Former Police Sergeant David Romeo’s Conviction Holds Up

WILDWOOD — Part of the success of the United States is rooted in the value placed on the rule of Law. The community thinks so highly of this that those entrusted with enforcing the law are given more discretion than an ordinary person when it comes to the use of force. On Aug. 26 a New Jersey Appeals Court sent the message that there is a high penalty for abusing that privilege.
The court unanimously affirmed the conviction of former Wildwood police Sgt. David Romeo.
Romeo was found guilty in a jury trial on March 8, 2010 of a single charge of second degree felony for violating New Jersey’s Official Misconduct statute. This is not as severe as a first-degree felony but more serious than a misdemeanor.
In a trial before Judge Raymond Batten the prosecution called several of Romeo’s fellow officers as witnesses. These included Edward Ramsey, Roger Lillo, Walter Cubernot, and John Flanigan. They testified that on July 24, 2007 they arrested two car burglars, Gilbert Haege and Louis McCullough. After the suspects were subdued, lying face down and handcuffed behind their backs, Romeo arrived and kicked each defendant in the face or head two or three times.
Romeo stated he saw a knife lying on the ground between the suspects and he rendered “a distracting kick” to protect his fellow officers. None of the other officers testified that they saw the knife on the ground and it was never logged into evidence.
After returning to the station, Ramsey testified that he and Romeo had a “heated conversation” about the sergeant’s treatment of the suspects. Romeo also told Ramsey that he would “write up the use of force report” instead of Ramsey doing it. (A use of force report is required any time force is used on a suspect that causes injury no matter how slight or grave.) Romeo also testified that for a variety of reasons he “never got around to it.”
As a result of this incident Romeo was suspended three days later on July 27, 2007.
During the trial, the prosecution presented not only eyewitness testimony but also testimony for “prior bad acts.” This formed part of the basis of the defendant’s appeal. The defendant’s appeal attorney Kevin Roe, argued that the three incidents allowed into evidence, two in 2002 and one in 2004 showing “Prior use of excessive force,” were prejudicial. He also argued that Internal Affairs investigated complaints filed against Romeo. This was an attempt by defense counsel to deny that these incidents rose to the level of “prior bad acts.”
Capt. Kevin McLaughlin testified that he and Lt. E. Marie Hayes, now Freeholder Hayes, investigated the Jason Russell complaint (January 2002) and found “no evidence sufficient to warrant disciplinary action” against Romeo. The defense sought to use McLaughlin’s testimony as a justification for Romeo’s conduct and disallowing the prosecution’s “prior bad acts” testimony. They emphasized Romeo was never disciplined. To counter this the prosecution sought to introduce evidence that the Internal Affairs investigation was not all “it should have been.” Batten warned that he would avoid “trying an Internal Affairs investigation here in this criminal trial.”
The prosecution also called County Sheriff Gary Schaffer as an expert witness on the proper use of force. But the trial court did not allow the defense to present an expert witness on the reliability of eyewitness testimony, stating the credibility of witnesses was for the jury to decide and not for an expert.
The Appeals Court ruled that the trial court was correct on all these rulings and upheld the conviction of David Romeo.
The State of New Jersey, which prosecuted the former Wildwood policeman, filed a cross-appeal in this matter relating to sentencing. Frank Ducoat represented the State of New Jersey on the Appeal.
Under NJSA 2C:30-2, the Official Misconduct statute, used in this case, there is a “mandatory minimum sentence of five years.”
The law also states that the defendant is ineligible for parole during those five years, except under “extraordinary circumstances.” The trial judge used a point system to weigh mitigating factors against aggravating ones in the Romeo sentencing. The trial court acted favorably toward defendant and waived the ineligibility restriction.
The Appeals Court ruled that the trial court judged had erred. The Appeals Court also stated that the circumstances needed to override the ineligibility provision required “a serious injustice (to the defendant) which overrides the need to deter such conduct in others.” The court came firmly down on the side of upholding the deterrent purpose of the statute.
The Court of Appeals further stated that Batten needed to use a “clear and convincing standard” to decide if the parole ineligibility should be waived. The opinion indicated that they thought the trial court had been overly generous in weighing the mitigating factors. This would have allowed Romeo to serve less than the five year minimum called for by the law.
The Appeals Court called for a ‘do over’ and sent the matter back to Batten for re-sentencing. In ruling against the former sergeant of police the court sent the message that it would not be lenient with government officials, police or otherwise, who abuse their authority.