrant a reduced fee award.
Finally, we discern no basis to disturb the quantum of the fee award. We are satisfied that the fee award is consistent with the governing legal principles set forth in Walker v. Giuffre, 209 N.J. 124, 130 (2012), and Rendine v. Pantzer, 141 N.J. 292, 316-17 (1995). Moreover, "there need not be proportionality between the damages recovered and the attorney-fee award itself." Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 23 (2004); see also Walker, supra, 209 N.J. at 132. We detect no "clear abuse of discretion" here that would compel us to vacate or modify the fee award. Rendine, supra, 141 N.J. at 317.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).